The onus of proving to the Fair Work Commission that a dismissal was relevantly unfair (ie harsh, unjust OR unreasonabl)e lies upon the applicant employee.
“[35] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd1 as follows:
“… It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[36] The onus is on the Applicant to prove her dismissal was harsh, unjust and/or unreasonable. “
Mushayabasa v Rombola Family Farms Pty Ltd [2024] FWC 2940 delivered 28 October 2024 per Dean DP