Adam Powell v Centacare Catholic Family Services
[2017] FWC 2209
•12 MAY 2017
| [2017] FWC 2209 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Adam Powell
v
Centacare Catholic Family Services
(U2017/951)
COMMISSIONER HAMPTON | ADELAIDE, 12 MAY 2017 |
Application for an unfair dismissal remedy – jurisdictional objection – whether applicant protected from unfair dismissal – whether minimum employment period met – meaning of “service” considered – whether certain absences were unauthorised – whether other absences were unpaid leave or unpaid unauthorised absences – whether excluded periods considered on basis of scheduled work days or calendar period – unpaid leave absence found – some unauthorised absence – periods to be excluded – excluded periods mean service insufficient to meet minimum employment period – applicant not protected – unfair dismissal application dismissed.
1. Background and case outline
[1] Mr Adam Powell has made an application under s.394 of the Fair Work Act 2009 (the FW Act) seeking a remedy for an alleged unfair dismissal by his former employer, Centacare Catholic Family Services (Centacare). Mr Powell had been employed as a Peer Support Worker as part of Centacare’s personal helpers and mentors service between 26 April 2016 and 11 January 2017. That service provides support to various clients including those with mental health issues and Mr Powell was engaged, in part, because of his own lived experience with mental illness.
[2] Centacare has raised a jurisdictional objection to the application; namely, that Mr Powell is not protected from unfair dismissal on the basis that he has not completed the relevant minimum employment period (MEP) of six months as required by the FW Act. In particular, it contends that during the overall period of his employment, Mr Powell was absent for a total of 160 days comprising of both unauthorised periods and a period of unpaid leave or unpaid unauthorised absence. Further, Centacare contends that these periods are to be excluded for the purposes of calculating service.
[3] Centacare contends that the unauthorised absences were the result of a failure by Mr Powell to advise it of his non-attendance for work as required by its policies and procedures and the absence of any application for leave on those days. In relation to the unpaid absence, it contends that this has occurred as a matter of fact.
[4] Mr Powell contends that he was employed for a period of over eight months and that this included payment for at least 13 fortnights of work. That is, the pay periods during which payments were made cover more than the required six months. Mr Powell further contends that he advised his employer of the absences and that the employer knew, because of the basis of his employment, that there would be absences as part of the management of his mental illness. This, he contends, was part of the prerequisites of his employment, and as such, the relevant absences were both paid and authorised.
[5] In relation to the unpaid period, Mr Powell contends that this was also authorised and that at least three weeks of the absence was the result of his employer’s refusal to let him return to work after he had been certified fit following a hospitalisation to stabilise his health. This, he submits, meant that he was forced to take an extended period of unpaid leave. 1
[6] Accordingly, Mr Powell contends that he was employed for a period over six months and, in effect, had sufficient relevant service to be protected from unfair dismissal.
2. The requirement to complete a minimum employment period
[7] Section 382 of the FW Act provides that unless an applicant employee has completed a period of employment with his or her employer of at least the MEP, they will not be a person who is protected from unfair dismissal and thereby not eligible to bring an unfair dismissal application. Section 390(1)(a) of the FW Act also confirms that an applicant employee cannot be found to have been unfairly dismissed if they are not “protected” within the meaning of the relevant Part of the legislation.
[8] The length of the MEP is defined in s.383 of the FW Act in the following terms:
“383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.”
[9] Centacare is not a small business and as a result the relevant MEP is 6 months. This is, in effect, to be measured on the basis of a calendar period of 6 months. 2
[10] Section 384 of the FW Act further defines the period of employment in the following terms:
“384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.”
[11] It is common ground that Mr Powell’s employment commenced on 26 April 2016 and concluded on 11 January 2017. Mr Powell was paid two weeks’ pay in lieu of notice and although he contends that this should be included to extend the period of service, the relevant point of reference for the MEP is the time of giving notice or immediately before the dismissal. 3 On that basis, Mr Powell’s employment extended across a period of just over eight and a half months.
[12] However, the MEP is assessed on the basis of “continuous service” and this is defined in s.22 of the FW Act to take into account the impact of certain excluded periods. Relevantly, the provision is as follows:
“22 Meanings of service and continuous service
General meaning
(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).
(2) The following periods do not count as service
(a) any period of unauthorised absence;
(b) any period of unpaid leave or unpaid unauthorised absence, other than:
(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or
(ii) a period of stand down under Part 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or
(iii) a period of leave or absence of a kind prescribed by the regulations;
(c) any other period of a kind described by the regulations.
