The participation by an employee in unlawful industrial action is not a valid reason, on its own, for dismissal. In Mahoney v Bechtel Construction (Australia) Pty Ltd (2014) FWC 2756 Commissioner Booth of the Fair Work Commission wrote that an employer considering the dismissal of an employee who has taken unlawful industrial action must address the specifics of each individual case, rather than taking a global view of the conduct of the group of employees who did so.”It may give rise to a legal right to terminate but that is different from establishing, through proper inquiry into the factual circumstances, whether there was a valid reason for the termination,” she opined.
The Commissioner did forecast that she would reduce compensation for the unfair dismissal to take into account the misconduct of the employee. The case also again emphasizes that employers considering dismissal must afford an employee a reasonable opportunity of being heard. “An ‘opportunity to respond’ is meaningless unless the employer gives proper contemplation to and consideration of the responses. It is not just whether the employee participated in unlawful industrial action that should have been considered, but whether there were any unique circumstances applying to him. There were. They were not adequately considered.”
I would suggest that the opportunity to be heard must be real and effective and not tokenism.