DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Umberto Mammarella
v
Department of Parliamentary Services
(U2018/13620)

Application for an unfair dismissal remedy.

[1] Mr Umberto Mammarella (the Applicant) was employed by the Department of Parliamentary Services (the DPS) (the Respondent) from 19 March 2007 as an Electoral Officer until his dismissal at the initiative of the Respondent on 7 December 2018.

[2] On 28 December 2018, Mr Mammarella made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of his dismissal by the DPS.

[3] In September 2017 the Independent Broad-based Anti-corruption Commission (IBAC) commenced an investigation into allegations of fraudulent work practices in the electorate office where Mr Mammarella worked. An audit of the electorate office was conducted in November 2018. The audit identified property of the DPS that was not present in the electorate office. Following the audit Mr Mammarella was advised that there was a loss of trust and confidence in his ability to perform his role and he was subsequently dismissed.

[4] The DPS submitted that Mr Mammarella was dismissed because Mr Khalil Eideh, Member of the Legislative Council for Western Metropolitan Melbourne who provided a financial delegation to the Applicant, no longer held trust and confidence in Mr Mammarella’s capacity to perform the role as his nominated electorate officer. They submitted that it is an inherent requirement of the electorate officers’ role to be, and appear to be, of good character and not bring the Member of Parliament to whom they are attached into disrepute.

[5] Mr Mammarella submits that there is no evidence that Mr Eideh had lost trust and confidence in his ability to perform his role and that the dismissal was harsh, unjust and unreasonable given there is no evidence to support any contention that he had caused Mr Eideh to lose trust and confidence in him. Mr Mammarella submits the dismissal was an attempt by the DPS to avoid paying him his entitlements pursuant to clause 25.5 of the Electorate Officers’ (Victoria) Single Enterprise Agreement 2017 (the Agreement).

Procedural Background

[6] This matter was conciliated on 4 February 2019 however remained unresolved. The matter was subsequently listed for arbitration.

[7] Mr Mammarella sought permission pursuant to s.596(b) to be represented by Ms Jardine of counsel. At the hearing Ms Jardine provided medical evidence in support of her submission that Mr Mammarella was being treated for a serious medical condition and, due to his mental and physical condition, he was unable to effectively represent himself.

[8] In these proceedings the DPS was represented by Mr Matthew Jordon, a qualified lawyer. The DPS objected to Mr Mammarella being represented however did not contest the legitimacy of the medical evidence provided, nor did they contest that Mr Mammarella was suffering from a serious illness. The DPS instead submitted they would not oppose the matter being adjourned until Mr Mammarella would be fit to represent himself.

[9] Due to the nature of Mr Mammarella’s illness there would be some difficulties associated with attempting to determine when, if at all, Mr Mammarella would be fit to represent himself. The medical evidence, which is not in contention, suggests Mr Mammarella is unable to effectively represent himself therefore I granted permission pursuant to s.596 (2)(b) for Ms Jardine of counsel to appear on behalf of Mr Mammarella.

[10] Mr Mammarella gave evidence on his own behalf.

[11] The following witnesses gave evidence on behalf of the DPS:

•  Mr Richard Jordan, Manager of the Organisation Development Unit;

•  Mr Peter Lochert, Secretary of the Department of Parliamentary Services and delegate of the Speaker and President acting jointly regarding the employment of the Applicant; and

•  Mr Grant Williams, Security Co-Ordinator.

[12] At the conclusion of the hearing the parties were issued with direction for the filing of written closing submissions.

Preliminary Matters

[13] Section 396 of the Act requires that I make findings on four preliminary matters before considering the merits of Mr Mammarella’s application. There is no dispute between the parties and I find that Mr Mammarella filed his application within the time limit of 21 days as prescribed by s.394(2) of the Act.

[14] During his employment with the DPS the Agreement applied to Mr Mammarella and his annual earnings were below the high-income threshold. Mr Mammarella’s period of employment with the DPS was longer than the minimum employment period prescribed by the Act. Accordingly, Mr Mammarella is a person protected from unfair dismissal under the Act.

[15] No issue of redundancy arose in these proceedings and I find that the dismissal was not a case of genuine redundancy.

[16] As at 10 December 2018 the Department had approximately 800 employees, therefore the Small Business Fair Dismissal Code does not apply.

[17] Therefore, the issue for me to consider is whether Mr Mammarella’s dismissal was harsh, unjust or unreasonable.

Factual Background and evidence

[18] The factual background and evidence in this matter as presented is set out below. Where the evidence is conflicting, I have made a number of factual findings.

[19] Mr Mammarella commenced in his role as a fulltime electorate officer for the elected Member of the Victorian Legislative Council, Mr Khalil Eideh, sometime in March 2007. Mr Mammarella had been provided with a financial delegation by Mr Eideh 1 and had management and control of the assets within the electoral office. His role amongst other things included dealing with constituent matters and enquiries on Mr Eideh’s behalf.

