Andrea Boyce v Mind Australia Limited
[2022] FWC 2047
•3 AUGUST 2022
| [2022] FWC 2047 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Andrea Boyce
v
Mind Australia Limited
(C2022/3245)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 3 AUGUST 2022 |
Application under s 365 – resignation – applicant not forced to resign – no dismissal – application dismissed
Ms Andrea Boyce has made an application under s 365 of the Fair Work Act 2009 (FW Act) for the Commission to deal with a general protections dispute involving an alleged dismissal. She contends that Mind Australia Limited (Mind) dismissed her for an unspecified proscribed reason contrary to s 340, subjected her to coercion contrary to s 343, and discriminated against her based on her race contrary to s 351. Mind objects to the application on the basis that it did not dismiss Ms Boyce. Ms Boyce contends that she was forced to resign.
Section 365(1) states that if a person has been dismissed and alleges that the dismissal was in contravention of Part 3-1, the person may apply to the Commission to ‘deal with the dispute’. Generally speaking, the Commission does not have a determinative function in relation to applications made under s 365. However, in a case where the respondent denies that it dismissed the applicant and objects to the application on this basis, the Commission is required to determine whether the applicant was dismissed (see Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152).
The factual background to this application is as follows. Ms Boyce was employed by Mind pursuant to a contract that identified her role as ‘housing and recovery coordinator’. She worked on a program called ‘Homelessness to a Home’ that assisted homeless people to find accommodation. A disagreement arose between Ms Boyce and Mind as to whether she was a disability worker for the purposes of Victorian public health orders and was therefore required to have a vaccine booster shot. Ms Boyce considered that she fell within a class of worker called social and community service workers. Mind agreed, but considered that, because she provided services to homeless persons with disabilities, she was deemed by the orders to be a disability worker. The dispute arose in the following way.
In response to the COVID-19 pandemic, the Victorian Minister for Health made the Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2022 (No 5) (Order) pursuant to the Public Health and Wellbeing Act 2008 (PHW Act). The Order commenced on 25 February 2022. It required employers not to permit workers to perform work outside their ordinary place of residence unless they were fully vaccinated. It also required that some categories of worker have received booster shots by particular dates.
The Order defined a ‘worker’ to mean one of 36 categories of employee. One of these was ‘disability worker’. This was defined as a person identified in any of the other 35 categories and who ‘directly provides a disability service to a person with a disability’. One of the other categories of worker was ‘social and community service worker’, which was defined as including persons working in connection with homelessness support services. ‘Disability service’ was defined in the Order as having the same meaning as in the Disability Service Safeguards Act 2018 (DSS Act), s 3 of which defines that expression as including any service ‘which involves more than incidental contact with a person with a disability and is specifically provided to the person for the principal purpose of caring for, or treating, the person or supporting the person to manage the person’s limitations…’
A disability worker was required to receive a booster shot by 12 March 2022. No booster was required for social and community service workers.
Ms Boyce’s role of housing and recovery coordinator was described in a position description that was attached to Ms Boyce’s witness statement. It stated that the purpose of the role was ‘to provide intensive case management support to clients who have experienced chronic homelessness and/or rough sleeping who present with multiple and complex support needs including mental illness, alcohol and drug use, trauma, and physical health issues’.
The company considered that Ms Boyce’s role fell within the definition of a disability worker in the Order, and that she was therefore required to obtain a booster in order to be allowed to attend company or client premises. On 10 March 2022, the company’s service manager sent an email to Ms Boyce asking if she had received her booster. Ms Boyce replied, stating that she was a social and community service worker, for which no booster deadline was prescribed by the Order. On 28 March 2022, a human resources officer sent a further message to Ms Boyce confirming that the booster mandate applied to her because her role was categorised as a disability worker. The message stated that Ms Boyce had been due for a booster on 12 March 2022, and that she should obtain one in the next 48 hours and not attend company or client premises in the meantime. Ms Boyce replied, stating that she was not a disability worker, that she was not qualified to be such a worker, and that the role for which she was employed was not directly to provide a disability service to a person with a disability.
On 31 March 2022, the company’s regional general manager sent a message to Ms Boyce, stating that the company had not been provided with evidence that she had received a booster, that it could not permit her to attend the workplace, and that for this reason she would be stood aside without pay.
