Sometimes in unfair dismissal cases, actions that become known to an employee after they are dismissed can be relied upon in presenting their case. In a FairWork Australia (FWA) Full Bench decision handed down this month, three employees were allowed to rely on actions taken by their employer after dismissal in successfully arguing their claims.
The employer had terminated the employees’ employment citing economic reasons and, at the time, the employees had accepted that they had been subject to genuine redundancies and could not be redeployed. But when the employer appointed new staff to positions that the dismissed employees could have filled, they considered that they had actually been unfairly dismissed.
By this time, however, more than 14 days had passed since the dismissals, being the cut off time within which to bring an unfair dismissal claim. But the Full Bench granted the employees an extension of time on the basis that a later acquired belief that an earlier redundancy was not genuine may constitute ‘exceptional circumstances’ that justify extension of time limits imposed by the Fair Work Act 2009 (Cth) (FW Act).
The idea that events that follow termination can be considered in cases concerning dismissal was brought to our attention in a High Court case Concut Pty Ltd v Worrell  HCA 64 that was handed down 12 years ago. In that case, the opposite situation occurred. The employer was the one who benefited from relying on the employee’s misconduct as a sufficient basis for termination even though that misconduct only came into the employer’s knowledge after termination.
In that case, the employee had used the resources and time of the employer’s company to work on the construction of his own house. The employer dismissed the employee, but only later became aware of his serious misconduct. The High Court ruled that in defending a common law claim regarding a summary dismissal, the question is not whether the employer was aware of grounds to justify dismissal, but simply whether those grounds existed. Facts that came into the employer’s knowledge after the dismissal were still available for it to rely on in its defence.
Implications for Employers
This case shows that it is not just employers who can rely on facts which come to their knowledge after a dismissal, but also employees. Accordingly, employers need to be careful to ensure that when dismissing employees on the grounds of a genuine redundancy, that not only have they complied with any consultation obligation, but also determined whether it would be reasonable in all the circumstances for the employee to be redeployed within the enterprise or the enterprise of an associated entity.