s.365 - Application to deal with contraventions involving dismissal

Perth Obstetrics and Gynaecology Ultrasound Pty Ltd

Application to deal with contraventions involving dismissal

• [1] Renee Phillips (the Applicant) has made an application pursuant to section 365 of the Fair Work Act 2009 (Cth) (the Act) to deal with a general protections dispute involving her alleged dismissal by Perth Obstetrics and Gynaecology Specialists Pty Ltd (the Respondent).

• [2] The Respondent has raised a jurisdictional objection to the application being that the Applicant was not employed by the Respondent.

• [3] The jurisdictional objection was listed for a Hearing on 7 May 2025. The hearing was delayed on multiple occasions due to various requests from both the Applicant and the Respondent. The Applicant did not attend the hearing on 7 May 2025, as a result her witness evidence was not subject to cross examination from the Respondent or the Commission.

• [4] The Respondent outlined that there is a standard recruitment process that is followed when interviewing candidates for vacant positions with the Respondent's business. Dr Thottungal confirmed that the recruitment process included the below stages. The Respondent provided examples of test results, interview guides, and other recruitment requirements to assert that the Applicant's recruitment process was standard and consistent with the business requirements.

• Typing test.
• Interview with a senior receptionist with the business.
• Shadowing of staff to observe scans.
• Shadowing of staff to observe procedures.
• Final interview with Dr Thottungal, who has sole authority to make offers of employment.

• [5] The Respondent submitted that the Applicant attended an interview process, however there was never any employment relationship established between the parties, as the Applicant was never offered employment with the Respondent. Dr Thottungal confirmed that she has sole authority to make offers of employment and that at no stage was such an offer made to the Applicant. Dr Thottungal provided an example of the letter of offer that had previously been sent to Ms Charan and outlined that no such offer was made to the Applicant.

• [6] Dr Thottungal confirmed that there was never any discussion or agreement in relation to the below items:

• Salary or remuneration.
• Hours of work.
• Days of work.

• [7] In addition to the witness evidence of Dr Thottungal, the following employees of the Respondent provided evidence in relation to the recruitment process that the Applicant participated in, and that the Applicant was never employed by the Respondent.

• Ms Olivia Corsbie (Receptionist / Ultrasound Assistant)
• Ms Navini Edirimanne (Receptionist / Ultrasound Assistant)
• Ms Minal Charan (Receptionist / Ultrasound Assistant)

• [8] Ms Corsbie denied ever offering the Applicant a position with the Respondent and confirmed that only Dr Thottungal has the authority to make an offer of employment.

• [9] Ms Corsbie, Ms Edirimanne and Ms Charan all provided evidence that Dr Thottungal is respectful to all patients and staff regardless of their race, gender, religious belief or other protected attribute. Dr Thottungal denies ever making any remarks that were discriminatory or similar.

• [10] The Applicant provided a witness statement in support of her application, the Applicant did not attend the hearing on 7 May 2025, as a result, the Applicant's evidence was not subject to cross examination and could not be tested. I note where the Applicant's evidence conflicts with the Respondent's witnesses, I preferred the tested witness evidence of the Respondent's witnesses.

• [11] The Applicant provided a lengthy witness statement as a part of her submissions. The Applicant broadly submits that she had an interview with Ms Corsbie and during this interview the Applicant was offered the position by Ms Corsbie. The Applicant submits that she then commenced on the job training with the Respondent and was under the belief she would receive a written contract of employment following this training. The Applicant submits that during the interview Dr Thottungal made discriminatory comments towards to the Applicant based on her religion and other general protections.

• [12] As I have noted previously, the Applicant and the witnesses of the Respondent dispute the events that occurred in relation to the recruitment process, however as the Applicant's witness evidence was not tested under cross examination, I have preferred the witness evidence of the Respondent's witnesses.

• [13] From the witness evidence before the Commission, I am not satisfied that the Applicant was ever employed by the Respondent, rather the Applicant was participating in a recruitment process of which she was ultimately not the successful candidate. There is no evidence that the Applicant had been offered either verbally, or in writing, a contract of employment to commence work with the Respondent or that the Applicant had commenced employment with the Respondent.

• [14] Having determined that the Applicant was not employed by the Respondent, the application under section 365 of the Act is dismissed for want of jurisdiction. An order to the effect will be published.

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