Tammie Kristie Adams v Mcmah Pty Ltd t/a Men at Work Labour Hire
[2024] FWC 11
•3 JANUARY 2024
| [2024] FWC 11 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Tammie Kristie Adams
v
Mcmah Pty Ltd t/a Men at Work Labour Hire
(C2023/5461)
| COMMISSIONER HUNT | BRISBANE, 3 JANUARY 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether employee was dismissed at employer’s initiative – dismissal not at employer’s initiative – application dismissed.
On 7 September 2023, Ms Tammie Kristie Adams made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute involving dismissal. Ms Adams stated that she had been dismissed from her employment with Mcmah Pty Ltd trading as Men at Work Labour Hire (the Respondent) on 5 September 2023.
In its Form F8A – Response to general protections application, the Respondent raised a jurisdictional objection to the application on the grounds that Ms Adams was not terminated on the employer’s initiative pursuant to s.386(1) of the Act. The Respondent is a labour hire company, providing labour hire employees to its clients.
Following the Full Court of the Federal Court decision of Coles Supply Chain Pty Ltd v Milford,[1] the Commission must determine whether Ms Adams was dismissed before it can exercise powers under s.368 of the Act to deal with a dispute about whether Ms Adams was dismissed in contravention of the general protections provision.
Legislative provisions
Section 365 of the Act provides as follows:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a)a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
The meaning of “dismissed” is provided at s.386 of the Act:
“386 Meaning of dismissed
(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.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
This decision deals only with the jurisdictional objection to be determined; that is, was Ms Adams dismissed from her employment?
Hearing
The matter was listed for hearing on 28 November 2023 by video using Microsoft Teams. Ms Adams represented herself. The Respondent was represented by Ms Janine Wilson, Payroll Officer of the Respondent. Ms Adams, Ms Wilson and Ms Wendy Klein, Job Placement provided witness statements and were cross-examined. Ms Natalie McIntyre, who is responsible for workplace health and safety for the Respondent provided a witness statement and was not required for cross-examination. Mr Gary Warren, Director of Suncoast Scaffolding Pty Ltd provided a witness statement and was not required for cross-examination.
Evidence of Ms Adams
Ms Adams commenced a casual assignment with the Respondent performing scaffolding work for Suncoast Scaffolding Pty Ltd (Suncoast) in July 2023. Mr Warren supervised her work.
Ms Adams was, at the time, and is, presently homeless. She mostly sleeps in her vehicle, or sometimes is able to sleep at friends’ homes.
Ms Adams mostly dealt with Ms Klein as her contact with the Respondent.
Between 27 August 2023 and 4 September 2023, Ms Adams was not able to perform work at Suncoast as she was suffering from COVID-19. Ms Klein and Mr Warren were aware of her unavailability due to suffering from COVID-19. Ms Adams produced a medical certificate dated 30 August 2023 declaring her unfit for work between 27 August 2023 to 3 September 2023, inclusive.
On the morning of 2 September 2023, Ms Adams presented to the Emergency Department of Sunshine Coast University Hospital. The discharge letter states the following:
“Dear Dr,
ADAMS, TAMMIE KRISTIE presented to the Emergency Department at SUNSHINE COAST UNITY HOSPITAL on the 02-Sep-2023 09:42:21.
The presenting problem was Back pain.
The diagnosis was 1:Musculoskeletal pain.
Comments: Thank you for your ongoing care of Tammie who presented to ED with a 2-3 month history of bilateral thoracic back pain on a background on recent COVID illness and currently Day 3 POABs for presumed LRTI. She examined well with normal obs, her CXR was normal, urinalysis was normal and bloods incl. FBC, Chem20, Lipase were entirely NAD throughout.
Her diagnosis is likely MSK pain and she has been discharged home for conservative cares. She also reports some possible carotenosis so we have advised she discontinue her carotenoid OTC supplement and have provided dietary advice re. vegetarian diet. I would appreciate your review of Tammie if her symptoms continue.
Regards,
Clinician Signature: 02-Sep-2023 12:29:14 ”
On 5 September 2023, Ms Adams resumed work at Suncoast and sent a text message to Mr Warren, attaching the discharge letter. The following text messages were exchanged:
Ms Adams:bit late but here is my medical certificate and I have a follow up with the hospital as well.
