DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michelle Stowers
v
Drake Australia Pty Ltd
(U2021/3120)

Application for unfair dismissal remedy - disability services - casual employment assigned to one client - client complaint and decision to refuse nursing services from applicant - offers of work with other clients - no dismissal from employment - application dismissed.

[1] On 13 April 2021 Ms Michelle Stowers made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Drake Australia Pty Ltd (“Drake”).

[2] Ms Stowers was employed as a nurse on a casual basis. Since 2012 Ms Stowers had provided personal nursing care to one particular client, who is a ventilated quadriplegic, and whom I will refer to in this decision as Kelly. In 2019 Kelly changed service providers from Nursing Group to Drake. At this time Ms Stowers left employment with Nursing Group and commenced employment with Drake.

[3] Ms Stowers’ hours fluctuated in her employment with Drake to some degree but were generally regular and systematic. Ms Stowers worked most Fridays, most Sundays (alternating between 10 hours and then 4.5 hours each fortnight), and additional hours to cover leave, absences and other shift vacancies. Ms Stowers submits that she worked on a “a regular and systematic basis with a clear pattern of work and roster of hours, with a reasonable expectation of ongoing employment.” Based on the evidence before me I accept this characterisation of Ms Stowers’ pattern of casual work.

[4] On 29 March 2021 Ms Stowers’ work with Kelly suddenly stopped.

[5] Unbeknownst to Ms Stowers, a few weeks before on 12 February 2021 Kelly made a complaint about Ms Stowers and asked that Ms Stowers be removed from providing further care. Drake had several discussions with Kelly over the intervening weeks to try and persuade Kelly to change her mind. While these discussions were taking place, Kelly specifically told Drake that it could not tell Ms Stowers about Kelly’s concerns. Kelly’s concerns related to respect and trust, feeling unsafe and uncomfortable, and that Ms Stowers was too assertive and passive-aggressive when caring for Kelly. As Drake submitted, “[Kelly] advised Drake that she did not trust Ms Stowers to properly respond to [Kelly’s] wishes”.

[6] By 29 March 2021 Kelly’s decision was as good as final and Drake took steps to discuss Kelly’s decision with Ms Stowers. Ms Stowers’ submission/evidence about her conversation with Drake on 29 March 2021 was as follows:

“On the morning of Monday 29 March 2021, the Applicant was invited to join a phone call at 4:00pm with Ms. Kehani Harris and Mr. Nick Polimenakos from the Respondent, and notwithstanding attempts to better understand the purpose of the call, the Applicant was given no prior advice as to what the purpose of the call was.

The call took place as scheduled 4:00pm on 29 March 2021 with only Ms. Harris, to the best of the Applicant’s knowledge, Mr. Polimenakos was not on the call.

During the call, Ms. Harris informed the Applicant that she would no longer be working any more of her regular shifts with their Client and the reasons provided were that the Client could no longer trust the Applicant; that the Applicant was involved in workplace gossiping and no longer felt safe with the Applicant.

When the Applicant asked Ms. Harris for any further details, an example, or evidence to substantiate the trust, gossiping or safety issues, Ms. Harris could provide no further details.

The Applicant found the call quite distressing and became extremely emotional. The Applicant was not provided any opportunity for a support person, and one as never planned as the intentions of the call were unclear. Therefore, the Applicant was denied the opportunity for a support person, such as her husband, at the time she had her regular shifts, that she had worked for nine years, were taken from her.

During the emotional call, the Applicant asked Ms. Harris to check with the Client to confirm her position and at 17:47 on Tuesday 30 March 2021, the Applicant received an email from Ms. Harris stating “As requested, I have followed up with [Kelly] this afternoon around her decision to have you removed as a member of her support team. I asked [Kelly] if she would like to re consider her decision and unfortunately, she has remained firm on this decision”

[7] Mr Polimenakos gave evidence on behalf of Drake and provided the following account of the same discussion with Ms Stowers:

“On 29 March 2021, the Respondent notified the Applicant of the First Removal Request and the Second Removal Request. The Respondent strongly refutes the assertion in the Applicant’s Submissions that the Applicant refused to provide the Applicant with any details surrounding the Client’s requests during this discussion, or that the Applicant asked for the Respondent to provide examples of her conduct that had led to the requests being made. Rather, the Applicant was specifically advised that the Client had informed the Respondent that she felt unsafe with the Applicant and couldn’t trust the Applicant due to workplace gossip between the Applicant and other staff members.”

