Johns Lyng manager's dismissal deemed valid, but procedure unfair

A Victorian man has been awarded a small fraction of the unfair dismissal compensation he was seeking from building services company Johns Lyng after it terminated his employment for sending inappropriate messages, promoting his own business and neglecting duties during working hours.

Melbourne-based Simon Ronchi, who now receives unemployment benefits, was awarded one week’s wage by the Fair Work Commission. 

He had been seeking compensation of a year’s salary after being dismissed from his position as Occupational Health and Safety Manager Victorian Insurance Brands in July last year after 16 months in the role. He denied sending the texts and argued a warning would have been a more appropriate course of action.

A private investigator hired by Johns Lyng witnessed the 51-year old at motels during work hours in visits that were unrelated to his role, and publicly using a telephone at the time two texts were sent which left a colleague and his wife upset and feeling unsafe.

He also resisted a request to delete a LinkedIn post regarding the exit of a business partner which read: “What the?? How many more surprises does JLG have. Too many good people leaving.”

A few days before his dismissal, he sent an email to three regional Victorian business partners promoting Demotec, a demolition company registered in his name, saying the business and Johns Lyng had partnered “with all our demo work moving forward” and referred to Demotec as the “preferred contractor”. He tried to recall the email the following morning.

Fair Work Commissioner Leyla Yilmaz said the reasons for the dismissal of Mr Ronchi were valid.

“The reasons for dismissal are sound, defensible and well founded,” she said.

“An objective analysis of the facts is that the conduct occurred, and the conduct is grave to cause damage to the employer and employee relationship. I also consider that the reasons are a proportionate response to Mr Ronchi’s disregard for his express contractual duties.”

She said the text messages were a “serious matter,” and his conduct was “inappropriate and intended to cause harm to two employees”.

However, she said a failure by Johns Lyng to provide Mr Ronchi the opportunity to give proper and fair consideration to the allegations and evidence before his employment was terminated meant the dismissal had been “procedurally unfair”.

She awarded Mr Ronchi $1635 in compensation, or one week of the 52 weeks he was seeking.

“I am not satisfied that he was given a genuine opportunity to consider the seriousness of the allegations and the breadth of evidence against him,” she said.

Commissioner Yilmaz judged that Mr Ronchi’s conduct was “wilful and inconsistent with obligations to his employer” and his actions “were not minor” and “collectively validated the reasons for the dismissal”.

“I am disinclined to award more favourable compensation,” she said, citing the seriousness of the texts, plus the other behaviour leading to the dismissal together with Mr Ronchi’s “failure to accept responsibility or understanding of his own duties”.

“Certainly the conduct was incompatible with his duty as an employee,” she said.

Six witnesses for Johns Lyng were cross examined by Mr Ronchi, who had been called to a senior manager’s office to discuss “some issues and concerns” on July 27, where the talks escalated into his immediate dismissal in minutes as Mr Ronchi spoke negatively about the company and insinuated improper business practices were common and known.

Mr Ronchi submitted this was harsh, unjust and unreasonable and assumptions were made concerning the “allegations of wrongdoing” and the “baseless assertions should be best characterised as indiscretions by no means deserving of a summary dismissal”.

A warning was a more fitting outcome, he said, complaining of threats to involve the police to elicit an admission of guilt.

Commissioner Yilmaz said while she “did not agree with Mr Ronchi’s characterisation of the discussion as threats,” Mr Ronchi was agitated and defensive at the meeting, and his manager frustrated and bothered, and so it “would have been apposite (for Johns Lyng) to have controlled the discussion from escalating into a dismissal within the space of a short meeting.”

“Given the serious nature of the allegations and the breadth of evidence against Mr Ronchi, an opportunity to digest the allegations and show cause why he should not be dismissed would have been a more appropriate and fair dismissal process,” she said, explaining why Mr Ronchi was awarded compensation.

See the full ruling here.