Here is a good summary of the legal principles which applied when determining whether there is a valid reason for the dismissal of an employee who is protected from unfair dismissal.
“Valid reason (s 387(a))
General principles
[9] It is necessary to consider whether the employer had a valid reason for the dismissal of
the employee, although it need not be the reason given to the employee at the time of the
dismissal.5
In order to be “valid”, the reason for the dismissal should be “sound, defensible and
well founded”6
and should not be “capricious, fanciful, spiteful or prejudiced.”7
[10] The Commission will not stand in the shoes of the employer and determine what the
Commission would do if it was in the position of the employer.8 The question the Commission
must address is whether there was a valid reason for the dismissal related to the employee’s
capacity or conduct (including its effect on the safety and welfare of other employees).9
[11] In cases relating to alleged conduct, the Commission must make a finding, on the
evidence provided, whether, on the balance of probabilities, the conduct occurred.10 It is not
enough for an employer to establish that it had a reasonable belief that the termination was for
a valid reason.11
[2023] FWC 674
3
[12] The question of whether there was a valid reason must be assessed by reference to facts
which existed at the time of the dismissal, even if they did not come to light until after the
dismissal.12
[13] The employer bears the evidentiary onus of proving that the conduct on which it relies
took place.13 In cases such as the present where allegations of serious misconduct are made, the
Briginshaw standard applies so that findings that an employee engaged in the misconduct
alleged are not made lightly.14
[14] A reason will be ‘related to the capacity’ of the applicant where the reason is associated
or connected with the ability of the employee to do his or his job.15 The appropriate test for
capacity is not whether the employee was working to their personal best, but whether the work
was performed satisfactorily when looked at objectively.16”
Extract from
Thomas v Serco Australia Pty Limited – [2023] FWC 674 – 21 March 2023 – Saunders DP