Benjamin Robert Bacon v Glenelg Community Hospital Incorporated
[2022] FWC 966
•4 may 2022
| [2022] FWC 966 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy
Benjamin Robert Bacon
v
Glenelg Community Hospital Incorporated
(U2021/11050)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 4 may 2022 |
Application for an unfair dismissal remedy – procurement officer – failure to be vaccinated against COVID-19 or produce medical exemption – South Australian government direction – whether valid reason – procedural fairness – dismissal not harsh, unjust or unreasonable – application dismissed
On 1 December 2021 Benjamin Robert Bacon (the applicant or Mr Bacon) applied to the Commission under s 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy. He was dismissed by Glenelg Community Hospital Incorporated (Glenelg Hospital, the employer or the respondent). The dismissal took effect on 18 November 2021. At the date of dismissal Mr Bacon was employed as a procurement officer.
Mr Bacon claims his dismissal was harsh, unjust or unreasonable. He seeks reinstatement or such other remedy as appropriate.
Glenelg Hospital oppose the application. It contends Mr Bacon’s dismissal was not unfair and no issue of remedy arises.
Conciliation was conducted on 14 February 2022. The matter did not resolve.
I issued directions on 4 March 2022.
In advance of the hearing, I received materials from Mr Bacon and Glenelg Hospital.
I heard the matter by video conference on 26 April 2022.
Mr Bacon was represented by an unpaid agent, Mr Timms. Glenelg Hospital were legally represented, with permission.[1]
Evidence
Mr Bacon gave oral evidence on a statement[2] and ten documents accompanying his materials.[3]
For Glenelg Hospital, Deborah Muldoon Chief Executive Officer gave evidence on a statement and six accompanying documents[4].
Both witnesses gave evidence conscientiously and to the best of their recall. Mr Bacon appeared truthful with good recall though he answered “no comment” to a number of relevant questions in cross examination and to that extent was somewhat calculated in his responses. Ms Muldoon also conveyed an impression of truthfulness. On one disputed fact (whether Mr Bacon had mentioned to Ms Muldoon his concern at losing access to long service leave accruals if dismissed) I prefer Mr Bacon’s evidence as his recall on that issue was specific and plausible.
That aside, the disputed facts are few. The matter largely involves differences of opinion as to a vaccine mandate, not disputed facts.
Facts
I make the following findings.
The respondent operates a private hospital in suburban Adelaide. It employs approximately 100 persons. It is not a small business employer within the meaning of the FW Act.
Mr Bacon performed the combined duties of a purchasing officer, store person and general maintenance officer. He was a part time employee working 36.5 hours per week (73 per fortnight). He was employed under the Health Professionals and Support Services Award 2020.
Until dismissed, Mr Bacon served six years eight months. He commenced in March 2015, with a contractual variation in March 2018.[5]
On 7 October 2021 the Commissioner of Police and State Co-ordinator for South Australia under the Emergency Management Act 2004 (SA) issued the Emergency Management (Healthcare Settings Workers Vaccination) (COVID-19) Direction 2021 whereby a person was prohibited from working in a health care setting in South Australia unless they had, by 1 November 2021, at least one dose of an approved vaccine against COVID-19 and a verifiable booking within a month for a second dose, and provided the operator of a health care setting with proof of vaccination upon request[6] (the Direction). Provisions existed for persons presenting with an appropriate medical exemption.[7]
An operator of a health care setting was required to ensure compliance with its obligations under the Direction. Refusal or failure to comply was an offence against the operator carrying a significant penalty.
Glenelg Hospital determined, and I accept, that the Direction applied to Mr Bacon’s employment at all relevant times.
In the month prior to dismissal, a dispute arose between Mr Bacon and Glenelg Hospital over the vaccination mandate.
