Aleksandra Katarzyna Rimmer v DPG Services Pty Ltd

[2022] FWC 425

[2022] FWC 425

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Aleksandra Katarzyna Rimmer

v

DPG Services Pty Ltd

(U2021/8859)

DEPUTY PRESIDENT LAKE BRISBANE, 28 FEBRUARY 2022

Application for an unfair dismissal remedy – where the Applicant did not comply with vaccination mandate in aged care facility by the prescribed date – where the Applicant was not unfairly dismissed – application dismissed

1. Aleksandra Rimmer (the Applicant) contends she was unfairly dismissed by DPG Services Pty Ltd (the Respondent), for whom she had worked since 29 August 2011. She seeks an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). In short, the Applicant was terminated from her position in the Respondent’s aged care facility after failing to comply the Respondent’s direction to show proof of vaccination by 17 September 2021. The events leading to the Applicant's termination are not in dispute. Rather, the Applicant contends that the unlawfulness of the Respondent’s conduct which gives rise to her unfair dismissal claim.

1. As the matter could not be resolved by conciliation, directions were issued for the filing of material and a hearing was listed for 14 February 2022. The Applicant appeared on her own behalf, with her husband, William Rimmer, while Lynne Woodcroft, the Respondent’s People and Culture Business Partner QLD, appeared for the Respondent.

1. Section 396 of the Act requires that I am satisfied of four matters before considering the merits of the Applicant’s application. Neither party disputed and I am satisfied that the Applicant made her application within the 21-day period required by s.394(2) of the Act, that she was a person protected from unfair dismissal (as she earned less than the high-income threshold), that her dismissal was not a case of genuine redundancy and that the Respondent is not a small business to whom the Small Business Dismissal Code applies.

Chronology

1. I have only summarised some of the key communications between the Respondent and its staff, including the Applicant. However, I note there was other correspondence throughout the relevant period in respect of the vaccination mandate.

1. On 28 June 2021, National Cabinet mandated that aged care workers were required to have a COVID-19 vaccination by mid-September 2021. Queensland Health subsequently issued a directive that all aged care workers must have their first vaccination by 17 September 2021 and their second by 31 October 2021 (or at least have a booking for their second dose by that date).  

1. On 14 July 2021, the Respondent’s CEO wrote to all staff describing the mandate and what evidence of vaccination would be required. Discussions were initiated by managers at a local level with team members.

1. On 28 July 2021, the Respondent’s CEO again wrote to all staff setting out the date that the mandate would be effective, providing information about how staff could receive their vaccination and evidence same, what exemptions may apply and how to make any objections.

1. Between 11 August and 3 September 2021, there were at least seven emails sent to staff from the Respondent reminding them to get vaccinated ahead of the looming deadline.  The Respondent's evidence was that information about the mandate were also communicated by email and on a message board at the Respondent’s premises.

1. On 15 September 2021, the Applicant wrote to Yolanda Muir, General Manager, indicating that she had been working for the Respondent for over 10 years as a conscientious, loyal, diligent worker, was well liked by residents and always happy to assist by doing double shifts if required. However, she stated that she did not wish to have the COVID-19 vaccination and did not think the mandate was lawful. Accordingly, she invited the Respondent to reconsider their policy and continue discussing the matter with her.

1. Later that day, the Respondent wrote to the Applicant explaining that from 17 September 21, the Australian and Queensland Government’s mandate that aged care workers be vaccinated against COVID-19 would come into effect and the Respondent would be required to comply with it. Consequently, the Respondent advised that if the Applicant was not vaccinated by that time, she would be removed from the roster from 16 September 2021.  The Applicant was invited to attend a show cause meeting for the purpose of discussing her failure to comply with the lawful and reasonable direction (to get vaccinated), her ongoing employment with the Respondent and what might occur if her non-compliance continued, including possible termination. She was invited to bring a support person to that meeting.

1. That meeting took place on 20 September 2021. The Applicant attended an in-person meeting with Ms Muir and Ms Woodcroft appeared virtually. The Applicant confirmed that she was not vaccinated and would not become so by the requisite date.

