Important Decision for Community Sector Employers
In a decision many employers in the community services sector will find useful, the Fair Work Commission (FWC) has determined that a casual nurse was not dismissed when the sole NDIS participant the nurse assisted decided not to use the worker any longer.
Background
The nurse had provided personal nursing care to one client (who was referred to in the matter by the pseudonym “Kelly”), since 2012. The nurse first worked for another organisation, Nursing Group, providing services to Kelly. In 2019 Kelly changed service providers from Nursing Group to Drake Australia, at which point the nurse left employment with Nursing Group and began work for Drake. The nurse continued to work with Kelly until 29 March 2021 when the work suddenly stopped.
What the nurse did not know at that time was that Kelly had made a complaint in February 2021 about her and asked that the nurse be removed from providing further care. Drake spoke with Kelly over the following weeks in an effort to persuade her to change her mind. Kelly told Drake that it could not tell the nurse about her concerns which related to respect and trust, feeling unsafe and uncomfortable, and that the nurse was too assertive and passive-aggressive when caring for Kelly.
On 29 March 2021, the nurse was invited to join a phone call later that day with representatives of Drake. The nurse was not told what the purpose of the call would be. During the call, the nurse was told she would no longer be working her regular shifts with Kelly. The nurse was not asked to give any response to the concerns about her conduct.
Following 29 March 2021, Drake offered the nurse work with at least five other clients, but the nurse did not accept any of the offers. The nurse made an unfair dismissal claim to the FWC on 13 April 2021.
In the FWC
The nurse argued that either she was dismissed when she was told she would no longer work with Kelly or that Drake’s course of conduct in stopping her from working with Kelly forced her to resign (i.e. a constructive dismissal).
Of Kelly’s decision to cease receiving care from the nurse, Deputy President Easton of the FWC observed that:
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.
The Deputy President noted, however, that Kelly’s decision left Drake in a very difficult situation regarding the nurse’s employment as it was prevented from raising concerns with the nurse because of its obligations to Kelly and therefore prevented from providing the nurse with the opportunity to address the concerns.
The primary question before the FWC was whether the nurse had been dismissed. An unfair dismissal can only occur if a person has been dismissed.
The FWC considered a “Contractors Agreement” between Drake and the nurse which was signed in 2019 and was in the form of an independent contractor agreement. Drake did not argue that the nurse was a contractor (and thus not an employee). The Deputy President placed a small amount of weight on the terms of the Contractor Agreement given most of its terms were inconsistent with the actual arrangements between the nurse and Drake. The small amount of weight the Deputy President was willing to attach to the Contractors Agreement was that the document indicated the nurse would be assigned to work for individual clients and the amount of work assigned was referrable to the needs of the client.
The FWC also considered the fact that the nurse only worked with Kelly during her employment with Drake and only came to be employed by Drake because Kelly engaged Drake as her service provider.
FWC outcome
Deputy President Easton determined that, even if the work the nurse performed for Drake was limited to work with Kelly, that arrangement would have necessarily incorporated all the “inherent uncertainty of casual employment in disability services.” The Deputy President continued:
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 make 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.
The Deputy President’s conclusion in this regard meant that the employment did not end on 29 March 2021 when the nurse was advised she would no longer be assigned work with Kelly. Instead, the employment continued on the basis that Drake would continue to offer the nurse work for other clients. Further, the nurse never indicated to Drake that she was resigning.
The Deputy President went on to recognise the nurse was aggrieved by the situation and believes that Drake should have treated her better. The Deputy President agreed that Drake should have done so given she had provided care to Kelly over a long period. To be told in a phone call that Kelly had decided to no longer be supported by her, without any chance to rectify the situation, was something that should have been approached with more sensitivity to the impact on the nurse.
Despite that, the Deputy President found that the nurse was not dismissed and therefore not unfairly dismissed.