Unfair dismissal and conduct post dismissal

Although rarely relied upon by the Fair Work Commission there is legal authority for the proposition that an employee’s conduct post dismissal may be taken into account when determining whether there was a valid reason for dismissal if that conduct is sufficiently serious to warrant being relevant.

“Secondly, whilst it is well established that in certain circumstances post-dismissal conduct by an employee can constitute a valid reason for dismissal, not all conduct relevant to a former employment relationship can be so categorised. Commonly, the conduct is such that would have fundamentally struck at the heart of the employment relationship such that the relationship could not have continued had it been known at the time of dismissal. This necessarily requires the conduct to have occurred during the course of employment, that is prior to dismissal. In this matter, the conduct complained of by Allpet is post-dismissal conduct, not pre-dismissal conduct.”

Petersen v Kizuri Capital Pty Ltd, Maycorp Pty Ltd and Cricklewood Capital Pty Ltd T/A Allpet Products (202)) FWC 5332 delivered 20 October 2020 per Anderson DP