Other relevant matters
ss.387(f) and (g) ask whether the employer’s size and HR resourcing should soften what procedural fairness required. s.387(h) is the catch-all — and in practice it’s where most of the real argument about fairness actually happens.
What you’ll be able to do
- Explain what ss.387(f)-(g) actually test, and why a small, HR-less employer gets some latitude but not a free pass.
- Identify the things that only get weighed under s.387(h) — proportionality, mitigating factors, consistency of treatment — and say why they don’t belong under s.387(a).
- Build and respond to a s.387(h) argument the way the Commission does: against the gravity of the conduct, not in the abstract.
Size and HR resourcing — ss.387(f) and (g)
The Commission must take into account the degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resource management specialists or expertise, would be likely to impact on the procedures followed in effecting the dismissal.
For a genuinely small, HR-less employer, that latitude is real. In one case, a sales manager at a two-person tile wholesaler was dismissed after the business relationship between him and the general manager — “best mates” outside work — broke down. The Commission found the business’s size meant it had no HR or specialist expertise to guide the process, and that this — together with the personal rather than professional nature of the relationship — was likely why there was no procedural fairness in relation to the dismissal [2023] FWC 927 at [25]. Similarly, an office coordinator at a small catering company with no HR specialists was found to have had her (minimal) process adversely affected by that absence [2020] FWC 4929 at [13].
Latitude is not immunity, though. In both of those matters, the dismissal was still found unfair — the small size and absent HR function explained the lack of procedure, but didn’t excuse it [2023] FWC 927 at [28].
At the other end, ss.387(f)-(g) simply don’t engage. A large employer with its own HR function will typically find these factors neutral [2021] FWC 2203 at [81]. And the test is narrower than it might look: it asks only whether HR expertise was absent, not whether the HR specialist who was there did a good job. In one matter the Commission found the employer’s HR function had failed badly to inform itself of its own obligations — but that went to a different part of the analysis, because “the consideration is not whether the dedicated human resource management specialist handled the matter poorly or gave incorrect advice” [2021] FWC 5905 at [124]-[125]. That employer was not small and had no absence of HR expertise that impacted its procedures [2021] FWC 5905 at [137] — so ss.387(f)-(g) gave it nothing to lean on when its process still fell short.
A small employer with genuinely no HR capacity can also find these factors treated as neutral rather than exculpatory, where the Commission considers they simply don’t bear on the actual unfairness found [2021] FWC 1229 at [92]-[93].
s.387(h): the catch-all that does most of the work
Section 387(h) lets the Commission weigh any other matters it considers relevant — and it is deliberately broad [2021] FWC 2203 at [83]. Three things recur here more than anything else: proportionality, mitigating factors, and consistency of treatment. A fourth, residual category covers procedural matters that don’t fit neatly under ss.387(b)-(e), such as the quality of an investigation.
Proportionality: is dismissal the right-sized response?
Even where there’s a valid reason, s.387(h) asks whether dismissal was a proportionate response to it. One decision put this directly: “the proportionality of the dismissal to the conduct that is the subject of the valid reason is a matter to be considered in connection with section 387(h)” [2021] FWC 1229 at [95]. Having found a valid reason, the Commission there went on to separately find the dismissal proportionate to her conduct and performance shortcomings [2021] FWC 1229 at [95].
The same idea recurs, almost as a formula, wherever a dismissal is summary: the proportionality of the summary nature of the dismissal “must be weighed against the gravity of” the conduct relied on [2020] FWC 2819 at [70] [2021] FWC 2203 at [88]. The classical statement of why proportionality matters to “harsh” specifically — as opposed to “unjust” or “unreasonable” — comes from the High Court in Byrne v Australian Airlines Ltd, quoted in one FWC decision: a termination may be harsh in its consequences for the employee, “or because it is disproportionate to the gravity of the misconduct” relied on [2021] FWC 5905 at [85]. Byrne is a pre-FWC High Court authority and isn’t independently in this corpus — check the quote against the original before relying on it.
