Fair Work Act 2009

s.394 - Unfair dismissal

Unfair dismissal application - no dismissal - application dismissed

• [1] Barbara Wielechowska has made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). She contends that on 14 August 2024, she was summarily dismissed from her employment as a nurse with Delmont Private Hospital (Delmont). Ms Wielechowska submits that she was dismissed without good reason and in circumstances that were unfair. Delmont contends that it did not dismiss Ms Wielechowska but instead told her, repeatedly, that it would not roster her to work until she had completed her mandatory training, which she did not do. Alternatively, Delmont contends that any dismissal was not unfair.

• [2] Zahra Dixon, Delmont's human resources manager, gave evidence that on 29 May 2024, she sent Ms Wielechowska an email stating that she had not completed her required mandatory training modules and that they were significantly overdue. The email stated that the training was a necessary requirement of her position at the hospital, and that if she did not complete the training she would be temporarily removed from the roster. Ms Wielechowska did not reply. On 4 July 2024, Ms Dixon sent her another message in similar terms, this time stating that the training needed to be completed by 18 July 2024, otherwise she would be temporarily removed from the roster. Ms Wielechowska did not complete the training by 18 July 2024. From 21 July 2024 until 13 August 2024 Ms Wielechowska took pre-approved annual leave. On 12 August 2024, Ms Dixon sent Ms Wielechowska another email stating that the deadline of 18 July 2024 had passed and that she would need to complete the mandatory training at the commencement of her first shift when she returned from annual leave.

• [3] Ms Dixon's evidence was that on 14 August 2024, when Ms Wielechowska returned from leave, she refused to undertake or discuss her outstanding mandatory training and denied any knowledge of Ms Dixon's emails to her about the training. This was relayed to Ms Dixon by Richard Brett, the nurse unit manager. Mr Brett gave evidence that at around 2.00pm he had a discussion with Ms Wielechowska in which he told her that she would not be permitted to commence work until she had completed her training. Ms Wielechowska replied that she did not know what that meant. Mr Brett was confused by this because Ms Wielechowska had undertaken the mandatory training previously. He referred Ms Wielechowska to the correspondence that had been sent to her about the mandatory training. Ms Wielechowska said that she had not received it. Ms Dixon's evidence was that she attended the meeting with an envelope containing the correspondence and offered it to Ms Wielechowska, but she would not take it because it was 'not an authorised form' and indicated instead that it should be posted to her. Mr Brett told Ms Wielechowska again that she could not commence work until the training was complete. She asked whether Mr Brett was asking her to leave. Mr Brett said, 'yes, you cannot work on the ward until you have undertaken your training.' She then left. Mr Brett said that later he telephoned Ms Wielechowska but she did not answer. He left a message for her to return his call but she did not do so. He has not heard from her since.

• [4] Ms Dixon said that on 16 August 2024, Delmont emailed to Ms Wielechowska a letter dated 15 August 2024 from the director of clinical services, Kylie Waters. The letter stated that Ms Wielechowska had not complied with the hospital's mandatory training requirements, and that the hospital had sent her numerous reminders about this. It referred to clause 64(a)(i) of the Delmont Private Hospital Nurses Enterprise Agreement 2023, which states that every employee 'must attend training required to meet statutory responsibilities ... provided by the Employer in each twelve-month period'. The letter noted that Ms Wielechowska's contract of employment required her to comply with the hospital's policies and procedures and referred to Delmont's Employee Education and Training Policy, which states that staff who have not completed their mandatory training may be temporarily removed from the rostering system until the training has been done. In her letter, Ms Waters told Ms Wielechowska that because she had not completed her training, and had exhausted her annual leave, she was being placed on leave without pay until such time as she completed the training. She was directed to complete it by 23 August 2024. The letter stated that support would be provided to Ms Wielechowska if she needed assistance to do the training. It concluded by stating that any further refusal to comply with the conditions of her contract of employment would result in disciplinary action up to and including termination of employment. Ms Dixon said that the letter of Ms Waters dated 15 August 2024 was also posted to Ms Wielechowska, together with the previous correspondence referred to in the letter. Ms Dixon said that sometime later the package of documents that was sent to Ms Wielechowska was returned to the hospital in an envelope marked 'return to sender'. It had been opened and resealed. Ms Dixon said that despite Ms Wielechowska's refusal to complete the training, the hospital had not dismissed her and she remained employed; if she completed the required training, she would be rostered to work.

• [5] Ms Wielechowska's evidence was that on 14 August 2024, when she returned to work from annual leave, Mr Brett told her that she had not completed her mandatory training and that she told him that she did not understand. He then asked her whether she was saying that she would not complete the training, to which she replied, 'I don't know what it means to me'. Mr Brett said that he would fetch Ms Waters to have a chat with her, but Ms Wielechowska said that she had come to the hospital to work and not to have meetings. She said that later, a woman came (evidently Ms Dixon), holding an A4 sized envelope, and suggested that they meet privately. Ms Wielechowska's evidence was that she felt concerned and thought that she was going to be fired, and that Mr Brett said to her, 'You leave now,' which confirmed to her that she had been dismissed.

• [6] Ms Wielechowska said in her statement that she did not have an opportunity to request a support person to attend the dismissal and that there were no witnesses to the dismissal other than Mr Brett and the 'unnamed woman serving me my dismissal'. She said that there was no good reason for her dismissal and that there was nothing wrong with her performance. She also said that she had not been provided with policies and procedures relevant to her role as a registered nurse and that her 'due date for education' was December 2024. At the hearing, Ms Wielechowska said that she had in fact completed all necessary training. She produced training certificates in respect of three training modules. But according to Delmont, there were 12 modules of training that were outstanding from 2023. These could be completed online. The hospital's training records showed that these 12 modules had not been completed.

