Unfair dismissal; the relevance of procedural fairness

Whether there is a valid reason for a dismissal of an employee is perhaps the most important issue in an unfair dismissal case. But there are others. For example, a dismissal may be found by the Fair Work Commission to be relevantly unfair even though there may be a valid reason for it, for example where there is a lack of procedural fairness.


Drawing on the above analysis, I find that there was a valid reason for Mr Chandan’s dismissal related to his conduct, that Mr Chandan was not notified of that reason prior to his dismissal nor was he given the opportunity to respond to that reason, that the absence of dedicated human resources management specialist/expertise is a relevant consideration, that there are no other relevant matters and that the remaining criteria in s.387 of the Act are either not relevant or neutral considerations in this case.

The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd 7 by McHugh and Gummow JJ as follows:

“…. It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

The existence of a valid reason for Mr Chandan’s dismissal in this case is far outweighed by the absence of any semblance of procedural fairness in the Respondent deciding to terminate Mr Chandan’s employment. The significance of the procedural flaws in this case, while perhaps explained by the absence of dedicated human resources management specialist/expertise are not in any way diminished by that absence. To have summarily dismissed Mr Chandan without advising him of the Respondent’s concerns and without providing him the opportunity to respond to those concerns and/or explain his actions makes his dismissal completely unreasonable. ………………………….”

Chandan v Language Smart Pty Ltd T/A Englishwise (2020) FWC 1057 delivered 26 February 2020 per Kovacic DP