TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – on 23 March 2016 the Full Bench issued a decision granting the appellant permission to appeal on the grounds of appeal regarding the assessment of compensation awarded in his favour [[2016] FWCFB 1795] – appellant dismissed after misuse of company fuel card – at first instance the Commission found the respondent denied appellant procedural fairness – held dismissal unfair – appellant awarded compensation of four weeks’ pay plus superannuation – appellant appealed the assessment of compensation – whether compensation assessment addressed criteria under s.392 of FW Act – calculating compensation requires orthodox approach [Bowden] – Full Bench found Commission miscarried discretion by failure to consider factors in s.392 – appeal allowed on that ground – first instance compensation order quashed – Full Bench re-exercised discretion by reference to each of the factors in s.392 – relied on evidence before Commission at first instance – determination of the period of time the appellant would have remained employed by the respondent, or would have likely remained employed with the respondent, had he not been dismissed – while the task of determining an anticipated period of employment can be difficult, it must be done [McCulloch v Calvary Health Care Adelaide] – Full Bench found applicant’s employment would have continued for a further three weeks – considered the remuneration earned and income reasonably likely to be earned – found appellant took steps to mitigate the loss of his employment – held the conduct which founded the valid reason for termination could be characterised as misconduct – any amount of compensation to be paid should be reduced by 50% by reason of that misconduct – Full Bench decided to award no compensation. Appeal by Smith against decision of Riordan C of 21 October 2015 [[2015] FWC 6900] Re: Buick Holdings P/L t/a DVG Automotive Group – Midland City
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