Matthew Morrissy v Transport Accident Commission - [2022] FWC 1061

[2022] FWC 1061

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Matthew Morrissy
v

Transport Accident Commission

(U2021/5036)

COMMISSIONER MIRABELLA

MELBOURNE, 9 MAY 2022

Application for an unfair dismissal remedy.

By his application lodged on 9 June 2021, Mr Matthew Morrissy applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. Mr Morrissy was employed by Transport Accident Commission (the TAC) from 23 July 2007 until his dismissal on 8 June 2021. The TAC is a Victorian government-owned organisation that funds the treatment of people injured in transport accidents and promotes road safety.

Mr Morrissy contends that his dismissal was harsh, unjust or unreasonable. He primarily seeks an order for reinstatement. The TAC contends that Mr Morrissy’s dismissal was not unfair. It says there was a valid reason to dismiss Mr Morrissy and relies on a number of matters which relate to serious misconduct as justifying the dismissal.

The matter was subject to an unsuccessful conciliation on 5 July 2021, and consequently was listed for hearing before me on 4 October and 5 October 2021. At the hearing, Mr Morrissy was represented by Ms T. Duthie of Counsel and the TAC was represented by Mr J. Zeeman of Counsel.

Mr Morrissy filed written submissions and materials in the Fair Work Commission (the Commission) on 30 July 2021. The TAC filed written submissions and materials in the Commission on 10 August 2021. Reply submissions and materials were filed by Mr Morrissy on 16 August 2021.

Mr Morrissy gave evidence on his own behalf. He also adduced evidence from a former colleague, Mr Rimon Abohadiar, former Team Manager of the Interstate Common Law team (ICL team), who was ordered to attend the Commission and give evidence in the matter. The TAC adduced evidence from the following employees:

· Ms Katherine Ryan, People and Culture Business Partner;

· Mr Damian Poel, Head of Complex Recovery and Serious Injury;

· Ms AB, Associate Solicitor in the ICL team; and

· Ms Sarah Elias, People and Culture Business Partner

Initial matters to be considered

Section 396 of the Act requires that certain matters must be determined by the Commission in relation to any unfair dismissal remedy application before the merits of the application may be considered. In respect of the matters identified in subsections (a), (b), (c) and (d) of s.396, it was not in dispute, and I find, that:

1. The application was made within the 21-day period allowed in s.394(2)(a);

2. Mr Morrissy was a person “protected from unfair dismissal” within the meaning of that expression in s.382 at the time of his dismissal by the TAC; and

3. The TAC is not a “small business employer” and the Small Business Fair Dismissal Code is not relevant; and

4. The dismissal was not a genuine redundancy.

Background

Mr Morrissy was employed by the TAC in its offices in Geelong for 14 years up until his termination. There was no evidence that prior to his conduct…

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: [2022] FWC 1061
Decision Date: 9 MAY 2022

CaseChat Overview and Summary

Matthew Morrissy has applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009. Mr Morrissy was employed by the Transport Accident Commission (TAC) from 2007 until his dismissal in June 2021. Mr Morrissy contends that his dismissal was harsh, unjust or unreasonable and primarily seeks an order for reinstatement. The TAC contends that Mr Morrissy’s dismissal was not unfair and that there was a valid reason for the dismissal. The TAC also contends that Mr Morrissy was notified of the reason for his dismissal and given an opportunity to respond to the reason for his dismissal. The TAC further contends that there are no other relevant matters that would weigh in favour of a finding that the dismissal was unfair. The Commission found that Mr Morrissy’s dismissal was unfair because there was no valid reason for the dismissal, he was not notified of the reason for the dismissal and not given an opportunity to respond to the reason for the dismissal, and the dismissal was disproportionate punishment. The Commission ordered that Mr Morrissy be reinstated to his previous position.

Orders