| [2022] FWC 326 [Note: An appeal pursuant to s.604 (C2022/1588) was lodged against this decision – refer to Full Bench decision dated 22 July 2022 [[2022] FWCFB 133] for result of appeal.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Simon Ronchi
v
Johns Lyng Group
(U2021/7270)
MELBOURNE, 16 FEBRUARY 2022 |
Application for an unfair dismissal remedy
[1] On 17 August 2021, Mr Simon Ronchi made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Johns Lyng Services Pty Ltd (Johns Lyng). Mr Ronchi was employed as the OHS Manager Victorian Insurance Brands from 2 March 2020 until his dismissal on 27 July 2021. Johns Lyng dismissed Mr Ronchi for three reasons: sending inappropriate messages to the Victorian State Manager, promoting and operating his own business and a lack of deliverables during working hours. Mr Ronchi is seeking compensation of 12 months wages.
[2] Johns Lyng contends that the dismissal was not harsh, unjust or unfair taking into account the requirements of s.387 of the Act.
[3] It is not in dispute that Mr Ronchi’s application satisfies the requirement of s.382 (a) minimum employment period and s.382 (b) protection from unfair dismissal on the basis that the sum of the person’s annual earnings is less than the high income threshold. There were no jurisdictional matters raised.
[4] The matter was listed for hearing on 6 and 7 December 2021. The Respondent was denied legal representation and was represented by its HR Director.
[5] Following the hearing the parties were given an opportunity to file further materials in respect to questions on notice, including evidence mitigating any loss should I consider compensation.
[6] Mr Ronchi gave oral evidence.
[7] Johns Lyng called six witnesses:
• Mr Daniel Venditti, National HSE Risk and Compliance Manager;
• Ms Gemma Sholl, Executive Assistant;
• Mr Matt Streat, Managing Director of Investig8 Pty Ltd;
• Mr Nicholas Graham, Operations Manager Insurance Building and Suncorp Major Loss Victoria;
• Mr Tyson Barber General Manager Victorian Insurance Brands; and
• Mr Lindsay Barber, Chief Operations Officer.
[8] Both parties were self-represented.
[9] Johns Lyng Services Pty Ltd delivers specialist building services as part of the Johns Lyng Group which is a diverse business providing construction, building and support services. Mr Ronchi was employed in the national OHS team as Victorian HSE Manager in the insurance building services business.
[10] When Mr Ronchi commenced employment in March 2020, he was assigned to Mr Tyson Barber’s Victorian/ Tasmanian Insurance Building Services Business. The role entailed site and administration work as the HSE representative for the region. Mr Ronchi described his duties as providing OHS support to nine internal Johns Lyng companies, which includes advice, training education and mentoring services to staff and contractors, checking on site compliance, preparation of safety documents and reporting back to management. He described his work as 80% away from the office and most often from his vehicle. Mr Ronchi reported to Mr Daniel Venditti, who joined the organisation on 6 April 2021. Mr Venditti replaced the previous National OHS Risk and Compliance Manager.
[11] On 27 July 2021, Mr Venditti called Mr Ronchi into Mr Lindsay Barber’s office to discuss “some issues and concerns”. Present at the meeting were Messrs Ronchi, Lindsay Barber and Venditti. While in the meeting, inquiries into text messages Mr Ronchi allegedly sent to Mr Tyson Barber among other matters escalated into his immediate dismissal.
[12] Mr Ronchi submits that the summary dismissal was harsh, unjust and unreasonable under s.387 of the Act. He further submits that the dismissal failed to meet procedural fairness requirements, including the Respondent’s own professional ethics and standards. 1
[13] He states that “assumptions” were made concerning the “allegations of wrongdoing” and the “baseless assertions” “should be best characterised as indiscretions by no means deserving of a summary dismissal, instead consideration by issuing a warning, a more fitting and appropriate outcome, without reservation.” 2
[14] Mr Ronchi goes on to describe threats to involve the police and the use ofcoercion to elicit an admission of guilt. He also states that the Respondent sharing his personal address with an investigator was a breach of his privacy under of the Privacy Act 1988 (Cth). In respect of the dismissal, Mr Ronchi submits its “swift and immediate” nature is indicative of a premediated plan. He also states that the dismissal was disproportionate to the alleged conduct. He describes Mr Lindsay’s actions as “inflamed by anger and revenge” to hold someone accountable for an act against his son. 3
[15] Mr Ronchi gave evidence that with the departure of three staff from the national OHS team and demands from Mr Venditti, he experienced an increased workload resulting in stress and anxiety. He states that he complained in writing to Mr Tyson Barber in May 2021 that he held concerns about his manager’s understanding of the business, and this impacted his own role thereby putting “staff and people’s lives at risk”. He states he did not receive a response to his written complaint. 4
[16] Mr Ronchi describes his respect for the Tasmanian General Manager and a conflict with the business Suncorp representative that resulted in a loss of a significant contract. Mr Ronchi attributes this loss of business to Mr Tyson Barber and he posted on LinkedIn, a comment upon reading the General Manager’s post announcing his departure from the business. Mr Ronchi submits that he did not find the post inappropriate to the business but did withdraw his post after he was asked to do so from his National Manager. 5
[17] In relation to the email which the Respondent describes as demonstrative of a conflict of interest, Mr Ronchi does not deny sending it, but does state that it was a draft email intended to gather feedback, was intended to explore market opportunities, and does not compete with or offer to provide services to the Respondent’s businesses. 6
[18] Johns Lyng submits that Mr Ronchi’s dismissal was not harsh unjust or unreasonable and that the dismissal was due to unsatisfactory conduct. Specifically, it submits that it had valid reasons for the dismissal which relate to:
• Two text messages to Mr Tyson Barber (State Manager Victorian/ Tasmanian Insurance Building Services Business) that were designed to cause relationship problems in his marriage;
• He engaged in work that was in conflict and a breach of his employment contract; and
• Neglected his duties during the days 23 and 26 July 2021.
