Mary Ndawa v My Flex Health International

[2021] FWC 4482

[2021] FWC 4482

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mary Ndawa
v
My Flex Health International
(U2020/15833)

COMMISSIONER WILLIAMS PERTH, 26 JULY 2021

Termination of employment – jurisdiction.

[1] This decision concerns an application made by Mrs Mary Ndawa (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The respondent is My Flex Health International (or the Respondent).

[2] The Respondent objects to the application on the grounds that the Applicant was not dismissed.

[3] At the hearing of this matter the Applicant was self-represented. The Respondent was represented Ms Cheryl Branch (Ms Branch), the Operations Director.

[4] Both the Applicant and Ms Branch gave evidence at the hearing.

Factual findings

[5] The Applicant’s Form F2 - Unfair Dismissal application (the Application) states that she was notified of her dismissal and this took effect on 1 December 2020.

[6] The Application states as follows,

“I wasn’t given any reasons.

In March 2020, we were told to stay home due to Covid 19.

In September I went to the office and told them I needed to work. They told me they would call me once they had a job for me. I never got a call.

On 1st December I called again and they told me I was fired with no reasons given.”

[7] The Application explains why the dismissal was unfair as follows,

“No notice given.

I was waiting for a call for a job from them.

Instead I got told I was no longer in the system and I was fired.”

[8] The Applicant’s evidence at the hearing to the extent it is relevant to the application was as follows.

[9] The Applicant started working with the Respondent in 2011.

[10] Her statement was that she apologises if she did not bring her police clearance to the Respondent.

[11] Her evidence was she was asked to bring a police clearance and she took this in September 2020. She was told to go home and when the Respondent had work they would call her.

[12] The Applicant says that in November 2020 she rang to see when she was going to start work again and she was told that she was still inactive but needed to renew her manual handling and her working with children, which she says she finished on 8 November 2020.

[13] She called the next week and was told she was fired and no longer with the Respondent. She was told if she called again they would block her number.

[14] The Applicant provided details of numerous text messages between her and the Respondent regarding work placements and rosters at various different locations throughout 2019. The majority of these placements were at either hospitals or aged care facilities.

[15] The Applicant provided a copy of her National Police Certificate valid as at 12 June 2020.

[16] The evidence of Ms Branch is that the Respondent recruits labour hire personnel in healthcare, engaging them for single shifts and there is no guarantee of ongoing work.

[17] The Applicant’s letter of engagement, which she signed on 6 April 2018, states that the employment will be on a casual basis, as required and that each occasion she works will be a separate letter of engagement which ceases at the end of that engagement. It is stated that as a casual employee there is no guarantee of ongoing or regular work.

[18] Over the course of the Applicant’s registration with the Respondent she had been rostered for a total of 1918.13 hours over 9.5 years, averaging 3.89 hours per week.

[19] The evidence is the Respondent can only use personnel who have satisfied the compliance requirements such as a national police clearance and an influenza vaccine plus demonstrated competencies such as manual handling and infection control. If a worker does not comply with these they cannot be placed into work.

[20] At the beginning of every month the Respondent’s recruitment department runs a report on these requirements and contacts affected employees to ensure they provide new documentation by the respective expiry dates.

[21] All mandatory competencies must be renewed by employees prior to expiry. Staff members who allow their competencies to expire will not be allocated shifts. They cannot be placed to work for a provider if they are not fully compliant.

[22] The onus is on the worker to ensure they are compliant. If a worker does not maintain their competencies they are deactivated until they fill the compliance requirements and are then reconsidered for activation. 1

[23] The Respondent’s Staff Orientation Manual, at section 11.2 Failure to Comply, states that employees will be deactivated from the database if they have not worked a shift within three months, any of their compliances have expired, an employee fails to remove their availabilities and continues to turn down shifts.

[24] Ms Branch’s evidence was that she had experienced resistance from the Applicant to abide by the annual mandatory competence checks. The Applicant had become aggressive and verbally abusive within the Respondent’s reception area in response to requests that she comply with the competency requirements. Ms Branch’s evidence was that the Applicant displayed threatening behaviour and she had to ask her to leave the building as her behaviour was not appropriate.

[25] Her evidence was the Applicant’s last shift was on 31 December 2019.

[26] Her evidence was their records show on 20 March 2020 the Applicant was contacted and reminded that she needed to update her police clearance. But there was no response.

[27] On 26 March 2020, the Applicant advised that she did not want to work due to COVID-19 and so her status was changed at her request to inactive. The Applicant also advised that she did not want to apply for a new National Police clearance.

[28] Ms Branch’s evidence was the Applicant chose not to work during COVID-19 and had an extended period without being available.

[29] The Respondent’s records show that the Applicant’s worker checks that were not current were as follows,

Manual Handling: expired 20 August 2020

CPR: expired 5 November 2020

Medication Assist: expired 7 November 2020

Working with Children: expired 11 November 2020

[30] At the hearing, the Applicant did not challenge the accuracy of the Respondent’s records and I accept these as being correct.

[31] Ms Branch says the Applicant had advised she did not want the influenza vaccination which was mandatory from 1 May 2020 for all aged care workers.

[32] Ms Branch’s evidence was that the Applicant did not update her compliances or maintain her required competencies to retain the currency of her skills and so she was inactive on their database but was not dismissed.

The legislation

[33] Section 386 of the Act, which is set out below, defines when a person has been dismissed.

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her 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 her remuneration or duties; and

(ii) he or she 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.”

Consideration

[34] The Applicant’s employment was expressly casual and she was offered, and had accepted, engagements at various different health care facilities between 2011 and 2019.

[35] It is clear from the evidence and is not in dispute that for an extended period throughout 2020 the Applicant had not made herself available for work and so had not been offered placements by the Respondent.

[36] It is also clear that the Applicant had not, towards the end of 2020, maintained the prerequisite clearances and competencies necessary to be placed by the Respondent with healthcare clients.

[37] In late 2020 there was some discussion between the Applicant and the Respondent’s staff on the phone about her clearances and competencies not being up-to-date and she was advised that this was the situation.

[38] The evidence before the Commission is that a number of these prerequisite clearances or competencies were not current as at various dates in late 2020. The evidence also is that in the past the Applicant had reacted badly to being told she needed to update her clearances or competencies before she could be placed in work.

[39] I note the Applicant’s statement that she was told she was ‘fired’ however considering the totality of the evidence I am not satisfied that the Applicant’s employment was terminated on the Respondent’s initiative. Rather what occurred is the Applicant had not maintained her clearances and competencies and so was not offered work by the Respondent.

[40] The Applicant was not dismissed by the Respondent within the meaning of s.386 of the Act.

[41] Consequently, this application will be dismissed and an order [PR732134] to that effect will now be issued.

Appearances:

M. Ndawa on her own behalf.

C. Branch on behalf the Respondent.

Hearing details:

2021.

Perth (by telephone):

May 17.

Printed by authority of the Commonwealth Government Printer

<PR732133>

 1   Exhibit R1, Attachment Staff Orientation Manual at section 7 Certificates and Documentation.