[8] Both accounts are relatively similar. The key features of conversation are that:

a) the first time Drake raised any concerns about Ms Stowers’ conduct was in the conversation on 29 March 2021;

b) Drake made the decision that Ms Stowers would not be providing any further care for Kelly before the conversation started and presented its decision to Ms Stowers;

c) Ms Stowers was not invited to make any response to the concerns about her conduct prior to Drake making its decision; and

d) in the conversation Drake undertook to talk again with Kelly to see if Kelly might change her mind.

[9] It is not the Commission’s role to review the validity or the fairness of Kelly’s decision. The National Standards for Disability Services apply a person-centred approach to disability services. The standards ensure that Kelly is in the centre of service design, planning, delivery, and review, and recognise Kelly’s inherent right to make decisions about and exercise control over her own life.

[10] However Kelly’s decision left Drake in a very difficult situation in relation to Ms Stowers’ employment. Drake was prevented from raising concerns with Ms Stowers by its obligations to Kelly and was therefore prevented from giving Ms Stowers the opportunity to personally address Kelly’s concerns.

[11] Unsurprisingly Ms Stowers found the sudden news distressing, particularly after working with Kelly for 9 years. Ms Stowers remains personally aggrieved.

[12] Since 29 March 2021 Drake has offered Ms Stowers work for at least five other clients however Ms Stowers has not accepted any of Drake’s offers.

Was Ms Stowers dismissed?

[13] The primary question for determination is whether Ms Stowers was dismissed from her employment with Drake. For the reasons that follow, and despite my sympathy for Ms Stowers’ plight, I have concluded that Ms Stowers was not dismissed by Drake.

[14] Ms Stowers is a “person protected from unfair dismissal” if she has completed the minimum employment period (per s.382(a)). Periods of service as a casual employee count towards the minimum employment period if the employment is on a regular and systematic basis with a reasonable expectation of continuing ongoing employment (per s.384).

[15] An “unfair dismissal” can only occur if a person has been dismissed (per s.385). Section 386 defines when a person has been dismissed and is in the following terms:

“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.”

[16] The kind of “dismissal” referred to in s.386(1)(b) is also generally referred to as a “constructive dismissal.”

[17] There is a nuanced distinction in the legislation between periods of “service” as a casual employee and periods of “employment”. The Full Bench in Shortland v Smiths Snackfood Co Ltd (2010) 198 IR 237, [2010] FWAFB 5709 (“Shortland”) explained the distinction in some detail at [8]-[13].

[18] In Shortland the Full Bench observed that “it is common for a casual employee to transition between a period in which their engagements with a particular employer are intermittent and a period in which their engagements are regular and systematic and vice versa” (at [10]). The Full Bench were considering whether Mr Shortland had served the minimum employment period and observed that some periods of service as a casual employee might be regular, systematic and so on, and count towards the minimum employment period, and that some periods of service as a casual employee might not count (at [12]).

[19] This distinction is relevant for present purposes because it illustrates how casual “employment” might change from time to time as individual employees move from intermittent to regular periods of “service” during the one unbroken period of employment.

[20] As the Full Bench in Construction, Forestry, Maritime, Mining and Energy Union v Noorton Pty Ltd T/A Manly Fast Ferry [2018] FWCFB 7224 observed:

“[20] A casual employee has no firm advance commitment from the employer to continuing and indefinite work according to an agreed pattern of work. Nor does a casual employee provide a reciprocal commitment to the employer. Irregular work patterns, uncertainty, discontinuity, intermittency of work and unpredictability are the usual manifestations of an absence of a firm advance commitment.”

