Aimee Newell v Veolia Environmental Services (Australia) Pty Ltd T/A Veolia Environmental Services

[2022] FWC 2631

[2022] FWC 2631

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Aimee Newell
v

Veolia Environmental Services (Australia) Pty Ltd T/A Veolia Environmental Services

(U2022/3647)

COMMISSIONER MATHESON SYDNEY, 29 SEPTEMBER 2022

Application for an unfair dismissal remedy – requirement to provide evidence of vaccination or medical exemption – direction lawful and reasonable – failure to comply with lawful and reasonable direction of the employer – valid reason for dismissal – application dismissed.

1. On 28 March 2022, Ms Aimee Newell (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Veolia Environmental Services (Australia) Pty Ltd (Respondent). The Applicant seeks financial compensation.

When can the Commission order a remedy for unfair dismissal?

1. Section 390 of the FW Act provides that the Commission may order a remedy if:

(a)  the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

(b)  the Applicant has been unfairly dismissed.

1. Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.

When is a person protected from unfair dismissal?

1. Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a)  the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b)  one or more of the following apply:

(i)a modern award covers the person;

(ii)an enterprise agreement applies to the person in relation to the employment;

(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

When has a person been unfairly dismissed?

1. Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a)  the person has been dismissed; and

(b)  the dismissal was harsh, unjust or unreasonable; and

(c)  the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Background

1. The factual background to the matter is as follows:

• The Respondent is in the business of waste management, water management and energy services.

• The Applicant was employed by the Respondent in the role of Operations Supervisor and commenced her employment on 20 November 2017. The Applicant has a history of prior employment with the Respondent however left her employment for personal reasons before being reemployed by the Respondent.

• In the role of Operations Supervisor, the Applicant led and managed a fleet of drivers.

• In April 2021, the Applicant commenced working four days per week, working three of these days from the Respondent’s premises and the fourth day from home.

• On 28 February 2022, the Respondent sent the Applicant a letter via email directing her to provide to her direct manager, by 12 noon on 4 March 2022:

oevidence that she had received her first COVID-19 vaccination; and

oevidence that she had scheduled an appointment to receive her second COVID-19 vaccination; or

ocertification from a medical practitioner of a medical exemption that she is unable to have a dose, or further dose, of a COVID-19 vaccine due to a medical contraindication or an acute medical illness.

• The letter of 28 February 2022 stated that a failure to comply with the above requirements by the required deadline would constitute a failure to comply with a lawful and reasonable direction and this would be regarded as conduct warranting disciplinary action which may include termination of employment.

• On 2 March 2022, the Applicant responded to the letter raising a number of concerns.

• In her letter of 2 March 2022, the Applicant also indicated that she would not be getting vaccinated, suggested that the vaccination was ineffective and suggested the only way of not catching COVID-19 was to stay at home and not come to work if sick.

• On 4 March 2022, the Respondent issued the Applicant with a letter stating that the Applicant had failed to comply with a lawful and reasonable direction and providing her with the opportunity as to why her employment should not be terminated.

• The Applicant was dismissed by the Respondent on 8 March 2022 and verbally notified of the dismissal on that same date. The termination letter issued the next day stated that:

“This decision has been made because, despite repeated requests and sufficient time in which to comply, you have failed to comply with Veolia’s lawful and reasonable direction and because, due to your unvaccinated status, for the reasons previously explained to you, you are unable to perform all of the duties associated with your role of Supervisor.”

• The Respondent did not at the time of the dismissal have its own policy regarding COVID-19 vaccination and site entry.

• Some of the Respondent’s clients had requirements in place regarding COVID-19 vaccinations and site entry for their contractors, including the Respondent’s drivers.

• The Applicant was paid notice in lieu of termination as well as a bonus payment.

The conference

1. There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.

1. After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a conference for the matter (s.399 of the FW Act).

1. At the conference on 6 July 2022, the Applicant was self-represented and the Respondent was self-represented by Mr Hesketh, initial R, Head of Workplace Relations for the Respondent.

Witnesses

1. The Applicant gave evidence on her own behalf and Mr Adam Cohen, the Applicant’s partner and support person during the show cause meeting, also gave evidence on her behalf.

1. The following witnesses gave evidence on behalf of the Respondent:

• Mr Jason Campbell, ‘Southern Region Transport Manager’ for the Respondent; and

• Ms Lyndal Patterson, ‘National Human Resources Manager – Waste’ for the Respondent.

Submissions

1. The Applicant filed submissions in the Commission on 27 May 2022. The Respondent filed submissions in the Commission on 10 June 2022. Final written submissions were filed by the Applicant on 17 June 2022.

Has the Applicant been dismissed?

1. A threshold issue to determine is whether the Applicant has been dismissed from her employment.

1. Section 386(1) of the FW Act provides that the Applicant has been dismissed if:

(a)  the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or

(b)  the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.

1. Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

1. There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.

1. I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the FW Act.

Initial matters

1. Under section 396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:

(a)  whether the application was made within the period required in subsection 394(2);

(b)  whether the person was protected from unfair dismissal;

(c)  whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

Was the application made within the period required?

1. Section 394(2) requires an application to be made within 21 days after the dismissal took effect.

1. It is not disputed and I find that the Applicant was dismissed from her employment on 8 March 2022 and made the application on 28 March 2022. I am therefore satisfied that the application was made within the period required in subsection 394(2).

Was the Applicant protected from unfair dismissal at the time of dismissal?

1. I have set out above when a person is protected from unfair dismissal.

Minimum employment period

1. It was not in dispute and I find that the Respondent is not a small business employer, having 15 or more employees at the relevant time.

1. It was not in dispute and I find that the Applicant was an employee, who commenced her employment with the Respondent on 20 November 2017 and was dismissed on 8 March 2022, a period in excess of 6 months.

1. It was not in dispute and I find that the Applicant was an employee.

1. I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.

Applicant’s annual rate of earnings

1. The parties provided conflicting information in relation to the Applicant’s earnings. In particular:

• the Respondent’s ‘Form F3 – Employer response to unfair dismissal application’ identifies that the Applicant’s wage or salary at the time of the dismissal was $80,131 and that she was paid a car allowance of $10,537.02;

• in her submissions the Applicant identifies her annual income as being $78,541.23;[1]

• a “2017 Remuneration Summary” attached to a letter of offer and dated 20 November 2017 states that the Applicant’s annual base salary is $85,000 and that she was entitled to the benefit of a company car with a nominal value of $18,500;

• a payslip dated 15 February 2022 and for the pay period ending 28 February 2022 states that the Applicant’s salary is $78,541.23

1. Noting that hours of work and conditions are likely to have changed since the Applicant’s commencement, the recent payslip seems to be the most reliable source of information and I find that the Applicant’s salary at the time of her dismissal was $78,541.23.

1. It was not in dispute and I find that, at the time of dismissal, the sum of the Applicant’s annual rate of earnings together with such other amounts worked out in accordance with regulation 3.05 of the Fair Work Regulations 2009, was less than the high income threshold, which, for a dismissal taking effect on or after 1 July 2021, is $158,500.00.

1. I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.

Was the dismissal consistent with the Small Business Fair Dismissal Code?

1. Section 388 of the FW Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a)  immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b)  the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.

1. As mentioned above, I find that the Respondent was not a small business employer within the meaning of s.23 of the FW Act at the relevant time, having in excess of 14 employees (including casual employees employed on a regular and systematic basis).

1. I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as the Respondent is not a small business employer within the meaning of the FW Act.

Was the dismissal a case of genuine redundancy?

1. Under s.389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:

(a)  the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b)  the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

1. It was not in dispute and I find that the Applicant’s dismissal was not due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise.

