If you warn an employee for engaging in misconduct, you may have difficulty if you change your mind and seek to rely on that misconduct to dismiss the employee. If the dismissal is challenged in the Fair Work Commission (FWC) unfair dismissal jurisdiction, the FWC will consider against you the fact you believed at the time that the misconduct didn’t warrant dismissal. However, there will still be cases where the FWC, having reviewed the evidence, decides that misconduct provides a valid reason to dismiss. In addition, the fact that warnings have been issued to the employee for past misconduct can, of course, be a relevant factor in assessing whether dismissal for a subsequent instance of misconduct is unfair.

In Parris v Trustees of Edmund Rice Education Australia (2021), the FWC Full Bench heard an appeal against a decision at first instance in which the Commissioner ruled that prior misconduct, about which the employee had only received warnings, weighed strongly against a finding that the dismissal was unfair.

The case involved a teacher being dismissed for misconduct involving a student at the school of his employer.

On appeal, the FWC Bull Bench did not consider the Commissioner had made an error at first instance. The effect of the misconduct on students was a relevant factor in assessing whether there was a valid reason to dismiss for subsequent misconduct.

If the Commissioner finds a valid reason for dismissal, the employee applicant needs to be heard on it

The FWC Full Bench found that the Commissioner denied the employee a chance to respond to one of the reasons relied upon for dismissal, namely that the employee had misled the employer during the investigation leading up to his dismissal and had been dishonest. During the unfair dismissal hearing it was not put to the employee that he had misled or had been dishonest in his dealings with the employer in relation to a leg-touching incident.

If a FWC member finds there is a valid reason for dismissal, which is not expressly advanced by the employer, then it must give the employee applicant a change to be heard on that reason.

However, while the FWC Full Bench identified this as an error on appeal, it didn’t order a rehearing because it considered that it would not have led to a different outcome. There was enough basis to conclude that there was a valid reason for dismissal and the dismissal was not unfair.

If the Commissioner decides who is to be believed, it’s difficult to overturn this on appeal

The Commissioner at first instance concluded that the evidence of a witness was “most unsatisfactory and unimpressive”, and often self-serving and evasive. The Commissioner set out detailed reasons as to why he had reached this conclusion, none of which was challenged on appeal.

The Full Bench observed that a Commissioner has the task of listening to evidence and, when different witnesses give different evidence about the same matter, the Commissioner must decide who the most credible witness is and make findings of facts accordingly. Those factual findings should not be overturned on appeal unless it can be shown the Commissioner made an error in the conclusions drawn from the evidence, i.e. the conclusions were improbable or contrary to compelling inferences.