Amanda Howard v Nestle Australia Ltd
[2022] FWC 1768
•25 July 2022
| [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.
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.
For the reasons set out below I find the Applicants were not unfairly dismissed.
PRELIMINARIES
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.
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.
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.
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 case of genuine redundancy. Neither party put forward that any of the initial matters required consideration. In relation to the elements within s.396, I find that each of the Applicants was at the time of their dismissal a person protected from unfair dismissal. I also find that each of the Applications were lodged with the Commission within the 21-day period for making applications required by s.394(2) and that questions of consistency with the Small Business Fair Dismissal Code do not arise. The matter of redundancy, whether genuine or otherwise, is considered later in this decision.
BACKGROUND
Each of the Applicants worked at Nestle’s Broadford, Victoria production site. That site, like many other Victorian workplaces was at the end of 2021 subject to the Victorian Government’s mandatory COVID-19 vaccination directions. There have been several versions of those directions, with some content and the legislative basis for the directions changing over a short period starting late in 2021. Those directions included the COVID-19 Mandatory Vaccination (Workers) Directions (No 5) which commenced on 7 October 2021, made by the Victorian Acting Chief Health Officer,[1] and the orders later made by the Health Minister under the Public Health and Wellbeing Amendment (Pandemic Management) Act which extended requirements on employers beyond 7 December 2021 into 2022. These requirements are collectively referred to in this decision as the Victorian Directions.
Mr Day understood the directions to mean the Respondent was obliged “to collect, record and hold vaccination information about their manufacturing workers” and ensure that “unvaccinated workers did not work outside the worker’s ordinary place of residence on or after 15 October 2021”.[2] He further understood the direction to mean that;
“(b) an unvaccinated worker was defined as a person who had not received a dose of COVID-19 vaccine and who was not an ‘excepted person’ (it was not contended that any of the Workers were an excepted person); and
(c) there was an exception to this requirement, whereby an unvaccinated worker who had a booking to receive a dose of COVID-19 vaccine by 22 October 2021 was still permitted to work outside the worker’s ordinary place of residence.”[3]
Each Applicant was dismissed on 14 January 2022 for reasons associated with their COVID-19 vaccination status with each dismissal identified to them by the Respondent as being “a consequence of your decision to remain unvaccinated”.
When they were dismissed, each Applicant was sent a letter by the Respondent. The following is extracted from the letter sent to Ms Howard, noting that the letters to the other Applicants included the same operative statements;
“Dear Amanda,
END OF YOUR EMPLOYMENT
We are writing to confirm that your employment has ended today.
As you know, this is a consequence of your decision to remain unvaccinated. Your vaccination status has prevented you from attending work since October and will continue to prevent you from working for the foreseeable future because it is inconsistent with the Victorian Government’s mandatory vaccination orders.
Five weeks ago, we wrote to advise you that we were commencing a recruitment process to replace you with a person able to work and that your employment would regrettably come to an end today. That letter provided you with a final opportunity to reconsider your choice to remain unvaccinated before a replacement was appointed. Unfortunately, you chose not to accept that opportunity.
As your employment has now ended, you will receive any accrued leave owing to you in the next pay cycle.
…”
While each Applicant was dismissed in January 2022, the process associated with the dismissal of each began significantly earlier, from around early October 2021.
Amanda Howard
Ms Howard’s employment began as an Operator at the Respondent’s Broadford site in either June or July 2016.[4] Her Application was lodged on 1 February 2022.
In the submissions filed by Ms Howard on 27 April 2022 she raises concerns regarding the provisional approval status of the vaccines for COVID-19 available in Australia and the fact this provisional status means she is unable to give informed consent to vaccination. She submits that the vaccination requirement breaches human rights laws and amounts to coercion by her employer.
