Shinayd Ferre v Jasmine Care Pty Ltd
[2023] FWC 2648
•16 OCTOBER 2023
| [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 recorded a phone conversation with Mr Macleod where she asks why she had been dismissed, to which Mr Macleod responded that she had not been dismissed, but he did not feel confirmed in the Applicant’s willingness to comply with the business policies and procedures to complete shift notes after each service.
The Applicant submits that she was dismissed and that the removal from multiple Whatsapp group teams on 15 June 2023 including the main chat on 11 July 2023 which further indicated her dismissal.
Mr Macleod stated that this was in error and Ms Ferre was still in two Whatsapp group teams. Mr Macleod states that she was not dismissed and had not been accepting shifts. Mr Macleod states that the Applicant was removed from chats that related to specific patients to maintain their privacy if a Disability Support Worker was not assigned to that patient.
Consideration
Section 365 of the Act requires a person to be dismissed to be eligible to make a General Protections application involving dismissal.
Section 386(1) of the Act relevantly provides that 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.
The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli outlined the relevant authorities with respect to what it means for an employee’s to be terminated at the initiative of the employer.[1] In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.[2]
While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held that intention.[3] It is sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.[4]
All the circumstances – including the conduct of both the employer and employee – must be examined.[5] In other words, it must be shown that “the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”[6]
In Pawel v Australian Industrial Relations Commission,[7] the Full Bench noted:
“Mere “causation” or “motivation” will not satisfy the requirement that the termination be at the initiative of the employer.”
In consideration of the evidence provided before me, I find that the Applicant was not dismissed on the basis that the Respondent was still willing to provide the Applicant shifts. The Applicant was not offered shifts on the basis that she stated to the Respondent that she would not be accepting shifts until she had a response regarding this matter from a judicial body.
This was confirmed on the phone call on 13 June 2023 with Mr Macleod stating that the Applicant was not dismissed. Furthermore, the Applicant was on two Whatsapp teams at the date of the Hearing indicating that the Respondent did not terminate the Applicant’s employment.
The Full Bench decision of City of Sydney RSL v Mrs Roxana Balgowan [2018] FWCFB 5 at [24] and [27] states:
“The general contractual characteristics of casual employment is that a person who works over an extended period of time as a casual employee will be engaged under a series of separate contracts of employment on each occasion a person undertakes work, however they will not be engaged under a single continuous contract of employment.”
It is difficult to see how this common law concept of repudiation has any work to do in relation to casual employees. At common law a casual employee’s contract of employment ceases at the end of each engagement. An employer of a causal employee does not repudiate that contract when it fails to offer another shift.”
The failure to offer the Applicant another shift is not an instance of termination at the initiative of the employer. The requirement for the Applicant to complete the shift notes after every shift, especially where she has a duty of care to her patients appeared to be a lawful and reasonable request. The Respondent would offer the Applicant her shifts once she had satisfied the Respondent’s requirements. This was not an indication of termination at the initiative of the employer.
Conclusion
The Applicant was not dismissed in accordance with s.386(1) of the Act. The objection is upheld and the application is dismissed. I Order accordingly.
DEPUTY PRESIDENT
Appearances:
S. Ferre for the Applicant
E. Macleod for the Respondent
Hearing details:
12 September 2023.
Brisbane.
Hearing via Microsoft Teams.
[1] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941.
[2] Ibid.
[3] Ibid; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O’Meara v Stanley Works Pty Ltd[2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.
[4] Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941 at [31].
[5] Whirisky v DivaT Home Care[2021] FWC 650at [77].
[6] Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 and Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941 at [28].
[7] (1999) FCA 1660 at 58 (Pawel J).
Printed by authority of the Commonwealth Government Printer
<PR767133>
0
1
0