Inappropriate poems, excessive emojis: Worker dismissed 17 days into employment

Various allegations relating to poor performance were made against a former survey technician, who only served with an employer for 17 days before being dismissed. The worker alleged that he was discriminated against because of his race and age.

The Fair Work Commission recently dealt with a dispute relating to general protections after a dismissal. From Tuesday, 28 May 2024, to Friday, 14 June 2024, a worker was employed with a private company as a survey technician but was subsequently dismissed for poor performance after just 17 days. The survey technician was employed on a casual basis.

In this case, evidence was submitted by the survey technician, the company’s chief financial officer (CFO) and managing director. Commissioner Pearl Lim, who oversaw the case, found the evidence of the CFO and director to be honest and credible, whereas the survey technician often “downplayed issues” and was “evasive.”

Both the director and CFO alleged that in his short tenure, the survey technician’s performance was poor. Evidence was listed by the two, highlighting some instances in which they deemed his performance to be both problematic and poor.

For example, it was alleged that the survey technician was inappropriate with co-workers. He allegedly wrote a poem to the office manager and often made comments that made her feel uncomfortable, to which she relayed these concerns to the CFO. The survey technician defended his actions, claiming it was an act of saying thank you “for helping him move to Brisbane”.

He noted that he also allegedly gave another worker a box of chocolates. On or around Thursday, 30 May 2024, the director told the survey technician to relinquish this behaviour and specifically cited the poem.

Another example listed in the evidence was the survey technician’s communication through emails. He allegedly would use an excessive amount of emojis when sending emails, which both the director and CFO addressed with him. The survey technician’s rebuttal was that “he uses the prayer hands emoji because he is Indian and includes it in his written communication as a show of respect”.

There were other allegations presented that claimed the survey technician would regularly turn up late to pre-start meetings, had issues with learning tasks, had issues with following instructions, and had issues with driving a manual vehicle – which he was warned could damage the clutch.

The survey technician also didn’t dispute allegations that he had issues with cleanliness and hygiene. The director noted that service technician would leave rubbish and lunch leftovers in the shared company car and was caught on two occasions littering. Although no dispute to these claims was given, the survey technician did note that he was still “acclimatising to living in Australia” and believed the issue was somewhat overblown.

A serious allegation was also made pertaining to safety measures, as according to the director, the survey technician failed to complete a “call-up”, which very nearly amounted to a road incident.

On site, there are roads that sometimes have poor visibility. It is a safety protocol that when someone is driving on a side road, they do “call-ups” where they regularly announce their presence on the radio. It’s alleged that the survey technician would regularly forget to complete call-ups, leading to a near-miss with an articulated dump truck.

He acknowledged that he would sometimes forget to complete call-ups but denied that there had been a safety incident.

A discussion was held on 12 June 2024 between the CFO and director regarding the future of the survey technician’s employment. On 14 June 2024, the director informed the survey technician that he was being dismissed due to performance issues. This was followed up by an email from the director outlining steps for him to hand back work equipment and arrangements for his flight back home.

Consideration

In his case, the survey technician stated that he was entitled to a written notice period of one week and that the company did not take performance improvement measures with him before terminating him, breaching his “right to follow disciplinary actions of performance training procedures”.

He also felt he was under “pressure and fear” that if he did not perform his work tasks well, he would be terminated. He further alleged that the company gave him unachievable targets and took advantage of his fear of losing his job.

Serious allegations were made by the survey technician, claiming he was discriminated against because of his race and age and was deemed immature by his higher-ups.

His final allegations claim that the company “overstretched” the issues to humiliate him and that it failed to support him adequately.

However, Lim was far more inclined to believe the evidence presented by the CFO and director, noting that the director’s evidence for dismissal was credible.

“I accept that [the survey technician] is aggrieved by his dismissal. However, this is not an unfair dismissal application where I assess whether his dismissal was harsh, unjust or unreasonable.

“For completeness, I note that [the survey technician’s] reliance on ss 340 and 343 is misguided. I am also satisfied that [the survey technician’s] race and age were not a factor in the company’s decision to dismiss him. Accordingly, I order that [the survey technician’s] application be dismissed,” said Lim.