TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as senior network engineer from December 2015 until dismissal on 10 October 2016 – applicant required to work in the Melbourne office at normal office hours when not at country sites – respondent submitted applicant repeatedly failed to attend the office at normal office hours except when working at country sites and complete time sheets on time and fully – applicant conceded he was rarely in the office despite clear instruction – applicant further failed to report he had lost his licence for a six month period to his direct manager – applicant was in receipt of car allowance during period he was legally unable to drive – respondent prepared final warning notice – applicant signed to acknowledge receipt of notice on 6 October 2016 – Commission noted final warning letter was poorly drafted and confusing – satisfied its purpose was to put applicant on notice and failure to attend the office or complete timesheets could lead to dismissal – applicant dismissed by phone call on 10 October 2016 – applicant not given adequate opportunity to respond in phone call – Commission noted this factor usually stands in favour of finding a dismissal was unfair – found this was an unusual case – not satisfied in this case this factor was sufficient to make the termination unfair based on a number of factors – applicant’s manager based in Bendigo and applicant based in Melbourne – accepted telephone was most effective way to communicate – Commission satisfied attendance at the office during normal office hours when not required in the country and timely completion of time sheets were reasonable instructions – accepted applicant repeatedly defied clear instructions – applicant received final warning only two working days prior to phone call – found dismissal was fair – dismissal was not a disproportionate response to the defiance of reasonable management directions – application dismissed. Nourfadi v Viatek Technology P/L
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