On repeat: FWC finds employee’s persistent breaches justified dismissal

We recently represented an employer in an unfair dismissal matter before the Fair Work Commission (FWC) that was decided in favour of our client (Hanson v Rhino Rack T/A Rhino Rack Perth [2019] FWC 1235). The matter involved a history or unacceptable conduct by an employee that resulted in the termination of his employment.

Ultimately, Deputy President Binet of the FWC held that the employee’s dismissal was not unfair.  

Background

The employee had been employed since April 2017 in the position of Storeperson in the employer’s warehouse. His contract of employment required him to comply with the policies and procedures of his employer.

The employer maintained three policies/procedures that were relevant to the employee’s dismissal:

  • A No Smoking policy – employees were not permitted to smoke on the employer’s premises other than in a designated smoking area.
  • A ban on eating and drinking in the warehouse – employees were not permitted to eat or drink anything other than water in the warehouse.
  • The safety chain procedure – employees were required to hang a safety chain across the large roller door entry to the warehouse at all times except when authorised persons or vehicles were entering or exiting.

From early 2018, the employee’s manager observed him repeatedly breaching the above policies and procedures. The employee was verbally cautioned and warned about his conduct on numerous occasions and also received a written warning about his breaches in May 2018.

Despite these warnings, the employee continued to breach the employer’s policies and procedures. In August 2018, a new employee to the warehouse informed the manager that the employee had told him not hang the safety chain across the doorway.

This prompted the commencement of a disciplinary process in which it was put to the employee that he was intentionally and persistently breaching the employer’s policies and procedures.

The employee responded to the allegations by stating that “…for the most part I can’t say I’m innocent.” He went on to claim that he was not intentionally breaching the employer’s policies and procedures and he didn’t understand why the employer considered his conduct to be so serious.

On the basis of the employee’s conduct and his failure to take responsibility for his actions, the employer formed the view that his employment was no longer sustainable and the employee’s employment was terminated.

The employee then commenced unfair dismissal proceedings in FWC.

Decision

The main issue for determination by the Deputy President was whether the employee’s repeated breaches of the employer’s policies, procedures and directions amounted to a valid reason for dismissal.

In summary, the employee’s position was that he had not breached the employer’s policies and procedures but if he had it was either not intentional or the policies/procedures were not that important and he was only required to “try” to follow them. The employee considered his manager’s complaints about his repeated failures to follow the policies and procedures to be petty.

The employer’s evidence before the FWC successfully established that the employee was aware of (or should have been aware of) each of the relevant policies/procedures. The Deputy President found that those policies and procedures, and the directions to follow them, were reasonable and lawful and the employee had repeatedly breached those policies, procedures and directions, notwithstanding that he had been informally and formally warned not to do so.

The Deputy President stated,

“While Mr Hanson’s conduct may not in isolation have justified his dismissal … I am satisfied that Mr Hanson’s conduct involved, in aggregate, a consistent pattern of behaviour that demonstrated a repeated disregard for and refusal to comply with Rhino Rack’s lawful and reasonable policies procedures and directions. I am satisfied in those circumstances Mr Hanson’s conduct constituted a valid reason for his dismissal.”

The Deputy President also examined the disciplinary process followed by the employer and found that it was procedurally fair. Specifically, the Deputy President found that,

  • the employee was notified of the reasons for his dismissal in the letters issued to him during the disciplinary process;
  • the employee was provided with an opportunity to respond to the allegations against him; and
  • the employee was not unreasonably refused a support person during the disciplinary process.

Accordingly, the Deputy President dismissed the employee’s application on the basis that the dismissal “was proportional to the persistent nature of his conduct and was not in all the circumstances harsh, unjust or unreasonable.”

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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