Shinayd Ferre v Jasmine Care Pty Ltd - [2023] FWC 2648

[2023] FWC 2648

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Shinayd Ferre
v

Jasmine Care Pty Ltd

(C2023/3558)

DEPUTY PRESIDENT LAKE

BRISBANE, 16 OCTOBER 2023

Application to deal with contraventions involving dismissal – jurisdictional objection – applicant not dismissed – jurisdictional objection upheld – application dismissed.

Ms Shinayd Ferre (the Applicant) lodged a general protections application involving dismissal to the Fair Work Commission (the Commission) on 19 June 2023. The Applicant claimed that adverse action was taken against her by Jasmine Care Pty Ltd (the Respondent) under s.340 of the Fair Work Act 2009 (Cth) (the Act). The Respondent raised a jurisdictional objection that the Applicant was not dismissed.

For the Applicant to be eligible to make a claim under s.365 of the Act, the Applicant will need to establish that she was dismissed in accordance with the definition in s.386 of the Act.

Background

The Applicant commenced employment with the Respondent on 3 January 2023, as a Mental Health Support Worker. The Applicant was engaged on a casual basis.

The Applicant was informed by Mr Ethan Macleod (Operations and Business Development Manager) on 29 May 2023 that her shift notes needed to be completed after every shift. The Applicant had failed to complete her shift notes in a timely manner. The Applicant was informed by Mr Macleod that she was required to complete her notes in order to have evidence of the services provided and meet contractual obligations. The Applicant was further informed that she would not be paid for shift notes that were not completed.

The Applicant contended that after a couple of instances of failing to complete patient notes in a timely manner, she was taken off the roster. The Applicant receives shifts through an application called Brevity.

On 30 May 2023, the Applicant reached out to Mr Macleod asking that half of her shifts had disappeared including the meeting on this date. The Respondent submitted that the Applicant continued to be offered shifts after this meeting and that she was given 48 hours’ notice that she would not be required to complete the scheduled services on 1 June 2023.

Ms Linda Stephens who was responsible for the rostering had followed up with the Applicant stating that they would be happy to put shifts back on her roster if she had complied with what was asked by the Respondent.

Ms Stephens had followed up with the Applicant on 6 June 2023 if the Applicant had made up her mind regarding her shifts. The Applicant stated that she was “choosing to hold off with responding until [she’s] received correspondence from the relevant judicial bodies.” The Applicant further stated that she would not accept a shift until she had received the information she required on 12 June 2023.

On 13 June 2023, the Applicant sent an Whatsapp message to Mr Macleod stating, ‘Would you please be able to put in writing why I have been dismissed?’. On the same day, the Applicant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWC 2648
Decision Date: 16 OCTOBER 2023

CaseChat Overview and Summary

In the Fair Work Commission, Ms. Shinayd Ferre brought a general protections application against Jasmine Care Pty Ltd, alleging that she was dismissed in contravention of section 340 of the Fair Work Act 2009 (Cth). The Commission was required to determine whether the Applicant had been dismissed within the meaning of section 386 of the Act. The Respondent raised a jurisdictional objection, arguing that the Applicant had not been dismissed, which necessitated the Court to first decide if the Applicant was eligible to make such an application under section 365 of the Act.

The court examined whether the Applicant’s employment had been terminated on the employer’s initiative or if she had been forced to resign due to employer conduct. The Applicant had been a casual employee, and the Court considered the Full Bench decision in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli, which outlined the legal criteria for employer-initiated termination. The Applicant needed to show that the Respondent’s actions would, on any reasonable view, bring the employment relationship to an end. The court found that the Applicant had not been dismissed as the Respondent continued to offer shifts to the Applicant and her removal from certain WhatsApp groups was an error. Moreover, the Applicant had stated that she would not accept shifts until she received a response from judicial bodies, indicating that her decision not to accept shifts was voluntary.

Based on the evidence presented, the Deputy President concluded that the Applicant had not been dismissed under section 386(1) of the Act. The Respondent’s actions did not amount to a termination of the employment relationship initiated by the employer. Consequently, the jurisdictional objection was upheld, and the application was dismissed. The Deputy President ordered that the application be dismissed.

Orders