These passages from a recent unfair dismissal decision of the Fair Work Commission deal with evidence issues including the probative value of matters discovered post dismissal.
“Reliance on facts emerging during the hearing
[56] The Appellant’s proposition that the Commissioner erred by relying on facts not known to the Appellant when the Respondent’s employment ended or that were raised for the first time in the hearing, misunderstands the Commission’s fact-finding function. It has long been established that, where the reason for dismissal is based on alleged misconduct, the Commission must determine whether the misconduct took place and what it involved, based on the evidence in the proceedings before it rather than whether the employer believed on reasonable ground, that the misconduct occurred.61 The same proposition applies to disputed facts, such as whether (in this case) the Respondent said: “I quit” and resigned her employment. That does not mean that, for example, explanations given for the first time at a hearing before the Commission, cannot be taken into account to disbelieve a particular witness’ version of events. Conversely, a conclusion may be drawn that the failure of a particular witness to provide an explanation at an earlier time, for some matter relevant to the proceedings, casts doubt on the veracity of the witnesses’ evidence. The acceptance or rejection of such explanations is simply a part of the fact-finding process engaged in by the Commission.
[57] In the present case, the process the Commissioner undertook did not involve relying on facts “not available”. It is simply that the Commissioner formed a different view of the facts to the view formed by the investigator. This does not signify any disrespect to the investigator, or deficiency in the investigation. Rather, in making her findings of fact, the Commissioner had advantages that the investigator did not have, namely the receipt of sworn evidence tested by cross-examination, at a hearing, where other witnesses gave evidence to the contrary, allowing the Commissioner to form an impression and draw conclusions about the evidence of each witness, in the overall context of the case.
[58] Insofar as the Appellant contends that the Commissioner permitted the Respondent to rely on facts “not available” or not known to the Appellant at the time the Respondent was dismissed, the contention is misconceived. There is a well-established principle that facts existing at the time of dismissal, which may not have been known to one or other of the parties, may be relied on to establish the validity of a reason for dismissal and other matters relevant to determining whether a dismissal is unfair. The principle is sometimes referred to as involving “after acquired knowledge”. A classic example was provided by Von Doussa J in Lane and Others v Arrowcrest Group Pty Ltd62 (Lane v Arrowcrest) where his Honour said that if after- acquired knowledge of facts in existence at the date of a dismissal could never be used to justify
retrospectively, a dismissal, such a principle would have “strange and … astonishing consequences”. His Honour went on to give an example of such a consequence if “the dismissal of an accountant who had held a position of trust with the employer could not be justified on the ground of dishonesty if it were discovered after the dismissal that he had been systematically embezzling money from the employer”. In that case, his Honour was considering the term “harsh, unjust or unreasonable” – albeit in a different context – and went on to state:
“…it is open to an employer to justify a dismissal by reference to facts not known to the employer at the time of the dismissal, but discovered subsequently, so long as those facts concern circumstances that were in existence when the decision was made…Whether the decision can be so justified will depend on all the circumstances.”
[59] The principle in Lane v Arrowcrest was unanimously endorsed by High Court in Byrne v Australian Airlines Ltd63 (Byrne) and has been applied consistently in decisions of the Commission. While the principle has generally been applied in relation to the validity of a reason for dismissal, it has been extended to other questions the Commission is required to determine in under s. 387 in deciding whether a dismissal is harsh, unjust or unreasonable.64 In our view the principle is equally applicable to the consideration of other foundational matters the Commission is required to determine under s. 385 of the Act, and related provisions, including s. 385(a) in relation to whether a person has been dismissed, within the meaning in s.
386. It would be counter intuitive for the Commission to prevent an employer or a person who asserts unfair dismissal, from relying on relevant facts, that establish the jurisdiction of the Commission to make a finding as to whether a dismissal is or is not unfair, simply because the other party did not know of the facts or had incorrectly analysed facts that were known at the relevant time.
