Unfair dismissal and the determining factors

One of the factors which the Fair Work Commission must consider when determining whether the termination of an employee was relevantly an unfair dismissal is whether the employee was provided an opportunity to respond to any of the3 reasons for the dismissal. This is not a mere formality though as is evident in the following passage from a recent unfair dismissal case.

“Was Mr Kabidi given an opportunity to respond to any valid reason related to his capacity or conduct? – Section 387(c)

Section 387(c) requires the Commission to take into account whether an employee was provided an opportunity to respond to any reason for their dismissal relating to their conduct or performance. An opportunity to respond is to be provided before a decision is made to terminate the employee’s employment. 186

The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 187 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.188

In Wadey v YMCA Canberra 189 Moore J stated the following principle about the right of an employee to appropriately defend allegations made by the employer:

“[T]he opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.”

And see Kabidi v Metro Trains Melbourne Pty Ltd – [2020] FWC 6941 – 23 December 2020 – Young DP