Kelly Mann v Adamsum TAS Pty Ltd

[2013] FWC 5386

[2013] FWC 5386

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kelly Mann
v
Adamsum TAS Pty Ltd
(U2013/5508)

COMMISSIONER DEEGAN CANBERRA, 6 AUGUST 2013

Application for unfair dismissal remedy - jurisdictional objection - whether termination at the initiative of the employer - application dismissed.

[1] This decision arises from an application for unfair dismissal remedy filed by Ms Kelly Mann (the applicant) in respect of the termination of her employment by Adamsum TAS Pty Ltd (the employer) in January 2013. The application is made pursuant to s.394 of the Fair Work Act 2009 (the Act).

Background

[2] The applicant was engaged on a casual basis as a carer for a severely disabled man, Adam. She held the position from February 2011. She was one of a number of carers engaged by the employer to provide full-time care for Adam.

[3] The applicant’s shifts varied and she generally worked some weekday shifts, a sleepover shift and some weekend shifts.

[4] On 1 January 2013 the applicant was due to work a shift commencing at about 5pm, including a sleepover. At about midday that day while she was driving she was contacted by Mrs Mary Sumner, Adam’s mother.

[5] Mrs Sumner advised the applicant that she was not required for her shift that evening. There was a discussion that took place between the applicant and Mrs Sumner, the terms of which are in dispute, and the applicant did not return to her position as a carer.

The Applicant’s Case

[6] The applicant claimed that during the telephone conversation with Mrs Sumner on 1 January she was advised that Adam no longer wished her to care for him and that Mrs Sumner would replace the applicant for that evening’s shift.

[7] According to the statement filed by the applicant she was shocked by the news and commenced to cry. Mrs Sumner apologised and terminated the call. Two days later the applicant sent Mrs Sumner a text message to request an Employment Separation Certificate (ESC), which was subsequently provided.

[8] The applicant denied the employer’s claim that she had resigned her employment. When cross-examined the applicant reiterated her claim that Mrs Sumner had advised her that Adam did not want her working with him anymore during the telephone call on 1 January. She denied that Mrs Sumner had told her that she was not required that night or that she told her to have a week off. Further the applicant denied saying to Mrs Sumner, “I am not coming back” and also denied that she terminated the call abruptly by hanging up on Mrs Sumner.

[9] When questioned, the applicant conceded that Adam had very high needs and was able to communicate with his mother. She also accepted that Adam did not want her to care for him that night and that she was a casual worker. She agreed that her hours varied considerably from week to week. It was also the applicant’s evidence that it was imperative that Adam feel comfortable with his carer.

[10] The applicant agreed that the ESC supplied to her by Mrs Sumner noted that the reason for the applicant leaving her employment was a “shortage of work”. It was put to the applicant that by ticking that particular box Mrs Sumner had enabled the applicant to access Centrelink payments earlier than she otherwise would have been able to had Mrs Sumner stated the applicant resigned her employment. The applicant stated that she did not know why that box had been ticked.

[11] It was the applicant’s evidence that she accessed Centrelink payments from about 24 January and that she had gained other employment as a school bus driver for about 12 hours per week from around the beginning of March.

[12] When questioned about her attempts to find work the applicant stated that she had applied for one or two jobs but had not been actively trying to find a permanent full-time position.

[13] It was put for the applicant that she had been given no warnings, that she had not resigned and that she had been terminated from her employment without notice.

The Employer’s Case

[14] It was the employer’s case that the applicant had resigned her position.

[15] Mrs Sumner is a director of the employer, a company formed to provide care for her disabled son. It was Mrs Sumner’s evidence that the applicant had been employed since January 2011 and that Mrs Sumner recorded the hours she worked each fortnight and arranged for payment.

[16] According to the witness, on 1 January 2013 her son had been upset and had asked her to phone the applicant to tell her not to come to work that night. She had tried a number of times to reach the applicant by telephone and succeeded about midday. It was Mrs Sumner’s evidence that the conversation had proceeded as follows:

...Kelly answered the phone and I said, "Hello, Kelly. I'm ringing to ask you - to tell you that Adam has asked for you not to come in for the shift tonight." Then Kelly immediately got upset and started crying, and saying that Adam didn't want her to come to work any more and - she was crying quite a lot and I said, "Listen, Kelly, let's just - you just have a week off and come back next week, on Tuesday, and we'll just see how we go from there." She said, "I can't come back. I can't come back any more," and hung up, and that was the end of the conversation. 1

[17] Mrs Sumner denied telling the applicant that Adam did not want her to work for him anymore. She claimed that the next communication she had with the applicant was her text requesting an ESC, which she supplied, albeit with an incorrect date. It was also her evidence that she had cited a ‘shortage of work’ as the reason for the applicant’s termination in order to assist her to access payments from Centrelink as soon as possible. Mrs Sumner had since employed another carer to replace the applicant.

