Ms Chloe Oliver v Hope Floats Homecare
[2022] FWC 99
•3 FEBRUARY 2022
| [2022] FWC 99 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Chloe Oliver
v
Hope Floats Homecare
(U2021/8974)
| COMMISSIONER RIORDAN | SYDNEY, 3 FEBRUARY 2022 |
Application for an unfair dismissal remedy
Ms Chloe Oliver (the Applicant) lodged an unfair dismissal application (the Application) on 8 October 2021 claiming that she was unfairly dismissed by Hope Floats Homecare (the Respondent) on 8 October 2021. It is not in dispute that the Applicant commenced employment on 22 March 2021.
The Applicant attached to the Application a copy of her termination letter, which was dated 7 October 2021. It is noted that in its Form F3 – Employer Response, the Respondent stated that the dismissal took effect on 7 October 2021.
In its Form F3 – Employer Response, the Respondent raised jurisdictional objections on the grounds that the Applicant’s employment did not meet the minimum employment period and that the employer is a small business employer and the employer complied with the Small Business Fair Dismissal Code. The Respondent advised that it did not agree to participate in a staff conciliation and sought that the matter be referred for determination of the jurisdictional objections.
Further to enquiries by the unfair dismissal team, the Respondent consented to the matter proceeding to a conciliation prior to referral of the matter for determination of the jurisdictional objections. However, the matter was unable to be resolved by staff conciliation.
The matter was then allocated to me for determination of the jurisdictional objections.
I listed the matter for a preliminary Conference/Directions by telephone on 3 December 2021. The notice of listing for that conference was issued on the afternoon of 24 November 2021. On that same afternoon, the Applicant wrote to my Chambers confirming her contact details for the conference.
On 3 December 2021, three attempts were made at the time of the conference to dial in the Applicant, however contact was unable to be made. Email correspondence was also sent to the Applicant’s email address, noting that attempts had been made to dial her into the conference line, and seeking that she make herself available or otherwise advise an alternative contact number.
It is noted that the Respondent also failed to attend the conference of 3 December 2021.
Shortly after the correspondence was sent to the Applicant seeking she make herself available, the Applicant provided reply email correspondence advising:
“Hi,
So sorry I’m at hospital with son..
Sent from my iPhone”
Further to this response, correspondence was sent to both parties on 3 December 2021 advising that the matter would be relisted for telephone conference on 15 December 2021. The Respondent was requested to confirm availability for that new date.
By reply correspondence of 3 December 2021, the Applicant provided:
“Thank you so much I really appreciate it.
My apologies I didn’t contact earlier. We got here at 2am.
Thank you again.”
Also by reply correspondence of 3 December 2021, the Respondent advised that it would be available for a relisted telephone conference on 15 December 2021.
At the time of the conference on 15 Decemebr 2021, attempts were made to dial in the Applicant and three voice messages were left on her mobile number. However, the Applicant failed to return Chamber’s calls and did not attend the conference. The conference therefore did not proceed.
On 15 December 2021, a non-attendance letter was sent to the Applicant, and copied to the Respondent, which outlined attempts made by Chambers to connect the Applicant to the conference and providing the Applicant seven days to provide a satisfactory explanation as to why she failed to participate in the teleconference. The letter also stated:
“This is formal notification that if you fail to provide a satisfactory response in writing, the Fair Work Commission may dismiss your application pursuant to section 587 of the Fair Work Act, 2009 (the Act).”
On Monday, 20 December 2021, the Applicant provided reply email correspondence stating:
“Hi,
My father was in a serious car accident and I couldn’t answer the phone between attending to him at hospital and my helping my mother with everything. I just didn’t have time to answer and speak about the matter at the time.
Sent from my iPhone”
My Chambers sent reply correspondence to the Applicant on 20 December 2021, noting that I sought further evidence and proof of her son being admitted into the hospital on 3 December 2021, and secondly her father on 15 December 2021, in support of her reasons for failing to attended the listed conferences. The Applicant was provided until 24 December 2021 to file this further documentation.
By reply email correspondence of that same date, the Applicant stated:
“Sorry at this point in time I do not have time to give proof as my family comes first and their health my father is not well and my mother is not copping a well..I am now with them 24/7 to help with care and also look after my 2 children and my parents 3 dogs Aswell as my own 3 dogs while still worrying about paying rent, bills and everything else on top of that.
Thanks enjoy your Christmas and hope nothing like this ever effects you or your family. While having a ex boss who ripped you off.
Do what you want with the matter now but my family is more important than doing all this stuff right now..
Sent from my iPhone”
Also on 20 December 2021, my Chambers sent correspondence to the Respondent, noting its jurisdictional objections on the basis that it is a small business employer, and seeking a list of its employees, including any managers or directors that are paid an income.
