Alannah Bai v CMH Practice Management Pty Ltd [2024] FWC 581

1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Alannah Bai v CMH Practice Management Pty Ltd (U2023/12286) DEPUTY PRESIDENT ROBERTS SYDNEY, 4 MARCH 2024 Application for an unfair dismissal remedy [1] On 9 December 2023 Ms. Alannah Bai (Applicant) filed an application with the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Act) alleging that she had been unfairly dismissed by CMH Practice Management Pty Ltd (Respondent). The Respondent raised two objections to the application. First, they said that the Applicant had not been dismissed by them. Second, the Respondent contended that if the Applicant had been dismissed as she maintained, the application has been made outside the 21-day time limit imposed by s.394(2) and there were no exceptional circumstances justifying an extension of time under s.394(3) of the Act. [2] Directions were made for the filing and serving of material relating to the Respondent’s objection that the application was made out of time. However, having regard the material that has been filed and the evidence that was provided at the hearing, I am satisfied that the parties have had an opportunity to address both of the Respondent’s objections and I will deal with those objections in this decision. Background and Factual Issues [3] The Applicant commenced employment with the Respondent in February 2021. She was engaged as a casual employee in the Respondent's medical practice. During 2023 the Applicant was working some shifts on the weekends, from 3pm on Saturday afternoons with a variable finish time depending on work demands, and from 9am until 1pm on Sundays. The Applicant usually worked these weekend shifts once per month. She also worked other shifts from time to time on an irregular basis. [4] The Applicant’s contract of employment, dated 13 September 2022, provides as follows: 1. Employment 1.1 You will be employed on a casual basis in the position of Patient Services Team Member commencing on 19-09-2022. The terms of this contract shall [2024] FWC 581 DECISION -- 1 of 9 -- [2024] FWC 581 2 apply on each and every occasion that you are engaged by the Employer to perform services, regardless of your position or the duties you perform, unless agrees otherwise in writing. 1.2 You agree that: a) an offer of employment is made by the Employer to you on the basis that the Employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for you; b) you accept the offer on that basis; c) you are an employee as a result of that acceptance; d) the Employer can elect whether or not to offer you work according to its needs; e) you can elect to accept or reject any work offered. 1.3 The Employer may change your title, role, accountability or reporting relationship at any time, where this change would be reasonable. This contract is not intended to give rise to an expectation or intention of an ongoing or continuous employment relationship. 1.4 Your employment is subject to the Health Professionals and Support Services Award, under which your classification is Support Services, however the terms of this award are not incorporated into this contract nor is there any intention to give them any contractual effect. … 3. Hours 3.1 As a casual employee you will not have reasonably predictable or regular hours of work, and you may be required to work at any time of the week including late nights, weekends and public holiday to suit the Employer’s operational requirements. The Employer will notify you when you are required to work from time to time. … 16. Terminations 16.1 As a casual employee, your employment terminates at the end of each engagement and recommences on each new engagement. However, you or the Employer may terminate your employment or any engagement at any time for any reason by giving one hour’s notice of termination, or the payment or forfeiture of one hour’s wages in lieu of notice. 16.2 On termination of your employment, you must immediately return to the Employer all company property that is in your possession, custody or control including but not limited to; all documents, Confidential Information, company property, software, computers, credit cards, keys, vehicles and property leased by the Employer. -- 2 of 9 -- [2024] FWC 581 3 [5] On 22 September 2023 the Applicant wrote to the Respondent and said that she had been in contact with the Fair Work Ombudsman about her role and proper classification under the terms of the Health Professionals and Support Services Award 2020. She said that she believed that she was working at a higher classification level which attracted a higher rate of pay than she was receiving. The Applicant asked the Respondent to be reclassified to the higher classification. [6] On 1 November 2023 the Respondent sent the Applicant an email titled “Roster Changes at CHMC” which was in the following terms: Due to changes in the business, unfortunately we have had to alter several staff rosters across the whole business. At this stage we are no longer able to accommodate a casual shift for you at the mall. Being in our casual staff pool does not change and we encourage you to remain in the casual pool. With Christmas approaching and staff taking annual leave, there may be future shifts available for you. This change will be effective from Monday 13th November. If you have any questions, please do not hesitate to speak to your direct manager Mimi Chattat. [7] On 8 November 2023 the Applicant received