Australia: Termination gets personal - could employee dismissal be considered unfair?

Terminating an employee can easily turn into a legal minefield for employers if they don't exercise their power to do so in a lawful, just and reasonable manner.

In exercising this power, employers must consider the employee's personal circumstances and identify whether they are so extraordinary that termination would be considered unfair in line with the Fair Work Act 2009 (Cth) (the FW Act).

In Dennis Sipple v Coal & Allied Mining Services Pty Ltd T/A Mount Thorley Warkworth Operations [2015] FWC 1080 (Dennis Sipple v Mount Thorley), the full bench of the Fair Work Commission (FWC) found that the employee's personal circumstances, such as his age, literacy and injury, were not so extraordinary to prove the dismissal was unfair, that is, harsh, unjust or unreasonable.

This decision provides an example for employers on how to exercise reasonable management action in a way that takes into account an employee's personal circumstances.

When is dismissal harsh, unjust or unreasonable?

Section 394 of the FW Act allows employees who believe they have been sacked unfairly to apply to the FWC for an unfair dismissal remedy.

In considering whether the dismissal was harsh, unjust or unreasonable, the FW Act provides a number of relevant factors for consideration in s387, including:

  • whether there was a valid reason for the dismissal related to the person's capacity or conduct
  • any other matters that the FWC considers relevant.

Dennis Sipple v Mount Thorley

Mr Sipple was employed by Mount Thorley Warkworth Operations (Mount Thorley) for 27 years as a pit service operator and it was an inherent requirement that he be a 'multi-skilled' operator, capable of operating various heavy machinery and equipment.

In 2002, Mr Sipple underwent surgery on his back for a non-work related medical ailment, with complications from the surgery causing ongoing problems. Following medical advice and in anticipation of Mr Sipple's return to work, Mount Thorley made reasonable alterations to Mr Sipple's duties by allowing him to work solely in a service cart on his return, which he continued doing for the next eight years.

Following a restructure of Mount Thorley in 2010, the position of pit service operator garnered additional heavy machinery responsibilities, including the operation of a haul truck, grader and other heavy equipment. While completing mandatory training for these additional duties, Mr Sipple aggravated his existing back injury.

As a result, Mr Sipple underwent an independent medical examination, which concluded that he was only capable of operating a service cart and was otherwise permanently unfit for the role of pit service operator.

Based on this finding, and following a show cause process, Mount Thorley dismissed Mr Sipple. Mr Sipple then applied to the FWC for an unfair dismissal remedy, alleging that the medical evidence demonstrated he was fit for his duties as a service cart operator and that the dismissal was therefore harsh, unjust or unreasonable.

Key issues

The key issues for determination before the FWC were:

  • Was it unfair for Mount Thorley to dismiss Mr Sipple for his inability to perform the inherent requirements of a pit service operator?
  • Was it unfair for Mount Thorley to dismiss Mr Sipple for this inability, bearing in mind he was fit to perform the inherent requirements of the position, as it was, before the restructure?

First instance

At first instance, the FWC upheld the dismissal as fair. Commissioner Stanton followed the decision of J Boag and Son Brewing Pty Ltd v Allan John Button [2010] FWAFB 4022, which states that when an employer is assessing whether an employee suffering from an injury can perform the inherent duties of their role, the employer is not obligated to create a new position that the injured worker is capable of performing. As a result, Commissioner Stanton found that because Mr Sipple was unable to fulfil the essential duties of a pit service operator and was retained on suitable duties for a period of eight years, he had received a "fair go all round".

Dismissal upheld upon appeal

Mr Sipple then appealed to the full bench of the FWC1 on the basis that Commissioner Stanton did not properly consider all relevant matters, in particular, Mr Sipple's personal circumstances when he was dismissed.

Counsel for Mr Sipple submitted the decision should be made in light of the fact:

  • he was 57 years old
  • he had worked with Mount Thorley for 27 years
  • he was fit to drive a service cart and had done so for a number of years
  • his injury, age and low level of literacy would make it difficult to find new employment
  • he had family commitments.

In a split decision, the majority upheld the dismissal as fair. In considering all other relevant matters, the FWC found that Mr Sipple's personal circumstances were not so extraordinary as to make his dismissal harsh, unjust or unreasonable.

You should be aware in this case that the unfair dismissal provisions of the FW Act will always be applied closely and that a relatively minor factual difference or any other alleged flaws in the employer's decision-making process could have led to the FWC reaching a different conclusion.

What does this mean for employers and employees?

To ensure that any action to be taken against an employee is lawful, just and reasonable, employers should:

  • Evaluate the employee's circumstances (such as existing illnesses or injuries, age, family situation and job prospects) and consider whether they are extraordinary to the situation at hand.
  • Confirm that all reasonable alterations have been made to accommodate the employee, unless they can no longer perform the inherent requirements of their position.

Both employer and employee should take careful and informed legal advice.

Employers who fail to establish that they have exercised reasonable management action expose themselves to possible claims of bullying, adverse action,2 discrimination3 or workers' compensation.

This article was originally published in the March 2016 issue of Proctor and is republished here with their kind permission. Click here to read the article.


1 [2015] FWCFB 5728.

2 Fair Work Act 2009 (Cth) ss340-342.

3 Fair Work Act 2009 (Cth) s351.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.