1. I am therefore satisfied that the dismissal was not a case of genuine redundancy.

1. Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.

Was the dismissal harsh, unjust or unreasonable?

1. Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

(a)  whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b)  whether the person was notified of that reason; and

(c)  whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e)  if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f)  the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g)  the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h)  any other matters that the FWC considers relevant.

1. I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[2]

1. I set out my consideration of each below.

Section 387(a) - Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?

1. In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[3] and should not be “capricious, fanciful, spiteful or prejudiced.”[4] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[5]

1. Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that “the conduct occurred and justified termination.”[6] “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”[7]

Submissions

1. The Respondent submitted that it considered the Applicant needed to provide proof of COVID-19 vaccination because:[8]

• “a number of the Respondent’s clients had implemented their own mandatory vaccination policy as a requirement to access their site or workplace, including BlueScope Steel and the Woolworths Group;

• [the Respondent’s] depot was actually located on the BlueScope Port Kembla Site (BlueScope Site) and, although it was possible to access the depot without entering the BlueScope Site, the Applicant was nevertheless required to enter the BlueScope Site as part of her role in managing her drivers; and

• the Woolworths Group … is the Respondent’s second-largest client;

• all drivers were required to be vaccinated in order to be able to enter the BlueScope Site and various Woolworths Group workplaces; [and]

• as the Applicant was accountable for the performance and safety of all drivers, she was also expected, in her leadership position, to set an example for divers to comply with government and Client Requirements.”

1. The Respondent submitted that there was a valid reason for the dismissal because:

• “the effect of the Client Requirements [regarding COVID-19 vaccination] was that the Applicant was unable to perform the inherent requirements of her role as Operations Supervisor;[9]

• [it issued] a lawful and reasonable direction to the Applicant to provide proof of vaccination so that she was compliant with client requirements;[10]

• just as an employer had no discretion to choose whether or not to comply with a public health order or government direction if it applies to them, the Respondent had no discretion to choose whether or not to comply with client requirements;[11]

• [the] refusal to comply with a lawful and reasonable direction provides a valid reason for dismissal [and] Reg. 1.07 of the Fair Work Regulations 2009 (Cth) (Regulations) recognises that:

“(3)     For subregulation (1), conduct that is serious misconduct includes each of the following:

…

(c)       the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment”;[12]

• the Respondent’s instruction to the Applicant was consistent with her contract of employment which required her to comply with “policies, procedures and lawful directions from management”;[13]

• as the Applicant did not provide proof of vaccination, the Respondent could not confirm to its clients (as it was obliged to do) that the Applicant was compliant with client requirements;[14] and

• the Applicant could not enter the [Respondent’s] clients’ sites in order to perform the inherent requirements of her job, and the Respondent was left with no other option but to terminate her employment.[15]

1. The Applicant submitted that:

• “the waste industry has not been required to mandate COVID-19 vaccination pursuant to government public health orders”;[16]

• she worked throughout the peak of the COVID-19 pandemic without the Respondent raising concerns about her vaccination status;[17]

• she was able to perform her role without risk to the Respondent’s reputation and without risk of breaching customer contracts;[18]

• a “blanket rule” for operational staff should not be a reason for dismissal as her work environment and tasks are very different from those of a driver;[19]

• the Respondent tried to justify her termination by reference to hypothetical situations that are never likely to occur.[20] In this regard, the Applicant submitted that, of the incidents that happened on site during the last 13 months of her employment, she only personally attended to two of them and the unlikely event of an incident involving a truck needs to be considered;[21]

• she does not believe it was reasonable for the Respondent to insist that she provide a copy of her medical documents and has a right to keep her medical information private;[22]

• she did not believe it was right for the Respondent to “pressure” her to sign a consent form for an employee of the Respondent to speak with her doctor about her private health matters;[23]

• the Respondent’s concern regarding her vaccination status only arose in February 2022 when she refused to “upload a mask exemption”;[24]

• she was “bullied” into revealing that she was not vaccinated for COVID-19;[25] and

• she does not believe that the Respondent has any right to direct her to have a medical procedure in which it cannot guarantee her safety now or into the future.[26]

Evidence

1. The Respondent’s position is that the Applicant needed to be vaccinated due to the nature of her role. By way of summary, Mr Campbell’s evidence in this regard was that:

• The Applicant reported directly to him.[27]

• The Applicant’s role was to oversee the day-to-day operations of the team of drivers that she managed and was required to check that each driver was performing their job efficiently and safety, whilst ensuring clients needs were met.[28]

• One of the critical parts of the Applicant’s role was to conduct an “Always Safe Interaction” which involves communicating with the drivers that she managed either at the depot or on-site about their safety and performance. Mr Campbell’s evidence was that as an “Always Safe Interaction” focuses on how the driver is carrying out their role safely, there is a strong preference for these interactions to be face-to face due to the physical nature of driving.[29]

• In the past year, he set the Applicant a target of completing two or more “Always Safe Interactions” per month, with 50% to be completed “on the road”, being on client sites and workplaces so the Applicant could witness firsthand how drivers were performing their duties in practice.[30]

• Mr Campbell asked the Applicant to complete one site inspection per month in accordance with the Safety, Health Environment and Quality (SHEQ) targets set by the Respondent and this was a personal objective, and not something that she could ask someone to complete on her behalf.[31] Attached to his witness statement was a copy of the Applicant’s performance plan. The performance plan includes an “always safe” objective with a start date of 1 January 2022 and which indicates that:

oamong the expected results is that the Applicant “stay on top of safety reports and concerns in [the Respondent’s] depot” and discuss “potential risks and hazards that have been reported and use toolbox to ensure the team is aware”;

othe Applicant is required to conduct one site inspection per month.

• It was a key requirement of the Applicant’s role to travel between the depot and client sites.[32]

• In addition to be on the road to complete her “Always Safe Interactions”, the Applicant was required to respond to incidents or accidents should they occur and although these can never be predicted, incidents had occurred over the past 12 months, including at client sites where a mandatory vaccination policy was in place.[33]

• The Applicant was required to conduct hazard or risk assessments from time to time and Mr Campbell had directed her to complete risk assessments at sites where there have been prior accidents.[34]

1. The key driver for the Respondent’s position that the Applicant needed to be vaccinated appears to be related to the requirements of clients that persons accessing their sites be vaccinated. Mr Campbell’s evidence relating to the requirement to be vaccinated was that:

• On 21 October 2022, he forwarded an email chain to the Applicant which outlined the Woolworths Group’s position regarding vaccination.[35] In that email chain:

oan email from Mr Campbell to the Applicant and two others dated 21 October 2021 states:

“Please see below vaccination requirements that will be implemented by Woolworths (Veolia’s second biggest client) in January 2022”;

oan email below summarises the requirement stating that the Woolworths Group would have a requirement for full vaccination by January 2022 and that the Respondent would have further feedback from the Woolworths Group by the end of November;

oan email from the Woolworths Group to its suppliers is included which states that it will “require suppliers, contractors, partners and other visitors who regularly spend time at Woolworths Group workplaces (including stores, DCs, CFCs and offices) to be fully vaccinated” and that it would engage with those who regularly visits its sites during the next two weeks “listening to understand practical, individual issues and working to resolve them together to meet this requirement” including “allowing for legitimate medical and religious exemptions”.

