Benjamin Bacon v Glenelg Community Hospital Incorporated
[2022] FWCFB 125
•6 JULY 2022
| [2022] FWCFB 125 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Benjamin Bacon
v
Glenelg Community Hospital Incorporated
(C2022/3121)
| VICE PRESIDENT HATCHER | SYDNEY, 6 JULY 2022 |
Appeal against decision [2022] FWC 966 of Deputy President Anderson at Adelaide on 4 May 2022 in matter number U2021/11050.
Introduction and background
Mr Benjamin Bacon has applied, pursuant to s 604 of the Fair Work Act 2009 (Cth) (FW Act) for permission to appeal a decision made by Deputy President Anderson on 4 May 2022[1] to dismiss Mr Bacon’s application for an unfair dismissal remedy against Glenelg Community Hospital Incorporated (Hospital).
The critical facts in this matter are not in contest. The Hospital is a private one operating in Adelaide. Mr Bacon was employed by the Hospital in 2015, and performed purchasing, storage and maintenance duties. On 7 October 2021, in connection with the COVID-19 pandemic, the State Co-ordinator for South Australia issued the Emergency Management (Healthcare Setting Workers Vaccination) (COVID-19) Direction 2021 (Direction) pursuant to s 25 of the Emergency Management Act 2004 (SA) (EMA Act). The Direction prohibited persons from working in any “healthcare setting” (which expression, for relevant purposes, included private hospitals) unless, by 1 November 2021, they had received at least one dose of an approved COVID-19 vaccine and had received or had evidence of a booking to receive a second dose within a month of the first, or had provided a medical certificate or letter evidencing a medical exemption from vaccination. Section 28 of the EMA Act relevantly provides that a failure to comply with a direction under s 25 without reasonable excuse is an offence subject to significant monetary penalties or, in the case of a natural person, imprisonment.
On 8 October 2021, the Hospital sent its staff an email which advised of the Direction. The same day, Mr Bacon was advised personally by the CEO of the Hospital, by email, that compliance with the Direction by 1 November 2021 was required.[2] A further reminder of the requirements of the Direction was sent to all staff on 13 October 2021. On 15 October 2021, Mr Bacon wrote to the CEO asking various questions and seeking guarantees about vaccination. The CEO replied on 18 October 2021, advising that the vaccination requirement for health workers was one imposed by the Direction, not the Hospital, and suggesting that Mr Bacon speak with his GP about any vaccination concerns. The CEO also asked that Mr Bacon provide an indication as soon as possible whether he intended to be vaccinated “[t]o enable us to plan for the period from 1 November 2021…”. The CEO met with Mr Bacon about the issue on 19 October 2021, and it was agreed that Mr Bacon would take the next day off to consider his options. On his return to work on 21 October 2021, Mr Bacon told the CEO that he did not intend to be vaccinated, and the CEO advised that, as a consequence, he would not be paid after 1 November 2021 and his employment would be terminated on notice. Mr Bacon requested to take his accrued annual leave after that date to maintain his income.
On 28 October 2021, the Hospital wrote to Mr Bacon stating that, as a result of his refusal to be vaccinated, his employment would be terminated due to his inability to meet the inherent requirements of his role since he would be unable to attend the Hospital for work from 1 November 2021. The letter advised that the Hospital agreed to Mr Bacon accessing his accrued leave, but that following this his employment would be terminated. Mr Bacon then took his annual leave. On 17 November 2021, the Hospital advised Mr Bacon that his employment was terminated effective from 18 November 2021. He was not provided with any payment in lieu of notice at the time (on the apparent basis that the Hospital considered that its letter of 28 October 2021 constituted the provision of three weeks’ notice). In mid-February 2022, the Hospital paid him one week’s pay on the basis of advice that he was entitled to four weeks’ notice, not three.
The decision
In addition to reciting the above facts, the Deputy President found that the Direction applied to Mr Bacon’s employment at the Hospital at all relevant times.[3] The Deputy President also noted that it was not in contest at the hearing that it was not a viable option for Mr Bacon to work at home.[4] In relation to the matters requiring consideration under s 387, the Deputy President found in relation to paragraph (a) that there was a valid reason for Mr Bacon’s dismissal because he was not able to fulfil the core elements of his role which required him to work in the hospital setting.[5] As part of this finding, the Deputy President also considered it reasonable for the Hospital to form the view that the Direction would be in place for the reasonably foreseeable future (as has in fact turned out to be the case).[6]
In finding that there was a valid reason for dismissal, the Deputy President considered and rejected a number of submissions made by Mr Bacon. This included the following:
“[69] Mr Bacon further submits there was no valid reason for dismissal because the Direction did not authorise termination of employment. This submission misconceives the nature of the Direction and the responsibility it placed on Glenelg Hospital. The Direction imposed a legally binding obligation on the hospital to not permit Mr Bacon or other unvaccinated persons to work in the hospital setting after 1 November 2021. It was not and did not purport to be a direction about employment consequences should a person not be vaccinated.
