In Brief

In Part 2 of our discussion about the recent Patrick Stevedores1 case, we consider whether the actions of an employer over a prior disciplinary warning can be called into question in a later dismissal case by Fair Work Australia.

Your latest 'HR headache'

Picture this situation...You're a senior HR practitioner within a large company. One of your subordinates, "Melanie", dutifully reports the outcome of a recent HR investigation into alleged employee misconduct. You note that the severity of the misconduct would have justified dismissal if the allegation were substantiated. Melanie reports that she 'believed' the employee had committed misconduct but due to some unfortunate circumstances there was not sufficient evidence. Melanie took the 'safe route' and rather than dismissing the employee, she issued the employee with a formal warning.

You feel relieved that Melanie did not dismiss the employee because of the evidentiary issues but are nevertheless troubled by the outcome. You remember 'someone' telling you once that an incorrectly issued warning is never capable of external review. You are wondering whether that view is correct.

Warning Misconceptions

Misconceptions about when a disciplinary warning may be issued are not uncommon. Some employers consider that if there is not sufficient evidence to substantiate misconduct (which would have justified dismissal) as an alternative, they may issue a formal warning. Some also believe that a flawed disciplinary warning can somehow be 'swept under the carpet' and is never capable of review. The Patrick Stevedores case shows both beliefs to be incorrect.

Patrick Stevedores Case

In this case, the employee was dismissed for a serious safety breach which caused a collision between forklifts at the Fishermans Island Brisbane terminal. Some months prior to that incident, the employee had received a final warning for another safety breach. The employee had other instances of unsatisfactory performance or conduct on his disciplinary record.

The employee argued that the final warning was not justified, and should not have been taken into account for the ultimate dismissal. Importantly, this caused Fair Work Australia ("FWA") to look into the circumstances of the issue of the formal warning.

Ultimately, FWA found that the final warning was justified, as was its use in the subsequent dismissal of the employee.

The point to note here is that the employer was put into a situation where it was forced to substantiate:

1. Its issue of the prior warning; and
2. Its use of the warning (with other disciplinary sanctions) as justification for the ultimate dismissal

Lessons for Employers

• The circumstances behind a prior disciplinary warning can be questioned at a later dismissal hearing
• There are a number of disciplinary options open to employers, but whatever action is taken, the same standards of proof apply
• A formal warning should be approached in the same way that a dismissal would be approached i.e. where sufficient evidence does not exist for a dismissal, a formal warning is not an alternative
  
• If a disciplinary warning is wrongly issued, it should be withdrawn
  
  

1 Tony Carrick v Patrick Stevedores Holdings Pty Limited [2012] FWA 4480