Selma Gardiner-Smith v Uniting AgeWell Limited

[2024] FWC 3442

[2024] FWC 3442

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Selma Gardiner-Smith
v

Uniting AgeWell Limited

(U2024/11735)

DEPUTY PRESIDENT COLMAN MELBOURNE, 10 DECEMBER 2024

Unfair dismissal application – application dismissed

1. Selma Gardiner-Smith has made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). Ms Gardiner-Smith was employed by Uniting AgeWell Limited (Uniting) as a casual home care worker. She was dismissed on 12 September 2024 after Uniting concluded that, because she could not perform domestic assistance work, she was unable to perform the inherent requirements of her job. Ms Gardiner-Smith submits that her inability to do domestic assistance work was caused by her medical condition, and that she was perfectly able to do all of the other duties of a casual home care worker. She contends that she should have been rostered to do the work that she was able to perform, and that it was discriminatory and unfair for Uniting to dismiss her in the circumstances.

1. Ms Gardiner-Smith commenced employment with Uniting in June 2022. She had previously been employed as a home care worker by Guardian Network (Guardian), a labour hire agency that had provided services to Uniting. Guardian was acquired by Uniting and gradually integrated into its own business. Ms Gardiner-Smith suffers from osteoarthritis in her knees, which for some time has affected her ability to perform the manual domestic tasks associated with the home caring of elderly people. Ms Gardiner-Smith’s evidence was that when she worked for Guardian, she did very little domestic assistance work as part of her role. When she joined Uniting in 2022, however, she was expected to do this work. She told Uniting that she was concerned about whether her condition would allow her to do so. Uniting asked Ms Gardiner-Smith to see her doctor and obtain a report about her fitness for duty and asked the doctor to answer a series of questions.

1. In September 2022, Ms Gardiner-Smith’s treating physician, Dr Emad Tadros, provided a report which stated that Ms Gardiner-Smith was able to climb a flight of stairs, that she could load and unload a washing machine, and also clean showers and bathrooms. The report stated that she could clean floors, and that she could sweep, mop and vacuum, for 60 to 90 minutes a day. The report said that Ms Gardiner-Smith could carry a load of washing to a clothesline and hang up washing, and that she could lift and carry shopping bags to and from a car, subject to a weight limit of 7kg.

1. Libby McLean, Uniting’s wellness for work manager, gave evidence that on the basis of Dr Tadros’s report, Uniting was satisfied that Ms Gardiner-Smith could undertake the domestic assistance tasks associated with her role, subject to the restrictions. It proceeded to roster her for work. Ms McLean said that some twenty months later, on 17 May 2024, Ms Gardiner-Smith informed Uniting that she was unable to undertake domestic assistance duties. Uniting then sought to understand and assess Ms Gardiner-Smith’s fitness for duty. In the meantime, it placed her on ‘special paid leave’. Under this arrangement, although Ms Gardiner-Smith was a casual and not entitled to paid leave, she was paid her average fortnightly wages. Ms McLean said that Uniting requested a medical report from Ms Gardiner-Smith’s current doctor, Ivan Delgado, but he was unable to provide a report. Uniting then directed Ms Gardiner-Smith to attend an independent occupational physician, Dr David Barton, to undergo a medical assessment. This occurred on 26 June 2024. In his report dated 27 June 2024, Dr Barton stated that Ms Gardiner-Smith had confirmed to him that she did not believe that she could do heavy tasks, including vacuuming, mopping, or cleaning the bath and shower, and that she and her treating doctor believed that she could not do general household chores. She also told Dr Barton that she was receiving help in her own home in respect of domestic tasks. Dr Barton said that Ms Gardiner-Smith had a weight limit of 5 to 10kg, and that in his opinion she would struggle to manoeuvre a person in a wheelchair or shower chair, and that a graduated return to work would not make any difference.

1. On 26 July 2024, Ms McLean met with Ms Gardiner-Smith, together with her support person, to discuss her condition. In short, Ms Gardiner-Smith confirmed to Ms McLean that she was unable to undertake domestic assistance duties and that she was receiving some home care assistance herself for domestic tasks.

