Unfair Dismissal: “Harsh, Unjust, Unreasonable” – Various Considerations

The following sets out some considerations for both employers and employees when considering what constitutes a “harsh, unjust or unreasonable” dismissal.

1. Consideration of unfair dismissal applications is determined according to the principle of “a fair go all round” – Fair Work Act 2009 (“FWA”), s. 381 (2)
2. Section 387 FWA states: “In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
   1. whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
   2. whether the person was notified of that reason; and
   3. whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
   4. any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
   5. if the dismissal related to unsatisfactory performance by the person–whether the person had been warned about that unsatisfactory performance before the dismissal; and
   6. the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
   7. the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
   8. any other matters that the FWC considers relevant.
3. What is or is not harsh, unjust and or unreasonable: the statement of the High Court in Byrne v Australian Airlines still holds true and has been applied by FWC

“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.”

For further information please contact Peter on 8362 6400 or email Peter Jakobsen. Join our mailing list to receive updates and advice on current issues.