1
Fair Work Act 2009
s.394—Unfair dismissal
Madelon Caruana
v
Vitalcare Pty Ltd
(U2022/6573)
COMMISSIONER HUNT BRISBANE, 9 FEBRUARY 2023
Application for an unfair dismissal remedy – requirement to work particular shifts and a
minimum of days per week – organisational review – capacity of applicant to work shifts
required – reasonable and lawful direction based on inherent requirements of the role.
[1] On 24 June 2022, Ms Madelon Caruana made an application to the Fair Work
Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act), alleging that
she had been dismissed from her employment with Vitalcare Pty Ltd (the Respondent) and that
her dismissal was harsh, unjust and unreasonable.
[2] The Respondent operates a Personal Emergency Response Service (PERS) which
provides operator support to primarily older Australians who wear a wireless personal
emergency alarm device, or who have access to a nurse call alarm button system in an aged
care facility. This service is called Rosie and is provided by employees of the Respondent,
referred to as Rosie Assistants, or Rosie Operators. The service runs 24 hours, 365 days a year.
[3] On speaking to the resident, the Rosie Operator must follow a well-documented triage
process and take steps to provide the necessary support.
[4] Ms Caruana commenced employment with the Respondent on 8 April 2019 and was
notified of her dismissal on 1 June 2022, to take effect on 13 June 2022. She was employed as
a Rosie Operator at the time.
[5] The matter was heard before me by Microsoft Teams video on 1 November 2022. Ms
Caruana represented herself and was supported by Ms Christabel Quiah, a former employee of
the Respondent. The Respondent was represented by Mr Duncan Ross, Director and Dr Minoo
Masihpour, General Manager of Emergency Services. After obtaining the views of the parties,
and noting they were self-represented, I decided to convene the matter as a determinative
conference.
[6] The following people gave evidence by Microsoft Teams video:
• Ms Caruana;
[2023] FWC 339
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 339
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• Ms Quiah;
• Mr Ross;
• Dr Masihpour; and
• Ms Supipi Perera, Rosie Operator.
Relevant legislation
[7] Section 394 of the Act provides:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under
Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a
dismissal if an application or complaint has been made in relation to the dismissal other
than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person
under subsection (1) if the FWC is satisfied that there are exceptional circumstances,
taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken
effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
[8] Further, ss.385 and 387 provides as follows:
“385 What is an unfair dismissal
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A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal
Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code:
see section 388.”
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable,
the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s
capacity or conduct (including its effect on the safety and welfare of other
employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason
related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a
support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—
whether the person had been warned about that unsatisfactory performance
before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely
to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource
management specialists or expertise in the enterprise would be likely to impact
on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[9] There are no jurisdictional issues preventing the Commission in determining if the
dismissal was unfair. The application was made in time. Ms Caruana has been dismissed and
has met the minimum employment requirements. The Respondent is not a small business, and
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the dismissal was not a case of genuine redundancy. Accordingly, it is necessary to determine
if the dismissal was unfair having regard to the considerations in s.387 of the Act.
Evidence of Ms Caruana
[10] Ms Caruana is 56 years old and suffers from migraines and has a spinal disorder.
Immediately prior to commencing with the Respondent, she was unemployed. She was
introduced to the Respondent with knowledge of her condition. She was issued with a special
chair and desk on account of her injuries and worked from home. She is on a disability support
pension with a requirement to meet work obligations.
[11] Ms Caruana is contracted to the Australian Government through Centrelink by way of
an Employment Pathway Plan, being a Job Plan, to work a minimum of 30 hours per fortnight.
While on the plan, if she did not meet her obligations, her income support payment would
reduce.
[12] Her employment contract with the Respondent dated 29 March 2019 declares that there
are three shifts:
Shift 1: 7:00am – 3:00pm
Shift 2: 3:00pm – 11:00pm
Shift 3: 11:00pm – 7:00am
[13] The contract required Ms Caruana to work a minimum of three shifts per week. She did
so, overwhelmingly working only Shift 2 and rarely on Shift 1. She did this for approximately
three years. It is her contention that at the interview she advised that she would never be able
to work Shift 3.
[14] Early on in the employment, Ms Caruana informed Dr Masihpour that she would be
unable to work Shift 1, but offered to work the later part of Shift 1 if another employee could
work the early part of the shift. She said that her offer was declined. Her rosters demonstrate
she rarely worked Shift 1.
[15] The Respondent contended that in November 2021 there were significant performance
failures by Ms Caruana. She was issued with the following written communication on 12
November 2021 following a meeting on 11 November 2021:
“Hi Madelon,
Thanks very much for your time on the phone yesterday to discuss the issue raised on
Sunday night. As discussed we identified where the areas of concerns were and we
discussed how to address those. Below I have summarised the issues and what we agreed
on as resolution. Areas of Concerns:
1. Not following instructions in multiple occasions, even though very clearly stated. As
discussed this is one of the most important requirements of this job, and not paying
attention to detail and missing to see or follow the correct instructions may have
significant consequences. Working in an operations environment, we need to be fully
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confident that every step of the process is followed correctly otherwise we might be
contributing to breaking of a process or system with potentially critical consequences.
When you said you didn’t see my instructions in the email, I was immediately very
concerned that you may either not have read my instructions at all, or you read and
didn’t execute it. Which in either case, it makes me question the way you approach your
work. a. In order to resolve this, as discussed, we need to re-gain the confidence that
you will be able to meet the expectation by sticking to the guidelines and instructions.
2. Health related matter impacting work performance. You noted on our call that
because you had a “headache” and were “tired” you couldn’t correct and re-send the
work (this is after being brought to your attention that you missed to follow the correct
instruction, 1.5 hours to the end of shift where there was no calls, or extra work, etc).
