Unfair dismissal and valid reason

In unfair dismissal cases, the legal issue of whether there was a valid reason for the dismissal is perhaps the most important determination to be made by the Fair Work Commission.

“In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 13 and should not be “capricious, fanciful, spiteful or prejudiced.”14 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.15

Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.16

“The question of whether the 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. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 17”

Re Zelman v Billboard Media (2020) FWC 5 delivered 2 January 2020 per Masson DP