Charbel Joseph Younan v Westpac Banking Corporation
[2024] FWC 654
•13 MARCH 2024
| [2024] FWC 654 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Charbel Joseph Younan
v
Westpac Banking Corporation
(U2024/839)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 13 MARCH 2024 |
Application for an unfair dismissal remedy
Mr. Charbel Younan (Applicant) has applied for relief under Part 3-2 of the Fair Work Act 2009 (Act), alleging that he has been unfairly dismissed from his employment by his previous employer, Westpac Banking Corporation Ltd (Respondent).
The Respondent raised two objections to the application. They said the application had not been made within the 21-day time period prescribed by s.394(2) of the Act and there were no exceptional circumstances which would warrant the Commission exercising its discretion to extend that time period. Secondly, the Respondent said that the Applicant was not protected from unfair dismissal because at the time his employment ceased, he had not completed a period of employment with the Respondent of at least the relevant minimum employment period of 6 months. Both objections were dealt with at the hearing of the matter on 26 February 2024.
Background
The Respondent said the Applicant commenced employment with them as a Business Development Manager on 5 June 2023. The Applicant said the commencement date was 6 June. For reasons which will become apparent, nothing turns on this issue. The Applicant was employed for a probationary period of six months. There were periodic reviews of the Applicant’s performance during the probationary period.
The Applicant claimed that he had difficulties working with his direct managers. In the first instance this was Ms. Moss and later, Ms. Willsallen. He claimed that amongst other things, unreasonable work demands were made of him and that he was subjected to bullying-type behaviour. He made a formal complaint about Ms. Willsallen in September. The Applicant said the matters he complained of began to have an impact on his physical and mental health. The Applicant took three periods of paid sick leave in the period from 25 July 2023 to 10 November 2023. He also took a period of two days’ unpaid leave on 17 and 18 August 2023.
The Respondent claimed that there were issues with the Applicant’s performance. On 8 November 2023 a formal probation review meeting was held between the Applicant and Ms. Willsallen. A further meeting was scheduled for Friday 10 November. The Applicant was told he could bring a support person to that meeting. On 10 November the Applicant advised that he had been unable to arrange a support person and asked for the meeting to be rescheduled. On the same day he advised that he was unwell and unable to attend work.
The Applicant provided a certificate of capacity to the Respondent dated 10 November 2023. The certificate was an initial certificate for the purposes of a claim under the New South Wales workers’ compensation system. The medical practitioner certified that the Applicant suffered from a work-related illness or disease which was “stress disorder with associated IBS and migraines.” The certificate said that the Applicant’s stated date of injury was September 2023. It certified the Applicant as unfit for work from 10 November to 24 November 2023. The Applicant later supplied additional certificates of capacity that certified him as unfit for work for the period up until his termination and beyond.
The Applicant’s last day of attendance at work with the Respondent was 9 November 2023. The Applicant was paid for sick leave on 10 November 2023 and annual leave from 13 to 23 November 2023.
On 23 November 2023, the Applicant made a formal written complaint to management about a range of significant work-related issues which he said had had an adverse impact on him over the term of his employment.
On 27 November Ms. Willsallen wrote to the Applicant and told him that he had exhausted all of his annual leave entitlements and that he would be moving on to unpaid leave. Ms. Willsallen also advised the Applicant that his probationary period would be extended for the duration of any unpaid leave period from 24 November onwards. The Applicant was absent and was not paid by the Respondent from 24 November until his termination on 15 December 2023.
The Legislation
Section 396 of the Act requires the Commission to consider and decide certain matters relating to an order under Division 4 of Part 3-2 before considering the merits of the application. Amongst these matters are whether the application was made within the time period required in s.394(2) and whether the person was protected from unfair dismissal. I propose to deal with the question of whether the Applicant was protected from unfair dismissal first.
Section 382 of the Act provides:
382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
It was not in issue that the Applicant met the requirements of subsection (b) of s.382 in this case. However, the Respondent said that the Applicant had not completed a period of employment with it of at least the relevant minimum employment period on the date when his employment came to an end.
