Unfair dismissal considerations how they can help you win

Any relevant mitigating factors are carefully considered by the Fair Work Commission when they consider an employee’s unfair dismissal claim. The scope of mitigating factors that the Fair Work Commission can consider is incredibly wide. Mitigating factors can include anything from the employee’s age and length of service. To whether they were experiencing difficulties in their private life. “Unfair dismissal considerations how they can help you win” is an extremely important article to read.

There are many more mitigating factors that the Fair Work Commission can consider. In this article, we detail what they are and what the Fair Work Commission considers when deciding if a dismissal was unfair. We also share a recent unfair dismissal case where an employee’s mitigating factors contributed to his successful unfair dismissal claim.

Unfair dismissal claims: The mitigating factors the Fair Work Commission must consider

The Fair Work Commission will consider a range of mitigating factors when deciding if an employee’s dismissal was unfair or not. The Fair Work Act 2009 states that the Fair Work Commission must decide if a dismissal was harsh, unjust or unreasonable. This includes considering whether:

• The employee was dismissed for a valid reason related to their capacity or conduct.
• The employee was informed of the reason for their dismissal.
• The employee was given a chance to respond to the reason for their dismissal.
• The employer unreasonably refused to allow a support person during dismissal discussions.
• The employee received warnings about their unsatisfactory performance prior to dismissal, if applicable.
• The size of the employer’s enterprise impacted dismissal procedures.
• The absence of dedicated human resource manager specialists or expertise in the employer’s enterprise impacted dismissal procedures.
• Any other relevant matters that the Fair Work Commission deems necessary to consider.

Unfair dismissal claims: What other mitigating factors are taken into account?

The last point in the above list is quite vague. And therefore, it compels the Fair Work Commission to consider a vast array of mitigating factors surrounding a dismissal. This can include any circumstantial factors that might explain the conduct that led to the employee’s dismissal.

As stated earlier, the Fair Work Commission must decide if the dismissal was harsh, unjust or unreasonable. Mitigating factors can be cited to argue that a dismissal was harsh. Mitigating factors that the Fair Work Commission are compelled to consider include:

• The employee’s age.
• The employee’s length of service with the employer.
• The employee’s disciplinary or performance record.
• The employee’s medical conditions, either relating to the employee’s mental or physical health.
• Whether the employee experienced bullying or harassment.
• Whether the employee had experienced significant pressure in their role.
• If the employee was experiencing trouble in their personal life. For instance, domestic abuse or the loss of a close family member.
• If the employee expressed contrition for any misconduct.
• The employee’s ability to successfully find another job.

Employer must consider employee circumstances

Given that the Fair Work Act 2009 compels the Fair Work Commission to consider these mitigating factors, employers are compelled to do the same. If such mitigating factors are made known to employers, they are obligated to enquire about and consider them prior to committing to a course of disciplinary action. If an employer doesn’t consider an employee’s relevant mitigating factors, and they go ahead and dismiss them, the employee may have a very promising unfair dismissal claim to make with the Fair Work Commission.

This is what happened in a recent unfair dismissal case, which we detail below.  

Council worker’s mitigating factors contribute to successful unfair dismissal claim

In the unfair dismissal case Romeo v Griffith City Council [2023], the NSW Industrial Relations Commission (NSWIRC) took into account a range of mitigating factors when considering a council worker’s dismissal.

The council worker, 54-year-old Rocco Romeo, had been working for Griffith City Council since 1998. As Team Leader for Traffic Facilities, Mr Romeo was required to hold an Australian driver’s license. But in May 2022, his license was suspended for six months as a result of committing an array of traffic offences. Mr Romeo, however, didn’t inform the Council about his suspended driver’s license. But they soon found out. On 1 September 2022, one of the Council’s employees informed it of the suspension.

Employee is suspended by the Council

The next day, Mr Romeo was pulled into a meeting with two managers. He admitted that his driver’s licence had been suspended and that he had not told anyone else at the Council. Mr Romeo claimed that he was not aware that he was obligated to tell anyone about the suspension.

He also lied about the length of the suspension. Mr Romeo said that his licence had been suspended on 10 August 2022, for a period of three months. His managers informed him that he would be placed on suspension while the Council conducted a workplace investigation.

Employee is questioned during his workplace investigation

About a week later, Mr Romeo attended another meeting as part of the workplace investigation conducted by the Council. This meeting was with his manager and the head of HR. In the meeting, he said that he had received a letter stating that his licence was suspended for four months. Mr Romeo said that he didn’t have the letter, as he had discarded it so his wife wouldn’t see it.

He also said that since his license suspension, he had driven a Council vehicle “a couple of times in the depot.” Mr Romeo was asked why he hadn’t told anyone at the Council about his license suspension. His answer was that he had been “going through a lot of health issues.” Also, that he was going to tell his manager about it. But he hadn’t because he had “anxiety and couldn’t do it.”

Employee asks that the Council considers his mitigating factors

During the same meeting, Mr Romeo was asked if had had anything else to say. He responded by saying that when deciding to dismiss him or not, the Council should take into consideration his 24 years of service. Also, the fact that his “health issues over the past 12 months have been pretty serious.”