1. Later that day, the Applicant wrote to the Respondent. She clarified that she was not against vaccines, but that she did not want to take the COVID-19 vaccines until “the clinical trials are completed” in 2023. She asked questions about the vaccination’s ability to prevent transmission and infection and also whether the Respondent would accept liability for any damage or adverse reaction she may have to the vaccine. She then set out her reasons for claiming that the mandates – both by the Governments’ and the Respondent’s – were unlawful. The Applicant indicated that she would be happy to continue working for the Respondent if they amended their vaccination policy. She made it very clear that she was not resigning.

1. Following that response, the Respondent wrote to the Applicant concerning the outcome of that meeting, which was that the Applicant’s employment would be terminated, effective 20 September 2021. The letter advised that the reasons for the Applicant’s termination were that from 17 September 2021 people must not enter or remain on the Respondent’s premises if they do not meet the vaccination requirements and that the Applicant had indicated that she would not be getting vaccinated for non-medical related reasons. As such, the Respondent said she was not complying with the reasonable and lawful direction set by the government and therefore she could not meet the inherit requirements of her position.

Applicant’s Material

1. The Applicant accepts that she was informed on multiple occasions that if she was not vaccinated by 17 September 2021, her employment may be terminated. She does however question the lawfulness of that directive. To that end, the Applicant asserts that the imposition of a vaccination mandate by the Respondent is unlawful on the basis that the Queensland Government’s statement that all aged care workers be vaccinated is not law and, further, there is no constitutional basis for such a mandate. Additionally, the Applicant contends that requiring staff to be vaccinated before allowing them to attend work amounts to coercion and duress.

1. She says she is not opposed to all vaccinations – she has in the past had the influenza vaccine – but that she has chosen not to have the COVID-19 vaccination. The Applicant's husband asserted on her behalf that at no time did the Applicant tell the Respondent outright that she refused to have the vaccination. Rather, he asserted that the Applicant had simply said she wished to study it more and speak with her doctor. The Applicant stated that she had been to a doctor, but that no exemption had been provided and that she was still seeking alternative opinions.   

1. The Applicant also disputed some of the meetings that the Respondent says occurred between her and Ms Muir.  She acknowledged that she had several informal conversations with Ms Muir about her thoughts on vaccination, but denied they were formal meetings about her decision to be vaccinated or not. Rather, all but the final Zoom meeting occurred informally whilst the Applicant went about her work.

1. Nevertheless, it was accepted that the Applicant, as at 17 September 2021, had made it clear that she was not vaccinated and did not have a medical exemption.

1. The Applicant claims that after her ten years of dedicated service to the Respondent it was devastating to be dismissed because she refused to have a COVID-19 vaccination. For the reasons set out above, the Applicant submits that she was unfairly dismissed.

Respondent’s Material

1. The Respondent asserts that this case is not about whether the government mandate that all aged care workers be vaccinated is lawful. That question falls outside the scope of this jurisdiction. Rather, the sole question before me is whether the Applicant was unfairly dismissed in light of s.387 of the Act.

1. The Respondent states that it had a valid reason to dismiss the Applicant: namely, her non-compliance with a lawful and reasonable direction issued by the Respondent. Further the Respondent asserts that the Applicant was notified of that reason well in advance of the termination occurring, had ample opportunity to respond (and did so), that her response was considered by the Respondent, but ultimately a decision was made to terminate her employment because she could not fulfil the inherent requirements of her role.  She was not unreasonably refused to support person. The Respondent further asserts that the consultation process undertaken was comprehensive and that given the extensive communications leading up to the implementation of the vaccination mandate, all staff – including the Applicant – were very aware of what would happen if they were not vaccinated by 17 September 2021.

1. The Respondent denies that its staff were coerced into having the vaccine. The Respondent always accepted that it was their choice. However, given the public health order which mandated that workers in aged care be vaccinated, the Respondent had no choice but to terminate the Applicant employment because she did not meet that criterion. Ms Woodcroft acknowledged that an unfortunate outcome from the mandate was that they lost valuable team members. However, the Respondent maintains that the Applicant was not unfairly dismissed.

