TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant employed for 3 years as a Dump Truck Operator – applicant had accident in work vehicle and did not report it – incident reported by another driver – applicant then acknowledged he was responsible for the damage – applicant stood down from work – applicant interviewed the following day – advised in interview that respondent considered the matter serious due to incident and applicants failure to report it – applicant attended disciplinary meeting and was terminated due to breach of safety procedures – applicant asserted termination was harsh, unjust and unreasonable – applicant asserted there was no valid reason for termination or, alternatively, the termination was disproportionate to the incident – applicant asserted termination was procedurally unfair as he was not advised that dismissal was a possible result of the first meeting – applicant gained further alternative employment nine weeks after termination and sought compensation rather than reinstatement – respondent argued it had a rigorous safety regime and policy in place which the applicant had been trained in and applicants failure to report breached this policy – respondent asserted there was a valid reason for termination due to the significant breach – Commission found respondent had a rigorous safety policy in place and the applicant breached this policy – Commission satisfied applicants decision not to report the incident significant – Commission found that although there was a breach of safety policies and practices, this was not a valid reason for dismissal – Commission found termination decision disproportionate to behaviour – Commission found termination harsh and unreasonable – reinstatement not appropriate – Sprigg considered regarding compensation – considered applicant would have been employed for another 6 months – applicant secured other comparable work within 9 weeks of termination – deduction of 50% for misconduct – compensation awarded – order issued. Atkinson v BGC Contracting P/L
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