This extract from a recent unfair dismissal case sets out the legal principles which are applied by the Fair Work Commission when determining whether the conduct upon which the dismissal was based actually occurred.
“[40] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied
that the conduct occurred and justified termination.14
“The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”15 In Briginshaw v Briginshaw16 the High Court said the “seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable
satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by
inexact proofs, indefinite testimony, or indirect inferences.” While this principle does not raise
the standard of proof beyond the balance of probabilities, the strength of the evidence needed
to establish a fact on the balance of probabilities may vary according to the nature of the conduct
alleged. The Respondent alleges that the Applicant engaged in serious wrongdoing and the onus
in this case rests on the Respondent to prove, to the Commission’s satisfaction, that the
misconduct had, in fact, occurred.”
Mr Lester Box v Sirrom Co. Pty Limited [2026] FWC 301 per Matheson C delivered 22 April 2026