TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant employed as a merchandiser and company representative from 13 July 2015 – dismissed on 24 August 2016 via telephone call where respondent told applicant to return all company property to the office as he ‘was fired’ – applicant not provided with reason for dismissal – only given reason when Employer Response Form was filed by respondent to the Commission – form stated applicant dismissed for using social media during working hours and had been previously given 5 written warnings about conduct – Facebook post made by applicant alluded to an employee’s conduct towards a boss however applicant submitted it referred to his mother’s boss not the respondent – applicant stated not given workplace policies including the policy on use of social media – applicant submitted he did not receive written warnings referred to in respondent’s submission – Commission considered termination could be one or combination of harsh, unjust or unreasonable [Byrne v Australian Airlines] – Commission reasoned it difficult to conclude the respondent had a valid reason to dismiss the applicant or if there was a valid reason it had not been properly established by the respondent as there was a lack of any investigation before the decision to terminate his employment was made – Commission not satisfied there was evidence to establish the applicant had been aware of the policy banning the use of social media at work – not satisfied there was a valid reason for dismissal – satisfied dismissal was harsh and unreasonable – applicant unfairly dismissed – s.390 FW Act considered for remedy – reinstatement inappropriate compensation awarded – calculated per Sprigg – applicant able to find work within one week however now earns $995.00 gross less per month than when employed by respondent – compensation calculated as per loss of earnings for 6 months being $5,970.00 with an additional week’s pay when unemployed between roles, Commission subtracted 10% in respect to contingencies – total amount awarded $6,238.00 less taxation. Somogyi v LED Technologies P/L
…
