You can rely on past behaviour to justify a dismissal
The Full Bench of the Fair Work Commission has recently revisited the issue of an employer relying on past behaviour in justifying a dismissal.
Previous incidences of misconduct outlined in a termination letter were given to Mr Johnpulle. These incidences were also significantly less serious than those triggering the decision to terminate and which had been previously settled ‘on the shopfloor.’
Mr Johnpulle was dismissed after he was alleged to have made offensive comments about Islamic State and the Taliban to a colleague of Middle Eastern heritage. These comments were similar to those made on three other separate occasions in the past. On each occasion he was spoken to and he had agreed to stop talking to his colleague in this way.
It was at first seen to be unfair relying on past behaviour however on appeal, the employer argued that the past behaviour of Mr Johnpulle supported a conclusion that the dismissal was not harsh, unjust or unreasonable.
The Full Bench agreed that the earlier instances of inappropriate behaviour were not in and of themselves a valid reason for dismissal. However, they did find that there were relevant matters to consider in determining whether the dismissal was harsh, unjust and unreasonable. The earlier instances were seen to be highly material consideration in relation to whether the dismissal was unfair.