The Respondent provided a list of 12 employees by reply email correspondence on 21 December 2021. I requested that the Respondent put this information in a statutory declaration, which the Respondent also provided to Chambers on 21 December 2021.
It is noted that the statutory declaration was not copied to the Applicant by the Respondent, and my Chambers forwarded the document to the Applicant on 22 December 2021.
The Applicant raised an objection to the statutory declaration as follows:
“The person who has signed that declaration is one of Sarah’s workers. I don’t believe that should be ok. And should be signed by someone who isn’t an employee of hope floats Homecare.
Means Sarah can lie cause when I was working she had to males who were also employees.
Thank you.
Sent from my iPhone”
On 23 December 2021, my Chambers sent correspondence to the Respondent, requesting that the Respondent confirm the witness’s authority to sign the statutory declaration.
On 1 January 2022, the Applicant wrote to my Chambers stating:
“There has been no response to this from Ms Simmons but I only had 7 days when I had my father in hospital to respond. She works 24/7 as her company is always open no holidays or anything in this sector, so would have had plenty of time to respond and show status of her employee Danielle Costa for the statutory declaration she had put forward and signed by her. It’s now 9 days and no response from her at all. I’m quite disappointed I was pushed to respond to the emails when I had people in the hospital but she can take her time to respond to any emails sent.
Her showing she only has 13 employees when she said she only had 11 employees at the time shows deception in her story already. And I have reason to believe she has more employees than 13 that she has stated. But she’s only showing an app on her computer to which she can just write the names in not showing payroll of actual employees in her company.
Thank you.
Chloe”
On 4 January 2021, my Chambers wrote to the Respondent further requesting confirmation of the witness’s authority to sign the statutory declaration. The Respondent was provided until 10am Friday, 7 January 2022 to file this response.
The Respondent provided reply correspondence on 7 January 2022 as directed, stating that she understood from my Associate that she did not need the statutory declaration witnessed by a JP noting that it was four days before Christmas. The Respondent also stated:
“I asked Danielle a staff member when I seen her that day to witness my signature, as I thought it was more unbiased then asking my partner, friend or family to sign on my behalf.
I would be more than happy to produce my monthly pay runs from MYOB showing all staff that have been paid which is also reported to the ATO, or better yet provide you all the evidence that resulted in Chloe's termination. If I'm required to provide another Statutory Declaration with a JP signature to finalise the claim, I will do so as this is quite time consuming for someone who is running their own business?
As I'm yet to see where the applicant has actually provided any relevant evidence to support her allegations? So far has failed to attend two conferences on the 3rd & 15th of December, and has been unwilling to provide medical record administration for both her son & father for her own claim to still be carried out which was due on the 24th of December???
I have been more than cooperative throughout this process yet I can hardly say the same for the applicant who has met none of the requirements for unfair dismissal or the deadlines that have been given to her.
Kind Regards,
Sarah”
My Chambers sent reply correspondence of that same date, as follows;
“Dear parties,
Chambers confirms receipt of the below. This correspondence is forwarded here for service on the Applicant. The parties are reminded that all correspondence sent to Chambers must be copied to the other party to the matter at the time of sending.
The Commissioner has reviewed the below, and confirms that a formally signed and witnessed statutory declaration is required in order to progress the Respondent’s jurisdictional objection.
Ms Simmons, you are kindly requested to complete a new statutory declaration, witnesses by for example a Justice of the Peace, and file with Chambers and copied to the Applicant by Friday, 14 January 2022.
There is information on the Commission’s website about statutory declarations here:
type="1">The Applicant provided various reply correspondence to my Chambers on the morning of 7 January 2022, further to the directions being issued as above. The Applicant’s correspondence was as follows:
“I’m sorry but a statutory declaration is to be signed by a JP or someone who is advised to be legal able to not by anyone one person who Sarah would see fit and the information given is incorrect to her. Even if it 4 days she would have had plenty of time to have that signed by a JP or someone advised to do so by law not just a worker, partner or family member.
She has shown no legal form of showing her employees or using the correct statutory declaration and ignored correspondence until I raised it. And had only answered this morning. I don’t believe my son or father being hospital has any justification by her not replying to show authority on statutory declaration form signature (which was never advised in this form at all even the conversation with Stevie till now which should have been advised earlier instead of the day she was called to do it correctly) which meant I had to follow up again (just like within my employment with Sarah with everything) I believe this needs to be done today and not be given another week for her to run around when she runs her business from home and has time to run to post office or other things but is making this seem to be a lot harder when it’s not for her at all.
The statutory declaration has be falsely signed by someone with no authority to sign it which again is another sign Sarah is not willing to do things correctly.
