Unfair dismissal and proportionality

Although the Fair Work Commission will sometimes determine that an employer may have a valid reason to terminate the employment of an employee, the penalty of dismissal may well be disproportionate to the gravity of the employee’s conduct, rendering the dismissal relevantly unfair.

“If I am wrong and the Respondent did have a valid reason to terminate the Applicant for breaching its Policy, then adopting the obiter in Byrne and AMH, the dismissal was harsh because it was disproportionate to the gravity of the misconduct. To be dismissed for asking a passenger to put their mask on again, when they have clearly lied to you, is not a step too far. Further, adopting the obiter in Cornwall, the Prime Minster, every Premier and Chief Health Officer in every State were advising Australians to stay home, and ‘if you must go out, wear your masks and remain diligent’ – every night. The actions of the Applicant fit within the boundaries of this advice.”

Logsdon v Surfside Buslines Pty Ltd (2022)  FWC 392 delivered 22 April 2022 per Riordan C