Mr Warren: OK you need to take this up with Men at Work I have forwarded documents.
Ms Adams: Thanks was just to show why I wasn’t at work.
Mr Warren: Get Tammie to ring me ASAP pls
Ring now
Ms Klein had received the discharge letter and was also trying to urgently reach Ms Adams. They spoke at around midday on the phone. Ms Adams’ account of the telephone call is follows:
Ms Adams: Hi Wendy, is everything okay?
Ms Klein:You are being advised to leave the job site, you have a document that states something about a problem with your back, leave now.
[Ms Adams – I hesitated as I was confused]
Ms Klein:Tammie, you are no longer with us at Men at Work. Leave the jobsite now Tammie.
[This upset me. I was shaking. Wendy repeatedly reiterated words to the effect of “you’re no more with Men at Work, get off the jobsite.”
I was begging to stay, and asked Wendy if there was a way to get back with Men @ Work and stay with Suncoast Scaffold. I asked if I could get a medical certificate and come back to work.]
Ms Klein: Yes.
Ms Adams left the job site at around 12:15pm. She called the Clontarf Bridge Medical Centre and arranged a telephone consultation within one hour. She attended a telehealth appointment with Dr Andrew Woollons and was issued with a medical certificate as follows:
“Medical Certificate
This is to certify that:
Miss Tammie Kristie Adams consulted me on 05/09/2023.
Fit for normal duties at work.
Yours sincerely
Dr Andrew Woollons
Bsc, MBChB, FRACGP
[provider number]”
Ms Adams then telephoned Ms Klein to inform her she had a medical clearance. She sent it by email to the Respondent and telephoned again, asking if she could return to work. Ms Klein said yes.
Ms Klein then telephoned Ms Adams a short while later to state that the medical certificate makes no reference to the back pain being caused by Ms Adams’ ‘boobs’. Ms Adams’ evidence is that Ms Klein said words to the effect, “This certificate does not say anything about your boobs. It has to be fixed to say you have something wrong with your back and breasts.”
In oral evidence given during the hearing, I had much difficulty understanding from Ms Adams if she had made any reference to Ms Klein to having had a sore back on account of her posture, structure, or size of her breasts. Ms Adams repeatedly denied she had said anything of the sort, simply repeating that she is homeless, is a ‘bigger girl’ and sleeps in her car. After repeated questioning from me, Ms Adams finally agreed she had made a reference to Ms Klein that she had experienced some back pain on account of the size of her breasts.
Ms Adams was uncomfortable having any reference to the size of her breasts on a medical certificate, however she agreed to contact the Clontarf Bridge Medical Centre and ask for the medical certificate to be changed. Ms Klein said to her if she could get it changed, she could get her cleared for work.
Ms Adams contacted the medical centre, where the receptionist informed her the medical certificate met the legal requirements to return to work and said employers were always trying to have more specific information on a medical certificate.
Ms Adams then telephoned Ms Klein to inform her the medical certificate could not be changed. Ms Klein said she was raising her voice to her, to which Ms Adams replied that is how she speaks. Ms Klein yelled at her, “But Tammie, did you actually go into the doctors?” She repeated this three or four times. Ms Adams begged to be allowed to return to work. Ms Klein ended the call.
Ms Adams went to call again but decided to hang up before the call could be connected. Ms Adams called the Commission for advice. Her evidence is that she was informed she should call the Respondent to ask why she had been refused work if she had a medical clearance.
Ms Adams stated that she was not experiencing back pain on 5 September 2023 so did not think the medical certificate needed to include a reference why she otherwise experiences back pain.
Ms Adams agreed she telephoned the Respondent at 4:44pm on 5 September 2023 and left a message on the voicemail system.
In her reply witness statement, Ms Adams said she apologised to Ms Klein in one of the earlier telephone conversations. She denied ever abusing Ms Klein.
Ms Adams’ contention is that if she provided a medical certificate stating she was fit for normal duties, she should have been offered work. Ms Adams considered that if the medical certificate was not sufficient, the Respondent should have sent her for an independent medical examination, which she would have willingly undertaken.