[20] An electorate officer is nominated by a Member of Parliament and they are not subject to any merit-based recruitment processes which would normally occur in the public sector. A Member is able to nominate a person who they believe is of good character to the role of an electorate officer. Mr Mammarella was employed in the most senior electorate office classification under the Agreement and his role was to represent the Member in the wider community and the relationship is one of trust. 2

[21] Mr Lochert gave evidence, which I accept, that in August 2017 he was made aware of alleged fraudulent practices within the Western Metropolitan Melbourne electorate office, the office of Mr Eideh, which he says led to the engagement of a Forensic Accountant who identified irregularities in relation to invoices which had been authorised by Mr Mammarella. 3

[22] Mr Lochert’ s oral evidence was that he first became aware of allegations about the misuse of funds and printing procurement with a company called FM Printing through media reports. Mr Lochert’ s evidence is that a number of irregularities were identified as needing further investigation so he referred the matters to IBAC for investigation. 4 His evidence was that the investigation was centred around invoices that were approved by Mr Mammarella out of the budget in Mr Eideh’s office, specifically potential irregularities with printing and monies being diverted away from FM Printing. His evidence was that he considered there to be sufficient material for him to be personally concerned that there was a significant breach of the code of conduct and the values of Parliament and the way that financial management should occur in an electorate office.5

[23] Mr Lochert also gave evidence that the media attention generated as a consequence was continuous, particularly in the Herald Sun who had felt they had broken the story. His oral evidence was that every day he had two or three headlines on the matter delivered to him and that the media’s attention had a negative reputational impact on Parliament. 6 Mr Mammarella initially gave evidence that the media attention surrounding the office closure was because Mr Eideh had been refused entry into America because he had lied on his entry application7 however he later conceded that he had become aware in early September 2017, prior to the closing of the office, that there was media attention in relation to the falsifying of invoices and allegations of “getting money back from the Printer to pay for ALP memberships”.8

[24] In September 2017 Mr Lochert referred the matter to IBAC. On 16 September 2017 he made the decision, in consultation with Mr Eideh, to close the affected electorate office and suspend the affected employees with pay, including Mr Mammarella. 9 Mr Mammarella received a phone call from Mr Eideh on the evening of 17 September 2017 at around 7pm informing him that Parliament were closing down the office as they thought it was in the best interest to take the media pressure and attention off the office.10

[25] Mr Mammarella gave evidence that he was aware that the office was being closed as a consequence of certain issues being referred by the Speaker to IBAC. 11 He submitted that this investigation was in relation to allegations of attempts to pervert the course of justice.12 In his witness statement Mr Mammarella stated that he understood the investigation concerned the alleged improper use of stationary.13 His oral evidence was that at the time of taking a phone call from Mr Eideh informing him that the office was being shut down he was aware that there were allegations in relation to the misuse of electoral office funds and that there was media interest in relation to those allegations.14 However, during cross-examination, Mr Mammarella’s evidence was that during the phone call Mr Eideh never mentioned the IBAC investigation. It was brought to Mr Mammarella’s attention that it was in fact a part of his witness statement that he was aware that he himself was a person of interest in the IBAC investigation, and Mr Mammarella conceded that this was the case. Mr Mammarella also gave evidence during cross examination that he had become aware as early as 6 September 2017 that the media had been reporting that there had been misappropriation and they had been falsely invoicing.15 The evidence supports a finding that Mr Mammarella was aware he was a person of interest in the IBAC investigation into the alleged misuse of electoral office funds.

[26] After receiving the phone call on 17 September 2017 Mr Mammarella made arrangements to attend the office that same evening, during which time, he collected his personal belongings and some files. 16 At around 8:30pm Mr Williams allowed Mr Mammarella and three other people to access the premises to remove personal belongings. Mr Mammarella was accompanied by his dinner guest Mr Jeff O’Donnell who also collected some personal files.17 Mr Mammarella also took with him over a thousand dollars’ worth of stamps, claiming that he did so because he thought he might have to write to people notifying them of the temporary closure of the office.18 Mr Williams was asked to arrange for the locks to be changed and he subsequently arranged for the locks to be changed that same evening.19

[27] Mr Mammarella received a letter dated 18 September 2017 informing him he was suspended from the workplace on full pay until 13 October 2017. He was directed to not attend the office and not to speak to any other employees of the Parliament about the investigation. 20 He was also directed to return any property and documents of DPS that he held within his possession.21 Mr Mammarella’s evidence was that he received no further correspondence about his suspension until he was notified that Mr Eideh had lost trust and confidence in his ability to perform his role.22 Mr Lochert’ s evidence is that he sent a letter on 10 October 2017 informing Mr Mammarella that his suspension would continue until he received further written notice. Mr Lochert tendered a copy of the letter in support of his evidence.23 It would be an unusual situation that an employee would be stood down for such a long period without making any inquiries as to the status of their employment. I find it difficult to accept that Mr Mammarella would have remained off work without having some knowledge as to the status of his suspension. On this matter I prefer the evidence of Mr Lochert.

