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[2002] AIRC 716
plaintiff. Order that the respondent pay the applicant two weeks' compensation for the element of harshness in the termination; superannuation issue left open for further enquiry and may be re‑addressed if...
The Commission found Mr Kinsey was dismissed for valid reasons (unsatisfactory performance) but the employer's process was harsh because a final warning promised monitoring over "a few weeks" but the employee was given only about one week and the employer had effectively decided to dismiss before the promised monitoring had run. Considering mitigation and the Christmas break, the Commission awarded two weeks' pay and left superannuation issues open for later resolution.
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1,677 words · generated 26/06/2026
R Kinsey applied to the Australian Industrial Relations Commission under the Workplace Relations Act 1996 (s.170CE) after Dika Body Works terminated his employment. The Commission, through Commissioner Foggo, examined whether the dismissal was for a valid reason connected to the employee's capacity or conduct, and whether the process by which he was dismissed involved harshness, injustice or unreasonableness. The Commissioner accepted evidence that management had raised concerns about Mr Kinsey's performance and had provided warnings and verbal counselling (see [3], [5]). A final written warning (Exhibit D2) dated 3 December recorded earlier events and stated that the employer would monitor the employee's performance "over the next few weeks" (see [7]). In practice Mr Kinsey was afforded, at best, one week to improve, and the employer's evidence suggested the decision to terminate had been taken the day before the dismissal was communicated (see [8]–[10]). The Commission concluded the dismissal was substantively justified by unsatisfactory performance but that there was an element of harshness because the promised monitoring period did not run and the employee did not have an adequate opportunity to respond. Taking mitigation and the intervening Christmas break into account, the Commissioner ordered two weeks' compensation and left a superannuation-related matter open for further enquiry (see [11]–[14], [15]).
1 cited instrument linked from this judgment.
Three analytical strands decided the outcome: substance, process and mitigation.
Substance, valid reason for dismissal: The Commission found, on the evidence of the employer's witnesses, that there were legitimate concerns about Mr Kinsey's work performance and that the employer had warned him on several occasions. That finding satisfied the statutory requirement that there be a valid reason related to capacity or conduct (see [3], [5], [11]).
Process, opportunity to respond and promised monitoring: The statutory provision s.170CG(3)(c) (quoted by the Commissioner) requires the Commission to determine whether the employee was given an opportunity to respond to reasons concerning capacity or conduct (see [7]). The final warning document indicated the employer would monitor the employee "over the next few weeks." The reality, however, was that the employee was not given that period, effectively he had only about one week, and the employer had formed the view to terminate prior to the meeting. The shortfall between the employer's stated monitoring period and what actually occurred meant the employee did not have the procedural opportunity the warning suggested, and that procedural failing amounted to an element of harshness (see [7]–[11]).
Mitigation and quantum: Having found an element of harshness, the Commissioner assessed the appropriate remedy under s.170CH. The Commissioner judged the harshness to be not severe, that there had been substantial mitigation by the applicant, and that on the balance of probabilities the employment would have continued for another two weeks, taking into account the Christmas break. Accordingly, an award equal to two weeks' pay was ordered (see [12]–[13]).
The Commissioner's approach was fact-driven: accept employer evidence of performance concerns but scrutinise the procedural fairness of the process actually followed against what had been promised in the final warning. The remedial calculus then balanced the procedural deficiency against mitigation and timing factors.
This decision is an application of the statutory unfair-termination framework under the Workplace Relations Act 1996, specifically the Commission's task under s.170CG(3) to assess whether a valid reason existed and whether procedural fairness (including an opportunity to respond) had been afforded, and under s.170CH to assess compensation for harshness.
Before this decision: the statutory framework already required assessment of both the substantive reason and the fairness of the process. The Commission's decision follows that pre-existing structure: establish the reason, test the process against procedural fairness criteria, then consider compensation.
After this decision: the decision is an instance of the Commission applying those statutory criteria to the specific facts. It does not lay down new legal tests or alter statutory standards. The practical outcome reinforced a theme in Commission practice: an employer may have a valid substantive reason but still be found to have acted harshly if it does not afford the employee the procedural opportunities (for example, the monitoring period promised in a final warning) the employer itself set out (see [7]–[11]). The decision also illustrates how mitigation and timing (e.g. Christmas break) influence quantum (see [12]–[13]).
