Unfair dismissal; process is everything; well almost

A dismissal may be found to be relevantly unfair by the Fair Work Commission if there is a meaningful defect in the process followed by the employer notwithstanding that the Commission may find that there was a valid reason for the dismissal.

In the following case, the Commission found that the employer’s finding of serious misconduct by the employee in the form of abusive and threatening conduct had been verified and was a valid reason for dismissal.

Nevertheless Commissioner Cambridge held that employer did not provide the worker with an opportunity to respond or provide an explanation for her behaviour during the incident and that.

“The (worker) committed an act of serious misconduct that warranted immediate dismissal. However, the employer’s move to immediately invoke dismissal meant that the (worker) was denied an opportunity to respond or provide some explanation that may have militated against dismissal. Hypothetically, what if the behaviour of the (worker) was caused by some unforeseen reaction to prescription medicine? Or what if the (worker) was experiencing severe emotional distress as a reaction to the unexpected death of a beloved pet?”

The Commission found that the dismissal involved a clear procedural deficiency in denying the worker an opportunity to respond or provide an explanation for her behaviour, on balance, it found that the dismissal was not harsh, unjust or unreasonable.

Amal Hanna v Home Care Assistance [2019] FWC 4637