There followed further written exchanges between Ms Boyce and the regional manager, in the course of which Ms Boyce requested ‘independently verifiable supporting documents’ in respect of the company’s view that she was a disability worker, and the regional manager reiterated the company’s view that she was such a worker and would remain stood aside until she provided proof of having received a booster. On 5 April 2022, Ms Boyce wrote to the human resources department, stating that she felt bullied and harassed by the regional manager and that she wished to deal with someone else. On 7 April 2022, Ms Sally Spaul from human resources sent a letter to Ms Boyce, in which she stated that the company considered her to be a disability worker because she supported clients who had a disability. On 8 April 2022, an online meeting took place between the director of Victorian operations, Belinda McCullough, Ms Spaul, and Ms Boyce concerning the above issues. It was resolved that the company would respond further in writing to Ms Boyce’s concerns.
On 14 April 2022, Ms McCullough wrote to Ms Boyce and explained that the booster requirement in the Order applied to persons other than disability workers if they provided a disability service, and that because Ms Boyce interacted with homeless people with disabilities, including psychosocial and physical health disabilities, she was a disability worker for the purposes of the Order. The letter stated that the company wanted to move forward in a positive manner and that, to assist her to meet the booster requirement, the company would allow Ms Boyce to work from home for two weeks. The letter advised Ms Boyce that her pay would be reinstated, but that she had to receive a booster by 27 April 2022, and that if she did not, the company would take appropriate action, which might include termination of employment.
On 26 April 2022, Ms Spaul asked Ms Boyce to confirm her vaccination status. Later that day, Ms Boyce replied, stating that she resigned effective from 10 May 2022. She said that her reasons for resigning were that she could not work for an organisation that had deliberately deceived its workers, owed her money, subjected her to bullying and harassment, illegally stood her down from her employment, failed to provide information about why her role was covered by the Order, and breached her privacy.
Submissions of the parties
Ms Boyce submitted that she was forced to resign by the conduct of the company. She submitted that she was not a disability worker, that the Order therefore did not require her to receive a booster, and that Mind was wrong to claim otherwise. She said that Mind had failed to provide her with the information she had requested, including any internal policy that supported its position, and that it had not explained its interpretation of the Order. She submitted that the regional manager had bullied and harassed her, and that she had been ‘stood down’ in a manner that did not comply with the FW Act and was therefore unlawful. She said that Mind owed her money, including from the period of her stand down. She said that Mind had distributed a sheet containing personal information on employees’ vaccination status, which she considered to be a violation of her privacy rights.
Ms Boyce further contended that she had been subjected to racial discrimination, because another employee had been ‘treated in exactly the same manner’ but had been ‘reinstated without penalty’, by which she appeared to mean that the employee was allowed to come to work without receiving a booster. She said that the only difference between her and the other worker was that she identified as Caucasian whereas the latter identified as indigenous.
Ms Boyce said that in all of the circumstances she had found herself in an untenable position in respect of ongoing employment and that she was forced to resign because she was not given ‘any lawful path forward’. She contended that the company had attempted to impose a ‘legally unsupported obligation’ on her by denying her right to work and withholding her pay.
Mind submitted that Ms Boyce had resigned of her own accord and that far from placing her in a position where she had to resign, the company had wanted Ms Boyce to remain employed and to return to work in a manner that ensured that the company complied with the Order. Mind submitted that it had been patient with Ms Boyce when she disputed its interpretation of the Order, and had taken steps to support her, including by allowing her to work from home for two weeks to afford her additional time to obtain a booster. The company contended that it did not intend for Ms Boyce to resign, nor was resignation the probable consequence of its actions, because she could have obtained a booster and remained employed.
Consideration
Section 386(1)(b) of the FW Act provides that a person has been ‘dismissed’ if the person has resigned, but ‘was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer’. Although s 386 is found in Part 3-2 of the FW Act, which relates to unfair dismissals, it applies also to Part 3-1 of the FW Act (see s 12). In Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli[2017] FWCFB 3941, the Full Bench stated, at [47]:
“A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign.”
I do not accept that Ms Boyce was forced to resign from her employment because of the conduct, or a course of conduct, of Mind. The company’s assessment that Ms Boyce was a disability worker for the purposes of the Order meant that she needed to have a booster in order to be permitted to attend company or client premises. This was not a circumstance that forced Ms Boyce to resign. An obvious alternative available to Ms Boyce was simply to obtain a booster. In her evidence, Ms Boyce acknowledged that she had no fundamental objection to receiving a booster: it was put to her that she had not wanted to receive a booster, and she denied that this was the case. This makes sense, because Ms Boyce had already received her first two doses of vaccine. What does not make sense is Ms Boyce’s claim that Mind’s interpretation of the Order was a circumstance that forced her to resign. It appears that Ms Boyce was simply opposed to the company’s interpretation of the Order, and to being required to obtain a booster. But these are not circumstances compelling a resignation. Ms Boyce was told that if she did not receive a booster, the company would consider appropriate action which might include dismissal, but there was no good reason why Ms Boyce should not obtain a booster.
