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 a former senior SmartCompany journalist.