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)
1
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)
2
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
- 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