Unfair dismissal; dismissal can be fair for reasons other than given

As surprising as it seems, the Fair Work Commission can uphold the validity of an employee’s dismissal for reasons other than those acted upon by the employer.

“In considering whether he was satisfied the dismissal of the Appellant was harsh, unjust or unreasonable, the Commissioner was required to take into account, inter alia, whether there was a valid reason for the dismissal related to the Appellant’s capacity or conduct (including its effect on the safety and welfare of other employees). 34 The assessment of whether there was a valid reason for the dismissal involves, amongst other things, determining whether the reason related to a person’s capacity or conduct or both. In this context “capacity”, as used in s.387(a) of the Act, means the employee’s ability to do the work he or she is employed to do.35 A capacity related reason for dismissal might be concerned with an employee’s performance, the employee’s physical capacity to perform the work, the loss of a qualification or licence necessary to perform the work, or an inability to perform the inherent requirements of the job because of some injury, illness or other disability.

The reason given by the Respondent for the Appellant’s dismissal was set out in the letter of termination, which was said to be “your inability to perform the inherent requirements of your duties and the fact that your absences aggregated for that period cannot be viewed as a short-term absence”. 36 On its face the reason for the dismissal was one relating to the Appellant’s capacity not his conduct. That the reason for dismissal given by the Respondent related to the Appellant’s capacity is further underscored by the paragraph in the letter of termination which immediately follows the passage just quoted and which provides as follows:

“The circumstances of your termination will not preclude you from applying for a position here should one be open in the future subject to our selection criteria and your personal health being at a stage where a medical certificate states that you have recovered fully to the point where you have capacity to perform full-time work on an ongoing basis”. 37

It is evident from a reading of the Decision that the Commissioner determined that there were valid reasons for the dismissal relating to the Appellant’s conduct. In our view both valid reasons identified at [170]-[171] of the Decision relate to the Appellant’s conduct. This reading is supported by the Commissioner’s discussion of conduct as a valid reason for dismissal at [159] – [160] of the Decision.

The question the Commissioner had to address is whether there was a valid reason for the Appellant’s dismissal. That reason need not be the reason advanced or given by the Respondent. (my emphasis)

Although we do not accept the Respondent’s contention that the letter of termination also proffered conduct as a reason for dismissal, we accept that on the evidence it was open to the Commissioner to conclude that the reasons he identified were reasons related to the Appellant’s conduct and that each was a valid reason. As the Respondent has pointed out in its submissions, the Commissioner raised the issue of late attendance as a conduct issue 38 and he set out in the Decision issues concerning the Appellant’s late attendances as a conduct issue39 at [20], [23], [24], [27], [33] and [36].

It is correct as the Appellant has contended that the Commissioner did not engage with the reason given by the Respondent in its letter of termination, namely, that dismissal was because the Appellant could not fulfil the inherent requirements of the position in which he was employed. However, it does not follow that the Commissioner was in error. Even if the Commissioner had concluded that the reason given by the Respondent was not a valid reason, there were other reasons identified by the Commissioner as valid reasons for the Appellant’s dismissal relating to his conduct. Therefore the position arrived at by the Commissioner, as concerns finding a valid reason, is the same.

We also reject the Appellant’s contention that the conduct reasons found by the Commissioner did not rise to the level of a valid reason for dismissal. It was not in contention that the Appellant was regularly and persistently absent or late for work and that this occurred over a significant period immediately preceding the dismissal. Furthermore, the factual findings made by the Commissioner at [142] – [146] of the Decision are not challenged on appeal. Given this, the task for the Commissioner was to assess whether the valid reasons he identified as reasons related to conduct were sound, defensible or well founded. This involves an evaluative judgement and as we have already observed it was a judgement which was open to the Commissioner on the evidence.

Read fairly, as a whole, the Commissioner’s Decision discloses a finding that the Appellant engaged in the relevant conduct (lateness and irregular attendance) and that in the circumstances (length of period over which the conduct persisted and the impact on the Respondent) the conduct justified dismissal (in the sense that the dismissal for those reasons was a valid reason). As we have said, there was evidence to support this conclusion and there is no basis on which it would be proper to interfere with the conclusion.

We are therefore not persuaded that the Commissioner erred in the manner suggested by the Appellant. This ground of appeal fails.

However that the Commissioner determined the existence of one or more valid reasons for dismissal which were different to those upon which the Respondent had at the time of the dismissal relied is relevant to how the Commissioner approached the task of assessing the other matters that he was required to take into account under s.387 of the Act.”

Reseigh v Stegbar Pty Ltd (2020) FWCFB delivered 17 February 2020 per Gostencnik DP, Millhouse DP and Bissett C