[70] As with any circumstance where an employee is unable to perform an inherent requirement of their role, it was a matter for the hospital (Mr Bacon’s employer) to determine employment consequences. The hospital did so in the exercise of its rights as an employer. It did not need the Direction to source a right to terminate.”
The Deputy President also rejected Mr Bacon’s submissions that there was no valid reason for dismissal because his employment contract made no provision for a mandated vaccine or medical procedure. He did so on the basis that, first, the Hospital did not mandate that Mr Bacon be vaccinated and, second, that in deciding to terminate Mr Bacon’s employment on the ground that Mr Bacon could not perform the inherent requirements of his role from 1 November 2021, the Hospital did not act inconsistently with Mr Bacon’s contract.[7]
In relation to paragraphs (b) and (c) of s 387, the Deputy President found that Mr Bacon had been informed of the reason for his dismissal and given an opportunity to respond.[8] The Deputy President made findings in respect of paragraphs (d), (e), (f) and (g) of s 387 which are not challenged by Mr Bacon in his appeal and need not be repeated. In relation to paragraph (h), the Deputy President rejected Mr Bacon’s submission that the dismissal was harsh because he had not been given a payment in lieu of notice, finding that Mr Bacon had been given actual notice on 28 October 2021.[9] In respect of the one week’s shortfall in notice, the Deputy President found that this did not render the dismissal harsh or otherwise unfair since the provision of an extra week’s notice would not have altered the circumstances as they existed at the date of notice (28 October 2021) or the date of termination (18 October 2021).[10] The Deputy President also rejected Mr Bacon’s submission that the dismissal was harsh because it deprived him of six and a half years’ service in respect of his long service leave accrual, in circumstances where he would have acquired a pro rata entitlement after seven years. The Deputy President found that no entitlement to long service leave had crystallised at the time of the termination, there was no evidence that the Hospital had manipulated the situation to deprive Mr Bacon of long service leave entitlements, and the termination was the result of Mr Bacon’s decision not to be vaccinated.[11]
On the basis of the above findings, the Deputy President determined that Mr Bacon’s dismissal was not harsh, unjust or unreasonable, and therefore not unfair.[12]
Appeal grounds and submissions
Mr Bacon’s notice of appeal contained the following grounds of appeal (numbering added):
(1) The Appellant claims that the learned Commissioner erred in Law and in Fact.
(2)The Appellant claims that the learned Commissioner misdirected himself as to the Terms and Conditions of the Contract of Employment.
(3)The Appellant claims that the learned Commissioner erred in his application of his finding of factual position and then the application of that incorrect factual finding to the Law.
(4)The Appellant claims that the learned Commissioner erred in Practice and Procedure in the application of the erroneous factual findings, to the incorrect legal position – in particular with respect to the application a legal fiction to the contractual position of a Contract of Employment retrospectively.
Mr Bacon elaborated on the generalised propositions above in his written and oral submissions. In his written submissions, Mr Bacon advanced a series of contentions relating to his contract of employment. In summary, Mr Bacon contended that his contract of employment formed the lawful basis of his employment and did not allow for the unilateral imposition of any medical procedures to allow him to perform his work, attend his workplace or continue his employment, or for his termination for refusal to undertake such a medical procedure. In his oral submissions, Mr Bacon contended that the notice of dismissal given on 28 October 2021 was premature because the Directions had not yet taken effect, and that the Direction did not apply to his contract of employment or mandate his dismissal.
Mr Bacon submitted the grant of permission to appeal would be in the public interest because:
“The public interest needs to be served to establish certainty in the public domain as to the strength of Contracts of Employment – and the ability of Employers to unilaterally undermine such Contracts of Employment – and the legal implications of undermining such Contracts of Employment – and the potential of allowing subordinate and administrative decisions to affect or interfere with such Contracts of Employment, including retrospectively.”
Consideration
The Deputy President’s decision is one to which s 400 of the FW Act applies. Therefore, permission to appeal must not be granted unless the Commission considers it is in the public interest to do so (s 400(1)). Further, appeals on a question of fact can only be made on the ground that the decision involved a significant error of fact (s 400(2)).
