Unfair dismissal cases; outcome is often unpredictable

It is not necessarily enough to protect an employer from a finding of unfair dismissal that the employer holds a genuine belief that the employee’s performance is unsatisfactory or even that the employee has been guilty of misconduct.

In Mary Conelius v Southern Suburbs Football Club Inc. [2017] FWC 485, an employee claimed she was unfairly dismissed by Souths Leagues Club. The Club sought to rely upon the employee’s ongoing underperformance and two incidents in which the employee displayed ‘outbursts’ including at the reception area. In considering whether there was a valid reason for dismissal, the Commissioner concluded that the employee did indeed have multiple performance issues and had often been dismissive of assistance and training offered to her. The Commissioner also found that one of the employee’s ‘outbursts’ was inappropriate conduct and in breach of the Club’s policy.

However, the Commissioner found that there was nevertheless “no valid reason for dismissal” with the Commissioner hilding that “I have no doubt Souths had concerns with Ms Conelius in respect of certain aspects of the performance of her duties, however it is evident Ms Conelius required, and was receiving training on these issues” The Commission also determined that the outburst was out of character and while inappropriate, it was not offensive, threatening nor abusive and was also not directed at another employee. The Commissioner also categorized a second ‘outburst’ as merely very emotional.