Unfair dismissal; the right to mount a defence

One of the mandatory factors which the Fair Work Commission is required to consider in determining whether the termination of the employment of an employee qualifies as an unfair dismissal is whether “whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person”. This is an extract from such a case in which the Commissioner deals with that issue.

“S. 387 (c) – Opportunity to respond to any reason related to capacity or conduct

The applicant was not given a proper opportunity to respond to the show cause notice of 10 February 2020, because this notice was sent by email communication which the applicant did not receive. In any event, the proposition that the applicant should respond to the 10 February 2020 show cause notice within 24 hours was inappropriate and unnecessarily onerous.

The absence of a response from the applicant to the show cause notice of 10 February 2020, should have initiated further enquiry by the employer before it moved to dismissal. It appeared that the employer, or Mr Gowdie in particular, decided that in the absence of any response from the applicant, it was appropriate to implement dismissal.

There was no evidence of there being any attempt to contact the applicant to confirm that she had received the 10 February show cause notice. Instead, it appeared that it was assumed that the applicant had received that communication and that she was simply failing to respond. As the evidence underpinning the Jurisdictional Decision has ultimately established, this assumption was wrong.

Although the reason why the emails of 10 and 11 February were not received in the applicant’s home email inbox remains a mystery, there may have been some other valid reason why the applicant had not responded to the 10 February show cause notice. The applicant could have been beset by some misadventure, physically incapacitated, and thus unable to respond within the unreasonably short timeframe of 24 hours. In simple terms, before the employer moved to dismiss it should have attempted to contact the applicant to confirm that she had received the email that contained the show cause notice.

The procedure that the employer adopted whereby it hastily moved to dismiss before ensuring that the applicant had proper opportunity to respond to the show cause notice of 10 February 2020, was a significant procedural defect which denied the applicant natural justice.”

Rawson v Mudgee Golf Club Ltd – [2021] FWC 1171 – 10 March 2021 – Cambridge C