Ms Howard also notes concern regarding what compensation she would receive should she sustain an injury as a result of the vaccine, and states that she wishes to be provided with a risk assessment regarding her employer’s vaccination protocol as she understands this to be a requirement under occupational health and safety laws. She also notes that she “would have liked to have been given the opportunity to keep my job once nova vax was available, like the other/s.”[5]
Angeliki Polendakis
Ms Polendakis’ employment began as an Operator at the Respondent’s Broadford site on 31 August 2020.[6] Her Application was lodged on 2 February 2022.
Ms Polendakis’ submissions, filed on 27 April 2022, include a document entitled ‘COVID-19 Vaccine Declination Form’ dated 26 May 2022. This document details concerns Ms Polendakis holds regarding her employer’s vaccination requirement. Ms Polendakis submits the vaccines are both unsafe and ineffective and that she holds concerns regarding how she would receive compensation should she receive a vaccine related injury.[7]
Ms Polendakis also submits that she is entitled under law to decline a COVID-19 vaccination and cites numerous legal documents regarding the right of informed consent to medical procedures in support of this, including the Constitution of Australia, the Biosecurity Act 2015 (Cth), the UNESCO Statement on Bioethics and Human Rights, and the Criminal Code Act 1955 (Cth).[8]
On 13 May 2022, Ms Polendakis sent through a further document labelled ‘Letter to Commissioner Wilson’ which detailed the distress she had suffered as a result of the vaccination requirements and the fact they had disrupted her previous plans to work at the Nestle factory in Broadford until retirement.
On 9 December 2021, Ms Polendakis wrote to the Respondent in response to correspondence dated 19 November 2021 which notified her that, following either 15 December 2021 or such a time earlier that a further Public Health Order clarified the situation for unvaccinated workers, should she still not be able to attend work a review would be conducted into her employment and appointing and training another person in her place. Ms Polendakis’ response cited similar concerns to those raised in her submissions and made a number of requests, as follows:
“2. I request production of the written law that requires of me to undergo a forced vaccination as a prerequisite of my employment.
3. I request the production of the written data that proves the vaccine has undergone the clinical trials required of vaccines to prove its safety.
4. I request that the law for mandated vaccinations be made pursuant to the constitutional guarantee.
5. I request that the health directions and mandates be proved, for enforcement, that it has been made in the fulfilment of the law that governs this Commonwealth, for which unites and protects us.”[9]
The correspondence from Ms Polendakis also stated that, “Failure to produce the written law mandating this forced vaccination, within three days of this notice, shall be taken to be unwarranted coercion and workplace harassment for which substantial compensation may be due.”[10]
Simon Willis
Ms Willis’ submissions, filed on 11 May 2022, argue that the statement made by the Respondent in her letter of termination, that Mr Willis was unvaccinated, was unfounded. Mr Willis submits he had never provided the Respondent with any information as to his vaccination status and to require him to do would be in breach of a right to medical privacy established by the Australian Charter of Healthcare Rights.[11]
Mr Willis also submitted that he was unable to provide informed consent to vaccination, due to a lack of available long-term data on the vaccine’s effectiveness, and that vaccination would violate his right, under Part 3, Article 7 of the International Covenant on Civil and Political Rights, not to take part in an experimental medical procedure. He also argued that the requirement of vaccination should be construed as prohibited coercion under the FW Act.[12]
In support of these submissions, Mr Willis noted that concerns were raised by the Australian Human Rights Commission regarding pandemic related legislation in Australia.[13]
Jodie Crump
Ms Crump did not provide an Outline of Argument and instead only submitted the correspondence she had received from the Respondent in relation to vaccination requirements and the termination of her employment.