• On 30 November 2021, Craig Johnston, Southern Regional Manager - NSW, forwarded an email to Mr Campbell and the Applicant (among others), outlining the COVID-19 requirements (including vaccination requirements) for attendance on the Bluescope

  Steel site.[36] The email is attached to Mr Campbell’s witness statement and:

ostates “For Clarity, the Veolia Yard here at PK that we currently lease is not under the same rules as the Bluescope Site and [the Respondent] will continue to follow the NSW health guidelines…”

ostates in relation to contractors:

“Contractors (note individuals unwilling to show vaccination status will be considered unvaccinated)

·All contractors are encouraged to be fully vaccinated, some contractors have mandated full vaccination for their workforce

·All contractors need to manage their employees and sub-contractors to ensure vaccination status is known prior to arrival on BSL sites

·Contractors on site must be prepared show their fully vaccinated status prior to interacting with employees or other contractors and must carry a mask with them

·at all times and follow all the physical distancing protocols

·Contractors to site for general reasons are not to interact with operational or maintenance personnel eg delivery drivers

·Unvaccinated contractors intending to come onto BSL sites, are generally not welcome and must obtain Plant Manager approval to any request prior to arrival

·An unvaccinated contractor will require Plant Manager approval to work on a shift other than the above approval”.

• The Respondent is also the subcontractor for SUEZ and part of the scope of work involves performing work under a “Whole of Australian Government” (WOAG) Contract covering hospitals , medical centres, clinics and schools.[37] The work under this contract was due to start in June 2022 which means that the Respondent would be servicing even more sites and workplaces requiring persons entering the sites to comply with vaccination requirements.[38] The Applicant would be unable to enter these sites to fulfil her responsibilities which also included meeting and greeting new clients.[39]

• Allowing the Applicant to go onto certain sites or workplaces without having proof of vaccination meant that the Respondent could have been breaching its contractual obligations to its clients.[40]

1. Ms Lyndall Patterson, National Human Resources Manager for the Respondent, gave evidence about the Applicant’s role, including that:

• the Applicant’s contract required that she:

o“maintain a high degree of vigilance regarding both [her] own safety and that of [her] team mates”; and

o“comply with all of [the Respondent’s] policies, procedures and lawful directions from management”;[41]

• as Operations Supervisor, the Applicant was required to lead a team of twelve drivers and be accountable for their performance and safety;[42]

• it was an inherent requirement of the Applicant’s role to have regular face-to-face interactions with drivers and the Respondent’s clients, not only at the depot but at client sites and workplaces;[43]

• the Applicant was required to enter and remain at client sites should a complaint arise or an incident with a driver occur;[44] and

• travel from the depot to client sites and workplaces was an essential and inevitable part of the Applicant’s day-to-day role and the Applicant was provided with an annual car and fuel allowance in recognition of this.[45]

1. Attached to Ms Patterson’s witness statement was a copy of the Applicant’s fringe benefits tax declaration in which she declared that 43% of her fuel usage was for business use. The question on the declaration explains “If you travel between two workplaces or travel between home and a different workplace, it is considered a business use”.

1. Also attached to Ms Patterson’s witness statement was a copy of a position description for a ‘Port Kembla Branch Supervisor – Transport’ and which lists among the key responsibilities “Attend customer sites and coordinate delivery”. However, the Applicant’s evidence was that this position description was never given to her and there is no evidence provided to support that it was.

1. In relation to communication with the Applicant about vaccination requirements, Mr Campbell’s evidence was that:

• he had multiple discussions with the Applicant about vaccination requirements, in particular BlueScope Steel and Woolworths Group, and explained why the Respondent required her to provide proof of vaccination status;[46]

• the Applicant expressed hesitation about providing her medical records and did not want the Respondent to have them on file;[47] and

• he explained that he simply needed to sight the Applicant’s proof of vaccination so the Respondent could inform clients that the Applicant was, in fact, vaccinated. [48]

1. Ms Patterson’s evidence was that:

• she was informed by the Applicant’s managers, Mr Gater and Mr Campbell, that they had made the Applicant aware on multiple occasions of the site entry requirements of certain clients and the need to provide proof of vaccination status but that the Applicant failed to provide such proof;[49]

• on 23 February 2022, she met with the Applicant, together with Ms Fernandes of human resources, and explained to the Applicant that:

oit was becoming difficult to support her when she was being so resistant and defiant about disclosing her vaccination status;

othe effect of her continued refusal is that the Respondent could not confirm with clients that all relevant employees were compliant with their vaccination requirements;[50]

• the Applicant confirmed at the meeting on 23 February 2022 that she was unvaccinated;[51]

• she asked the Applicant what she would do if an incident or accident occurred on a client site and she was required to attend but was unable to because she did not meet entry requirements as a result of being unvaccinated and the Applicant suggested she would send somebody else to attend;[52] and

• she explained to the Applicant that attendance at site in these circumstances was a critical art of her role and she did not see how this could be delegated.[53]

1. Mr Campbell’s evidence was that:

• on 28 February 2022, he sent a letter signed by Mr David Gater, State Transport Manager, to the Applicant stating it was a lawful and reasonable direction of the Respondent that she provide proof of vaccination;[54]

• on 4 March 2022, he sent a further letter signed by Mr Gater asking the Applicant to show cause why her employment should not be terminated for failing to comply with that lawful and reasonable direction;[55]

• on 8 March 2022, he met with the Applicant via Zoom together with Mr Gater and Sandra Fernandes, Human Resources Business Pater as a part of the show cause process;[56]

• during the meeting on 8 March 2022, the Applicant said her support person was present, although he was not on camera for the entire duration of the meeting;[57]

• the Applicant explained she was not vaccinated and did not intend on being vaccinated because, in her view, she was not required to enter client sites and could send someone else;[58]

• Ms Patterson and Mr Gater explained why it was not possible for her to delegate a critical component of her role to someone else;[59]

• following the meeting the decision was made to terminate the Applicant’s employment and Mr Gater telephoned the Applicant to inform her of the decision;[60] and

• on 9 March 2022, Mr Campbell sent a letter to the Applicant confirming her dismissal.[61]

1. Ms Patterson’s evidence was that:

• While the Respondent determined that the Applicant’s “repeated refusal to comply with a lawful and reasonable direction” constituted serious misconduct, the decision was made to pay the Applicant in lieu of notice, taking into account the likely effects of the dismissal on the Applicant.[62]

• The Respondent decided to pay the Applicant a cash bonus, despite her not being entitled to one under the Respondent’s bonus policy as she was not employed at the date of the payment of bonuses.[63]

• The Respondent considered the possibility of redeploying the Applicant however at the time there were no available roles for her to perform at home or roles that did not require her to be vaccinated, that were suitable to her skillset and experience.[64]

1. By way of summary, the Applicant’s evidence was that:[65]

• Throughout the 2021 lock down periods resulting from the COVID-19 pandemic, there were times where she worked from home and despite constant rule changes, there was no situation that she was unable to resolve.

• In November 2021 she was interviewed for an Operational Manager role with the Respondent. As the role involved working at a Sydney Water site, the Applicant considered that being unvaccinated “might be an issue” and reached out to Ms Shauna Doyle from human resources to find out more. Ms Doyle advised the Applicant that, if she was unvaccinated, it would be a problem and as a consequence the Applicant was not appointed to the role.

• In December 2021, she enquired with Craig Johnston (Site Manager Industrial Services at Port Kembla) as to what would happen if BlueScope mandated vaccinations as the Respondent’s sites were on its land. Mr Johnston advised that he would be following Government recommendations only.

• Mr Johnston subsequently introduced a site rule requiring unvaccinated persons to wear a mask in the office.

• In February 2022, after returning from leave, the Applicant advised Jason Campbell of the Respondent that she had a mask exemption.

