When can an employer rely on past behaviour in justifying a dismissal?

Often the decision to terminate an employee's employment on grounds of misconduct will come as a result of repeated instances of inappropriate behaviour, rather than in response to an isolated and serious example. However, employers should be aware that they will not always be able to rely upon a pattern of behaviour in justifying the termination of an employee's employment. In this article we consider what circumstances (if any) an employer can rely on past behaviour in making its decision to terminate an employee. In particular, we consider whether the employer's reliance on past behaviour is a relevant consideration for the Commission in determining whether a termination is 'harsh, unreasonable or unfair' ¹ under the unfair dismissal regime established by the Fair Work Act 2009 (FW Act).