[Footnotes omitted]

[21] Ms Stowers’ first argument is that she was dismissed when she was told that she would no longer be allocated work with Kelly. Ms Stowers argues that this decision amounted to a dismissal and she also argued that in making this decision Drake took “adverse action” against her within the meaning of s.342 of the Act because Drake altered the position of Ms Stowers to her prejudice.

[22] The notion of adverse action in s.342 of the Act has no role to play in unfair dismissal jurisdiction. Section 342 identifies certain actions that constitute “adverse action” for the purposes of the general protection provisions of the Act. Section 342(1) lists “dismisses the employee” and “altering the position of the employ to the employee’s prejudice” as two separate forms of adverse action.

[23] Ms Stowers says that “given the Applicant’s altered position, to the Applicant’s prejudice, she felt as though she had no alternative but to signal her resignation.”

[24] From the above it can be readily seen that Ms Stowers’ argument is that either she was directly terminated at the initiative of Drake on 29 March 2021 (per s.386(1)(a)) or that Drake’s course of conduct in stopping her from working with Kelly forced her to resign (and therefore was a constructive dismissal as defined in s.386(1)(b)).

[25] Ms Stowers filed her application for an unfair dismissal remedy on 13 April 2021. By then she had been offered work at Bondi, Blacktown and the Central Coast – none of which were viable locations. She had not accepted any further work from Drake but had not explicitly resigned either.

[26] Ms Stowers relies on the decision of Commission Cambridge in Balgowan v City of Sydney RSL & Community Club Ltd [2017] FWC 3798 (“Balgowan No.1”). Ms Balgowan worked as a casual Customer Service Attendant for approximately 30 hours per week. After some cash handling discrepancies the club removed Ms Balgowan from her “change box” shifts, meaning shifts where she was responsible for a change box (at [12]). Ms Balgowan was offered less shifts and consequently she could only have expected to earn 25% of her previous wages (at [37]). Ms Balgowan resigned “stating that she would not have enough shifts” (at [36]).

[27] The question before the Commissioner was whether Ms Balgowan was constructively dismissed by the club when it changed the type of Customer Service Attendant work she would be offered. The Commissioner found at [37]-[39]:

“The change that Ms Faaui imposed upon the applicant’s employment involved her removal from all rostered shifts that involved work in the “change box”. This alteration was said to have been necessary because of the second instance involving a cash handling discrepancy, and the need to have the applicant undergo training to improve her cash handling procedure. However, this change would result in a reduction of at least about 75% in the applicant’s remuneration. Further, although there was contest as to whether any mention was made of having the applicant undergo training in cash handling, the reduction in remuneration was recorded by the notes made by Ms Faaui to be for a period of “up to 3 months”.

As previously mentioned, if upon objective analysis, the actions of the employer which involved changes to the employment were so egregious as to represent the repudiation of the employment, then the applicant would be able to treat the employment to be at an end. On any reasonable and objective contemplation, an indefinite reduction in remuneration of at least 75% would represent a repudiation of the employment which the applicant could properly reject.

Consequently, it was the actions of the employer which brought the employment to an end. The decision by the employer to remove the applicant from regularly rostered engagements in the “change box” resulted in a 75% reduction in remuneration for the applicant. The applicant was entitled to reject an alteration to the employment of such significance, and to treat the actions of the employer as a repudiation of the employment. Therefore the applicant was constructively dismissed.”

[28] There are similarities and differences between Ms Stowers’ situation and Ms Balgowan’s situation. Drake brought about a change to Ms Stowers’ work arrangements, insofar as it decided that Ms Stowers would no longer be offered work with Kelly. Drake’s decision did not necessarily bring about a change in the number of hours Ms Stowers might work for Drake. There is no precise evidence of how many hours Ms Stowers was likely to have worked if she accepted work with other clients.
[29] In Balgowan No.1 the club told Ms Balgowan that her duties would change, as was the case for Ms Stowers. Commissioner Cambridge found that the change in conditions for Ms Balgowan were so significant that they were a repudiation of the contract and that when she resigned it was a constructive dismissal by the club. Commissioner Cambridge’s decision in Balgowan was successfully appealed.