As mentioned to you, you MUST take the day off if you are not fit to work and can’t
meet the expectations. If your work quality is affected by any health conditions, we need
to be aware of it and you should not be working. Another example you gave me was on
Tuesday when you mentioned due to your eye-sight you needed to re-arrange the work
between yourself and your shift peer. We had a similar conversation about this matter
last year in September, when I asked you to ensure you are fit to work before doing any
work, and asked you for a doctor certificate to confirm that you are. This serves two
purposes: that your job isn’t a risk to your health, and your health conditions don’t
impact the performance. a. As discussed as a resolution, please take time off when you
are unwell and I would not expect you to work if you are not well enough or tired to a
point that the quality of job is impacted. Also as per your request I will reduce your
shifts to two per week from the next roster onward. As you know this is not aligned with
what is stated in your contract (min-3 shifts a week), however, we are more than happy
to support you with this request for as long as practical.
3. Lack of a sense of urgency to resolve issues when you became aware of them, and
assuming it will be “ok”; and not escalating to management when it is not possible to
accomplish the job on time or to the quality expected. I appreciate that you have been
unwell to address the issue on Sunday, but if for any reason a job cant get done to the
expectations, an escalation is necessary. Please refer to the Rosie Operations Manual for
escalation point of contacts for different situations. a. To resolve that, please be mindful
of the deadlines and expected outcome of what is being asked and escalate to
management if any concerns. As discussed on the phone, please review this email and
get back to me if you have any questions or if you wish to discuss anything further.
Hope this helps to address the areas of concerns and helps us to re-gain our confidence
with your approach towards this very critical job.”
[16] As stated above, the request for Ms Caruana to drop back to two shifts per week was
Ms Caruana’s. In her material to the Commission, Ms Caruana denied this, and said that the
request to reduce her shifts to two per week was made by her in February 2022. She stated that
she broke her right wrist in December 2021 and was not able to work at all for six weeks.
[17] In examining Ms Caruana’s roster, it demonstrates she worked the following shifts from
12 November 2021:
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Week commencing Dates worked Dates worked Dates worked
15 November 2021 16 November 2021 18 November 2021 20 November 2021
22 November 2021 27 November 2021 28 November 2021
29 November 2021 4 December 2021 5 December 2021
6 December 2021 7 December 2021 10 December 2021
Injury
14 February 2022 15 February 2022 20 February 2022
[18] Other than the first week following the written communication, Ms Caruana was,
indeed, only rostered to work two shifts per week.
[19] Ms Caruana stated that in February 2022, she informed the Respondent that she would
be unable to work during Shift 1, that is, the day shift. She noted that no objection was made
by the Respondent at the time.
[20] Where it is asserted by the Respondent that in late March 2022, Ms Caruana was
informed that she would need to work Shift 3, she denied any such conversation occurred. With
respect to a conversation with Dr Masihpour on 29 March 2022 requesting she meet the
Respondent’s requirements to work three shifts per week, Ms Caruana stated that Dr Masipour
was well-aware that Ms Caruana held other self-employment on some mornings. She said that
she did this because she had been unable to secure half-shifts for Shift 1, so had taken on this
other work since 2021.
[21] On 1 June 2022, Dr Masihpour met with Ms Caruana over the phone and following the
meeting, she issued her the following termination letter:
“Dear Madelon,
Following our conversation just now, this letter is to advise you about the outcome of a
recent review of the Rosie department. As a result of this review, some changes were
necessary, which are going to affect you.
Unfortunately, as discussed on the phone, the consequence of this organisation
restructure is that Vitalcare would require that Part time Rosie staff work (as per the
terms of the employment contract) a combination of overnight, afternoon and Morning
shifts and also ideally work minimum of 3 shifts per week. Regrettably, this means that
we have to terminate your employment; after speaking to you at the beginning of this
review process, you confirmed that your circumstances has remained unchanged at that
you won’t be able to work the minimum required shifts or working a combination of
shifts (morning/afternoon and overnight). Although over the past few years, we have
been able to accommodate the flexibility and exemption that you required, we will no
longer be able to continue doing so due to the growing business with the growing need
for staff availability and flexibility. This is to ensure that the risks to the business
continuity are minimised.
We want to make it clear that you have been a valuable employee and this termination
is not a reflection of your job performance. We truly appreciate your contribution to
Rosie over the past 3 years.
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You are entitled to one weeks notice of termination of your employment; however we
would like to offer extra few days to allow you more time to adjust to the change. We
calculate your last day of employment to be 13/06/2022. You will be paid any relevant
accrued entitlement.
We would like to take this opportunity to thank you for your contribution during your
time with us. You have been a valued member of the team and we wish you all the best
with your future endeavour. We sure will miss you.
Also as discussed just now, I would be more than happy to support your transition, and
helping you find new opportunities that suits your circumstances.
I really appreciate your positive perspective towards the change, and wishing you all the
very best.
P.S. Please as discussed, keep this information confidential until I update the team with
all the changes to come.
Kind Regards
Minoo Masihpour
General Manager – Emergency Services”
[22] Ms Caruana asserted that her dismissal is spiteful in that she had made a complaint about
Dr Masihpour prior to her dismissal, alleging that she had bullied and harassed her. No
evidence was led as to what that complaint was about, other than it appears that Mr Ross found
the complaint to be unsubstantiated.
[23] Ms Caruana also asserted that other employees, including Ms Perera, and an employee
named Kate were permitted to work part-time, performing less than three shifts across all three
shifts. Accordingly, she considered she was discriminated against and the Respondent’s
reasons for dismissing her were not valid.
[24] In answering questions from me as to why she was unable to work Shift 3, being the
night shift, Ms Caruana explained that she cannot sleep during daytime hours because she gets
migraines and also has a dog and a bird. She has children aged 23 and 21. Sometimes her son’s
dog is at home with her during the day and she would be unable to sleep with two dogs present.
Further, she said that her adult children would be sleeping while she would be working,
answering calls, and she did not wish to disrupt them.
