Simon Ronchi v Johns Lyng Group
[2022] FWCFB 133
•22 JULY 2022
| [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 | 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 the Appellant was seen by an employee at the pay phone in question on the day and time the first text message was sent. Mr L Barber gave evidence that due to the content of the texts, he held concerns for his son and daughter-in-law (also an employee) and instructed the Executive Assistant for the executive management group to engage a private investigator. The private investigator submitted that video evidence from a clinic in the vicinity of the pay phone showed the Appellant walking in the direction of the pay phone before the text message was sent and returning from the pay phone after it was sent.
Conflict of interest
On 24 July 2021, the Appellant sent an email to three regional Victorian business partners promoting a demolition company, Demotec, which was registered in the Appellant’s name. The email stated: “I am proud to acknowledge that Demotec have recently agreed to partner with regional JIG with all our demo work moving forward.” He then referred to Demotec as the “preferred contractor”. The Appellant tried to recall the email the following morning. The Respondent submitted that the conduct was in breach of clause 82 of the Appellant’s contract of employment and that they were unaware of any business interest reported by the Appellant outside of his work for them.
Neglected duties
Mr L Barber requested information from IT regarding the Appellant’s email activity from 23–26 July 2021. The report contained limited email activity. The surveillance of the Appellant’s activities by the private investigator revealed that the Appellant attended two motels unrelated to work and did some light shopping during work hours. Even though he attended three work sites, the Respondent determined that he did not perform his duties as required. They also considered the lack of email activity over the two days to form the view that little business activity had taken place.
Meeting
On 27 July 2021, Mr Venditti and Mr L Barber met with the Appellant to discuss ‘some issues and concerns’. The Respondent submitted that during the meeting the Appellant changed his story about Demotec, firstly saying he sold the business then that he did not, that it was his friend’s business, even though the ASIC record showed the business was in his name. Further, the Respondent submitted that the Appellant denied any knowledge of any text messages, stating that he did not know text messages could be sent from a pay phone and that he was not at the pay phone but simply just lived in the area. The Respondent told the Appellant that if he was open and honest they could work through his indiscretions, however the Appellant remained defensive and closed off to the discussion. Finally, the Respondent informed the Appellant he had been observed by a private investigator. The Respondent submitted that this made the Appellant agitated but he continued to deny the conduct described.
The Respondent submitted that the meeting ended when the Appellant asked what their intentions with his employment were, stating that in his view a decision was already made. Mr Venditti gave evidence that during the meeting the Appellant spoke negatively about Mr L Barber and JLG, making comments about its culture and insinuating that there were frequent improper business practices. Mr L Barber submitted that he decided to dismiss the Appellant effective immediately based on the evidence before him and the Appellant’s responses during the meeting. The Appellant was paid two weeks’ pay in lieu of notice.
Appellant’s Submissions
The Appellant submitted that his dismissal was harsh, unjust and unreasonable under s.387 of the Act as the dismissal failed to meet procedural fairness requirements including the Respondent’s own professional ethics and standards where his swift and immediate dismissal was indicative of a premeditated plan to dismiss him. The Appellant submitted that the Respondent made assumptions about his conduct and that dismissal was a disproportionate response to the alleged conduct which should have only warranted a warning. The Appellant described threats to involve the police and contended that the Respondent breached his privacy by sharing his personal address with an investigator. In respect of the conflict-of-interest email, the Appellant does not deny sending it but stated that it was a draft intended to gather feedback and it did not compete with the Respondent’s business.
The Commissioner then considered the factors in s.387(a)-(h) of the Act to determine whether the dismissal was harsh unjust or unreasonable.
