In two recent cases in the Fair Work Commission
(FWC), which involved instances of serious
misconduct, the FWC found that the dismissals were unfair because
of the harshness of the dismissal. While in each case the employer
had a valid reason for the dismissals and complied with procedural
requirements, other factors rendered the dismissals harsh.
The role of the FWC in determining whether to award unfair
dismissal remedy is to assess whether the dismissal is 'harsh,
unjust or unreasonable'. This will take into account a range of
factors, including the employee's work history, personal
circumstances and the seriousness of the misconduct.
Work history and personal circumstances
In David Dawson v Qantas Airways Limited (2016), a
Qantas flight attendant was dismissed for misconduct after it was
discovered he had stolen several bottles of alcohol during a random
search following a flight. The reasons for dismissal were due to
the flight attendant's breach of Qantas' Standard of
Conduct Policy and his dishonesty during the investigation.
The FWC found that the dismissal was harsh due to Qantas failing
to take into consideration the employee's unblemished record
and family issues at the time. The FWC awarded the employee the
maximum compensation of $33,731, i.e. 26 weeks of earnings.
Seriousness of misconduct
In Mt Arthur Coal Pty Ltd t/a Mt Arthur Coal v Jodie
Goodall (2016), the Full Bench of the FWC upheld a decision to
reinstate a worker, despite the worker being dismissed for making
anti-Muslim remarks and sexually explicit comments over a two-way
radio system, which up to 100 employees could have heard.
The Full Bench majority said that the worker's comments were
at the lower end of the scale of seriousness and that fatigue was a
contributing factor as the comments were made at the end of a night
The decisions are a reminder of the wide range of factors the
FWC might take into account in unfair dismissal cases.
This publication does not deal with every important topic or
change in law and is not intended to be relied upon as a substitute
for legal or other advice that may be relevant to the reader's
specific circumstances. If you have found this publication of
interest and would like to know more or wish to obtain legal advice
relevant to your circumstances please contact one of the named
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The word 'because' is understood by toddlers, but its legal nuance has baffled some of Australia's great legal minds.
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”
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).