Peter Matsumoto v Loghic Connect Pty Ltd - [2023] FWC 2810

[2023] FWC 2810

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Peter Matsumoto
v

Loghic Connect Pty Ltd

(U2023/2690)

DEPUTY PRESIDENT EASTON

SYDNEY, 25 OCTOBER 2023

Application for an unfair dismissal remedy – employee was a former director and shareholder of the employer – valid reason for termination – alleged malfeasance – salary paid to the applicant’s wife – allegation that the wife was not ever an employee of the respondent – allegation of extortion – Briginshaw standard – alleged assault – no procedural unfairness – dismissal unfair – compensation – employment unlikely to continue beyond a few days – compensation ordered.

On 29 March 2023 Mr Peter Matsumoto made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) alleging that he had been unfairly dismissed from his employment with Loghic Connect Pty Ltd.

Mr Matsumoto co-founded the Respondent in 2007, was a shareholder and one of two directors, and was employed as the Chief Technology Officer. At first the company was called Redback Conferencing (Redback). In 2022 the company’s name was changed to Loghic Connect Pty Ltd (Loghic Connect). In November 2022 Mr Brett Morris purchased all the shares of Loghic Connect and Mr Matsumoto continued in his employment.

Mr Matsumoto was terminated from his employment by letter dated 14 March 2023. The letter said:
“Employment with Loghic Connect Pty Ltd (‘LCPL’)
1.   Since November 2022 and the completion of the Share Sale and Loan Assignment Deed, I have been conducting a number of investigations into the financial affairs and operations of LCPL.
2.   These investigations have discovered that:
(a)Since at least 2015,
(i)monies have been paid by LCPL to or for your wife, Heather Grant, in her alleged capacity as an employee of the company; and
(ii)Ms Grant is not and has never been an employee of the company.
(b)These payments to Ms Grant constitute not just malfeasance but are a serious breach of your fiduciary obligations as a director and employee of the company.
(c)These payments to Ms Grant have exposed LCPL, because they are payments to an ‘Associate’ who was not an employee.
3.   LCPL regards your involvement in these matters as serious misconduct which provides grounds for your immediate dismissal.
4.   Your employment is hereby termination for cause with immediate effect. To the extent your written employment contract dated 16 May 20211 remains operative, it is terminated in accordance with clause 7(a)(ii).”

For the reasons that follow I find that Mr Matsumoto’s dismissal was unfair and I will make an order requiring Loghic Connect to pay two weeks’ pay to Mr Matsumoto as compensation.

Mr Matsumoto’s evidence

Mr Matsumoto maintains that his wife, Ms Grant, was an employee of Loghic Connect and that the allegation that he misconducted himself is wrong.

He said that the first time that he became aware of Mr Morris’ concerns about Ms Grant was when he received the termination letter on 14 March 2023.

Noting that 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.

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Details

Case: [2023] FWC 2810
Decision Date: 25 OCTOBER 2023

CaseChat Overview and Summary

The Fair Work Commission received an application from Mr Peter Matsumoto alleging that he was unfairly dismissed from his employment with Loghic Connect Pty Ltd. Mr Matsumoto was a former director and shareholder of Loghic Connect, having co-founded the company in 2007. He was employed as the Chief Technology Officer. Mr Matsumoto was terminated from his employment on 14 March 2023. The letter of termination referred to several reasons, including alleged malfeasance in relation to salary payments made to Mr Matsumoto’s wife, Heather Grant, and alleged extortion and aggressive behaviour during a meeting on 7 March 2023. The primary legal issue before the Deputy President was whether Mr Matsumoto’s dismissal was unfair within the meaning of the Fair Work Act 2009. The Deputy President found that the dismissal was unfair because there was no valid reason for dismissal and Mr Matsumoto was not given a proper opportunity to respond to the allegations against him. The Deputy President concluded that the dismissal process was procedurally deficient, significantly contributing to the finding that the dismissal was unfair. The Deputy President ordered Loghic Connect to pay Mr Matsumoto two weeks’ pay as compensation.

Orders