Kerry Elliott v Helping Hand Aged Care Inc

[2013] FWC 3613

[2013] FWC 3613

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kerry Elliott
v
Helping Hand Aged Care Inc
(U2013/824)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 5 JUNE 2013

Application for relief from unfair dismissal - failure of applicant to attend hearing - no reasonable prospect of success - application dismissed.

[1] At the conclusion of a hearing on 5 June 2013 I dismissed this application. I have set out my reasons for this decision.

[2] On 18 March 2013 Ms Elliott lodged the application pursuant to s.396, through which she sought relief relative to the termination of her employment with Helping Hand Aged Care Inc (HHAC). The application was lodged on her behalf by United Voice. It was not settled through the Fair Work Commission (FWC) conciliation process and was referred to me for arbitration.

[3] On 29 April 2013 I issued directions in which I advised of an agreed hearing date of 5 June 2013 and the requirement that both parties file and exchange an outline of their respective positions, witness statements and a copy of any document relied upon. These directions stated:

“[5] Compliance with these directions is mandatory and a failure to do so may disadvantage the party concerned. Any enquiries with respect to these directions should be addressed to my office on 08 8308 9851.”

[4] On 27 May 2013 United Voice filed a notice that it was ceasing to act for Ms Elliott.

[5] HHAC filed material consistent with my directions. Ms Elliott did not file any material and was not able to be contacted. On 31 May 2013 I issued further directions. These were sent to Ms Elliott by express post. These directions stated:

“[1] On 29 April 2013 I issued Directions in this matter. A copy of those Directions is attached.

[2] In accordance with these Directions I have received material from the respondent in this matter. On 27 May 2013 advice was received from United Voice to the effect that it was no longer representing the applicant. Nothing further has been received from the applicant who has not complied with my Directions. My Associate has not been able to contact the applicant.

[3] In the event that the applicant no longer seeks to pursue this application, advice to this effect, in the form of a Notice of Discontinuance should be provided to my Office as a matter of absolute urgency. A Notice of Discontinuance is attached.

[4] This matter remains listed for a hearing on 5 June 2013. The applicant should take this advice as clear notice that, in the event that she fails to attend this hearing, and fails to provide evidence of why she is not able to attend this hearing prior to the commencement of the hearing, her application will be dismissed.

....”

[6] No further advice was received from Ms Elliott.

[7] At the hearing on 5 June 2013 Mr LeQuesne appeared for HHAC pursuant to a grant of permission made under s.596(2)(a) on the basis that Ms Elliott had been on notice of HHACs request for that grant since the initial directions were issued and had been given the opportunity to object to that request. No objection had been made and I considered that Mr LeQuesne’s involvement would enable the matter to be dealt with more efficiently.

[8] Ms Elliott did not appear at the hearing on 5 June 2013 and, again could not be contacted.

[9] In my view, the FWC has the capacity to dismiss an application where an applicant does not intend to prosecute his or her case. In Chand v State Rail Authority 1 a Full Bench took account of the issues of procedural fairness and the significance of the issuing and non-compliance with directions in adopting this approach. Notwithstanding this, I have not dismissed the application on this basis and have considered the material provided to me by HHAC consistent with ss.600 of the FW Act and the requirements set out in s.577 that the Commission performs functions and exercises powers in a manner which is, amongst other things, fair, just, quick and open and transparent.

[10] HHAC provided evidence in the form of signed witness statement made out by five employees. I have accepted the information provided to me. 2

[11] On the evidence before me I have concluded that Ms Elliott was granted leave without pay from 8 October 2012 to 6 January 2013. She requested an early return to work and was rostered to resume normal duties from 4 December 2012. She worked on that day but then failed to attend her next six rostered shifts. After discussions with her, HHAC agreed to continue Ms Elliott’s leave without pay until 6 January 2013. Ms Elliott returned to work on 8 January 2013. After working for approximately one hour she reported a workplace injury. She was provided with the appropriate workers compensation forms. She met with HHAC on 9 January 2013 and provided a prescribed medical certificate. HHAC established with her a return to work plan consistent with this medical certificate and which included specified shifts. Ms Elliott failed to attend the next three nominated return to work plan shifts. She did not notify of her non-attendance and could not be contacted.

[12] On 12 February 2013 HHAC provided Ms Elliott with a letter which confirmed that, if she failed to contact HHAC by 25 February 2013 HHAC would consider that she had abandoned her employment.

[13] Ms Elliott did not contact HHAC within this specified time. On 26 February 2013 HHAC provided further written advice to Ms Elliott to the effect that it had concluded that she had abandoned her employment. Two days later Ms Elliott contacted HHAC and advised that she could not be dismissed because she had made a workers compensation claim. Ms Elliott lodged a workers compensation claim against HHAC on 28 February 2013.

[14] I have concluded that the termination of Ms Elliott employment was not at the initiative of the employer. Rather, her own actions in not contacting HHAC clearly confirmed that she acted in a manner which indicated that she terminated this relationship herself. In reaching this conclusion I have considered the Full Bench decision in Searle v Moly Mines Ltd. 3 I have had particular regard to whether HHAC took some action which was intended to bring the employment relationship to an end or had the probable result of bringing the employment relationship to any end.4 On the material before me it is clear that HHAC did not act or intend to bring the employment relationship to any end and in fact went to some substantial lengths to accommodate and support Ms Elliott. It was Ms Elliott’s own inaction that terminated the employment relationship. There is nothing in the material before me that indicates that Ms Elliott was dismissed at HHAC’s initiative. Ms Elliott’s unexplained and repeated absences from work were without notification. HHAC was perfectly entitled to seek clarification of her intentions. The timeframe specified in the 12 February 2013 letter was both reasonable and understandable and the HHAC actions did not presume or precipitate the termination of employment.

[15] An action for unfair dismissal can only be made if that person is dismissed. Section 386 establishes the meaning of dismissed. Section 386(1)(a) requires that a termination must occur at the employer’s initiative. The remaining elements of this section are not relevant to this particular matter.

[16] Even if I was wrong in that respect and the termination of Ms Elliott’s employment occurred at the initiative of the employer, her conduct in not responding to the 12 February 2013 advice or attending for work must represent serious misconduct and hence form a valid reason for the termination of her employment. Further consideration of all of the factors in s.387 would necessitate a conclusion that even if the termination of Ms Elliott’s employment was at the initiative of the employer, it could not be considered harsh, unjust or unreasonable.

[17] Consequently, the evidence before me indicates that Ms Elliott’s application has no reasonable prospect of success. Ms Elliott has clearly been put on notice about the hearing of this matter and has failed to provide any evidence in support of her application. On this basis I have concluded that, pursuant to s.587(1)(c), the application should be dismissed. An Order (PR537618) to this effect will be issued.

SENIOR DEPUTY PRESIDENT

Appearances:

R LeQuesne counsel for the respondent.

Hearing details:

2013.

Adelaide:

5 June 2013.

 1   PR975108, 19 December 2006

 2   Exhibit H1

 3   [2008] AIRCFB 1088

 4   Ibid, para [21]

Printed by authority of the Commonwealth Government Printer

<Price code A, PR537612>