Bianca Mamo v Life Streaming Pty Ltd - [2024] FWC 780

[2024] FWC 780

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Bianca Mamo
v

Life Streaming Pty Ltd

(U2023/8732)

COMMISSIONER CRAWFORD

SYDNEY, 27 MARCH 2024

Application for relief from unfair dismissal – dismissal not consistent with Small Business Fair Dismissal Code - dismissal unfair – compensation ordered

Background

Andrew MacDonald (Mr MacDonald) set up a business as a sole trader using the business name, Asset Footage, in around 2019. The business provided live streaming services for funerals and other events. Bianca Mamo (Ms Mamo) was employed in this business. Life Streaming Pty Ltd (Life Streaming) was incorporated on 21 September 2021 to carry on the live streaming operations of the Asset Footage business. Mr MacDonald is a director and employee of Life Streaming. Ms Mamo was the Company Secretary and an employee. The Broadcasting, Recorded Entertainment and Cinemas Award 2020 (Award) applied to Ms Mamo’s employment with Life Streaming.

Ms Mamo and Mr MacDonald were also in a close personal relationship for around six and a half years and lived together with their respective families until mid-August 2023.

Ms Mamo was summarily dismissed by Life Streaming on 2 September 2023 for serious misconduct. The alleged serious misconduct involved:

a.Making 12 unauthorised transfers from Life Streaming’s bank accounts for personal reasons from 21 June 2023 to 16 August 2023.

b.Changing the password to Life Streaming’s email account on 17 August 2023 to prevent Mr MacDonald from accessing the account and to prevent Mr MacDonald from operating the business.

On 12 September 2023, Ms Mamo made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she was unfairly dismissed from her employment with Life Streaming.

Life Streaming filed a Form F3 employer response form on 26 September 2023. In the employer response form, Life Streaming raised two jurisdictional objections. Life Streaming argued Ms Mamo had not completed the minimum employment period of 12 months[1] when she was dismissed on 2 September 2023. Life Streaming also argued the dismissal was consistent with the Small Business Fair Dismissal Code (SBFDC).

Life Streaming subsequently accepted Ms Mamo had completed the minimum employment period but pressed its objection concerning compliance with the SBFDC.

There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.

I issued directions for the filing of material and initially listed the application for determinative conference/hearing on 11 December 2023. That listing was vacated so that new directions could be set after Life Streaming withdrew its minimum employment period jurisdictional objection. The determinative conference/hearing was relisted for 28 February 2023 via video.

Ms Mamo represented herself at the determinative conference/hearing on 28 February 2023. I granted permission for Life Streaming to be represented by Cameron Niven from Taylor Rose Lawyers. I was satisfied granting permission would enable the matter to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWC 780
Decision Date: 27 MARCH 2024

CaseChat Overview and Summary

Bianca Mamo applied to the Fair Work Commission for relief from her unfair dismissal by Life Streaming Pty Ltd, a small business. The central dispute revolves around whether Ms Mamo was fairly dismissed for alleged serious misconduct, specifically unauthorized financial transactions and changing the password to the company's email account. Life Streaming argued that Ms Mamo's dismissal was consistent with the Small Business Fair Dismissal Code, but the Commission found that the dismissal did not meet the criteria of the Code, particularly due to the lack of a reasonable investigation into the alleged misconduct. The Commission found that the overlap between personal and professional relationships complicated the assessment of Ms Mamo's conduct, leading to a conclusion that the dismissal was unjust and unreasonable, as there was no valid reason for her dismissal. Consequently, the Commission ordered compensation to Ms Mamo, considering various factors such as her efforts to mitigate loss and the impact of the order on the viability of Life Streaming.

Orders