Mr Romeo then handed a letter to the two managers from his doctor. It stated that he had had a “difficult time” over the previous year. This was because he had been battling bladder cancer, which required surgery. He had also suffered from severe hypertension, severe nasal construction with sleep apnoea needing surgery, and depression.

The employee is caught in a lie

A few days later, Mr Romeo gave the HR manager a letter from Services NSW, which he claimed to have found in his car. The letter was ripped and incomplete. However, it could be seen that his licence suspension was dated 6 May 2022 and that it was for six months.

Mr Romeo was against summoned to a meeting with his manager and the HR manager. He was asked to provide his full driving record, which he provided. But the managers noticed something awry. Mr Romeo’s driving record stated that he had received the letter only a few days ago, at his request. At this point, it was clear that he had lied about finding the letter in his car.

Employee appeals for consideration of mitigating factors when faced with dismissal

Days later, the Council’s Director sent Mr Romeo a show cause letter outlining the reasons why it was considering dismissing him. This included because he had not told anyone about his licence suspension. That he had mislead the Council about the suspension. And that while suspended, he had driven a council vehicle on council property. Over a week later, Mr Romeo responded to the letter with one of his own. In it, he apologized to the Council and said that he “understand the significance of his actions.”

He stated that at the time of his license suspension he had been recently diagnosed with bladder cancer. And worried about his future, he had struggled to tell his manager about the suspension. Mr Romeo also said that he felt regret for misleading the Council and not telling them sooner about his suspension. He said that his “anxiety was extremely high in relation to my medical treatment” and that he was “close to a mental breakdown.” Finally, Mr Romeo appealed for the Council to consider other forms of action other than his dismissal. Namely, a demotion, change of duties or training.

Employee is dismissed for serious misconduct

Days later, the Council’s General Manager wrote a letter to Mr Romeo. It stated that the Council had considered his mitigating circumstances. This included his medical issues and his 24 years of service. Also, Mr Romeo’s age, experience, salary, and contribution to the Council.

However, despite these mitigating factors, the General Manager wrote that he “cannot ignore your blatant dishonesty.” He said that Mr Romeo’s misleading and dishonest behaviour had breached the Council’s code of conduct. The General Manager said that his behaviour amounted to serious and willful misconduct. And as such, Mr Romeo was thereby summarily dismissed. He subsequently made an unfair dismissal claim with the Fair Work Commission.

The Fair Work Commission considers the mitigating factors surrounding the dismissal

At Mr Romeo’s unfair dismissal hearing, the Fair Work Commission agreed with the Council that his misleading behaviour was misconduct. However, it found that it was not a “scale of misconduct” that warranted a summary dismissal.

The Fair Work Commission also found that the Council had disregarded the mitigating factors surrounding Mr Romeo’s dismissal. This included:

• Mr Romeo’s medical issues being “given little weight by the Council.” The Fair Work Commission noted that it had not sought to discuss the medical issues with him.
  
• That Mr Romeo’s manager had discounted the letters from his doctor.
  
• That the Council didn’t discuss with Mr Romeo whether his medical issues and mental health impacted his decision making. That is, around lying about his licence suspension.
  
• That the Council had investigated Mr Romeo’s dishonesty. But it had not investigated whether his mitigating circumstances contributed to his behaviour.
  
• Mr Romeo’s 24 years of service at the Council. The Fair Work Commission stated that his length of service is “properly a matter to take into account in determining whether his dismissal was harsh.”
  
• Mr Romeo’s age (54) and the fact that he lived in a regional area. The Fair Work Commission found that the Council knew he may face difficulty in finding a new job due to these factors.

In summation, the Fair Work Commission ruled that Mr Romeo’s dismissal was harsh based on the mitigating factors surrounding it. Namely, his age, length of service, regional location and his medical condition. The Fair Work Commission therefore ruled that Mr Romeo’s dismissal had been unfair and ordered his reinstatement at the Council.

Take a ways: Have you been unfairly dismissed?

If you feel that your mitigating factors weren’t considered when you were dismissed, A Whole New Approach can help. We can assist you in making an unfair dismissal claim with the Fair Work Commission. But remember, you must act fast. You must make an unfair dismissal claim within 21 days of your dismissal.

We are Australia’s leading workplace mediators and commentators, (we are not lawyers) so you can trust that your unfair dismissal claim is in good hands. Our experienced workplace experts have a successful track record of handling over 16,000 cases and are committed to helping employees achieve a fair outcome. We focus on protecting your employment rights, you only pay if we win or settle your case. All serious misconduct, workplace investigations or abandonment of employment issues call us immediately.

Take advantage of our free initial consultation to understand your rights and explore available options. You don’t have to face the consequences of an unfair dismissal alone.

Contact us at 1800 333 666 for a confidential discussion and let us help you fight for justice.

Articles similar to Unfair dismissal considerations how they can help you win

Dismissed for out of hours serious misconduct

How much is my unfair dismissal case worth

Unfair dismissal payout how much can you receive