Unfair dismissal and facts discovered later

This is what the Fair Work Commission’s unfair dismisal benchbook says about the potential relevance of facts discovered after a termnation of employment.

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 dismissal.290

Facts which existed at the time of the dismissal, but came to light after the dismissal may:

  • justify the dismissal when it would otherwise be harsh, unjust or unreasonable, or
  • render the dismissal harsh, unjust or

Ultimately, the Commission is bound to determine whether, on the evidence provided, facts existed at the time of termination that justified the dismissal.292

The reason for the termination need not be that which was given by the employer. It can be any reason underpinned by the evidence provided to the Commission.293 If the employer seeks to rely on a reason for dismissal other than the reason given or relied upon at the time of the dismissal ‘they will have to contend with the consequences of not giving the employee an opportunity to respond to such reason’.