FWC considers unfair dismissal procedural requirements

In brief 3 min read

The Full Bench of the Fair Work Commission (FWC) has ordered a case be reheard after it was found that adequate consideration was not given at first instance to whether a dismissed employee had been notified of, and given an opportunity to respond to, a valid reason for his dismissal.¹

How does it affect you?

• This decision reinforces the importance of adherence to procedural requirements in the determination of whether a dismissal has been harsh, unjust or unreasonable.
• Employers should ensure they properly notify employees of a valid reason for the dismissal and give them an opportunity to respond before proceeding with the dismissal.

Background

Mr Reseigh was a glazier employed by Stegbar Pty Ltd for more than 20 years. In the year leading up to his dismissal, he had been absent for 120 days and was also frequently late to work. Mr Reseigh claimed his absences were due to an ongoing medical condition and surgery he had previously had.

Stegbar gave Mr Reseigh several written warnings about this conduct and required him to attend a medical assessment before his dismissal, but did not discuss with him at any stage that it was considering termination of his employment. Mr Reseigh was eventually dismissed on the grounds of incapacity, specifically that he was unable to perform the inherent requirements of his duties and that his aggregated absences could not be viewed as short term.

Mr Reseigh made a claim of unfair dismissal to the FWC. At first instance, a Commissioner of the FWC held that Mr Reseigh had not been unfairly dismissed as there was a valid reason for his dismissal (being his poor work attendance and being regularly late to work), there had been adequate opportunity for Mr Reseigh to respond to the dismissal decision and he was aware of the nature of Stegbar's concerns about his conduct.

Mr Reseigh appealed the decision to the Full Bench of the FWC.

The decision

The Full Bench disagreed with the Commissioner at first instance and said that:

• The reasons Stegbar gave Mr Reseigh for his dismissal (related to his incapacity) were different to the reasons which were found to be valid by the Commissioner (which related to his conduct).
• Therefore, the Commissioner at first instance was required to consider if the valid reasons for the dismissal (ie the conduct reasons) were notified to Mr Reseigh.
• The Commissioner was also required to consider whether Mr Reseigh was given an opportunity to respond to the conduct issues, and that it was difficult to see how Mr Reseigh had been given this opportunity since he wasn't advised by Stegbar that it was considering dismissal, and it also did not give him an opportunity to respond to the medical report which it relied upon to dismiss him.

For these reasons, the Full Bench found there were errors in the reasoning of the Commissioner and ordered the matter be remitted for rehearing.