Mitigating factors: not weighed under (a), only here
Long service, an otherwise clean record, and personal or compassionate circumstances don’t affect whether there was a valid reason — that question is about the conduct or capacity itself. They come in only once the Commission turns to s.387(h). Sometimes they tip the outcome. A university lecturer dismissed for underperformance was found to have been treated harshly once the Commission weighed her over 14 years of otherwise unblemished service, the career damage of a performance dismissal, her very limited prospects of comparable alternative employment, and her sole caring responsibility for elderly parents alongside a mortgage [2020] FWC 416 at [119]. On the strength of those s.387(h) factors, the Commission found the dismissal harsh and unreasonable [2020] FWC 416 at [120] and ordered reinstatement with a ‘fair go all round’ [2020] FWC 416 at [136], an outcome a Full Bench majority later left undisturbed by refusing permission to appeal [2020] FWCFB 3571 at [65]-[66].
But weighing mitigating factors doesn’t guarantee they’ll move the result. A football governing body’s Technical Advisor, summarily dismissed for taking on a conflicting coaching role, also had his personal and economic circumstances considered under s.387(h) — a young family, a difficult job market in the middle of COVID-19 [2020] FWC 2819 at [74]. Here, though, those circumstances didn’t outweigh the gravity of the conduct, and the dismissal stood [2020] FWC 2819 at [76]. The lesson for advisers: identify the mitigating factors early and be honest about their likely weight — they’re a genuine consideration, not an automatic trump card.
Consistency of treatment
Where comparable employees were treated differently for the same conduct, that can bear on fairness under s.387(h) — but only if the comparison actually holds up. The leading formulation, quoted (and quoted again within that quote) in one FWC decision, requires “sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made”, so the Commission is genuinely “comparing ‘apples with apples’” [2020] FWC 2819 at [68]. The same quoted material holds that an unexplained disparity in treatment doesn’t, by itself, make an otherwise justified dismissal unfair — there has to be some basis for finding the comparison genuinely apt [2020] FWC 2819 at [68].
Applying that test, the Commission in the same matter went through nine examples the employee had put forward as comparators and rejected every one, because none involved an employee in a comparably conflicted position — they were not comparable to his own [2020] FWC 2819 at [69]. The lesson: a bare assertion that “others weren’t sacked for this” is not a consistency argument. It needs a genuinely matched comparator, with evidence of what that other case actually involved.
Procedural matters not elsewhere captured — e.g. investigation quality
Section 387(h)’s breadth also catches procedural complaints that don’t fit under ss.387(b)-(e) — most commonly, the quality or fairness of an internal investigation, distinct from whether the underlying conduct happened. In one matter, an employee argued the investigation into his conduct was not fair or impartial because people he’d previously complained about were initially involved; the Commission accepted the employer had appropriately handed the investigation to an uninvolved senior manager, and found it conducted a fair and impartial investigation [2021] FWC 2203 at [84]-[85].
How ss.387(f)-(g) and s.387(h) interact
Put together, the pattern across these decisions is consistent: a small employer’s lack of HR resourcing can explain poor process, and the Commission will say so under ss.387(f)-(g) — but it is not, on its own, a reason to find the dismissal fair. Nor does having an HR team automatically protect a large employer: ss.387(f)-(g) test the absence of expertise, not its quality, so a large employer whose HR function performs poorly gets no credit under these factors and has to answer for the shortfall elsewhere in the s.387 analysis.
How these arguments fail
Mitigating factors outweighed the rest of the case
14 years’ otherwise unblemished service, limited alternative employment and caring responsibilities tipped the result to harsh, despite other findings against the employee. [2020] FWC 416 at [119]
Mitigating factors under s.387(h) can decide the case on their own. Gather them properly — length of service, record, personal circumstances — don’t leave them as an afterthought.
No HR team didn’t excuse no process
A two-person business with no HR expertise explained why there was no procedure — but a valid reason plus zero procedural fairness was still unreasonable. [2023] FWC 927 at [28]
Small-business latitude under ss.387(f)-(g) narrows the gap; it doesn’t close it. Even the smallest employer needs to tell the person what the problem is and hear their side.
A large HR function is not a shield
The employer had its own dedicated HR specialist, so ss.387(f)-(g) gave it nothing — and its HR function’s failure to properly inform itself of its obligations left no valid reason and an unfair dismissal. [2021] FWC 5905 at [139]
Don’t treat “we have HR” as itself an answer to a fairness complaint. The question is whether HR actually got it right, and that’s judged like anything else.
