A dismissal in breach of an implied term of the employment contract (such as the consultation obligation in s 41) may constitute a wrongful dismissal at law, but whether such breach renders the dismissal harsh, oppressive or unfair is a separate question requiring examination of the overall context and whether the breach caused identifiable loss or injury.

Where an employee establishes both wrongful dismissal at law (by summary dismissal without notice) and harsh, oppressive or unfair dismissal, the nature and measure of relief may differ between the common law entitlement and the statutory remedy.

The question is whether the termination of the appellant's employment by the effluxion of time fixed for the duration of that employment constitutes a dismissal by the employer. If not, no question of relief for alleged harsh, oppressive or unfair dismissal could arise.

An employee pursuing an appeal against compensation for unfair dismissal cannot maintain inconsistent claims—such as arguing simultaneously that there was no genuine redundancy (to claim unfair dismissal) and that there was a genuine redundancy (to claim redundancy payments). The employer's concession of genuine redundancy must be accepted; there is no justification for permitting inconsistent heads of claim.

The public interest criterion in s27(1)(a)(ii) requires consideration of whether continuation of proceedings would undermine the due administration of justice and other relevant matters; competing matters of public interest must be weighed and balanced.

A contract coming to an end by effluxion of time cannot be characterised as a dismissal for the purposes of unfair dismissal jurisdiction under the Act.

A dispute concerning whether an employee was fairly dismissed, and if not, whether she should be reinstated, is an industrial dispute provided it is sufficiently proximate in point of time to the dismissal. The fact that a dismissal has taken effect does not necessarily mean that a dispute as to the fairness of the dismissal cannot be an industrial dispute.

On a claim of unfair dismissal for misconduct, the Commission is not required to itself prove that the misconduct occurred; rather, it must be satisfied that the employer, after a proper and thorough investigation, held an honest and genuine belief based on reasonable grounds that the misconduct occurred.

An evidentiary burden on the employer requires only that there be sufficient evidence to raise an issue as to the existence or non-existence of the fact in issue; it does not require the employer to establish that the employee was actually guilty of the misconduct alleged.

Where the investigation concerns serious allegations affecting personal safety (such as child sexual abuse) and public interest, the Commission should assess whether the employer honestly and genuinely believed on reasonable grounds that misconduct occurred after sufficient inquiry, without requiring the Commission itself to prove the misconduct actually happened.

An employer has the legal right to terminate employment; the question for the Commission is whether that right has been exercised so harshly or oppressively as to amount to an abuse of that right.

The Commission has jurisdiction to hear an unfair dismissal claim under s 29(1)(b)(i) if the referral is made not later than 28 days after termination OR if the Commission accepts a referral under s 29(3) after the referral is made out of time.