Free submissions; What is a valid reason for dismissal?
“The Respondent must have a valid reason for the dismissal of the Applicant, although it need not be the reason given to the Applicant at the time of the dismissal. Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378. The reasons should be “sound, defensible and well founded” Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373. and should not be “capricious, fanciful, spiteful or prejudiced.” (Selvachandran above)
There is a distinction between capacity and conduct. Annetta v Ansett Australia (2000) 98 IR 233; Print S6824. In this matter, it was the conduct of the employee that formed the basis of her termination. In King v Freshmore (Vic) Pty Ltd, (2000) Print S4213 a Full Bench held:
“When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.
The 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. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination [See Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201;Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1].”
It is not the role of the Commission to “stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court.” Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685 However, the Commission must consider the entire factual matrix in determining whether an employee’s termination is for a valid reason. Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, 413.”
Humphries v Buslink Vivo Pty Ltd (2w015) FWC 4641 delivered- 3 August 2015 per Catanzariti VP