TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – in first instance the decision found the summary dismissal was unjust but determined to order no compensation – if dismissal included notice then the dismissal would not have been found to be harsh, unjust or unreasonable – grounds of appeal based on Commission’s misuse of the Briginshaw principle; WhatsApp transcript was hearsay evidence and highly prejudicial; witnesses used not reliable as they themselves had engaged in a criminal enterprise; WhatsApp transcript was not corroborated by any other reliable evidence that could substantiate a finding to the Briginshaw standard; Commission misapplied the principles of Sprigg and erred in reducing the compensation payable to zero – appellant submitted the matter is in the public interest due to correct application of Briginshaw principle; misuse of hearsay evidence and denial of natural justice; the Commission made a finding of serious misconduct on inherently unreliable and hearsay evidence – considered whether in public interest to allow appeal test is ‘a discretionary one involving a broad value judgment’ [Coal & Allied] – whether decision at first instance involved a ‘significant error of fact’, the test being ‘a stringent one’ [Coal & Allied] – whether it is in the public interest is a discretionary test [GlaxoSmithKline] – not up to the Full Bench to decide if they would have determined the matter different but whether there was an error in exercising the discretion [House v The King] – Commission is not bound by the rules of evidence but it does not mean the rules are irrelevant [Hail Creek v CFMEU] – Full Bench determined WhatsApp transcript is not hearsay evidence – further, s.64(3) of the Evidence Act 1995 provides an exception to the hearsay rule where the maker is available to give evidence – nothing in the Commission’s decision inconsistent with the Briginshaw principle – Full Bench not satisfied appellant was denied procedural fairness – not satisfied Commission erred in decision not to order compensation – not satisfied in public interest to grant permission to appeal – permission to appeal refused. Appeal by Wong against decision of Cambridge C of 10 November 2016 [[2016] FWC 7982] Re: Taitung Australia P/L
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