How are facts established in cases in the Fair Work Commission? Here is the answer.
“Consideration
[14] I have taken into account the submissions that have been provided by the Applicant and I have attached the appropriate weight to the evidence filed to the Commission.
[15] It is not in dispute, and I find, that the Applicant is protected from unfair dismissal, submitted his application within the statutory timeframe, was not made genuinely redundant. I am unaware whether the Respondent is a small business.
[16] When considering whether a termination of an employee was harsh, unjust or unreasonable, the oft-quoted joint judgement of McHugh and Gummow JJ in Byrne v Australian Airlines (Byrne)2 is of significance:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[17] In analysing Byrne, a Full Bench of the Australian Industrial Relations Commission in
Australian Meat Holdings Pty Ltd v McLauchlan (AMH)3 held:
“The above extract is authority for the proposition that a termination of employment may be:
- unjust, because the employee was not guilty of the misconduct on which the employer acted;
- unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before the employer; and/or
- harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct”.
[18] Further, a Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd4 said:
“[24] 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”.
[19] The unchallenged evidence of the Applicant is that he was not provided with any KPI’s for his role, nor were there any performance reviews undertaken. Further, the Applicant was not subject to any warnings about his performance through the course of his employment. I have taken this into account.
[20] Whilst not relevant to this proceeding, and outside the jurisdiction of the Commission, I note that the Applicant claims that he was not paid since the last week of February 2024.
[21] I now turn to the criteria for considering harshness as provided in s.387 of the FW Act.
Section 387(a) – Valid Reason
[22] The meaning of the phrase “valid reason” has been universally drawn from the judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd:5
“In broad terms, the right is limited to cases where the employer is able to satisfy the Court of a valid reason or valid reasons for terminating the employment connected with the employee’s capacity or performance or based on the operational requirements of the employer. …
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 reason 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. The provisions must “be applied in a practical, commonsense way to ensure that” the employer and employee are each treated fairly…”.
[23] In Rode v Burwood Mitsubishi,6 a Full Bench of the Australian Industrial Relations Commission held:
“… the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.”
[24] In Qantas Airways Ltd v Cornwall (Cornwall)7 the Full Court of the Federal Court of Australia said:
“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”
(My emphasis)
[25] The Applicant was not provided with any reason for his termination. As a result, the reason for the Applicant’s termination is logically, not valid. I have taken this into account.”
Iversen v Arramwelke Aboriginal Corporation [2025] FWC 1352 delivered 16 May 2025 per Riordan C