TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant for unfair dismissal remedy employed as a receptionist on a casual basis at respondent small business – applicant advised respondent that she had taken out an intervention order against one of its contractors owned by her brother in law (contractor) – applicant summarily dismissed for misconduct for allegedly viewing archived emails and invoices of contractor – respondent alleged conduct of applicant in looking at emails after being warned on various occasions not to do so, placed respondent at risk of breaching the Privacy Act – under Small Business Fair Dismissal Code (Code), Commission to consider whether respondent had reasonable belief that applicant’s conduct was sufficiently serious to justify immediate dismissal – Commission found no direct evidence that applicant was accessing archived emails of contractor or had obtained or was intending on using the contractor’s information for any purposes that would breach Privacy Act – to hold a belief on reasonable grounds necessary to have a discussion with employee about the perceived serious misconduct and consider employee’s responses – no such discussion occurred – nothing in evidence suggesting respondent had reasonable grounds to believe there was serious misconduct – not satisfied respondent reasonably formed belief that applicant engaged in conduct that justified immediate dismissal – Commission held dismissal inconsistent with Code – necessary to consider whether dismissal harsh, unjust or unreasonable – not satisfied that applicant received instructions from respondent regarding the handling of emails from contractor – no warnings about accessing archived emails or that such conduct may result in dismissal – not satisfied respondent could be sure applicant was accessing files for reasons that would warrant dismissal – no valid reason for dismissal – applicant notified of reason for dismissal at meeting in which dismissed, after decision to dismiss had been made – not treated fairly in process – respondent’s lack of expertise in human resources not sufficient to outweigh the lack of a valid reason – satisfied dismissal harsh, unjust or unreasonable – Commission found dismissal unfair – reinstatement inappropriate – compensation appropriate – estimated length of employment at least another year – payment of 26 weeks’ compensation plus superannuation, less tax ordered. Wright v Essendon Realty P/L t/a Raine & Horne
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