Fair Work Act 2009
s.365—General protections

Sandra Marson
v
Lutan Pty Ltd T/A Lutan Support Services
(C2022/2372)

Application to deal with contraventions involving dismissal – whether applicant was dismissed – application dismissed.

Introduction

[1] Ms Sandra Marson was employed by Lutan Pty Ltd trading as Lutan Support Services (Lutan). On 12 April 2022, Ms Marson lodged a general protections application involving dismissal in the Fair Work Commission (Commission). Ms Marson alleges that she was dismissed by Lutan and Lutan contravened s 348 of the Fair Work Act 2009 (Cth) (Act). Lutan denies the allegations.

[2] On 28 June 2022, I conducted a hearing in relation to the question of whether or not Ms Marson was dismissed within the meaning of the Act. Ms Marson gave evidence in support of her contention that she was dismissed. Lutan adduced evidence from Ms Tanya Frederick, Director/Accounts Officer, Mr Luis Santos, Director, and Ms Angela Johnson, Compliance/Administration Officer. Lutan also tendered two witness statements made by Mr Andrew Santos, General Manager, who was unable to be present at the hearing to be cross examined. Ms Marson did not press any objection to the admission of Mr Andrew Santos’ witness statements in his absence. I decided to admit the witness statements but will have regard to the fact that Mr Andrew Santos was not available for cross examination in my consideration of the weight to be given to those statements.

Dismissal

[3] The question of when a person has been dismissed is governed by s 386 of the Act. It relevantly provides:

“(1) A person has been dismissed if:

(a) the person’s employment with his or his employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or his employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or his employer.”

General principles

[4] The expression “termination at the initiative of the employer” in s 386(1)(a) is a reference to a termination of the employment relationship and/or termination of the contract of employment 1 that is brought about by an employer and which is not agreed to by the employee.2

[5] In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry under s 386(1)(a) is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment. 3 

[6] Where the conduct of an employee amounts to a renunciation of the contract of employment, it is the conduct of the employee that terminates the employment relationship. 4 Renunciation is a species of repudiation which entitles the employer to terminate the employment contract.5 The difference between renunciation and repudiation was explained by Gleeson CJ, Gummow, Heydon and Crennan JJ in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited6 as follows (references omitted):

“In its letter of termination, Koompahtoo claimed that the conduct of Sanpine amounted to repudiatory breach of contract. The term repudiation is used in different senses. First, it may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party's obligations. It may be termed renunciation. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it… Secondly, it may refer to any breach of contract which justifies termination by the other party... There may be cases where a failure to perform, even if not a breach of an essential term … manifests unwillingness or inability to perform in such circumstances that the other party is entitled to conclude that the contract will not be performed substantially according to its requirements. This overlapping between renunciation and failure of performance may appear conceptually untidy, but unwillingness or inability to perform a contract often is manifested most clearly by the conduct of a party when the time for performance arrives. In contractual renunciation, actions may speak louder than words.” 7

[7] Abandonment of employment is an example of renunciation. It occurs where an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evidences an unwillingness or inability to substantially perform his or her obligations under the employment contract. 8

[8] Section 386(1)(b) of the Act concerns the resignation of an employee where the resignation was “forced” by conduct or a course of conduct on the part of the employer. The question of whether a resignation did or did not occur does not depend on the parties’ subjective intentions or understandings. 9 Whether an employee resigned depends on what a reasonable person in the position of the parties would have understood was the objective position, based on what each party had said or done, in light of the surrounding circumstances.10

[9] The test to be applied in determining whether a resignation was “forced” within the meaning of s 386(1)(b) 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 probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. 11 The requisite employer conduct is the essential element.12

Relevant facts re dismissal

[10] Lutan is a disability support service provider funded by the National Disability Insurance Scheme (NDIS). Lutan is located in the Port Macquarie area of the mid north coast of New South Wales.

[11] Ms Marson was employed by Lutan as a casual Disability Support Worker from 17 February 2020. Ms Marson’s final shift was on 24 March 2022.

[12] On 4 March 2020, Ms Marson signed a letter of engagement that was provided to her by Lutan on 20 February 2020. The letter states that “unless more generous provisions are provided in this letter or in the attached Schedule, the terms and conditions of [Ms Marson’s] employment will be those set out in the Social, Community, Home Care and Disability Services Industry Award 2010” (SCHADS Award). 13 The letter refers to an attached position description at clause 1.4 and in the final line of the letter. Ms Marson says that a position description was not attached to the letter of engagement or otherwise provided to her during her employment with Lutan. The Disability Support Worker Position Description provided by Lutan to the Commission, which it says was attached to Ms Marson’s letter of engagement, states that (a) the responsibilities and duties of the position include providing “direct care assistance to each client in accordance with their service plan and as directed by the Manager”, (b) one of the “KPI’s” for the position of Disability Support Worker is to provide “Personal care … to clients in a caring and supportive way”, and (c) one of the desirable criteria for the position is “Experience in the delivery of personal care services …”.

