By Mike Toten Freelance Writer

A hotel employee was awarded compensation of almost $9,000 after the Fair Work Commission (FWC) ruled that his employer had dismissed him without following correct procedures. The employer had called him into a meeting and insisted that he resign. The employee then claimed that he was forced to resign.

FACTS OF CASE

The employee had requested a pay rise for himself and other managers, and was told it would be considered two weeks later when a manager returned to work. When the manager returned, he told the employee to attend a meeting, adding that failure to do so could result in dismissal.

At the meeting (which the employee recorded), the manager began by telling the employee his job performance was unsatisfactory, and recommending that he resign. He said that the employee would receive two weeks’ pay (one more than required to provide) and would have to sign a deed of release – if he did not, he would not receive a reference.

 

The manager gave the following reasons:

  • An attendance report claimed that the employee had either started late, left early or not turned up for almost every shift over the past year.
  • He did not wear the hotel’s required uniform.
  • He had ignored previous requests to improve his performance/conduct.

 

The employer claimed that he was not dismissed, but resigned voluntarily.

The employee counterclaimed as follows:

  • He had never received any previous copies of an attendance report.
  • He had only been counselled about punctuality once, about a year earlier.
  • He had been told to clock off when he finished his closing work duties and other employees had finished theirs, not when his shift was rostered to finish. He always checked with an overlapping manager whether it was OK to leave.
  • The hotel had only provided him with a work shirt, which he did wear. He had never received feedback from management about what he wore.

 

DECISION

The FWC found that the employee was unfairly dismissed, for the following reasons:

  • His alleged misconduct was not serious enough to justify dismissal without prior warning.
  • The employer had not followed correct procedures. He had not received any prior warnings, was not notified of the reasons for dismissal and not given any opportunity to respond to them.

The FWC estimated that his employment may have continued for about a further four months if proper procedures had been followed, and awarded compensation of $8,985.

 

WHAT THIS MEANS FOR EMPLOYERS

If you consider an employee’s performance is unsatisfactory (eg absence/attendance issues), you need to be proactive.

  • Follow a process that includes warning and counselling the employee that dismissal may occur if there is no improvement.
  • Set out required performance standards and consider setting a time frame for review.
  • Allow the employee an opportunity to respond to any allegations of poor performance or conduct.
  • Do not make a decision to dismiss him/her until after you have followed the above steps.

In this case, the employer let the problems continue without doing much about it, then took the employee by surprise, resulting in the dismissal being unfair.

 

READ THE JUDGMENT

Elliott, Darcy v Five Islands Trading Pty Ltd T/A Five Islands Hotel - [2024] FWC 1417 | Fair Work Commission