[19] Johns Lyng called six witnesses, and all were cross examined by Mr Ronchi.
Evidence of Mr Lindsay Barber
[20] Mr Lindsay Barber gave evidence that his son Tyson Barber is manged by him and had worked for the company for some 11 years. He states that Mr Tyson Barber informed his father that he received two anonymous text messages. On 20 July 2021, the Executive General Manager of Finance (EGMF) informed him that the Executive Assistant for the executive management group had seen the Applicant at the Greythorn shopping strip pay phone at the time of the first text message. He states that due to the content of the texts, he held concerns for his son and daughter-in-law (also an employee) and instructed the EGMF to engage a private investigator. Mr Barber then learnt that the EGMF had already directed Mr Tyson Barber to authorise the HR Director to engage an investigator.
[21] Mr Barber also gave evidence that his son informed him that the Applicant sent an email on 24 July 2021 to three regional Victorian business partners promoting a demolition company, Demotec, which is registered in the Applicant’s name. The email states “I am proud to acknowledge that Demotec have recently agreed to partner with regional JIG with all our demo work moving forward.” He then refers to Demotec as the “preferred contractor” and the email is signed off by Mr Ronchi. 7 The Applicant tried to recall the email the following morning.
[22] Mr Barber gave evidence that the conduct was in breach of clause 8.2 of the contract of employment. 8 Clause 8.2 provides:
“8.2 Without limiting the Employee’s duties to the Company, the Employee must not:
(a) Without the express written consent of the Company, engage in any business or activity which may conflict with or be harmful to the best interests of the Company, or any of its officers, employee, agents, contractors or consultants;
(b) Compete with the Company; or
(c) Without the express written consent of the Company, work for anyone other than the Company.” 9
[23] Mr Barber gave evidence that he was not aware of any business interests reported by Mr Ronchi outside of his work for the Company. Mr Barber also gave evidence that he requested information from IT regarding Mr Ronchi’s email activity from 23 July to 26 July 2021. The report contained limited email activity and it was attached to Mr Barber’s witness statement. 10
[24] Upon receiving a verbal report about the investigator’s findings from Mr Tyson Barber, Mr Lindsay Barber briefed Mr Venditti on the text messages, the result of the inquiries from IT, the investigator’s findings and information on the email sent to Victorian regional business partners. He directed Mr Venditti to arrange for the Applicant to come to his office. 11
[25] Upon Mr Ronchi’s attendance, Mr Barber allowed Mr Venditti to explain the concerns regarding the text messages, the apparent lack of work during the workdays as revealed by the IT report and the email sent. Mr Barber gave evidence that during the meeting Mr Ronchi 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.
[26] Mr Barber gave evidence that Mr Ronchi denied any knowledge of any text messages. Mr Barber stated that he recalled Mr Venditti providing details of the text messages, Mr Ronchi’s evidence was that he was not informed of the content of the emails and Mr Venditti gave evidence that he did not reveal the full content of the emails but did state that the emails were anonymous and sent from public phones. Mr Barber also stated that Mr Ronchi was informed that if he had sent the text messages that his employment would likely be terminated, however, if he were to admit to it, he would be prepared to consider “all options.” 12 He also gave evidence that he informed Mr Ronchi that there was a witness that saw him at the public phone at the time of the first text and CCTV footage that put him in the vicinity of the pay phone at the time of the second text. He also informed Mr Ronchi that he had been observed by a private investigator on the Friday and Monday. He states that Mr Ronchi was agitated but continued to deny the conduct described. He decided to dismiss him based on the evidence before him and Mr Ronchi’s responses during the meeting. He stated that he advised the HR Director to pay him two weeks in lieu of notice.
Evidence of Mr Daniel Venditti
[27] Mr Venditti gave evidence that when he joined the organisation the reputation of the national OHS team was poor, there were inadequate structures and processes, the team did not work as a team, there was little supervision of the OHS team and little accountability among other issues. Mr Venditti gave evidence that Mr Ronchi would prefer to work off-site conducting site visits over the administrative component of the role. He also stated that Mr Ronchi rarely communicated his whereabouts and he had to be regularly monitored to ensure the completion of routine tasks, such as attendance at meetings, incident reporting and escalation, and general reporting. 13
[28] Mr Venditti gave evidence of the events of 27 July 2021. He stated that he was unaware of the text messages prior to being called into Lindsay Barber’s office just after lunch. He went to see Mr Ronchi and discovered he had left the office early that day. He states that around 3.00pm he called Mr Ronchi to return to the office to discuss “some issues and concerns” with himself and Lindsay Barber. He recalled Mr Ronchi stating that he did not know that text messages could be sent from a public pay phone and did not know what they were talking about. He also recalled Mr Ronchi stating that he was not in the phone box but lived in the area when informed that he had been seen in the phone box at the time the first text was sent.
[29] Mr Venditti also stated that he informed Mr Ronchi that he was monitored and had been seen in the area of the second phone when the second text was sent. He states that Mr Ronchi denied sending the texts and when he was informed that if he was open and honest that the Company could work through his indiscretions, he became closed off to the discussion and defensive.
[30] Mr Venditti states that the meeting ended when Mr Ronchi asked what their intentions with his employment were, stating that in his view a decision was already made. Mr Venditti stated that Mr Ronchi spoke negatively about Lindsay Barber and the Company, making comments about its culture and insinuated improper business practices were common and known. He recalls Mr Lindsay Barker then dismissing Mr Ronchi effective immediately.
