Unfair dismissal analysis for business

Under the Fair Work Act the approach taken by the Fair Work Commission when assessing whether a termination of employment constitutes an unfair dismissal is reasonably forensic and methodical, since the Act sets out the mandatory factors which the Commission must take into account. Here is an example in a passage of a decision of the Commission.

“Was the dismissal harsh, unjust or unreasonable?

Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

The Commission is required to consider each of these criteria, to the extent they are relevant to the factual circumstances before the Commission.37 In the decision of Nyrstar Hobart Pty Ltd v Peter Brain 38 (Nyrstar) the Full Bench stated:

“[23] Section 387 requires the Commission to approach the consideration of whether a dismissal was harsh, unjust or unreasonable in a particular way. It directs the Commission to take certain matters into account. It does not stipulate criteria that must be satisfied in order for a dismissal to be fair or unfair. Nor does it authorise the Commission to develop or apply its own criteria.

[24] In Esso Australia Pty Ltd v AMWU, CEPU and AWU, 39 the Full Bench stated:

‘[58] In our view the adoption of a decision rule or principle of the type proposed in Australia Post No.1 and Airport Fuel Services would be an inappropriate fetter on the exercise of what the legislature clearly intended would be a discretionary decision. As Bowen LJ observed in Gardner v Jay:

“When a tribunal is invested by Act of Parliament or by Rules with a discretion, without any indication in the Act or Rules of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view to indicating the particular grooves in which the discretion should run, for if the Act or the Rules do not fetter the discretion of the Judge why should the court so do.”

(Footnotes omitted)”

The Full Bench in Nyrstar went on to state that while the Act requires the Commission to take the matters listed at s.387 into account, they are not the subject of incumbency, they are not criteria. 40 These comments are apposite in this matter as on APS’s understanding Mr Richmond’s employment ceased by way of resignation, although not a view held by Mr Richmond or upheld by the Commission.

The matters to be taken into account under s.387(a) to (h) of the Act are considered below.”

Richmond v APS Group (Placements) Pty Ltd (2020) FWC 4710 delivered 8 September 2020 per Bull DP