• [76] The Respondent submitted that the Applicant appears to contend that the decision
of a single Commissioner in Jones establishes that the obligation to provide natural
justice for s.387(c) of the FW Act includes an obligation to hold face to face meetings
with the employee as distinct from providing the employee with an opportunity to
respond to reasons for dismissal in some other way. The Respondent submitted that in a
[12]
unanimous decision of a Full Bench of the Commission in Bluescope Steel v Agas
at
paragraph [77], the Full Bench stated:
“[77] In summary, the Commissioner failed to make requisite findings about the criteria set
out in s.387(b), (c) or (d)of the Act. If he had - based on the evidence - he would have been
bound to conclude that BlueScope had notified Mr Agas of the reason they were considering
dismissing him, had given him an opportunity to respond to that reason and had not
unreasonably refused to allow him a support person at any relevant discussions. Despite
this, the Commissioner found that ‘the investigative process’ was procedurally unfair. He did
this by substituting an alternative notion of procedural unfairness to that set out in the Act.
The process was unfair he found because it ‘did not involve an interview with the relevant
employee.’ The requirements are those set out in s.387(b), (c) and (d); whether to conduct an
interview is a matter for the person conducting the investigation. In this case, Mr Agas well
knew the basis of BlueScope’s concerns, and had ample opportunity to present his case.
There were no sound grounds for finding that there was any procedural unfairness. Mr
Agas’s union made written representations for BlueScope to consider. Moreover, further
representations were made at the show cause meeting and, relevantly, prior to the final
decision to dismiss.”
(Respondent’s emphasis)
• [77] The Respondent submitted that the gist of the Full bench decision at paragraph
[77] above, is that the Commissioner in that matter substituted an alternative notion of
procedural fairness to that set out in the FW Act, and the same conclusion can be
reached with respect to the Jones decision.
• [78] The Respondent submitted that the evidence provided demonstrates the
Applicant’s dismissal was not harsh, unjust or unreasonable. However, in the event the
Commission finds in the alternative, the Respondent requested an opportunity to make
further submissions as to remedy.
• [79] I have taken into account all of the submissions that have been provided by the
parties and I have attached the appropriate weight to the evidence of the witnesses. The
fact that an issue is not mentioned in this decision does not mean that it has not been
taken into account.
• [80] It is not in dispute and I find that the Applicant is protected from unfair dismissal,
submitted her application within the statutory timeframe, was not made genuinely
redundant and did not work for a Small Business.
• [81] When considering whether a termination of an employee was harsh, unjust or
unreasonable, the oft-quoted joint judgement of McHugh and Gummow JJ in Byrne v
[13]
Australian Airlines (Byrne)
is of significance:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh
or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will
overlap. Thus, the one termination of employment may be unjust because the employee was
not guilty of the misconduct on which the employer acted, may be unreasonable because it
was decided upon inferences which could not reasonably have been drawn from the material
before the employer, and may be harsh in its consequences for the personal and economic
situation of the employee or because it is disproportionate to the gravity of the misconduct in
respect of which the employer acted.”
• [82] In analysing Byrne, a Full Bench of the Australian Industrial Relations
[14]
Commission in Australian Meat Holdings Pty Ltd v McLauchlan (AMH)
held:
“The above extract is authority for the proposition that a termination of employment may
