Written by Sooraj Sidhu and Lindsay Carroll

A supermarket retailer has successfully defended an unfair dismissal application despite the employee’s explanation that her deteriorating behaviour and performance was due to difficulties she was encountering in her personal life.

In commending the employer for taking “extraordinary lengths” to support the employee, the Fair Work Commission (Commission) found that the dismissal was justified having regard for her lack of punctuality and unauthorised absences.

Background

The Applicant commenced her employment in 2007 and according to the Store Manager, was a reasonably good employee, up until 2014 when she became involved a troublesome relationship. It was at this point that issues began to manifest in the workplace including:

  • a failure to follow cash procedures and basic everyday tasks;
  • a failure to attend work on time and return from breaks in accordance with the roster;
  • a failure to provide notice of her intended absences from work; and
  • a failure to follow company policies and procedures.

In his evidence, the Store Manager disclosed he was vaguely aware that the employee was having some personal issues and for that reason, was lenient and flexible in his disciplinary approach.

On occasions, the employee was allowed to bring their daughter to work and later take her to school during work hours. Despite her frequent absences and tardiness, the employee was always paid in full and provided with numerous opportunities to deliver on her promises of improvement.

However, the issues came to a head earlier this year, after the employee’s underperformance persisted. In a meeting attended by the employee’s union representative, the employer was made explicitly aware of her “toxic and unbearable” relationship and forced to reconsider its course of action.

Ultimately, the employer proceeded with termination of employment, following a period of absence on long service leave.

The Argument

The Applicant lodged an unfair dismissal application on the basis that there was no valid reason for dismissal.

The Applicant had been a good and diligent employee for most of the 11 years she was employed and was significantly impacted by domestic violence, financial difficulties and drug abuse.

In her evidence, the employee claimed that she did not provide a full explanation of her personal circumstances earlier on account of embarrassment and shame.  She was also unaware that termination of employment remained an option following her absence from work on long service leave.

The employer rejected these allegations, noting it had been very sympathetic and supportive of the employee for an extended period of time.

On one occasion, the business had offered and paid for the employee to attend 12 counselling sessions, and on another, granted the employee a loan to assist with her financial difficulties.

In the employer’s view, her protracted history of absences and failure to demonstrate any improvement was a sound, defensible and well-founded reason for dismissal.

Outcome

The Fair Work Commission accepted that the employee’s personal life and challenging circumstances would have impacted her performance and reliability.

As the employer was broadly aware of these personal issues, it was required to assess whether the dismissal was harsh, unjust or unreasonable in light of the employee’s circumstances.

Ultimately, the Commission found that the company had been extremely tolerant of her failure to perform a number of essential requirements of the role.

When staff morale and customer service began to suffer as a result, the employer became frustrated by the employee’s lack of cooperation and took appropriate measures to address the issue.

What does this mean for employers?

From time to time, employers may become aware of employee’s personal affairs and difficult circumstances. Where such circumstances are extenuating and provided as explanation for underperformance, the employer must take this into account and exercise caution in the lead up to dismissal.

In this scenario, the employee was given a significant period of time to deliver on their repeated assurances that they would do better. After failing to achieve any improvement in her behaviour, the company took action to terminate having regard for both the conduct and operational requirements of the business.

If you are encountering difficulties with your staff or require further guidance on how to manage underperformance, call NRA on 1800 RETAIL (738 245) to speak with one of our dedicated workplace advisors.