Valid reason for dismissal related to capacity or conduct – s.387(a)
The Respondent relied on three reasons for the Appellant’s dismissal: the text messages; conflict of interest email and the neglect of duties. Turning to the text messages first, the Commissioner accepted the Respondent’s evidence that the Appellant was the person who sent the text messages to Mr T Barber. The Commissioner then considered whether the text messages constituted serious misconduct under the Fair Work Regulations 2009 reg.107. The Commissioner was not satisfied the text messages met the requirements of reg.107 to constitute serious misconduct. Nonetheless, the Commissioner found that the text messages were serious, inappropriate, and intended to cause harm between employees and that this conduct was wilful and inconsistent with the Appellant’s employment obligations. Noting that the second text message was sent on a Saturday, the Commissioner then considered the principles of Rose v Telstra[2] to determine whether the Appellant’s out of hours conduct had a relevant connection to the employment relationship. The Commissioner was satisfied that the text messages were connected to the Appellant’s employment on the basis that he sent the message to his senior manager, implicated another employee and the content was intended to cause harm between employees, therefore finding that the conduct was incompatible with his duty was an employee.
Having regard to the conflict-of-interest email, the Commissioner rejected the Appellant’s submissions and found that the email was a breach of the Appellant’s employment contract and his common law duties of fidelity and good faith.
Finally, the Commissioner concluded that based on the evidence the Appellant did not fulfil his contractual obligations over 23–26 July 2021 and the Respondent had a valid reason to be concerned with the Appellant’s conduct. Ultimately, the Commissioner found that the reasons for dismissal were valid.
Notification of valid reason – s.387(b)
The Commissioner found that the allegations regarding the Appellant’s conduct were put to him during the meeting of 27 July 2021 and that this did not weigh in favour of the Appellant.
Opportunity to respond to any reason related to his capacity or conduct – s.387(c)
While the Commissioner was satisfied that the Appellant had an opportunity to respond, she was not satisfied that he was given a genuine opportunity to consider the seriousness of the allegations and the breadth of evidence against him, particularly in light of the manner in which the meeting escalated.
Unreasonably refuse to allow a support person – s.387(d)
The Commissioner found that the Respondent did not unreasonably refuse the Appellant support person.
Warned about unsatisfactory performance before the dismissal – s.387(e)
The Commissioner accepted that the reasons for dismissal relate to conduct and not performance and therefore a disciplinary process of warnings was not relevant.
To what degree would the size of the enterprise and degree of human resource expertise be
likely to impact on the procedures followed in effecting the dismissal? – s.387(f) and (g)
Taking these factors into account, the Commissioner noted that JLG is not a small employer and has experienced internal human resources personnel. The Commissioner considered that it would have been apposite to have controlled the discussion from escalating into a dismissal within the space of a short meeting. Further, noting the serious nature of the allegations and the breadth of evidence against the Appellant, it would have been more appropriate to give the Appellant an opportunity to digest the allegations and show cause why he should not be dismissed. Ultimately, the Commissioner found it was conceivable that a different outcome may have occurred if the Appellant was afforded greater procedural fairness, particularly as the Respondent told the Appellant that if he had admitted to the conduct alternative options may have been considered. The Commissioner found this factor weighed in favour of the Appellant.
Other relevant matters – s.387(h)
Having regard to other relevant matters, the Commissioner noted that the Appellant was denied the opportunity to consider the allegations against him before his employment was terminated. The Commissioner also accepted that the Appellant was paid two weeks in lieu of notice and that this weighed in the Respondent’s favour. The Commissioner found it was relevant that the Appellant showed no regard for his common law duty of fidelity and good faith or the express obligations of his contract and that this weighed against him. The Commissioner rejected that the Appellant’s age and vaccination status were relevant factors.
Conclusion
The Commissioner then weighed up all the factors in s.387 of the Act and the circumstances of the case to find that Appellant’s dismissal was procedurally unfair.
The Commissioner then considered the factors in s.392 of the Act to determine the appropriate amount of compensation, noting that reinstatement was not sought by the Appellant and would be inappropriate in the circumstances. The Commissioner awarded the Appellant one week’s wages ($1,634.62) as this was equivalent to time the Appellant is likely to have remained in employment had the meeting with the Respondent not escalated into a sudden dismissal.
Principles on appeal
The Decision subject to appeal was made under Part 3-2- Unfair Dismissal – of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). Section 400 of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.
