Termination of employment – misconduct – s.394 Fair Work Act 2009 – unfair dismissal application – applicant employed as hospitality worker dismissed for serious misconduct, namely theft and fraud related to respondent’s cash takings – applicant arrested and police investigation conducted – at hearing respondent submitted that applicant’s conduct in voiding transactions was serious misconduct – for theft and fraud allegations to be a valid reason for dismissal, the Commission must find on balance of probabilities that the alleged conduct occurred – Commission not satisfied applicant guilty of theft or fraud – no direct evidence applicant received any monies taken from business – not satisfied applicant intended to facilitate for anyone else to steal from respondent – in relation to voiding transactions, found not reasonable for applicant to fail to accurately record sales – not satisfied conduct justified because it was done on manager’s instructions – conduct enabled respondent to be deceived – found valid reason for dismissal – dismissal unfair due to failure to provide applicant with opportunity to respond to allegations – satisfied applicant unfairly dismissed – applicant not seeking reinstatement – compensation appropriate – 10% deduction for misconduct – compensation of $936.51 and $88.97 superannuation ordered. Sika v Khaled El-Sheikh P/L atf the El-Sheikh Practice Trust t/a Tristar Medical Group.
