Olamide Otubaga v Autism Association of South Australia t/as Autism SA
[2023] FWC 2702
•17 OCTOBER 2023
| [2023] FWC 2702 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Olamide Otubaga
v
Autism Association of South Australia t/as Autism SA
(U2023/6340)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 17 OCTOBER 2023 |
Application for an unfair dismissal remedy – support worker – client complaint – suspension – investigation – whether suspension amounted to a dismissal – no dismissal – application dismissed
On 13 July 2023 Olamide (Gabriel) Otubaga (Mr Otubaga or the applicant) applied to the Commission under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) for an unfair dismissal remedy against the Autism Association of South Australia trading as Autism SA[1] (Autism SA, the respondent or the employer).
Mr Otubaga claims to have been dismissed on 12 July 2023 effective 13 July 2023. He claims that his alleged dismissal was unfair.
Autism SA oppose the application and raise a jurisdictional issue. It says that Mr Otubaga was not dismissed on the day or days alleged. In the further alternative, Autism SA say that the circumstances of the alleged dismissal (and a dismissal that subsequently occurred on 24 July 2023) were not unfair.
Conciliation was conducted on 18 August 2023. The matter did not resolve.
I issued directions on 28 August 2023.
At the directions hearing on 28 August 2023 I drew the applicant’s attention to the fact that he claims he was dismissed on 12 July 2023 effective 13 July 2023 whereas the employer’s response asserts that there was no dismissal on 12 or 13 July 2023 but states that there was a dismissal on 24 July 2023. I asked Mr Otubaga whether he wished to amend the date of dismissal stated in his application. Mr Otubaga declined to do so. He advised that he intends to argue that the events of 12 July 2023 constituted a dismissal that took effect the following day.
By Amended Directions on 14 September 2023 I listed the matter for jurisdictional hearing only.
I heard the jurisdictional matter (whether dismissed as alleged) by video on 11 October 2023.
Mr Otubaga was self-represented. Autism SA were represented by its People and Culture Manager (Ms Strachan), who also gave evidence.
I provided a measure of assistance to both parties to present their cases and test that of the other side.
Evidence
I received evidence (oral and written) from six persons:
For the applicant
· Olamide (Gabriel) Otubaga (applicant);[2]
For the respondent
· Margot Strachan (People and Culture Manager);
· Jessica Steyn (Regional Manager);
· Stephanie Decelles (HR Business Partner);
· Rebecca Sanderson (Program Coordinator); and
· Lea Smart (Business Operations Manager).
All witnesses gave evidence conscientiously. To the limited extent required, and without necessarily preferring the evidence of one witness over the other, in resolving factual disputes I apply standard tools available to first-instance decision-makers including the level of recall and plausibility and consistency with the documentary record.
Documentary evidence was filed by both Mr Otubaga and Autism SA.
Portions of the written materials (particularly those filed before the Amended Directions) concern merit and are not directly relevant to jurisdiction. I admitted all materials in order to not unduly constrain the basis on which Mr Otubaga advanced his case, to permit a considered view on relevance once all the evidence was in, and to not unduly complicate proceedings by attempting to sever the irrelevant from the relevant. I did so by consent, noting the employer’s objections to the relevance of some documents.
Facts
Facts relevant to the jurisdictional issue are largely not in dispute (notwithstanding clear differences over conduct and performance that are relevant only to merit).
I make the following findings.
Autism SA
Autism SA provides support and related services to people on the autism spectrum and to those that interact with or care for them.
A number of policies and procedures govern the operations of Autism SA. These include:
· a Code of Conduct;[3]
· a Respect in the Workplace Policy;[4] and
· a Disciplinary Management Policy[5] and Procedure.[6]
When a support worker is allocated a shift to work with a client, generally two support workers are allocated on that same shift.
Mr Otubaga
Mr Otubaga is a resident of Adelaide.