The public interest test in s.400(1) is not satisfied simply by the identification of error or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or they result in counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…”[3]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[4] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
Grounds of appeal and submissions
The Appellant’s grounds of appeal are summarised and distilled to be as follows:
1. The Decision should be set aside as it is ‘colourable’, ‘ultra vires’ and an ‘outrageous defiance of logic’ which failed to reconcile facts with the outcome of the Decision. The Decision contains several significant errors of fact. Notably that the Commissioner erred by finding:
· the Appellant sent the anonymous text messages to Mr T Barber;
· the conflict-of-interest email was sent intentionally; and
· that the Appellant neglected his duties on 23–26 July 2021.
2. The Decision breached the Appellant’s privacy by commenting on the Appellant’s vaccination status and through the Respondent’s surveillance of him. The Appellant refers to the Privacy Act 1988, Charter of Human Rights and Responsibilities Act s.13 and Universal Declaration of Human Rights article 12.
3. The Decision should be set aside because the Commissioner and the Commission do not have the power to deal with this matter or they have exceeded their power.
4. The Commissioner erred by finding that the Respondent was self-represented when the Respondent had legal advice throughout the proceedings. The Appellant refers to the Acts Amendments Act and Repeal (Courts and Legal Practices Act) 2003 and submits that the legal support exceeded research and review as the Respondent received a tactical advantage.
5. The Decision should be set aside as it defamed the Appellant, particularly through an article published about the Decision in the media.
6. The Decision should be set aside because the Commissioner was biased.
Consideration
We have considered the Decision and find error in the Commissioner’s finding with respect to s.385 of the Act.
Section 385 of the FW Act states as follows:
385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal
Code; and(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
In determining whether a person has been unfairly dismissed, s.385(b) of the Act requires the Commission to be satisfied that the dismissal was harsh, unjust or unreasonable. To make a finding that the dismissal was harsh, unjust or unreasonable it is well established, that the Commission must take into account each of the matters set out in sss.387(a) – (h) of the Act.[5]
The Commissioner clearly undertook the task by considering each of the factors in s.387 and by making findings with respect to weight to be given to each factor. However, in summing up her findings with respect to s.387 the Commissioner respectfully failed to make a finding as to whether the dismissal was in fact harsh, unjust or unreasonable as required by s.385. The relevant parts of the Decision are extracted below:
[103] I have considered each matter specified in section 387 and in reaching my decision I have considered whether the dismissal was harsh, unjust or unreasonable. I have weighed up all of the circumstances of the case.
[104] I am satisfied that while Johns Lyng had valid reasons based on Mr Ronchi’s conduct, 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 in relation to the three reasons that led to his dismissal. He 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. On this basis the relevant considerations in s.387 weigh in favour of a finding that the dismissal was procedurally unfair.
Having considered the above, we are satisfied there is an arguable case of error in that the Commissioner has failed to make the requisite finding that the dismissal was harsh, unjust or unreasonable and therefore unfair. This failure to make the requisite finding is important as it is well established that, even if a dismissal is found to be procedurally unfair, it may not be otherwise harsh, unjust or unreasonable when all of the relevant matters are taken into account. We have considered whether this appeal attracts the public interest and we are satisfied that it is in the public interest to grant permission to appeal pursuant to s.400(1) of the Act. However, we are not satisfied that the appeal should be allowed based on this error.
While the Commissioner has not expressly stated that the Appellant’s dismissal was harsh, unjust or unreasonable, it is clear that she has formed the view that the Appellant’s dismissal was unfair. This is demonstrated from the explicit finding that the “…considerations in s.387 weigh in favour of a finding that the dismissal was procedurally unfair” and that she considered an appropriate remedy – something she was not required to turn her mind to unless she found the dismissal to be unfair (s.390(1)(b) of the Act). Further, while the Act requires the Commission to state whether the dismissal was unfair and the Decision has not done this, we are nonetheless satisfied that despite the manner of expression adopted at paragraphs [103]-[104] of the Decision she still turned her mind to this question. Therefore, even if the Commissioner had not made this error and explicitly found that the dismissal was harsh, unjust and unreasonable it would not change the outcome of the proceedings as she was nonetheless satisfied that the Appellant’s dismissal was unfair.
