“Notification of the valid reason and opportunity to respond – s.387(b) and (c)
[45] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,6 in explicit terms7 and in plain and clear terms.8 In Crozier v Palazzo Corporation Pty Ltd9 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:
“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”10
[46] An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. Such requirement will be satisfied where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern.11 This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.12
[47] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to the Applicant before her dismissal was effected.
[48] There is no dispute that the Applicant was notified of the reason for her dismissal in the form of the termination letter, that being she had not addressed the performance concerns that had been raised with her. I am satisfied that she was given an opportunity to respond to the performance matters that resulted in her dismissal.
[49] The performance expectations were detailed in the written warning and other emails to the Applicant, and she was given an opportunity to respond at the time the warning was issued.
[50] I do not accept the Applicant’s assertion that she was not provided with examples or explanations as to why her performance did not meet the Respondent’s requirements. I am satisfied that the Respondent, through the emails and the written warning, provided her with sufficient particulars for her to be able to understand and respond to the issues raised.
[51] Overall, I am satisfied on the evidence before me that the Applicant was notified of the reason for her dismissal and was given an opportunity to respond to that reason. “
Mushayabasa v Rombola Family Farms Pty Ltd – [2024] FWC 2940 28 October 2024 per Dean DP