industrial relations, Legal

Plumbing business ordered to pay worker $5000 after firing her for being late and taking too many smoke breaks

Emma Koehn /

A South Australian plumbing business has been ordered to pay a former employee $5000 after the Fair Work Commission found it acted harshly when it fired her, despite previously issuing the worker with verbal warnings for being late to work and taking too many smoke breaks.

The worker brought an unfair dismissal case against Fawcett Plumbing after being verbally dismissed with two weeks’ notice in January 2017. She was employed as an office manager at the time, and the Commission heard she had been spoken to in the past about taking too many breaks from work to have a smoke, and for being between five and 25 minutes late a handful of times a month.

The employee contended she had never been formally counselled about her performance at work, although said she was once asked to write herself a warning for being late, which she did not do.

On the same day she was requested to write that warning, the former employee says the company’s business development manager approached her and said he could not believe he was being made to “do this”, but he had to inform her that her role was being terminated with two weeks’ notice.

Fawcett Plumbing’s director was in Thailand at the time, and when the staff member called him to ask what was happening, she said she was told she was being terminated because she was not suitable for the position. When she received a final payslip at the end of that week and called again to ask the director for information, she says it was indicated that the company believed she was not able to perform the role.

In giving evidence to the Commission, the employer accepted other staff members had been given written warnings during the period of the worker’s employment, but the dismissed employee was never warned her actions could result in disciplinary action before being fired.

However, the company director contended the employee had attitude issues, which he had to counsel her about at least twice a week.

In deciding the case, Fair Work Commissioner Christopher Platt heard evidence that the threat of dismissal was used as a “motivational tool” for staff in the business, and the frequent use of the threat of dismissal may have reduced this employee’s perception that her employer had genuine concerns about her performance.

He also found that while the business had concerns about the worker’s performance, because no formal warnings had been made against her, the final verbal dismissal was unfair.

The decision also included the observation that while the employer was concerned about the employee’s smoke breaks, there was “no detail provided as to how the time spent smoking outside the office adversely impacted the business”.

Fawcett Plumbing has been ordered to pay $4943 to represent what the employee would have been paid for three additional months at the company.

SmartCompany contacted Fawcett Plumbing but did not receive a response prior to publication.

Make dismissals in writing, but be careful on detail

Edmund Burke, a senior associate at law firm Holding Redlich, says SMEs need to remember that even when verbal warnings are issued to staff, proper process needs to be followed.

“We see it quite often when an employer has a feeling they genuinely need to dismiss someone but don’t follow process,” he says.

“When you’re giving written warnings it’s important to give reasons, but even if you’re giving verbal warnings, it is important to have a support person present.”

While some businesses might feel as though they are getting warnings across to employees through their words alone, it’s important to keep in mind that some staff may see constant criticism as part of the workplace culture, rather than warnings directed solely at their own performance.

Your conduct is important, because if you’re consistently criticising an employee, they can believe that’s just how you interact with them. This is why the written warning is so important,” Burke says. 

Providing a letter confirming the termination of employment at the time it is communicated to the employee is also very important, Burke says, but it should clearly match up to previous communications with the staff member about their performance.

We do see employers putting reasons for the dismissal in the letter, which can end up costing them down the line. It’s impotant that the letter of dismissal makes the reasons really clear,” Burke says.  

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Emma Koehn

Emma Koehn is SmartCompany's senior journalist.

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  • Justin Tyme

    Again and yet again, FWO demonstrate their total absence of understanding the reality of private employment. Not every employer has the luxury offered by Government departments. Employment between working hours does NOT mean approximately: it means being ready to start at the agreed time, and being allowed to cease work and collect your goods at the finish time. It does not mean you can take a 5 minute break whenever you feel like a cigarette. This is Union nonsense and another reason why Australian productivity is abysmal

    • Jan Deane

      I would imagine that few of the FWC officers have had to run their own businesses with all of the inherent risks that this entails. As long time inhabitants of the parallel universe known as the public service, these people would have no inkling of the real world of business.

    • I did not see in the report any mentions of a union, let alone its nonsense. Who invented this bogey?

  • helma Parkin

    How pathetic as to why do they have to continually have a smoke????by the look of it she didn’t really want the job as that is what you are pay for not to smoke but did she take it knowing she would get easy money.

  • Michael Ratner

    I pass no judgement on the decision but I do pass comment on the process.
    Too many inferences where the parties are supposed to guess the others intentions.
    Shudda, Cudda, Wudda ….. losing site of the main premise of a business owner should always have the right to terminate someone’s employment with the boldest assumption that termination arises for various reasons and one of them is lack of communication or team spirit.
    Business owners actually have businesses to run – hell that’s a surprise and shouldn’t have to do a degree in psychology. Isn’t the secret Harmony in the Workplace. Can’t we agree that The Business Owner should be the judge of that harmony. .

  • CHRIS BYLHOUWER

    Reminds me of when I sacked my casual office worker for the same reasons plus more. She complained and it went to court, I had to pay her. She was at the time, my sister-in-law. She justified it by saying “I’m suing the company not you” I had to explain I am the company. Lessons to learn:- a) Keep records b) Don’t hire family in-laws
    , especially dumb ones.

  • fred munter

    This sort of rubbish is why Australia is an uncompetitive country. No one is allowed to have balls any more.