TERMINATION OF EMPLOYMENT – small business fair dismissal code – serious misconduct – ss.394, 604 Fair Work Act 2009 – appeal – full bench – permission to appeal granted – dismissal accompanied by payment in lieu of notice and occurred weeks after misconduct upon which it was based – appellant submitted his dismissal was not a summary dismissal in accordance with the Code – alternatively, submitted respondent did not ‘genuinely hold belief’ that dismissal sufficiently serious to justify dismissal – considered ‘serious misconduct’ in context of the Code – not possible to arrive at interpretation of the ‘summary dismissal’ section of the Code that neatly resolves difficulties and inconsistencies which arise – therefore, full bench to give effect to intention of drafters of the Code so far as it can broadly be discerned – types of serious misconduct identified are not an exhaustive list – considered Pinawin – full bench of view appellant’s dismissal was a summary dismissal within meaning of the Code – full bench considered the respondent’s desire that the appellant attend work on 22 and 23 December to perform work that ‘only he could do’ cannot be reconciled with holding belief that appellant had committed serious misconduct justifying immediate dismissal – Commissioner erred in failing to consider this evidence – code not applied correctly – full bench considered factors in s.387 – full bench found valid reason for dismissal – appellant not notified and had no opportunity to respond – procedures effecting dismissal affected by size of business and lack or HR expertise – also considered appellant’s 3.5 year employment history and otherwise good record – dismissal not harsh, unjust unreasonable – finding would have been different in a larger business where impact of non-attendance would have fewer consequences – appeal upheld – decision quashed – unfair dismissal application dismissed – order issued. Appeal by Ryman against decision of Cambridge C of 12 June 2015 [[2015] FWC 3942] Re: Thrash P/L t/a Wisharts Automotive Services.
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