Misconduct and valid reason for dismissal

Not all cases of misconduct by an employee will constitute a valid reason for dismissal.

B, C and D should not be read as establishing the proposition that all proven cases of misconduct, including breaches of an employer’s policy, necessarily constitute a valid reason for dismissal. As the Full Bench in Gelagotis and Hatwell said:

‘There would be a valid reason for termination if the conduct occurred and it justified termination. There would not be a valid reason if the conduct did not occur or it did occur but did not justify termination. For example, an employee may concede that the conduct took place but contend that it involved a trivial misdemeanour [Edwards v Giudice (1999) 94 FCR 561 at [7] per Moore J].’ 9

Beijing Capital Airlines Co Limited T/A Beijing Capital Airlines v Xueyang Shan (2019) FWCFB 3867 delivered 7 June 2019 per Catanzariti VP, Hamberger SDP and Bissett C