[13] In September 2021, after Lutan obtained legal advice regarding post-employment obligations and had employment contracts drafted for all staff, Ms Marson signed an Employment Agreement. The Employment Agreement describes Ms Marson’s position as “Disability Support Worker” and states that the SCHADS Award “sets out, in part, some of the minimum terms and conditions of your employment”. 14 The Employment Agreement does not make reference to a position description, but provides that Ms Marson must:15

•  “perform the duties as defined by the Employer in a professional, competent and diligent manner that does not endanger your own health and safety or that of others”;

•  “comply with all lawful orders and instructions given by the Employer”;

•  “generally perform such duties in the Position as are customarily performed by an employee holding a like position in other companies or businesses of the same or similar nature to the Employer, and to render such other and unrelated services and duties as may be reasonably assigned to You from time to time”; and

•  “perform other duties as assigned to you from time to time.”

[14] Ms Marson gave evidence that she did not know what level she was employed at under the SCHADS Award. Ms Johnson gave evidence that Ms Marson was employed and paid under pay point 2.2 of the SCHADS Award at the time her employment with Lutan came to an end. Ms Johnson’s evidence in this regard is supported by (a) an Employee Evaluation form signed by Ms Marson and her manager in March 2021, which refers to Ms Marson as a level 2.2 employee 16 and (b) Ms Marson’s payslip refers to her job title as “Social & Community Services Level 2 (Shift Worker)”.17

[15] Schedule B of the SCHADS Award provides as follows in relation to the classification of social and community services employee level 2:

“B.2 Social and community services employee level 2

B.2.1 Characteristics of the level

(a) A person employed as a Social and community services employee level 2 will work under general guidance within clearly defined guidelines and undertake a range of activities requiring the application of acquired skills and knowledge.

(b) General features at this level consist of performing functions which are defined by established routines, methods, standards and procedures with limited scope to exercise initiative in applying work practices and procedures. Assistance will be readily available. Employees may be responsible for a minor function and/or may contribute specific knowledge and/or specific skills to the work of the organisation. In addition, employees may be required to assist senior workers with specific projects.

(c) Employees will be expected to have an understanding of work procedures relevant to their work area and may provide assistance to lower classified employees or volunteers concerning established procedures to meet the objectives of a minor function.

(d) Employees will be responsible for managing time, planning and organising their own work and may be required to oversee and/or guide the work of a limited number of lower classified employees or volunteers. Employees at this level could be required to resolve minor work procedural issues in the relevant work area within established constraints.

(e) Employees who have completed an appropriate certificate and are required to undertake work related to that certificate will be appointed to this level. Where the appropriate certificate is a level 4 certificate the minimum rate of pay will be pay point 2.

(f) Employees who have completed an appropriate diploma and are required to undertake work related to the diploma will commence at the second pay point of this level and will advance after 12 full-time equivalent months’ satisfactory service.

B.2.2 Responsibilities

A position at this level may include some of the following:

(a) undertake a range of activities requiring the application of established work procedures and may exercise limited initiative and/or judgment within clearly established procedures and/or guidelines;

(b) achieve outcomes which are clearly defined;

(c) respond to enquiries;

(d) assist senior employees with special projects;

(e) prepare cash payment summaries, banking reports and bank statements, post journals to ledger etc. and apply purchasing and inventory control requirements;

(f) perform elementary tasks within a community service program requiring knowledge of established work practices and procedures relevant to the work area;

(g) provide secretarial support requiring the exercise of sound judgment, initiative, confidentiality and sensitivity in the performance of work;

(h) perform tasks of a sensitive nature including the provision of more than routine information, the receiving and accounting for moneys and assistance to clients;

(i) assist in calculating and maintaining wage and salary records;

(j) assist with administrative functions;

(k) implementing client skills and activities programmes under limited supervision either individually or as part of a team as part of the delivery of disability services;

(l) supervising or providing a wide range of personal care services to residents under limited supervision either individually or as part of a team as part of the delivery of disability services;

(m) assisting in the development or implementation of resident care plans or the planning, cooking or preparation of the full range of meals under limited supervision either individually or as part of a team as part of the delivery of disability services;

(n) possessing an appropriate qualification (as identified by the employer) at the level of certificate 4 or above and supervising the work of others (including work allocation, rostering and providing guidance) as part of the delivery of disability services as described above or in subclause B.1.2.

