TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed by Bechtel from March 2016 until September 2016 – summarily dismissed for alleged serious misconduct which occurred during evening of 10 September 2016 at Sun Chalets in Onslow – applicant submitted he was not at work, or rostered for work when incident occurred – submitted respondent played no part in organising or authorising activity – submitted alleged misconduct occurred in private accommodation booked and paid for by applicant and any damage and loss of utility was voluntarily reimbursed – submitted sole reason respondent gave for dismissal was that alleged misconduct constituted serious misconduct for purposes of Community Code – contended that his behaviour did not breach an express or implied term of contract of employment and Code was not a term – submitted that if Code was applicable alleged conduct did not constitute serious misconduct for purposes of Code and not valid reason – submitted that respondent had no right to interfere or attempt to regulate applicant’s private life – Respondent submitted employees must seek approval to stay in Onslow overnight due to sensitive relations between project and local community – applicant’s contract of employment and letter of offer contained commitments to policies and procedures including those relating to local community – submitted applicant and colleague registered at motel as employees of respondent – submitted applicant’s admissions sufficient to be within ambit of Code of Conduct, Community Code and Project Rules – submitted that termination was valid as misconduct was manifestly serious and in clear breach of contract of employment and various policies he had expressly acknowledged – Rose v Telstra cited – submitted the fact that applicant off-site and off-duty is irrelevant given Codes and Rules – submitted that applicant’s payment for damage caused was not indicative of remorse but an ordinary consequence of misconduct – Commission satisfied that content of Codes and Rules not unreasonable in the particular circumstances – considered distinction in Codes between misconduct and serious misconduct – satisfied that noisy behaviour to others or causing a disturbance was misconduct despite respondent’s label of serious misconduct – not satisfied that applicant’s behaviour was wilful nor that it constituted serious misconduct as set out in the Community Code – held that applicant’s behaviour in terms of Codes constituted misconduct but not serious misconduct and should not result in termination of employment – held that applicant should have been subject to disciplinary action but that should not have been termination of employment – considered s.387 FW Act – found that applicant’s conduct and failure to comply with Codes were valid reasons for dismissal – treatment of two employees considered – Jetstar v Ishak considered – Commission found decision to terminate applicant when colleague only received final written warning for comparable conduct was harsh – determined that dismissal was harsh and unjust and unfair – remedy considered – respondent submitted loss of trust and confidence so reinstatement inappropriate – Commission satisfied that reinstatement appropriate – ordered reinstatement to position held immediately prior to dismissal with maintenance of continuity of employment – order for lost remuneration to deduct eight weeks as consequence of misconduct – parties to confer on form of Order. Clarkin v Bechtel Construction (Australia) P/L
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