[28] At the time of being notified of his suspension Mr Mammarella was requested to return any property or documents belonging to the electorate office by 21 September 2017. 24 On 22 September 2017 Mr Mammarella met with Mr Jordan, Manager Organisation Development responsible for the HR services provided by the Department, including administering electorate officer employment25 and Mr Barry Cull, Leader Remuneration Services. Mr Jordan’s evidence was that during the meeting Mr Mammarella was requested to return the property of the Parliament he had in his possession which included iPhone, iPad and three folders containing documents he had removed from the electorate office. Mr Jordan’s evidence was that one of the folders in Mr Mammarella’s possession was related to FM Printing and Mr Mammarella had previously stated that he had given the documents to his solicitor, which he found not to be accurate because the documents were in Mr Mammarella’s car.26 Mr Mammarella did not contest the evidence of Mr Jordan on this matter. It is common ground that Mr Mammarella returned an iPad, iPhone and some documents that he had in his possession, including a personal file of Mr Eideh’s.27 Mr Lochert gave evidence that Mr Mammarella also returned a file that contained copies of invoices.28 Mr Mammarella advised that he had returned all of the property he had in his possession29 and signed a document to that effect.30

[29] The evidence supports a finding that Mr Mammarella did not return all the items in his possession as directed including, amongst other items, the digital cameras. His evidence was that he thought the office was only going to be closed for a couple of weeks and he had forgotten about returning the cameras until he was provided with the equipment list by Mr Jordon. 31 Mr Mammarella gave evidence that he had been given authorisation by Mr Eideh to use the cameras and used them whilst he was on holidays. Mr Mammarella’s evidence was that there was nothing inappropriate about it and he had previously always returned the cameras after he returned from his holidays.32 The DPS did not contest Mr Mammarella’s evidence on this matter.

[30] Mr Mammarella’s evidence is that during the period from 22 September 2017 to 24 November 2018 he had very little contact with Mr Eideh other than a small number of text message exchanges and phone conversations. The DPS did not contest the content or validity of those text messages or phone conversation. Mr Mammarella’s evidence was that Mr Eideh had attempted to arrange to meet however he had declined due to his poor health. 33

[31] On 18 October 2017 Mr Eideh resigned from his office of Deputy President of the Legislative Council, however he remained a Member of the Legislative Council for the remainder of his Parliamentary term. 34

[32] An electorate office is supplied with a range of equipment and furniture, however additional items can be purchased with a publicly funded budget with those items remaining the property of the DPS. It is custom for an electorate office to be audited at the end of a Member’s term in Parliament and before the new Member takes up office. On 16 November 2018 the DPS conducted an audit of the electorate office and identified a number of items of property that were not present at the electorate office. 35

[33] There was much conjecture as to what time the audit was conducted. Mr Lochert’s evidence was that, after the audit was conducted, he had a conversation with Mr Eideh about the missing items. Mr Lochert submits that during the conversation Mr Eideh expressed that he had lost trust and confidence in Mr Mammarella’s ability to perform his role. In response to the conversation an email was sent by Mr Lochert to Mr Eideh on 16 November 2018 at 11:55am requesting Mr Eideh confirm he had lost trust and confidence in Mr Mammarella. Mr Eideh replied that same day at 11:57 am by email to Mr Lochert simply stating, “Thank you Peter, yes I confirm”. 36

[34] Mr Williams’ evidence was he conducted the audit on 16 November 2018 as the attractive items auditor along with other staff members, including his boss Sam Matthews the audit lead and Mr Chris Prasad the IT auditor. His evidence was that Mr Eideh was present on the day of the audit. Mr Williams gave evidence that due to the anomaly of the office being closed and no electorate office staff being available they had to send in a second audit team on 21 November 2018. 37

[35] Mr Williams’ evidence as to when the audit was conducted is at odds with Mr Lochert’s evidence. Mr Lochert was cross-examined at length as to the dates the audit occurred. Although Mr Lochert became confused during the line of questioning, largely as a result of references to multiple documents, his evidence was that he met with Mr Eideh on 16 November 2018 at which time he had already obtained the results of the audit that had been conducted at Mr Eideh’s electorate office. 38

[36] I found Mr Williams’ evidence to be clear and concise and I found him to be a credible witness. Mr Williams’ evidence was that Mr Eideh attended the office at the time of the audit on 16 November 2018. He was present with Mr Eideh when he signed the audit document on that same day. Mr Williams made a note on the audit document that some of the missing items not on site should be with Mr Mammarella. His evidence was he had written this note after speaking to Mr Eideh, who believed the items were with Mr Mammarella. Mr Williams’ evidence was that the audit did not take place until after 9am and would have taken several hours. 39 Accordingly I consider it is not plausible that Mr Lochert obtained the written confirmation from Mr Eideh that he had lost trust and confidence in Mr Mammarella at the completion of the audit.