(3) An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.
(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies. If they do so, subsection (3) applies accordingly.
… …” 4
[13] There have been no regulations made prescribing different kinds of periods for the purposes of this definition. 5
[14] In this case, I am required to consider whether there are excluded periods of service sufficient to mean that Mr Powell has not met the MEP. This in turn requires me to determine whether certain absences relied upon by Centacare were unauthorised absences (s.22(2)(a)) or alternatively, unpaid leave or unpaid unauthorised absences (s.22(2)(b)).
[15] The MEP is a jurisdictional prerequisite and the Commission does not have any discretion to waive or alter that requirement. 6
3. The evidence
[16] Mr Powell gave evidence and also relied upon the testimony of Mr Daniel Mackenzie, Clinical Lead, Mental Health Social Worker with the Adelaide Hills Mental Health Team of Health SA.
[17] Centacare relied upon the evidence of Mr Damien Hern, its Executive Manager of Finance and Administration and Mr Chris Chalubek, the Executive Manager of Support, Training and Intervention Services.
[18] Mr Powell’s immediate manager, Ms Everett, reported to Mr Chalubek; however, Ms Everett was not called to give evidence. Mr Powell, raised concerns about this and, in effect, sought that the Commission draw an adverse inference from the failure to call that evidence.
[19] I considered that all of the witnesses gave their evidence honestly and openly. Mr Powell could not recall the detail of many of the events associated with his absences from work and I accept that this is a product of his mental health rather than any attempt not to be open with the Commission. This does however mean that there is limited evidence on certain issues. Mr Mackenzie, who is part of Mr Powell’s support network, was understandably supportive of the applicant; however, I consider that his evidence as to the facts was objective and clear.
[20] The evidence of Mr Hern went largely to the consolidation of the attendance and payment records applicable to Mr Powell and relied upon the business records of Centacare. I have no reason to doubt that information, although the characterisation of the absences for present purposes is a matter for the Commission to determine. Copies of the payslips covering Mr Powell’s employment, 7 which are consistent with the summary evidence provided by Mr Hern,8 have also been provided.
[21] Mr Chalubek was directly involved in some of the events relevant to this matter but in other respects relied upon information gained from others, in particular, Ms Everett, for many aspects of this evidence. Although that evidence is admissible and of assistance to the Commission, there were a number of aspects of the employer’s case where the absence of direct evidence has led to deficiencies. This includes the evidence of Ms Everett regarding discussions between her and Mr Powell about some of the earlier absences and the circumstances under which Mr Powell’s return to work after a period of hospitalisation occurred.
[22] In that regard, it is open for the Commission, but not necessary, to draw a negative inference where there is an unexplained failure to call evidence.9
[23] Centacare contends, in effect, that there was an explanation for the absence of that evidence. This included, that Mr Chalubek’s evidence covered that material and that the evidence of Ms Everett was relevant to the merit of the application, rather than the jurisdictional issue. Further, it contends that Ms Everett was on leave. I note that this last issue was raised primarily in response to a very late application 10 made by Mr Powell to have Ms Everett summonsed to give evidence.
[24] I do not accept that these represent a sufficient explanation for the failure to lead that evidence. Although the relevance of Ms Everett’s evidence may not have been completely clear until Mr Powell had filed his own evidence and submissions, it should have been evident prior to the hearing that there were certain factual issues about which only Ms Everett could give direct evidence. Some of these were directly relevant to the jurisdictional issue to be determined by the Commission, went to contentions that the respondent would be expected to contradict, and were beyond any notion of being simply cumulative evidence.
[25] In all of the circumstances of this case, I consider that it is appropriate to draw a negative inference from the absence of evidence from Ms Everett. That is, her evidence would not have assisted Centacare. This inference is particularly relevant to some of the circumstances surrounding the conduct of the parties immediately following Mr Powell’s period of hospitalisation where there are some factual disputes. However, three observations should be made. Firstly, that inference only extends to factual disputes that are directly relevant to the jurisdictional issue where there is not otherwise relevant evidence. Secondly, the inference does not mean that the Commission will make the presumption that the evidence would have been damaging to the respondent’s case. Thirdly, the inference does not overcome the absence of evidence from Mr Powell about any of the disputed facts.11
[26] In addition, I note that initially the policy information and much of the written communications between the parties surrounding these matters was not provided to the Commission. In that regard, following the initial hearing of this matter, I sought and obtained from the parties certain documentary material that had been referred to in the evidence but not tendered. The parties were also given the opportunity to provide additional submissions in light of that material, which they did, and general liberty to apply was also granted.
