TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant took personal trailer to work site and asked two direct report employees to undertake welding and wiring work on trailer – respondent became aware of applicant’s actions and undertook investigation – following investigation and show cause meeting applicant was dismissed – applicant submitted the employees carried out the work of their own free will during their shift breaks and he believed he did not need the respondent’s permission for the work to be done – respondent submitted applicant’s behaviour breached its Code of Business Conduct (Code) which required employees to ‘never use BHP Billiton assets for personal gain’ – claimed misconduct destroyed trust between employer and employee – applicant claimed actions fell within exception of ‘moderate personal use’ provided for in Code – whether dismissal harsh, unjust or unreasonable – Commission found valid reason for dismissal – applicant’s actions breached respondent’s Code and Charter Values – noted approximately 21 years of employment weighed in applicant’s favour but employment record was not unblemished – had been subject to final written warning and verbal counselling regarding behaviour – Commission found no procedural failings – satisfied dismissal not harsh, unjust or unreasonable – application dismissed. Desmond v BHP Billiton Nickel West P/L
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