In oral evidence giving during the hearing, Ms Adams agreed that during the telephone call at 4:44pm that day, she was a bit ‘shaky’. She said she would not agree she was abusive.
She stated that on account of being homeless, she has a twitch in her back. She told the hospital on 2 September 2023 that she had been experiencing it for 2-3 months. She agreed she did not inform the Respondent at any time that she had been experiencing back pain.
Ms Adams’ evidence is that during the telephone calls on 5 September 2023, Ms Klein never informed her that she needed to be physically examined by a doctor before the Respondent would accept a medical certificate from her. If she knew she needed to be physically examined, she would have organised that to occur.
Evidence of Ms Wilson
Ms Wilson is employed by the Respondent in the role of Payroll Officer.
On 5 September 2023, Ms Wilson received a text message from Mr Warren, forwarding the discharge letter replicated at [12]. Mr Warren requested the Respondent contact Ms Adams. Ms Wilson forwarded the discharge letter to Ms Klein.
Ms Klein checked Ms Adams’ duty of disclosure form completed by Ms Adams on 18 July 2023 when she commenced with the Respondent. It made no mention of any pre-existing back pain. The only reference to a pre-existing illness or injury was to dermatitis and eczema.
Ms Wilson directed Ms Klein to contact Mr Warren to ascertain the physicality of the work being performed. Ms Wilson is aware that Ms Klein contacted Mr Warren, who described the work as being detrimental to anyone with back issues.
Ms Wilson is aware that Ms Klein sought advice from Ms McIntyre. Ms McIntyre advised to remove Ms Adams from the jobsite until a medical clearance for her back was obtained. Mr Warren was informed that Ms Adams would be removed from the site until a clearance was obtained.
Ms Wilson is aware that Ms Klein telephoned Ms Adams to advise a medical certificate clearing her for the duties she was performing was required. Once that is obtained, she could return to that job site.
At 3:18pm on 5 September 2023, Ms Wilson received the medical certificate by email. Ms Wilson observed that Ms Adams had not been physically examined by a doctor relating to her ongoing back pain. She determined that Ms McIntyre should again be consulted.
Ms Wilson heard Ms Klein make the 3:31pm telephone call to Ms Adams, informing her that due to the work being scaffolding work, it was important that she not be at risk of being injured, and she’d need a medical clearance confirming that given she had a back injury, she was safe to perform the work. She heard Ms Klein inform Ms Adams she could perform work elsewhere until a medical clearance for her back could be obtained.
Ms Wilson overheard the telephone call between Ms Klein and Ms Adams at 3:54pm. She could hear Ms Adams raising her voice. Ms Klein then put the call on speaker phone. Ms Wilson’s evidence is that Ms Adams was aggressive and talking over the top of Ms Klein. Ms Klein repeatedly questioned if she had been physically examined by the doctor. Ms Adams loudly repeated that she had been informed by the doctor and the receptionist that the medical certificate was a lawful document, and nothing further needed to be provided to the Respondent. She stated that this continued for a few minutes, with Ms Adams being aggressive. Ms Klein then terminated the call.
Ms Wilson’s evidence is that at no time did Ms Klein inform Ms Adams that she was no longer with “us” or with the Respondent.
It is Ms Wilson’s contention that Ms Adams was removed from the casual assignment only, and other work could be provided to her until she obtained a medical certificate relevant to her back condition.
On 6 September 2023, Ms Wilson played the voicemail message left by Ms Adams at 4:44pm on 5 September 2023. The message was to the effect that Ms Adams had contacted ‘Fair Work’ and been told the Respondent cannot dismiss her as she had provided the Respondent with a legal document. She requested to be called immediately.
Ms Wilson’s evidence is that due to Ms Adams being aggressive, she ceased all communication with her. She described it as company policy not to engage when confronted with aggressive behaviour.
The following notes were made in Ms Adams’ file relevant to the phone calls late on 5 September 2023 and the voicemail message on 6 September 2023; one made by Ms Klein and the second paragraph made by Ms Wilson:
“Tammie rang back stating that it was a legal document that the Dr provided. No other details are required by law. I ask 3 times if she physically saw a Dr & she would not answer me – kept saying the certificate was legal. She started to rant – so I hung up. **Spoke to Nat re same. = Finish her up from Scaffold job = Duty of care.”
