The facts  

In August 2019 the employee worked her first shift as an educator, and on 30 September 2019 she signed a contract confirming the part time basis engagement.    

On 9 October 2020, the employee was provided with four weeks’ notice of dismissal. The dismissal was described as a “notice of non-renewal” which was sent by email. The notice described the reasons for dismissal including unsatisfactory performance.   

The employee worked her notice period and then made an unfair dismissal claim. In doing so, the employee contended performance issues had never been discussed or raised, and as a consequence, the dismissal was unfair and unexpected.    

At the time of the hearing the business disclosed a number of documents which indicated there were ongoing performance issues, and that the employee was aware of the concerns. The business admitted they could have improved their performance management process, however maintained the dismissal was fair.   

The Decision  

As the business and the employee both provided evidence which contradicted the other, the Commission assessed its credibility. Noting many inconsistencies, the Commission considered the business “created, or at the very least modified [the documents], after the event for the purposes of these proceedings.” 

On that basis, the Commission was not satisfied the alleged performance concerns had been raised with the employee throughout the duration of her employment.   

The Commission concluded there was no valid reason for dismissal; the employee was not notified of the reason; the employee was not given any warnings; and the employee was not given an opportunity to respond.    

The Commission did not review the employee’s contract in any detail but did remark, “It is evident that [the business] mistakenly considered that [the employee’s] dismissal was termination of a fixed contract. It is also clear that the employment contract was not a fixed contract, and even if it was agreed for 12 months as initially contended…. the dismissal was after the anniversary of the contract.”  

Learnings for Business   

Procedural fairness and the opportunity for an employee to respond to an issue or claim brought against them is a crucial step businesses must take when dealing with underperformance and termination matters. This case highlights the importance of issuing staff members with prior warnings when underperformance concerns arise and ensuring thorough documentation of such conversations.   

How we can help:  

It is important for businesses to follow a fair process when managing underperformance and termination. Had the business called the Victorian Chamber’s Workplace Relations Advice line,  it would have been advised to engage in a formal performance management process, to allow procedural fairness.  

The Workplace Relations Advice Line offers general advice on a range of workplace issues, including:   

• Award interpretation, classification and minimum entitlements  
• Disciplinary processes, performance management and termination  
• Personal illness and injury  
• Parental leave and flexible working arrangements 
• Redundancy
• Occupational Health and Safety and WorkCover.  

For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on 8662 5222  

[2021] FWC 1927