We often hear from clients about their concerns as to how to properly approach dismissals. One of our key areas of advice is the importance of documentation.
In this article we examine the approach of the Fair Work Commission to this area, by looking at an example of an unfair dismissal claim that was upheld on the basis of the employer’s failure to properly document prior performance issues.
This case serves as a reminder to all businesses that termination of employees is fraught with danger if proper documentation practices have not been followed.
The case related to the termination of an employee at a childcare centre (Ms Read), who was dismissed after leaving a child unattended to answer the phone. Her employer claimed that the failure to properly attend the child was in breach of their workplace code of conduct, and therefore gave them the right to terminate.
Ms Read launched an unfair dismissal claim with the Fair Work Commission. The commission initially found for the employer, but upon an appeal by the employee, the decision was reversed – resulting in a ruling against the employer on the basis of unfair dismissal.
A key part of the appeal involved the business attempting to show it had previously disciplined Ms Read. But the ruling pointed out these issues were “not supported by any evidence”, and related to problems that occurred well before the specified incident.
The judgment further stated that “It was not made clear to her that her employment was at risk unless the performance issues identified were addressed”.
If the business had been able to demonstrate evidence of those other disciplinary situations, the employer may have instead been successful.
This case highlights the importance of employers documenting communication with employees. This may include disciplinary action, an event, promise or unresolved issue.
Original decision: Mary Read v Gordon Square Child Care Centre Inc T/A Gordon Square Early Learning Centre [2012] FWA 7680.
Appeal: Mary Read v Gordon Square Child Care Centre Inc T/A Gordon Square Early Learning Centre [2013] FWCFB 762.
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