1
Fair Work Act 2009
s.365—General protections
Vesna Udovicic
v
MECWA
(C2023/2226)
COMMISSIONER BISSETT MELBOURNE, 24 JULY 2023
Application to deal with contraventions involving dismissal
[1] Mrs Vesna Udovicic was employed by Mecwacare (Mecwa) as a casual direct care
worker (DCW). She went on sick leave for a non-work related injury in January 2023 and, due
to a series of what can only be described as unfortunate events and a failure of the company to
communicate, her employment came to an end on or around 30 March 2023.
[2] Mrs Udovicic made an application under s.365 of the Fair Work Act 2009 (FW Act) for
the Commission to deal with a contravention of the general protections provisions involving
dismissal. Mecwa object to the application on the grounds that Mrs Udovicic was not dismissed
from her employment.
[3] For the reasons that follow I am satisfied that Mrs Udovicic was dismissed from her
employment pursuant to s.386(a) of the FW Act.
Background
[4] There is little dispute about the events leading up to 30 March 2023.
[5] Mrs Udovicic commenced employment with Mecwa on 13 December 2021 after
completing a Certificate IV in Aged Care qualification on-line during the COVID-19 period of
lockdowns. She worked regular shifts for Mecwa on Monday, Tuesday, Wednesday afternoons,
Friday afternoons and every second Saturday..
[6] In early January 2023 Mrs Udovicic injured her back which was not work related. She
found she could not work on her next shift, although she tried. She advised her manager, Ann,
of this who said she would be on unpaid leave (for the period she was off injured). Mrs Udovicic
provided a medical certificate for the period 11 January 2023 – 24 February 2023. She indicated
with the certificate that her doctor said her injury would take about 6 weeks to heal. During this
period Mrs Udovicic undertook treatment and rehabilitation to overcome the injury. Mrs
Udovicic said that at the expiration of her medical certificate her doctor was away and she took
the next appointment she could get with him on 7 March 2023.
[2023] FWC 1799
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 1799
2
[7] On 7 March 2023 Mrs Udovicic provided a medical certificate to Ann and to a human
resources email address (HR email) for Mecwa along with a note that she was now fully
recovered and fit to resume duties. The medical certificate certified that Mrs Udovicic was fit
to resume work from 13 March 2023. On receipt of the medical certificate Ann contacted Mrs
Udovicic and explained that, for health and safety reasons, Mecwa required more specific
information on the medical certificate. Mrs Udovicic rang her doctor who then issued an
amended certificate clarifying that Mrs Udovicic was fit to resume her duties as a DCW from
13 March 2023. Ann replied the following day that she would contact Mrs Udovicic ‘as soon
as I get information relating to your return from management’.
[8] Having heard nothing, Mrs Udovicic again contacted Ann by email on 15 March 2023
in which she said ‘I haven’t heard anything yet regarding any shifts. If you can let me know
what’s happening I would really appreciate it.’ On the same day Mrs Udovicic also sent a follow
up email to the HR email address to check all was alright with the certificate she had provided
and asked that she be advised of what was happening. On 16 March 2023 Mrs Udovicic received
an email from Kath from the HR email address that said ‘We are still waiting for the approval
from management to return you back to services.’
[9] On 24 March 2023 and again on 30 March 2023 Mrs Udovicic emailed Ann indicating
that she was ‘keen to get back to work’ but was disappointed it was taking so long to approve.
She asked for advice as to where she stood as an employee. Mrs Udovicic also indicated that
she could no longer log on to her Mecwa self service account. In the second email she also
indicated that she would like a copy of some of her payslips.
[10] On 30 March 2023, after having sent the email to Ann, Mrs Udovicic had a missed call
from Mark, the Human Resources Advisor on workplace injuries and return to work. On calling
him back, Mark said he was calling because Ann had asked him to follow up. Mrs Udovicic
explained to him the above sequence of events but Mark said he had no record of her medical
certificates from 2023 on her file. Mark explained to Mrs Udovicic that the reason she could
not access her payslips was because casuals are ‘dropped off the pool’ after being absent for 6
weeks. Mrs Udovicic was concerned at the lack of assistance she was receiving and expressed
her disappointment to Mark a number of times. She inferred from what Mark said that Mecwa
did not want her to return to work. Mrs Udovicic also told Mark she was disappointed she was
being ignored and that no-one from Mecwa had contacted her to check-in.
[11] Later that day Mrs Udovicic received an email from Mecwa with her requested payslips
attached. The email to Mrs Udovicic contained the email Mark had sent to payroll requesting
her payslips. That email said, in part, ‘this casual DCW has been absent from work for a
prolonged period and was subsequently terminated.’
[12] Mrs Udovicic took from her phone call with Mark and the comments on the email thread
that she had been ‘terminated’ that she had been dismissed from her employment.
[13] Mecwa said that, when casual employees are absent for 6 weeks or more, or it is known
they will be, they are removed from the casual pool list. If they are not removed from the casual
pool list they continue to receive emails and SMS messages about available shifts which many
find annoying. The only way it can stop messages of available shifts being sent to a casual
[2023] FWC 1799
3
employee is to remove them from the pool. Mecwa said that it is important that they regularly
clean up the casual pool list as some casual employees go to work for other employers or stop
working in the industry. Mecwa does not advise casual employees that they have been, or are
likely to be, removed from the pool or what this means for their employment.
[14] Mecwa also said that it does not accept prospective medical certificates such as that
provided by Mrs Udovicic on 7 March 2023 which said she could resume duties on 13 March
2023. It said it requires a medical certificate that indicates a person’s fitness to resume duties
from the time the certificate is issued. Mecwa agreed that it did not advise Mrs Udovicic of this
requirement or request such a certificate from her.
