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