Suspension itself is not a dismissal

An orthodox suspension from duty will not ordinarily constitute a dismissal, thus

“Was the suspension a dismissal?

[69] Sections 385(a) and 394 require a dismissal to have occurred as a jurisdictional fact. A

mere allegation that a person has been dismissed will not establish that as fact.22

“Dismissal”

for these purposes (and other purposes of the FW Act) is defined in s 386(1). It provides:

“386 Meaning of dismissed

(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.”

[70] Section 386(1)(b) is not relevant to this matter. No party asserts that Mr Otubaga’s

employment ceased by forced resignation.

[71] Did the events of 12 and 13 July 2023 mean that Mr Otubaga’s employment was

terminated on 12 July effective 13 July on the employer’s initiative within the meaning of s

386(1)(a)?

[72] Termination at the initiative of an employer arises where the action of the employer is

the principal contributing factor leading to the termination of the employment relationship.23

[73] It is plainly apparent that the decision to suspend Mr Otubaga on 12 July following the

receipt of a complaint that day from the parents of Client A was conduct at the initiative of the

employer.

[74] However, it is equally clear that this conduct did not terminate the employment

relationship. For the following reasons, there is no sense in which the suspension or other action

taken by the employer on or around 12 July 2023 ended the employment relationship.

[2023] FWC 2702

9

[75] Firstly, the suspension was not a sham. It was a meaningful and deliberative process

taken to permit an investigation into allegations of misconduct whilst managing the employer’s

duty of care to its clients. It was a process expressly contemplated by the employer’s

Disciplinary Management Policy and Procedure.

24

[76] Nor was Mr Otubaga misled by the employer’s communication about the suspension,

its next steps or what was required of him. Whilst the suspension letter lacked particulars of the

allegations and this was understandably frustrating to Mr Otubaga, it clearly notified the

suspension and the employer’s view that the issues arising “may be considered serious

misconduct”. The allegations were particularised five days later, on 17 July 2023.

[77] Secondly, the objective facts establish that the employment relationship continued for

the twelve days that followed 12 July. During this period Mr Otubaga continued to be paid a

salary for minimum contracted hours (this was not a payment in lieu of notice). During this

time Autism SA investigated the complaints against Mr Otubaga which had given rise to the

suspension and then communicated with him by way of allegations letter (17 July), response

meeting (19 July) and finally a termination letter (24 July). These were all steps associated with

an active employment relationship that was subject to an investigative and disciplinary process.

[78] Thirdly, it necessarily followed from the notice of suspension on 12 July 2023 that Mr

Otubaga would not be working the rostered shift on 13 July. The very nature of a suspension

and its purpose meant that work as a support worker with clients would not be provided until

the investigation was completed and the employer had decided on appropriate action.

[79] Aside from the suspension on pay on 12 July and removal from the next rostered shift,

the only other relevant conduct taken by Autism SA on 12 or 13 July 2023 was the sending of

the warning letter of 12 July concerning the co-worker complaint of 5 July. The warning letter

neither on its face nor by way of effect constituted the ending of the employment relationship.

Its terms expressly provided that it was a formal warning which contemplated remediation of

behaviour.

[80] Whilst the warning letter overlapped communication of the suspension and were letters

of the same date, neither, individually nor collectively, was conduct ending the employment

relationship.

[81] I reject the submission by Mr Otubaga that he was terminated by Autism SA on 12 July

because it had predetermined that he be dismissed. There is simply no evidence of

predetermination. Whilst his relationship with the employer had become somewhat strained by

the two performance warnings in the space of a fortnight and then his complaint of racial

discrimination, the evidence is that the employer had made no decision, stated or unstated, about

his employment when deciding to suspend him on 12 July. Indeed the evidence points in the

other direction. It was the parents of Client A who contacted the employer on 12 July with a

formal complaint, not the employer contacting the parents. The employer then did not prepare

an allegations letter until it obtained further information from the parents of Client A on 14

July. The employer engaged in a meaningful response meeting with Mr Otubaga on 19 July.

[2023] FWC 2702

10

[82] There is also no evidence of predetermination based on Mr Otubaga’s belief that he was

being discriminated against on the ground of race. Whilst this is a belief Mr Otubaga appears

to genuinely hold, the evidence is that the employer, once alerted to his desire to make a formal

complaint, met with Mr Otubaga on 11 July 2023 to assist him formalising the complaint. The

employer then advised him, two weeks later (and two days after dismissal) that the complaint

had not been substantiated. This conduct by the employer does not support a finding of

predetermination.

[83] Considered overall, there was no dismissal on 12 July that took effect on 13 July. The

application is misconceived in advancing that proposition.

Conclusion

[84] There was no dismissal as alleged.

[85] That being so, there is no jurisdiction to hear and determine application U2023/6340.

[86] The application must be dismissed. An order giving effect to this decision will be issued

in conjunction with its publication.25”

 

Otubaga v Autism Association of South Australia t/as Autism SA [2023] FWC 2702 delivered 17 October 2023 per Anderson DP