Other relevant matters

See Fair Work Act 2009 s.387(h)

Any other matters must be relevant in the context of the circumstances of the particular case.[1]

Not every submission that is made has to be dealt with, but those which are centrally relevant to the consideration of whether a dismissal was unfair should be given adequate consideration.[2]

Differential treatment compared to treatment of other employees may be taken into account.[3]

The Fair Work Commission will approach claims of differential treatment in other cases with caution as a basis for supporting a finding that a termination was harsh, unjust or unreasonable.[4]

The Commission must be satisfied that any examples of differential treatment where no termination occurred are properly comparable, comparing 'apples with apples'.[5]

There must be sufficient evidence to support the examples provided to ensure a proper comparison can be made.[6]

The impact of the dismissal on the employee's personal or economic situation may be taken into account.[7]

The ability to find alternative work, particularly in a small town where the former employer is the only employer (or employs the majority of the population) may result in prolonged period of unemployment or under-employment for the employee.[8]

The employee's work performance or history is a factor that can be taken into account.[9]

A long unblemished record will weigh in the employee's favour and may be relied on as a factor for the Commission to consider in determining if the termination of employment was harsh, unjust or unreasonable.[10]

A situation where an employee is summarily dismissed can also be a relevant factor that may be taken into account.[11]

Summary dismissal is the most severe form of termination of employment. By its nature, summary dismissal indicates and records some very serious wrongdoing. Summary dismissal is implemented without any notice or payment in lieu of a period of notice. A summary dismissal may also remove entitlements to certain service related payments such as accrued long service leave. Summary dismissal should be clearly distinguished from a dismissal with notice or payment for the notice period.[12]

In cases involving summary dismissal, the proportionality of the dismissal may be considered under s.387(h).[13] In other words, was the penalty imposed a disproportionate response to the conduct complained of?[14]

Procedural fairness is concerned with the decision making process followed or steps taken by a decision maker rather than the actual decision itself.

Procedural fairness is one of the factors that the Commission will take into consideration when deciding if a dismissal has been harsh, unjust or unreasonable. Procedural fairness can take many forms, such as:

• whether an employer has followed their own procedures in dismissing an employee[15]
• whether the employee had an opportunity to explain their side of whatever happened,[16] or
• being able to seek advice or have a support person available at a meeting.

The terms ‘procedural fairness’ and ‘natural justice’ have similar meaning and can be used interchangeably.[17]

Procedural fairness is one aspect of the rules of natural justice.[18]

Procedural fairness requires that a person who may be affected by a decision be informed of the case against him or her and that he or she be given an opportunity to answer it.[19]

The rules of natural justice are flexible, requiring fairness in all the circumstances, including the nature of the power exercised and the statutory provisions governing its exercise.[20]

What is fair will depend on the particular statutory framework within which the decision is taken.[21]

Ordinarily, procedural fairness would require that an allegation be put to a person and they be given an opportunity to answer it before a decision was made.[22]

Dismissal was unfair

Procedurally unfair

Jimenez v Accent Group T/A Platypus Shoes (Australia) Pty Ltd [2016] FWC 5141 (Cambridge C, 5 August 2016).

The employee was employed as a Store Manager. He was summarily dismissed for serious misconduct involving the employer’s findings in respect to four allegations including the failure to properly record and receipt the cash provided for a sale of shoes to a friend, a breach of lay by policy and the falsification of timekeeping records.

The Commission held that only one of the employer’s findings of serious misconduct could be sustained. The employer’s finding in respect to the allegation regarding the applicant failing to properly record and receipt the cash provided in respect to the purchase of shoes, established a valid reason for the dismissal of the applicant. The Commission found that in the context of the retail industry, the misconduct of the applicant in respect to the mishandling of cash in respect to the sale of the shoes to a friend represented serious misconduct that would justify dismissal with notice. However, the employer had consciously permitted the applicant to come to work following the investigation in the full knowledge of the nature and extent of the misconduct for which it later summarily dismissed him. Allowing the applicant to continue work was considered inconsistent with decision to then summarily dismiss him on the basis of that misconduct.

