Mr John Lanzafame v Artisan People Pty Ltd - [2023] FWC 362

[2023] FWC 362

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr John Lanzafame
v

Artisan People Pty Ltd

(U2022/5713)

DEPUTY PRESIDENT CROSS

SYDNEY, 1 MARCH 2023

Application for an unfair dismissal remedy

Mr John Lanzafame (the Applicant/Mr Lanzafame) made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work 2009 (Cth) (the Act) for an unfair dismissal remedy (the Application) in relation to his dismissal from employment with Artisan People Pty Ltd trading as Visco Foods (the Respondent/Visco). The Application was lodged with the Commission on 25 May 2022.

I conducted a Directions Hearing in this matter on 5 September 2022. At the Directions Hearing, directions were issued for the filing of materials by the parties (the Directions). The Applicant sought to rely on the following documents in the matter:

The Form F2 – Unfair Dismissal Application together with Annexures dated 25 May 2022;
The Applicant’s Outline of Submissions dated 4 October 2022;
The Statement of John Lanzafame together with Annexures, dated 4 October 2022; and
The Statement in Reply of John Lanzafame dated 8 November 2022.

The Respondent sought to rely on the following documents in the matter:

The Statement of Marco Canegallo dated 1 November 2022;
A statement in the form of comments made by Paul Baldini in relation to the Witness Statement of Applicant dated 31 October 2022;
The Statement of Filippo Vincenzi dated 31 October 2022;
A statement in the form of an email from Ms Taumalolo to Mr Baldini dated 6 June 2022;
The Statement of Eliza Hetherington dated 5 June 2022;
A statement in the form of an email from Connie Giannaros, Mr Canegallo and Mr Baldini dated 20 June 2022; and
A Statement of Angela Hird dated 5 October 2022.

At the hearing on 30 November 2022, the Applicant was represented with permission by Sasphire Legal, and the Respondent was represented by Mr Canegallo of the Respondent. The Applicant, Mr Canegallo, Mr Baldini, Ms Taumalolo, Mr Vincenzi and Ms Giannaros were the only witnesses required for cross examination.

Background Facts

The Applicant commenced full time employment with the Respondent in or around March 2019 in the position of Brand Ambassador on a salary of $104,000.00 per annum. It is apparent that the Applicant’s role also involved duties of a Sales Representative, and he secured and processed orders from customers of the Respondent. Previously, the Applicant worked as a Chef, and Restauranter. The Applicant was employed pursuant to a contract (the Contract) that listed one of his responsibilities and duties as:

“Use your best endeavours to promote the interests of the Company and devote the whole or your attention, time and ability, to the performance of your duties during normal working hours and at such other times as may be reasonably necessary”

The Contract also contained a Termination clause that included the following:

(c) The Company may terminate your employment without prior notice, and without making any further payment…

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: [2023] FWC 362
Decision Date: 1 MARCH 2023

CaseChat Overview and Summary

Mr John Lanzafame made an application to the Fair Work Commission for an unfair dismissal remedy in relation to his dismissal from employment with Artisan People Pty Ltd. The Applicant was dismissed on 17 May 2022. The Applicant sought to rely on documents including the Form F2 – Unfair Dismissal Application together with Annexures dated 25 May 2022; the Applicant’s Outline of Submissions dated 4 October 2022; the Statement of John Lanzafame together with Annexures, dated 4 October 2022; and the Statement in Reply of John Lanzafame dated 8 November 2022. The Respondent sought to rely on documents including the Statement of Marco Canegallo dated 1 November 2022; a statement in the form of comments made by Paul Baldini in relation to the Witness Statement of Applicant dated 31 October 2022; the Statement of Filippo Vincenzi dated 31 October 2022; a statement in the form of an email from Ms Taumalolo to Mr Baldini dated 6 June 2022; the Statement of Eliza Hetherington dated 5 June 2022; a statement in the form of an email from Connie Giannaros, Mr Canegallo and Mr Baldini dated 20 June 2022; and a Statement of Angela Hird dated 5 October 2022. The Court considered whether the dismissal was harsh, unjust or unreasonable. The Court found that the dismissal of the Applicant was harsh, unjust or unreasonable due to failures in procedural fairness. The Court ordered that compensation be paid to the Applicant.

Orders