The ingredients of an unfair dismissal.
Putting aside jurisdictional issues for one moment, the legal bar which an applicant for an unfair dismissal remedy must overcome is whether the termination of the applicant’s employment was harsh, unjust or unreasonable; see sec 385, Fair Work Act 2009.
Sec 387 of the Act sets out the factors which the Fair Work Commission must take into account in determining that question, one of which is “whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees; sub-sec 387(a).
The issue of valid reason is often the most important consideration, although on occasions it is a neutral one. For example in the following case, the Fair Work Commission held that a dismissal was relevantly unfair because an employer had sought to terminate the applicant’s employment on the grounds of redundancy when it could have redeployed the applicant elsewhere within its operations. On that basis the dismissal was held to be unfair despite the issue of whether there was a valid reason for it being a “neutral” factor.
“Valid reason – s.387(a)
(a) The Respondent did not assert that the reason for the dismissal of the Applicant was related to her capacity or conduct. Accordingly there cannot have been, and there was not, a valid reason for the dismissal related to her capacity or conduct.
(b) In all the circumstances of this case I regard this element of s.387 as a neutral consideration in respect of whether the dismissal of the Applicant was harsh, unjust or unreasonable.”
Bleyerveen v Uniting Mission and Education (2019) delivered 9 August 2019 per Johns C