What is misconduct in an unfair dismissal case?


How does the Fair Work Commission, in an unfair dismissal case, determine whether the employer has made out an allegation of misconduct. Here is the law, in summary.

“For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable. In considering whether it is so satisfied, the Commission must take into account the matters specified in s 387. First, the Act requires the Commission to consider whether there was a valid reason for the dismissal related to the person’s capacity or conduct. A valid reason is one that is sound, defensible and well-founded. The question that the Commission must address is whether there was a valid reason, in the sense both that it was a good or sufficient reason, and a substantiated reason.

In cases relating to alleged misconduct, the Commission must make a finding on the evidence provided as to whether, on the balance of probabilities, the conduct occurred. It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. Where allegations of misconduct are made, the standard of proof in relation to whether the alleged conduct occurred is the balance of probabilities. However, as the High Court said in Briginshaw, the nature of the relevant issue necessarily affects the ‘process by which reasonable satisfaction is attained’ 2 and where serious allegations are made, such satisfaction ‘should not be produced by inexact proofs, indefinite testimony, or indirect inferences’ or ‘circumstances pointing with a wavering finger to an affirmative conclusion’.3”

Mercer v Australia and New Zealand Banking Group Limited (2020) FWC 322 delivered 23 January 2020 per Colman DP