A recent decision of the Fair Work Commission (FWC) makes clear the importance of employers following proper warning procedures before dismissing an employee for poor performance. Michael Kahrilas v Check Point Software (Australia) Pty Limited  concerned a long term employee who was terminated for unsatisfactory performance, involving consistent absenteeism, failure to meet performance standards and overall lack of responsiveness. The employee brought an application to the FWC alleging he had been unfairly dismissed in accordance with section 394 of the Fair Work Act 2009 (Cth). The FWC found that the employers performance expectations were reasonable and that the employee’s conduct was a valid reason for dismissal. However, the FWC upheld the employee’s unfair dismissal claim based on the employers failure to follow proper termination procedures. The FWC found that the employer did not engage in any formal or informal warning process. In this instance, the issues of procedural unfairness outweighed concerns about the employee’s non-performance. The decision is an important reminder to employers about the importance of adhering to formal termination processes even where there are clear grounds for dismissal. For further information or advice about your obligations as an employer, contact Morgan + English.


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