Dismissal not harsh or unjust but unreasonable

Here is a passage from an unfair dismissal case in the Fair Work Commission in which a dismissal was found not to be harsh and unjust but unreasonable and therefore relevantly unfair warranting a remedy.


“[88] In Sharp v BCS Infrastructure Support Pty Ltd,

54 a Full Bench of the Commission

discussed the question of whether particular conduct by an employee warranted their summary

dismissal as an “other relevant matter” within the meaning of s 387(h) of the Act (references


[2023] FWC 919


“[33] The relevance of the definition of “serious misconduct” in reg.1.07 to the matter

is also, with respect, obscure. Section 12 of the Act contains a definition of “serious

misconduct” for the purposes of the Act which simply cross-refers to reg.1.07. Apart

from s.12 itself, the expression “serious misconduct” is used in only three places in the

Act. In s.123(1)(b), a dismissal for serious misconduct is a circumstance in which the

notice and redundancy entitlement provisions of Pt 2-2 Div 11 are not applicable; in

s.534(1)(b) a dismissal for serious misconduct is one to which the requirements for

notification and consultation in Pt 3-6 Div 2 do not apply; and in s.789(1)(b) a

dismissal for serious misconduct is one in relation to which the requirements

established by Pt 6-4 Div 3 for notification and consultation do not apply. The

expression “serious misconduct” is not used anywhere in Pt 3-2, Unfair Dismissal, of

the Act. Section 392(3) requires the Commission, in relation to the award of

compensation for an unfair dismissal, to reduce the amount that it would otherwise order

by an appropriate amount where it is “satisfied that the misconduct of a person

contributed to the employer’s decision to dismiss the person”. However, it is clear that

conduct may constitute “misconduct” for the purpose of s.392(3) without necessarily

being “serious misconduct”. The expression is used in the Small Business Fair

Dismissal Code, but that had no application in this case (and it is at least highly doubtful

in any event whether the reg.1.07 definition applies to the Small Business Fair Dismissal

Code). Reg.1.07 therefore had no work to do in the application of the provisions of Pt

3-2 to the circumstances of this case.

[34] It may be accepted that an assessment of the degree of seriousness of misconduct

which has been found to constitute a valid reason for dismissal for the purposes of

s.387(a) is a relevant matter to be taken into account under s.387(h). In that context, a

conclusion that the misconduct was of such a nature as to have justified summary

dismissal may also be relevant. Even so, it is unclear that this requires a consideration

of whether an employee’s conduct met a postulated standard of “serious misconduct”.

In Rankin v Marine Power International Pty Ltd Gillard J stated that “There is no rule

of law that defines the degree of misconduct which would justify dismissal without

notice” and identified the touchstone as being whether the conduct was of such a grave

nature as to be repugnant to the employment relationship. “Serious misconduct” is

sometimes used as a rubric for conduct of this nature, but to adopt it as a fixed standard

for the consideration of misconduct for the purpose of s.387(h) may be confusing or

misleading because the expression, and other expressions of a similar nature, have been

considered and applied in a variety of contexts in ways which are influenced by those

contexts. In McDonald v Parnell Laboratories (Aust) Pty Ltd Buchanan J said:

“[48] The terms ‘misconduct’, ‘serious misconduct’ and ‘serious and wilful

misconduct’ are often the subject of judicial and administrative attention as

applied to the facts of particular cases but there is relatively little judicial

discussion about their content and meaning. Naturally enough, when the term

‘serious misconduct’ is under consideration an evaluation of what conduct

represents ‘serious’ misconduct is influenced by the (usually statutory) setting

in which the phrase must be given meaning and applied. Frequently, for

example, the question at issue is whether an employee is disentitled by reason

of his or her conduct to a statutory entitlement (eg. in New South Wales, where

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Ms McDonald was employed, see Long Service Leave Act 1955(NSW) s

4(2)(a)(iii); Workers Compensation Act 1987(NSW) s 14(2).”

