Unfair dismissal and warnings


This extract from an unfair dismissal decision of the Fair Work Commission deals with the impact of a lack of warnings by an employer on an unfair dismissal case brought following the termination of an employee’s employment.



“Section 387(e) – unsatisfactory performance – warnings


The Respondent asserted that the Applicant was formally warned about his performance during the meeting with Mr. Kennedy on 26 June 2023. The Applicant consistently denied that this was the case. He said he received no formal or informal warnings about his performance at that meeting or otherwise. He said the meeting was an “informal catch-up” of which there were many. He said his “takeouts related to corporate priorities in certain areas.”


The evidence shows that Mr. Kennedy intended that the meeting on 26 June was to be a performance review and that the Applicant was to be told that any further failure by the Applicant to deliver agreed outcomes would result in further consequences for the Applicant. So much is made clear by the email exchange between Mr. Kennedy and Mr. MacDonald of 16 June. The content of those emails was to be the “script” used by Mr. Kennedy and was to form the basis of the discussion with the Applicant for the subsequent meeting. The Applicant was not privy to that email exchange. He was only able to respond to what he was told at the meeting.


I am not satisfied that the intention to question the Applicant’s performance and warn him translated into what could be regarded as a warning for the purposes of s.387(e) at the meeting on 26 June. On balance I accept the evidence of the Applicant that he was not warned but rather that it was made clear to him that there were a number of important priorities he had to attend to. It was apparent from the Applicant’s evidence that he was genuinely shocked by the conversation on 1 August where he was told, he said for the first time, that termination of his employment was being contemplated. Had he been warned of this possibility previously, I doubt he would have reacted in that way. Given the longstanding relationship between Mr. Kennedy and the Applicant and the Applicant’s role as a co-founder and key person within the Respondent, I think it likely that Mr. Kennedy stopped short of warning the Applicant about his performance at the 26 June meeting. I think the conversation was serious and even robust. Mr. Kennedy was doing his best to convey the seriousness of the situation to the Applicant to get him to improve his performance without making it plain that the Applicant was being formally warned. When asked whether the Loss Incident was the reason for the Applicant’s Mr Kenney said in his evidence:


“If I made a mistake it’s I was too generous, I was too kind for too long and I should have done – I should have made – I should have moved much faster and been a lot tougher. I mean it’s obvious from all the evidence that I wasn’t tough, right. That I didn’t set meetings and balled him out every week. But you’ve got to manage people carefully, right, particularly intellectual talent, you can’t be too tough. …. I was hoping that we could continue to work together, I really was, but there were plenty of grounds for dismissal, but once that loss came that was the end of it. I could not have defended him after that.”9


In my view this response supports the view that Mr. Kennedy was trying to get the message across to the Applicant that his performance was deficient without formally warning him. I think that extended to the meeting on 26 June 2023. I think it likely that had the Applicant been warned at the meeting he would have taken more serious steps to address the shortcomings that had been identified. This did not happen. Given the relationship and the seniority of the actors involved, the approach of Mr. Kennedy is to some extent, understandable. Unfortunately, the approach did not work and the result was the Applicant was not warned about his performance issues. A deficiency of this kind weighs in favour of a conclusion that the dismissal was harsh, unjust or unreasonable……………………………




Conclusion on Unfair Dismissal


Having regard to my conclusions above in relation to the matters listed in s.387, I am satisfied that the termination of the Applicant’s employment was harsh and the dismissal unfair. I come to this view primarily because of the deficiencies in providing the Applicant with a warning about his performance.”



Godbolt v Fame Operations Pty Ltd –(2024) FWC 491 delivered 23 February 2024 per Roberts DP