TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant was employed as leading hand in respondent’s cement and concrete products factory – applicant was terminated as result of incident on 16 November 2016 where applicant was alleged to have allowed another employee to operate a crane which dropped a rack of steel – applicant assisted with clean-up and told employee to file safety report which occurred some 49 minutes later – respondent alleged that employee was not fully trained to operate crane and that applicant did not provide adequate supervision of employee nor immediately report the safety incident himself – applicant provided with ‘show cause’ letter on 22 November 2016 which required written response followed by meeting on 24 November 2016 – letter also referred to a ‘final written warning’ letter issued to applicant in December 2015 – applicant contacted AWU who sought to reschedule meeting and allow a verbal response; both rejected by respondent – applicant received termination letter on 25 November 2016 following applicant’s failure to respond in writing and attend meeting – applicant submitted that respondent did not have a valid reason for dismissal and that he was not given the opportunity to properly respond to respondent’s allegations – Commission found that employee had operated crane on many occasions without objection and that the responsibility for training rested with senior management – found that the final written warning relied on by respondent was unrelated to current incident – satisfied that there was no valid reason for dismissal – not satisfied that the requirement for written response and the time frame allowed was reasonable – not satisfied that applicant and AWU were granted a fair opportunity to be heard – found that the applicant’s nonattendance at the 24 November 2016 meeting did not detract from the unfairness of the respondent’s process – satisfied dismissal harsh, unjust and unreasonable – reinstatement ordered and restitution of lost wages less payment received in lieu of notice and $3000 received by applicant in casual employment since dismissal. West v Holcim (Australia) P/L
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