Mauricio Nakasone v Salvation Army - [2017] FWC 2182

[2017] FWC 2182

The attached document replaces the document previously issued with the above code on 25 May 2017.

The document amends a typographical error.

Peter Willink
Associate to Deputy President Sams

25 May 2017

[2017] FWC 2182

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 394—Unfair dismissal

Mauricio Nakasone

Salvation Army

(U2016/14418)

DEPUTY PRESIDENT SAMS

SYDNEY, 25 MAY 2017

Application for relief from unfair dismissal – dismissal for serious misconduct – allegations of aggressive and intimidating behaviour – previous warning – failure to comply with reasonable direction during investigation – code of conduct – conflicts of evidence – reconstruction of events – serious misconduct proven – valid reason for dismissal – no procedural unfairness – dismissal not harsh, unreasonable or unjust – application dismissed.

BACKGROUND

Amongst many of its diverse businesses, pastoral and community services, the Salvation Army operates a conference and recreation centre in Collaroy, New South Wales (the ‘Centre’). Mr Mauricio Nakasone was employed by an external catering company as a Grounds Keeper at the Centre from 13 April 2010. His good service was recognised by the Salvation Army when he became directly employed from 11 August 2011. From 2 March 2015, Mr Nakasone became the Operations Assistant to the Director of Operations, Mr Carlos Lopes. In this role (as the name implied), Mr Nakasone assisted the Director in various tasks and duties associated with the operation and running of the Centre, for which he was paid a salary of $58,041.00 per annum. Mr Nakasone’s terms and conditions of employment were set out in a comprehensive contract of employment. While it was said in his contract that his position was not covered by an award or agreement, and his role was at Job Level 5 of the Salvation Army’s job evaluation system, it is likely the duties and responsibilities of his position could easily be identified in a Modern Award. However, for present purposes, no issue necessarily arises in that respect.

On 11 November 2016, Mr Nakasone was summarily dismissed from his employment following a meeting with Mr Richard Javor, General Manager and Ms Sheridan Messenger, HR Consultant. While the allegations of ‘serious misconduct’ were not expressly set out in Mr Nakasone’s letter of termination, dated the same day, it is apparent from the letter which I set out below, that this reason was the basis for the employer’s decision to dismiss him (notwithstanding he was paid two weeks’ pay in lieu of notice). The termination of employment letter reads as follows:
‘Dear Mauricio,

Following the meeting held with you today, Friday 11 November 2016, this is to confirm that a decision has been made to terminate your employment as Assistant to Operations Manager in The Salvation Army Collaroy Centre effective immediately.

This decision has been made due to the number of complaints and incidents that have occurred during the past 6 months, and for which you have received a written warning.

In May 2016 you were issued with your first warning as a result…

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: [2017] FWC 2182
Decision Date: 25 MAY 2017

CaseChat Overview and Summary

Mauricio Nakasone sought relief from an unfair dismissal, arguing that his termination was unjust due to serious misconduct. The Salvation Army dismissed Nakasone, claiming that he had engaged in aggressive and intimidating behaviour towards staff and volunteers, which contravened their code of conduct. The case was heard and determined in the Fair Work Commission.

The primary legal issues before the Commission were whether the Salvation Army had just cause to dismiss Nakasone and whether the dismissal process was fair and lawful. Specifically, the Commission had to determine if the allegations of misconduct were substantiated, if there was a valid reason for dismissal, and if the dismissal was procedurally fair and not harsh, unreasonable, or unjust.

The Fair Work Commission found that the Salvation Army had proven the allegations of serious misconduct against Nakasone, despite conflicts in the evidence provided. The Commission reconstructed the events based on the preponderance of the evidence and concluded that the misconduct was sufficiently serious to warrant dismissal. Furthermore, the Commission found that the Salvation Army had followed a fair process in investigating and dismissing Nakasone, and that the dismissal was not harsh, unreasonable, or unjust. Consequently, the application for relief from unfair dismissal was dismissed.

Orders