When disciplining employees make sure you have all your ducks in a row

A recent decision of the Fair Work Commission (FWC) [1] has once again reminded employers of the importance of ensuring comparative justice in the implementation of disciplinary action.  A lack of consistency in the disciplinary action, particularly where it involves termination of employment, taken between different employees or across different worksites could lead to the disciplinary action  being considered unfair, unjust or unreasonable under the Fair Work Act 2009.

In this case, the FWC found that there was a valid reason for terminating the employment of what was described as an “impatient” veteran crane operator.  However, the FWC went on to find that the lack of consistency across Bluescope sites meant that the termination of the crane operator was unfair. The FWC recommended that a process be adopted to ensure comparative justice across all sites. 

Bluescope objected to the crane operator being reinstated and argued that compensation was an appropriate remedy given the safety breaches which had occurred, as well as the “ungenerous comments” that the operator had made about his employer.  The operator had referred to his employer as “unscrupulous, aggressive and does not follow safety rules”.  This argument was not accepted by the FWC. The Commissioner stated, “If every employee who thought their boss was overpaid, not up to the job or didn’t understand safety was to be dismissed, then from my personal experience, there would be an unlimited number of blue collar workers looking for new employment”.

If disciplinary action is necessary, employers should heed the above FWC warning that the discipline must not only be appropriate in the circumstances of the individual employee, but it must be consistent with other disciplinary outcomes in the business generally.  Ensuring accurate records of past disciplinary action are kept and available for comparison is therefore imperative. Where there is a deviation from the usual penalty, it is important for the business to keep records of why this occurred and why it was fair in that particular case, such as because of past disciplinary action.  Further, it is clearly not safe to assume that an employee will not be reinstated merely because they have been making ungenerous comments about the employer.

Discipline is a necessary component of people management, however, it is fraught with risk for the business, if not implemented appropriately. For assistance with people management issues contact Cheryl-Anne Laird, Partner of our Human Resources Division on +61 3218 3014 or email support@providencehr.com.au.

Please note that this publication is intended to provide a general summary and should not be relied upon as a substitute for personal advice.

[1] Zaki Habak v Bluescope Steel Limited T/A Bluescope Steel Limited Springhill Works [2019] FWC 3332 (June 2019)