TERMINATION OF EMPLOYMENT – misconduct – s. 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as a security guard – applicant dismissed due to generators, convertor and oil going missing from a site on 3 October 2016 during period where he was responsible for security – respondent failed to attend hearing – Commission decided it was reasonable to proceed in the absence of respondent as they were aware of hearing and had adequate notice – respondent submitted applicant had withdrawn claim because he entered into a separation agreement and signed a notice of discontinuance – applicant submitted he was led to believe that respondent’s representative had been acting on his behalf as well as on behalf of the respondent – applicant is not fluent in English, was not represented and did not have an interpreter when signing the documents – Commission not satisfied the terms of settlement and notice of discontinuance can be relied upon – respondent submitted applicant was a casual employee who was not employed on a regular and systematic basis – respondent did not provide pay slips or rosters – applicant gave uncontested evidence that he was paid $17 per hour and never received any pay slips – applicant submitted he worked a total of 160-170 hours during the six month period of his employment – Commission satisfied the period of applicant’s employment as a casual employee was on a regular and systematic basis – applicant submitted there was no valid reason for his termination and that respondent wrongly reached the conclusion that generators and compressors went missing from the site when he was responsible for security – applicant submitted he was directly watching the containers and the items did not disappear on his shift – applicant submitted he spoke to the manager who said the items disappeared between 1 and 3 October 2016 – applicant submitted a number of other guards worked between this period – Commission not satisfied there is valid reason for applicant’s dismissal related to his capacity or conduct – Commission accepted applicant’s evidence that he was not negligent in his duties – Commission satisfied lack of a valid reason and lack of procedural fairness mean that the dismissal was harsh, unjust and unreasonable – order for compensation made. Jan v NRS Engineering Solutions P/L
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