Following the formal pandemic declaration made by the Victorian Premier under the Public Health and Wellbeing Amendment (Pandemic Management) Act 2021, correspondence dated 10 December 2021 was sent to Ms Crump and the other Applicants by the Respondent notifying them of imminent termination should they not reconsider their unvaccinated status. Ms Crump responded to this correspondence in an email dated 20 December 2021 requesting a source be given for the directives which the Respondent believed to be in effect. Mr Day responded to this email on 21 December 2021 with a link to the relevant Order.[14]
Shared Facts
Following the Victorian Premier’s announcement on 1 October 2021 that all ‘authorised workers’ would be required to be vaccinated to perform on-site work, and the corresponding release of the Mandatory Vaccination (Workers) Directions to this effect on 7 October 2021, a decision was made by the Respondent and communicated to employees, including the Applicants, in person and by telephone that unpaid leave would be offered to unvaccinated staff “to assess the situation and the longevity of the Victorian Directions whist the state of affairs remained uncertain”.[15]
Christopher Day, the Human Resources Business Partner for the Respondent, gave evidence that, he “verbally informed staff at the Broadford site about the upcoming changes, put a notice at the entry to the factory and in the canteen about the requirements and asked all staff to confirm and provide evidence of their vaccination status to ensure Nestle would be operating in compliance of the Victorian Directions.”[16]
On 14 October 2021, a meeting was held between Mr Day and unvaccinated staff, including Ms Crump, to discuss vaccination directions. Mr Day informed these staff members they would be offered “up to 4 weeks unpaid leave, finishing on Friday 12 November 2021” to assess the situation.[17]
On 15 October 2021 there was confusion as to the starting time of the Mandatory Vaccination (Workers) Directions amongst employees. As a result of this confusion, Mr Day informed all unvaccinated staff who did not have bookings to receive vaccination prior to 22 October 2021, including Ms Crump and Ms Polendakis, that they were not required to work but would be paid for their 15 October 2021 shifts.
On 18 October 2021 the Applicants, and all other unvaccinated employees without the requisite vaccination appointment bookings, commenced four weeks unpaid leave.[18]
On 11 November 2021, a meeting between Mr Day, other representatives of the Respondent, a number of employees (not including the Applicants) and representatives of the Automotive, Food, Metals, Engineering, Printing, and Kindred Industries Union (AMWU), took place in order to discuss the position of unvaccinated employees. An unpaid leave extension was requested by AMWU and other employees.[19]
On 12 November 2021 Mr Day wrote to the Applicants informing them he would be contacting them via telephone to understand their vaccination status and intention to return to work (12 November Letters).[20]
On 18 November 2021 Ms Polendakis responded to the 12 November Letters with an email to Mr Day and other representatives of the Respondent stating she was writing on behalf of a group of workers, copying into the email, amongst several other email addresses, those of the other Applicants. The email attached a letter which raised concerns about the vaccine’s safety and the potential unlawfulness of vaccination requirements. It also requested:
“NESTLE AUSTRALIA Ltd.’s Exemption from the Privacy Act 1988 (Cth) Regarding the Privacy Act, where in any contract (that we have previously signed), has our consent been obtained to collect this information?
A detailed description entailing what health service/s you are providing us with?
A Risk Assessment on all the current available COVID-19 Vaccinations completed by NESTLE AUSTRALIA Ltd
Refer us to the section of our contracts, or our current Enterprise Agreements where you are unilaterally allowed to amend our employment conditions?
Signed documentation by NESTLE AUSTRALIA Ltd confirming who is responsible for enforcing these suggested vaccination requirements”.[21]
On 19 November 2021 Mr Day wrote to the Applicants stating that, following either 15 December 2021 or such a time earlier that a further Public Health Order clarified the situation for unvaccinated workers, should they still not be able to attend work a review would be conducted into her employment and appointing and training another person in their place.[22]
The Public Health and Wellbeing Amendment (Pandemic Management) Act 2021 came into effect on 7 December 2021 and gave the Health Minister and Victorian Premier the power to declare a pandemic three months at a time and enforce restrictions, including further directions related to compulsory workplace vaccinations. On 10 December 2021, the Victorian Premier did so and made a formal pandemic declaration applying from 11:59PM 15 December 2021.
