It is important that employers carefully consider any mitigating factors when undertaking disciplinary processes. A fair and balanced approach ensures that behavioural risks in the workplace are managed effectively without losing sight of the broader context in which the behaviour occurred.
In the recent decision of Lewis v Essential Energy [2026] FWC 252, the Fair Work Commission (FWC) found the dismissal was harsh and unreasonable in consideration of mitigating circumstances despite finding that the employee’s conduct provided a valid reason to dismiss the employee.
A long-serving employee of Essential Energy (the Employer) was dismissed for serious misconduct following an outburst at a toolbox meeting in February 2025.
During the heated exchange, the employee called a colleague “a f***ing dog”, and made comments such as “I should punch you in the head” which were interpreted as an invitation to fight. The employee then left the toolbox meeting in tears.
The employee took two days of personal leave for his mental health citing stress put on him from the workplace and made it clear the Employer that he was not taking leave due to the toolbox meeting incident alone.
On his first day back to work, the employee apologised to his colleagues who accepted his apology. On that same day, the Employer advised the employee that it would be investigating four allegations of serious misconduct by the employee arising from the toolbox meeting.
The employee continued to work as normal for six weeks during the investigation.
The employee provided his response to the allegations, stating that he was remorseful and acknowledged the impact of his poor behaviour. The employee explained that he was under significant personal stress from personal circumstances, including his father’s cancer worsening and his aunt entering palliative care the day before the toolbox meeting incident - which he claimed was “common knowledge” within the workplace.
The employee also advised the Employer that he had contacted the Employee Assistance Program and his General Practitioner who both confirmed that he was experiencing ongoing anxiety, and that he was undergoing counselling.
In April 2025, the Employer confirmed that although the employee’s mitigating circumstances were “thoroughly reviewed”, the Employer had found the allegations were substantiated and ultimately dismissed the employee. In its reasoning, the Employer emphasised that the employee attended work aware of his stress and as a result had“ horrified [his] work colleagues” and “risked their safety”.
The employee made an unfair dismissal claim on the basis that the dismissal was harsh because the Employer failed to make its decision with regard to the context of his misconduct.
The FWC firstly considered the evidence and found that the employee’s conduct during the toolbox meeting breached the Employer’s Code of Conduct and amounted to a valid reason for dismissal.
However, the FWC found that the Employer did not give sufficient consideration to the employee’s mitigating circumstances provided by the employee, including:
The FWC considered the Employer’s failure to properly consider the mitigating factors or alternatives to dismissal to be a significant procedural deficiency in the Employer’s approach.
The FWC commented that the Employer appeared to apply a “one size fits all” approach to the employee’s conduct, which ignored the range of ways a person may respond to stress and did not consider whether the behaviour was likely to recur given the employee’s continuing support and treatment.
On this basis, the FWC accepted that it was harsh and unreasonable for the Employer to dismiss the employee.
The FWC rejected with the Employer’s submissions that the employee posed an “ongoing risk” to health and safety in the workplace on account of the employee being allowed to attend work during the disciplinary process.
In its findings, the FWC also considered that there was evidence of a workplace culture where similar conduct had previously been tolerated by the Employer – which weighed in favour of finding the dismissal was unreasonable.
The FWC ordered that the employee be reinstated to his position, backpay (reduced to 80% in consideration of the employee’s misconduct) and continuity of his employment.
Even when dealing with allegations of serious misconduct, employer should give full consideration to any mitigating circumstances and context of each situation to provide a balanced perspective to any disciplinary action.
This decision is a clear reminder of the FWC’s expectation that employers will apply their policies with a degree of nuance. And as was the case in this decision, in circumstances where the dismissal is found to be unfair, a potential risk for the employer may be the requirement to reinstate and backpay the employee - a scenario which can undermine the employer’s credibility and authority in the eyes of its workforce.
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