Barber v Goodstart Early Learning
[2021] FWC 2156
•20 APRIL 2021
| [2021] FWC 2156 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Bou-Jamie Barber
v
Goodstart Early Learning
(U2020/11916)
DEPUTY PRESIDENT LAKE | BRISBANE, 20 APRIL 2021 |
Application for an unfair dismissal remedy – whether mandatory vaccination policy reasonable and lawful – whether valid medical exemption provided – whether Applicant satisfied inherent requirements of the role – whether valid reason for dismissal based on capacity or conduct – dismissal not unfair – application dismissed.
[1] Ms Bou-Jamie Barber (the Applicant) has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in which she seeks an unfair dismissal remedy with respect to her dismissal from her employment with Goodstart Early Learning (Goodstart/the Respondent).
[2] The Applicant was employed by the Respondent as a Lead Educator under the Goodstart Early Learning Enterprise Agreement 2016 (the Agreement). In April 2020, the Respondent introduced an immunisation policy, requiring that all staff must receive the influenza vaccination unless they have a medical condition which makes it unsafe for them to do so.
[3] The Applicant said that she has a sensitive immune system, and she therefore raised her objections to the influenza vaccination with the Respondent. Ultimately, the Respondent determined that the medical certificate provided by the Applicant was not sufficient to support an objection the influenza vaccination, and the Applicant’s employment was terminated on 13 August 2020 for her failure to be vaccinated and meet the inherent requirements of her role.
[4] The Applicant challenged her dismissal on the grounds that it was harsh, unjust or unreasonable.
[5] The matter was heard on 19 January 2020 and 20 January 2020 at the Fair Work Commission (the Commission) in Brisbane. The Applicant was represented by Nathan Buckley, G&B Lawyers and Jim Pearce of Counsel. The Respondent was represented by Murray Proctor, FAC Law and Leigh Howard of Counsel. Mr Pearce was granted permission to appear by video from the Commission’s Sydney office.
[6] Both the Applicant and Respondent sought to be represented. Granting permission to be represented under s.596 requires the satisfaction of two elements. 1 The first pre-requisite: the presence of one of the criteria under s.596(2), does not immediately invoke the right to representation and establishing satisfaction “involves an evaluative judgment akin to the exercise of discretion.”2 Once that first step is satisfied, the second step “involves consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.”3
[7] I exercised my discretion and granted permission pursuant to s.596(2), to both parties, as I was satisfied that the matter would be dealt with more efficiently and effectively, considering the complexity of the matter and the capabilities of the parties. As both parties were represented, it is not be unfair to allow representation.
[8] It is not in dispute that:
• the application was made within time (s.396(b));
• the Small Business Fair Dismissal Code does not apply (s.396(c)); and
• the dismissal did not involve a genuine redundancy (s.396(d)).
[9] These matters were not raised by the parties and I find that these issues are not a point of contention. Accordingly, I am to consider the merits of the Applicant’s dismissal.
BACKGROUND
[10] The Respondent is a not-for-profit organisation providing childcare and early learning. It employs approximately 17,500 staff across Australia and operates 671 childcare centres, with over 70,700 children in its care. The Applicant commenced employment with the Respondent in December 2006 and, during her tenure with Goodstart and its predecessor, held numerous roles.
[11] On 17 April 2020, the Respondent made a decision to introduce a mandatory requirement for all of its staff to be vaccinated against the influenza virus.
[12] The Applicant’s employment was terminated on 13 August 2020 due to her unwillingness and failure to obtain an influenza vaccination. On termination, the Applicant was paid 4 weeks’ pay in lieu of notice and her accrued entitlements.
[13] I note that curiosity surrounding vaccination is at an unnatural high; protection against COVID-19 is becoming a tangible reality for the population and guidance surrounding how this will be administered in the workplace is scarce. As will be seen from the highly detailed evidence below, this decision is relative to the influenza vaccine in a highly particular industry. While this may seem obvious to most, given the climate we find ourselves in, it feels appropriate to make this declaration.
THE HEARING
[14] The Applicant gave evidence on her own behalf.
[15] The following witnesses gave evidence on behalf of the Respondent:
• Ms Kristin Peachey, Performance Lead for the Respondent;
• Ms Cassandra Baker, State Manager – Regional Queensland for the Respondent;
• Ms Kylie Warren-Wright, National Safe Work and Wellbeing Manager for the Respondent;
• Ms Juvena Rowe, People Partner – Employee Relations for the Respondent; and
• Dr Andrew Lingwood, Occupational and Environmental Physician, and Director of OccPhyz Consulting, a firm of Occupational and Environmental Physicians.
RELEVANT LAW
Relevant legislation
[16] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
[17] 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.
SUMMARY OF SUBMISSIONS AND EVIDENCE
Applicant’s evidence
[18] The Applicant commenced work at the Respondent’s business in December 2006. The Applicant states that she was promoted to a Director role during her employment with the Respondent, and was stood down from that position around September 2014. She states she then signed a new contract as a Group Leader for the Respondent on 3 September 2014, which took effect immediately and she remained working at the same centre.
[19] The Applicant’s evidence is that she has a “sensitive immune system” and has a history of chronic auto immune disease and coeliac for which she has been treated in the past. She states that she still struggles with the symptoms. Annexed to her statement was a copy of a pathology report noting the diagnosis of coeliac disease or refractory coeliac disease type 1 on 19 June 2012. 4
[20] Further, the Applicant states that approximately 11 years ago she had an allergic reaction to a flu vaccination. The Applicant annexed to her statement a copy of a medical certificate dated 28 May 2020 in which the doctor confirmed her sensitive immune system and that “the [Applicant] reports reacting quite badly to Flu Vaccination”. 5 A further certificate of 17 July 2020 from a different doctor states the Applicant “is saying she got an allergic reaction when she had the flu vaccine several years ago and afraid (sic) to get it again but we don’t have a record of her reaction in our surgery.”6 Both certificates were provided as part of the consultation process.
[21] The Applicant asserts that these two medical certificates indicate that “it may be unsafe for the Applicant to have an influenza vaccination.” 7
[22] The Applicant states that around 9 June 2020, the Respondent published its ‘Infectious Disease and Immunisation’ policy, which at page 3 under the heading ‘Influenza Vaccination’ provided that:
“All staff must be immunized for the Influenza Vaccination unless they have a medical condition which makes it unsafe for them to do so”.
[23] The Applicant states that due to her sensitive immune system and the medical conditions she reports, it would be unsafe for her to have an influenza vaccination.
[24] The Applicant states that on 17 April 2020, she had received an email from the Respondent stating it would be providing free influenza vaccinations. This correspondence stated that it was recommended by the Department of Health for all employees working in the early learning sector, however no guidelines were attached or provided to the Applicant.
[25] The Applicant says that on 22 April 2020, she wrote to the Respondent expressing her personal objection to the vaccinations (the first objection).
[26] The Applicant received reply correspondence on 23 April 2020, confirming the Respondent had received her written objection to the vaccination. The Applicant states that attached to that correspondence was a letter from the Respondent informing that it had made a decision to make the flu vaccination mandatory, and was providing this direction to all employees requiring them to be vaccinated. The letter confirmed that the Respondent was providing free vaccinations, and requested that the Applicant’s immunization record be uploaded on to ‘people central’ by 29 May 2020. The correspondence also provided links to Queensland and Federal health advice, and noted the request to be vaccinated was a reasonable management direction request.
[27] The Applicant states that she replied to that correspondence on 28 April 2020, confirming she wished to pursue her influenza vaccination objection.
[28] On 6 May 2020, the Applicant received further correspondence from the Respondent acknowledging her written objection to the vaccination and noting the Respondent had attempted to contact the Applicant regarding this matter. The Applicant replied on 11 May 2020 noting that she worked 9am to 3pm every day with no break and was unable to answer her mobile between 8am and 4pm. Her correspondence again noted her auto immune diseases.
[29] The Applicant states that on 18 May 2020, she received a phone call from the Respondent’s State Manager to discuss her objections. The Applicant says that during this call she said: “I do not want to receive another reaction to a flu shot. Nor do I want to upset my gut health”. 8 The Applicant says the State Manager was empathetic to her situation and replied: “if you can get your medical details put into a conscientious objection with your GP, then we are accepting medical exemptions this way”.9
[30] The Respondent sent further correspondence to the Applicant on 22 May 2020 regarding her objections, noting the Respondent had again attempted to contact the Applicant and sought a return call. The Applicant replied to that correspondence on 29 May 2020 noting she had been away for most of the week due to an allergic reaction to something she had eaten. She advised the Respondent that her doctor of 6 years was on maternity leave. The Applicant noted her stress about the situation, and her busy out of work schedule with her two children and no family to assist. The Applicant also noted that she had been out of pocket trying to obtain relevant medical documents from a doctor. The Applicant further stated in this correspondence that: 10
“One dr at my practice refused to write me out a medical document because he had already been in trouble and spoken to from QLD health for attempting to write one out for an aged care employee who also suffered from a reaction and did not want to get in any more trouble.
…
I have worked very hard on my gut health to get where I am today. I am completely off medication and live a chemical free life. I am unwilling to compromise my health for a fly shot.
I hope my letter is taken seriously by GS”.
[31] The Applicant’s evidence is that on 28 May 2020, she present to Dr Salman Amjad from United Medical Centre – Kirkwood to obtain a medical certificate to support her objections to the vaccination, which she provided to the Respondent on 29 May 2020 by email. As referred above, this medical certificate provides:
“28/05/2020
To Whom It May Concern.
This is to certify that Ms Bou-Jamie Barber has attended UNITED MEDICAL CENTRE KIRKWOOD on 28/05/2020. Ms Barber has a sensitive immune system and had history of chronic auto immune disease / Coeliac treated in the past and still struggling with symptoms. She reports reacting quite badly to Flu Vaccination.
Please feel free to talk to me if there are any concerns.
Dr Salman Amjad”
[32] On 2 June 2020, the Respondent sent correspondence to the Applicant acknowledging the medical certificate and advised that further information was required by the Safety Team in determining whether to grant a medical exception. The Respondent requested further advice from the Applicant’s medical practitioner by 12 June 2020, noting that it was willing to meet any one-off out of pocket costs associated with the consultation with her medical practitioner. The Respondent also addressed a letter to Dr Amjad, noting that further information was sought regarding the Applicant’s circumstances.
[33] The Applicant replied by email late that same day as follows:
“Good evening,
When I spoke to the state manager on the 18th of May, not once did Cassie mention I had to get a gp to sign this form. I was told to get my GP to put some information regarding my medical conditions on a medical document which I have provided to you.
