| Summary |
UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant dismissed following investigation into incident in respondent’s car park outside of work hours - Applicant left car parked at car park owned by respondent while went drinking – Car park accessed by swipe card – Applicant claimed gave car keys and swipe card to friend (“X”) who was to be sober driver – Applicant left club had been drinking at before X – Applicant returned to car park and admitted by security guard as did not have swipe card – Applicant then left car park to get drink at nearby service station while waiting for X to return - Applicant claimed on return to car park did not want to bother security guard so put stick through hole in gate to access button used to open gate into car park – Gate opened and applicant entered car park and went to car - Applicant broke car window to gain entry – X returned about 20 minutes later and drove applicant home - Respondent informed of incident and carried out investigation – Applicant represented by union delegate and given opportunity to respond - Applicant dismissed for serious misconduct for giving access and security cards to person not employee of respondent, unauthorised access to respondent’s property, engaging in unsafe behaviour that could result in serious injury on respondent’s property, and being on respondent’s property intoxicated - Applicant on final written warning at time of incident – Warning stated any further instances of misconduct, serious misconduct or poor performance could lead to dismissal - Warning to be in effect for six months - Applicant claimed warning came into effect on date of incident related to not date issued – Claimed therefore warning expired at time of car park incident – Applicant’s argument rejected - Found if warning became valid at time of incident occurring would make investigation process and opportunity for employee to respond perfunctory – Found decision of employer would be retrospective and hence open to allegation of bias – Found also 90 day requirement for raising disadvantage grievance in regard to warning began with effective date of warning, or when employee became aware of it, not date of incident that created warning – Authority found six month period commenced from effective date of warning, therefore, incident occurred within warning period - Authority found even if wrong employer could take expired warning into account when deciding whether to dismiss and Authority could take it into account when deciding whether employer acted reasonably - Found even if warning expired reasonable for respondent to take it into account - Found respondent entitled to treat applicant’s actions as serious misconduct – Found respondent took account of possible mitigating factors – Found respondent’s actions those of fair and reasonable employer - Dismissal justified – Operations Clerk |