Because Ms Boyce was not forced to resign as a result of the company’s stance on the application of the Order, it does not matter whose interpretation of the Order was correct. However, in my opinion, Mind’s interpretation was the correct one. Ms Boyce was a social and community services worker, but she was also a disability worker within the meaning of the Order because she provided a disability service to persons among the homeless community who have disabilities. As Ms McCullough explained in her letter to Ms Boyce on 14 April 2022, she was required to interact with homeless persons who have disabilities, including psychosocial and physical health disabilities, to assist in the transition of homeless persons into affordable housing and access to support services, which services included support with psychosocial and physical health disabilities. Ms Boyce did not dispute this. Ms Boyce’s weekly schedule document, which was said to demonstrate that only 5 to 6 percent of her time was spent interacting with clients, is not proof that her work with people who have disabilities was incidental. For one thing, I prefer Ms Spaul’s evidence that the true amount of time required for interactions with clients reflected 40% of the workload. But in any event, ‘incidental’ does not mean ‘small in volume’. It means ‘happening as a minor accompaniment’ or ‘in subordinate conjunction’ to something else. Meeting with clients was not a minor or subordinate function. It was a vital component of Ms Boyce’s duties. It is not in dispute that many homeless people have disabilities. Ms Boyce’s role entailed more than incidental contact with persons with disabilities for the purpose of supporting them to manage their limitations. The definition of a disability worker in the Order was a broad one. Ms Boyce fell within it.
Ms Boyce had numerous other complaints about the conduct of the company. First, she said that Mind took some weeks to respond to her query about the application of the Order and did not provide explanations. But both Ms Spaul and Ms McCullough explained the company’s interpretation of the Order to Ms Boyce. It is not clear to me what Ms Boyce was seeking from the company when she requested ‘independently verifiable supporting documents’. Whatever she meant, the company’s explanations of its position to Ms Boyce, though somewhat delayed, were more than sufficient.
Secondly, Ms Boyce contended that she had been subject to bullying and harassment. I find these allegations to be unsubstantiated. Ms Boyce was frustrated that the company had taken some time to respond to her query and explain its position. But that does not amount to bullying or harassment, nor is there any other evidence of such conduct in this case.
Thirdly, Ms Boyce contended that she was owed wages in connection with the period when she was stood aside (she was not stood down under s 524 or otherwise), and that she had been deprived of five days of annual leave. But if Ms Boyce believed that Mind owed her money or leave credits, she could have pursued these claims while remaining in employment. These matters were not a reason to resign.
Fourthly, Ms Boyce’s claim that she was subjected to racial discrimination is unsubstantiated. She provided no details of the circumstances of the indigenous co-worker who was said to have been treated more favourably than her. Ms Boyce made no effort to explain why any differential treatment had anything to do with her being Caucasian.
Fifthly, Ms Boyce said that her vaccination status was disclosed to other employees in contravention of her privacy rights. But again, she could have raised and pursued complaints about this matter while remaining an employee.
Ms Boyce stated in the resignation letter that Mind was trying to coerce her to undergo a medical procedure against her will. This is wrong. The company simply wanted to comply with the law. The decision whether to obtain a booster remained Ms Boyce’s to make. She decided against it. Ms Boyce contended that the company had been dishonest with her. But there is no evidence of any dishonesty whatsoever. Ms Boyce said that Mind had referred to the wrong public health order in some of its correspondence. It is true that there were some erroneous references but this is irrelevant to the question of whether she was forced to resign. Also irrelevant is the fact that the company did not have a policy document concerning the effect of the Order.
The various matters raised by Ms Boyce, whether considered individually or together, do not disclose conduct or a course of conduct by the company that forced her to resign. I accept Ms Spaul’s evidence that she wanted Ms Boyce to return to work in a manner that ensured that Mind complied with the Order. It is clear that the company did not want Ms Boyce’s employment to end. It wanted her to obtain a booster, just as she had previously obtained the first two doses of vaccine, so that she could continue to work. There were no circumstances of compulsion that forced Ms Boyce to resign. Nor was resignation the probable result of the company’s conduct. It was simply not the case that Ms Boyce had no effective or real choice but to end her employment.
Conclusion
Ms Boyce was not forced to resign because of conduct, or a course of conduct, engaged in by her employer (s 386(1)(b)), nor was she dismissed on the employer’s initiative (see s 386(1)(a)). She was not dismissed at all. The jurisdictional objection is upheld. Ms Boyce’s application is dismissed.
DEPUTY PRESIDENT
Appearances:
A. Interlandi for the applicant
E. Mentiplay for the respondent
Hearing details:
2022
Melbourne
2 August
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