4. The context in which the absences occurred
[27] I will deal later with the detailed facts of the matters associated with Mr Powell’s absences. However, some broader context is important.
[28] Mr Powell commenced employment on 26 April 2016. He was engaged on a permanent part-time basis working 38 hours per fortnight, with three working days in one week and two in the other.
[29] Mr Powell’s role required, amongst other attributes, a lived experience of mental illness and recovery. Mr Powell has a diagnosis of a disorder and severe mental illness which is recurring. Centacare was fully aware of all of these circumstances.
[30] Mr Powell was absent from work on six days in the period between the commencement of his employment and the commencement of a relatively significant absence during which he was hospitalised as part of the management of his mental illness. I will deal with the nature and consequences of these absences in due course.
[31] As alluded to above, Mr Powell had an extended period of absence from the workplace between 15 July 2016 and 24 October 2016. This period was an unpaid absence.
[32] In mid and late September 2016, Mr Powell and Ms Everett had discussions which included his capacity and willingness to return to work, whether Mr Powell intended to or should resign, and the need for an appropriate return to work plan to be put into place. These discussions also involved Ms Everett suggesting that Mr Powell take some further time off. To the extent that Centacare contends that it requested a medical clearance from Mr Powell at this time, there is no evidence to support that proposition and I discount it. In early October 2016, Mr Powell provided a medical certificate to Centacare that confirmed his incapacity to work between 27 July and 18 September 2016.
[33] As a result of the September discussions, Mr Powell, with the support of his representative, raised concerns about his treatment and more generally about the reporting relationship with Ms Everett. In due course, an extension to the employment contract, which was otherwise due to expire, occurred.
[34] A proposed return to work plan was developed by Mr Mackenzie and provided to Centacare on 21 October 2016. After his resumption of work in late October 2016, Mr Powell worked hours that gradually increased from 19 hours per fortnight to 26 hours per fortnight in mid-November 2016.
[35] During late November and early December 2016, Mr Powell was nominally working 38 hours per fortnight. However, he was absent from work on 7 days, 11.5 hours of which were paid as sick leave. In mid and later December 2016 and early January 2017, Mr Powell worked a combination of ordinary working hours, public holidays and paid annual leave in the context of a 38 working fortnight.
[36] On 21 December 2016, a meeting was convened, at least in part, as a response to the absences of Mr Powell since his return to work and his lack of communication with Centacare about them. 12 Mr Mackenzie also facilitated the meeting which he attended along with Mr Powell. Mr Chalubek and Ms Everett were present for Centacare. The purpose of that meeting was also to see how Mr Powell was “travelling” and to obtain further information on how Centacare could provide further support for Mr Powell’s return to work.13 During the course of this meeting, Mr Powell confirmed issues of a lack of trust in respect of Ms Everett which he said affected his sense of safety and willingness to communicate with her. Centacare also raised this issue and it was agreed that the joint communication concerns would be discussed at another time. The outcome of that meeting was for Mr Powell to return to his full capacity on the basis that further meetings would follow to address the issues that had been raised.
[37] Mr Powell was dismissed on 11 January 2017 and was paid 2 weeks’ pay in lieu of notice.
[38] In light of the above, Mr Powell has a period of 37.3 weeks of overall service. In addition to the unpaid absence referred to above, during this overall period of service, Mr Powell was absent for various periods covering 13 working days. Centacare continued to pay Mr Powell for these particular days despite his absences but without treating them administratively as leave of any description. These periods constitute what Centacare contends to be unauthorised absences. I will return to the detail of these absences.
[39] I note while not ultimately relevant in its own right in assessing his period of continuous service for present purposes, during the course of Mr Powell’s employment, he attended work on 50 days.
5. Are there relevant excluded periods of service?
[40] I have earlier set out the statutory context for this matter and the proper approach to be taken. For reasons set out above, it is appropriate to consider the two different classes of absence now relied upon by Centacare. For reasons that will become clear, I will deal with the unpaid absences first.
5.1 The unpaid absences
[41] The evidence supports Centacare’s contention that Mr Powell was absent from work for a period between 15 July 2016 and 24 October 2016. This is a period of some three months and ten days, or over 14 weeks. The evidence also demonstrates that all of this period was unpaid.
