Harriet Roberts v Chandler MacLeod and National Disability Insurance Scheme Quality and Safeguards Commission
[2022] FWC 1281
•25 MAY 2022
| [2022] FWC 1281 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Harriet Roberts
v
Chandler MacLeod
and
National Disability Insurance Scheme Quality and Safeguards Commission
(C2021/4391)
| DEPUTY PRESIDENT BINET | PERTH, 25 MAY 2022 |
Application to deal with contraventions involving dismissal
On 27 July 2021, Ms Harriet Roberts (Ms Roberts) filed an application (Application) pursuant to section 365 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging that Chandler MacLeod (Chandler MacLeod) and the National Disability Insurance Scheme Quality and Safeguards Commission (NDIS) contravened the general protection provisions of the FW Act by dismissing her from her employment.
On 12 August 2021, Chandler MacLeod and NDIS both filed a Form F8A – Response to General Protections Application alleging Ms Roberts was not dismissed by Chandler MacLeod or NDIS (Jurisdictional Objection).
On 30 August 2021, a conciliation was held between Ms Roberts, Chandler MacLeod and the NDIS in an attempt to resolve the matter. The parties were unable to come to a resolution and on 7 September 2021 the Application was allocated to my chambers.
In Coles Supply Chain Pty Ltd v Milford[1] (Coles Decision) the Full Court of the Federal Court held that where a respondent submits that the applicant to a section 365 application was not dismissed, as is the case here, the FWC must first determine whether the person was dismissed.
There were a number of delays which prevented the Jurisdictional Objections being heard.
On 21 September 2021 a Notice of Listing was issued to the parties advising them that the Application had been listed for an in person conference on Monday 11 October 2021. At 9:37pm on Sunday 10 October 2021 Ms Roberts sent an email to Chambers indicating that she was unfit to attend the conference due to 'mental health issues'. She sought an adjournment of 2-3 weeks on grounds of her ill health and to obtain a medical clearance for her to participate in proceedings. She subsequently provided a medical certificate indicating she was medically unfit from 11 October 2021 to 13 October 2021. The Conference was relisted to 8 November 2021.
Directions for the filing of materials in advance of the Hearing were issued to the parties on 20 October 2021 (Directions) however Chandler MacLeod requested additional time for another attempt at conciliation. The Directions were amended to provide additional time for the parties to attend conciliation on 8 November 2021.
The parties discussed terms of settlement at the Conference. The settlement offer was amended and remained open until 23 November 2021. The settlement offer was eventually rejected by Ms Roberts.
On 26 October 2021 Ms Roberts informed Chambers that:
“I have been extremely unwell for the last 2 weeks and am still receiving care from my GP, Specialist and Fiona Stanley.”
On 15 November 2021, Chambers notified the Parties that the matter was listed for Hearing at 10am (AWST) Thursday 25 November 2021. At 5:01pm on 23 November 2021 Ms Roberts sent the following email to Chambers indicating that she was awaiting admission to hospital. The following day she informed Chambers that her GP had deemed her too unwell to leave her home for the next few days. On 24 November 2021 she provided Chambers with a medical certificate which indicated that she was unfit to work between 3 November 2021 and 2 February 2022. The Parties were notified by Chambers that given the medical certificate provided to Chambers, the matter would be vacated and relisted in early 2022.
Chambers issued a Notice of Listing to the Parties on 10 January 2022 which notified the Parties that the Hearing was re-listed at 10am (AWST) Friday 4 February 2022. At 12.06am on Friday 4 February 2022 (10 hours before the hearing), Ms Roberts provided Chambers with a medical certificate dated 2 February 2022 which stated that between 2 February 2022 to 4 February 2022 inclusive she had a medical condition and was unfit for work. Chambers informed the Parties that given Ms Robert's medical condition the hearing would be vacated.
