Pezzimenti v Rotary International
[2019] FCCA 1854
•26 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PEZZIMENTI v ROTARY INTERNATIONAL | [2019] FCCA 1854 |
| Catchwords: INDUSTRIAL LAW – Fair Work – adverse action claim – complaint against supervisor relating to a Performance Improvement Plan – failure to attend meeting to discuss performance – dismissal – whether the employer had met its onus of proof concerning the reason for the dismissal considered – assessment of damages. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 342, 346, 361, 545 |
| Cases cited: Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia – Western Australian Branch (1995) 63 IR 1 |
| Applicant: | FRANK PEZZIMENTI |
| Respondent: | ROTARY INTERNATIONAL (ABN 36 434 882 113) |
| File Number: | SYG 1099 of 2017 |
| Judgment of: | Judge Driver |
| Hearing dates: | 11, 12 March, 17 April 2019 |
| Date of Last Submission: | 8 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 26 August 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr T Brennan |
| Solicitors for the Applicant: | Kennedys (Australasia) |
| Counsel for the Respondent: | Mr R Warren |
| Solicitors for the Respondent: | AFEI Legal Pty Ltd |
ORDERS
The Court declares that the respondent contravened s.340 of the Fair Work Act 2009 (Cth) by terminating the employment of the applicant on 30 June 2017.
Pursuant to s.545(2)(b) of the Fair Work Act 2009 (Cth), the respondent is to pay compensation to the applicant in the sum of $205,342 within 28 days.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1099 of 2017
| FRANK PEZZIMENTI |
Applicant
And
| ROTARY INTERNATIONAL (ABN 36 434 882 113) |
Respondent
REASONS FOR JUDGMENT
Introduction and background
By application filed on 11 April 2017, the applicant (Mr Pezzimenti) seeks relief under the Fair Work Act 2009 (Cth) (Fair Work Act) against his former employer, Rotary International (Rotary) consequential upon adverse action taken against him in the course of his employment. Mr Pezzimenti was dismissed from his employment following the commencement of proceedings and the proceedings in consequence thereafter focused upon that dismissal.
Mr Pezzimenti’s claim was amended on 14 August 2017 to reflect three asserted courses of conduct alleged to be breaches of the Fair Work Act. The first concerned a complaint made by Mr Pezzimenti against his supervisor, Mr Armando Huerta (Mr Huerta) who had placed Mr Pezzimenti on a Performance Improvement Plan (PIP).
The second impugned course of conduct concerned new allegations made against Mr Pezzimenti by Rotary and a requirement for him to attend a meeting about them. The third impugned course of conduct is the dismissal of Mr Pezzimenti from his employment on 30 June 2017.
In its amended defence filed on 23 August 2017, Rotary admits various facts in the matter but denies that any adverse action was taken for a prohibited reason. Rotary asserts that concerns about Mr Pezzimenti’s conduct were properly raised with him and that these proceedings did not impact upon Mr Pezzimenti’s employment obligations, and the rights of his employer. Rotary asserts that it was entitled to suspend Mr Pezzimenti from duties, to require him to attend a meeting to discuss his conduct and, ultimately, to dismiss him because of that conduct.
The background facts concerning this matter are otherwise set out in submissions filed on behalf of the parties.
Rotary is an organisation of volunteers that operates throughout the world. The volunteers are supported by a Secretariat headquartered in Evanston, Illinois in the United States of America.
The Secretariat operates outside of the United States through a network of international offices and one of those is the South Pacific and Philippines Office (SPPO) located in Parramatta.
Mr Pezzimenti commenced employment with Rotary on 8 January 2007.[1]
[1] Court Book (CB) 164.
Mr Pezzimenti was employed in a managerial position.[2]
[2] CB 181.
Mr Pezzimenti’s principal place of work was Rotary’s office at Parramatta.
From 7 March 2016, Mr Pezzimenti reported to Mr Huerta, Rotary’s Director of International Operations.[3]
[3] CB 164.
Amongst the terms of Mr Pezzimenti’s employment contract,[4] there were express terms which required him to:
a)devote the whole of his hours of work to Rotary;
b)comply with Rotary’s directions;
c)comply with Rotary’s policies and procedures;
d)adhere to Rotary’s SPPO Practices and Procedures Manual;
e)keep Rotary’s confidential information in strict confidence and not disclose its confidential information other than for authorised use; and
f)comply with Rotary’s policies and procedures as to notice and evidence to support personal/carer’s leave.
[4] CB 180-189.
It was also an implied term that Mr Pezzimenti would comply with Rotary’s lawful and reasonable directions.[5]
[5] R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday & Sullivan (1938) 60 CLR 601 at 621-622.
Under the express terms of the employment contract, Rotary was entitled to:
a)terminate Mr Pezzimenti’s employment on notice or on pay in lieu of notice;
b)direct Mr Pezzimenti at any time not to attend for work at Rotary’s premises; and
c)terminate Mr Pezzimenti’s employment without notice if he failed to obey a lawful and reasonable direction or if he did not comply with a policy or procedure.
Mr Pezzimenti was employed as the International Office Manager of the SPPO, which was the most senior position in that office from 8 January 2007 until termination of that employment on 30 June 2017.[6]
[6] Mr Pezzimenti affidavit, 23 August 2017 (Pezzimenti 1) [4].
The relevant reporting lines within the Rotary International Secretariat included that:
a)between 8 January 2007 and around October 2015 Mr Pezzimenti reported to Mr Paul Carpenter who was the Director of International Operations;[7]
b)in early 2016, Mr Huerta commenced in the role of Director of International Operations and soon after that date Mr Pezzimenti reported to him;[8]
c)Mr Huerta reported to Ms Michele Berg, Deputy General Secretary of Rotary;[9] and
d)Ms Berg in turn reported to Mr John Hewko, General Secretary.[10]
[7] Pezzimenti 1 [27].
[8] Pezzimenti 1 [29].
[9] Pezzimenti 1 [25].
[10] Pezzimenti 1 [25].
The headquarters of Rotary had a human resources function and the Global Director, Human Resources People and Talent was Mr Matthew Switzer who provided assistance to Mr Huerta in the performance of his role.[11]
[11] Pezzimenti 1 [26].
