Section 387(c) and process failures

The decision of the Full Bench of the Fair Work Commission in Central Queensland Services Pty Ltd v Odgers [2020] FWCFB 304 will be welcomed by employers.

At first instance, Ms Odgers was successful in her unfair dismissal claim. Commissioner Hunt found that there was a valid reason for Ms Odger’s dismissal and that Ms Odgers was given the opportunity to respond to the reasons for dismissal before any decision was made about her employment. However, she found the employer’s “abject failure” to follow its own disciplinary process meant the dismissal was unfair.  Our note of that decision is here.

The Full Bench set aside the decision.

The Full Bench held that the question posed by section 387(c) of the Act is “whether the person was given an opportunity to respond to any reason” for the dismissal. They found that the Commissioner had incorrectly focused, not on that question, but on whether the employer had followed its internal processes.

The Full Bench stated:

“Section 387(c) is concerned with whether an employee was, in substance, afforded an opportunity to respond to the reasons for the dismissal. It does not mandate rigid compliance with any specified procedure. It is sufficient that the employee is made aware of the precise nature of the concern held about their conduct or performance and given a full opportunity to respond to it. The Commissioner’s conclusion that Ms Odgers was given, through the show cause process, an opportunity to respond and advance mitigation to the matters constituting a valid reason for her dismissal, appears, in our view, to satisfy the opportunity contemplated by the authorities. We therefore consider that the Commissioner misapprehended the statutory task under s.387(c). This gives rise to appealable error.

Further, the Appellant was not required to consciously consider or discuss with Ms Odgers the appropriateness (or otherwise) of possible alternative disciplinary outcomes in order to comply with s.387(c). Nor does s.387(c) require this. In any case, in her show cause response, Ms Odgers explained why she considered she should remain in employment. By concluding as the Commissioner did … the Commissioner acted on a wrong principle. This too gives rise to appealable error.”

The Full Bench remitted the case for rehearing.

In our view, the decision supports the view that the failure to follow an internal disciplinary process will not necessarily (or perhaps even usually) give the employee a basis for an unfair dismissal claim.