The Fair Work Commission found an employee's termination for allegedly sleeping on the job unfair due to deficiencies in the workplace investigation.

A decision does not have to be harsh, unjust and unreasonable, it only has to be one of the three to be considered “unfair”.

Harsh - A decision to terminate could be considered “harsh” because of the consequences for the employee of being dismissed, for example if the employee was to suffer a significantly adverse economic or personal consequence as a result of the dismissal. A decision to terminate may also be considered harsh if the decision to terminate was considered to be disproportionate to the misconduct.

Unjust - An example of an “unjust” dismissal would be if the evidence showed that the employee was not guilty of the conduct they were accused of.

Unreasonable - An example of an “unreasonable” dismissal would be that the evidence used in the investigation was insufficient to substantiate a finding on the balance of probabilities and did not support the decision to terminate.