B.2.3 Requirements of the position

Some or all of the following are needed to perform work at this level:

(a) Skills, knowledge, experience, qualification and/or training

(i) basic skills in oral and written communication with clients and other members of the public;

(ii) knowledge of established work practices and procedures relevant to the workplace;

(iii) knowledge of policies relating to the workplace;

(iv) application of techniques relevant to the workplace;

(v) developing knowledge of statutory requirements relevant to the workplace;

(vi) understanding of basic computing concepts.

(b) Prerequisites

(i) an appropriate certificate relevant to the work required to be performed;

(ii) will have attained previous experience in a relevant industry, service or an equivalent level of expertise and experience to undertake the range of activities required;

(iii) appropriate on-the-job training and relevant experience; or

(iv) entry point for a diploma without experience.”

[emphasis added]

[16] Ms Marson has a Certificate IV in Training and Assessment. Ms Marson says that she has no training in personal care.

[17] Employees of Lutan are required to undertake online NDIS training courses. Ms Johnson gave evidence, which I accept, that these training courses cover the role of a Disability Support Worker, including personal care as this is part of the role. Ms Marson confirmed that she had completed the required online courses.

[18] Ms Marson gave evidence that she understood the duties of her role to include working “with people with mental health issues… doing photography and cooking lessons, all fields that I was able to do because of my experience.” Ms Marson confirmed that she knew she was being employed as a Disability Support Worker, but that Lutan did not discuss with her at the commencement of the role the requirement for her to undertake personal care work.

[19] Ms Marson gave oral evidence at the hearing that the first time she undertook personal care work in her role as a Disability Support Worker for a client of Lutan (Client A) was in 2020. Ms Marson gave evidence that the personal care on this occasion involved showering Client A. Ms Marson undertook the personal care work, but took issue with the fact that she was not told that the client was not toilet trained and no personal protective equipment was provided to her. Ms Marson also gave evidence that there was another support worker present to train her on this shift, however, this worker verbally abused both her and the client. Ms Marson informed Mr Luis Santos that she would no longer work with Client A. Ms Marson gave evidence that this is the only personal care work she did whilst employed by Lutan.

[20] Both Mr Luis Santos and Ms Marson gave oral evidence about the second time Ms Marson was requested to work a shift on which a client (Client B) required personal care. That took place in October 2021. Ms Marson requested that the shift be reallocated because of open wounds she had on her hands as a result of cancer treatment which limited the work she could undertake. 18 Lutan reallocated the shift on this basis.

[21] The third time that Ms Marson was allocated a shift that involved personal care was for a shift on Saturday, 26 March 2022 with a client of Lutan (Client C). On allocation of this shift, Ms Marson reviewed the previous shift notes and became aware that the shift would involve personal care. Ms Marson gave oral evidence that she had not worked with Client C previously but knew of this client generally as they lived in the same town as one another. Ms Marson also gave evidence that she was aware that there would be another support worker allocated to this shift with her but that she did not know who this person was or what qualifications or experience they had.

[22] On 17 March 2022, Ms Marson sent an email to Mr Luis Santos in the following terms: 19

“Dear Luis

I have been rostered on to work with [Client C] on the 26 March. I am declining to do this shift and any other shifts with [Client C]. My reasons are my qualifications do not cover personal care. My qualifications only allow me to teach life skills, do food handling and to do basic first aid. To work with clients with mental health issues within the boundaries of the mental health first certificate.

Working in the capacity of personal care leaves both Lutan and myself open to prosecution; should anything to go wrong when I don't have the training in personal care.

Yours sincerely
Sandra Marson jp”

[23] Additionally, Ms Marson gave evidence at the hearing that she declined the shift with Client C as she was uncomfortable in doing something that she did not have experience or training in. Ms Marson confirmed that she did not have any open wounds at the time preventing her from undertaking this work. Ms Marson explained that she is currently 66 years old and that Client C is a large person in comparison to her size. Further, Ms Marson asserted that “if I was to be with [Client C] alone in the bathroom, I would not be able to lift her without doing an injury to myself.”

[24] Lutan had allocated two support workers to work the 26 March shift with Client C. This is reflected on the shift allocation email that Ms Marson received. 20

[25] In response to this email, also on 17 March 2022, Mr Andrew Santos provided the following reply email to Ms Marson: 21

“Hi Sandra,

Unfortunately, as a support worker you are expected to support the clients where required and cannot decline this shift.

