Template lesson: Failure to warn employee renders dismissal unfair

Many businesses, and in particular small businesses employers subscribe to human resources information systems (HRIS) which offer access to template letters and policies to provide a ready-made solution or to manage human resources administration.

While HRIS software may aid in managing simple human resources matters, recently, the Fair Work Commission (FWC) found that an employer’s lack of HR knowledge impacted on the procedures followed in effecting the dismissal of an employee (Whiffen v Sense Rugby Pty Ltd [2023] FWC 2516).

The employee was employed in the position of Senior Administration and Reception for Sense Rugby (the Employer). In June 2022, another employee was also employed as a “job share” arrangement with the employee. In June 2023, the employee agreed to the handover of the task of holiday group bookings and enquiries to her colleague. A separation of duties was agreed between the pair and confirmed in an administration meeting with the Employer.

Following the handover of the holiday group bookings task, the employee continued to be involved in the holiday group booking task, including following up her colleague about missing clients and even suggesting a reversal of the handover agreement. The employee’s colleague complained to the Employer about the employee’s conduct in continuing to interfere with the task.

On 20 June 2023, the Employer issued the employee with a warning for not following processes. The Employer noted that while the employee’s intent may not have been malicious, her actions were considered bullying as it showed a lack of trust for her colleague.

The employee was sent a warning letter through the Employer’s HR software program on 21 June 2023. The warning letter provided that the employee was not to complete tasks or follow up on tasks which were not her areas of responsibility and confirmed the Employee’s areas of responsibility.

On 26 June 2023, the employee received enquiries from clients to make a holiday group booking. After asking the Occupational Therapists on duty, the employee completed the bookings. In a handover email to her colleague the employee then advised that she had booked in the clients.  

The employee’s colleague made a complaint to the Employer about the employee’s interference. The Employer wrote to the employee asking why she completed the bookings and did not follow the formal process. The Employer explained to the employee that it had been discussed in the meeting that all holiday group enquiries were to be sent to the employee’s colleague so that enquiries could be handled by one person. The Employer invited the employee to a meeting.

At the meeting on 29 June 2023, the Employer dismissed the Employee. The termination letter sent to the employee through the HR program stated that she was dismissed due to her continuous lack of engagement with processes, concerns about her conduct toward other team members and completing roles she was specifically requested not to.

The FWC noted that as a small business employer, the Employer was required to comply with the Small Business Fair Dismissal Code (the Code). The Code provides that for dismissals other than for serious misconduct, a small business employer must give a warning to the employee that they are at risk of being dismissed.

The FWC found that while the Employer warned the employee for not following processes, it did not warn her that her employment was at risk of termination if she did not improve her conduct. The FWC noted that at most, the Employer advised the employee that if she did not follow instructions, it would lead to performance management and would have serious consequences. For the FWC, this language was not sufficient to comply with the Code.

Accordingly, the FWC was not satisfied that the dismissal was consistent with the Code.

Turning to whether the dismissal was harsh, unjust or unreasonable, the FWC found that there was a valid reason for dismissal and the employee was given an opportunity to respond but that the process followed was deficient. In particular, the FWC had regard to the Employer’s lack of human resources expertise. While the Employer subscribed to a HR software program, the program did not provide tailored human resources or support. The HR software program was used to issue the warning letter and prepare the termination letter but the employee was not put on notice that the meetings were disciplinary in nature. Further, the Employer did not comply with its own Code of Conduct policy or its performance and/or behavioural improvement plan policy.

The FWC found that the employee was unfairly dismissed.

Lessons for employers

HR subscription services and template letters may be useful resources for employers to have in their arsenal, however it is also important that employers have knowledge of procedural and substantive fairness or to seek legal advice in relation to same. In this matter, the employer’s failure to explicitly warn the employee in the warning letter that her employment was at risk was fatal and rendered the subsequent dismissal unfair.

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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