“[19] Section 385 of the FW Act provides as follows:
“385 What is an unfair dismissal
(1) A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal
Code; and
(d) the dismissal was not a case of genuine redundancy.”
[20] There is no dispute that the applications were made within the time required by s.394(2)
of the FW Act, or that each of the Applicants was a person protected from unfair dismissal.
Further, there is no indication that the Small Business Fair Dismissal Code and the genuine
redundancy provisions of the FW Act (as a jurisdictional objection and more generally) are
relevant.
[21] Accordingly, the Commission must determine whether each dismissal was harsh, unjust,
or unreasonable within the meaning of the FW Act. If so, the dismissal of the Applicants will
be unfair and the relevant remedy provisions must be applied to consider whether a remedy is
to be awarded.
[22] Section 387 of the FW Act provides that, in considering whether it is satisfied that a
dismissal was harsh, unjust or unreasonable, the Commission must take into account:
[2023] FWC 1759
5
(a) whether there was a valid reason for the dismissal related to the person’s capacity
or conduct (including its effect on the safety and welfare of other employees);
and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to
the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support
person present to assist at any discussions relating to dismissal; and
(e) if the dismissal is related to unsatisfactory performance by the person—whether
the person had been warned about that unsatisfactory performance before the
dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to
impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on the
procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[23] I am required to consider each of these criteria, to the extent they are relevant to the
factual circumstances before me.7
I am also required to consider each of the factors as they
might differently apply to the Applicants. As will become clear, the same general circumstances
and events impacted both dismissals and they can conveniently be dealt with together. This also
reflects the fact that, at least in terms of the significant events, FCS treated and dismissed the
Applicants together.”
Kanapaddala Gamage and another v First Call Staffing Pty Ltd T/A First Call Services [2023] FWC 1759 delivered 3 August 2023 per Hampton DP