Monte Elissa v S Thomas Health Care Pty Ltd
[2025] FWC 727
•13 MARCH 2025
| [2025] FWC 727 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Monte Elissa
v
S Thomas Health Care Pty Ltd
(U2024/15250)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 13 MARCH 2025 |
Unfair dismissal application – no dismissal – application dismissed.
Introduction
This decision concerns an application by Mr Monte Elissa for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act) against his employer, S Thomas Health Care Pty Ltd trading as Australian Health Professionals (AHP).
Mr Elissa alleges that he was dismissed on 15 May 2024 when he saw an advertisement for what he believed was his job. AHP denies that Mr Elissa was dismissed and says, in the alternative, that Mr Elissa’s unfair dismissal application was lodged out of time and it would not be appropriate in the circumstances of this case to grant an extension of time.
Dismissal
The question of when a person has been dismissed is governed by s 386 of the Fair Work Act 2009 (Cth) (Act). It relevantly provides:
“(1) A person has been dismissed if:
(a) the person’s employment with his or his employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or his employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or his employer.”
Mr Elissa contends that his employment with AHP was terminated on his employer’s initiative. There is no suggestion in the material before the Commission that Mr Elissa resigned from his employment with AHP.
The expression termination “on the employer’s initiative” in s 386(1)(a) is a reference to a termination of the employment relationship and/or termination of the contract of employment[1] that is brought about by an employer and which is not agreed to by the employee.[2]
In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry under s 386(1)(a) is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.[3]
Relevant facts re dismissal
On 11 March 2024, Mr Elissa alleges that his manager was verbally aggressive towards him.
On 14 May 2024, Mr Elissa participated in a meeting with AHP representatives in relation to the incident which took place on 11 March 2024.
A letter dated 15 May 2024 addressed to Mr Elissa was prepared by AHP.[4] It concerned allegations of misconduct against Mr Elissa and stated that “if proven, this misconduct may result in a written warning, a first and final written warning or the termination of your employment”. The letter was never sent to Mr Elissa.
On 15 May 2024, AHP advertised the position of Physiotherapist, located at Teralba, Newcastle, Maitland and Hunter Valley, New South Wales, commencing in June 2024. Mr Elissa thought that AHP was planning to recruit a new employee to replace him. The fact that the advertisement referred to the location of the job as “Teralba” supported Mr Elissa’s belief in that regard because AHP does not have any facilities in Teralba other than the aged care facility at which Mr Elissa worked and previous advertisements used by AHP for a general area did not make specific mention of a particular location. Mr Elissa even made an anonymous telephone call to check the location of the job being advertised. He was told that the location was the same location as where he worked.
Mr Elissa’s manager did not know anything about the advertisement. Ms Murphy, Chief Operating Officer of AHP, gave evidence that AHP advertises “constantly” for additional staff, particularly physiotherapists and other allied health professionals. Ms Murphy denies that the advertisement seen by Mr Elissa was for his job. Ms Murphy says that the advertisement may have been for a floating role, covering the site where Mr Elissa worked in Teralba and other sites in the region, particularly having regard to the fact that Mr Elissa had complained about being overworked in his role.
In the period from 16 May to 23 May 2025, Mr Elissa continued to work for, and be paid by, AHP. Mr Elissa then took a week of annual leave and was paid during this period of leave.
On 4 June 2024, Mr Elissa wrote to AHP’s Human Resources Manager in the following terms:
“Thank you for your past communication, meeting and emails regarding the intimidation situation.
As mentioned previously, I seek to have the facts clear. I also requested your opinion (detailed) on the intimidation video considering all the confounding circumstances. I haven’t heard anything related to this as yet.
I have checked my emails and my request for Viv’s written record of my verbal explanation of the situation. My request remains unfulfilled.
I am left feeling disregarded, unsupported, and disempowered.
Did you obtain a copy of the video footage/have you seen it? Are you abreast of all the facts? Opinion?
I have checked with the Fair Work Ombudsman and the Fair Work Commission and my position as an employee as a Physiotherapist. I also checked both the employer and management responsibilities for staff member conditions.
