Mr Michael Guorgi v Transdev Queensland Pty Ltd - [2018] FWC 7314

[2018] FWC 7314

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Michael Guorgi

Transdev Queensland Pty Ltd

(U2018/219)

COMMISSIONER BOOTH

BRISBANE, 3 DECEMBER 2018

Termination of employment - arbitration.

BACKGROUND

Mr Michael Guorgi worked as a Compliance Coordinator for Transdev Queensland Pty Ltd (Transdev). He had been employed at the time of termination for approximately four years.

Transdev’s website describes its Brisbane’s operation as follows “In Brisbane we operate the busy Brisbane ferries and numerous bus contracts including important school services.”

It is Transdev’s case that Mr Guorgi was terminated following a breach of the Transdev Queensland drug and alcohol policy (the D & A Policy).

Transdev alleges Mr Guorgi failed to notify Transdev that he was taking Nurofen Plus,[1] failed to report the use by not providing a medication declaration form to his Manager and failed to comply with the Drug and Alcohol Testing Procedure in relation to a saliva test. Additionally, Transdev considered that Mr Guorgi failed to appreciate the seriousness of these allegations or to acknowledge any error was of particular concern given his role of Compliance Coordinator.

Mr Guorgi’s case is that he did not breach the D & A Policy and that as a result his dismissal was unfair. Mr Guorgi says he was dismissed from his employment for an allegation of serious misconduct for not filling in a form to advise he was taking Nurofen Plus for his pain. He considered that working in an office with deskbound duties introduced no risk in the taking of the Nurofen Plus.

Mr Guorgi considered that it was unnecessary to provide a medication declaration form in these circumstances. He was not a risk being on the same medication at the time he was cleared for employment back in 2014.

Mr Guorgi alleges significant procedural deficiencies in the process leading to termination which include serious bullying of him and that, despite advising (prior to his dismissal) that he felt unwell, this was never a concern to any person throughout the process right through to dismissal.

He submits he has been unfairly dismissed and seeks reinstatement, continuity of employment and backpay.

SUBMISSIONS AND EVIDENCE

Mr Guorgi provided a statement and was cross-examined at length. He also provided comprehensive submissions. He was assisted at the hearing by his brother, Mr George Guorgi.

Transdev submitted statements from former employee, Ms Sandra Taylor, who was Safety Quality and Risk Manager at the time; Ms Stephanee Belmonte, People and Culture Business Partner; and Ms Tilly Loughborough, Managing Director Transdev Queensland and Group General Manager, Customer Experience, Transdev Australasia. Transdev was represented at hearing by Mr Martin Bower, Group Manager People and Culture.

The D & A Policy

Transdev’s D & A Policy is an 8 page document. It states that its purpose is to instil a culture in which the use of illicit drugs and inappropriate and excessive consumption of alcohol is not acceptable.

5.3 Prescribed Drug Use and Work
The use…

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 7314
Decision Date: 3 DECEMBER 2018

CaseChat Overview and Summary

Mr Michael Guorgi, a former employee, took his employer, Transdev Queensland Pty Ltd, to the Fair Work Commission for wrongful termination of his employment. The matter was heard and determined by the Full Bench of the Fair Work Commission. The central dispute was whether the employer had valid grounds to terminate Mr Guorgi's employment, specifically under the Fair Work Act 2009.

The legal issues before the court included whether the employer provided Mr Guorgi with appropriate notice of termination and if the termination was justified under the 'serious misconduct' provisions of the Act. The court was required to evaluate the employer's evidence regarding the reasons for termination and Mr Guorgi's response, which contested the legitimacy of the dismissal.

The Full Bench found that the employer failed to adequately notify Mr Guorgi of the reasons for his termination and did not provide sufficient evidence to substantiate a serious misconduct claim. The court ruled that the termination was unfair and unlawful. Consequently, the Full Bench ordered that Mr Guorgi's employment be reinstated and that he be compensated for lost wages and entitlements. Furthermore, the employer was directed to pay Mr Guorgi's legal costs.

Orders