TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant dismissed for serious misconduct – applicant employed as Train Driver Trainer – applicant failed to check whether co-driver was on board following a brief stoppage to check train tracks – co-driver informed applicant she was going for a toilet break – applicant misinterpreted this to mean she would be using on board facilities – applicant unaware co-driver had left train – applicant could not locate driver after moving off again – co-driver was found walking along track several kilometres away – respondent launched investigation – respondent alleged serious safety breaches by applicant in violation of policies, procedures and Code of Conduct – respondent submitted two primary reasons for dismissal – leaving co-driver behind – speeding – Commission found first allegation not made out – second allegation was ‘one off incident’ – mitigating circumstances – criticism of employer’s handling of investigation – inconsistent treatment as co-driver not dismissed – applicant did not have any disciplinary history in over nine years of service – dismissal unfair – reinstatement sought – reinstatement not impracticable – loss of trust and confidence not established – reinstatement awarded – orders sought for continuity of services and lost remuneration – significant discount for lost remuneration due to breach of respondent’s safety policies – applicant awarded remuneration he would have otherwise earned but for dismissal – less 30% – continuity of service recognised – orders made. White v Asciano Services P/L t/a Pacific National.
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