The Respondent is not a small business employer[1] for the purposes of the Act. In that case, the minimum employment period is six months.[2]
Section 384(1) of the Act provides that 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.
Section 22(1) of the Act provides that a period of service by a national system employee with their national system employer is a period during which the employee is employed by the employer but does not include any “excluded period” as defined in subsection (2) of that section. Subsections (2) and (3) of s.22 provide as follows:
(2) The following periods do not count as service:
(a) any period of unauthorised absence;
(b) any period of unpaid leave or unpaid authorised 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 prescribed 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.
The Respondent contended that the Applicant had periods of unpaid leave or unpaid authorised absence within the meaning of s.22(2)(b) and that these periods did not count towards the Applicant’s continuous service in accordance with subsection (3). The Respondent said that taking these excluded periods into account meant that the Applicant did not have the requisite six months employment with the Respondent and so was not protected from unfair dismissal. The factual basis for the submission is described below.
The Respondent said that the Applicant’s employment commenced on 5 June 2023 and concluded either on 15 December 2023 (if the Commission accepted the Respondent’s case that the termination letter was delivered to the Applicant on that day) or on 16 December 2023 (if the Commission accepted the Applicant’s case that the termination letter was delivered to him on that day). The Respondent said the total period of the Applicant’s employment with the Respondent was therefore 6 months and 10 days. The Applicant accepted that this was the duration of his employment, even though he said his actual commencement date was 6 June and his termination date was 16 December 2023.
The Respondent said that there were two relevant periods of leave during the Applicant’s employment. These were two days on 17 and 18 August 2023 and 22 days commencing on 24 November and concluding on 15 December 2023. The Respondent said that these periods of leave were not paid by Westpac as regular salary, or workers compensation payments and on this basis, these periods of leave are properly characterised as “unpaid leave” in the sense that expression is used in section 22(2) of the Act. In that case the Respondent said that a conclusion that the November/December was an excluded period would mean that the Applicant was employed for less than the minimum employment period.
The Applicant accepted that he was absent and on leave during both periods. He agreed that he was not paid wages or weekly workers’ compensation payments by the Respondent during these periods. He said that he had been notified that his medical expenses only would be paid. He said no expenses were claimed.
The Respondent provided evidence relating to the Applicant’s workers' compensation claim through Mr. Coniglio, the Respondent’s practice lead in their Workplace Resolutions team. Mr. Coniglio said that he had spoken with the supervisor of the Respondent’s workers’ compensation department that had managed the Applicant’s claim and been advised as follows:
10(a) In NSW, there are 4 options available to an insurer when a claim is first received:
i. accept in full;
ii. dispute;
iii. accept provisionally, which allows for 12 weeks of wage benefits and up to $10k in medical to be paid without an admission of liability;
iv. Reasonably Excuse (some other states have similar mechanisms,usually referred to as a Pended claim);
(b) a Reasonable Excuse applies in circumstances where an insurer has insufficient information to determine liability and an excuse exists to not commence paying weekly benefits (either in full or provisionally). There are only a set number of excuses that can be applied. In this instance, two were applicable; there was insufficient medical information, and notification of injury had been received more than 2 months after the alleged injury date.
(c) when a claim is Reasonably Excused, the insurer must still cover reasonable medical costs but is not required to make weekly wage payments. The insurer must also inform the claimant of what they can do to remedy this, and must take steps themselves to gain the necessary information. To this end, we organised an independent medical examination, and it is the completed report from this examination that we have been waiting on in order for us to make a determination on liability.
11.Mr Younan's claim was 'reasonably excused' from the outset, and a determination of liability was made on 31 January 2024 to decline the claim.
12. Mr Younan was not paid by Westpac or any other entity any wage entitlements as part of his claim. Reasonable medical costs were still covered, as is required under the legislation, but they were minimal and related mostly to consultations with his doctor. No other benefits or payments were provided as part of the claim prior to the dispute being issued.
