Reece Storme Ferrara v Medical Rescue Pty Ltd
[2021] FWC 4913
•10 AUGUST 2021
| [2021] FWC 4913 [Note: An appeal pursuant to s.604 (C2021/4710) was lodged against this decision - refer to Full Bench decision dated 22 October 2021 [[2021] FWCFB 6014] for result of appeal.] [Note: An appeal pursuant to s.604 (C2021/8798) was lodged against this decision.] |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Reece Storme Ferrara
v
Medical Rescue Pty Ltd; 24-7 Assistance Pty Ltd
(C2021/3009)
| Commissioner McKinnon | MELBOURNE, 10 AUGUST 2021 |
Application to deal with a general protections dismissal dispute – whether dismissed.
Reece Storme Ferrara was employed as a casual paramedic on the Snowy Hydro Project 2.0 (the Project) by 24/7 Assistance Pty Ltd (trading as Medical Rescue). On 28 May 2021, he applied for the Commission to deal with a general protections dismissal dispute under section 365 of the Fair Work Act 2009 (the Act).
The allegation is that Mr Ferrara was dismissed because he exercised a workplace right – by inquiring about the legitimacy of a drug and alcohol screening program on the Project and later foreshadowing an application to the Commission – and because of his disability. Mr Ferrara has attention-deficit hyperactivity disorder. Medical Rescue denies the allegations and in any event says that Mr Ferrara was not dismissed.
The period of employment is also in dispute. Mr Ferrara says he was dismissed on 18 May 2021. Medical Rescue says the employment ended either at the end of his last casual shift, or by effluxion of time, on 13 May 2021. On either version of the facts, the application to the Commission was made within 21 days of dismissal and so ‘in time’.
An application under section 365 of the Act can only be made by, or on behalf of, a person who has been ‘dismissed’. A person has been dismissed if their employment has been terminated on the initiative of the employer or they resigned but were forced to do so because of the employer’s conduct.[1]
The question is whether Mr Ferrara was dismissed, and if so, when. I find that Mr Ferrara was not dismissed. His employment ended by effluxion of time on 13 May 2021. These are my reasons for the decision.
Was Mr Ferrara dismissed?
On 26 April 2021, Mr Ferrara, who is based in Melbourne, responded to an unsolicited email from Medical Rescue Recruitment about an opportunity for employment as a paramedic or registered nurse on the Snowy Hydro project in the NSW Snowy Mountains.
Mr Ferrara responded to the effect that he was available for the Hydro project as early as the following day.
Medical Rescue replied to Mr Ferrara in the following terms:
“Hi Reece,
Thank you for your swift reply and interest in the available opportunity at Snowy & also at RQ.
The immediate short-term placement we have available is from this Wednesday 28 April – Thursday 13 May at our Snowy Hydro base in the Snowy Mountains. You would need to attend an 8am Induction onsite on Wednesday morning & you would move out on the Thursday 13 May. This position is FIFO however dependant on where you are located we may require you to travel on the Tuesday 27 via car or flight. The remuneration for this project is excellent and the daily rate determined as per your position and experience. There is also potential for this position to be ongoing, joining our fantastic existing team on a 14 day on/14 day off rotation. You will also need to have a white card to accept this placement.
These positions are very popular so please can you confirm ASAP if you are interested and state your position & if you hold a White Card & attach your CV for our records.
Looking forward to hearing from you.
Kind regards,
HR Recruitment Division”
The email chain led to a discussion between Mr Ferrara and Samantha Pitura, Human Resources Officer, later that day. At 2.58pm, Ms Pitura wrote to Mr Ferrara offering him “a placement at our Snowy Hudro project commencing this Wednesday.” The email foreshadowed sending him a casual contract of employment and welcome email that afternoon and sought information from Mr Ferrara for the purpose of booking his induction on Wednesday, 28 April 2021 in Cooma, NSW.
Flights were booked for Mr Ferrara to fly into Canberra for the role on 28 April 2021, returning to Melbourne on 13 May 2021.