[37] Both Mr Jordan and Mr Lochert gave evidence that after the audit was conducted a schedule of missing items was provided to Mr Mammarella. 40 After receiving notification of the missing items, Mr Mammarella advised that some of the items were still in his possession and he thought the printer identified in the missing items audit list may be at Parliament House.41 Mr Jordan’s evidence was that he arranged for the collection of some of the items from Mr Mammarella which included the Phillips radio, a Cool Pix camera S10, a NikonSB600 Camera with flash unit and accessories and postage stamps to the value of $1700,42 however some of the items on the audit list, including iPads, an iPad mini and iPhones, remained unaccounted for.43

[38] The Victorian state elections were held on 24 November 2018 and Mr Eideh’s term as an elected Member of the Legislative Council ceased as a consequence. Mr Lochert’s evidence is that Mr Eideh’s employment ended at midnight that same day. 44 Mr Mammarella submits that consequently clause 25.5 of the Agreement came into effect and his employment was due to cease 3 weeks later in accordance with 25.5(a) of the Agreement45 which provides;

“(a) Unless section 31(2) of the Parliamentary Administration Act 2005 (Vic) applies to the Employee, if a Member dies, is defeated in an election, retires or is not pre-selected, or resigns prior to their term expiring or the seat in which the Member holds office is abolished, the employment of any full-time and part-time Employee attached to that Member shall terminate either:

(i) Three weeks after the date of the death, or resignation of the Member; or

(ii) three weeks after the date the election poll results are confirmed by the Victorian Electoral Commission.

[39] However on 26 November 2018 Mr Lochert wrote to Mr Mammarella advising him that Mr Eideh had no longer held trust and confidence in his capacity to perform the role of Mr Eideh’s nominated electorate officer and that it was an inherent requirement of the electorate officers role to be and appear to be of good character and not bring the Member of Parliament they are attached to into disrepute. 46 No reasons were provided as to why Mr Eideh was said to have lost trust and confidence in Mr Mammarella. The letter provided Mr Mammarella until Monday 3 December 2018 to submit any comment or information for Mr Lochert’s consideration before Mr Lochert would make his decision about the future of Mr Mammarella’s employment.47

[40] At 12:19pm on 29 November 2018 Mr Mammarella sent an email to Mr Lochert acknowledging receipt of the letter, seeking a copy of the Agreement and a copy of Mr Eideh’s advice regarding his loss of trust and confidence, and querying his loss of entitlements. In his correspondence he states;

“I am confused about the date of this letter as I understood that I ceased being an employee of Mr Eideh at the close of polls on the 16th November, if this is not the case can you advise me on my current employment status.” 48

[41] At 2:00pm on that same day Mr Lochert replied by email enclosing a copy of the enterprise agreement, confirming Mr Mammarella’s employment status and entitlements, and advising that Mr Eideh had provided him with advice that he had lost trust and confidence in Mr Mammarella. He reiterated that Mr Mammarella was to provide any comment or further information by close of business Monday 3 December 2018. 49

[42] At 5:37pm that same day Mr Mammarella again emailed Mr Lochert stating he had not spoken to Mr Eideh for some time nor had he received any correspondence regarding concerns about his employment. Mr Mammarella also sought a response as to whether he was still under suspension and if he would lose the compulsory termination payment if his employment was terminated. 50 Mr Mammarella’s evidence was that he had never previously been advised of any performance concerns by either Mr Eideh or the DPS. 51

[43] Mr Lochert replied on 30 November 2018 informing Mr Mammarella that he remained on suspension until further notice and, should his employment be terminated in accordance with 25.2(e) of the Agreement, he would not be eligible to receive the entitlements provided for in clause 25.5 of the Agreement. In his correspondence Mr Lochert again reiterated the need for Mr Mammarella to respond with any further comments for consideration by Monday 3 December 2018. 52

[44] On 3 December 2018 Mr Mammarella provided a letter from his treating general practitioner stating that he had undergone surgery in April 2018 and has since been under the care of a private neurologist. 53 The medical practitioner stated in his letter that due to multiple chronic health conditions Mr Mammarella “has been unwell and unable to take decision and comment”.54

[45] Mr Mammarella’s evidence is that he received a letter dated 10 December 2018 in which Mr Lochert proceeded to terminate his employment in accordance with clause 25.2(e). The letter states amongst other things;

“The Employer may terminate the employment of an Employee summarily without notice or payment in lieu of notice if the Employee has committed any act of serious misconduct as defined in regulation 1.07 of the Fair Work Regulations 2009 or there is a breach of mutual trust and confidence.”  55

[46] The termination letter, whilst acknowledging receipt of the letter from Mr Mammarella’s treating doctor, states the dismissal took effect on 7 December 2018. 56 Due to the operation of Clause 25.6(a) Mr Mammarella was not entitled to the compulsory termination payment provisions contained within clause 25.5 of the Agreement.