My regular GP is on maternity leave and for me to get this information to Dr Amjad, I had to go to my regular gp clinic to have all of my medical documentations from my surgeries in hospital printed to take to the other clinic to prove my medical conditions.
This gp appointment took me a week to get and both of my children and myself had to be subjected to facial temperature checks and a long wait outside as they do not accept patients in their waiting room.
The GP and I spoke in length about my concerns regarding the flu shot and my families and mine adverse reactions of auto-immune diseases following vaccinations. He wrote out the medical documentation that was requested by the state manager, as we understand you cannot get a medical exemption without suffering from anaphylaxis or GB syndrome.
The union did not inform me that we have to sign this form. They had advised us employees on the 14th of May, after their meeting with goodstart, that we should get our medical information on a medical document for goodstart which was backed up by what I was told my (sic) the state manager on the 18th of May.”
[34] On 3 June 2020, the Applicant received an email from the Respondent’s People & Culture Team, advising that her medical certificate was being reviewed by the Safety Team and that they required further information from the Applicant. This correspondence confirmed the further information was sought by 12 June 2020.
[35] The Applicant states that on 11 June 2020, she emailed the Respondent informing that Dr Amjad would not sign the correspondence requested by the Respondent. The Applicant states that she informed the Respondent that she would have to be referred to an immunologist to consider her auto immune disease and the potential adverse reactions from an influenza vaccination.
[36] The Applicant confirms that on 17 June 2020, she received a letter from the Respondent headed “Re: Invitation to Meeting – Goodstart Flu Vaccination”, and provided that a meeting was scheduled on 22 June 2020 to discuss the Applicant’s objection to the vaccination. The Applicant notes that the correspondence also provided she may be in breach of the Agreement, her position description, and various policies, and relevantly provided that:
“The conduct/behaviours which are subject of these discussions, may constitute a breach of the following policies, procedures and/or legislation:
…
BM 10: Infectious Disease & Immunisation Requirement.
…
This letter serves as a part of the consultation process where we would like to give you an opportunity to put forward anything you would like us to consider before making any determination as to your ongoing employment … Goodstart would like to afford you the opportunity to provide a written response to put forward anything you would like us to consider prior to any determination being made. This should be received by us, no later than 2pm on the 19th of June 2020.”
[37] The Applicant confirms that she provided a written response on 18 June 2020 as follows:
“…As you are aware, there have been ongoing efforts to object via email and/or phone, on the 24/04/20, 28/04/20, 11/05/20, 18/05/20, 29/05/20 and the 11/06/20, my objections regarding a forced mandatory flu vaccination and the risks involved stated on the flu vaccine insert and my own concerns to my body due to my auto-immune disease and the multiple of auto-immune diseases that affect at least 10 of my family members to date including myself, “coincidentally” as stated by the various treating drs even after we had discovered the vaccinations inserts and the risks stated on them.
The flu vaccination carries an associated risk of auto immune diseases which is stated on their package inserts and a risk in which, given the state of auto immune diseases my family have acquired over the past 12 years, I refuse to take.
I have also previously reacted to a flu vaccination including many weeks of headaches and migraines which I refuse to subject myself to again and spoke to the dr about this who was writing out my conscientious objection document.
I have spoken to a few drs on the safety information over the course of the past 2 months and one (sic) of them could guarantee my safety after a flu vaccine nor could they assure me there isn’t an increased risk due to my medical condition which makes me extremely reluctant to be vaccinated with the flu vaccine. The dr I went to would not sign the form Goodstart sent me due to the possibility of it being used legally against him, however filled me out a conscientious objection document which was denied from Goodstart as not having enough information. I am still unsure what further information was required.
I have worked at two Goodstart centres over the past 19yrs since 2001 as lead educator, 2IC and director and have thoroughly enjoyed my time developing my career and have always put children central to everything I do. I am deeply troubled that Goodstart have informed me I may have constituted a breach of six policies wince (sic) the introduction of the flu vaccination this year and genuinely am deeply apologetic you believe I am not taking my wellbeing seriously and complying to your requests.”
[38] The Applicant states that a meeting was scheduled and took place on 22 June 2020 via Microsoft Teams. She states that her meeting was with Ms Kristin Peachey, who asked various questions including “What are your views on other immunisations?” and “what are your views on the upcoming mandatory covid vaccination?”
[39] The Applicant says that on 23 June 2020, she received an email from Ms Peachey attaching a proposed meeting record of the meeting on 22 June 2020. The Applicant’s evidence is that there were a number of important omissions and errors, so she made handwritten notations and amendments on the meeting record. The Applicant states that she drafted the omissions into an email, and requested that they be inserted into the meeting record. She sent the omissions email and notated meeting record to Ms Peachey. The Applicant states that Ms Peachey accepted the notations and amendments on 24 June 2020. The meeting notes stated at one point that the failure to be vaccinated would be treated as misconduct:
“Bou-Jamie, this allegation will be addressed by way of the disciplinary process as per BM6 Disciplinary Management Requirement, for failing to obtain the flu vaccine in accordance with BM10 Infectious Diseases and Immunisation Requirement is deemed as serious misconduct as per Employment Agreement 2016.”
[40] The Applicant states that on 29 June 2020, she was called into the office by the second in charge, Ms Stacey Cerff, who said:
“Someone has dobbed you in to the performance lead, Kristin Peachey, for allegedly breaching your disciplinary action by discussing your flu vaccination objections. You have to provide me with a written response”.
[41] The Applicant states that on 29 June 2020, she wrote to Ms Peachey. That correspondence provided, among other things:
“… I have been asked to give you a written response to allegedly breeching (sic) ratio for attending a meeting with Mandy over Charli Prichard on the 24th of June 2020. Mandy had approached me a few times the day before asking me to help her in writing a supporting letter to the special education department for Charli to attend. Charli was in my room for well over a year and Mandy felt I was the best person to assist her.
At about 1.25pm, Mandy came up to see if I could spare some time as she was on lunch. I only had 2 children awake out of 14 children so I told Deb I was going on a 10 min break and then I’d help Mandy as quick as I could. I made myself some toast and came down to sit in the bottom programming room.
We were about half way through out notes on Charli when Louise came down with her ipad. I asked her if she needed anything and she asked me if I could check her storypark post, (this is not an unusual request to me as Louise always gets me to proof read her posts). As I was reading Sam walked past into the kitchen to use the sink and she said to us, “and what’s going on in here”.
…
And as for the breech (sic) in discussing my disciplinary action, I have only spoken to one educator at the service regarding everything that has been happening because they were my support worker. Demi knows and now Stacey as she has asked me to write this out for you. This has been a very long process since April I believe and I get questioned everyday by educators if I have heard anything about my flu shot, because they are aware I didn’t get it done. I do not recall reading (prior to my disciplinary action), that each flu shot was confidential so most educators are aware I never got it done…
… I believe I remember when this occurred and I had joked with an educator about something in the PK room, (there was another educator with us too). I jokingly said something like I won't have to worry about that soon because I'll probably "be fired". That educator and I joke around all the time and this does not mean that I have told her what is going on. She asks me everyday I see her if I've heard anything and I say not yet because she is genuinely concerned for me and my job.”
[42] The Applicant’s evidence is that she was not spoken to again about this matter, nor did she receive a reply email. She says however she was aware that two performance leads had investigated the matter, and they went through all of her room records for that day. She understands and believes that four other educators were questioned over the matter.
[43] The Applicant states that she was off work on 16 June 2020 as her daughter was unwell. She says however, she received an email around 2pm with an invitation to a meeting at 9am on 17 July 2020. The Applicant states that she phoned her workplace to ask whether the meeting could be by phone as she was calling in sick the next day also. The Applicant states that the acting director, Ms Cerff, replied: “You have to come in and bring your sick daughter with you”.
[44] The same day, the Applicant wrote to the Respondent informing that she was unable to obtain any further medical exemption:
“Update on the flu shot exemption. Unfortunately I was only able to get into two drs as I had time off last week to attend a funeral. One refused to sign the form Goodstart supplied me saying it could be held legally against him and the other dr also refused to even look at the form. He also refused to write me out a conscientious objection, with my objection to having another reaction to the flu shot as it was never recorded by the hospital. This dr also refused to acknowledge that I even have an immune disease even though I had my surgeons paperwork proving it, so getting an exemption out of him was not going to happen…”
[45] The Applicant confirms that she attended at the workplace at 9am on 17 July 2020, however Ms Cerff was not there. The Applicant says that she logged into her email, and noticed that at 4pm the previous day, Ms Peachey had changed the meeting to 12.00pm. The Applicant notes she therefore drove home.
[46] The Applicant’s evidence is that afternoon, she presented to Dr Daas who provided her another medical certificate which she forwarded to the Respondent that same afternoon. She states that she informed Ms Peachey that she was away, and requested a postponement of the meeting. She says that Ms Peachey replied confirming the meeting would now be held on Monday, 20 July 2020.
[47] The Applicant states that she then received a letter dated 17 July 2020, headed “Re: Goodstart Flu Vaccination Program 2020 – Communication of Findings”. This letter stated:
“Dear Bou-Jamie Barber,
The purpose of this letter is to inform you of the outcome of your objection as it relates to the Goodstart Flu Vaccination Program 2020, and to ask that you show cause as to why your employment should continue.
As you are aware from numerous Goodstart communications regarding the flu vaccinations, our previous correspondence and our recent meeting. Goodstart has determined that all staff must be vaccinated against the flu unless they have a medical condition which makes it unsafe for them to do so. Goodstart's reasons for doing so are well documented in those communications with you. but the reasons are summarised as follows.
The early learning environment can present increased exposure to vaccine-preventable diseases like the flu for both children attending the Centre and our Goodstart employees. Infections are common in children as a result of the way they interact with objects, each other and Goodstart employees. Which may mean they are at greater risk. They can also be more vulnerable. Children may be in care when they are too young to be vaccinated, may not have previously been exposed to certain germs and their immune systems are still developing. Furthermore, we have an obligation to keep all of our workplaces, including our Centre Support Offices, as free from the risk of infectious disease as possible. We all have a duty of care to limit the risk of serious illness to Goodstart employees and the children in our care. Goodstart's Flu Vaccination program is directed at minimising those risks.
In short, it is a condition of on employee's ongoing employment that they are vaccinated against the flu each year, unless, in Goodstart's opinion, the employee has a valid excuse against vaccination.