• On 7 February 2022, Mr Johnston and the Applicant had a discussion about the Applicant having a mask exemption and Mr Johnston asked the Applicant to follow up with the Respondent’s site manager Mr Eric Lengling regarding the procedure around this. The Applicant was under the impression that viewing evidence of her exemption would be sufficient.

• On 7 February 2022, the Applicant received a call from Mr Campbell who said he had been told she was “being difficult and uncompliant”.

• A phone call then took place between the Applicant, Mr Campbell and the Respondent’s SHEQ Manager Ms Kristy Trudgett during which Ms Trudgett advised the Applicant that human resources would have to deal with the situation if she did not forward a copy of her medical certificate evidencing her exemption from wearing a mask for the file. The Applicant indicated she was fine for the matter to be escalated to human resources.

• On 8 March 2022, the Applicant attended for work in the office as usual.  On 9 March 2022, while the Applicant was on a day off, she received a letter from human resources. While the Applicant referred to the dates as being 8 and 9 March 2022, it is apparent to me that this is an error and the reference to March was intended as a reference to February. A copy of a letter from human resources dated 8 February 2022 was filed by the Applicant and states:

“I refer to the CRT email sent on 23 December 2021 entitled “CRT Update - NSW Masks Mandate Update”.

Employees were directed to “wear a mask indoors at work at all times, unless they are in an office alone with the door closed, or when eating or drinking”. If employees have a medical reason for not wearing a mask, employees were asked to provide the written medical exemption letter to their manager in order for it to be reviewed by SHEQ.

Background

1.   The Directions came into effect on 23 December 2021.

2.   The Directions impose certain obligations on Veolia in line with NSW Face Masks Rules (update on 24 December 2021) specifying that “all people in NSW over the age of 12 are required to wear a face mask in an indoor area of premises other than a place of residence.”

3.   Irrespective of the Directions, Veolia has a duty of care to all of its workers to provide and maintain a safe workplace which includes taking measures to minimise the risks of COVID-19 in the workplace so far as is reasonably practicable. Veolia has taken the view that in circumstances where its employees have a public-facing role, must interact with critical workers, customers and visit third parties’ premises, and Veolia’s workforce may include vulnerable persons, it is both lawful and reasonable to require all of its employees, including you, to wear a mask or provide an exemption letter for assessment by our SHEQ team.

4.   As a Supervisor for the Transport team based at our Port Kembla depot, you have regular face to face interactions with drivers and other personnel.

5.   On 23 December 2021, we informed you of the requirement to “provide a written medical exemption to your Manager and it will be reviewed by SHEQ”

6.   The purpose of this request is for Veolia to review your exemption letter and assess if not wearing a mask in your current role is placing yourself and others at an increased risk of contracting Covid-19 in the workplace.

7.   Veolia requires you to provide this information, if you do not comply you risk being excluded from having access to the workplace as from 10 February 2022.

8.   8. You are hereby directed to provide to your Direct Manager by 12:00 noon on Thursday 10 February a written medical exemption letter which will be reviewed by SHEQ.

9.   A failure to comply with the direction in paragraph 8 by the required deadline, will constitute failure to comply with a lawful and reasonable direction and this will be regarded as conduct warranting disciplinary action which may include the termination of your employment.

This is a serious matter and Veolia encourages you to seek medical advice from a medical practitioner. If you require further support, Veolia provides free and confidential counseling services to employees. These services may be contacted on ….”

• The Applicant called her manager to check what she should do and he suggested she work from home the next day until they were able to “find out more”.

• On 10 March 2022 (which was likely intended as a reference to 10 February 2022), the Applicant worked from home and a meeting between the Applicant, Mr Campbell and human resources was organised for that afternoon. The Applicant was told in that meeting she would be stood down until a safety risk assessment could be performed relating to her presence in the office.

• Human resources subsequently emailed the Applicant notifying her that she had been stood down and seeking that she sign a consent form so that the Respondent’s chief medical officer could contact her doctor and discuss her private medical history. The Applicant responded to human resources later that evening to advise that I would not be providing consent and enquired why she could not work from home until the risk assessment was completed. The Applicant was told this was “just procedure”.

• On 11 March 2022 (which was likely intended as a reference to 11 February 2022), the Applicant emailed to human resources and Mr Campbell a statutory declaration regarding her mask exemption for consideration in undertaking the risk assessment.

• On 23 February 2022, the Applicant had another meeting with human resources and the focus shifted from concerns about the Applicant’s ability to wear a mask to her vaccination status. During the meeting, Ms Patterson asked the Applicant about her vaccination status and the Applicant initially refused to answer. Ms Patterson indicated that the process would take longer without all the information and that the Respondent was trying to work with the Applicant to get the matter resolved quickly. The Applicant felt bullied and pressured to get the situation resolved and advised that she was unvaccinated. The Applicant was told she would have an answer as to what was happening within 48 hours and the meeting ended.

• On 25 February 2022, Mr Campbell called the Applicant to advise that a resolution was still pending.

• On 28 February 2022, the Applicant received correspondence from the Respondent requiring that she comply with its directive regarding COVID-19 vaccination by 4 March 2022. The Applicant filed a copy of that letter which states:

“1. NSW has mandated vaccination for certain industries and sectors including, but not limited to, aged care, healthcare, and education.

2. Some of Veolia’s clients, such as Woolworths and Bluescope, have also mandated vaccinations for their contractors.

3. Veolia’s Resource Recovery sites have mandated vaccination for their contractors, including Veolia drivers when accessing sites to tip.

4. As a Supervisor for the Transport team based at our Port Kembla depot, you are required to attend various sites should incidents occur. These needs include motor vehicle incidents and bin inspections. You have regular face to face interactions with drivers, clients and other individuals.

5. You have advised Jason Campbell, Southern Region Manager Transport, Lyndal Patterson, National HR Manager and Sandra Fernandes, Senior HR Business Partner that you are unvaccinated.

6. On Wednesday 23 February 2022, you were asked by Mrs Fernandes and Mrs Patterson how you would be able to attend the sites which require you to be vaccinated should an incident occur. You responded by stating that other people will need to attend.

7. During the meeting you were reminded that attending various sites should issues arise is an inherent requirement of your role of Supervisor for the Transport Team in Port Kembla, and that asking other people to step in for you on a permanent basis is neither acceptable nor sustainable.

8. In order to meet these requirements Veolia requires you to be vaccinated.

Lawful and reasonable direction by Veolia

9.You are hereby directed to provide to your Direct Manager by 12:00 noon on Friday 4 March, 2022:

a. evidence that you have received your first COVID-19 vaccine dose; and

b. evidence that you have a scheduled appointment to receive your second COVID-19 vaccine dose; or

c. certification from a medical practitioner of a medical exemption that you are unable to have a dose, or further dose, of a COVID-19 vaccine due to a medical contradiction or an acute medical illness.

A failure to comply with the direction in paragraph 9 by the required deadline, will constitute a failure to comply with a lawful and reasonable direction and this will be regarded as conduct warranting disciplinary action which may include the termination of your employment.

In the alternative, if you remain unable to perform the full requirements of your role. Veolia may have no option other than to terminate your employment as it cannot place you on unpaid leave indefinitely.

This is a serious matter and Veolia encourages you to seek medical advice from a medical practitioner. If you require further support, Veolia provides free and confidential counseling services to employees.”