The governance of Rotary is conducted by a Board, members of which include “Zone Directors”. Mr Noel Trevaskis was at all relevant times the Zone Director for Indonesia, Philippines, New Zealand, Pacific Islands, Australia, Timor Leste, Papua New Guinea and smaller Pacific countries and territories.[12]
[12] Pezzimenti 1 and Mr Huerta affidavit, 5 October 2017 (Huerta) [101].
On 30 June 2017 Mr Pezzimenti’s employment was terminated by Rotary. The purported reasons for that termination were set out in a letter from Mr Huerta of that date[13] and Mr Huerta has adopted those reasons as his reasons for terminating the employment.[14] The reasons were:
a)by communicating with Mr Trevaskis, Mr Pezzimenti had breached an obligation of confidence owed to Rotary;
b)that Mr Pezzimenti had failed to ensure the accuracy of leave records within Rotary’s payroll system;
c)that Mr Pezzimenti was absent from work for the period 1 – 4 November 2016 without proper authorisation; and
d)Mr Pezzimenti had failed to meet the standards set down in the PIP within the time frame specified in that plan.
[13] Exhibit AH to Huerta, pages 97 and 98.
[14] at Huerta [122] and [123]
As will become clear, Mr Huerta’s evidence to that effect is critical. The central question is whether the purported reasons were the real reason for the termination of Mr Pezzimenti’s employment.
Alleged breach of confidence
Mr Huerta concluded that Mr Pezzimenti was in breach of his obligation of confidence by communicating with Mr Trevaskis, the Regional Director responsible for the SPPO International office. The emails were themselves confidential communications to a director of Rotary (who had responsibility for the SPPO region) concerning Rotary’s business.[15] Mr Pezzimenti contends that there was nothing which Mr Huerta found he had done which was inconsistent with any direction or request made to him.[16]
[15] See exhibit AH to Huerta, pages 84 – 85, 87 and 88.
[16] Kristopher Neubauer affidavit, 5 October 2017 [5].
The leave issue
Mr Huerta made findings with respect to leave records.[17] The records that he relied upon were from a third-party payroll company called “Aussie Pay”.
[17] at exhibit AH to Huerta, page 85
Mr Huerta proceeded on the basis that an award employee undertaking a period of annual leave cannot, or in any event would not properly, accrue an entitlement to carer’s leave. Thus, Mr Huerta found “as these leave requests were approved [as annual leave], it would be expected that the records would accurately reflect that leave”. Mr Pezzimenti contends that there could never have been a basis for the expectation which Mr Huerta found. Every award employee has an entitlement to carer’s or personal leave, including during periods of annual leave. Further, that Mr Pezzimenti had converted the days in issue from annual leave to carer’s leave was recorded in Rotary’s system and was known to the administrative staff responsible for the operation of that system. Mr Huerta’s conclusions, if genuinely formed, are said to have been formed without enquiry to those who hold the relevant records. The primary record for leave was a diary kept by the administrative coordinator of the office. That was supported by leave forms and a staff planner on an Excel spreadsheet. There is no evidence that Mr Huerta consulted those records or the Parramatta office staff who maintained them.[18]
[18] Mr Pezzimenti affidavit, 16 October 2017 (Pezzimenti 2) [21] – [27].
For the period of October/November 2016 Mr Huerta found that pay records recorded that Mr Pezzimenti had been on personal/carer’s leave in the period 1 – 4 November when he had not requested such leave.
Mr Pezzimenti maintains that he was at work on the days in issue, a fact said to be well known to Mr Huerta.[19]
[19] Pezzimenti 2 [28].
The PIP
The PIP was sent to Mr Pezzimenti by Mr Huerta on 27 October 2016.[20] It contained a statement of four “performance objectives” also known as “deliverables”.[21]
[20] Huerta [30].
[21] Huerta [33].
Those performance objectives concerned:
a)addressing staff concerns;
b)updating the Employee Handbook/Practice and Procedures;
c)team building; and
d)recognition.[22]
[22] Exhibit AH to Huerta, pages 18 - 19.
The PIP commenced on 28 October 2016 and was to run for four months, that is until 28 February 2017.[23]
[23] Exhibit AH to Huerta, page 16.
Between 30 November 2016 and 12 December 2016 Mr Pezzimenti consulted by email with Mr Huerta on the measures which Mr Huerta would approve for achievement of two of the PIP deliverables.[24] Mr Huerta signed off on Mr Pezzimenti’s proposals.
[24] Huerta [41] – [44].
On 28 February 2017, Mr Huerta met with Mr Pezzimenti to discuss the PIP. He stated: [25]
[25] Pezzimenti 1 [64].
There is only one aspect of the PIP that is outstanding.
The conversation was confirmed by email dated 28 February 2017.[26] Of the four deliverables, Mr Huerta confirmed that three appeared to be completed in a satisfactory manner and the one deliverable that was still unsatisfactory was the update to the Conflict Resolution Section of the Employee Handbook.
[26] Exhibit FP to Pezzimenti 1, pages 63 – 64. The exhibit is not annexed to the filed copy of Pezzimenti 1 and is found at CB 38-162
Ms Berg and Mr Huerta visited the SPPO office in Parramatta commencing on Monday 13 March 2017. Ms Berg met with Mr Pezzimenti alone before a joint meeting with Mr Huerta.
Ms Berg, Mr Huerta and Mr Pezzimenti met together on 13 March 2017 at which Mr Huerta said to Mr Pezzimenti, “Frank you didn’t need to go to the extent of putting in a bullying complaint against me”.[27]
[27] Pezzimenti 1 [72].
Following that meeting Ms Berg and Mr Huerta met one on one with each of the staff of the SPPO.
Following those meetings Ms Berg, Mr Huerta and Mr Pezzimenti again met on Wednesday 15 March 2017 and according to Mr Pezzimenti, Mr Huerta said words to the effect, “Three out of the four items seem OK and only the last one, the bullying and harassment guidelines, is to be completed”.[28]
[28] Pezzimenti 1 [74].
The following day, Thursday 16 March 2017, Mr Huerta confirmed by email the meeting which had occurred on Wednesday 15 March 2017. He referred to an “excellent and productive visit”.[29]
[29] Exhibit AH page 40.
Mr Huerta also referred by way of “follow ups” to the further work on the grievances and complaints process which was to be the subject of a thorough review to be completed by the end of the calendar year.
That time frame was because Mr Pezzimenti had progressed the grievances and complaints process with Mr Switzer, to the point where the draft was to be referred to Rotary’s solicitor for review.[30] The latest version was approved by Mr Switzer and was sent to the solicitor on 27 March 2017.
