Unfair dismissal; opportunity to defend

One of the matters which the Fair Work Commission is obliged to take into account  when determining whether the termination of an employee’s employment was relevantly unfair is whether the employee was notified of the reason for the potential dismissal and afforded an opportunity to respond to any reason related to the capacity or conduct of the person; see sub-secs 387(b) and (c); Fair Work Act 2009.

The Fair Work Commission takes a practical approach to this requirement as is evident from this extract from a recent decision.

“s.387 (b) – (c) – Notification of the reason for dismissal and opportunity to respond

Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made, 156 in explicit terms,157 and in plain and clear terms.158 This is an element of that which may be described as procedural fairness in order that an employee may respond to the reason. Procedural fairness requires that an employee be notified of the reason for the dismissal before any decision is taken to terminate employment in order to provide them with an opportunity to respond to the reason identified. Section 387(b) and (c) would have little practical effect if it was sufficient to notify an employee and give them an opportunity to respond after a decision had been taken to terminate employment.159 An employee protected from unfair dismissal should also be given an opportunity to respond to any reason for dismissal relating to the employee’s conduct or capacity.

Just as the question to be addressed by s.387(a) of the Act is whether there was a valid reason for the Applicant’s dismissal, assessing whether notification and the opportunity to respond involves consideration of the valid reason as identified under s.387(a). As is evident from my earlier discussion, only part of the conduct (albeit a significant part) founding the valid reason for the Applicant’s dismissal formed the conduct on which Qantas relied to justify the dismissal with effect on 15 March 2019. Notification of the valid reason and an opportunity to respond needs to be assessed in that context.

The Applicant submits that as the First Allegation was not correctly put to him, he was not notified of that reason or given an opportunity to respond. 160 This is strictly speaking correct.

An opportunity to respond to a reason for dismissal as evident from the above, requires the employee be made aware of allegations concerning the employee’s conduct so that the employee can respond to them and is given an opportunity to defend themselves or to put matters by way of mitigation.

…………………………………Apart from these matters there is no real issue that the Applicant was both notified of the conduct the subject of the Second Allegation which forms part of the valid reason I have found and given an opportunity to respond. Weighing all these matters, whilst the erroneous dates as to the First Allegation is unfortunate, I consider that in substance the Applicant was notified of the valid reason and his capacity to respond, given his denial and his continued denial in the proceedings before me, was not affected or compromised by the erroneous date of the First Allegation. He was given an opportunity to respond to the valid reason. In the circumstances these two matters (notification and opportunity to respond) weigh against a conclusion that the Applicant’s dismissal was unfair.”

Sikalias v Qantas Airways Limited (2020) FWC 1830 delivered 7 April 2020 per Gostencnik DP