Isatu Sesay v Connecting Families Disability Services Pty Ltd
[2022] FWC 2392
•8 SEPTEMBER 2022
| [2022] FWC 2392 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Isatu Sesay
v
Connecting Families Disability Services Pty Ltd
(U2022/2182)
| DEPUTY PRESIDENT EASTON | SYDNEY, 8 SEPTEMBER 2022 |
Application for an unfair dismissal remedy – minimum employment period not met – application dismissed.
On 19 February 2022 Ms Isatu Sesay made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) for a remedy, alleging that she had been unfairly dismissed from her employment with Connecting Families Disability Services Pty Ltd. Ms Sesay seeks reinstatement and compensation.
Ms Sesay was employed by Connecting Families Disability Services Pty Ltd (Connecting Families) as a support worker on 15 July 2021 and her dismissal took effect on 31 January 2022. Connecting Families has raised a jurisdictional objection that Ms Sesay is not a person protected from unfair dismissal because she has not completed the minimum employment period as prescribed by s.383 of Fair Work Act 2009 (Cth) (FW Act).
Connecting Families is not a small employer and so the minimum employment period is 6 months (per s.383(a)). Ms Sesay commenced employment on 15 July 2021 and her employment ended 6 months and 17 days later on 31 January 2022.
The combined effect of sections 22, 382, 383 and 384 of the FW Act mean that time absent from work on unpaid leave or unauthorised leave does not count towards the period of employment for the purposes of the calculating the minimum employment period.
Ms Sesay did not work between 30 November 2021 and the termination of her employment on 31 January 2022, save for a brief attendance at a training seminar on one occasion in December 2021.
The question to be determined is whether Ms Sesay has completed the minimum employment period of six months as prescribed by s.383 of the FW Act and whether any of the Ms Sesay’s absence in the period between 30 November 2021 and 31 January 2022 was either unauthorised absence or was unpaid leave. More precisely, the question is whether at least 16 days of the two-month absence was unauthorised absence or unpaid leave.
For the reasons that follow I find that Ms Sesay has not completed the minimum employment period and therefore that I must dismiss her application.
Background
Ms Sesay says that in September, October and November 2021 she made multiple grievance complaints to senior management about reduced hours, bullying and harassment. The details of Ms Sesay’s complaints are not relevant to the immediate question of whether she had completed the minimum employment period, and accordingly these claims were not the subject of detailed evidence from either party. It is therefore not necessary or possible in this decision to make any findings in relation to Ms Sesay’s complaints raised in 2021, even though these claims are very important to her and she would like them to be heard.
On 18 November 2021 Connecting Families raised allegations of misconduct with Ms Sesay. On 23 November 2021 Ms Sesay met with a management representative to discuss the allegations raised. On 29 November 2021 Ms Sesay received a confirmation of written warning concerning the allegations of misconduct.
Between late November and 6 December 2021 Ms Sesay sent emails challenging the fairness of the written warning issued by Connecting Families.
In the same way that Ms Sesay’s complaints about bullying and harassment are not relevant to the immediate question of whether Ms Sesay completed the minimum employment period, the specifics of the allegations of misconduct made against Ms Sesay were not the subject of detailed evidence from either party, and are not relevant to the immediate question of whether Ms Sesay completed the minimum employment period.
There is a dispute as to the last day Ms Sesay attended work. Ms Sesay says the last day was 30 November 2021 and Connecting Families contends that the last day was 28 November 2021. For the purposes of this decision I will assume that Ms Sesay worked on 30 November but did not work again at any of Connecting Families’ premises after that date.
Ms Sesay’s contract of employment includes the following important term:
“10. PLACE OF EMPLOYMENT
10.1 Your principal place of employment will be at the location described in Item 6 of the Schedule, or as otherwise reasonably directed by the Employer.
10.2 Due to the nature of the role and the business, you will be required to travel to, and work at client and prospective client sites within a reasonable traveling distance, as directed by the Employer.
10.3 You may also be required to travel as reasonably necessary for the performance of your duties.”
Item 6 of the Schedule to the contract nominates “48/2 Slough Ave, Silverwater, NSW” as the principal place of employment however it is significant that the written contract allowed Connecting Families to direct Ms Sesay to attend different premises. By November 2021 Ms Sesay was working at Miranda.
On 6 December 2021 Ms Sesay was advised by email that she had been removed from the Miranda location due to several complaints against her.