1. On 16 August 2024, Uniting’s human resources manager, Gen Toop, wrote to Ms Gardiner-Smith, asking her to show cause why her employment should not be terminated on the ground that she was unable to perform the inherent requirements of her position. Ms Gardiner-Smith did not reply in writing. A meeting occurred on 22 August 2024 to allow her to respond orally. Ms Gardiner-Smith’s evidence was that she did not have much more to say to Uniting at this meeting. She had already explained that she had a medical condition, and that she could not do domestic assistance work. She could not change these things but was happy to do the non-domestic assistance work. Uniting then considered her response.

1. Tracy Semmens, Uniting’s director of people, gave evidence that domestic assistance duties are a large and important part of the role of a home care worker. Domestic assistance involves manual labour such as cleaning and laundry. Ms Semmens said that this constitutes some 80% of the services requested from Uniting’s clients. She also said that Uniting’s homecare business model is built around providing comprehensive care for its clients, and that the majority of care provided involves helping clients with household tasks such as cleaning, meal preparation, shopping and other non-medical assistance. She said that the business model required home care workers to perform the full range of domestic duties, and that this was essential because a client might need assistance across multiple areas of domestic and personal support in a single service. She said that it would not be practical to send a home care worker to do the domestic assistance work for a client and then send a second worker to do the other work. Ms Semmens also said that most of Uniting’s home care workers preferred the non-domestic assistance work, because they wanted to use their qualifications, which were focused on the elements of the role not comprising manual labour. It would not be fair to other workers to allocate more domestic assistance work to them, and less to Ms Gardiner-Smith. There needed to be a fair balance of tasks in the allocation of duties. Ms Semmens said that, following the meeting with Ms Gardiner-Smith, Uniting concluded that she could not perform the inherent requirements of the role and decided to terminate her casual employment.

1. On 12 September 2024, Ms McLean telephoned Ms Gardiner-Smith and told her of Uniting’s decision. The same day, Ms Toop sent a letter to Ms Gardiner-Smith stating that Uniting had decided to terminate her employment because she was unable, now or in the foreseeable future, to fulfil the inherent requirements of her role. The letter noted that Ms Gardiner-Smith had been on special paid leave since 30 May 2024, and that her inability to undertake the full range of duties had adversely impacted rostering and resourcing, as replacements had to be found for her, which in turn affected her colleagues’ workload. It stated that Uniting was unable to leave her role open indefinitely. The letter stated that although she was a casual employee, Uniting would pay her two weeks of pay referable to notice of termination of employment.

1. Ms Gardiner-Smith gave evidence that she had always enjoyed aged care work, and that her previous employer, Guardian, had deployed her in a way that was consistent with her medical condition because it involved very little domestic assistance work. Ms Gardiner-Smith said that when she joined Uniting, she was able to perform some domestic assistance work in accordance with the restrictions in Dr Tadros’s letter. However, by May 2024 she was not able to do this work. She told Uniting that she could do the other work associated with her role but Uniting did not roster her for any shifts. She acknowledged that she received ‘special paid leave’ and payment of 2 weeks’ notice of termination of employment. However she maintained that she was able to perform the other duties of a home care worker, and that it was unfair and discriminatory of Uniting to terminate her because of her medical condition. Ms Gardiner-Smith contended that she could have continued to work as a homecare worker in the manner that she had done for Guardian, but that Uniting refused to allow her to do this.

