Employer accepts it has 'serious issues' with its systems and communication
The Fair Work Commission (FWC) recently dealt with the case of a casual worker who believed she was fired because she felt ignored by her employer after weeks of recovering from an injury.
In January 2023, a direct care worker (DCW) employed by Mecwacare took sick leave due to a non-work-related injury. But a series of unfortunate events, along with a lack of communication from her employer, led her to think she was terminated around 30 March 2023.
She applied to the Commission under the Fair Work Act 2009 (FW Act) to address a violation of the general protections provisions related to her dismissal. However, the employer disputed the application, claiming that she was not actually dismissed from her job.
Background of the case
The worker joined Mecwa on December 13, 2021, after completing an online Certificate IV in Aged Care qualification during the COVID-19 lockdowns.
In early January 2023, she injured her back, unrelated to her work. Despite her efforts, she couldn't work her next shift. She informed her manager, who then told her that she would be on unpaid leave during her time off due to the injury.
She provided a medical certificate covering the period from January 11, 2023, to February 24, 2023. The certificate indicated that her doctor estimated her injury would take around six weeks to heal. During this time, she underwent treatment and rehabilitation to recover from the injury. She mentioned that her doctor was unavailable until March 7, 2023, and she scheduled the earliest appointment she could get with him.
Awaiting management’s instructions
On 7 March 2023, the worker submitted a medical certificate to her manager and the HR email for Mecwa, stating that she was fully recovered and ready to return to work.
The certificate confirmed that she could resume her duties on 13 March 2023. However, the manager informed her that Mecwa required more specific information on the certificate for health and safety purposes.
The worker then contacted her doctor, who issued an amended certificate clarifying that she was fit to resume her duties as a DCW from 13 March 2023. The next day, the manager responded that she would reach out to her as soon as she received management's instructions regarding her return.
After a while, the worker sent an email on March 15, 2023, as she hadn't received any updates regarding her shifts. She expressed her eagerness to know what was happening and requested the manager to keep her informed.
On the same day, she also sent an email to the HR department to ensure that everything was in order with the certificate she had submitted. She asked for an update on the situation.
The following day, on March 16, 2023, she received an email from the HR department saying that they were still awaiting management's approval to reinstate her services.
On March 24 and March 30, 2023, she sent follow-up emails to her manager, saying that she was “keen to get back to work” but was “disappointed it was taking so long to approve.”
She also mentioned that she was unable to access her Mecwa self-service account. In the second email, she requested copies of some of her payslips.
Call from the HR Advisor
Later, the worker got a call from the employer’s Human Resources Advisor on workplace injuries and return to work. The advisor said that the reason she could not access her payslips was because casuals are “dropped off the pool” after being absent for six weeks.
In the afternoon of the call, she received an email from Mecwa which included the payslips she had requested. The email sent to her contained the original email from the HR advisor to the payroll department, where he requested her payslips.
In that email, it said in part, “this casual DCW has been absent from work for a prolonged period and was subsequently terminated.” The worker took from her phone call with the HR advisor and the comments on the email thread that she had been “terminated” from her employment.
Employer’s argument
According to Mecwa, when casual employees are absent for six weeks or longer, or if it is known in advance that they will be absent, they are taken off the casual pool list.
However, some employees who are not removed from the list still receive emails and SMS messages about available shifts, which it said can be “quite annoying” to them. The only way to stop these messages from being sent to a casual employee is to remove them from the pool, the company explained.
Mecwa also emphasised the importance of regularly cleaning up the casual pool list because some employees either find work with other employers or leave the industry altogether. It is worth noting that Mecwa does not inform casual employees when they have been or are likely to be removed from the pool, nor does it explain the implications for their employment.
Was there dismissal?
According to Mecwa, they acknowledged that they did not inform the worker that being removed from the casual pool did not mean her employment was terminated.
They also mentioned that when an employee is dismissed, they usually receive a letter, and since she did not receive one, she was still considered employed.
Mecwa agreed “that the failings in the communication between it and [the worker] were caused by deficiencies in its processes and not by any errors on [her] part.”
HRD previously reported an unfair dismissal case involving a worker who argued she did not immediately become aware of her employment termination because she did not have an internet connection.
The Commission’s decision
The Commission said that it did “not consider that Mecwa intended to bring the employment relationship to an end but, its conduct, however viewed, had that effect.”
In its decision, the FWC said the worker “did everything that was asked of her in order to return to work.”
“She provided a medical certificate that gave Mecwa 7 days’ notice of her return and then an amended notice as requested. She respectfully followed up with both [the manager] and the HR email address as to the status of her return to work but all to no avail. No one contacted her to advise her of any impediment to her return or how long it might take to arrange a roster for her,” it added.
“After giving her best (and there is no complaint at all about her work), she was ignored and made to feel of little value,” the FWC said. “While it may not have been intended, it was inevitable that the conduct (or lack thereof) of Mecwa had the probable result of bringing the employment to an end,” it said.
Mecwa conceded that its conduct in this process was “not satisfactory,” and “there are serious issues for it to consider with respect to its systems and communication with its casual employees.”
“It needs to keep its list of available casual employees in order, but by not being proactive in its contact with [the worker], it has lost a committed employee,” it noted. Thus, the Commission ruled that the worker was dismissed and referred the case for conciliation.