Connecting Families’ scheduling team offered Ms Sesay work at other locations however she either ignored or declined those offers of work. Instead of directing Ms Sesay to perform work at a single specific location in accordance with the written contract of employment, Connecting Families’ scheduling team appears to have “offered” work to Ms Sesay at more than one location, allowing her to choose for herself from the nominated offers. The legal effect of this arrangement is that Ms Sesay had been directed, in accordance with her contract, not to work at Miranda and to attend for work at a different location, that location being one chosen by Ms Sesay from a limited number of nominated options.
The substantive parts of the email to Ms Sesay on 6 December 2021 are as follows:
“Thank you for your email.
Can I request that you do not use capital letters and not send several emails with a message along the lines off: ‘continue your bias ways we shall see”. As stated, many times in previous emails that your complaint has been investigated and action has been taken.
Furthermore, the team have removed you from the Miranda house due to several complaints that have come forward and feel it is best practise for yourself and client. The scheduling team have also offered you work elsewhere however you have declined.
Lastly, I have advised the payroll team to process your leave should you have enough accrued hours.”
At the hearing Ms Sesay argued that the last sentence quoted above was proof that Ms Sesay was on authorised sick leave. The author of the email, Ms Sabic, explained in her evidence that the final sentence refers to sick leave absences in November 2021 rather than referring to future absences supported by a doctor certificate. I accept Ms Sabic’s explanation in this regard and I note that even if her email is understood to be authorising future absences that are supported by a doctor’s certificate (and therefore each workday covered by medical certificate would not be an unauthorised absence) there are only nine days of absence covered by medical certificates in the nine-week period from 30 November 2021 to 31 January 2022 (see below).
In the email of 6 December 2021, and also in further email sent to Ms Sesay, Ms Sabic very clearly states that Ms Sesay’s absence was not authorised, was not paid, and that Ms Sesay was required to liaise with the scheduling team.
In subsequent emails the Applicant sent timesheets to Connecting Families containing notes such as “IRAMA SABIC AND CHANDRE TALO REMOVE ME FROM ALL MY FULL TIME SHIFT HOURS” or similar, which I take to be an acknowledgement of the directive issued to her not to attend the Miranda premises any further.
Ms Sesay attended online training on 7 December 2021 which ran for approximately one to two hours.
On 3 January 2022 Connecting Families sent an email to Ms Sesay that included the following:
“Good Afternoon Isatu,
I have advised you several times that you can return to the field however not work with one participant due to several complaints being raised by the participants mother and other co workers. The scheduling team have also offered you to work elsewhere however you have declined.
As stated in my previous emails, we can not pay you if you are refusing to work as you are not meeting your employment obligations. If you have enough annual leave you can put in your leave to the reporting line manager for approval.
Nonetheless, Isatu no one has removed you from shift we have advised you that you can not be rostered on with one particular client due to several complaints. Isatu if this does continue it could lead to further disciplinary action as you are not following management instructions.”
[Emphasis added]
On 7 January 2022 Connecting Families sent an email to Ms Sesay that included the following:
“… Your current role is Full-time Disability worker and therefore you are required to work 38 hours a week. As noted on 2 December 2021 you will no longer work with [Redacted] at Miranda home, however you are still required to work at other places.
The scheduling team have contacted you numerous times to find your availability to roster you for work, however we have either not heard a response or you have declined to work. Can you please respond to this email with your availabilities to ensure you can work your contractual hours. Failure to provide availabilities will result in your inability to be rostered work and will be considered as unauthorised absence, which may lead to disciplinary action.
We confirm we have the below houses/ clients available:
1. Pagewood house- Participant [Redacted]
2. Gymea House- Participant [Redacted]
3. Bexley house- Participant [Redacted]
4. Edensor Park house- [Redacted]Please respond with your availabilities or your intentions with the business going forward by close of business 10 January 2022.”
[Emphasis added]
I note that of the four nominated locations in the above email, Gymea is a suburb adjacent to Miranda, and that Bexley and possibly Pagewood locations are closer to Ms Sesay’s home in Auburn than they are to Miranda or Gymea.
Ms Sesay did not respond by 10 January as directed.
On 17 January 2022 Connecting Families sent a further letter by email in the following terms:
“We refer to email dated Friday 7 January 2022 in relation to your availability for work and failure to attend shift or respond to availability.
Since that time, we have made repeated attempts to contact you however, we have been unable to reach you.
We note that you are not on a period of approved leave, nor have you contacted the Company to notify that you require a period of leave.
We are concerned for your welfare and would like to assist you in any way reasonably possible.
We require you to contact us immediately to notify us of the reason for your absence from work.
