Unhappy workers can't be sacked: FWA


Trucking companies stuck with workers with a poor attitude should think twice about sacking them

By Brad Gardner | September 3, 2010

Trucking companies contemplating sacking workers with a poor attitude are in for a rude shock following a Fair Work Australia decision.

Ruling on an unfair dismissal hearing involving courier company Allied Express, Commissioner Ian Cambridge says sacking someone based on their attitude or enthusiasm for work is unacceptable.

Former Allied Express employee Carolyn Bolger hauled the company before the industrial umpire after being axed for poor work performance and attitude issues.

"I am not prepared to accept that a loss of enthusiasm for work could translate into a valid reason for dismissal in the absence of some other established manifestation of performance or conduct connected to the loss of enthusiasm," Cambridge says.

"Put simply, being unhappy at work cannot of itself represent a valid basis of dismissal. Consequently I reject that aspect of the reasons for the applicant’s dismissal relating to poor attitude as providing a valid basis for dismissal."

Despite Cambridge saying Allied had a valid reason to dismiss Bolger due to repeated warnings it gave her about her work performance, the company was ordered to compensate her $3000 because it failed to follow correct procedures.

The former site supervisor and driver trainer was not given a documented reason for her dismissal or offered a support person during her meeting with management. Furthermore, Cambridge ruled that Bolger was not given a chance to respond to concerns raised by Allied Express.

"The applicant had been given clear directives and appropriate opportunity to meet the reasonable standards required by the employer and had been unable or unwilling to achieve a satisfactory level of work performance," Cambridge says.

"I have given careful consideration to all of the relevant circumstances of this case and although there was a valid reason for the dismissal of the applicant, the final determination and implementation of the decision to dismiss must, on balance, render the dismissal to be harsh and unreasonable."

Cambridge says Bolger "experienced difficulties" with Allied clients towards the end of her 14 years with the company after a "broadly unblemished" record during the first 10 years of employment.

"Unfortunately from about 2006 problems developed with the applicant’s relationships with several of the employer’s clients," Cambridge says.

Companies risk being found guilty of unfair dismissal unless they meet conditions outlined in the Fair Work Act.

This includes notifying the person of the reason for dismissal, giving them an opportunity to respond to allegations and issuing warnings about work performance prior to termination.


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