These are the concluding remarks of a senior member of the Fair Work Commission when determining an unfair dismissal case and demonstrate the classic legal issues involved when doing so, in this case with the application being dismissed.
“Consideration
(a) Preliminary Matters
[39] I am satisfied that the Applicant is protected from unfair dismissal. The dismissal was
not a redundancy and the Respondent is not a small business such that the Small Business Fair
Dismissal Code does not apply. Further, the application was made within the time limits
prescribed by the Act. I am also satisfied that the Applicant was dismissed from her
employment.
[40] In determining if the Applicant was unfairly dismissed it is necessary to determine if
her dismissal was harsh, unjust or unreasonable. Section 387 of the Act sets out those matters
to be considered by the Commission.
[41] Section 387 of the Act states:
387 Criteria for considering harshness etc.
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In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable,
the FWC 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.”
(b) Valid Reason for the Dismissal and Severity of Misconduct (S.387(a) and (h))
[42] 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. However, the
Commission will not stand in the shoes of the employer and determine what the Commission
would do in the same position.
[43] In Sydney Trains v Gary Hilder11 (“Hilder”) the Full Bench summarised the wellestablished principles for determining such matters12:
“The principles applicable to the consideration required under s 387(a) are well
established, but they require reiteration here:
(1) A valid reason is one which is sound, defensible and well-founded, and not
capricious, fanciful, spiteful or prejudiced.
(2) When the reason for termination is based on the misconduct of the employee the
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Commission must, if it is in issue in the proceedings, determine whether the conduct
occurred and what it involved.
(3) A reason would be valid because the conduct occurred and it justified termination.
There would not be a valid reason for termination because the conduct did not occur or
it did occur but did not justify termination (because, for example, it involved a trivial
misdemeanour).
(4) For the purposes of s 387(a) it is not necessary to demonstrate misconduct
sufficiently serious to justify summary dismissal on the part of the employee in order to
demonstrate that there was a valid reason for the employee’s dismissal (although
established misconduct of this nature would undoubtedly be sufficient to constitute a
valid reason).
(5) Whether an employee’s conduct amounted to misconduct serious enough to give rise
to the right to summary dismissal under the terms of the employee’s contract of
employment is not relevant to the determination of whether there was a valid reason for
dismissal pursuant to s 387(a).
(6) The existence of a valid reason to dismiss is not assessed by reference to a legal right
to terminate a contract of employment.
(7) The criterion for a valid reason is not whether serious misconduct as defined in reg
1.07 has occurred, since reg 1.07 has no application to s 387(a).
(8) An assessment of the degree of seriousness of misconduct which is found to
constitute a valid reason for dismissal for the purposes of s 387(a) will be a relevant
matter under s 387(h). In that context the issue is whether dismissal was a proportionate
response to the conduct in question.
(9) Matters raised in mitigation of misconduct which has been found to have occurred
are not to be brought into account in relation to the specific consideration of valid reason
under s 387(a) but rather under s 387(h) as part of the overall consideration of whether
the dismissal is harsh, unjust or unreasonable.”
[44] As noted above under the heading “Background Facts”, I have found each of the
Allegations relied on by the Respondent did occur. The issue regarding valid reason in this
matter after finding that the conduct occurred, is whether the conduct of the Applicant justified
termination. That consideration arises as a relevant matter pursuant to s.387(h) of the Act.
[45] Taken as a whole, the four Allegations collectively justified the summary dismissal of
the Applicant. Allegations 1, 2 and 3, being necessarily collectively considered, themselves
justified the termination of the Applicant, constituting as they did conduct that could have an
impact on the very existence of the Respondent. I find the Applicant knowingly contravened
the DES Grant Agreement, the Claims Procedure and the Respondent’s code of conduct.
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[46] The Applicant’s cavalier use of the offer of the fuel card is particularly concerning. On
the evidence of Ms Cleworth, which I have preferred, the fuel card was used as a device to
distract the Participant at the time his signature was being sought. Similarly, the presentation of
the document for signature in a form where previously questioned hours were not visible was
also concerning.
[47] Apart from cavilling with whether Ms Cleworth had written the email to Ms Linnell on
6 July 2022, and pressing a further interpretation of the DES Outcome Guidelines,13 the
Applicant did not in her submissions dispute the essential facts of Allegations 1, 2 and 3.
[48] I find that there existed valid and justifiable reasons for the dismissal of the Applicant.
While there was negligible monetary gain to the Applicant, and I am concerned that for a breach
of substance that it was not reported to the department for some months, the gravity of the
conduct is not diminished.
(c) Procedural Fairness
[49] The issue of procedural fairness is a significant issue raised by the Applicant in her
submissions, however I do not accept her criticisms. While the letter of allegation of 5 July
2022, lacked detail of, for example, the Participant’s name, it is apparent from the detailed 25-
page transcript of the meeting of 8 July 2022, that the Applicant had no difficulty is
understanding, and responding to, the allegations being put to her. That may have been because
the minutes recorded the invitation to the meeting describing “…some of the material that we
have that we want to share with you today”.
[50] Otherwise, I formally note that the Respondent:
(a) Notified the Applicant of the reasons for dismissal (s.387(b));
(b) Gave her the opportunity to respond to any allegations (s.387(c)); and
(c) Allowed her to have a support person present at relevant times (s.387(d)).
[51] The matter did not involve any concerns about the Applicant’s performance and no
warnings had been issued in this regard (s.387(e)). Neither party submitted that the size of the
Respondent’s enterprise or its access to human resource management specialists or expertise
was likely to impact on the procedures followed in effecting the dismissal.
Conclusion
[52] I have made findings in relation to all matters specified in section 387 as relevant. I must
consider and give due weight to each as a fundamental element in determining whether the
termination was harsh, unjust or unreasonable and therefore an unfair dismissal.
[53] I do not find that the dismissal of the Applicant was in any way harsh, unjust or
unreasonable.
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[54] The Application is dismissed”
Johnson v AimBig Employment Pty Ltd T/A AimBig Employment (2023) FWC 382 delieverd 2 March 2023 per Cross DP