On Wednesday, 28 April 2021, Mr Ferrara commenced work on the Snowy Hydro project.
On Saturday, 1 May 2021, Mr Ferrara wrote to Stevi Rokosuka, Clinical Operations Manager, asking about his contract of employment as it had not yet been received. Ms Rokosuka is responsible for operationalising decisions made by other members of the Medical Rescue team. She is not involved in, or authorised to deal with, the employment of staff or their terms and conditions of employment.
Ms Rokosuka responded to the effect that Ms Pitura would send Mr Ferrara the contract the following Monday. After no contract was received, Mr Ferrara spoke with Ms Rokosuka on Monday, 3 May 2021, including in words to the following effect:
| Ferrara: | “I am really enjoying this job.” |
| Rokosuka: | “Do you want to go full time?” |
| Ferrara: | “Oh umm yeah that would be awesome.” |
| Rokosuka: | “You’ll need to talk to Sam, she’ll deal with it.” |
Ms Rokosuka’s version of this conversation is different. She says that it was Mr Ferrara who asked if he could “go full time” and that she told him that they could look at his going full-time at the end of the contracted 14-day period. According to Ms Rokosura, she advised Mr Ferrara that it depended on if it all worked out and if it was a good fit for both of them. I prefer Mr Ferrara’s version of this extract of their conversation, which was more than the passage I have set out above. This is because Ms Rokosuka’s version fits too neatly into the narrative put forward by Medical Rescue in this case. It also intrudes into territory that the evidence confirms was outside the scope of Ms Rokosuka’s role.
When understood in this context, it is more probable than not that after hearing from Mr Ferrara that he was enjoying his placement, she understood him to be expressing interest in an ongoing role on the Project. He was already working full-time hours of work – all that this required was a transition from casual to full-time employment. There was also an ongoing vacancy for the role at the time. Her question to Mr Ferrara about whether he wanted to go full-time was not an offer of employment – Ms Rokosuka was not authorised to make offers of this kind. She was simply seeking to capitalise on Mr Ferrara’s interest by connecting him with Ms Pitura about the possibility of full-time work. For this reason, she referred Mr Ferrara to Ms Pitura to discuss the matter further.
Mr Ferrara acted on this suggestion and sent follow up emails to Ms Pitura on Tuesday, 4 May 2021. The second of these said:
“I advised Stevi that I’m happy to commit entirely to the Snowy Hydro project and she did talk about “full time” Whether that is casual full time or permanent full time I am not sure.
Look forward to hearing from you.”
Ms Pitura did not reply to the email as she was only relatively new to the company and it was a busy time.
On Wednesday, 5 May 2021, Mr Ferrara followed up about his contract of employment again. Ms Pitura replied, apologising for the delay in getting the contract to him and explaining that she wanted to discuss employment opportunities with him moving forward.
Shortly after the email, there was a telephone conversation between Mr Ferrara and Ms Pitura, including in words to the effect:
| Pitura: | “Sorry for the delays, the workload is quite high. I am aware you spoke to Stevi about a full-time opportunity at Snowy. I will need the details of at least two current references.” |
| Ferrara: | “I love working here, it’s the best! There’s always something to do. And just to let you know, I value being open and transparent, so if you have any questions about the entries on my Police Check, I’m happy to answer anything.” |
| Pitura: | “What are the entries for?” |
| Ferrara: | “Oh, well have a look. All the info is there you need, including the character reference from Aimee, the family lawyer. AHPRA was advised of everything so you can do your thing. If you want to know anything else you can ask me anything.” |
| Pitura: | “Okay Reece, well just send me through the references and I’ll try and get them out today.” |
This conversation largely reflects the evidence of Mr Ferrara, with one change of significance. Mr Ferrara submits that at the beginning of the conversation, Ms Pitura referred to being aware of “Stevi offering a full-time opportunity at Snowy”. I do not accept that this was said for the reasons I have outlined above. These are that Ms Rokosuka was not responsible for employment of staff and did not have authority to make an offer of employment to Mr Ferrara.