[30] Pezzimenti 2 [30].
Mr Pezzimenti contends that there was no other reference to any other outstanding matter from the PIP. However, there was reference to a further development in team building: “A robust team building plan needs to be formulated and implemented; please provide a working draft by 14 April for final review and approval”.[31] Both the process proposed, and its time frame are said to have been wholly inconsistent with that being any other than a step further than the limited objectives contained in the PIP.
[31] Exhibit AH to Huerta, page 40
There is no evidence of any further review conducted by Mr Huerta or anyone else of performance under the PIP.
On 4 April 2017, Mr Huerta received from Mr Pezzimenti a document identifying the achievements against each of the four deliverables in the PIP. Mr Pezzimenti included a column for results to assist a discussion scheduled for the following morning. [32]
[32] Exhibit AH to Hueta, pages 43 – 47.
On 5 April 2017 at 7.30am, Mr Huerta convened a meeting with Mr Pezzimenti at which he informed Mr Pezzimenti that he, Mr Huerta, was unable to assess progress on one deliverable and that Mr Pezzimenti had failed to achieve the other three deliverables and the PIP. The meeting lasted for approximately 15 minutes. The document sent by Mr Pezzimenti to facilitate discussion was not discussed. Mr Pezzimenti was asked to immediately leave the office. As Mr Pezzimenti was leaving, he asked if Mr Huerta had received the document the day before. Mr Huerta said he had received the document but still asked Mr Pezzimenti to leave.[33]
[33] Huerta [75] and [76] and exhibit AH to Huerta, pages 48 – 50.
Mr Pezzimenti’s complaint about Mr Huerta
On 13 December 2016, Mr Pezzimenti made a complaint of bullying by Mr Huerta to Mr Hewko.[34]
[34] Pezzimenti 1 [57]; exhibit FP-1 to Pezzimenti 1, pages 51 – 56.
Mr Huerta was informed of the complaint on 21 December 2016 and knew of its contents by no later than 4 January 2017.[35]
[35] Huerta [45] – [48].
In his induction meeting with Mr Pezzimenti on 13 March 2017, Mr Huerta is said to have made specific reference to the bullying complaint made against him by Mr Pezzimenti.[36]
[36] Pezzimenti 1 [72].
The substance of Mr Pezzimenti’s bullying complaint concerned the manner in which Mr Huerta pursued the PIP process. Mr Pezzimenti alleges that, by reaching the conclusions that he did on that process, Mr Huerta must have had the purpose of providing apparent “cover” for that process through conclusions of unsatisfactory performance leading to likely termination of employment. The absence of an objective foundation for those conclusions, combined with the direct contradiction between each of those conclusions and the objective record of Mr Huerta’s earlier expressed views is said to demonstrate that Mr Huerta’s conclusions were for a purpose other than his expressed purpose.
These proceedings
The present proceedings were commenced on 11 April 2017 and Mr Huerta received notification of them on that day.[37]
[37] Huerta [84] and [85].
Mr Pezzimenti included a prayer for an injunction restraining the termination of his employment. Mr Pezzimenti did not move on that prayer. Rather, Rotary informed Mr Pezzimenti that it would not make a decision about ongoing employment until the injunction issue was resolved.[38]
[38] Huerta [86].
Immediately after that, Mr Huerta and Mr Switzer proceeded to enquire into Mr Pezzimenti’s leave records, his email account and his attendance at work. He contends that that was all done because Mr Huerta was concerned at the ongoing costs of Mr Pezzimenti remaining employed but suspended.[39] Mr Pezzimenti asserts that having gathered documents which he considered would assist to provide an alternate rational basis for termination, Mr Huerta in consultation with Mr Switzer, Ms Berg and Rotary’s general counsel Mr Wright resolved to proceed with termination by issuing a further show cause letter.[40]
[39] Huerta [88] – [106].
[40] Huerta [107]–[110].
On 17 May 2017, Mr Pezzimenti had been ordered to file and serve his evidence in the proceedings on or before 28 June 2017.[41] Mr Huerta had apparently completed his investigations to find the additional adverse material against Mr Pezzimenti during his visit to the Parramatta office from 24 to 26 May 2017.[42] The second show cause letter was issued to Mr Pezzimenti on 22 June 2017, requiring attendance at a meeting on 27 June 2017 to show cause as to why his employment should not be terminated.
[41] Exhibit FP-1 to Pezzimenti 1, page 105.
[42] Huerta [98]-[107].
Mr Pezzimenti contends that there is nothing to explain the course of correspondence resulting in the termination of his employment on 30 June 2017 other than that Rotary was engaged in “tactical manoeuvring” directed to improving its position in these proceedings.[43]
[43] Pezzimenti 1 [95]–[99] and exhibit FP-1 to Pezzimenti 1, pages 105–111; Huerta [114]–[124].
The pleaded conduct
Mr Pezzimenti seeks orders for monetary compensation for loss of wages and other income to retirement; and in the alternative for damage to earning capacity by dismissal from a senior executive position.[44]
[44] Amended Application, page 8.
That claim is made on three bases.
First course of conduct
The first course of conduct is pleaded in the amended claim from [1]-[15]. Mr Pezzimenti relies upon his exercise of a workplace right, being the right to make a complaint in relation to his employment. The relevant complaint was the complaint made by Mr Pezzimenti to Mr Hewko on 13 December 2016.
The adverse action complained of is the dismissal of Mr Pezzimenti in reliance on the outcomes of the PIP process.
Second course of conduct
By requiring Mr Pezzimenti to respond to a show cause notice in the week in which his evidence in these proceedings was due and in dismissing Mr Pezzimenti for his failure to respond at that time, Rotary adversely affected the advantages enjoyed by Mr Pezzimenti as an employee and thereby altered his position to his prejudice,[45] because prior to that direction Mr Pezzimenti had been able to, and had been able to plan to, devote all of his efforts to his preparation of evidence in these proceedings.
[45] Patrick Stevedores Operations (No.2) Pty Ltd v Maritime Union of Australia (No.3) (1998) 195 CLR 1 at [4].
Rotary’s “tactical positioning” meant that it took that action because Mr Pezzimenti had exercised and was exercising his workplace right of bringing these proceedings.
