Notification of the reason, and your opportunity to respond
The reason for dismissal has to be given before the decision is made, in explicit and plain terms, and the employee has to get a real chance to answer it.
Two of the factors the Fair Work Commission weighs under section 387 sit close together: whether you were told the reason for your dismissal before it happened, and whether you had a genuine chance to respond to it. The Commission's guidance treats them as connected, because notification without a real chance to respond defeats the point of notifying at all.
What proper notification looks like
The valid reason has to be given to the employee before the decision to terminate is made, in explicit terms, and in plain and clear terms. A Full Bench decision the Commission cites, Crozier v Palazzo Corporation, put the logic behind the rule plainly: procedural fairness requires notifying someone of the reason before any decision to terminate is taken, precisely so they have a real opportunity to respond to it.
A real case example, and what it actually decided
In Suzara v St Vincent's Private Hospitals Ltd [2019] FWC 87, a dismissal reason was raised for the first time at the hearing itself, and another only in the dismissal letter after termination had already taken effect. Those are genuine notification defects: reasons introduced after the decision was made cannot have been responded to before it was made, which is the whole point of the rule.
The applicant still lost. The Commission held that the dismissal was "not harsh, unjust or unreasonable" and dismissed the application, finding that the procedural defects did not outweigh the valid reason for the dismissal. The useful lesson from the case is not that late notification wins a claim; it is that notification defects of this kind, on their own, were not enough where a valid reason for the dismissal existed. They are still worth raising, because they go toward the overall assessment, but they are not a guaranteed win.
Where this came from
- Fair Work Commission: Notification of reason for dismissal.
- Fair Work Commission: Opportunity to respond.
- Fair Work Commission: Suzara v St Vincent's Private Hospitals Ltd [2019] FWC 87 (decision).