Amanda Howard v Nestle Australia Ltd

[2022] FWC 1768

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Amanda Howard and Others
v

Nestle Australia Ltd

(U2022/1315; U2022/1399; U2022/1527; U2022/1528)

COMMISSIONER WILSON MELBOURNE, 25 July 2022

Application for an unfair dismissal remedy. Refusal or failure to provide vaccination information; Dismissal of employees relating to Victorian Government mandatory vaccination directions.  Dismissals not unfair dismissals.

1. This decision concerns four applications (the Applications) for an unfair dismissal remedy made by Ms Amanda Howard, Ms Angeliki Polendakis, Mr Simon Willis and Ms Jodie Crump (the Applicants) pursuant to s.394 of the Fair Work Act 2009 (the FW Act). These applications were filed in the Fair Work Commission (the Commission) after the Applicants were dismissed by Nestle Australia Ltd (the Respondent) with effect from 14 January 2022.

1. For the reasons set out below I find the Applicants were not unfairly dismissed.

PRELIMINARIES

1. Since each of the Applicants were dismissed by the same Respondent; their dismissals arose out of the same set of circumstances; and the matters of facts to be determined are materially similar I considered both that it was appropriate to hear the matters jointly as well as to issue a single reasons for decision.

1. The merits of the Applications were the subject of a hearing on 27 June 2022 at which each of the Applicants gave evidence on their own behalf, as did Mr Christopher Day, the Respondent’s Operations – Human Resources Business Partner.

1. Mr Gareth Rogers, a lawyer, from Reignite Democracy Australia appeared on behalf of the Applicants. Mr Luis Izzo, of Australian Business Lawyers and Advisors, appeared on behalf of the Respondent. Submissions were put forward by the Respondent representative, Mr Izzo, in relation to the question of permission to appear. None were filed by the representative of the Applicants, Mr Rogers. Upon consideration, I determined that the requirements under s.596(2) of the FW Act were met, and permission was granted for representation to all parties to the matter. Permission for the parties to be legally represented was given by me pursuant to s.596(2)(b) in the case of the Applicants, with me being satisfied it would be unfair not to allow them to be represented because they are unable to represent themselves effectively. In the case of the Respondent, I considered that permission was appropriate to be given pursuant to ss.596(2)(a) and (c) referable to the efficiency that was likely to be brought to the matter taking into account its complexity, and that it would be unfair to the Respondent not to allow permission for it to be legally represented given that permission for such was given to the Applicants.

1. Section 396 of the FW Act requires the determination of four initial matters before consideration of the merits of the application. Those matters are whether the application was made within the period required in s.394(2), whether the person was protected from unfair dismissal, whether the dismissal was consistent with the Small Business Fair Dismissal Code, and whether the dismissal was a…