Susan Grant v Bene Aged Care

[2015] FWC 3401

[2015] FWC 3401

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Susan Grant
v
Bene Aged Care
(U2015/7150)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 19 MAY 2015

Application for relief from unfair dismissal.

[1] Ms Susan Grant filed an unfair dismissal application in which she named Bene Aged Care as her employer. She said she commenced employment with Bene Aged Care in May 2005 and was dismissed on 16 March 2015.

[2] In Ms Grant’s application, she advised that she had been employed by Woodville Nursing Home from approximately May 2005. During her employment she suffered work related injuries. She was advised in writing on 16 March 2015 that Bene Aged Care was purchasing Woodville Nursing Home and that ownership would transfer on 1 April 2015. She was advised that Bene Aged Care may contact her about possible employment but that her employment with Woodville Nursing Home would end on 31 March 2015.

[3] On 25 March 2015, Bene Aged Care wrote to Ms Grant and advised her that it would not be offering her employment.

[4] On 1 May 2015, I caused an email to be sent to Ms Grant and Bene Aged Care in which I directed Ms Grant file submissions and evidence to support her contention that she was employed by Bene Aged Care or was dismissed by Bene Aged Care. Submissions were filed in accordance with this direction.

[5] On 13 May 2015, I caused a further email to be sent Ms Grant advising that she had not addressed the matters raised in my email of 1 May 2015. I advised that I had formed the preliminary view that the Fair Work Commission did not have the jurisdiction to hear Ms Grant’s application. I advised that I had formed the view that as there were no disputed facts it was not necessary to have a hearing/conference. I advised that I proposed to deal with the matter on the basis of the material before me. I invited Ms Grant to file any further submissions by noon on 18 May 2015. No further material was filed.

[6] Submissions were filed that stated that Bene Aged Care had an obligation on the transfer of business from Woodville Nursing Home to employ Ms Grant because she had a compensable injury under the Workers Rehabilitation and Compensation Act 1986 (SA) (the Act).

[7] Section 58B of the Act requires, it was submitted, an employer to provide suitable employment to an employee who has suffered an incapacity for work due to a compensable disability, until the employee has regained some capacity for work. It was submitted that Ms Grant is able to perform work and therefore Bene Aged Care has an obligation under the Act to provide her work. It was submitted that even if a worker had been terminated there was an obligation to re-employ them if suitable duties exist.

[8] It was said that Bene Aged Care was joined to the unfair dismissal application given its obligation to provide Ms Grant with suitable employment.

[9] The Commission is required to hold a hearing/conference if there are disputed facts. In this case there are no disputed facts and I have decided to determine the application on the material before me.

[10] The starting point for the Commission’s jurisdiction to determine if a person has been unfairly dismissed is a finding that the person is an employee who has completed a minimum period of employment.

[11] In this case, the uncontested evidence is that Ms Grant was not offered employment with Bene Aged Care.

[12] Whatever rights Ms Grant may have under the Act and whatever obligations Bene Aged Care may have towards Ms Grant, they do not act to make Ms Grant an employee of Bene Aged Care.

[13] If as was submitted, Bene Aged Care is an associated entity of Woodville Nursing Home and if the Commission finds the termination of Ms Grant’s employment by Woodville Nursing Home was unfair and if the Commission decides to reinstate Ms Grant the Commission is able to consider reinstatement to an associated entity. 1

[14] As Ms Grant was not an employee of Bene Aged Care, her unfair dismissal claim cannot succeed. An order dismissing Ms Grant’s application will issue with this decision.

DEPUTY PRESIDENT

 1   S.391(1A)

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