Third course of conduct
The final adverse action taken by Rotary was the termination of Mr Pezzimenti’s employment and further, or in the alternative, the alteration of Mr Pezzimenti’s position as an employee to his prejudice by terminating his entitlement to full pay until his claim in this Court was resolved.
Mr Pezzimenti contends that this conduct was undertaken for the reasons alleged with respect to the first and second courses of conduct and for the reason that he had the benefit of ongoing employment by Rotary during the course of prosecuting his claim. In so acting, Mr Huerta is said to have acted to Mr Pezzimenti’s detriment because he exercised his right to prosecute this claim. It is alleged that because Mr Pezzimenti continued to prosecute his claim, in this Court, and because the claim would not be resolved for some months, Mr Huerta moved to bring things to a head.
The evidence and submissions
Mr Pezzimenti relied upon two affidavits he made on 23 August 2017 and 16 October 2017. Rotary relied upon the affidavit of Mr Huerta made on 5 October 2017 and the affidavit of Kristopher Newbauer made on 10 October 2017. Affidavit evidence was also prepared by Mr Switzer on 5 October 2017. Mr Switzer was required for cross-examination and arrangements were made to take his evidence by videolink from the United States of America. At the last moment, however, Mr Switzer declined to be cross-examined and his affidavit was not read. Both Mr Pezzimenti and Mr Huerta were cross-examined at length on their affidavits.
The parties filed pre-hearing written submissions and, at my request, also made post-hearing submissions on the issue of damages.
The following exhibits were tendered:
· A1 email from Bruce Allen[46] to Ms Berg, 06.02.2017;
·A2 email from Mr Pezzimenti to Ms Berg and Mr Huerta, 23.03.2017
· A3 redacted copy of affidavit of Mr Switzer, sworn 05.10.2017;
· A4 Internal Investigation Report;
· A5 SPPO Visit – Ms Berg’s notes, 13-14.03.2017;
·A6 bundle of documents, including medical certificate 27.06.2017; and
· A7 Email from Mr Trevaskis to Mr Pezzimenti, 21.04.2016.
[46] a staff member at Rotary’s Parramatta office.
Consideration
There is no doubt that Rotary had concerns about the performance of Mr Pezzimenti. That is why he was put on the PIP. It is also apparent, however, that there was a change of attitude on the part of the responsible persons in Rotary following Mr Pezzimenti’s complaint against Mr Huerta and the commencement of these proceedings. At the trial, the parties recognised that Mr Pezzimenti had done enough to establish a prima facie case of adverse action for a prohibited reason, with particular reference to his dismissal. Accordingly, in accordance with s.361 of the Fair Work Act, the onus shifted to Rotary to establish that the adverse action (in particular the dismissal) was not taken for a prohibited reason.
Rotary relevantly contends as follows.
Rotary dismissed Mr Pezzimenti from his employment effective 30 June 2017 and Rotary confirmed the dismissal by letter to Mr Pezzimenti of the same date.[47]
[47] CB 276-277.
The letter discloses that Mr Pezzimenti was dismissed for reason of his decision not to obey Rotary’s reasonable direction issued in writing to him on 22 June 2017[48] requiring him to attend a meeting (via Skype) at 11:30am on 27 June 2017 where he would have the opportunity to explain conduct described in Rotary’s written notice and for Mr Pezzimenti to include his response to the show cause letter previously issued to him on 5 April 2017,[49] and the related direction issued to him in writing on 26 June 2017 by which Rotary rescheduled the Skype meeting to 9:00am on Thursday, 29 June 2017.[50]
[48] CB 263-271.
[49] CB 231-235.
[50] CB 273.
Rotary contends that its direction to Mr Pezzimenti to attend the Skype meeting was a lawful and reasonable direction, and Mr Pezzimenti was required to comply.
Mr Pezzimenti did not obey that direction;[51] consequently, he did not address Rotary on the facts and matters which had caused Rotary to be concerned about Mr Pezzimenti’s conduct.[52]
[51] CB 176.
[52] CB 177.
Mr Pezzimenti’s disobedience to the direction to attend the Skype meeting enlivened Rotary’s contractual right to terminate the employment with payment in lieu of notice.[53]
[53] CB 186.
As addressed in Mr Huerta’s affidavit, the decision to dismiss Mr Pezzimenti was taken by Mr Huerta[54] and the letter in confirmation of the termination sets out the asserted reasons relied upon to support that decision.[55]
[54] CB 176.
[55] CB 176-177.
Mr Huerta’s affidavit is to the effect that the decision to dismiss was motivated by Mr Pezzimenti’s disobedience and was not motivated by any unlawful grounds as alleged by Mr Pezzimenti.[56]
[56] CB 176-177; CB 276-277.
It is relevant to Rotary’s case that at the time that Mr Pezzimenti was issued with the direction to attend the Skype meeting (i.e. direction issued 22 June and 26 June 2017) he was in Rotary’s employment, albeit he was affected by a direction (permissible by an express term) that he not attend for work at Rotary’s premises.[57] The significance of Mr Pezzimenti being Rotary’s employee at this time is this:
a)Rotary was entitled to raise with Mr Pezzimenti its concerns about his conduct;[58] and
b)Mr Pezzimenti was bound to comply with the express and implied terms of his employment including that he comply with Rotary’s reasonable directions.[59]
[57] CB 171.
[58] CB 164.
[59] CB 181.
Rotary seeks to characterise Mr Pezzimenti’s essential contention in these proceedings to be that, regardless of his legal status as an employee of Rotary, by reason of his status as the applicant in these proceedings and the orders made by this Court on 17 May 2017, he was immune from the requirement to comply with his employer’s reasonable direction to attend the Skype meeting.
That contention is said not to be capable of being accepted for the following reasons:
a)first, the contention is not supported by the terms of the orders made on 17 May 2017; those orders cannot be understood as having an effect other than what they clearly and unambiguously state;
b)secondly, Mr Pezzimenti’s supposed contention is not supported by the terms of the employment, whether express or implied. The contention is contrary to the clear and unambiguous terms that require him to comply with Rotary’s directions during his employment and which terms also include the express requirement that he devote himself to his employment during the whole of his hours of work; [60] and
c)thirdly, Mr Pezzimenti’s supposed contention resonates with an argument rejected in Board of Bendigo Regional Institute of Technical and Further Education v Barclay.[61] From the description of the argument at [61] of the judgment, it was contended that at the time that adverse action (being disciplinary action) was taken against Mr Barclay, his position as an officer of the union engaged in lawful industrial activities meant that:
Mr Barclay’s union position and activities were inextricably entwined with the adverse action and that Mr Barclay was therefore immune, and protected, from the adverse action.
