TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – application for unfair dismissal remedy dismissed at first instance – appellant employed by respondent labour hire company to work at BHP Billiton Petroleum Inc (BHPB) site – dismissed after BHPB exercised contractual right to direct respondent to remove appellant from site – Commission held dismissal not harsh, unjust or unreasonable – appeal on grounds that Commission erred in finding question of valid reason did not arise on facts – Full Bench granted permission to appeal as appeal raised broader question regarding obligations of labour hire employer – Full Bench found BHPB’s instruction that appellant not permitted to work on site represented matter going to employee’s capacity to work – required consideration under s.378(a) of FW Act to determine whether valid reason for dismissal – Commission to consider and reach conclusions about each factor specified in s.387 [Mulhall] – held Commission erred in finding circumstances of dismissal did not give rise to consideration of valid reason – appeal upheld – matter redetermined – to be valid reason, must be defensible or justifiable on objective analysis of facts – Full Bench satisfied employer had valid reason relating to employee’s capacity and only exercised reason because genuinely unable to find suitable alternate employment – Adecco distinguished – having considered s.387 factors, Full Bench held dismissal not harsh, unjust or unreasonable – Commission order dismissing unfair dismissal application confirmed. Appeal by Pettifer against decision and order of McKenna C of 25 May 2016 [[2016] FWC 3194] Re: MODEC Management Services P/L
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