Jose Melo Gaete v Healthcare Australia
[2018] FWC 6349
•18 OCTOBER 2018
| [2018] FWC 6349 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jose Melo Gaete
v
Healthcare Australia
(U2018/6449)
COMMISSIONER MCKINNON | MELBOURNE, 18 OCTOBER 2018 |
Application for an unfair dismissal remedy - whether dismissed – whether application lodged within 21 days – minimum employment period.
Introduction
[1] Jose Americo Melo Gaete worked for Healthcare Australia Pty Ltd and its predecessors over a period of approximately 14 years. On 18 June 2018, he applied to the Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act).
[2] There are three jurisdictional objections to the application. Firstly, Healthcare Australia says Mr Melo Gaete was a casual employee and was not dismissed. Secondly, but related to the first issue, Healthcare Australia says Mr Melo Gaete did not complete the minimum employment period. Finally, Healthcare Australia says if Mr Melo Gaete was dismissed, the dismissal took effect on 16 November 2017 and his application is approximately 6 months late.
[3] Mr Melo Gaete says he was dismissed on 28 May 2018 after many years of service and is eligible to make an unfair dismissal application.
[4] On 14 September 2018, the jurisdictional objections were heard in Melbourne with video link to Sydney. This decision deals with the jurisdictional objections.
Was Mr Melo Gaete dismissed?
[5] A remedy for unfair dismissal is only available if the Commission is satisfied that an employee has been dismissed. 1 Relevantly, under section 386(1) of the Act, a person has been dismissed if their employment has been terminated on the employer’s initiative.2
[6] This requires analysis as to whether there has been a termination of the employment relationship at the initiative of the employer for the purpose of s 386(1)(a), as opposed to termination of the contract of employment operative immediately before the cessation of the employment. 3 In this case, the contract of employment and the employment relationship are not one and the same.
[7] Termination “at the initiative of the employer” means a termination brought about by an employer and which is not agreed to by the employee. A termination of employment can occur at the initiative of the employer even if it is not done by the employer. 4 It requires the action of the employer to be the principal contributing factor which leads to the termination of the employment relationship.
[8] It is not in dispute that Mr Melo Gaete has not worked for Healthcare Australia since 10 November 2017. He was employed for a series of periods of employment as a casual employee from 2002 until 10 November 2017. I find that his last contract of employment with Healthcare Australia came to an end on that date.
[9] Mr Melo Gaete was rostered to work again on 14 November 2017. After the cancellation of his shift was not communicated to Mr Melo Gaete until he arrived for work as rostered, there was an incident. Mr Melo Gaete was told he was not required to work and that he should go home. Eventually, Healthcare Australia says he was escorted off the premises. Mr Melo Gaete denies it. The dispute is not necessary to resolve. Mr Melo Gaete subsequently had a conversation with Healthcare Australia and advised that he was leaving the country on 26 November 2017. He said “see you next year” or words to that effect.
[10] On 16 November 2017, Skye Wilkins of Healthcare Australia made a file note of a conversation with Mr Melo Gaete about the incident. The file note recorded as follows:
“Spoke with Jose this afternoon and asked him to attend a meeting regarding the feedback from Melbourne Private Hospital. He kept speaking over the top of me, would only talk about the cancellations, suggested we were playing games with him. He has refused to attend a meeting and said he doesn’t want to work with Healthcare Australia again this year. I advised him we would not be offering him work again until he meets with us. File has been deactivated.” 5
[11] Healthcare then deactivated Mr Melo Gaete’s file on its online system and Mr Melo Gaete went overseas. Mr Melo Gaete had been deactivated in this way for a range of reasons in the past, and did not consider his being deactivated to mean that his employment relationship with Healthcare Australia had come to an end. I am satisfied it did not.
[12] The reason for Mr Melo Gaete travelling overseas was not disclosed to Healthcare Australia. That reason was as follows:
“In the last three years, I usually leave the country in November for 6 months to look after my mother. My father and I take 6 month turns. I can’t get a full time job because I need to do that work.”
