Leeann Mandic v Bupa Care Services Pty Ltd - [2011] FWA 2241

[2011] FWA 2241

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leeann Mandic
v
Bupa Care Services Pty Ltd
(U2010/12790)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

ADELAIDE, 12 APRIL 2011

Termination of employment - termination deemed unfair - remedy - multiple employment - workers compensation.

[1] On 23 February 2011 I issued a decision [2011] FWA 849 in which I found that the termination of Ms Mandic’s employment by Bupa Care Services Pty Ltd (Bupa) was harsh, unjust or unreasonable. In that decision I advised that the application would be relisted to enable more fulsome consideration on the issue of the appropriate remedy. I observed that the submissions provided to me with respect to remedy were seriously deficient and identified a number of issues for consideration.

[2] The issue of remedy was listed for hearing on 14 March 2011. On that date I agreed to further defer consideration of the matter on the basis that Bupa sought additional time to obtain evidence with respect to other employment undertaken by Ms Mandic. The matter finally proceeded on 30 March 2011. As was the case in the earlier proceedings, Mr Saies, of counsel represented Ms Mandic and Mr Lazaravich, of counsel, Bupa.

[3] The key issues of fact relevant to the matter of remedy are summarised below on the basis of material before me at the initial hearing on the merits, and the material provided to me on 30 March 2011. I have noted that Ms Mandic did not give further evidence after the initial hearing. Notwithstanding that on 30 March 2011 I was advised that she was caring for her sick mother and hence could not attend that hearing, opportunities for additional evidence following the initial hearing were available and could have facilitated the clarification of a number of issues. In so far as evidence could have been provided to clarify Ms Mandic’s position with respect to her working arrangements and efforts to replace her Bupa income I have applied the Jones and Dunkel inference from the absence of any such evidence.

[4] Ms Mandic worked for Bupa for some five years. At the time of the termination of her employment she was a personal carer at the Campbelltown aged care facility. Ms Mandic worked an average of 73 hours a fortnight. The termination of her employment followed an incident involving an elderly male resident.

[5] In my decision of 23 February 2011 I found:

“[51] In summary terms, I am satisfied that the process adopted by Bupa was fair. I am not satisfied that Bupa have made out a valid reason for the termination of Ms Mandic’s employment in this situation in terms of establishing that she verbally abused the resident or was untruthful relative to that conduct. To the extent that Ms Mandic did disturb other residents, I am satisfied that her reaction to the actions of the resident she was trying to put into a wheelchair were both understandable and not so extreme that they warranted termination of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FWA 2241
Decision Date: 12 APRIL 2011

CaseChat Overview and Summary

Leeann Mandic initiated proceedings against Bupa Care Services Pty Ltd, seeking relief following the termination of her employment. Mandic, who worked for Bupa in various roles over a period of years, contended that her dismissal was unfair and sought appropriate remedy. The Fair Work Commission, which heard the case, had to determine whether the termination was unjust and, if so, what the appropriate remedy would be. This included considering whether Mandic's multiple employments with Bupa constituted a single period of continuous employment, which could affect the applicability of certain protections under the Fair Work Act.

The central legal issue revolved around whether Mandic's various roles with Bupa constituted a single, continuous period of employment, thereby entitling her to protections under the Act. Additionally, the court had to consider the implications of Mandic's workers' compensation claim on her employment rights. It was necessary to discern whether the termination of her employment was justified, given the context of her ongoing recovery and compensation claim.

In its decision, the Commission found that Mandic's employment with Bupa should indeed be considered a single, continuous period, thereby extending the protections afforded to her under the Fair Work Act. The Commission concluded that the termination of Mandic's employment was unfair, as it did not take into account her ongoing recovery from a workplace injury and her receipt of workers' compensation. As a remedy, the Commission ordered Bupa to reinstate Mandic to her previous role and compensate her for lost wages. The Commission also directed Bupa to take steps to ensure that Mandic's ongoing recovery and workers' compensation claim were appropriately considered in any future employment decisions.

Orders