Beverley Thomas, Associate
Yes, you can, provided that you can demonstrate that dismissal was not harsh, unjust or unreasonable. The same may apply to other bad habits of employees that undermine an employer’s professional standards or policies.
Recently the Fair Work Commission (“Commission”) commended auctioneer house, Pickles Auctions (“Pickles”) on their approach toward the dismissal of a car detailer with a bad habit of tardiness. He had previously received numerous verbal and written warnings for poor attendance. The detailer, who had been employed by Pickles for close to seven years, filed an unfair dismissal claim following the termination of his employment because he had slept in and failed to notify that he would be late. His dismissal occurred after he attended work more than an hour past his scheduled start time. When questioned by Pickles in a disciplinary meeting as to why he was late, his response was simply that he thought “the time was earlier than it was”.
Pickles was successful in defending the unfair dismissal claim. This was mainly because it was able to satisfy the Commission that it had given the Applicant an opportunity to explain his late attendance and he failed to do so, in circumstances where he had “a demonstrated inability to improve his attendance conduct…”.The Commission also noted that Pickles’ approach to the procedural aspects of the dismissal “should properly be recognised as commendable”.
Here’s our top takeaways from the example set by Pickles if you are considering the ongoing employment of an employee with a bad habit.
- Keep a paper trail: Formally raising dissatisfaction with an employee’s conduct in writing can assist an employer to establish a valid reason for dismissal. In this case, Pickles was able to do just this as it relied on the six written and numerous verbal warnings given to the employee in respect of his ongoing failure to attend for work at the scheduled time..
- Ring the alarm: Employers mustn’t be shy to raise their concerns about unsatisfactory performance. Not only does it put an employee on notice that their conduct may be putting their employment in jeopardy but it allows them an opportunity to improve and meet the employer’s expectations. Pickles had evidence of raising concerns with the Applicant since 2011 and as recently as in the last 6 months of the employee’s service which minimised his ability to argue that he was not given the opportunity to improve his behaviour.
- Let the employee have their say: A dismissal is less likely to be deemed unfair if the employer can show that they gave the employee a chance to provide an explanation or defence for their unsatisfactory conduct. It is important that this step is not regarded as a “checkbox” to be “ticked off”. Proper consideration must be given to what an employee has to say. Pickles met with the Applicant to do exactly this but instead of immediately terminating his employment it adjourned the meeting to consider the employee’s excuse, his work history and the previous warnings given, before reconvening to terminate his employment.
- Offer a support person: Employees do not have a general entitlement to have a support person present at a disciplinary meeting but the unreasonable refusal of a support person may weigh against an employer in the event an employee requests one. For this reason it is recommended that employers offer an employee the opportunity to bring a support person along to a meeting where dismissal is a possible outcome.
- Know your expertise: The Commission is at liberty to scrutinise an employer’s management resources and whether the lack of HR expertise has impacted on the procedures followed in effecting a dismissal. The Commission was impressed by Pickles’ dedicated in house employment relations specialist in this matter and held them accountable for the proper and just dismissal of the Applicant. Seeking the external counsel of an employment law specialist like PCS can also assist an employer to meet this criteria.