[30] In City of Sydney RSL & Community Club Limited v Mrs Roxana Balgowan (2018) 273 IR 126; [2018] FWCFB 5; the Full Bench closely examined the contract between Ms Balgowan and the club and relevantly found that the key elements that Commissioner Cambridge found to be important were not terms of the contract of the employment between the parties.

[31] Firstly, in relation to the terms of the contractual relationship between Ms Balgowan and the club, the Full Bench found at [21]-[23]:

“[21] It was not controversial in the proceedings before the Commissioner (nor before us) that the Respondent was a casual employee, albeit one engaged on a regular and systematic basis. In describing that the Respondent was engaged for an average of approximately 30 hours per week, and that she performed work which included duties as a bar attendant, cafe, cashbox and gaming floor services and that part of her role involved the Respondent performing cash handling duties, the Commissioner appears to have assumed, without proper analysis, that the “employment conditions” described above or at least some of them were terms of a contract of employment of an ongoing nature which could only be altered by agreement. This we think is plain from [31] of the Decision wherein the Commissioner makes reference to the question whether the Respondent was entitled to reject “the changed employment conditions imposed” by the Appellant, with the consequence that although the Appellant “may not have taken any action to overtly dismiss” the Respondent, “but instead it changed the employment circumstances”, so as to raise the question whether “such changes permit the” Respondent “to appear to resign on the basis of a rejection of the changes in the employment” and that “these circumstances are comprehended by what is often described as a constructive dismissal.

[22] The assumption made by the Commissioner that the particular “employment conditions” identified by him as being contractual terms is respectfully erroneous because it ignores fundamentally the casual nature of the Respondent’s employment.

[23] Although the notion of casual employment developed by reference to the characteristic that a casual employee was someone who had occasional or irregular work, this is plainly no longer the case. Casual employees now frequently work for a single employer on regular hours over extended periods. Casual employees may be used in the short term or for much longer or extended periods; they may be employed as a casual employee on a regular and systematic basis with an expectation of continuing employment on that basis; or they may be called upon to work as a casual employee infrequently or irregularly and have no expectation of being engaged otherwise. That this is so is plainly recognised in s.384(2) of the Act which describes the method by which a period of service as a casual employee is counted towards an employee’s period of employment for the purposes of ascertaining whether an employee has completed a period of continuous service with the employer at the time of his or her dismissal so as to meet the minimum period of employment identified in s.383 of the Act.”

[Footnote omitted, emphasis added]

[32] Secondly, in relation to whether the change in the work arrangements instigated by the club led to a constructive dismissal, the Full Bench found at [26]-[29]:

“[26] As we have already observed, there was no contest as to the Respondent’s status as a casual employee. There was no written contract of employment. The work the Respondent performed involved a variety of general hospitality duties including bar attendant, café, cash box and gaming floor services. The Respondent was rostered an average of approximately 30 hours per week but this would fluctuate depending upon the operational needs of the Appellant as well as the nature of casual employment. The Respondent’s evidence was that she could work between four (4) to six (6) shifts a week, but the number of shifts she would work would be dependent upon whether she picked up extra unrostered shifts. Moreover, we accept the Appellant’s submission that there was no suggestion that an entitlement to work an average of 30 hours or to undertake work cash box shifts was an implied term of the contract of employment.

…

[29] Since neither the future shifts, weekly hours and duties that the Respondent expected to work and perform nor the location at which that work would be undertaken were contractual, it was not open for the Commissioner to conclude that the proposed alteration, albeit short term, to the number of hours or shifts that the Respondent as a casual employee would be offered, the location at which work during those hours would be performed or the duties to be performed was a repudiation by the Appellant of the contract of employment. It follows that there was not a constructive dismissal.”

[Footnotes omitted, emphasis added].

