Etienne, Robert v FMG Personnel Services Pty Ltd
Deputy President Colman
Not yet cited by other cases
Treatment by later cases (9)
9 neutral
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Applicant: Etienne, Robert
Respondent: FMG Personnel Services Pty Ltd
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Workplace Express coverage · 1
An FWC full bench has granted permission to appeal the sacking by resources giant FMG of an employee just one week into a six-week performance improvement plan (PIP), but has cautioned against interpreting its ruling as suggesting that employers must always see such processes through to the end.
FWC President Iain Ross, Deputy President Alan Colman and Commissioner Tanya Cirkovic said the inventory controller told the bench in arguing for permission to appeal that it was in the public interest to correct a "manifest injustice and an outcome which is counterintuitive, namely that [the employee] was dismissed one week into a six week performance improvement plan which, according to the evidence, he had engaged in."
The bench said the case didn't involve manifest injustice, but found that the result "is counterintuitive, and that the matter engages the public interest".
It added, however, that "we would note that our decision should not be understood as suggesting that employers are always required to conclude a performance improvement process once it has begun".
"There may be a valid reason not to do so.
"Each case will turn on its own facts," the bench said.
Deputy President Melanie Binet in her decision in May (see Related Article) said FMG Personnel Services Pty Ltd had reasonable grounds to conclude that continued informal or formal performance management was unlikely to be successful and there was a valid reason for the controller's dismissal.
Robert Etienne v FMG Personnel Services Pty Ltd [2017] FWCFB 3864 (13 October 2017)
Archived text (180 words)
1 Fair Work Act 2009 s.604—Appeal of decision Robert Etienne v FMG Personnel Services Pty Ltd (C2017/3210) JUSTICE ROSS, PRESIDENT DEPUTY PRESIDENT COLMAN COMMISSIONER CIRKOVIC SYDNEY, 18 OCTOBER 2017 Appeal against decision [2017] FWC 1637 of Deputy President Binet at Perth on 25 May 2017 in matter number U2016/10522 – permission to appeal – arguable case of error – permission granted. The decision issued by the Fair Work Commission on 13 October 2017 [[2017] FWCFB 3864] is corrected by removing the reference to ground 1 in paragraph [52] and by amending the reference to s.400(1) in paragraph [53] to s.604(2), such that the paragraphs read as follows: [52] Mr Etienne has made out an arguable case of error in relation to grounds 2 and 6 in the notice of appeal. [53] We have concluded that it is in the public interest to grant permission to appeal. Accordingly, we are required by s.604(2) to grant permission to appeal, and we do so. PRESIDENT Printed by authority of the Commonwealth Government Printer <Price code A, PR596807> [2017] FWCFB 3864 CORRECTION TO DECISION