"I find that the termination of employment of Mr Kinsey was for a valid reason." [3]
"Section 170CG(3)(c) of the Act states that the Commission must determine whether the employee was given an opportunity to respond to any reason for his/her 'capacity or conduct'." [7]
"The applicant was not provided with those next few weeks. He was, in fact, at best provided with one week in which he could improve his performance." [8]
"For the reasons that there has been substantial mitigation and the harshness element is not severe, I order that the respondent make a payment of two weeks to the applicant." [13]
"I would ask that the respondent consider that in future... there be a place for the employee to sign to say that he or she has received a copy of the report." [4]
This decision is directly relevant where:
In those situations the Commission will likely: (a) accept that an employer may have a valid reason linked to performance; (b) nonetheless examine whether the process afforded the employee was fair and consistent with any promises made; and (c) award compensation proportionate to the degree of harshness and mitigation.
The text of this decision itself does not discuss subsequent judicial treatment or later authorities. It is an exercise of statutory application by the Commission in a single set of facts. Therefore there is no material in this judgment to demonstrate how later courts or tribunals have treated it. Practitioners should treat the decision as an administrative tribunal determination applying s.170CG and s.170CH to particular facts, persuasive in similar Commission cases but not a higher-court precedent. For litigation strategy, the decision is useful authority for the proposition that failure to provide the monitoring period or adequate opportunity to respond can create an element of harshness even where the substantive reason for dismissal exists (see [7]–[11], [13]).
How long must an employer allow a promised monitoring period to run before it can fairly conclude no improvement has occurred? Commissioner Foggo found that a promise of "a few weeks" should have been honoured rather than reduced to "at best one week" (see [7]–[9]), but the judgment does not prescribe fixed timeframes. Determinations will be fact-specific.
What evidentiary standard will suffice to prove that a monitoring period or warning was actually communicated to, and understood by, an employee? The Commissioner recommended a practical step, a signature block for receipt of reports, but did not resolve whether absence of such a signature is determinative (see [4]).
When an employer says they will monitor performance "over the next few weeks," is any shorter period always unfair? The answer in practice will depend on the workplace size, the nature of the concerns, and the reasonableness of an accelerated decision; the Commissioner made a weighed factual assessment rather than laying down a bright-line rule (see [5], [8]–[11]).
To what extent does an employer's prior decision to dismiss (taken shortly before notifying the employee) automatically render a dismissal procedurally unfair? Commissioner Foggo regarded the evidence that the employer had decided the day before as contributing to harshness but did not hold that such prior decisional posture is necessarily fatal where the employer had monitored performance appropriately (see [9]–[10]).
How should tribunals balance timing features such as holidays when calculating compensation? The Commissioner reduced the compensation because the dismissal likely would have taken place around the Christmas break and the employment probably would have continued for only about two weeks (see [12]–[13]). The judgment demonstrates that such contextual features materially affect quantum.
Conclusion: R Kinsey v Dika Body Works is a clear factual application of the statutory unfair-termination framework: it confirms that employers may have substantive grounds to dismiss for poor performance while still failing the procedural fairness test required by s.170CG(3)(c) if promised remediation or monitoring periods are not honoured. Remedies will reflect the degree of harshness after accounting for mitigation and timing considerations. Practitioners should ensure disciplinary documentation is clear, given to the employee, and that any stated monitoring or improvement period is actually provided, or at least that the employer can justify a shorter period on cogent, contemporaneous grounds (see [4], [7]–[11], [13]).
s.170CE application for relief in respect of termination of employment
Dika Body Works - Accident Repair Centre Pty Ltd
[1] The following decision, now edited was handed down in transcript at Melbourne on 7 June 2000.
[2] It is disappointing that this matter was not settled at the conciliation phase. I say that primarily because the maximum award coming out of an arbitration of the application, by virtue of the extent of mitigation and the details of the case, is not likely to be significant. It concerns me that people bear the costs to be represented in court and that those costs are potentially more than any costs awarded from the arbitration. Having said that, the parties should understand that I have not seen the certificate that was issued as it is under sealed copy in the file.