You will be working with another Female support worker who will assist and train you.

Regards,

Andrew Santos – Manager”

[26] On 25 March 2022, one day prior to the shift in question, Ms Marson responded to Mr Santos’ email of 17 March 2022 in the following terms: 22

“Dear Andrew

In reply to your email Andrew:- I am once again declining the shift with [Client C] on the 26 March 2022.

After advisement, I would like to point out to you if you insist on directing me to work this shift; I will be in breach of my duty of care under the Work Health and Safety Act 2011 and element 3 of the NDIS Commissions code of conduct which states:-

"You should decline directions - from an NDIS provider, person with disability or their family or career - to undertake duties that you are not qualified or trained to deliver."

You will leave me no option but to report this to NDIS Commission as stated in the element 3, if you insist that I cover this shift.

I will not knowingly work in breach of the law for any amount of money or bullying. As a Justice of the Peace and a licenced Real Estate Agent I cannot be in breach of the law under any circumstances.

Yours sincerely Sandra Marson.jp”

[27] At 10:20am on 25 March 2022, in reply to Ms Marson’s email, Mr Luis Santos sent the following text message to Ms Marson: 23

“Hi Sandra, just saw you email.

You are a support worker as all the other workers here.

There is nothing to do with [Client C] that is outside the normal every day requirements of a support worker.

You get paid as a support worker and may I add more than 90% of our staff.

If you refuse this shift I am affraid that we can not keep you for the same reason you are declining the shift.

Luis.”

[28] Ms Marson did not respond to the 25 March 2022 text message.

[29] On 25 March 2022, Mr Luis Santos removed the following three shifts from Ms Marson’s roster:

1. 26 March 2022 shift with Client C;

2. 27 March 2022 shift; and

3. 9 April 2022 shift.

Ms Marson produced the emails 24 which she received upon each shift cancellation; all three cancellation emails were received at 10:22 am on 25 March 2022.

[30] On 28 March 2022, Ms Angela Johnson sent an email which included the following information to Ms Marson: 25

“Dear Sandra,

RE: Your email sent 25th March

We have to admit that we were surprised by the content of this email as there is obviously a bit of confusion on your part in relation to the requirements of your role.

Lutan Support Services provides NIDS Services for Community Access, In-Home Care, & Transport. This has been the case since the business commenced and this has not changed during the length of your Casual Employment with us.

1. Lutan Support Services Duty Statement

The Lutan Support Services Duty Statement for Support Workers lists the following under Responsibilities and KPI’s

2. NDIS Commission description of the Personal Care Supports Role

The NDIS Commission outlines the duties of Personal Care as follows: https://www.ndis.gov.au/about-us/operational-guidelines/including-specific-types-supports-plans-operational-guideline/including-specific-types-supports-plans-operational-guideline-personal-care-supports

9. Personal care supports

Personal care supports relate to assistance with daily personal activities including assistance with, or supervision of, personal tasks of daily life. For example:

•  personal hygiene, including showering, bathing, oral hygiene, dressing and grooming;

•  toileting, bladder and bowel management and menstrual care; eating and drinking;

•  attending appointments;

•  use of aids and appliances, hearing and communication devices;

•  mobility and transferring, for example moving in and out of bed and on or off the toilet; or

•  application of splints, basic first aid due to injuries sustained as a result of a participant’s disability.

•  Personal care supports may be required across a variety of settings. For example, a participant living alone in their own home, living with family or other people, when undertaking social, recreational, education or employment activities or during holidays away from home.

3. NDIS Requirements for Support Workers

The NDIS requirements for Support Workers are particularly focussed on correct identification and screen of potential Applicants, and do not involve specific training qualifications except for specialist roles (which do not include Personal Care provision). Please see the link below: https://www.ndiscommission.gov.au/providers/worker-screening#wha

What checks do workers providing NDIS supports and services need?

Registered NDIS providers delivering supports and services to NDIS participants must comply with the National Disability Insurance Scheme (Practice Standards—Worker Screening) Rules 2018. This means that registered NDIS providers must ensure that workers in risk assessed roles have either an NDIS worker screening clearance or an acceptable check under the transitional and special arrangements.