He commenced employment with Autism SA as a casual support worker in October 2020. In May 2022 he became a permanent part time employee, with contracted hours of 36.75 per fortnight.[7] For current purposes, I need not determine a factual dispute as to whether Mr Otubaga’s contracted hours were reduced to 34 per fortnight in June 2023.
Mr Otubaga reported directly to the Program Coordinator Ms Sanderson. Ms Sanderson set the rosters. Mr Otubaga was generally rostered weekday shifts Wednesday, Thursday and Friday.
At times relevant to this matter, Mr Otubaga worked alongside a second support worker when attending to clients.
Disciplinary matters
Some past disciplinary matters arose.
Mr Otubaga was formally counselled on 12 October 2021 following a complaint from a co-worker and an investigation.[8]
More recently, Mr Otubaga was issued a written warning on 3 July 2023 following a fresh complaint from a co-worker and an investigation.[9]
On 5 July 2023 the employer received a further complaint from a co-worker about Mr Otubaga.[10] An investigation commenced, including an allegations letter (7 July) and disciplinary meeting (11 July).[11]
Complaint of discrimination
After a discussion and text exchange about a start time with a rostering officer on 5 July 2023, Mr Otubaga considered that he was being discriminated against on the grounds of race.
On 10 July 2023 Mr Otubaga advised Autism SA that he was making a complaint of discrimination against the rostering officer.
On 11 July 2023 a meeting was held by Ms Sanderson and Ms Decelles with Mr Otubaga at which time his racial discrimination complaint was formalised into a written statement.[12]
Events 12 July 2023
On 12 July 2023 Mr Otubaga was rostered to provide support to a client (Client A).
During the day, the parents of Client A contacted Ms Sanderson and made a formal complaint about the conduct of Mr Otubaga. They asked that Mr Otubaga no longer be rostered to support Client A.
Ms Sanderson reported the complaint to her manager (Ms Steyn) and the human resources department (Ms Decelles).[13] Ms Steyn and Ms Decelles decided that the complaint raised concerns that could amount to serious misconduct. They considered that Mr Otubaga should be suspended on full pay pending an investigation in accordance with Autism SA’s Disciplinary Management Policy and Procedure.
Ms Decelles drafted a suspension letter which Ms Steyn signed. They waited until Mr Otubaga finished his shift for the day before advising him of the suspension.
Mr Otubaga was first advised of the suspension in a brief telephone call from Ms Steyn on the late afternoon of 12 July 2023.
Upon doing so, and in accordance with its disciplinary procedures, Ms Steyn revoked Mr Otubaga’s access to the employer’s email system and its client WhatsApp group chat facilities.[14]
Ms Steyn then sent the letter of suspension dated 12 July 2023 to Mr Otubaga. It read:[15]
“Dear Gabriel,
Suspension of Employment
Information currently available to Autism SA indicates your involvement in what may be considered serious misconduct. This in no way is an allegation or finding of any wrongdoing on your part, it is a procedural step of any investigation of potential serious misconduct, and is required as part of our process for various reasons which may include duty of care to parties involved, confidentiality of the investigation and to clarify the seriousness of the matter at hand. For these reasons you are suspended on full pay until this matter is resolved. Whilst we cannot discuss the issue with you at this point as it is essential that you consider all the relevant information before commenting, you may contact the writer of this letter if you seek to clarify anything about suspension generally or your obligations/rights whilst suspended. As a critical part of our investigation we will, as soon as practicable, provide you with all of the relevant detail to allow for your considered response to this issue.
Whilst suspended it is important that you adhere to the following directions:
1.This matter must remain confidential and must not be discussed or disclosed with other employees or any person outside of the Organisation (other than a support person, or an appropriate person to seek advice re your rights in relation to this matter), until this matter is resolved; and
2.You must not interfere, directly or indirectly, with this investigation in any way.
Failure to adhere to these directions or other interference with the investigation may result in disciplinary action, and in serious cases, termination of employment.