This test in s 400(1) a stringent one.[13] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[14] Some of the considerations that may attract the public interest are where a matter raises issues of importance and general application, or there is a diversity of decisions at first instance so that appellate guidance is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[15] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[16] However, the fact that the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[17]
Because Mr Bacon’s appeal does not raise any reasonably arguable contention of appealable error, we do not consider that it would be in the public interest to grant permission to appeal in this matter. The consideration required under s 387(a) as to whether there was a valid reason for dismissal related to the employee’s conduct or capacity is not assessed by reference to a legal right to terminate a contract of employment.[18] The legal effect of the Direction was that Mr Bacon could not lawfully attend his place of work on and from 1 November 2021 and thus could no longer undertake his workplace duties. That made unavoidable a finding that there was a valid – that is, a sound, defensible and well-founded – reason for Mr Bacon’s dismissal based on his incapacity to perform his job. Reference to the terms of Mr Bacon’s contract of employment cannot serve to vitiate this finding.
In any event, the terms of Mr Bacon’s contract, which was in evidence, do not support his position. The contract, executed on 3 March 2015 and varied as to remuneration and hours on 28 March 2018, provided that Mr Bacon was to “[o]bserve and adhere to legislative requirements of your functions and role”. The Directions can, in our view, readily be considered to be a legislative requirement to which this provision applied. Mr Bacon’s position description was stated to be attached to the contract (although it was not attached in the copy admitted into evidence), and this presumably set out the duties required by the Hospital to be performed by Mr Bacon. The contract also provides that:
“Despite any other provision of this agreement, we may terminate employment if the conditions of this agreement are substantially breached, or serious wilful misconduct is in conflict with your obligations as an employee.”
The effect of the Direction was to make it a legislative requirement for the performance of Mr Bacon’s functions and role to be vaccinated or to provide evidence of a medical exemption from vaccination. Mr Bacon’s failure to meet this requirement had the consequence that he could not discharge the duties of his role under his contract. Therefore, even considered from a contractual point of view, the Hospital had a right under the contract to terminate Mr Bacon’s employment for substantial breach.
Mr Bacon’s contention that the provision of notice of the dismissal was premature because it preceded the Direction coming into effect is not indicative of any unfairness in his dismissal. Mr Bacon had, on 21 October 2021, told the Hospital in unequivocal terms that he did not intend to be vaccinated. The Hospital indicated that it needed to plan for its operations on and from 1 November 2021, and accordingly gave him notice of termination. The position might be different if the evidence suggested that there was some serious possibility that Mr Bacon might change his mind about vaccination or might be able to obtain proof of a medical exemption, but there was no such evidence. Accordingly, the provision of notice of termination at any date later than 28 October 2021 could not have altered the position which prevailed as a result of the Direction.
Finally, Mr Bacon’s contention that the Direction did not apply to his contract of employment was not articulated and is plainly incorrect. His contention that the Direction did not itself mandate his dismissal is correct but beside the point.
We do not consider that Mr Bacon’s appeal raises any wider issue of law or general principle which would attract the public interest. The Deputy President’s reasoning was orthodox and consistent with established principles concerning a valid reason for dismissal relating to capacity in the context of public health requirements concerning vaccination.[19] The Deputy President’s conclusion that Mr Bacon’s dismissal was not harsh, unjust or unreasonable was, far from being counter-intuitive or manifesting an injustice, the only conclusion in our view which was reasonably available on the uncontested facts.
Conclusion
Because we do not consider that the grant of permission to appeal would be in the public interest, s 400(1) of the FW Act prohibits such permission being granted. Accordingly, permission to appeal is refused.
VICE PRESIDENT
Appearances:
R Timms for the appellant with B Bacon, the appellant, in person.
P Moorhouse of counsel for the respondent.
Hearing details:
2022.
Sydney, Melbourne and Adelaide by video-link:
4 July.
[1] [2022] FWC 966
[2] This advice was contained in a response to a complaint made by Mr Bacon alleging bullying by other staff because of his decision not to be vaccinated.
[3] [2022] FWC 966 at [19]
[4] Ibid at [30]
[5] Ibid at [59]-[61], [73]
[6] Ibid at [62]
[7] Ibid at [71]
[8] Ibid at [75]-[85]
[9] Ibid at [96]
[10] Ibid at [97]-[99]
[11] Ibid at [101]-[102]
[12] Ibid at [110]-[111]
[13] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43] per Buchanan J (with whom Marshall and Cowdroy JJ agreed)
[14] O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
[15] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [27]
[16] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
[17] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
[18] Australian National University v Scott Morrison [2022] FWCFB 83 at [48]
[19] See e.g. Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015; Roy-Chowdhury v Ivanhoe Girls’ Grammar School [2022] FWCFB 101; Roman v Mercy Hospitals Victoria Ltd [2022] FWCFB 112.
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