Unfair dismissal, performance and warnings

Where an employee is dismissed for unsatisfactory performance it is generally necessary for the employer to warn the employee about it and a failure to do so will ordinarily (but not always since the decision is discretionary) tip the dismissal into the category of being unfair.

“Was the Applicant warned about unsatisfactory performance before the dismissal?

[81] A dismissal relates to unsatisfactory performance where it refers to “the level at which the employee renders performance, including factors such as diligence, quality, care taken and so on.”47 This matter involves a dismissal on the grounds of unsatisfactory performance and, as such, s.387(e) of the FW Act is relevant.

[82] A warning for the purposes of s.387(e) must clearly identify:

  • the areas of deficiency in the employee’s performance;
  • the assistance or training that might be provided;
  • the standards required; and
  • a reasonable timeframe within which the employee is required to meet such standards.48

[83] In addition, the warning must “make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.”49

[84] In order to constitute a warning for the purposes of s.387(d), it is not sufficient for the employer merely to exhort their employee to improve their performance.50

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Findings

[87] While Ms Collard’s evidence was that she spoke to both the Applicant and Ms Wang about the manner in which they spoke to customers, I do not consider that this constitutes a warning but was rather a general reminder to both team members to be mindful of telephone manner when speaking to customers. The areas of deficiency in the Applicant’s performance were not clearly identified by the Respondent and put to the Applicant and the Respondent did not make it clear that the Applicant’s employment was at risk unless they were addressed.

[88] Having regard to the matters above, I find that the Applicant was not warned of her unsatisfactory performance before dismissal. This weighs in favour of a finding of unfairness.”

McCallum v Everstone Pty Ltd (2022) FWC 782 delivered 8 April 2022 per Matheson C