Debra Haldane v Helping Hand Aged Care Inc T/A Helping Hand

[2014] FWC 4029

[2014] FWC 4029

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Debra Haldane
v
Helping Hand Aged Care Inc T/A Helping Hand
(U2014/5781)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 18 JUNE 2014

Application for relief from unfair dismissal - termination of employment - effective date of dismissal - no actual casual employment.

[1] On 20 March 2014 Ms Haldane lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) with respect to the termination of her employment with Helping Hand T/A Lealholme. In that application Ms Haldane asserted that the termination of her employment took effect on 3 March 2014.

[2] The employer response to the application (Form F3) identified the employer as Helping Hand Aged Care Inc T/A Helping Hand (Helping Hand). I have utilised the discretion available in s.587 of the FW Act to amend the application accordingly.

[3] The employer response also confirmed that Helping Hand objected to the application proceeding further on the basis that it asserted that the application was lodged outside of the statutory time limit, that Ms Haldane was not dismissed and that, in any event, she had not completed the necessary minimum employment period. Helping Hand asserted that: 1

“1. The applicant resigned her part-time employment at her instigation effective from 26 August 2013.

2. The applicant applied for employment as a casual from the same date.

3. Since that date, she has not worked any shifts as a casual employee.

4. The applicant therefore does not meet the requirement for the minimum employment period in s383 of the Fair Work Act 2009, having regard to the provisions of s384 that state that service as a casual does not count towards an employee’s period of service unless the employment was on a regular and systematic basis.

5. The fact that the applicant did not work any shifts between 26 August 2013 and 3 March 2014 means the test of regular and systematic employment is not met.

6. The respondent also contends that no dismissal at the employer’s instigation can have occurred where the employee had applied for and been offered employment on a casual basis, but had not worked a shift on this basis. There is no valid contract of casual employment where no shifts as a casual have ever been worked.

7. The application should therefore be dismissed for lack of jurisdiction.

8. In the alternative, if the applicant contends that the employment ended in August 2013, the respondent submits that the termination was not a dismissal at the employer’s instigation, and should be dismissed for lack of jurisdiction.

9. In the alternative, if the applicant contends that she was dismissed at the respondent’s instigation from her part-time position in August 2013, the application for unfair dismissal is significantly out of time and should be dismissed for lack of jurisdiction.”

[4] I issued directions detailing the requirement for the provision of material to be considered in a telephone hearing on 16 June 2014. Helping Hand provided limited statements and supporting material prior to that hearing. Ms Haldane provided a statutory declaration made out by a Ms Hollitt which went to confirming that Ms Hollitt was present when Ms Haldane signed a casual employment contract and then delivered that contract to Helping Hand.

[5] In the hearing Ms Haldane appeared for herself while Mr LeQuesne represented Helping Hand pursuant to a grant of permission under s.596(2)(a). I note that Ms Haldane consented to the grant of permission in the course of a directions conference on 15 May 2014.

[6] I have considered all of the material provided to me and the evidence given in the hearing in reaching a conclusion in relation to Ms Haldane's capacity to pursue the application.

[7] Ms Haldane can only be unfairly dismissed if in fact she was dismissed by Helping Hand. Section 385 refers to dismissal in the following terms:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[8] If Ms Haldane is to be able to pursue this application the facts must establish that the termination of her employment was at the initiative of the employer.

[9] The extension of time issue must be subject to my findings about whether Ms Haldane was dismissed.

[10] Lastly, I note that, subject to the above findings, the issue of whether Ms Haldane had completed the requisite minimum employment period could then become relevant.

[11] The evidence of Ms Haldane and the material before me establishes that Ms Haldane commenced employment with Helping Hand at the Port Pirie Lealholme facility as a part time Carer in June 2008.

