Classic issues of an unfair dismissal case

It appears to me that there is an increasingly obvious trend by the Fair Work Commission’s Deputy Presidents and Commissioners to use a reasonably consistent template of headings to identify the legal issues to be determined in unfair dismissal cases. In this post I have extracted those headings from a recent case decision and have set them out in the order in which they appear in that decision.

I have omitted the text from the decision which contains the Deputy President’s findings of facts, reasoning and legal conclusions of each point, which can be accessed at the Fair Work Commission’s web site via this link.

Massaga v Activ Foundation Inc – [2020] FWC 4087 – 19 October 2020 – Binet DP

The point of the exercise is that decisions such as this are, in addition to constituting a decision on the legal and factual merits of a particular unfair dismissal claim,  a useful template for parties and practitioners to identify some of the issues which may arise in cases in which they may be involved. Thus the express legal issues identified in this particular case by the following italicized headings are not exhaustive of those which routinely arise in unfair dismissal cases. For example the case did not involve any fundamental jurisdictional issues and each contested case which is determined by the Commission will involve its own facts and potentially many more fundamental legal issues.

Here are they are.

“Introduction

Permission to be represented

Is the applicant protected from unfair dismissal?

Was the applicant’s dismissal unfair?

Was the applicant’s claim made within the period required?

Was the dismissal harsh, unjust or unreasonable?

Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

  1. whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);
  2. whether the person was notified of that reason;
  3. whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
  4. any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;
  5. if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal;
  6. the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
  7. the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
  8. any other matters that the FWC considers relevant.

Was there a valid reason for the dismissal related to Ms Massaga’s capacity or conduct?

[81] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” and should not be “capricious, fanciful, spiteful or prejudiced.”  58 Validity is to be considered within the context of the operational requirements of the employer’s business.59

[82] The measure for determining whether the reason for termination was valid is objective; that is, the reason “must be defensible on an objective analysis of the relevant facts.” The employer’s subjective belief that the termination was for a valid reason will not suffice. 60

[83] The FWC is not 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 but rather it is for the court to assess whether the employer had a valid reason connected with the employee’s capacity or conduct.” 61

[84] Where a dismissal relates to an employee’s conduct, the FWC must be satisfied that the conduct occurred and justified termination.62 “The question of whether the alleged conduct took place and what it involved is to be determined by the FWC 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.” 63

Was the applicant notified of the valid reason?

Was the applicant given an opportunity to respond to any valid reason related to her capacity or conduct?

Did the employer unreasonably refuse to allow the applicant to have a support person present to assist at discussions relating to the dismissal?

Was the applicant warned about unsatisfactory performance before the dismissal?

To what degree would the size of the employer’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

To what degree would the absence of dedicated human resource management specialists or expertise in the employer’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

Are there any other matters which are relevant?

Conclusion”

Massaga v Activ Foundation Inc (202)) FWC 4087 delivered 19 October 2020 per Binet DP