[25] Ms Caruana noted that night shift is generally the quietest of the three shifts. She also
noted that she is the only Rosie Operator who can speak to customers, where required, in
French, Dutch, German, and a limited amount of Spanish and Italian.
[26] Ms Caruana sought production of the Respondent’s rosters, including post her dismissal.
She said that they demonstrate the following:
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• Ms Perera is not rostered to work across all three shifts, and she only worked four
half Shift 3; and
• Kate commenced in March 2022 and was allocated Shift 3 work between May and
September only.
[27] Ms Caruana submitted that Ms Perera commenced work some eight months later than
herself. Ms Perera also works part-time for the Respondent. From 14 March 2022 until 2
October 2022, Ms Perera only worked two shifts per week, without working overnight shifts.
In October 2022, Ms Perera worked some half night shifts.
[28] Ms Caruana submitted that the evidence demonstrates that Kate was allocated night
shifts only between 9 May 2022 and 12 September 2022. She questioned why Kate wasn’t
required to work all three shifts?
[29] In her material to the Commission, and during the determinative conference, Ms
Caruana proposed that she be reinstated and work two afternoon shifts per week, together with
two half morning shifts. She explained that she often has migraines at 5am, 6am or 7am, and
it takes several hours to overcome the pain. She could work the back-end of the eight hour
shift. She did not explain who would be rostered to work the first four hours of the shift if she
was rostered to work the last four hours of the shift.
[30] On 26 September 2022, following an initial telephone conference before me, the
Respondent offered to reinstate Ms Caruana, on the condition that she could work all three
shifts. Ms Caruana refused the offer.
[31] Ms Caruana produced a medical certificate dated 13 September 2022, noting her
condition is permanent, consists of back pain and migraines, and she would be unfit for work
between 13 September 2022 and 13 December 2022. Curiously, the certificate also says that
she can do ‘any other work’ more than 8 hours per week.
[32] Following her dismissal, Ms Caruana sought other employment in earnest. It is noted
that Ms Caruana has obligations to Centrelink to attempt to secure other work. Ms Caruana also
provided relevant financial information demonstrating financial distress. Ms Caruana received
a modest sum of money on account of dog walking activities she undertook.
[33] In her reply material, Ms Caruana noted that Dr Masihpour had worked 13 night shifts,
but claimed that Dr Masihpour permitted herself to sleep during those shifts, and would text the
other Rosie Operator to inform them when it was she was going to be sleeping. No other Rosie
Operator was permitted to sleep on-shift.
Evidence of Ms Christabel Quiah
[34] Ms Quiah’s evidence did not assist in the matter before me. Ms Quiah’s employment
ended on 13 June 2022, the same date as Ms Caruana’s. On 28 July 2022, Ms Quiah provided
Ms Caruana a Letter of Recommendation, attesting to her capabilities. She signed the letter as
National Supervisor of Vitalcare Rosie Alarm Service.
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[35] I enquired of Ms Quiah why she signed the letter giving that title when she knew she
was no longer employed by Vitalcare. She stated that it was to demonstrate the position she
had held when she had worked with Ms Caruana. I cautioned Ms Quiah against using a title she
no longer held.
Evidence of Mr Duncan Ross
[36] Mr Ross made a witness statement and gave evidence during the determinative
conference. He is a Director of the Respondent and part-owner since 2014. He is an Electronics
Engineer and has worked in electronics and critical messaging systems most of his working
life.
[37] Between 1989 and 1994 he established, owned and operated a call centre and
communication network in New Zealand. The organisation took in excess of 5,000 calls per
day and employed more than 70 employees. Between 1994 and 2004 he was the Chief
Executive of Infostream Pty Limited, specialising in wide-area critical messaging systems and
related products. While working in that company he designed, manufactured, supplied and
consulted on major state and national critical messaging systems, including systems that cover
the state of Victoria and of the entire countries of Holland and Belgium. He considers himself
to be a subject matter expert in calls centres and related services and products.
[38] It is Mr Ross’ view, having owned and operated call centres, that regular operator shifts
are essential to maintain system familiarity and service quality. He considers that three shifts
per week provides the optimum performance of employees.
[39] During 2018 and 2019, he worked with other personnel in the Respondent’s business to
develop a business plan for an emergency call centre for personal emergency alarms which the
Respondent decided to call Rosie.
[40] He interviewed Dr Masihpour and appointed her as Operations Manager. Her role was
to design and implement the Rosie service including writing all operational manuals, scoping
and managing the production of software and related call centre functionality and the
employment and training of all staff.
[41] Mr Ross said that he and Dr Masihpour were aligned with their view on the necessary
number of shifts required and the range of shifts undertaken by employees. It is his evidence
that from many years of practical managerial experience within contact centre services and
telephone answering businesses, he knows that a lack of regular engagement with systems and
processes cause a fall in operators’ familiarity, and an increase in mistakes made, and a fall in
the quality of service provided. Within a service like Rosie, mistakes have the very real potential
for dire, or fatal consequences.
[42] Mr Ross approved Dr Masihpour undertaking an operational review of the Rosie
emergency services business unit in February 2022, following what he described as two brutal
years of trading under Covid-19 conditions. The focus of the review was building operational
capacity to scale for business growth while maintaining service quality. Dr Masihpour
consulted with Mr Ross on many occasions during the operational review.
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[43] Dr Masihpour briefed Mr Ross on the proposed actions with the Rosie Operators to
address what had become a serious issue with staff availability and related performance
concerns. Mr Ross was aware that Dr Masihpour had been covering for many staff on a regular
basis who were not turning up to work, or were reducing their availability. He described the
action as ‘cherry picking’ convenient shifts in contravention of their agreed offers of
employment.
[44] Mr Ross approved Dr Masihpour insisting all Rosie Operators work across all three
shifts and a minimum number of weekly shifts.
[45] Mr Ross provided other irrelevant evidence regarding the attempted sale of Ms
Caruana’s home and her crypto trading activities. I have had no regard for the evidence and I
formed the view that Mr Ross’ involvement in the attempted sale of Ms Caruana’s home (post-
dismissal) to be inappropriate and spiteful.