Please contact our Human Resources team ([email protected]) if you would like help to understand our investigation process, or alternatively if you find you need some other form of support, you are able to utilise the confidential counselling service available through Autism SA’s Employee Assistance service: ACCESS Programs on xxxxxxxxxxxxxxxxxxxxxxxxxx.
If you have any questions about this letter, or investigation process more generally you can contact Stephanie Decelles, HR Business Partner on xxxx xxx xxx.
Yours sincerely,
Jess Steyn
Regional Manager CSI HLL”
Simultaneously, during the day of 12 July 2023 Autism SA completed its consideration of the 5 July 2023 complaint (following the meeting on 11 July). The employer decided to issue a further written warning. A letter was prepared during the day of 12 July 2023 and signed by Ms Sanderson.
The warning letter dated 12 July 2023 was sent to Mr Otubaga. It advised:[16]
“This is a warning for Breaching Organisational Policies and Procedures…It is expected that the above issue(s) will be remediated by you immediately. In the event that the above issue occurs again, further disciplinary actions will be taken.”
Mr Otubaga separately received and read the suspension letter of 12 July 2023 and the warning letter of 12 July 2023.
He considered both unjustified and concerning frivolous or contested matters.
Also, during the working day of 12 July 2023 Mr Otubaga had a somewhat testy text exchange with Ms Sanderson concerning a request that he complete an ‘outside employment’ form.[17]
Events 13 July 2023
Mr Otubaga would have, but for the suspension, worked on 13 and 14 July 2023.
In light of the suspension, Mr Otubaga was removed from the rostered shift of 13 July 2023, and did not work.
On 13 July 2023 Ms Decelles advised the payroll department that Mr Otubaga had been suspended on full pay for his contracted hours and should continue to receive pay in the usual course for those hours.
Having been precluded from working his shift, on 13 July 2023 at 1.25pm Mr Otubaga filed an unfair dismissal claim under s 394 of the FW Act claiming that he had been unfairly dismissed on 12 July 2023 effective 13 July 2023.
Events following 13 July
Mr Otubaga received payment during the period of suspension (13 July to 26 July inclusive).
Following the notice of suspension, the employer investigated the complaints further. The employer again spoke to Client A’s parents on 14 July seeking additional information. This was provided.
A file note of the complaint was subsequently prepared.[18]
Considering that it had by then sufficient information to particularise the allegations, on 17 July an allegations letter of that date was prepared by the human resources department and signed and sent by Ms Steyn to Mr Otubaga.[19]
The allegations letter particularised three allegations. It directed Mr Otubaga to attend a response meeting on 19 July 2023.
On 19 July 2023 Mr Otubaga attended a response meeting attended by Ms Smart and Ms Decelles. Mr Otubaga had been provided an opportunity to attend with a support person but elected not to do so.
The allegations were discussed at that meeting.
On 24 July 2023 the employer sent Mr Otubaga a letter under the hand of the Acting CEO and Executive Manager People and Culture (Ms Lewis) advising that the allegations were substantiated and referencing the previous counselling and warnings.[20] The letter advised Mr Otubaga that Autism SA had decided to terminate his employment for a “pattern of continuous disregard for acceptable workplace behaviours and non-compliance with reasonable workplace requests”.
The termination took effect at 5.00pm on 24 July 2023.
On 26 July 2023 Mr Otubaga was sent a letter by Autism SA advising the outcome of his racial discrimination complaint against the rostering officer.[21] He was advised that the complaint was not substantiated.
Submissions
Mr Otubaga
Mr Otubaga submits that he was dismissed on 12 July 2023 effective 13 July 2023.
He submits that his last day of working a shift was 12 July, and that this is evidence that he was dismissed on that day.
He submits that the employer’s decision to suspend him and prevent him from working rostered shifts on 13 and 14 July and to not roster him in the fortnight following was conduct on the initiative of the employer that brought his employment to an end.