Evidence of Ms Gemma Sholl
[31] Ms Sholl gave evidence that she knows the majority of staff at the Doncaster Office by name as she manages the ‘master remuneration spreadsheet,’ 14 but acknowledges that not all staff would know her. She also gave evidence that as the Executive Assistant to the C-suite she sits next to Mr Tyson Barber’s wife. Although she does not use her married name, Ms Sholl states that it is common knowledge in the office that the two are married.
[32] Ms Sholl describes one of her duties is to organise food and coffee for the executive team. She gave evidence that on 12 July 2021 she drove to the bakery in the Greythorn shopping strip. While waiting for the order she glanced outside the bakery and noticed Mr Ronchi in the telephone box which is just outside the bakery using his mobile phone and pressing the pay phone buttons. She states that she saw him then walk across the street to a white hatchback kia, come back to the phone, then walk back to the vehicle and drive off.
[33] Ms Sholl gave evidence that Mr Tyson Barber’s wife mentioned during a conversation on 19 July 2021, that her husband received two random text messages, one which caused them to fear for their safety. During the conversation, it was revealed that one of the texts was sent on 12 July and they were able to trace it to the phone box at the Greythorn shopping strip. Ms Sholl reported that she had seen Mr Ronchi at lunch time while she was at the bakery.
Evidence of Mr Matt Streat
[34] Mr Streat, Managing Director of Investig8 Pty Ltd, a licensed private investigator for 36 years gave evidence of his investigation of the anonymous text messages sent to Tyson Barber. Mr Streat was engaged to review the pay phones used to send the messages and any CCTV footage available on the days in question. He also observed Mr Ronchi over two days. On completion of the investigation, he provided a surveillance activity report on his findings. The report was tendered in evidence. 15
[35] Mr Streat gave evidence that he was able to view video evidence from a clinic in the vicinity of the pay phone which showed Mr Ronchi walking in the direction of the pay phone before the text message was sent and returning from the direction of the pay phone moments after the text was sent. Mr Streat gave evidence that he could not obtain a copy of the CCTV footage as the clinic advised it would not release it unless there was a request from Victoria police.
[36] The instructions for the job to Mr Streat was that there were two texts received by Mr Tyson Barber. The first was on Monday at 12.24pm on 12 July 2021 and the second on Saturday 5.36pm on 17 July 2021. The first text was sent from the Greythorn shopping strip and the second from Box Hill South. The report contained agent reports on Mr Ronchi’s movements over the two days of observation, video was taken and photographic stills provided including business searches for any businesses in the Applicant’s name.
Evidence of Mr Nicholas Graham
[37] Mr Graham gave evidence of his whereabouts on 12 July 2021. While Mr Graham was in the Greythorn shopping strip vicinity on the morning of 12 July, he attended a meeting with work colleagues from 8.30am to 9.50am at the Jolly Miller Café. After the meeting, he attended a site inspection at 10.00am in Brunswick West then from 11.30 – 12.30 was in Malvern. 16
[38] Mr Graham provided evidence because Mr Ronchi suggested that Mr Graham may have sent the text as he was in the Greythorn shops area.
Evidence of Mr Tyson Barber
[39] Mr Tyson Barber gave evidence that he has held the position of State Manager Victorian/ Tasmanian Insurance Building Services Business since 2017. The role overseas 21 businesses and share services including Health, Safety and Environment and Human Resources.
[40] Each business manager reports through to Mr Tyson Barber and following significant issues in the Tasmanian business earlier this year, two Tasmanian business partners exited the business. On 22 June 2021, a post by Mr Ronchi on LinkedIn regarding the exit of one of the Business Partners read:
“What the?? How many more surprises does JLG have. To many good people leaving”. 17
[41] The post was reported to Mr Barber and having considered the post to be unprofessional and disparaging, he states that he asked Mr Venditti to arrange a meeting with Mr Ronchi. The meeting of Messrs Barber, Venditti and Ronchi was held on 29 June 2021. Mr Barber gave evidence that he observed Mr Ronchi was openly frustrated with his request to delete the post and did not appear to understand that the comment reflected badly on the business. He gave evidence that Mr Ronchi did subsequently delete the post. However, he also gave evidence that the relationship between Mr Ronchi and himself became strained and awkward following that meeting. 18 Mr Ronchi challenged Mr Barber’s evidence that the relationship became strained after the meeting on 29 June 2021.
[42] Mr Barber gave evidence that on 12 July 2021, at 12:24pm he received an anonymous text message which stated “Tys I lovf Nij we r together when yr away forgive her” 19 A further text message was received on 17 July 2021, at 5:36pm which stated “Hope the move from braden brae is going well. Ill b with Nikki soon xxx”20 Both messages upset and unnerved Mr Barber and his wife Nikki. He gave evidence that he did not know who may be behind the messages insinuating that his wife was having an affair, and the second message was more concerning as it revealed knowledge of their personal residential details. Mr Barber discovered the location of the pay phones through a Google search.
[43] On 20 July 2021, Mr Tyson gave evidence that he was called into the EGMF office by his wife, where he was informed that Mr Ronchi had been seen at the Greythorn shopping strip pay phone at the time of the first text message. The EGMF requested Mr Tyson to speak to the HR Director to arrange an investigation through a private investigator. Mr Tyson also gave evidence of the investigation report by Mr Streat and despite the advice to go to the police Mr Tyson stated that he was asked to hold off by his father who wished to speak to Mr Ronchi.
[44] Section 390 of the Act provides that the Commission may order a remedy if it is satisfied that the Applicant is protected from unfair dismissal, and the Applicant is unfairly dismissed. Section 385 of the Act provides that a person is unfairly dismissed if the Applicant has been dismissed, and the dismissal was harsh unjust or unreasonable.
[45] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, I must take into account:
“(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the Commission considers relevant.”