On 4 February 2022, Chambers wrote to the Parties to inform that I proposed to relist the Hearing to 10am (AWST) 17 February 2022. Given that Ms Roberts had reported suffering serious and ongoing health issues to the Commission since October 2021 which have necessitated the late cancellation of proceedings on a number of occasions Chambers indicated that a Notice of Listing will be issued upon receipt by Chambers of a medical certificate confirming that Ms Roberts is fit to participate in the proceedings.
No medical certificate was received from Ms Roberts. In light of these circumstances Chambers informed the parties that I proposed to determine the Application on the ‘papers’ without an oral hearing. Ms Roberts, NDIS and Chandler MacLeod agreed to this course of action.
In these circumstances, with the consent of the Parties, I have determined the Jurisdictional Objection solely on the materials filed by the parties without a hearing.
Evidence
The Directions required Ms Roberts to file an outline of submissions, a signed and dated witness statement from any witness she intended to call, a copy of any authorities on which she relied and a copy of any document on which he relied by 4pm on 8 November 2021.
Multiple adjustments in directions through approvals for extension of time to submit materials were granted to Ms Roberts to file her materials which were not received until 15 November 2021. Ultimately Ms Roberts filed a witness statement setting out her own evidence and a large number of documents many of which were unrelated to the Jurisdictional Objection or duplicates.
In accordance with the Directions, Chandler Macleod filed a witness statement setting out the evidence in chief of Ms Orla Gillespie (Ms Gillespie). Ms Gillespie is a recruitment consultant within the Staffing Services Government Team of Chandler MacLeod.
The parties jointly prepared and filed a digital court book containing the evidence and submissions of the parties (DCB). The DCB was admitted at the Hearing as an exhibit and marked Exhibit DCB-1.
In reaching my decision, I have considered all the submissions made, and the evidence tendered, by the parties even if not expressly referred to in these reasons for decision.
Background
Recruitment Solutions is a division of Chandler MacLeod a global recruitment agency. Ms Gillespie is employed Ms Gillespie is a recruitment consultant within the Staffing Services Government Team of Chandler MacLeod. [2]
On 25 February 2021, Ms Gillespie approached Ms Roberts via Seek to inquire whether Ms Roberts was interested in a role with one of Chandler MacLeod’s clients. Ms Roberts indicated her interest.[3]
On 12 March 2021, Ms Gillespie forwarded what was described as a ‘Pre-Employment Pack’ (Pack). The Pack describes the nature of the engagement as ‘Consultant/Contractor’.[4]
On 9 April 2021 at 3:48pm Ms Roberts competed a document described a ‘Registration Contract.[5]
The Registration Contract provides that Ms Roberts would be engaged by Chandler Macleod on a casual basis to perform work assignments with clients of Chandler MacLeod.[6]
Relevantly clause 3 of the Terms and Conditions of the Registration Contract states:[7]
“3. NATURE OF EMPLOYMENT
3.1 You are employed by the Company as a casual employee. This means that:
(a)you are paid and administered by the Company;
(b)your rate of pay includes a casual loading in lieu of paid leave, severance pay and all other entitlements associated with permanent employment;
(c)the Company is not obliged to offer you work, or ongoing work for any Client, and does not guarantee that you will have ongoing work;
(d)you are entitled to accept or reject any offers of work, or any Assignment, made to you by the Company.
