Unfair dismissal cases are “multifactorial”


In considering whether Mr Lakhan’s dismissal was “harsh, unjust or unreasonable” the Commission is required to consider each of the matters in section 387 of the FW Act to the extent relevant.62 Those matters must be considered as part of an overall assessment. Each assessment must be made on its merits. That assessment is to be based on the ordinary meaning of the words, in their statutory context. Context includes the object stated in section 381(2) of the FW Act that:

“…the manner of deciding on and working out such remedies are intended to ensure that a “fair go all round” is accorded to both the employer and the employee concerned.”

In arriving at an overall assessment, the statutory considerations must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly.63

The ambit of the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd  64 as follows:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

In reaching my conclusion, I adopt the approach set out by a Full Bench of this Commission in B, C and D v Australian Postal Corporation T/A Australia Post: 65

“[58] Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:

(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;


(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.

[59] It is in that weighing that the Commission gives effect to a ‘fair go all round’.”

Unfair dismissal matters are multifactorial.66

I have found there were performance deficiencies that constituted a valid reason though not with respect to all matters alleged by the employer. The waning of trust and confidence was reasonably founded given the nature of the performance concerns, their relative frequency in the last six months of employment and the lack of remediation and insight displayed by Mr Lakhan despite managers progressively allocating simpler tasks, having day-to-day discussions and holding two performance meetings.

I take into account the observations of a Full Bench of the Commission in Parmalat Food Products Pty Ltd v Wililo: 67

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.”

In this passage both the importance of a valid reason and procedural fairness are emphasised.

I have found that the performance management undertaken by Bus Tech was ham-fisted and disrespectful to Mr Lakhan as a professional engineer.

This is not a matter where procedural deficiencies in implementing a dismissal are not significant nor is this a matter where conduct or performance shortcomings outweigh procedural deficiencies. 68 This is a matter of a professional engineer, whose workmanship was in relevant ways below standard and had somewhat of a tin ear to the assessment of new but fair-minded managers, who was materially denied due process.

In being denied due process, Mr Lakhan was denied being confronted with the blunt reality that he needed to urgently lift output and the standard of his work or else face being dismissed. As a professional engineer, that reality would have allowed him to starkly reflect on whether the requirements of engineers in this business aligned with his skills and whether he could reasonably meet those requirements.

For these reasons, and notwithstanding there being a valid reason (and in that sense, dismissal not being unreasonable), I find the dismissal to have been harsh and unjust.”

Extract from Lakhan v Bustech Group Pty Ltd T/A BustechGroup (2021) FWC 6329 delivered 29 November 2021 per Anderson DP