After a series of individual misconduct incidents, the Fair Work Commission (FWC) found that, on a collective basis, an employee can be dismissed if they repeatedly demonstrate a resistance to follow company directions, expectations, and policies.

In determining an unfair dismissal application, the FWC must consider criteria for harshness in s 387 of the Fair Work Act (2009) (Act):

1. whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
2. whether the person was notified of that reason; and
3. whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
4. any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
5. if the dismissal related to unsatisfactory performance by the person–whether the person had been warned about that unsatisfactory performance before the dismissal; and
6. the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
7. the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
8. any other matters that the FWC considers relevant.

The case of Mark Bartlett v Interline Bus Services highlights that repeated performance and conduct issues constitute a valid reason for dismissal and in this case the FWC was satisfied that Interline Bus Services decision to terminate Mr Bartlett was not “harsh, unjust, or unreasonable”.

Between 27 June 2017 and 26 June 2019, Mr Bartlett had around 30 complaints made against his behaviour at work and had received a total of 5 official warnings. On 9 December 2020 Mr Bartlett was terminated for six incidents, including:

1. swearing;
2. non-compliance with company instructions;
3. defacing a company vest;
4. intentionally walking in front of a moving bus;
5. conflict with staff; and
6. smoking in or near a bus.

The FWC agreed with reasons 1-4 for dismissing Mr Bartlett, however noted that although these reasons may not amount to “serious misconduct” or a valid dismissal on their own, it will not detract from it being a valid reason for dismissal as Mr Bartlett repeatedly engaged in misconduct, and continually disregarded expectations. The FWC stated that an employer and its employees do not need to tolerate such behaviour indefinitely, especially when that behaviour makes other employee’s jobs more difficult to perform.

The FWC made further comments which impacted the outcome of the case including:

• Mr Bartlett was given numerous warnings prior to his termination, where he admitted to his misconduct for each occasion;
• His significant length of service did not mitigate due to his record of misconduct; and
• The reasons for dismissal were clearly and expressly communicated to Mr Bartlett.

Most importantly, the Commissioner noted that while the termination process was ‘imperfect’ it was not ‘devoid of fairness.’ Mr Bartlett was aware of the possibility of termination and he was provided with an opportunity to verbally respond to the allegations when they were raised with him in person, in line with the procedural fairness requirements under the Act.

Key Lessons

1. Employers can rely on a history or record of performance issues or misconduct in terminating an employee, provided the ‘triggering’ event can be sufficiently linked to the previous incidents and there is a solid documentary history of the disciplinary actions and performance improvement plans.
2. Where an employee has engaged in misconduct, it is important to consider if it is “serious misconduct” and if it would warrant summary dismissal, as not all misconduct is serious enough to be justify an instant dismissal.
3. Even if you clearly have a valid reason for termination, you must ensure a procedurally fair process otherwise this can render the dismissal unfair.
4. For performance issues, you must remember to performance manage the employee such as by issuing warnings and/or performance improvement plans to ensure that the employee has been given an opportunity to fix any performance issues.
5. Always provide employees the opportunity to respond verbally or in writing before deciding to terminate.

Written by Nina Hoang and Jewlia Holt

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Our team are here to provide the right advice for your business and workforce. If you have a question or require assistance, please contact Andrew Douglas.