[42] Accordingly, in order to be excluded from the period of service under s.22(2)(b) of the FW Act as contended, this period must be either a period of unpaid leave or unpaid unauthorised absence. Given that the employer knew about the circumstances of the absence, was kept informed about Mr Powell’s progress, and expressly accepted the basis and purpose of the absence, I am, subject to what follows, satisfied that this unpaid absence was authorised, but was unpaid leave, within the meaning of s.22(2)(b) of the FW Act. 14
[43] There would appear to be three parts to this overall absence. Firstly, a period of some six weeks where Mr Powell was hospitalised in order to stabilise and manage his mental illness. 15 This was unpaid leave and this period is to be excluded for present purposes.
[44] Secondly, a period of approximately two weeks 16 after his hospitalisation during which Mr Powell was advised by his medical practitioner that he was not fit to resume work and did not seek to do so. This was also clearly unpaid leave and is to be excluded for present purposes.
[45] Thirdly, based upon the evidence of Mr Powell, a period of between three and five weeks after he had advised Centacare that he wanted to resume work and before he ultimately did so in the week commencing 24 October 2016. As outlined earlier, there is a dispute about some elements of the events surrounding this period. Mr Powell contends, in effect, that he was prevented from returning to work by Ms Everett for a period of some three weeks and that Ms Everett sought to force his resignation at some point. He further contends that he should not be “penalised” for this action.
[46] Centacare contends that it was seeking a return to work plan for Mr Powell and that this was appropriate, and in line with normal procedures, given that the applicant was returning to work from an extended period of hospitalisation, and necessary, in the context of the significant illness that was being managed by all parties. It also contends that there was a misunderstanding about the issue of a resignation and that when the applicant’s intentions were clarified, there was no subsequent suggestion of a resignation or termination of employment at that point. Rather, Mr Powell’s employment contract was extended for a period given his earlier absence.
[47] For reasons outlined earlier, the evidence surrounding these events is somewhat unsatisfactory. In that light, I have principally relied upon the documentary material, the evidence of Mr Powell – subject to the important caveats outlined earlier, and Mr Mackenzie, who ultimately prepared the return to work plan that was adopted by the parties. Further, I have also relied upon the evidence of Mr Chalubek, to the extent that he was directly involved in any discussions relating to these events. I have drawn a negative inference from the absence of evidence from Ms Everett within the limited parameters set out earlier in this decision.
[48] I find that when Mr Powell advised Ms Everett that he was ready to return to work, Ms Everett indicated that he should take more time, that it would be appropriate to make sure that he was ready to resume and to have a graduated return to work plan developed. Mr Powell understood the need for this measure and initially accepted the delay that this created. 17 At some point, in October 2016, Mr Powell became concerned about that delay and the approach being taken by Ms Everett and this led to correspondence on his behalf being sent on 10 October 2016. At some stage around this period, Mr Mackenzie was also approached to develop the return to work plan, which was provided on 21 October 2016. This plan was to involve an agreed reduction in working hours and duties for a period, with the hours and duties increasing over time. The plan contemplated a resumption of work from the week commencing on 24 October 2016.
[49] It is not necessary to determine the detail of the events surrounding the exchanges about the “resignation” for present purposes. What is likely, based upon the evidence and the appropriate inference, is that Ms Everett was questioning whether Mr Powell should resume work. It is also likely that Ms Everett reported the discussions to more senior management and that she was advised to “confirm” a resignation with Mr Powell. It is also evident that Mr Powell took exception to the approach adopted by Ms Everett including what he considered to be an abuse of trust on some other issues. He then also took the view that he could not safely engage with Ms Everett about his subsequent absences and did not do so. He raised these concerns with more senior management and was expecting support or some alternative reporting arrangement, which was not forthcoming. It is also clear that as part of these events, there was no subsequent suggestion of a resignation and Mr Powell’s employment contract was extended beyond the initial “probationary” period, which was due to end in September 2016, given his earlier absence.
[50] The issue becomes how the final weeks of the unpaid absence should be treated. Based upon the evidence that is properly before the Commission, it is a reasonable inference that at least for the initial part of this final period, the parties had a common position, being that Mr Powell’s return to work should be delayed and subject to an agreed plan. In that light, there is no suggestion that Mr Powell was prevented from returning to work and the absence would continue to represent unpaid leave and is to be excluded for present purposes. The conjecture surrounds the remaining part of this final period. At least until 21 October 2016, no return to work plan was in place and although Mr Powell had been informed that he was well enough to return to work and had apparently informed Centacare of that understanding, no medical clearance for work had been provided. Based upon the evidence before the Commission, such a clearance was not sought. However, given the extent and nature of the earlier extended absence and the circumstances more generally, it was prudent to wait for a return to work plan from someone of Mr Mackenzie’s standing.
