TERMINATION OF EMPLOYMENT – misconduct – ss.387, 390, 394 Fair Work Act 2009 – unfair dismissal application – applicant was a carer in group home – terminated for serious misconduct on basis verbally aggressive and pushed resident – denied alleged conduct – two witnesses of alleged conduct – applicant argued fundamental differences between two witnesses – witness gave several inconsistent statements – other witness unavailable – witness not called to give evidence as respondent unable to contact – Commission made finding on balance of probabilities of allegations – Briginshaw relevant test – little weight to be given to witness statement of absent witness – oral evidence before Commission of applicant and respondent witness – two conflicting accounts before Commission – applicant consistent in his evidence – respondent’s witness not consistent and changed between incident report and evidence before Commission – not a credible witness – on balance of probabilities applicant not verbally aggressive or push resident – not satisfied there was a valid reason for dismissal – applicant did not engage in serious misconduct – dismissal was harsh, unjust, unreasonable. Morag v Department of Health and Human Services
