DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Mr Mark Andrawos
v
MyBudget Pty Ltd
(U2018/2379)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 31 JULY 2018

Application for an unfair dismissal remedy – dismissal on notice for serious misconduct and poor disciplinary record – pre-existing personal friendship with new client – failure to disclose and manage conflict of interest - breaches found – dismissal for valid reason – significant factors in mitigation – material failures in disciplinary process – fair go all round not provided – dismissal harsh despite valid reason and poor disciplinary record – reinstatement inappropriate – payment made in lieu of notice - compensation discounted – no compensation payable

[1] On 7 March 2018 Mr Mark Andrawos (Applicant) applied to the Fair Work Commission (Commission) under section 394 of the Fair Work Act 2009 (FW Act) for an unfair dismissal remedy. He claims that dismissal by his former employer MyBudget Pty Ltd (MyBudget, the Respondent or the employer) on 14 February 2018 from his position as a Personal Budget Specialist was harsh, unjust or unreasonable. He says that the relationship with his former employer has broken down such that reinstatement is inappropriate. He seeks an order for compensation.

[2] MyBudget oppose the application. The employer says that Mr Andrawos was dismissed on conduct grounds which included serious misconduct. It says that he was paid two weeks in lieu of notice; that it has provided an Employment Separation Certificate and that it had no further obligations on termination. MyBudget goes further. It says that the application to the Commission is groundless and has no reasonable prospects of success. It foreshadows that it intends to make an application for costs against the Applicant.

[3] The application was subject to conciliation by a Commission-appointed conciliator on 5 April 2018. It did not resolve.

[4] I conducted directions hearings on the application on 26 April 2018, 15 June 2018, 22 June 2018 and 2 July 2018.

[5] I issued directions for the filing of written materials on 26 April 2018, with which the parties complied, albeit at the hearing further documents and audio recordings were produced.

[6] At the directions hearing on 2 July 2018 I explored with the parties whether any further Commission assisted conciliation (by a different member of the Commission) could help resolve the matter. Mr Andrawos indicated a willingness to explore that option. The employer, having prepared itself for hearing, declined. At the commencement of the hearing on 5 July 2018 I again raised the prospect, even at that late stage, of Commission assisted conciliation. Mr Andrawos indicated a willingness to do so. The employer again declined.

[7] On the afternoon of the second day of hearing (6 July 2018) I again raised the prospect of a conciliated resolution. The employer agreed to an adjournment to enable Mr Andrawos to speak to Commissioner Platt, who had made himself available to conciliate the matter. During the adjournment, the employer also…

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: [2018] FWC 4288
Decision Date: 31 JULY 2018

CaseChat Overview and Summary

In this matter, Mr Mark Andrawos brought an application for an unfair dismissal remedy against MyBudget Pty Ltd, the employer, in the Fair Work Commission. The dispute arose from Mr Andrawos' dismissal on notice, which was predicated on serious misconduct and a poor disciplinary record. The alleged misconduct involved a pre-existing personal friendship with a new client, which Mr Andrawos failed to disclose, and a subsequent failure to manage a conflict of interest. The employer found these actions to be breaches of company policy and dismissed Mr Andrawos.

The primary legal issues before the court were whether the dismissal was for a valid reason, whether the disciplinary process was procedurally fair, and if the dismissal was harsh, unjust, or unreasonable in all the circumstances. The court had to consider the employer's case for dismissal, the evidence presented on the disciplinary process, and the mitigating factors presented by Mr Andrawos. The court determined that while the dismissal was for a valid reason, there were significant failings in the disciplinary process, and the overall process did not provide a fair go for all parties involved.

After thorough consideration, the court concluded that despite the valid reason for dismissal, the manner in which the disciplinary process was handled was flawed, and the overall fairness of the dismissal was compromised. The court found that Mr Andrawos' dismissal was harsh given the significant mitigating factors, but ultimately deemed reinstatement inappropriate. Instead, the court ordered a payment in lieu of notice. Given the discount applied for the uncompleted notice period, no compensation was payable to Mr Andrawos.

Orders