Consideration
The proper construction of the expression ‘unpaid authorised absence’ in s.22(2)(b) was considered by a Full Bench of the Commission in Workpac Pty Ltd v Bambach[3] (Bambach). In that matter, the Bench was considering an appeal from a decision in which it had been found that the period in which an employee was absent and in receipt of workers’ compensation payments was not an excluded period for the purposes of s.22. In dismissing the appeal, the Full Bench rejected the argument that the expression ‘unpaid authorised absence’ consisted of absences not paid by an employer, including those where the employer simply passes on payments of other parties such as occurs with workers’ compensation arrangements. The Bench said:
[36] We reject this proposition insofar as it applies to the payments made to Mr Bambach while absent on workers’ compensation. Both the workers’ compensation payments and the payment of accident pay were made pursuant to a legal obligation upon his employer, WorkPac.
[37] Contrary to the appellant’s submission, the fact that WorkPac chose to insure against such liabilities, and hence the payments were actually made by WorkPac’s insurer, is irrelevant. The fact that the payments were made pursuant to a legal obligation upon the employer is the critical consideration. The nature of the payment does not change because the employer has entered into an indemnity arrangement with a third party.
Bambach was referred to in the decision of the Federal Circuit Court of Australia (as it then was) in Hall v. Medical Imaging Queensland Pty Ltd[4] (Hall). The Court there considered whether an employee in receipt of workers’ compensation payments under the Queensland workers’ compensation scheme accrued annual leave during that period. The answer to the question was dependent on the proper construction of s.22(2)(b) of the Act. The applicant argued that the absence was not unpaid because WorkCover was paying compensation to him that his employer was otherwise obliged to pay. The respondent argued that that the period was caught by s.22(2)(b) because no amounts were paid by them and the period was therefore unpaid leave or an unpaid authorised absence.
In rejecting the respondent’s arguments, the Court made reference (as the Full Bench did in Bambach) to the earlier Commission decision in Webster v. Toni and Guy Port Melbourne Pty Ltd[5] (Webster). In the latter case, the Commission concluded that an employee’s absence due to a motor vehicle injury was a period of ‘unpaid leave or unpaid authorised absence’ despite the fact that the employee was receiving payments from a statutory body, the Transport Accident Commission, during the period in question. The Court in Hall said:
25. What then differentiates between an employee who is absent and paid compensation by reason of a statute like the Workers’ Compensation Act (Qld) and a worker who receives payment because of a private insurance arrangement or a statutory “no fault” compensation scheme? The answer is supplied by Bambach. That decision demonstrates that, if the employer has an obligation to pay the employee whilst he is absent, then whether the employer pays the employee, or another does on the employer’s behalf does not matter. The absent (sic) is not unpaid for the purposes of s.22(2)(b)of the Fair Work Act.
26. Bambach does not bind me but it is I think, with respect, correct. What is important is the existence of an obligation on the employer to pay the employee whilst he or she is absent.
In each of Bambach and Hall the employees’ claim for workers’ compensation had been accepted and they were in receipt of workers' compensation payments. The argument was about the significance of the fact that the payments were not coming directly from the employer. This is not the case here. In this case it was accepted that no weekly workers’ compensation payments were ever made and that ultimately, after the termination of the Applicant’s employment, the claim for workers' compensation was rejected. The Respondent says this is a critical distinction and that the absence of payment means the period is one of ‘unpaid leave or unpaid authorised absence’.
There are various passages in Bambach where the Bench discusses the import of an employee being ‘on workers’ compensation’. For example, in its consideration of the Explanatory Memorandum to the Act at paragraph [55] the Bench says:
It seems to us that the Explanatory Memorandum in fact supports the contrary proposition, namely that an absence on workers’ compensation is not an ‘excluded period’ for the purpose of calculating an employee’s service and hence her or his entitlement to various forms of leave. Indeed if the appellant’s construction of s.22 was correct then there would be no need for s.130 to ‘switch off’ the leave accrual rules in Part 2.2.[6]
At paragraph [67] the Bench says “We have concluded that an absence on workers’ compensation is not an ‘excluded period’ within the meaning of s.22”. The Respondent argued that these references needed to be considered in the context of the matter the Bench was dealing with and were not statements of general application. In particular, the Respondent said that references in Bambach to an employee being 'on workers compensation' should be read as a reference to employees whose workers’ compensation claim has been accepted and who are in receipt of workers compensation benefits. This was not the situation in the present case.
