Mammarella v Department of Parliamentary Services [2019] FWC 6340

Mammarella FWC

Introduction

The following case discusses the effects of a suspension and unfair dismissal when the employer does not have enough evidence to support the suspension/dismissal. An employer cannot fruitlessly suspend an employee with no timeline or discussion on the expectations moving forwards. Unless very reasonable and highly specific circumstances force an employee to be completely unsure of a general timeline. Therefore, when a suspension occurs without a genuine or logical reason, then it is generally a circumstance of a foundational lack of procedural fairness. Especially when the suspension had resulted in an equally vague termination.

Facts

Mr. Umberto Mammarella (the Applicant) was employed at the Department of Parliamentary Services (DPS) (the Respondent) from 2007 until 2018. Mr. Mammarella worked with the management and control of the electoral office. His role was to represent the Member of the Victorian Legislative Council for Western Metropolitan Melbourne, Mr. Eidah.

In September 2017 the Independent Broad-based Anti-corruption Commission (IBAC) had started an investigation into allegations of fraudulent practices where Mr Mammarella worked. During cross-examination, Mr. Mammarella confessed that he knew he was a person of interest in the investigation. Allegedly involving misuse of electoral funds. When the investigation commenced Mr Mammarella was suspended with full pay from 18 September 2017 until 13 October 2017. At this moment no management had directly told Mr Mammarella he was a suspect in the investigation. Mr Mammarella was told not to communicate to any other employees, and return all of his possessions. The only notice he received during his suspension was on 10 October 2017 when Mr Mammarella was told his suspension would be extended. Additionally, Mr. Mammarella was told that Mr. Eideh had lost his trust and confidence in Mr. Mummarella’s ability to perform his job. At this point, no allegations or explanation had been provided to Mr. Mammarella.

Mr. Mammarella remained on suspension largely ignored until 29 November 2018. Mr. Peter Lochert (Secretary of DPS) contacted Mr. Mammarella after Mr. Eideh resigned to reiterate that there was no trust and confidence in Mr. Mammarella to perform his duties. Furthermore, Mr. Mammarella was accused of not appearing to be of good character. Mr. Mammarella was allowed until 3 December 2018 to submit any answers or considerations that Mr. Lochert would need when deliberating on the future of Mr. Mammarella’s employment. Mr. Mammarella had still not received any details of the allegations, or explanation as to why Mr. Eidah or Mr. Lochert had lost their trust in Mr. Mammarella. At this moment he had been suspended with pay for over 12 months with little clarification or details as to why.

Mr. Mammarella was unable to provide any answers by 3 December 2018 due to health issues and on the advice of legal representation. Mr. Mammarella was finally terminated on 10 December 2018. Where he had subsequently lodged an Unfair Dismissal Claim to the Fair Work Commission.

Considerations

Commissioner Harper-Greenwell was tasked with providing his rationale and decisions as to whether Mr. Mammarella’s termination was harsh, unjust, or unreasonable. Firstly, the Commissioner could not find a valid reason for the dismissal. There was no evidence from the IBAC investigation to support that Mr. Mammarella’s ability to perform his role was affected. There were no substantiated allegations against him. Furthermore, the loss of his superior’s trust and confidence may have occurred, but with no supporting evidence, there are no grounds for a termination just on that reasoning alone.

Despite the extensive length of Mr. Mammarella’s suspension. It was found that there was no communication of the valid reason for Mr. Mammarella’s termination, nor was he provided an opportunity to respond. While Mr. Mammarella was told it was due to the loss of trust and confidence, there is a significant lack of explanation as to why or what was referred to. The termination of Mr. Mammarella was done in haste and lacked procedural fairness.

Commissioner Harper-Greenwell considered that the DPS is a large organisation, with a dedicated HR department, that would have access to an abundance of resources. And Mr. Lochert had failed to utilise all these resources when directing the suspension and termination.

Outcome

Commissioner Harper-Greenwell was able to conclude that Mr Mammarella’s termination was unjust, and therefore constituted an unfair dismissal. However, no remedy was able to be awarded at this stage.

Conclusion

This case highlighted that there are no unlimited powers when employers decide to suspend or terminate an employee. The decision to suspend an employee must have reasonable grounds. This could include helping facilitate an investigation, for the benefit of a colleague’s safety, or for the benefit of the employee themselves (for example).

Furthermore, there is a large point that a suspension cannot continue indefinitely. There must be a reasonable answer, or evidence, to explain why an outcome has not been met. Even if the suspension was pending an investigation. Investigations within themselves have a reasonable timeline, and longer than 12 months would be a considerable length. The length of a suspension and investigation process does need to be considered when allowing an employee an opportunity to respond. Simply because they have been suspended for a long period of time, does not mean they have had an opportunity to respond for the entirety of it.

Overall, there needs to be some direction and detail as to how and why a suspension has occurred. With there being an end goal or result before the suspension can conclude. Either with the return in the workplace or with termination.