Dismissed: No Chance to Respond and Still Ruled Fair

Comfort Management Pty Ltd has recently found itself in the clear after being taken to the Fair Work Commission over an alleged breach of the Fair Work Act 2009. The applicant was Mr Wenfu Yang, an employee who had suffered a workplace injury under the respondent’s employment and had subsequently commenced a period of workers’ compensation. These injuries were ongoing and permanent. They meant that Mr Yang was unable to carry out his job, and at the time he was terminated he had not worked for the employer for a period of nearly five years.

The applicant wanted an acknowledgement that he had been unfairly dismissed, as well as an order from the Commission to reinstate him to his previous position. The Commission had to consider section 387 of the Act, which outlines eight different criteria which must be examined in order to determine what actually is harsh, unjust, or unreasonable termination.

The first of these is whether or not there was a “valid reason…related to the person’s capacity.” On the facts the Commission was satisfied that the inability to carry out his work owing to permanent disability was sufficient reason. However, Mr Yang argued that he was not notified of the reason for his dismissal, and that he was not given and opportunity to respond. He further contended that he was given no warning about his unsatisfactory performance. All of these elements are considered when deciding matters of unfair dismissal. Failure to comply with these procedures will often mean that a dismissal is unfair. In fact, the Commission accepted all of these points, but ultimately still dismissed the application.

How could the dismissal be fair given the procedural defects?

Just because there are some procedural issues in the termination process does not automatically mean a dismissal will be unfair. One of the other criteria when considering harshness requires the Commission to look at whether or not the absence of HR staff would have impacted on the procedures. In other words, if the employer knew no better because there were no HR staff or employees with knowledge of employment relations, their liability for unfair dismissal may be reduced. This was, in the Commission’s opinion, one such instance.

The Commission may also take into account any other facts relating to the dismissal which it considers relevant. In this case, Commissioner Johns found that whilst these procedural breaches did occur, given the permanent nature of his injuries and the fact he had not worked for the respondent for nearly five years, following the procedures would not have resulted in a different outcome. The ruling was that the applicant was not unfairly dismissed.

The request for reinstatement was therefore quashed, however Commissioner Johns stated that even if the dismissal were unfair, he would not have reinstated the applicant. This was owing to the fact that Mr Yang was clearly incapable of fulfilling the inherent job requirements.

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Yang v Comfort Management Pty Ltd [2018] FWC 5816