Lawrence Mario v ESS Compass Group Australia - [2022] FWC 1937

[2022] FWC 1937

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Lawrence Mario
v

ESS Compass Group Australia

(U2021/4645)

DEPUTY PRESIDENT LAKE

BRISBANE, 22 JULY 2022

Application for Unfair Dismissal Remedy – where the Applicant was not unfairly dismissed.

On 28 May 2021, Mr Lawrence Mario (Applicant) 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 he had been unfairly dismissed from his employment with ESS Compass Group Australia (Respondent). The Applicant seeks compensation for lost wages, humiliation, and damages to his health.

The matter was originally set for conciliation on 18 June 2021 before a staff conciliator. The conciliation could not take place as a result of the Applicant’s health. The matter was then allocated to Commissioner Bissett who issued directions for the filing of material and the matter was listed for mention. The Commissioner dealt with an issue relating to the fact that the Respondent had raised a Jurisdictional Objection on the basis that the application had been filed prematurely. On 15 June 2021, the Commissioner ordered that the application be amended to have been made on 25 June 2021.[1]

On 22 June 2021, the matter was then allocated to me and directions were issued for the filing of material.

It is noted at the outset that there has been a significant amount of time elapsed between the matter having been raised and having been heard as a result of the Applicant’s illness. The matter was ultimately listed for hearing on 29 June 2022. In the days leading to the hearing the Applicant sent several emails to Chambers outlining his position and supplying ‘evidence’. The Applicant regularly raised that he felt the matter was taking too long and should be decided upon based on the material he had provided.

Applicant’s Submissions

The Applicant provided a significant quantity of material that he submitted supported his position that the dismissal was unfair. The material was supplied in several disconnected emails and would occasionally exclude the Respondent. On the day of the hearing, the Applicant provided additional material in the form of a witness statement and a recorded phone call. The Respondent highlighted at the hearing that this provision of late material put them at a disadvantage to attempt to answer the Applicant’s case.

The Applicant’s case in short was that the Respondent terminated his employment without fair process during a difficult period in his personal life. The Applicant submitted that the reason given by the Respondent (namely emails sent from his account) had not been fully investigated. He submitted that the offensive emails sent from his account were sent by his partner without his direct input or knowledge. The Applicant submitted that the Respondent did not follow a fair process and did not carry out an investigation into the reasons provided for the termination of his employment.

The Applicant also made reference to the alleged treatment he received from the Respondent and…

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.

Keep reading for free

Create a free CaseChat account to read Lawrence Mario v ESS Compass Group Australia and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] FWC 1937
Decision Date: 22 JULY 2022

CaseChat Overview and Summary

Lawrence Mario lodged an unfair dismissal claim against ESS Compass Group Australia, asserting that he was dismissed without fair process during a difficult period in his personal life. The Applicant sought compensation for lost wages, humiliation, and damages to his health. The central issue before the Fair Work Commission was whether the dismissal was unfair, considering the criteria under section 387 of the Fair Work Act 2009.

The Applicant's primary contention was that his partner, Ms Natasha Samuel, sent offensive emails from his account without his knowledge. However, the Commission found that the Applicant either sent the emails himself or played a significant role in drafting them. The Respondent had issued multiple warnings about the inappropriate conduct and invited the Applicant to respond to the allegations, which he declined to do. The Commission concluded that the dismissal was for a valid reason, related to the Applicant’s conduct, and that he had been given opportunities to respond. Additionally, the Commission found that the Respondent followed procedural fairness, providing support for the Applicant to bring a support person and issuing multiple warnings before the dismissal. The Commission concluded that the dismissal was not harsh, unjust, or unreasonable, and dismissed the Applicant's claim.

The Commission dismissed the Application, finding that the dismissal was fair and justified based on the Applicant’s conduct and the Respondent’s adherence to procedural fairness.

Orders