On 8 October 2021 Mr Bacon wrote to his immediate manager complaining of bullying and harassment by other staff as a consequence of his “personal decision not to be involved in the Covid-19 vaccine roll out”.[8]
That same day, Glenelg Hospital sent all staff a “COVID-19 Update” which advised of the previous day’s Direction.[9]
Later that day, the Chief Executive Officer Ms Muldoon (who had spoken to Mr Bacon the previous day about his concern over the government vaccine mandate) wrote to Mr Bacon responding to his email alleging bullying and advised:[10]
“So understanding your concerns I would like to give you some time to consider your position and meet with you in the next week to discuss…To re-iterate what I said yesterday afternoon that we do not want to lose you, however we now have to comply with the Direction from 1st November 2021.”
A week later, on 13 October 2021 Ms Muldoon sent an “All Staff” memorandum updating and reminding of obligations under the Direction.[11]
Two days later, on 15 October 2021, Mr Bacon wrote a lengthy letter to Ms Muldoon asking Glenelg Hospital to answer eighteen questions about the vaccine and its risk assessment (including seeking a range of assurances including guarantees “of no harm” and signed financial responsibility and acceptance of liability for any injuries, as well as guarantees of no adverse employment action if “I should have to decline the offer of medical treatment” and reservation of “inalienable rights”).[12]
Three days later, on 18 October 2021 Ms Muldoon wrote directly to Mr Bacon advising:[13]
“…the mandatory requirement for healthcare workers to be vaccinated does not come directly from GCH but comes from a direction from the South Australian state government…”;
“If you have any concerns about the COVID-19 vaccine or any individual types of vaccine I recommend you speak with your GP”;
“…While GCH has not mandated that you must be vaccinated, we will not be permitted to legally allow you to work onsite without the required evidence of vaccination (or a valid exemption)”; and
“To enable us to plan for the period from 1 November 2021, please provide me with an indication ASAP as to whether you intend to comply with the Direction.”
Mr Bacon did not consult his general practitioner about his concerns about the medical risks of the vaccine, despite this being recommended by Ms Muldoon.[14]
Mr Bacon continued to elect not to be vaccinated.
Mr Bacon did not seek, obtain or present to the Glenelg Hospital a medical exemption as provided for in the Direction.
On 19 October 2021 Ms Muldoon again met Mr Bacon and informally discussed his concerns. She reiterated the hospital’s position set out in the previous days letter. They discussed whether other options existed such as working from home, but this was not considered viable given the nature of Mr Bacon’s duties (Mr Bacon accepted in his that this was not a viable option[15]). It was agreed that Mr Bacon would take the following day off work to consider his options.
Mr Bacon was absent from work on 20 October 2021.
On 21 October 2021, on his return to work, Ms Muldoon again met with Mr Bacon. Mr Bacon advised that he continued to hold concerns about the vaccine and communicated his then intention not to be vaccinated based on the information he had to date. The discussion turned to the implications of that position for his employment. Ms Muldoon indicated that the hospital needed to plan for Mr Bacon not being allowed to work on site from 1 November 2021 and the need to train up a staff member to cover his duties. Ms Muldoon advised that as a consequence of not being able to work, Mr Bacon would not be paid after 1 November 2021 and that his employment would then be terminated on notice. He was told that he would be given written notice of this. Mr Bacon expressed concern at not being paid after 1 November 2021. He requested that he be permitted to use his annual leave accruals to ensure he maintained income after 1 November 2021. Ms Muldoon agreed. It is more probable than not, and I find, that it was on this occasion that Mr Bacon also raised his concern at losing his long service leave accruals if terminated.
On 21 October 2021 Mr Bacon wrote to the “Chief Executive Officer” advising “Official Notice of INDUSTRIAL DISPUTE” (emphasis in original). This letter requested “a legally considered response” within 7 days failing which Mr Bacon asserted that it would “take my employment outside the provisions of the Emergency Management Act 2004 (SA) & your Direction will NOT be applicable to my employment”[16] (emphasis in original).
On 28 October 2021, four days prior to the Direction’s mandate deadline coming into effect, Glenelg Hospital again wrote to Mr Bacon advising its position. The letter from Ms Muldoon concluded:[17]
“Further to our recent discussions you have stated that you will not be getting vaccinated and therefore will not be providing the required evidence by 1 November 2021. As also discussed, this has implications for your ongoing employment and the regrettable consequence is that you will be unable to perform under your contract and your employment will be terminated due to your inability to meet the inherent requirements of your role.
