Unfair dismissal and post employment conduct

The conduct of an employee after his or her employment is terminated will very rarely be a relevant factor in an unfair dismissal case.

This is not the same question as considered in Shepherd above, which is concerned with discovery post termination of conduct that had already occurred. It is concerning new conduct that, even if breaching the contract of employment, had not yet come into existence at the time of termination. While post-employment conduct can be relevant in determining credibility of a party and in considering the appropriate remedy, it should not be considered in establishing a reason for dismissal. 94 It was not a circumstance that was “in existence” when the decision to dismiss the Applicants was made and occurred after the termination of the employment relationship.95”

Robinson and another v Emprja Pty Ltd ATF The Darrouzet Property Trust T/A Abell Point Marina (2020) FWC 6525 delivered 3 December 2020 per Lake DP