Under the Fair Work Act, the Fair Work Commission is required in an unfair dismissal case to consider whether the employee “was given an opportunity to respond to any reason related to the capacity or conduct” of the employee. This is often referred to as the natural justice rule or procedural fairness rule.
It is no answer by an employer to assert that it was not required to do this because it would not have mattered what the employee had to say about the matter.
“This was a material failure of procedural fairness on the part of the Casino given that the alleged untruthfulness formed a key element of its reasons for dismissal, including summary dismissal rather than dismissal on notice.
I do not accept the Casino’s submission that this denial of procedural fairness is mitigated by the fact that whatever explanation was given would not have altered its assessment of untruthfulness. As is apparent from my own consideration of the inconsistencies, there is a scale to be applied to inconsistent employee responses – not all are lies. Without being exhaustive, that scale ranges from an employee making knowingly false statements (lies), to making misleading or reckless statements, to making statements in good faith that are in fact incorrect (innocent errors), to making statements containing no error or inconsistency.
The failure to enable Mr Liakimis to respond to this issue, let alone respond in advance of a decision to dismiss, meant that the employer provided no scope for these alternate conclusions to be considered or drawn. That was unfair.
Whilst recognising that the alleged untruthfulness was only one of a number of reasons for dismissal, and that an opportunity to explain was provided with respect to those other matters, I nonetheless conclude that this partial but material denial of procedural fairness is a factor that weighs in favour of a finding of unfair dismissal.”
Liakimis v SkyCity Adelaide Pty Ltd T/A Adelaide Casino (2021) FWC 1627 delivered 8 April 2021 per Anderson DP