Desmond Lock v Aged Care & Housing Group Inc T/A ACH Group

[2013] FWC 3195

[2013] FWC 3195

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Desmond Lock
v
Aged Care & Housing Group Inc T/A ACH Group
(U2013/7541)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 22 MAY 2013

Application for relief from unfair dismissal - jurisdiction - no termination at the initiative of the employer - application dismissed.

[1] At the conclusion of a hearing on 21 May 2013 I dismissed this application and advised the parties that I would issue written reasons for my decision. These reasons are published accordingly.

[2] On 15 March 2013 Mr Lock lodged an unfair dismissal application, pursuant to s.394 of the Fair Work Act 2009 (the FW Act), with respect to the alleged termination of his employment with Aged Care & Housing Group Inc T/A ACH Group (ACH).

[3] On 3 April 2013 ACH lodged an objection to the application on the basis that it had not dismissed Mr Lock. The matter did not proceed to telephone conciliation and was referred to me for determination of this initial issue. It was the subject of a hearing on 21 May 2013. At this hearing, Mr Lock was represented by Ms Milen of counsel and ACH by Mr Luke of counsel pursuant to grants of permission made under s.596.

[4] Mr Lock commenced employment with ACH as a weekly hire gardener and maintenance worker in December 2008. In his application he asserts that there was a termination of this employment with effect from 26 February 2013. The ACH position is that Mr Lock has not been dismissed and, as far as it is aware, he remains an employee whilst he is absent from work for medical reasons.

[5] Mr Locke’s position is that he suffered a psychological condition arising from demands by ACH management in a meeting on 24 November 2011 (that he disclose a previous medical condition). Mr Lock’s evidence was that he had advised his manager that his bones hurt and that he had some difficulty in undertaking various of his duties. Mr Lock understood that ACH requested that he authorise the disclosure of medical information to them. After the meeting on 24 November 2011 Mr Lock attended his doctor and blood tests were undertaken. ACH sent Mr Lock a letter on 25 November 2011 1 advising that he was suspended on pay pending medical confirmation of his capacity to do his job. ACH noted Mr Lock’s advice that his doctor could not provide a report until after 4 January 2012 and advised Mr Lock to obtain alternative medical advice. ACH proposed that, if Mr Lock was unable to obtain alternative advice it would appoint a medical specialist for him. Mr Lock disputes part of the ACH summary of his position which is recorded in this letter and which gave rise to the ACH concerns.

[6] Mr Lock refused to authorise the disclosure of his medical records to ACH. On 30 November 2011 2 ACH confirmed to Mr Lock that, as a consequence of the position he had adopted, it regarded him as unfit for work due to a non-compensable illness and payments to him were ceased. ACH provided Mr Lock with a leave form and indicated that annual leave, personal, or unpaid leave options were open to him. ACH asked Mr Lock to return this leave form by 2 December 2011.

[7] On 2 December 2011 3 ACH forwarded to Mr Lock a standard employee advice confirming organisational changes which affected the reporting arrangements applicable to him.

[8] On 23 January 2012 4 ACH sent a letter to Mr Lock in which it acknowledged advice from Mr Lock’s doctor of 18 January 2012, which confirmed that Mr Lock had been tested for Hepatitis B and the results were consistent with a resolved infection. ACH confirmed to Mr Lock that it required him to undertake a functional assessment before he would be permitted to return to work. ACH asked Mr Lock to contact a nominated manager to arrange this when he was ready to resume work and provided him with a copy of the job analysis for his work function.

[9] On 7 February 2012 ACH sent a further letter to Mr Lock. This letter confirmed that ACH had not received any further advice about Mr Lock’s employment intentions. It required Mr Lock to provide either a medical certificate and an application for either paid or unpaid leave, or to contact a nominated manager to arrange for a functional assessment. This letter concluded on the basis that: “Should you fail to comply with one of the reasonable directions outlined above within seven days, your employment with ACH will be terminated.” 5

[10] On 14 February 2012 Mr Lock filed a worker’s compensation claim for income maintenance relative to a psychological condition he asserts was the result of conduct by ACH managers. On 31 May 2012 ACH formally refused this workers compensation claim. The claim remains disputed.

