‘Last straw’ sacking as unfair dismissal

A chef with an events management company was fired after a long period of being a bad employee. An allegation of theft (not clear whether that was substantiated), repeatedly smoking on company premises (against the rules), not following directions and leaving early.

After being fired by Republic Events Australia, Mr Zsembery brought an unfair dismissal claim. He won.

“The issue, however, in relation to the Small Business Fair Dismissal Code is that where someone is terminated by a small business it should not come out of the blue. It must be preceded by written or verbal warnings and a clear indication that the employee risks being dismissed if there is no improvement. The matters that were relied upon for termination do not involve a single aspect or unsatisfactory performance. They deal with a variety of different matters. They were subject to discussions and counselling at various times, but it cannot be said, on the evidence before me, that Republic Events warned Mr Zsembery that his performance needed to improve, and that he risked being dismissed if there was no improvement.” (emphasis added)

While there was a valid reason for the dismissal, the process was not fair.

The Fair Work Commission’s decision means each kind of problem with capacity or conduct needs to be raised with the employee, along with a direction or opportunity to improve and an explanation of the consequences (you might get fired).

The employer didn’t deal with the mess of poor performance on an item by item basis and instead seemed to get sick of his general bad behaviour.

“The termination was decided upon because that event was something of a last straw arising from a deteriorating work ethic by Mr Zsembery. However, the evidence does not establish that an appropriate warning about the deterioration of work ethic was given, and that a proper opportunity was given to him to address the matters of concern, rectify the problems, and understand the requirements of the employer.”

The chef was awarded $4,788 (before tax), representing four weeks’ pay – a good estimate of how long the chef would have remained before quitting – or being fired, properly.

Further reading: Eric Zsembery v Republic Events Australia

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