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Employer fires worker over ‘continuous misconduct’ at work

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Worker’s unfair dismissal claim rejected by fair work commission

The Fair Work Commission (FWC) recently concluded a case involving the unfair dismissal of a worker who allegedly caused damage to the company’s reputation due to persistent misconduct.

The worker, in defense, argued that the grounds for his dismissal were unsupported and that he was not given a chance to defend himself throughout his employment. At the time of his termination, the worker held the position of foreman in a professional painting services company. Initially, the relationship between the worker and the employer was satisfactory, but concerns arose years after the worker’s employment began in 2014.

According to the employer, around October 2021, the worker ceased attending the office and failed to maintain communication with them. The employer also noticed a decline in the worker’s performance and behavior during this time.

Co-workers reported instances of the worker sleeping in his car and leaving the job site without his phone, which led the employer to perceive him as highly unreliable. Consequently, the employer sent the worker a letter expressing concerns about his attendance, performance, work quality, communication with colleagues, and the company’s reputation.

Although the worker’s performance and communication briefly improved after receiving the letter, the improvement was short-lived. Following several subsequent incidents, the employer ultimately dismissed the worker on November 30, 2022.

The FWC stated, “The employer believed that the worker’s failure to attend work, deceptive behavior regarding his hours, and derogatory remarks had the potential to and did negatively impact the employer’s reputation, visibility, and profitability. These actions constituted a breach of the worker’s contractual obligations and constituted persistent misconduct, considering the prior warnings and letters of concern issued.”

On the other hand, the worker argued that the employer never presented factual evidence to support the claims against him. He further claimed that the reasons provided for his dismissal during workplace performance meetings in late 2022 were suddenly changed, depriving him of an opportunity to defend himself.

Ultimately, the Commission determined that the worker’s dismissal complied with the relevant codes and regulations. Consequently, the worker’s unfair dismissal claim was rejected. The Commission found the employer’s submissions and reasons for the dismissal compelling, as there was sufficient evidence of persistent misconduct on the part of the worker.

Contrary to the worker’s assertions, the Commission noted that the worker had been periodically warned about his conduct and had been given multiple opportunities to improve his performance.


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