Valid reason for dismissal and serious misconduct

These passages from a recent unfair dismissal case dealt with by the Fair Work Commission deal with the relationship between the concept of serious miscionduct and whether there is a valid reason for the termination of an employee’s employment.

“(b) Valid Reason for the Dismissal and Severity of Misconduct (S.387(a) and (h))
[60] To be a valid reason, the reason for the dismissal should be sound, defensible or well
founded and should not be capricious, fanciful, spiteful or prejudiced. However, the
Commission will not stand in the shoes of the employer and determine what the Commission
would do in the same position.
[61] In Sydney Trains v Gary Hilder2 (“Hilder”) the Full Bench summarised the wellestablished principles for determining such matters3:
“The principles applicable to the consideration required under s 387(a) are well
established, but they require reiteration here:
(1) A valid reason is one which is sound, defensible and well-founded, and not
capricious, fanciful, spiteful or prejudiced.
(2) When the reason for termination is based on the misconduct of the employee the
Commission must, if it is in issue in the proceedings, determine whether the conduct
occurred and what it involved.
(3) A reason would be valid because the conduct occurred and it justified termination.
There would not be a valid reason for termination because the conduct did not occur or
it did occur but did not justify termination (because, for example, it involved a trivial
[2023] FWC 261
(4) For the purposes of s 387(a) it is not necessary to demonstrate misconduct
sufficiently serious to justify summary dismissal on the part of the employee in order to
demonstrate that there was a valid reason for the employee’s dismissal (although
established misconduct of this nature would undoubtedly be sufficient to constitute a
valid reason).
(5) Whether an employee’s conduct amounted to misconduct serious enough to give rise
to the right to summary dismissal under the terms of the employee’s contract of
employment is not relevant to the determination of whether there was a valid reason for
dismissal pursuant to s 387(a).
(6) The existence of a valid reason to dismiss is not assessed by reference to a legal right
to terminate a contract of employment.
(7) The criterion for a valid reason is not whether serious misconduct as defined in reg
1.07 has occurred, since reg 1.07 has no application to s 387(a).
(8) An assessment of the degree of seriousness of misconduct which is found to
constitute a valid reason for dismissal for the purposes of s 387(a) will be a relevant
matter under s 387(h). In that context the issue is whether dismissal was a proportionate
response to the conduct in question.
(9) Matters raised in mitigation of misconduct which has been found to have occurred
are not to be brought into account in relation to the specific consideration of valid reason
under s 387(a) but rather under s 387(h) as part of the overall consideration of whether
the dismissal is harsh, unjust or unreasonable.”
[62] As noted above under the heading “Background Facts”, I have found each of the
instances of misconduct relied on by the Respondent did occur. Those conclusions are
unremarkable because the evidence was unequivocal that the Applicant made the comments to
Ms Sammut, acted as he did towards Mr Roy, and sent the 14 May Letter and the 21 June Letter.
The Applicant conceded every relevant fact, but urged different conclusions arising from those
[63] The issue regarding valid reason in this matter is therefore not whether the conduct
occurred, but whether the conduct of the Applicant justified termination. That consideration
arises as a relevant matter pursuant to s.387(h) of the Act. Taken as a whole the five proven
allegations collectively justified the summary dismissal of the Applicant. Addressed
individually, the 21 June Letter, and the 14 May Letter, justified the termination of the
Applicant. I also agree with the Respondent’s submission that had the Applicant only have
made the comments to Ms Sammut, a decision to terminate the Applicant’s employment would
have been disproportionate to the conduct.
[64] The 14 May Letter was nothing short of an attempt by the Applicant to intimidate Ms
Sammut. Describing it as “personal” and written as a “fellow citizen”, does not take it out of
the purview of the employment relationship, and the various policies and Code of Conduct that
regulates dealings between employees. That is particularly so where it is handed to Ms Sammut
at her workstation.
[2023] FWC 261
[65] Consideration of the subject matter of the 14 May Letter, being the Letter Incident,
focusses attention on what it was that so agitated the Applicant in the Letter Incident. I sought
to explore those concerns with the Applicant in the hearing of the matter as follows:4
THE DEPUTY PRESIDENT: I’m just trying to understand what the problem is if a sealed
letter is placed somewhere, is not picked up and that sealed letter is then returned to
you. I’m wondering where the difficulty arises. Can you help me?
