Kathlene (Kathy) Margaret White v Australia Care Pty Ltd
[2024] FWC 1976
•26 JULY 2024
| [2024] FWC 1976 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Kathlene (Kathy) Margaret White
v
Australia Care Pty Ltd
(C2024/1348)
| COMMISSIONER SCHNEIDER | PERTH, 26 JULY 2024 |
Application to deal with contraventions involving dismissal
Ms Kathlene (Kathy) Margaret White (the Applicant) has made an application pursuant to section 365 of the Fair Work Act 2009 (Cth) (the Act) to deal with a general protections dispute involving her alleged dismissal by Australia Care Pty Ltd (the Respondent).
The Respondent has raised a jurisdictional objection to the application being that the Applicant was not dismissed.
The Respondent raised a further jurisdictional objection to the application being that the Applicant was not an employee of the Respondent.
The Commission must determine if the Applicant was dismissed before the matter may proceed.
The jurisdictional objection was listed for a Hearing on 10 May 2024. The Hearing did not proceed as the Applicant failed to attend. As a result, the decision was made on the papers.
Legislation
Section 365 of the Act provides as follows:
“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 meaning of “dismissed” is provided at section 386 of the Act:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or his employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or his employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or his 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 his remuneration or duties; and
(ii) he or he 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.”
This decision deals only with the jurisdictional objection to be determined.
Submissions and Evidence - Respondent
The Respondent submits that the Applicant was not dismissed for the purposes of section 365 of the Act.
The Respondent submits that the Applicant was not an employee of the Respondent for the purposes of the Act.
The Respondent outlined that the Respondent arranges for people such as the Applicant to act as Individualised Living Options Hosts for participants in the National Disability Insurance Scheme (NDIS).
The Respondent submits that the ILO Host Agreement, is not a contract of employment or an employment relationship. Rather, it is an agreement between the Host (in this case the Applicant) also known as the ILO Partner, the NDIS Participants Nominee and the Respondent.
The Respondent submits that the Applicant is not an employee and is not paid a salary, rather the Applicant receives a reimbursement per week for being an ILO partner.
The Respondent submits that the NDIS Participants Nominee can choose the ILO partner and has the discretion to terminate the Host Agreement.
The Respondent submits that the Applicant was not dismissed at the Respondent’s initiative, rather the NDIS Participant Nominee decided to terminate the arrangement with the Applicant, not the Respondent.
The Respondent provided a copy of the communication from the NDIS Participant Nominee dated 5 February 2024, which clearly outlined that the NDIS Participant Nominee was going to direct the Respondent to look for a new ILO Partner for the NDIS Participant.
The Respondent also provided a copy of the ILO Host Agreement between the Applicant, the Respondent and the NDIS Participant Nominee. The Respondent submits that this Agreement articulates that the Applicant receives a weekly reimbursement paid fortnightly.
The Respondent submits that this is not a contract of employment, and that no employment relationship exists between the parties. The Respondent also highlighted that the Agreement was due to cease on 4 May 2024.
Submissions and Evidence - Applicant
The Applicant submits that she believes she was employed by the Respondent via the Agreement. The ILO Agreement was facilitated by the Respondent and was titled “My Supports Individual Living Options Partner Agreement”.
The Applicant submits that Section 4.1 of the Agreement provides for a period of “80 days respite leave”. The Applicant submits that Section 4.2 provided for “4 x weeks (28 days) respite will be provided by a volunteer respite provider”. The Applicant submits that this is paid “annual leave” and supports the position that was employed by the Respondent.
The Applicant provided a copy of the email from the NDIS Participant Nominee dated 5 February 2024 which stated, “if support workers are unavailable, then the Host covers the shifts without additional payment as a support worker. It is not possible for the Host to claim support work hours because the NDIS consider it “double-dipping”. The Applicant submits that if this was considered “double-dipping”, it inferred that the Applicant was already being paid as an employee and not just reimbursed.
The Applicant provided a copy of the email from the NDIS Participant Nominee dated 5 February 2024 which stated, “this places pressure and stress on you and “burnout” has been mentioned over the las month. Support worker recruitment is another task that takes you away from the core care and support for Tania as well as adds another task for you to manage.” The Applicant submits that she should not have had to do Support Worker Recruitment duties and these duties are more consistent with an employment relationship. The Applicant provided copies of emails which stated the below from the Respondent:
“Please find list of requirements below required for respite host. They are pretty much the same as for a full-time host. There is also an application form to be completed on the My Supports website, however, please feel free to provide the prospective respite host with my contact details and I can discuss this with them if you like. Alternatively, I can send you the link to the application form”.
The Applicant provided a copy of an email in which the Applicant had sent up a Facebook advertisement for a respite host for the NDIS Participant.
“Hi all,
Sharing information with you regarding advertising for Tania's respite, nothing suitable has been available to date.
