Oddly, an employer is entitled to rely upon an employee’s conduct, discovered after the termination by the employer of the employee’s conduct, to justify the dismissal in an unfair dismissal case.
“Consideration
Was there a valid reason for the dismissal related to Mr Chalk’s capacity or conduct?
[86] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 43 and should not be “capricious, fanciful, spiteful or prejudiced.”44 However, 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.45
[87] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.46 “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 47
[88] On this occasion, it was only after the dismissal of Mr Chalk that Ventia became aware of the extent of Mr Chalk’s misconduct. Nevertheless, it is open to Ventia to rely on the full extent of Mr Chalk’s misconduct as a valid reason for the dismissal. As stated by the High Court, “if there were, in fact, any circumstances in existence at the time of the termination of the agreement which could have justified the respondent in so terminating it, then it may justify the termination by subsequent proof of those circumstances…”48
[89] Having regard to the evidence before me I find that there was a valid reason for the dismissal related to Mr Chalk’s conduct in sending the 1 July 2022 email to Mr V which was both a breach of his confidentiality obligation and poor exercise of discretion of an experienced and senior employee who failed to consult with his superiors about a matter which he himself recognised required further investigation.
[90] There is also a valid reason in respect of the breach of confidentiality in respect of sending the Services Agreement to Ms Toner on 26 March 2022.
[91] I accept that as a result of Mr Watts’ experiences with Mr Chalk since April 2022 together with Mr Chalk sending the email to Mr V, 49 Mr Watts lost trust and confidence in Mr Chalk’s ability to perform his role and this is also a valid reason for dismissal.”
Chalk v Ventia Australia Pty Ltd (2023) FWC 121 delivered 17 January 2023 per Platt C