This is a classic summary of what is an unfair dismissal, taken as an extract from a recent decision of the Fair Work Commission.
“[29] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or
unreasonable’ was explained in Byrne v Australian Airlines Ltdi 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.”
[30] The onus is on the Applicant to prove the dismissal was harsh, unjust and/or
unreasonable.
[31] I am required to consider each of these criteria, to the extent they are relevant to the
factual circumstances before me.
Valid reason – s.387(a)
[32] In order to be a valid reason, the reason for the dismissal should be “sound, defensible
or well founded”iii and should not be “capricious, fanciful, spiteful or prejudiced.”iv However,
the Commission will not stand in the shoes of the employer and determine what the Commission
would do if it was in the position of the employer.v
[33] There is no mandate for giving the ‘valid reason’ criterion any greater emphasis or
weight than any of the other criteria in s 387. It is well settled that the statutory requirement to
‘have regard to’ or ‘take into account’ requires the Commission to give the matter(s) weight as
a fundamental element in the decision making process. Even if it is found that there was a valid
reason for the dismissal, an overall assessment must be made as to whether the dismissal was
harsh, unjust or unreasonable.”
Biradee v Australian Capital Territory (as represented by Canberra Health Services) [2026] FWC 2732 delivered 21 July 2026 per Dean DP