Unfair dismissal and the natural justice rule

Sec 387 of the Fair Work Act requires the Fair Work Commission, when determining an unfair dismissal case, to consider a number of express statutory factors including “(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person”. Lawyers refer to this as the “natural justice” requirement and here it is explained in a passage from a case.

Section 387(c) Opportunity to respond

In Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print (2000) 98 IR 137 a Full Bench of the Commission held:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG (3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.  38

In Wadey v YMCA Canberra [1996] IRCA 568 Moore J provided 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.” 39

[108] Relevantly, Gaudron and Gummow JJ in Minister for Immigration & Multicultural Affairs v Bhardwaj (Bhardwaj) [2002] HCA 11 held:

“Procedural fairness, which is one aspect of the rules of natural justice, requires that a person who may be affected by a decision be informed of the case against him or her and that he or she be given an opportunity to answer it. The opportunity to answer must be a reasonable opportunity. Thus, a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness.” 40

(My emphasis)”

MacDonald v Whitehaven Coal Mining Ltd (2021) FWC 838 delivered 24 March 2021 per Riordan C