Unfair dismissal; FWC may justify on another ground

There is some authority for the proposition that the Fair Work Commission can dismiss an application for an unfair dismissal remedy for reasons quite different from the reason advanced by the employer at the time to validate the dismissal.

“But even if I had concluded that the respondent’s decision not to offer Mr Tindale casual work amounted to a dismissal, I would nevertheless have concluded that the dismissal was not unfair. Section 387 prescribes the matters that the Commission is required to take into account in considering whether a dismissal was unfair. These include whether there was a valid reason for dismissal related to the person’s capacity or conduct (s 387(a)). It is well-established that the Commission must decide for itself whether there was a valid reason for dismissal; an employer does not have to have invoked that reason.”

Tindale v DPG Services Pty Ltd (2022) FWC 2175 delivered 17 August 2022 per Colman DP