Dismissal cases; valid reason but unreasonable

In unfair dismissal cases, it is necessary for the Fair Work Commission under the tests provided for by the Fair Work Act to firstly decide whether there was a valid reason for the employee’s dismissal and secondly whether (even if there was) the penalty of upholding the decision is harsh , unjust and unreasonable. And in doing the so the Commission often takes into account matters which are not at first sight all that obvious. For example,


[85] I have made findings in relation to all matters specified in s 387 of the Act as relevant.

I must consider and give due weight to each as a fundamental element in determining whether

the termination was harsh, unjust or unreasonable and therefore an unfair dismissal.

[2023] FWC 1500


[86] I have found the Respondent had a valid reason for the dismissal of the Applicant, and

there were no failures in procedural fairness afforded to the Applicant. I have found, however,

that it would have been reasonable in the circumstances for the Respondent to have allowed the

Applicant six months from the loss of certification to regain his WWCC before effecting

dismissal, and the failure to allow such further time resulted in the dismissal being harsh, and

so unfair.”


Bhela v Busways Group Pty Ltd [2023] FWC 1500 delivered 19 July 2023 per Cross DP