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 shift.
The decisions are a reminder of the wide range of factors the FWC might take into account in unfair dismissal cases.
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