[51] I do have reservations about how the return to work process was handled prior to the point when the plan was sought. However, the immediate question is whether there was an absence from work and whether it was unpaid, which did occur and was the case. In that light, the remaining issue is whether the final period of the unpaid absence should be considered to be unpaid leave for present purposes.
[52] The applicant strongly contended that this period was an authorised absence, and I agree for reasons set out above. However that is not the point. Section 22(2)(b) excludes from the calculation of continuous service, absence that is a period of unpaid leave. In all of the circumstances I find, on balance, that the further period also represented a period of unpaid leave within the meaning of the FW Act.
[53] In that regard, I have considered whether the latter stages of this final unpaid period might be considered to be a stand down and subject to the exception in s.22(2)(b)(ii) - so that the period would be included as continuous service. The evidence is not sufficient to support the proposition that Mr Powell was “stood down”, and in any event, the circumstances are not such that the absence could be considered to be a stand down within the meaning of that provision. Section 524 of the FW Act provides the circumstances in which a stand down may take place, which are not relevant here, 18 and s.525 provides as follows:
“525 Employee not stood down during a period of authorised leave or absence
An employee is not taken to be stood down under subsection 524(1) during a period when the employee:
(a) is taking paid or unpaid leave that is authorised by the employer; or
(b) is otherwise authorised to be absent from his or her employment.
Note: An employee may take paid or unpaid leave (for example, annual leave) during all or part of a period during which the employee would otherwise be stood down under subsection 524(1).”
[54] I consider that Mr Powell was on a period of (authorised) unpaid leave at the relevant time. Although the note in s.525 is directed to circumstances where leave is taken during a stand down, the provision is consistent with the notion that a period of leave is not a period of stand down more generally.
[55] On the basis of the above findings, there is a period of absence of at least 14 weeks that was unpaid leave and is to be excluded for present purposes. I also consider that this represents a “period” of otherwise relevant service that should be treated as an excluded period of time for the purposes of s.22 of the FW Act, rather than attempting to assess only the working days falling within that period. This is the ordinary and natural meaning of the provision in the context of the MEP, which is itself defined by reference to an overall period of time rather than to working hours, shifts or days, or other concepts.
[56] I consider that this period of at least 14 weeks does not count as part of the continuous service. This period is to be deducted from the overall period of service (just over eight and half months or 37.3 weeks) and when this is taken into account, the length of Mr Powell’s continuous service falls marginally short of the MEP.
5.2 The “unauthorised” absences
[57] Given the above findings, it is not strictly necessary to deal with the entirety of what Centacare describes as the unauthorised absences. However, given the nature of those findings, it is appropriate that I make some observations and relevant findings.
[58] Centacare contends, in effect, that there are a number of periods of absence where the Mr Powell did not attend for work, did not notify it of the absences in accordance with its policies, and did not apply for leave. In the ordinary scheme of things, I would be inclined to agree that these absences could be considered to be unauthorised.
[59] However, I have not been provided with the detail of the policies and whilst Mr Powell was vague about the details of the absences including when he advised Ms Everett of the absences, the evidence would support the notion that Centacare was aware of his mental illness and that he was absent at various times as a result of that factor. Indeed, although Centacare took exception to the lateness of some notice, it was clear on their own evidence that contact was made by or with Mr Powell about these absences on most occasions. Centacare also took the view that Mr Powell would be paid for these absences, due in part to their desire to support him and the fact that he would not have been entitled to paid personal leave at that time. Further, the employer also proceeded on the basis that Mr Powell was on a “salary” and that he would subsequently make up that time through some form of time worked in lieu arrangements. Despite the fact that this understanding was not formalised with Mr Powell, it does appear to be a factor in relation to Centacare’s treatment of the applicant’s early paid absences from work.
[60] In that light, it seems to me that, at least in terms of those absences that took place prior to the hospitalisation and significant associated absence, it would be difficult for Centacare to convince the Commission that these absences should be treated as being unauthorised for present purposes. Unless that finding was made, that service would represent authorised paid absences and not be excluded from the calculation of continuous service., However, it is not necessary to make a finding on this aspect as that service would not, in any event, be sufficient when combined with the other eligible service, to meet the MEP.