[60] CB 181.
[61] (2012) 248 CLR 500 at 523 [61] (per French CJ and Crennan J).
Their Honours describe this as an “incorrect view” and that “if accepted, such a position would destroy the balance between employers and employees central to the operation of s.361…”
Rotary contends that Mr Pezzimenti’s fundamental position is similar to the argument rejected in Barclay. That is, Mr Pezzimenti’s position is that at the time that adverse action was taken against him (or proposed to be taken against him after filing his claim), his status as applicant in these proceedings meant that he was excused from the ordinary obligation to comply with his employer’s reasonable directions and he was immune from the disciplinary consequences of his disobedience to those reasonable directions.
The courses of conduct alleged by Mr Pezzimenti
Rotary notes that in relation to the principal course of conduct claimed by Mr Pezzimenti, the adverse action complained of is his dismissal;[62] however, this is not the complaint made by Mr Pezzimenti in his amended claim.[63] That complaint was not of dismissal but of proposed dismissal (or threatened dismissal) and of adverse findings by Rotary in relation to the PIP.
[62] see Mr Pezzimenti’s outline of submissions filed on 4 March 2019 at [46].
[63] CB 4.
If, by this departure from his amended claim, Mr Pezzimenti now claims that it is only his dismissal on 30 June 2017 that was caused by unlawful conduct on the part of Rotary, then it relies on its defence.
However, as Mr Pezzimenti maintains all the allegations of contravention of his amended claim, Rotary relies upon the matters which it has addressed in its amended defence.[64] In this regard it is a matter of substantial significance to that defence that at all times before 30 June 2017, Mr Pezzimenti was Rotary’s employee and was therefore bound by the terms of his employment such that he remained subject to Rotary’s lawful and reasonable directions and Rotary was lawfully entitled to bring to his attention its concerns about his conduct in the employment.[65]
[64] CB 9-21.
[65] CB 180-189.
As to the PIP,[66] Rotary contends that that plan is not associated with, or reflective of, any unlawful conduct on the part of Rotary. Rotary characterises that plan as a reasonable managerial action taken at the initiative of Mr Pezzimenti’s immediate supervisor, Mr Huerta.[67]
[66] CB 195-199.
[67] CB 164.
The PIP is said not to be associated with the workplace complaint made by Mr Pezzimenti on 13 December 2016 as the plan was initiated on 28 October 2016, some two months before Mr Pezzimenti’s complaint.[68]
[68] CB 195-199.
Further, Rotary contends that Mr Pezzimenti did not achieve the satisfactory completion of the plan and he was not informed otherwise. In this regard:
a)Mr Pezzimenti was informed on 28 February 2017 by Mr Huerta that three items appeared to be completed in a satisfactory manner, pending a review of their satisfactory implementation;[69]
b)Mr Pezzimenti was informed on 14 March 2017 by Mr Huerta and Ms Berg that they would get back to him within two weeks with the final evaluation;[70]
c)Mr Pezzimenti was informed by Mr Huerta by email on 16 March 2017 that two items were still incomplete as at that date;[71] and
d)on 4 April 2017 Mr Pezzimenti listed the implementation date for several new procedures after the expiry of the required deadline.[72]
[69] CB 168.
[70] CB 170.
[71] CB 219.
[72] CB 222- 226.
Thus, in Rotary’s submission:
a)contrary to Mr Pezzimenti’s case, there was no concession on the part of Rotary that Mr Pezzimenti had met three of the four performance objectives in the PIP;
b)if any adverse findings were made, those findings were only informed by Mr Pezzimenti’s unsatisfactory progress under the PIP and not because he had made the earlier complaint;[73] and
c)insofar as Mr Pezzimenti was threatened with dismissal, that threat was not made because he had made a complaint about his employment on 13 December 2016, but rather because of his unsatisfactory progress under the PIP.[74]
[73] CB 170-172.
[74] CB 172.
As to the second course of conduct, Rotary relies upon the matters outlined above with respect to Mr Pezzimenti’s several obligations towards Rotary arising from the terms of his employment.
In addition, Rotary draws attention to the following facts and considerations which are said to expose the “unpersuasive and unconvincing” nature of Mr Pezzimenti’s case:
a)the orders made 17 May 2017 effectively allowed Mr Pezzimenti a six week period to prepare his evidence (i.e. from 17 May to 28 June 2017) and so he was not confined to preparing his evidence in the period 22 June to 28 June 2017;
b)if Mr Pezzimenti was confined to preparing his evidence in this period, he has not explained this; and if he was so confined, then that circumstance is not the outcome of any conduct on the part of Rotary;
c)if Mr Pezzimenti had expected to experience difficulties in meeting both his obligations towards his employer and the preparation of his evidence, then it was open to him to exercise the liberty granted to the parties in the orders of 17 May 2017 to apply on three days’ notice. It is a matter of significance that this available course was not taken by Mr Pezzimenti, and he does not explain in his testimony why that available course was not taken;
d)similarly, if Mr Pezzimenti had considered that he would be prejudiced or adversely affected in the proceedings by his attendance at the Skype meeting (which was scheduled during ordinary work hours) then it was open to him to exercise the liberty granted to the parties in the orders of 17 May 2017 to apply on three days’ notice. Again, it is said to be a matter of significance that this available course was not taken by Mr Pezzimenti and he does not present any explanation as to why that available course was not taken;
e)it is a significant consideration that the meeting was moved from 11:30am on Tuesday, 27 June to 9:00am on Thursday, 29 June[75] to accommodate Mr Pezzimenti and it is significant that the latter date (Thursday, 29 June) was outside the period by which Mr Pezzimenti was to have filed and served his evidence in accordance with the orders of 17 May 2017;
f)it does not assist Mr Pezzimenti in these proceedings that his testimony does not explain (or address) what his circumstances were at the actual times at which the meetings were scheduled (i.e. 11:30am on Tuesday, 27 June 2017 and 9:00am on Thursday, 29 June 2017). His whereabouts at the times at which the meetings were scheduled is left unexplained and, consequently, Mr Pezzimenti has not established that, at those times, he was otherwise committed to the exercise of any workplace right, or any workplace right with respect to his participation in these proceedings. Again, it is significant to Rotary’s defence that the meetings were scheduled for times which were normal hours of work for Mr Pezzimenti[76] and Mr Pezzimenti was required by the terms of his employment to devote the whole of his hours of work to Rotary;[77] and
g)the purpose of the Skype meeting with Mr Pezzimenti in June 2017 was to provide him the opportunity to explain his conduct as particularised in the letter of 22 June 2017 and to provide him an opportunity to address the earlier show cause notice of 5 April 2017. Those opportunities were not taken by Mr Pezzimenti at that time but it is a matter of further significance that Mr Pezzimenti’s affidavit filed 23 August 2017[78] addresses many of the matters raised by Rotary in its letters of 22 June 2017 and 5 April 2017 and thus it may be concluded that Mr Pezzimenti had the capacity in June 2017 to provide a response to his employer about those matters; and it may be further concluded that his decision not to do so at that time demonstrates his determination to avoid and disobey his employer and to disregard the employer’s concerns about matters which it clearly considered to be serious in nature, as they were described as such in Rotary’s 22 June 2017 notice to Mr Pezzimenti.
