Lyndon Thomas v The Commissioner for Public Employment - [2022] FWC 2427

[2022] FWC 2427

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Lyndon Thomas
v

The Commissioner for Public Employment

(U2022/4514)

COMMISSIONER RIORDAN

SYDNEY, 3 NOVEMBER 2022

Application for an unfair dismissal remedy

On 19 April 2022, Mr Lyndon Thomas (the Applicant) filed an application with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the FW Act). The Applicant was dismissed by the Commissioner for Public Employment (the Respondent) by way of letter dated 29 March 2022, delivered to the Applicant on 1 April 2022, on the basis that he had committed breaches of discipline under the Public Sector Employment and Management Act 1993 (PSEM Act) and had breached the Respondent’s Code of Conduct.

The Applicant was employed by the Respondent from 6 August 2012 until his dismissal on 1 April 2022. At the time of his dismissal, the Applicant was employed by the Department as Manager Victoria River Research Station (VRRS), Technical Officer 4 (T4). VRRS is also known as ‘Kidman Springs’.

While the Applicant initially sought compensation, at the Hearing, the Applicant provided that he seeks reinstatement to his former role with the Respondent at VRRS.

Background

The evidence and submissions in this matter were excessively long. I have only included materials which I believe to be relevant, which provide assistance for those who may follow or read the decision, to understand the complexity and history of the issues.

The Applicant wrote to the Office of the Commissioner for Public Employment on or around 2 September 2019, raising a grievance as follows:

“Dear Sir,

I would like to lodge a Grievance in relation to recent events in relation to my role as Manager of Kidman Springs Station, Agriculture Division, Department of Primary Industry and Resources and the actions of my Line Manager, Mr Pieter Conradie.
My grievance relates to both bullying and intimidation threats to cancel my recreation leave by Mr Pieter Conradie, Director Research Farms and my ability to manage Kidman Springs.
These actions resulted from emails in relation between Pieter Conradie and me. I received an emailed dated 24 July from my Supervisor, Mr Jack Wheeler stating that until I had fulfilled the actions outlined in an earlier email dated 17 July Pieter Conradie had directed Mr Wheeler not to approve my leave. I had originally applied for recreation leave for 3 July to 18 July 2019. I had also given email indication of my leave in April of this year and applied for my leave on the HR system 5 weeks prior to my leave commencing. I was instructed to apply for TOIL leave. Pieter Conradie also stated that the submission of my TOIL forms were incomplete. I had consistently explained to him, due to being short staffed (since August 2018), I had not had time to complete the Toil forms in the format that he expected. (Please note that…

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.

Continue reading Lyndon Thomas v The Commissioner for Public Employment

Details

AGLC: Lyndon Thomas v The Commissioner for Public Employment [2022] FWC 2427
Case: [2022] FWC 2427
Decision Date: 3 NOVEMBER 2022

CaseChat Overview and Summary

Lyndon Thomas filed an application with the Fair Work Commission seeking a remedy for an alleged unfair dismissal. The Respondent, the Commissioner for Public Employment, dismissed Mr Thomas on 1 April 2022 on the basis that he had committed breaches of discipline under the Public Sector Employment and Management Act 1993 (PSEM Act) and had breached the Respondent’s Code of Conduct. Mr Thomas was employed by the Respondent from 6 August 2012 until his dismissal on 1 April 2022. At the time of his dismissal, Mr Thomas was employed by the Department as Manager Victoria River Research Station (VRRS), Technical Officer 4 (T4). While Mr Thomas initially sought compensation, at the Hearing, he provided that he seeks reinstatement to his former role with the Respondent at VRRS. The Fair Work Commission considered whether the dismissal was harsh, unjust, or unreasonable. In relation to this, the Commission considered the validity of the reason for dismissal, whether Mr Thomas was notified of the reason, whether he was given an opportunity to respond, whether there was a refusal of a support person, whether the dismissal was for unsatisfactory performance, whether the size of the enterprise and HR staff were relevant, and any other matters. The Commission found that the dismissal was not harsh, unjust, or unreasonable. It was satisfied that the Respondent had a valid reason to dismiss Mr Thomas on the basis of his altercation with Mr Maxwell and his text message to Mr Luck. The Commission found that the altercation with Mr Maxwell was inappropriate and that the text message to Mr Luck was offensive and homophobic. The application for an unfair dismissal remedy was dismissed.

Orders