“6/9 found message left on phone from tammie left at 4:45pm on the 5th could not quite understand what was being said as she was yelling into the phone about fair work and nothing else is required. demanded we call her back and hung up.”
Ms Wilson stated that Ms Adams has not further contacted the Respondent for work. She stated that it is Ms Adams’ responsibility to contact the Respondent and advise her availability for work.
In evidence given during the hearing, Ms Wilson stated that Ms Klein had informed Ms Adams that she needed to be physically examined. I noted that such a statement was not included in Ms Wilson’s witness statement. She agreed it wasn’t in her witness statement, but Ms Klein had said that.
Ms Wilson noted that she did not ever hear Ms Adams say that her back pain was caused by her big boobs; rather, Ms Klein had informed her that was Ms Adams’ explanation for experiencing the pain.
In evidence given during the hearing, she recalled the phone message left by Ms Adams to include a request, “You call me, you call me now.”
Ms Wilson repeated that it is against company policy to engage with somebody who is aggressive or confrontational. Her evidence is that if Ms Adams had called on 6 September 2023, she would have spoken to her on the phone. If she was aggressive, the Respondent would have hung up on her. If she wasn’t aggressive, she would have continued the conversation.
Ms Wilson stated that Ms Adams would need to be physically seen by a doctor with a clearance relevant to her back and the duties to be performed to be allowed to come back to do scaffolding work.
Evidence of Ms Klein
Ms Klein is employed by the Respondent in the role of Job Placement.
Ms Adams registered with the Respondent for casual work on 18 July 2023. She advised that she was homeless and desperately wanted to work. She said although she didn’t have any industry tickets, she could put her hand to any type of physical work. Ms Adams stated that she was a constant talker but also a hard worker.
Ms Adams was provided with all relevant paperwork, including a “Notice to New Candidates” and “Candidate Acknowledgement”. Other relevant information included:
“AFTER REGISTERING, WHAT HAPPENS NOW?
> Keep in regular contact, ideally phone the office once a week or at the end of a job, so we know when you are available. We are open Monday - Friday 7.30am - 4.00pm
>If we don’t hear from you after 2 months, we assume you no longer require our
services and your registration will become inactive.
> Do not forget, if any of your contact details change, especially phone numbers, make sure you let us know. We need personal details in writing.
HOW WE FILL THE JOBS WE GET?
> Our clients contact us and tell us what position they have available, the type of skills
that are required and how long the position will go for.
>We then check our “Call up Sheet” to see who has contacted us recently.
>When we find someone suitable, we then contact them to see if the are available. We
tell them who the job is for, when the job starts, what it entails and the hourly rate of
pay.
> The jobs can vary from on-going to casual work. The pay rates vary (dependent upon the applicable award), as well as the type of work involved and the location.
> As soon as you know when a job will finish, phone us. This gives us time to try and find you more work.
> If for any reason we give you work and you can’t get there, you MUST contact either your supervisor or us ASAP. We consider this a common courtesy which demonstrates good work ethics. An after-hours phone number is always available on our answering machine message. Don’t just think “she’ll be right”. Contact us, otherwise it may jeopardise your chances of future work.
> You MUST NOT approach the client directly regarding further work.”
Ms Klein learned on 28 August 2023 that Ms Adams had COVID-19. Ms Adams didn’t directly inform the Respondent; it was Mr Warren who informed the Respondent that Ms Adams couldn’t attend for work. Ms Adams did not provide the medical certificate referred to at [11] to the Respondent.
On 5 September 2023, Mr Warren’s message was read by Ms Klein. Upon learning of the hospital discharge letter, Ms Klein checked Ms Adams’ paperwork and noted there was no disclosure of any back problems. If Ms Adams had have disclosed a back injury, Ms Klein would not have had her performing scaffolding work as it is a physically demanding job.
Ms Klein spoke with Mr Warren. He said to her that it was up to the Respondent if she worked, but bearing in mind, further injury could result in a workers’ compensation claim.