Evidence of Dr Minoo Masihpour
[46] Dr Masihpour made a witness statement and gave evidence during the determinative
conference. She commenced employment with the Respondent in February 2019 to design,
implement and manage the Rosie PERS. She holds a PhD in Telecommunications Networking,
a Graduate Certificate in Engineering-Telecommunications and Engineer Management,
Bachelor of Computer Engineering, along with industry endorsements and academic awards.
[47] Dr Masihpour’s work experience includes managing project teams in senior roles within
the NBN and lecturing at the University of Technology Sydney in the field of
telecommunications.
[48] In February and March 2019, she proposed to the Respondent’s directors the operational
structure of the Rosie PERS. This included employing part-time operator staff with a minimum
required hours of work being three various shifts (24 hours) per week. The reason for this policy
was to ensure familiarity with the system, processes, and the nature of work which may vary at
different hours of the day. The decision to employ across the three shifts was endorsed by the
directors prior to recruiting operations employees.
[49] Dr Masipour’s evidence is that the nature of the work undertaken by Rosie Operators is
such that familiarity with the system, workflow and nature of the calls received and tasks
allocated is essential. According to her 10 years of working in the industry, and close
observation of operation staff in the past five years, without high levels of familiarity and
experience, operators are more likely to feel anxious or uncertain and therefore more likely to
make mistakes with processes in dealing with both emergency calls and other related
administrative work. It is for the purpose of driving familiarity and individual confidence that
the Respondent insists on Rosie Operators carrying out regular shifts of each type (morning,
afternoon and night).
[50] Another reason for doing various shifts is the service continuity. This is where rostered
staff are unable to work and replacement by other staff is necessary. Familiarity is also relevant
as she has found that someone who has only done a certain shift may not perform well if given
other shifts where replacement is necessary.
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[51] Dr Masipour gave evidence that the nature of work and the workload varies at different
hours of a day. She stated that it is critical that Rosie Operators are familiar with the system
and service provided. This is potentially a matter of life and death and unsuited to those who
want casual, irregular employment. That type of employment is more likely to result in mistakes
which may compromise service quality and client health. She stated that there were already
some identified issues with Ms Caruana’s performance.
[52] While the employment contract provided to Ms Caruana in March 2019 stated the three
shifts but did not make it a requirement for all three shifts to be worked, an amending contract
was issued to Ms Caruana on 2 October 2019, signed by her on 3 October 2019. It states the
following:
“You will be expected to [work] day, evening and night shifts. As the Vitalcare Rosie
service is an essential emergency service, all Rosie Assistants must be familiar with
work patterns and requirements across all shifts.”
and
“Your hours of work and shift pattern will be in accordance with a roster which will be
issued weekly on Monday.
[for part time workers]: You will be required to work a minimum of three 8 hour shifts
per week. This will include at least one night shift per week and one weekend shift.
Vitalcare’s Rosie service operates 24 hours, 7 days a week with three, 8 hour shifts per
day, these shifts are:
Day Shift: 7:00am to 3:00pm;
Evening Shift: 3:00pm to 11:00pm’; and
Night Shift: 11:00pm to 7:00am”
[53] Dr Masihpour stated that despite contractually agreeing to carry out at least three shifts
per week consisting of morning, afternoon and night shifts, Ms Caruana refused to carry out
those shifts.
[54] In February 2022, Dr Masihpour undertook analysis on the Rosie business performance
and proposed a revised annual strategic plan to the board of directors. The main theme of the
strategic planning for 2022-2023 financial year was building capability to address the increasing
scale of the business, along with recovering from a very challenging Covid-19 period. Once
the strategic plan was endorsed by the Respondent’s directors in February 2022, Dr Masihpour
started undertaking a detailed review of the Rosie organisation which included people,
processes and systems across the board; including interviews with Rosie Operators.
[55] The review around staffing was the concern Dr Masipour held about service quality and
operator scheduling with an increasing number of operators not being available for certain
shifts, mostly overnight shifts. She held a concern that unless all operators were experienced on
all shifts, service quality would be compromised. This is mainly because the nature of the work
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had become increasingly different for morning, afternoon and overnight shifts, both from
volume perspective as well as allocated task types. It had become increasingly difficult to
schedule times for operators who reduced their availability.
[56] It is her evidence that this had been anticipated when employees commenced in 2019
by specifying a minimum of three shifts per week and for them to be performed over the three
shift types.
[57] On 24 March 2022, Dr Masihpour met virtually with the majority of the Rosie Operators
and advised during that meeting that the Respondent was conducting an organisational review
of all aspects of the Rosie business. Despite being invited to attend the meeting, Ms Caruana
did not. Following the meeting, Dr Masihpour emailed all Rosie Operators with minutes of that
meeting. Ms Caruana is noted as an apology. During the determinative conference she stated
that she didn’t attend as she had obligations that day. The email is as follows:
“Hi Team,
It was so lovely to see you all today in our Rosie all-hands team meeting. Thanks
everyone for attending!!
for those of you who didn’t get to attend, here is what we discussed:
• We heard from Stuart, Caitlin and Graeme and what they do for the team.
• We then heard from Kathie and Kait about their experience as a new member
of the team and was lovely to hear how supportive you have been for each
other (a wonderful team quality!)….Abby will be on the list for next meeting
(smile emoji)
• Business Update from Minoo:
• Operating Model Review in progress
• In order to prepare for “Scale” as we keep growing, we are
reviewing the way we operate. With this review we are working
towards some key objectives that are as follow:
• Achieving operational efficiency
• Improved operational reliability and availability
• Improved quality of service offering
• More support in place for Operations team
• Maintaining a great relationship with our corporate and
consumer customers
• Upskilling the team
• Improved CX (customer Experience)
Note: as discussed I may contact some of you with questions, etc. as part
of this initiative; and I will be working with you closely if any potential
changes has an impact on you and your work.