We have taken steps to share with you information we have considered when making our decision to make flu vaccination a condition of ongoing employment. This has included toking the following steps-:
• Email communications from the National Sate Work & Wellbeing Manager regarding the Flu Immunisation program;
• Relevant government (both State and Federal), Safe Work and Industry guidelines which have been shared with you;
• The availability of the vaccination,. reasonable timeframe afforded, evidence required;
• Opportunity for exemption for medical reasons;
• Notification to you about our obligations to keep all of our workplaces as free from the risk of infectious disease as possible, and a duty of care to limit the risk of serious illness of our Goodstart employees and children in our care;
• Furthermore, you were encouraged to seek advice from a medical professional if you have questions about the type of vaccine being used and safety information in relation to the flu vaccination. You were advised of Goodstart's support to meet any one-off, out of pocket costs should you wish to seek such medical advice from a medical practitioner in relation to the flu vaccination;
• We provided the following correspondence on the matter - first correspondence was sent on 6 May 2020 and the second correspondence was sent on 3 June 2020.
• Finally, we met on 23 July 2020 (sic) to discuss your objection and afford you a further opportunity to put forward any relevant information you would like us to consider before making any determination as to your ongoing employment.
• You were advised that Goodstart would convene a panel to give due consideration to your response, and would determine whether your objection is reasonable and therefore valid. You werealso advised that, should your objection be determined not to be valid, that Goodstart would consider its response, which may include termination of your employment.
• In response to these concerns, you stated, in summary:
- You feel a "one size fit all approach" for any medical procedure ought to be considered medical misconduct or negligence. You are concerned that Goodstart Early Learning have considered enforcing a policy without substantial evidence proving unvaccinated individuals are a public health risk and without data to prove a benefit in receiving the flu vaccine during COVID-19 crisis. You stated that the Australian Health Protection Principal Committee has updated its guidance about COVID-19 in early childhood and learning centres, that flu vaccinations are recommended however they are not mandated and it was never a condition of your employment.
Outcome
We have reviewed the information supplied by you, your objection and all written and/or verbal responses to this issue. We have determined that you have not provided a valid reason to be exempt from the condition that your ongoing employment is subject to flu vaccination.
Accordingly, you presently do not satisfy an inherent requirement of your role (that you must hold a current flu vaccination).
We are committed to ensuring the safety and wellbeing of all of our employees and genuinely wish to see you succeed at work. Thus we have looked across the organisation to see if we can redeploy you to another role or if there are any special facilities that we could use or offer you. Unfortunately, we have been unable to identify any such positions to re-deploy you to.
Show cause
You now have an opportunity to put forward anything you would like us to consider before we make a determination as to your ongoing employment.
In that response, you should show cause why your employment should not come to an end on the basis that you fail to meet the inherent requirements of your role. Due to the serious nature of this process any response from yourself must be made in writing and received no later than Friday 31 July 4:00pm. This may be sent via email, to [redacted]. Should you not respond, Goodstart will act on the information set out in this letter.
We ask that all matters raised with you are kept confidential. If you wish to discuss the matter. please do so only with your support person, your People & Culture representative or myself.
As we work through this matter, I take this opportunity to remind you that our EAP service is available to assist you manage any of the emotional reactions you may have. This is a confidential 24 hour counselling service for both you and your immediate family. Life Works can be contacted on [redacted]. This service is free of charge to you.
If you have any questions please feel free to contact me at any time on [redacted]. I am here to assist you in your role.
Yours sincerely
Kristin Peachey
Performance Lead Area 174”.
[48] The Applicant provided her show cause response, which she annexed to her statement and provides as follows:
“To whom this may concern,
I am writing to you as a long term employee of Goodstart Early Learning, showing cause as to why my employment should not come to an end on the basis that my employer feels I have failed to meet the inherent requirements of my role. I have been a dedicated, qualified early childhood educator for over 21 years, and an employee for ABC/Goodstart since June 2001 and have worked over two centres during this time. I have been a passionate, qualified lead educator who has created opportunities to develop the potential of every child who has ever been in my care.
I have worked as Pre-School teacher for many years, 2IC and was offered the Directors job in 2006 however had to turn it down due to relocating to Gladstone where I worked up to 21C and then was a wonderful director for 5years before personally standing down to care for the wellbeing of my very young children, to 2IC full time for 12months assisting the new director, before going part time to give my children more of my time.
I have been asked to stand as acting director in between 5 directors at Toolooa Street since 2014 which I have done so enthusiastically and professionally every time and have given no hesitations in helping to stand in for the kindergarten room lead educator in between 3 ECT's that have been employed at Toolooa Street, including spending many long hours to provide endless opportunities and experiences to catch up on missed work from educators and ECT’s to provide for previous upcoming ratings and assessments. I have proven myself as a dedicated employee who is adaptable and highly knowledgeable in all aspects of early childhood and education and a valued staff member. I have abided by your conditions of employment for 14years as an employee of Goodstart Toolooa Street and I feel if you fire me it would be a great loss to an already struggling centre.
I feel adding the flu shot suddenly was a major change of conditions of employment thrust upon us without consultation and before the policy update in June 2020. I have explained my hesitations on many occasions as to why I am refusing the flu vaccination. I have spent since 2009, correcting my gut and immune system with an individualised holistic approach under the initial care of dieticians and naturopaths after suffering many years of infertility, endometriosis, adenomyosis and finally an auto immune disease, coeliac disease. I have a long family history of chronic auto immune diseases and we take a whole approach to treating these with great success to a healthy and happy life, living with these illnesses with a minimal disruption to our lives and careers as possible.
I feel I have activated my immune system through this approach and creating good gut microbiome which I am terrified of having disrupted. I am living a low tox life and feel my healthy approach to living including yoga, plenty of sleep, plenty of water, being physically active, healthy habits and hygiene, eating nutritious foods and being aware of what goes in my body. Added herbs and natural supplements have allowed me to be a very healthy employee who rarely gets sick. I have had the flu once in my life which I suffered from after getting my one and only flu vaccine after the birth of my child. I was very unwell and had to have family travel to help care for my baby so I could get better. I suffered for weeks with migraines and fatigue and I am incredibly nervous this could happen to me again causing me to have time off work and no one to care for my children who I look after full time due to no family living near us and my husband is working on site.
I have been unsuccessful in gaining an exemption as I don't have anaphylaxis to it. My families regular doctor is currently on maternity leave so I have been made to see multiple random dr's with my children in tow, who have not been very kind to me regarding this matter causing me great stress and with the added fact that I have been accused of not satisfying an inherent requirement of my role that I have dedicated my entire working career to, is deeply upsetting given the fact that I am only refusing because I am terrified of suffering an adverse reaction from it including the risk of
getting another auto immune disease.
A few employees at my centre also objected to this flu vaccine due to previous adverse reactions, and I feel it completely unfair my objection is the only objection denied while my work colleagues whose objections were accepted by Goodstart on a case by case basis are all free to continue working, without having the flu vaccination. I am here still objecting, two months after my first objection, having to answer very personal thoughts on my feelings towards other vaccinations and the apparent upcoming covid vaccination which have no relevance to what I am objecting against.
I have provided all the information that I feel I can provide to you to regarding this matter and I pray you will consider my request to be exempt from the flu vaccination so I can continue to be the same outstanding employee of Goodstart Early Learning that I have always strived to be.
Kind Regards,
Bou-Jamie Barber”.
[49] She again forwarded ‘Annexure B’ to Ms Peachey on 31 July 2020.
[50] On 3 August 2020, the Applicant received a reply from Ms Peachey that her medical certificate had not been substantiated and was deemed invalid to object to the influenza vaccination.
[51] The Applicant’s evidence is that around this time, she noticed that an early childhood teacher job had been advertised for her centre and that the interview for this role was conducted the week before she was dismissed. She understands that the person who was employed commenced the week after her dismissal, and that person now works in her old room.
[52] The Applicant states that she had a termination meeting with Ms Peachey on 13 August 2020. The Applicant says that she recorded the first 5 minutes of the meeting conversation on her phone, and that Ms Peachey said:
“I will give you a little bit of industry insight so that you can prepare, but by this time next year all early childhood educators not just Goodstart, will need to be vaccinated against the flu. So if you are going to take up another role, and I think that you are a fabulous educator, start getting the process happening now because this time next year you will be asked again with whatever employer you have and it will be mandated under the Government, so please work with your doctor to get all that information together so you don’t find yourself in this situation again because like I said, you are a great educator and I do believe that Goodstart have probably strung this out for far too long and yeah, you’ve been, they’ve put you in a bad situation over the last three months that I’ve been dealing with this anyway. You have definitely been one of the employees that they have strung this out for such a long time, and I don’t know whether that’s a good thing or a bad thing from your point of view…
I do feel that they’re very lucky that you are an employee with strong mental health because anybody else that has been dangling by a string of termination for at least 3 months now, it could of (sic), the outcome could’ve been very different. So, I do understand that you have been so strong through this whole procedure and I do thank-you.”
[53] The Applicant states that she then received a termination letter with immediate effect, and which relevantly stated:
“I refer to my letter dated 17 July 2020, in which you were notified of the outcome concerning your objection to flu vaccination and asked to show cause why your employment should not be terminated on the grounds that you do not meet the inherent requirement of your role, to be vaccinated against the flu…
Bou-Jamie, we have taken the time to consider all of the information supplied by you, your objection and all written and/or verbal responses to this issue. We have determined that you have not provided a valid reason to be exempt from the condition that your ongoing employment is subject to flu vaccination.
Your employment will end today…”
[54] The Applicant states that, to the date of filing her statement, the Respondent had not withdrawn the termination letter.
[55] It is noted that the Applicant has annexed to her statement correspondence of 13 August 2020, whereby the Respondent stated “we are happy to take your resignation” and the Applicant replied “I have decided to remain terminated. Can I please get a severance certificate from you”. The Applicant received a separation certificate as dated on 1 September 2020 and which provided the reason for termination as “Breach of Company Policy”.
[56] The Applicant states her understanding that the flu vaccination does not prevent or mitigate the risk of a person contracting COVID-19. She states that five educators in her centre objected to the flu vaccination, and four, including herself, provided medical objections. She states the other employee objected without any medical reason. The Applicant says she understands the three other employees who provided medical objections had their objections accepted by Goodstart, and remain employed without having had the vaccination.
[57] The Applicant says she feels discriminated against, with respect to her medical contraindications. She feels she has been treated differently to other employees by the Respondent.
[58] The Applicant states that she enjoyed her time working for the Respondent, and seeks to be reinstated to her role as Lead Educator.
[59] The Applicant states that since her dismissal, she has acquired casual employment at Birralee Kindergarten for 3 days a week, and was earning less and had less job security than with the Respondent.
Applicant’s submissions
[60] Further to her evidence in this matter, the Applicant submits that she has a sensitive immune system and has had a history of chronic auto immune disease / coeliac treated in the past; and that she still struggles with symptoms.
[61] The Applicant submits that around 11 years ago, she had an allergic reaction when she had a flu vaccination.
