Matter reviewed:  FWCFB 6191
Lawler VP, Hamberger SDP, Cribb C
TERMINATION OF EMPLOYMENT – valid reason – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – cross appeal – majority – accessing, sending or receiving and storing pornography – not a separate species of misconduct to which special rules apply – form of misconduct to which general principles relating to unfair dismissals must be applied – leave to appeal granted – public interest – relationship between valid reason and harsh, unjust, unreasonable – meaning of valid reason – Selvachandran v Peteron Plastics P/L – valid reason is a reason that is sound, defensible or well-founded – facts in Queensland Rail distinguished – majority found that the issue in original unfair dismissal before the Commissioner whether dismissal was disproportionate disciplinary sanction – Commissioner focused erroneously on valid reason – rehearing – majority held dismissals were harsh – decision and order quashed remedy remitted to Vice President for determination – dissenting decision – adopted principles from GlaxoSmithKline Australia P/L v Makin – permission to appeal declined in relation to both appeals – no public interest.
Application [VID1082/2013] under section 562 of the FW Act and section 39B of the Judiciary Act filed 10 October 2013. Listed for interlocutory hearing on 21 October 2013
A Full Court of Besanko, Jessup and Bromberg JJ handed down their judgment on 23 July 2014. The Full Court held that the Full Bench of the Commission did not err in granting permission to appeal to the first and second respondents and dismissed their application. With respect to the third respondnet, the Full Bench failed to consider whether it was in the public interest to grant permission to appeal. The appeal insofar as it related to the third respondent was allowed and the orders of the Full Bench were quashed.