[15] Mecwa agreed that it did not advise Mrs Udovicic that being removed from the casual
pool did not mean that her employment had been terminated. Further, it said that when an
employee’s employment is terminated they receive a letter and, as Mrs Udovicic did not receive
a letter, her employment had not been terminated.
[16] Mecwa agreed that the failings in the communication between it and Mrs Udovicic were
caused by deficiencies in its processes and not by any errors on Mrs Udovicic’s part.
[17] Mecwa agreed that, when Mrs Udovicic spoke to Mark, she was told that should Mecwa
require additional casual carers she could be ‘re-called’. It also said however that, by indicating
to Mark that she would not return to work for Mecwa, Mrs Udovicic resigned her employment.
The meaning of ‘dismissed’
[18] The meaning of dismissed is set out at s.386 of the FW Act.
(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.
…
[19] It is apparent that, on this meaning, a person can be dismissed without the receipt of a
written notice.
[20] In MacNamara v Wilson S Farm Fresh Fruit & Veg1 Deputy President Lake summarised
the relevant principles to consider in deciding if a dismissal was at the initiative of the employer
as follows:
[16] The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman
v Shahin Tavassoli outlined the relevant authorities with respect to what it means for an
employee’s to be terminated at the initiative of the employer.2 In short, it is not sufficient
to simply demonstrate that the employee did not voluntarily leave their employment.3
[17] While it may be that some action on the part of the employer is intended to bring
the employment to an end, it is not necessary to show the employer held that intention.4
It is sufficient that the employer’s conduct, would, on any reasonable view, be likely to
[2023] FWC 1799
4
bring the employment relationship to an end.5 Put another way, did the employer’s
conduct have the probable result of bringing about the end to the employee’s
employment or leaving the employee with no effective or real choice but to resign?6 It
is necessary to conduct an objective analysis of the employer’s conduct to determine if
it was of such a nature that resignation was the probable result or that the employee had
no effective or real choice but to resign.7 All the circumstances – including the conduct
of both the employer and employee – must be examined.8 In other words, it must be
shown that “the act of the employer results directly or consequentially in the termination
of the employment and the employment relationship is not voluntarily left by the
employee. That is, had the employer not taken the action it did, the employee would
have remained in the employment relationship.”9
[21] I have applied these principles to the matter before me.
Consideration
[22] In this case I do not consider that Mecwa intended to bring the employment relationship
to an end but, its conduct, however viewed, had that effect.
[23] Mrs Udovicic did everything that was asked of her in order to return to work – she
provided a medical certificate that gave Mecwa 7 days’ notice of her return and then an
amended notice as requested. She was not told she needed to get a further certificate which
indicated she was fit for work from the date it was issued. Mrs Udovicic respectfully followed
up with both Ann and the HR email address as to the status of her return to work but all to no
avail. No one contacted her to advise her of any impediment to her return or how long it might
take to arrange a roster for her.
[24] Mrs Udovicic undertook some on-line training for Mecwa while she waited for contact
from Mecwa and it was only when the training completion certificate failed to update that she
discovered she could not longer access the self-service portal of Mecwa. On finally receiving a
call from Mark the message he delivered – both verbally and in the email thread when the
payslips were forwarded – was that Mrs Udovicic was no longer employed – if Mecwa required
additional carers ‘she could be re-called,’ that ‘she had been removed from the casual pool’ and
that she had been ‘absent for an extended period and subsequently terminated.’
[25] Mrs Udovicic found the lack of communication with her after 7 March 2023 and the
message that sent her, along with the words used by Mark both over the phone and in the email
as indicating that she had been dismissed from her employment.
[26] Again, while it may not have been intended, it was inevitable that the conduct (or lack
thereof) of Mecwa had the probable result of bringing the employment to an end.
[27] Mrs Udovicic was devastated by what she saw Mecwa do to her. She took it upon herself
during COVID-19 lockdowns to gain a qualification so she could work in an industry crying
out for skilled and dedicated workers and she did that at a time when the aged care sector was
under immense pressure. After giving her best (and there is no complaint at all about her work)
she was ignored and made to feel of little value.
[2023] FWC 1799
5
[28] Mecwa conceded that its conduct in this process was not satisfactory and there are
serious issues for it to consider with respect to its systems and communication with its casual
employees. I accept that it needs to keep its list of available casual employees in order but by
not being proactive in its contact with Mrs Udovicic it has lost a committed employee.
Conclusion
[29] For the reasons given I am satisfied that Mrs Udovicic was dismissed by Mecwa as
defined in s.386(1)(a) of the FW Act.
[30] The jurisdictional objection of the Respondent is therefore dismissed.
[31] The application will now be allocated for conciliation.
COMMISSIONER
Appearances:
V Udovicic for herself.
S Camilleri for the Respondent.
Hearing details:
2023.
Melbourne:
20 July 2023.
Printed by authority of the Commonwealth Government Printer
PR764473
1 [2023] FWC 795
2 Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941
3 Ibid
4 Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941; see also
Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O’Meara v Stanley Works Pty Ltd
[2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200
5 Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A
Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 [31]
6 O’Meara v Stanley Works Pty Ltd [2006] AIRC 496 (11 August 2006) at [23]
7 Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200
8 Whirisky v DivaT Home Care [2021] FWC 650 at [77]
9 Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 and Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care
Mosman v Shahin Tavassoli [2017] FWCFB 3941 [28]
E WORK COMMISSION WORK THE SEAL THE M$
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc795.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc650.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