• Key Projects we are working on.
• We just recently kicked off “Bender” project to build a
comprehensive IT solution for Rosie Client management. This
projects aims to automate and simplify operational process while
providing further capabilities.
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• Working on some partnership initiatives to expand the scope of
Rosie
• Working on continuous improvement initiatives to further
improved the existing products.
• Village rollout:
• We just finished the rollout to (redacted)
• Housekeeping:
• With call volume increasing and calls going to queue, we need to
get much better at wrapping up the non-critical calls to clear the
queue as quick as possible. We also have some busy hours during
the day (10-12 morning and 3-4 afternoon), so we need to make
sure we are extra available and not working on any non-urgent
activities such as unurgent todo tickets, etc.
Please let me know if you have any questions at all.
Lovely to hear your feedback and if you wish this meeting to continue on regular basis.”
[58] Dr Masihpour’s evidence is that the email detailed what was being reviewed and advised
the team that she may contact them, and that she would work closely with them if there was to
be any changes that had an impact on them or their work.
[59] On 12 April 2022, Dr Masipour sent a further email, referring to the previous meeting
of 24 March 2022. The email is as follows:
“Hi Rosie Team,
As you all know and discussed in our last team meeting, we are conducting an
organisational review at the moment to evaluate and reassess the way we operate to
ensure we are ready to scale up even further. Such structural reviews are inevitable in
any growing organisations to implement necessary changes in order to adapt to the
changing needs of the business as it grows. This is to ensure that efficiency, reliability,
business continuity, high performance and quality of service is not compromised as we
are scaling up.
To keep you posted, I thought to write you a quick note updating you on where we are
at with this initiative.
• Although we expected to finalise this review by mid-April, the process has
taken a bit longer that expected and we are now tracking to early next month.
• Last week we have kicked off the implementation of the Bender project with
R&D team; this is going to be our all in one CRM system, with the focus on
efficiency and cross collaboration between different departments. This will
enable us to manage our customers much more easily and efficiently. The
project will go for 10-12 months and would be delivered in 5 phases over the
coming months. Once we are ready for operations, I will make sure you guys
are well equipped with training you need to use it for what is relevant to you.
• Operationally we are still reviewing the structure of the team. I have already
reached out to some of you to discuss relevant matters; and would like to thank
[2023] FWC 339
14
you all for your patience and understanding while we continue the review
process. I will reach out to each individual if the changes would have any
impacts on them, however, will update you as a team at the end of the month
once it is all finalised.
• We have had some people leaving us over the past couple weeks; and
confirming I am in the process of replacement and should have new starters
joining us soon. Meanwhile, I really appreciate your support with covering the
rosters. Please do not hesitate to contact me should you have any concerns
around this.
• We are also looking at the further process improvement across the board.
Again if anything impacts the work you do, I will make sure you are well
onboard prior the implementation.
FYI, we have the following positions vacant at the moment:
• Contact Centre - Personal Services https://au.indeed.com/job/contact-centre-
personalservices-27f3e11392fbaa84
• Sales – Personal Emergency Medical Alarms https://au.indeed.com/job/sales-
personalemergency-medical-alarms-632ae5bf96d0d5ea
It is very important to make sure we keep performing to the highest standards while we
are conducting this review.
If you have any concerns or questions, please do not hesitate to contact myself directly.”
[60] Dr Masihpour’s evidence is that through the review process it had become increasingly
clear to her that changes were needed to ensure a well-performing team who followed a shift
structure that was optimised for quality service and performance. She said that performance
limitations of the structure were crystalised and subject to critical failure in April 2022. As an
example, from 17th April 2022 until the end of April 2022, she had to personally cover 11
overnight shifts (within 14 days) as a back-up due to lack of staff availability.
[61] In response to what occurred in mid-April with Dr Masihpour having to work a very
large number of night shifts due to short-staffing, she commenced urgent recruitment, seeking
employees with availability to work across various shifts, most importantly night shift, with a
minimum of three shifts per week of all shifts.
[62] Dr Masihpour stated that she interviewed Ms Caruana on 29 May 2022 via a Teams call
and discussed with her the need for her to carry out three shifts per week of different types.
During this interview she questioned Ms Caruana on her availability and the inability for the
company to provide Ms Caruana with the flexibility she had previously enjoyed. Dr Masihpour
asked her, “Madelon, are you willing and able to carry out all shifts?” Ms Caruana replied “No,
I am not”.
[63] Dr Masihpour informed Ms Caruana that not being available to carry out the minimum
number of shifts and a full range of shifts was likely to result in the termination of her
employment, and explained to Ms Caruana why this was important for service quality. Ms
Caruana appeared to Dr Masihpour as unfazed by the prospect of termination and she left it
https://au.indeed.com/job/contact-centre-personalservices-27f3e11392fbaa84
https://au.indeed.com/job/contact-centre-personalservices-27f3e11392fbaa84
https://au.indeed.com/job/sales-personalemergency-medical-alarms-632ae5bf96d0d5ea
https://au.indeed.com/job/sales-personalemergency-medical-alarms-632ae5bf96d0d5ea
[2023] FWC 339
15
with Ms Caruana to consider her availability very seriously and come back to her urgently
should her decision change. Ms Caruana did not contact Dr Masihpour.
[64] On 1 June 2022, Dr Masihpour again met with Ms Caruana via a Teams call and again
asked her if she was willing and able to carry out the required number of shifts. Ms Caruana
said, “No, I am not”. Dr Masihpour informed Ms Caruana that the consequence of her refusal
would be termination of her employment. Ms Caruana told Dr Masihpour she was expecting
the call and she was understanding of what was happening to her and why. Dr Masihpour then
sent a confirmation email to her following the conversation, including a termination letter at
[21] referencing the conversation.