[18] When cross-examined the witness reiterated that the applicant had said that she would not ‘come back’ during the phone call on 1 January. She agreed that she had made no attempt to contact the applicant but stated that her concern was for her son and not the applicant’s state of mind.

[19] The witness conceded that she had advertised the applicant’s job on 3 January as a new carer was needed and the applicant had said she would not come back. She also agreed that she should not have ticked the ‘shortage of work’ box on the ESC but had been trying to help the applicant out by doing so.

[20] It was put for the employer that it is reasonable for the applicant to be upset as the person she cared for did not want her to care for him that evening and given those circumstances, it would be understandable that she refused to return. It was the employer’s position that it was not credible that the applicant’s employment would be terminated on New Year’s Day, particularly given that the shifts needed to be covered and that Mrs Sumner had to cover the shift that night.

[21] It was also the employer’s position that nothing could be read into the particulars given on the ESC. It was clear that there was not a shortage of work. Mrs Sumner was merely trying to help the applicant access payments from Centrelink as quickly as possible.

[22] Finally it was put for the employer that the applicant had not made any real effort to mitigate her loss given her evidence that she had worked for a long period in veterinary nursing and had significant experience caring for a disabled person.

Consideration and Conclusion

[23] I am satisfied that the applicant is a person protected from unfair dismissal and that the termination was not for a reason of genuine redundancy. The only jurisdictional objection raised is that there was no termination at the initiative of the employer.

[24] The applicant claims that Mrs Sumner advised her that Adam no longer wished her to care for him. Mrs Sumner stated that she told the applicant Adam did not want her to care for him that night and told her to take a week off. It was Mrs Sumner’s position that the applicant then resigned. The applicant denies this.

[25] It is difficult to determine exactly what words were exchanged during the telephone call between the two women on 1 January. At the end of the call both women knew that the employment relationship had ended. Without further communication, Mrs Sumner advertised the applicant’s job and the applicant requested an ESC.

[26] In my view, even if Mrs Sumner did tell the applicant that Adam did not want her to care for him that night and not ‘anymore’, it was unlikely that the applicant’s employment would have continued. The applicant accepted that Adam did not want her to care for him 2 and that he had communicated this fact to his mother. She was upset that he had adopted this attitude.

[27] Mrs Sumner had little say in the matter. If Adam did not want the applicant to care for him then Mrs Sumner had to respect his wishes. The situation is akin to a labour hire situation where the client no longer wishes a certain person to be provided to fulfil a contract. There is little the hiring company can do. The client usually has the right to determine whether it wishes to accept a particular person under the contract. The company employing and supplying the person must comply with the client’s wishes.

[28] The situation is more difficult when the company supplying the labour, like the employer in this mater, has only one client. Other work cannot be found for an employee who is no longer acceptable to the client.

[29] The employer in this matter is the company, Adamsum Pty Ltd. It exists for one purpose, to provide 24 hour care for a severely disabled man. The care provided is of a very personal nature and the man concerned is totally dependent on whichever carer is providing care at the time. Given the necessity for a trusting relationship between a severely disabled totally dependent man and his carer, I am unable to find that the employer had any choice but to remove the applicant as a carer.

[30] I accept the evidence that Adam had communicated that he did not wish the applicant to care for him. That decision resulted in the termination of the applicant’s employment. The applicant accepts that the decision was taken by Adam. The decision to terminate was not a decision initiated by the applicant’s employer. It was necessary for the employer to give effect to that decision and the employer did not have any alternative employment options available for the applicant.

[31] In my view there was no termination at the initiative of the employer.

[32] If I am wrong, and the manner in which the termination occurred does amount to a termination at the initiative of the employer, then I am satisfied that there was a valid reason for the termination in that there was no work available for the applicant. The applicant was employed on a casual basis. While the process adopted in effecting the termination could have been better, in the circumstances, I am satisfied that the procedures followed were impacted by the size of the employer and the lack of access to human resource specialists. I am also satisfied, given the reason for the termination of the applicant’s employment, that even if more time and effort had been put into advising the applicant of the reasons for her dismissal, the outcome would not have been any different.

[33] I am satisfied that the termination of the applicant’s employment was not harsh, unjust or unreasonable. The dismissal was not unfair.

[34] The application is dismissed.

COMMISSIONER

Appearances:

Mr C. Mann, for the Applicant.

Mr J. Munro, solicitor, for the Respondent.

Hearing details:

2013.

Hobart:
June 19.

 1   Transcript PN280.

 2   Transcript PN133.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR539810>