4. Lutan Support Services Requirements for Support Workers

Our requirements include all of those required by the NDIS. In relation to qualifications for a Support Workers our checklist of requirements states:

Support Worker Employment Requirements

Certificate III in Disability Management or Equivalent, or

Life/Work Experience that demonstrates your affinity for Personal CareWork. and Willingness to study and obtain Certificate III in Disabiity Managementor equivalent

5. NDIS Provider Certification Requirements

In addition, the requirements outlined for NDIS Provider Certification quote “Relevant Qualifications – eg Certificates, Registrations & Resumes” which refers to the Managerial roles and Specialist Roles as mentioned above. The remainder of the requirements (all of which you have been required to provide) are listed as follows:

Global Compliance Certification Module Information

[ ] You have documented role descriptions for staff and contractors that includes responsibilities, scope, and limitations? This might be position descriptions.

[ ] You keep records of worker pre-employment checks, qualifications, training, and experience?

[ ] An orientation and induction process are in place for workers including completion of the mandatory NDIS worker orientation program?

[ ] You have a process to supervise and manage the performance of workers?

[ ] NDIS Worker Orientation Module - Certificate of Completion

[ ] 100 points of ID - e.g. Passport, Drivers Licence, Birth Certificate

[ ] Relevant Qualifications - e.g. Certificates, Registrations, Resumes

[ ] For each risk assessed role, you must document the reasons why it is a risk assessed role, date of assessment, and the name and title of the assessor.

6. Examples of requirements from other providers

To confirm our understanding of requirements, below please find references from other Organisations:

•  Australian Government Care and Support Jobs Website https://www.careandsupportjobs.gov.au/skills-and-training/what-do-you-need-start-working

For care and support workers, there are currently no minimum standard qualifications for entry-level work. However, particular roles and organisations may require you to have formal qualifications.

•  A First Aid Certificate

•  National Police Check

•  Working with Children check

•  Working with Vulnerable People check

•  NDIS Workforce Capability Framework

•  NDIS Worker Orientation module

•  NDIS Worker Screening check

•  Department of Health infection control module

•  Careside Website

https://www.thecareside.com.au/post/guide-to-becoming-a-disability-support-worker-in-australia/

What certifications do you need to become a disability support worker?

In Australia, there are no required certifications for disability support workers. You don’t need any educational requirements, and 11% of workers have only completed Year 10 or below of school. However, there are several certifications that are valuable in the field, and attaining a certification will make you more attractive as a candidate for disability support jobs.

•  IH Care Website

https://ihcare.com.au/support-worker-requirements/

Qualifications and Attributes Required

Absolute In Home Care aims to match the attributes of the support worker to the needs of the individual’s requirements. Our carers have a range of skills, experience, training and personal qualities. As a minimum our carers all have:

NDIS Worker Screening Check (this includes a police check, working with children check).

Current First Aid Certificate and CPR.

Work-related experience.

Completed the Infection control Covid-19 training module.

A minimum of two professional references have been completed for each support worker working for our organisation.

Many support workers hold or are studying to achieve a qualification in their chosen area, such as their Certificate III, IV, Diploma or Bachelor in Disability Care, Community Care and Services, Aged Care, education or other relevant field. Many of our team have backgrounds in nursing, disability, mental health services and specialised care areas, such as MND training, Autism, MS Multiple Sclerosis, 24/7 care, Dementia, intellectual and physical disabilities.

Whilst we absolutely respect your concern that we may have been requesting something of you that represented a breach in your duty of care under Work Health and Safety Act 2011 and the NDIS Commissions code of conduct, it is clear from the references provided above that this was not the case.

In addition, as explained to you when you expressed initial concern about the shift, you were to be scheduled with another experienced Support Worker who was to train you in the requirements for the provision of the personal care and two Support Workers are always on with this client so you would not have been left alone providing care at any point.

We agree that the shift would not be one of our easiest, however Lutan Support Services has always shared the easy and the harder shifts among our staff to ensure that a balance of work is maintained with all Support Workers.

According to your email, you personally feel that you now require a formal qualification in order to do the work for which you are employed, it is unfortunate that you have not yet actioned our request as part of your development that you commence this training as per your Annual Performance Assessment dated 11.03.2021.

Please return the First Aid Kit provided to you and your Lutan Support Services ID Card as a matter of urgency.

We respect your decision and wish you all the best with other employment.

Lutan Support Services”

[31] Ms Marson did not respond to the 28 March 2022 email correspondence.

[32] Ms Marson gave oral evidence at the hearing that she “never wanted to do personal care work” and that it was not explained to her that the role involved personal care when she was first employed by Lutan.

[33] Ms Marson gave oral evidence that a Certificate III in Individual Support, Disability or Aged Care is required to provide personal care as a support worker. Ms Marson relies on the NDIS Code of Conduct Summary for Workers 26 which states at element 3:

“3. Provide supports and services in a safe and competent manner, with care and skill.