[46] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 21
[47] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well-founded.” 22 The reason must be “defensible or justifiable on an objective analysis of the relevant facts”.23 Further, it is the role of the Commission to consider the employer’s reasoning to assess whether that reasoning is valid.24
[48] Johns Lyng relies on three reasons for the Applicant’s dismissal: the two text messages, a conflict of interest in breach of his contract of employment and neglect of duties over 23 and 26 July 2021.
[49] Johns Lyng contends that the two text messages constitute serious misconduct under the Fair Work Regulations 2009.
[50] Regulation 107 of the Fair Work Regulations 2009 provides:
Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer's business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee's employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault; or
(iv) sexual harassment;
(c) the employee being intoxicated at work;
(d) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
(5) For paragraph (3)(b), an employee is taken to be intoxicated if the employee's faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee's duties or with any duty that the employee may be called upon to perform.
[51] To be captured by the serious misconduct definition in Regulation 107, the conduct must meet each of the subregulations: wilful or deliberate behaviour that is inconsistent with the continuation of the contract of employment, causes serious or imminent risk to health or safety of a person or causes risk the reputation, profitability or viability of the employer’s business. In addition, subregulation 107 (3) lists the conduct captured by subregulation (1).
[52] The conduct relating to the anonymous texts allegedly sent by Mr Ronchi by their very nature are serious, inappropriate, and intended to cause harm between two employees of the Respondent or at the very least unsettle the relationship between Mr Barber and his wife.
[53] It is noted that there is no evidence to dispute that the texts were traced to two public phones from a location outside of work. The first text message was sent on Monday, a workday during the lunch break, while the second text message was sent on Saturday, not a workday. The conduct relating to the second text is arguably conduct out of hours of work.
[54] The Commission has considered whether out hours conduct has a relevant connection to the employment relationship. The Commission has taken a cautious approach when considering whether conduct during one’s private time is relevant or connected to the employment relationship. In Rose v Telstra, 25 the Commission determined that an employer has a right to control out of hours conduct where there is an impact on the employee’s express or implied terms of the contract, although there are circumstances that limit an employer’s capacity to dismiss an employee. Relevantly, in Rose v Telstra, the limited circumstances are characterised as:
“
• the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or
• The conduct damages the employer’s interests; or
• The conduct is incompatible with the employee’s duty as an employee. 26
In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.
Absent such considerations an employer has no right to control or regulate an employee’s out of hours conduct.”
[55] Relevant is the consideration whether the conduct, viewed objectively, is likely to cause serious damage to the employer and employee relationship or that the conduct is incompatible with the employee’s duty as an employee. The implied duties of an employee are fidelity and good faith. I note also in Mr Ronchi’s contract of employment, the express duties of faithful and diligent service and to act in the Company’s interests, are express terms in clause 8. 27
[56] I further observe that the attachments to Lindsay Barber’s witness statements make reference to Company policies of which I note includes a Code of Conduct Policy and Workplace Relationships & Affairs Policy among others. No policies other than motor vehicle and IT were tendered and therefore no consideration can be made as to their relevance in this matter.
[57] Vice President Ross cited leading authorities concerning the employee’s implied duty of fidelity and good faith in Rose v Telstra. Relevantly to this matter, he noted the comments of their Honours Starke and Evatt JJ:
“The mere apprehension that an employee will act in a manner incompatible with the due and faithful performance of his duty affords no ground for dismissing him; he must be guilty of some conduct in itself incompatible with his duty and the confidential relation between himself and his employer.” 28
[58] Johns Lyng contend that the private investigator’s report and the witness evidence of Ms Sholl is sufficient evidence to connect Mr Ronchi to both text messages, which they say constitutes serious misconduct and a valid reason for the dismissal.
[59] However, Regulation 107 further requires that the effect of the conduct causes serious or imminent risk to the health or safety of the person. Mr Tyson Barber’s evidence was that he and his wife were unsettled and distressed. Witness evidence in this regard was consistent with the witness statement. Mr Barber’s evidence in relation to the first text was “I viewed the message as an attempt to unnerve me, and potentially cause distress and relationship issues between Nikki and me. It made Nikki and I uneasy that someone would anonymously suggest she was having an affair” 29 In relation to the second text message he stated:
“The second text significantly unnerved me as the person who sent it clearly knew personal residential details about Nikki and me, given they knew we were moving house that day, and was potentially watching our movements.
It appeared to me that these 2 text messages were sent with the intent to cause me and Nikki distress, and to damage our relationship. We felt we were being ‘stalked’. Neither Nikki or me had any ideas as to who could be trying to harm us this way.” 30
[60] There was no evidence tendered of serious or imminent risk to the health or safety of either individual named in the texts. The seriousness or risk to health will depend on the circumstances of each case, and in this matter, while understandably any reasonable person would find the texts a serious matter and distressing, the evidence was that Mr Barber and his wife’s relationship appeared unshaken but they were fearful for their personal safety given the anonymity of the texts, and that personal details of their residential address was known, which raised suspicions that they may have been stalked.
[61] The third subregulation lists the conduct captured by the first subregulation. Interestingly, the expression of subregulation 3 contains an exhaustive list because the list is referred to in the following terms, “includes each of the following.” If the list was not intended to be exhaustive it would have used language to make the point clear such as, “may include the following”. The sending of the texts in my view is not captured by either item on the list in subregulation 3.
[62] During proceedings Mr Ronchi challenged the evidence of Mr Streat on the basis that his statement used the expression, “In my view it was likely the Applicant was the person in the CCTV footage I viewed.” 31 Mr Streat confirmed that the CCTV footage identified Mr Ronchi. In my view there is no reason to doubt the evidence of Mr Streat, he was shown a photograph of Mr Ronchi prior to commencing the job and observed him leaving his home, driving the company vehicle, and observed his behaviour over two workdays. I also note that Mr Streat observed that the subject in the CCTV footage was wearing the same clothing worn during the days of surveillance and the physical description matched Mr Ronchi’s. I observed Mr Streat to be a credible witness and considering the nature of his work and years of experience, I am satisfied that Mr Streat correctly identified Mr Ronchi for the purpose of the CCTV footage.