[62] As to the Respondent’s Immunisation policy published around 9 June 2020, the Applicant submits that the policy prohibited “persons who have or display signs of having, an infectious disease” from a center for “an exclusion period”; however the policy made no restrictions in terms of social distancing, temperature checking or wearing of masks.
[63] Further the Applicant submits that the policy provided for an exemption for a medical condition which would make it unsafe for the employee to be vaccinated. The Applicant submits that her medical conditions as referred in her evidence made it unsafe for her to have an influenza vaccination.
Australian Immunisation Handbook (the Handbook)
[64] In her submissions, the Applicant made reference to the Handbook, which provides clinical guidelines for healthcare professionals and others about the safest and most effective use of vaccines in their practice. The guidance is based on the best scientific evidence available, from published and unpublished literature. The guideline recommendations were approved by the Chief Executive Officer of the National Health and Medical Research Council (NHMRC) on 9 July 2018, with subsequent amendments approved on 20 March 2019 (updated Pertussis recommendations) and 14 May 2020 (updated Pneumococcal recommendations) under section 14A of the National Health and Medical Research Council Act 1992.
[65] The Applicant submits that the Respondent's policy adopted a schedule attached to the Handbook, but otherwise made no reference to the Handbook.
[66] The Applicant submits that under “Vaccination Procedures” of the Handbook is a requirement of Valid Consent. The Applicant set out relevant paragraphs as follows:
“Valid consent
Valid consent is the voluntary agreement by an individual to a proposed procedure, which is given after sufficient, appropriate and reliable information about the procedure, including the potential risks and benefits, has been conveyed to that individual.
As part of the consent procedure, people receiving vaccines and/or their parents or carers should be given sufficient information (preferably written) about the risks and benefits of each vaccine. This includes:
• what adverse events are possible
• how common they are
• what they should do about them
Criteria for valid consent
For consent to be legally valid, the following elements must be present:
1. It must be given by a person with legal capacity, and of sufficient intellectual capacity to understand the implications of receiving a vaccine.
2. It must be given voluntarily in the absence of undue pressure, coercion or manipulation.
3. It must cover the specific procedure that is to be performed.
4. It can only be given after the potential risks and benefits of the relevant vaccine, the risks of not having it, and any alternative options have been explained to the person.
The person must have the opportunity to seek more details or explanations about the vaccine or its administration.
… Consent can be verbal or written.”
[67] The Applicant submits that on 22 April 2020, she wrote to the Respondent expressing her personal objections to the vaccination, and that her fundamental objection was “based on valid consent [which] was at no point thereafter in the correspondences responded to by the respondent”.
[68] Further to the various correspondence exchanged, the Applicant notes the State Manager’s telephone advice that the Applicant get her medical details put into a “conscientious objection by [her] GP” (Applicant’s emphasis).
[69] The Applicant also notes that in her termination letter it was provided that the Respondent had determined “that [she] had not provided a valid reason to be exempt from the condition that your ongoing employment is subject to flu vaccination” (Applicant’s emphasis). The Applicant submits that the term ‘valid reason’ has been used here in a peculiar manner, at the Respondent is telling the Applicant that she must demonstrate a valid reason to ‘retain’ her employment, which the Applicant submits “upended the whole unfair dismissal statutory regime in the Act”.
Applicant singled out/differential treatment
[70] Prior to the hearing, a request was made for several documents to be produced. An Order was issued on 22 December 2020, to which there was objection and therefore an interlocutory hearing was conducted on 6 January 2021 at which the parties presented their submissions.
[71] An amendment to that Order followed on 6 January 2021. Relevantly, requests for the medical documentation of other employees who requested an exemption were not ordered. However, as part of the Order for production, data regarding the number of exemptions and terminations was produced. That data revealed that 179 medical certificates were accepted and that 16 employees were terminated – 5 of those were in Queensland.
[72] The Applicant indicated in her closing submissions that the argument around being singled out was no longer pursued. The Applicant alleged she was treated differently because other employees had their medical exemption accepted and said that “she feels that she was discriminated against and treated differently by the Respondent to others.” 11
Criteria as to harsh, unjust and unreasonable
[73] The Applicant made submissions that even if there is a valid reason for dismissal, the decision to dismiss an applicant can be found to be harsh, unjust or unreasonable. The Applicant then proceeded to address the criteria under s.387 of the Act.
[74] The Applicant asserts that the dismissal was harsh, unjust and unreasonable:
“Dismissal Unreasonable
176. The dismissal was unreasonable because it was for an irrational reason. The reason was irrational because there was no valid reason…
Dismissal Unjust
177. The dismissal was unjust because there was no valid reason…
178. The dismissal was also unjust because the applicant was treated differently from other comparable employees…
179. The dismissal was further unjust because the applicant was not given a proper opportunity to respond…
180. Finally the dismissal was unjust because the applicant was singled out for special treatment…
Dismissal Harsh
181. The dismissal of the applicant was harsh because of the reasons set out in paragraphs L.1 and L.2 above.
182. The dismissal of the applicant was also harsh because, with respect, more appropriate legal measures could have been considered and stipulated to deal with the perceived problems, for example, the wearing of masks in certain circumstances, greater social distancing and the checking of temperatures?
183. Finally the dismissal was also objectively harsh for factors external to the question of whether a valid reason existed, namely:
a) The FWC can take notice of common knowledge that finding employment in regional locations such as Gladstone is significantly more difficult than in south eastern Queensland.
b) The FWC can take notice of common knowledge that finding employment is significantly more difficult because of the impact of covid-19 in 2020 which has produced real unemployment rates of over 13%.
c) These propositions (a) - (b) are demonstrated by the fact that the applicant has only been able to obtain further part-time employment.
d) The applicant has worked at the respondent for over 14 years and enjoyed the work. It was a reasonable expectation that she would work for many years in the position.
e) Plainly the applicant is being discriminated against and treated differently to other employees by the respondent.
f) The applicant may have been singled out for special treatment by the respondent…”.
Valid reason
[75] The Applicant notes that a valid reason is one which is sound, defensible or well founded, and is not capricious, fanciful, spiteful or prejudiced. 12 The Applicant submits that the entire relevant factual matrix must be considered in determining whether her dismissal was for a valid reason.13
Inherent requirements
[76] The Applicant submits that she has been dismissed for failing to meet the inherent requirements of her role to be vaccinated against the flu. The Applicant submits that s.387(a) makes a clear distinction between a person’s ‘capacity’ and ‘conduct’. The Applicant’s submission is extracted below:
“105. The word “capacity”, as used in s 387(a) means the employee’s (person's) ability to do the work he or she is employed to do. A reason will be “related to the capacity” of the employee where the reason is associated or connected with the ability of the employee to do his or her position. Re Crozier & the Australian Industrial Relations Commission. The reference to the capacity in the section is a reference to the capacity of the employee to perform the duties of the position occupied by the employee Paper Australia v Day; J Boag & Sons v Button.
106. A reason concerned with the capacity of an employee as used in s 387(a) is not a reason concerned with an employee's conduct or misconduct.
107. The term "capacity" may embrace physical capacity, mental capacity or legal capacity. See observation of McHugh J in Qantas Airways Ltd v Christie.
108. In Hail Creek Coal Pty Ltd v CFMEU a Full Bench construed the term "unsuitable" to mean "incapable of performing the inherent requirements of the position" a matter unrelated to the meaning of "capacity" in s 387(a) - although the discussion of the meaning of the term "inherent requirements" is of assistance.
109. Section 387(a) requires the FWC to consider and make findings as to whether, at the time of dismissal, the employee suffered from the alleged incapacity based on the evidence before the FWC and, if so, whether there were any reasonable adjustments which could be made to the employee's role to accommodate the employee. Jetstar Airways Pty Limited v Ms Monique Neeteson-Lemkes; CSL Limited T/A CSL Behring v Chris Papaioannou. There is no basis to leave the resolution of any conflict concerning capacity of the employee to do his or her job to the employer. CSL Limited T/A CSL Behring v Chris Papaioannou.
110. S 387(a) makes no reference to "inherent capacity". The term “inherent requirements” is found in s 351(2)(b) of the Act.
111. Nevertheless the FWC has found that an employer may rely upon an employee's incapacity to perform the inherent requirements of his position as a valid reason for dismissal. J Boag & Sons v Button; Jetstar Airways Pty Limited v Ms Monique Neeteson-Lemkes; CSL Limited T/A CSL Behring v Chris Papaioannou. These three decisions were all concerned with incapacity occasioned by physical or mental incapacity. In Chivonivoni v Cobham Aviation Services Engineering Pty Ltd it was assumed that an employer may rely upon an employee's incapacity to perform the inherent requirements of his position as a valid reason for dismissal where the incapacity related to legal capacity. See also Pettifer v MODEC Management Services Pty Ltd and the decisions cited therein.
112. In X v Commonwealth McHugh J stated:
[31] Whether something is an “inherent requirement” of a particular employment for the purposes of the Act depends on whether it was an “essential element” of the particular employment . However, the inherent requirements of employment embrace much more than the physical ability to carry out the physical tasks encompassed by the particular employment. ...
113. As to the meaning of "inherent requirement", in X v Commonwealth McHugh J stated:
"[35]. Christie stands for the proposition that the legal capacity to perform the employment tasks is, or at all events can be, an inherent requirement of employment. It shows that in determining what the inherent requirements of a particular employment are, it is necessary to take into account the surrounding context of the employment and not merely the physical capability of the employee to perform a task unless by statute or agreement that context is to be excluded. Far from rejecting the use of such context, s 15(4) by referring to “past training, qualifications and experience … and all other relevant factors”, confirms that the inherent requirements of a particular employment go beyond the physical capacity to perform the employment."
"[36]. What is an inherent requirement of a particular employment will usually depend upon the way in which the employer has arranged its business. In Christie, Brennan CJ said:
“The question whether a requirement is inherent in a position must be answered by reference not only to the terms of the employment contract but also by reference to the function which the employee performs as part of the employer's undertaking and, except where the employer's undertaking is organised on a basis which impermissibly discriminates against the employee, by reference to that organisation.”
[37].Unless the employer's undertaking has been organised so as to permit discriminatory conduct, the terms of the employment contract, the nature of the business and the manner of its organisation will be determinative of whether a requirement is inherent in the particular employment. But only those requirements that are essential in a business sense (including where appropriate public administration) or in a legal sense can be regarded as inhering in the particular employment. The Commission must give appropriate recognition to the business judgment of the employer in organising its undertaking and in regarding this or that requirement as essential to the particular employment. Thus, in Christie, Qantas had no obligation to restructure the roster and bidding system which it utilised for allocating flights to its pilots in order to accommodate Mr Christie. In the end, however, it is for the Commission, and not for the employer, to determine whether or not a requirement is inherent in a particular employment."
