Unfair dismissal; the right of an employee to defend allegations

The Fair Work Act requires the Fair Work Commission in an unfair dismissal case to take into account, when assessing whether the dismissal was relevantly unfair, (that is to say whether the dismissal was “harsh, unjust or unreasonable”) whether the former employee was given an opportunity to respond to any reason related to the capacity or conduct of the person. Does this mean that a dismissal would be regarded as unfair if the employee was not given the opportunity of defending himself or herself? Here is the answer.

“In Wadey v YMCA Canberra 189 Moore J stated the following principle about the right of an employee to appropriately defend allegations made by the employer:

“[T]he opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.”

Kabidi v Metro Trains Melbourne Pty Ltd [2020] FWC 6941 delivered 23 December 2020 per Young DP