The essence of an unfair dismissal case

This extract from an unfair dismissal decision deals with the essence of the elements of an unfair dismissal case.

“Consideration

[68] I have taken into account all of the submissions that have been provided by the parties

and I have attached the appropriate weight to the evidence of the witnesses.

[69] It is not in dispute and I find that the Applicant is protected from unfair dismissal,

submitted her application within the statutory timeframe, was not made genuinely redundant

and did not work for a Small Business.

[70] When considering whether a termination of an employee was harsh, unjust or

unreasonable, the oft-quoted joint judgement of McHugh and Gummow JJ in Byrne v

Australian Airlines (Byrne)

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is of significance:

“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.”

[71] In analysing Byrne, a Full Bench of the Australian Industrial Relations Commission in

Australian Meat Holdings Pty Ltd v McLauchlan (AMH)

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held:

“The above extract is authority for the proposition that a termination of employment may

be:

  • unjust, because the employee was not guilty of the misconduct on which

the employer acted;

  • unreasonable, because it was decided on inferences which could not

reasonably have been drawn from the material before the employer; and/or

  • harsh, because of its consequences for the personal and economic

situation of the employee or because it is disproportionate to the gravity of the

misconduct”.

[72] Further, a Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd3

said:

“[24] 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

  1. 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”.

 

Tait v The Commissioner Of Public Employment [2023] FWC 1264 delivered 6 June 2023 per Riordan C