Unfair dismissal and proportionality

In an interesting decision a senior Commissioner of the Fair Work Commission has held that there was a valid reason to dismiss an employee who conducted a survey of his colleagues about an initiative being wound out by the employer about alternative working hours on the basis that the employee’s actions were “well intentioned but ill considered” but that the penalty of summary dismissal was disproportionate warranting modest compensation fort unfair dismissal,


Valid Reason

[83] In this case, there is no doubt the applicant conducted an opinion survey of employees regarding the alternative working hours proposal the respondent had foreshadowed. He did not seek authority from the respondent’s managers to undertake this survey and as the respondent submits it was therefore unauthorised.

[84] The context was that prior to the applicant conducting his survey, the respondent’s management had spent considerable time and effort over a period of months communicating with employees regarding an alternative working hours proposal. Prior to taking these steps, the General Manager and Operations Manager had consulted with the applicant as the Team Lead Fitter about the best approach to raise this with the staff. The applicant was fully aware of the respondent’s efforts and prior to undertaking his staff survey the applicant was aware that a trial of the alternative working hours was imminent.

[85] I accept the evidence is that the applicants’ actions caused some confusion and consternation amongst some staff and was unsurprisingly viewed by the respondent’s management as an entirely unhelpful and disruptive intervention that interfered with the steps the respondent was taking to have a trial of the alternative hours’ proposal.

[86] The Commission finds that Mr Cain conducting an unauthorised staff survey was misconduct.

[87] In the circumstances the Commission is satisfied that Mr Cain’s misconduct was a valid reason for his dismissal.

Notification of the Reason

[88] The applicant was notified in the show cause letter of the reason the employer was considering dismissing him before their final decision was made.

Opportunity to Respond

[89] The applicant was given an opportunity to respond to the reasons the employer was considering dismissing him for, and he did so at the show cause meeting where he read out his response to their show cause letter.

Support person

[90] The respondent did not refuse to allow the applicant to have a support person present during any discussions regarding his dismissal.

Warnings regarding performance

[91] The applicant was not dismissed for any complaint about his performance, so this issue of warnings is not relevant in this instance.

Impact of the size of the enterprise and absence of HR specialists

[92] The employer has 70 employees.

[93] The employer does not have in-house HR specialists but receives HR advice from an external consultant.

[94] Consistent with this, an appropriate procedure was adopted by the respondent in effecting the applicant’s dismissal.

Other relevant matters

[95] The applicant had been employed for just over eight years.

[96] The applicant had not been subject to any prior disciplinary action by the respondent.

[97] The Commission accepts Mr Cain’s evidence that he undertook the staff survey because he was genuinely concerned there may not have been as much support amongst employees for the alternative hours proposal as the respondent believed. He felt therefore that implementing the alternative hours could be counter-productive for the business.

[98] The Commission characterises Mr Cain’s actions as well intentioned but ill considered.

[99] The respondent took the view that Mr Cain’s conduct was sufficiently serious that it warranted him being summarily dismissed without notice and without pay in lieu of notice.

[100] Regarding cases of summary dismissal, a Full Bench of the Commission held under previous legislation, in Potter v WorkCover Corporation as follows,

“[55] In circumstances of summary dismissal the issue of whether the penalty imposed was proportionate to the conduct is a matter more appropriately considered in the context of s.170CG(3)(e) rather than s.170CG(3)(a). If summary dismissal was disproportionate to the misconduct that would support a conclusion that the termination was harsh, despite the existence of a “valid reason” for termination.” 3

[101] Under the current legislation the equivalent to s.170CG(3)(e) is s. 387 (h) and to s.170CG(3)(a) is s.387(a).

[102] So it is that even though the applicant’s misconduct was a valid reason for dismissal it may still be that his misconduct fell short of that warranting summary dismissal. In such a situation this conclusion may then support a finding that his dismissal was harsh.


[103] It is not for the Commission to stand in the shoes of the employer.

[104] Whilst the applicant’s behaviour was deliberate it is not the case that it was clearly inconsistent with the continuation of the contract of employment. The Commission’s view is the applicants ill-considered actions were not so serious as to amount to serious misconduct.

[105] Summary dismissal in this case was disproportionate to the applicant’s misconduct.

[106] The Commission’s decision is that the dismissal of Mr Cain without notice or pay in lieu of notice was harsh, but only to that extent. For only this reason, the dismissal of Mr Cain was unfair.


[107] The applicant has gained other employment and so reinstatement is not an appropriate remedy.

[108] I am satisfied that compensation is appropriate in the circumstances.

[109] There is no evidence that an order of compensation would impact on the viability of the respondent’s business.

[110] The applicant was employed for a little over eight years.

[111] If the applicant had not been dismissed summarily, he would have had the opportunity to at least work out his notice period.

[112] Under his contract, given he has more than five years of continuous service, the notice period the respondent was required to give the applicant was four weeks.

[113] Consequently, if he had not been dismissed, the remuneration he would have received was four weeks wages at 38 hours per week at $32 per hour amounting to a total of $4864 gross.

[114] The applicant has mitigated his loss by successfully obtaining other employment.

[115] Whilst the Commission accepts the applicant’s misconduct contributed to the employer’s decision to dismiss him, it is not appropriate in this case for there to be any reduction in the amount of compensation on account of that misconduct.

[116] An order will be issued in conjunction with this decision requiring the respondent to pay Mr Cain compensation in the amount of $4864.00 less applicable taxation within 21 days of the date of the order.”

Cain v TL Engineering Pty Ltd (2022) FWC 3239 delivered 14 December 2022 per Williams C