The law of unfair dismissal

The two principal issues when determining whether the dismissal of an employee warrants a remedy under the Fair Work Act is firstly whether there was a valid reason for the dismissal and secondly (even is there was) whether the dismissal in all the circumstances was harsh, unjust and unreasonable.

“In general, there are said to be three circumstances that bear upon whether a dismissal is harsh, unjust or unreasonable:

  1. a) the acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred;
  2. b) the broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employee or inconsistent treatment of other employees guilty of the same misconduct.]
  3. c) the personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents.] 182”

Tainsh and another v Co-Operative Bulk Handling Ltd (2021) FWC 4222 delivered 5 November 2021 per Beaumont DP