Unfair dismissal; how to judge

The issue whether the dismissal of an employee is relevantly unfair for the Fair Work Commission to grant relief to an applicant is almost always a balancing act. In the following extract from a recent unfair dismissal decision by the Fair Work Commission, the task of identifying and then contrasting the relevant principles is on show because the Commissioner has taken the novel approach of setting them out in comparative columns.

“This is the key basis upon which the dismissal is challenged, and there are a number of factors which go to whether the dismissal was harsh, unjust or unreasonable. The factors relevant to this matter include:

Factors in favour of termination
Engaged in the most senior role in the restaurant with staff supervisory responsibilities
Many years of experience as a Restaurant Manager and therefore he should have been aware of the potential consequences of his conduct
The breaches were numerous, of a serious nature, and impacted on staff and customers
The conduct was denied
No regret or remorse
Factors which may characterise the termination as harsh, unjust or unreasonable
No formal warnings
Lack of notice of disciplinary meeting or risk of dismissal
Mr De Marzi is 56 years of age and may have potential difficulty in finding alternative employment
Covert recording of the disciplinary meeting
Summary dismissal – no notice was paid”


De Marzi v 360 Gradi Pty Ltd T/A 360 Gradi Pizzeria & Trattoria (2017) FWC 4014 delivered 31 July 2017 per Platt C