The Commission found that ‘the manifestly erroneous approach adopted by the employer when dealing with what has subsequently been established to be both serious misconduct and significantly less serious misdemeanours, has meant that there was not proper basis to justify the summary dismissal of the applicant. The procedural errors made by the employer have rendered what would have otherwise been an entirely fair dismissal with notice, to be an unreasonable and unjust summary dismissal.’

The Commission determined that the summary dismissal of the applicant was unreasonable and unjust, and ordered compensation of $1,100.

Differential treatment

Fagan v Department of Human Services [2012] FWA 3043 (Cribb C, 19 April 2012).

The employee was a corrections officer. He was dismissed for taking toilet paper to an inmate during lockdown in breach of the employer's policy. The employee claimed that another employee was not dismissed for the same conduct in comparable circumstances. The employer argued that the applicant employee's conduct differed from the other employee.

It was found that the conduct of the 2 employees was comparable and that there was differential treatment. It was also found that the termination was harsh in the circumstances and an order for compensation was made.

Dismissal was NOT unfair

Not procedurally unfair

Rooney v Pickles Auctions Pty Ltd [2016] FWC 858 (Cambridge C, 9 February 2016).

The employee had worked for the employer for about 6 years and 8 months and was employed in the role of a Detailer/Floor Staff. The employee was dismissed on the afternoon of 17 June 2015 because earlier that day he had failed to attend for work at or before his scheduled start time and without prior notification of his lateness. The employee had a history of poor attendance, primarily involving his failure to attend at or before the scheduled start time and he had been provided with numerous verbal and written warnings regarding his poor attendance.

The Commission found that the employer provided the employee with an opportunity to explain or make out a defence for his late attendance and failure to provide prior notification on 17 June. When the employee could not provide any satisfactory explanation the employer carefully considered the circumstances, and reluctantly decided that in view of the employee’s demonstrated inability to be able to improve his attendance, his employment should be terminated.

The Commission found that the notification of the dismissal of the employee, and other aspects of the procedure that the employer adopted to deal with the dismissal, contained no identifiable deficiency. It found was a valid basis for the dismissal and the procedural aspects of the employer’s approach to the dismissal of the applicant was proper and just, and should be properly recognised as ‘commendable’. The Commission concluded that the employee’s dismissal was not harsh, unjust or unreasonable and dismissed the application.

Not procedurally unfair

Hill v Cobham Aviation Services Pty Ltd T/A Cobham Aviation Services [2019] FWC 7875 (Anderson DP, 22 November 2019).

The applicant was dismissed for misconduct which the respondent considered a breach of its Code of Business Conduct. Since 2017 the applicant had experienced major health challenges, including depression. His employment security was not adversely impacted by these challenges.

However from 2017, performance and conduct issues emerged sporadically. These issues concerned the applicant's conduct in and around other staff. Performance reviews referred to these matters and from time to time, he was informally spoken to by his manager about his conduct. A new software system was introduced in 2018 and the applicant as well as other managers and staff experienced difficulties with the system and adapting to it. An email disagreement occurred between the applicant and a colleague about an invoice and what information it should contain. The applicant lent over a partition and in a raised voice abused his colleague.

Management intervened and investigated the incident. It commenced a disciplinary process and provided the allegations in a letter to the applicant. The applicant then took five weeks of personal leave (supported by medical certificates), and upon his return a disciplinary meeting occurred. During the meeting the applicant became loud and aggressive. The meeting was rescheduled to prevent further escalation. The respondent arranged for a representative from the company's employee assistance program (EAP) and security to be available for the rescheduled meeting. After discussions at the rescheduled meeting the applicant was dismissed for breaching the Code of Conduct, for his conduct during the disciplinary meetings and a lack of remorse.

The Commission found the applicant's outbursts and unsatisfactory dealing with staff were of relatively recent duration (given his 13 years of service), were sporadic and were not a constant occurrence. However unacceptable workplace conduct, even when occasional, if repeated and not remediated can warrant disciplinary sanction including dismissal, depending on the circumstances. The Commission found a valid reason for dismissal, in particular the applicant's misconduct in the workplace when he abused, threatened and intimidated a colleague. With respect to the applicant's depression, the respondent had advised of the company's willingness to enable him to take time to get better and informed him of the counselling services available through the EAP. The Commission found this was an appropriate and respectful response. The applicant presented no evidence that his conduct arose from or was caused by his depression.

