TERMINATION OF EMPLOYMENT – incapacity – permission to appeal – ss.394, 604 Fair Work Act 2009 – appellant sought permission to appeal first instance decision of Commission that dismissal not harsh, unjust or unreasonable – respondent at first instance identified performance issues related to applicant’s work – Commission at first instance held applicant’s failure to pass competency assessment carried out by respondent valid reason for dismissal – on appeal appellant claimed error of fact in finding that he was sufficiently warned about competency assessment – claimed failure to take into account evidence that competency assessment carried out without any warning provided to applicant that assessment would determine his future employment – whether person has been warned about unsatisfactory performance before dismissal factor Commission must take into account under s.387(e) of the Act – Commission at first instance found number of factual findings including that applicant was aware of respondent’s concerns regarding unsatisfactory performance – seriousness of issues under review in both mentoring program and performance improvement plan – applicant had opportunity to respond during competency assessment which he did not utilise – competency assessment ultimate event in comprehensive process dealing with respondent’s legitimate concerns about applicant performing in safety critical role -existing context of applicant’s employment made any further warning unnecessary – Full Bench found no error of fact significant in decision at first instance – no public interest in granting permission to appeal or matters of importance or general application raised by the appeal [GlaxoSmithKline Australia] – permission to appeal refused. Soper v Teekay Shipping (Australia) P/L
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