Where a dismissed employee makes a claim for unfair dismissal1, there are seven specific criteria that the FWA must take into account2.

The first is "whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees)." The second to seventh criteria relate to procedural fairness.

Accordingly, it is entirely possible – indeed, it is quite common – that a dismissal is found to be unfair even though there was a perfectly valid reason for that dismissal.

That is not however always the case, as was recently demonstrated in Nebauer v Jenni Taley T/A Johnny Crows Garden Childcare Centre3. The findings of fact were, in essence, as follows:

  • Ms Nebauer had been employed as a child care worker since May 2011.
  • In February 2012, a parent complained that Ms Nebauer smelt of alcohol. A staff member also complained that Ms Nebauer had been aggressive towards her and some children at the centre. Ms Nebauer was given a verbal warning and told that a repeat of conduct of this kind could result in dismissal.
  • On 19 April 2012, Ms Nebauer arrived late to work, smelling of alcohol. She was asked, "Have you been drinking?" She replied, "Yes." Ms Nebauer was sent home.
  • On 20 April 2012, Ms Nebauer telephoned the director of the employer to enquire into her employment status. She was informed that she had been dismissed for reasons of smelling of alcohol and admitting to having been drinking.

Senior Deputy President Richards had little difficulty in finding that this gave rise to a valid reason for dismissal. This was not however the end of the matter, because:

  • The employer did not notify Ms Nebauer in advance of her dismissal the reason for her impending dismissal, nor did it give her an opportunity to reply or to obtain any medical advice; and
  • Ms Nebauer was not given the opportunity to have a support person present during any interview or meeting relating to her dismissal.

In this case, "the absence of procedural fairness in the decision-making process and the lack of engagement with [Ms Nebauer] over the central issue"4did not make the dismissal unfair. In effect, the seriousness of the conduct outweighed the defects in the process.

Notwithstanding examples such as this, every attempt should be made by an employer to observe procedural fairness when considering dismissal. This case shows, however, that there will be occasions where substance prevails over process.

Footnotes

1This article specifically relates to claims for unfair dismissal under the Fair Work Act 2009 (Cth), although the principles are largely similar in other jurisdictions.

2Section 387 of the Fair Work Act 2009 (Cth), with an eighth factor being "any other matters that FWA considers relevant."

3Nebauer v Jenni Daley T/A Johnny Crows Garden Childcare Centre 2012 FWA 6946, delivered 17 August 2012

4At [68]

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Kott Gunning is a proud member of