Noor Essa v Open Endoscopy Pty Ltd

[2019] FWC 1600

[2019] FWC 1600

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Noor Essa
v
Open Endoscopy Pty Ltd
(U2018/12045)

DEPUTY PRESIDENT CLANCY MELBOURNE, 13 MARCH 2019

Application for an unfair dismissal remedy.

[1] On 21 November 2018, Ms Noor Essa made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In her Form F2 – Unfair dismissal application (Form F2), Ms Essa stated that her employment was terminated by Open Endoscopy Pty Ltd (Open Endoscopy) on 18 November 2018 and that the dismissal took effect on 19 November 2019.

[3] On 29 November 2018, Open Endoscopy filed its Form F3 – Employer response unfair dismissal application, which contained a jurisdictional objection based on the assertion that it was a small business employer that complied with the Small Business Fair Dismissal Code. It also indicated in Question 1.7 that it employed 13 employees at the time Ms Essa was dismissed.

[4] The matter was initially listed for conciliation on 14 December 2018 but due to various reasons, this was rescheduled to 21 December 2018 and then finally to 8 January 2019. The Commission sent the parties Notices of Listing for each time the conciliation was scheduled and rescheduled, and reminder text messages were also sent to the parties a few days prior to the scheduled conciliation. Despite the Notice of Listing having been sent to her nominated email address on 31 December 2018 and a text message remainder having been sent to the mobile phone number she had provided on 7 January 2019, Ms Essa could not be contacted for the conciliation scheduled on 8 January 2019. She emailed the Commission on 9 January 2019 advising:

“Hello I apologise for having my cell phone switched off, is it was because I have just started a new job on Monday and I had my cellphone switched off. I will be unavailable due to work and personal family matters and I will not be available until 29/01/2019.”

[5] In response, the Commission sent Ms Essa email correspondence asking her to confirm whether she wished to pursue her matter and if she wished for the matter to be relisted for a further conciliation. Ms Essa responded on 13 January 2019 providing her availability, however Open Endoscopy emailed the Commission on 16 January 2019 and requested the matter be referred for formal proceedings.

[6] On 17 January 2019, a Notice of Listing was sent to the parties scheduling the matter for a Jurisdiction (Small Business Fair Dismissal Code) and Arbitration Conference/Hearing on 27-29 March 2019. Following this, Open Endoscopy emailed the Commission advising that it wished to withdraw its jurisdictional objection.

[7] The Commission subsequently sent the parties an amended Notice of Listing on 18 January 2019, scheduling the matter for an Arbitration Conference/Hearing on 27-29 March 2019, and issuing directions which required Ms Essa to file an Outline of Argument, Statement(s) of Evidence and a Document List by no later than noon on 11 February 2019.

[8] No material was received from Ms Essa on 11 February 2019.

[9] The Commission attempted to telephone Ms Essa twice on 11 February 2019 and once on 12 February 2019. On each occasion, her line did not ring and there was no option to leave a voicemail message. Following the unsuccessful attempt to telephone her on 12 February 2019, the Commission sent email correspondence to Ms Essa’s nominated email address warning that if she did not file her material or seek an extension for the filing of her material by 12:00PM the next day, her matter would be listed for a non-compliance hearing, which could result in her application being dismissed.

[10] As no contact was made by Ms Essa, a Notice of Listing was sent to the parties in the afternoon of 13 February 2019, scheduling the non-compliance hearing for 15 February 2019. Shortly after this, Ms Essa telephoned the Commission to query the Notice of Listing. She was advised to ensure she received the telephone call to attend the non-compliance hearing on 15 February 2019.

[11] The non-compliance hearing proceeded before me on 15 February 2019. Ms Essa attended on her own behalf while Dr Ian Fok attended on behalf of Open Endoscopy. At the non-compliance hearing, Ms Essa submitted that she had gotten married and returned from her honeymoon recently. She further submitted that she had advised the Commission in advance, via telephone and email, that she would not be available. However, the Commission’s records reveal no telephone conversations or emails received from Ms Essa to this effect.

