Unfair dismissal and procedural fairness

Despite there being a valid reason for the dismissal of an employee, it may nonetheless be rendered relevantly unfair to the Fair Work Commission in an unfair dismissal case by the employee having been denied procedural fairness.

“s.387(h) – Any other matters that the Commission considers relevant

[41] Procedural fairness is one factor that the Commission may take into consideration under s.387(h) of the Act when deciding if a dismissal has been harsh, unjust or unreasonable. It concerns the decision-making process followed or steps taken by a decision maker, rather than the actual decision itself. 26 Ordinarily, procedural fairness requires that an allegation be put to a person and that they be given an opportunity to answer it before a decision is made.27 Further, although s.387(d) of the Act does not require an employer to inform an employee that they may have a support person present, that matter may be relevant in all the circumstances and taken into account under s.387(h).28

[42] The Respondent went to great lengths in its evidence to suggest that whilst it sought to engage in a procedurally fair process to dismiss the Applicant, the Applicant chose not to engage in that process. In this regard, each of the Respondent’s witnesses sought to portray the Applicant’s dismissal on 7 April 2022 as a stand down, and gave evidence that the use of the words “finish up” on 7 April 2022 meant finish the shift that day, not finish the employment relationship. I completely reject this evidence. 29 It is wholly contrary to the words of the Termination Letter, and the contemporaneous objective documentary and other evidence that was unchallenged during the proceedings.30 Significantly, the Respondent’s witness statements were not prepared individually, but together, meaning I give the evidence contained in the Respondent’s witness statements, going to the issue of procedural fairness, no weight.31

[43] Having regard to the fact that the Applicant was dismissed on the spot shortly after he was found to be sleeping on duty, his dismissal evinces a total absence of procedural fairness. This leans toward a finding that the Applicant’s dismissal was harsh, unjust and unreasonable.

Was the Applicant’s dismissal unfair?

[44] I have made findings in relation to each of the criterion specified under s.387 of the Act (as relevant). I have also considered and given due weight to each of the criterion as a fundamental element in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable. 32

[45] In relation to the criterion set out under s.387 of the Act, I have found that:

(a) the Respondent had a valid reason to dismiss the Applicant from his employment;

(b) the criteria under ss. 387(c) and 387(h) weigh in favour of a finding that the Applicant’s dismissal was harsh, unjust and unreasonable; and

(c) other relevant criterion are neutral considerations.

[46] In view of the foregoing findings and conclusions, I find that the Applicant’s dismissal was unfair (i.e. harsh, unjust and unreasonable within the ordinary meaning of those terms).


[47] The Applicant seeks reinstatement, or in the alternative, compensation for lost earnings up to the statutory limit prescribed by s.391 of the Act.

[48] I am satisfied that reinstatement of the Applicant to the Respondent’s employ is inappropriate. The Applicant has denied that he was asleep on duty on 7 April 2022. Despite these denials, I have found that he was asleep. The Applicant has shown no contrition or remorse for his conduct. There is clear animosity between the Applicant and the Respondent’s management. Had the Respondent effected the Applicant’s dismissal in a procedurally fair manner, it is unlikely that I would have found his dismissal unfair. The issue of remedy therefore turns to whether compensation should be awarded, and if so, its quantum.

[49] In the facts and circumstances of this case, I consider that an award of compensation to the Applicant to be an appropriate remedy for his unfair dismissal.

[50] Section 392(2) of the Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement:

“392 Remedy—compensation

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant”.

[51] Any amount determined under s.392(2) is to be reduced by relevant payments (excluding leave entitlements) made to the employee upon termination (in this case, 2 weeks’ notice was paid to the Applicant), and may be further reduced (including to nil) if the employee’s misconduct is found to have contributed to an employer’s decision to dismiss the employee (s.392(3)). An award of compensation is not to include any amount for shock, humiliation, distress or other analogous hurt, caused to the employee as a result of the manner of their dismissal (s.392(4)).

Calculation of compensation

[52] Evidence was not tendered during the hearing by the Applicant in relation to the matters specified under s.392(d) and (e) of the Act. Nor do I have evidence from the Respondent in relation to the total amount of remuneration specified by s.392(6) of the Act. The matter will therefore be programmed (via further directions) to enable the parties the opportunity to engage with these matters by way of evidence and written submissions prior to any order for compensation being made.”

Steed v Active Crane Hire Pty Ltd (2023) FWC 15 delivered 25 January 2023 per Boyce DP