TERMINATION OF EMPLOYMENT – performance – procedural fairness – s.394 Fair Work Act 2009 – application for unfair dismissal – applicant employed as a Level C Senior Lecturer – dismissed on grounds of unsatisfactory performance relating to research output – applicant submitted that alleged failure to be ‘research-active’ was beyond the requirements of a Level C position – submitted that respondent failed to apply the relevant disciplinary process under the Flinders University Enterprise Agreement 2014 to 2017 and that the dismissal was harsh as no formal warnings in respect of performance had been issued since 2011 – Commission found that the research requirements of the applicant’s role were consistent with the Agreement – found that applicant was not capable or willing to meet the requirements of a Level C Academic despite recent improvement – satisfied there was a valid reason for dismissal – whether procedural fairness afforded – found that the 2011 warning was referred to the applicant several times before dismissal, however, it did not expressly include or exclude research performance – found the disciplinary process under the Agreement not generally applied – procedural deficiencies impacted on applicant’s capacity to respond and the degree to which he understood his employment was in jeopardy – applicant offered to accept demotion to a Level B position as contemplated as a disciplinary outcome under the Agreement – Commission satisfied that proposed demotion would have been a reasonable and proportionate response – respondent’s failure to consider demotion more fully as an alternative was unreasonable – satisfied that the dismissal was harsh – reinstatement to former position not appropriate – ordered compensation of $65,499 less applicable taxation. Lynd-Stevenson v Flinders University
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