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Lessons from contrasting FWC decision on ‘harshness’

Last week AREEA consultant Karen Nelson reviewed an unfair dismissal case that demonstrated how the Fair Work Commission’s assessment of harshness can lead to an employee’s reinstatement, even when there is a clear case for termination of employment. This week Karen looks at a contrasting decision that takes a very different approach to the consideration of harshness.

Karen Nelson
Karen Nelson


TWO dockhands/drivers made a dual application for unfair dismissal under section 394 of the Fair Work Act 2009 (FW Act) after being dismissed in March this year. The circumstances leading up to their dismissal involved allegations of ongoing harassment and belittling behaviour directed at a fellow dockhand worker, which escalated to a serious incident where the two applicants appeared to threaten and initiate a sexual assault against their colleague. Following this incident a formal complaint was made by the dockhand, and the applicants were terminated.

Senior Deputy President Richards assessed the two dismissals against the criteria for considering harshness as per section 387 of the FW Act, and in doing so found that the overall assessment of a valid reason for termination relied upon the credibility of the witness evidence. The alleged victim of the behaviour was found to present his evidence in a distressed and emotionally unstable manner, and lacked specificity, however SDP Richards found that this was a proportionate reaction to the alleged ongoing harassment.

In relation to the applicants’ evidence, SDP Richards found that neither applicant showed remorse nor contrition, and did not demonstrate sensitivity to the impact of their behaviour. SDP Richards found that on the balance of probabilities both applicants conducted themselves in a manner which was personally, socially and psychologically damaging to their colleague, which amounted to a valid reason for termination.

In finding that the dismissals were not harsh, unjust or unreasonable, consideration was given to the applicants’ ages (both 54 years of age), their employment history (one applicant had 28 years’ service, the other 13 years’ service), and their apparent difficulty in securing employment post dismissal.

Ultimately, however, SDP Richards found that on balance the conduct of the applicants warranted the sanction imposed by the employer, and upheld the terminations.

Implications for employers

This decision illustrates a contrasting approach to one recently taken by the Fair Work Commission (FWC) in assessing whether a dismissal is harsh, unjust or unreasonable. In assessing the dismissals, SDP Richards’s focus was primarily on the credibility of the witness evidence and the events surrounding the dismissals, and did not give significant weight to the personal and economic consequences faced by the applicants as a result of their dismissal.

In contrast, the decision of Commissioner Saunders, reviewed in last week’s AREEA News Update, detailed how significant consideration was given to the personal and economic consequences of the dismissal on the applicant, even though it was established that the employer had two valid reasons for dismissal, the outcome being that the applicant was reinstated to their role. (Click here to read the case summary.)

Therefore, even where the employer is confident they have clear and valid reasons for dismissal, careful consideration must be given to both the criteria set out in the FW Act and the consequences of the dismissal on the individual, prior to making a decision to dismiss an employee.

In pre-emptively avoiding the FWC overturning a dismissal, employers must consider the personal and economic consequences of the dismissal on the employee, how these consequences contribute to the overall impact of the dismissal, and whether the overall impact is proportionate to the behaviour of the employee.

Click here to view the latest decision.

AREEA’s experienced workplace relations consultants can provided advice on, and assistance with, workplace investigations and terminations to mitigate adverse impacts on your business. To learn more, contact an AREEA consultant near you.

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