Opportunity to respond

See Fair Work Act 2009 s.387(c)

An employee must be notified of the reason for termination and must also be given an opportunity to respond to that reason before the decision to terminate is made.[1]

This process does not require any formality and is to be applied in a common sense way to ensure the employee has been treated fairly.[2]

'Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of this section.'[3]

For the Fair Work Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal, there needs to be a finding that there is a valid reason for dismissal.[4]

In Wadey v YMCA Canberra^[5] Moore J stated the following principle about the right of an employee to appropriately defend allegations made by the employer:

Related information

• Notification of reason for dismissal

Opportunity to respond was provided

Employee not provided with statements or identities of witnesses

Melouney v ACM Group Ltd [2012] FWA 9386 (Bull C, 12 November 2012).

The employer summarily dismissed the employee with allegations regarding his conduct in denigrating his employer and encouraging other staff to leave the employer and work with a competitor. The employer did not give the employee an opportunity to review witness statements which supported allegations of misconduct.

The Commission found that the employee was given an opportunity to respond and that he denied the offending conduct had occurred. The Commission also considered the extent to which the failure of the employer to provide the employee with the identity of the source of the allegations was a denial of natural justice and unfair.

It was held that the dismissal was not harsh, unjust or unreasonable.

Employee claimed new allegations were made with no opportunity to respond

Williams v Dtarawarra Pty Ltd t/a Dtarawarra Aboriginal Resource Unit [2011] FWA 5091 (Sams DP, 30 August 2011).

The employee was dismissed for misconduct and breach of company policy. The employee claimed that new allegations were made against her after she had been dismissed and as such she was denied procedural fairness.

It was found that the employee was notified of all the reasons for her dismissal and the employer gave her sufficient opportunities to respond to the allegations. It was held that the dismissal was not harsh, unjust or unreasonable.

Employee's failure to co-operate

Dissanayake v Busways Blacktown Pty Ltd [2011] FWA 3549 (Sams DP, 23 June 2011).

Permission to appeal refused in [2011] FWAFB 6487 (Acton SDP, McCarthy DP, Spencer C, 22 September 2011).

The employee was summarily dismissed for serious and wilful misconduct. The employee failed to cooperate in the disciplinary interviews but argued that he was not afforded an opportunity to defend the allegations made against him.

It was held that the employee's failure to cooperate and his denial of wrongdoing was no basis for finding that the employer had denied him opportunity to respond. The dismissal was held not to be harsh, unjust or unreasonable. Further, it was held that the seriousness of the employee's misconduct outweighed any minor procedural deficiencies.

NO opportunity to respond was provided

Employer cancelled employee's credit card, chained the premises and removed the employee from security register prior to meeting to discuss dismissal

Slavin v Horizon Holdings Pty Ltd [2012] FWA 5588 (Lee C, 2 August 2012).

The employee was dismissed for refusing to return a company car and being aggressive when asked to do so. During the meeting in which the employer dismissed the employee, the employer read out a script which concluded with the termination.

It was found that although there was a valid reason for dismissal based on the failure to comply with a lawful and reasonable direction, the termination was harsh. It was held that the termination was unfair because the employer had decided to terminate the employee prior to the disciplinary meeting and notification of dismissal.

Termination letter read out in disciplinary meeting

 Ryan v Logan & Co Pty Ltd [2011] FWA 161 (Cargill C, 11 January 2011).

The employer dismissed the employee for poor performance and alleged misconduct by reading out a termination letter in a meeting.

It was found that the employee was given no opportunity to respond as the outcome of the meeting had been pre-determined. The termination was held to be harsh.

Argument leading to constructive dismissal

Claypole v Australian Native Landscapes [2007] AIRC 682 (Hamberger SDP, 6 September 2007).

The employee was dismissed during a violent argument with his employer which involved the employer chasing the employee in a car and leaving the employee on the side of the road without a vehicle to drive home in. The employer argued that the employee had abandoned his employment and later argued that he had breached company policy.

It was found that there was no valid reason for the dismissal and the applicant was not notified in a proper manner, nor given an opportunity to respond.

Not notified of particulars of the allegations

Barclay v Nylex Corporation Pty Ltd (2003) 126 IR 294.

The employee was dismissed for sleeping at work during the night shift and for engaging in deceptive conduct to hide this behaviour from the employer. However, the employer did not notify the employee of the particulars of why he had been dismissed and he was given a limited opportunity to respond.

The employee's 25 years of service and the age of the employee, as well as the procedural deficiencies of the dismissal process was taken into account. It was held that the termination was harsh.

Limited English

Dimovski v Howe & Co Pty Ltd PR924186 (AIRC, Ives DP, 24 December 2002) [(2002) 127 IR 390].

The employee was dismissed for removing company property without proper authorisation. The employee argued that it was unintentional.

It was held that the employer did not give the employee an opportunity to directly address the comments of his accusers but instead relied on second hand allegations. It was also found that the employer did not properly accommodate the employee's limited understanding of the English language. It was held that the dismissal was unfair.

Applicant not notified of reason until hearing

Suzara v St Vincent’s Private Hospitals Ltd T/A St Vincent’s Private Hospital Melbourne [2019] FWC 87 (Cribb C, 9 January 2019).

The applicant was employed as a Theatre Technician. He was dismissed for yelling at and harassing a colleague, and for not following instructions from a surgeon which caused theatre to be delayed by one hour. The respondent also relied on a third reason for the dismissal at the hearing, which was that the applicant was dishonest. The applicant had travelled overseas while on personal leave with a medical certificate. The applicant also had a history of poor performance and conduct. The respondent had issued three warnings to the applicant and counselled him on his conduct on 15 occasions in two years.

The applicant was notified of the first two reasons for dismissal before the termination took effect, however he was not notified of the third reason (dishonesty) until the hearing. A fourth reason (relating to his conduct and work performance) was notified in the letter of dismissal after termination. The applicant was not given an opportunity to respond to the dishonesty reasons prior to the dismissal.

The Commission found that the applicant’s conduct towards his colleague and his failure to follow the surgeon’s instructions, together with his dishonesty amounted to serious and unacceptable behaviour. The Commission found that the formal warnings concerned the applicant’s unacceptable conduct. The Commission found that there was a valid reason for dismissal even with the procedural defects of the applicant not having been notified of all of the reasons for his dismissal. The Commission took into account the applicant’s disciplinary history and found that the dismissal was not unfair. The application was dismissed.