[35] In the Decision, the Vice President, correctly, did not attempt to address the parties’

submission concerning “serious misconduct” in the context of his consideration of

whether there was a valid reason for the dismissal, but only as a relevant matter under

s.387(h). His findings at paragraph [55] and [56] that Mr Sharp’s conduct was “serious

misconduct” was, we consider, responsive to the submission of BCS noted in the first

sentence of paragraph [52] that “the Applicant’s conduct constituted serious misconduct

justifying immediate dismissal”. That is, “serious misconduct” was used as a shorthand

expression to describe misconduct of a nature that justified summary dismissal. A

finding of that nature was a matter which was open to be taken into account as relevant

under s.387(h) because it involved an assessment of the seriousness of the conduct in


[89] I will now consider whether Mr Hutton’s conduct warranted his summary dismissal.

[90] I consider that Mr Hutton’s conduct on 30 October 2022 was of such a grave nature as

to be repugnant to the employment relationship. His conduct was incompatible with the

employment in which he had been engaged by ESS as a Disability Support Worker. Although

the conduct only occurred on one occasion and involved difficult circumstances in which Mr

Hutton was the subject of a violent attack by the participant, ESS operates in an industry in

which it needs its Disability Support Workers to be able to safely restrain a participant in all

circumstances and at all times, even if the participant is engaged in a violent attack. I am

satisfied that Mr Hutton’s conduct warranted his summary dismissal.

[91] Fourthly, Mr Hutton contends that he was not afforded procedural fairness or natural

justice during ESS’s investigation into the incident. As part of this argument, Mr Hutton submits

that Mr Kennedy did not ask him enough questions during his investigation in relation to the

location of the participant, Mr Probert and himself during the incident. For example, Mr Hutton

says that Mr Kennedy asked Mr Probert to mark on a diagram the location of the participant

when he was being physically restrained, but Mr Kennedy did not ask Mr Hutton to mark a

diagram to the same level of detail during his interview.55

[92] Save for the appeals process point which I have already addressed, I am satisfied that

Mr Hutton was afforded procedural fairness and natural justice during ESS’s investigation into

the incident. Clear allegations were put to Mr Hutton in writing. He was interviewed twice

about the incident. Mr Hutton took up the opportunities afforded to him to respond to the

allegations put to him and explain his version of events, including what happened during the

physical restraint of the participant and where those events took place within the house in which

the participant was living. That Mr Hutton was not specifically asked to mark on a diagram

where people were located within the hallway or the participant’s bedroom at particular points

in time does not constitute a failure to provide procedural fairness or natural justice.

[93] I do not accept the contentions advanced on behalf of Mr Hutton that Mr Kennedy was

biased against Mr Hutton during his investigation, or that he smirked behind his hand during

the show cause meeting. It is plain from the evidence that Mr Kennedy conducted a detailed

investigation into the incident on 30 October 2022 and considered an extensive range of

[2023] FWC 919


information before making his findings that some, but not all, of the allegations were

substantiated. I do not consider there to be anything unusual in a person in Mr Kennedy’s

position reporting relevant matters to the police, prior to Mr Hutton’s dismissal, in

circumstances where it is alleged that a vulnerable member of society has been assaulted by an

employee of ESS.

[94] Nor do I accept that a decision was made to terminate Mr Hutton’s employment before

the show cause process. Both Mr Kennedy and Ms Butterworth rejected that proposition. Mr

Kennedy also gave unchallenged evidence that he discussed what Mr Hutton said during the

show cause process with the Managing Director of ESS and a decision to terminate Mr Hutton’s

employment was made after that discussion.56 Mr Hutton was upset that he was not given the

opportunity at the show cause meeting to dispute or challenge the findings made by Mr

Kennedy in his investigation report. It was explained to Mr Hutton that the show cause meeting

was not an opportunity to challenge the findings which had already been made; it was a chance

to explain why Mr Hutton’s employment should not be terminated. I accept the evidence given

by Ms Butterworth and Mr Kennedy that they were not disinterested in what Mr Hutton had to

say in the show cause meeting. As Ms Butterworth explained, the show cause meeting was a

serious meeting and she treated it seriously. That is why she was not her ‘bubbly’ usual self

during the show cause meeting.

