No fair go makes employee dismissal for a valid reason unfair

The Fair Work Commission will inevitably find a dismissal to be 'unfair' if, despite having legitimate performance concerns, an employer does not give the employee a 'fair go' to both respond to those concerns and improve their performance.

In Cheek v ELB Pty Ltd,¹ the Commission took a close look at just what a 'fair go' means in finding the dismissal for a valid reason to be unfair.

Facts

The employee commenced working for the videoconferencing equipment installer in March 2017 as the NSW Project Manager. In November 2017, he received a first formal written warning which detailed a series of performance and conduct related issues, including:

1. inadequate communication with, and not responding to direction from, his manager;