Notification of reason for dismissal

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Introduction
Case examples

Introduction

See Fair Work Act 2009 s.387(b)

Notification of 'the reason' relates to the 'valid reason' for dismissal.[1]

Notification of the valid reason to terminate must be given to the employee:

before the decision to terminate is made[2]
in explicit terms,[3] and
in plain and clear terms.[4]

In Crozier v Palazzo Corporation Pty Ltd,[5] the Full Bench established the following:

[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG (3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.

Although considering provisions in previous legislation, the principle in Crozier v Palazzo Corporation Pty Ltd remains unchanged and continues to apply.[6]

Case examples

Employees notified of the reason

Employee failed to respond to employer's requests for information about a potential conflict of interest

Villani v Holcim (Australia) Pty Ltd [2011] FWA 141 (Gooley C, 12 January 2011).

Permission to appeal refused by Full Bench in PR508383 (Kaufman SDP, Sams DP, Gay C, 12 April 2011) and Permission to appeal refused by the Full Court of the Federal Court in [2011] FCAFC 155 (2 December 2011).

The employer sent letters to the employee's lawyers requesting the provision of further information about a potential conflict of interest. The employee failed to provide any information or respond to the requests.

It was held that the employee was properly notified of the reason for termination even though the employee was not advised that a failure to respond may result in the termination of his employment. The termination was found not to be harsh, unjust or unreasonable.

Employee alleged meetings to discuss misconduct were too short

Ehssan v Infoxchange Australia [2011] FWA 5491 (Gay C, 25 August 2011).

Permission to appeal refused in [2011] FWAFB 6747 (O'Callaghan, Ives DP, Blair C, 29 September 2011).

The employee argued that the meetings held to discuss the alleged misconduct were too short and did not give him a proper opportunity to respond.

It was held that the employee was notified of the reason for dismissal and was afforded an opportunity to respond to the allegations. The application was dismissed.

Employees NOT notified of the reason

Casual employee – removed from roster – site access denied

Leigh v Nestle Australia Ltd [2010] FWA 4744 (Drake SDP, 25 June 2010).

Permission to appeal refused in Employee W v Employer N [2010] FWAFB 7802 (Watson VP, O'Callaghan SDP, Spencer C, 22 October 2010), [(2010) 202 IR 12].

The employee was accused of misconduct including the harassment of colleagues. He was also convicted of several criminal offences.

Even though there was a valid reason for dismissal based on the criminal convictions, the employee was not notified of the reason for the termination of his employment nor was he given an opportunity to respond. Compensation was awarded.

Employee thwarted employer's attempts to contact him

Sabeto v Waterloo Car Centre Pty Ltd (2003) 123 IR 222.

An employee, when questioned about unaccounted for cash, left work and was unable to be contacted. On appeal the Full Bench found that although there was a valid reason for dismissal based on capacity, the employer failed to notify the employee of that reason. The Full Bench held that the dismissal was harsh, unjust or unreasonable and compensation was ordered.

Reasons for selection for redundancy were given after the decision was made

Clarke v Formfile Infosoft Pty Ltd (2003) 122 IR 348.

The employees were made redundant due to a downturn in business. The employees were notified that they were being dismissed due to redundancy but were not notified of the reason why they were selected for redundancy.

It was held that the employees were not properly notified of the reason for their dismissals before the dismissals took effect.

Employee locked out of work and notified of termination by email

Stewart v Sea Change Conveyancing Pty Ltd [2012] FWA 1896 (Gooley C, 19 March 2012).

The employee was dismissed after she made derogatory comments about her employer to a colleague.

It was held that the dismissal was harsh, unjust and unreasonable because the employee was not notified of the reason for her dismissal before the decision to dismiss was made.

Decision to dismiss made before reason given or opportunity to respond afforded

De Silva v ExxonMobil Chemical Australia Pty Ltd, PR910623 (AIRC, Lacy SDP, 9 January 2000).

The employee was dismissed for poor performance. The employer provided the reason for dismissal to the employee after the decision to dismiss had already been made.

It was concluded that, while there were procedural deficiencies, they were not sufficient to render the dismissal harsh, unjust or unreasonable.

Dismissed by email

Gooch v Proware Pty Ltd T/A TSM (The Service Manager) [2012] FWA 10626 (Cargill C, 20 December 2012).

The employee was dismissed for being absent from work on personal leave after her medical certificate had expired. The employer dismissed the employee by email without attempting to contact the employee first.

It was found that the employee was not notified of the reason for her dismissal. It was held that it was not satisfactory that the employer gave the employee an opportunity to discuss the dismissal after it had taken effect.