Consideration

Harsh, Unjust Unreasonable

[47] Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable. The type of conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained by the High Court of Australia in Byrne v Australian Airlines Ltd.⁵⁷ McHugh and Gummow JJ explained as follows:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”58

[48] I will now consider each of the matters set out in s.387 of the Act.

Was there a Valid Reason for the dismissal- s.387(a)

[49] It is not in contention that Mr Mammarella was the most senior electoral officer in Mr Eideh’s office and that there is typically only one grade 3 officer in an electoral office. 59 As the senior electoral officer Mr Mammarella was also the only officer provided with financial delegation by Mr Eideh.60 In his role Mr Mammarella was responsible for management of the office resources, media liaison duties, and assisting the Member with representing the electorate through communication and correspondence and participation in community events. 61

[50] The Parliamentary Administration Act 2005 (Vic) (the PA Act) specifies a series of values and it provides capacity for the Presiding Officers to approve a code of conduct. The code of conduct contains a set of values and behaviours that the electorate officers are expected to uphold during the course of their employment. 62 Mr Mammarella acknowledged that as an electoral officer he was issued with and had an awareness of the code of conduct that applied to his employment as an electoral officer.63 His evidence was that he was also aware of the Parliamentary values within that code and that he had a responsibility to uphold those values.64 Further, Mr Mammarella was aware that in his role he had a responsibility to maintain public trust and the full confidence of the Member of Parliament.65 Therefore, I am satisfied that in accordance with the expectations outlined in Part 2, Section 5 of the PA Act and the Parliamentary Electorate Office Code of Conduct in his role as the most senior electoral officer Mr Mammarella was expected to possess and uphold a set of values which include responsiveness, integrity, impartiality, accountability and respect. It is also a requirement that an electorate officer be and appear to be of good character and not bring the Member they are attached to into disrepute. Further the Code of Conduct requires that Parliamentary electorate officers use work resources and equipment efficiently and only for appropriate purposes as authorised by the employer.

[51] Whilst I accept those unique requirements under the PA Act and Code of Conduct exist this does not exempt the DPS from the requirements set out in the Fair Work Act in that the DPS must have a valid reason for the dismissal of Mr Mammarella, although it need not be the reason given to Mammarella at the time of the dismissal. 66 It can be any reason underpinned by the evidence provided to the Commission.67 Ultimately, the Commission is bound to determine whether, on the evidence provided, facts existed at the time of the termination that justified the dismissal.68

[52] The reason for the dismissal should be “sound, defensible and well founded” 69 and should not be “capricious, fanciful, spiteful or prejudiced.”70 In the present matter the question the Commission must address is whether there was a valid reason for the dismissal related to Mr Mammarella’s capacity to perform the role.⁷¹

[53] During the hearing the DPS continued to rely on the email from Mr Eideh confirming he had lost trust and confidence in Mr Mammarella as a valid reason for his dismissal. In support of their reasons for why Mr Eideh had lost trust and confidence they rely on the IBAC investigation regarding the alleged fraudulent practices being subject to public scrutiny and that the IBAC investigation drew a large amount of ongoing media interest. The DPS also rely on the missing Parliamentary items identified in the audit conducted on 16 November 2018 to support that Mr Eideh had loss trust and confidence in Mr Mammarella.

[54] Mr Mammarella submits weighing adversely to the DPS’s case is their failure to call Mr Eideh as a witness and consequently a Jones v Dunkel 72 inference should be drawn. Even though the DPS’s case centres on the premise that Mr Eideh had lost trust and confidence in Mr Mammarella, I am of the view that Mr Eideh could equally have been called by Mr Mammarella to corroborate his evidence that he had obtained permission from Mr Eideh to retain Parliamentary equipment for his own personal use. In any case upon review of the evidence I am not satisfied that either Mr Eideh or DPS had at any stage of the termination process put to Mr Mammarella the reasons they sought to rely on for why they had lost trust and confidence in Mr Mammarella. Although procedurally this weighs against the DPS, I note there was no suggestion by either party that the IBAC investigation did not involve allegations against Mr Mammarella.

[55] Whilst I accept that there was some media scrutiny and that Mr Mammarella was clearly aware that the scrutiny involved allegations of fraudulent and corrupt behaviour involving both himself and Mr Eideh’s electoral office, in the absence of any witness evidence from Mr Eideh, there is no evidence before me that suggests that he had in fact lost trust and confidence in Mr Mammarella for that reason.