As you have confirmed that you do not intend to receive the COVID-19 vaccination you will be unable to attend the Hospital for work from 1 November 2021.
The Hospital agrees to provide you with access to your accrued leave entitlements from 1-18th November 2021, however, following this period of leave, regrettably your employment will be terminated due to this inability to meet the inherent requirements of your role.”
In the week prior to 1 November 2021, Mr Bacon helped train a staff member to temporarily fill his role. In the weeks that then followed (including in the weeks following termination) Mr Bacon was occasionally contacted by the hospital seeking information about suppliers or procurement, and willingly assisted in providing the information sought.
Having been provided the letter of 28 October 2021, between 1 November 2021 and 18 November 2021 Mr Bacon did not attend the workplace. He was absent on agreed paid annual leave.
On 17 November 2021 Glenelg Hospital sent Mr Bacon a letter confirming the termination of his employment. It read:[18]
“Dear Ben,
I refer to my correspondence dated 28 October, 2021 regarding the mandatory Directive COVID-19 Vaccination in healthcare settings.
Given that the Hospital has not received evidence confirming you have received COVID19 vaccination (or an exemption), your employment is regrettably terminated effective 18 November 2021, due to the inability to meet the inherent requirements of your role.
Outstanding annual leave entitlements will be paid accordingly.
If you have any questions about this process, please contact me directly.
Yours sincerely,
Deborah Muldoon
Chief Executive Officer”
The dismissal became effective the next day (18 November 2021). At the time, no additional notice was paid in lieu.
Mr Bacon filed these proceedings on 1 December 2021.
Mr Bacon seeks reinstatement to his former job as the primary remedy, if appropriate. He remains unvaccinated against COVID-19.
Three months after dismissal, in mid-February 2022, the Hospital received advice that it had had a legal obligation to provide Mr Bacon four weeks’ notice, not three. Unsolicited, it paid Mr Bacon an additional week simply noting on a further pay slip that “notice period was short paid by 1 week”.[19]
On 21 February 2022, Glenelg Hospital appointed a permanent replacement to fill Mr Bacon’s former position.
Mr Bacon was unemployed between 18 November 2021 until mid-March 2022. In mid-March 2022 he secured fresh employment, on a six month probationary period. This employment was not on as favourable or convenient terms for Mr Bacon as his former employment with the Glenelg Hospital.
Submissions
Mr Bacon
Mr Bacon submits his dismissal was harsh, unjust or unreasonable. He seeks reinstatement or compensation if that is more appropriate.
He claims dismissal was unfair on multiple grounds:
there was no valid reason for dismissal because Glenelg Hospital did not provide the requested information or assurances that vaccines against COVID-19 are safe and did not present a risk to his future health and safety;
the Direction did not authorise termination of employment;
his employment contract made no provision for a mandated vaccine or medical procedure;
he committed no offence or breach of duties and had no disciplinary record during his employment;
he was summarily terminated and the notice period he was entitled to by law (of four weeks) was not paid on termination and belatedly he was paid only one week; and
dismissal was harsh as it had the effect of erasing six and a half years of long service leave accruals in circumstances where after seven years he would have acquired a pro rata long service leave entitlement under South Australian law.
Glenelg Hospital
Glenelg Hospital contend that the dismissal was not harsh, unjust or unreasonable and no issue of remedy arises. It submits:
there was a valid reason for dismissal having regard to the fact that Mr Bacon chose to remain unvaccinated and not produce a medical exemption. Having regard to the Direction prohibiting unvaccinated persons in a health care setting working in the hospital, Mr Bacon could not perform the inherent requirements of his job from 1 November 2021. The employer’s position that the Direction be complied with was lawful and reasonable because failure to ensure compliance would have been an offence by the business; and
the dismissal was not procedurally unfair because Mr Bacon was provided multiple notices of the vaccination requirement imposed by the Direction; was given reasonable time to comply; was encouraged to speak to his general practitioner about vaccine safety (which he did not do); was communicated with in writing and in person-to-person meetings with the Chief Executive Officer; was allowed to reconsider his position before any decision to terminate was made; was advised of dismissal being a likely consequence of remaining unvaccinated (or not exempt); and was allowed to access his annual leave accruals to ensure he lost no income in the period of notice and when he was not allowed to be on site.
