In determining an unfair dismissal application under the Fair Work Act 2009 (Cth) (FW Act), one of the matters the Fair Work Commission (FWC) must determine is whether there was a valid reason for the dismissal.

A valid reason is one that is a good reason for dismissal. It is also a reason that has been substantiated because the FWC is satisfied, based on the balance of probabilities, that the relevant misconduct or poor performance actually took place.

The FWC must consider whether there was a valid reason for dismissal, not whether the reason relied on by the employer was a valid reason. The FWC must decide for itself whether there were circumstances that constituted a valid reason to terminate the employment.

In Chol v Vivesco Pty Ltd (2024), a landscape and gardening business dismissed an employee following complaints from his co-workers about his behaviour.

The employee had called a co-worker a “fat exploiter of foreigners” in anger. The behaviour breached the company’s workplace bullying and intimidation policy, which lists as examples of workplace bullying: insults, yelling, offensive language, and derogatory, demeaning or inappropriate comments about a person’s appearance. The employee’s behaviour also contravened the company’s Code of Conduct, which lists unacceptable behaviours that may lead to dismissal, including the use of threatening or abusive language towards a fellow employee.

The FWC observed it was entirely unacceptable for a person to “fat-shame” a co-worker, and the aggressive outburst was clearly a valid reason for dismissal. It constituted serious misconduct that warranted summary dismissal.

However, the employer did not terminate employment in response to this incident. It was only later, after other employees had also complained about his conduct, that the employer decided to dismiss him, because of the cumulative effect of his behaviour.

The FWC ruled the fact the employer did not dismiss specifically because of the fat-shaming incident did not mean the behaviour was not a valid reason for dismissal in its own right. However, if the employer had waited longer before acting, the valid reason would have lost its “window of currency”. Nevertheless, the FWC considered it would be wrong to punish leniency, and to encourage hasty dismissals, by adopting too narrow an approach to this window.

The FWC ruled in the present case, the window remained open, because the fat-shaming incident was the first of several incidents involving inappropriate conduct towards co-workers. The employer had a well-founded concern the conduct was adversely affecting the welfare of other employees and this constituted a valid reason for dismissal.

The FWC determined the dismissal was not unfair. This was despite the fact the employer did not give the employee an opportunity to respond to the ground for dismissal and only informed him of the reason after the dismissal. While observing the employer should have given the employee an opportunity to respond to the allegations against him before dismissal, this procedural deficiency was outweighed by the seriousness of the misconduct. Further, the failure to put to the allegations to the employee did not lead the employer to reach incorrect factual conclusions about the relevant events.