[95] A complaint was made during final submissions on the topic of procedural fairness that

the show cause meeting took place when Mr Hutton was suffering from stress and had provided

ESS with a medical certificate. The relevant sequence of events is as follows. Mr Hutton’s

partner, Ms Nash, had been contacting ESS and asking for updates on the investigation.57 Mr

Kennedy’s investigation report was finalised on 13 December 2022. The investigation report

was provided to the senior management team at ESS and considered by the Managing Director,

Mr Vincent Johnston, who instructed Mr Kennedy to invite Mr Hutton to attend a show cause

meeting to explain why his employment should not be terminated. By email sent at 10:38am on

Thursday, 15 December 2022, Ms Nash informed Ms Butterworth that Mr Hutton had

experienced some major distress and had been given a mental health plan by his doctor.58 A

doctor’s certificate dated 13 December 2022, certifying Mr Hutton to be unfit to attend work

from 13 December 2022 to 7 January 2023, was attached to Ms Nash’s email to Ms Butterworth.

Later during the morning of 13 December 2022, Ms Butterworth spoke to Mr Hutton by

telephone and asked him to attend a show cause meeting on Monday, 19 December 2022. Mr

Hutton did not ask for the meeting to be put back or state that he was unfit to attend the meeting.

At 11:50am on 15 December 2022, Ms Butterworth emailed Mr Hutton and stated: “As just

discussed on the phone please see attached invite to show cause meeting and a copy of the

investigation report.”59 By email sent at 8:48am on Friday, 16 December 2022 to Ms

Butterworth, Ms Nash stated: “Thank you Lynn, see you Monday.”60 During the show cause

meeting on Monday, 19 December 2022, which Mr Hutton attended with Ms Nash as his

support person, no request was made for an adjournment of the meeting, nor did Mr Hutton

state that he was not well enough to participate in the show cause meeting. In light of these

events, I do not consider that it was unfair for the show cause meeting to take place on 19

December 2022.

Conclusion on whether a harsh, unjust or unreasonable dismissal

[2023] FWC 919


[96] After considering each of the matters specified in section 387 of the Act, my evaluative

assessment is that ESS’s dismissal of Mr Hutton was not harsh or unjust, but it was


[97] ESS had a valid reason for Mr Hutton’s dismissal and, save for the appeals process issue,

it afforded procedural fairness to Mr Hutton prior to making a decision to bring his employment

to an end. ESS operates in a highly regulated industry involving vulnerable persons and funding

from the NDIS. It is essential that ESS be able to employ persons who can deal with personal

restraints, where they are required, in a safe manner and who it can trust to provide full and

frank reports when an incident occurs. There is no dispute that Mr Hutton was ordinarily

dedicated in his care to the participant, but I have found that he used excessive force in difficult

circumstances on 30 October 2022 and did not report to his employer that he had been involved

in a physical restraint with the participant in which his knee had come into contact with the

participant. For these reasons, I consider that Mr Hutton’s dismissal was not unjust or harsh.

[98] However, because ESS failed to comply with its own appeals process, Mr Hutton was

denied the opportunity to participate in an internal appeals process and remain employed (and

paid) by ESS for a period of about eight weeks. In my assessment, ESS’s failure to comply with

its own internal appeals process and thereby deny Mr Hutton income for a period of about eight

weeks warrants a conclusion that Mr Hutton’s dismissal was unreasonable in all the

circumstances. This is not a case in which the failure to provide procedural fairness (by failing

to comply with the internal appeals process) did not give rise to any practical unfairness to the

applicant or the period of his employment with the respondent.

[99] I find that ESS’s dismissal of Mr Hutton was unfair because it was unreasonable.”


Hutton v Evolution Support Services [2023] FWC 919 delievered 19 April 2023 per Saunders D