• [7] I find that Ms Wielechowska was not dismissed by the hospital. Although her conduct gave the hospital every right to terminate her, and although Ms Waters stated in her letter of 15 August 2024 that continued refusal to complete the training could result in her dismissal, Delmont chose not to dismiss her. As to what occurred in the exchanges between Ms Wielechowska, Mr Brett and Ms Dixon on 14 August 2024, I prefer and accept the evidence of Mr Brett and Ms Dixon to that of Ms Wielechowska, because it was clear, consistent and credible, whereas the evidence of Ms Wielechowska was none of these things. Ms Wielechowska was unable to explain why, if she believed that she had completed all of the necessary training, she did not say this to Mr Brett or Ms Dixon on 14 August 2024. More generally, Ms Wielechowska was not an impressive witness. When asked why she did not respond to the email messages from the hospital, Ms Wielechowska said that she had not agreed for the hospital to use her email address for training purposes. She suggested that she had not looked at her emails. But this was the email address that she had provided to the hospital. When asked why she did not respond to the documents that were posted to her, Ms Wielechowska said that she did not receive them. I do not accept this. Ms Dixon said that they were couriered to her, and that they were opened, resealed and then returned. The obvious inference is that Ms Wielechowska received the documents, looked at them, and then returned them to the hospital. It is not credible for her to suggest that she saw none of the many emails sent to her by the hospital or the posted documents.

• [8] In any event, I find that Mr Brett told Ms Wielechowska that she could not commence work until she had finished her mandatory training. I find that it was objectively clear from this alone that Delmont required the training to be done before Ms Wielechowska could work. Ms Wielechowska did not explain to Mr Brett or Ms Dixon what it was that she did not understand about this. She did not engage with them about the important issue they sought to raise with her. It is clear, and I find, that neither Mr Brett nor Ms Dixon dismissed Ms Wielechowska on 14 August 2024 or at any other time. Nor for that matter did Ms Waters.

• [9] I further find that Ms Wielechowska was aware of the education policy, and that she knew that she had to undertake mandatory training because she had completed such training previously. Even if she was not aware of the training requirements, I note that clause 6 of her contract required her to familiarise herself with workplace policies. If Ms Wielechowska disagreed with the hospital about what training she had completed, she ought reasonably to have raised this. I find that Delmont was more than reasonable in the actions it took to have Ms Wielechowska complete the training. It sent her numerous reminders. It was patient. Its decision not to roster her for work was entirely reasonable in the circumstances. Ms Waters' letter dated 15 August 2024 directed Ms Wielechowska to complete the training by 23 August 2024 and foreshadowed disciplinary action if she did not do so. But no disciplinary action was taken. Delmont did not take any step to end the employment. Although the period of leave without pay was never formally extended beyond 23 August 2024, this is, in effect, what occurred. As to the dispute about whether Ms Wielechowska had completed all necessary training, I accept the evidence of Ms Dixon that, while Ms Wielechowska has undergone various training, the hospital has no record of Ms Wielechowska completing the 12 outstanding online modules. Ms Wielechowska showed certificates pertaining to 3 modules, although it appears they relate to attendance training. Based on the evidence before the Commission, I find that Ms Wielechowska has not completed all of her required training. Further, and in any event, I find that Ms Wielechowska unreasonably refused to engage with the hospital about this matter.

• [10] Delmont's position was that Ms Wielechowska remains employed and that if she completes the required training she will be put back on the roster. In my view this position was a generous one towards Ms Wielechowska. Delmont would be justified in treating her conduct as an abandonment of employment.

• [11] Ms Wielechowska's employment was not terminated on the employer's initiative, nor was she forced to resign by the conduct of the employer (see s 386). She was not dismissed. Accordingly, she has no standing to bring an unfair dismissal claim and her application under s 394 must be dismissed.

• [12] In the alternative, if the hospital is to be regarded as having dismissed Ms Wielechowska, that dismissal was not unfair. There was a valid reason for a dismissal (see s 387(a)), because Ms Wielechowska persistently refused to comply with Delmont's many lawful and reasonable directions that she complete the mandatory training, and because she refused to engage with it about their concerns. Each of these matters warranted dismissal. Ms Wielechowska was not notified of any reason for dismissal (s 387(b)) or given an opportunity to respond to a reason for dismissal (s 387(c)), because Delmont did not believe it had dismissed her. There was no refusal to allow a support person to participate in discussions about dismissal because there were no such discussions (s 387(d)). Ms Wielechowska's refusal to complete mandatory training and engage with the hospital about its concerns was misconduct rather than poor performance, but to the extent that it could be regarded as both, she was clearly warned that her performance was unsatisfactory and that the consequence would be that she would be taken off the roster (s 387(e)). The considerations in ss 387(f) and (g) carry no weight because the employer is not a small enterprise. As to s 387(h), any other matters the Commission considers relevant, it is clear that Ms Wielechowska behaved unreasonably in response to the hospital's efforts to have her complete the outstanding mandatory training. If there was a dismissal in this matter, it is my firm conclusion that, taking into account the matters in s 387, it was not harsh, unjust or unreasonable, and therefore not unfair.

• [13] Ms Wielechowska was not dismissed on the employer's initiative (see s 386). She had no standing to make an unfair dismissal application. That application is therefore dismissed.

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