3.2 You are employed as a casual “on-hire” employee of the Company. This means that:
(a)you are employed by the Company to perform work for the Company’s Clients on Assignments;
(b)the amount of work you receive on any Assignment is subject to the Client’s continuing requirement for your service - as such, a Client may terminate an Assignment at any time, at its discretion;
(c)your continuing work on any Assignment is conditional upon you meeting all performance, behavioural, safety and conduct requirements set by the Company and the relevant Client;
(d)whether or not you meet all performance, behavioural, safety and conduct requirements set by the Company and the relevant Client, you are not entitled to ongoing work on any particular assignment;
(e)the terms and conditions of any Assignment, as confirmed by the Company, may differ from Assignment to Assignment and may be altered during the course of the Assignment;
(f)you are at all times an employee of the Company, and are subject to the Company’s control and direction; and
(g)you agree to comply with all day to day directions given to you by any authorised representatives of the Client on any Assignment, so as to properly discharge the duties and responsibilities of your position on that Assignment.;
3.3 You acknowledge and understand that:
(a)you are employed by the Company to work for its Clients on Assignments;
(b)the end of an Assignment does not mean that your employment by the Company has been terminated;
(c)the Company cannot give you any commitment in relation to the length of any Assignment as it does not have control over its Clients’ requirements for temporary employees;
(d)at the end of any Assignment, or your employment by the Company, you are not entitled to be paid any severance payment, or termination payment, unless specifically provided for in an applicable Industrial Instrument or confirmed in writing by the Company;
3.4 You agree that you will notify the Company:
(a)prior to seeking or accepting an offer of direct employment from any Client, former Client, employee or former employee of the Company to whom you were introduced by the Company, during your employment with the Company and for a period of 6 months after the termination of your employment;
(b)prior to seeking or accepting an offer of direct employment from another agency for placement with a client of the Company to whom you were introduced by the Company, during your employment by the Company and for a period of 6 months after termination of your employment.”
On 12 April 2021, Ms Roberts commenced her first assignment in the role of Complaints Handling Officer with NDIS reporting to Ms Vivienne Wolff, Assistant Director – Complaints WA, NDIS (Ms Wolff) (Assignment).[8]
The terms and conditions of the Assignment are set out in a document described as ‘Conditions of Assignment (Casual)’ (Conditions of Assignment).[9]
Relevantly the Conditions of Assignment clearly identify the NDIS as the ‘client company’, not as the employer. The Conditions of Assignment describe the nature of employment as casual. In relation to the duration of the Assignment the Conditions of Assignment states as follows:
“Indicative end date: 14/07/2021. This date is subject to change based on client requirements.”
Ms Roberts says she found the role distressing due to nature of the information she was exposed to in the role. She also says she found working from home during COVID-19 and the State lockdowns to be challenging.[10] However, Ms Roberts applied for employment directly with NDIS in the role of Complaints Handling Officer on 21 May 2021. In the course of the selection process she made various allegations about another candidate.[11]
On or around mid-June 2021 Ms Roberts expressed to Ms Gillespie an interest in applying for another role at the NDIS in a different team as Reportable Incidents Officer. Ms Gillespie and Ms Roberts talked about this extensively and agreed that the role might be a better fit for Ms Roberts. Consequently, Ms Gillespie sent Ms Roberts the job description and details of the role. Ultimately, Ms Roberts decided not to apply for the role.[12]
Ms Roberts states Ms Wolff offered her a contract extension until 31 October 2021. In support of this assertion, Ms Roberts produced a text message dated Tuesday 29 June 2021 from herself to Ms Gillespie in which Ms Roberts says in reference to Ms Wolff:
“So strange she just called me to tell me ‘we’ love having me around and my contract will likely be extended into next year.
If you have not spoken with her please just leave it.
I am keen as we discussed yesterday to get another role ASAP.
Have a great day”
On 30 June 2021, an email was sent to Ms Roberts and two other labour hire employees informing them that:
“All of the approvals for the renewal of your contracts are complete and your agency is holding the work order from the Commission.” [13]
On 6 July 2021, Ms Wolff telephoned Ms Gillespie to inform her that the NDIS did not want to continue the Assignment due to a number of reasons which included:[14]
a.negative feedback about Ms Roberts from providers and the potential impact of that on the NDIS’s reputation;
b.the way in which Ms Roberts had communicated with stakeholders;
c.a number of negative interactions between Ms Roberts and other team members; and
d.concerns over Ms Robert’s productivity.
