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FWC disapproves of ‘first and final’ warning

AREEA principal consultant Bill FitzGerald reviews a recent decision where an employee who was dismissed for breaching a drug and alcohol policy was awarded significant compensation due to the nature of previous warnings for unsafe behaviour.

Bill FitzGerald
Bill FitzGerald

IN John Ingham v Metro Quarry Group Pty Ltd [2015], FWC 6472, 29/09/2015, FWC Commissioner Michelle Bissett heard how a former employee was dismissed for breaching his employer’s zero tolerance drug and alcohol policy after testing positive to alcohol in a random drug test.

In dismissing the employee, management also considered his prior apathetic attitude to safety including an earlier failure to lock out a defective bagging machine, for which he received a ‘first and final warning’.

Commissioner Bissett quickly dismissed the former employee’s argument that his termination was unjust given his blood alcohol reading was at three decimal places when the company’s policy only extended to two, saying that ‘zero means zero’.

However it was the disciplinary measure for the prior safety breach that Commissioner Bissett took issue with and which would play a significant role in the outcome of this case.

The Commissioner found the earlier breach was subject to contradictory evidence and despite the employee admitting that he had ‘done wrong’, it warranted a warning but not a ‘final’ one. She said it was reasonable to consider the employee’s attitude to safety standards but she found the employer had failed to notify him of these supplementary reasons for the dismissal.

“I would note in passing however that a first and final warning has become the disciplinary tool of choice in many workplaces regardless of the severity of the transgression of the employee,” Commissioner Bissett said.

The Commissioner concluded the dismissal was harsh due to the disproportionate first and final warning. The former employee received $11,507 in compensation after the original amount for 12 weeks’ pay was discounted by 30% in light of his misconduct.

Implications for employers

S 387(e) of the FW Act 2009 requires a warning about unsatisfactory performance in order to avoid the substantiation of a claim for harshness.

This means that if an employer cannot demonstrate the giving of a valid warning it is open for the tribunal to overrule the dismissal based on harshness.

It is common practice for employers to deem any warning, whatever the circumstances, to be a ‘first and final warning’.

Given this decision shows that practice is not defensible, disciplinary policies should be drafted in such a way that the severity of the warning should reflect the conduct or performance shortfall.

Many policies reflect the outmoded ‘three strikes and you are out approach’ which may be prejudicial to the employer but also not reflect the requirements of the Act.

Significant safety breaches may justify a first and final warning but ongoing instances of lateness to attend shifts, for example, may require more than one warning.

It is recommended that policies be non-prescriptive in nature and in the case of conduct or performance issues, stipulate that written warnings will be given (but not the number or the fact that it is a final warning).

In cases of serious and wilful misconduct, termination can occur without a warning but only after a proper investigation and procedurally fair process, and this should also be stated in the policy.

If you need assistance and advice reviewing your disciplinary policies, contact Bill FitzGerald on (03) 6270 2256 or via [email protected]. Alternatively, contact an AREEA consultant near you.

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