a text message from Ms. Chattat, a manager from the Respondent, advising her and other employees that Ms. Chattat was deleting a ‘WhatsApp’ chat group and creating a new group. The group was a means by which the Respondent advised staff of available shift opportunities. A new group was created on 16 November 2023. The Applicant was not included in the new group. [8] There were at least two other means by which the Respondent communicated with its staff members regarding working arrangements. One was the TANDA platform which displayed details of team rosters and the other was email. The Applicant accepted that she has retained access to work emails at all times but did not receive any emails offering available shifts after 1 November 2023. The Applicant said that shifts were not allocated using the TANDA platform. She said it was simply a means of viewing which shift had been allocated to which employees. She said that the WhatsApp group and emails were the main means by which shifts were allocated. [9] The Applicant said that following the Respondent’s email of 1 November 2023 she was not allocated any further shifts during 2023. The Applicant said that the shifts that she had previously worked had been allocated to other people. She said that her regular Sunday shift had been performed by the same casual staff member at the end of November and December 2023. She submitted that she had therefore been “dismissed by stealth”. -- 3 of 9 -- [2024] FWC 581 4 [10] The Respondent denied that the Applicant had been dismissed. They said that there had been a genuine need to restructure the roster system in November 2023 and that this had resulted in a reduction of 90 hours’ worth of rostered work per week which affected 23 casual and part- time employees. The Respondent said that staff, including the Applicant, were given notice of the changes and that the changes took effect on 13 November 2023. The changes applied across the business. Some shifts were permanently removed from the roster. The Respondent said that the remaining available rosters were being shared amongst staff members. [11] The Respondent said that any failure to communicate available shifts was attributable to changes in personnel managing shift allocations and the different means they used to inform people of available shifts. They said the Applicant had not been asked to return keys or property and was not locked out of communication with the Respondent. They said the Applicant had been invited to the Respondent’s Christmas party at the end of 2023 as one of the Respondent’s casual employees and that the Respondent’s payroll system recorded her as a current casual employee. The Respondent said that its managers were aware that the Applicant was still employed as a casual employee and it was open to the Applicant to apply for, and accept, further shifts. Consideration [12] Section 396 of the Act requires the Commission decide, amongst other things, whether the application was made within the time period required in s 394(2) before considering the merits of an application for unfair dismissal. Section 394 provides: Application for unfair dismissal remedy (1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy. Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal. Note 2: For application fees, see section 395. Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part. (2) The application must be made: (a) within 21 days after the dismissal took effect; or (b) within such further period as the FWC allows under subsection (3). (3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account: (a) the reason for the delay; and (b) whether the person first became aware of the dismissal after it had taken effect; and (c) any action taken by the person to dispute the dismissal; and (d) prejudice to the employer (including prejudice caused by the delay); and (e) the merits of the application; and -- 4 of 9 -- [2024] FWC 581 5 (f) fairness as between the person and other persons in a similar position. [13] As is apparent from the terms of s.394(1) only persons who have been dismissed may apply for a remedy under Part 3-2 of the Act. Under s.394(2), an application can only proceed if it is made within the prescribed time periods after the dismissal took effect. In order to determine whether a valid application has been made and if so whether it was made within the prescribed periods, I must determine whether a dismissal has occurred and if so, when it took effect. There must be, as a matter of jurisdictional fact, a dismissal and a dismissal which has taken effect for the time periods to apply. For the reasons which follow, I have concluded that the Applicant was not dismissed by the Respondent. [14] Section 386 of the FW Act defines the circumstances in which a person is taken to have been dismissed for the purposes of Part 3-2 of the Act. Section 386 provides, relevantly, as follows: 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. [15] The Applicant did not identify in her application when the dismissal took effect. She said that the Respondent’s email of 1 November 2023 was ambiguous and led her to believe that she would still have opportunities for work in the future. She said that she waited patiently for work after the email and did not realise she had been dismissed until some time at the beginning of December 2023. [16] In this case there was no suggestion that the Applicant had resigned, because of conduct engaged in by the employer or