Unfair dismissal and natural justice principles

The Fair Work Act requires the Fair Work Commission, in an unfair dismissal case, to take into account whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the person when determining whether a dismissal was relevantly unfair.

“The Applicant identified, correctly in my view, that an opportunity to respond is an opportunity proffered before the decision to dismiss an employee is made. 70 At a general level, the case law makes it plain that when it comes providing an opportunity to respond, the process does not require any degree of formality and that the requirement is to be applied in a common sense practical way in order to ensure that the employee is treated fairly.71 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.72”

Lucas v Alcoa of Australia Limited 2022) FWC 979 delivered 25 May 2022 per Beaumont DP