Ms Wolff subsequently confirmed the conversation in writing.[15]
Ms Roberts asserts that the Assignment was terminated because she raised concerns with NDIS.[16]
Later the same day, Ms Gillespie called Ms Roberts to inform her. Ms Gillespie reminded Ms Roberts that she remained employed with Chandler MacLeod to work other assignments. Ms Gillespie says that Ms Roberts seemed unsurprised by the news and took this information well. Ms Gillespie says that she and Ms Roberts went on to discuss finding Ms Roberts another position.[17]
At 4:34pm on 6 July 2021, Ms Gillespie sent Ms Roberts an email confirming in writing that the Assignment had been ended.[18] In the email Ms Gillespie states:
“As I mentioned, as soon as you are well enough, we will work together to find you another position.” [19]
Following the end of her assignment with NDIS Ms Gillespie commenced looking for other assignments for which Ms Roberts had the requisite skills and experience, and that were in a location that would make them practical for her to perform.[20]
On 8 July 2021 Ms Gillespie sent Ms Roberts a letter confirming the end of the Assignment and relevantly stating:
“However, the end of your assignment with the NDIS does not mean that your employment with Chandler Macleod has also come to an end, although you no longer have an active assignment. We are still willing to work with you to help find you a suitable alternative assignment. Please contact me to discuss what options may be available for you.” [21]
Ms Gillespie confirms that she did not take any action to terminate Ms Robert’s employment with Chandler MacLeod, but endeavoured to secure alternative assignments for Ms Roberts which were declined or ignored.[22]
On 8 July 2021, Ms Gillespie sent an email to Ms Roberts offering a new assignment with another client, Western Power. This role was close to Ms Robert’s home, which Ms Roberts had previously indicated was desirable to her. The assignment was as an Administration Assistant and was expected to last 10 months. Ms Roberts had the requisite skills and experience for the role. Ms Roberts never responded to Ms Gillespie’s email.[23]
On 13 July 2021, Ms Gillespie sent an email regarding another assignment to Ms Roberts. The assignment was an Administrator role, with a pay rate of $30+ per hour. Ms Roberts had the requisite skills and experience for the role. Ms Roberts responded by email rejecting the assignment offer indicating that she believed the role was below her capabilities on 14 July 2021. [24]
On 21 July 2021, Ms Gillespie sent Ms Roberts another email offering an assignment for a role of an Office Manager with a Government client. Ms Roberts had the requisite skills and experience for the role. Ms Roberts did not respond to Ms Gillespie’s email.[25]
Ms Roberts tendered pay advices which indicate that during the relevant period:
a.Her employer was Chandler Macleod.
b.NDIS was the ‘client’.
Consideration
The Application was made pursuant to section 365 of the FW Act. Section 365 of the FW Act provides that:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
The term ‘dismissed’ is defined in section 12 of the FW Act by reference to section 386. The term ‘dismissed’ is defined at section 386 of the FW Act as follows:
“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.”
While section 386 is found in Part 3-2 - Unfair Dismissal of the FW Act the definition of ‘dismissed’ contained in section 386 of the FW Act has been applied by the Courts to section 365 general protections matters and I have adopted that approach in this Application.
Ms Roberts asserts that she was dismissed by both Chandler MacLeod and NDIS from her employment as a Complaints Handling Officer with the NDIS. Ms Roberts states that she did not resign. The NDIS deny that Ms Roberts has ever been an employee of NDIS. Chandler MacLeod say it was Ms Roberts employer however Chandler MacLeod deny that it dismissed Ms Roberts.
The Pack forwarded to Ms Roberts on 12 March 2021 is described as a “Pre-Employment Pack”. However the Pack clearly states that the nature of the engagement with NDIS is as ‘Consultant/Contractor’ not as an employee. [26]
The Registration Contract signed by Ms Roberts on 9 April 2021 also clearly states that Ms Roberts would be employed by Chandler MacLeod on a casual basis to perform work assignments with clients of Chandler MacLeod. [27]
Clause 3 of the Terms and Conditions of the Registration Contract make explicitly clear that:[28]
a.Ms Roberts would be employed and paid by Chandler MacLeod to perform work for Chandler MacLeod’s clients.
b.The basis of her employment would be as a casual employee.
c.She was not guaranteed ongoing work.
d.Chandler MacLeod’s clients could terminate an assignment at its sole discretion at any time.
e.The end of an assignment did not mean that her employment with Chandler MacLeod had been terminated.
