Employers must be careful when seeking to rely on prior written warnings issued to an employee to justify a subsequent decision to dismiss, as a recent decision of the Fair Work Commission demonstrates.
The decision of Peco Sirijovski v BlueScope Steel (AIS) Pty Ltd (2013) (BlueScope), concerned an unfair dismissal application made Mr Sirijovski, a Bluescope employee of 35 years, who was dismissed for “operational negligence” arising from an incident in May 2013 in which he failed to respond to a scrap metal jam on a conveyor belt which he was monitoring.
Prior to the May 2013 incident, Mr Sirijovski had received a written warning for entering a safety exclusion zone around a rail line whilst a shunt was in process, a breach of a Company Safety Critical procedure. This warning was issued in December 2013 and drafted very broadly. The warning purported to apply to a range of future conduct, namely “…breach of critical operating procedures, operational negligence, wilful misconduct, or behaviour of a similar kind ...”
The evidence about the investigation of the May 2013 incident and termination of Mr Sirijovski’s employment revealed that:
- Mr Sirijovski’s conduct was not viewed as sufficiently serious to justify the termination of his employment, were it not for the previous warning;
- The Bluescope employee who made the decision to terminate Sirijovski’s employment had formed a view that Mr Sirijovski had deliberately ignored the scrap metal jam. This allegation was never put to Mr Sirijovski; and
- The letter of termination did not describe Mr Sirijovski’s conduct as a breach of BlueScope’s safety policies and procedures.
Despite finding that Mr Sirijovski’s conduct in May 2013 constituted a valid reason for his termination, the Commission ruled that Mr Sirijovski’s dismissal was harsh, unjust and unreasonable. The basis for this decision was the conclusion that Mr Sirijovski had been dismissed on performance grounds and the final written warning issued in December 2012 did not constitute a prior warning about performance issues, despite its reference to “operational negligence”.
The Commission noted as follows:
“It is not fair or practical to give someone a warning, or put them on notice in relation to aspects of their future performance, if they have not contravened any of those aspects in the past. It is as if they are being warned for a breach that they have not committed. Any warning must be appropriately and deliberately particularised. The final warning should have applied to the issue of Occupational Health and Safety and Critical Safety Procedures only.”
The Commission also found that Mr Sirijovski had not been provided an opportunity to respond to the allegation that he had deliberately ignored the scrap metal jam, which was clearly a significant consideration in the decision to dismiss him.
Lessons for employers
The BlueScope decision highlights the importance of precision in drafting written warnings and termination notices. Employers should ensure:
- Any written warning issued to an employee should be confined to the nature of the alleged unsatisfactory workplace performance or conduct;
- All allegations of unsatisfactory workplace performance or conduct are put to an employee in detail and the employee is provided with an opportunity to respond before a decision is made about appropriate disciplinary action; and
- Letters of termination should be precise as to grounds for termination.