For a termination of employment not to be relevantly unfair under the Fair Work Act in the eyes of the Fair Work Commission the employer must be able to demonstrate (assuming that the employee concerned is protected from unfair dismissal and not all Australian employees are) two things. Firstly that there is a valid reason for the dismissal and secondly that the dismissal is not harsh, unjust and unreasonable given the process followed by the employer and the personal circumstances of the employee.
“A valid reason is one that is sound, defensible and well founded. It should not be capricious, fanciful, spiteful or prejudiced. 44
It is relevant to note that in respect of conduct matters (other than in small businesses) the Commission’s role is not to consider whether an employer had reasonable grounds for concluding that a dismissed employee had committed acts of misconduct. It is the Commission’s role to consider whether the conduct itself occurred, and whether it constituted a breach of duty and a valid reason for dismissal 45. The Commission is tasked to consider whether, to a reasonable degree of satisfaction on the evidence before it, misconduct occurred on the balance of probabilities. The more serious the alleged misconduct, the more stringent the civil burden of proof46.”
McCouaig v Colliers International (SA) Pty Ltd (2019) FWC 1517 delivered 8 March 2019 per Anderson DP