TERMINATION OF EMPLOYMENT – misconduct – ss.387, 392, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant worked for the South Oakleigh Club for over four years – was suspended from employment – respondent alleged applicant advised patrons Club had no money; disclosed confidential employment details to a member of the Club; spoke negatively about managers; disregarded lawful instruction; engaged in conversation of sexual nature in relation to teenage girls in Thailand with another staff member and behaved aggressively and disrespectfully to head chef – applicant responded to allegations – applicant dismissed by letter without notice for serious misconduct – applicants evidence it was common knowledge Club had financial trouble – denied disclosing employment details – lawful instruction issue not denied but dealt with earlier – had not engaged negatively regarding managers nor head chef – allegation regarding conversation of sexual nature most likely overheard conversation about a Member’s girlfriend in Thailand and holiday there – in respondent’s evidence from managers and some staff emerged financial difficulties known to patrons and lawful instruction issue had been dealt with – Commission concluded similarity in evidence from staff regarding negative behaviour with other staff evinced collusion but accepted at times the applicant was difficult to deal with – where dispute over evidence preferred applicant’s – much evidence given by respondent’s witnesses ‘was self-serving, inconsistent, nonspecific, based on hearsay and in some cases just not believable’ – of conduct Commission found occurred not satisfied provided valid reason for dismissal – Commission satisfied dismissal was harsh, unjust or unreasonable – applicant unfairly dismissed – Commission satisfied reinstatement not appropriate as applicant no longer had support of managers and staff had given evidence against him – compensation ordered – 20 per cent reduction for contingencies given Club’s financial difficulties – lost earnings exceeded compensation cap – compensation ordered equal to compensation cap plus superannuation. U2017/1177
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