Some Factors the Fair Work Commission Look At When Deciding if a Dismissal Was Harsh
When the Fair Work Commission (FWC) decides whether a dismissal was harsh, it isn’t just about whether there was a valid reason. Even if there was a reason, the Commission will still look at the bigger picture to decide if the outcome was unfair to you.
Under section 387 of the Fair Work Act 2009, the Commission must consider a range of factors when deciding if a dismissal was harsh, unjust or unreasonable. Some of these are about process. Others are about the personal impact on you.
Your personal circumstances can matter. The Commission may take into account your age, length of service, health, family responsibilities and financial position. Losing your job after decades of loyal service may be considered more severe than after a short period, and they may look at how easy or hard it will be for you to find new work.
Your disciplinary and work history is another consideration. A long, clean record with no prior warnings can make it easier to show the penalty was too harsh. A single mistake after years of good performance may not justify dismissal.
The Commission also considers whether the punishment fit the offence. Even if there was some misconduct or performance concern, dismissal may be seen as a disproportionate response if a warning, extra training or another step would have been more reasonable. The personal and economic impact of losing your job is relevant too, including loss of income, damage to reputation, and effects on mental health.
Finally, the Commission can consider anything else it thinks is relevant. This can include whether you were given a fair chance to respond to allegations, whether you were warned about the problem, the behaviour of management, or if others in similar situations were treated more leniently.
A dismissal can still be found harsh even when a valid reason existed. The FWC will look at the whole context—your history, circumstances, and whether the outcome was fair in light of everything. If you believe your dismissal was unfair, you must act quickly.