Mr Otubaga submits that the later dismissal on 24 July 2023 was predetermined by the decisions made on 12 July.
Autism SA
Autism SA submit that Mr Otubaga was not dismissed within the meaning of the FW Act on 12 or 13 July 2023.
It submits that its decision on 12 July 2023 to suspend Mr Otubaga was not a dismissal. It did not bring the employment relationship to an end on that day or the day following. It continued to pay Mr Otubaga during the period of suspension and investigation. During this period it communicated with Mr Otubaga as its employee and held a meeting with Mr Otubaga.
Autism SA submit that the suspension and subsequent investigation was lawfully conducted in accordance with its established Disciplinary Management Policy and Procedure, which contemplated both suspension where potential issues of serious misconduct warranted investigation and payment of wages during an investigation period.
Consideration
Aside from the issue of whether Mr Otubaga was dismissed as alleged, the other jurisdictional pre-requisites for a valid unfair dismissal application are not in dispute. I am satisfied that Mr Otubaga was a person protected from unfair dismissal (s 382 FW Act).
A person has not been unfairly dismissed unless, amongst other matters, they have been dismissed (s 385(a)) FW Act).
The jurisdictional issue in dispute
I now turn to consider whether Mr Otubaga was dismissed as alleged.
It is necessary to emphasise that the allegation by the applicant is that he was dismissed on 12 July 2023 taking effect on 13 July 2023. By choice of Mr Otubaga (a choice maintained even when given the opportunity to amend his application at the directions hearing on 28 August 2023), it is not an allegation of dismissal on 24 July 2023 despite a dismissal on that date not being disputed.
In other words, the issue on which Mr Otubaga seeks determination is his contention that the suspension on 12 July 2023 which precluded him from working on 13 July 2023 and thereafter constituted a dismissal within the meaning of the FW Act.
Was the suspension a dismissal?
Sections 385(a) and 394 require a dismissal to have occurred as a jurisdictional fact. A mere allegation that a person has been dismissed will not establish that as fact.[22] “Dismissal” for these purposes (and other purposes of the FW Act) is defined in s 386(1). It provides:
“386 Meaning of dismissed
(1)A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
Section 386(1)(b) is not relevant to this matter. No party asserts that Mr Otubaga’s employment ceased by forced resignation.
Did the events of 12 and 13 July 2023 mean that Mr Otubaga’s employment was terminated on 12 July effective 13 July on the employer’s initiative within the meaning of s 386(1)(a)?
Termination at the initiative of an employer arises where the action of the employer is the principal contributing factor leading to the termination of the employment relationship.[23]
It is plainly apparent that the decision to suspend Mr Otubaga on 12 July following the receipt of a complaint that day from the parents of Client A was conduct at the initiative of the employer.
However, it is equally clear that this conduct did not terminate the employment relationship. For the following reasons, there is no sense in which the suspension or other action taken by the employer on or around 12 July 2023 ended the employment relationship.
Firstly, the suspension was not a sham. It was a meaningful and deliberative process taken to permit an investigation into allegations of misconduct whilst managing the employer’s duty of care to its clients. It was a process expressly contemplated by the employer’s Disciplinary Management Policy and Procedure.[24]
Nor was Mr Otubaga misled by the employer’s communication about the suspension, its next steps or what was required of him. Whilst the suspension letter lacked particulars of the allegations and this was understandably frustrating to Mr Otubaga, it clearly notified the suspension and the employer’s view that the issues arising “may be considered serious misconduct”. The allegations were particularised five days later, on 17 July 2023.
Secondly, the objective facts establish that the employment relationship continued for the twelve days that followed 12 July. During this period Mr Otubaga continued to be paid a salary for minimum contracted hours (this was not a payment in lieu of notice). During this time Autism SA investigated the complaints against Mr Otubaga which had given rise to the suspension and then communicated with him by way of allegations letter (17 July), response meeting (19 July) and finally a termination letter (24 July). These were all steps associated with an active employment relationship that was subject to an investigative and disciplinary process.
