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Employee Rights

The employer, in the emergency services sector, alleged a warning was warranted for the following behaviour by an employee:

  • removing a splinter in a way contrary to standard practice
  • acting disrespectfully to another employee
  • slamming a refrigerator door and walking out of a room
  • remaining at work while unwell
  • climbing on top of a fire truck
  • acting inappropriately during a team debrief
  • incorrect response to a question on eye treatment in a training session
  • removing a statistic from the website without prior authority


The Fair Work Commission held that:

  • given the person was a long standing employee with an otherwise unblemished record, the nature of the above incidents appeared to be trivial and some completely unsubstantiated
  • a concerted attempt was made to target the employee which caused her stress and anxiety
  • it was appropriate to question managerial prerogative
  • the written warning was withdrawn
  • mention of the written warning was to be removed from the employee’s personnel file

Tips for Employers

The decision highlights the need for employers to:

  • ensure any formal disciplinary action taken against an employee for conduct and/or performance is sufficiently substantiated, fair, and in accordance with proper procedures and consistent with workplace law
  • ensure that employees are aware of relevant policies and procedures, particularly those relating to any new or revised policies and procedures and include reference to the requirement to comply with policies and procedures in employment contracts
  • regularly review and update policies as your practices may change over time as can case law, legislation and what is considered to be ‘best practice’ in workplace law
  • consider alternatives to a warning such as education, training and counseling and if appropriate, take employment  law advice from a workplace lawyer
  • train management staff in the handling of situations of poor performance and/or conduct that could, if they remain uncorrected, lead to employment separation
  • ensure similar situations are treated like-for-like and that reasonable employee rights are considered
  • be aware of the Fair Work Commissions’s ability to arbitrate on disciplinary procedures that are contained in awards or enterprise agreements

More Information

If you have any questions in relation to this article or if you would like any assistance in other employment law matters including employment contracts or if you require an immigration lawyer in Sydney, please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions team on 9635-7966 to speak with one of our employment lawyers about your employment law issues.