All workers under the NDIS are expected to have adequate expertise and competence necessary for safe and skilful service delivery. You must have and maintain the required qualifications and skills. You should decline directions - from an NDIS provider, person with disability or their family or carer - to undertake duties that you are not qualified or trained to deliver. You can make a report to the NDIS Commission if such a direction is made. You should also comply with your own professional code of conduct and relevant work, health and safety requirements. You should ensure that accurate and timely records are kept about an NDIS participant’s service history, medication and support needs. You must never work under the influence of drugs or alcohol.”

[34] Ms Johnson gave oral evidence to support Lutan’s contention that a Disability Support Worker is not required to hold any qualifications. Ms Johnson referred the Commission to the NDIS Practice Standards 27 which Ms Johnson says sets out the screening requirements by profession, and as Disability Support Worker is not listed as a profession, Ms Johnson says that there are no required qualifications according to the NDIS.

Submissions re dismissal

Summary of Ms Marson’s submissions re dismissal

[35] Ms Marson submits that she was dismissed by Lutan on the basis of the text message on 25 March 2022, the cancellation of her shifts shortly thereafter, and the email of 28 March 2022.

[36] Ms Marson submits that the statement of Mr Luis Santos, “If you refuse this shift I am affraid that we can not keep you for the same reason you are declining the shift”, 28 together with the cancellation of all her rostered shifts shortly after the text message was sent, viewed with Ms Johnson’s request to return the first aid kit and ID card and to “wish you all the best with other employment”29 demonstrates her dismissal from Lutan.

[37] Ms Marson submits that she never received the position description 30 relied on by Lutan, either at the commencement of her employment or during her employment with Lutan. Ms Marson submits that at the commencement of her role with Lutan there was no discussion about any requirement to undertake personal care work.

[38] Ms Marson submits that a Certificate III in Individual Support, Disability or Aged Care is required to provide personal care as a support worker, relying upon on the NDIS Code of Conduct Summary for Workers.

[39] Lastly, Ms Marson submits that she did not want to do personal care work and upon declining a shift that she did not see herself qualified to do, she was terminated by Lutan via the text message on 25 March 2022, the cancellation of shifts shortly thereafter and the email of 28 March 2022.

Summary of Lutan’s submissions re dismissal

[40] Lutan contends that Ms Marson was not dismissed. Moreover, Lutan submits that, on the basis of Ms Marson’s 17 and 25 March 2022 emails and her failure to respond to Lutan’s correspondence, “she had withdrawn her availability for provision of Disability Support Services”. 31 Lutan submits that it was waiting for a response from Ms Marson but instead she “sought no clarification of our undertakings of her choosing to leave based on the fact that she has not responded to our message neither did she contest that this was the case.”32

[41] Lutan submits that Ms Marson was employed as a Disability Support Worker and that personal care is an important part of the role. Lutan submits that the role does not require any formal qualification as this is not an NDIS requirement for Support Workers.

[42] Lutan submits that all of its clients may require personal care to be performed by the Disability Support Worker allocated to the client for a particular shift. Moreover, Lutan submits that Ms Marson was aware that personal care formed part of her role as set out in the position description, the NDIS training and the SCHADS Award. As Ms Marson refused “to do the personal care part of the role, refusing to be trained in the individual personal care needs of clients and refusing to be supported whilst completing personal care tasks, Ms Marson has disqualified herself from being able to be scheduled with any of our clients.” 33

[43] Moreover, Lutan submits that Ms Marson had not raised the qualification issue when she was allocated the two previous shifts which involved personal care.

[44] Lutan submits that Ms Marson did not require any formal qualifications or training to be employed as a Disability Support Worker who provides personal care to Lutan’s clients. Lutan also submits that personal care is an important and essential part of the role. 34 Additionally, Lutan submits that the NDIS does not require formal qualifications for support workers.35 Rather, Lutan contends that Ms Marson was offered one-on-one training by a Disability Support Worker experienced with working with Client C who would be present for the entirety of the 26 March 2022 shift.36

Consideration re dismissal

[45] Ms Marson was employed by Lutan in the role of a Disability Support Worker. There is a dispute between the parties as to whether personal care work formed part of Ms Marson’s duties and responsibilities as a Disability Support Worker in March 2022. I am satisfied that it did, for the following reasons.

