Robecca Sams v CKSM Prosperity Trust T/A Hulme Court Dental Implant Centre
[2024] FWC 919
•10 APRIL 2024
| [2024] FWC 919 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Robecca Sams
v
CKSM Prosperity Trust T/A Hulme Court Dental Implant Centre
(U2024/1248)
| COMMISSIONER SCHNEIDER | PERTH, 10 APRIL 2024 |
Application for an unfair dismissal remedy
On 6 February 2024, Mrs Robecca Sams (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with CKSM Prosperity Trust T/A Hulme Court Dental Implant Centre (the Respondent).
The Respondent objects to the application on the ground that the Applicant was not dismissed.
Before considering the merits of the application, the Commission must be satisfied that the Applicant has been dismissed.
In the usual circumstances, the Commission would not consider an objection that an applicant has not been dismissed until after considering whether the application was lodged within time. However, to do so, it is necessary to ascertain the date that dismissal took effect. The matter currently before the Commission contains significant contention regarding whether the Applicant’s employment was terminated. In the event there was a dismissal, which for the reasons that follow I have concluded there is not, the out of time issue could have then been addressed. In the circumstances of this matter, and upon assessment of the facts and evidence before the Commission, I have determined the most appropriate course of action is to first consider the issue of whether there is a dismissal.
In this matter, the Respondent asserts that no dismissal at the initiative of the Respondent has taken place.
Legislation
When can the Commission order a remedy for unfair dismissal?
Section 390 of the Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, the matter would proceed to consideration of the merits.
When is a person protected from unfair dismissal?
Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
Initial matters
Under section 396 of the Act, the Commission is obliged to determine the following matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
Has the Applicant been dismissed?
A threshold issue to be determined is whether the Applicant has been dismissed from their employment.
Section 386(1) of the Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
Central to the consideration in this case is the operation of section 386(1) of the Act.
Section 386(1) of the Act defines what constitutes a dismissal for the purpose of Part 3-2 of the Act, which concerns Unfair Dismissals. The word ‘dismissed’ is defined in section 12 of the Act as having adopted the meaning in section 386 of the Act. Section 386(1) of the Act reads:
“(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.”
This definition contains two elements. The first concerns termination on the employer’s initiative and the second, resignation in circumstances where the person was forced to do so because of conduct or a course of conduct.
The two tests were explained by the Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli.[1]
In this matter, the Applicant does not claim that she resigned at all let alone resigned in the heat of the moment, nor does there appear to be special circumstances giving rise to any additional obligation of the Respondent to ensure any resignation was legitimate. In my assessment of the circumstances, the relevant test is that under section 386(1)(a) of the Act.
Submissions & Evidence
The Respondent filed submissions on 6 March 2024. The Applicant filed submissions on 13 March 2024. The Respondent filed final submissions on 20 March 2024.
The Applicant gave evidence on her own behalf. The following witnesses gave evidence on behalf of the Respondent, prior to the hearing the Applicant confirmed that only Dr Kay Zhan was required for cross examination, as a result Dr Koh and Ms Roost were excused from attending.
· Dr Kay Zhan (Dr Zhan), Director and Dentist of the Respondent.
· Dr Eu Guan Koh (Dr Koh), Director and Dentist of the Respondent.
· Ms Steffanie Roost (Ms Roost), Head Nurse of the Respondent.
Background
The Applicant commenced employment with the Respondent in July 2020.
The Applicant’s employment was covered by the Health Professionals and Support Services Award 2020.[2]
The Applicant was diagnosed with cancer in June 2023.
Between June 2023 and December 2023, the Applicant continued her employment with the Respondent.
There is some dispute between the parties in relation to the arrangements in place between June 2023 and December 2023. However, the parties acknowledged that the Respondent attempted to support the Applicant during this period and organised a GoFundMe page to support the Applicant.
The Applicant in this period did her best to manage her single parent responsibilities while continuing to work for the Respondent, all while undergoing radiation treatment for her cancer.
It was acknowledged that the Applicant had formed a friendship with Dr Zhan even prior to the Applicant commencing work with the Respondent in 2020.
The Applicant contends that the Respondent dismissed the Applicant from her employment on 31 December 2023.
Applicant’s Submissions & Evidence
The Applicant submits that the Respondent dismissed her from employment on 31 December 2023.
The Applicant gave evidence that, following her diagnosis in June 2023, she provided the Respondent with regular progress updates and freely shared information about her treatment.
On the night of 17 December and the early morning of 18 December, the Applicant experienced challenges lying down and encountered breathing difficulties.
The Applicant attended work on 18 December 2023, as she was aware the Respondent did not have resources available to cover her absence.
Following the completion of the Applicant’s workday at 5:30PM on 18 December 2023, she returned home, packed her bags, and presented herself at the Emergency Department.