• On 2 March 2022, the Applicant provided a written response. The Applicant filed a copy of that response in which the Applicant raises a number of concerns including, by way of summary, that:

oNew South Wales mandates regarding vaccination did not relate to waste services or her role;

oclient requirements regarding vaccination did not directly affect her role as she was not actively attending contractor sites and was based in the office;

oher role did not require her to attend the Respondent’s resource recovery sites as she is not a driver or contractor;

oshe spent limited face to face time with drivers and did not have regular face to face interactions with clients;

oshe felt “pressured and bullied” into revealing her vaccination status and as she didn’t want to do this, asked the Respondent to assume she was unvaccinated;

oshe was unaware the Respondent had a vaccination policy;

oshe did not consider the request to be lawful or responsible; and

oshe did not have a copy of the risk assessment relevant to the direction and requested one.

• On 3 March 2022, she received a ‘show cause letter’ from the Respondent. A copy of the ‘show cause letter’ was filed by the Applicant, however was dated 4 March 2022 and it is more likely that the letter was provided to the Applicant on this date. The letter:

oreiterated the requirement that the Applicant provide evidence of vaccination or certification from a medical practitioner of a medical exemption due to a contraindication or acute illness by 12 noon on 4 March 2022;

ostated that the Applicant responded on 2 March 2022, indicating that she would not get vaccinated;

ostated that the Applicant failed to comply with the Respondent’s lawful and reasonable direction;

ostated that this failure was regarded as conduct warranting disciplinary action and that the Applicant was unable to perform all of the duties associated with her role as supervisor and, in particular, was unable to attend customer sites to address issues such as incidents and bin inspections;

ostates that the Respondent had made the preliminary decision to terminate the Applicant’s employment for serious misconduct constituted by her failure to comply with a lawful and reasonable direction and / or on the ground that the Applicant was not ready, willing and able to perform her duties in accordance with her obligations as an employee;

oprovided the Applicant with an opportunity to show cause as to why her employment should not be terminated in an interview to be held on 8 March 2022 to be held with Mr Campbell, Mr Gater and representatives from the human resources team; and

oinvited the Applicant to bring a support person to the meeting and indicated that she may also respond in writing prior to the meeting.

• On 8 March 2022, the show cause meeting occurred via Zoom. The Applicant’s evidence was that at the meeting Mr Gater stated that the Respondent was implementing a rule that all operations staff should be vaccinated for COVID-19 and that he could not make an exception for her.

• On 8 March 2022, Mr Gater called the Applicant to advise her of the termination of her employment and that he believed the situation should not be considered “serious misconduct”.

• On 9 March 2022, the Applicant received a letter notifying her of the termination of her employment.

• The Applicant:

oasked to see the risk assessment and the request was refused;

owas not consulted about the risk assessment; and

ohas not seen the results of the risk assessment.

• There are inconsistences with the Respondent allowing unvaccinated people within operational roles to continue to work but terminating others.

• The Respondent did not discuss with the Applicant options to continue her employment such as taking extended leave, leave without pay, continuing to work and creating a plan with human resources and management on how to deal with a potential incident on a mandated site.

Consideration

1. The Respondent has submitted that the Applicant failed to follow a lawful and reasonable direction and, as the Applicant could not enter the clients’ sites in order to perform the inherent requirements of her job, it was left with no other option but to terminate her employment.

1. It is not in contention that the Respondent does not have its own policy dealing with vaccination as a condition of site entry that applies uniformly to its workforce and nor is it in contention that there was no public health order requiring vaccination in the industry in which the Respondent operates. It follows that the basis for the directive must derive from the term implied into contracts of employment to the effect that employees must follow the lawful and reasonable direction of their employer.

1. A contract of employment contains an implied term that the employee will obey the employer’s lawful and reasonable direction[66] and a failure of an employee to follow a lawful and reasonable direction would provide an employer with a valid reason for dismissal for the purposes of s.387(a) of the FW Act. Whether the direction is lawful involves consideration of whether the direction involves illegality and whether it is within the scope of the contract of employment.[67] The latter requirement reflects the “general rule ... that  a  contract  by  which  a  person  is  employed  in  a  specific  character  is  to  be  construed  as obliging him to render, not indeed all service that may be thought reasonable, but such service only as properly appertains to that character”.[68]

1. In order to establish that a direction is reasonable, it is not necessary to show that the direction in contention is the preferable or most appropriate course of action or in accordance with ‘best practice’ or in the best interest of the parties. There may be a range of options open to an employer within the bounds of reasonableness. [69]

1. Whether a direction is reasonable is a question of fact to be determined having regard to all of the circumstances.[70] Dixon J described the approach to the task of assessing the reasonableness of a direction to an employee in R  v  Darling  Island  Stevedoring  &  Lighterage  Co  Ltd as follows:

‘But what is reasonable is not to be determined so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award governing the relationship, supply considerations by which the determination of what is reasonable must be controlled.’[71] 

1. During cross-examination, the Applicant took Mr Campbell to the statement within his witness statement which said:

“I had multiple discussions with Ms Newell about the vaccination requirements of our

clients, in particular Bluescope Steel and the Woolworths Group, and explained why we required her to provide us with proof of her vaccination status”.

1. The Applicant asked Mr Campbell to confirm whether he believed that statement to be correct. Mr Campbell’s response was:

“I said that we had multiple conversations around the BlueScope …. I emailed you multiple times about BlueScope and Woolworths group”.

1. The Applicant then put to Mr Campbell that he never asked her for proof of her vaccination status to which Mr Campbell said “we had multiple conversations about your status” and that he sent the Applicant a spreadsheet with her name on it and regardless as to whether he asked her “directly or indirectly”, he had multiple conversations about the Applicant’s vaccination status.

1. The Applicant then took Mr Campbell to the following statement within his witness statement:

“Throughout our discussions, Ms Newell expressed hesitation about providing Veolia
with her medical records, as she did not want Veolia to have them on file. I explained
that we did not need to keep proof of her vaccination status on file, we simply needed
to sight her proof of vaccination so we could inform our clients that she was, in fact,
vaccinated.”

1. The Applicant asked Mr Campbell whether he had asked to sight her vaccination status to which he replied “no”.

1. During cross-examination of Ms Patterson, the Applicant asked her whether she had evidence of repeated requests by Mr Gater or Mr Campbell for evidence of her vaccination status. Ms Patterson responded:

“Yeah I do actually. So that whole conversation commenced with you Amy on the 7^th of February by way of communication in writing asking for a mask exemption that you said that you had and you kept refusing to provide that mask exemption….So then it continued on until the 11^th of February and then on the 15^th of February and then the 23^rd of February so there are multiple evidence emails coming from either Dave Gater, Jason Campbell or Craig from the site requesting an update on your status”

1. When asked to clarify whether this was in relation to the Applicant’s status regarding masks or vaccination Ms Patterson replied:

“Just both. Amy was reluctant to provide any of that information.”

1. The Applicant put to Ms Patterson that 23 February was the first time she was asked about her vaccination status to which Ms Patterson replied:

“How can that be Amy because you were stood down, you were stood down and replaced on an email on the 11^th of February that requested an outcome from you and you kept refusing to provide that information… so the meeting on the 23^rd  was with Sandra and I and was asking you to please help us, please work with us, give us some type of indication as to where you are at with this because you just refused to provide information.”

1. While Mr Campbell communicated with the Applicant about the requirements of some clients regarding vaccination and site entry, I am not satisfied that the Applicant was provided with a clear direction regarding what was expected of her regarding vaccination requirements prior to 23 February 2022 during her discussion with human resources. It seems likely that the Applicant had been stood down from around 11 February 2022 for not producing evidence of her exemption from wearing a mask but that the discussions regarding vaccination requirements occurred later.