- Duty of Care
- Psychosocial hazards
- Reasonable management actions
- Unfair dismissal
- Confidentiality
I am happy to provide examples for each point above, for discussion, upon request.
You can also find information about the above points and other employee expectations of the Fair Work Ombudsman’s website at fairwork.gov.au or by calling the Fair Work Infoline on 13 13 94.”
Also on 4 June 2024, Mr Elissa sent a letter to AHP’s Human Resources Manager asking for an explanation concerning the circumstances relating to the posting of the advertisement on 15 May 2024.[5] Mr Elissa did not receive a written response to this letter. Ms Murphy gave evidence that she instructed AHP’s Human Resources Manager to tell Mr Elissa that AHP advertises all the time for physiotherapists and the advertisement was not for his role. I accept that Ms Murphy gave such an instruction to AHP’s Human Resources Manager, but on the limited evidence before the Commission I am unable to find that AHP’s Human Resources Manager told Mr Elissa that AHP advertises all the time for physiotherapists and the advertisement was not for his role. The advertisement was later withdrawn by AHP.
On 6 June 2024, Mr Elissa saw his general practitioner and reported to him that an incident at work had caused him significant mental health issues. The general practitioner diagnosed Mr Elissa as suffering from adjustment disorder.
In the period from 6 June 2024 until 2 October 2024, Mr Elissa was unfit for any work. His general practitioner provided medical certificates to that effect to AHP.
On 17 June 2024, Mr Elissa filed a workers’ compensation claim against AHP. Mr Elissa prepared his workers’ compensation claim with the assistance of his general practitioner. Mr Elissa commenced receiving workers’ compensation payments a few weeks after he made his application and is still receiving such payments.
On 20 June 2024, AHP’s Human Resources Manager sent an email in the following terms to Mr Elissa:[6]
“…Thank you for sending through your certificate of capacity. I see it indicates that you currently have no capacity for work.
I want to assure you that we are here to support you during this challenging time. I’ll be working closely with our team to explore all available options for assistance and to ensure we are providing you with the necessary support.
We will investigate any workplace adjustments or accommodations that might help ease your transition when you are ready to return to work. We will collaborate with your healthcare providers to better understand your needs and the best way to support your recovery.
Please remember that our EAP is available to you and offers confidential counselling services, which can be a valuable resource during this time.
We will schedule regular check-ins to discuss your progress and any adjustments to your work plan.
If there are specific ways we can assist or if you have any needs or concerns, please let me know. Our primary goal is to support your well-being and facilitate a smooth and supportive recovery process.
Thank you for keeping us informed, and please feel free to reach out if you have any questions or need further assistance.”
On 27 June 2024, AHP’s Human Resources Manager sent another email to Mr Elissa. It states:[7]
“Following up on my previous email regarding your certificate of capacity, I wanted to check in and see how you’re managing. We are exploring various ways to support you during this time and will be looking into possible workplace adjustments to facilitate your eventual return.
If you have any updates from your healthcare provider or if there are new ways, we can assist you, please let me know. Additionally, remember that our Employee Assistance Program is available to offer support.
Wishing you the best in your recovery, and please don’t hesitate to reach out if you have any concerns or need further assistance.”
On 11 and 16 July 2024, Mr Elissa was interviewed in relation to his workers’ compensation claim. Mr Elissa filed a copy of the record of this interview with his unfair dismissal application. The record of interview includes the following relevant statements from Mr Elissa:
“22. …I am the sole AHP staff member at Waterview …
43.On 15 May 2024, I noticed AHP had advertised on Seek, for a Physiotherapist role at Waterview. I saw the ad one hour after it was posted during my lunch break. I was the only Physiotherapist employed there by AHP. I had no conversations with AHP or Waterview about anything related to any physiotherapy changes, so I concluded I was being terminated and replace. By then, I had an estranged relationship with my direct manager, Viv Lo, so I spoke to the Facility Manager, Lee, at Waterview, and asked her to find out and to ask what was going on. I requested Lee to contact Kylie Watt , senior HVC HR manager, immediately. Lee called Kylie on the speakerphone. Kylie confirmed she had stated the day before, to Viv, that’s Kylie, Lee, Bec, and Marnie (clinical manager), all Waterview management, that they wanted me to stay.
