The need for employers to take care when assessing whether to dismiss an employee are evident in an appeal in the Fair Work Commission in Parmalat Food Products Pty Ltd v Tran (2015) FWCFB 7475 delivered 6 November 2015 per Watson VP, Hamilton DP and Johns C in which the Full Bench has granted an employer leave to appeal against a decision of a Deputy President who, having heard an unfair dismissal case, held that he was satisfied that an employee had breached safety policies and practices but that “In all the circumstances, there were lesser punishments (than dismissal, my emphasis) open to the Respondent which would have been appropriate.”
The employer appealed and argued that the Commission had erred by getting the test wrong, with the Full Bench concluding that “It is arguable from these authorities that in conflating the test for valid reason with issues of proportionality the Deputy President’s decision is affected by appealable error. Further, it is arguable in expressing his conclusion as to an alternative form of disciplinary action the Deputy President failed to apply the words of the statute. As the decision under appeal raises issues of general application, including whether or not it is appropriate for the Commission to find that a valid reason does not exist for the reasons set out in the decision, we consider that it is in the public interest that we grant permission to appeal.”
What is this all about?
The employer appears to be arguing that the proper approach is for the Commission to first determine whether there is a valid reason for the dismissal which is the required first step under sec 387 of the Act. The argument appears to be that the Deputy President “conflated” the test to the disadvantage of the employer’s position by not clearly dealing with, and making findings of fact about the particular issues referred to in sec 387. We will need to see what the Full Bench does with the substance of the appeal in due course. This might be an important case. Stand by and stay tuned.