By Gaby Grammeno Contributor
The worker was employed as an environmental technician with a Western Australian consultancy.
Deficiencies in his job performance prompted management to give him a warning letter in late March 2023. The letter said he was to ensure that all monitoring systems were calibrated and faults on monitors were rectified in a timely manner, and checklists were updated at the end of every day.
A year later, an internal investigation into a high number of faults revealed that the worker was still not performing his duties to an acceptable standard, and the issues were discussed at a meeting on 21 March 2024.
On 12 April he was warned by email that there had been no improvement in monitor performance from the meeting on 21 March to 5 April, and that this was an unacceptable standard of workmanship and care of the company’s equipment and client service. The worker was given further instructions to rectify these issues immediately and three working days to make these corrections.
Several days later, the worker produced a medical certificate claiming he had acute stress disorder, and applied for workers compensation.
On 8 May, his workers comp claim was rejected and he was sent a termination letter citing misconduct.
He applied to the Fair Work Commission seeking a remedy for unfair dismissal.
In the Commission
The employer submitted that the two reasons for the worker’s dismissal were his fraudulent timesheets and poor job performance.
Deputy President Nicholas Lake heard evidence that analysis of data from the worker’s GPS tracking in a company owned vehicle, electronic ‘clock in’ and ‘clock out’ times and log ins to company computer portals revealed ‘time fraud’ of about 44 hours over a six-month period.
The performance issues were well substantiated and the worker had been warned about them, and though the allegations of time fraud were more contentious, the Deputy President was satisfied that ‘considering the entire factual matrix of the poor performance, there was a valid reason for dismissal’.
The Commission also had to consider whether the dismissed worker was notified of the reason and given an opportunity to respond.
With regard to his job performance, he’d been given multiple warnings and therefore had been sufficiently warned.
With regard to the alleged time theft, however, the worker had not been given an opportunity to respond, as he’d been summarily dismissed.
Deputy President Lake took the view that the time fraud had amounted to about one week’s pay over six months, and the employer could have given the worker an opportunity to address the issue and to clarify expectations with regard to record-keeping.
Deputy President Lake said that the worker ‘should have been dismissed based on his performance rather than the allegation of time fraud’, adding that if there were indications at the time of the show cause meeting that the fraud was intentional, that may have supported the dismissal.
Deputy President Lake found that the dismissal was harsh given that the worker was summarily dismissed, and unjust given that the time theft of 44 hours should have prompted the employer to at least ask the worker how he’d completed his timesheets.
However, the dismissal was not unreasonable given that the worker was made aware of the importance of his specific duties and given a year to improve, he’d failed to do his job properly despite being given specific instructions on how to perform his tasks.
Because the dismissal was harsh and unjust, the worker was entitled to an unfair dismissal remedy.
As the employment relationship had broken down, reinstatement was not appropriate, and it was not what the worker was seeking anyway, so compensation was the appropriate remedy.
Deputy President Lake ordered the employer to pay the worker $6,596 to compensate him for income lost due to the summary dismissal.
What it means for employers
Employers who have reason to dismiss a worker should ensure the person is notified of the reasons and given an opportunity to respond. They should also ensure they have the correct basis for the decision, before moving to terminate the worker’s employment.
