Case in Focus: After-Acquired Facts: When New Information Emerges After a Dismissal

You dismiss an employee for misconduct.

A few weeks later, further information comes to light, and it is significantly more serious than what you knew at the time.

Can you rely on that new information to defend an unfair dismissal claim? The short answer is: maybe. However, it is only for additional support, not a substitute.

What are “after-acquired facts”?

In an unfair dismissal case, the Far Work Commission asks a central question: Was there a calid reason for dismissal that existed at the time the employee was terminated?

The employer carries the onus of proving tat valid reason.

Importantly, the Commission is not confined only to what the employer knew at the time of dismissal. If facts existed at the time of termination, even if they were only discovered later, these facts may be relied upon in defending the claim as further support.

For example:

·       An employee is dismissed for misconduct

·       After termination, the employer uncovers further evidence that the conduct during the employee’s employment was more serious that originally understood.

·       Alternatively, it is discovered that the employee engaged in separate serious misconduct that had already occurred prior to dismissal.

In those circumstances, the employer may be able to rely on that information to support the fairness of the dismissal.

Is there a risk?

In principle, yes, as this is not a one-way protection.

If after-acquired facts show that:

·       The alleged misconduct resulting in the dismissal did not actually occur; or

·       The conduct was materially less serious than initially believed;

That can undermine the employers case to show there was no valid reason for dismissal that existed at the time of termination.

Practical Lessons for Employers

From a risk management perspective:

1.      Investigate properly before termination

Resist the pressure to move too quickly unless the circumstances genuinely justify immediate action.

2.      Ensure procedural fairness

Put allegations to the employee and provide a genuine opportunity to respond. Consider the employee’s response before deciding on the outcome of the investigation.

3.      Document the reasons clearly

If the evidence shows misconduct or other reasons for dismissal. Your termination letter should accurately reflect the conduct relied upon.

4.      Act proportionately

The Commission will always assess whether dismissal was a proportionate response in the circumstances

After-acquired facts can assist an employer, but they are not substitute for a careful, well run process at the outset.

If you are dealing with a complex misconduct issue or responding to an unfair dismissal application, early advice is critical. These cases are often won or lost on process and evidence rather than emotion.

If you would like guidance on ma aging a disciplinary process or responding to a claim, our employment team at Jenkins Legal & Advisory is available to assist. Please reach out here.

This article is not legal advice, and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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