Unfair dismissal; who will win a case?

The difficulties of advising on the prospects of success of an unfair dismissal are enormous. Only practitioners who are experienced can begin to understand the complexity of doing so and the wise are very cautious. In the following case, an extract of which is published in this blog, a senior member of the Fair Work Commission held that a dismissal was relevantly unfair and warranted an award of compensation despite there being at least one valid reason for it and that the investigation process followed by the employer was essentially reasonable but that the dismissal was “harsh, unjust and unreasonable” because it was a summary dismissal which was “disproportionate” even though the “circumstances” weighing against a conclusion that the dismissal was harsh were “significant”.

It will be interesting to see whether there is an appeal against the decision.

“Section 387(h) of the Act requires the Commission to take into account any other matters that the Commission considers relevant.

Mr Lupson asked the Commission to have regard to his eight years’ service with Melbourne Airport, his unique and specialised skills in high voltage, the personal and economic effect that the termination has had on him in light of the prevailing economic conditions and what was described as the “significant deficiencies” in Melbourne Airport’s investigation process including its failure to provide evidence in support of its allegations and decision to “prosecute historical allegations of an unserious kind, in the absence of any reason to do so”.

The following matters are most pertinent to this case and may be taken into consideration for the purposes of s.387(h) of the Act.

I have not found there to be a “pattern of behaviour” as Melbourne Airport contended. Whilst Melbourne Airport’s investigation process was adequate in terms of the requirements at ss.387(b) and (c) of the Act (as these factors relate to the matters I have identified as constituting a valid reason), I consider its investigation process was problematic in an important respect. As is evident in the materials before the Commission, the employer in its own words “framed” a total of twelve allegations which evolved over the course of the disciplinary process. In my view, it was a retrospective “kitchen sink” type approach aimed at justifying the termination of employment. I consider these factors weigh in favour of a finding that the dismissal was harsh, unjust or unreasonable.

Mr Lupson’s age, the fact that he had completed eight years’ service at Melbourne Airport, his specialist skills in high voltage and his career prospects are also relevant matters to which I have had regard in Mr Lupson’s favour.

I have taken into account Mr Lupson’s behaviour at the funeral of his late colleague and friend, which even on his own account and having regard to his grief was unnecessary, entirely inappropriate and reflective of a poor attitude towards his managers. Mr Lupson was also lacking insight in terms of this conduct and its impact on others. There was no contrition. Whilst these facts of themselves did not substantiate a valid reason for the dismissal, in the circumstances of this case they are relevant to an overall assessment of whether the dismissal was harsh, unjust or unreasonable. Further, there is Mr Lupson’s lack of candour and attempts to justify his conduct which at times did not withstand scrutiny. In addition to the findings at s.387(a) in this respect, I do not accept that Mr Lupson was truthful when he told Ms Pollard (upon being escorted from the premises on 23 January 2020) that he was unaware his ASIC had expired. I find these factors weigh against a finding of harshness but do not sufficiently outweigh the other matters as to result in a finding that the dismissal was not unfair.

  1. Conclusion – is the Commission satisfied that the dismissal of Lupson was harsh, unjust or unreasonable?

I have made findings in relation to each matter specified in s.387 of the Act as relevant.

I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[73]

I am satisfied there was a valid reason for the dismissal of which Mr Lupson was properly notified and afforded adequate opportunity to respond. There was no unreasonable refusal of a support person in discussions related to the dismissal. The dismissal was not for unsatisfactory performance. The absence of an established pattern of conduct and the approach to the investigation are paramount to my consideration that summary dismissal was disproportionate to the conduct. The circumstances weighing against a conclusion that the dismissal was harsh are significant, but not sufficient to alter my conclusion.

Taking into account all of the circumstances and the considerations in s.387, I consider that the dismissal of Mr Lupson was harsh, unjust or unreasonable and that accordingly his dismissal was unfair.”

Lupson v Australian Pacific Airports (Melbourne) Pty Ltd [2020] delivered 14 December 2020 per Mansini DP