TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – ss.388, 394 Fair Work Act 2009 – application for an unfair dismissal remedy – respondent submitted applicant had been stood down and not dismissed – Commission considered conduct of respondent and found that respondent dismissed applicant by removing applicant form work site and not providing applicant with further work – satisfied respondent is small business and Small Business Fair Dismissal Code (Code) applies – Commission considered Yaraka Holdings as to whether applicant was regular and systematic – Commission considered MacMahon Mining Services and determined on balance employment arrangement beyond that of casual employment – found applicant dismissed after making request to have time off for scheduled day surgery in context where applicant had many absences within preceding 12 month period – not satisfied that dismissal was consistent with Code – found request to take time off for surgery in context of applicant’s absences not a valid reason for dismissal – found dismissal was unreasonable and harsh – parties provided with seven days from date of decision to file written submissions regarding remedies. Wingate v Causeway Holdings P/L t/a Western Forklift Services
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