Log in or become a subscriber

An order to reinstate an employee is set to be reconsidered, after his employer successfully argued that important evidence supporting its serious misconduct allegations wasn't just "hearsay".

In his initial decision, Fair Work Commissioner Adam Walkaden said the employee's alleged behaviour, if true, constituted "instances of repugnant and deplorable racism".

In these circumstances, and having found the Commissioner misunderstood direct evidence as merely hearsay, the appeal bench accepted he might have reached a different conclusion about the appropriateness of reinstatement, and remitted the matter to him.

In unfair dismissal proceedings last year, Commissioner Walkaden found Cowra Meat had a valid reason to sack the abattoir worker, who had failed to give notice of his ongoing absence after taking annual leave.

However, he found the employer's other misconduct allegations – including that the employee made racist comments, engaged in bullying, and refused to follow directions – weren't made out because the only evidence of these things was "hearsay"...