Ms Klein then telephoned Ms McIntyre who informed her the Respondent would need a medical clearance regarding her back pain. Ms Klein telephoned Mr Warren and informed him the Respondent would be removing Ms Adams from the job until the Respondent received a medical clearance regarding her back pain.
At 11:55am, Ms Klein rang Ms Adams and left her a message and sent her a text message.
At 12:13pm, Ms Klein rang Mr Warren and asked him to send Ms Adams off site as soon as possible and to call her.
At 12:25pm, Ms Adams telephoned Ms Klein saying she had missed calls. She asked if everything was OK. Ms Klein instructed her to leave the site immediately because she had presented at the emergency department with back pain and due to the scope of work she was performing with scaffolding work, it would be detrimental to her back for her to continue working. Ms Adams replied, “I’m not going to quit work”, repeating this several times.
Ms Adams stated that she went to the emergency department because of her COVID-19 symptoms, but Ms Klein responded that the discharge letter notes that she presented with 2-3 months bilateral thoracic back pain. Ms Adams stated that her back pain is caused by her big boobs. Ms Klein was speechless when Ms Adams said this to her.
Ms Klein’s evidence is that Ms Adams was not happy with being removed from the site. Ms Klein informed her she would need to obtain a medical clearance stating that she no longer has any back issues. Ms Klein informed her that even though the Respondent was removing her from the scaffolding work, they would endeavour to find her other work that is not so strenuous. Ms Adams advised that she would leave the site immediately and get a certificate. She was provided with an email address to send the certificate to.
At 3:18pm, the medical certificate was received. Ms Klein spoke to Ms McIntyre, who stated that if Ms Adams could not produce a medical certificate from a physical consultation, clearing her free from back issues, if a certificate was produced declaring that her back issues are not caused by work but are a postural abnormality, that would be accepted by the Respondent and kept confidential to the Respondent.
At 3:31pm, Ms Klein rang Ms Adams and repeated what Ms McIntyre had said. Ms Adams kept talking loudly over the top of Ms Klein, causing her to continuously repeat herself. Ms Adams said she would contact the doctor to change the wording on her certificate and email it.
At 3:54pm, Ms Adams rang the office. Due to her aggressive tone and raised voice, Ms Klein placed the call on speaker. Ms Adams stated that the doctor and medical receptionist had advised that it was a legal document that had been provided and no other details are required by law, and that the Respondent had no right to request any more information.
Ms Klein asked three times if Ms Adams had been physically examined by the doctor. Ms Adams refused to answer her, repeatedly saying the certificate was legal.
Ms Klein stated that due to the hospital discharge letter clearly stating a back issue, she could not see how she could be cleared fit for work having had only a telephone consultation. Ms Adams spoke over the top of Ms Klein. In accordance with the Respondent’s policy, Ms Klein terminated the telephone call.
Ms Klein then telephoned Ms McIntyre to discuss the call with Ms Adams. Ms McIntyre advised Ms Klein not to place Ms Adams in scaffolding work and try and find more suitable jobs for her. Ms Klein made notes in Ms Adams’ file. She was prepared to await the detailed medical clearance.
Ms Klein denied ever saying to Ms Adams that she was “no longer with us”. She said she never informed her she was dismissed with the Respondent.
Ms Adams has not contacted the Respondent to seek other work and cannot be placed in scaffolding work on account of the hospital discharge letter.
In oral evidence given during the hearing, Ms Klein stated that she did not recall saying to Ms Adams she needed to be physically examined. I informed her that Ms Wilson had given evidence that Ms Klein had, in fact stated that to Ms Adams. Ms Klein does not believe that she used those words to Ms Adams.
Ms Klein stated that she wanted a medical clearance declaring that she did not have back injuries. She considered that scaffolding work is above normal duties as it is very physical.
She does not know if the Respondent has any relationship with independent medical examiners. I permitted Ms Wilson to answer if the Respondent has any relationship with independent medical examiners; she said it does not, and the Respondent’s candidate usually are examined by their own doctor.
Ms Klein did not know people could obtain a medical certificate over the telephone. She did not know how Telehealth operates.