Material exchanged after the hearing

1. After the hearing, Ms Woodcroft provided documents in support of her oral testimony. Among those documents were written communications sent from the Respondent to its staff and the Applicant. Ms Woodcroft had already provided a table summarising many of these communications, however I wanted to view the primary documents, so I requested that copies be provided following the hearing.

1. The Applicant did not, during the hearing, raise any issues about the provision of this material after the hearing.  However, following the exchange of that material, the Applicant and her husband disputed whether it could be relied upon for a number of reasons and also continued to argue key aspects of her case.  

1. Given the reasons set out below, I do not consider that the documentation materially impacts the decision. There was no doubt that the Applicant was aware that if she was not vaccinated or had not provided a valid medical exemption by the requisite date her employment could be terminated.

Consideration

1. Section 387 of the 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.[1]

(a) whether there was a valid reason for the dismissal

1. To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[2] and should not be “capricious, fanciful, spiteful or prejudiced.”[3] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.

1. In light of government mandates, the Respondent was required to ensure that all its employees were vaccinated against COVID-19 by 17 September 2021. It had no choice but to enforce that requirement and did so by directing its employees to provide proof of vaccination (or a medical exemption) by that date.

1. It is uncontentious that as at 16 September 2021, the Applicant had indicated that she was not vaccinated, nor did she have a medical exemption. In her letter dated 20 September 2021, the Applicant again confirmed that she was not vaccinated and did not intend to become vaccinated against COVID-19 at that time. In other words, she indicated that she would not be complying with the Respondent’s direction. In light of those intimations by the Applicant, the Respondent could not provide her with further work. I am satisfied that the Applicant’s failure to comply with the Respondent’s direction – the consequence being that the Respondent could not provide her with any further shifts or else be in contravention of the government mandate – constituted a valid reason for dismissal.

1. Consequently, I am satisfied that the Respondent had a valid reason to terminate the Applicant’s employment.

(b) and (c) whether the person was notified of that reason and had an opportunity to respond

1. Based on the evidence provided and submissions made, I am satisfied that the Applicant was made aware in the months leading up to the implementation of the mandate, that if she was not vaccinated by 17 September 2021, her employment may be terminated. She had – and took – the opportunity to respond on a couple of occasions to indicate her opposition to the introduction and enforcement of the mandate. This was done prior to 17 September 2021, and again after being issued with the show cause notice and prior to her termination on 20 September 2021. Accordingly, I am satisfied that the Applicant was notified of the reason for her termination and had a sufficient opportunity to respond.

(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

1. The Applicant has not claimed that she was unreasonably refused a support person. 

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

1. Given the reasons for the Applicant's termination, this factor is irrelevant.

(f) and (g) the degree to which the size of the employer’s enterprise and the absence of dedicated human resource management expertise would be likely to impact on the procedures followed  

1. The Respondent is a large employer with a well-resourced human resources department. it undertook an extensive process to provide its staff with information about the government mandate which was to apply to its operations. It consulted with the Applicant in respect of the mandate, but it ultimately had very little control over what it could do if she chose not to be vaccinated.

(h) any other matters that the FWC considers relevant

1. I have regard to the fact that the Applicant had worked for the Respondent for an extensive period, and there were no allegations that she had been anything other than a dedicated employee. It must have been very upsetting to be told that her employment would end if she chose not to have a COVID-19 vaccination. However, it must also be noted that the Respondent also had very little choice in the matter. If it wanted to continue operating its business, it had to comply with the government mandate. This meant that it could not allow someone who was not vaccinated against COVID-19 to continue working on its premises.

Conclusion

1. Accordingly, I am satisfied based on the evidence provided that the Respondent had a valid reason for terminating the Applicant’s employment and that it did so in accordance with as fair a process as it could.  I find that the Applicant was not unfairly dismissed in accordance with the Act.

1. I therefore order that the Applicant’s application be dismissed.

DEPUTY PRESIDENT

<PR738819>

[1] 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].

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

[3] Ibid.

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