The Applicant then remained in hospital until 23 December 2023.
The Applicant’s evidence was that she went to work on 27 and 28 December 2023. On the evening of 28 December 2023, the Applicant was readmitted to hospital, and it was confirmed that she had contracted COVID-19.
On 30 December 2023, the Applicant’s daughter tested positive for COVID-19.
The Applicant advised the Respondent, on 31 December 2023, that she was wanting to have that day off work to look after her daughter.
It was the evidence of the Applicant that, during the text message exchange between herself and Dr Zhan, the Respondent dismissed her from employment.
Respondent’s Submissions & Evidence
The Respondent submits that the Applicant was not dismissed at its initiative.
The Respondent submits that the communication on 31 December 2023 needs to be viewed in the context of the previous relationship/friendship between the Applicant and Dr Zhan, and as a result of such connection Dr Zhan was concerned about the welfare and health of the Applicant.
The Respondent submits that nothing contained within the text message between the parties could be considered a termination nor could it amount to a situation whereby the Applicant was forced to resign.
The Respondent submits that Dr Zhan only completed the separation certificate to assist the Applicant as Dr Zhan understood that the Applicant had exhausted her paid leave entitlements, and that the Applicant needed financial assistance.
It was the evidence of Dr Zhan that, on 28 December 2023, she received a phone call from a friend of the Applicant, at 11:30PM, confirming the Applicant was in hospital. It was communicated to Dr Zhan that the Applicant had tested positive to COVID-19 and was having difficulty breathing.
Dr Zhan confirmed that, on 30 December 2023, the Applicant sent her a text message which included a government confirmation that the Applicant had tested positive to COVID-19.
Dr Zhan confirmed that, at around 7:00AM on 31 December 2023, she sent a text message to the Applicant. It was the evidence of Dr Zhan that at no time during this message exchange did she dismiss the Applicant from her employment. Rather, the intention of these messages was to check on the welfare of the Applicant and discuss her returning to work after 15 January 2024.
Dr Zhan explained that she was concerned about the Applicant returning to work too soon, given the Applicant was immunocompromised and the Respondent had elderly patients.
Dr Zhan’s evidence was that when she received a message from the Applicant, at 11:15AM on 31 December 2023, requesting a separation certificate she believed the Applicant was doing this to seek financial support from Centrelink, as she had exhausted her paid leave entitlements.
Dr Zhan’s evidence was that, following the text communication between herself and the Applicant, she believed the Applicant would return to work once she had recovered and was feeling better.
Dr Zhan confirmed that she sent a further text to the Applicant, on 4 January 2024, to see how she was going and the Applicant advised her that she had been discharged from hospital on 2 January 2024 and had family members at home with COVID-19.
Dr Zhan confirmed that, on 10 January 2024, she sent another text to the Applicant to see if she might be available to work a shift on 18 January 2024. The Applicant responded that she would not be ready for work “anytime soon”.
Dr Zhan confirmed that, on or around 4 February 2024, Ms Roost gave her the keys to the clinic that the Applicant had provided to Ms Roost. Dr Zhan confirmed that Ms Roost advised her that the Applicant was still unwell.
Dr Zhan confirmed that, on 6 February 2024, the Respondent received the Applicant’s unfair dismissal application.
Dr Zhan explains that at no stage did she dismiss the Applicant and that it was her understanding and position that the Applicant was not working in the month of January 2024 as the Applicant was unwell, not because the Respondent had dismissed the Applicant. In support of this position, Dr Zhan confirmed that the Respondent had not sought the return of the keys to the clinic rather these were returned of the Applicant’s own accord.
Dr Zhan confirmed that the Applicant received a payslip, on 10 January 2024, confirming that she was still employed.
It was the evidence of Dr Koh that, on 28 December 2023, his wife, Dr Zhan, received a phone call at around 11:30PM from a friend of the Applicant, confirming that she had been taken to hospital by ambulance and had tested positive to COVID-19.
It was the evidence of Dr Koh that the clinic was closed between 29 December 2023 and 2 January 2024.
It was the evidence of Dr Koh that at no time did he or his wife dismiss the Applicant.
Dr Koh outlined his understanding that the Applicant requested a separation certificate to seek financial support as her leave entitlements with the Respondent were exhausted.
Dr Koh’s evidence was that it was his understanding the Applicant was too unwell to return to work in early January 2024 and that he saw a text message between his wife, Dr Zhan, and the Applicant, on 10 January 2024, in which the Applicant confirmed that she was still unwell and unable to attend work.
It was the evidence of Ms Roost that at no time did the Applicant or the Respondent advise Ms Roost that the Applicant had been dismissed.
Ms Roost’s understanding was that the Applicant was unwell and unable to work due to her medical condition.
