not be the employer. It would seem reasonably clear Ms Wang was indicating the Chinese Investors would agree to employ the Applicant if Ms Wang recommended they do so but at the relevant time it appears Ms Wang did not yet have authority to make such an offer and there is no documentary evidence to suggest otherwise. There was also some limited evidence in this matter that the potential future role never came to fruition in any event.
CONSIDERATION
[55] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the considerations under section 387 of the Act.
(a) Whether there was a valid reason for dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees);
[56] A valid reason was described in Selvachandran v Petron Plastics Pty Ltd[1] as one which is "…sound defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based on the operational requirements of the employer's business."
[57] As stated, I have concluded the dismissal occurred on 13 March 2022. The Applicant and Ms Veas were the only persons who have given evidence in this matter. It would seem from the evidence that the only reason given to the Applicant for her dismissal was that the business is getting rid of any staff that didn't agree with the owners, and the Applicant didn't always agree with what Ms Wang wanted.
[58] The evidence supports a conclusion that the Applicant was merely trying to express a view as to what would be in the best interests of the business in regard to staffing across the two venues. The evidence does not support a conclusion that the Applicant refused to follow a lawful and reasonable direction and there is nothing else to support a conclusion that her actions constituted a valid reason for dismissal.
[59] On the basis of that evidence, I am not satisfied that the Respondent had a valid reason for dismissal based on the Applicant's conduct or performance.
(b) Whether the person was notified of the reason
[60] The Applicant was notified of the reason for dismissal at the meeting on 13 March 2022 when her employment was terminated.
(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[61] The Applicant was not given an opportunity to respond to the reason for termination. Despite the written submissions of the Respondent suggesting otherwise, it is apparent from the evidence before the Commission that Ms Wang gave instructions to Dream Nareekul to dismiss the Applicant immediately and there is no suggestion that anything the Applicant could have said to Dream Nareekul could have changed the decision that the Applicant be dismissed.
