Unfair dismissal; performance v conduct

Here are some observations about the distinction in unfair dismissal cases between a dismissal for conduct and one for for performance issues.

“Other considerations in s 387

[36] The Commission must take into account whether an employee has been notified of the reasons for dismissal and whether the person was afforded an opportunity to respond to any reason related to their conduct or performance (ss 387(b) and (c)).  The question of whether an employee has had an opportunity to respond to allegations should be approached in a common-sense way, with the focus on whether the employee was treated fairly, rather than on any formality.

[37] Mr Graevinghoff was clearly notified of the reasons for dismissal. He contended however that he was denied an adequate opportunity to respond to those reasons. I disagree. The reasons for the meeting on 1 October 2021 were notified to Mr Graevinghoff; those reasons were ultimately the reasons for dismissal. Mr Graevinghoff had the chance to prepare for the meeting in advance and had a meaningful opportunity to put forward his version of events. In my view, Mr Graevinghoff received an adequate and fair opportunity to respond, for the purpose of s 387(c).

[38] The company did not refuse, unreasonably or otherwise, to allow Mr Graevinghoff to have a support person present to assist in discussions relating to the dismissal (s 387(d)). He was accompanied by Ms Simonetis to the meeting on 1 October 2021. It appears that Ms Simonetis may have wished to play a more active role in the meeting, but it is not the role of a support person to be an advocate. Section 387(d) contemplates a ‘support person’ being ‘present’, rather than an advocate or representative taking an active role.

[39] If a dismissal relates to unsatisfactory performance, s 387(e) requires the Commission to consider whether the person has been warned about that unsatisfactory performance prior to dismissal. The reason that I have found to be a valid reason for dismissal was Mr Graevinghoff’s failure to comply with the policy. I do not regard it as a question of performance; it relates to conduct. In any event, the absence of a warning for such conduct would not alter my conclusion below as to the appropriate disposition of this matter.

[40] The Commission is required to consider the degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal (ss 387(f) and (g)). The company is not a small employer and has dedicated human resources specialists. However, these factors do not ‘raise the bar’ for a larger employer. Rather, in respect of smaller employers with little or no internal human resources capability, less might be expected in relation to procedural elements of a dismissal. In my view, these considerations carry little weight in the analysis of whether the dismissal was unfair in this case.

[41] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account any other matters that it considers relevant (s 387(h). The Commission should consider all of the circumstances, and weigh the gravity of any misconduct, poor performance or other circumstances telling against a conclusion that a dismissal was unfair, with any mitigating circumstances and other relevant matters that might support the applicant’s claim that the dismissal was harsh, unjust or unreasonable.

[42] I take into account Mr Graevinghoff’s evidence of the adverse effect of his dismissal, including its financial, social and psychological dimensions. I also take into account the fact that Mr Graevinghoff had worked for the company for some three years and for most of that time had had a good record. On the other hand I consider that Mr Graevinghoff lacks insight into the incident, because he believes that he did nothing wrong. Mr Graevinghoff is a sincere and well-meaning man who clearly enjoyed his job and had concern for his passengers, but on 26 September 2021 he made serious errors of judgment that placed a minor at risk and jeopardised the company’s reputation. He breached the company’s policy that no child is to be left behind. Mr Graevinghoff pointed to alleged safety risks posed by various company practices, but these allegations are not substantiated, and are not relevant to the current circumstances. Mr Graevinghoff suggested that the waiting stop in Epping Forest was not in a safe place, but it was not the company that determined the location of the waiting place, and if the place is unsafe, it only underscores the importance of ensuring that anyone who is or might be a minor waiting at the stop actually boards the bus. Mr Graevinghoff should have actively encouraged the girl to remain on the bus. He should have told her to take a seat. He did not do so. She was left at the side of the road.

[43] An important consideration is whether a decision to dismiss an employee was proportionate, and, if an employee was summarily dismissed for serious misconduct, whether this was warranted. Serious misconduct can arise from a breach of an essential term of the contract of employment, a serious breach of a non-essential term, or conduct manifesting an intention not to be bound by the contract in the future (see Ryman v Thrash Pty Ltd [2015] FWCFB 5264 at [27]). The incident that occurred on 26 September 2021 was a serious matter. It constituted misconduct and a valid reason for dismissal. In my view it also constituted serious misconduct, because it involved a breach of an essential term, or a serious breach of a non-essential term of the contract of employment, namely the obligation to comply with the direction that no child is to be left behind. At issue here is first and foremost the safety of the travelling public who are minors, and secondarily the reputation of the company. Both were put at risk by Mr Graevinghoff on 26 September 2021. Dismissal was a proportionate response.

[44] However, while the company was contractually entitled to dismiss Mr Graevinghoff without notice, I consider that the decision to do so in this case, whilst not unjust or unreasonable, was harsh, because the company’s own ticketing system played a role in the incident. Had the booking system accounted for the fact that two passengers had not boarded in Perth, Mr Graevinghoff would have been able to sell the girl a new ticket, and the girl would not have been left behind. Had Redline’s system interacted with that of Calows, it might have picked up Calows’ mistake in booking the second leg of the girl’s journey on the following day and avoided the situation that arose on the evening of 26 September 2021. These matters do not excuse Mr Graevinghoff’s conduct, but they are important contextual considerations.

[45] As to an appropriate remedy, I am satisfied that reinstatement is inappropriate, because the extent of the harshness is confined to the decision not to give or pay notice. I consider that payment of compensation is appropriate in all the circumstances (s 390(3)). Compensation is intended to provide a person who has been unfairly dismissed with reparation for losses reasonably attributable to the unfair dismissal, which in this case is a payment equivalent to what would have been the relevant notice period, namely 3 weeks’ pay (two weeks for having between two and three years’ service plus an additional week for being over 45), less taxation as required by law. The precise amount should not be controversial. If it is, the parties may request a further listing of the matter, whereafter I will make an appropriate order.”

Passages from Graevinghoff v Kinetic (Tasmania) Pty Ltd (20212) FWC 6651 delivered 21 December 2021 per Colman DP