This portion of a recent decision of a Full Bench of the Fair Work Commission contains dicta about what constitutes a valid reason for a dismissal, one of the several important factors in reaching a decision as to that.
“35] A valid reason is one which is sound, defensible and well-founded, and not capricious,
fanciful, spiteful or prejudiced: Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at
373 (Northrop J). When the reason for termination is based on the conduct of the employee, the
Commission must, if it is in issue in the proceedings, determine whether the conduct occurred
and what it involved: Edwards v Giudice (1999) 94 FCR 561 at [7] (Moore J); Sydney Trains v
Hilder [2020] FWCFB 1373 at [26](2) (Hilder). A reason will be valid because the conduct
occurred and 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 misdemeanour).
[36] It is generally accepted that an assessment of the seriousness of misconduct which is
found to constitute a valid reason for dismissal, and whether dismissal was a proportionate
response, will be a relevant matter under s 387(h) and that ‘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)’: Hilder at
[26](8) and (9). However, difficult questions can arise as to whether circumstances associated
with or surrounding the conduct of an employee are to be considered in assessing whether there
was a valid reason for dismissal or as matters raised in mitigation to be considered under s
387(h). In some cases, it has been said that the ‘entire relevant factual matrix must be considered
in determining whether an employee’s termination is for a valid reason’: Newton v Toll
Transport Pty Ltd [2021] FWCFB 3457; (2021) 307 IR 140 at [175] referring to Allied Express
Transport Pty Ltd v Anderson (1998) 81 IR 410 at 413 (Lee, Tamberlin and Marshall JJ) and
Qantas Airways Ltd v Cornwall (1998) 84 FCR 483 at 491-492 (Burchett, Cooper and Finn JJ).
In others, it has been suggested that the question of whether there was a valid reason for
dismissal is to be assessed by reference to the acts or omissions that constitute the alleged
misconduct considered in isolation from the broader context in which they occurred: B v
Australian Postal Corporation [2013] FWCFB 6191; (2013) 238 IR 1 at [35]. No inconsistency
necessarily arises between those decisions depending upon what is understood to constitute the
‘broader context’ and ‘matters in mitigation’ as opposed to the factual matrix in which the
conduct occurred. However, there is some tension between the approaches.”
Appeal by Clark v Woolworths Group Limited trading as Primary Connect [2026] FWCFB 187 delivered 22 July 2026 per Gibian VP, Bell DP and Tran C