[60] Just as it would be astonishing for the employer of an embezzling accountant to be prevented from relying on dishonesty discovered after a dismissal took effect, it would be equally astonishing if, for a person who was dismissed on the grounds of redundancy, there was a rule making it impermissible to rely on knowledge of the employer taking steps to place an advertisement for a similar position before or at the time the dismissal took effect, because that knowledge was subsequently acquired.
[61] From the cases dealing with the use in unfair dismissal proceedings of after acquired knowledge of facts in existence at the time of the dismissal, the following principles can be distilled:
1. The Commission is bound to determine, based on all relevant facts, whether a person making an application for an unfair dismissal remedy, has been unfairly dismissed within the meaning in s. 385 of the Act and related provisions, by reaching a state of satisfaction in relation to each of the following matters, consistent with the provisions of the Act defining those matters:
a) the person has been dismissed;65
b) the dismissal was harsh, unjust and unreasonable;66
c) the dismissal was not a consistent with the Small Business Fair Dismissal Code;67 and
d) the dismissal was not a case of genuine redundancy.68
2. In relation to the question of whether there was a valid reason for a dismissal posed by
s. 387(a) the Commission is not confined to the reason advanced by the employer but must determine whether a dismissal was for a valid reason by reference to all relevant facts.69 This principle also applies to other matters required to be considered under s. 387 of the Act70 and to matters in s. 385 and related provisions.
3. It is open to a person who has been dismissed to prosecute an application for an unfair dismissal remedy by reference to facts not known to the person at the time of the dismissal, and discovered after the dismissal, to the extent that the facts are relevant to any of the matters in s. 385 and related provisions, provided those facts concern circumstances that were in existence when the decision to dismiss the person was made.71
4. It is open to an employer to defend an application for an unfair dismissal remedy, by reference to facts not known to the employer at the time of the dismissal, and discovered after the dismissal, to the extent that the facts are relevant to any of the matters in s. 385 and related provisions, provided those facts concern circumstances that were in existence when the decision to dismiss the employee was made.72
5. An employer who has dismissed an employee, or a person who has been dismissed, may also rely on a correct analysis of facts concerning circumstances that were in existence at the time of the dismissal, but were incorrectly analysed, to respectively defend or prosecute an application for an unfair dismissal remedy.73
6. If facts relating to the dismissal are not clear, an unreasonable failure by the employer to establish those facts before dismissing an employee, or conversely, dishonest concealment of facts by the dismissed employee, is relevant to whether the dismissal was unfair.74
7. The Commission is bound to afford the parties procedural fairness in the hearing and determination of an unfair dismissal application, including in relation to evidence of facts not known to one or other of the parties at the time of the dismissal or facts which emerge during proceedings.75 Matters that may be relevant to whether procedural fairness is afforded include that the party whose interests will be adversely affected if the facts are accepted or rejected, has a reasonable opportunity to be heard, to cross- examine persons giving evidence seeking to establish facts and to call evidence to rebut or contradict evidence relevant to those facts.
[62] In the present case, the Commissioner could not have proceeded to consider whether the dismissal of the Respondent was unfair, without first finding that the Respondent was dismissed. The significance of this finding, and the need for it to be correct to found the Commission’s unfair dismissal jurisdiction, is a matter that supports the extension of the principle that the Commission may consider facts in existence at the time of the putative dismissal, regardless of whether they were known to one or other of the parties at that time, to the question of whether the person seeking an unfair dismissal remedy, was dismissed. Finally, it is often, but not always, the case that in circumstances where employment ends by an ostensible resignation following an altercation at work, the question of whether an employee has resigned employment or was dismissed, is inextricably linked to any subsequent consideration of whether the dismissal was unfair, by facts that are common to both questions. This is a further basis for the entire factual matrix, as it existed at the time of the putative dismissal, to be considered on both questions.”
Appeal by Gold Tiger Logistics Qld Pty Ltd v Campbell Re [2024] FWCFB 458 delivered 11 December 2024 per Asbury VP, Bell DP and O’Neill DP
These passages from a recent unfair dismissal decision of the Fair Work Commission deal with evidence issues including the probative value of matters discovered post dismissal.
