387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) 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); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
In Crozier v Palazzo it was held that:
As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted. 5
(c) an opportunity to respond
 It is not enough that an employee be told of the reason for dismissal prior to the dismissal. He or she must also be given an opportunity to respond to that reason prior to the decision to dismiss being made. 6
 It is apparent from the evidence that the decision to dismiss the Applicant was made once Mr Gray viewed the CCTV footage. Following the viewing of the CCTV by Mr Gray, and on receipt of a phone call as to its content, Ms Jewell rang the Applicant and told him he was dismissed. It is clear that the CCTV footage was critical to the decision to dismiss the Applicant and that the decision to dismiss him was made prior to him being advised of the content of the CCTV.
 I find it disturbing that neither Ms Jewell nor anyone else from the Respondent sat with the Applicant and explained to him the allegations, the evidence and the potential consequences of the allegations if proven, nor asked him why he should not be subject to a disciplinary outcome (including dismissal).
 On Ms Jewell’s evidence it appears that the telephone conversations she had with the Applicant would have, cumulatively, amounted to no more than five minutes in length. Even if Ms Jewell had difficulty physically travelling to the work site to meet with the Applicant, this could have been overcome by having the Applicant sit with his local manager (Mr McKerrow) with Ms Jewell on the phone to ensure that the Applicant did understand what was being put to him. Alternatively, if arranging such a meeting was too difficult, the Respondent could have put the allegations and potential consequences in writing to the Applicant and asked for his response.
 Ms Jewell suggests in her evidence that as the conduct warranted summary dismissal it did not require that a meeting occur. 7 I am not sure as to why she reached this conclusion. Whether the discussion took place in a meeting or over the phone (taking into account my observations below as to process and procedural fairness) the Applicant had a right to be advised of the reason for his dismissal, to be given a right to provide anything he wished to put in mitigation for his actions and to have this considered prior to the decision to dismiss him being made.
 For these reasons I find that the Applicant was not given an opportunity to respond.
David Cormack – Brisbane Barrister & Mediator