1. Notwithstanding this, once the letter dated 28 February 2022 was provided to the Applicant, I am satisfied that the Respondent’s directive was clear with that letter stating:

“You are hereby directed to provide to your Direct Manager by 12:00 noon on Friday 4 March, 2022:

a.         evidence that you have received your first COVID-19 vaccine dose; and

b. evidence that you have a scheduled appointment to receive your second COVID-19 vaccine dose; or

c.certification from a medical practitioner of a medical exemption that you are unable to have a dose, or further dose, of a COVID-19 vaccine due to a medical contradiction or an acute medical illness”.

1. There is some conjecture around the form in which the evidence was required to be provided, i.e. whether documentation needed to be produced and retained on the Applicant’s file or merely sighted. Notwithstanding this, I am satisfied that the Applicant did not produce any evidence, for sighting or otherwise, that she complied with the above directive prior to her dismissal.

1. The question that arises is whether the above requirement was lawful and reasonable.

1. I am satisfied that the direction relates to the subject matter of the employment and involves no illegality. However, this is not where my consideration ends. The Full Federal Court in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU)  stated in relation to the implied term:[72]

‘the duty of the employee at common law is to obey lawful orders. The “standard or test” by which the common law determines whether the order is lawful is one of reasonableness: R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621. Dixon J explained at 621–2:

If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.

As Finn J observed in McManus v Scott-Charlton (1996) 70 FCR 16 at 21:

The need for some such limitation is patent: employment does not entail the total subordination of an employee’s autonomy to the commands of the employer. As was said by the President in Australian Tramway Employees’ Association v Brisbane Tramways Co Ltd (1912) 6 CAR 35 at 42:

A servant has to obey lawful commands, not all commands. The
           servant does not commit a breach of duty if he refuse[s] to attend a
           particular church, or to wear a certain maker’s singlets. The common law

right of an employee is a right to wear what he chooses, to act as he chooses, in matters not affecting his work.

There are obvious, and powerful, considerations of civil rights and liberties and of due
process which inform this. These need not be laboured here although they are of no little significance in the resolution of this case.[73]’ 

1. As a Full Bench of the Commission recently found, the assessment of reasonableness and proportionality is essentially one of fact and balance and needs to be assessed on a case-by-case basis.[74] The assessment will include, but not be determined by, whether there is a logical and understandable basis for the direction.[75]

1. While the termination letter given to the Applicant on 9 March 2022 also refers to the Respondent’s “workplace health and safety obligations and responsibilities”, the evidence suggests that the key reason for the Respondent’s directive was that some of its key clients imposed requirements regarding vaccination as a condition of access to their sites and in the context of the Applicant’s employment, the clients of greatest concern in this regard were:

• the Woolworths Group which required “suppliers, contractors, partners and other visitors who regularly spend time at Woolworths Group workplaces (including stores, DCs, CFCs and offices) to be fully vaccinated”[76] while allowing for legitimate medical and religious exemptions; and

• BlueScope Steel which:

  o“encouraged” all contractors to be fully vaccinated;

  orequired “contractors on site” to be “prepared show their fully vaccinated status prior to interacting with employees” and to “carry a mask with them”; and

  oprovided that unvaccinated contractors intending to come onto its sites, were
  “generally not welcome and must obtain Plant Manager approval to any  request prior to arrival”;[77]

• SUEZ who had engaged the Respondent in relation to delivery of a Whole of Australian Government” (WOAG) Contract covering hospitals, medical centres, clinics and schools.[78]

1. I observe from the above that the Woolworths Group did not impose an absolute requirement for contractors to be vaccinated. Rather, the Woolworths Group requirement applied to contractors and visitors who regularly spend time at Woolworths Group workplaces.  During cross-examination, the Applicant asked Mr Campbell whether he would consider someone in her role to be required to regularly spend time on Woolworths sites. Mr Campbell’s response was that it would depend on what incidents occurred at the time and what Woolworths considered regular.

1. In relation to the occurrence of “incidents” (across all sites), Mr Campbell later gave evidence that:

• In 2021 there were 11 driver accidents and one was at a hospital; and

• In 2022 there were five accidents or incidents in the first three months of the year.

1. I am not satisfied based on the evidence before me that the Applicant was required to regularly spend time on Woolworths sites. However, an ambiguity arises in relation to the Woolworths Group requirement in that it is the Respondent that is the “contractor” and the Respondent’s drivers do regularly spend time at Woolworths Group workplaces. As the Respondent is not a natural person and cannot get vaccinated, it is unclear as to whether the qualifying terminology that the time spent be “regular” was intended to apply to individuals or the contractor considered as a whole.

1. In relation to the SUEZ contract, Mr Campbell’s evidence was that work under this contract was due to start in June 2022.[79] During the conference, Mr Campbell also gave evidence that:

• as there is no SUEZ presence in the Illawarra region, the Respondent is its sole subcontractor for that contract;

• the SUEZ contract was a graduated roll out with the first stage involving medical and hospitals and the second stage involving schools; and

• the Respondent is in the process of rolling out those services at the date of the hearing.

1. I am satisfied that vaccination would be a site access requirement for at least some sites to be serviced as a part of the SUEZ contract. However, Mr Campbell’s evidence regarding the timing of the work under this contract was contradictory and it is unclear as to whether the Applicant was, at the time of her dismissal, required to attend sites where a vaccination requirement was imposed under this contract.

1. The BlueScope Steel position is also somewhat ambiguous in that, while it stated that it “encouraged” contractors to be vaccinated, suggesting that vaccination was not an absolute requirement, it also stated that unvaccinated contractors were “generally not welcome” and were required to obtain Plant Manager approval to enter site. While it is apparent that these requirements did not apply to the depot, during cross-examination, the Applicant confirmed that the Respondent had drivers who are permanently servicing BlueScope as a client and confirmed her understanding the BlueScope required contractors to be vaccinated.

1. Notwithstanding that some ambiguity arises in relation to the requirements of the Respondent’s clients, it would be understandable for the Respondent to form a view that:

·    if an unvaccinated employee needed to access a BlueScope Steel site, they would “generally” not be able to do so and there was no guarantee that approval for entry would be granted;

·    a possible interpretation of the Woolworths Group requirement was that as a contractor who regularly enters its sites, its employees would need to be vaccinated to do so; and

·    the future rollout of the SUEZ contract would mean that even more client sites would be impacted by vaccination requirements, given the requirements to attend sites such as hospitals and medical facilities that were the subject of public health orders.

1. In these circumstances, a requirement that employees required to access these sites produce evidence to the Respondent of vaccination or a medical exemption has a logical and understandable basis.

1. A question that arises is whether the Applicant was in fact required, as a part of her role, to access the client sites of concern to the Respondent as at the time of her dismissal. The Applicant was not vaccinated and was not intending on being vaccinated. A consideration in this matter is whether, in these circumstances, the Applicant was able to perform the inherent requirements of her role as at the date of her dismissal.

1. The Applicant and Respondent are not aligned about what the Applicant’s duties as an Operations Supervisor entailed. I do not accept Ms Patterson’s evidence that the position description document attached to her witness statement accurately reflects the Applicant’s responsibilities. The document appears to be a combination of two documents with the first page referring to one role and subsequent pages referring to another. The Applicant indicated she did not see this document before these proceedings and I am not satisfied that it was ever given to the Applicant or discussed with her. I have therefore had to have regard to other evidence about the nature of the Applicant’s role.

