Unfair dismissal and valid reason

An employee may be regarded as having been unfairly dismissed even though there may be a valid reason for the dismissal (as assessed by the Fair Work Commission in an unfair dismissal case) but it is rare.

“Was the dismissal harsh, unjust or unreasonable?

[47] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[48] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd 19 as follows:

“… It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[49] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 20

Valid reason – s.387(a)

[50] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 21 and should not be “capricious, fanciful, spiteful or prejudiced.”22 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.23

[51] There is no mandate for giving the ‘valid reason’ criterion any greater emphasis or weight than any of the other criteria in s 387. It is well settled that the statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give the 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.

[52] I am satisfied that Mr JL’s refusal to attend the workplace amounted to a refusal to comply with a lawful and reasonable direction and was in this case a valid reason for his dismissal.

[53] It is clear from what is set out above that Mr L does not dispute that he failed to comply with the ten directions that were given to him. He does however challenge the reasonableness or lawfulness of those directions. What he argues is that the direction to attend the office was given knowingly that he would and/or could not comply with such direction, and that he has a flexible working arrangement in place.

[54] I am satisfied that the directions given to him were both reasonable and lawful in the circumstances. First, it is reasonable for the AFP to seek to discuss with him what reasonable adjustments may be required for him to work safely. It is also reasonable for the AFP to request that he provide relevant and up to date medical evidence. Mr L’s refusal to do either of these things was unreasonable, as both a discussion with him and up to date medical evidence was necessary for the AFP to make a proper assessment as to what support or accommodation was needed to be provided to him.

[55] Further, it is clear that the AFP did provide seating arrangements consistent with Ms Bruce’s advice. Accordingly, and in the absence of any medical information to the contrary, there were no medical grounds for Mr L to refuse to attend the workplace.

[56] I accept that in the circumstances of this case, the AFP had a legitimate reason for requiring Mr L’s return to the office, which are set out in paragraph 40 above. The AFP had also made it clear that it would facilitate some working from home but not on a full time basis. All of these matters were made clear to Mr L, however he continued to refuse to comply with the direction he had been given.

[57] In all the circumstances, I find that AFP had a valid reason to dismiss Mr L and the reason was sound and defensible.”

JL v Australian Federal Police (2022) FWC 15 delivered 17 January 2022 per Dean DP