Ms Klein did not telephone Ms Adams on 6 September 2023 as Ms Klein was in hospital for the day. She did not call her on any other date as she considered she had thereafter passed Ms Adams to Ms Wilson and Ms McIntyre to deal with.
Ms Klein does not consider she ever said that if Ms Adams provided a medical certificate, she’d be cleared for the scaffolding work. She said that she would need to discuss it with Ms McIntyre.
Ms Klein’s evidence is that normally candidates call the Respondent to inform them of their availability for work. Ms Adams could not have been placed in the scaffolding work until she provided a medical clearance certifying her fit for that kind of work and no longer has back pain.
Evidence of Ms McIntyre
Ms McIntyre is employed by the Respondent performing workplace health and safety duties.
At 11.48am on 5 September 2023, Ms McIntyre received a phone call from Ms Klein advising that the Respondent had received a medical certificate from Mr Warren at Suncoast for Ms Adams. The medical certificate stated that Ms Adams had presented to Sunshine Coast University Hospital with a 2-3-month history of back pain.
Ms Klein confirmed that she had spoken to Mr Warren at Suncoast, who advised that he felt the physical issues with her back, as stated on her medical certificate, could be detrimental to her health, as the duties she was performing on the job could exacerbate her health issues.
Ms McIntyre advised Ms Klein that Ms Adams would need to stop work on that current jobsite due to the nature of the work and the Respondent’s duty of care to both its employees and clients. She informed her that Ms Adams would need to provide a medical certificate clearing her for full duties with respect to her back before the Respondent could return her to that job site.
At 3:25pm, Ms McIntyre received a call from Ms Klein advising she had received a
medical certificate at [15], noting it had been a telephone consultation. After confirming that Ms Adams had not been physically examined by a doctor regarding her back issues and that she was now informing Ms Klein that her back issues were caused by her ‘big boobs’, Ms McIntyre suggested that Ms Klein obtain confirmation from Ms Adams in writing that her back pain was not caused by any physical injury but by a postural abnormality as she had stated. This would remain confidential on the Respondent’s file.
At 3:59pm, Ms Klein informed Ms McIntyre that the medical certificate was not able to be changed. Ms Klein reported that Ms Adams spoke over the top of her. Ms McIntyre repeated the Respondent’s duty of care to Ms Klein and advised the Respondent would not be able to return Ms Adams to scaffolding work until the Respondent had a suitable clearance in respect of her back issues. If more suitable work came in, she could be offered this.
Evidence of Mr Warren
Mr Warren provided the following witness statement:
“This letter is to verify Tammy Adams was employed via Men At Work Labour Hire while working at Suncoast Scaffold Pty Ltd.
Tammy presented with Covid Symptoms and had to Quarantine.
Upon return Tammy sent me a Doctors Certificate which stated she had physical issues with her back.
I forwarded the Certificate to Men At Work and stated I felt the physical issues were not conducive to the work we required Tammy to perform and to her detriment.”
Consideration
Section 386 of the Act provides that a person has been dismissed in several circumstances, including when their “employment” has been “terminated on the employer’s initiative”. Such a situation refers to a termination that is brought about by an employer and which is not agreed to by the employee.[2]
When analysing whether there has been a “termination at the initiative of the employer” for the purpose of s.386(1)(a) of the Act, it is necessary for the analysis to be conducted by reference to termination of the employment relationship. It is not conducted by reference to the termination of the contract of employment in operation immediately before the cessation of the employment.[3]
A “termination at the initiative of the employer” is when two criteria are satisfied:
· the employer’s action “directly and consequentially” results in the termination of employment; and
· had the employer not taken this action, the employee would have remained employed.[4]
For there to be a “termination at the initiative of the employer”, there must be action by the employer that either intends to bring the relationship to an end or has that probable result.
Although applied under the previous Act,[5] the following approach of the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd[6] in my view remains generally apposite to the consideration of s.386(1) of the Act:
“[21] In this Commission the concept have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:
‘[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.’
[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:
‘Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.’
[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether ‘the act of the employer [resulted] directly or consequentially in the termination of the employment.’ Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” (footnotes omitted).