44.Kylie immediately tried to contact Viv, with the displeasure of the Seek ad. She couldn’t get through to Viv.
45.I was left in a distressed state and sat alone outside the administration room, not knowing what to do. From past AHP experiences, lack of dealing with important issues promptly and adequately, and placing my welfare is a lower priority, I started to panic. I was reflecting on the lack of management of the other physio, Frank, situation. Lack of management/timeliness of the receptionist intimidation situation and now a dismissal. I wanted this issue addressed immediately.
46.I then sent SMS messages to Viv: “Please call me when you are free. Urgent.” She replied she was busy in a meeting and to contact Stephanie (AHP HR). She advised she could call later at 1:45 pm. I replied, “No, I need to talk to you only. For me, it’s an emergency.” A few more SMS’s were sent by me.
47.I recall sending the “Emergency SMS’s”, not only because of my heightened emotions and feeling isolated, I had been in contact recently with Lifeline for emotional support by then, so part of me also wondered if Viv would respond to a distressed message, immediately. In the past, I asked her if she had my back, full support 100%, but I never heard a yes.
48.I was in an extreme amount of distress and to lose my job would have caused me immense financial stress. I felt my manager and employer did not have my back. They had posted an ad to replace me.
49.I stayed at work the full day. At some point, Lee advised me that Viv had contacted Kylie and stated Viv didn’t know anything about the Seek ad. I recall thinking how does the AHP manager, Viv, of the site not know about any change in staffing plans and the placing of the Seek ad for her remit.
50.I had previously planned annual leave for five days from Friday, 23 May 2024, so I knew I only had to push through work for one week until that leave started. I continued, curious to get answers about the AHP attempted dismissal, the lack of AHP support for the intimidation meeting, and the immediate lack of AHP response with Kylie Watt. I then commenced the annual leave. I have not returned to the workplace since then.
…
122.On 17 May 2024 I requested again, to see what Viv had recorded about the incident. This request has been ignored. I asked about my job being advertised. No explanation about this has been received. Later in the day, I sent a strong email message to Viv, Tahni, and Anthony Moore about significant stress. I requested the Seek advertisement be suspended until I could diffuse my stress and have discussions next week. I received a message from Tahni at 4:15pm after I had finished work.
123.My last day of work was 23 May 2024.
124.On the 4 June 2024, I sent an email to Stephanie with 3 strong letters attached…
135.The day after the facility meeting with the senior Waterview management, with no communication with me from my employer AHP, a job advertisement was placed on Seek to replace me by my company. I felt I had no support, there was no discussion, and I just felt used and abused. This was a deeply stressful issue for me on multiple levels. To me, this was an attempt at unfair dismissal.
…
167.In my current AHP role as an employee, I am at the mercy of management, their attitude, skill, and conscious and subconscious motives…
176.…Why was one of Australia’s biggest aged care physio shonks offered support and training, yet there was an attempt to terminate my employment?...”
In the period between July 2024 and January 2025, the Applicant attended 14 appointments with a clinical psychologist, who found that the Applicant met the “diagnostic criteria for adjustment disorder with mixed anxiety and depressed mood, following ongoing stressors within his workplace between 2023 and 2024...”
On 22 October 2024, Mr Elissa’s general practitioner certified that he was fit to work for eight hours per day, three days a week, in the period from 3 October 2024 to 19 November 2024. The general practitioner also expressed the opinion that that this employment should be with a different employer. This was because Mr Elissa did not have trust in AHP.
In November 2024, AHP took steps through its Return-to-Work Coordinator to arrange a meeting to discuss Mr Elissa’s return to work.[8] Mr Elissa was not aware of this and did not participate in any such meeting.
On 15 November 2024, a mediation was planned to take place between Mr Elissa and AHP to discuss a wide range of issues. AHP cancelled the mediation on the day before it was due to take place. The mediation was cancelled because Mr Elissa’s general practitioner and psychologist had advised that he should not return to the workplace. The cancellation of the mediation had a significant negative impact on Mr Elissa’s mental health.
