There is considerable case law in the Fair Work Commission to the effect that both employers and employees are entitled in unfair dismissal cases (and presumably too in consent arbitration general protections cases and in ordinary general protections cases heard by the Federal Court or the Federal Circuit) to produce evidence of facts and opinions which are only discovered after the dismissal of alleged prohibited conduct. Here is another case on the point, this time about opinion evidence in that context.
“Our conclusion is consistent with the approach taken in Jetstar, in which the Full Bench excluded expert medical evidence which was based on an assessment of the Respondent’s health some three to four months after her dismissal. We reject the Appellant’s submission that Jetstar was distinguishable on the basis that it concerned psychological injury as opposed to the present matter which concerns physical capacity. In our view the principle remains the same – the relevant evidence must be directed at the applicant’s state of health at the time of dismissal.
We wish to make it clear that this does not mean that expert medical evidence obtained after dismissal is automatically excluded. Such evidence will be relevant to the question of whether there is a valid reason for dismissal provided it is directed at the appellant’s state of health at the time of dismissal. For example, in circumstances where an applicant’s state of health is stable, a medical expert may express an opinion about the applicant’s state of health at the time of their dismissal, which may have occurred some time before they were assessed by the expert. The probative value of such evidence will depend, in part, on the nature of the applicant’s condition and the time between dismissal and assessment.
………………….It is important to appreciate that the object provides for a ‘fair go all round’ to be accorded to ‘both the employer and employee concerned’. The admission of a medical report obtained after dismissal (provided it relates to the employee’s capacity at the date of dismissal) is simply the analogue of an employer’s ability to rely on facts not known at the time of dismissal (but which existed at that time) in support of an argument that there was a valid reason for dismissal. There is no barrier to the admission of evidence about facts in existence at the time of dismissal, but only discovered by the employer after the dismissal occurred.
His Honour van Doussa J provides an illustration of such a circumstance in Lane v Arrowcrest Group P/L: 43
‘In the example given of the embezzling accountant, the circumstances as they existed at the date of dismissal were that embezzlement had occurred but by reason of the concealment and falsehood of the accountant that fact had not yet come to the knowledge of the employer. On a later review of the decision, after the embezzlement has come to light, the circumstances as they existed when the decision was made would include the embezzlement. In my opinion it is still open to an employer to justify a dismissal by reference to facts not known to the employer at the time of the dismissal, but discovered subsequently, so long as those facts concern circumstances in existence when the decision was made. Whether the decision can be so justified will depend on all the circumstances. A circumstance, likely to favour the decision to dismiss, would be that fraud or dishonesty of the employee had caused or contributed to the employer’s state of ignorance. A circumstance likely to weigh against the decision would be that the employer had failed to make reasonable inquiries which would have brought existing facts to its knowledge before the dismissal occurred.’
Just as an employer can rely on such acquired knowledge of facts in existence at the time of dismissal; so too can an applicant. Such an approach is entirely consistent with the objective of providing a ‘fair go all round’ to both the employer and employee concerned.”
Hyde v Serco Australia Pty Limited T/A Serco Australia Pty Limited (2018) FWCFB 3989 delivered 2 August 2018 per Ross J, Masson DP and Lee C