[12] In response, Open Endoscopy made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Ms Essa’s failure to comply with the direction of the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted Open Endoscopy’s oral application. Further, I made directions requiring Ms Essa to file submissions in response to the s.399A application by 4:00PM on 20 February 2019 and I had indicated during the non-compliance hearing that these should include Ms Essa’s evidence that she telephoned and emailed the Commission advising she was not available due to her wedding and honeymoon. No adjustments were made to the directions issued on 18 January 2019, although I indicated to Ms Essa that her material should be filed without further delay.

[13] Following the non-compliance hearing, correspondence was sent to Ms Essa via email and express post, confirming Open Endoscopy’s s.399A application and reiterating the direction that she file submissions and other documentary material in respect of the s.399A application by no later than 4:00PM on 20 February 2019.

[14] On the evening of 19 February 2019, Ms Essa filed with the Commission an Outline of Argument, two Statements of Evidence, a Document List and a number of annexures. Her covering email stated:

“I would like to continue compliance hearing held in relation to my unfair dismissal application on 15 February 2019.

Please find the attached outline argument and two witness statements.

I apology that I could not send these application on 11th of February as I had wedding on 2nd of February 2019 and I went overseas for my honeymoon from 4th to 14th of February 2019 (please find the marriage certificate and my honey moon trip).

Please consider my matter and do not be hesitated if you need more information.”

[15] On 20 February 2019, I caused correspondence to be sent to Open Endoscopy inviting it to respond to Ms Essa’s material by no later than 12:00PM on 25 February 2019.

[16] Open Endoscopy filed its material on the evening of 24 February 2019 addressing its s.399A application and responding to Ms Essa’s material.

[17] In respect of the s.399A application, Open Endoscopy submitted that:

•  Ms Essa did not attend the conciliation scheduled on 8 January 2019;

•  Ms Essa did not comply with the Commission’s direction that she file her material by no later than noon on 11 February 2019; and

•  Ms Essa has not provided evidence of the telephone call with and email to the Commission she says she made, as directed to do so by me at the non-compliance hearing on 15 February 2019.

[18] As to Ms Essa’s non-attendance at the conciliation scheduled on 8 January 2019, Open Endoscopy submitted:

“As mentioned on the 8th of January 2019 12:15pm I submitted a request for Fairwork to change the date and time of this session, this was declined by Fairwork. In response I cleared my schedule and cancelled patients to attend the meeting only for Ms Essa not to be contactable as she was working during this time.

On the above Ms Essa has advised that she made a call to Fairwork to advise she cannot attend however Fairwork has no record of this conversation, Ms Essa also does not have the means to back up her account with no record of who she spoke to at Fairwork or the time she had called Fairwork on. I find it curious that if indeed a call was made by Ms Essa – Fairwork also has no record of it.”

[19] As to Ms Essa’s non-compliance with the Commission’s direction to file material, Open Endoscopy submitted:

“Ms Essa had also neglected the Commission’s orders to provide paperwork for my response most recently. This had led to a compliance hearing. In that hearing, it was established that Ms Essa informed the Commission she was unable to provide submission paperwork on time as she was on her honeymoon. I will like to suggest that it is not the reason that matters here, so long as the Commission and all parties are kept suitably informed – that is the crux of the matter – good communication on what is happening here. Yes the reason is right and I support it but the failure of communications here is woefully wrong. This again echoing the very reason for her termination after warnings and an extended probation period as per Attachment 1.”

[20] As to Ms Essa’s failure to provide evidence of the telephone call with and email to the Commission she says she made, Open Endoscopy submitted:

“Ms Essa advised that she had exemplified good communication here by sending an email to Fairwork that advised of her unavailability on the first occasion and called on the second. Deputy president you have asked Ms Essa to provide evidence of that email sent and of her phone call – that has not been received here. I will like Ms Essa to be straightforward and advise , Deputy President if indeed she has truly made those attempts at communication previously and if so provide evidence to back up her position – that should neither be difficult nor unreasonable a request.”