“Reliance on facts emerging during the hearing
[56] The Appellant’s proposition that the Commissioner erred by relying on facts not known to the Appellant when the Respondent’s employment ended or that were raised for the first time in the hearing, misunderstands the Commission’s fact-finding function. It has long been established that, where the reason for dismissal is based on alleged misconduct, the Commission must determine whether the misconduct took place and what it involved, based on the evidence in the proceedings before it rather than whether the employer believed on reasonable ground, that the misconduct occurred.61 The same proposition applies to disputed facts, such as whether (in this case) the Respondent said: “I quit” and resigned her employment. That does not mean that, for example, explanations given for the first time at a hearing before the Commission, cannot be taken into account to disbelieve a particular witness’ version of events. Conversely, a conclusion may be drawn that the failure of a particular witness to provide an explanation at an earlier time, for some matter relevant to the proceedings, casts doubt on the veracity of the witnesses’ evidence. The acceptance or rejection of such explanations is simply a part of the fact-finding process engaged in by the Commission.
[57] In the present case, the process the Commissioner undertook did not involve relying on facts “not available”. It is simply that the Commissioner formed a different view of the facts to the view formed by the investigator. This does not signify any disrespect to the investigator, or deficiency in the investigation. Rather, in making her findings of fact, the Commissioner had advantages that the investigator did not have, namely the receipt of sworn evidence tested by cross-examination, at a hearing, where other witnesses gave evidence to the contrary, allowing the Commissioner to form an impression and draw conclusions about the evidence of each witness, in the overall context of the case.
[58] Insofar as the Appellant contends that the Commissioner permitted the Respondent to rely on facts “not available” or not known to the Appellant at the time the Respondent was dismissed, the contention is misconceived. There is a well-established principle that facts existing at the time of dismissal, which may not have been known to one or other of the parties, may be relied on to establish the validity of a reason for dismissal and other matters relevant to determining whether a dismissal is unfair. The principle is sometimes referred to as involving “after acquired knowledge”. A classic example was provided by Von Doussa J in Lane and Others v Arrowcrest Group Pty Ltd62 (Lane v Arrowcrest) where his Honour said that if after- acquired knowledge of facts in existence at the date of a dismissal could never be used to justify
retrospectively, a dismissal, such a principle would have “strange and … astonishing consequences”. His Honour went on to give an example of such a consequence if “the dismissal of an accountant who had held a position of trust with the employer could not be justified on the ground of dishonesty if it were discovered after the dismissal that he had been systematically embezzling money from the employer”. In that case, his Honour was considering the term “harsh, unjust or unreasonable” – albeit in a different context – and went on to state:
“…it is open to an employer to justify a dismissal by reference to facts not known to the employer at the time of the dismissal, but discovered subsequently, so long as those facts concern circumstances that were in existence when the decision was made…Whether the decision can be so justified will depend on all the circumstances.”
[59] The principle in Lane v Arrowcrest was unanimously endorsed by High Court in Byrne v Australian Airlines Ltd63 (Byrne) and has been applied consistently in decisions of the Commission. While the principle has generally been applied in relation to the validity of a reason for dismissal, it has been extended to other questions the Commission is required to determine in under s. 387 in deciding whether a dismissal is harsh, unjust or unreasonable.64 In our view the principle is equally applicable to the consideration of other foundational matters the Commission is required to determine under s. 385 of the Act, and related provisions, including s. 385(a) in relation to whether a person has been dismissed, within the meaning in s.
386. It would be counter intuitive for the Commission to prevent an employer or a person who asserts unfair dismissal, from relying on relevant facts, that establish the jurisdiction of the Commission to make a finding as to whether a dismissal is or is not unfair, simply because the other party did not know of the facts or had incorrectly analysed facts that were known at the relevant time.
