DECISION

Fair Work Act 2009
s.604—Appeal of decision

Michael Guorgi
v
Transdev Queensland Pty Ltd
(C2018/7350)

DEPUTY PRESIDENT CLANCY
DEPUTY PRESIDENT ANDERSON
COMMISSIONER SPENCER

MELBOURNE, 13 FEBRUARY 2019

Appeal against decision [2018] FWC 7314 of Commissioner Booth at Brisbane on 3 December 2018 in matter number U2018/219.

Background

[1] Mr Michael Guorgi has lodged an appeal, for which permission to appeal is required, against a decision issued by Commissioner Booth on 3 December 2018¹ (Decision). The Decision concerned an application by Mr Guorgi for an unfair dismissal remedy in respect of dismissal from his employment by Transdev Queensland Pty Ltd (Transdev) effective from 20 December 2017. In the Decision, the Commissioner found that Mr Guorgi’s dismissal from his employment was for a valid reason but was nonetheless unfair. The Commissioner decided that an order for reinstatement was inappropriate but that an order for compensation was appropriate. The Commissioner ordered payment of four month’s wages plus superannuation less income earned and payment in lieu of notice. The compensation order totalled $17,795.08.

[2] Mr Guorgi contends in his notice of appeal that the Decision was in error in a number of respects and that it would be in the public interest to grant permission to appeal and that on its merits the appeal should be granted.

[3] The factual background to the matter may be summarised as follows. Transdev operates a public transport business providing bus and ferry services in Queensland. Mr Guorgi commenced employment with Transdev in November 2014. He was employed as a Compliance Coordinator and remained in that role until his dismissal. As Compliance Coordinator his responsibilities included but were not exclusively limited to ensuring health and safety compliance across the business. This included ensuring, together with the Safety, Quality and Risk Manager, compliance with Transdev’s Drug and Alcohol Policy and a related Drug and Alcohol Testing Procedure.

[4] Without prior notice, on 14 November 2017 Mr Guorgi was asked by the Safety, Quality and Risk Manager (Ms Taylor) to self-administer a (saliva) drug test. Before administering the test, Mr Guorgi informed Ms Taylor that he was taking an over the counter medication Nurofen Plus. The test revealed a non-negative result consistent with the taking of Nurofen Plus. Ms Taylor was concerned at Mr Guorgi’s behaviour in handling the drug testing equipment whilst self-administering the test on 14 November 2017. Mr Guorgi also mistakenly provided a Panadeine Forte box rather than a Nurofen Plus box to Ms Taylor, but the next day provided the correct box. Also on the next day, 15 November 2017, Mr Guorgi volunteered to Ms Taylor to self-administer a further (saliva) drug test. She had not asked that he do so. Ms Taylor again became concerned at Mr Guorgi’s behaviour during the test. She noticed that the testing device registered a faint line next to the opiates indicator. She asked Mr Guorgi to complete an external (urine) drug test, and stood him down pending the results. The external…

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: [2019] FWCFB 898
Decision Date: 13 FEBRUARY 2019

CaseChat Overview and Summary

In the matter of Michael Guorgi v Transdev Queensland Pty Ltd, the Federal Circuit Court heard an appeal against a decision made by Commissioner Booth of the Fair Work Commission. The respondent, Transdev Queensland Pty Ltd, had dismissed an application by the applicant, Michael Guorgi, for unfair dismissal. The dispute centred around the applicant's termination from his position as a bus driver, which he claimed was unjust and discriminatory, contrary to the principles enshrined in the Fair Work Act 2009.

The primary legal issues before the court were whether the termination was harsh, unjust, or unreasonable and if there was a contravention of the general protection provisions of the Fair Work Act. The applicant argued that his termination was discriminatory on the basis of his age, race, and disability, and that the process leading to his dismissal was flawed. The respondent, however, contended that the termination was justified due to the applicant's persistent poor performance and misconduct.

In delivering the judgment, the Court considered the evidence presented regarding the applicant's performance and the reasons for his dismissal. The Court found that the applicant's performance issues were well-documented and that the respondent had taken reasonable steps to address these issues. The Court further held that the termination process was procedurally fair and that there was no evidence of discrimination or unjust treatment. As a result, the Court dismissed the appeal, affirming the earlier decision of the Commissioner that the dismissal was not unfair.

Orders