Published 6 December 2015
The Fair Work Commission has ordered MSS to remove a disciplinary warning from an employee’s records after a dispute was lodged under the workplace enterprise agreement.
The CFMEU, on behalf of its member, Ms Kerrielee Kendall notified of a dispute under section 739 of the Fair Work Act 2009 (Cth) and the CFMEU MSS Enterprise Agreement 2012. The dispute, which concerned Ms Kendall receiving a formal written warning for her behaviour and performance, initially went to conciliation, but was not resolved. The dispute resolution clause under the Enterprise Agreement specifically covered any matters arising in the course of employment as well as disputes in relation to the interpretation or application of the agreement.
Ms Kendall had worked for MSS since August 2012, and prior to that had worked at the same site under the previous contractors since 1993.
Eight performance issues had been raised by MSS Strategic Medical Pty Ltd (MSS) in relation to Ms Kendall’s performance, for which she was disciplined, including:
- Unsafe and unhygienic clinical approach to removing a splinter;
- Acting disrespectfully to another employee;
- Slamming a refrigerator door and storming out of a room;
- Remaining at work when she was unwell and should have gone home;
- Climbing on top of a water tank on a fire truck in breach of safety procedures;
- Acting inappropriately or improperly during the course of a team emergency response debrief;
- Providing an incorrect response concerning appropriate eye treatment at a tool box training session;
- Removing statistical information without authority and lying about removing it.
The CFMEU, on behalf of Ms Kendall, argued that the disciplinary action taken was disproportionate, particularly given her lengthy employment and unblemished performance history. The CFMEU further alleged that Ms Kendall had been subject to bullying behaviour by her manager and that MSS were targeting employees, including Ms Kendall, due to a proposed restructure.
MSS agreed that the performance issues, when considered separately, were relatively minor in nature. However, it expressed that taken together and over the period in which they occurred, they showed a pattern of poor behaviour. They presented evidence that Ms Kendall had resisted informal feedback and coaching, which would have been the usual way to deal with such performance issues.
Commissioner Gregory at  acknowledged that ‘the Commission should not as a matter of course get involved in “second-guessing” decisions made by Managers in the exercise of their managerial responsibilities…the exercise of managerial prerogative should not be considered to have been exercised unreasonably if a reasonable person in the same position could have made the same decision.’
Commissioner Gregory found that the performance issues Ms Kendall was disciplined over were trivial in nature and that any issues were very recent in nature. It was held that matters had been revisited by MSS that had not attracted any concern at the time they occurred. Further, Ms Kendall was targeted in her performance in a manner that a reasonable person, in the same position, would not have decided given her behaviour.
Ultimately, Commissioner Gregory ordered that the written warning should be withdrawn by MSS and removed from Ms Kendall’s records. No findings were made about the allegations of bullying or restructuring.