[63] Having satisfied myself that the evidence identifies Mr Ronchi in the CCTV footage which places him in the location at the time of the second text message, and I prefer the evidence of Ms Sholl over Mr Ronchi that she did witness Mr Ronchi at the public telephone at the time of the first text message, it can be concluded that the evidence reasonably on balance satisfied Johns Lyng that it was Mr Ronchi that sent the two text messages to Mr Tyson Barber.
[64] The second reason for the dismissal was that Mr Ronchi breached his employment contract by engaging in business in conflict with his employer’s interests. The evidence of breach of contract relied on by Johns Lyng was the email sent to the employer’s business partners on 24 July 2021 at 11.20 pm, and clause 8.2 of the contract of employment. The contract of employment reads:
“8.2 Without limiting the Employee’s duties to the Company, the Employee must not:
(a) without the express written consent of the Company, engage in any business or activity which may conflict with or be harmful to the best interests of the Company, or any of its officers, employee, agents, contractors or consultants;
(b) compete with the Company; or
(c) without the express written consent of the Company, work for anyone other than the Company.” 32
[65] The email sent to Johns Lyng' business partners provided the following message:
“Hi all
Recently the demolition association acknowledged a select number of companies for their professionalism and high regulatory standard in demolition.
One company was Demotec a demo company who was praised for their achievements in regulatory worksafe standards of safety and efficiency in completing jobs safely.
I am proud to acknowledge that Demotec have recently agreed to partner with regional JlG with all our demo work moving forward. This is a great opportunity for our regional partners to gain access to a high quality professional outfit where safety s at the forefront of their work practises.
As a preferred contractor. dont hesitate to contact them for demo quotes
Regards
Simon Ronchi
OHS Manager Vic/Tas
Johns Lyng Group..” 33
[66] Johns Lyng submit that the email was clearly sent by Mr Ronchi and he did not deny sending the email. Further, it submits that the content speaks for itself, it does promote Demotec and states that it agreed to partner with the Johns Lyng Group, suggesting an agreed partnership which was not the case. In addition, the email encourages the business partners to use Demotec “as a preferred contractor”. I do not accept the submissions of Mr Ronchi that Demotec was his friend’s business, and it was an attempt to obtain feedback, the email does not support the submissions and evidence of business ownership confirms that Mr Ronchi updated the business registration as late as 22 June 2021. Mr Ronchi tendered no evidence to support his submissions regarding Demotec or the email. Given the terms of the contract of employment and no evidence that Mr Ronchi had approval to promote or engage with a business outside of his work for the Respondent, the email was a breach of his contract of employment and his common law duties of fidelity and good faith.
Neglect of duties
[67] Johns Lyng rely also on a third reason for the dismissal, albeit to a lesser extent, being the alleged neglect of duties observed on 23 and 26 July 2021. The surveillance of Mr Ronchi’s activities by the private investigator revealed that Mr Ronchi attended two motels (and which Mr Ronchi admitted was unrelated to work) and did some light shopping during work hours and even though he attended three work sites, Johns Lyng determined that he did not perform his duties as required. Johns Lyng also considered the lack of email activity over the two days to form the view that little business activity had taken place.
[68] I note that Mr Lindsay Barber made the decision to dismiss Mr Ronchi predominantly because of his satisfaction that Mr Ronchi had sent the two texts and the email promoting Demotec, and that the lack of work over the two days of surveillance meant that he “did not have confidence in the Applicant’s integrity when responding to his questions about the text messages.” 34
[69] Mr Ronchi gave evidence that he enjoyed his work and that he was stressed due to workload following the departure of three OHS staff. Mr Venditti gave evidence that Mr Ronchi’s site visits referred to in the investigation report did not meet the requirements of the role. Mr Ronchi gave evidence that with his level of experience he did not need to enter the site for a thorough OHS inspection. I prefer the evidence of Mr Venditti that an OHS inspection requires a physical onsite hazard inspection that may generally take 30-60 minutes to complete. Mr Ronchi observing a site from his vehicle or standing at the boundary gate does not satisfy the requirements of an OHS inspection.
[70] Mr Ronchi questioned the credibility of Mr Venditti to assess his own work because of Mr Venditti’s years of experience with Bunnings Warehouse. I do not share Mr Ronchi’s assessment of Mr Venditti. I found Mr Venditti to have sound knowledge of OHS risk assessments, identification, control of hazards including the legal obligations arising from an OHS assessment and the record of assessment. Mr Ronchi’s statement that he could conduct a thorough OHS assessment from the boundary gate or from his vehicle is not plausible.
[71] Mr Venditti provided a response to questions taken on notice regarding the sites listed in the investigation report and provided copies of the site inspection checklists completed by Mr Ronchi. Mr Venditti provided actual copies of the checklists as Mr Ronchi was unable to do so. Mr Venditti confirmed that of the five checklists, two were duplicates and all three were completed on 26 July 2021. Further, the project management system confirmed that no trades contractors or works were occurring on the sites at the time of the inspections rendering them of low value. Further, in regard to two inspections they were seven minutes apart in distance and to complete all three inspections it took Mr Ronchi a total of 11 minutes and all three inspections concluded by 10:39am. Mr Ronchi provided no submissions in response to the material tendered by Mr Venditti.
[72] Mr Ronchi also gave evidence that his work vehicle is his place of work for 80% of his work time. In respect to the investigation report over the two days of surveillance, this statement cannot be supported, as the evidence showed little work was completed, and it is reasonable to conclude from Mr Venditti’s evidence the work bore limited value to the business over the two days.