Consideration
There are no jurisdictional or preliminary issues arising.
I am satisfied that Mr Bacon was a person protected from unfair dismissal within the meaning of s 382 of the FW Act. He served the required minimum employment period (s 382(a)). His annual rate of earnings did not exceed the high-income threshold (s 382(b)(iii)). His employer was a “national system employer” within the meaning of s 14 of the FW Act. His application was filed within the required 21-days after dismissal.
As noted, Glenelg Hospital is not a “small business” for the purposes of the unfair dismissal provisions of the FW Act.
I now consider whether Mr Bacon’s dismissal was unfair.
Section 387 of the FW Act provides:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a)whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c)whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d)any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e)if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f)the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g)the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
Valid reason
Valid in this context is generally considered to be whether there is a “sound, defensible or well-founded” reason for dismissal and one that is not “capricious, fanciful, spiteful or prejudiced. [20] In considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations.
The Commission will not stand in the shoes of the respondent and determine what the Commission would have done if it was in the respondent’s position. The question the Commission must address is whether there was a valid reason for dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).
A valid reason is not assessed simply by reference to a legal right to terminate a contract of employment.[21]
In this matter, the reason for dismissal advanced by the respondent for Mr Bacon’s dismissal was “the inability to meet the inherent requirement of your role”.[22]
It is not disputed that the Direction applied to Mr Bacon with respect to his employment at the Glenelg Community Hospital, and I have so found. Being a “private hospital” as defined, the hospital was a “health care setting” within the meaning of the Direction and Mr Bacon was “engaged in work” in that setting.
The effect of the Direction was that the respondent was prohibited from allowing Mr Bacon to undertake work in the hospital setting from 1 November 2021 unless he was vaccinated (first dose) against COVID-19 and had verifiable evidence of a second dose appointment within a month of that date, or had a valid medical exemption. Mr Bacon decided not to be vaccinated by that date and did not provide a medical exemption.
The Direction also required Mr Bacon to produce evidence of his vaccination status upon request.[23] Glenelg Hospital made this request of Mr Bacon. He did not produce evidence of compliance with the Direction.
The Direction compelled Glenelg Hospital not to engage Mr Bacon to work at the hospital if he was non-complaint after 1 November 2021. Failure to do so would have been an offence by the hospital.
It is not in dispute that Mr Bacon’s employment required him to work on the hospital premises. He acknowledged this in his evidence.[24] His duties required an active presence to assist in the stocking of supplies, including in theatre.
The effect of the Direction, in the context of Mr Bacon’s employment, was that he was not able to fulfil core elements of his role as a purchasing and supplies officer, which required him to work in the hospital setting.
I also consider it reasonable to take into consideration that, at the time of dismissal, there was no indication from the State Co-ordinator for South Australia (who issued the Direction) that the mandate would be of short duration only or in place for other than a reasonable period to meet relevant public health policy objectives. It was reasonable of the hospital to form the view that the Direction would be in place for the reasonably foreseeable future, as Ms Muldoon did[25].
At the time of dismissal, Mr Bacon had not complied with the requirement in the Direction, either by being vaccinated (first dose) or producing a valid medical exemption. Nor had Mr Bacon given Glenelg Hospital an indication of an intent to comply. Mr Bacon conveyed this sentiment in correspondence prior to dismissal. Even though Mr Bacon couched his written language in somewhat non-definitive terms, I accept Ms Muldoon’s evidence that Mr Bacon conveyed this sentiment (not to be vaccinated) in discussions with her.[26]
Mr Bacon submits there was no valid reason for dismissal because Glenelg Hospital did not provide him the requested information or assurances that vaccines against COVID-19 are safe and did not present a risk to his future health and safety.
I do not agree. Mr Bacon’s letter of 15 October 2021 was replete with loaded questions asking for guarantees and acceptance of liability that, in combination, no employer could reasonably provide. Glenelg Hospital responded respectfully and appropriately by recommending that Mr Bacon discuss the assurances he sought about vaccine safety with his medical practitioner. That Mr Bacon did not do.