1. During the conference I took the Applicant to paragraph 5 of the Respondent’s outline of submissions which describes her role of Operations Supervisor as follows:

“In this role, the Applicant led and managed a fleet of twelve drivers. She is accountable for their performance and safety, whilst simultaneously ensuring customers’ needs were met. Critical duties of her role included:

(a)  attending client and customer sites to complete site assessments, interact with new and existing customers and the handling of any client complaints or issues that may arise on site;

(b)  completing the Respondent’s “Always Safe” Interactions (Always Safe Interaction) – for this purpose the Applicant was require to have face-to-face interactions with the drivers she was responsible for. An Always Safe Interaction was a key performance indicator (KPI) and her supervisor had set her a target of completing at least one Always Safe interaction per week. An Always Safe Interaction required the Applicant to interact with the drivers in relation to their performance and have discussions with them about whether they were completing their duties safety on customer sites, client sites and at the Depot;

(c)  performing routine bin inspections on sites; and

(d) attending a customer or client site, should an incident occur or complaint arise with a driver.”

1. During the conference, I asked the Applicant whether she broadly agreed with the above description of her role. In response, the Applicant stated that:

• she didn’t necessarily agree with the statement “attending client and customer sites to complete site assessments” as she considered that was a salesperson’s role and that while there had been times where she had completed site assessments, she had done so as a favour to the sales team in Sydney because the Respondent didn’t have a sales person in her area. The Applicant did however assert that it was not a requirement of her role;

• she agreed that she needed to complete always safe interactions but did not agree that she had a target of one per week and that it was actually two per month;

• performing routine bin inspections was not a part of her role and that if there was an issue it would be reported by the driver and she would arrange to have it fixed but didn’t need to attend site to do so; and

• if she had to respond to an incident she would organise for it to be resolved but didn’t need to attend site.

1. Mr Campbell’s evidence was that:

• The Applicant’s role was to oversee the day-to-day operations of the team of drivers that she managed and was required to check that each driver was performing their job efficiently and safety, whilst ensuring clients’ needs were met.[80]

• One of the critical parts of the Applicant’s role was to conduct an “Always Safe Interaction” which involves communicating with the drivers that she managed either at the depot or on-site about their safety and performance and there is a strong preference for these interactions to be face-to face due to the physical nature of driving.[81]

• In the past year, he set the Applicant a target of completing two or more “Always Safe Interactions” per month, with 50% to be completed “on the road”, being on client sites and workplaces so the Applicant could witness firsthand how drivers were performing their duties in practice.[82]

• Mr Campbell asked the Applicant to complete one site inspection per month in accordance with the Safety, Health Environment and Quality (SHEQ) targets set by the Respondent and this was a personal objective, and not something that she could ask someone to complete on her behalf.[83] Attached to his witness statement was a copy of the Applicant’s performance plan. The performance plan includes an “always safe” objective with a start date of 1 January 2022 and which indicates that:

oamong the expected results is that the Applicant “stay on top of safety reports and concerns in [the Respondent’s] depot” and discuss “potential risks and hazards that have been reported and use toolbox to ensure the team is aware”;

othe Applicant is required to conduct one site inspection per month.

• It was a key requirement of the Applicant’s role to travel between the depot and client sites.[84]

• In addition to be on the road to complete her “Always Safe Interactions” the Applicant was required to respond to incidents or accidents should they occur, including at client sites where a mandatory vaccination policy was in place.[85]

• The Applicant was required to conduct hazard or risk assessments from time to time and Mr Campbell had directed her to complete risk assessments at sites where there have been prior accidents.[86]

1. In her fringe benefits tax declaration the Applicant also declared that 43% of her fuel usage was for business use. The question on the declaration explains “If you travel between two workplaces or travel between home and a different workplace, it is considered a business use”.

1. I have considered the evidence of the parties in relation to the Applicant’s role and am satisfied that in her position of Operations Supervisor, leading a team of 12 drivers who were required to attend client sites, the Applicant’s role involved attendance at client sites from time to time, including to conduct site inspections, risk assessments, ‘Always Safe Interactions’ and to attend to incidents as they arise. I am satisfied that she was required to complete one site inspection per month in accordance with the Safety, Health Environment and Quality (SHEQ) targets set by the Respondent and this was a personal objective, and not something that she could ask someone to complete on her behalf.[87] It is apparent that the Respondent was not content for the Applicant to delegate her work health and safety responsibilities to others and this is understandable given the Applicant’s role as a supervisor of her team.

1. While the Applicant asserted that the Respondent tried to justify her termination by reference to hypothetical situations that are never likely to occur,  the fact that there is a lack of predictability regarding the incidence of safety incidents involving drivers in the Applicant’s team or that they may occur infrequently did not mean that the Applicant was not required to attend sites or be able to attend sites to deal with them as they arose. Mr Campbell’s evidence suggests that safety incidents did occur on site with 11 occurring in 2021 and five occurring in the first three months of 2022. In her position as Operations Supervisor for the fleet of drivers I find that it was both lawful and reasonable for the Respondent to require her to attend site or be able to attend site to deal with incidents that arose.

1. The complication that arises is that some of the sites that her drivers attend imposed requirements regarding vaccination including the Woolworths Group and BlueScope Steel and having regard to these requirements I have earlier found that the Respondent’s requirement that employees who are required to access these sites produce evidence of vaccination or a medical exemption has a logical and understandable basis. I am satisfied that if an incident arose at the Woolworths Group and BlueScope Steel sites, the Applicant may have been required to attend the site. In the case of a safety incident, it is likely that the Respondent would need to respond swiftly. Considering the requirements of BlueScope Steel alone, there is no guarantee that the Applicant, being unable to produce evidence of vaccination, would be allowed to access the site to respond to the incident.

1. The direction given to the Applicant on 28 February 2022 was clear:

“You are hereby directed to provide to your Direct Manager by 12:00 noon on Friday 4March, 2022:

a.         evidence that you have received your first COVID-19 vaccine dose; and

b. evidence that you have a scheduled appointment to receive your second COVID-19 vaccine dose; or

c.certification from a medical practitioner of a medical exemption that you are unable to have a dose, or further dose, of a COVID-19 vaccine due to a medical contradiction or an acute medical illness”.

1. Having regard to the above matters, I consider that the direction was lawful and reasonable.

1. Having regard to the circumstances in this matter, I find that the Applicant’s refusal to comply with the Respondent’s lawful and reasonable directions constituted a valid reason for her dismissal and had the consequence that the Applicant was not ready, willing and able to fulfil the inherent requirements of her role. I also observe that the Applicant’s contract specifically required the Applicant to comply with “lawful directions from management”, which, in failing to comply with the direction given to her on 28 February 2022, she did not.

Section 387(b) - Was the Applicant notified of the valid reason?

1. Proper consideration of s.387(b) of the FW Act requires a finding to be made as to whether the Applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a) of the FW Act.[88]

1. Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[89] and in explicit[90] and plain and clear terms.[91]

1. The contents of the Show Cause Letter dated 4 March 2022 clearly stated that:

• the Applicant had been directed to provide to her Direct Manager by 12:00 noon on Friday 4 March 2022:

o“evidence that [she] had received [her] first COVID-19 vaccine dose; and

oevidence that [she had] a scheduled appointment to receive [her] second COVID-19 vaccine dose; or

ocertification from a medical practitioner of a medical exemption that [she is] are unable to have a dose, or further dose, of a COVID-19 vaccine due to a medical contradiction or an acute medical illness”;

• the Applicant had failed to comply with the direction;

• the Respondent made a “preliminary decision” to terminate her employment as a result and/or on the ground that she was not ready, willing and able to perform her duties in accordance with her obligations as an employee;

• before a final decision was to be made, the Respondent was providing the Applicant with a final opportunity to show cause as to why her employment should not be terminated;

• a show cause interview was to be held on 8 March 2022 and the Applicant was also able to respond in writing prior to the meeting.

