TERMINATION OF EMPLOYMENT – valid reason – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as a warehouse forklift driver by respondent – applicant’s dismissal arose from three alleged procedural breaches of safety including two incidents of failing to obtain keys from truck driver and provide driver with ‘hit not’ device prior to loading; and one incident of using mobile phone whilst driving – applicant made aware of alleged breaches one month after the event and provided with 24 hours to respond – applicant was denied access to CCTV footage and witness statement – applicant submitted that dismissal was harsh, unjust and unreasonable – submitted that he was not afforded procedural fairness and disputed the three incidents that led to dismissal – applicant believed that he acted in accordance with loading procedures and that he used a UHF radio microphone, which was permitted, and not a mobile phone as claimed – respondent submitted that the allegations against applicant were substantiated and termination was not unreasonable – respondent claimed CCTV footage confirms at least two of the incidents and that witness evidence corroborates the other incident – Selvachandran requires reason for termination to be ‘sound, defensible or well-founded’ – Commission found that evidence presented did not establish that applicant had breached procedures – found witness evidence was not credible and CCTV footage did not corroborate alleged breaches – Commission found that respondent did not have valid reason to dismiss applicant – respondent’s failure to show applicant with CCTV footage impeded his capacity to respond – Commission satisfied that dismissal was harsh, unjust and unreasonable – reinstatement not sought – ordered compensation of $29,164.57 in lieu of 23.25 weeks applicant would have worked if not dismissed, taxed accordingly. Cornish v ISS Integrated Services
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