In Hail Creek Coal Pty Ltd v CFMEU a Full Bench noted:
“[124] The phrase "inherent requirements" has been judicially considered to mean something that is essential to the position. [See generally X v The Commonwealth (1999) 200 CLR 177] To determine what are the inherent requirements of a particular position usually requires an examination of the tasks performed, because it is the capacity to perform those tasks which is an inherent requirement of the particular position. [Qantas Airways Ltd v Christie (1998) 193 CLR 280 at 304 per McHugh J] As her Honour Gaudron J said in Qantas Airways Ltd v Christie:
"A practical method of determining whether or not a requirement is an inherent requirement, in the ordinary sense of that expression, is to ask whether the position would be essentially the same if that requirement were dispensed with."
114. An employer cannot create an inherent requirement by stipulating something that is not essential. In Qantas Airways Ltd v Christie Gaudron J stated: "It is correct to say, as did Gray J in the Full Court, that an inherent requirement is something that is essential to the position. And certainly, an employer cannot create an inherent requirement for the purposes of s 170DF(2) by stipulating for something that is not essential or, even, by stipulating for qualifications or skills which are disproportionately high when related to the work to be done..."
115. Similarly Brennan CJ stated:
"In particular, I agree that a stipulation in a contract of employment is not necessarily conclusive to show whether a requirement is inherent in an employee's position. The question whether a requirement is inherent in a position must be answered by reference not only to the terms of the employment contract but also by reference to the function which the employee performs as part of the employer's undertaking and, except where the employer's undertaking is organised on a basis which impermissibly discriminates against the employee, by reference to that organisation."
116. It is trite to observe that any claimed "Inherent requirement" must be of itself an otherwise lawful and reasonable requirement.”
Conclusion as to valid reason
[77] The Applicant submits that the Respondent has failed to establish a valid reason for her dismissal, and submits there is no basis for dismissal for reason of incapacity to perform duties of the position due to inherent requirements.
[78] The Applicant submits this is not a case where a “statutory requirement pertaining to legal capacity is relied on”, as for example in aged care accommodation. The Applicant submits that the policy requirement and/or direction said to constitute the Applicant’s incapacity to perform inherent requirements “was that if the applicant wished to continue in employment with the respondent, the applicant was required to be influenza vaccinated in 2020 unless the respondent, in its sole discretion, considered that the applicant had ‘a medical condition which makes it unsafe for them to do so’”.
[79] The Applicant submits that such a requirement fails the test of being an ‘incapacity to perform the inherent requirements of the position’ for the following reasons:
a) It does not relate to capacity as used in s.387(a) because it is not associated or connected with the ability of the employee to do his or her position;
b) It is not a physical, mental or legal incapacity;
c) It is not an “essential element” of the particular employment;
d) It is not requirements that are essential in a business sense (including where appropriate public administration) or in a legal sense can be regarded as inherent in the particular employment;
e) In a practical sense, the position would be essentially the same if that new requirement was dispensed with. The position is essentially the same on 1 April 2020 as it was on 31 March 2020; and
f) An employer cannot create an inherent requirement by stipulating something that is not essential. This is what has occurred in the present case.
[80] The Applicant further submits that such requirement fails the test of being an ‘incapacity to perform inherent requirements’ as the requirement“is otherwise unlawful, unreasonable and amoral in that it is a requirement that employees consent to having a battery committed on their body to retain his/her employment”. The Applicant submits “[f]urthermore the requirement was actually for the applicant to allow the respondent to commit the battery and administer a free flu vaccination program itself”.
[81] The Applicant submits that the requirement is unlawful because of the requirement at law that an individual must consent to medical procedures performed on his/her body. The Applicant relies here on the decision in Schloendorff v Society of New York Hospital, 14 in which the classical expression of that principle was provided as follows:
“[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent, commits an assault.”
[82] The Applicant notes this principle was approved by the High Court in Secretary, Department of Health and Community Services v JWB. 15
[83] The Applicant submits further that the actual communication of the requirement to her was unlawful in that it constituted an assault on the Applicant, because the Respondent “deliberately or recklessly” 16 caused her to be in apprehension that the Respondent would arrange for her to be subject to a battery.
[84] The Applicant submits that the requirement is also unreasonable as it is contrary to the Handbook.
[85] Therefore, the Applicant submits that the reason given for the dismissal, being incapacity to perform duties of the position due to inherent requirements, was not a valid reason. The Applicant submits that in the circumstances, there was no valid reason for her dismissal.
Serious misconduct
[86] The Applicant has made submissions as to serious misconduct, if this is asserted by the Respondent. The Respondent’s case revolves around capacity and therefore, these submissions were not pursued by the Applicant. However, the Applicant submitted that no misconduct occurred and asserted that the direction to be vaccinated was neither reasonable nor lawful. On the Applicant’s summary, if the policy was not reasonable or lawful then there is no subsequent breach of the employment contract and it follows there is no valid reason for dismissal based on conduct. As to serious misconduct, the Applicant asserts that the Respondent has not discharged the onus of proving that the conduct constituted a repudiation of the contract or one of its essential conditions.
[87] The only references to serious misconduct that arise are in a meeting note of Kristin Peachey from 22 June 2020, 17 and in a separation certificate provided 1 September 2020, which provides that the reason for termination was “misconduct of an employee” - specifically a “breach of company policy.”18
Respondent knowingly made false and misleading statement to the Applicant
[88] The Applicant made rather summary submissions regarding potential false and misleading statements to the Applicant, as follows:
“151. It has been noted elsewhere that the respondent has asserted to the applicant that Goodstart has provided a lawful and reasonable direction to all Goodstart employees (the applicant included) for mandatory flu vaccination this year; that the applicant's conduct may constitute a breach of the Enterprise Agreement 2016, failing to follow reasonable management directive; and that the conduct may constitute a breach of her Position description / performance framework.
152. Such assertion with respect is demonstrably false and misleading on the law which has been authoritatively stated at the highest level for over 30 years.
153. It is with respect perfectly clear that the direction issued by the respondent for the applicant to be vaccinated against influenza was neither lawful or reasonable.
154. As a basis for dismissal, the failure to comply with the direction seems to have been abandoned (possibly on legal advice).
155. A matter to be explored in considering whether the dismissal was harsh is whether the respondent knew that the statement, made to the applicant, that the direction was lawful and reasonable may have been a false and misleading statement. Relevant to the question is what if any legal advice the respondent took on the question? The existence of legal advice may be exculpatory or exacerabatory of the respondent's circumstances?
156. A further matter to be explored in considering whether the dismissal was harsh because the statement, made to the applicant, that the direction was lawful and reasonable may have been a contravention of the Australian Consumer Law as a knowingly and recklessly false and misleading statement.
157. In making this statement to the applicant the respondent caused the applicant to respond to the threatened dismissal on a false premise which disadvantaged her in successfully responding to the threatened dismissal.
158. It follows that the dismissal of the applicant having regard to these circumstances may have been harsh.”
Whether the Applicant was notified of the reason for dismissal
[89] The Applicant confirms that she was notified in writing of the reason for decision.
Opportunity to respond
[90] The Applicant relies on relevant legal principles as follows:
“In Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport a Full Bench said of the equivalent provisions to the current s.387 (b) and (c):
“[70] Section 170CG(3)(b) and (c) are clearly related to the concept of ‘‘procedural fairness’’. The relevant principle is that a person should not exercise legal power over another, to that person’s disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case.”
170. The opportunity to respond refers to an opportunity that is provided before a decision is taken to terminate the employee's employment. Crozier v Palazzo Corp Pty Ltd. The "any reason" refers to the valid reason for the employee's dismissal. Tenix Defence Systems Pty Ltd v Fearnley.
171. The following comments of Moore J (when considering s 170DC of the Industrial Relations Act 1988 (Cth)) are relevant to the second purpose:
" ... the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend."
172. The “opportunity” referred to in s.387(c) must be a fair and adequate opportunity, being one which in a practical commonsense way ensures that the employee is treated fairly. Jetstar Airways Pty Limited v Ms Monique Neeteson-Lemkes.”
[91] The Applicant submits that, regardless of whether there was a valid reason for her dismissal, she was not given a proper opportunity to respond.
[92] The Applicant further submits that she was not given a ‘fair hearing’ because the Respondent did not address the “absolutely crucial contention by the Applicant that any dismissal was contrary to The Handbook”.
[93] The Applicant seeks reinstatement to her position with the Respondent, including an order for salary and other remuneration for the period between the dismissal, less any remuneration which she has earned. The Applicant also made submissions as to compensation, should reinstatement be unsuccessful.
Respondent’s evidence
Evidentiary objections of the Applicant
[94] The Applicant made several objections to the inclusion of certain statements from Kylie Warren-Wright and Juvena Rowe on the grounds of “heresay, form, and lay opinion” and the entirety of Dr Andrew Lingwood’s evidence on the grounds that his evidence was not given in a manner compliant with the rules of evidence which apply in other jurisdictions.
[95] For both Ms Warren-Wright and Ms Rowe, the objections of the Applicant were noted and due consideration is taken in considering that evidence.
[96] With respect to the evidence of Dr Lingwood, the Applicant asserted that the statement should not be admitted into evidence as the statement did not comply with the requirements for admission of expert reports, as per Federal Court Rule 23.13 and the Expert Evidence Practice Note; the Applicant also noted Regulation 428 of the Uniform Civil Procedure Rules 1999, which detail the requirements for a report.
[97] From the outset, neither party quarreled with the fact that the Commission is not bound by the rules of evidence; the Act expressly stipulates as much and confers a freedom which is entirely unfettered. 19 Therefore, any compliance with the rules of evidence are a matter of discretion. The Applicant correctly points towards authorities of this Commission that indicate that the rules of evidence provide guidance in determining whether to admit evidence. The Applicant expressly referred to Australasian Meat Industry Employees’ Union, The v Dardanup Butchering Company Pty Ltd, where it was stated:20
“[28] The tribunal is not bound by the rules of evidence and therefore has a discretion to admit as evidence material that would not be admissible under the rules of evidence. However, this does not mean that the rules of evidence are irrelevant to the exercise of that discretion in response to an objection to the reception of particular evidence. On the contrary, as was pointed out by the Full Bench in Hail Creek Pty Ltd v Construction, Forestry, Mining and Energy Union the rules of evidence “provide general guidance as to the manner in which the Commission chooses to inform itself”. The rules of evidence are not arbitrary and were developed by reference to notions of what is fair and appropriate and, as such, they often provide a good starting point for a consideration of whether an objection to the reception of particular evidence by the tribunal should be upheld or rejected.
