Unfair dismissal; opportunity to explain conduct or capacity

The Fair Work Act requires the Fair Work Commission, when determining whether a dismissal is “harsh, unjust or unreasonable (see sec 387), to take into account, inter alia, whether the person (ie the employee in an unfair dismissal case) “was given an opportunity to respond to any reason related to the capacity or conduct of the person”; in other words to have an opportunity of defending himself or herself.

The following extract from a Fair Work Commission decision in an unfair dismissal case explains how that test is approached.

“I take into account that the disciplinary process contemplated by the FW Act does not require any particular formality and is to be applied in a common sense way to ensure the employee has been treated fairly. 21

In the circumstances of this matter, rather than being provided a real opportunity to respond Ms Okoye was provided an opportunity in name only; one in which she was being summonsed to participate in an ambush of her employment if she didn’t do what the employer already knew she couldn’t do – provide a certificate of competency.”

Okoye v SACARE Supported Accommodation and Care Services (2020) FWC 704 delivered 12 February 2020 per Anderson DP