Merits of the application

Submissions of Ms Essa

[21] Ms Essa submitted in her Outline of Argument that she was employed by Open Endoscopy as a full time Medical Receptionist, working 37.5 hours per week. She contended that on 8 November 2018, she was notified by Dr Fok that her working hours would be reduced to 30 hours per week and further asserted that several employees had been terminated, leaving her to feel that she was the next target.

[22] Leading up to her termination, Ms Essa submitted that she did not attend work from 12 November 2018 as she was ill. She said that she requested sick leave from her supervisors, which was granted by them, for a period “until [she got] better”. Ms Essa submitted that she subsequently received an email from Dr Fok on 14 November 2018 advising that she had not provided evidence of a medical certificate, to which Ms Essa claimed she had already sent the evidence to her supervisor. It is then submitted that following this, Ms Essa was terminated on 18 November 2018.

[23] Ms Essa’s submissions were accompanied by a number of documents including medical certificates from her general practitioner certifying that she was unfit to work on each day of 12-16 November 2018 inclusive. She also filed her marriage certificate, which evidenced the date of her wedding to have taken place on 2 February 2019, and a quotation from Flight Centre for the dates 4 February 2019 to 12 February 2019, evidencing the period she had indicated to me at the non-compliance hearing that she was away on her honeymoon.

[24] Ms Essa also filed two Statements of Evidence completed by Ms Fil Caruso and Ms Olga Tomic, a former Medical Receptionist and a former Quality Manager for Open Endoscopy respectively.

[25] Ms Caruso stated that Dr Fok managed staff at Open Endoscopy after its Office Manager left. She further asserted that staff did not get breaks and often worked overtime, but did not receive overtime pay. As to Ms Essa’s termination, Ms Caruso submitted that Ms Essa was bullied by Dr Fok, with him picking on her for “things that were so trivial” and “without clarifying with her first”. She submitted that it “became very noticeable he wanted her to resign”.

[26] Ms Tomic stated that she was Ms Essa’s direct manager from 8 January 2018 to August 2018, after which she became Open Endoscopy’s Quality Manager. She submitted that Ms Essa commenced her employment working at the Coburg clinic before being transferred to the Sunshine clinic. She also submitted that Ms Essa started her shifts at 6:30-7:00AM and worked alone at the reception desk with “very few breaks”. Ms Tomic said that she “noticed Dr Fok go through staff frequently” and that Ms Essa was “one of the members of staff he wanted to remove”. Ms Tomic stated she ended her employment relationship with Open Endoscopy on 2 November 2018 as “Dr Fok was trying to get rid of” her and that if “he did not like you or you did not comply to his ways, he worked you out the door”.

Submissions of Open Endoscopy

[27] Open Endoscopy submitted that it validly terminated Ms Essa’s employment on the basis of poor performance, following management of her performance and multiple warnings, which were given both verbally and in writing.

[28] It submitted that on 1 June 2018, Ms Essa was called into a meeting with Ms Tomic, who was the Business Development and General Operations Manager at the time, to discuss her performance and to transfer her from the Coburg clinic to the Sunshine clinic. Open Endoscopy contended that Ms Essa “did not take on a caring side to the patients who are having procedures where she appeared abrupt and dismissive”. It referred to an email dated 1 June 2018 from Ms Tomic to Dr Fok stating that the move to the Sunshine clinic would enable Ms Essa to be monitored and educated further to “[bring] out that friendly warm helpful personality”. Open Endoscopy submitted that Ms Essa was given her first verbal warning by Ms Tomic during this meeting.

[29] Open Endoscopy contended that the second warning was given to Ms Essa in writing on 26 June 2018, also by Ms Tomic, for reasons of poor performance and customer attention such as chewing gum while speaking to patients at the front counter and leaving the front counter unattended first thing in the morning while patients were arriving for their procedures. A letter attached to its submissions dated 26 June 2018 and signed by Ms Tomic indicated that there were nine items that were addressed in relation to Ms Essa’s performance.

