What is the relevance in an unfair dismissal case of facts which are only discovered after the dismissal? Here is the answer.
“It is sometimes the case that a fact that was in existence at the time of a dismissal only comes to light at the hearing of a matter. A Full Bench appeal decision in the case of J. Dundovich and P&O Ports explained how the Commission is to deal with such circumstances as follows. 28
“ In her consideration of the circumstances in existence at the relevant time the Commissioner failed to have regard to a material consideration, that is, at the time of the decision to terminate Mr Dundovich’s employment he had a work related injury and was entitled to weekly payments of compensation pursuant to the AC Act. That this fact was not known to the employer at the time of the decision to terminate Mr Dundovich’s employment is not determinative. As the Full Bench in McLauchlan’s case observed, facts which existed at the time of dismissal but only come to light after the decision may render a termination of employment harsh, unjust or unreasonable.”
Consequently, the Commission is bound to determine this unfair dismissal remedy application based on the evidence in the hearing, provided that evidence concerns circumstances that were in existence when the decision to dismiss the employee was made.”
Extract from Gebremedhin v Inghams Enterprises Pty Ltd (2021) FWC 3988 delivered 19 July 2021 per Williams C