The Fair Work Commission ("FWC") has found that when an employee of Northern NSW Football Limited ("NNSWF") accepted another role as the Head Coach of a Premier Club, this conflict of interest warranted summary dismissal.
NNSWF is the governing body of football for northern NSW. NNSWF is responsible for the governance and conduct of premier football competitions in northern NSW, including the NPL. It has an operating budget of about $10 million. NNSWF is responsible for the Premier Clubs and is directly responsible for the administration and regulation of the regional Premier Competitions.
In 2017 Leo Bertos was employed by NNSWF as a Technical Advisor. On 2 December 2019 Bertos was appointed acting Technical Director for a fixed period to March 2020. This was a full-time position. The role reported to the NNSWF Head of Football, Peter Haynes and his duties included providing advice and recommendations which directly influence "strategy, policy and regulations pertaining to the conduct of the Premier Competitions."
On 3 December 2019 Bertos told Haynes that he had been offered and had accepted the role of Head Coach at Weston Football Club ("Weston FC"). Bertos explained that NNSWF would remain his priority and that Weston FC were willing to accommodate him fulfilling his duties with NNSWF. In particular, Bertos said that he would be available in the evening on Monday, Wednesday and Friday for NNSWF and would train with Weston FC on Tuesday, Wednesday and late Friday evenings.
Conflict of interest
NNSWF took the view that it would not be logistically workable for Bertos to be unavailable two weeknights and one weekend afternoon. Notwithstanding the time constraints, NNSWF also believed there was risk of a perceived or real conflict of interest.
On 17 December 2019 a meeting was held with David Eland (CEO of NNSWF), Haynes and Bertos to discuss NNSWF's concerns around the conflict of interest. Eland then sent an email to Bertos setting out NNSWF's view that holding both roles was untenable. In early January 2020 Eland came to hear that Bertos had accepted the role of Head Coach. Bertos had not advised Eland or Haynes of his decision.
On 6 January 2020 Bertos was stood down by NNSWF. On 10 January 2020 Bertos was sent a show cause letter and invited to attend a meeting on 14 January 2020. Bertos stated that there was no significant issue or conflict with him being Head Coach and his role with NNSWF. Bertos asked Eland to at least allow him a trial period to see if he could manage both roles.
Dismissal for serious misconduct
On 15 January 2020 NNSWF informed Bertos that his employment had been terminated for serious misconduct in that, he had:
- failed to disclose his acceptance of the role of Head Coach of Weston FC; and
- accepted the role and disregarded NNSWF advice about the conflict.
Bertos brought an unfair dismissal claim in the FWC.
Fair Work Commission
Bertos argued that he obtained the job as Head Coach of Weston FC as a step to advance his career and apply the additional knowledge and experience to the benefit of NNSWF. This was accepted by the Commission however NNSWF were entitled to consider whether the benefits were outweighed by the detriment associated with Bertos holding both positions.
In essence, in finding that the conflict of interest warranted summary dismissal, the FWC agreed with the employer that by holding the position of Head Coach of a Premier Club it would undermine the integrity and independence of the NNSWF. As the acting Technical Director, Bertos was involved in decision making which impacted players, coaches and clubs which included recommending candidates for the Jets Academy, Talented Player Pathway, Emerging Jets Program, Skills Development Program and Talent Support Program.
While NNSWF was not opposed to Bertos having a second job, the Head Coach role would have encroached on the times he was required to be available for his role as acting Technical Director. Bertos was not upfront with NNSWF when he finally decided to accept the role with Weston. In these circumstances, the conflict of interest warranted dismissal.
The Commissioner commented that Bertos' personal ambition had clouded his judgment. Indeed, Bertos appeared to be naïve to have held the view that he could have performed both roles.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.