FWA: constructive dismissal & procedural fairness

Victorian Association for the Teaching of English Inc v de Laps [2013] FWC 4163

The decision by the Full Bench of the Fair Work Commission is a useful review of the authorities on employer initiated or constructive dismissals based on allegations of not affording procedural fairness. The employer was successful. The decision highlights how such matters turn on the facts and interpretation of the facts.

[25] It does not appear to us that there is any real question as to the correct principles to be considered in applying s.386(1)(b) of the Act. Section 386(1)(b) reflects the common law principles of constructive dismissal set out in Mohazab, Rheinberger, Pawel and ABB Engineering, and summarised in O’Meara

[29] Plainly the existence of alternative means to address an employer’s conduct may be relevant to the consideration of whether an employee had ‘no effective or real choice but to resign’ and/or the probability that they would resign as a response to that conduct, but the weight to be given to the availability of such remedies will depend upon the nature of both the employer’s action and the available remedy in a given case. The question of the nature of the employer conduct required to constitute dismissal will likewise vary greatly from case to case and according to all of the facts and circumstances of a particular matter. It follows that any decision on appeal will be of only limited relevance beyond the circumstances of the particular case.” [Footnotes omitted]

[51] In our view his conclusion that the approach of VATE between 10 and 13 December 2012 was not designed to afford Ms de Laps procedural fairness was not open to him. We have come to this view for the following reasons.

[52] Under the FW Act, in considering whether a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account “any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal”. 46 Given that legislative provision and in the absence of any other obligation to allow an advocate, we do not think a refusal by VATE to allow Ms de Laps an advocate at the meeting on 17 December 2012 can be regarded as constituting an element of procedural unfairness.

Examples of where procedural fairness has been found not to apply:

Procedural fairness also includes being provided with adequately particularised allegations: Leimonitis and another v Qube Logistics (Vic) Pty Ltd [2013] FWC 3 – the employer only provided ‘scant’ allegations;

and

A sufficient opportunity to respond to the allegations: Ryan v Department of Human Services [2013] FWC 4060 – in that case the Commission found the employer acted in a seriously unfair procedural manner.

Brisbane Barrister – David Cormack

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