[61] After the hospitalisation and related absences, Mr Powell, for good reasons from his point of view, determined that he would not advise Ms Everett of his absences from work and did not do so. Indeed, he did not inform anyone at Centacare that he was to be absent and did not seek leave or any other authority for these periods either before or after the relevant absences. Further, unlike the earlier absences and with the exception of the small amount of paid personal leave that was sought and granted, Centacare did not accept these absences and this led, in part, to the meeting conducted on 21 December 2016. Although there were no deductions from pay, I consider that those absences that took place in late November and during December 2016, with the exception of a period of the paid personal leave, would properly be treated as unauthorised absences for present purposes. That is, absences that are to be excluded as unauthorised absences under s.22(2)(a) of the FW Act.
[62] When these absences are excluded, which amount to a period in the order of seven days (covering a period of almost six working days beyond the personal leave period) this adds to the shortfall in the extent of continuous service for the purpose of the MEP.
6. Did Mr Powell meet the minimum employment period?
[63] As would be clear from the discussion above, I consider that the proper approach to the present task is to assess the overall period of employment as defined by the FW Act and then to consider each of the relevant absences from work and to determine whether they fall within the relevant exclusions provided in s.22(2).
[64] It follows that I do not consider that the approach proposed by Mr Powell, of aggregating the hours of work and pay periods to produce an effective period of employment, is consistent with the statutory scheme. Further, even if adopted, the pay periods where payments were made, excluding the payment in lieu of notice that does not count as service, represent 24 weeks (12 fortnightly pay periods) and this would not be sufficient to meet the MEP. In addition, if that approach were taken, Mr Powell worked on no more than 50 days and operating on the basis of five working days per fortnight and making some allowance for the reduced hours after the extended period of absence, this would still represent less than the MEP.
[65] For reasons set out earlier, I have found that the excluded periods of service are sufficient in this case to mean that Mr Powell has not met the MEP.
7. Conclusions and orders
[66] This decision deals with the jurisdictional issue associated with the MEP. I have not considered the substantive merit of the unfair dismissal application or whether Mr Powell’s treatment was fair in any general sense.
[67] I have found that Mr Powell has not met the MEP. As a result, given the statutory provisions, he was not protected from unfair dismissal within the meaning of the FW Act.
[68] Accordingly, the unfair dismissal application is beyond the jurisdiction of the Commission and must be dismissed. An order 19 to this end is being issued in conjunction with this decision.
COMMISSIONER
Appearances:
A Duigan of Disability Rights Advocacy Service Inc for Adam Powell.
C Victory of Duddy Shopov (with permission), with B Victory, for Centacare Catholic Family Services.
Hearing details:
2017
Adelaide
April 19.
Final written submissions:
Centacare – 1 and 5 May 2017
Mr Powell – 7 May 2017.
1 Further written submissions dated 7 May 2017 at 8.
2 Wilkinson v Skippers Aviation Pty Ltd AIRCFB PR903635 applying the Acts Interpretation Act 1901 (Cth).
3 FW Act s.383. See also Wales v 3 Point Motors Pty Ltd T/A 3 Point Motors[2012] FWA 3817 at [7].
4 Section 22 also deals with other exceptions in dealing with the exclusions from service and circumstances that are not relevant to this matter.
5 Workpac Pty Ltd v Babach[2012] FWAFB 3206 at [29].
6 See Wales v 3 Point Motors Pty Ltd T/A 3 Point Motors[2012] FWA 3817 at [28].
7 Exhibit A1.
8 Attachment to Statement of Mr Hern– – Exhibit R1.
9 Jones v Dunkel (1959) 101 CLR 298. See also The Herran Building Group Pty Ltd v Edward Anneveldt[2013] FWCFB 4744.
10 Mr Powell made the application on the eve of the hearing, despite having had access to the employer’s evidence for some weeks prior to that point. The application was declined by the Commission, principally on that basis.
11 See Cross on Evidence, Fifth Edition at [1215].
12 Oral evidence of Mr Chalubek at 11.01am.
13 Ibid.
14 There are some exceptions to the excluded periods defined in s.22(2), however these are not relevant in this matter.
15 Statement of Mr Mackenzie – Exhibit A2.
16 This is derived from the objective evidence about the overall length of the unpaid absence and the length of the hospitalisation.
17 Oral evidence of Mr Powell at 11.56am.
18 The circumstances contemplated in the FW Act for a stand down are not relevant and there is no suggestion that an enterprise agreement or contractual stand down was involved (see s.22(2)(b)(ii).
19 PR952067.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR591987>
0
4
0