Can you terminate an employee if they are neglecting work duties?

There are many reasons why sometimes you may need to consider parting ways with an employee, and one such reason may be due to the fact that the employee has neglected their duties. You may be thinking, ‘Well, if this happens to me and I identify an employee not performing their duties, will this constitute a valid reason for dismissal?’

The Fair Work Commission (FWC) as answered this question in the case of Moses Olufunminiyi Olufokunbi v Greenleaf Care Group Pty Ltd [2024] FWC 1063 (23 April 2024), stating that yes, if an employee neglects their duties this will constitute a valid reason for dismissal.

In this article, we’ll cover what happened, what caused the termination and what the FWC found.

So, what happened?

Two staff members of Greenleaf – a registered NDIS provider, were required to provide care and support for one patient – a Canberra resident, to comply with the resident’s specific support plan and NDIS funding for a two-to-one-carer-patient ratio. Because of this, a coordinator and a junior support staff member both cared for the resident in the ACT home. The coordinator left the home for up to five hours without permission from 1 November 2023. His absence left a junior support employee as the sole carer, leading to an unsafe situation for both the carer and the resident.

The junior employee reported feeling scared and unsafe as the resident, known for aggression and self-harm tendencies, became agitated. Despite being contacted by the manager, the coordinator delayed his return, stating he was shopping and printing documents. He ultimately refused to attend head office after his shift to discuss the matter after being asked by his manager.

Because of this, Greenleaf decided to terminate the coordinator. This then prompted an unfair dismissal claim, which the FWC dismissed.

What went wrong?

In this case, the coordinator made two mistakes that led to termination:

1. Changing care ratios: the coordinator informed junior employees to care for the resident on a one-to-one basis from November 1, without authorisation. This change compromised the safety of both the resident and staff, contrary to the two-to-one care ratio required due to the resident’s condition and behavioural tendencies. 
2. His extended absence: the coordinator was absent from his shift for an extended period of time, despite advising he would return “soon”, which meant that the participant was not cared for in accordance with the necessary care ratio standards.

What did the Fair Work Commission find?

Commissioner Donna McKenna upheld the dismissal of the coordinator on the grounds that the coordinator’s:

• Extended absence was deemed a dereliction of his responsibilities; and
• Unauthorised alteration to the care ratio posed a safety risk to both the resident and junior.

Greenleaf’s dismissal process included notifying the coordinator of the allegations, allowing a response, and terminating his employment with pay in lieu of notice. The Commission found the dismissal was not unfair and dismissed the coordinator’s application.

What should employers takeaway from this case?

This case highlights the importance of employee compliance with the requirements of their role and responsibilities, and failure to do so may amount to a valid reason for dismissal.

However, there is a plethora of case law that highlights that just because there might be a valid reason for dismissal, a dismissal may be found to be harsh, unjust and unreasonable if proper process is not followed. In this case, the employer did follow proper process which is why the applicant’s unfair dismissal case was dismissed.

The FWC’s decision highlights how important having rigorous standards in place is when it comes to tricky HR processes like termination. Because Greenleaf followed the correct process, there was no basis for the coordinator’s unfair dismissal claims, potentially saving Greenleaf thousands.

To summarise, even if you do determine that there is a valid reason for the termination of your employee, do not make the mistake of not following the correct termination process. The mistake may render the dismissal unfair and result in an order in favour of your employee as was the case in Mr Simon Ronchi v Johns Lyng Group [2022] FWC 326.

Citation HR can ensure workplace compliance

Engaging with a reputable and experienced HR provider like Citation HR will ensure your business is staying ahead of the compliance curve. Between our industry-leading HR software that’s included with every subscription and our 24/7 HR Advice Line, you will always be protected and 100 per cent compliant. Contact us today to see how we can best help your business.

About our Author

Aimee Edmonds is a Senior Workplace Relations Consultant at Citation HR. In her role, she provides support to clients via the 24/7 HR Advice Line. In her free time, you’ll find her trying out the newest restaurant with her friends or roller skating!