By Mike Toten Freelance Writer

After a customer revoked an employee’s access to its work site, the employer dismissed the employee for “misconduct”. But no misconduct was involved – although there were issues around quality of job performance and attendance. The Fair

Work Commission (FWC) ruled that dismissing the employee was unfair, partly because the reason was wrongly “upgraded” to misconduct, but also because the performance issues were not raised with the employee before dismissing him.

 

Facts of case

The employee, a driller, had recently taken sick leave and bereavement leave. While he was on leave, a client of the employer revoked his access to its (the client’s) work site, allegedly claiming that the employee was unreliable and his job performance was unsatisfactory. His employer claimed that loss of site access meant that he was unable to comply with the terms of his employment contract. The employer also claimed that it had identified problems with attendance and job performance about four months earlier. It produced statistics that indicated that his productivity was inferior by about 25-35% to similar other employees. 

The employment contract specifically stated that maintaining access to clients’ work sites was a condition of employment. But it did not state the grounds on which a client could cancel access.

The employee claimed that the employer had not attempted to find other sites he could work at after access to one site was revoked (the FWC concluded otherwise). He also claimed that job performance issues were never previously raised with him, nor was he ever warned about them. 

The employer took no action until the client revoked site access and complained about the employee. Then it started preparing a performance improvement plan, but dismissed the employee before implementing it. The employee’s enterprise agreement provided for performance reviews every six months, but there was no evidence that they were conducted. 

The contract between the employer and its client allowed the client to revoke access by employees to its site if it had performance concerns, but the employee was not made aware of that provision. 

The employer claimed it had checked whether alternative jobs were available at other work sites, but claimed that there were none. The employer was a large business, operating at 43 work sites in 14 countries. There were no vacancies at the two nearest other sites.

It dismissed the employee, initially citing misconduct as the reason, but later claiming “serious misconduct”.

 

Decision

The FWC found that the employee was dismissed unfairly. While loss of site access, attendance issues and inferior job performance were valid reasons based on the employee’s capacity, there was nothing that justified giving the reason of “serious misconduct”, as there was nothing serious or wilful about it.

Had the employer raised the performance concerns with the employee earlier, it could have performance-managed him as set out in its employment policies and enterprise agreement, and possibly avoided the client’s cancellation of site access four months later. The FWC concluded that the employee was not made aware of any concerns the employer had about his performance and attendance until after his access to the client’s site was revoked.

The FWC awarded compensation of $18,192 plus superannuation.

 

What this means for employers

This case is another example of an employer having a valid reason for dismissal, but being caught out because it did not follow an appropriate procedure leading up to dismissal. The process it should have followed was set out in its employment policies, enterprise agreement, and the employment contract.

The employer should have raised its concerns about the employee’s performance with him as soon as it became aware of the problems. Instead, it “sat on” them until a client complained and withdrew site access, meaning the employee could not perform the work.

 

Read the judgment

Ricki Quayle v Redpath Contract Services Pty Ltd - [2025] FWC 702 | Fair Work Commission