TERMINATION OF EMPLOYMENT – misconduct – ss.387, 394 Fair Work Act 2009 – applicant filed application seeking remedy for alleged unfair dismissal by respondent on 26 March 2014 – hearing of application delayed by lodgement and resolution of Full Bench appeals from decisions of other Members of the Commission – applications of Messrs Strauss, King, Deeney, Hughes, Park and Seiffert allocated to Commission for arbitration (concurrent applicants) – applicant’s employment governed by Patrick Projects P/L AMC Cargo Handling Agreement 2012-2015 (Agreement), a Memorandum of Understanding Deed (MOU) between respondent and Maritime Union of Australia, and contract of employment – applicant submitted all conditions in MOU were and are still applicable and enforceable employment conditions – applicant notified on 19 February 2014 that position would be made redundant on 20 March 2014 (Proposed Termination), which he submitted would have been harsh, unjust or unreasonable – employment terminated on 18 March 2014 for misconduct (Actual Termination) – applicant submitted actual termination was harsh, unjust or unreasonable – further submitted he had unresolved disputes with respondent at date of termination and Status Quo Clause of Agreement required he remain in employment until those disputes were resolved – Commission not satisfied issues identified by applicant as outstanding at termination were relevant to issues for determination – no issues alleged to still be in dispute were relied upon by respondent for termination – held nothing in Status Quo Clause dictated respondent had to maintain employment of employee involved in unresolved grievance or dispute – Commission otherwise satisfied Status Quo Clause was properly applied by respondent – applicant further alleged Training Clause entitled him to be trained in all high risk licences, including ones that respondent did not require – submitted there would therefore be work for him to perform if reinstated because training is work – submitted his employment was terminated so respondent could avoid training expense – Commission not persuaded Training Clause imposed obligation on respondent to train all employees in all high-risk licences – high risk licences were those required by respondent for operational needs and licence was applicable if respondent needed employee to do work for which licence was required – Commission satisfied no failure by respondent to meet training obligations – respondent became aware of applicant’s misconduct when respondent’s client informed he had approached them on a number of occasions to discover if they would be interested in pursuing opportunities with an alternative provider – alleged applicant requested sensitive information from client and sent text messages containing ‘serious and disparaging’ allegations about respondent – Commission satisfied applicant was trying to establish work for himself with client of respondent – because applicant denigrated respondent to its client, potential loss of any of respondent’s work would have been a serious matter – Commission satisfied respondent was entitled to take serious view of applicant’s conduct and considered approach to client to be serious misconduct – satisfied applicant knew about show cause meeting and it was important, so he could have and should have attended – Commission satisfied applicant’s refusal to attend show cause meeting was a refusal to obey lawful and reasonable direction – satisfied valid reason for summary termination – in relation to Proposed Termination, Commission satisfied applicant was properly consulted and accepted respondent’s evidence regarding non-availability of redeployment – applicant submitted there was some impropriety in offer of placement on casual employment list to employees whose positions had been made redundant – Commission held it was a matter for respondent to decide on what terms placement would be made – satisfied proposed termination of applicant’s employment arose from genuine redundancy which would have been valid reason for termination – satisfied respondent’s reasons for proposed termination on 20 March 2014 were sound, defensible and well-founded – s.387 considerations favoured respondent – dismissal not harsh, unjust or unreasonable – application dismissed. Strauss v Patrick Projects P/L
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