"Warning, warning" - Taking account of past workplace sins when disciplining employees - [Part 1]

In Brief

A recent dismissal case before Fair Work Australia ("FWA") serves as a useful illustration of the issues facing employers when weighing up an employee's poor disciplinary record and whether a dismissal would be justified.

Warning Confusion

Picture this situation. You have an employee who has committed a breach of discipline in the workplace. For present purposes, we will refer to the employee as "Jim". Let's say that Jim is one hour late for work. You have interviewed him. He was unable to offer a reasonable excuse. You are wondering what to do with him. Jim is not the easiest of employees. He has received a number of warnings previously over conduct and/or performance issues. You are a tad fed up and are considering whether you can terminate Jim's employment. You remember 'someone' telling you once that employers can only take account of "like for like" past disciplinary issues when deciding if a justification exists for a termination of employment. None of Jim's previous warnings have related to lateness for work. Jim is sitting outside your office. You are wondering what to do.

What does the Fair Work Act say?

Confusion over the prior warnings that may be taken into account is not uncommon amongst some employers.

In determining whether a dismissal was harsh, unjust or unreasonable, Fair Work Australia (FWA) is required to take into account a number of factors. If the dismissal related to the unsatisfactory performance of an employee, FWA is required to take into account whether the person had been warned about that unsatisfactory performance before the dismissal.

In a previous edition of Workplace Acumen, we pointed out that the Fair Work Act's unfair dismissal laws do not set out a minimum threshold (e.g. three warnings) before an employer is entitled to dismiss a misbehaving and/or underperforming employee. Depending on the circumstances of a matter there may be no necessity for a warning to have been issued before an employer is entitled to dismiss the employee. Much will depend on the facts and circumstances of the case.

Recent Case

The recent Patrick Stevedores1 case is a useful example of a dismissal involving an employee who had been issued with a number of prior warnings before he was ultimately dismissed.

In this case, the employee was dismissed in November 2011 for a serious safety breach causing a collision between forklifts at the Fishermans Island Brisbane terminal. Prior to that incident, the employee had received a final warning (in April 2011) for another safety breach. Both acts were serious breaches of Patrick's "Cardinal Rules" workplace safety policy.

The employee's prior disciplinary record also included warnings for:

  • Sleeping during a shift sometime during late August 2010
  • Failing to attend work on 23 December 2009
  • Using his Maritime Security Identification Card to admit another employee to the Patrick site on 14 April 2009

FWA took into account that the employee's overall disciplinary record was poor and that he was the subject of a final warning at the time of the most recent breach. Not surprisingly, FWA ruled the employee’s dismissal was justified.

The point to note here is the combination of diverse disciplinary infractions that the employer took account of before deciding to dismiss.

Lessons for Employers

Employers should:

  • Employers are not required to only take into account prior warnings for the same type of performance or conduct issue (ie. "like-for-like" issues)
  • The Patrick Stevedore case is an example of a situation where an employer justifiably took account of a series of prior warnings for a variety of workplace issues (i.e. breaches of workplace procedures, unsatisfactory performance and misconduct)
  • If an employer is in doubt about whether it is able to dismiss an employee based on the employee’s prior disciplinary record, always seek advice

The Author

Brad Petley is the Legal Practice Director of boutique employment law practice Acumen Lawyers.  Brad is a nationally recognised expert about such topics as dismissal of employees and conducting effective HR investigations. 

See Brad speaking live about these topics at the 2012 HR Law Unpacked on 24 August 2012.


Part 2...Coming Soon!

In part 2 of our analysis of the Patrick Stevedores case we will discuss the issue of whether the circumstances behind a prior disciplinary warning (i.e. whether it was justified) can be called into question in a later dismissal case.


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

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