Thirdly, it necessarily followed from the notice of suspension on 12 July 2023 that Mr Otubaga would not be working the rostered shift on 13 July. The very nature of a suspension and its purpose meant that work as a support worker with clients would not be provided until the investigation was completed and the employer had decided on appropriate action.
Aside from the suspension on pay on 12 July and removal from the next rostered shift, the only other relevant conduct taken by Autism SA on 12 or 13 July 2023 was the sending of the warning letter of 12 July concerning the co-worker complaint of 5 July. The warning letter neither on its face nor by way of effect constituted the ending of the employment relationship. Its terms expressly provided that it was a formal warning which contemplated remediation of behaviour.
Whilst the warning letter overlapped communication of the suspension and were letters of the same date, neither, individually nor collectively, was conduct ending the employment relationship.
I reject the submission by Mr Otubaga that he was terminated by Autism SA on 12 July because it had predetermined that he be dismissed. There is simply no evidence of predetermination. Whilst his relationship with the employer had become somewhat strained by the two performance warnings in the space of a fortnight and then his complaint of racial discrimination, the evidence is that the employer had made no decision, stated or unstated, about his employment when deciding to suspend him on 12 July. Indeed the evidence points in the other direction. It was the parents of Client A who contacted the employer on 12 July with a formal complaint, not the employer contacting the parents. The employer then did not prepare an allegations letter until it obtained further information from the parents of Client A on 14 July. The employer engaged in a meaningful response meeting with Mr Otubaga on 19 July.
There is also no evidence of predetermination based on Mr Otubaga’s belief that he was being discriminated against on the ground of race. Whilst this is a belief Mr Otubaga appears to genuinely hold, the evidence is that the employer, once alerted to his desire to make a formal complaint, met with Mr Otubaga on 11 July 2023 to assist him formalising the complaint. The employer then advised him, two weeks later (and two days after dismissal) that the complaint had not been substantiated. This conduct by the employer does not support a finding of predetermination.
Considered overall, there was no dismissal on 12 July that took effect on 13 July. The application is misconceived in advancing that proposition.
Conclusion
There was no dismissal as alleged.
That being so, there is no jurisdiction to hear and determine application U2023/6340.
The application must be dismissed. An order giving effect to this decision will be issued in conjunction with its publication.[25]
DEPUTY PRESIDENT
Appearances:
Mr O Otubaga, on his own behalf
Ms M Strachan with Ms L Lewis, of and on behalf of Autism Association of South Australia t/as Autism SA
Hearing details:
2023
Adelaide (by video)
11 October
[1] Name of respondent amended by Direction [1] 28 August 2023
[2] A1 Statement of Mr Otubaga 16 May 2023; A2 Statement and Submission of Mr Otubaga 24 April 2023; A3 Statement in Reply of Mr Otubaga 31 May 2023
[3] R2 Attachment G
[4] R2 Attachment L
[5] R2 Attachment E
[6] R2 Attachment F
[7] R2 Attachment C
[8] A13; R2 Attachments D, H and I
[9] A9; R2 Attachments K, M and N; A21 meeting video recording (30 June)
[10] R2 Attachment O
[11] R2 Attachments P and Q; A22 meeting video recording (11 July)
[12] R2 Attachment V
[13] R7
[14] R3 Attachment D
[15] A4; R2 Attachment S
[16] A10; R2 Attachment Q
[17] A12
[18] R2 Attachment R
[19] A14; R2 Attachment T
[20] A11; R2 Attachment U
[21] R2 Attachment X
[22] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152, [54]
[23] Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200
[24] R2 AttachmentE page 1; R2 Attachment F pages 2 and 4
[25] PR767312
Printed by authority of the Commonwealth Government Printer
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