[29] The tribunal should take particular care in exercising its discretion to receive hearsay evidence from an employer to the effect that employees do not wish to participate in discussions with a permit holder for reasons that include the following:
(i) like all hearsay evidence, such evidence cannot properly be tested through cross-examination; and…”
[98] The Full Bench indicates that the rules provide general guidance as to how the Commission chooses to inform itself and that the rules provide a good starting point to inform what would be fair and appropriate. The Full Bench then goes on to give a cogent example with respect to hearsay evidence, which cannot be properly tested through cross-examination.
[99] Importantly, Dr Lingwood was available at the hearing for cross examination, and Mr Pearce was able to voraciously test the content of his statement and put to him statistical data around the efficacy of the flu vaccination. Through Dr Lingwood’s evidence, a great deal of valuable information was provided, which to exclude would curtail the capacity of this Commission to properly assess the reasonableness of vaccination in the childcare industry.
[100] It is also relevant to note that Dr Lingwood’s statement has complied with a number of the requirements for expert evidence; his credentials were not at any point questioned and he presented a volume of data to support those opinions. The Applicant notes the Expert Evidence Practice Note where it states that “An expert witness's opinion may have little or no value unless the assumptions adopted by the expert, i.e. the facts or grounds relied upon and his reasoning are expressly stated in any written report or oral evidence.” In providing the research upon which Dr Lingwood has grounded his opinions, the witness has gone some way to assert the voracity of his opinion. Even if the Code has not been strictly complied with, the statement is not so devoid of facts or grounds relied upon that it should not be admissible.
[101] I am satisfied that to exclude this evidence entirely would go against the notions of ‘eliciting truth and preventing error’ by potentially creating the need for further assumption. In my opinion, it is desirable to refer to the evidence of an expert who was available for cross-examination, especially when it was the form of his evidence which was objected to primarily, not its substance. 21 The heart of the Commission’s obligation when considering admissibility of evidence is to ensure there is no denial of natural justice. I am satisfied that the admission of Dr Lingwood’s statement, in an environment where he was able to be cross-examined on the entirety of the content of his statement (as well as any potential omissions) would not amount to a denial of natural justice deserving of his evidence to be struck out entirely. In light of the Applicant’s submissions, I will consider the fact that Dr Lingwood’s assumptions were not expressly stated and that his statement does not strictly comply with the rules of evidence and weigh that evidence accordingly.
Witness statement by Kylie Warren-Wright
[102] Ms Kylie Warren-Wright, National Safe Work and Wellbeing Manager for the Respondent, filed a witness statement in these proceedings.
[103] Ms Warren-Wright is responsible for the safety, health and wellbeing of all children, when in the Respondent’s care, and employees of the Respondent. She states this encompasses incidents, injuries and illness management, including disaster response, and risk and prevention, policy development and workers’ compensation portfolio.
[104] Ms Warren-Wright reports to the Chief Financial Officer (CFO) and Interim Chief Operating Officer (COO), Mr Jeff Harvey, and 11 staff report to her.
[105] Ms Warren-Wright states she has over 15 years’ experience in workplace health and safety, over 10 years’ experience in early childhood education industry and over 20 years in social services. She referred to her previous roles as a workers’ compensation and rehabilitation specialist, stating she had to interpret medical reports and certificates from doctors, allied health professionals and medical specialists, and consider whether based on the medical advice, an employee can safely perform their role, develop rehabilitation and return to work plans and meet the requirements of their role.
[106] Ms Warren-Wright also noted her history working as an Educator and Room Leader for an early learning service, as providing her a clear understanding of the various requirements of the role for the purposes of developing appropriate policies, particularly from a rehabilitation and safety perspective.
[107] Her evidence is that she was on the panel that decided to introduce the mandatory influenza vaccination requirement in the Respondent organisation. She said she was responsible for deciding whether the organisation required further information from employees regarding their medical conditions which might make the vaccination unsafe for them. Further, she was on a panel to decide whether employees who had objected to the vaccination would progress to a show cause process, and whether or not those employees should ultimately be dismissed from their employment.
Goodstart’s commitment to public health and safety
[108] Ms Warren-Wright stated that the Respondent has received awards and recognition for its health and safety framework. She stated the Respondent owes health and safety obligations to its workforce and the families it serves. She said that as a not-for-profit organisation, the Respondent business has longstanding relationships and engagement with the public health bodies in each state regarding infectious disease outbreaks.
[109] Ms Warren-Wright referred to work with the Queensland Government in 2016 regarding management of the outbreak of gastroenteritis in early learning from an industrial perspective. She stated that in 2016, the Respondent initiated an early learning conference in conjunction with Workcover Queensland on workplace health and safety and injury management, which she led. She said this was the first childcare industry forum of this nature.
[110] As relevant to the current application, Ms Warren-Wright’s evidence is that in April 2016, the Respondent received a letter from the Deputy Premier, Minister for Education, and Minister for the Coordination of Education and Training: COVID-19, the Hon James Merlino MP, of the Victorian Government commending it in regard to its mandatory influenza scheme as introduced that year and the subject of these proceedings.
Occupational health and safety framework
[111] Ms Warren-Wright notes the Respondent is a national employer, therefore occupational health and safety is regulated by various states and territories across Australia.
[112] She stated that in early learning, biological hazards are a key workplace hazard. If not managed according to law, the Respondent and its officers may be exposed to claims of contravening statutory workplace health and safety obligations where a biological hazard was present in the workplace and:
a) Goodstart’s efforts to control the exposure of the biological hazard to workers was insufficient; and/or
b) Workers were required to perform tasks that gave rise to the risk of exposure to the biological hazard without the provision of adequate control measures.
[113] Ms Warren-Wright’s evidence is that from an occupational health and safety perspective, the Respondent business is a high-risk workplace in light of the inherent risk factors in a childcare workplace, including:
“close contact between workers and children, the propensity for children to fall ill (due to having undeveloped immune systems), the propensity for children to have poor hygiene standards, the fact that not all of the children in our care can be vaccinated against infectious disease (due to their age or a medical condition) and due to the risk that families may not disclose that their child has a disease (to avoid exclusion from a centre or a reaction from staff)”.
[114] She states that the Victorian and Queensland workplace health and safety regulators acknowledge that there is a high risk of infection in the childcare and early learning industry.
[115] Ms Warren-Wright provides that the Respondent also owes duties to children in accordance with the National Quality Framework. The Respondent’s key obligations to children are reflected in the National Quality Standards (NQS), regulated by the Australian Children’s Education and Care Quality Authority. The Respondent’s centres are assessed against the NQS annually.
[116] Ms Warren-Wright referred to the ‘Quality Area 2 of the NQS (NQS2)’ which is focused on children’s health and safety. She gave evidence that in her role, she is responsible for ensuring that the organisation is meeting its obligations in respect of NQS2. In doing so, she examines children’s health, hygiene, safety and the way in which they respond to infectious disease outbreaks.
[117] She gave evidence that the Respondent is also required to comply with early learning laws which provide separate obligations regarding the health and safety in respect of children and their families. Part 4.2 and 4.7 of the Education and Care Services National Regulation and the Education and Care Services National Law regulate childrens’ health and wellbeing. The terms of the National Regulation and the National Law are largely uniform across Australia. Under the Education and Care Services National Regulation, the Respondent must:
a) implement adequate health, hygiene and food-handling practices (regulation 77);
b) prevent the spread of infectious disease (regulation 88);
c) have a policy for managing medical conditions (regulation 90 - 91);
d) have policies and procedures dealing with infectious diseases (regulation 168); and
e) take all reasonable steps to ensure written policies and procedures are followed (regulation 170).
[118] Under the Education and Care Services National Law, the Respondent must ensure that every reasonable precaution is taken to protect children from harm or injury.
Compulsory vaccination of children in childcare
[119] Ms Warren-Wright states that the Respondent follows the legal requirements that exist in each state in respect of mandatory vaccinations for children in childcare. Mandatory vaccinations exist for children in New South Wales, Victoria, Western Australia and from this year, South Australia. She notes that in Queensland and the other states, there are no statutorily mandated vaccinations for children. Families of children who are not vaccinated against certain diseases or whose children do not have a valid exemption are not entitled to the childcare subsidy from the Australian Government.
Conclusion – valid reason
[393] My findings can be succinctly summarised as follows:
• the policy, insofar as it mandates that the Applicant be vaccinated against influenza, is reasonable and lawful;
• the Applicant is required to comply with that policy, either as an express condition of her contract incorporated by reference, or as an implied obligation at common law;
• the Applicant did not present evidence of a valid medical exemption;
• vaccination does not constitute an inherent requirement of the Applicant’s role; and
• the Applicant does not lack capacity to perform her role.
[394] In an attempt to limit a maladroit application of these findings in varied circumstances, I make the following remark: it is beyond the scope of this decision to consider whether the conclusions above extend even as far as the entirety of the Respondent’s business, as the role each employee performs in fulfilling the Respondent’s undertaking may differ. An attempt to extrapolate further and say that mandatory vaccination in different industries could be contemplated on the reasons above would be audacious, if not improvident.
[395] I am satisfied on the facts and evidence provided that the Applicant was capable of being given the instruction to be vaccinated or face the consequences of a failure to comply with a reasonable and lawful direction. As previously prefaced, I am of the mind that this gives rise to a valid reason for dismissal based on the conduct of the Applicant. While the proceedings before me did not centre on this question, the task of this Commission is to obey the command of the Act: “the FWC must take into account… whether there was a valid reason for the dismissal related to the person’s capacity or conduct…” (emphasis added). 94 Accordingly, it is my statutory duty to consider all the relevant grounds before me, even if they are not the focus of the parties. Thankfully, the evidence provided covers adequately the Applicant’s conduct, and allows me to make an informed conclusion.
[396] I am satisfied that while there was no valid reason relating to the capacity of the Applicant, there was a valid reason based on her failure to comply with the reasonable and lawful direction of the Respondent.
(b) whether the Applicant was notified of the reason for dismissal
[397] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 95 and in explicit96 and plain and clear terms.97
[398] The Respondent has submitted that the Applicant’s dismissal was due to her capacity and not conduct. The Applicant was notified on numerous occasions that all staff must be vaccinated against the flu unless they have a medical condition which makes it unsafe. As to the reason for her dismissal, the show cause letter of 17 July 2020 makes it clear that the Applicant was notified. The letter is detailed and provides a summary of the matter to that point, including Goodstart’s position and the information leading to that position. The letter clearly asks Ms Barber to respond why her employment should not come to an end on the basis that she failed to meet the inherent requirements of her role.