[30] It was submitted that the third and final warning was delivered to Ms Essa following a performance management meeting on 7 September 2018, which addressed “multiple aspects of deficient patient care and customer handling”. Open Endoscopy referred to minutes taken from the meeting, which indicated that four items pertaining to Ms Essa’s performance were discussed with her. The third and final warning was a written letter dated 11 September 2018 and signed by Dr Fok, which stated:

“As per the above performance management performed on the 7th of September 2018, we have identified deficiencies in attendance, customer service as well as the general care of work where previous performance managements have brought up concerns of a similar nature and more recent incidents suggest a lack of improvement

Please consider this letter a final warning on your performance where a failure to improve will lead to termination. Your performance will be monitored on an ongoing basis where due to the multiple performance management episodes your probation will be extended for another 6 months.”

[31] Open Endoscopy asserted that it explained to Ms Essa the reasons for looking into termination of her employment in an email dated 17 November 2018, which stated:

“The email sent to you on the 14th of November 1.30pm was very clear that we support your sick leave but you needed to present to your gp that day and advise back that day what his professional opinion is on how many days you will need off so that we can do our rostering accordingly and not compromise patient care. As such that was not done. If you cannot explain why that is the case and I have provided an opportunity for you to do so then agreed most happy to represent to fairwork why we feel that this constitutes grounds of termination.

You might not be aware but without us having a solid idea of how long you will be sick for as professionally judged by your doctor and whose opinion we seek, it did affect patient care and servicing in all the facilities. You should be aware that while we were waiting for your answer and not getting any, staff rostering was quite difficult with lists not confirmed and almost on the verge of cancellation should we not pull resources from elsewhere.

Kindly as per emails before provide/forward the reply that was sent in response to the email sent to you on the 14th of November 1.30pm by tonight where a failure to do so will indicate that there is no accountability or responsibility as per point 7 in your contract. Furthermore the organisation chart provided is clear that your position is managed by Stephanie and myself where I have emailed you directly on the 14th of November as your direct supervisor without a reply made to me.

In the past we have commented on your communication where it was noted that there wasn’t an adequate handover to your teamworks/workmates previously. This can be considered a further extension of that lack of communication on your part.

As per your hours you need to read through the previous email reply i sent on the 8th of November 6.30pm that amongst other points, the hours rostered are that for dr scope but yet there are other positions in the company that makes up the full 38 hours as per your contract. You need to be able to absorb the information given to you in full. I have cut and paste that email for your reference again at the bottom of this email.

You can provide this email to Fairwork Australia as a document of the decisions considered here. Kindly provide us with a copy of the reply to the email sent on the 14th of November so that we can move forwards amicably on this. If this is not possible then we will have to look at a termination given the 3 warnings you have had so far on various performance issues. As you can appreciate if you are terminated we will need to roster someone to fill your shift on the week coming up – that being the case we will request a reply by the end of today so that practice staffing is not compromised again as it was on the end of the last week.

Please note that we do not have any issues with your sick leave where in fact we support you having sick leave when required by yourself. It is however the communication of that leave and the request for information not met where it has affected patient and practice that concerns us deeply here and forms the basis of a termination.”

[32] Despite further email correspondence passing between them, Open Endoscopy did not consider that Ms Essa provided a response or the information requested and Ms Essa’s employment was terminated via an email from Dr Fok on 18 November 2018.

Minimum employment period

[33] As mentioned above at paragraph [3], Open Endoscopy submitted that it employed 13 employees at the time it notified Ms Essa of her dismissal. On 27 February 2019, I caused correspondence to be sent to Open Endoscopy directing it to file payroll records supporting its assertion and advising that if Ms Essa was employed for less than one year when, at the time she was notified of her dismissal, it employed less than 15 employees, she would not be protected from unfair dismissal and her application therefore must be dismissed.

[34] Open Endoscopy responded via an email dated 1 March 2019, providing a list of 13 employees it asserts were employed on either a full-time or part-time basis by Open Endoscopy and its associated entities. Reference was also made to another entity which was described as being “unassociated in ownership but tied in operations.” Open Endoscopy further advised that there were no casual employees employed.

