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Understanding Unfair Dismissal: A Deep Dive Into Shane Harman Vs. Joe Harkin Case

In the realm of employment law, one fundamental question persists – can an employee’s termination be considered unfair even if the employer had a legitimate reason for the dismissal? We find an intriguing illustration of this predicament in the case of Shane Harman vs. Joe Harkin, trustee for the Civil Labour (NSW) Trust [2023] FWC 1220.

Background of the Case

Shane Harman served as an operator and truck driver for Joe Harkin’s trust for 18 months. Unexpectedly, Harman’s employment was terminated. He challenged this action, alleging unfair dismissal, while Harkin held that Harman had either resigned or abandoned his job. As the dispute reached the Fair Work Commission (FWC), they ruled in favor of Harman. Here’s why.

The Story Unfolds

Throughout his tenure, Harman consistently asked for his payslips, a basic employee right that his employer routinely ignored. Unlike his peers who received payslips via email, Harman didn’t have an email address and thus, had asked for physical copies of his payslips.

Tensions peaked on 25th August 2020 during a meeting with the Operations Manager, Batcher of the Company, and one of the company owners, participating by phone. Harman reiterated his request for his payslips, only to be rebuffed by the owner claiming he had already received them. A heated exchange followed where Harman insisted he hadn’t received the payslips, and the owner resorting to name-calling.

As the argument escalated, Harman’s frustration led him to punch the lunchroom wall, after which he was advised to take the day off due to his stressed ‘head space’. Contrary to the owner’s claims, the FWC agreed with Harman that he never expressed a desire to quit.

The Legal Framework

The case essentially revolved around two primary issues – whether Harman was dismissed and if so, was the dismissal harsh, unjust, or unreasonable.

Section 386 of the Fair Work Act 2009 (Cth) (FW Act) defines ‘dismissed’ as termination initiated by the employer or forced resignation due to the employer’s conduct. Section 385 describes an unfair dismissal as a dismissal that is harsh, unjust, or unreasonable and inconsistent with the Small Business Fair Dismissal Code.

The Verdict

Contrary to the owner’s claims, the FWC did not find any evidence to suggest that Harman resigned or abandoned his position. They deemed the termination date as 1st September 2020, when the Operations Manager informed Harman of his employment’s termination.

While Harman’s act of punching the wall provided a valid reason for termination, the Deputy President of the FWC found the dismissal to be unjust due to the employer’s failure to meet certain obligations. The company did not provide Harman with the reason for his dismissal, nor an opportunity to respond. They also consistently denied him his payslips, a breach of the employer’s legal obligations.

Final Thoughts

The case is a cautionary tale for employers who might overlook the importance of procedural fairness, even when termination grounds seem valid. Employers must ensure transparency in their dealings, especially when it comes to employee rights such as the provision of payslips. Failing to do so might not only lead to disputes but also penalties from the FWC or the courts.

Always remember, a legitimate reason for termination does not necessarily absolve an employer of the charge of unfair dismissal. Procedural fairness matters as much as the reason for dismissal.

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