Unfair dismissal; the elements of a case

The Fair Work Act expressly requires the Fair Work Commission in an unfair dismissal case to “take into account” a number of matters when considering whether it is satisfied that a dismissal was harsh, unjust and unreasonable; which is the primary test for whether or not a dismissal was relevantly unfair; sec 387.

The first, and in a sense the most important statutory criteria, is whether there was a valid reason for the dismissal related to the person’s capacity or conduct.

Where the dismissal was based upon the employer’s view about an employee’s conduct (as opposed to capacity), there is a standard or primary principle which is applied by the Commission’s case law about how that issue is rationalised. In this extract from a recent case, it is explained in terms of both the substance and the evidentiary legal implications. It is a very important forensic issue which practitioners must understand.

To determine whether there was a valid reason for a dismissal relating to conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred, on the basis of the evidence before the Commission. The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct. Further, to constitute a valid reason for dismissal, the Commission must assess whether the conduct was of sufficient gravity or seriousness to justify dismissal as a sound, defensible or well-founded response. 15 In finding that there was a valid reason for dismissal, the Commission is not limited to the reason relied on by the employer.16

Mellios v Qantas Airways Limited (2020) FWC 2989 delivered 2 July 2020 per Asbury DP