[56] I am not satisfied DPS can rely on the outcome of the 16 November 2018 audit as “the straw that broke the camel’s back” resulting in Mr Eideh losing trust and confidence in Mr Mammarella. There was a conflict in the evidence of the DPS’s witnesses, Mr Williams and Mr Lochert. The evidence of Mr Williams is that Mr Eideh had attended the office on the day of the audit, that the audit did not commence until after 9:00am and that it was not likely to have been completed before midday. It is therefore implausible that Mr Lochert could have obtained the results of the audit prior to sending the email to Mr Eideh seeking confirmation of his loss of trust and confidence in Mr Mammarella.

[57] Further, there is no evidence to suggest that all the items that were missing from the office were in Mr Mammarella’s possession, and it is not being alleged that Mr Mammarella had stolen Parliamentary property. However I do acknowledge that Mr Mammarella returned a number of items after the conclusion of the audit, notwithstanding that he had received a letter dated 18 September 2017 from Mr Lochert instructing him to return the items he had in his possession, and he failed to do so. Whilst I accept that it may have been the case that Mr Mammarella was permitted to use the cameras he had in his possession whilst he was on holidays, he provided no reasonable explanation as to why he had not returned those cameras upon his return.

[58] Whilst I accept that Mr Mammarella was a person of interest in the IBAC investigation involving allegations of corrupt behaviour and that there was media interest in the conduct of the office of Mr Eideh, the evidence before me does not support a finding that those are the reasons as to why Mr Eideh had lost trust and confidence in his ability to perform the role. Further, it would serve as an injustice if every Parliamentary Officer could have their employment terminated because they were the subject of stories being run in the media or because they were being investigated.

[59] Notwithstanding the above, I note that the DPS did not seek to rely on the media scrutiny, IBAC investigation and missing property as reasons for the dismissal in and of themselves. There was no suggestion that Mr Mammarella had been dismissed due to any adverse findings from the IBAC investigation nor had it been alleged that he had stolen Parliamentary equipment or refused to return property of Parliament. The DPS continue to rely on the reason for the dismissal being that Mr Eideh had lost trust and confidence in Mr Mammarella, with the media scrutiny, IBAC investigation and the missing property as the backdrop for this loss of trust and confidence.

[60] The evidence presented by the DPS to support their contention that Mr Eideh had lost trust and confidence in Mr Mammarella was limited to the email sent on 16 November 2018, the note on the audit report signed by Mr Eideh that the remaining items should be with Mr Mammarella and Mr Lochert’s evidence as to the conversation he and Mr Eideh had.

[61] Whilst I accept that Mr Eideh may have lost trust and confidence in Mr Mammarella, it is not sufficient to find that there is a valid reason for an employee’s dismissal simply because someone has lost trust and confidence in an employee’s ability to perform their role. There needs to be sufficient evidence and reasoning to support this loss of trust and confidence. In this matter there is no evidence before me to support a finding that Mr Eideh had lost trust and confidence for the reasons on which the DPS sought to rely.

[62] It would be unjust if I was to find that there was a valid reason for the termination of Mr Mammarella’s employment solely on the basis that his Member had lost trust and confidence in his ability to perform his role without specific reasons supporting this assertion and evidence in support of those reasons. Therefore, I am unable to find that there was a valid reason for Mr Mammarella’s dismissal.

Notification of the Valid Reason –s.387(b) and an Opportunity to Respond –s.387(c)

[63] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made 73, and in explicit74 and plain and clear terms.75 In Crozier v Palazzo Corporation Pty Ltd a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following (at [73]):

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

[64] 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. This criterion is to be applied in a commonsense way to ensure the employee is treated fairly and should not be burdened with formality. 76

[65] Mr Mammarella submitted that he was not notified of the reason for his dismissal. He submitted that the claim that Mr Eideh had lost trust and confident in him was made after Mr Eideh’s term in office had expired. He further stated that he had asked Mr Lochert why he claimed Mr Eideh had lost trust and confidence and received no explanation.

[66] Whilst I accept the DPS notified Mr Mammarella on 26 November 2018, prior to his dismissal, that Mr Eideh had lost trust and confidence in his capacity to perform the role, there was no other information provided as to why Mr Eideh had lost trust and confidence in Mr Mammarella. Mr Lochert, as the current Secretary of the Department, had authority to exercise the decision to terminate Mr Mammarella’s employment 77 and he did so in haste. Mr Lochert had several opportunities to put to Mr Mammarella the reasons they allege are behind Mr Eideh’s loss of trust and confidence in his capacity to perform the role and he failed to do so. It would have been difficult for Mr Mammarella to adequately respond or challenge the reasoning of the DPS based on the information provided. In the absence of sufficient information Mr Mammarella was not provided with a fair opportunity to respond to the reasons relied on by the DPS. Procedural fairness would require the DPS to provide their reasons supporting the assertion that Mr Eideh had lost trust and confidence in Mr Mammarella and they failed to do so.