Comparator cases need genuine evidence, not assertion
Nine examples of other employees in supposedly similar dual roles were raised as inconsistent treatment; all nine were rejected as not properly comparable, and the dismissal stood. [2020] FWC 2819 at [69]
Before running a consistency argument, check that the comparator really did the same thing in the same circumstances — not just something that sounds similar.
Adviser checklist
- Size and HR resourcing
- Proportionality
- Mitigating factors
- Consistency
- Investigation and other procedural matters
Practice scenario: the long-serving kitchen hand
Fictional scenario. Write your answers, then reveal the model answer.
Fictional scenario. Mariko has worked as a kitchen hand at a four-outlet suburban café group for eleven years, with a clean record and strong reviews from every site manager she’s worked under. The group has no dedicated HR function — rosters, pay and discipline are all handled directly by the two co-owners.
Yesterday, Mariko was caught on CCTV disabling a fridge temperature alarm during a busy lunch service rather than stopping to deal with it, in breach of the food-safety policy she signed when she started. No food was ultimately spoiled. One of the owners wants to dismiss her immediately for “a serious safety breach,” citing a near-identical case 18 months ago where a casual kitchen hand was dismissed on the spot for ignoring a different alarm.
Mariko, when asked informally, says she silenced the alarm because she thought it was faulty (it had false-alarmed twice that week) and intended to log it with the other owner at the end of the shift, which she did. She has a teenage daughter with a disability and is the sole carer; losing this job on short notice would mean losing the flexible hours that make that caring role workable.
- ss.387(f)-(g): This is a genuinely small, HR-less employer, so some procedural latitude applies — the owners can’t be held to the standard of a large HR department. But that latitude only explains an informal process; it doesn’t permit skipping a conversation with Mariko about what happened and why, before any decision is made.
- s.387(h) factors: Eleven years’ clean service and her caring responsibilities are real mitigating factors to weigh if a valid reason is otherwise made out. The earlier dismissal of the casual kitchen hand is a possible consistency argument — but only if that case is actually comparable (same conduct, same risk, same context), which hasn’t yet been tested. Asserting “we did it before” isn’t enough on its own.
- Proportionality: Not yet assessable on what’s known. If Mariko’s account holds up (reasonable belief the alarm was faulty, intent to report, no food actually at risk, and she did in fact report it), dismissal looks disproportionate to the gravity of what occurred. If the alarm silencing was in fact reckless and she didn’t report it, the calculus changes substantially.
Where it could land, depending on what further inquiry shows:
Decisions cited
Check each paragraph reference against the published decision on the FWC website before relying on it. Darvell v Australian Postal Corporation, Daly v Bendigo Health Care Group and Byrne v Australian Airlines Ltd are cited as quoted in later decisions and still need checking in the original — none is independently located in this corpus. Rows marked “partial” confirm the proposition pinpoint only.
| Decision | Outcome (confirmed from the text) |
|---|---|
| [2023] FWC 927 Coorey v Australia Tile Wholesale Pty Ltd | Mr Coorey found unfairly dismissed — confirmed at [28]. A valid reason existed, but the dismissal was unreasonable because it was entirely lacking in procedural fairness — confirmed at [28]. The Commission found the employer's small size (no HR or specialist expertise) and the personal (rather than professional) nature of the relationship between the two men likely explained the absence of any procedure, under ss.387(f)-(g) — confirmed at [25] — but, again, this did not excuse the lack of fairness. [28] |
| [2021] FWC 5905 Rezaeifard v Green Leaves ELC Pty Ltd | No valid reason for dismissal found — confirmed at [132]; dismissal found harsh, unjust and unreasonable — confirmed at [139]; compensation ordered. Because the employer was a large organisation with a dedicated HR specialist, ss.387(f)-(g) did not operate to excuse its procedural failures — confirmed at [137]; the Commission clarified that ss.387(f)-(g) test only the presence or absence of HR expertise, not whether that expertise was well used — confirmed at [124]-[125]. Proportionality was framed by quoting the Byrne v Australian Airlines Ltd formulation that a dismissal may be harsh because it is disproportionate to the gravity of the misconduct — confirmed at [85]. [139] |
