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FWC Reflects on the "Window of Currency" for Valid Dismissal Reasons

In a recent decision, the Fair Work Commission (FWC) explored the concept of "current" valid reasons for dismissal. This case involved Vivesco Pty Ltd, which summarily dismissed a gardener nearly two months after he verbally abused a colleague. Despite identifying significant procedural deficiencies, the FWC supported the employer's decision to terminate the employee.

Case Overview

The gardener argued that his dismissal was unfair and claimed Vivesco was trying to force him to resign by assigning difficult tasks and substandard equipment. On the other hand, Vivesco cited numerous complaints from co-workers about the gardener's aggressive behaviour over six weeks, leading to his summary dismissal.

FWC Reflects on the "Window of Currency" for Valid Dismissal Reasons
FWC Reflects on the "Window of Currency" for Valid Dismissal Reasons

The Key Incident

The primary incident leading to the gardener's dismissal occurred in mid-December. The gardener accused a colleague of being a "liar" over a lawnmower dispute, followed by calling him a "fat exploiter of foreigners" and daring him to report to the managing director. This behaviour constituted a valid reason for dismissal due to its aggressive nature.

Additionally, the gardener sent a "bizarre" message to a co-worker, claiming to be one of Australia's wealthiest men. The gardener explained this was meant to highlight the co-worker's 'imposter syndrome.' Another incident involved the gardener intimidating the same co-worker by calling him a narcissist while he was filling fuel cans.

FWC's Analysis

Deputy President Alan Colman determined the mid-December incident was serious misconduct and a valid reason for dismissal. However, Vivesco delayed the dismissal until after further complaints about the gardener's behaviour surfaced. The delay did not negate the validity of the original reason for dismissal.

Deputy President Colman emphasised that section 387(a) of the Fair Work Act 2009 (Cth) requires the Commission to assess whether there was a valid reason for dismissal, independent of the employer's timing. This provision underscores the importance of maintaining a valid reason for dismissal, even with procedural deficiencies.

Balancing Procedural Fairness and Misconduct

Although significant procedural deficiencies were acknowledged, including not notifying the gardener of the dismissal reasons or giving him an opportunity to respond, Deputy President Colman concluded that the severity of the gardener's misconduct outweighed these issues.

The case James Chol v Vivesco Pty Ltd [2024] FWC 1220 (9 May 2024) highlights the FWC's stance on unfair dismissal claims, emphasising that valid reasons for dismissal remain critical, even in the face of procedural shortcomings. This decision serves as a reminder that both procedural fairness and substantive reasons are crucial in dismissal cases.


This ruling provides valuable insights for employers and employees regarding the balance between procedural fairness and substantive reasons for dismissal. The FWC's decision affirms that while procedural deficiencies are significant, they do not automatically render a dismissal unfair if there are valid reasons justifying the termination.

For further details, refer to the case James Chol v Vivesco Pty Ltd [2024] FWC 1220 (9 May 2024).

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