Unfair dismissal; the relevance of valid reason

Under the Fair Work Act, the Fair Work Commission when dealing with an unfair dismissal case is required to take into account a number of express statutory criteria, perhaps the most important of which is whether there was a valid reason for the dismissal. How that test sits with the other factors in the Act is evident in this passage from a recent decision of the Commission in such a case.

“Conclusion

Each assessment of whether a dismissal is unfair must be considered on its merits. In arriving at an overall assessment, the statutory considerations must be applied in a practical common sense way to ensure that the employer and employee are each treated fairly.72 The Commission will not stand in the shoes of an employer and assess what the Commission would have done had it been in the position of the employer73 but has a statutory obligation to objectively determine fairness given the events that occurred.

I have found there to be no valid reason for dismissal. Whilst unfair dismissal matters are multifactorial74, I adopt the observations of a Full Bench of the Commission in Parmalat Food Products Pty Ltd v Wililo:75

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair.”

In this matter that observation has telling force. Absent a valid reason associated with the application of ITAR rules to Mr Chivonivoni’s circumstances there is nothing more that Cobham points to that can sustain the dismissal of a competent employee.

My findings of procedural fairness in the decision-making process (notwithstanding a lack of clarity as to who made the decision) weigh somewhat against a finding of unfairness but do not nearly offset the absence of a valid reason.”

Chivonivoni v Cobham Aviation Services Engineering Pty Ltd  [2020] FWC 3568 delivered 18 August 2020 per Anderson DP