TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant was courier driver with respondent – respondent alerted to presence of competitor referred to as ‘Today’s Express’ from customers – respondent received an electronic message via WeChat group from customer expressing satisfaction for service provided by Today’s Express and respondent, whom she believed were operating in a joint arrangement – respondent requested copy of messages involving Today’s Express, which implicated applicant – respondent accused applicant of operating own company in competition to respondent – applicant denied allegation and requested proof – respondent forwarded copy of relevant WeChat messages to applicant – at subsequent meeting with respondent the applicant said he was entitled to do whatever he wanted outside work time – respondent summarily dismissed applicant – applicant challenged reason for dismissal and denied any of his activities with Today’s Express were inimical to the respondent – applicant submitted Today’s Express was not a company but a WeChat group operating in conjunction with another company as an agent for the respondent – applicant submitted real reason for his dismissal related to claims of alleged underpayment of wages, superannuation and taxation – respondent submitted there was a valid reason for dismissal as applicant was operating a rival company using respondent’s commercial and intellectual property without authorisation – Commission found evidence problematic as applicant had limited English skills and both applicant and respondent introduced statements from individuals who did not appear for crossexamination – Commission satisfied applicant involved in activities in direct conflict to respondent’s business interest which represented valid reason for summary dismissal – lack of proper documentation of the termination and allegations of underpayment and taxation breaches could not justify or mitigate the serious misconduct of applicant – allegations of underpayment should be pursued through alternative government agencies – found even if applicant had established dismissal was unfair, there was little prospect of remedy as applicant did not make efforts to find alternative employment and did not provide evidence to support assertion that mental and physical health problems impeded this pursuit – application dismissed. Jiang v C J Express Sydney P/L
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