Importance of following the Code when terminating employment

The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving an employee who claimed he was unfairly dismissed after missing work after receiving a text message from the employer saying, "Do not come back".

The employee was employed from June 2019 until August 2024. He claimed that the absence which led to his termination was due to a neck injury sustained at work earlier that month. The employee said the injury had occurred because his employer disregarded medical advice about gradually increasing his lifting capacity over 6-8 weeks. He also argued that any prior performance warnings from 2023 had been resolved, and that he wasn't given any new warnings in 2024 before his dismissal.

The employee had significant attendance issues dating back from 2020 with excessive sick leave, days considered as no-shows and 21 instances of late arrivals.  A first written warning was issued in June 2020 saying, “This letter is your first warning notice and it is a follow up to several verbal warning already given to you due to your continual lateness most mornings and not turning up for work at all."

A second written warning issued in February 2023 stated: "This letter is your second warning notice and it is a follow up to several verbal warning already given to you due to your continual lateness and your continuing attendance problems. Your uneven attendance is beginning to affect other parts of your job, making improvement even more essential." The nonattendance and excessive leave continued after this time and was documented. The final incident occurred on 12 August 2024 when the employee was instructed to prepare materials and tools and supervise the work, but he failed to arrive or make contact until 10:33 am.

The employer met the definition of a small business under the Fair Work Act 2009 and the FWC determined that the employer had complied with the Small Business Fair Dismissal Code.

The FWC found that the “[worker’s] non-attendance and lack of communication regarding his absence constituted wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment." It went on to say, "The meaning of 'reasonable grounds' in the Code is that the grounds are 'reasonable' when viewed from the standpoint of what a reasonable person would conclude as grounds which are credible, sensible, logical or plausible."

While both written warnings mentioned the possibility of a final written warning, the employer was not required to issue one when circumstances warranted immediate dismissal.

The FWC said the final incident was more serious than previous absences because the employer had specifically engaged contractors to assist him in his duties. 

As a result, the FWC dismissed the unfair dismissal application, finding the employer had reasonable grounds to believe the worker's conduct justified dismissal given the circumstances of the final absence.

If you are experiencing a similar situation and are unsure how to manage it, please contact HRAnywhere on 1300 208 828 or info@hranywhere.com.au.