[399] The Respondent has clearly determined to pursue this case on the grounds of capacity. What is clear is that the Applicant was made abundantly aware that a failure to be vaccinated would bring about the termination of her employment. This fact was explicit and in plain and clear terms. What was unclear to the Applicant was that the failure to be vaccinated would create a valid reason for termination based on her conduct. However, in the language of Re Crozier, the reason for notification is to provide the employee an opportunity to respond, to accord procedural fairness. In the case at hand, on the evidence before me, the legal ground for termination asserted would not have impacted on how the Applicant chose to respond to the allegations. The bulk of her material during the show cause process points to the medical exemption and this response is unaffected by the legal ground for termination.
[400] The Applicant draws upon the letter of 3 August 2020, in which Ms Peachey notifies that the medical exemption has not been substantiated. It is stated that letter was not cleared by the panel and did not reflect the reasons for the decision of the panel. This commentary aside, relevance of this letter is limited; it does not impact on the correspondence of 17 July 2020, nor the final termination letter of 13 August 2020. I am not satisfied this impacts on the notification of the Applicant of the reason for her dismissal.
[401] Finally, the argument of the Applicant that the Respondent failed to properly apply their policy is immaterial to the question asked of whether Ms Barber was notified of the reason for her dismissal.
[402] I am satisfied that the Applicant was notified of the reason for her dismissal in accordance with the Act, and that reason being that she failed to become vaccinated against the influenza virus.
(c) whether the Applicant was given an opportunity to respond to any reason related to the capacity or conduct of the person
[403] In order to be given an opportunity to respond, the employee must be made aware of allegations concerning the employee’s conduct or capacity so as to be able to respond to them and must be given an opportunity to defend themselves. As Justice Moore has stated: 98
“…the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That… does not constitute an opportunity to defend.”
(emphasis added)
[404] The requirements of s.387(c) of the Act will be satisfied “[w]here the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern…”99
[405] The Full Bench of the Commission has held that s.387(c) of the Act is to be applied in a common sense way to ensure that the Applicant has been treated fairly and does not necessarily require formality in the sense of conducting a meeting with the employee to inform the employee of the reasons for the proposed dismissal or providing the employee with an opportunity to address the employer’s concerns in writing.100
[406] The Applicant contends that the opportunity to respond amounts to the right to a fair hearing. The Applicant relies on Jetstar 101 where it was stated:
“The “opportunity” referred to in s.387(c) must be a fair and adequate opportunity, being one which in a practical commonsense way ensures that the employee is treated fairly.” 102
[407] This authority coincides with the regular understanding of s.387(c) that the opportunity to respond must be fair and adequate.
[408] As outlined in the evidence, the four month consultation process that the Respondent undertook prior to terminating the Applicant was exhaustive. The Applicant provided numerous responses throughout the process and concluded her show case letter stating “I have provided all the information that I feel I can provide to you regarding this matter…”. Had the valid reason for termination been on the grounds of capacity, the question of whether the opportunity was fair and adequate would be simpler.
[409] The Applicant also referred to Tenix Defence Systems v Fearnley as authority for the proposition that the “any reason” in s.387(c) refers to the valid reason for the employee’s dismissal. The Applicant did not have an opportunity to respond to the allegation that in failing to be vaccinated she was in breach of the Respondent’s policy. She responded to the allegation that in failing to be vaccinated she no longer had the capacity to perform her role. While the legal ground is different, the relevant event is the same: the Applicant’s failure to be vaccinated against influenza.
[410] During the consultation period the parties focused on whether Ms Barber had a valid medical exemption. This question would have remained central to both parties regardless of whether the Applicant was dismissed based on her conduct or capacity. Because of this, the Applicant’s defence would have been the same regardless of the legal characterisation of the ground for dismissal. This supports a conclusion that the opportunity provided remained fair and adequate in the circumstances.
[411] A separate assertion was made that due to the wording of the show cause letter the Applicant was not given a fulsome opportunity to respond. The wording of the letter states that “the employee must have a valid excuse against vaccination” and the Applicant concludes that this is broader than merely a medical exemption and can encompass religious or dietary grounds. This contention does not take into account the wording of Goodstart’s policy or even the content of the letter as a whole, which two paragraphs above states:
“As you are aware from numerous Goodstart communications regarding the flu vaccinations, our previous correspondence and our recent meeting, Goodstart has determined that all staff must be vaccinated against the flu unless they have a medical condition that makes it unsafe for them to do so. Goodstart’s reasons for doing so are well documented in those communications with you, but the reasons are summarised as follows…”
[412] To conclude that a single sentence may bring about a conclusion that the Respondent’s policy was materially different, and that the Applicant was not given an opportunity to present her response on these other grounds, is without merit. The Respondent’s policy clearly provides for only a medical exemption and the weight of material before me makes that abundantly clear.
[413] The Applicant provided all the information she felt she could provide, and I am satisfied that Ms Barber was given an opportunity to respond in accordance with s.387(c) of the Act.
(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
[414] There is no evidence to suggest that there was an unreasonable refusal by the employer to allow the Applicant to have a support person present. The Applicant was offered the opportunity to utilise a support person at the meeting of 22 June 2020 and had constant access to the employee assistance program.
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[415] The Applicant’s dismissal was not related to unsatisfactory performance. By all accounts she was a strong performer in her various roles with Goodstart.
(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
[416] Goodstart is a large employer with dedicated human resource and employee relations staff. Where an employer is substantial and has dedicated human resources personnel and access to legal advice, there will likely be no reason for them not to follow fair procedures.103 I am satisfied that the presence of relevant specialists and the size of the enterprise both indicate that the Respondent has no reason not to provide a fair and proper procedure. Based on the information above, I am satisfied that the Respondent has provided a fair and proper procedure.
(h) any other matters that the FWC considers relevant
[417] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant. The Applicant raised several allegations regarding the conduct of the Respondent with respect to Ms Barber. These included that the Respondent:
• Made misleading statements to Ms Barber regarding the vaccination requirement constituting a lawful and reasonable direction;
• Threatened, coerced, or otherwise exerted undue pressure on the Applicant;
• Singled out the Applicant for special treatment in having her room searched;
• Treated the Applicant differently to other employees who provided a medical exemption; and
• Failed to provide documentation in breach of an order to produce.
[418] I will deal with each of these in turn.
[419] As to the misleading statements, this allegation was doomed to be irrelevant. Had the policy not been reasonable and lawful, there would be no valid reason and the dismissal would have been unfair regardless of this relatively minor point. Conversely, where I have found that the vaccination policy was reasonable and lawful, this allegation becomes inconsequential. I do not find this ground to have any relevance.
[420] As to allegations of coercion, these are more properly agitated through a separate claim under the relevant provisions found in Part 3-1 of the Act. However, I am not satisfied that these claims would be persuasive as they appear to have had no purported effect, and they have not impacted in any way how the Applicant responded to the Respondent’s allegations. The Applicant has not pointed to any tangible disadvantage as a result of these comments and therefore it has no bearing on the current proceedings. Regardless, I am not satisfied that any of the comments of the Respondent can properly constitute a threat; they largely reflect a request to comply with the obligations which the Respondent believed the Applicant to have under the policy. 104
[421] The allegation regarding the Applicant being singled out was abandoned in closing submissions. I therefore will not proceed to consider it.
[422] As to the allegation of differential treatment, the Commission must compare “apples with apples.” 105 The Respondent provided a cogent summary of why the allegations of differential treatment must fail, which I adopt:
“Ms Warren-Wright led evidence of sample medical certificates from other employees which gave similarly unclear advice. Ms Warren-Wright also led evidence of medical certificates that gave clear advice, and sample responses from employees which raised conscientious objections. Ms Rowe led evidence of example employees who were also promoted to obtain further medical advice using Ms Warren-Wright’s preprepared form. She then led evidence of example completed forms which Goodstart accepted. Ms Warren-Wright also led evidence of similar examples. None of this evidence was challenged in cross-examination - because it demonstrated that Goodstart its process evenly to all employees, treated ‘apples’ like ‘apples’.”
[423] I also note that the order for production was the subject of its own proceedings prior to the hearing. During that interlocutory hearing it was expressly stated that should there be the need for a supplementary notice for production that those orders could be sought. No such action was taken by the Applicant and therefore it is improper to agitate that point. 106
[424] As to the allegation regarding a failure to comply with the order to produce, I am not satisfied there is any evidence which substantiates this ground. The Respondent provides clear submissions which note their compliance and the discussion between both parties on 14 January 2021 regarding what was to be included in the court book for hearing. Even if this allegation was taken to be correct, it is unclear how it would have any bearing on the unfairness of the dismissal. Further, as above, had there been any issue with compliance this should have been raised prior to closing submissions, so as to allow the matter to be dealt with prior to hearing.
[425] I am not satisfied that any of the allegations above should be given any weight in this matter.
[426] The final point raised by the Applicant is that the personal circumstances of Ms Barber add to the harshness of the dismissal. The Applicant is, as I have previously stated, by all accounts an exemplary and longstanding employee and the outcome is an unfortunate one. While I give consideration to all of the factors put forward by the Applicant, I am not satisfied that they are enough to characterise the dismissal as unfair. It is important to recognise that Ms Barber did knowingly and consciously object, and in doing so was aware of the consequences. The process of termination extended over 4 months and the decision to terminate was not a hasty one.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
[427] The case before me has two distinct arguments: one surrounding the policy generally which encompasses questions of reasonableness and inherent requirements of the role of Educator, and another looking at the compliance of Goodstart with its policy and whether the Applicant’s dismissal was fair.
[428] The dismissal can be considered fair in all the circumstances when considering the paucity of medical evidence presented by the Applicant and the lengthy process attempted to obtain said medical evidence. The Applicant put forward numerous arguments around the implementation of the policy being flawed, the policy not bending to meet the Applicant’s circumstances, and Respondent not having any medical evidence that it was safe for the Applicant to be vaccinated. Ultimately, these concerns and problems all come back to the inability of the Applicant to provide any material that indicates there was a genuine risk in her being vaccinated. The policy was appropriately adapted and had any evidence been presented that there was a real medical exemption it would have been considered and accepted, as was the case with over one hundred other Goodstart employees. The Respondent made its requirements abundantly clear and the Applicant failed to comply, by choice. Accordingly, her employment was terminated.
[429] Having considered all of the evidence and submissions in the context of the statutory considerations I am not satisfied the dismissal was harsh, unjust or unreasonable.
CONCLUSION
[430] Employer mandated vaccination is a topical question in the current pandemic. As I have said above, this decision relates specifically to the influenza vaccination in a childcare environment, where the risks and concerns are distinct. Goodstart’s enterprise revolves around the care of children, who are by nature more vulnerable and in general have poor hygiene standards. This can make viral spread easier and potentially more dangerous than in other settings.