It was the evidence of Ms Roost that she met with the Applicant on 26 January 2024 and, at this time, the Applicant handed back the keys to the Respondent’s clinic. It was the unchallenged evidence of Ms Roost that the Applicant told her she was unwell and needed more time off work to recover.
Text Messages
For reference, the text messages sent by Dr Zhan to the Applicant on 31 December 2023 are outlined below:
· 7:04AM – Then you take the first two weeks of Jan off first.
· 7:05AM – I can’t have you back at work.
· 7:07AM – I don’t plan you to come back until maybe 15th.
· 7:07AM – You better ask the hospital staff what’s the best thing to do.
· 7:07AM – and be prepared if you get reinfected.
· 10:35AM – Bec take the time off to recover.
· 10:44AM – You need to rest Bec, it’s no joke. It’s safer for you in the hospital than at home. At least you are not in contact with the infection.
· 10:52AM – Bec there’s a limit to what I can keep helping you with.
· 10:53AM – I need more stability in the clinic.
· 10:54AM – Everyone has worked really hard for the last 7 months.
· 10:56AM – Bec I think even I would like to have you on for the full time but it’s not gonna work in the long run. Your health and your commitment to your kids take up time and your energy.
· 10:56AM – We can only protect you as far as we can from Covid. This is not a situation I would ever wanna see you in. It’s a situation that could’ve been prevented (rest of message missing).
· 10:57AM – Bec you need to rest.
· 10:57AM – Take it easier for a while.
· 10:59AM – You need time to think reflect and decided on what your priorities are in life.
· 11:03AM – Bec see how you go after two weeks rest.
· 11:03AM – Then we can do it slowly for you.
· 11:07AM – Everyone life’s no easy, especially Janis won’t be available for us. I need to find some support for you and steff and especially Guan.
· 11:08AM – If guan and I can’t bring in enough money, everyone’s livelihood is going to be affected.
· 11:09AM – Bec you know if you take some time off here and there so you have the time to recover and deal with kids stuff. Maybe in 6 months things will be better for you in every way and you can come back more days.
Consideration
I have considered the text messages between the Respondent and the Applicant occurring on 31 December 2023; I do not consider that these messages constitute a dismissal at the initiative of the Respondent.
The Respondent’s first message in the chain reads “Then you take the first two weeks of Jan off first” followed by “I can’t have you back at work”. Having considered the submissions of the parties, I find the logical explanation is that the Respondent was concerned for the Applicant’s health and the Applicant attending the workplace, given her current diagnosis alongside a COVID-19 infection.
In the text message exchange between the two, Dr Zhan states:
“I don’t plan you to come back until maybe 15th.”
“Bec take the time off to recover.”
“Bec see how you go after two weeks rest.”
“Then we can do it slowly for you.”
“I need to find some support for you and steff and especially Guan.” (Emphasis added).
“Bec you know if you take some time off here and there so you have the time to recover and deal with kids stuff. Maybe in 6 months things will be better for you in every way and you can come back more days.”
I am not satisfied that any of the communication between the parties by text could constitute a notification that the Applicant had been dismissed from her employment. Rather, it is clear that Dr Zhan communicated to the Applicant that the Respondent would plan for her return on 15 January 2024. Dr Zhan also communicated that she needed to find additional support for the Applicant as well as other staff members to take the pressure off.
These messages are not the kind of messages an employer would send an employee they had just dismissed, instead the messages reflect an employer who acknowledges the unfortunate and distressing circumstances the employee is facing, while also recognising the practical implications it has on a small business with only 5 employees.
I also note the messages that Dr Zhan sent the Applicant on 4 January 2024 and 10 January 2024, enquiring about the Applicant’s health. I note that the message sent on 10 January 2024, which enquired about the Applicant’s availability for work on the 18 January 2024, is consistent with the timeframe previously provided by the Respondent regarding the Applicant’s potential return in the message exchange of 31 December 2024.
I have also considered the other actions of the Respondent, such as not seeking the return of company property (keys to the clinic), not limiting IT access, and not removing the Applicant from a workplace chat and I am satisfied this supports the position of the Respondent - that the Applicant was not dismissed by the Respondent on 31 December 2023.
I understand that this decision will be upsetting to the Applicant, and I do wish her the best with her current health battle.
Conclusion
Having concluded that the Applicant was not dismissed at the initiative of the Respondent, the Applicant’s application for an unfair dismissal remedy is therefore dismissed. An Order to that effect has been issued.[3]
COMMISSIONER
Appearances:
P Stinton for the Applicant.
J Grant of Resolve Legal Solutions for the Respondent.
Hearing details:
2024.
Perth (by video):
March 22.
[1] [2017] FWCFB 3941.
[2] [MA000027].
[3] [PR773336].
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