Toss of the coin; summary dismissal vs dismissal with notice

The Fair Work Commission may conclude in an unfair dismissal case that a summary dismissal for serious misconduct is relevantly unfair and thus attract an order for reinstatement or an award of compensation but that if effected with notice or pay in lieu, even though the conduct alleged may be the same, is justified because there is a valid reason for the dismissal.
“As unsavoury as the conduct of Mr Guenther was when he verbally abused a fellow employee on 7 July 2016, it is difficult to conclude that Mr Guenther’s conduct amounted to serious misconduct such as to warrant summary dismissal…..Whilst I am satisfied that the conduct of Mr Guenther created a valid reason for his dismissal it fell short of being conduct which was incompatible with a continuation of the employment relationship such as to warrant summary dismissal……Equally, whilst I am satisfied that the abusive language directed at a fellow employee caused her some distress I am not satisfied on the material before the Commission that Mr Guenther’s conduct amounted to conduct that causes serious and imminent risk to the health or safety of that employee.”
Put another way misconduct (for example a breach of an employer’s policies) may justify dismissal with notice or pay in lieu, but not summary dismissal.

Guenther v Masterglass & Aluminium Pty Ltd (2016) FWC 7717 delivered 24 October 2016 per Ryan C