Unfair dismissal, misconduct and condonation

This brief passage from an unfair dismissal decision of the Fair Work Commission deals with the relevance of an employer having condoned and instance of serious misconduct by an employee.

“At common law, an employer is not entitled to summarily dismiss an employee for an

earlier instance of employee misconduct if the employer with full knowledge of that misconduct

had decided to retain the employee in employment.129 In such cases the condoning employer is

taken to have waived the right to summarily dismiss the employee – in shorthand, the principle

is often referred to as condonation and waiver. But an employer may take such conduct into

account in deciding whether further misconduct by an employee justifies summary dismissal.”


Tra v Prodigy Holding Pty Ltd [2023] FWC 1514 delivered 15 August 2023 per Gostencnik DP