Peter Lacherdis v Mercer - [2022] FWC 2399

[2022] FWC 2399

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Peter Lacherdis
v

Mercer

(U2022/1728)

COMMISSIONER CAMBRIDGE

SYDNEY, 9 SEPTEMBER 2022

Unfair dismissal - failure to comply with reasonable and lawful directives - factual findings of employer verified - dismissal not harsh, unjust or unreasonable - application dismissed.

This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged on 9 February 2022, and it was made by Peter Stephen Lacherdis (the applicant). The respondent employer is Mercer (Australia) Pty Ltd (the employer or Mercer).

The application indicated that the date that the applicant’s dismissal took effect was 3 February 2022. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

The matter was not resolved at conciliation, and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted at Sydney on 28 July 2022. At the Hearing, the applicant represented himself, and he provided evidence as one of two witnesses who were called to give evidence in support of the unfair dismissal claim. The applicant also called his mother to provide evidence as a witness. The employer was represented by its Senior Manager, Employee Relations, Pacific, Ms L Haywood. Ms Haywood introduced evidence by way of witness statements from two individuals, neither of whom were required by the applicant to attend as witnesses for any cross-examination.

Background

The applicant had worked for the employer for about 2½ years. The applicant was engaged in a position described as a Data Collection – Client Service Officer. The applicant was notionally employed from the employer’s office premises located in Barangaroo Avenue, Sydney. However, the data collection work and associated tasks performed by the applicant were conducted remotely from residential premises where he lived with his mother.

The employer is part of an international asset management and business consulting company which relevantly provides superannuation services as part of its broad range of business consultancy and advice services. The employer and its associated entities have more than 25,000 employees based in 43 countries, and it operates in over 130 countries.

The role of the applicant as a Data Collection – Client Service Officer primarily involved the collection of superannuation asset data and the subsequent uploading of that data to a computer based management tool referred to as Xplan. In order to perform his role the applicant would need to log into Xplan on a daily basis, whereupon he would be provided with the tasks that were allocated for him to complete. The data collection and uploading that was performed by the applicant would then be provided to assist the work of one or more of the employer’s advisory staff.

The applicant performed his work from home, and consequently he had regular email, text, and audio/visual (Zoom) communication with his Manager, Mr Huynh. These communications would involve the applicant reporting to Mr…

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.

Continue reading Peter Lacherdis v Mercer

Details

AGLC: Peter Lacherdis v Mercer [2022] FWC 2399
Case: [2022] FWC 2399
Decision Date: 9 SEPTEMBER 2022

CaseChat Overview and Summary

The applicant, Peter Stephen Lacherdis, lodged an application for unfair dismissal remedy against Mercer (Australia) Pty Ltd, the employer, before the Fair Work Commission (FWC). The applicant, who was dismissed from his position as a Data Collection – Client Service Officer on 3 February 2022, claimed that his dismissal was unfair and sought reinstatement. The employer, represented by its Senior Manager, Employee Relations, Pacific, Ms L Haywood, asserted that the dismissal was justified due to the applicant’s failure to comply with reasonable and lawful directives. The central issue was whether the dismissal of the applicant was harsh, unjust, or unreasonable.

The Commission examined whether the employer had valid reasons for dismissing the applicant, whether the applicant was notified of the reasons for dismissal, and whether he was given an opportunity to respond. The Commission found that the employer had valid reasons for the dismissal, as the applicant’s conduct constituted misconduct, including his failure to log into the Xplan system, perform any work tasks, and respond to communications from his supervisor. The employer had notified the applicant of the reasons for dismissal in writing, and had provided him with an opportunity to respond by inviting him to a Zoom meeting. The Commission confirmed that the employer had followed appropriate procedures, and there were no other relevant factors that suggested the dismissal was harsh, unjust, or unreasonable.

Consequently, the application for unfair dismissal remedy was dismissed. The Commission concluded that the employer had just cause to dismiss the applicant, and the dismissal was not harsh, unjust, or unreasonable.

Orders