[65] Dr Masihpour noted that Ms Caruana had provided a medical certificate in the past
stating that she is “fit to work from the 05/10/2020” with no qualification as to what she cannot
or should not do.
[66] Dr Masihpour stated that her focus on improving team performance was essential over
the last year as the volume of calls and number of customers along with the complexity of
operations had all increased. She recognised there was an urgent need to address emerging new
needs within the business unit by making changes to the existing accountabilities and
responsibilities of all staff. Further, she needed an uplifting of individual staff performance and
capability to handle the increasing number of clients and their needs which had become more
complex in nature. She stated this requires a regular certain level of exposure to work duties to
create and maintain system familiarity.
[67] Dr Masihpour noted that night shifts became challenging to fill and afternoon shifts
become popular among employees. It became difficult to please everyone in the team with
their preferences and it was putting pressure on some staff whose availability was more flexible.
[68] Over 18 months, the Respondent’s customers grew almost 350%. Over the same period,
the number of inbound calls increased by approximately 500%. The number of products in the
market increased from two to five and it is planned to increase with the planned introduction of
duress alarms and fire and security alarms.
[69] Dr Masihpour stated that Ms Perera commenced with the Respondent in late 2019 and
has a disability, including mobility challenges. She works mostly from home. Dr Masihpour
rated her performance as exceptional from day one, hence why she is one of only two people in
a team of 12 that conducts on-the-job training for new staff after they finish their initial training
with Dr Masihpour. Ms Perera has so far helped with the training of multiple staff over two
years. The Respondent intends to continue leveraging Ms Perera’s outstanding performance to
support new staff or staff who may require further on-the-job training.
[70] Ms Perera was offered an alternative full-time job in March 2022 but also wanted to
keep her part-time role with the Respondent. When Ms Perera accepted the alternative full-
time role, the Respondent agreed to reduce the mandatory minimum number of shifts to two for
as long as practical for the business, provided Ms Perera was available for all shift types. Ms
Perera confirmed with Dr Masihpour her willingness to work all shifts types every weekend
and public holiday (including Christmas break which has always been challenging from a
rostering perspective).
[2023] FWC 339
16
[71] In written evidence, Dr Masihpour stated that Ms Perera is also available to work up to
eight hours Monday to Wednesday from 7:00pm to 7:00am and available 7:00pm to 3:00am on
Thursdays and Fridays should Vitalcare required her to work. I suggested during the
determinative conference that working full, eight hour shifts was nonsense and unsafe given
she has a full-time substantive role and needs to sleep.
[72] Dr Masihpour took into account Ms Perera’s availability to work at short notice which
she does, often filling in for other operators who cannot work. Examples of Ms. Perera working
extra hours is listed as below:
Week of 02/10/2022 Rosie Operations was short of 3 staff due to sickness which
put a significant pressure on the shift schedule. Ms. Perera
worked 8 hours of over night shifts to help ease the pressure.
Week of 10/10/2022 half a night shift extra
Week of 1/08/2022 3 hours extra
Week of 4/07/2022 half shift extra
Week of 6/06/2022 half shift extra
Week of 28/06/2022 half shift extra
Week of 09/05/2022 half shift extra
Week of 23/05/2022 half shift extra
Week of 25/04/2022 1 full shift extra covering public holiday
[73] Dr Masihpour advised that scheduling a 24-hour roster is a very challenging task with
the complexity and influence of around 12 employees and their family commitments. She
stated that this had become more challenging where the Respondent has experienced a
significant rise in the number of sick leave days taken, especially with short notice. For an
emergency service operation, this is a major risk to service continuity.
[74] Accordingly, having an extremely capable and flexible individual such as Ms Perera on
the team is critical to the smooth running of the service. Allocating two shifts per week to Ms
Perera allows the Respondent to leverage her availability during the week when the service
continuity is at risk and urgent replacement in short notice is necessary.
[75] Dr Masihpour stated that her strategy to retain Ms Perera was to give her regular work
to keep her engaged and experienced across all shift types. By not allocating her to three shifts
per week, it made her available at short notice to step in when other employees called in at short
notice. As Ms Perera provides cover during other employees’ annual leave, weekends and
public holidays, the total shifts performed by Ms Perera is comparative to other Rosie operators.
[76] Dr Masihpour contrasted Ms Caruana’s refusal to work more than two shifts and to only
perform shift 2, to that of Ms Perera who is available at short notice, agrees to do any number
of shifts, including on public holidays and weekends, and is available between 7:00pm and
7:00am. Further, Ms Perera agrees to carry out additional training activities.
[77] Dr Masihpour stated that the type of mistakes made by Ms Caruana is consistent with
someone who is unfamiliar with the system, and who lacks experience across a range of tasks
and shifts, and who is less committed to the role as it is only a minor part of their working time.
[2023] FWC 339
17
[78] In cross-examination, Dr Masihpour stated that Ms Caruana’s offer to work the back-
end of the morning shift was not practical. She said that the shifts are designed for a period of
eight hours, and it was not suitable to regularly try to find somebody to work the first four hours
of a shift.
[79] I note that Ms Caruana would only be able to work the last four hours of a morning shift
if she had recovered from her usual migraine in time and was well enough to answer emergency
calls.
[80] Dr Masihpour stated that Ms Perera can do morning and night shifts and is not limited
in the way that Ms Caruana was. Ms Perera also does extra support and can be used during
critical situations. Ms Perera can assist doing partial shifts when a response is required in
emergency situations. Ms Caruana’s restrictions meant that she did not have the flexibility that
Ms Perera provides.
[81] With respect to Kate, Dr Masihpour stated that Kate was working more than her
minimum of three shifts per week until she had urgent surgery. She then went to the United
States to live and was working for the Respondent while living there. Dr Masihpour gave
evidence that when she, herself, had to work night shift hours to cover unmanned shifts, Kate
was fulfilling many extra hours for the Respondent. Kate has now returned to Australia and is
working many hours.