[33] Ms Balgowan’s application was remitted to [then] Commissioner Saunders to redetermine the claim. New evidence was received and Commissioner Saunders found that Ms Balgowan had not been dismissed. His findings included the following at [13]:

“In light of my findings, on the balance of probabilities, that Ms Faaui did not tell Ms Balgowan that the Club was not offering her any more shifts after 10 April 2017 and the Club did offer Ms Balgowan a bar shift on 25 April 2017, together with other bar shifts (as they became available) while she was undergoing re-training in cash handling, there was no action by the Club which directly and consequentially resulted in the termination of Ms Balgowan’s employment, nor was there any action on the part of the Club which was either intended to bring the employment to an end or had the probable result of bringing the employment relationship to an end.17 Accordingly, I am satisfied that Ms Balgowan’s casual employment with the Club was not terminated on the Club’s initiative within the meaning of s.386(1)(a) of the Act.”

The contractual arrangements between the parties

[34] It is therefore important to identify the key contractual terms of the employment applicable in March 2021 1 in order to assess the significance of the change made by Drake at the time. The two key contractual terms to be identified are firstly whether the work Ms Stowers was contracted to perform was only work for Kelly, and secondly whether there was any contractual obligation for Ms Stowers to work a specific number of hours or even a specific range of hours.

[35] At least the following possibilities arise for consideration:

a) the work Ms Stowers performed during her period of employment was limited to only work for Kelly;

b) the work Ms Stowers performed during her period of employment was for Drake’s clients generally, although allocated to only one client at a time;

c) Drake was required to provide work for Ms Stowers on at least most Fridays, most Sundays (alternating between 10 hours and then 4.5 hours each fortnight) and Ms Stowers was correspondingly required to be available at these times; and

d) the specific regular hours were not a contractual term.

[36] Drake relied upon a document called a “Contractors Agreement” that Drake and Ms Stowers signed in 2019 (“the Contractors Agreement”). The Contractors Agreement is in the form of an independent contractor’s agreement and expressly denies that any employment relationship was formed by the making of the agreement. By every orthodox test Ms Stowers was an employee and fortunately Drake did not try to submit that she was not. Importantly, the Contractors Agreement purported to offer work to Ms Stowers on a “per assignment basis”, which seems to refer to Drake giving Ms Stowers individual assignments to particular clients, and Drake expressly stating in the Contractors Agreement that there was no obligation on Drake to make a minimum number of placements or provide Ms Stowers with continuing work.

[37] I am prepared to put a small amount of weight on the terms of the Contractor Agreement, but only a small amount. I am concerned that most of the express terms of the Contractors Agreement are irrelevant or inconsistent with the actual arrangements between Ms Stowers and Drake. There is no dispute between the parties about whether Ms Stowers was an employee of Drake. The small amount of weight that I am prepared to afford to the terms of the Contractors Agreement is that the document broadly indicates that Ms Stowers would be assigned to work for individual clients and the amount of work that she could do was referrable to the needs of individual clients.

[38] Drake provides specialised disability services within its Drake Medox operation. Drake argued that Ms Stowers’ “temporary assignment with one Medox client ... came to an end”. Drake submitted that:

“… the Applicant was not dismissed by the Respondent. The Applicant chose to not continue any further engagement by the Respondent as a casual labour hire worker from the time of her removal from her assignment with the Client. The Applicant made this choice freely and unilaterally, and despite the Respondent offering five (5) alternative assignments to the Applicant.”

[39] Ms Stowers worked for one client during her employment with Drake. In fact, Ms Stowers only came to be employed by Drake because Kelly engaged Drake as her service provider.

[40] If it was the case that the work Ms Stowers performed during her period of employment was limited to only work for Kelly, then one would expect some kind of express statement by Drake or Ms Stowers to that effect prior to the commencement of the contract. Neither party gave evidence of any such statement prior to the commencement of the contract, or even during the life of the contract. For what it’s worth both parties seemed to have carried an expectation that Ms Stowers’ employment did not automatically stop on 29 March 2021, evidenced by both parties turning their minds to which other clients Ms Stowers could provide care to.

[41] Even if the work Ms Stowers performed for Drake was limited to work for Kelly, then that arrangement necessarily would have incorporated all of the inherent uncertainties of casual employment in disability services. That is, the arrangement would have necessarily factored in the possibility that Drake might not have work with Kelly (either temporarily or indefinitely) because Kelly’s needs might change or because Kelly might different choices regarding her care. In this regard even if there was such a contract and a dismissal occurred, it is difficult to see how that dismissal would be unfair when Drake could no longer allocate work for Kelly because of a situation beyond Drake’s control.