[3] In relation to the matters which the Commission must take into account pursuant to s.170CG(3), I find that the termination of employment of Mr Kinsey was for a valid reason. However, in having come to that view, I believe that there was an element of harshness about it. There are several comments I make in relation to that. I am satisfied generally that there were warnings to the applicant relating to his performance. On the evidence of Mr Dika and Mr Hannan, I am satisfied there was cause for concern by the employer about the work performance of the applicant and that problems had been conveyed to him on several occasions.
[4] The parties have not provided sufficient evidence for me to determine whether the reports written about the applicant's performance [Exhibit D2] were ever provided to the applicant. I am not necessarily critical on the specific circumstances of this application but I would ask that the respondent consider that in future where there are notes made about occasions that he speaks to employees concerning any issues of concern, that there be a place for the employee to sign to say that he or she has received a copy of the report.
[5] There were obviously problems in relation to the performance by Mr Kinsey and his conduct, or capacity for work, and I believe that these were raised with him verbally. Given the size of the workplace I believe that the counselling was provided in an appropriate manner between the employer, Mr Dika, or his representative, Mr Hannan, and Mr Kinsey. I find that the applicant was notified of shortcomings in his performance and there is no doubt, given the provisions of section 170CG(3), that the termination was about unsatisfactory performance and that the applicant had been warned about that unsatisfactory performance.
[6] There are just two issues, however, that I raise which I believe lends to this matter an element of harshness. I have already referred to one, and I have incorrectly portrayed it as harshness and that is ensuring that employees are provided with copies of what has gone to them. So that, in fact, leaves one element of harshness.
[7] In the final warning provided to the applicant [sheet 3, Exhibit D2], Mr Dika indicates that he will monitor Mr Kinsey's performance over the next few weeks. That report was dated 3 December, and appears to detail what had occurred on 26 November. Section 170CG(3)(c) of the Act states that the Commission must determine whether the employee was given an opportunity to respond to any reason for his/her "capacity or conduct."
[8] The applicant was not provided with those next few weeks. He was, in fact, at best provided with one week in which he could improve his performance. I believe what the respondent said was fair, that he would monitor his performance over several weeks and that that should have occurred. And in those circumstances, if that is what the applicant believed, to bring forward that period does, in my view, appear to be harsh.
[9] There is also the issue in relation to the process that Mr Dika said in his evidence that he had made up his mind prior to the actual time at which he had told Mr Kinsey about his termination, that he had determined the day before to terminate his employment.
[10] In the circumstances where the respondent was monitoring the performance of the applicant, that is not necessarily fatal to the decision. However, there should have been I think an opportunity at least for Mr Kinsey to state why he believed his performance had improved or why he believed it had not improved. That may seem a little bit overly harsh but I think it is important in terms of the respondent providing the employer with a few weeks over which time he would allow an opportunity for the applicant to improve his performance.
[11] These are the reasons why I find that there was a valid reason for the termination. The termination of employment related to unsatisfactory performance on the part of the applicant but that there was an element of harshness.
[12] The provisions of section 170CH are to be taken into account in determining what compensation should be paid. At best I believe that the employment of Mr Kinsey would have continued for another two weeks.
[13] Determining the amount of compensation to award for the harshness of the decision to terminate Mr Kinsey's employment, is complicated a little by the fact that there was the Christmas break in between. If the applicant had been provided with, say, even another week to improve his performance, then he would have had his employment continuing until after the Christmas break or it would come to an end during it. For the reasons that there has been substantial mitigation and the harshness element is not severe, I order that the respondent make a payment of two weeks to the applicant.
[14] The issue of superannuation does concern me. There are people and authorities involved in determining this issue. Nevertheless, it would be useful I think if, after this hearing Mr Dircks and Mr Dika, or his representatives, could ascertain if there is a date or some indication of a time at which this could be finalised. If it is not finalised in reasonable time, Mr Dircks is at liberty to re-address the issue of superannuation. I am taking on good faith what Mr Dika has said in his evidence so I will leave that matter open.
[15] An order [PR918795] arising from this decision was issued on 12 June 2002.
Printed by authority of the Commonwealth Government Printer
R Kinsey
Dika Body Works - PR919429 [2002] AIRC 716;
Order that the respondent pay the applicant two weeks' compensation for the element of harshness in the termination; superannuation issue left open for further enquiry and may be re‑addressed if not resolved in reasonable time; order PR918795 issued 12 June 2002 (see [13]–[15]).