A more recent Full Bench reinforced the relevance of the above approach in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli[7] (Tavassoli) in the following terms:
“[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a “forced” resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the ‘termination at the initiative of the employer’ formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill as follows:
‘1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person’s employment with his or her employer was terminated on the employer’s initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).
1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:
· where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
· where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.’
[34] It is apparent, as was observed in the decision of the Federal Circuit Court (Whelan J) Wilkie v National Storage Operations Pty Ltd, that ‘The wording of s.386(1)(b) of the Act appears to reflect in statutory form the test developed by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No. 1) and summarised by the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd’ (footnotes omitted). The body of pre-FW Act decisions concerning ‘forced’ resignations, including the decisions to which we have earlier referred, has been applied to s.386(1)(b): Bruce v Fingal Glen Pty Ltd (in liq); Ryan v ISS Integrated Facility Services Pty Ltd; Parsons v Pope Nitschke Pty Ltd ATF Pope Nitschke Unit Trust.” (footnotes omitted)
The Full Bench in Tavassoli considered the legal principles pertaining to s.386(1) of the Act. Having examined what it described as “a line of cases concerned with the circumstances in which an ostensible indication of an intention to resign on the part of an employee may not be effective to terminate the employment on the employee’s initiative”,[8] the Full Bench stated:
“[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”
The relevant facts before the Commission are that:
(a) Ms Adams did not inform the Respondent on registration as a candidate on 18 July 2023 that she suffers from any back issues;
(b) Scaffolding work is physically strenuous;
(c) Ms Adams presented to an emergency department on 2 September 2023 and the discharge letter states she presented with 2-3 months of bilateral thoracic back pain; and
(d) Ms Adams had a telehealth medical consultation on 5 September 2023 and was not physically examined.
After extracting relevant evidence from Ms Adams during the hearing, which was a very difficult task on account of what I described to her as hyperactivity, it is evident that when contacted by Ms Klein on 5 September 2023 about the cause of her back pain, Ms Adams did state that she suffers back pain on account of her ‘big boobs’. This, I understand to mean on account of her posture and the weight of her breasts on her frame.
Having so informed Ms Klein of this fact on 5 September 2023, it is understandable that the Respondent was interested in that fact as a reason as to why she had informed the emergency department on 2 September 2023 of her ongoing back issues.
The fact that on 2 September 2023, Ms Adams had reported a sustained period in which she suffered back pain was not a matter that could be simply ignored given how strenuous scaffolding work is.
It was entirely reasonable for the Respondent to require from Ms Adams a medical clearance with respect to the back issues she had reported. What Ms Adams did was obtain a medical certificate, known to the Respondent as to have been a telehealth consultation.
The Respondent was seeking a direct answer as to whether Ms Adams, given her reported back issues, could safely perform strenuous scaffolding work. The Respondent had no idea what Ms Adams had reported to the General Practitioner over the telehealth consultation on 5 September 2023. For all the Respondent knew, Ms Adams had not reported any back issues to the doctor before obtaining a medical certificate. It was, therefore, entirely reasonable that the Respondent require a medical clearance in respect of the back pain issue, not a generic medical certificate. Of course, it might ultimately end up being a medical certificate that is issued, but clearing Ms Adams fit for duties stated within the certificate or with conditions around her back issue.
I am satisfied that Ms Klein did offer to find alternative, less strenuous work for Ms Adams until she could provide an appropriate medical clearance. I am also satisfied that Ms Klein did not specifically inform Ms Adams that she must be physically examined before a medical clearance would be accepted by the Respondent, however it ought to have been understood by Ms Adams given how upset Ms Klein was that Ms Adams had not been physically examined and was refusing to answer Ms Klein’s question on the subject. Ms Klein knew the answer, but Ms Adams was refusing to answer the question put by Ms Klein.
I do not find that Ms Klein informed Ms Adams that she was no longer working with the Respondent. I am satisfied that she was informed that she could no longer work at Suncoast until she was cleared fit, considering her back issues.
Having satisfied myself that in all of the circumstances it was reasonable for the Respondent to require a medical clearance in respect of Ms Adams’ back issues, and informing Ms Adams that the Respondent could find other less-strenuous work in the meantime, I am not satisfied that there was a dismissal of Ms Adams’ employment on 5 September 2023.