The Commission held that the applicant was not denied procedural fairness. Aside from the warnings and counselling, the allegations of misconduct were put to him; he was provided an opportunity to explain; and disciplinary meetings were deferred to meet his circumstances. The applicant was invited to obtain assistance from a support person but declined. The Commission found that the applicant was not denied ‘a fair go’ and that the dismissal was not unfair. The application was dismissed.

No differential treatment

Darvell v Australia Post [2009] FWA 1406 (Hamilton DP, 2 March 2010).

Permission to appeal refused in (2010) 195 IR 307.

The employee was a truck driver and an occupational health and safety representative. He was summarily dismissed when he refused to follow his employer's direction on safety grounds. The employee argued that the employer had treated him differently to other employees.

It was held that there must be sufficient evidence of comparable cases to enable proper comparison. The application was dismissed.

No differential treatment – union delegate

Parry v Hans Continental Small Goods Pty Ltd [2010] FWA 9013 (Spencer C, 8 December 2010).

The employee had been employed for 9 years and was dismissed for swearing at his manager. The employee was a union delegate. The employee claimed differential treatment.

It was found that the common usage of swear words in the workplace was distinguished from the employee's swearing, which was directed at his manager in an insulting manner. The dismissal was not unfair and the application was dismissed.

No differential treatment – age of employee and ability to find alternative work considered

Daly v Bendigo Health Care Group, PR973305 (AIRC, Kaufman SDP, 13 July 2006).

The employee was employed as nurse in a psychiatric facility. The husband of a patient made a complaint about the treatment of his wife at the facility. Following an investigation, the employee was terminated for serious misconduct. The employee alleged differential treatment because other nurses on the shift who were also responsible for the care of the patient were not dismissed.

There was insufficient evidence to enable a proper comparison with other employees. It was found that the summary dismissal of the employee was justified and dismissed her application.

No evidence of differential treatment – age and length of service of employee taken into account

Sexton v Pacific National (ACT) Pty Ltd, PR931440 (AIRC, Lawler VP, 14 May 2003).

The employee and his co-driver were shunting 30 rail carriages and negligently caused the rail carriages to go down the wrong track and collide with another set of carriages. The employee had previously been warned in relation to a derailment incident. The employee claimed differential treatment between himself and his co-driver.

The separate derailment incident was distinguished from that of the employee as the employee involved in the other incident had no previous warnings. The employee's age and length of service were taken into account, as well as his apology and positive work history. It was found that the termination was not harsh, unjust or unreasonable and the application was dismissed.

Age of employee, length of service, personal and economic situation

Sipple v Coal & Allied Mining Services Pty Limited T/A Mount Thorley Warkworth Operations [2015] FWCFB 5728 (Hamberger SDP, Gostencnik DP, Riordan C, 16 October 2015).

Decision at first instance [2015] FWC 1080 (Stanton C, 18 February 2015).

The employee was employed as a pit services operator at a mine. He was dismissed on the basis that he was no longer able to perform the inherent requirements of his position as a multi-skilled worker due to personal injury. At first instance it was found that there was a valid reason for the dismissal on the basis that the employee was unfit to perform his role and that the termination was not harsh, unjust or unreasonable.

A Full Bench granted permission to appeal on the basis that the Commission had failed to properly consider a number of matters, including the age of the appellant, his length of service, his literacy, family commitments and the availability of other duties, which were relevant to the consideration of whether his dismissal was harsh, unjust or unreasonable.

The Full Bench majority agreed that there was a valid reason for the employee's dismissal. Much of the employee's case rested on the fact that he could continue to work as a service cart operator. However, the majority held that the employer did not have a need for a service cart operator and the employee's medical restrictions significantly limited his capacity to operate other pieces of equipment and perform the inherent requirements of the role of pit service operator. The majority found that the additional matters did not weigh so heavily in favour of the employee as to render the dismissal in the circumstances, harsh, unjust or unreasonable. The appeal was dismissed.