In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, if the dismissal related to unsatisfactory performance by the person, the Commission must take into account whether the person had been warned about that unsatisfactory performance before the dismissal. Fair Work Act (Cth) s.387(e). Unsatisfactory performance is more likely to relate to the employee’s capacity to do the job, than their conduct. Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237. The Commission must take into account whether there was a period of time between an employee being warned about unsatisfactory performance, and a subsequent dismissal. This period of time gives the employee the opportunity to understand their employment is at risk and to try and improve their performance. Johnston v Woodpile Investments Pty Ltd T/A Hog’s Breath Café – Mindarie (2012) FWA 2 .
Fernando v South Oakleigh Club Incorporated T/A South Oakleigh Club (SOC) (2016) WC 8572 delivered 13 December 2016 per Harper-Greenwell C