[35] Ms Noor responded on 3 March 2019, disputing the number of employees employed when she was terminated equated to the figure provided by Open Endoscopy and stating that they were also “three accounts who are Nick and Michael and Todd.” This was countered by Open Endoscopy. Its position was that the three individuals mentioned were employed by the company “unassociated in ownership but tied in operations.”

[36] There appears to be some doubt as to whether or not Ms Essa served the requisite minimum employment period, having been employed for less than 12 months.

Conclusion

[37] On application by an employer, the Commission has the discretion to dismiss an unfair dismissal application pursuant to s.399A of the Act on the basis there has been unreasonable non-compliance with directions of the Commission or an unreasonable failure to attend a conference conducted by the Commission.

[38] The Explanatory Memorandum states that the intention of this provision is “to address the small proportion of applicants who may pursue claims in an improper and unreasonable manner… In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant.” 1

[39] The role of case management was discussed in Ghalloub v Aon Risk Services Australia Limited, 2 with the Full Bench outlining the following considerations:

● the starting point of any consideration of an application to dismiss is that an applicant is entitled to have his or her case heard;

● directions play an important role in case management;

● accepting the importance of case management principles, only in extreme circumstances should a party be shut out from litigating an issue which is fairly arguable;

● the circumstances of each case is central;

● a history of non-compliance with directions indicating an inability or an unwillingness to have the matter ready for trial within an acceptable period of time is relevant;

● continuing non-compliance which causes unnecessary delay, expense or prejudice to the other party is relevant.

[40] While not an exhaustive lists of matters that may be considered, I will have regard to the approach of the Full Bench in this matter in deciding whether to exercise my discretion to dismiss the unfair dismissal application Ms Essa has made.

[41] As to whether her unfair dismissal application is fairly arguable, Ms Essa claims to have been terminated because of a false allegation that she did not provide a medical certificate in support of an absence from work. In addition, she appears to suggest that she was targeted by an employer wanting her to leave its business. Open Endoscopy disputes these allegations and claims that Ms Essa did not provide details it requested regarding her absence from work, despite her claims she had or would do so and this failure, together with other issues relating to performance and conduct during the course of her employment, which had been the subject of prior warnings, constituted a valid reason for the termination of Ms Essa’s employment. As much as can be concluded, therefore, is that the merit of Ms Essa’s unfair dismissal application is strongly disputed by Open Endoscopy and the question of whether or not Ms Essa served the required minimum employment period might not resolve in her favour.

[42] Nonetheless, Ms Essa also has a history of non-compliance in this matter. Despite having been sent the Notice of Listing well in advance and a text message the day before, she gave no indication that she would be unavailable for the conciliation scheduled for Tuesday 8 January 2019. This was in circumstances where Dr Fok from Open Endoscopy had been required to cancel appointments of his patients so that he could attend the conciliation. I consider this failure of Ms Essa to attend was unreasonable because she had the opportunity to give prior notice but did not do so.

[43] Further, despite having been sent the amended Notice of Listing on 18 January 2019, which required her to file an Outline of Argument, Statement(s) of Evidence and a Document List by no later than noon on 11 February 2019, Ms Essa gave no advance warning that she would not be able to comply and nor did she advise the Commission she was to be married on 2 February 2019 and would be overseas from 4 February 2019 to 14 February 2019. While Ms Essa claims to have advised the Commission of these commitments in advance of 11 February 2019, I am not persuaded she did because there is no record of any such contact having been made by Ms Essa. Furthermore, Ms Essa has failed to comply with my recent direction that she provide records of the advice she claims to have given the Commission and details of when it was given.

[44] In any event, Ms Essa had two weeks prior to her wedding day to file and serve her material but failed to do so. I am satisfied Ms Essa had a sufficient opportunity to comply with the directions of the Commission and consider her failure to do so unreasonable.

[45] Therefore, in the circumstances of this case, I am satisfied that I should exercise my discretion and grant the application under s.399A of the Act that has been made by Open Endoscopy. Ms Essa’s unfair dismissal application is therefore dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR705743>

 1   Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [161]-[163].

 2   PR956665.