[73] I observe that Mr Ronchi’s contract of employment contains an express obligation to devote time and attention during work hours to perform duties exclusively for the business. Relevantly, clause 8 (h) provides:
“Except when absent by reason of ill health, incapacity, accident or approved leave, the Employee shall devote the whole of the Employee’s time, attention and abilities during the hours the Employee is present at work and such other hours as are necessary for the Employee to perform the Employee’s duties in a satisfactory manner, exclusively to the business of the Company and its related Entities.”
[74] In addition, the contract of employment in clause 4 confirms that Mr Ronchi is engaged on a full-time basis (38 hours plus additional reasonable hours) to meet the needs of the business and the role has been taken into account in setting the employee’s salary. Clause 5 of the contract confirms that the salary is to compensate for all hours worked.
[75] Johns Lyng contend that Mr Ronchi neglected his duties because the surveillance showed little work performed over the two days and the evidence of the work performed was considered of low value to the business.
[76] The employment relationship is one where the employer has a duty to pay wages for work performed and in response there is an expectation that an employee is ready willing and able to work. The contract of employment in principle is one where the bargain is payment in exchange for work, however in this case the contract of employment contains express obligations on both the employer to pay wages consistent with the contract for full time hours, while the employee has obligations to perform work exclusively during work hours for Johns Lyng and at the role for which one is remunerated. It is reasonable to conclude from these observations and the evidence of the conduct over the two days that Mr Ronchi did not fulfil his contractual obligations. Johns Lyng in my view had a valid reason to be concerned with Mr Ronchi’s conduct.
A valid reason?
[77] The reasons for the dismissal were valid reasons. Firstly, the text messages were a serious matter and while I do not agree that the text messages sent meet the requirements of Regulation 107 to constitute serious misconduct, the conduct is nevertheless serious, inappropriate and intended to cause harm to two employees. The conduct was wilful and inconsistent with Mr Ronchi’s express and implied obligations to his employer. I am further satisfied that the conduct in respect of the second text message was connected to his employment on the basis that he sent the message to his senior manager, implicated another employee, the content was intended to cause harm between two employees and the effect of the conduct damaged the relationship between the employer and Mr Ronchi, and certainly the conduct was incompatible with his duty as an employee.
[78] Mr Ronchi submits that the conduct was not so serious to warrant termination of employment, but rather a caution at least. However, Mr Ronchi was given an opportunity to respond to the allegations and while he was informed that even though the conduct warrants dismissal, alternatives would be considered if he were honest. Mr Ronchi was also aware from the discussion that the matter was considered serious with the possibly of being reported to the police. I do not agree with Mr Ronchi’s characterisation of the discussion as threats, as this is inconsistent with the evidence of both Mr Venditti and Mr Lindsay Barber. I do observe that Mr Ronchi did deny the allegations but the evidence from Mr Venditti was not disputed concerning Mr Ronchi’s reaction. The reaction was said to be defensive, and while Mr Ronchi denied the allegations, he also made negative comments about Mr Lindsay Barber, the business culture and insinuated improper business practices. There was no evidence or reason to cause me to question this, Mr Ronchi’s behaviour during proceedings and his failure to acknowledge or understand the reasons for the concern over his LinkedIn comments satisfies me that Johns Lyng had reason to be concerned about the conduct. The texts, together with the responses to the additional concerns which were not minor in themselves collectively validate the reasons for the dismissal.
[79] Further I am satisfied that the reasons for dismissal are sound, defensible and well founded. An objective analysis of the facts is that the conduct occurred, and the conduct is grave to cause damage to the employer and employee relationship. I also consider that the reasons are a proportionate response to Mr Ronchi’s disregard for his express contractual duties and implied duty of fidelity and good faith.
[80] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 35 and in explicit36 and plain and clear terms.37
[81] Mr Ronchi submits that his letter of termination does not provide reasons for the dismissal. An assessment of the letter of termination does show there are no reasons specified for the dismissal. 38
[82] The requirement of s.387(h) of the Act is that notification of the valid reason is given to the employee prior to dismissal. This provision relates to procedural fairness prior to the dismissal. The letter of termination, post dismissal, is not required to contain a reason for the dismissal, and certainly the letter of termination is not relevant to this consideration. The evidence of Messrs Ronchi, Barber and Venditti concerning the meeting on 27 July 2021, is that the allegations were put to Mr Ronchi and Mr Ronchi understood the three concerns raised with him. 39
[83] I find this consideration does not weigh in Mr Ronchi’s favour.
[84] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 40
[85] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 41 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.42
[86] Mr Ronchi was given an opportunity to respond to each of the allegations. The full detail of the texts I do not believe were disclosed to Mr Ronchi, nonetheless, the evidence on balance supports the allegation that the texts were sent by him. I do consider that having knowledge of the time and location the texts were sent including information on the evidence gathered was sufficient for Mr Ronchi to understand the allegations and that Johns Lyng considered them sufficiently serious to terminate his employment.
[87] The evidence was that Mr Ronchi denied the allegations outright but at the hearing Mr Ronchi submitted that having learned the detail of the texts, he did not consider the conduct justified dismissal but a warning. This position is peculiar and suggests that Mr Ronchi while not confessing to the conduct, concedes that the evidence supports the reasons for the decision to dismiss him. In any event, the requirement of this consideration is that Mr Ronchi was given an opportunity to respond, but I do not consider the manner in which the meeting escalated could reasonably satisfy Johns Lyng that Mr Ronchi understood the gravity of the allegations and the impact of his response. While satisfied that Mr Ronchi had an opportunity to respond, I am not satisfied that he was given a genuine opportunity to consider the seriousness of the allegations and the breadth of evidence against him. I make further comment on this point in [94] – [97].