otherwise. The Applicant did not contend that the circumstances here were covered by s.386(1)(b) and there is no basis to conclude that they were. [17] In determining whether the Applicant was dismissed for the purposes of s.386(1)(a) it is necessary to consider the Applicant’s status as a casual employee. Section 15A of the Act provides as follows: 15A Meaning of casual employee (1) A person is a casual employee of an employer if: (a) an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and (b) the person accepts the offer on that basis; and (c) the person is an employee as a result of that acceptance. -- 5 of 9 -- [2024] FWC 581 6 (2) For the purposes of subsection (1), in determining whether, at the time the offer is made, the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person, regard must be had only to the following considerations: (a) whether the employer can elect to offer work and whether the person can elect to accept or reject work; (b) whether the person will work as required according to the needs of the employer; (c) whether the employment is described as casual employment; (d) whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument. Note: Under Division 4A of Part 2-2, a casual employee who has worked for an employer for at least 12 months and has, during at least the last 6 months of that time, worked a regular pattern of hours on an ongoing basis may be entitled to be offered, or request, conversion to full-time employment or part-time employment. (3) To avoid doubt, a regular pattern of hours does not of itself indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern of work. (4) To avoid doubt, the question of whether a person is a casual employee of an employer is to be assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct of either party. (5) A person who commences employment as a result of acceptance of an offer of employment in accordance with subsection (1) remains a casual employee of the employer until: (a) the employee’s employment is converted to full-time or part-time employment under Division 4A of Part 2-2; or (b) the employee accepts an alternative offer of employment (other than as a casual employee) by the employer and commences work on that basis. [18] The Applicant’s contract of employment, which was entered into on 13 September 2022, provided that it was agreed that the employer made no firm advance commitment to continuing and indefinite work according to an agreed pattern of work and that the Respondent can elect whether or not to offer the Applicant work according to its needs. It provided that the employee’s employment terminated at the end of each engagement and recommenced on each new engagement.1 Clause 3 provided that as a casual employee, the Applicant would not have reasonably predictable or regular hours of work and that the Respondent would notify the Applicant when she was required for work from time to time. [19] It is clear from these terms, which were accepted by the Applicant, that the Applicant was a casual employee as defined by s.15A of the Act. There was no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the Applicant under the express terms of the contract and nothing to suggest otherwise having regard to the matters referred to in s.15A(2). Subsection (3) makes it plain that a regular pattern of hours does not of itself indicate the requisite firm advance commitment. It may have been the case, -- 6 of 9 -- [2024] FWC 581 7 given the previous practice of shift allocation, that there was some degree of predictability to the Applicant’s monthly shifts, but this did not mean that the Applicant’s status was anything other than a casual employee. There was nothing to suggest that the Applicant had converted to permanent employment or had subsequently accepted an offer of employment from the Respondent on different terms. It remained open to the Respondent under the terms of the contract to allocate other work or not allocate work to the Applicant according to the Respondent’s needs. [20] Of course, a casual employee can still be dismissed from their employment. In City of Sydney RSL v. Balgowan2 the Full Bench was considering whether a casual employee had been dismissed within the meaning of s.386(1)(b). The Bench there concluded that there had been no constructive dismissal as comprehended by that subsection where the employee had no contractual right to work particular hours or shifts and an employer had altered the hours or shifts offered. The Bench said there could be no repudiation by the employer in the absence of such a contractual right and consequently there was no constructive dismissal. I think in the present case, the absence of any contractual right to shifts, or any particular number of shifts, or shifts at a particular time, means that the failure by the Respondent to provide shifts did not amount to either a repudiation of the contract (giving the Applicant the right to elect to terminate) or a termination of employment on the employer’s initiative. [21] In any event I am not satisfied on the evidence that there were any other steps by the Respondent that amounted to a termination on the employer’s initiative. The Respondent was engaged in a restructuring of its business in or about November 2023. That restructuring necessitated a reduction in the number of available shifts to staff and a reduction in the overall number of hours worked within the business. The changes in question not only had an impact on the Applicant