[67] I consider that the termination of Mr Mammarella’s employment was executed in haste and lacked the normal procedural steps one would take to ensure a fair and reasonable process.

[68] Further, whilst I note that Mr Mammarella had sent numerous emails to Mr Lochert after receiving the letter of 26 November 2018 and prior to 3 December 2018, upon receiving the letter from Mr Mammarella’s doctor on 3 December it would have been prudent for Mr Lochert to consider advice that Mr Mammarella may not have been able to provide a response. There is no indication that Mr Lochert had considered this advice, and accordingly denied Mr Mammarella an opportunity to respond.

Unreasonable Refusal of a Support Person – s.387(d)

[69] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.⁷⁸ With respect to this consideration, the Explanatory Memorandum states:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.79

[70] Mr Mammarella submitted that there were no discussions relating to the dismissal so there was no reason to have a support person involved. 80 In the circumstance of the current matter I find this factor to be a neutral consideration.

Warnings regarding Unsatisfactory Performance – s.387(e)

[71] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, if the dismissal related to unsatisfactory performance by the person, the Commission must take into account whether the person had been warned about that unsatisfactory performance before the dismissal.⁸¹ Unsatisfactory performance is more likely to relate to the employee’s capacity to do the job, than their conduct.⁸² The Commission must take into account whether there was a period of time between an employee being warned about unsatisfactory performance, and a subsequent dismissal. This period of time gives the employee the opportunity to understand their employment is at risk and to try and improve their performance.⁸³

[72] Mr Mammarella submitted that he was not warned about any unsatisfactory performance. He submitted that he had been suspended since 18 September 2017 and not provided with any allegations of unsatisfactory performance by the Respondent at that time or any time since. 84

[73] The DPS rely on the letter of the September 2017 notifying Mr Mammarella that he had been suspended from duty and the letter of 26 November 2018 advising that his Member had lost trust and confidence in his ability to perform the role. The letter dated 18 September 2017 specifically states that the suspension does not constitute disciplinary action against Mr Mammarella. I am not satisfied that there is sufficient evidence to support the notion that Mr Mammarella had been informed of the DPS’s concerns in relation to his performance during the period from 18 September 2017 up to the notice intending to dismiss him. However, it would appear that Mr Mammarella was dismissed for reason of his conduct and not dismissed for unsatisfactory performance.

Impact of the Size of the Respondent on Procedures Followed and Absence of dedicated human resources management specialist/expertise on procedures followed – s.387(f)-(g)

[74] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.⁸⁵ Further, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account 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.⁸⁶

[75] Mr Mammarella submitted that the Respondent is a large employer with a dedicated Human Resources team. He submitted that Mr Lochert saw himself as holding expertise in human resources matters and that the human resources expertise of the HR team and Mr Lochert was not utilised at all in the process followed by the Respondent. 87

[76] As I have previously stated whilst I understand the unique circumstances pertaining to the position there is still a requirement for the DPS to comply with the Fair Work Act. The DPS is an organisation with considerable resources with dedicated human resources specialists. The size of the DPS’s enterprise would have had no impact on the procedures followed in effecting the dismissal. I agree with Mr Mammarella in that it appears Mr Lochert failed to utilise that expertise available to him which had the effect of the DPS acting in a procedurally unfair way.

Other Relevant Matters – s.387(h)

[77] In considering whether it is satisfied that the dismissal was harsh, unjust or unreasonable, the Commission is required to take into account any other matters that it considers relevant. The Commission should consider all of the circumstances, and weigh the gravity of any misconduct, poor performance or other circumstances telling against a conclusion that a dismissal was unfair, with any mitigating circumstances and other relevant matters that might support the applicant’s claim that the dismissal was harsh, unjust or unreasonable. 88

[78] Mr Mammarella submitted that the DPS was aware of his poor health and that the financial impact of the failure to provide him with the compulsory termination payment was not taken into account. 89

[79] I have considered this submission and acknowledge that Mr Mammarella is in poor health and that the loss of the compulsory termination payment has had a financial impact on Mr Mammarella.

[80] The DPS submitted that the Commission should have regard to the fact that the Applicant had been subject to an investigation by IBAC since September 2017 in relation to allegations of fraudulent practices within the electorate office, and in December 2018 was charged with criminal offences in relation to this investigation. 90

[81] The DPS further submitted that the resulting public scrutiny and media interest regarding the allegations of misconduct and investigation itself have negatively affected the reputation of Mr Eideh and the Parliament of Victoria. 91

[82] I have considered this submission however I note at the time of the submission there had been no findings made in relation to those charges.

