These passages from an unfair dismissal case determined recently by the Fair Work Commission explain how the Commission goes about assessing whether there was a valid reason for the dismissal, one of the mandatory statutory factors the Commission must take into account.
“s.387(a) — Whether there was a valid reason for the Applicant’s dismissal which is related
to her capacity or conduct
[53] An employer bears the persuasive onus of establishing or proving that there was a valid
reason for an employee’s dismissal.51 The level of proof is on the balance of probabilities, at a
reasonable level of satisfaction.52 The fact that serious allegations are made does not alter the
position in civil proceedings that the level of proof is based upon the balance of probabilities.53
[2023] FWC 1517
25
[54] In order 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”.
54 Further, 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.55
[55] Where a dismissal relates to conduct, the reason for the dismissal may be valid because
the conduct occurred and justified dismissal. However, the reason may not be valid because the
conduct did not occur, or it did occur but did not justify dismissal.56
[56] 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,
57 and
reasonable minds may differ.
[57] The onus of proof in relation to misconduct rests with an employer, and again, the
standard of proof in respect of such misconduct is based upon the balance of probabilities.58
[58] Where a reason for dismissal concerns or involves workplace fighting, the Commission
must have regard to all of the circumstances in which the fight occurred, and there is no
presumption that fighting in the workplace will automatically mean that a dismissal is not
unfair.
59 As was stated by the Full Court of the Federal Court in Qantas Airways Ltd v
Cornwall60 (a case involving fighting):
“We accept that in this case, as in Allied Express Transport Pty Ltd v Anderson, it is
necessary to examine the circumstances surrounding the conduct relied on, which
constitute the “relevant factual matrix”, to decide whether the termination was
supported, in the words of the statute, by “a valid reason … connected with the
employee’s … conduct”.
“… conduct is not committed in a vacuum, but in the course of the interaction of persons
and circumstances, and the events which lead up to an action and those which
accompany it may qualify or characterize the nature of the conduct involved.”
61”
Al-Buseri v NSW Trains T/A NSW TrainLink [2023] FWC 1517 delivered 24 July 2023 per Boyce DP