[46] First, I do not accept Ms Marson’s evidence that a copy of the position description for a Disability Support Worker was not attached to her letter of engagement or otherwise provided to her during her employment with Lutan. I am satisfied on the balance of probabilities that the position description for a Disability Support Worker was attached to the letter of engagement. The position description is referred to in both clause 1.4 and immediately below Ms Marson’s signature on the final page of the letter of engagement. By signing the letter of engagement, Ms Marson agreed and acknowledged that she had “read and understood this letter and accept the offer of employment from Lutan Support Services on the terms and conditions set out in the letter.” Having regard to those circumstances, it is unlikely, in my view, that the position description was not attached to the letter of engagement. Further, Ms Johnson made express reference to the relevant responsibilities, duties and KPI’s from the position description in her email to Ms Marson on 28 March 2022. Ms Marson did not respond to that email. In fact, according to the evidence adduced in the Commission, the first time that Ms Marson contended she had not received the position description was during her oral evidence at the hearing on 28 June 2022. The position description required Ms Marson to “provide direct care assistance to each client in accordance with their service plan and as directed by the Manager”. It also stipulated, as a KPI, the provision of “personal care … to clients in a caring and supportive way”. 37

[47] Secondly, Ms Marson’s Employment Agreement required her to: 38

•  “perform the duties as defined by the Employer in a professional, competent and diligent manner that does not endanger your own health and safety or that of others”;

•  “comply with all lawful orders and instructions given by the Employer”;

•  “generally perform such duties in the Position as are customarily performed by an employee holding a like position in other companies or businesses of the same or similar nature to the Employer, and to render such other and unrelated services and duties as may be reasonably assigned to You from time to time”; and

•  “perform other duties as assigned to you from time to time.”

[48] There is no doubt that personal care work is customarily performed by Disability Support Workers employed by disability support service providers funded by the NDIS, such as Lutan. Personal care work may not be needed to be provided to all clients, or on all shifts, but such work is an essential part of the role of a Disability Support Worker. This is reflected in the responsibilities of a social and community services employee level 2 under the SCHADS Award, which may include “supervising or providing a wide range of personal care services to residents under limited supervision either individually or as part of a team as part of the delivery of disability services”. Similarly, the responsibilities of:

(a) a social and community services employee level 1 under the SCHADS Award may include providing “assistance to residents in carrying out personal care tasks under general supervision either individually or as part of a team as part of the delivery of disability services”; and

(b) a social and community services employee level 3 under the SCHADS Award may include “taking overall responsibility for the personal care of residents”.

[49] I am satisfied that Ms Marson was correctly classified by Lutan as a community services level 2 employee under the SCHADS Award.

[50] I am satisfied that Lutan had the right under the Employment Agreement to require Ms Marson to perform personal care work as part of her role as a Disability Support Worker.

[51] Thirdly, during her employment with Lutan, Ms Marson did not dispute that personal care work formed part of her role or that she could be directed to perform personal care work in her position as a Disability Support Worker. Ms Marson undertook such work for Lutan in 2020. Ms Marson was excused from undertaking personal care work in October 2021, but only on the basis that her illness at the time prevented her from undertaking the work. Further, when Ms Marson was rostered to work a shift requiring personal care work in March 2022, she did not object to the shift on the basis that personal care work was not part of her job or that she could not be directed to perform personal care work in her position as a Disability Support Worker. Ms Marson’s reason for declining the shift in March 2022 was because she did not have training or qualifications in personal care.

[52] As to training, I accept Ms Johnson’s evidence that Ms Marson received some training in personal care in the online NDIS training she undertook. But more importantly, Lutan rostered another Disability Support Worker to work with Ms Marson on the shift on 26 March 2022, so that she could be trained in the personal care work required for that shift.

[53] As to qualifications, I am satisfied that Ms Marson did not require any particular qualifications to undertake personal care work as a Disability Support Worker. The prerequisites for a social and community services level 2 employee, such as Ms Marson, under the SCHADS Award include, as one alternative, “appropriate on-the-job training and relevant experience”. Similarly, the NDIS requirements for Support Workers do not include any particular qualifications. I do not accept Ms Marson’s contention that that a Certificate III in Individual Support, Disability or Aged Care is required to provide personal care as a support worker. The NDIS Code of Conduct Summary for Workers, on which Ms Marson relies to support this contention, does not require a Certificate III in Individual Support, Disability or Aged Care for personal care work. It contains a broad statement that “All workers under the NDIS are expected to have adequate expertise and competence necessary for safe and skilful service delivery. You must have and maintain the required qualifications and skills.” I am satisfied that the on-the-job training which Lutan had arranged by rostering another Disability Support Worker to work with Ms Marson on 26 March 2022 was reasonable and appropriate in the circumstances.

