Employers regularly have to deal with issues relating to employee behaviour, work performance and misconduct. Often these concepts are interrelated and it can be difficult for employers to correctly characterise employee conduct and behaviour when a decision is made to commence a disciplinary process with an employee.

However, if the characterisation of the issue at hand is not made correctly in the disciplinary context, there is a real risk that an employee cannot properly answer the concerns or allegations against them, which in turn, can lead to a failure to afford procedural fairness.

This issue was recently highlighted by the Fair Work Commission (FWC) in Zirilli v StarTrack Express Pty Limited [2019] FWC 3557. StarTrack Express terminated an employee’s employment on the basis of his misconduct after an audit of driver run sheets uncovered that the employee had not been complying with StarTrack Express’ policies. The employee was responsible for reviewing driver run sheets and checking whether they were compliant with the employer’s policies. The employee had incorrectly signed off on run sheets as compliant when they were not compliant in a number of respects.

The employer put the allegation to the employee that he incorrectly signed off on run sheets and asked for his responses. The employee claimed that he had not been provided with correct training in relation to the procedure for reviewing driver run sheets and had believed at all times that his review of the run sheets was correct. The employer did not accept the employee’s responses and was of the view that his conduct had breached their policies and procedures and behavioural standards. On this basis, the employer terminated the employee’s employment for misconduct.

The employee lodged an unfair dismissal application with the FWC. While the employee accepted that he had made mistakes and had not correctly marked the run sheets, he submitted that if he had been advised that he was making mistakes, he would have reviewed the run sheets more carefully and asked for more time and assistance.

The FWC was satisfied that there was a valid reason for the dismissal, being the employee’s repeated failure to identify non-compliance and take action against drivers.

Critically, however, the FWC found that the dismissal was “incorrectly treated as a matter of misconduct rather than poor performance”. The FWC took the view that the employee’s failures were not wilful or deliberate, but rather were “mistakes” from a lack of diligence. As a performance issue, the FWC held that the employee should have received a warning about his unsatisfactory performance, but did not receive such a warning. Therefore, he was not given an opportunity to improve his performance.

The FWC also noted that not all allegations arising from the non-compliant timesheets were put to the employee, and as such he did not have an opportunity to respond to the full allegations.

After considering these matters, as well as the employee’s length of service and unblemished employment record with the employer, the FWC found that the dismissal of the employee was harsh and unreasonable. It ordered the employer pay the employee $17,504.79 in compensation.


Lessons for employers

It is important for employers to carefully consider and characterise employee conduct before commencing disciplinary action.

For example, there is an important difference between serious misconduct (as defined in the Fair Work Regulations 2009 (Cth) and an employee’s poor performance or inappropriate behaviour.

As set out in this decision, there are different aspects of procedural fairness that apply to different forms of employee conduct or performance. In cases of poor performance, employees should be given the opportunity to improve their performance before termination of their employment is contemplated by the employer.

For this reason, employers should carefully consider all of the circumstances of the conduct or behaviour and then take appropriate disciplinary action.

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