In the event you do not contact us, or attend work, within the next 14 days we will assume that you will have abandoned your employment with the Company effective Friday 28 January 2022.”
[Emphasis added]
Ms Sesay says that she made a complaint about being bullied but Connecting Families did not investigate and took no action to stop the bullying. As a result of the bullying, she says, she was forced to take sick leave over December and January.
Ms Sesay provided copies of certificates issued in November 2021. These certificates are not relevant to the question of whether Ms Sesay’s absence in December 2021 and January 2022 was authorised.
There is a factual dispute between the parties about whether any of Ms Sesay’s medical certificates were sent during the period of her absence in December and January or only sent on 31 January 2021, being the day Ms Sesay was terminated.
Ms Sesay says that she provided medical certificates in December and January as soon as she received them. Connecting Families says it did not receive any certificates in December 2021 or January 2022. It is agreed that on 31 January 2022, being the day Ms Sesay’s employment was terminated, she provided a number of certificates that referred to the December-January period. The parties did not agree about whether the certificates were submitted for the first time on that day.
Ms Sesay said that once she was told by Connecting Families that medical certificates had not been received, she asked the receptionist at her medical centre to provide reprints of all of the certificates issued to Ms Sesay in November, December and January. That set of reprinted certificates was tendered in evidence at the hearing.
At the commencement of the hearing, Ms Sesay was provided a further opportunity to tender any evidence to prove she had provided medical certificates and/or psychologist reports to Ms Sabic and/or the Human Resources team on or around the time she received those certificates. Ms Sesay re-submitted the same emails from 28 January 2022 and 31 January 2022 which contained copies of all her medical certificates from 26 October 2021 to 31 January 2022 and various psychologist letters from 16 February 2022 to 5 July 2022. Ms Sesay provided no evidence at the hearing of having provided any of the medical certificates to Connecting Families during the period of her absence.
Putting aside the certificates issued in November 2021, the following medical certificates appear to have been provided to Ms Sesay in December 2021 and November 2022:
(a)8 December 2021, issued by Dr Mohiuddin – unfit from 9/12/21 to 11/12/21 inclusive (three days);
(b)19 January 2022, issued by Dr Mohiuddin – unfit from 19/1/22 to 21/1/22 inclusive (three days); and
(c)31 January 2022, issued by Dr Kassam, unfit from 29/1/22 to 4/1/22 inclusive (three days up until 31 January 2022).
Consideration
Ms Sesay was employed on a full-time basis. If I was to assume that Ms Sesay only worked weekdays, there were 44 workdays between Tuesday 30 November 2021 and Monday 31 January 2022.
In light of the above correspondence that repeatedly indicated to Ms Sesay that her absence was not authorised, at best I could only count the specific days covered by medical certificates as authorised absences.
Even if I was to resolve this factual disagreement completely in favour of Ms Sesay, only nine days could possibly as authorised leave supported by medical certificates, out of 44 possible workdays.
Further, it is not immediately apparent to me whether the nonworking days over this period (in this case the weekend days) would also count as days of unauthorised absence. On one hand an employee cannot be ‘absent’ from work on a day that they are not otherwise required to attend, but on the other hand if an employee is absent for several weeks then the ‘period’ of the absence might be measured in calendar weeks rather than working days.
In this case the distinction does not make a difference - Ms Sesay was absent without authorisation for at least 34 days between 30 November 2021 and 31 January 2022. Recognising that these days must be deducted from the overall period of employment, the period of employment for Ms Sesay was at least 34 days less than the chronological period between Ms Sesay’s first and last days of employment.
For Ms Sesay her period of employment of 6 months and 17 days must be reduced by at least 34 days, resulting in her period of employment under the FW Act being less than 6 months.
To apply the terminology of the FW Act:
(a)At least 34 days are “periods” that do not count as “service” (per s.22(2)) or “continuous service (per s.22(3);
(b)Ms Sesay’s “period of employment” was less than 6 months continuous service (per s.384(1));
(c)The relevant minimum employment period was 6 months (per s.383(a)); and
(d)Ms Sesay was not a person who was protected from unfair dismissal (per s.382).
Ms Sesay’s application must be dismissed as the Commission does not have jurisdiction to deal with this matter.[1]
DEPUTY PRESIDENT
Ms I Sesay, Applicant
Ms A Chand for the Respondent
Hearing details:
2022.
Sydney (By Video using Microsoft Teams)
August 4.
[1] PR745631.
Printed by authority of the Commonwealth Government Printer
<PR745630>
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