but, to greater or lesser degrees, at least 22 other staff members. One consequence of these changes was that which was notified to the Applicant by the Respondent on 1 November 2023, that is, that the Applicant would no longer have access to her usual shifts. However, it was also made clear in that correspondence that the Applicant was to remain in the casual staff pool and that further alternative shifts might become available in the near future. [22] The Applicant pointed out that the changes did not result in the cancellation or reduction in her usual weekend shifts. Those shifts continued to be worked at the same premises by other staff members. She said if she had not been dismissed those would have been “her shifts”. However, I accept the evidence of Ms. Criss for the Respondent that the failure to allocate the Applicant to her usual shifts in the months of November and December 2023 was, as advised in the email of 1 November, due to larger changes in the business and a need to alter rosters. It was a result of a major reallocation of staff brought on by reduction in total hours that the business required to be worked having regard to its operational needs. Some staff members would inevitably lose hours as a result of those changes. In the months of November and December 2023 at least, one of those staff members was the Applicant. [23] I am satisfied on the evidence that the Respondent was genuinely reallocating and rotating staff through available shifts and that even though the Applicant had lost her “usual” shifts, this did not mean that other shifts, even perhaps including the shift times that she had previously worked, would not be made available to her from that point onwards or that her employment had been terminated on the employer’s initiative. -- 7 of 9 -- [2024] FWC 581 8 [24] I am also satisfied that the removal of the Applicant from the WhatsApp group by Ms. Chattat was not a termination on the employer’s initiative. Ms. Chattat had only recently been put in the position as Team Leader with responsibility for shift allocations. She was picking up a practice that had been established by her predecessor. Ms. Chattat advised everyone, including the Applicant, that she was closing the group and reopening a new group. Although the reason for the decision to close down the existing group and reopen a new group was not explained, I am not satisfied that it was done with a view to either excluding the Applicant, or anyone else, from shift allocations, or to bring the Applicant’s employment to an end. [25] The Applicant accepted that she was not excluded from work emails from the Respondent in the period after 1 November 2023. She said she continued to receive those emails but none of them offered her any shift allocations as was previously the case with these emails. In the context of a major reorganisation and reduction in work as explained by Ms. Criss and as advised to the Applicant, it is unsurprising that there would be fewer opportunities for work in the 6 weeks following the changes. I do not regard the absence of shift allocation emails over that period, coupled with the continuation of other work-related emails, as evidencing a termination on the employer’s initiative. [26] There was some evidence given about events which post-dated the filing of the present application. This included reinstating the Applicant to the WhatsApp group in January 2024 and later discontinuing the use of WhatsApp in favour of advising of shift allocations via email and TANDA, which were also made available to the Applicant. I do not think that this assists with the present issue and do not propose to take this evidence into account for the purpose of determining whether the Applicant had been dismissed by the Respondent by the time the application was made. [27] Termination ‘on the employer’s initiative’ is a termination that is brought about by an employer and which is not agreed to by the employee.3 There must be action by the employer that either intends to bring the relationship to an end or has that probable result.4 If an act of the employer results ‘directly or consequentially in the termination’5 the termination of employment will likely be ‘on the employer’s initiative’. All of the circumstances are to be considered in this assessment. In Mohazab6 the Court also referred to termination at the employer’s initiative as being action of the employer which, had it not been taken, the employee would have remained in the employment relationship.7 [28] Having regard to my conclusions above, I do not consider that there was a termination of the Applicant’s employment on the initiative of the Respondent. It follows that the Applicant was not dismissed by the Respondent and therefore there could be no valid application for an unfair dismissal remedy. It is unnecessary to consider the question of extension of time. [29] The application is dismissed. -- 8 of 9 -- [2024] FWC 581 9 DEPUTY PRESIDENT Appearances: Ms. Alannah Bai for the Applicant. Mrs Allison Criss for the Respondent. Hearing details: By Video using Microsoft Teams at 10:00am AEDT on Monday, 5 February 2024. Printed by authority of the Commonwealth Government Printer <PR772032> 1 Clause 16. 2 [2018] FWCFB 5. 3 Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 (‘Khayam’). 4 Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769. 5 Khayam (n 8) [75]. 6 Mohazab v. Dick Smith Electronics Pty Ltd (No 2.) [1995] 62 IR 200, 205. 7 Ibid. -- 9 of 9 --