Unfair dismissal versus unlawful dismissal

The distinction between the legal elements of a general protections claim involving an allegation of adverse action for a prohibited reason and an unfair dismissal case are highlighted by the following passage from a recent appeal decision by a Federal Court judge. The case also identifies the difficulties lay litigants sometimes experience in distinguishing between how a judge may sum up the elements of a case in a decision.

“Mr Kape also made oral submissions to the effect that the primary judge did not deal with the fact that his termination had been on the spot and there was no reason to justify dismissing him in that way.  It is understandable that Mr Kape may take offence as to these aspects of his termination.  However, the failure by the primary judge to refer to that aspect is explained by the nature of the claim being an adverse action claim and not an unfair dismissal claim.  The main issue to be decided by the primary judge was whether the Society had discharged the onus to show that the reason why Mr Kape was terminated was not the reason that he alleged.  The primary judge dealt with that aspect and accepted the evidence of Mr Lucas and Mr Crook.  His Honour found that the occupational health and safety issues raised by Mr Kape were not part of the reason why he was terminated.  On the evidence, the decision was made by the executive of the Society.  It included a decision to pay Mr Kape an ex gratia amount because the decision came close to Christmas.  The evidence of Mr Crook was to the effect that he did not recall being made aware of issues about health and safety complaints or complaints about discrepancies in Mr Kape’s pay.  The evidence of Mr Crook, which was accepted by the primary judge, was that the decision was based on the fact that there was insufficient demand for the works manager position and the financial position of the Society.  I accept the submission for the Society on appeal that these matters are the matters that were referred to by the primary judge when making the finding at [12] of the reasons to the effect that the termination was a genuine redundancy for financial reasons only.  Mr Kape has not advanced any basis upon which it might be concluded that those factual findings were made in error.  They were findings that were open to the primary judge on the evidence.

The task for the primary judge was to determine the real reason for the termination:  Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14; (2011) 191 FCR 212 at [28] (Gray and Bromberg JJ). The primary judge expressly accepted the evidence of the Society as to termination. Mr Kape advanced submissions to the effect that other aspects of the evidence about termination were not considered. However, the principal aspects of the evidence relating to the nature of the application were addressed in the reasons. The reasons were sufficient to serve their function of giving effect to the right of appeal: Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 at [26]‑[29]. They disclosed the basis for the decision, which required the adjudication of a confined factual issue. It was not necessary for the reasons to deal with every fact or all the details. They were required to deal only with the evidence that was critical on the particular application having regard to its nature: see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281.”

Kape v The Golden Mile Loopline Railway Society Inc (2019) FCA 2063 delivered 5 December 2019 per Colvin J