Sacked for being too slow at stacking bricks, with no warning

What happened

Craig Ritchie started as a production labourer at Krause Bricks, a brick manufacturer in the regional Victorian town of Stawell, on 19 April 2023. His job description covered far more than stacking bricks: forklift operation, truck driving, moving raw materials and reorganising stock in the yard.

Bricks were stacked by hand by two-person teams onto pallets, which a forklift then carried away to be wrapped. Over time Mr Ritchie was also asked to become a regular dump truck driver, to wrap stacked bricks and to clean up the yard. His supervisor said that towards the end he may have spent as little as 30 per cent of his time stacking bricks.

From 29 May 2024 he was off work with a heart condition, returning on 17 June 2024. Three days later, on 20 June 2024, the operations manager called him into the office and, in Mr Ritchie's words, told him "we have to let you go because you are not stacking enough bricks". He protested that he stacked faster than many of his co-workers, but the decision stood.

Could he bring a claim at all?

To claim unfair dismissal, a worker must first complete the minimum employment period: six months for an employer with 15 or more employees (Krause Bricks had 36), or one year for a small business. Mr Ritchie had been permanent only from 2 February 2024, about four and a half months, so he needed his earlier casual time to count.

Under s 384(2)(a) of the Fair Work Act 2009 (Cth), casual service counts only if the worker was a regular casual employee and had a reasonable expectation of ongoing work on a regular and systematic basis. When he was hired, Mr Ritchie was asked if he could work five days a week and said he could. The company's own records showed he worked every week, and from about June 2023 usually five days a week. Commissioner Redford found both conditions met, so Mr Ritchie had served more than six months and was protected from unfair dismissal.

Why: the legal test

Under s 387, the Commission decides whether a dismissal was harsh, unjust or unreasonable by weighing a list of factors. They include whether there was a valid reason related to the worker's capacity or conduct, whether the worker was told the reason and given a chance to respond, and, for performance dismissals, whether they had been warned about the unsatisfactory performance beforehand. The size of the business and whether it has HR expertise are also considered.

A valid reason must be "sound, defensible or well founded". A warning must make clear that the job is at risk unless performance improves.

What the Commission decided

The company's case rested on claims that Mr Ritchie was slow and avoided stacking bricks. The operations manager said he had seen him on CCTV stacking only 60 bricks an hour against an expected 700 or so. But he could not say when, made no note, never raised it with Mr Ritchie at the time, and the footage was not produced. The Commissioner found this evidence not reliable. His supervisor's view that he was slow was "a casual assessment at best", and there was no criticism of his forklift or truck work at all. Commissioner Redford found there was no valid reason for the dismissal.

Two conversations in the yard, on 5 April and 2 May 2024, were the only reliable evidence of any concern being raised. They were informal, Mr Ritchie may have started them himself (once to ask for a pay rise), and neither suggested his job was in danger. The Commissioner found they were not warnings.

The Commission also found the manager had decided to dismiss Mr Ritchie before the 20 June meeting, so he was neither told the reason in advance nor given a real chance to respond. The small size of the business weighed to some degree the other way, but did not excuse the lack of a fair go. On Mr Ritchie's behalf it was suggested the real reason was his heart condition, but the Commissioner found there was not enough evidence for that and put it aside. Weighing all the s 387 factors, the Commissioner found the dismissal harsh, unjust and unreasonable.

How much was awarded

Mr Ritchie did not seek his job back. The company argued that even with a warning he would have lasted only another week. The Commissioner rejected that, finding that a fair process to let him improve would have taken at least three months, to 12 September 2024. On his annual salary of $65,545, his pay for those 12 weeks (20 June to 12 September 2024) came to $15,125.77. Taking off the $58 he had earned collecting bottles and cans for recycling left $15,067.77. Krause Bricks was ordered to pay that amount, less tax, plus $1,732.79 in superannuation, within 14 days.

What this means for you

If you are dismissed for poor performance, it is worth asking what evidence the employer actually has, and whether you were ever told clearly that your job was on the line. Offhand comments to hurry up are not the same thing. If you started as a casual working steady, regular shifts, that time may count towards your eligibility to claim, so do not assume you are too new. Time limits are short: an unfair dismissal application must be lodged with the Fair Work Commission within 21 days of the dismissal.