In light of these events, Mr Day wrote to the Applicants in a letter dated 10 December 2021 informing them they had one final opportunity to reconsider their choice before a replacement was appointed to their role and notifying them that due to their unvaccinated status their employment would otherwise be terminated on 14 January 2022.[23]
On 14 January 2022, the Applicants were notified in separate letters sent to their emails that their employment was terminated.[24]
The Applicants were all initially represented by their Union, AMWU, which subsequently ceased to act for them prior to the matter proceeding to hearing. The Applicants then engaged alternate representation, Mr Rogers of Reignite Democracy Australia, who appeared as their representative at the hearing of the matter.
The Form F2 – Unfair Dismissal Application submitted by each Applicant stated as the reasons the Applicant considered the dismissal unfair the following four points:
“1. My employer refused to consider alternatives to dismissal.
2. My employer refused to consider reasonable accommodations to meet my medical needs.
3. My employer treated me differently to other employees in identical circumstances.
4. Dismissal was harsh, unjust and unreasonable.”
Submissions were filed by Mr Rogers on 13 May 2022 on behalf of all the Applicants which are summarised as follows:
“1. The Applicant(s)s employment is governed by the terms and conditions of the “NESTLE Derrimut Enterprise Agreement 2019” (NESTLE EA) which remains in force.
2. The NESTLE EA does not contain any requirements relating to vaccination despite the exposure retail sector employees have to communicable diseases such as Hepatitis,
and respiratory illnesses (including Corona viruses).3. Termination of employment was not due to deficiencies in performance, or for “failing” to comply with a condition of employment (which are contained in the NESTLE EA), it was in reliance of failing to provide personal medical information which falls directly into the meaning of “health information” as defined by section 6FA of the Privacy Act 1988 (Cth)…and being TEMPORARILY restricted from entering the workplace…”
The Respondent submitted that there was a valid reason for the termination of the Applicants’ employment due to an incapacity which arose on account of the Applicant’s inability to lawfully attend for work as a result of public health orders issues by the Victorian Government. In response, on 22 June 2022 the Applicant’s representative made reply submissions that potential inconsistency between the Victorian Health Directions and federal legislation, including the Disability Discrimination Act 1992 (Cth) and the Privacy Act 1988 (Cth), should be taken into account when considering the lawfulness and reasonableness of directions given by the employer to the Applicants regarding vaccination, and the resulting validity of the Applicants’ dismissals.
In the hearing, the Applicants’ representative raised new submissions to the effect that the termination of the Applicants should properly be considered a redundancy, and, accordingly, the Applicants were not appropriately terminated as the nature of their termination was mischaracterised. These submissions were filed in written form with the Commission and the Respondent on 27 June 2022 following the hearing, and an opportunity was then given to the Respondent to provide a written reply.
Reply submissions outlining the Respondent position that the terminations were not correctly characterised as redundancies were filed by the Respondent’s representative on 5 July 2022.
CONSIDERATION – WHETHER DISMISSALS UNFAIR (s.387)
I am required to consider the merits of the Applications in the manner set out in s.387, the provisions of which section are as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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.”
Determination of whether the dismissals were harsh, unjust or unreasonable requires each of the matters specified in s.387 to be taken into account. The Full Bench has summarised the approach that should be taken by the Commission to the criteria within s.387 in the following way:
“The following propositions concerning consideration as to whether there is a valid reason for dismissal for the purpose of s.387 are well established:
· a valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced;[25]
· a reason would be valid because the conduct occurred and justified termination; conversely the reason might not be valid because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour);[26]
· it is not necessary to demonstrate “serious misconduct” or misconduct sufficiently serious to justify summary dismissal in order to establish a valid reason for dismissal;[27]
· the existence of a valid reason to dismiss is not assessed by reference to a legal right to dismiss[28] (so that, for example, where summary dismissal has occurred, it is not necessary to determine whether the right of summary dismissal was legally available); and
· the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee’s conduct).[29]”[30] (original references)
A dismissal is unfair in the case of a person protected from unfair dismissal, dismissed by the employer which is not a small business employer and for reasons other than genuine redundancy, if it was harsh unjust or unreasonable, taking into account the criteria within s.387. I will deal with each of the criteria within s.387 in turn.
