Three warnings and termination in a week … unfair?

The Fair Work Commission’s decision in Bronson Brown v Oracle CMS Pty Ltd gives some useful guidance about how long employees should be given to rectify misconduct. It suggests employers should allow employees more than a week to change their position.
 
In about 2015, Mr Brown joined Village Road Show Theme Parks in a call centre support role.
 
In 2018, Village decided to outsource some of its support functions – including the work done by Mr Brown - to Oracle.
 
Mr Brown was given the option of transferring to Oracle as part of that operational change.
 
It seems Mr Brown was anxious that his job would change if he moved to Oracle. He asked for, and received, some assurances that his day to day work would stay the same.
 
In September 2018, Mr Brown transferred from Village to Oracle.
 
Mr Brown’s day to day role did not change immediately – he continued to provide call centre support to Village. However, some months later, things did change.
 
On Tuesday, 12 March 2019, Mr Brown’s supervisor told Mr Brown that he would need to learn how to do other work in addition to the Village work. The supervisor told Mr Brown to log off the Village system and to start training in other Oracle products.
 
Mr Brown refused to follow that direction.
 
Later that day, Oracle issued a first written warning to Mr Brown.
 
Three days later, on Friday, 15 March 2019, Oracle’s Chief Operating Officer telephoned Mr Brown and instructed him to train in other Oracle products. Again, Mr Brown refused.
 
Later that day, the COO sent Mr Brown an email explaining that Mr Brown was being directed to learn other Oracle products so that work could be fairly distributed in his team. The email also stated that failure to do so would be considered serious misconduct.
 
The following Tuesday, 19 March 2019, representatives from Oracle met with Mr Brown to discuss the position. After that meeting, the parties exchanged correspondence but Mr Brown continued to refuse to learn other Oracle products.
 
The next day, 20 March 2019, Oracle issued a second written warning to Mr Brown and asked him to sign the document. He refused to do so.
 
Later that day, Oracle issued a third written warning to Mr Brown. Oracle also asked Mr Brown to attend a meeting the following day.
 
On Thursday, 21 March 2019, Oracle representatives met with Mr Brown and told him that they had decided to terminate his employment with three weeks’ notice. Oracle confirmed that decision in a letter later in the day.
 
Mr Brown then made an unfair dismissal claim.
 
The Commission decided that there was a valid reason for Mr Brown’s dismissal because, “Mr Brown unreasonably refused to perform the work required of him by Oracle”.

The Commission stated:
 
“In ensuring efficient use of employees’ time, managers and employers will need to, at times, require employees to perform duties within their skill and competence that is not the work that the employee is accustomed to or even wishes to do. Mr Brown was not being asked to cold-call or sell; he was repeatedly asked to train in Oracle products that would, on one example, take no longer than 30 minutes to learn.”
 
Significantly, the Commission stated:
 
“Employees, despite being promised how work will be undertaken cannot hold out for that promise to be kept in a changing world where if you don’t move with the times, on account of technology, or customers, or services provided, you may not have a job. “

However, the Commission found that Mr Brown’s dismissal was harsh, and therefore that Mr Brown had been unfairly dismissed.

Commissioner Hunt stated:

“I am deeply troubled, however, by the speed and willingness to exit Mr Brown from the business from the period 12 March 2019 to when he was informed of the dismissal on 21 March 2019. The issuing of three written warnings in just nine days, and two written warnings on the same day is disturbingly breath taking, followed by notification of the dismissal the next day. It was, in my view, quite ruthless.”
 
In addition, the Commission found that the tone of some of Oracle’s correspondence was “unpleasant”. 

The lesson for employers is that they should support and encourage people to change rather than immediately move to sack people who find change hard. That said, the case confirms that employees do have to try to adapt to change and can't stay rooted in the past forever.