In an unfair dismissal case, the Fair Work Commission will, all things being equal, be required if it is satisfied that it has jurisdiction to determine whether in all the circumstances the dismissal was “harsh, unjust or unreasonable”.
Sec 387 of the Fair Work Act requires the Commission, when considering this issue to take into account a number if mandatory considerations, including whether the dismissed employee was given an opportunity to respond to any reason related to his or her capacity or conduct;-sec 387(c).
One member of the Commission, who in my opinion from having read his judgments for years is a bit of a softy, appears to believe that if the employer ignores this step it must mean that there has been am material irregularity in process and that the dismissal is relevantly unfair even where there is a valid reason for the dismissal and no explanation would have altered the events.
“It is irrelevant whether the applicant may have been able to provide explanation or other responses which may have persuaded Mr Bennett to decide on a course of action other than dismissal. Importantly, the applicant was plainly denied an opportunity to advance any explanation, or offer any defence, or provide other factors which may have had some influence on Mr Bennett’s decision to dismiss……….……..
However, notwithstanding the valid reason for the dismissal of the applicant, he was not provided with an opportunity to provide explanation or offer response in respect to all of the matters which, in combination, represented the reason for his dismissal. The applicant was denied procedural fairness when he was not given any opportunity to provide explanation, or offer a defence, or provide other potentially mitigating information, before Mr Bennett took the decision to dismiss him.
The particular procedure that the employer adopted when it decided to invoke the dismissal of the applicant without first hearing from him about all relevant aspects of his employment inadequacies amounted to a denial of natural justice. Strangely, this absence of a correct procedure was inconsistent with the extensive, detailed and somewhat lenient disciplinary processes which led to the applicant being issued with three final written warnings during the course of the period of his employment.
In summary, the dismissal of the applicant was for valid reason involving established performance and conduct inadequacies. However, the dismissal was implemented by way of an unreasonable and unjust process. The applicant was denied procedural fairness but the employer did have valid reason to dismiss him. Consequently, when these various factors have been carefully evaluated and balanced, the dismissal of the applicant has been found to have been unreasonable.
Therefore, the applicant’s claim for unfair dismissal remedy has been established.”
The Commissioner did not offer any authority for this proposition which in my opinion is at odds with a long line of cases to the effect that a breach of procedural fairness will not render an otherwise reasonable decision relevantly unfair if the employer can demonstrate that compliance with required procedural fairness would have made no material difference to the employer’s decision.
In what might reasonably be considered having a bob each way though, the Commissioner went on to discount the employee’s award of compensation on the basis that;
“There was significant prospect that the employment of the applicant would not have continued for any significant period of time. As previously mentioned, the employment of the applicant was tenuous, he had been issued with three final written warnings, and in many respects his general conduct and approach to his work was unsuitable for a teaching position.”
Mmmmmm
Bigg v Nortec Employment & Training (2016) FWC 8163 delivered 22 November 2016 per Cambridge C