Unfair dismissal cases; performance in and capacity for the job

How does the Fair Work Commission approach the issue in an unfair dismissal case of whether there was a valid reason for the termination of an employee’s employment based upon performance or capacity to perform a role? Here is part of the answer.

“Valid in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly.22

It is also clear from the authorities that the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts before the Commission. That is, it is not enough for an employer to rely upon its reasonable belief that the termination was for a valid reason.23 Equally, facts justifying dismissal, which existed at the time of the termination, should be considered, even if the employer was unaware of those facts and did not rely on them at the time of dismissal.24

A passage from Yagnik v 1st Impressions Education Group Pty Ltd T/A 1st Impressions Early Learning Centre – [2021] FWC 1927 – 28 May 2021 – Hampton C