UNFAIR DISMISSAL

In the matter of Burke v Suncorp Group Limited [2015] FWC 3357, Deputy President Asbury of the Fair Work Commission, (as she then was) in assessing the section 387 criteria, found that the employer had a valid reason to dismiss the Applicant, Mr Burke. The employer had produced significant evidence of Mr Burke’s unsatisfactory work performance over a period of 2 years. 

However, Deputy President Asbury found that Mr Burke’s dismissal was unfair. Deputy President Asbury was critical that the employer, with significant resources and human resource expertise, had failed to take the opportunity to discuss with Mr Burke his health issues and whether Mr Burke’s health issues were the cause of his performance issues. Deputy President Asbury also determined that it ought to have been apparent to the employer, even in circumstances where Mr Burke did not expressly raise his health issues, that Mr Burke’s health issues impacted upon his work performance. 

In the matter of Steve Newton v Toll Transport Pty Ltd [2021] FWCFB 3457, the Full Bench of the Fair Work Commission found that an employee who was questioned by an employer about an incident that occurred outside of work and, in his own time, had the right to not answer questions put to him by his employer about that incident. The employee, Mr Newton, had the right to refuse to answer those questions. The Full Bench observed that a dismissal for fighting was not viewed as harsh, unjust or unreasonable. The Full Bench also observed that:

1. all of the facts ought to be taken into account including whether there was:

1. provocation;
2. self defence;
3. a need to protect employees;
4. a need to protect the record of the dismissed employee; and

1. it was not for the Fair Work Commission to categorise cases in a particular way.

The Full Bench determined that an employer could not rely upon facts that they came to know after the dismissal as evidence of the reason for the dismissal. The question of whether there was a valid reason for the dismissal would require an evaluation of the evidence of the matters that would have been known to the decision maker at the time of the dismissal. 

In a more recent case of Diane Duncan v PKK Transport Pty Ltd ATF the PKK Family Trust T/A Ashtons Removals [2023] FWC 444, Commissioner Hunt of the Fair Work Commission observed that a vote amongst employees, to determine whether the Applicant ought to be dismissed, was disturbing and primitive. Commission Hunt also noted that, even if the Applicant’s co-workers disliked the Applicant, that was not a valid reason to dismiss the Applicant.

In the matter of Matthew Wyss v Omnigrip Direct Pty Ltd [2022] FWC 3174, a decision by the employer to dismiss the employee, Mr Wyss was, was found to be a valid reason for dismissal because:

• Mr Wyss ignored a reasonable direction from his employer to not consume alcohol during a lunch break;
• by ignoring the directions of his employer and consuming alcohol at the lunch break, the employee breached the employer’s drug and alcohol policy;
• Mr Wyss allowed employees to drive company vehicles after they had also consumed alcohol;
• Mr Wyss’s told other employees to lie about consuming alcohol at the lunch; and 
• Mr Wyss’s conduct was willful and deliberate. 

Deputy Commissioner Colman of the Fair Work Commission also took into consideration Mr Wyss’ failure to demonstrate remorse for his conduct and he described Mr Wyss’ attempts at apologising as halfhearted and belated.

In the matter of Nicholas Bailey v Octeros Manufacturing Pty Ltd [2022] FWC 1946, the employer did not attend a hearing and did not give evidence of the reason for the dismissal. In this circumstance, the Fair Work Commission did take into account the evidence of the employee, Mr Bailey, in determining whether there was a valid reason for the dismissal.

In the matter of Gregory Brass v KDR Victoria Pty Ltd t/a Yarra Trams [2022] FWC 2527, Deputy President Colman of the Fair Work Commission found that there was not a valid reason for the dismissal of the Applicant because the conduct was not serious enough to warrant misconduct. Deputy President Colman had the benefit of CCTV evidence that depicted the alleged conduct and, was able to form a view upon his own interpretation of the employees conduct, which the employee has described as general horseplay between colleagues who share close personal friendships.  

Deputy President Colman also found that the:

• dismissal was not a proportionate response; 
• employer failed to act on its own disciplinary procedure; 
• employer had an inconsistent approach to horseplay; and
• employee had a lengthy period of service and a good record.

In the matter of Amanda Katherine Gimbert v TG Ice Cream Shack Pty Ltd [2022] FWC 2521 the employer alleged that the employee, Ms Gimbert, withdrew from shifts at late notice and this was the reasoning as to Ms Gimbert’s dismissal, However, the evidence of text messages between the employer and Ms Gimbert was showed attempts by each to find mutually convenient solutions.

In the matter of Danny Hana v Renfay Projects Pty Ltd [2022] FWC 2484, Commissioner Matheson of the Fair Work Commission found that the employer did not have a valid reason for dismissing the Applicant, Mr Hana. Commission Matheson also found that the employer’s use of terms such as “abusive”, “aggressive”, “worked up”, “rude”, “degrading” and “demanding” were not evidence that Mr Hana had conducted himself in any of these ways. Commissioner Matheson attributed the conflict between Mr Hana, and his colleagues to there being an absence of communication in relation to Mr Hana working from home. 

In the matter of Aadeela Natasha Raffie v Allied Express Transport Pty Ltd [2022] FWC 2398, the employer’s explanation for the dismissal of the employee, Ms Raffie, was that she had abandoned her employment and that the abandonment took on greater significance in light of her past absences. In having regard to all of the facts and circumstances, Deputy President Boyce of the Fair Work Commission did not accept that Ms Raffie had abandoned her employment, and that:

•  the employer did not have a lawful entitlement to demote Ms Raffie; 
•  Ms Raffie did not voluntarily accept the demotion; and
•  Ms Raffie was entitled to challenge the purported demotion.

In the matter of Eric Sim v Australian Pilot Training Alliance Pty Ltd [2022] FWC 1843, Commissioner Lee of the Fair Work Commission found that the employee, Mr Sim, had caused and was responsible for an error in regard to the access to information on the employer’s application referred to as the SMART system. The employer alleged that Mr Sim’s conduct in removing a certain person’s level of access within SMART system was deliberate. Commissioner Lee found that Mr Sim’s error was not deliberate and that a genuine mistake was not a valid reason for Mr Sim’s dismissal.   

In the matter of Toni Mueller v The Real McCoy & Co T/A Snack Brands Australia [2022] FWC 1871, the employee, Mr Mueller, challenged the employer’s reasons for his dismissal being that was Mr Mueller was unable to perform the inherent requirements of his job. Deputy President Boyce identified the relevant test as the substantive position or role of the employee that must be considered and, inherent means essential requirements of employment, as opposed to those that are peripheral. In reliance of medical evidence, Deputy President Boyce found that the employer had a valid reason to dismiss Mr Mueller.