How unfair dismissal cases are decided

The following extract from a recent decision of the Fair Work Commission in an unfair dismissal case is an excellent example of how the Commission goes about weighing up the circumstances in which, despite there being a valid reason for a dismissal, it may (or as in this case may not) nonetheless be regarded as harsh, unjust and unreasonable.

“Valid reason – s.387(a)

[24] Where, as here, a valid reason for dismissal is said to relate to conduct the Commission must find that the conduct occurred and that the conduct justified dismissal. The essence of a valid reason is that the reason is a sound, defensible or well-founded reason – one that is not capricious, fanciful, spiteful or prejudiced. 24 Whether conduct which founds a valid reason occurred is to be determined based on the evidence in the proceedings assessed on the balance of probabilities taking into account the gravity or seriousness of the allegations.25 The test is not whether the employer, after a sufficient investigation, had a reasonably held belief that the conduct occurred.26

[25] As set out above, in a letter dated 5 August 2020 the Applicant was dismissed from his employment with the Respondent with immediate effect. The termination letter set out several allegations which were said to have been substantiated. The letter stated that the conduct was in breach of the Respondent’s Diversity and Workplace Behaviour Policy and Workplace Complaint Resolution Procedure (now known as the Complaint and Compliance Policy) and constituted serious misconduct warranting summary dismissal.

[26] The Respondent contends that each of the allegations in the letter of termination constitute a valid reason in breach of the Respondent’s express directions and policies. 27 It submits that the Applicant’s continued failings despite training, warnings, retraining, apologies and repeated promises on the part of the Applicant to improve mean that the gravity of each subsequent breach was ever more significant in establishing a valid reason.28

[27] While the Applicant advances a markedly disparate account of each incident, he ultimately concedes that his conduct may be sufficient to ground a finding that there was a valid reason for his dismissal. 29 Nevertheless, the Applicant contends that the dismissal was harsh because of its effect on him, unjust because he was treated unfairly and dismissed capriciously, and unreasonable because of a failure by the Respondent to properly address his dysfunction.30

The Applicant was aware of the Diversity and Workplace Behaviour Policy and Workplace Complaint Resolution Procedure

[28] The Applicant agreed that he was familiar with the Diversity and Workplace Behaviour Policy and Workplace Complaint Resolution Procedure and had received training in relation to them as part of the outcome of written warnings. 31 There is little doubt that the Applicant was aware of, received training in, and knew that he had to abide by the Diversity and Workplace Behaviour Policy and Workplace Complaint Resolution Procedure, and I so find.

………………………………………………..Conclusion as to valid reason

[56] Taken together the conduct found as to the three allegations provide a sound, defensible and well-founded reason for dismissal. The Applicant accepted during final submissions that this is so. 100 The conduct in which the Applicant engaged on 17 and 19 December 2019 and 17 July 2020 in my view provided a valid reason that justified his dismissal. The conduct of the Applicant was unacceptable and in respect of two of the three instances breached the Respondent’s Diversity and Workplace Behaviour Policy and Workplace Complaint Resolution Procedure. Each incident was inappropriate workplace conduct and was disrespectful. I also find that Mr Tsartas’ conduct has negatively affected Ms Neophytou. Indeed, the Applicant concedes that his conduct towards Ms Neophytou was distressing, unyielding and domineering.101 I also find that having been warned about inappropriate conduct at work in the months and years leading to his dismissal, the Applicant was well aware that conduct of the kind in which he engaged during the three incidents on 17 and 19 December 2019 and 17 July 2020 was inappropriate and would not be tolerated by the Respondent. The Applicant acknowledges that he was counselled about his conduct and attempts were made by Ms Neophytou and others to correct his behaviour.102 It follows that there was a valid reason for the Applicant’s dismissal related to his conduct. That there is a valid reason for the dismissal weighs against a conclusion that the dismissal was unfair.

 

 

Any other matters that the Commission considers relevant – s.387(h).

[69] The Applicant raises the following circumstances which he says render the dismissal harsh and unjust:

  • his long length of service of 20 years;
  • the size of the Respondent and resources available to it; 123and
  • the financial effect the dismissal has had on him. 124

[70] The Applicant sought also to advance a case that his dismissal was harsh because the methods adopted by the Respondent in addressing his conduct were punitive and lacking in sympathy and insight. 125 It was suggested that an alternative approach available to the Respondent was to engage an independent mediator, to ask the Applicant to reflect or to put the Applicant thought some form of sensitivity training.126 Respectfully, the Applicant had been counselled and warned, he had apologised for some of his past conduct and undertook to improve. He knew that the conduct of the kind about which he had been warned and counselled was inappropriate and unacceptable. But conduct of that kind was repeated. That the Respondent tolerated the conduct for as long as it did, speaks, as the Applicant’s representative so aptly described, to the Respondent’s persistence in bring about changed and improved behaviour in the Applicant “out of a misplace sense of compassion”.

[71] The Respondent contends that the Applicant’s length of service and the potential impact his dismissal may have on his future career prospects must be tempered against the fact that he is a highly trained and qualified chemist and analyst. 127 As to the Applicant’s submissions that it was open to the Respondent to employ a less punitive approach to addressing misconduct, the Respondent says that various approaches were employed and ultimately none were successful.128 Given the Applicant’s history of warnings and counselling, I agree.

[72] The Applicant’s age, his length of service, and the financial impact of losing his job are all matters which are to be weighed in the balance in assessing whether the dismissal was harsh, unjust or unreasonable. Specifically, these matters tend to be relevant in assessing whether the dismissal was harsh. These matters are however, to be balanced against the conduct in which I have found the Applicant has engaged viewed against the backdrop of his disciplinary and counselling history. I am satisfied the conduct that I have found the Applicant to have engaged in is serious and justified the dismissal. Though it is doubtless the case that the matters set out above will have some harsh impact on the Applicant they do not weigh so heavily when account is taken of the valid reason and the other matters that either weigh against a conclusion that the dismissal was unfair or are neutral, as to militate against a conclusion that the dismissal was not harsh. The Applicant is guilty of the conduct and so the dismissal was not unjust. Taken together the conduct was serious misconduct having regard to the conduct itself viewed in the context of his disciplinary record. Nor was dismissal disproportionate or otherwise unreasonable considering the conduct and the other circumstances that I am required to take into account, and which I have earlier discussed. The dismissal was not unreasonable.

Conclusion

[73] For the reasons set out above the dismissal of the Applicant was not harsh, unjust or unreasonable. It follows that it was not unfair.

[74] The application for unfair dismissal remedy is dismissed.”

Tsartas v CSL Limited – [2021] FWC 531 – 25 February 2021 – Gostencnik DP