Warnings and unfair dismissal

The relevance of prior performance warnings to an employee pursuing an unfair dismissal case ought to be more apparent than the legal authorities suggest.

“(e) Warnings

While it is clear that the Applicant has a significant disciplinary history with the Respondent, that is not a relevant consideration under s.387(e). As the Full Bench observed in Larcombe v Bis Industries Limited:  4

Thirdly, s.387(e) of the Act relates to warnings for unsatisfactory performance. The Decision appears to conclude that it was not appropriate to take into account under this head, the severity of past disciplinary action (the demotion). That appears manifestly correct. Moreover, we are not persuaded that there is an arguable case of error arising from the Commissioner’s apparent decision not to take the severity of past disciplinary action into account. The Commissioner’s reasons for so doing were that the disciplinary action was not challenged at the time and it was now not appropriate for him to try to “balance the ledger” by taking a matter not previously challenged into account. No arguable appellable error from that reasoning is disclosed. The scope of the consideration under s.387(e) is well settled and does not require further clarification by this Full Bench. The Appellant’s prior disciplinary history is a matter the Commissioner was entitled to take into account under s.387(h). That the Commissioner may have taken prior warnings about conduct into account under s.387(e) instead of (h) does not enliven the public interest nor do the other matters raised by the Appellant as to s. 387(e) of the Act attract the public interest.”

Keane v Sydney International Container Terminals Pty Ltd [2021] FWC 636 delivered 8 February 2021 per Cross DP