The following passage from a Fair Work Commission judgement reveals that an employer’s failure to discharge its statutory obligations to an employee, for example by failing to pay out accrued or NES entitlements in full, or by unlawfully purporting to deduct monies from the appropriate final pay is an element which may be taken into account by the Commission in determining whether a dismissal is relevantly unfair.
“I also consider, pursuant to s. 387(h) that there are other matters relevant to consideration of whether Mr Maris’ dismissal was unfair. The manner in which Mr Maris’ entitlement to notice on termination of his employment was dealt with by ATS left much to be desired. While an unfair dismissal application is not an appropriate vehicle to deal with failure to comply with legislative entitlements to notice or to pay some amount to which the employee was legally entitled on termination of employment, in my view such a failure goes to fairness and is a matter that can be taken into account in an overall assessment of whether a dismissal was unfair.”
Maris v Australian Telecommunications Solutions (2016) FWC 898 delivered 6 May 2016 per Asbury DP
See also Hain v Ace Recycling PTY LTD (2016) FWC 1690 delivered 16 May 2016 per Asbury DP; “While an unfair dismissal application is not an appropriate vehicle to deal with failure to comply with legislative entitlements with respect to notice or payment in lieu, or claims for payment of amounts to which the employee was legally entitled, such a failure goes to fairness and is a matter that can be taken into account in an overall assessment of whether a dismissal was unfair.”