TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant was employed as Municipal Services Supervisor and was responsible for small fleet of rubbish vehicles – incident occurred in mid-late 2016 which involved damage to rubbish truck which was operated by an unlicensed driver – applicant signed incident report indicating that he himself was the driver – applicant was issued with ‘first and final warning’ letter on 12 September 2016 relating to unsatisfactory performance and lack of care to vehicle cleanliness, paperwork and maintenance – the following day, applicant stated at a meeting that he and a manager of the respondent were aware of unlicensed driving but they did nothing about it – applicant claimed to have felt pressured into signing incident report as if he was the driver – following meeting, respondent held counselling session with applicant to address issues with performance – in the weeks following, respondent undertook investigation of vehicle incident, although applicant was not aware of this and was not given an opportunity to comment on outcome – applicant was subsequently terminated on 11 October 2016 for falsifying critical incident report and breach of code of conduct – Commission satisfied that falsifying the incident report in conjunction with allowing unlicensed drivers to drive vehicles provided valid reason for dismissal – Crozier considered – Commission not satisfied that applicant was advised of reason for dismissal prior to the decision being made to dismiss him – while the ‘first and final warning’ letter mentioned various performance issues, the issue of applicant falsifying report and allowing unlicensed drivers to drive were not put to him – satisfied that applicant was not given opportunity to respond to the reason for his dismissal – in terminating applicant’s employment for misconduct, respondent could not rely on performance issues to justify termination – Commission concluded that although there was a valid reason for dismissal, it was unreasonable in the circumstances – not satisfied reinstatement appropriate – Commission to issue directions for considering compensation as remedy. Lumsden v East Arnhem Regional Council
…