Consideration

1. In considering whether a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account the matters in s 387. In my view, there was a valid reason for dismissal related to Ms Gardiner-Smith’s capacity (s 387(a)). I find that it was an inherent requirement of Ms Gardiner-Smith’s role as a home care worker with Uniting that she be able to perform domestic assistance duties, and that she was unable to perform that work. I accept the evidence of Ms Semmens that domestic assistance duties constituted 80% of the work of a home care worker and that Uniting’s business model requires employees to be able to perform the full range of tasks. I find that it would not have been reasonably practicable to have Ms Gardiner-Smith perform only non-domestic assistance work. This would not have made business sense. It would have been an unfair burden on Uniting. It would not have been fair to other employees. The fact that Guardian was able to deploy Ms Gardiner-Smith substantially on non-domestic assistance work does not mean that Uniting should reasonably have done so. As Ms Semmens explained, Uniting is a different business with a narrower client base and different requirements from those of Guardian. Ms Gardiner-Smith did not dispute Uniting’s conclusion that she could not perform domestic assistance work. Indeed, it was her advice to Uniting of her inability to do this work that led to the report of Dr Barton, which was the medical evidence on which Uniting based its final conclusions. Ms Gardiner-Smith said in her evidence that she disagreed with aspects of Dr Barton’s report, however she did not seek to lead any alternative medical evidence, such as a report from another doctor containing different conclusions. And she did not dispute Uniting’s conclusion that she could not perform domestic assistance work because this was also her conclusion.

1. Ms Gardiner-Smith said that it was unfair to dismiss her because she could do most aspects of her job. I do not accept this. She could do some aspects of her job. But she could not do the domestic assistance component of her job, which amounted to the bulk of the work. Ms Gardiner-Smith said that she was a person who had compassion, empathy and experience, and that she would have continued to be an asset to Uniting. I accept that Ms Gardiner-Smith had numerous positive attributes. But her job entailed domestic assistance work that made up 80% of her duties. These were inherent requirements of a home care worker with Uniting, and she could not perform them. Ms Gardiner-Smith said that Uniting discriminated against her because of her medical condition. I disagree. It dismissed her because she could not meet the requirements of the role. I do not consider that it would have been reasonable for Uniting to roster Ms Gardiner-Smith only on non-domestic assistance work; for Uniting, this would entail an inefficient and unfair segmentation of labour.

1. As to the other mandatory considerations in s 387, it is clear that Ms Gardiner-Smith was both notified of the valid reason for dismissal and given an opportunity to respond to it (ss 387(b) and (c)). I find that Uniting did not unreasonably refuse to allow Ms Gardiner-Smith to have a support person present to assist at discussions relating to dismissal (s 387(d)). Ms Gardiner-Smith said that she requested that a support person be allowed to attend the meeting of 22 August 2024, and that Uniting did not facilitate this and proceeded instead to conduct the meeting. It seems that the support person was not available at the time. In my view, this was not a meeting to discuss the dismissal, but if it was, and if Uniting’s response amounted to a refusal, then I would attribute this little weight. The dismissal did not relate to performance, therefore the question of whether Ms Gardiner-Smith received warnings as contemplated by s 387(e) is not relevant. Neither s 387(f) nor s 387(g) is relevant because Uniting is a large employer.

1. As to s 387(h), I have taken into account that Ms Gardiner-Smith was unable to undertake the domestic assistance work for over three months. Uniting did not act hastily to end the employment relationship but sought to understand and assess the extent of Ms Gardiner-Smith’s capacity to work as a home care worker. I also take into account that, although over this period Ms Gardiner-Smith did not perform any work, she was nevertheless paid her average weekly wages. As a casual, she had no entitlement to paid leave. She was also paid 2 weeks of pay in reference to termination of employment. Again, as a casual employee, she was not entitled to notice of termination. Ms Gardiner-Smith said that prior to her commencement of employment with Uniting, she had been told that she would be employed on a permanent full-time or part-time basis, but instead she was engaged as a casual. But the time to dispute this, if there was any basis to do so, was in June 2022. In my view, Uniting acted fairly in deciding to terminate the employment of Ms Gardiner-Smith. There was a thorough examination of her capacity, a fair process, and a decision that was based on a valid and substantiated reason related to capacity. The discretionary payments that Uniting provided to Ms Gardiner-Smith over the last 4 months of her employment and on termination were in my view generous.

1. I conclude that the dismissal of Ms Gardiner-Smith was not harsh, unjust or unreasonable. It was not unfair. The application is dismissed.

DEPUTY PRESIDENT

Appearances:

S. Gardiner-Smith for herself
T. Semmens for Uniting AgeWell Limited

Hearing details:

2024
Melbourne
5 December

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