What is a valid reason for dismissal


“Was the dismissal harsh, unjust or unreasonable?

[145] The matters that must be taken into account in assessing whether the dismissal was harsh, unjust or unreasonable are set out in s 387(a) to (h) of the Act. Before turning to consider these matters, I make some initial observations about the evidence given by the respective witnesses.

[146] I found Mr Staudt’s evidence to be unreliable. For instance, Mr Staudt’s evidence changed at various points in relation to important issues during the proceedings, demonstrated by the matters summarised at [49]-[50] of this decision. Further, as the findings at [188]-[196] of this decision demonstrate, the evasive nature of Mr Staudt’s evidence undermines his credibility. Accordingly, I consider that Mr Staudt’s evidence ought to be approached with a significant degree of caution. By contrast, I found that each of the respondent’s witnesses gave straight forward answers to the questions asked of them and their evidence did not change. In these circumstances, where there are factual contests between Mr Staudt and the respondent’s witnesses, I generally prefer the evidence of the respondent’s witnesses.

Section 387(a) – Was there a valid reason for the dismissal related to capacity or conduct (including its effect on the safety and welfare of other employees?)

[147] The principles that are relevant to the consideration of whether there was a valid reason for the dismissal related to an employee’s capacity or conduct are well established. A valid reason is one that is “sound, defensible or well founded” and should not be “capricious, fanciful, spiteful or prejudiced.”113

[148] The Commission does not stand in the shoes of the employer and determine what the Commission would do if it were in the position of the employer.114 The question the Commission must address is whether there is a valid reason, in the sense both that it was a good reason and a substantiated reason. A valid reason need not necessarily be the one relied upon by the employer. It can be any reason underpinned by the evidence before the Commission.115

[149] Where several reasons for termination are invoked, it is not necessarily the case that all must be substantiated.116 Nor is it necessary, for the purpose of establishing a valid reason, to demonstrate misconduct sufficiently serious to justify summary dismissal.117 Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.118

[150] The respondent contends that Mr Staudt’s employment was dismissed by reason of his conduct. Where allegations of misconduct are made, the standard of proof in relation to whether the alleged conduct occurred is the balance of probabilities. However, as the High Court noted in Briginshaw v Briginshaw,119 the nature of the relevant issue necessarily affects the “process by which reasonable satisfaction is attained.”120 Such satisfaction “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”121 or “circumstances pointing with

a wavering finger to an affirmative conclusion.”122 The application of the Briginshaw standard means that the Commission should not lightly make a finding that an employee engaged in the misconduct alleged.123

[151] Further an employer is entitled at the hearing of an application for an unfair dismissal remedy to rely upon whatever reason(s) the employer wishes to rely upon at that time, albeit that in relation to any reason not relied upon at the time of dismissal the employer will have to contend with the consequences of not giving the employee an opportunity to respond to such reason within the meaning of s 387(b) and (c) of the Act.124”


Extract from – Staudt v Best International Group Pty Limited  [2023] FWC 3315 delivered 12 December 2023 per Millhouse DP