It is clear from the conversation extracted above that the discussion about an opportunity for full-time employment was still exploratory. No offer of ongoing employment had yet been made by Medical Rescue to Mr Ferrara.
At 9.49am on Wednesday, 5 May 2021, Mr Ferrara sent an email to Ms Pitura in these terms:
“As per conversation.
Super excited to sign up full time on the 26th May pending reference checks here are my references…”
Ms Pitura thanked Mr Ferrara for the information and wrote that she would send them off that day.
On Wednesday, 12 May 2021, Mr Ferrara emailed Ms Pitura:
“Goodmorning Sam,
Just checking in about what to do from here.
2 of my references have said they have not received anything from Medical Rescue to date wondering if perhaps workload had more pressing issues to attend to? Today is my fly out day and I have had wonderful time here.
I have received and developed good repore with the workers around the site and Lee the supervisor had me run warm ups regularly taking advantage of my additional energy in the morning which made pre-start fun and had lots of positive responses from it. I lost count how many hours I spent reviewing the Drug and Alcohol material for my own learning, possibly in excess of 80 hrs. I gave the material to Bec and Cath for use with the site.
I distributed health education material and also assisted the client in mitigating any issues by providing copies of the DOA policy to help facilitate a transparent process to the goal that the client will sit in a stronger position should anyone make a challenge. I would very much love to come back, and if anything I could be guilty of doing a lot in a short amount of time that I find it difficult not to do as from what I am told is a neurological thing.
At this point it was indicated to come back full time on the 26th May for 2:2. If there is a delay with the contract thats ok i think, but would like to have any kind of assurance if that will happen or not because I am mad trying to get a 4x4 drive course done before that time.
…”
Ms Pitura replied:
“Hi Reece,
Thank you for your email and letting us know that you enjoyed your placement at Snowy.
At this stage, the permanent position commencing 26 May at our Snowy Hydro project has been secured and for this reason, we have not yet reached out to your referees.
We are however aware that you are available and will keep you in mind moving forward.
Kind regards,
Sam”
On 13 May 2021, Mr Ferrara replied to Ms Pitura, copying in Ms Rokosuka. In his email he referred to Ms Rokosuka having offered him “the full time job”, referred to an “in principal agreement to go full time on the 26th” and described how happy he was to have “thought for sure I’ll get the job and this will be my workplace throughout the project”.
Mr Ferrara flew home to Melbourne on the evening of 13 May 2021 on pre-arranged flights booked at the outset of his placement.
It is clear on the evidence that Mr Ferrara was casually employed on the Project for a fixed term of approximately two weeks, from 28 April 2021 until 13 May 2021. While the parties discussed the opportunity for further full-time employment, I am not satisfied that the discussion was anything more than exploratory. No firm commitment was made to Mr Ferrara about becoming employed on a full-time basis. Certainly, he was hopeful that the opportunity would materialise, but it did not. In the meantime, Mr Ferrara remained of the understanding that his placement would come to an end on his ‘fly out day’, just as it did.
The consequence of these findings is that Mr Ferrara was not dismissed by Medical Rescue. His employment came to an end on 13 May 2021 when the agreed period of fixed term employment expired.
For completeness, this finding is no reflection on the merits of the application made by Mr Ferrara. There is at least a circumstantial case that Mr Ferrara was denied the opportunity of full-time employment for reasons related to his personal background and/or medical condition, although this is strongly denied by Medical Rescue. Such concerns can be dealt with under section 372 of the Act, which deals with general protections disputes that do not involve the dismissal of an employee.
Disposition
The application is dismissed.
COMMISSIONER
Appearances:
Reece Storme Ferrara on his own behalf.
Michael Smith from the respondents.
Hearing details:
2021.
Melbourne (video hearing):
July 28.
[1] Fair Work Act 2009 (Cth), ss 12 and 386.
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