In the case of Howard-Colla v Bloom Bar & Lounge [2020] FWC 6084, an employee was issued with a warning letter via email, for failing to commit and present for work, and follow lawful and reasonable directions around the performance of certain duties.
The employee responded to the email, stating that she felt entitled to receive the full JobKeeper payment and only turn up to work as she saw fit. This suggested there would be no change in her behaviour, and she was dismissed based on the response, rather than the failures outlined in the warning letter.
The employee insisted all communications, including those around the reasons for her dismissal be in writing, via email. Shortly afterwards she was issued with a termination letter via email.
During the hearing of the unfair dismissal application, it became apparent that the employee underestimated the impact that attending work when she saw fit (rather than at a pre-arranged start time) would have on the business.
The FWC noted this could have been explained to the employee had the dismissal decision been communicated face to face. Due to the lack of these discussions, the employee was not provided with an opportunity to address her response and conduct prior to her dismissal, making the dismissal unfair.
Lessons for employers
- Performance management matters are best dealt with face to face and confirmed in writing after the face to face meeting.
- Where an employee refuses to attend a face to face meeting, they should be provided with a well drafted letter outlining all concerns relating to the potential dismissal and an opportunity to respond in writing.
- Employers are not required to offer the opportunity for a support person in disciplinary meetings. The requirement is that they do not deny the opportunity for a support person.
Written by Nes Demir
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