Mitigating Factors and Dismissal – What is Relevant?

If you’ve ever conducted a disciplinary interview with an employee, you may have asked them if there are things they’d like you to take into account when making your decision about how to handle the matter.

These are often referred to as ‘mitigating factors’, and are an important part of the disciplinary process. But we find employers can be uncertain about the concept, and what is relevant.

And rightly so – mitigating factors are fluid, changing and evolving depending on the circumstances of a matter.

the Legislative basis for mitigating factors

The Fair Work Act sets out the criteria for the Fair Work Commission (FWC) to consider whether a dismissal is harsh, unjust or unreasonable, including whether there was:

• A valid reason.
• Procedural fairness.
• Opportunity for the employee to be represented. 

It also requires that the FWC consider “any other matters that [it] thinks relevant.”

This is the provision under which the FWC will consider mitigating factors – any background circumstances that might explain the conduct or reduce the severity of the penalty for the employee.

It is a deliberately vague provision, as mitigating factors could include just about anything, depending on the circumstances of the individual.

Employers must consider these factors

Because the FWC must consider mitigating factors when determining an application for unfair dismissal, it follows that employers must also consider mitigating factors when making disciplinary decisions, including whether to terminate employment.

This also serves as a reminder to employers that when deciding whether to terminate employment, all of the employee’s circumstances need to be taken into account to arrive at a “reasonable” decision. It is especially important to ask the employee whether there are any matters that they would like to be taken into account.

A real world example

In the meantime, the school had removed her from her administrative role. She took issue with the allocation of classes that she was to teach.

Her relationship with the school’s leadership broke down, and some of her colleagues refused to work with her. She used social media and emails to colleagues to vent her concerns.

The school’s deputy head terminated her employment following an investigation, citing a total breakdown in the employment relationship. Anders claimed unfair dismissal in the FWC.

The FWC made findings about bias, but also found that there were some significant mitigating factors which the school ought to have taken into account when investigating the matter. These included:

• Anders’ previous good employment record. 
• Her mental illness diagnosis.
• Her husband’s critical illness at the time when allegations were first raised with her.
• The school’s failure to address earlier problems in the relationships between Anders and some of her colleagues.

In light of these factors, the FWC found that, even though Anders’ emails and social media comments were poorly judged, the termination of her employment was harsh and there was no valid reason for dismissal.

But even so, because her relationship with the school was so broken down, the FWC awarded compensation instead of reinstatement.

The need to take mitigating into account

This decision is a reminder to employers of the importance of taking into account any mitigating factors. If an employee’s conduct is out of line or serious enough for termination to be considered, employers should do everything possible to get to the bottom of the matter.

In our experience, the more thoroughly employers try to understand an employee’s conduct, the more likely the employer’s investigation will be seen as fair and reasonable. For further information about mitigating factors and how to address them, WISE Workplace can help. We’re just a phone call away.