Unfair dismissal and valid reason

It is not the only consideration, but perhaps the most important when the Fair Work Commission determines whether the termination of employment of an employee constitutes an unfair dismissal is whether there was a valid reason for it. This is how the Commission approaches a resolution of the issue.

“General principles

[72] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”, and should not be “capricious, fanciful, spiteful or prejudiced”.71 Further, the Commission will not stand in the shoes of an employer and determine what the Commission would do if it was in the position of the employer.72

[73] There is no mandate for giving the ‘valid reason’ criterion any greater emphasis or weight than any of the other criteria in s.387. That said, relevant weight is a matter for the relevant decision-maker.

[74] It is well settled that a statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give a matter(s) weight as a fundamental element in the decision making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable.73 However, as Kitto J noted in Rathborne v Abel74:

“In the third place, plainly the provision that the listed matters are to be regarded does not imply that nothing else may be regarded. So this Court said in Owen v. Woolworths Properties Ltd (1956) 96 CLR 154, at 160; and indeed to hold otherwise would be to alter and not to construe the words of parliament.

Finally, to require that regard be had to a particular matter in making a discretionary judgment is not to require that that matter shall be allowed an actual influence upon the ultimate result. The matter is to be considered for such bearing as it may have upon the question to be decided, and it is to be allowed such weight (if any) as the tribunal thinks it ought to be given; but if the tribunal thinks it ought to have no weight, then no weight is required to be given to it: cf. Beresford v. Ward [1961] YR 632, at 634”.75

(my emphasis)

[75] Where a dismissal relates to an employee’s conduct, the reason for dismissal might be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur, or it did occur, but did not justify termination.76 The question of whether alleged conduct took place, and what it involved, is to be determined by the Commission on the basis of the evidence in the proceedings before it (on the balance of probabilities).77

[76] Further, to constitute a valid reason for dismissal, the Commission must assess whether the conduct was of sufficient gravity or seriousness such as to justify dismissal as a sound, defensible or well-founded response to the conduct. In finding that there was a valid reason for dismissal, the Commission is not limited to the reason relied on by the employer.78

[77] As to an employer’s workplace investigation, it has been observed that employers are not required to have the investigative skills of police or legal investigators, but are expected to take reasonable steps to investigate allegations, and give employees an opportunity to respond. Further, the Commission is required to be satisfied that the conduct occurred (i.e. it is not a question of an employer’s reasonable belief).79

[78] Where the conduct in question concerns fighting, the attitude of the Commission (generally) will tend to be that, in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable. The extenuating circumstances may, and often do, concern the circumstances in which a fight occurred, as well as other considerations, such as the length of service of the employee, including their work record, and whether he or she was in a supervisory position. As to the circumstances of a fight, relevant considerations include whether the dismissed employee was provoked, and whether he or she was acting in self-defence.80

Newton v Toll Transport Pty Ltd – [2020] FWC 5960 – 25 November 2020 – Boyce DP