[60] Just as it would be astonishing for the employer of an embezzling accountant to be prevented from relying on dishonesty discovered after a dismissal took effect, it would be equally astonishing if, for a person who was dismissed on the grounds of redundancy, there was a rule making it impermissible to rely on knowledge of the employer taking steps to place an advertisement for a similar position before or at the time the dismissal took effect, because that knowledge was subsequently acquired.
[61] From the cases dealing with the use in unfair dismissal proceedings of after acquired knowledge of facts in existence at the time of the dismissal, the following principles can be distilled:
1. The Commission is bound to determine, based on all relevant facts, whether a person making an application for an unfair dismissal remedy, has been unfairly dismissed within the meaning in s. 385 of the Act and related provisions, by reaching a state of satisfaction in relation to each of the following matters, consistent with the provisions of the Act defining those matters:
a) the person has been dismissed;65
b) the dismissal was harsh, unjust and unreasonable;66
c) the dismissal was not a consistent with the Small Business Fair Dismissal Code;67 and
d) the dismissal was not a case of genuine redundancy.68
2. In relation to the question of whether there was a valid reason for a dismissal posed by
s. 387(a) the Commission is not confined to the reason advanced by the employer but must determine whether a dismissal was for a valid reason by reference to all relevant facts.69 This principle also applies to other matters required to be considered under s. 387 of the Act70 and to matters in s. 385 and related provisions.
3. It is open to a person who has been dismissed to prosecute an application for an unfair dismissal remedy by reference to facts not known to the person at the time of the dismissal, and discovered after the dismissal, to the extent that the facts are relevant to any of the matters in s. 385 and related provisions, provided those facts concern circumstances that were in existence when the decision to dismiss the person was made.71
4. It is open to an employer to defend an application for an unfair dismissal remedy, by reference to facts not known to the employer at the time of the dismissal, and discovered after the dismissal, to the extent that the facts are relevant to any of the matters in s. 385 and related provisions, provided those facts concern circumstances that were in existence when the decision to dismiss the employee was made.72
5. An employer who has dismissed an employee, or a person who has been dismissed, may also rely on a correct analysis of facts concerning circumstances that were in existence at the time of the dismissal, but were incorrectly analysed, to respectively defend or prosecute an application for an unfair dismissal remedy.73
6. If facts relating to the dismissal are not clear, an unreasonable failure by the employer to establish those facts before dismissing an employee, or conversely, dishonest concealment of facts by the dismissed employee, is relevant to whether the dismissal was unfair.74
7. The Commission is bound to afford the parties procedural fairness in the hearing and determination of an unfair dismissal application, including in relation to evidence of facts not known to one or other of the parties at the time of the dismissal or facts which emerge during proceedings.75 Matters that may be relevant to whether procedural fairness is afforded include that the party whose interests will be adversely affected if the facts are accepted or rejected, has a reasonable opportunity to be heard, to cross- examine persons giving evidence seeking to establish facts and to call evidence to rebut or contradict evidence relevant to those facts.
[62] In the present case, the Commissioner could not have proceeded to consider whether the dismissal of the Respondent was unfair, without first finding that the Respondent was dismissed. The significance of this finding, and the need for it to be correct to found the Commission’s unfair dismissal jurisdiction, is a matter that supports the extension of the principle that the Commission may consider facts in existence at the time of the putative dismissal, regardless of whether they were known to one or other of the parties at that time, to the question of whether the person seeking an unfair dismissal remedy, was dismissed. Finally, it is often, but not always, the case that in circumstances where employment ends by an ostensible resignation following an altercation at work, the question of whether an employee has resigned employment or was dismissed, is inextricably linked to any subsequent consideration of whether the dismissal was unfair, by facts that are common to both questions. This is a further basis for the entire factual matrix, as it existed at the time of the putative dismissal, to be considered on both questions.”
Appeal by Gold Tiger Logistics Qld Pty Ltd v Campbell Re [2024] FWCFB 458 delivered 11 December 2024 per Asbury VP, Bell DP and O’Neill DP