Simon Ronchi v Johns Lyng Group - [2022] FWCFB 133

[2022] FWCFB 133

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Simon Ronchi
v

Johns Lyng Group

(C2022/1588)

VICE PRESIDENT CATANZARITI
deputy president clancy
commissioner bissett

SYDNEY, 22 JULY 2022

Appeal against decision [2022] FWC 326 of Commissioner Yilmaz at Melbourne on 16 February 2022 in matter number U2021/7270 – appeal dismissed.

Mr Simon Ronchi (the Appellant) has lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (Cth) (the Act) for which permission to appeal is required against a decision[1] (the Decision) of Commissioner Yilmaz (Commissioner) issued on 16 February 2022. The Decision dealt with an application made pursuant to s.394 of the Act for an unfair dismissal remedy.

The Appellant alleged that he was unfairly dismissed from his employment with John Lyng Group (JLG or the Respondent). In the Decision, the Commissioner concluded that the Appellant’s dismissal was procedurally unfair having regard to the meeting that occurred on 27 July 2021. The Commissioner did not find that reinstatement was appropriate but awarded the Appellant compensation equivalent to one week’s wages.

This matter was listed for permission to appeal and the merits of the appeal. Accordingly, directions were issued for the filing of material by both parties. Both parties indicated that they consented to the appeal being determined on the papers without the need for oral submissions at a formal hearing. Accordingly, pursuant to s.607(1) of the Act, the appeal was conducted on the basis of written submissions only.

For the reasons that follow, permission to appeal is granted and the appeal is dismissed.

Decision under appeal

The Appellant was employed as the OHS Manager Victorian Insurance Brands from 2 March 2020 until his dismissal on 27 July 2021.

The Respondent submitted that the Appellant’s dismissal was not harsh, unjust or unreasonable and that the dismissal was due to unsatisfactory conduct. Specifically, they submitted three valid reasons for the Appellant’s dismissal:

1.   the Appellant sent two concerning text messages to Mr T Barber, State Manager Victorian/Tasmanian Insurance Building Services Business;
2.   the Appellant engaged in work that was in conflict with and a breach of his employment contract; and
3.   the Appellant neglected his duties from 23–26 July 2021.

Text Messages

On 12 July 2021 at 12:24pm, Mr T Barber received an anonymous text message which stated: “Tys I lovf Nij we r together when yr away forgive her”. On 17 July 2021, he received another anonymous text message which stated: “Hope the move from braden brae is going well. Ill b with Nikki soon xxx”.

Mr T Barber submitted that he believed the first text message insinuated that his wife was having an affair and that he found the second message concerning as it revealed knowledge of his personal residential details. Mr T Barber discovered the location of the pay phones from which the text messages were sent through a Google search. Mr T Barber then informed his father, Mr L Barber (Chief Operations Officer) of the text messages.

The Respondent submitted that…

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] FWCFB 133
Decision Date: 22 JULY 2022

CaseChat Overview and Summary

The Fair Work Commission (FWC) heard an appeal by Simon Ronchi against a decision that his dismissal by John Lyng Group (JLG) was unfair. The appeal was allowed, but the appeal itself was dismissed. The appeal concerned an unfair dismissal remedy sought by Mr Ronchi, who alleged he was unfairly dismissed from his role as the OHS Manager for Victorian Insurance Brands. JLG submitted that Mr Ronchi's dismissal was due to his unsatisfactory conduct, including sending concerning text messages to a colleague, engaging in work that conflicted with his employment contract, and neglecting his duties. The Commissioner found that the dismissal was procedurally unfair but did not find it to be harsh, unjust or unreasonable. The appeal's primary issue was whether the FWC erred in not finding the dismissal to be harsh, unjust or unreasonable. The Commission found that while the Commissioner did not explicitly state that the dismissal was harsh, unjust or unreasonable, it was clear that she had formed the view that the dismissal was unfair. Therefore, even if the Commissioner had made this error, it would not have changed the outcome of the proceedings. The appeal was dismissed on the basis that no arguable case of appealable error was made out. Permission to appeal was granted because it was in the public interest to do so. The appeal did not attract the public interest because it did not raise issues of importance and general application, nor was there a diversity of decisions at first instance that required guidance from an appellate court. The appeal did not manifest an injustice, nor were the legal principles applied disharmonious when compared with other recent decisions dealing with similar matters.

Orders