There is in my view, some force in the Respondent’s submission on this point. The Bench in Bambach was dealing with a particular factual scenario. The injury in that matter was never in dispute. The workers’ compensation claim was accepted from the outset.[7] The employee was in receipt of workers’ compensation payments.[8] For those reasons it was unnecessary for the Bench to turn their minds to other situations in which the status of a workers’ compensation claim might not be so well-settled, and they did not do so. Moreover, the argument in Bambach was about the source of the payment and whether the amounts paid had to come directly from the employer in order for the leave or absence to be considered ‘paid’. The Bench concluded that it did not, and it is that principle for which the decision stands.
In the NSW workers’ compensation system, once an insurer has received initial notification of an injury it must start making provisional weekly payments of compensation within seven calendar days unless there is a reasonable excuse for not doing so. Section 267 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) provides as follows:
267 Duty to commence weekly payments following initial notification of injury
(1)Provisional weekly payments of compensation by an insurer are to commence within 7 days after initial notification to the insurer of an injury to a worker, unless the insurer has a reasonable excuse for not commencing those weekly payments.
(2)A person does not have a reasonable excuse for not commencing those weekly payments unless the person has an excuse that the Workers Compensation Guidelines provide is a reasonable excuse.
(3)The payment of provisional weekly payments of compensation under this section is on the basis of the provisional acceptance of liability by the insurer for a period of up to 12 weeks determined by the insurer having regard to the nature of the injury and the period of incapacity.
(4)The acceptance of liability on a provisional basis does not constitute an admission of liability by the employer or insurer under this Act or independently of this Act.
(5)An insurer who fails to commence weekly payments of compensation as required by this section is guilty of an offence.
: Maximum penalty--50 penalty units.
In this matter, it was not in dispute that the Applicant did not receive workers’ compensation payments after notifying of his compensation claim. The evidence was that the Respondent’s insurer relied on the ‘reasonable excuse’ provisions of the NSW legislation. Liability for the claim was never accepted either on a provisional or final basis. I make no comment on that decision. The point is that following the making of a workers’ compensation claim in NSW, the legislation allows for a limited number of possibilities with respect to payment to a claimant; either provisional payments commence, or the reasonable excuse provisions are invoked (or liability is refused) and no payments are made.[9] In circumstances such as here where the latter situation arises, I do not think it is possible to conclude that the periods in question were anything other than a period of unpaid leave or unpaid authorised absence within the meaning of s.22(2)(b).
Where an employee has been absent on unpaid sick leave and a workers’ compensation claim relating to the period of leave is ultimately rejected, the Commission has previously concluded that the period of the absence in respect of which the workers compensation claim is made did not count as service for the purposes of the minimum employment period.[10]
For completeness, I note that the evidence of Mr. Coniglio referred to some minor reimbursement of medical expenses for the Applicant. The reasonable excuse provisions apply to provisional weekly payments but not to medical expenses compensation.[11] The Applicant himself suggested that no such claims were made. In either event I do not think the reimbursement of these kinds of expenses, as distinct from regular workers’ compensation payments for lost earnings, would change the result.
The Applicant was not protected from unfair dismissal because he had not completed a period of employment with his employer of at least the minimum employment period. In the circumstances it is unnecessary to consider the application for an extension of time.
The application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr Younan for the Applicant.
Mr Frost, Solicitor for the Respondent.
Hearing details:
By Video using Microsoft Teams at 2pm AEDT on Monday, 26 February 2024.
[1] Section 23.
[2] Section 383(a).
[3] [2012] FWAFB 3206.
[4] [2015] FCCA 326.
[5] [2010] FWA 4540.
[6] See also paragraph [56].
[7] Bambach op cit paragraph [5].
[8] Ibid paragraph [7].
[9] Sections 267 and 275 Workplace Injury Management and Workers Compensation Act 1998 (NSW).
[10] See Whipps v. Australian Leisure and Hospitality Group Pty Ltd T/A ALH Group Ltd [2017] FWC 1990 and on appeal [2017] FWCFB 2799.
[11] Ibid s.279.
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