Most unfair dismissal cases which arise from the termination of an employee’s employment based upon the employee’s capacity or conduct. The following is an extract from a recent decision of the Fair Work Commission dealing with the legal challenges faced by the employee and the employer in such a case.
“Where a dismissal is related to capacity or conduct, the employer bears an onus of establishing that there was a valid reason for dismissal.35 A valid reason for dismissal is one that is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.”36 The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts,37 and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.38 While the employer bears the onus of establishing the validity of the reason for dismissal, the dismissed employee bears the onus of establishing that the dismissal was unfair. In finding that there was a valid reason for dismissal, the Commission is not limited to the reason relied on by the employer.”
Gambling v Digital Fox Pty Ltd T/A Mango 4 Office Technology (2018) FWC 6060 delivered 28 September 2018 per Asbury DP