Unfair dismissal; timing of valid reason

In an unfair dismissal case, it is the facts and circumstances as they were at the time of the dismissal which matter in an unfair dismissal case, not those which occur later and place the dismissal in another light. For example the termination of employment of an employee who was not, when dismissed, vaccinated against covid 19 when it was mandated will not be judged much later in the context of the vaccine mandates having been lifted.

 

“[63] It is a settled proposition that question of whether there was a valid reason for the

dismissal for the purposes of s 387(a) of the Act on capacity grounds requires an assessment of

the material available to an employer “at the time of dismissal,” and not an uncertain, indefinite

or speculative time in the future.60

[64] It is also accepted that relevant facts may not come to light until after the dismissal. In

these cases, the approach taken by the Full Bench in Jetstar Airways Pty Ltd v Neeteson-Lemkes

should be followed.61 In that case the Full Bench determined that “…although the validity of a

reason for dismissal may be determined by reference to facts discovered after the dismissal,

those facts must have existed at the time of dismissal.”62

[65] At Ms Exeter-Grant’s date of dismissal on 17 March 2023, the vaccine mandate had not

lifted, and the lifting of the mandate was not a fact in existence at that time. The existence of

the lifting of the vaccine mandate on 14 April 2022 is therefore not a relevant consideration to

be taken into account when assessing whether a valid reason for dismissal existed on 17 March

2022.

63 Accordingly, no appealable error arises with respect to the Commissioner’s conclusion

at [118]-[119] of the decision to this effect.

[2023] FWCFB 75

15

[66] That is not to say that the lifting of the mandate on the day Ms Exeter-Grant’s dismissal

took effect is irrelevant. It is a consideration that we regard to be pertinent in the assessment of

s 387(h) of the Act. Section 387 does not require any greater or lesser weight to be assigned to

paragraph (h). However, the weight attributed to this event is a matter for the Commissioner,

in the exercise of her discretion.64 We are satisfied, having regard to paragraphs [132]-[136] of

the decision, that the Commissioner took this material question of fact into account in her

assessment of the factor at s 387(h) of the Act. No appealable error arises in the exercise of the

Commissioner’s discretion.

[67] The balance of the matters raised by Ms Exeter-Grant in her submissions65 either do not

disclose appealable error in the decision or simply invite the Full Bench to reach a different

conclusion than that reached by the Commissioner.66 This is an appeal against a discretionary

decision and to succeed it must be shown that in reaching the decision the Commissioner acted

on a wrong principle; allowed extraneous or irrelevant matters to guide her; mistook the facts;

failed to take into account a material consideration; or that, although the reasoning does not

disclose error, upon the facts the result is unreasonable or plainly unjust.67 The matters raised

by Ms Exeter-Grant do not demonstrate any of these requirements and no appealable error is

disclosed.

Conclusion

[68] The failure by Ms Exeter-Grant to demonstrate appealable error leads us to conclude

that it is not appropriate to grant permission to appeal either on public interest or discretionary

grounds.

[69] Having reached this conclusion, permission to appeal must be refused in accordance

with s 400(1) of the Act.

Order and disposition

[70] Permission to appeal is refused and the appeal is dismissed.”

 

Exeter-Grant v Village Roadshow Theme Parks Pty Ltd [2023] FWCFB 75 delivered 18 April 2023 per Millhouse DP, Bissett C and Harper-Greenwell C