1
Fair Work Act 2009
s.394—Unfair dismissal
Umberto Mammarella
v
Department of Parliamentary Services
(U2018/13620)
COMMISSIONER HARPER-GREENWELL MELBOURNE, 11 SEPTEMBER 2019
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).
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DECISION
E AUSTRALIA FairWork Commission
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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.
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[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 Eideh1 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
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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
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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
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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
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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
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[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
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[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 Dunkel72 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
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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.
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[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 made73, 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 employment77 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
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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
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[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
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[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
THE FAIR WORK CO OF SEAL OF THE MISSION THE
[2019] FWC 6340
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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
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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
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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