(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)
To be a valid reason the reason must be “… sound, defensible or well-founded.” A reason which is “… capricious, fanciful, spiteful or prejudiced …” cannot be a valid reason. [31] The reason for termination must be defensible or justifiable on an objective analysis of the relevant facts.[32] The valid reason for termination is not to be judged by legal entitlement to terminate an employee, “… but [by] the existence of a reason for the exercise of that right” related to the facts of the matter.[33] Ascertainment of a valid reason involves a consideration of the overall context of the “practical sphere” of the employment relationship.[34]
It is not the Commission’s role to “stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court.”[35] However, the Commission “must consider the entire factual matrix in determining whether an employee’s termination was for a valid reason.”[36]
The Applicants advance several reasons as to why their dismissals should be characterised as unfair dismissals. Mr Rogers’ primary submission was that s.26 of the FW Act and provisions of the Privacy Act led to the dismissals being unfair.
The reference to s.26, which establishes the rule that the FW Act “is intended to apply to the exclusion of all State or Territory industrial laws” that may otherwise apply, appears to be a submission that the Victorian Directions are an industrial law. I am not satisfied from the evidence or submissions made by the Applicants on this subject that they are.
Mr Rogers’s submissions about the Privacy Act include that the Respondent was not entitled to seek information about the Applicants’ vaccination status. The Respondent noted this submission overlooks that “an employer is authorised to collect an employee’s personal information, including health information, without their express consent, where the employer is required or authorised to do so by an Australian law”.[37] I accept the Respondent’s submission in this regard.
Other submissions were made by the Applicants about other legislation that may lead to a finding of invalidity of the Victorian Directions or an inconsistency of the directions with the FW Act. Those contentions are summarised above. I make no findings in favour of the Applicants in relation to those matters.
Mr Rogers’ alternative submission, that the Applicants were redundant, flows from some relatively abstruse submissions both in the hearing and subsequently to the effect that “[a]lthough the functions and duties of the Applicant’s position survived, the “job” as it had originally existed did not”[38] Further, the Applicants’ “inability to perform the “job” was caused by an act of the Victorian State Government, not the Applicants, and therefore “termination with cause” is “unjust or unreasonable””.[39] It is further argued that since nothing in the “displaces contract rights”;
“8. … If the employer does not have a right of termination under the employment contract (or a right clearly expressed in legislation) how can it be found, or even argued, that the employer had “a valid reason for the dismissal”?
9. Absent an express legislative right, employment contracts provide the basis on which employers can validly terminate through express or implied terms. And the express terms of the Nestle Agreement provide a process for terminating the employment contract via payment of additional compensation. If these provisions had been followed, the employer would have had a “valid reason for the dismissal” and it could never be argued by the Applicants that the dismissal was “harsh, unjust or unreasonable”.”
Not only is this argument novel, but it is inconsistent with the facts as well as the FW Act’s treatment of redundancy. There is no evidence before me that would lead to a finding that any of the Applicants was “terminated: … at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone” (FW Act s.119(1)) or for the purposes of ascertaining whether the terminations were a genuine redundancy that “the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy” (FW Act s.389(1)(b)). Each section requires a finding of things to be done by the employer; whether to decide they no longer require a job to be done by anyone, or to be the one who consults. The facts before me do not lead to such findings. Instead, the facts compellingly and unambiguously lead to a conclusion that the employer continued to need the jobs of the Applicants to be done and in fact had taken steps over some months to help them keep their jobs. I therefore find that none of the Applicants were dismissed for reason either of redundancy or genuine redundancy.