In November 2024, Mr Elissa’s general practitioner was on leave, so no medical certificate was provided to AHP. Notwithstanding this, I accept Mr Elissa’s evidence that he was not fit to work for AHP in November or December 2024.
On 17 December 2024, Mr Elissa’s general practitioner certified that he was fit to work for eight hours per day, three days a week, in the period from 17 December 2024 to 16 January 2025. It is clear that this fitness to work assessment related to Mr Elissa’s capacity to work for an employer other than AHP, as was the case with the medical certificate dated 22 October 2024.
On 18 December 2024, Mr Elissa lodged his unfair dismissal application in the Commission.
Mr Elissa has not received any written or oral communication from AHP in relation to the cessation of his employment. He has not performed work for AHP since 23 May 2024 but remains in receipt of workers’ compensation payments.
Mr Elissa remains on the payroll system of AHP and AHP remains willing to have him return to work when he is fit enough to do so. Mr Elissa does not wish to return to work with AHP.
Consideration re dismissal
I do not accept Mr Elissa’s contention that he was dismissed by AHP on 15 May 2024. There is no dispute that Mr Elissa continued working for, and being paid by, AHP in the period from 15 May to 23 May 2024. Mr Elissa then took pre-approved annual leave for a week. His employment with AHP clearly continued through this period. Following Mr Elissa’s annual leave, he became, and has remained, unfit to work for AHP. Mr Elissa has received workers’ compensation payments during his period of incapacity.
Having regard to all the circumstances, I am satisfied that Mr Elissa’s employment with AHP was not terminated on AHP’s initiative. There was no action on the part of AHP which was the principal contributing factor which resulted, directly or consequentially, in the termination of the employment of Mr Elissa. AHP did not communicate by its actions or words that Mr Elissa was terminated or dismissed. I find, on the balance of probabilities, that AHP was not planning to terminate Mr Elissa’s employment and replace him when its internal recruiters advertised for the position of physiotherapist on 15 May 2024. Mr Elissa’s manager was not aware of the advertisement. It would be very unlikely for AHP to have a plan to replace Mr Elissa if his manager was not aware of the job advertisement. Further, I accept Ms Murphy’s evidence that AHP “constantly” advertises for physiotherapists and allied health professionals in the regions in which it operates. The fact that Mr Elissa was overworked supports the likelihood that AHP was taking steps to obtain additional resources to assist with the workload at the aged care facility at which Mr Elissa worked, as well, perhaps, as in the broader region in which he worked. It is unfortunate that AHP did not respond in writing to Mr Elissa’s request to be provided with an explanation as to why the advertisement had been placed, particularly after Mr Elissa had been involved in the incident on 11 March 2024 and he met with his employer in relation to that incident on 14 May 2024. Those events would have caused any employee in Mr Elissa’s position to become suspicious that their employer may be planning to terminate their employment. In any event, even if AHP was planning to terminate Mr Elissa’s employment and replace him with a new employee, it did not execute any such plan. It is clear from the emails sent to Mr Elissa on 20 and 27 June 2024 that AHP was willing to support Mr Elissa’s return to work when he was fit enough to resume his role with AHP. I accept Ms Murphy’s evidence that AHP still remains willing to have Mr Elissa return to work when he is fit enough to do so.
Conclusion
For the reasons given, Mr Elissa was not dismissed within the meaning of s 386 of the Act. He was therefore not unfairly dismissed by AHP.
Because I have decided that Mr Elissa was not dismissed, it is not necessary to determine any out of time question.
Mr Elissa’s unfair dismissal application against AHP is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr Elissa appeared for himself
Ms M Noorzai, solicitor, appeared for the respondent
Hearing details:
2025.
Newcastle (by telephone)
10 March.
[1] NSW Trains v James[2022] FWCFB 55 at [45]
[2] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200
[3] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200
[4] Ex 3 (BMI1)
[5] Ex 2
[6] Ex 5
[7] Ex 5
[8] Ex 6
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