[13] Mr Melo Gaete was overseas and unavailable for work from 26 November 2017 to 22 May 2018. He returned to Australia on 22 May 2018 and rang Healthcare Australia on 23 May 2018 but could not get through.
[14] On 24 May 2018, Healthcare Australia says it wrote to Mr Melo Gaete as follows:
“Good morning Jose,
We recently received a request from you to have your JCA profile reactivated. As explained to you in November 2017, we are not prepared to offer you shifts. At that time you were asked to come in and meet with us regarding a complaint from Melbourne Private Hospital. You refused to attend a meeting and this led to your deactivation. Given the circumstances undwer [sic] which you were deactivated we will not be reactivating your file.
Kind regards,
Dianne Rendle | Nursing Services Manager” 6
[15] Mr Melo Gaete did not recall receiving this email. 7 The original email is not in evidence and Ms Rendle was not called to give evidence. I am not satisfied that Mr Melo Gaete received the email from Ms Rendle.
[16] While the decision of an employer not to offer a new contract of employment to an employee at the end of an agreed period of employment will not by itself constitute a termination at the initiative of the employer, that is not what happened here. 8
[17] In the early hours of 28 May 2018, Mr Melo Gaete sent an “activation request” to Healthcare Australia at 12.03am for his file to be reactivated. 9 He also completed two online training modules.10
[18] On 28 May 2018, Mr Melo Gaete spoke to Ms Wilkins on the phone and asked when he could come back to normal duties. According to Mr Melo Gaete, Ms Wilkins said:
“Sorry Jose due to your poor performance you have been terminated.”
[19] Mr Melo Gaete says there was no discussion about having a meeting before he returned to work, which had been earlier communicated to him as a condition of having his file reactivated on 16 November 2018. Ms Wilkins was not called to give evidence.
[20] I consider that the advice to Mr Melo Gaete on 28 May 2018 that his employment had been terminated was the act that terminated the employment relationship between Mr Melo Gaete and Healthcare Australia. It occurred well after the last contract of employment between them had come to an end, but in circumstances where he had a longstanding relationship with the business characterised by long periods of inactivity.
[21] I find that Mr Melo Gaete was dismissed from his employment with Healthcare Australia.
Effective date of dismissal
[22] An application for unfair dismissal remedy must be made within 21 days after the dismissal took effect, or if there are exceptional circumstances, such further period as the Commission allows. 11
[23] For the reasons set out above, I find that Healthcare Australia clearly communicated the fact of his dismissal to Mr Melo Gaete on 28 May 2018. The dismissal took effect from that day. The application was made within the 21 day period required by the Act and the jurisdictional objection on this ground is dismissed.
Minimum employment period
[24] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the relevant time:
• they have completed at least the minimum employment period; and
• they are either covered by a modern award, employed under an enterprise agreement that applies to them or earn an annual income of less than the “high income threshold”.
[25] There is no dispute that Mr Melo Gaete’s annual income was less than the high income threshold.
[26] A period of employment is defined in section 384 as “the period of continuous service the employee has completed with the employer” at a particular time. A period of service as a casual employee does not count towards the period of employment unless the employment was on a regular and systematic basis, and during the period of service, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis. 12
[27] According to Healthcare Australia, it has approximately 980 employees. The relevant minimum employment period required of Mr Melo Gaete was 6 months’ continuous service, ending on 28 May 2018.
