Nelia Davis v Lasting Changes Aged Care Services T/A Mount Martha Valley Lodge, Safety Beach
[2011] FWA 788
•7 FEBRUARY 2011
[2011] FWA 788 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Nelia Davis
v
Lasting Changes Aged Care Services T/A Mount Martha Valley Lodge, Safety Beach
(U2010/12496)
COMMISSIONER BLAIR | MELBOURNE, 7 FEBRUARY 2011 |
S.394—Unfair dismissal.
[1] This matter was first dealt with by conciliators of Fair Work Australia (the Tribunal) in conciliation on 15 October 2010; however, the matter was unable to be resolved. The matter then proceeded to arbitration by the Tribunal.
[2] The matter was arbitrated on 19 January 2011. Ms Davis (the Applicant) represented herself and Lasting Changes Aged Care Services t/as Mount Martha Valley Lodge, Safety Beach (the Respondent) was represented by Mr Rahilly.
[3] The following decision (now edited) was handed down in transcript.
[4] “Section 387 of the Fair Work Act (the Act) states that the Tribunal must take certain things into account in determining whether the termination was harsh, unjust and unreasonable. The Tribunal will take each provision and explain its view.
[5] Section 387 of the Act states:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.
[6] (a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
[7] The Tribunal recalls that the letter of termination states "your inability to perform the inherent requirements of your duties". This means that the Applicant cannot perform all of her duties because of a degenerative back problem. The Reports states that, yes, the Applicant injured her back at work, but had overcome those injuries, and that any pain now suffered is because of a degenerative problem. It is something that comes with age unfortunately.
[8] There is is also the issue of the Applicant’s refusal to work day shift and the position put to the Respondent was whether or not there were other rotating shifts. The Respondent states that the position that the Applicant occupied on night shift had been filled because the Applicant had been absent for so long. The Respondent stated that the only position available was on the day shift. The Applicant’s contract does not specify that she is to work night shift only. The Applicant’s contract says that she is required to work whichever shifts she is rostered to work.
[9] The evidence of Mr Hancock on behalf of the Respondent is that the bulk of work would be done on a day and afternoon shift, which is where the bulk of the staff is. The Tribunal assumes that it would have been of great assistance to the Applicant herself, in terms of lifting and any additional assistance that would be required, to be working on day shift, rather than be working with a smaller group of staff on night shift.
[10] The Applicant appears to have simply refused to go to day shift, and the Tribunal is not satisfied that the Applicant was being singled out to move to day shift. The Tribunal believes that the reason provided by the Respondent is a valid reason; that someone has occupied the Applicant’s position since the end of 2008.
[11] (b) whether the person was notified of that reason
[12] The Tribunal is more than satisfied that there is sufficient correspondence between the parties’ various legal representatives to indicate that the Respondent had concerns, firstly about the inherent requirements of the duties, but also about the Applicant’s refusal to transfer to day shift.
[13] (c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person.
[14] The amount of correspondence between the various parties indicates to the Tribunal that the Applicant was provided with an opportunity to respond. It appears that the Applicant simply chose not to want to go to day shift.
[15] (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
[16] The Tribunal believes that there is sufficient material to indicate that has never been an issue about representation by anyone on the Applicant’s behalf.
[17] (e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[18] This issue does not go to the Applicant’s work performance. It goes to the issue of inherent requirements of the duties, and what may be considered to be a lawful request to transfer from night shift to day shift.
[19] (f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
[20] S387(f) is not an issue as far as the Tribunal is concerned.
[21] (g) The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures.
[22] The Tribunal believes that there is sufficient material on file, and Mr Hancock is described as a Human Resources Manager for the Respondent; to indicate that things were not done hastily and that they were done, in the Tribunal’s opinion, professionally, and every opportunity was provided to the Applicant to be able to deal with the issues at question.
[23] (h) any other matters that FWA considers relevant
[24] This matter goes to the issue that day shift would have been a much more suitable alternative for the Applicant, in terms of assisting her with her degenerative issue, and the facilities available and the assistance available which would far outweigh what may be available to her on night shift.
[25] For reasons known only to the Applicant, she was fixed on working night shift only. Whether that is because that suited her lifestyle; or whether it suited working with her second job, the Tribunal does not know.
[26] In balancing the criteria as to whether the termination was harsh, unjust and unreasonable, the Tribunal has come to the conclusion that the termination was not harsh, not unjust and it was not unreasonable.
[27] In determining that, using the criteria set down in the Act, The Tribunal dismisses the application.
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