FWC provides lessons for employers in reinstatement case

The Fair Work Commission has handed down a decision that serves as a reminder to employer’s about some key issues that must be considered when summarily dismissing an employee.

In this case, Senior Deputy President O’Callaghan found that a cleaner had engaged in a ‘campaign of disobedience’ when he refused to wear the designated uniform despite a number of formal warnings from his employer.  His Honour found that the requirement to wear the uniform was a reasonable instruction, and that the employer had made it absolutely clear to the employee that continued non-compliance with the instruction would result in termination.

This ‘campaign of disobedience’ was found to be a valid reason for the employee’s dismissal.  However, His Honour found that the employer had “undermined the integrity of that final warning by simply providing a verbal instruction” when the employee failed to comply with the uniform requirement not long after the final warning had been provided.

SDP O’Callaghan also criticised the employer’s decision not to dismiss the employee until some 14 days after the day when he was found not to have worn his uniform.

His Honour said that whilst the instruction to wear the uniform was reasonable, given the employer undermined the final warning by providing a verbal instruction following the final warning, the decision to summarily dismiss the employee was inconsistent with the extent of his behaviour, particularly where the employer allowed the cleaner to continue to work in the 14 day period between his non-compliance and his termination date.

SDP O’Callaghan determined that the dismissal was harsh, as it was disproportionate to the misconduct.  He ordered the employer to reinstate the cleaner, but declined to award any compensation to the cleaner as a result of his misconduct.

Lessons for Employers

This case emphasises a couple of key points for employers:

• The nature of serious misconduct is that the conduct must be so serious that you cannot allow the employee to remain employed any longer – you must act swiftly in such circumstances; and
• Where final warnings are delivered to an employee, then those final warnings should be acted upon decisively and in accordance with the warning.