Another Masterclass; valid reason for dismissal

This is the third post devoted to critiquing the Fair Work Commission’s approach to
determining whether the test for determining whether an employer had a valid
reason for a dismissal associated with an employee’s capacity or conduct , the
correct test is whether there were reasonable grounds for the employer to reach
that view or whether it is for the Commission, having heard all of the evidence, to
reach its own conclusion in answering the question posed by sub-sec 387 (a) of the
Fair Work Act; a critical provision when all is said and done.
In earlier posts on 14 August I pointed to what appears to be a substantial and
regrettable inconsistency of approach in the Commission. Well here is another
decision on point.
“A valid reason for dismissal is one that is “sound, defensible or well founded and
not capricious, fanciful or spiteful”. he authority for this approach is found in the
often cited case of Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at
page 373 which reads as follows:
“In its context in s.170DE(1), the adjective “valid” should be given the
meaning of sound, defensible or well founded. A reason which is capricious,
fanciful, spiteful or prejudiced could never be a valid reason for the
purposes of s.170DE(1). At the same time the reasons must be valid in the
context of the employee’s capacity or conduct or based upon the
operational requirements of the employer’s business. Further, in considering
whether a reason is valid, it must be remembered that the requirement
applies in the practical sphere of the relationship between an employer and
an employee where each has rights and privileges and duties and obligations
conferred and imposed on them. he provisions must ‘be applied in a
practical, commonsense way to ensure that the employer and employee are
treated fairly’.”
A valid reason for dismissal attempts to balance, in a practical way, the needs of
employees and employers.
When the reason for the dismissal relates to the employee’s conduct, it is
necessary for the Commission to determine, on the balance of probabilities,
whether the alleged conduct occurred, and if so, whether it was a sufficient
reason for termination . Further,
“ he question of whether the alleged conduct took place and what it
involved is to be determined by the Commission on the basis of the evidence
in the proceedings before it. he test is not whether the employer
believed on reasonable grounds after sufficient enquiry that the
employee was guilty of the conduct which resulted in the
termination”. King v Freshmore (Vic) Pty Ltd S4213.”
Gilbert v Downer EDI Engineering Power Pty Ltd /A Downer Infrastructure (2105)FWC5774 delivered 25 August 2015 per cloghan C