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
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
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
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;
Ms Nebauer was not given the opportunity to have a support
person present during any interview or meeting relating to her
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.
1This article specifically relates to claims
for unfair dismissal under the Fair Work Act 2009 (Cth),
although the principles are largely similar in other
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 Centre2012 FWA 6946, delivered 17
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.
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