[28] The evidence reveals the following in relation to Mr Melo Gaete’s working arrangements with Healthcare Australia and its predecessors 13:
Year Shifts worked
2002 One shift on 2 September 2002
2003 Varying shifts from 28 April 2003 to 18 December 2003
2004 Five shifts from 30 August 2004 to 8 September 2004
2005 Twelve shifts from 29 March 2005 to 6 May 2005
2006 Five shifts from 15 November 2006 to 14 December 2006
2007 One shift on 28 November 2007
2009 Sixteen shifts from 17 April 2009 to 26 November 2009
2010 Eleven shifts from 27 April 2010 to 17 December 2010
2011 Nineteen shifts from 4 March 2011 to 9 September 2011
2012 No shifts
2013 Six shifts from 16 August 2013 to 16 September 2013
2014 Ten shifts from 3 March 2014 to 12 November 2014
2015 One shift on 27 March 2015
2016 Varying shifts from 26 February 2016 to 24 August 2016
2017 Varying shifts from 25 May 2017 to 10 November 2017
2018 No shifts
[29] A detailed history of Mr Melo Gaete’s work for Healthcare Australia shows a series of periods of employment that are entirely casual in nature. Those periods relate to work performed in calendar years other than 2003, 2016 and 2017. I find that none of those periods of employment were on a regular and systematic basis. 14
[30] However, there are three periods of employment that are potentially capable of being characterised as regular and systematic. These are the periods from 28 April 2003 to 18 December 2003, 26 February 2016 to 24 August 2016 and 25 May 2017 to 10 November 2017. 15 These periods of employment will count towards Mr Melo Gaete’s minimum period of employment if they can fairly be described as periods of employment on a regular and systematic basis in circumstances where Mr Melo Gaete had a reasonable expectation of continuing employment with Healthcare Australia.
28 April 2003 to 18 December 2003
[31] The days worked in this period are set out at Attachment A to this decision. 16 There are 15 weeks in this period (that is, from 8 July 2003 to 18 July 2003, from 6 August 2003 to 15 August 2003, from 1 September 2003 to 5 September 2003, from 22 September 2003 to 31 October 2003 and from 24 November 2003 to 18 December 2003) that I find constituted employment on a regular and systematic basis. In those cases Mr Melo Gaete was working the same or similar hours, usually for the same health service and in some form of ascertainable system or pattern.
26 February 2016 to 24 August 2016
[32] I do not consider any period of employment in 2016 to fall within the description of employment on a regular and systematic basis. Shifts worked were instead ad hoc with the exception of two occasions where four shifts were worked over four consecutive days. On those occasions, work was performed in different locations and in each case the hours of work varied.
25 May 2017 to 10 November 2017
[33] I do not consider any period of employment in 2017 to fall within the description of regular and systematic. Shifts worked were generally ad hoc. A cursory glance suggests that work performed in July 2017 had more regularity. On closer review, it is clear that shifts varied with work being performed in a number of different locations and with varied hours of work, consistent with the casual nature of Mr Melo Gaete’s employment.
Expectation of regular and systematic employment
[34] I am satisfied on the evidence that Mr Melo Gaete had an expectation of being able to access work whenever he was available for it, throughout the period of his employment relationship with Healthcare Australia and including in each of the periods described above. This expectation was reasonable having regard to the evidence of Healthcare Australia that in the context of its business, “if someone is available for work, it is likely that work will be available”. 17
[35] The result is that the period of service that counts towards Mr Melo Gaete’s period of employment for the purposes of section 382 of the Act was 15 weeks. This is less than the minimum period of 6 months required. Mr Melo Gaete has not completed the minimum employment period.
Conclusion
[36] Mr Melo Gaete is not a person protected from unfair dismissal.
[37] The application is dismissed.
COMMISSIONER
Appearances:
J Melo Gaete on his own behalf
R Taylor for Healthcare Australia
Hearing details:
2018.
Melbourne:
September 14.
Printed by authority of the Commonwealth Government Printer
<PR701285>
1 Fair Work Act 2009 (Cth), s 385(a)
2 Fair Work Act 2009 (Cth), s 386
3 Khayam v Navitas English Pty Ltd t/a Navitas English[2017] FWCFB 5162
4 Ibid
5 Exhibit 2, Statement of Rick Taylor filed on 31 August 2018
6 Exhibit 2
7 Audio recording of hearing on 14 September 2018
8 [2017] FWCFB 5162 at [72]
9 Exhibit 6, ASEPS activation request
10 Exhibit 6, Results of Manual Handling Module and Result of Infection Control Module
11 Fair Work Act 2009 (Cth), s.394(2)
12 Fair Work Act 2009 (Cth), s.384
13 Exhibit 3, Jose Melo Gaete Shift List
14 Exhibit 3
15 Exhibit 3
16 Exhibit 3
17 Audio recording of hearing on 14 September 2018, Evidence of Rick Taylor