[42] On balance the only finding available to me is that the contractual arrangements between Ms Stowers and Drake were not confined to Ms Stowers only working for Kelly.

[43] This is a significant finding because the consequence is that when Drake stopped offering Ms Stowers work with Kelly, the contractual relationship continued.

[44] Comparing Ms Stowers’ situation to Ms Balgowan’s, the change instigated by Drake on 29 March 2021 (that Ms Stowers would no longer work for Kelly) was not so significant that it was a repudiation of the contract or a constructive dismissal. That is, I cannot find under the contractual arrangements between them that Drake was required to continue to offer work with Kelly (such that Drake’s failure to offer further work with Kelly amounted to a direct dismissal or a constructive dismissal).

[45] Even though there was some regularity to the pattern of hours Ms Stowers worked, there is no evidence that establishes that Drake was required to provide work for Ms Stowers on Fridays and Sundays or, for that matter, that Ms Stowers was contractually required to be available at these times.

[46] The work offered to Ms Stowers after 29 March 2021 was different and represented a change. It is possible that the number of hours offered might have changed as well.

[47] Both parties agreed at hearing that there was no work that Drake unfairly or improperly refused to offer Ms Stowers. That is, there was no other casual work that Drake had available that it held back from making available to Ms Stowers.

[48] All but two assignments offered to her were significantly further away from Ms Stowers’ home in Ingleburn in south-west Sydney. However, Drake did offer Ms Stowers work with one client at Voyager Point and with another client at Rosemeadow which were, in my view, not so far from Ms Stowers’ home as to be unreasonable. By the time Ms Stowers was offered work at these two locations her claim was progressing through the Commission and Ms Stowers had decided that her time with Drake was over.

[49] The ongoing offers of work were to Drake’s credit and the rejection of these offers weakened Ms Stowers’ claim that she was treated unfairly.

[50] Overall, I cannot find that under the contractual arrangements between them that Drake was required to continue to offer work to Ms Stowers over the same number and pattern of hours such that Drake’s failure to offer further work amounted to a direct dismissal or a constructive dismissal.

[51] On the material before me I find that Ms Stowers’ employment with Drake was not terminated on 29 March 2021 when Drake told Ms Stowers that she would no longer allocated work with Kelly.

[52] Ms Stowers’ casual employment continued on the basis that Drake would continue to offer Ms Stowers work for other clients. Because the ongoing employment relationship was casual Drake was only obliged to pay Ms Stowers for work that she agreed to do. Ms Stowers, for her own reasons, decided not to accept any further work from Drake.

[53] I recognise that Ms Stowers is aggrieved by the situation and strongly holds the view that Drake should have treated her better than they did.

[54] I agree with Ms Stowers that Drake could have treated Ms Stowers better. Ms Stowers had provided nursing care to Kelly for a considerable period of time - some 9 years - and was suddenly told in a telephone call that Kelly had decided to no longer have any contact with Ms Stowers. Ms Stowers was not given any chance to rectify the situation - which I accept was Kelly’s decision and beyond Drake’s control – but Ms Stowers was understandably more aggrieved by the suddenness and the finality of Drake’s decision. In this regard, Drake could have been far more sensitive to the impact of Kelly’s decision on Ms Stowers. That said, in all the circumstances I cannot find that Ms Stowers was unfairly dismissed because I cannot find that Ms Stowers was dismissed at all.

[55] Accordingly, I dismiss Ms Stowers’ application.

DEPUTY PRESIDENT

Appearances:

Mr M Peters, for the Applicant
Mr D Parncutt, for the Respondent

Hearing details:

2021.
Sydney (By Video using Microsoft Teams)
23 July.

Printed by authority of the Commonwealth Government Printer

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 1   See for example Hyde v Randstad Pty Limited; Brisbane City Council [2021] FWC 1745 at [69].