TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act – applicant was granted a period of leave – applicant and respondent had differing understandings of duration of leave – applicant returned earlier than respondent was expecting – arrangements had been made for others to undertake work in his absence – applicant informed there was no work for him at that time and told to wait for a call – applicant proposed he work on a construction site by SMS – no evidence of applicant telling employer he was not allowed to work at construction sites but he later refused construction site work – no evidence of legitimate basis for the applicant refusing work – respondent alleged applicant had abandoned his employment – letter headed ‘Employment termination’ sent to applicant informing his position had been terminated – after dismissal respondent offered applicant option of returning to work at a construction site – applicant refused the work – applicant’s repeated refusal to attend for work as directed a valid reason for dismissal – applicant notified of reason for dismissal in letter of termination – not made clear to applicant before dismissal that he would be dismissed if he did not attend to work – no opportunity to respond – small size of business and lack of HR expertise a factor leading to procedures followed being deficient – three warnings not provided to applicant prior to dismissal as offer of employment letter – dismissal unjust, notwithstanding there being a valid reason for the applicant’s dismissal due to respondent’s failures to give warnings and follow fair procedure – reinstatement inappropriate – held that in all likelihood applicant would have been dismissed a week later if a fair process was followed by respondent – even if applicant had been likely to receive additional remuneration, this amount would be reduced by 50% because applicant’s misconduct directly contributed to the respondent’s decision to dismiss him – considering circumstances no compensation ordered – order to this effect issued in conjunction with decision. Guo v Metwest Steel P/L
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