Full decision: https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc7081.htm

If you wish to keep up to date on employee relation issues, please subscribe to my free newsletter here.

Introduction

This matter involves a casual employee who was dismissed for failing to secure the necessary qualifications to enable her to continue in the role of a Pastoral Care Worker. Despite the employee being a casual, the company decided to pay the applicant two weeks’ notice.

The parties in this hearing agreed that the applicant was employed on a “regular and systematic” basis and therefore the casual employment status did not preclude the applicant from pursing an unfair dismissal.

Eight witnesses testified at this three-day hearing.

Commission not bound by rules of evidence

The Commissioner:

“Some of the evidence before me strayed from factual matters into hearsay, opinion, assumption and commentary. I place reduced levels of weight on such evidence except where it is corroborated by direct evidence, is uncontested or inherently believable. I am not bound by the rules of evidence but consider them to be a good and useful general guide. I adopt the approach of a Full Bench of this Commission which has said:

“The Commission is obliged by statute to perform its functions in a manner that is fair and just pursuant to s. 577(a) of the Act. Although it is not bound by the rules of evidence and procedure, the Commission tends to follow the rules of evidence as a general guide to good procedure. However, that which is ultimately required is judicial fairness, and that which is fair in a given situation depends on the circumstances.”

Background

  • The respondent an association connected to churches and schools of Christian faith which is contracted to deliver the National School Chaplaincy Program.
  • The Chaplaincy Program is funded by the Australian Government to provide chaplaincy and chaplaincy support services in schools and school communities primarily through the employment of Pastoral Care Workers (formerly known as school chaplains).
  • The Chaplaincy Program is administered by State and Territory governments.
  • The respondent is contracted by the Government of South Australia through the State Minister for Education to deliver the National School Chaplaincy Program.
  • Under its contract, the respondent must employ “suitably qualified” Pastoral Care Workers.
  • The contract sets out these minimum qualifications, with the respondent being at risk of losing its contract should it not meet these terms.

Minimum qualification

The minimum qualifications required under the contract are:

  • A Certificate IV in Youth Work; or
  • A Certificate IV in Pastoral Care; or
  • An equivalent qualification (as determined by the Department); and
  • Bullying and cyberbullying training (within 18 months of commencement) and competencies in mental health and making appropriate referrals.

The employment

The applicant was advised by letter that she was the preferred candidate for the position, subject to Department for Education and Child Development approval of an “Application for Transition to Minimum Qualifications”.

The respondent sought advice on whether the applicant had equivalency for minimum qualifications, with the respondent taking advice that the applicant should be subjected to a full RPL (Recognised Prior Learning) process with a Registered Training Organisation and not proceed with the equivalency pathway. The applicant was advised of this.

Applicant required to gain qualification

The Department notified the respondent that the Panel had approved transition application for the applicant with the following conditions:

“Prior to commencing NSCP service delivery within the school; the pastoral care worker must complete at least one mandatory unit of competency (i.e. CHCMHSOOl – Work with people with mental health, and CHCCCS016 – ‘Respond to client needs’); WITH the worker to complete the second mandatory unit of competency while under appropriate supervision arrangements made by the school principal.

The worker must complete their indicated studies – ‘Cert IV in Chaplaincy and Pastoral care’ – within 12 months.

[The respondent] must notify DECD in writing of the dates of completion of the mandatory core units of competency, and the date of completion of the qualification identified in point 2 above…”

The applicant completed one of two units of competency which permitted the respondent to commence the applicant’s placement.

However, the applicant failed to complete the minimum qualifications within 12 months of commencing employment, as required by the Department.

The respondent, on the applicant’s behalf, request ed an extension of time for the applicant to complete the qualification. This request was refused.

Disciplinary procedure

Given the department’s response, the respondent undertook it disciplinary process with the applicant.

The applicant was advised:

“As things currently stand, the (serious) situation is that you are in breach of your employment conditions, and we must act to rectify this as a highest priority.”

The meeting was held the applicant was provided with a first warning, and that further disciplinary action would be taken if the applicant did not meet her training obligations.

Failing to provide progress notes of her training, the respondent emailed the applicant:

 “…we require your urgent effort and attention to address this in order to be able to continue with your employment. The expectation and requirement agreed…of you submitting all necessary assessments for consideration…is still in place.”

It added:

“In order to continue to…monitor and assess your progress, I am requesting a meeting with you…next week;…this meeting will also be part of the disciplinary process commenced at our initial meeting…I again request that you immediately forward to me any documentation you have that will be evidence of your current progress…”

The applicant continued to ignore the requests, with the respondent advising:

“It is disappointing to note that you have been unresponsive to Paul’s repeated requests to both provide him with further evidence of your progress and advise him of your availability to meet…”

Following a great deal of toing a froing, the applicant had her employment terminated.

Consideration

The Commissioner stated:

“The obligation to secure the qualification was [the applicant’s] and hers alone. It was not one that the employer could secure for her…”

Conclusion on valid reason

The Commissioner:

“A failure to meet or be able to perform the requirements of a job may constitute a valid reason for dismissal. This is particularly so where the requirement is inherent to the character of the role or the work to be performed, as distinct from being incidental or peripheral. An employee’s failure to complete training required to meet qualifications to meet the inherent requirements of a job is capable of eroding the necessary trust and confidence required between an employer and employee so as to constitute a valid reason for dismissal”.

“[The applicant’s] failures struck at the heart of her employment obligations”.

Mitigation: harsh impact on the applicant

The applicant submitted that her dismissal was harsh because of the impact it has had on her and her earning capacity. The applicant’s evidence was that she has continued to suffer stress and anxiety … she is concerned at the potential reputational impact of dismissal. She says that her financial position remains vulnerable, despite having an entrepreneurial desire to undertake speaking and presentation activities.

The Commissioner also considered the applicant’s age, work history and that she has children under her care:

“However, these factors alone are not unique. They do not outweigh conduct in breach of an employee’s duty or act to sufficiently transform a dismissal for a valid reason into one that can be characterised, at law, as harsh”.

Conclusion

In dismissing the application, the Commissioner found:

  • That is was not the role of the Commission to review whether the employer had a reasonable basis for its decision but to consider whether, based on the evidence, the dismissal was harsh, unjust or unreasonable.
  • The onus of proof in establishing that a dismissal was harsh, unjust or unreasonable rests on an applicant.
  • However, in cases such as this, the employer carries an evidentiary burden to establish that dismissal was for a valid reason. The absence of a valid reason will almost invariably render the termination unfair.
  • Although the applicant was denied elements of procedural fairness, it does not follow that her dismissal was necessarily harsh, unjust or unreasonable. The statutory requirement is that all relevant factors (“the entire factual matrix”) need to be considered, and a weighing process applied.

Commentary

On the one hand the employer employed the applicant without the necessary qualification but gave her the opportunity to gain them. We learn it is the applicant’s onus to attain the said qualifications. The company had in place good systems to manage this process, which ultimately ruled in its favour. In short, the company provided the employee with an opportunity, with the employee not complying with the terms of the employment conditions.