[88] On 27 July 2021, Mr Ronchi asked Mr Venditti why he was being recalled back to the office. He was informed that the reason was to meet with Mr Lindsay Barber and himself to discuss issues and concerns. Mr Ronchi admitted that he had not met Mr Barber previously but knew of his position. Mr Ronchi gave evidence during the hearing that he assumed the meeting was to discuss the damage to his work vehicle. I doubt that Mr Ronchi expressed this view with any conviction.
[89] It is reasonable that Mr Ronchi did anticipate that the reasons for the meeting were serious given that his direct manager was Mr Venditti and Mr Venditti directly reported to Mr Tyson Barber. Given Mr Lindsay Barber’s senior position in the Company and the fact that Mr Ronchi had not met him before, it is reasonable to conclude that he would have known the meeting was to discuss matters of serious concern.
[90] At no time did Mr Ronchi ask if he could have a support person present. Mr Ronchi submits he was not offered a support person, and the evidence supports this contention. However, the requirement of s.387(d) is whether Johns Lyng refused to allow Mr Ronchi to have a support person.
[91] It is quite common to observe that for an organisation as large as Johns Lyng and with its resources, that it would make the purpose of the meeting more explicit if the possible outcome was dismissal and it is not uncommon to find advice that the person may choose to have a support person, even though the Act does not require it. This approach was not taken. On the evidence of Mr Lindsay Barber and Mr Venditti the intention was simply to discuss the concerns and the intent was not to dismiss him. I accept this evidence and accept that the discussion escalated most likely due to frustration and defensiveness on the part of both Mr Barber and Mr Ronchi. It appears that the discussion intensified when Mr Ronchi pressed Mr Barber and Mr Venditti to confirm whether the intention was to dismiss him, ultimately resulting in a firm dismissal which was unpremeditated. Notwithstanding the turn of events, this consideration relates to whether Johns Lyng unreasonably refused a support person, and it did not.
[92] Mr Ronchi contends there were no warnings concerning his conduct and he contends that the conduct did not warrant dismissal but rather a warning.
[93] Johns Lyng contend that the conduct did not relate to unsatisfactory performance except to a minor degree. It contends that the conduct concerning the text messages was so serious that it was serious misconduct and for that reason this consideration is a neutral consideration.
[94] I agree that the reasons for dismissal relate to conduct and not performance and therefore a disciplinary process of warnings is not relevant in this matter.
[95] Johns Lyng is not a small employer and there is no reason for it to not follow a fair process. Mr Lindsay Barber certainly has authority to make decisions regarding recruitment and termination, but he also has access to experienced internal human resources personnel. On this occasion it would have been apposite to have controlled the discussion from escalating into a dismissal within the space of a short meeting. Mr Ronchi gave evidence that the meeting lasted some 10-15 minutes. Mr Ronchi was quite agitated and defensive, while Mr Barber was frustrated and bothered by the responses. Given the serious nature of the allegations and the breadth of evidence against Mr Ronchi, an opportunity to digest the allegations and show cause why he should not be dismissed would have been a more appropriate and fair dismissal process.
[96] Johns Lyng contends that this consideration is a neutral matter as the business has a senior HR representative and two junior coordinators for a workforce of approximately 1200 employees and 600 contractors and further that the resources would not have impacted the process. I do not agree, had Mr Barber not acted in the heat of the moment by dismissing Mr Ronchi during the short but intense meeting, it is conceivable that a different outcome may have occurred, particularly in light of Johns Lyng’s evidence that the intention of the meeting was to only have a discussion, and comments were made that had Mr Ronchi admitted to the conduct, alternative options would have been considered.
[97] For these reasons this consideration falls in Mr Ronchi’s favour.
[98] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant. I consider my comments above regarding the opportunity to give Mr Ronchi details of the evidence against him, provide him with an opportunity to respond after being given a fair opportunity to consider the allegations and evidence against him, followed by genuine consideration of Mr Ronchi’s responses relevant. Mr Ronchi was denied the opportunity to give proper and fair consideration to the allegations and evidence before his employment was terminated.
[99] Johns Lyng also added that despite the serious allegations, Mr Ronchi was paid two weeks in lieu of notice even though his dismissal was immediate. I do consider the payment of the notice in lieu should be taken into account and is in the Respondent’s favour.
[100] I also observe that Mr Ronchi showed no regard for his common law duty of fidelity and good faith or the express obligations in his contract of employment. Instead of taking responsibility for his conduct, putting aside the evidence against him in respect of the text messages, his LinkedIn post, his email to business partners and his lack of application to his duties over the period of surveillance are considerations that weigh against him.
[101] Mr Ronchi has asked the Commission to consider his age in this consideration, being 51 years.I do not consider this an impediment to further employment and note Mr Ronchi’sexperience and qualifications relevant to OHS and more relevantly to the building and construction industry.
[102] The material filed following the hearing included submissions from Johns Lyng suggesting that Mr Ronchi is not vaccinated which would be relevant to any consideration concerning Mr Ronchi’s efforts to mitigate his loss. However, I have not received any response from Mr Ronchi on this point and for that reason including my considerations regarding remedy, I do not attach weight to this submission.
[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.
[105] Mr Ronchi seeks a remedy of compensation of 12 month’s salary and he is not seeking reinstatement. Johns Lyng also contend that reinstatement is not appropriate should I find in Mr Ronchi’s favour. I do consider the remedy of reinstatement inappropriate.
[106] Section 392 of the Act provides:
392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.
[107] I now consider each of the criteria in s.392 of the Act.
Viability: s.392(2)(a)
[108] Johns Lyng is not a small business and there is no evidence that an order of compensation would materially affect the viability of the business.
Length of service: s.392(2)(b)
[109] Mr Ronchi had worked for Johns Lyng for a period of some 16 months, which is not a lengthy period of employment.
