In unfair dismissal applications, the Fair Work Commission (the Commission) must look at the factors under section 387 of the Fair Work Act 2009 (Cth) (FW Act) when considering whether a dismissal was ‘harsh, unjust or unreasonable’.
The first of these factors is whether there was a ‘valid reason’ for the dismissal relating to the person’s capacity or conduct. Where there is no valid reason for the termination of employment, it is likely that the termination will be found to be unfair. It is accepted that a ‘valid reason’ will involve an objective assessment and it is not enough that the employer believed that there was a ‘valid reason’.
In Moody v C.T. Freight Pty Ltd  FWC 4491, the employee was employed as a Warehouse Supervisor. In July 2016, he suffered an injury to his back and hip and made a workers’ compensation claim. In August 2016 the employee returned to work on reduced hours performing restricted duties before returning to full hours in December 2016.
In April 2017, the employer became aware that the employee was playing golf and a Google search led the employer to a local newspaper article stating that the employee participated in a golf tournament on 27 September 2016 – when the employee was on restricted hours and duties.
At a meeting with the employee, the employer was asked whether he had played golf on 27 September 2016. The employee stated that he “may have played 9 holes” and was then shown a copy of the newspaper article. The following day, the employer commenced a disciplinary process alleging that the employee had wilfully and deliberately breached his return to work plan by engaging in activities which contravened his certified physical restrictions and functions and created a risk of aggravating his injury. The employee was subsequently terminated on the grounds of “gross misconduct”.
In the Commission, the employee submitted that there was no valid reason for his dismissal. He was on a period of annual leave when he played nine holes in the golf tournament and played with a modified style of golf which did not impact on his physical recovery or relate to his physical activities at work. The employee submitted that he had not been shown that playing golf was in breach of his return to work plan. The employee also claimed that his treating medical practitioners advised that activities such as golf could assist in his physical and psychological recovery.
The employer submitted that there was a valid reason for the termination of the employee’s employment and the employer afforded procedural fairness to the employee. The evidence against the employee was “clear and compelling” and that the employer did not accept his “unconvincing” explanations, in particular that the employee played a modified golf style in a competitive golf tournament.
The Commission noted that the employer did not seek medical evidence or opinion about whether the employee’s modified style of golf would be in conflict with the physical limitations and return to work plan. For the Commission, a medical practitioner would be the only person placed to make an objective assessment of whether playing golf was inconsistent with the restrictions in the return to work plan, not the employer.
The Commission was also critical of the employer’s insistence that the employee played 18 holes of golf and that there was a loss of trust in confidence in the employee as a result of his dishonesty. The Commission held that the available evidence indicated that the employee played nine holes of golf in a modified style and he did not conceal this when he was asked. In the Commission’s view, even if the employee was in breach, it could not conclude that the termination of employment was an appropriate response to the conduct.
For these reasons, the Commission was not satisfied that there was a valid reason for the termination of the employee’s employment and held that the employee was unfairly dismissed. The Commission sought the parties’ submissions as to the appropriate order for compensation.
Lessons for employers
As noted above, an employer’s belief that there was a valid reason for termination of employment will not be sufficient for a finding that there was actually a valid reason. In this matter, the Commission identified that the employer should have and could have obtained medical evidence to address its concerns about the employee’s conduct in playing golf before proceeding to terminate the employee’s employment.
Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.
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