[75] CB 176; CB 94.
[76] CB 183.
[77] CB 181.
[78] CB 22-162.
With regard to the third course of conduct, it is uncontentious that the dismissal of Mr Pezzimenti on 30 June 2017 is adverse action within the meaning of s.342(1) of the Fair Work Act.
Rotary seeks to explain the action in its “proper lawful context” through Mr Huerta’s affidavit; Mr Huerta being Mr Pezzimenti’s direct supervisor and allegedly the decision maker regarding dismissal.
Mr Huerta’s affidavit is said to bring to these proceedings direct reliable testimony of the decision maker’s reasons for Mr Pezzimenti’s dismissal. Insofar as the statutory presumption at s.361 of the Fair Work Act has been enlivened, Mr Huerta’s affidavit is said to be direct testimony that displaces that presumption and thus Rotary contends that it has discharged the burden placed upon it to show that the reason for the adverse action was not a prohibited reason.[79]
[79] Barclay at 517 [45] (per French CJ and Crennan J).
The statutory presumption
The effect of s.361(1) is to establish a presumption of contravention which is capable of being overcome by a person who proves otherwise. As noted above, it is central to the resolution of this case whether Mr Huerta’s affidavit and oral evidence provides the requisite proof that Mr Pezzimenti’s dismissal was lawful, and indeed justified, and was not taken in contravention of the Fair Work Act.
In Barclay, the High Court (French CJ, Crennan, Gummow and Hayne JJ agreeing) found that the task for a court in a proceeding alleging a contravention of s.346 of the Fair Work Act is to determine, on the balance of probabilities in light of all the established evidence, whether the employer took adverse action for a prohibited reason, or reasons which included a prohibited reason. As noted above, direct testimony from the decision maker acting on behalf of the employer, which is accepted as reliable, is capable of discharging the burden upon an employer under s.361(1).
Importantly, French and Crennan JJ stated that it will generally be difficult to displace the statutory presumption if no direct testimony is given by the decision maker.
Further, Heydon J stated that the word “because” in s.346 requires an investigation of the reasons of the employer for taking the action.[80] Action is taken for a reason if the reason is an operative or immediate reason for the action. Examining whether a reason is an operative or immediate reason for an action calls for an enquiry into the mental processes of the person responsible for that action.
[80] Barclay at 544 [140]
Particular difficulties arise in circumstances where the dismissal decision is a collective one. Those difficulties were discussed in CFMEU v Clermont Coal Pty Ltd,[81] in particular at [105], [109], [112], [113], [117] and [121].
[81] [2015] FCA 1014
It is of significance that Mr Huerta’s standing as Mr Pezzimenti’s direct supervisor[82] meant that he had legitimate reason to evaluate Mr Pezzimenti’s performance and to take initiatives to address his concerns about that performance. It is instructive to reflect that the PIP was at least potentially to the benefit of Mr Pezzimenti because it had the objective of bringing about an improvement in his performance.
[82] CB 164.
Mr Newbauer’s affidavit[83] provides context in which decisions about Mr Pezzimenti’s employment were made and the circumstances in support of those decisions. Mr Huerta’s affidavit and Mr Newbauer’s affidavit seek to explain those decisions and those actions in their proper and lawful context.
[83] CB 534-535.
Nevertheless, in my view, Rotary has failed to discharge its onus in relation to the dismissal decision. The Skype meeting which Mr Pezzimenti was required to attend has no particular significance except as a precursor to the dismissal. Rotary viewed the meeting as a formal step necessary (presumably to demonstrate that procedural fairness had been accorded) prior to the dismissal.
It is significant that in this case three persons were responsible for the dismissal decision. In addition to Mr Huerta, there were Mr Switzer and Ms Berg. Ms Berg did not give evidence at all, although her notes are Exhibit A5. She was the most senior officer involved and her role was probably a formal one, acting on the advice of Mr Huerta and Mr Switzer. Mr Switzer did however play a significant role. Mr Switzer did provide an affidavit but was unwilling to subject himself to cross-examination and the affidavit was not read.[84] This left only Mr Huerta to explain the dismissal decision. Mr Huerta impressed me as a clear thinking and dynamic senior official with firm views about the responsibilities of the staff of Rotary and how those responsibilities should be performed. He had doubts about the performance of Mr Pezzimenti and addressed those doubts through the PIP. A personal inspection of the Australian office of Rotary appeared to assuage his concerns and the initial feedback from that inspection was positive in terms of a potential conclusion about Mr Pezzimenti’s performance on the PIP. His views may not have changed significantly following the complaint made by Mr Pezzimenti but in my view they did change following the commencement of these proceedings. Mr Huerta did not persuade me that there was any reason for that change of attitude other than the commencement of proceedings. Not only that, but the goalposts of the PIP themselves changed following the commencement of proceedings. It was as if Mr Pezzimenti was from that point set up to fail.
[84] It was, however, tendered in a redacted form on behalf of Mr Pezzimenti as an exhibit, Exhibit A3 –see [62] above.
