An employee who had worked as a technician for 6 years submitted a claim for unfair dismissal which has been rejected.

After several complaints received about the technician’s work, abrasive manner, attendance, sleeping in his office, keeping an untidy office (likened to that of a boy’s bedroom), playing games on his phone whilst at work, insulting Indian employees of the company regarding their English speaking ability, and not completing some maintenance tasks including cleaning and compliance, the company’s HR department implemented the following: -

• Investigated several complaints and issued a first written warning
• Implemented a Performance Improvement Plan (PIP) that identified 3 areas for improvement; 1. Attitude and professional behaviour, 2. Productivity, and 3. Focus on job-related activities.  Some measures included zero complaints regarding attitude and/or use of phone for personal matters, meeting work deadlines and 100% attendance when required to be at work.  Dates for reviews were set and undertaken which included several discussions with some of the improvement needs being met whilst others were not. The PIP was in existence with reviews for more than 1 year.
• The employee received a final written warning when approximately 1 month later, a complaint was received about the state of the employee’s office.
• Then dismissal occurred when it was found that the employee sought approval (but did not receive approval) to remove underfloor cables and equipment from a client’s premise without permission.  The matter was investigated, the employee was provided with an opportunity to respond and their response was given consideration prior to dismissal occurring.

Whilst the employee claimed that the sleeping was due to a disorder that required surgery to overcome it, and that he was required to work approximately one 18-hour day per week without break, he claimed that there was a lot of time he had free which enabled him to sleep or play games on his phone.  The FWC noted that one of the improvement areas included the failure to complete reports and deal with safety related matters which should have been completed during this free time.

The employee claimed that the final incident which resulted in his dismissal was a mistake.

In making the decision the FWC determined that the employee failed to care about the state of his office or the obligations to customers. The PIP was not harsh, and the employee was provided with more than 12 months to make improvements in their performance. In addition to this, the processes used by the employer were fair as the employee was provided with opportunities to respond and was advised of the reasons for termination.

Overall, the FWC deemed the treatment of this employee to be fair and reasonable in all aspects.

For assistance with managing the performance of your employees, please contact us at [email protected] or 1300 720 004.

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