I've got a very important event this Sunday which I cannot do with Tania in my care, I've asked if possible I can pay privately her regular carer who's already in place and they are already very familiar with each other for her to assit (sic) on the day? I would appreciate this being approved as l have no other options available.
I would appreciate a quick response so l have some peace of mind between now and then while im in preparations.
Thanks Kathy”
The Applicant also provided a copy of the communication provided to her by the Respondent on 12 February 2024. The Applicant submits that this email was a termination at the initiative of the Respondent.
“Hi Kathy,
I am writing to you to inform that a decision has been made at the request of Participant Name (my adjustment) family to terminate the Host family arrangement as you had been previously made aware. I do understand that you were requesting a period of notice, however, I believe this was provided on 02/02/2024.
I can confirm that at the request of Participant Name Guardian, Participant Name will not be returning to your home today 12/02/2024 after being in respite. It will be arranged that someone will collect Participant Name belongings in the next couple of days and this will be arranged at a time that is convenient with you.
In this instance, Participant Name family have requested that any correspondence regarding this matter can go to the following people…
Any outstanding payments will be made to you once our funding team have received this information”.
The Applicant submits that the above amount to a termination at the initiative of the Respondent as the Respondent communicated and was complicit with the direction of the NDIS Participant Nominee.
Consideration
Central to the consideration in this case is the operation of section 386(1) of the Act. The word dismissed is defined in section 12 of the Act as having adopted the meaning in section 386 of the Act.
Section 386(1) of the Act reads:
“(1) A person has been dismissed if:
(a) the person’s employment with his or his employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or his employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or his employer.”
This definition contains two elements.
The first concerns termination on the employer’s initiative and the second, resignation in circumstances where the person was forced to do so because of conduct or a course of conduct.
The two tests were explained by the Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli.[1]
In my assessment of the circumstances, the relevant test is that under section 386(1)(a) of the Act.
Having determined that section 386(1)(a) of the Act is the relevant test for this matter, I now turn to consider the conduct of the Respondent and if the action was deemed to be a dismissal at the initiative of the Respondent.
As a part of this I have also factored into my decision if the Applicant was employed by the Respondent.
I have considered the High Court’s decisions in CFMMEU v Personnel Contracting Pty Ltd[2] and ZG Operations Pty Ltd & Anor and Jamsek & Ors[3] that the My Supports Individual Living Options Partner Agreement (the Agreement) that was entered into between the parties is not a contract of employment.
Instead using the above precedent that the contract is king, the Agreement is an agreement between three parties to ensure there is understanding and agreement over how the NDIS Participant’s request for an Individual Living Option is to be managed. There is no mention or intention in the Agreement that would see the Applicant employed by the Respondent.
The Agreement also outlines the following at 1.9 Termination.
· All parties to this agreement can request the conclusion of this agreement.
· The My Supports coordinator has the responsibility to facilitate and negotiate this termination.
· Where the participant has no alternative accommodation immediately available, the desired notice is 8 weeks to enable this to be organised.
I accept the submissions of the Applicant that the above process was not handled to the expectation of the Agreement, however this does not change the nature of the contractual relationship entered into by the parties and this is not one of an employment relationship.
I have also considered the nature of the relationship between the Applicant and Respondent and formed the view that it is not an employment relationship, for the following reasons:
· The Agreement entered between the Applicant and the Respondent was expressly termed to be Individual Living Options Partner Agreement. I find the use of the term partner to be telling and a specific point of difference to a contract of employment.
· The Agreement does not require the Applicant to form tasks in any specific format on upon direction. Rather, the Agreement at (1.4) confirms that the Applicant is required to take a duty of care for the NDIS Participant they are hosting and this needs to be completed to a standard, however there is no direction on the specific as to how it must be completed.
· The Agreement provides for the Applicant to receive payment without income tax deductions.
· The Applicant was required to provide an invoice for fortnightly reimbursement as a “supplier” to the Respondent.
· The Applicant did not receive personal leave or annual leave. Rather the Applicant had periods of respite leave when the NDIS Participant would be in receipt of respite assistance.
· The Applicant was not required to wear a uniform or similar. Rather the Applicant hosted the NDIS Participant in her own home.
· The was no requirement that the Applicant not perform work for any other company whilst completing their ILO Host services.
Having reviewed and considered the Agreement and the nature of the relationship between the Applicant and the Respondent, I have formed the view that the Applicant was not employed by the Respondent and therefore could not have been dismissed at the initiative of the Respondent.
Conclusion
Not being satisfied that the Applicant has been dismissed for the purposes of section 386 of the Act, I have no alternative but to dismiss the application for want of jurisdiction.
The application is dismissed and an Order reflecting this will be issued in due course.[4]
COMMISSIONER
Appearances:
On the papers
<PR777533>
[1] [2017] FWCFB 3941.
[2] [2022] HCA 1.
[3] [2022] HCA 2.
[4] PR777534.
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