As odd as it might at first appear, it is legitimate for the Fair Work Commission to have regard to evidence of an employee’s conduct for the purposes of determining an unfair dismissal case if the conduct justified the dismissal even if it only came to light for the employer after the termination of employment.
“Regarding the use of evidence obtained post-dismissal, in Chalk v Ventia Australia Pty Ltd, the Full Bench stated:
…Facts justifying dismissal, which existed at the time of the dismissal, should be considered
even if the employer was unaware of those facts and did not rely on them at the time of the
dismissal. Ultimately, the Commission is bound to determine, whether, on the evidence
provided, facts existed at the time of termination that justified the dismissal.244”
Lonnie v WA Council on Addictions Incorporated [2023] FWC 1681 delivered 17 July 2023 per Beaumont DP