[83] Whilst I have previously accepted that there has been some negative press, negative press about the Parliament of Victoria is not something that is unique to this case. Further the evidence is that Mr Eideh had already attracted negative press through his own actions during his failed attempt to visit the United States of America.

Finding

[84] I am not satisfied that Mr Eideh having lost trust and confidence in Mr Mammarella, without being able to establish adequate reasons behind this loss of trust and confidence, is supportive of a finding that the DPS had a valid reason for the termination of Mr Mammarella. Therefore, I consider Mr Mammarella’s dismissal to be unjust, and therefore unfair.

[85] Based on the evidence and submissions provided, I am unable to come to a concluded view about what remedy is appropriate. Directions on the filing of submissions dealing with remedy will be issued to the parties following this decision.

COMMISSIONER

Appearances:

G. Jardine for the Applicant;

M. Jordon for the Respondent

Hearing details:

2019

Melbourne

April 11 and 12

Final written submissions:

Applicant: 7 May 2019

Respondent: 24 May 2019

Applicant reply: 27 May 2019

Printed by authority of the Commonwealth Government Printer

<PR712315>

 1   Transcript PN622-624

 2   Transcript PN491

 3   Exhibit R7, 2

 4   Transcript PN873-875

 5   Transcript PN963-966

 6   Transcript PN945-948

 7   Transcript PN221

 8   Transcript PN442

 9   Exhibit R7, 3-4

 10   Transcript PN107

 11   Exhibit A1, 8

 12   Exhibit A2, 6

 13   Exhibit A1,7

 14   Transcript PN 255-256

 15   Transcript PN437-447

 16   Transcript PN385

 17   Transcript PN111, 116

 18   Transcript PN422

 19   Transcript PN2257

 20   Exhibit R8

 21   Ibid.; Transcript PN989

 22   Transcript PN462-465

 23   Exhibit R11

 24   Exhibit R8

 25   Exhibit R2, 1-2

 26   Ibid., 5

 27   Transcript PN139

 28   Transcript PN988

 29   Exhibit R2, 5

 30   Transcript PN619

 31   Transcript PN422

 32   Transcript PN412

 33   Exhibit A1, 10

 34   Exhibit R1, 8-48

 35   Transcript PN611-612

 36   Exhibit R9

 37   Transcript PN2322

 38   Transcript PN1449,1501, R7 at [9]

 39   Transcript PN2366-2374

 40   Transcript PN 610-619

 41   Exhibit R2, 6

 42   Transcript PN641-642

 43   Exhibit R2, 7-8

 44   Transcript PN1886-1895

 45   Exhibit A1

 46   Ibid., annexure UM3

 47   Ibid., annexure UM3

 48   Ibid., annexure UM4

 49   Ibid., annexure UM5

 50   Ibid.

 51   Ibid., 6

 52   Ibid., annexure UM5

 53   Ibid., annexure UM6

 54   Ibid., annexure UM6

 55   Exhibit A2, 8-11

 56   Exhibit A1, annexure UM7

57 (1995) 185 CLR 410.

58 Ibid at 465.

 59   Transcript PN150-153, Transcript PN492

 60   Transcript PN154

 61   Transcript PN553-554

 62   Transcript PN522

 63   Transcript PN208, R2 at 4

 64   Transcript PN209

 65   Transcript PN374-377

 66   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8.

 67   MM Cables (A Division of Metal Manufacturers Limited) v Zammit Print S8106 (AIRCFB, Ross VP, Drake SDP, Lawson C, 17 July 2000) at para. 42. See also Fenton v Swan Hill Aboriginal Co-operative Ltd [1998] FCA 1613 (4 September 1998).

 68   Lane v Arrowcrest (1990) 27 FCR 427, 456; cited with approval in Byrne v Australian Airlines Ltd [1995] HCA

 69   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373

 70   Ibid

71 Ibid.

 72   (1959) 101 CLR 298

 73   Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

 74   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151

 75   Previsic v Australian Quarantine Inspection Services Print Q3730

 76   RMIT v Asher (2010) 194 IR 1 at 14-15

 77   Transcript PN496

78 Fair Work Act 2009 (Cth) s.387(d).

79 Explanatory Memorandum, Fair Work Bill 2009 (Cth) [1542].

 80   Applicant’s closing submissions, 56

81 Fair Work Act (Cth) s.387(e).

82 Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.

83 Johnston v Woodpile Investments Pty Ltd T/A Hog’s Breath Café – Mindarie [2012] FWA 2 [58].

 84   Applicant’s closing submissions, 57

85 Fair Work Act (Cth) s.387(f).

86 Fair Work Act (Cth) s.387(g).

 87   Applicant’s closing submissions, 58; Transcript PN1050-1052

 88   B v Australian Postal Corporation (2013) 238 IR 1

 89   Applicant’s closing submissions, 59

 90   Exhibit R1, 47.1

 91   Ibid., 47.2