Sent from my iPhone”
…
“I have also been very cooperative throughout this whole ordeal and have not been out of any time frame in responding to anything asked by the commissioner in question.
Yet showing names written on a computer screen and than a statuary declaration form signed by someone who IS NOT LEGALLY meant to sign the document is not something I have done throughout this whole case. As a business owner I would believe this would be something a business owner would know is inappropriate to do especially with one of her workers signing it.
Thank you.
Chloe Oliver.Sent from my iPhone”
Also on the morning of 7 January 2022, my Chambers responded to the Applicant and again directed her to file the requested medical evidence as follows:
“Dear Ms Oliver,
The Commissioner acknowledges receipt of the two emails received from you this morning, as copied to the Respondent.
The Commissioner confirms that 7 days has been allowed for the Respondent to complete and file a formal statutory declaration. This timeframe remains as directed.
Noting that the Christmas period is now over, to assist in progressing this matter, the Commissioner directs that you also file by next Friday, 14 January 2022 the medical evidence in support of your failure to attend the conferences in this matter.
The matter will be further reviewed following receipt of the materials from both parties next Friday.”
This correspondence was copied to the Respondent.
The Applicant provided various reply correspondence as follows:
“I won’t be filing any paper work when she had a legal document signed by someone who was not meant to sign it which is against the law to do so and you have allowed her to this and given her another 7 days it’s an absolute joke.
She should know better as business owner.
Sent from my iPhone”
…
“I won’t be having anymore correspondence until something is shown legally by her payroll how many employees she has and I will take the matter further for her having a statutory declaration form signed illegally by a person not authorised to do so. As I believe this unfair and just gives her more time to try find a way to remove people and show she has less workers than she states as she works 24/7 all year around and purposely avoided emailing back until last minute to get more time yet again.
So until this is taken seriously I won’t be emailing or corresponding with someone who is doing illegal
Work.
Sent from my iPhone”
…
“I’m seeking further legal action against Sarah Simmons for her falsely having the statutory declaration form by an unauthorised person which she knew she was doing and everyone knows this cannot be done EVER!
Thank you this will be my last correspondence to all of you due to this. As she’s now gotten away with breaking the law and you are allowing it.
Sent from my iPhone”
The Respondent filed its formally witnessed statutory declaration on 14 January 2022 as directed. The statutory declaration provides that:
“I Sarah Simmons solemnly and sincerely declare that I have provided you with the correct number of staff employees at Hope Floats Homecare regarding Ms Chloe Oliver’s Unfair Dismissal Application U2021/8974”
The Applicant wrote to my Chambers on 14 January 2022, following the Respondent’s filing of its formal statutory declaration, in which the Applicant stated:
“As I stated I am taking the matter further for having a statutory declaration form illegally signed (knowingly illegally signed by both parties who signed it) and presented to an ongoing case which is against the law to do so. But yet nothing was done about this, the commissioner just brushed it off like it was nothing. Until that is sorted out for illegal action being done in an active case I will have no further action here.
Thank you!
Sent from my iPhone”
The Applicant has refused and failed to provide any medical evidence in support of her submission that she was unable to attend the conferences listed before me due to her son and her father attending hospital.
Section 587(1) of the Act provides:
“587 Dismissing applications
(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.(2) Despite paragraphs (1)(b) and (c), FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.(3) FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
The Applicant failed to attend two conferences listed before me in this matter. I note that further to the first conference of 3 December 2021 not proceeding due to the Applicant’s failure to attend, a further date was offered and the Applicant sent an immediate email response thanking my Chambers for accommodating her. The Applicant confirmed her appearance for the relisted conference of 15 December 2021 and again failed to attend, without any phone call or email correspondence to my Chambers advising of her absence ahead of the listed time.
While I am sympathetic to the Applicant’s response that she was again unable to attend due to her father being in an accident, the Applicant has repeatedly refused and failed to provide any medical evidence in support of her absences on 3 December and 15 December 2021.
For this reason, I find that the Applicant has failed to provide any reasonable explanation for her absence on 3 December and 15 December 2021. I find that the Applicant has failed to prosecute her application.
Further and in the alternative, in the Respondent’s Form F3 – Employer Response, the Respondent provided that it had 11 casual staff at the time of the Applicant’s dismissal. The Respondent has provided a list to my Chambers of 12 employees and has also provided a statutory declaration confirming that the number of employees confirmed to Chambers is correct.
Whilst I determined that the Application should be dismissed for want of prosecution by the Applicant, I find that the Application would also fail on jurisdictional grounds on the basis that the Applicant has not been employed for the minimum employment period, ie, 12 months. Therefore, the Application has no reasonable prospects of success (see s.587(1)(c)).
The Application is dismissed pursuant to s.587 of the Act.
I so Order.
COMMISSIONER
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