TERMINATION OF EMPLOYMENT – misconduct – valid reason – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant commenced employment as machine operator on 2 July 2014 – summarily dismissed on 13 December 2016 following allegations of theft – on 9 December 2016, managing director of respondent company, Mr Tang, was advised by applicant’s estranged former wife, Ms Chen, that applicant stole manufactured products from time to time – Mr Tang asked respondent’s production manager, Mr Ping, to contact applicant on 12 December 2016 to invite applicant to respond to allegations and to terminate employment – respondent contended it had sufficient evidence to dismiss applicant as the pills alleged to have been stolen were ‘unfinished and would not have been able to be obtained in the general market’ – Ms Chen gave evidence that she reported applicant’s alleged misconduct to respondent because she was ‘law abiding citizen’ – further explained she waited nine months to turn him in because she had hoped to reconcile relationship – applicant gave evidence that conversation with Mr Ping on 12 December 2016 was to effect that respondent received ‘tip off’ of misconduct and that he was to be dismissed – did not know who informed respondent of theft nor what he was accused of stealing until 17 March 2017, after reading respondent’s F3 – further gave evidence that he and his former wife had small business buying vitamin supplements and selling them to friends in China – documents were subsequently submitted to Commission to support this contention – Commission considered whether there was valid reason to dismiss applicant – Edwards v Giudice considered: ‘When the reason for a termination is based on the misconduct of the employee, the Commission must, if it is an issue in proceedings challenging the termination, determine whether the conduct occurred’ – King v Freshmore considered: ‘The Commission’s obligation is to determine, for itself and on the basis of the evidence in the proceedings before it, whether the alleged misconduct took place and what it involved’ – Commission held that Ms Chen’s evidence was implausible and tainted with mala fide intent and therefore, unreliable – that respondent failed onus of proving applicant’s misconduct given Ms Chen’s mala fide intent and its ‘gigantic leap to unlikely conclusions’ – that applicant was witness of truth whose evidence that he had never stolen from respondent was to be believed – Commission satisfied there was no valid reason for applicant’s dismissal – there was gross denial of natural justice towards applicant as he was not advised of circumstances of alleged misconduct nor given opportunity to respond – respondent did not provide any evidence of effect of any order of compensation on its viability – application granted – reinstatement not appropriate – Commission ordered compensation of $14,592.00 gross plus 9.5% superannuation less applicable taxation. Ji v Ferngrove Pharmaceuticals P/L
