This passage from a recent unfair dismissal case in the Fair Work Commission deals with the legal principles which apply to the dismissal of an employee for serious misconduct by a small business employer.
“Summary dismissal
[45] In Narong Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A
Banana Tree Cafe Deputy President Bartel said:
“[60] At the outset it is appropriate to note that unlike a consideration of the dismissal
of an employee of a business that is not a small business employer, the function of FWA
is not to determine on the evidence whether there was a valid reason for dismissal. That
is, the exercise in the present matter does not involve a finding on the evidence as to
whether the applicant did or did not steal the money. The application of the Small
Business Fair Dismissal Code involves a determination as to whether there were
reasonable grounds on which the respondent reached the view that the applicant’s
conduct was serious enough to justify immediate dismissal. As such, the determination
is to be based on the knowledge available to the employer at the time of the dismissal,
and necessarily involves an assessment of the reasonableness of the steps taken by the
employer to gather relevant information on which the decision to dismiss was based.”
[46] As such, the Commission does not have to make a finding, on the evidence, whether the
conduct occurred but needs to find whether the employer had a reasonable belief that the
conduct of the employee was serious enough to warrant immediate dismissal.5
It is not
necessary for the Commission to determine whether the employer was correct in the belief that
it held.6
[47] As to whether a belief is held on reasonable grounds in Harley v Rosecrest Asset Pty Ltd
T/A Can Do International7
Deputy President McCarthy said:
“[8] For an employer to believe on reasonable grounds that the employee’s conduct is
sufficiently serious to justify immediate dismissal, it is firstly necessary for the employer
to establish that the employer did in fact hold the belief that as a matter of fact that (i)
the conduct was by the employee; (ii) the conduct was serious; and (iii) that the conduct
justified immediate dismissal. This is to be contrasted to the provisions of s.387(a) where
FWA, in determining whether there was a valid reason for the dismissal, must find
whether the conduct in fact occurred.
[9] Secondly, it is necessary for the employer to establish that there are reasonable
grounds for the employer holding the belief. It is thus necessary for the employer to
[2023] FWC 2632
11
establish a basis for the belief held which is reasonable. In this regard it would usually
be necessary for the employer to establish what inquires or investigations were made to
support a basis for holding the belief. It would also ordinarily be expected that the belief
held be put to the employee, even though the grounds for holding it may not be. Failure
to make sufficient inquiries or to put the accusation to the employee in many
circumstances might lead to a view that there were no reasonable grounds for the belief
to be held.”
[48] In summary, for an employer to believe on reasonable grounds that the conduct of the
employee was serious enough to justify immediate dismissal, the employer must establish that
they did in fact hold the belief that:
- the conduct was by the employee,
- the conduct was serious, and
- the conduct justified immediate dismissal.
[49] The employer must also establish that they had reasonable grounds to hold the belief,
which could be established by providing evidence of inquiries or investigations the employer
undertook to establish their belief.”
Westrip v Madinah Wheels & Tyre Pty Ltd [2023] FWC 2632 delivered 11 October 2023 per Matheson C