03 Jul THERE ARE NO CRITERIA FOR HARSHNESS IN DISMISSAL MATTERS

The full bench of the Fair Work Commission (“Commission”) recently confirmed that whilst there are certain matters that will be taken into account when determining whether a dismissal is unfair, each dismissal will be assessed on a case-by-case basis without the application of any definitive rule.

The case in question heard that the respondent employer dismissed a long-serving employee for breaching its safety rules which amounted to a potential life-threatening situation. A senior member of the Commission originally found that the employee’s dismissal was harsh on the basis that the employee was not given an opportunity to respond to the sanction before being dismissed.

However on appeal, the full bench quashed the senior member’s decision based on an error of law and sent it back for a re-hearing. The full bench said that while an employee’s opportunity to respond will be taken into account when assessing whether a dismissal was unfair, it is not a criterion that must be satisfied and should not be applied as a rule.

It referred to section 387 of the Fair Work Act (which directs the Commission to take certain matters into account in considering harshness) and said it “does not stipulate criteria that must be satisfied in order for a dismissal to be fair or unfair”, nor does it authorise it to “develop or apply its own criteria”.

Applying section 387 as criteria for harshness is an error of law

It should be noted that the full bench was not disregarding the importance of an employee’s right to respond before determinations are made. Indeed, it affirmed that providing an opportunity for the employee to make submissions on a sanction was a “very significant matter”.

However, Vice President Catanzariti, Deputy President Colman and Commissioner Bissett of the full bench said, “it is not incumbent on an employer to take any particular steps.”

“Practically speaking, if an employer does not have a valid reason for dismissal, does not notify the employee of the reasons for dismissal and does not afford the employee an opportunity to respond to allegations, these matters will count against it in an unfair dismissal hearing.”

“However while the Act requires the Commission to take these and other matters into account, they are not the subject of incumbency,” the full bench continued. “They are not criteria.”

When addressing the senior member’s view that the employer had to afford the opportunity for submissions on sanction, the full bench added that while a member “might form the view that the absence of such a step in any given case is a relevant consideration and worthy of certain weight”, it is “not to be regarded as a rule”.

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