Mr Day’s evidence records the vaccination directions imposed on the Respondent and the steps he and others in Nestle took to inform employees of the Respondent’s obligations. By early January the situation he faced was that the Applicants (among other employees) had been informed of what they must do and each failed to establish their vaccination status to the Respondent. He had done his best to respond to the questions he was asked and similarly had been patient with each in order to allow them to assimilate their obligations and report their vaccination status to the Respondent.
I am satisfied from the evidence that Respondent had obligations to prevent the entry to its worksite workers who were unvaccinated and who did not hold an exemption from being vaccinated issued by a medical practitioner. I am also satisfied that the Respondent was obliged to seek and record information from each employee about these matters and that if it was not provided with such information, it must treat the employee as being unvaccinated.
I am also satisfied from the evidence that by 14 January 2022 the Respondent had provided “the Applicants with over three and a half months of unpaid leave, numerous communications and opportunities to explain their vaccination status and/or provide proof of vaccination” and that by that date none had done so.[40] I am also satisfied that at no stage did the Respondent issue a direction to the Applicants requiring them to become vaccinated[41] and that, as described in the Respondent’s submissions;
“The termination was on the basis that the Victorian Directions prohibited the Respondent from permitting the Applicants to attend work as manufacturing workers at the Broadford site and therefore they could no longer lawfully perform their roles. Indeed, they could not perform any confectioner role at the Broadford site for which they were trained because of their inability to enter the site at all.”[42]
Further, as each employee worked in a production facility and because of the nature of their work, no finding is available that any of the Applicants could perform their work from home.
The finding must therefore be made that at the time the Respondent dismissed each Applicant held a valid reason for doing so, with that reason related to their capacity. At the time each was dismissed none had the capacity to lawfully attend for work.
(b) whether the person was notified of that reason
Each Applicant was notified of the reason for their dismissal in a letter sent to them by the Respondent.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal there needs to be a finding that there is a valid reason for dismissal.[43] The history of these matters includes multiple exchanges from the Respondent to the Applicants advising them of what was required, as well as communications from the Applicants about their views. In his communication to the Applicants dated 12 November 2021, Mr Day explained the situation as Nestle saw it and advised each;
“If you are unable to demonstrate by Friday 19 November that you are in the process of meeting the requirements of the Public Health Direction (by receiving at least one dose of the vaccination), we will consider whether we should permanently appoint and train a person who is able to meet the Public Health Directions requirements in your place. Regrettably, this may mean that your employment may come to an end.”
The same correspondence invited questions and offered to respond. While not in a classic “show cause” form I am satisfied from the totality of the Respondent’s communications to the Applicants that they were advised their employment would end if their recorded vaccination status did not change and that each was given an opportunity to respond to that advice.
(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
There was no unreasonable refusal by the Respondent to allow the Applicants to have representation at discussions with them relating to their dismissal.
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
There is no evidence of unsatisfactory performance by the Applicants in any respect.
(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
Nestle is demonstrably a large employer. There is, however, no evidence that its size impacted on the procedures it followed in effecting the Applicants’ dismissals. This is a neutral factor in my decision.
(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
Nestle’s decision making in relation to the employment of the Applicants was assisted by Mr Gray, its HR Manager. Accordingly, this is a neutral factor in my decision.
(h) any other matters that the FWC considers relevant
I consider it relevant to take into account several matters, including that none of the Applicants were dismissed for reason of their work performance, and that each was a relatively long serving employee in a regional area. Ms Howard had worked for Nestle since 14 June 2016; Ms Polendakis since 31 August 2020; Mr Willis since June 2014 or March 2015 (there is a discrepancy between the Applicant and Respondent’s materials); and Ms Crump since 1 October 2018. Those matters alone do not lead to a finding that the dismissal of each was unfair. Simply put the Victorian Directions were obligations that must be followed by the Respondent; once the Applicants refused or failed to provide evidence of their vaccination status to the Respondent it had no choice but to refuse their entry to its worksite. That decision was not unfair, even taking into account the Applicants’ length of service or regional employment.