[431] Goodstart assessed that influenza presented a risk to both children and employees. In seeking to manage their statutory obligations, a policy was drafted that would help mitigate the impact and spread of influenza. Having considered alternative methodologies to limit the impact of influenza, Goodstart adopted a policy of mandatory influenza vaccination.
[432] The vaccination does not provide immunity to all and in some years provides limited protection. While effectiveness may vary each year, the objective is to reduce the impact of the virus upon the population. Any reduction in the transmission and contraction of influenza is positive.
[433] Once adopted, the Respondent implemented a communication strategy to inform employees of the need to be vaccinated. They ensured that they communicated broadly and anticipated that there might be medical grounds for the vaccination to be unsafe. Accordingly, the policy provided for a medical exemption to vaccination.
[434] The exemptions were managed first by the People and Culture team and then reviewed by a panel of senior Goodstart staff of various disciplines. The panel was to review evidence provided and determine whether to accept the exemption, request further information, or move to termination. Several medical responses were accepted, and exemptions were provided. In the case of the Applicant, the medical information provided by her practitioners was not sufficient. Further information was requested but it did not help substantiate a valid medical exemption and ultimately, the Applicant’s employment was terminated.
[435] This is a case where the Employer made a logical and legal analysis of the risks and hazards in the workplace, developed a response and implemented a policy to target that risk.
[436] The policy was a reasonable one and the Applicant chose not to comply. No medical exemption was substantiated and accordingly, the Applicant’s employment came to an end. I am not satisfied that is unfair. The application is dismissed. I order accordingly.
DEPUTY PRESIDENT
Appearances:
Mr J Pearce of Counsel, instructed by Mr N Buckley, G&B Lawyers on behalf of the Applicant.
Mr L Howard of Counsel, instructed by Mr M Proctor, Franklin Athanasellis Cullen Pty Ltd on behalf of the Respondent.
Hearing details:
2021.
19 & 20 January.
Brisbane.
Printed by authority of the Commonwealth Government Printer
<PR728785>
1 Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender[2021] FWCFB 268.
2 Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618, at [19(3)].
3 Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender[2021] FWCFB 268, at [48].
4 Witness Statement of Ms Bou-Jamie Barber dated 5 November 2020, Annexure A-1.
5 Ibid, Annexure A.
6 Ibid, Annexure B.
7 Applicant’s Closing Submissions, at [12].
8 Applicant’s Outline of Submissions, at [30].
9 Ibid at [31].
10 Witness Statement of Juvena Rowe, Annexure ‘JR-10’.
11 Applicant’s Closing Submissions, at [235].
12 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
13 Allied Express Transport Pty Limited v Anderson (1998) 81 IR 410 at 413.
14 211 NY 125 at 129.
15 [1992] HCA 15; 175 CLR 218 at 232 – 233.
16 Carter v Walker [2010] VSCA 340 (2010) 32 VR 1; see also Carrier v Bonham [2002] 1 Qd R 474; [2001] QCA 234, McMurdo P at [11]–[12]; Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471; [2007] NSWCA 377 at [80].
17 Witness Statement of Juvena Rowe, Annexure ‘JR-20’.
18 Witness Statement of Ms Bou-Jamie Barber dated 5 November 2020, Annexure Z.
19 Fair Work Act 2009, s.591.
20 Australasian Meat Industry Employees’ Union, The v Dardanup Butchering Company Pty Ltd[2011] FWAFB 3847, [28]-[29].
21 Krav Maga Defence Institute Pty Ltd t/a KMDI v Markovitch[2019] FWCFB 4258, at [36], quoting Hail Creek Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (2004) 143 IR 354, at [48].
22 Witness Statement of Ms Peachey, Annexure ‘KP-8’.
23 Ibid at ‘KP-9’.
24 (2010) 194 IR 1, at [26].
25 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, at [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), at [69].
26 Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), [(1995) 62 IR 371 at 373.
27 Ibid.
28 R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday; Ex parte Sullivan (1938) 60 CLR 601, at 621.
29 Downe v Sydney West Area Health Service (No 2) (2008) 71 NSWLR 633; 218 FLR 268; [2008] NSWSC 159, at [342].
30 See Australian Colliery Staff Association v Queensland Mines Rescue Service (1999) 88 IR 78, at [48] where an express stipulation as to location limited the ability of the employer to reasonably direct the employee to another site.
31 Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374, at [142], endorsing the decision of the Full Bench in Grant v BHP Coal Pty Ltd[2014] FWCFB 3027, at [110].
32 Michael King v Catholic Education Office Diocese of Parramatta T/A Catholic Education Diocese of Parramatta[2014] FWCFB 2194, at [26]-[29] (King).
33 Construction, Forestry, Mining and Energy Union v Glencore Mt Owen Pty Ltd[2015] FWC 7752, at [8]-[11].
34 Witness Statement of Juvena Rowe, Annexure ‘JR-28’ - Contract of employment dated 3 September 2014, cl 8.
35 Woolworths Ltd v Brown (2005) 145 IR 285, at 293.
36 Briggs v AWH Pty Ltd (2013) 231 IR 159, at [8].
37 Michael King v Catholic Education Office Diocese of Parramatta T/A Catholic Education Diocese of Parramatta[2014] FWCFB 2194, at [27].
38 Briggs v AWH Pty Ltd (2013) 231 IR 159, at [8].
39 WHS Act, s.19(1). This extends to a duty to provide and maintain a working environment that is without risk to health and safety (WHS Act, s.19(3)(a)).
40 WHS Act, s.19(2).
41 WHS Act, s.17.
42 WHS Act, ss.30-34D.
43 Respondent’s closing submissions, at [76]; WHS Act, s.28.
44 Education and Care Services National Law Act 2011 (Qld) s 167(1); Education and Care Services National Regulation 2011 (Qld) rr. 77, 88, 168(2)(c), 170.
45 Education and Care Services National Regulation 2011 (Qld) reg 88.
46 Grinham v Tabro Meats Pty Ltd [2012] VSC 491, at [6].
47 Witness Statement of Ms Warren-Wright, Annexures ‘KWW-13’, ‘KWW-14’, ‘KWW-15’ and ‘KWW-16; Witness Statement of Dr Lingwood at [30], Annexure ‘AL-6’.
48 WHS Act, s.18(c).
49 Witness Statement of Ms Warren-Wright, Annexures ‘KWW-13’, ‘KWW-14’, ‘KWW-15’ and ‘KWW-16’.
50 Witness Statement of Dr Lingwood, at [32].
51 Transcript PN1278.
52 Transcript PN1278.
53 Transcript PN1285-1286.
54 Witness Statement of Dr Lingwood, at [15].
55 Ibid at [16], [21-22].
56 Ibid at [17].
57 Ibid at [17].
58 Respondent’s Closing submissions, at [72].
59 Witness Statement of Dr Lingwood, at [27]; Witness Statement of Ms Warren-Wright, at [22]-[23].
60 Witness Statement of Dr Lingwood, at [27].
61 Witness Statement of Ms Warren-Wright, Annexure ‘KWW-18’.
62 Ibid at Annexure ‘KWW-17’.
63 Ibid at [103].
64 Witness Statement of Dr Lingwood, at [32].
65 Witness Statement of Ms Peachey, at [40].
66 Witness Statement of Dr Lingwood, at [31].
67 Applicant’s Closing Submissions, at [28]-[32].
68 Ibid at [35].
69 Respondent’s Closing Submissions, at [78].
70 Woolworths Ltd v Brown (2005) 145 IR 285, 297 at [35]).
71 Marion’s Case 175 CLR 218, at 232.
72 Carter v Walker (2010) 32 VR 1, at [215].
73 Connex Trains v Chetcuti (2008) 21 VR 559, at [16].
74 Ms Barber’s Show Cause Response, annexed to the Witness Statement of Ms Warren-Wright, at Annexure ‘KWW-42’.
75 Witness Statement of Dr Lingwood, at [66].
76 Re Crozier [2001] FCA 1031.
77 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, at 684-685.
78 Webb v RMIT University [2011] FWAFB 8336, at [6]-[7].
79 Qantas Airways Ltd v Christie (1998) 193 CLR 280, at [86] (Christie).
80 Qantas Airways Ltd v Christie (1998) 193 CLR 280; X v Cth (1999) 200 CLR 177.
81 Ms Nicole Maree Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning[2020] FWC 6083, at [30].
82 J Boag and Son Brewing Pty Ltd v Allan John Button[2010] FWAFB 4022, at [23].
83 J Boag & Sons v Button[2010] FWAFB 4022, at [22] & [29].
84 Hail Creek Coal Pty Ltd v CFMEU (2004) 143 IR 354, at [124]; Qantas Airways Ltd v Christie (1998) 193 CLR 280.
85 X v Cth (1999) 200 CLR 177, at [32]-[33], [38].
86 Respondent’s Closing Submissions, at [76]; WHS Act, s.28.
87 Qantas Airways Ltd v Christie (1998) 193 CLR 280, at [34].
88 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, at 685.
89 Jenny Webb v RMIT University [2011] FWAFB 8336, at [7].
90 X v Cth (1999) 200 CLR 177, at [37].
91 Disability Discrimination Act 1992 (Cth), s.15(4)(a).
92 Noting some of the narrow exceptions articulated in J Boag & Sons v Button[2010] FWAFB 4022, at [29].
93 See again J Boag & Sons v Button[2010] FWAFB 4022, at [35], where a breach of the policy surrounding drink driving was considered harsh. Consideration was given to surrounding factors such as the how rigidly and consistently the policy was applied between employees, and the fact that the applicant was not attending work at the time of the breach.
94 Fair Work Act 2009, s.387(a).
95 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, at 151.
96 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
97 Ibid.
98 Wadey v YMCA Canberra [1996] IRCA 568.
99 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, at 7.
100 Pitts v AGC Industries[2013] FWCFB 9196, at [54] referring also to Gibson v Bosmac Pty Ltd (1995) 60 IR 1; cited and adopted in RMIT v Asher (2010) 194 IR 1.
101 [2013] FWCFB 9075.
102 Ibid at [61]; Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1 at [26]; Osman v Toyota Motor Corporation Australia Ltd PR910409 at [69].
103 Jetstar v Neeteson-Lemkes[2013] FWCFB 9075, at [68].
104 FWO v AWU (2017) 271 IR 139, at [54]-[55]; McJannet v SBS Corporation [2016] FCCA 2937, at [149]-[151].
105 Darvell v Australian Postal Corporation (2010) 195 IR 307, at [21]-[26].
106 Transcript PN122-123, PN375.
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