| [2021] FWC 2203 Longobardi v New Horizons Enterprises Limited | Application dismissed — dismissal found not harsh, unjust or unreasonable — confirmed at [92]-[93]. A valid reason was found, and the employer (a substantial enterprise with its own HR employees, so ss.387(f)-(g) were neutral — confirmed at [81]-[83]) was found to have conducted a fair and impartial investigation when the applicant challenged its quality as an 'other relevant matter' under s.387(h) — confirmed at [84]-[85]. The summary nature of the dismissal was weighed against the gravity of the conduct under s.387(h) — confirmed at [88]. [92] |
| [2021] FWC 1229 Gagulich v Cardio Respiratory Sleep Pty Ltd | Dismissal found unjust and unfair — confirmed at [98]-[99] — because Ms Gagulich was not notified of, nor given a reasonable opportunity to respond to, certain reasons relied on for her dismissal. This was despite a valid reason being found, and despite the Commission finding the dismissal proportionate to her proven conduct under s.387(h) — confirmed at [95]. CRS's small size and lack of an HR function were accepted but found not to weigh in the harsh/unjust/unreasonable assessment under ss.387(f)-(g) — confirmed at [92]-[93]. [99] |
| [2020] FWCFB 3571 University of Technology Sydney v Zhao | Full Bench majority (Catanzariti VP and Johns C) refused the University's permission to appeal — confirmed at [65]-[66]. Deputy President Colman dissented and would have granted permission, upheld the appeal and quashed the decision, but this was not the majority view, so Dr Zhao's reinstatement at first instance stood. [66] |
| [2020] FWC 4929 Jackson v Botanical Cuisine Pty Ltd | Dismissal found harsh, unjust and unreasonable; Ms Jackson unfairly dismissed — confirmed at [14]. The employer's small size and lack of HR specialists were found, under ss.387(f)-(g), to have had an adverse effect on the (minimal) procedures followed — confirmed at [13] — but this did not excuse the outcome. [14] |
| [2020] FWC 416 Zhao v University of Technology Sydney | Dismissal found 'harsh and unreasonable' — confirmed at [120]. The 'harsh' finding rested on s.387(h) mitigating factors: 14 years of otherwise unblemished service, the career damage of a performance dismissal, very limited alternative employment prospects, and sole caring responsibility for elderly parents plus a mortgage — confirmed at [119]. Reinstatement, continuity of service and lost remuneration ordered — confirmed at [136]-[137]. Permission to appeal was later refused by a Full Bench majority (see [2020] FWCFB 3571), so these orders stood. [120] |
| [2020] FWC 2819 Bertos v Northern NSW Football Limited | Application dismissed — the dismissal was found not harsh, unjust or unreasonable, confirmed at [76]-[77]. The Commission rejected Mr Bertos's s.387(h) comparative-unfairness argument because none of his comparator examples were properly comparable — confirmed at [69] — applying the Full Bench's test (quoting Darvell v Australian Postal Corporation, in turn quoting Sexton v Pacific National and Daly v Bendigo Health Care Group) that there must be sufficient evidence of the allegedly comparable cases — confirmed at [67]-[68]. The proportionality of the summary dismissal was weighed against the gravity of the conduct — confirmed at [70] — and Mr Bertos's personal and economic circumstances (married, young family, COVID-affected job search) were considered under s.387(h) but did not outweigh that gravity — confirmed at [74]. [76] |
- Darvell v Australian Postal Corporation [2010] FWAFB 4082 — quoted in [2020] FWC 2819 at [68]. Check against the original before relying on it.
- Daly v Bendigo Health Care Group — quoted in [2020] FWC 2819 at [68]. Check against the original before relying on it.
- Byrne v Australian Airlines Ltd (1995) 185 CLR 410 — quoted in [2021] FWC 5905 at [85]. Check against the original before relying on it.
- Colson v Barwon Health [2014] FWCFB 1949 — quoted in [2020] FWC 416 at [123]. Check against the original before relying on it.
- Nguyen and Le v Vietnamese Community in Australia [2014] FWCFB 7198 — quoted in [2020] FWC 416 at [124]. Check against the original before relying on it.
- Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 — quoted in [2020] FWC 416 at [124]. Check against the original before relying on it.
- Regional Express Holdings Limited t/a REX Airlines v Richards [2010] FWAFB 8753 — quoted in [2020] FWC 416 at [126]. Check against the original before relying on it.