Mr Simon Ronchi v Johns Lyng Group - [2022] FWC 326

[2022] FWC 326

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Simon Ronchi

Johns Lyng Group

(U2021/7270)

COMMISSIONER YILMAZ

MELBOURNE, 16 FEBRUARY 2022

Application for an unfair dismissal remedy

On 17 August 2021, Mr Simon Ronchi made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Johns Lyng Services Pty Ltd (Johns Lyng). Mr Ronchi was employed as the OHS Manager Victorian Insurance Brands from 2 March 2020 until his dismissal on 27 July 2021. Johns Lyng dismissed Mr Ronchi for three reasons: sending inappropriate messages to the Victorian State Manager, promoting and operating his own business and a lack of deliverables during working hours. Mr Ronchi is seeking compensation of 12 months wages.

Johns Lyng contends that the dismissal was not harsh, unjust or unfair taking into account the requirements of s.387 of the Act.

It is not in dispute that Mr Ronchi’s application satisfies the requirement of s.382 (a) minimum employment period and s.382 (b) protection from unfair dismissal on the basis that the sum of the person’s annual earnings is less than the high income threshold. There were no jurisdictional matters raised.

The matter was listed for hearing on 6 and 7 December 2021. The Respondent was denied legal representation and was represented by its HR Director.

Following the hearing the parties were given an opportunity to file further materials in respect to questions on notice, including evidence mitigating any loss should I consider compensation.

Mr Ronchi gave oral evidence.

Johns Lyng called six witnesses:

· Mr Daniel Venditti, National HSE Risk and Compliance Manager;

· Ms Gemma Sholl, Executive Assistant;

· Mr Matt Streat, Managing Director of Investig8 Pty Ltd;

· Mr Nicholas Graham, Operations Manager Insurance Building and Suncorp Major Loss Victoria;

· Mr Tyson Barber General Manager Victorian Insurance Brands; and

· Mr Lindsay Barber, Chief Operations Officer.

Both parties were self-represented.

Background

Johns Lyng Services Pty Ltd delivers specialist building services as part of the Johns Lyng Group which is a diverse business providing construction, building and support services. Mr Ronchi was employed in the national OHS team as Victorian HSE Manager in the insurance building services business.

When Mr Ronchi commenced employment in March 2020, he was assigned to Mr Tyson Barber’s Victorian/ Tasmanian Insurance Building Services Business. The role entailed site and administration work as the HSE representative for the region. Mr Ronchi described his duties as providing OHS support to nine internal Johns Lyng companies, which includes advice, training education and mentoring services to staff and contractors, checking on site compliance, preparation of safety documents and reporting back to management. He described his work as 80% away from the office and most often from his vehicle. Mr Ronchi reported to Mr Daniel Venditti, who joined the organisation on 6 April 2021. Mr Venditti replaced the previous National…

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: [2022] FWC 326
Decision Date

CaseChat Overview and Summary

The applicant, Mr Simon Ronchi, was employed as the OHS Manager Victorian Insurance Brands for the Respondent, Johns Lyng Services Pty Ltd from 2 March 2020 until his dismissal on 27 July 2021. Mr Ronchi made an application to the Fair Work Commission for a remedy, alleging that he had been unfairly dismissed from his employment. The primary issue for determination by the Commission was whether the dismissal was harsh, unjust or unreasonable under s.385 of the Fair Work Act 2009 (Cth). The Commission found that the dismissal was procedurally unfair, and ordered compensation of one week’s wages.

The Commission considered the criteria specified in s.387 of the Act and found that the dismissal was harsh, unjust or unreasonable. Firstly, the dismissal was based on valid reasons, however, the Commission was not satisfied that the conduct in respect of the text messages met the requirements of serious misconduct under Regulation 107 of the Fair Work Regulations 2009. The Commission found that the conduct was serious and intended to cause harm between two employees, however, it was not likely to cause serious or imminent risk to the health or safety of a person. In respect of the conflict of interest, the Commission found that Mr Ronchi breached his employment contract by engaging in business in conflict with his employer’s interests by sending an email to business partners on 24 July 2021. The Commission found that the third reason for dismissal related to the neglect of duties observed on 23 and 26 July 2021. The Commission found that Mr Ronchi did not fulfil his contractual obligations and was not ready willing and able to work.The Commission found that Mr Ronchi was given an opportunity to respond to the allegations, however, the meeting of 27 July 2021 failed to provide Mr Ronchi a fair opportunity to genuinely take into account the allegations and evidence against him. Mr Ronchi was also denied the opportunity to give due consideration to this information before responding, and Johns Lyng subsequently denied itself the opportunity to give genuine consideration to Mr Ronchi’s responses. The Commission found that the dismissal was procedurally unfair.

Orders