CONCLUSION
After considering each of the criteria within s.387, I am satisfied there was a valid reason for Nestle’s dismissal of the Applicants and that there were no procedural defects in the manner in which Nestle came to dismiss them. Accordingly, I find that the Applicants dismissals were not unfair dismissals and that their Applications in turn must be dismissed. An Order to that effect will be issued with this Decision.
COMMISSIONER
Appearances:
Mr G Rogers for the Applicants
Mr L Izzo for the Respondent
Hearing details:
2022.
Melbourne via Microsoft Teams;
27 June.
[1] Exhibit R1, Witness Statement of Christopher Day, Attachment CD – 1.
[2] Ibid, [6.4].
[3] Ibid.
[4] Ibid, [2.1]; F2 – Amanda Howard.
[5] Exhibit A1, U2022 1315 Submissions – Outline of Argument.
[6] Exhibit R1, Witness Statement of Christopher Day, [4.1]; F2 – Angeliki Polendakis.
[7] Exhibit A2, U2022 1399 Submissions – Letter Regarding Vaccines from Applicant.
[8] Ibid.
[9] Exhibit R1, CD-5 – Letter Regarding Vaccination from A Polendakis, 177.
[10] Ibid.
[11]Exhibit A4, U2022 1527 Submissions – Outline of Argument, 71.
[12] Ibid.
[13] Ibid.
[14] Exhibit R1, CD-7 Link to Directions Sent to Applicant, 184.
[15] Exhibit R1, Witness Statement of Christopher Day, [6.7].
[16] Ibid, [6.5].
[17] Ibid, [6.10].
[18] Ibid, [7.1].
[19] Ibid, [7.7].
[20] Ibid, [7.8]; Exhibit R1, CD-2 Letters to Applicants Regarding Vaccination Requirement.
[21] Exhibit R1, CD-3 – Objections Regarding Vaccination from Nestle Workers Including Applicants, 169.
[22] Exhibit R1, Witness Statement of Christopher Day, [7.11].
[23] Ibid, [7.18]; Exhibit R1, CD-6 Letter to Applicants Regarding Potential Consequences of Vaccination Status, 178 – 183.
[24] Exhibit R1, Witness Statement of Christopher Day, [8.1]; Exhibit R1, CD-8 – Applicant Letters of Termination, 186 – 189.
[25] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[26] Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561, [6] – [7].
[27] Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033, [32]; Annetta v Ansett Australia (2000) 98 IR 233, [9] - [10].
[28] Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033, [32]; He v Lewin [2004] FCAFC 161; 137 FCR 266, [15].
[29] Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033, [33] – [34]; O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205, [22] – [23].
[30] Titan Plant Hire Pty Ltd v Shaun Van Malsen[2016] FWCFB 5520, [28].
[31] Selvachandran v Peteron Plastics (1995) 62 IR 371, 373.
[32] Robe v Burwood Mitsubishi Print R4471 (AIRCFB, Ross VP, Polites SDP, Foggo C, 11 May 1999).
[33] Miller v UNSW [2003] FCAFC 180 (Gray J) [13].
[34] Selvachandran v Peteron Plastics (1995) 62 IR 371, 373.
[35] Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir[2016] FWCFB 4185, [46] citing Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
[36] Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir[2016] FWCFB 4185, [46] citing Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, 413.
[37] Exhibit R2, 14.3
[38] Applicants’ Supplementary Submissions, 27 June 2022, [6].
[39] Ibid, [7].
[40] Exhibit R2, 6.17.
[41] Ibid, 6.13.
[42] Ibid, 6.15.
[43] Chubb Security Australia Pty Ltd v Thomas Print S2679 (unreported, AIRCFB, 2000) [41].
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