[82] Dr Masihpour stated that the extent and length of flexibility given to Ms Caruana in
permitting her to work only two shifts per week and only on shift two was beyond any flexibility
the Respondent had given to other employees. It could not, however, continue to be
accommodated.
Evidence of Ms Supipi Perera
[83] Ms Perera made a witness statement and gave evidence during the determinative
conference. She commenced employment with the Respondent in December 2019 as a part-
time Rosie Operators.
[84] Ms Perera worked across all of the three shifts until March 2022, when she was offered
a full-time position within a University. Ms Perera informed the Respondent she could not
continue being rostered to work across all three shifts on account of her day work with the
University. Ms Perera proposed to Dr Masihpour that she could work weekend shifts, together
with emergency relief or short-notice replacement shifts, so long as she was not working her
primary job.
[85] Ms Perera gave her availability as:
• Monday to Wednesday, 7:00pm to 7:00am;
• Thursday to Friday, 7:00pm to 3:00am; and
• Weekends and public holidays, as and when required.
[2023] FWC 339
18
[86] In evidence given during the determinative conference, Ms Perpera confirmed that she
has trained a substantial number of new staff at the direction of Dr Masihpour. It is a task she
enjoys performing.
[87] In evidence supplied following the determinative conference, it is evident that Dr
Masihpour relied on Ms Perera and Ms Sreelakshmi Pitla to train new employees.
Additional notice paid
[88] I informed the parties that Ms Caruana should have been provided with three weeks’
notice of termination on account of her length of service and her age. Following the
determinative conference, the Respondent paid to Ms Caruana an additional week’s payment
in lieu of notice, having only provided to her two weeks’ notice on termination.
Consideration
[89] A dismissal may be unfair, when examining if it is ‘harsh, unjust or unreasonable’ by
having regard to the following reasoning of McHugh and Gummow JJ in Byrne v Australian
Airlines Ltd:1
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not
harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the
concepts will overlap. Thus, the one termination of employment may be unjust because
the employee was not guilty of the misconduct on which the employer acted, may be
unreasonable because it was decided upon inferences which could not reasonably have
been drawn from the material before the employer, and may be harsh in its consequences
for the personal and economic situation of the employee or because it is disproportionate
to the gravity of the misconduct in respect of which the employer acted.”
[90] I am duty-bound to consider each of the criteria set out in s.387 of the Act in determining
this matter.2 I will address each of the criteria set out in s.387 of the Act separately.
s.387(a) - Whether there was a valid reason for the dismissal related to the person’s capacity
or conduct (including its effect on the safety and welfare of other employees)
[91] When considering whether there is a valid reason for termination, the decision of North
J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 provides guidance as
to what the Commission must consider:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound,
defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced
could never be a valid reason for the purposes of s.170DE(1). At the same time the
reasons must be valid in the context of the employee’s capacity or conduct or based upon
the operational requirements of the employer’s business. Further, in considering whether
a reason is valid, it must be remembered that the requirement applies in the practical
sphere of the relationship between an employer and an employee where each has rights
and privileges and duties and obligations conferred and imposed on them. The
[2023] FWC 339
19
provisions must “be applied in a practical, common-sense way to ensure that the
employer and employee are treated fairly.”
[92] However, the Commission will not stand in the shoes of the employer and determine
what the Commission would do if it was in the position of the employer.3
[93] When Ms Caruana commenced employment, she was informed she would be required
to work a minimum of three shifts per week. This was not strictly policed.
[94] Approximately seven months later, in October 2019, Ms Caruana was issued with new
employment terms, requiring her to work a minimum of three shifts per week, across all of the
three shifts (morning, afternoon and night). She signed her acceptance to the terms.
[95] For a period of around 2.5 years, this requirement was not enforced upon Ms Caruana
by the Respondent. I am not satisfied that simply because Ms Caruana was not requested to
work across the three shifts, the Respondent permanently acquiesced this term of the
employment agreement with Ms Caruana, or that it was rescinded. Further, I am not satisfied
that because the Respondent allowed Ms Caruana to work mostly two shifts per week, this
became her fixed shifts.
[96] For a period, the Respondent permitted Ms Caruana to work only two shifts per week,
and largely only afternoon shift. Where, however, bona fide business requirements called upon
the Respondent to insist Ms Caruana meet her contractual obligations to work a minimum of
three shifts and across all three shifts, in the circumstances, I accept that it was a lawful and
reasonable direction for Ms Caruana to follow. It would be necessary to learn of Ms Caruana’s
ability to comply with the direction.
[97] Ms Caruana has a reoccurring medical issue preventing her working some mornings.
The migraines she experiences are, I understand, unpredictable, and this would make her
ineligible to be regularly rostered to work Shift 1, the morning shift. The Respondent is,
understandably, not interested in attempting to find another employee to work four hours of
Shift 1, in the hope that Ms Caruana is well enough to work the remaining four hours of Shift
1.
[98] Ms Caruana’s preference is that she not work Shift 3, the night shift, on account of
having dogs awake during the day when she would otherwise be trying to sleep, and on account
of not wishing to wake up adult children while they sleep at night as she takes a modest amount
of calls as a Rosie Operator from presumably a suitable workspace in her home. These are
largely lifestyle choices Ms Caruana poses as a barrier, preventing her from being rostered to
work Shift 3.
[99] Having regard to the significant industry experience of Dr Masihpour and Mr Ross, I
am satisfied that the review undertaken by Dr Masihpour and supported by the Respondent’s
directors was a legitimate and thorough review. The review determined that the Respondent
could no longer accommodate employees who were unable to work across the three shifts,
having regard to the requirement to respond quickly and accurately to calls for help. I accept
that the response of a Rosie Operator at night when a call is made is different to that of an
operator working during the day, more readily able to call upon aged care staff or family to
[2023] FWC 339
20
assist with the welfare of the person wearing the pendant. The Respondent requires its
employees to be agile and skilled in being able to respond to the circumstances.