Remuneration that would have been received: s.392(2)(c)
[110] Had Mr Ronchi not been dismissed on 27 July 2021, his employment would likely to have continued for a period of no more than one week, to cover a reasonable period for Mr Ronchi to be provided with the relevant evidence against him to have regard to it before responding. Having observed Mr Ronchi’s conduct during the course of the hearing and his failure to acknowledge any responsibility for his actions, notwithstanding the passing of time, it is unlikely that in spite of the stated intention to consider options, that any option other than dismissal would have occurred.
Efforts to mitigate loss: s. 392(2)(d)
[111] Mr Ronchi submits that he is in receipt of unemployment benefits and had been searching for employment. He provided a list of 23 positions with contacts for jobs that he had applied for following the hearing but had not secured. Noting also that evidence showed Mr Ronchi’s interest in other registered business interests, no evidence of any income was provided.
[112] Mr Ronchi provided evidence of his effort to mitigate his loss and for this reason I do not make any deduction from the amount of compensation.
Any remuneration earned by the person from employment or other work: s.392(2)(e)
[113] Mr Ronchi provided no evidence of any income earned since his dismissal except for unemployment benefits. The receipt of unemployment benefits is not taken into account for the purposes of compensation.
Any amount of income likely to be earned until the order: s.392(2)(f)
[114] Mr Ronchi provided no evidence of employment of income from his personal business interests. For this reason, I cannot reasonably consider what income he would have earned. Nevertheless, I find that Mr Ronchi’s likelihood of continued employment would have been for a further period of one week, therefore this consideration is neutral.
Any other matter: s.392(2)(g)
[115] There are no other matters raised by Mr Ronchi and Johns Lyng submit that the conduct concerning the text messages was because Mr Ronchi was disgruntled for being instructed to remove the LinkedIn post. The motivation for the texts had the effect of damaging the relationship between two employees and created a risk to health and safety. I did not fully agree with these contentions but do agree that the conduct is wilful and serious. In addition to the seriousness of the texts, plus the other behaviour leading to the dismissal together with Mr Ronchi’s failure to accept responsibility or understanding of his own duties is the reason I am disinclined to award more favourable compensation. Having taken the relevant considerations into account I determine that one week is the most that Mr Ronchi would have remained in employment had Mr Barber not escalated the discussion into an unplanned and sudden dismissal.
Amounts to be deducted
[116] I have not considered any components for shock or distress and the amount I award does not exceed the compensation cap.
[117] Having considered all the relevant factors, I do consider Mr Ronchi’s termination of employment procedurally unfair.
[118] I do not consider a remedy of reinstatement appropriate but do consider a remedy of compensation is in order.
[119] While the compensation is modest, I do consider it fair and reasonable having considered the requirements of s.392 of the Act.
[120] I order one week’s wages. This is a gross sum of $1,634.62.
[121] Johns Lyng is to deduct the appropriate level of tax and make the payment within 14 days of the order. In addition, an employer superannuation contribution of 10% on the gross sum is to be paid into Mr Ronchi’s superannuation fund.
[122] An order is issued in conjunction with this decision.
COMMISSIONER
Appearances:
S Ronchi, Applicant.
D Pearson, Respondent.
Hearing details:
2021
Melbourne (By Microsoft Teams):
December 6 and 7.
Printed by authority of the Commonwealth Government Printer
<PR738422>
1 Applicant’s outline of argument page 1.
2 Ibid.
3 Ibid.
4 Exhibit A1, Applicant’s unsigned statement of evidence page 2 at [15], [16] and [18].
5 Ibid on page 2-3 at [19] – [26].
6 Ibid on page 7 at [56] – [57] [60].
7 Exhibit R4, Attachment to witness statement of Lindsay Barber LB-3.
8 Exhibit R4, Attachment LB-1 and LB-2.
9 Exhibit R4, LB-1.
10 Exhibit R4, attachment LB-6.
11 Exhibit R4, at [24]-[29].
12 Exhibit R4 at [35] – [36].
13 Exhibit R5, witness statement of Mr Daniel Venditti at [4]-[6], and [8] – [10].
14 Exhibit R2, witness statement of Ms Gemma Sholl at [4].
15 Exhibit R3, Witness statement of Mr Matt Streat and attachment MS-1.
16 Exhibit R6, witness statement of Mr Nicholas Graham.
17 Exhibit R1, Attachment TB-1 to witness statement of Tyson Barber.
18 Exhibit R1, witness statement of Tyson Barber at [12] –[16].
19 Exhibit R1, witness statement of Tyson Barber at [18] and Attachment TB-2.
20 Exhibit R1, witness statement of Tyson Barber at [24] and Attachment TB-3.
21 Sayer v Melsteel Pty Ltd (2011) FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
22 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
23 Rode v Burwood Mitsubishi, Print R4471 (AIRCFB) at [19].
24 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
25 Rose v Telstra Corporation Ltd Print Q9292 (AIRC, Ross VP, 4 December 1998).
26 Ibid.
27 Exhibit R4, Attachment LB-1 to witness statement of Lindsay Barber.
28 Blyth Chemicals v Bushnells (1933) 49 CLR at 74, cited in Rose and Telstra Corporation Ltd Print Q9292 (AIRC, Ross VP, 4 December 1998).
29 Exhibit R1, witness statement of Tyson Barber at [20] and [23].
30 Ibid at [25] – [27].
31 Exhibit R3, witness statement of Mr Matt Streat at [8].
32 Exhibit R4, attachment LB-1 to witness statement of Lindsay Barber.
33 Exhibit R4, attachment LB-3 to witness statement of Lindsay Barber.
34 Exhibit R4, witness statement of Lindsay Barber at [41].
35 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
36 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
37 Ibid.
38 Letter of termination of employment dated 27 July 2021, attached to Mr Ronchi’s materials page 62 of the Court book.
39 Exhibit A1, statement of Mr Simon Ronchi.
40 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
41 RMIT v Asher (2010) 194 IR 1, 14-15.
42 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.