MR ELLIS: It wasn’t returned to me this way that you seem to be averting, Mr Deputy
President. It was actually waved in my face by Mr Roy, saying, ‘We’re having none of
this, we’re having none of this’, and I’ll repeat because he said it three times: ‘We’re
having none of this’.
THE DEPUTY PRESIDENT: Okay, so the problem is not the physical state of the
THE DEPUTY PRESIDENT: The problem is that when it was returned to you how it was
MR ELLIS: That’s correct.
THE DEPUTY PRESIDENT: Well, then, how on earth do you make the allegations
against Ms Sammut in relation to how there was interference with the correspondence?
MR ELLIS: With due respect, Mr Deputy President, I’m not suggesting there was
interference in the sense that I’m understanding that term. I’m referring to the fact that
Ms Sammut actually removed the letter itself and then passed it to Mr Roy, rather than
giving it to me or the manager.
THE DEPUTY PRESIDENT: But you got it back and it was completely uncorrupted.
MR ELLIS: I did, yes.
THE DEPUTY PRESIDENT: Well, how is it said that she’s intercepted another person’s
mail? She’s simply said to Mr Roy, ‘Here’. And he gave it back to you and it was not
opened. I’m still having problems here – – –
MR ELLIS: Well, I was in the shop that day. I was working that day.
THE DEPUTY PRESIDENT: The problem is not the state of the mail. The problem is
how it was returned to you by Mr Roy.
MR ELLIS: Yes, well – – –
THE DEPUTY PRESIDENT: I’m just wondering how you then go on to write the
correspondence you wrote to Ms Sammut asserting interception of another person’s
mail. But anyway, when you do your submissions this is what I want to understand
because I’m having the greatest difficulty understanding what the issue was.
[66] In light of that explanation of the Applicant’s concerns, the contents of the 14 May
Letter are nonsensical. The correspondence the subject of the Letter Incident had also never
[2023] FWC 261
entered the postal system, and it is simply fanciful to assert an offence had occurred. The
Applicant was clearly seeking to pressure Ms Sammut for reasons that remain undisclosed. Any
reasonable employee would understand that conveying a letter in the terms of the 14 May Letter
would likely have a serious effect of the recipient’s health and welfare. Sending such a letter
justified the Applicant’s termination, particularly where the Applicant had other internal
avenues for complaint within the Respondent, particularly emails, which he otherwise used
[67] The 21 June Letter was an even more egregious act than the 14 May Letter. Again, any
reasonable employee would understand that conveying a letter in the terms of the 21 June Letter
would likely have a serious effect of the recipient’s health and welfare. But further, the
Applicant had been specifically directed in the letter of allegation of 2 June 2022, as follows:
All matters and information relating to this investigation are strictly confidential and you
are directed not to discuss them with any other person without my express prior consent.
Any failure by you to maintain confidentiality may lead to disciplinary action.
Importantly, you are directed not to approach the complainant/s or any other person
involved in the complaint. Victimisation includes treating or threatening to treat a
complainant less favourably or subjecting them to a detriment. It is also a breach of GPC
Asia Pacific policies and will not be tolerated and may result in disciplinary action.
[68] The Applicant blatantly disobeyed the above direction, which in the circumstances of
an investigation by an employer can be described as nothing less than a lawful and reasonable
direction. The 21 June Letter was a clear attempt by the Applicant to intimidate Ms Sammut
into withdrawing her complaints.
[69] Even more insidious is the proximity of the 21 June Letter to the communication to the
Applicant of the requirement to attend a further meeting which was scheduled for 23 June 2022,
to discuss the findings and outcome of the investigation into the Applicant’s conduct.
[70] I have no hesitation in concluding that the 21 June Letter, or the 14 May Letter,
considered individually or cumulatively, constituted conduct of sufficient seriousness to
warrant the termination of the Applicant. The Applicant’s conduct breached the Respondent’s
Code of Conduct and EEO Policy.
[71] Also constituting a breach of the Respondent’s Code of Conduct and EEO Policy, and
so forming another valid reason for termination, were the comments made by the Applicant to
Ms Sammut. As noted above, I accept the Respondent’s submission that those comments were
not on their own sufficient to justify dismissal, however, in combination with the other valid
reasons, those comments added to the gravity of the overall conduct.”