TERMINATION OF EMPLOYMENT – valid reason – misconduct – remedy – ss.387, 392, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed by respondent since November 2011 as Warehouse Supervisor – applicant also operated trucking business which respondent utilised on regular basis until recently – applicant sustained back/hip injury in July 2016 and was absent from work until 25 August 2016 – returned to work with limited hours and restricted duties – resumed fulltime hours in December 2016 remaining on restricted duties – on 27 April 2017 applicant called into meeting and asked whether he had played golf on annual leave on 27 September 2016 – applicant confirmed he did – at meeting following morning applicant given show cause letter stating concerns applicant’s golf playing put himself at risk of aggravating his existing injury and affected his return to work plan – applicant responded on 3 May 2017 declining playing modified golf impacted on physical recovery – employment terminated on 4 May 2017 by email on grounds of serious misconduct on basis he deliberately and wilfully breached his return to work obligations by playing golf – whether valid reason for dismissal – Commission not satisfied valid reason as indication any medical advice or opinion sought about whether playing golf as applicant described would conflict with physical limitations and return to work plan – Commission not satisfied evidence supports respondent’s contentions applicant deliberately concealed fact he played golf and acted dishonestly – Commission held applicant unfairly dismissed and dismissal was harsh and unreasonable – applicant not seeking reinstatement – Commission of the view reinstatement not appropriate remedy in all the circumstances – applicant unable to obtain other employment – paid five weeks’ notice – Sprigg considered – Commission not satisfied that misconduct warranted reduction in amount of compensation ordered – considered applicant’s receipt of additional workers’ compensation payments – applicant to provide Commission further information in relation to workers’ compensation payments since dismissal – quantum to be decided at later date. Moody v C.T. Freight P/L
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