Ashlee Mitchell v Kinda Kapers Holdings Pty Ltd - [2022] FWC 892

[2022] FWC 892

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ashlee Mitchell
v

Kinda Kapers Holdings Pty Ltd

(U2021/10745)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 19 APRIL 2022

Application for relief from unfair dismissal – public health order requiring vaccination against COVID-19 – valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed.

Introduction

Ms Ashlee Mitchell, a university trained early childhood teacher, was employed by Kinda Kapers Toronto Pty Limited (KKT) for about six years. Ms Mitchell was dismissed because she was not able to work in her job in circumstances where a public health order prohibited her from carrying out work at an early education and care facility on or after 8 November 2021 without having had two doses of a COVID-19 vaccine or being issued with a medical contraindication certificate. Ms Mitchell contends that her dismissal was harsh, unjust and unreasonable. KKT denies those allegations.

I heard Ms Mitchell’s unfair dismissal case against KKT on 31 March 2022. Ms Mitchell gave evidence in support of her case. KKT adduced evidence from Ms Michelle Peden, sole director and shareholder of KKT, and Mr Ryan Peden, General Manager of the Kinda Kapers Group, which includes KKT and Kinda Kapers Holdings Pty Ltd.

Relevant facts

Ms Mitchell was employed by KKT in the position of Manager and Educational Leader at the Kinda Kapers Toronto long day care and preschool centre (Toronto Centre). Ms Mitchell was responsible for the education and care of children at the Toronto Centre, as well as ‘setting expectations’ for other staff.

By letter dated 3 September 2020, Mr Scott Morrison, Prime Minister of Australia, responded to correspondence he had received from Ms Mitchell and her husband in relation to COVID-19 vaccines. The letter from Mr Morrison provides in part:

“Vaccination is strongly encouraged to prevent a range of deadly and debilitating diseases in Australia. Vaccination is not compulsory in Australia and it will not be compulsory to have a COVID-19 vaccine.
However, a COVID-19 vaccine is the best way to protect the Australian community from this virus. As such, we want to achieve the highest rate of vaccination possible. The Government will explore all avenues to achieve this goal, guided by the advice of medical and scientific experts.”

By email dated 28 July 2021, KKT “highly recommended that all staff receive a recommended COVID-19 vaccine as soon as possible”.[1]

On 19 August 2021, KKT distributed an email to staff in which they expressed “a goal of close to 100% of staff having at least one shot [of a COVID-19 vaccine] by October. For anyone who is hesitant with getting a vaccine, please discuss with your GP.”[2]

By email dated 6 September 2021, KKT informed staff of a recent statement by the Department of Education:[3]
“Vaccination will be mandatory for all other (outside of LGAs of concern) early childhood education and care educators and staff by 8 November. Two doses of the COVID-19 vaccination will be required by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ashlee Mitchell v Kinda Kapers Holdings Pty Ltd

Details

AGLC: Ashlee Mitchell v Kinda Kapers Holdings Pty Ltd [2022] FWC 892
Case: [2022] FWC 892
Decision Date

CaseChat Overview and Summary

Ashlee Mitchell, an early childhood teacher, filed an unfair dismissal claim against Kinda Kapers Holdings Pty Ltd (KKT) following her termination. The dismissal was prompted by a Public Health Order, which mandated that all early childhood education staff, including Ms Mitchell, must be fully vaccinated against COVID-19 by a specified date to continue working in their roles. Ms Mitchell, who was not vaccinated and did not have a medical contraindication certificate, was dismissed for her inability to meet the job requirements set by the Public Health Order. The central legal issue in this case was whether Ms Mitchell's dismissal was harsh, unjust, or unreasonable under the Fair Work Act 2009. The Fair Work Commission found that KKT had a valid reason for the dismissal, as the Public Health Order legally prohibited Ms Mitchell from working in her role due to her vaccination status. The Commission also determined that KKT had followed proper procedures, including notifying Ms Mitchell of the impending dismissal and providing her opportunities to respond. Despite Ms Mitchell's excellent employment record and KKT's desire to retain her, the Commission concluded that the dismissal was not harsh, unjust, or unreasonable, given the legal obligation to comply with the Public Health Order. The application for relief from unfair dismissal was dismissed.

Orders