[12] The combination of the evidence of Mr Farrell, the General Manager of the Country Division of Helping Hand and Ms Press, the Residential Services Manager of the Lealholme facility where Ms Haldane worked and the material provided to me, confirms that in August 2013 Ms Haldane twice requested leave without pay for 6 months. She sought this leave to help relocate her son in Adelaide. I am satisfied that, after consulting Mr Farrell, Ms Press advised Ms Haldane on 12 August 2013, that her request was refused. Mr Farrell then spoke with Ms Haldane and confirmed this rejection in writing. 2 Mr Farrell met with Ms Haldane on 19 August 2013 and again confirmed that leave without pay was not approved. Mr Farrell also confirmed his earlier position that Ms Haldane could:

(a) Apply for vacant shifts at a Helping Hand residential site or sites in Adelaide.

(b) Convert her employment status to casual and apply for casual work at Helping Hand.

(c) Resign 3

[13] Ms Press provided a copy of a handwritten request from Ms Haldane to Helping Hand to change her employment contract to casual employment. This request also advised that she would be unavailable to do any casual shifts until 3 March 2014. I am satisfied that this advice was provided to Helping Hand on or about 20 August 2013. On 23 August 2013 Ms Press wrote to Ms Haldane to confirm this change in her employment status and to provide to her a casual employment contract. This contract was signed by Ms Haldane on 30 August 2013. I have noted that, whilst Ms Haldane confirms this sequence of events she asserts that she signed a further document upon which she indicated her availability for casual work. I have accepted Ms Press’ advice that she was not aware of this document but do not consider this document to be relevant to the jurisdictional issues to be determined here.

[14] I have concluded that a casual employment contract was entered into at Ms Haldane's own instigation. Ms Haldane no doubt had good reasons to seek a change in her employment and no doubt would have preferred to take leave without pay. Nevertheless, Helping Hand was not obliged to grant that leave to Ms Haldane and I have concluded that Ms Haldane elected to resign her weekly hire part time employment and agree to casual employment which she acknowledged in the contract she signed and had no ongoing right to employment and no guarantee of employment.

[15] Consequently, Ms Haldane’s assertion that in September 2013 she took six months leave without pay and was due to return to work on 1 March 2014 is simply not supported by the evidence before me. Ms Haldane also asserts that she was uncertain about the date upon which the termination of her employment took effect. In her application, Ms Haldane was told that her employment was terminated on 3 March 2014. Ms Haldane asserts that she attempted to obtain casual work with Helping Hand later in 2013 but that this request was refused.

[16] I have considered Ms Haldane’s standing as an employee after 30 August 2013. Before that date, she was clearly an employee. After that date, she was covered by a contract of employment, but it is also clear that contract did not guarantee employment and Ms Haldane did not work as an employee after 30 August 2013.

[17] The distinction between a contract of employment and any employment relationship was considered by a Full Bench of the Australian Industrial Relations Commission in Searle v Moly Mines Limited 4in the following terms:

“[22] Before turning to the facts of this case there is another issue which arose in the course of the submissions with which we should deal. That matter concerns the relevance of the principles governing the termination of a contract of employment. It is clear that the statutory test relates to termination of the employment relationship, not termination of the contract of employment. The difference is well illustrated by the following passage from the joint judgment of Brennan CJ and Dawson and Toohey JJ in Byrne and Frew v Australian Airlines Ltd :

“It does not appear to have been doubted in this country that a wrongful dismissal terminates the employment relationship notwithstanding that the contract of employment may continue until the employee accepts the repudiation constituted by the wrongful dismissal and puts an end to the contract. That was accepted by both the majority and minority in Automatic Fire Sprinklers Pty Ltd v Watson [(1946) 72 CLR 435 at 471]. As Latham CJ said (at 454):

“An employer terminates the employment of a servant when he dismisses him, though, as I say hereafter, such a dismissal does not put an end to the contract between the parties. An argument that a dismissal because wrongful was a nullity was raised and rejected in both Williamson's Case [Williamson v The Commonwealth, (1907) 5 CLR 174 at 185] and Lucy's Case [Lucy v The Commonwealth, (1923) 33 CLR 229 at 237, 238, 249, 252, 253].”

