Unfair dismissal and natural justice principles

One of the factors which is considered when determining whether a dismissal is relevantly unfair by the Fair Work Commission is whether or not the employer provided the employee with a reasonable opportunity of responding to an employer’s preliminary finding that there was a valid reason for a termination of employment. This is how the Commission views that requirement in practice.

“Notification of the valid reason – Opportunity to respond to any reason related to capacity or conduct – ss.387 (b) and (c)

 

[37]    Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made,36 in explicit terms,37 and in plain and clear terms.38 In Crozier v Palazzo Corporation Pty Ltd39 a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following:

 

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

 

De La Rue v DPG Services Pty Ltd (2024) FWC 845 delivered 4 April 2024 per Clancy DP