Unfair dismissal and warnings

This passage from an unfair dismissal case sets out the legal principles which apply to the relevance of warnings in the workplace and the implication of them for a dismissal.

“(b) Was the Applicant warned about unsatisfactory performance before dismissal?

[1] With respect to warnings, the AIRC noted that “a mere exhortation for the employee to improve his or her performance would not be sufficient.”9 The Respondent submitted that what the Respondent did to impress upon the Applicant the seriousness of his underperformance and the need for him to improve went far beyond “mere exhortation” for him to improve.

[2] The case of Bartlett v Ingleburn Bus Services Pty Ltd T/A Interline Bus Services10 discussed how repeated conduct (or in this case, repeated failure to improve) affects the balancing of section 387 factors:

“[41]…If Mr Bartlett had been dismissed for a single instance of misconduct, this might be sufficient to “tip the balance” in favour of a finding that the dismissal was unfair. Regrettably, however, he engaged in a course of unacceptable conduct over a long period of time, and his incapacity to accept responsibility for that behaviour and rectify his conduct in the face of numerous warnings from his employer inevitably led to his continued employment becoming untenable. In this respect, we emphasise the following findings made by the Deputy President, with which we agree:

[27] The Applicant’s evidence that during his employment he was not subject to any “major” poor performance issues is untenable. In my view, on the evidence, it is unquestionable that the Applicant wilfully engaged in the conduct …. The fact that the Applicant seeks to explain away, or otherwise downplay, the significance of these incidents (to the Respondent, and in these proceedings) cannot alter the fact that this conduct occurred. Nor can it alter the fact that such conduct, in my view, amounts to repeated instances of misconduct to which the Applicant received written warnings …”

(emphasis added)
[3] In Bowen v Cape York Grassroots Aboriginal Corporation11 the requirement to consider warnings, regardless of whether they were mentioned as part of the show cause or termination correspondence was summarised as follows:

“[98] In Newton v Toll Transport it was established that “the Commission is required to conduct an objective analysis of all relevant facts in determining – on the basis of the evidence in the proceedings before it –whether there was a valid reason to dismiss….”

[99] Further, in Virgin Australia Airlines Pty Ltd v Blackburn it was summarised that prior warnings form part of the factual matrix that existed at the time of dismissal and the Commission must consider them when determining whether a valid reason existed for the termination. This is so even if those facts do not appear explicitly in the Show

Cause notice. It becomes relevant to the overall weighing exercise performed with the section 387 factors in determining whether the decision was harsh unjust or unreasonable.”

[4] In this case, there was no formal process at all, and no formal warnings. Although, several emails of the Respondent to the Applicant regarding clarifying expectations or the management meetings where the specific failure of the Applicant to meet labour targets was discussed could be considered as the Applicant being on notice. The poor performance being noted by the Respondent as early as December 2022 must be considered as part of the full factual matrix.

[5] In considering a performance record which does not have formal warnings noted, but prior issues are known to the parties and raised in an unfair dismissal matter, Commissioner Cirkovic noted in Maxitanis v Department of Justice and Community Safety12:

“[82] I do not make any findings in relation to the conduct relating to each of the matters in the Applicant’s performance history, however, on the basis of the material before me, though there is no formal written warning or disciplinary action recorded against the Applicant, I cannot be satisfied that the Applicant’s performance history is “exemplary” as described by the Applicant”

[6] On appeal, the decision was quashed and the Full Bench stated:

“[72]…However there was no finding on either of these earlier occasions that Mr Maxitanis had used unreasonable, unnecessary or excessive force, and on the evidence that appears to have led Mr Maxitanis to consider that his conduct in these earlier incidents was compliant with DCI 1.13. Absent evidence that Mr Maxitanis had in clear terms been warned that he had engaged in conduct which was improper and not to be repeated, this must be treated as a matter with neutral weight.”13
(emphasis added)

[7] Therefore, absent specific evidence that the Applicant was specifically warned, I cannot consider any of the above mentioned actions of the Respondent as warnings, and therefore there were no warnings related to the conduct the Applicant was dismissed for. This factor weighs in favour of the Applicant.


Austin v Sandgate Taphouse Pty Ltd (2023) FWC 3084 delivered 23 November 2023 per Simpson C