And as Dixon J said [Automatic Fire Sprinklers Pty Lt v Watson at 545]:

“there is nothing in the general law preventing the wrongful dismissal of a servant operating to discharge him from service, notwithstanding that he declines to accept the dismissal as absolving him from further performance but keeps the contract open and remains ready and willing to serve.” ”

[23] In the case of wrongful dismissal, as the passage shows, the employment is terminated by the employer even though the contract continues until the employee accepts the repudiation, thereby bringing the contract to an end. In applying the statutory test it is the termination of the employment relationship which is important.”

[18] I have applied this approach. Had Ms Haldane continued to work for Helping Hand after 30 August 2013 that date would not represent the date of termination of her actual employment but rather, the commencement of a different employment arrangement. However, Ms Haldane did not work after that date and, as a consequence, I have concluded that the effective date of the termination of her employment must be 30 August 2013.

[19] The termination of Ms Haldane's employment as a part time employee was not at the initiative of Helping Hand - it was a matter of her own election and occurred with effect from 30 August 2013 when she confirmed her agreement with the casual employment conditions. Hence, to the extent that Ms Haldane now asserts that the termination of her employment as a part time employee was at the initiative of Helping Hand, on the material before me, that is simply not the case.

[20] After 30 August 2013 there is no dispute that Ms Haldane did not work for Helping Hand. Ms Haldane's advice provided on or about 20 August 2013 was that she would not be available to undertake casual work until March 2014. The evidence of Ms Press is that on or about 31 October 2013 Ms Haldane requested her previous shifts. Ms Press refused this request and subsequently, in December 2013, attempted to advise Ms Haldane that she would not be offered casual employment. 5 In this respect I am satisfied that Helping Hand took action to terminate its casual employment contract with Ms Haldane. I have concluded that Ms Haldane was never actually able to describe herself as a casual employee of Helping Hand as distinct from a person who had agreed to undertake casual work for Helping Hand on the conditions set out in the contract she signed on 30 August 2013.

[21] Had Helping Hand acted to terminate Ms Haldane's employment in August 2013, the circumstances of the subsequent termination of her casual employment arrangement might then have become a relevant issue. However, I have not found it necessary to determine this issue because Ms Haldane's request to change her employment standing to casual employment brought with it recognition of the uncertainty attaching to casual employment and the absence of any guarantees about that work.

[22] Because Ms Haldane did not work as a casual employee I cannot be satisfied that she remained an employee such that she could be a person protected from unfair dismissal. Had Ms Haldane worked on a casual basis before being dismissed by Helping Hand, she may have been eligible to pursue the application. However in the circumstances before me the effective termination of Ms Haldane's employment occurred on 30 August 2013 because she did not work for Helping Hand again.

Conclusion

[23] Ms Haldane elected to change her employment arrangement to a casual employment contract. In that respect she was not dismissed. Helping Hand’s termination of Ms Haldane’s casual employment agreement occurred in a circumstance where she had not worked as a casual employee. Accordingly Ms Haldane is not able to make this application. It is not necessary that I further consider the extension of time issue in this context. Ms Haldane's application must be dismissed for the reasons I have specified in this decision. An Order (PR552149) to this effect will be issued.

SENIOR DEPUTY PRESIDENT

Appearances (by Telephone):

D Haldane on her own behalf.

R LeQuesne counsel for the respondent.

Hearing details:

2014.

Adelaide:

June 16.

 1 F3 Employer Response, para 2.2

 2   Exhibit HH1, Attachment SF1

 3   Exhibit HH1, Attachment SF1, para 9

 4   [2008] AIRCFB 1088

 5   Exhibit HH2, paras 8 - 12

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<Price code C, PR552148>