Ms Adams was a casual employee of the Respondent, noting the Respondent is a labour hire company. Casual employees are typically referred to as ‘candidates’ as they may accept casual assignments for short or long periods of time.
I am satisfied that Ms Klein was within her rights to terminate the last telephone call on 5 September 2023 on account of Ms Adams’ tone and combativeness. Her evidence that Ms Adams was not behaving appropriately is accepted.
Ms Adams left a message on the Respondent’s voicemail late on 5 September 2023. The voicemail is unable to be located on account of it being wiped after three weeks. I accept Ms Wilson’s evidence that Ms Adams was aggressive and “all over the shop” in the voice message.
It would have been helpful for somebody from the Respondent to have called Ms Adams on 6 September 2023 to see if her manner had improved and she could obtain a medical clearance as required by the Respondent. Ms Klein was not available due to being in hospital. She left Ms Adams for Ms Wilson or Ms McIntyre to deal with if she made further contact.
It was, however, available for Ms Adams to calmly contact the Respondent on 6 September 2023 to make inquiries about what the Respondent specifically required to allow her to be placed in the scaffolding work assignment, or if she could not obtain a medical clearance, as required, other work. She did not do so, and instead completed her application on 6 September 2023 and filed it on 7 September 2023. I consider it was premature and she was, in all likelihood, still a candidate with the Respondent at this time. It was not the Respondent’s practice of contacting candidates each day; the evidence demonstrates that Ms Klein would often text Ms Adams seeking her availability and leave it for Ms Adams to advise her availability for assignments.
Having satisfied myself that no dismissal occurred at the Respondent’s initiative on 5 September 2023, I am further satisfied that the failure of the Respondent to return Ms Adams’ telephone call on 6 September 2023 did not constitute a dismissal at the Respondent’s initiative. Ending a labour hire employee’s relatively short-term casual assignment at one job site on the condition she produce satisfactory evidence to demonstrate capacity to safely perform the job does not make it a dismissal, particularly when I have found that the Respondent offered to Ms Adams an inclination to place her in other less-strenuous casual assignments.
For the sake of clarity, I am not satisfied that it was imperative the Respondent send Ms Adams for an independent medical examination to have her suitability to perform scaffolding work declared. She was a very short-term labour hire employee, and the Respondent had offered to look for other less-strenuous work for her to perform until she could obtain a medical clearance in respect of her back issues. I do not consider it imperative that a labour hire company should be put to such expense for a short-term casual employee who could be found other work. If Ms Adams had comprehended what it was the Respondent was requiring, she could have attended a physical examination, and had a general practitioner declare on a medical clearance whether, in his or her opinion, she could safely perform specific duties. A list of scaffolding duties, confirmed by Mr Warren, could have assisted with seeking a specific answer from a general practitioner, and it is recommended the Respondent, in future, undertake that course of action if it requires specific evidence of capacity of its employees to safely perform relevant work.
I am not satisfied that the Respondent’s direction in requiring Ms Adams to obtain a medical clearance relevant to her back issues directly and consequentially resulted in the termination of employment. The Respondent considered, as at 5, 6 and 7 September 2023 that Ms Adams was an active candidate and the employment relationship was on foot, which I concur was the relevant status at the time the application was made to the Commission.
Conclusion
I am not satisfied that Ms Adams was dismissed by the Respondent within the meaning of s.386(1) of the Act. Accordingly, the Respondent’s jurisdictional objection is upheld, and the application is dismissed.
An order [PR769913] to this effect will be issued.
COMMISSIONER
Appearances:
T Adams appeared for herself.
J Wilson and W Klein for the Respondent.
Hearing details:
2023.
Brisbane.
Video using Microsoft Teams.
28 November.
[1] [2020] FCAFC 152.
[2] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 at [75]; see also Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200.
[3] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 at [75].
[4] Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200.
[5] Workplace Relations Act 1996 (Cth).
[6] [2006] AIRC 496 (PR973462).
[7] [2017] FWCFB 3941.
[8] Ibid at [35].
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