It is tolerably clear that Rotary’s concerns about Mr Pezzimenti had some substance and that the PIP was justified, at least in the form it was originally conceived. It may also be that the outcome of the PIP would have been the redundancy, or managed exit of Mr Pezzimenti. That cannot be known, however, because the commencement of these proceedings changed and hastened the process that led to the dismissal of Mr Pezzimenti. After the initial process of the PIP, Rotary went looking for additional reasons to dismiss Mr Pezzimenti, and thought it had found it in the so-called breach of confidence. That was the charge Mr Pezzimenti was called to answer and he was dismissed when he failed to do so. The charge has the air of artificiality to it. While Mr Huerta may have been embarrassed by Mr Pezzimenti’s communication with Mr Trevaskis,[85] it is very hard to accept the proposition that the communication of a concern by the International Office Manager of Rotary to the Rotary regional director responsible for that office involves a breach of confidence.
[85]especially after Mr Pezzimenti’s earlier complaint to Mr Hewko.
As to the leave issue, it appears to have been a “storm in a tea cup”, and capable of explanation from the records of Rotary.
I conclude that Rotary has failed to discharge its own onus in relation to the provision of reasons for Mr Pezzimenti’s dismissal and that he should receive damages for the loss of his employment.
Assessment of damages
Mr Pezzimenti’s employment was terminated when he was 61 years old.[86] He had worked in his role with Rotary for approximately 11 years. He is qualified as a certified practicing accountant but has not been employed since the termination.
[86] he is now at least 63 years old.
Mr Pezzimenti’s claim for economic damages assumes that but for the termination of his employment on 30 June 2017 his employment would have continued until age 70.[87]
[87] see Mr Pezzimenti’s Schedule of Damages handed up in Court on 17 April 2019.
Rotary does not challenge Mr Pezzimenti’s assessment of salary, superannuation at termination, total remuneration at termination or Mr Pezzimenti’s current age.[88] As to his eligibility for the age pension, Mr Pezzimenti is eligible at age 66 years and 6 months.[89] However, Rotary submits that:
a)the assumption of such a substantial period of employment beyond 30 June 2017 is not warranted; and
b)the more probable outcome is that if the employment had not terminated on 30 June 2017, the employment would not have continued for any substantial period beyond 30 June 2017.
[88] see Mr Pezzimenti’s Schedule of Damages at [1], [2], [3], [5].
[89] source: and approach
Section 545(1) of the Fair Work Act provides that the Court may make any order the Court “considers appropriate” if satisfied of a contravention of a civil remedy provision of the Fair Work Act.
The governing consideration is what the Court considers “appropriate”.[90]
[90] Dafallah v Fair Work Commission [2014] FCA 328 at [157] (Mortimer J) cited in Crawford v Steadmark Pty Ltd (No.2) [2015] FCCA 2697 at [129] (Judge O’Sullivan).
While the power is discretionary, the discretion falls to be exercised in the peculiar circumstances of each case.[91]
[91] Kennewell v MG & CG Atkins trading as Cardinia Waste & Recyclers [2015] FCA 716 at [76] (Tracey J).
The Court will consider what would have been likely to occur had the Fair Work Act not been contravened.[92] The assessment of compensation involves an assessment of what would or might have occurred in the absence of the contravention, taking into account the degree of probability of the effects.[93]
[92] Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia – Western Australian Branch (1995) 63 IR 1 at 9 (Lee J) cited in Dafallah at [158] (Mortimer J); Kennewell at [87] (Tracey J).
[93] Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120 (per Allsop CJ, Mansfield and Siopis JJ) at [28] citing Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 625 at 642-643, and Sellars v Adelaide Petroleum NL [1994] HCA 4; 179 CLR 332 at 352-356.
Section 545(2)(b) of the Fair Work Act provides that the Court may make an order awarding compensation for loss that a person has suffered because of a contravention. There must be an appropriate causal connection between the contravention and the loss claimed.[94]
[94] Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 at 592 (Barker J.); Maritime Union of Australia (per Allsop CJ, Mansfield and Siopis JJ) at [28].
In considering causation in the circumstances of a fraught employment relationship, it is appropriate to consider whether the employer would have in any event been entitled to exercise any lawful power it had to bring the employment contract to an end in a way most beneficial to itself.[95]
[95] Dafallah at [161] (Mortimer J).
The only factual dispute in relation to damages is the period for which Mr Pezzimenti will be unemployed because of the termination of his employment for reasons, which include a proscribed reason. As a result, Mr Pezzimenti submits that the annual figure in the schedule of damages, $205,342, should be multiplied by whatever period of unemployment this Court concludes was the probable result of the contravening conduct.
Another way of addressing the issue is to consider the period for which Mr Pezzimenti would have been employed by Rotary, but for the contravening conduct. That is the approach preferred by Rotary.
Mr Pezzimenti contends that there is no principle of law that in the circumstance of a clearly fraught employment relationship it is appropriate to consider that the employer would have in any event been entitled to exercise any lawful power it had to end the employment contract in a way most beneficial to itself. I accept that the question for this Court on the assessment of compensation is what would or might have occurred in the absence of the contravention, with the assessment being by way of the degree of probability of the various alternative outcomes.
That involves an assessment of the probabilities and possibilities of a counter-factual to the contravention as found.
The facts
This Court has found that Rotary is liable, hence it follows that by its contravening conduct, Rotary summarily terminated Mr Pezzimenti’s employment. That resulted directly in Mr Pezzimenti having to seek alternative senior managerial positions from a position of being unemployed because of his employment having been terminated for cause. Given Mr Pezzimenti’s age, the result has been two years of failure to secure such positions. The probability is that will continue indefinitely. There is however a question whether Rotary would have terminated the employment in any event.
Mr Huerta did not give evidence addressed to that question. Mr Switzer as Rotary’s Global Director of Human Resources, was the officer in a position to give authoritative evidence on that question. Despite filing and serving an affidavit from Mr Switzer in the proceedings, Rotary did not call him. His affidavit as tendered does not assist other than to confirm in general terms Rotary’s concerns about Mr Pezzimenti’s performance which were the cause of the PIP.
