TERMINATION OF EMPLOYMENT – misconduct – ss.387, .400, 604 Fair Work Act – appeal – Full Bench – Commission found at first instance while vaild reason to dismiss, dismissal harsh and unjust – $42,846.90 compensation ordered – employer appeal related to finding dismissal harsh and unjust and quantum of compensation – employee applicant appeal concerned remedy – employer submitted Commissioner erred in making findings of fact which did not reflect evidence, or incorrectly understood evidence – Commission noted public interest test under s.400 FW Act ‘a stringent one’ (Allied Mining Services) – decision of discretionary nature usually can only be successfully challenged on appeal if shown discretion not exercised correctly – Full Bench considered in public interest to grant permission to appeal due to importance of appeals’ subject matter and strength of grounds advanced – regarding finding dismissal ahrsh and unjust, Full Bench held in finding that no opportunity to respond was provided, Commissioner did not properly consider opportunities given to applicant during investigation process – reached conclusion inconsistent with evidence – approach inconsistent with authorities – Full Bench held no basis for finding – finding a significant error of fact – consequences of erroneous finding was that a factor which tended towards overall finding of fairness was considered a factor indicating unfairness, to the point combined with other considerations, of outweighing the finding of a valid reason for dismissal – Full Bench considered error meant that discretion vested in Commissioner miscarried and that appeal must be allowed and fairness of dismissal reconsidered – not necessary to determine other appeal grounds – permission to appeal granted – appeal allowed – decisions and order of Commissioner quashed – Full Bench to determine application based on evidence adduced before Commissioner – matter to be relisted. Appeal by BHP Coal P/L t/a BMA against decisions and order of Booth C of 7 May 2015, 18 August 2015 and 19 August 2015 [[2015] FWC 2724 and [2015] FWC 5699] and appeal by Schmidt against decisions and order of Booth C of 7 May 2015, 18 August 2015 and 19 August 2015 [[2015] FWC 2724 and [2015] FWC 5699] re:Schmidt
…
