Appeal upheld: extent of misconduct downplayed


Appeal upheld: extent of misconduct downplayed

An unfair dismissal decision has been quashed after a full bench accepted insufficient weighting was given to the gravity of an employee's misconduct and its potential threat to other workers' safety.


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An employer has had a decision of unfair dismissal reversed after successfully arguing the Fair Work Commission gave insufficient weighting to the gravity of the employee’s misconduct and its potential threat to the safety of other employees.

The commission had also given too much weighting to the employee’s mental health issues as a mitigating factor.

The decision discussed the principles that apply when balancing a valid reason for dismissal (serious misconduct) against mitigating factors in an employee’s conduct.

Serious misconduct

Michael Meaney was employed by Monash University, Victoria, and was dismissed for the following alleged serious misconduct:
  • He drove his car on campus in a manner that the employer claimed was dangerous
  • He became angry and aggressive when challenged about the incident
  • He had made a comment that he was being victimised and “might have to kill someone”
  • He had a past history of making abusive, derogatory and threatening comments to, or about, other staff.
The FWC found that his dismissal was unfair because the employer failed to take into account mitigating factors such as evidence of mental illness.

The employer claimed that it had a duty to protect the health and safety of other employees and other people on campus.

It appealed against the decision on the following grounds:
  • The FWC had not assessed the case from “a fair go all round”, but had placed greater emphasis on the employee’s case.
  • It placed insufficient weight on the gravity of the dangerous driving and the threat to kill someone.
  • Having a valid reason for dismissal and providing procedural fairness should have outweighed any mitigating factors. The FWC gave disproportionate weight to Mr Meaney’s mental health issues. The risk to others at the workplace should have outweighed this.
  • Previous decisions had held that having a valid reason for dismissal overrode mitigating factors unless the latter were very significant.
A full bench found that previous decisions had not always followed the employer’s contention, but each one had been decided on its individual circumstances.

In regard to the mental health issues, Mr Meaney had been diagnosed with an adjustment disorder with anxiety. He was prescribed anti-depressants. He told managers that he had a mental illness but provided no medical evidence to them.

The employer unsuccessfully asked him for a medical clearance to work. The only medical evidence he provided to the FWC was the original diagnosis. The employer initially placed him on a performance improvement plan, but later decided to treat his conduct as a disciplinary issue.

The FWC found that the employer was aware that he had mental health issues at the time, and when it dismissed him. However, the full bench found that there was no causal link between the medical evidence supplied and the conduct that led to his dismissal. Therefore the FWC had given too much weight to his mental health as a potential mitigating factor.

The employer claimed that Mr Meaney had acted dishonestly during its investigation into his conduct, but the full bench found that the FWC had not considered this claim.

The full bench also found that the employer’s claims about his driving, angry and aggressive response in relation to it, the comment about victimisation and “might have to kill someone” and his past history of inappropriate comments were all substantiated, but the FWC had either downplayed their significance or concluded that they did not occur.

The FWC had questioned whether the manner of driving was actually dangerous. There was evidence from several other employees that his conduct had at times been aggressive, intimidating, threatening and/or abusive. This made them fearful of encountering him.


The full bench upheld the appeal, quashed the FWC decision and remitted the matter for rehearing.

The bottom line: The full bench overruled the FWC’s finding that mitigating factors were sufficient to make the dismissal unfair, even though there was a valid reason for dismissal. Where an employer can prove there was a valid reason, and has followed procedural fairness to implement the dismissal, any mitigating factors will have to be substantial in order to make it unfair. In this case, the employee’s conduct posed an obvious threat to the safety of other employees and the incidents that led to dismissal were not isolated instances of misconduct, although they were more serious than the earlier ones.

An employee who wishes to use mental illness as a mitigating factor will need to provide clear and documented medical evidence of his/her condition.

Read the judgment

Monash University v Meaney, [2019] FWCFB 2978, 7 May 2019 
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