[54] I am satisfied that it was lawful and reasonable for Lutan to roster Ms Marson to work the shift it assigned to her on 26 March 2022. As a casual employee, Ms Marson had the right to decline the shift. However, in her communications to Lutan on 17 March 2022 and 25 March 2022, Ms Marson made it clear that she was not willing to undertake personal care work. Lutan’s response was to effectively say that Ms Marson’s role as a Disability Support Worker required her to undertake personal care work and if she was not prepared to do that work then Lutan could not continue her employment. Ms Marson did not reply.

[55] In my assessment, Ms Marson’s conduct evinced an unwillingness to render substantial performance of her contract of employment because she informed Lutan that she was not prepared to undertake personal care work. Ms Marson’s role as a Disability Support Worker required her to undertake personal care work when needed by a client for whom she was providing disability support services. Ms Marson’s unwillingness to do such work, even with the training and guidance of another Disability Support Worker, was such as to convey to a reasonable person in the position of her employer a renunciation of her Employment Agreement or a fundamental obligation under it. Lutan accepted Ms Marson’s repudiation of the Employment Agreement.

[56] Because Ms Marson’s conduct amounted to a renunciation of her contract of employment, it is her conduct that terminated the employment relationship. 39 There was no action on the part of Lutan that was the principal contributing factor which resulted, directly or consequentially, in the termination of Ms Marson’s employment.

[57] Ms Marson did not suggest that she was forced to resign. In any event, I am satisfied on the evidence that Lutan did not engage in any conduct with the intention of bringing Ms Marson’s employment to an end, nor was termination of Ms Marson’s employment the probable result of any conduct by Lutan such that Ms Marson had no effective or real choice but to resign. 40

[58] Accordingly, I am satisfied that Ms Marson was not dismissed within the meaning of either limb of s 386(1) of the Act.

Conclusion

[59] Ms Marson was not dismissed within the meaning of the Act. Accordingly, Ms Marson’s general protections application involving dismissal must be dismissed.

DEPUTY PRESIDENT

Appearances:

Ms S Marson, for the Applicant
Mr L Santos, for the Respondent

Hearing details:

2022.
Newcastle (by video conference):
28 June.

Printed by authority of the Commonwealth Government Printer

<PR744744>

 1   NSW Trains v James [2022] FWCFB 55 at [45]

 2   Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200

 3   Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200

 4   Visscher v The Honourable President Justice Giudice (2009) 239 CLR 361 at [53]-[55]; NSW Trains v James [2022] FWCFB 55 at [62]; Abandonment of Employment [2018] FWCFB 139 at [21]

 5   Abandonment of Employment [2018] FWCFB 139 at [21]

 6   [2007] HCA 61

 7   At [44]

 8   Abandonment of Employment [2018] FWCFB 139 at [21]

 9   Koutalis v Pollett [2015] FCA 1165 at [43]; Canberra Urology Pty Ltd v Lancaster [2021] FWCFB 1704 at [30]

 10   Koutalis v Pollett [2015] FCA 1165 at [43]; Canberra Urology Pty Ltd v Lancaster [2021] FWCFB 1704 at [30]

 11   Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [47(2)]

 12   Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [47(2)]

 13   Hearing Book at p 312

 14   Hearing Book at p 318

 15   Hearing Book at pp 320-321

 16   Hearing Book at p 30

 17   Hearing Book at pp 192-197

 18   Hearing Book at p 53

 19   Hearing Book at pp 121-122

 20   Hearing Book at p 201

 21   Hearing Book at p 121

 22   Hearing Book at pp 120-121

 23   Hearing Book at p 200

 24   Hearing Book at pp 201-202

 25   Hearing Book at pp 116-119

 26   Hearing Book at p 233

 27   Hearing Book at pp 285 and 287

 28   Hearing Book at p 200

 29   Hearing Book at p 206

 30   Hearing Book at pp 125-128

 31   Hearing Book at p 64

 32   Hearing Book at p 72

 33   Hearing Book at p 72

 34   Hearing Book at pp 94 and 213

 35   Hearing Book at p 213

 36   Hearing Book at p 94

 37   Hearing Book at p 23

 38   Hearing Book at pp 320-321

 39   Visscher v The Honourable President Justice Giudice (2009) 239 CLR 361 at [53]-[55]; NSW Trains v James [2022] FWCFB 55 at [62]; Abandonment of Employment [2018] FWCFB 139 at [21]

 40   Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [47(2)]