1. A show cause meeting was held on 8 March 2022.

1. Having not provided a satisfactory response and as articulated in the letter of termination dated 9 March 2022, the Applicant’s employment was terminated for failing to comply with the Respondent’s lawful and reasonable direction and because she was unable to perform all of the duties associated with her role of Supervisor.

1. Having regard to the matters referred to above, I find that the Applicant was notified of the reason for her dismissal prior to the decision to dismiss being made, and in explicit and plain and clear terms.

Section 387(c) - Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

1. An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[92]

1. The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.[93] Where the employee is aware of the precise nature of the employer’s concern about their conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[94]

1. As noted above, before a final decision was made, the Respondent provided the Applicant with a final opportunity to show cause as to why her employment should not be terminated. A meeting for this purpose was held on 8 March 2022 and the Applicant was also able to respond in writing prior to the meeting.

1. In all the circumstances, I find that the Applicant was given an opportunity to respond to the reason for her dismissal prior to the decision to dismiss being made.

Section 387(d) - Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

1. Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

1. There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”[95]

1. The show cause letter dated 4 March 2022 invited the Applicant to bring a support person to the show cause meeting and she did so.

1. There is no evidence suggesting that the Applicant requested and was refused a support person at any discussions relating to the dismissal.

1. In all the circumstances, I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal.

Section 387(e) - Was the Applicant warned about unsatisfactory performance before the dismissal?

1. As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.

Sections 387(f) and (g) - Size of enterprise and absence of human resource specialists or expertise

1. The Respondent is a large enterprise, with human resource management specialists and expertise. I find that neither the size of the Respondent’s enterprise nor an absence of human resource management specialists or expertise had any impact on the procedures followed in affecting the Applicant’s dismissal.

Section 387(h) - Other relevant matters

1. While the Applicant’s last period of service commenced in 2017, she had a long history of employment with the Respondent. An employee’s long and satisfactory work performance or history may be taken into consideration under s.387(h) of the FW Act and, depending on all the circumstances, may weigh in favour of a conclusion that the dismissal of the employee was harsh, unjust or unreasonable.[96] The Applicant has also submitted that she is the main income earner in her family, has three children and a mortgage and has not been able to find another job.

1. However, the challenge that arises in this matter is that the Applicant did not show any indication that she would comply with the Respondent’s lawful and reasonable direction and, as I have earlier found, was not able to meet the requirements of her role to the extent that she was unable to attend client sites requiring vaccination in her capacity as Operations Supervisor. While the impact of the Applicant’s decision not to be vaccinated or produce evidence of a medical exemption or contraindication may have been significant for her, it does not change the practical reality that she needed to be able to do so as a part of her role. In the circumstances of this matter, I do not consider that Applicant’s length of service or personal circumstances has a bearing on my consideration as to whether the dismissal was harsh, unjust or unreasonable.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

1. I have made findings in relation to each matter specified in s.387 of the FW Act as relevant.

1. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[97]

1. Having considered each of the matters specified in s.387 of the FW Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable. The Respondent had valid reasons for the dismissal and afforded procedural fairness to the Applicant prior to making the decision to bring her employment to an end.

1. The application is dismissed.

COMMISSIONER

Appearances:

Ms A Newell on her own behalf.
Mr R Hesketh on behalf of the Respondent.

Hearing details:

2022.
Sydney (by Video using Microsoft Teams).
July 6.

[1] Applicant’s Outline of Argument, filed 27 May 2022, response to q. 2b.

[2] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

[3] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

[4] Ibid.

[5] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.

[6] Edwards v Justice Giudice (1999) 94 FCR 561, [7].

[7] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [24].

[8] Respondent’s Outline of Submissions, filed 10 June 2022, [9] – [11].

[9] Ibid, [26].

[10] Ibid.

[11] Ibid, [27].

[12] Ibid, [28].

[13] Ibid, [29].

[14] Ibid, [30].

[15] Ibid.

[16] Applicant’s Outline of Argument, filed 27 May 2022, response to q.4c.

[17] Ibid, response to q.4c.

[18] Ibid, response to q.4a.

[19] Ibid, response to q.6d.

[20] Ibid, response to q.4a.

[21] Ibid, response to q.4d.

[22] Ibid, response to q.4c.

[23] Ibid.

[24] Ibid, response to q.6d.

[25] Ibid, response to q.4c.

[26] Ibid.

[27] Witness Statement of Jason Campbell, [5].

[28] Ibid, [6].

[29] Ibid.

[30] Ibid [7].

[31] Ibid.

[32] Ibid, [8].

[33] Ibid.

[34] Ibid, [9].

[35] Ibid, [10].

[36] Ibid, [11].

[37] Ibid, [12].

[38] Ibid.

[39] Ibid.

[40] Ibid, [15].

[41] Witness Statement of Lyndal Patterson, [6].

[42] Ibid, [7].

[43] Ibid.

[44] Ibid.

[45] Ibid, [8].

[46] Witness Statement of Jason Campbell,[13].

[47] Ibid, [14].

[48] Ibid.

[49] Witness Statement of Lyndal Patterson, [11].

[50] Ibid, [12].

[51] Ibid, [13].

[52] Ibid, [15].

[53] Ibid, [16].

[54] Ibid.

[55] Ibid, [17].

[56] Ibid, [18].

[57] Ibid.

[58] Ibid [19].

[59] Ibid.

[60] Ibid, [20].

[61] Ibid.

[62] Ibid, [26].

[63] Ibid, [27].

[64] Ibid, [28].

[65] Witness Statement of Aimee Newell.

[66] Bayley v Osborne (1984) 4 FCR 141, 145.

[67] R  v  Darling  Island  Stevedoring  &  Lighterage  Co  Ltd;  Ex  parte  Halliday  and  Sullivan (1938) 60 CLR 601, 621-2 per, Dixon J

[68] Com­mis­sion­er for Gov­ern­ment Trans­port v Roy­all (1966) 116 CLR 314, 322, per Kit­to J.

[69] Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mount Arthur Coal Pry Ltd L/A Mt Arthur Coal (2021) 310 IR 399, [77].

[70] R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday (1938) 60 CLR 601 at 616 (Starke J), 623-624 per, McTiernan J; NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883, [208], [214] per, Flick J.

[71] (1938) 60 CLR 601, 622. See also NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883, [217] per Flick J.

[72] (2018) 262 FCR 527, [187]-[188].

[73] (1938) 60 CLR 601, 621–2.

[74] Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard c Mount Arthur Coal Pry Ltd L/A Mt Arthur Coal [2021] FWCFB 6059, [96]; McManus v Scott-Charlson (1996) 70 FCR 16, 30, per Finn J.

[75] Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard c Mount Arthur Coal Pry Ltd L/A Mt Arthur Coal [2021] FWCFB 6059, [96]; Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78, 112.

[76] Emails regarding vaccination mandate dated 21 October 2021, 135.

[77] Email regarding COVID-19 dated 31 November 2021, 146.

[78] Witness Statement of Jason Campbell, [12].

[79] Ibid.

[80] Ibid , [6].

[81] Ibid.

[82] Ibid , [7].

[83] Ibid .

[84] Ibid at [8].

[85] Ibid .

[86] Ibid , [9].

[87] Ibid, [7].

[88] Bartlett v Ingleburn Bus Services Pty Ltd (2020) 303 IR 1, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].

[89] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

[90] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

[91] Ibid.

[92] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport (2000) 98 IR 137 [75].

[93] Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14-15.

[94] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

[95] Explanatory Memorandum, Fair Work Bill 2008 (Cth) 1542.

[96] Telstra Corporation v Streeter (2008) 170 IR 1, [27].

[97] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]-[7].

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