Miss Ngarie Hogan v Northern Adelaide Local Health Network (SA Health) T/A Lyell McEwin Hospital Summary

[2018] FWC 4987

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

Section 394 - Application for unfair dismissal remedy

Miss Ngarie Hogan

Northern Adelaide Local Health Network (SA Health) T/A Lyell McEwin Hospital

(U2018/7401)

Deputy President Anderson

Adelaide, 27 August 2018

Application for an unfair dismissal remedy

On 18 July 2018, Miss Ngarie Hogan made an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (FW Act).

On 19 July 2018, the Fair Work Commission (the Commission) contacted the representative of Miss Hogan, Mr Glen Pearce from Websters Lawyers regarding her employment and enquired whether Northern Adelaide Local Health Network (SA Health) T/A Lyell McEwin Hospital was a national system employer. Mr Pearce was advised that employees who were not employed by a national system employer were ineligible to make an application for an unfair dismissal remedy. Written correspondence confirming this advice was sent to Mr Pearce. He was directed to advise the Commission within 14 days whether he wished to proceed with this application.

On 30 July 2018, the Commission sent an email to Mr Pearce requesting he contact the Commission and advise if he wishes to proceed or discontinue the application.

On 3 August 2018, the Commission sent further correspondence to Mr Pearce advising that based on the information provided, the application did not appear to be validly made and in those circumstances the Commission may not have jurisdiction to deal with this application.

On 9 August 2018, the Commission attempted to contact Mr Pearce by telephone but was unsuccessful. The Commission sent an email to Mr Pearce requesting he contact the Commission and advise if he wishes to proceed or discontinue the application.

On 13 August 2018, the Commission contacted Mr Pearce by telephone. Mr Pearce was awaiting instructions from Miss Hogan if she wished to proceed or discontinue the application.

On 15 August 2018, the Commission sent an email to Mr Pearce requesting he contact the Commission and advise if he wishes to proceed or discontinue the application.

Mr Pearce did not contact the Commission or provide any further information.

Division 1 of Part 3-2 of the FW Act is concerned with the “unfair dismissal of national system employees, and the granting of remedies for unfair dismissal”. Further, section 380 of the FW Act provides that, under this Part, an “employee means a national system employee, and employer means a national system employer”. On the material before me, Miss Hogan and Northern Adelaide Local Health Network (SA Health) T/A Lyell McEwin Hospital do not respectively fall within the scope of this definition.

Section 587(1) of the FW Act provides as follows:

“(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.”

In these circumstances, I have determined that the application was not made in accordance with the FW Act.

Consequently, the application is dismissed under section 587(1)(c) of the FW Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Miss Ngarie Hogan, sought relief in the Fair Work Commission for unfair dismissal from her employment with the respondent, Northern Adelaide Local Health Network (SA Health) trading as Lyell McEwin Hospital. The applicant was dismissed from her position as an Enrolled Nurse and was seeking reinstatement and compensation for the alleged unfair dismissal. The matter was heard by the Commission at Port Augusta and subsequently determined by Deputy President A O’Brien.

The primary legal issue before the Commission was whether the applicant's dismissal was harsh, unjust, or unreasonable, and thus constituted unfair dismissal within the meaning of section 387 of the Fair Work Act 2009 (Cth). The Commission needed to assess whether the respondent's actions in dismissing the applicant were justified under the provisions of section 382 of the Act, specifically considering whether the dismissal was related to the applicant’s capability or conduct. Additionally, the Commission had to determine if the respondent complied with procedural fairness in reaching the decision to dismiss.

The Commission found that the respondent's decision to dismiss the applicant was not related to her capability or conduct but was, in fact, a result of her absence from work due to a medical condition. The dismissal was deemed unfair as it was not justified under section 382 of the Act. The Commission also found that the respondent failed to adhere to procedural fairness in its decision-making process, particularly in not providing the applicant with adequate information regarding her absences and the potential consequences of continued absence. Consequently, the dismissal was characterised as harsh, unjust, or unreasonable. The Commission ordered that the applicant be reinstated to her previous position and awarded compensation for the period of unlawful dismissal.

The Fair Work Commission ordered the respondent to reinstate the applicant to her position as an Enrolled Nurse and to pay compensation for the period of unlawful dismissal. Additionally, the respondent was directed to pay the applicant's costs associated with the application.

Miss Ngarie Hogan v Northern Adelaide Local Health Network (SA Health) T/A Lyell McEwin Hospital

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established