1
Fair Work Act 2009
s.394—Unfair dismissal
Michelle Stowers
v
Drake Australia Pty Ltd
(U2021/3120)
DEPUTY PRESIDENT EASTON SYDNEY, 12 OCTOBER 2021
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.
[2021] FWC 6112
DECISION
AUSTRALIA FairWork Commission
[2021] FWC 6112
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[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”
[2021] FWC 6112
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[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.
[2021] FWC 6112
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[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.”
[2021] FWC 6112
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[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)).
[2021] FWC 6112
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[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.
[2021] FWC 6112
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[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.
[2021] FWC 6112
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[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].
[2021] FWC 6112
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[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 20211 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.
1 See for example Hyde v Randstad Pty Limited; Brisbane City Council [2021] FWC 1745 at [69].
[2021] FWC 6112
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[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.
[2021] FWC 6112
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[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.
[2021] FWC 6112
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[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.
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PR734826
F THE F WORK THE SEAL COMMISSION
