Unfair dismissal; what is a valid reason?

“Where the reason for the dismissal is misconduct, the Commission must be objectively satisfied that the misconduct occurred.

However, as Vice President Hatcher observed in Bista v Glad Group Pty Ltd10 , the case law does not establish that a minor failing on the part of an employee could constitute a valid reason for dismissal simply because it was proven to have occurred. Dismissal on such a basis could not be sound, defensible or well founded.11 His Honour also cited the majority judgement of Moore J in Edwards v Giudice12 where it was held that: “The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination. An employee may concede in arbitration that the conduct took place because, for example, it involved a trivial misdemeanour. In those circumstances the employee may elect to contest the termination in the arbitration on the basis that the conduct took place but it did not provide a valid reason and perhaps by relying on the other grounds in [the section].”13

[12] That judgement was relied on by Vice President Hatcher as authority for the proposition that, the consideration of whether there is a valid reason for dismissal requires, where the relevant conduct upon which the dismissal is proceeded is found to have occurred, an assessment of whether the conduct was of sufficient gravity or seriousness such as to justify dismissal as a sound, defensible or well-founded response to the conduct.

[13] The matters in s.387 go to both substantive and procedural fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be: Harsh – because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct; Unjust – because the employee was not guilty of the misconduct on which the employer acted; and/or Unreasonable – because it was decided on inferences that could not reasonably have been drawn from the material before the employer.14”

Sully v CBMG North Pty Ltd [2020] FWC 3509 delivered 3 July 2020 per Asbury DP