In a recent unfair dismissal decision the Fair Work Commission (FWC) highlighted the importance of knowing the difference between misconduct and poor performance. Steven Zirilli v StarTrack Express Pty Limited 2019 involved a Bulk Fleet Supervisor who was dismissed for misconduct by his employer. The employee had repeatedly failed to properly review run sheets, which the FWC found was a valid reason for termination. However, the FWC determined that the dismissal was wrongly classed as a matter of misconduct rather than poor performance and it was harsh and unreasonable. Relevant factors considered included the lack of appropriate training, policies and procedures, which had been requested by the employee. In addition, the employee had informed the employer that he was “ready and willing” to undertake further training to address performance problems. There was no warning provided and therefore no opportunity for the employee to improve.

This decision clearly illustrates the need for employers to distinguish between poor performance, where an employee fails to meet job expectations and misconduct, characterised by behaviour deemed unacceptable such as discrimination, theft or fraud. If an employee is underperforming, employers should first engage in a discussion about their expectations and give the person a chance to improve. Contact M+E for further information about the laws of dismissal.


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