TERMINATION OF EMPLOYMENT – misconduct – ss.387, 392, 394 Fair Work Act 2009 – application for unfair dismissal – applicant dismissed for serious misconduct on basis he engaged in bullying and denied was provided with training about bullying in interview with Workplace Health and Safety Queensland (‘WHSQ’) – respondent claimed it was issued with Improvement Notice by WHSQ due to applicant’s denial he had undertaken training – respondent claimed dismissed applicant on basis of WHSQ investigation findings – respondent provided no documents or evidence from WHSQ to support bullying allegations – respondent relied on evidence from HR Manager who said WHSQ Investigator told her applicant engaged in bullying – respondent concluded applicant engaged in bullying on basis of WHSQ Investigator’s statements and did not conduct internal investigation – applicant denied he engaged in bullying or that statement to WHSQ was incorrect – applicant claimed first notified of bullying allegation when dismissed – respondent claimed applicant dismissed as responsible for breach of worldwide delivery embargo of JK Rowling book – book was delivered a day early – applicant was Depot Manager responsible for staff and drivers who breached embargo – applicant claimed he was not responsible for breach as had trained employees and error with sorting and handling occurred when he was on leave – applicant agreed that freight moved out of embargo area and put on truck on day he was at work – respondent claimed breach of embargo caused significant reputational damage – Commission not satisfied that applicant engaged in bullying – respondent relied on hearsay evidence – HR Manager’s evidence about meeting with WHSQ Inspector not convincing – allegation of bullying is serious matter and not valid reason for dismissal if based on hearsay – WHSQ investigator should have been called as witness – WHSQ documents did not establish applicant engaged in bullying – respondent should have conducted own investigations – no valid reason for dismissal – applicant telling WHSQ Inspector he had not been provided with specific training about bullying was not valid reason for dismissal – breach of embargo was not valid reason for dismissal but was misconduct – respondent entitled to issue applicant warning – applicant was responsible manager at relevant time and that did not cease because applicant on leave – applicant’s failure to accept any responsibility for breach was unreasonable – applicant not given an opportunity to respond to reasons for dismissal – applicant denied procedural fairness – dismissal was harsh, unfair and unjust – compensation appropriate remedy – applicant would have stayed in employment for at least 12 months – compensation should be discounted 20% on account of contingencies – satisfied applicant made reasonable attempts to mitigate loss seeking alternative employment – compensation reduced on basis respondent paid applicant 12.4 weeks’ wages on termination – discounted 25% on account of misconduct – compensation ordered $48,432.69 in wages and $6,555.12 in superannuation. Biffin v XL Express P/L t/a XL Express
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