Clause 22 of the Registration Contract makes clear that it supersedes any prior representations and agreements.
The Conditions of Assignment dated 12 April 2021 clearly identify the NDIS as the ‘client company’ and not as the employer. The Conditions of Assignment describe the nature of employment as casual. In relation to the duration of the Assignment the Conditions of Assignment states as follows:
“Indicative end date: 14/07/2021. This date is subject to change based on client requirements.” [29]
Consistent with the Pack, Registration Contract and Conditions of Assignments, the pay advices tendered by Ms Roberts also indicated that her employer was Chandler MacLeod, and that NDIS was the client during the relevant period.
Ms Roberts asserts that she was offered employment by NDIS. There is no evidence before me to support that assertion. At best, the evidence suggests that at some point NDIS contemplated extending the Assignment. For example, in the text message of 29 June 2021 Ms Roberts states that Ms Wolff had only stated that the contract was likely to be extended. The 30 June 2021 email is consistent with the evidence that Ms Roberts was on Assignment:
“… your agency is holding the work order from the Commission.” [30]
Consistent with the terms of the Registration Contract the Assignment with NDIS ended on 6 July 2021.
Ms Gillespie made very clear to Ms Roberts that while the Assignment had concluded, this did not mean her employment with Chandler MacLeod had concluded through the email sent on 8 July 2021:
“However, the end of your assignment with the NDIS does not mean that your employment with Chandler Macleod has also come to an end, although you no longer have an active assignment. We are still willing to work with you to help find you a suitable alternative assignment. Please contact me to discuss what options may be available for you.” [31]
Ms Gillespie confirms that she did not take any action to end the employment terminate Ms Robert’s employment with Chandler MacLeod. To the contrary, she endeavoured to secure alternative assignments for Ms Roberts.[32]
The evidence is that following the end of Ms Robert’s assignment with NDIS, Ms Gillespie commenced looking for other assignments for which Ms Roberts had the requisite skills and experience, and that were in a location that would make them practical for her to perform.[33]
Ms Roberts indicated that she was unhappy with the seniority and payrate for one of these roles but did not respond to the other two roles suggested to her by Ms Gillespie.
As stated by the majority of the High Court in Work in WorkPac v Rossato & Ors [2021] HCA 23 at [57]:
“A court can determine the character of a legal relationship between the parties only by reference to the legal rights and obligations which constitute that relationship.”
The legal relationship between NDIS and Ms Roberts was not one of employer and employee. Ms Roberts was an employee of Chandler MacLeod. To the extent that Ms Robert’s employment with Chandler MacLeod ended, it occurred at Ms Robert’s initiative when she failed to continue to engage with Ms Gillespie to explore alternative assignments.
I am not satisfied that Ms Roberts was dismissed for the purposes of section 365 of the FW Act by either NDIS or Chandler MacLeod.
I therefore uphold the Jurisdictional Objection and dismiss the Application.
An Order[34] to this effect will issue with this decision.
DEPUTY PRESIDENT
[1] [2020] FCAFC 152.
[2] Digital Court Book 173.
[3] Ibid 112-113.
[4] Ibid 119, 134.
[5] Ibid 173, 177-190.
[6] Ibid 185.
[7] Ibid.
[8] Ibid 173.
[9] Ibid 191.
[10] Ibid 1-4.
[11] Ibid 9-11.
[12] Ibid 173, 136-138
[13] Ibid 18-19.
[14] Ibid 174.
[15] Ibid 174, 204.
[16] Ibid 3.
[17] Ibid 174.
[18] Ibid.
[19] Ibid 194.
[20] Ibid 174.
[21] Ibid 199.
[22] Ibid 175.
[23] Ibid 174-175, 195.
[24] Ibid 175, 196, 31.
[25] Ibid 175, 198.
[26] Ibid 119, 134.
[27] Ibid.
[28] Ibid 185.
[29] Ibid 191.
[30] Ibid 18-19.
[31] Ibid 199.
[32] Ibid 175.
[33] Ibid 174.
[34] PR741937.
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