This is a passage from a recent unfair dismissal case which deals with the importance of a fair and reasonable opportunity being afforded to an employee to respond to the reasons for a dismissal and to make submissions as to the personal implications for the employee of it in other words the obligation upon an employer to facilitate the employee having a meaningful opportunity of making submissions to the employer about both.
“[93] I have taken into account the matters specified at section 387(b) and (c). My finding that Mr Moiler was not notified of that reason, and Mr Moiler was not given an opportunity to respond to any reason related to his conduct weighs in favour of a conclusion that Mr Moiler’s dismissal was harsh, unjust or unreasonable. In assigning weight to these matters, I am satisfied that Mr Moiler was deprived of the possibility of a different outcome. Take Mr Moiler’s absence from work as an example. If the Respondent had put Mr Moiler on notice that it was considering terminating his employment in clear and explicit terms and then given Mr Moiler a real opportunity to respond before making any decision to terminate, it may have been possible that Mr Moiler would have been able to fully explain the difficulties that he had with communicating in this period, that he was unaware of the request that he contact Mr Ryan, and that he was unaware of the Facebook messenger calls from Mr Ryan. It is possible that the outcome may not have been dismissal if Mr Moiler had been afforded procedural fairness before his dismissal. The same can be said with respect to the allegations of verbal abuse towards Mr Brown, the unidentified employee, the other employees and the additional reasons referred to in the paragraph above. It is possible that the outcome may not have been dismissal if Mr Moiler had been given a real opportunity to respond to these allegations prior to his dismissal. It is possible that in responding to these allegations that the Respondent may have accepted Mr Moiler’s denial of these allegations, or taken the view that any such misconduct by Mr Moiler did not justify dismissal given the fact that he had not previously received a written warning for matters relating to his performance or conduct.”
Moiler v Cowra Meat Processors Pty Limited [2025] FWC 2793 delivered 18 September 2025 per Walkaden C