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ARTICLE · 08 DECEMBER 2016

Harsh, unjust or unreasonable: is the unfair dismissal regime broken?

Bartier Perry Solicitors
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The unfair dismissal scheme needs refinement to deal robustly and decisively with inappropriate behaviours in workplaces.

AustraliaEmployment and HR
James Mattson
James Mattson
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We are familiar with the long standing approach of industrial tribunals in determining whether an employee's dismissal was unfair. You examine if there was a valid reason for dismissal, whether a fair process had been followed and look at the personal circumstances of the employee to form an impression if, overall, the dismissal was unfair.

As was stressed by the Fair Work Commission in B, C and D v Australian Postal Corporation t/a Australia Post [2013] FWCFB 6191, a case involving the access, storage and sending of pornography, there are no hard and fast rules:

... it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be "harsh, unjust or unreasonable" notwithstanding the existence of a "valid reason" for the dismissal.

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