Unfair dismissals from excessive punishment

The Fair Work Commission routinely finds dismissals to be for a valid reason but over the top and excessive, thus rendering them relevantly unfair. Here are the principles expressed well.

“In cases involving summary dismissal, the proportionality of the dismissal may be considered. Potter v WorkCover Corporation PR948009 (Ross VP, Williams SDP, Foggo C, 15 June 2004) at para. 55, [(2004) 133 IR 458]. Where an employee has been dismissed without notice (summary dismissal) for serious misconduct the Commission may find that, although there was a valid reason for the dismissal, the dismissal was harsh because summary dismissal was a disproportionate response. Potter v WorkCover Corporation PR948009 (Ross VP, Williams SDP, Foggo C, 15 June 2004) at para. 55, [(2004) 133 IR 458]. See also Annetta v Ansett Australia Ltd Print S6824 (AIRCFB, Giudice J, Williams SDP, Cribb C, 7 June 2000) at para. 10, [(2000) 98 IR 233]. I have found that the Applicant was guilty of misconduct on 15 February 2017 through his actions of putting out the bucket and pole and in doing so breaching the Respondent’s Standards of Business Conduct. The Respondent submitted that the conduct was serious misconduct and that the conduct clearly fits within the Acts definition of serious misconduct. In Sharp v BCS Infrastructure Support Pty LimitedSharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 a Full Bench of the Commission considered serious misconduct in applying the provisions in s.387 of the Act:

“[34] It may be accepted that an assessment of the degree of seriousness of misconduct which has been found to constitute a valid reason for dismissal for the purposes of s.387(a) is a relevant matter to be taken into account under s.387(h). In that context, a conclusion that the misconduct was of such a nature as to have justified summary dismissal may also be relevant. Even so, it is unclear that this requires a consideration of whether an employee’s conduct met a postulated standard of “serious misconduct”. In Rankin v Marine Power International Pty Ltd Gillard J stated that “There is no rule of law that defines the degree of misconduct which would justify dismissal without notice” and identified the touchstone as being whether the conduct was of such a grave nature as to be repugnant to the employment relationship. “Serious misconduct” is sometimes used as a rubric for conduct of this nature, but to adopt it as a fixed standard for the consideration of misconduct for the purpose of s.387(h) may be confusing or misleading because the expression, and other expressions of a similar nature, have been considered and applied in a variety of contexts in ways which are influenced by those contexts…”(endnotes omitted) [2015] FWCFB 1033, [34]

I respectfully agree with and adopt the approach of the Full Bench.

In this matter the Applicant was unaware of the 2013 Memorandum and was therefore unaware of the gravity of the misconduct. Further, it is a fact that the gravity of the Applicant’s conduct is somewhat amplified because of the fact that it resulted in the Respondent receiving a second ATC. However, the Applicant is blameless for the Respondent’s first ATC. The first ATC was a result of the apparent failure of the Respondent to inform its employees up until 2013 that the practice should not be occurring. This context is important and needs to be taken into account when considering the gravity of the Applicant’s conduct when it occurred. Taking these factors and all of the surrounding circumstances into account the Applicant’s conduct is better characterised as ill advised conduct or omission to act, as a result of an error of judgment. Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 at para. 264.

[93] I am not satisfied the Applicant engaged in a deliberate flouting of the essential contractual conditions given his lack of awareness of the risk to the Respondent’s contract. His conduct lacks the quality of “wilfulness”.  The conduct was not of such a grave nature as to be repugnant to the employment relationship.

There are also a number of mitigating circumstances:

  • The actions of the Applicant on 15 February 2017 were motivated by the participants in the Wooden Boat Festival urging him to extend the pole and bucket for old times’ sake. He was consistent in his evidence on this, including in a conversation with Mr McGivern on 7 April 2017.  It’s apparent that the Applicant was keen to be responsive to participants in the Wooden Boat Festival in light of the long history of the tradition. The Applicant knew that he should not engage in the activity, however this single act of misconduct, the seeking of a “gift” and the receiving of two bottles of ginger beer has to be considered in the context of the environment of the Wooden Boat Festival and the urging of the participants.


  • The conversation with Mr McGivern at the Christmas party did not provide authorisation for the Applicant to engage in the activity. However, it was a rather inconclusive conversation where it was apparent that the Applicant was certainly not told that the bucket and pole could not be used under any circumstances and was told by Mr McGivern that he “couldn’t see a problem with it” and he would “look into it”.


  • On 14 March 2017 the Applicant admitted to the misconduct on 15 February 2017 to Mr Lovell. Despite the Respondent’s assertion that the conduct of the Applicant is serious misconduct and the associated risks for the contract, the Applicant was allowed to continue working from 14 March 2017 until 6 April 2017 when he was stood down, a period of approximately three weeks. Mr McGivern’s claim that he did not take the matter further during this period as he was “finding out the facts” makes little sense given the Applicant had already admitted to the misconduct on 15 February 2017. The fact that the Applicant was allowed to work for this period of time, despite having admitted to conduct on the 14 March 2017 is inconsistent with the position that summary dismissal was appropriate and underscores the harshness of the Respondent’s decision to dismiss.


In light of the mitigating circumstances, I consider that the dismissal of the Applicant was disproportionate to the misconduct. Further the personal circumstances and work history of the Applicant need to be taken into account. Considering all of these factors, I consider the dismissal of the Applicant to be harsh.”


Clements v Downer EDI Works Pty Ltd (2017) FWC 4661 deloivered 13 September 2017 per Lee C