Most Read Contributor in Australia, September 2016
Employers must be careful when seeking to rely on prior written
warnings issued to an employee to justify a subsequent decision to
dismiss, as a recent decision of the Fair Work Commission
The decision of Peco Sirijovski v BlueScope Steel (AIS) Pty
Ltd (2013) (BlueScope), concerned an
unfair dismissal application made Mr Sirijovski, a Bluescope
employee of 35 years, who was dismissed for "operational
negligence" arising from an incident in May 2013 in which he
failed to respond to a scrap metal jam on a conveyor belt which he
Prior to the May 2013 incident, Mr Sirijovski had received a
written warning for entering a safety exclusion zone around a rail
line whilst a shunt was in process, a breach of a Company Safety
Critical procedure. This warning was issued in December 2013 and
drafted very broadly. The warning purported to apply to a range of
future conduct, namely "...breach of critical operating
procedures, operational negligence, wilful misconduct, or behaviour
of a similar kind ..."
The evidence about the investigation of the May 2013 incident
and termination of Mr Sirijovski's employment revealed
Mr Sirijovski's conduct was not viewed as sufficiently
serious to justify the termination of his employment, were it not
for the previous warning;
The Bluescope employee who made the decision to terminate
Sirijovski's employment had formed a view that Mr Sirijovski
had deliberately ignored the scrap metal jam. This
allegation was never put to Mr Sirijovski; and
The letter of termination did not describe Mr Sirijovski's
conduct as a breach of BlueScope's safety policies and
Despite finding that Mr Sirijovski's conduct in May 2013
constituted a valid reason for his termination, the Commission
ruled that Mr Sirijovski's dismissal was harsh, unjust and
unreasonable. The basis for this decision was the conclusion that
Mr Sirijovski had been dismissed on performance grounds and the
final written warning issued in December 2012 did not constitute a
prior warning about performance issues, despite its reference to
The Commission noted as follows:
"It is not fair or practical to give someone a warning,
or put them on notice in relation to aspects of their future
performance, if they have not contravened any of those aspects in
the past. It is as if they are being warned for a breach that they
have not committed. Any warning must be appropriately and
deliberately particularised. The final warning should have applied
to the issue of Occupational Health and Safety and Critical Safety
The Commission also found that Mr Sirijovski had not been
provided an opportunity to respond to the allegation that he had
deliberately ignored the scrap metal jam, which was clearly a
significant consideration in the decision to dismiss him.
Lessons for employers
The BlueScope decision highlights the importance of
precision in drafting written warnings and termination notices.
Employers should ensure:
Any written warning issued to an employee should be confined to
the nature of the alleged unsatisfactory workplace performance or
All allegations of unsatisfactory workplace performance or
conduct are put to an employee in detail and the employee is
provided with an opportunity to respond before a decision is made
about appropriate disciplinary action; and
Letters of termination should be precise as to grounds for
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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