[100] Ms Caruana’s insistence to work largely only shift 2, and for only two shifts per week
put at risk the Respondent’s agenda to have a versatile and committed workforce in the second
half of 2022. It was not interested in having employees use the Respondent to pick their ideal
shifts, which I accept was causing a large deficit during Shift 3, being the night shift. The fact
that Dr Masihpour had to cover a substantial number of night shifts in April 2022 was evidence
of the very problem the Respondent was attempting to resolve. I accept that the risk to clients
of the service provided by the Respondent was tangible, and the Respondent was within its
rights to address the issue.
[101] While it was available to the Respondent to seek to recruit individuals who preferred to
work Shift 3, night shift, as their primary shift, and overcome the issue of shortages at that time,
the Respondent was entitled, at its prerogative, to find a more versatile group of employees who
could work across all three shifts.
[102] It appears to me that only a small proportion of the workforce would be available and
flexible to work across all three shifts in any one week and on a regular basis. That is for the
Respondent to find and keep such uniquely available employees. Given the circumstances
within the Respondent’s business in 2022, I accept it was a lawful and reasonable direction to
have been given to Ms Caruana.
[103] Ms Caruana’s medical condition meant that she would be unable to satisfy working Shift
1, and her personal circumstances meant that she was unwilling to work Shift 3. She was not
able to work to the requirements she has signed up to in late 2019 which had not been enforced
for a reasonable period.
[104] I am satisfied that in 2022, the Respondent’s circumstances meant that the working of
three shifts per week, across all three shifts constituted the inherent requirements of the role,
and this requirement was lawful and reasonable. By June 2022, Ms Caruana was unable to
meet the inherent requirements of the role and was, accordingly, dismissed from her
employment.
[105] For the reasons above, I am satisfied that there was a valid reason for the dismissal
related to Ms Caruana’s capacity.
s.387(b) - Notification of the valid reason
[106] I am satisfied Ms Caruana was informed that the Respondent considered it a requirement
for Ms Caruana to work a minimum of three shifts per week across all three shifts. Ms Caruana
confirmed that she would not do so. I am satisfied that the Respondent informed her that this
constituted the reason for her dismissal.
s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity
or conduct of the person
[2023] FWC 339
21
[107] Ms Caruana was asked if she would work as per the Respondent’s requirements. I am
satisfied that she was afforded an opportunity prior to her dismissal to indicate her availability.
She confirmed she was unable to work Shift 3.
s.387(d) - Any unreasonable refusal by the employer to allow the person to have a support
person present to assist at any discussions relating to dismissal
[108] The meeting between Ms Caruana and Dr Masihpour was not conducted in person. Ms
Caruana did not request a support person be present and therefore there was no unreasonable
refusal to allow a support person.
s.387(e) - Was there a warning of unsatisfactory work performance before dismissal
[109] Ms Caruana was not dismissed for unsatisfactory work performance.
s.387(f) - Whether the employer’s size impacted on the procedures followed and s.387(g) -
Whether the absence of a dedicated human resource management specialist impacted on the
procedures followed
[110] The Respondent is not a large organisation with a dedicated human resource
management specialist. The consideration within the Act is whether there was an absence of a
dedicated human resource specialist, and it is implied that a smaller organisation might not be
in a position to properly inform itself of the necessary procedures to follow than a larger
organisation.
[111] I consider this to be a neutral consideration in the circumstances.
s.387(h) - Other matters
[112] Ms Caruana considered she had been treated differently to two other employees, namely
Ms Perera and Kate. I have had regard to all of the evidence of the parties relevant to those two
employees. I am satisfied that Ms Perera is a highly valuable staff member of the Respondent.
Her employment with the Respondent is her secondary employment, and she is rostered to work
a minimum of two shifts per week. She is regularly called upon at short notice to assist with
temporary absences, and she is willing and available to work those emergency shifts. This is
incredibly valuable to the Respondent.
[113] Ms Caruana is not willing and available to work outside of her usual two afternoon shifts
per week. Her offer to work the later part of Shift 1, if she is well, is understandably, not
attractive to the Respondent.
[114] Further, Ms Perera is relied upon by the Respondent to assist in training new employees.
Where Ms Caruana stated in evidence that she too, trained new employees, it is clear that Ms
Perera and one other employee are the primary and trusted trainers of new employees.
[115] With respect to Kate, I accept that at the relevant time, some accommodations were
made to her work schedule on account of a temporary injury. I accept Dr Masihpour’s evidence
that Kate’s continued employment with the Respondent has been helpful and she was able to
[2023] FWC 339
22
assist with different time zones whilst she was temporarily in the US. On her return to Australia,
she has resumed significant hours of work.
[116] Ms Caruana’s assertion that she has been unfairly treated when one looks at the work
performed by Ms Perera and Kate and their availability and flexibility is not accepted.
Conclusion
[117] I have determined that there was a valid reason for the dismissal.
[118] I am satisfied that Ms Caruana was informed of the reason for the dismissal.
[119] I am satisfied Ms Caruana was given an opportunity to respond to any reason related to
her capacity.
[120] There was no unreasonable refusal by the Respondent to allow Ms Caruana a support
person because she did not request the presence of a support person.
[121] The reason for the dismissal was capacity, not performance.
[122] The consideration of the size of the Respondent and its human resources capacity is a
neutral consideration.
[123] I determine that Ms Caruana’s dismissal was not harsh, unjust or unreasonable.
Accordingly, I find that the dismissal was not unfair. The application is dismissed.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
PR750361
1 (1995) 185 CLR 410, [465].
2 Sayer v Melsteel [2011] FWAFB 7498 at [20].
3 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
THE CORS THE CO & AUSTRALII W MMISSION E SEAL THE
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb7498.htm
http://www.fwa.gov.au/documents/Benchbookresources/unfairdismissals/Walton_v_Mermaid_Dry_Cleaners.pdf
