Matthew Rosenthal v MSA Pty Limited - [2025] FWC 1032

[2025] FWC 1032

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Matthew Rosenthal

MSA Pty Limited

(U2024/10634)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 11 APRIL 2025

Application for an unfair dismissal remedy – jurisdictional objection – whether applicant dismissed – applicant found to be dismissed – dismissal found to be unfair – compensation to be awarded

Introduction and outcome

On 10 September 2024, Mr Matthew Rosenthal lodged an application with the Fair Work Commission (the 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 Toonthaw Pty Ltd trading as Maag & Stucki Automotive (MSA).

MSA is a mechanical workshop predominantly servicing luxury vehicles such as BMWs and Mercedes-Benz. Mr Rosenthal commenced employment with MSA in June 2016 as a full-time mechanic. He alleged that his employment was terminated on 9 September 2024, following a workplace dispute concerning allegations of soliciting clients and misuse of company resources.[1]

MSA disputed the claim, asserting that Mr Rosenthal was not dismissed but instead abandoned his employment after being confronted about serious misconduct.[2] MSA further submitted that the allegations against Mr Rosenthal constituted valid reasons for termination, had it occurred.[3]

I have found that Mr Rosenthal was dismissed by MSA and that there was no valid reason for the dismissal. On the basis of this and other findings, I have determined that Mr Rosenthal’s dismissal was harsh, unjust and unreasonable and that an order for compensation is appropriate.

The hearing

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

After taking into account the views of Mr Rosenthal and MSA, and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing pursuant to s.399 of the FW Act.

At the hearing, Mr Rosenthal represented himself. MSA was represented by Mr Andrew Wilson of Counsel. I granted permission to MSA to be legally represented pursuant to s.596(2) of the FW Act, as I was satisfied that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

Mr Rosenthal gave evidence on his own behalf and was cross-examined by Mr Wilson. The following witnesses also gave evidence on behalf of Mr Rosenthal:

a. Mr Jason Bywater, cousin of Mr Rosenthal who was cross-examined by Mr Wilson; and
b. Mr Gary Speechley, client of Mr Rosenthal.

Mr Speechley’s witness statement was admitted without objection, and he was not required for cross-examination.

The following witnesses gave evidence on behalf of MSA:

a.   Mr Adan Cummings, Sole Director and Shareholder of MSA;
b.   Mrs Anastasia Cummings, wife of Mr Cummings and employee of MSA;
c.   Mr Raiyan Sarar, ‘helping hand’ at MSA; and
d.   Mr Dhruba Das, Bookkeeper at MSA.

Mr Rosenthal filed submissions in the Commission on 23…

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 Matthew Rosenthal v MSA Pty Limited

Details

AGLC: Matthew Rosenthal v MSA Pty Limited [2025] FWC 1032
Case: [2025] FWC 1032
Decision Date: 11 APRIL 2025

CaseChat Overview and Summary

Matthew Rosenthal applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy, alleging that he had been unfairly dismissed by MSA Pty Limited (MSA) on 9 September 2024. MSA submitted that Mr Rosenthal was not dismissed but instead abandoned his employment. The Court was required to determine whether Mr Rosenthal was dismissed, whether there was a valid reason for the dismissal, and whether the dismissal was harsh, unjust or unreasonable. The Court found that Mr Rosenthal was dismissed by MSA and that there was no valid reason for the dismissal. The Court found that the dismissal was harsh, unjust and unreasonable and that an order for compensation was appropriate. The Court ordered compensation to be paid to Mr Rosenthal.

Orders