When Hate Becomes Haste – HR Lacking Objectivity and Jumping to Conclusions: Unfair Dismissal

Kate Ausden Blog

The employer, Colliers International (SA) Pty Limited (“Colliers”), is not an insubstantial company.

It has an internal Human Resources Department and a large organisational structure comprising layers of management, reporting lines and managerial oversight.

It is hardly surprising that, in this case, the non-performing employee was subjected to a rigorous performance management process. In performance managing the employee in question, the employer had taken the following steps:

• at least two informal counselling sessions;
• at least three performance management meetings; and
• at least two written warnings.

In the midst of the thorough performance management process, the employee, not unpredictably, made a bullying complaint, which was dismissed and a mediation was suggested as an alternative.

After receiving “the second and final warning” and before the next scheduled performance management meeting (“the Next Performance Management Meeting”), there was a fire at a premises managed/overseen by the employee (“the Fire Incident”).

The employer suggests that the employee knew about the Fire Incident at a certain time and failed to escalate this matter to his managers and other stakeholders. The employee suggests he did not know about the Fire Incident at a certain time and, interestingly, the emails produced by the employer seem to support the employee’s version of events.

The employer acted in haste. The employer scheduled a meeting to discuss the Fire Incident (“the Fire Incident Meeting”). In relation to the Fire Incident Meeting:

• the employer failed to provide proper notice of the Fire Incident Meeting (in effect, only one hour’s notice);

• the notice provided that the outcome of the meeting would be “a written warning or further training…[or] no further action…”,it said nothing about termination;

• the employee elected not to attend the Fire Incident Meeting (preferring to attend the Next Performance Management Meeting instead given it was in less than a week) because he felt ambushed, had no notice and his support person, his father, wasn’t available at short notice.

When the employee failed to attend the Fire Incident Meeting a decision was made to terminate his employment immediately for reasons including, failing to attend the Fire Incident Meeting and failing to escalate the Fire Incident. The FWC held that information in relation to the Fire Incident was “withheld from [the employee] him with the effect of ambushing him” and his refusal to attend the Fire Incident Meeting “was not unreasonable”.

As:

• there was no valid reason for dismissal;
• the employee was not provided with a valid opportunity to respond to the Fire Incident;
• the employee was not on notice that he could be dismissed for not attending the Fire Incident Meeting; and
• the employee was not able to have a support person present in the time-frame provided,

the employee’s termination was harsh, unjust and unreasonable.

In dismissing the employee in such haste, the employer “lacked objectivity.” The FWC commented that “the performance management system… sent mixed messages” and that it was “infected… by mutual dislike”. The FWC commented that the events “provide a sobering reminder whey human resources departments need to maintain appropriate detachment from operational staff and not jump to conclusions”.

As an aside, the FWC also made the following comments about support persons:

“Generally speaking, a support person is not an advocate. Support however takes a variety of forms and may include a support person needing to speak to the employee they are supporting or, in the appropriate circumstances, to the employer – for example to seek clarification or request a pause to a meeting.”

Andrew McCouaig v Colliers International (SA) Pty Limited T/A Colliers International [2019] FWC 1517 (8 March 2019)