TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant almost 27 years continuously employed at Geelong refinery – initially employed by Shell Refining P/L (Shell) and since 2014 by Viva Energy following its purchase of the business from Shell – applicant well known union delegate at workplace – applicant dismissed for conduct employer considered in breach of policies and duties under enterprise agreement – applicant sent email to approximately 170 other operators whilst working night shift – email related to industrial issue at refinery regarding advanced fire training – applicant argued email informed operators of disapproval that some operators undertook training not approved by union and training participants helping company with proposed de-manning, contrary to union resolutions – claimed did not make threats against employees nor identify them – claimed conduct did not constitute valid reason for dismissal – respondent claimed applicant committed serious breach of company policy – considered applicant interfered in company’s right to give lawful and reasonable directions to employees to undertake training – constituted valid reason for dismissal – Commission found email intended to negatively portray employees who had attended training and to disrespect their lawful decision to do so – applicant’s concluding message in email was to invite operators who had undertaken training to identify themselves to him and state their case – Commission found valid reason for dismissal – applicant’s background in union activities and effect of email on workplace attitudes and relationships found not to make misconduct less serious – found apologies proffered belated and expressed in shadow of advanced disciplinary process when dismissal was understood by applicant and support person to be real possibility – found dismissal for sending email contrary to policy, even if seen as single act, was not disproportionate response – satisfied applicant notified of valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed. Pearse v Viva Energy Refining P/L
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