[11] Mr Lock’s evidence was that in late February 2013 another ACH employee, whom he declined to identify, advised him of the permanent employment by ACH of the employee who had been undertaking work which he would otherwise have done. Mr Lock’s position is that the combination of this advice, which he took to mean that his job had now been filled on a permanent basis and his failure to respond to the 7 February 2012 direction from ACH, meant that his employment had been terminated. Mr Lock agreed that no advice of the termination of his employment had been provided to him. His evidence was that he had received two payments from ACH in March and June 2012 but did not understand the basis for these payments. Mr Lock’s own evidence was that he still regarded himself as an employee of ACH.

[12] The submissions filed on Mr Lock’s behalf by his lawyer Ms Milen made the somewhat curious alternative proposition that Mr Lock had resigned his employment. In his evidence, Mr Lock did not support this proposition.

[13] The evidence of Ms Burns, the Senior Consultant, Residential Division of ACH, was that she is responsible for ACH human resource matters. Ms Burns’ evidence was that Mr Lock last attended for work on 24 November 2011 and that ACH had regarded him as absent because of a medical condition since that time. Ms Burns’ evidence was that ACH had initially temporarily replaced Mr Lock with an employee on a fixed term casual employment contract. This employee had subsequently been promoted, and, at the present time, Mr Lock’s position was vacant. Ms Burns’ evidence was that Mr Lock had not been given notice, had not been paid out any of his accrued annual leave entitlements and was able to return to work if and when he met ACH’s requirements with respect to his capacity to fulfil his job functions. Ms Burns’ evidence was that it was most likely that at least one of the two payments made to Mr Lock in 2012 reflected the operation of a salary sacrifice arrangement applicable to him as an employee.

Findings

[14] Part 3-2 of the FW Act establishes provisions which enable employees who consider that they have been unfairly dismissed to pursue a remedy through the Fair Work Commission.

[15] Section 394(1) states:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.”

[16] Section 386 states:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[17] My assessment of the various correspondence forwarded to Mr Lock by ACH is that it acknowledged ACH’s occupational health and safety and welfare obligations to him as an employee. The letter of 7 February 2012 contained what I considered to be a perfectly reasonable direction to Mr Lock to either seek further leave or to take steps to return to work. Whilst this letter concludes on the basis that, if Mr Lock failed to comply with those directions within seven days his employment would be terminated, no advice confirming that termination of employment was issued.

[18] Mr Lock’s evidence was that he relied on advice from his lawyer, Ms Milen. Neither Mr Lock nor his lawyer sought advice from ACH relative to his employment status. There have been numerous opportunities for Mr Lock or his lawyer to seek clarification of his employment standing.

[19] I am not satisfied that there is any substantive evidence that ACH has terminated Mr Lock’s employment such that he was dismissed at the employer’s initiative. It is abundantly clear that ACH continued to regard Mr Lock as an employee and that Mr Lock’s position is entirely based on unsupported supposition. The evidence indicates that ACH has taken no action to terminate Mr Lock’s employment.

[20] Given that Mr Lock’s position is that his actions in refusing to comply with the instructions contained in the 7 February 2012 letter did not reflect any intention to resign his employment and the ACH position that it did not take this as a resignation, I have disregarded the almost inexplicable alternative position put by Ms Milen to the effect that Mr Lock resigned his employment.

[21] As Mr Lock has not been dismissed by ACH it follows that he cannot make this application and was not unfairly dismissed. His application is without foundation in that there is no jurisdiction upon which it can be further considered. An Order (PR537112) dismissing the application has been issued on this basis.

[22] One other issue requires comment. As I indicated in the course of the hearing of this matter I am profoundly concerned about the calibre of the advice and representation provided to Mr Lock by his lawyer, Ms Milen.

SENIOR DEPUTY PRESIDENT

Appearances:

J Milen counsel for the Applicant.

K Luke counsel for the Respondent.

Hearing details:

2013.

Adelaide:

May 21.

 1   Exhibit L1, Annexure A

 2   Ibid, Annexure B

 3   Ibid, Annexure C

 4   Ibid, Annexure D

 5   Ibid, Annexure E

Printed by authority of the Commonwealth Government Printer

<Price code C, PR537107>