Unfair dismissal, serious misconduct and condonation

This brief passage from an unfair dismissal decision of the Fair Work Commission deals with whether or not an employer which has condoned an act of misconduct by an employee may nevertheless assert that the occurrence was a valid reason for dismissal.

To conclude for the purpose of s 387(a) of the Act that an employer who had condoned misconduct by an employee in this way and had thus waived the right of summary dismissal at common law nonetheless had a valid reason for dismissing that employee for that misconduct is difficult. 131 But in the same way that such conduct may be taken into account in deciding whether further misconduct by an employee justifies summary dismissal, the earlier conduct is not irrelevant and it may be considered under s 387(h) in determining whether a dismissal was harsh, unjust or unreasonable, for example where later misconduct is said to be part of a pattern of conduct or behaviour.132 But no such allegation is here made.


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