We will now deal with the Appellant’s grounds of appeal:
Grounds 1 and 3
Ground 1 asserts that the Decision is ‘colourable’, ‘ultra vires’ and defies logic. Ground 4 takes issue with the Commission’s power to deal with the matter. Plainly, these grounds fail to disclose any arguable case of appealable error. The Commissioner’s findings were orthodox and open to her on the evidence and the Commission had power to deal with the Appellant’s unfair dismissal application and exercised that power appropriately.
Additionally, in Ground 1 the Appellant alleges there are several significant errors of fact in the Decision. The Appellant indicates errors in the findings that the Appellant: sent the anonymous text messages to Mr T Barber, sent the conflict-of-interest email intentionally, and neglected his duties on 23–26 July 2021. Notably, these three alleged errors are the reasons relied upon by the Respondent to dismiss the Appellant and which were accepted by the Commissioner as valid reasons for the Appellant’s dismissal, pursuant to s.387(a). The Appellant is therefore in effect challenging the Commissioner’s finding regarding a valid reason for his dismissal.
It is apparent from the Decision, that the Commissioner considered each of the three reasons for the Appellant’s dismissal, as well as the relevant law and evidence to conclude the reasons relied upon for dismissal were sound, defensible and well founded. We therefore find that the Commissioner approached the task of assessing the Appellant’s conduct and whether it founded a valid reason for his dismissal in an orthodox manner. No appealable error is disclosed.
Ground 2
Ground 2 alleges that the Decision breached the Appellant’s privacy through the Respondent’s surveillance of him and by discussing his vaccination status. In terms of the Appellant’s vaccination status, the Commissioner noted that she had not received any submissions from the Appellant on this and did not attach any weight to this matter. The Appellant’s concern with the Respondent’s surveillance of him was already put to the Commissioner at first instance and she considered this submission at [14] of the Decision. Accordingly, we find no case of appealable error in relation to this ground.
Ground 4
Ground 4 asserts that the Commissioner erred by finding that the Respondent was self-represented as they received legal advice throughout the proceedings. At first instance, the Respondent was denied legal representation during the hearings and was represented by its HR Director. Whether the Respondent received legal advice outside of this is immaterial.[6] We therefore find that no arguable case of error is made out in relation to this ground.
Ground 5
Ground 5 alleges that the Decision is defamatory against the Appellant. We find that there is nothing in the Commissioner’s decision which can be characterised as anything other than appropriate conclusions on the facts and matters before the Commissioner. Further, it is not uncommon for decisions of the Commission to be reported in the media. The requirement to publish decisions, conduct public hearings and the capacity for the media to report is an important part of the process of open justice and transparency in decision-making and it does not make the Decision defamatory in nature. Therefore, while the Appellant may be aggrieved by certain findings this does not give rise to appealable error.
Ground 6
Ground 6 alleges that the Commissioner was biased towards the Respondent. There is nothing in Decision or in the Appellant’s submissions that would lead a fair-minded observer to conclude that the Commissioner did not bring an open mind to the determination of the matter. We also note that the question of bias is a matter that should have been, but was not, raised in the initial proceedings. We reject this ground of appeal.
Conclusion
For the reasons set out above, we order as follows:
1.Permission to appeal is granted.
2.The appeal is dismissed.
VICE PRESIDENT
Hearing details:
Matter decided on the papers.
Final written submissions:
Appellant, 31 March 2022.
Respondent, 21 April 2022.
[1] [2021] FWC 326 (‘Decision’).
[2] [1998] AIRC 1592 (3 December 1998).
[3] (2010) 197 IR 266 at [27].
[4] Wan v AIRC (2001) 116 FCR 481 at [30].
[5] Dawson v Qantas Airways Limited[2017] FWCFB 1712 at [18]; Sawyer v Melsteel[2011] FWAFB 7498 at [14].
[6] Fair Work Commission Rules 2013 rule 12.
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