I reject the contention by Rotary that had the employment relationship not been terminated on 30 June 2017, it would probably have ended within a “short time period” thereafter, for the following reasons:
a)first, Rotary led no evidence to that effect. Rotary was the only party that could give evidence on the question, and if it were the fact, it is to be expected that evidence would have been led to that effect;
b)secondly, the evidence shows that Rotary would not terminate the employment of an International Office Manager (as Mr Pezzimenti was), without cause:
i)Mr Huerta in cross-examination referred to the status of International Office Managers and their relationships, and the importance of ensuring that before any were terminated the General Secretary of Rotary was on board with the decision;[96]
ii)although the employment contract provided for termination without cause, Rotary was meticulous in giving reasons for the termination.[97] Rotary regarded it as important that if there was to be a termination it would be explained with reasons;[98]
iii)no single reason was sufficient for such a termination and rather Mr Huerta relied upon all reasons which existed at 27 June 2017;[99]
c)thirdly, Rotary does not submit that there was any cause other than the impugned causes then existing that would have resulted in it terminating the employment; and
d)fourthly, in circumstances where an employment relationship between Rotary and a senior person in an international office was to end, Rotary’s preferred approach was the formulation of a succession plan, which enabled it to capitalise as much as possible on the individual’s goodwill and connections. This is evidenced by Mr Huerta’s embracing that approach with Mr Allen.[100]
[96] Transcript (T) 68.37–46; 81.34–38.
[97] CB 276–277.
[98] Huerta [123] and [124] CB 177
[99] T104.42–105.43.
[100] at CB 219 fourth dot point.
While it is correct to say that in 2016 Mr Huerta had concerns about Mr Pezzimenti’s performance and competence, the nature of those concerns is important. Mr Huerta described them in his affidavit.[101] Mr Huerta hoped and expected that his concerns would be addressed. That evidence is reinforced as follows:
a)the purpose of the PIP was “to clarify … expectations and provide [the applicant] with an opportunity to remedy deficiencies in [his] performance”;[102] and
b)Mr Huerta specifically turned his mind to whether he would reprimand Mr Pezzimenti or issue a warning to him. Mr Huerta did not do so but rather elected to proceed down the PIP path.[103]
[101] CB 165, 166.
[102] CB 195.
[103] T 60.42–47.
Further, as submitted by Mr Pezzimenti, the PIP identified both broad “performance objectives” and specific “deliverables” against each of those broad performance objectives.[104] Having specified discrete deliverables to be delivered in the relatively short time span of the PIP, Mr Huerta was initially satisfied that those deliverables had been or were likely to be substantially met. That is why in Mr Huerta’s email dated 16 March 2017, following the meetings in Parramatta, Mr Huerta addressed broader and longer term deliverables against the first and second objectives. Importantly, the deliverables specified on 16 March 2017, with respect to the Policies and Procedures Handbook were specified to be delivered by the end of the calendar year, that is, by the end of 2017.[105] Thus, as at 16 March 2017 Mr Huerta’s state of mind was that Mr Pezzimenti’s performance as a manager was still not up to scratch, but it had improved and Mr Pezzimenti was to be required to continue to improve. It is likely that Mr Huerta expected that would continue to the end of 2017 at least.
[104] CB 197 and 198.
[105] CB 219.
It may also be accepted that as time passed Mr Huerta developed further concerns, including about Mr Pezzimenti’s disclosures to Rotary’s International Director, Mr Trevaskis. However, Mr Huerta’s responses at T 104.41 to T105.44 show that those concerns alone would not have led Rotary to terminate the employment. Further, that concern is connected to the commencement of these proceedings.
There is no basis to infer that any matters which became apparent at hearing would have become apparent to Rotary and led it to act by terminating the employment in the absence of these proceedings. Further, the matters upon which Rotary relies are directed to the responses of Mr Pezzimenti and not to the thinking and decision-making processes of Rotary. It is the thinking and decision-making processes of Rotary, which are of relevance to the assessment of damages.
Rotary refers to the written warning dated 8 November 2016 at CB 207 – 208. The warning itself shows that termination of employment was not to be considered because of the subject matter of the warning but rather that “any further instances of unacceptable conduct may result in further disciplinary action up to and including termination of your employment”. Further, the subject matter of the warning was addressed in evidence.[106]
[106] Pezzimenti 1 [51]–[56], CB 31–32.
I place no weight upon the show cause notices dated 5 April 2017 and 22 June 2017. The assessment of quantum follows my finding that those notices and the subsequent termination of employment were issued for reasons which included a proscribed reason.
Further, I find, based on the doctor’s certificate accepted into evidence, that Mr Pezzimenti was unfit for duty on 29 June 2017. In addition, I accept Mr Pezzimenti’s evidence that he had understood that he had provided an explanation for his non-attendance by letters from his solicitors.[107]
[107] Those letters are at CB 156 and 159-160.
Conclusion as to damages
Rotary has failed to adduce any evidence to show that had it not been affected by a proscribed reason, it would nevertheless have acted as it acted and when it acted for reasons including a proscribed reason.
Further, had the notices not been issued, and the subsequent termination of employment on 30 June 2017 not occurred, it is more probable than not that Rotary would have adopted one of two courses:
a)persevered for a time with the employment and required Mr Pezzimenti to continue to improve his management style in accordance with the email dated 16 March 2017;[108] or
b)negotiated with Mr Pezzimenti a transition and exit plan.
[108] CB 219.
Had the employment been persevered with, it would have continued at least until the end of 2017 and there would not have been any period of unemployment during 2017.
Had Rotary and Mr Pezzimenti negotiated an exit plan, Mr Pezzimenti could have and would have sought the alternative employment he has been seeking from the position of holding a senior and prestigious post with a highly regarded international charity. In the circumstances, I infer that had there been an exit plan with a period of approximately four to six months, Mr Pezzimenti was more likely in that time to have found equivalent and suitable employment. There would not have been a period of unemployment.
As noted above, Mr Pezzimenti will become eligible to apply for the age pension in 2022. He would be unlikely to continue to seek full time employment after that age. If he is not eligible for the age pension, that will be because he has other income and assets to support himself, including superannuation, so as to reduce or eliminate his need to work.
Rotary should pay compensation for the period from Mr Pezzimenti’s dismissal on 30 June 2017 until 30 June 2018, at which point there is a fair likelihood that Rotary would have managed a transition and exit policy, which, as noted above, would have enabled Mr Pezzimenti to obtain suitable alternative employment. It follows that Rotary should compensate Mr Pezzimenti for the 12 month period when his employment was terminated prematurely. The appropriate amount of damages to award is therefore $205,342. I will order that Rotary pay Mr Pezzimenti that amount within 28 days.
I will hear the parties in relation to any outstanding issues.
I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 26 August 2019
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