Mr Bacon’s letter of 21 October 2021 sought that his employer agree to even more extreme demands for a “whole of life” assurance and insurance policy of $60 million. His assertion in that correspondence that notification of a dispute took his employment outside the realm of the Direction is not supported by any legal authority. Again, Glenelg Hospital responded respectfully and appropriately by advising (in its letter of 28 October 2021) that any legal challenge to the Direction was a matter for Mr Bacon but that the hospital would abide by the requirements in the Direction whilst it remained legally enforceable.
This was a reiteration of what the hospital had informed Mr Bacon from the outset – that “the mandatory requirement for healthcare workers to be vaccinated does not come directly from GCH but comes from a direction from the South Australian State government”.[27]
The employer’s obligation was not altered by the fact that Mr Bacon was concerned whether vaccines against COVID-19 were safe. Glenelg Hospital did not have the liberty to pick or choose whether to comply with the Direction. It had been mandated. As noted, continuing to employ Mr Bacon at the hospital in breach of the Direction exposed the employer to prosecution and penalties for an offence. As observed by a full bench of the Commission in DA v Baptist Care SA:[28]
“Unfair dismissal proceedings under Pt 3-2 of the FW Act do not provide an avenue to revisit that policy choice or to assign responsibility for the inevitable consequences of the legislative scheme to employers who are bound by it.”
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.
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.
Mr Bacon further submits there was no valid reason for dismissal because his employment contract made no provision for a mandated vaccine or medical procedure. This submission is rejected for two reasons. Firstly, Glenelg Hospital did not mandate that Mr Bacon must be vaccinated. Mr Bacon exercised his right not to be vaccinated, but in so doing he put himself in conflict with the requirements of the Direction. A potential employment consequence flowed from that, of which he was advised by his employer. Secondly, in order for an employer to have a valid reason to terminate an employee, it is not necessary that an employment contract specify all of the circumstances that could give rise to the employer’s right to terminate. Rights to terminate exist not just in contract, but also at common law and in statute. In deciding to terminate on the ground that Mr Bacon could no longer (after 1 November 2021) meet the inherent requirements of his role, Glenelg Hospital did not act inconsistently with his contract. An employer’s right to terminate on the ground that an employee cannot meet the inherent requirements of the role is well established at common law.
Finally, Mr Bacon submits there was no valid reason for dismissal because he committed no offence or breach of duty and had no disciplinary record during his employment. This submission misconceives the reason for termination. Mr Bacon was not terminated for performance reasons. His unblemished disciplinary record did not mitigate against the reason for dismissal.
Glenelg Hospital had a sound, defensible and well-founded reason to terminate Mr Bacon’s employment. There was a valid reason for dismissal.
This consideration weighs against a finding of unfairness.[29]
Notification of reason for dismissal
Notification of a valid reason for dismissal should be given to an employee protected from unfair dismissal before a decision is made to terminate their employment[30] and in plain and clear terms.[31]
The evidence clearly establishes that Mr Bacon was informed of the reason for dismissal at the time of notification. He was given formal written notice on 28 October 2021 that his employment would be terminated following the period from 1 to 18 November 2021, which was agreed to be taken as paid leave. The letter of 28 October 2021 stated the reason (“your inability to meet the inherent requirements of your role”).
The letter confirming termination of 17 November 2021 repeated this reason.
Whilst Mr Bacon disagreed with the reason for dismissal, he was informed in those express terms.
This consideration weighs against a finding of unfairness.
Opportunity to respond
An employee protected from unfair dismissal should be provided an opportunity to respond to a reason for dismissal relating to their conduct or capacity. An opportunity to respond should be provided before a decision is taken to terminate an employee’s employment.[32]
The opportunity to respond is an element of procedural fairness but does not require formality. This consideration is to be applied in a common-sense way to ensure the employee is treated fairly.[33] Where an 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, that is enough to satisfy this consideration.[34]
The evidence clearly establishes that Mr Bacon had multiple opportunities to respond to the employer’s advice that in order to continue working in the hospital setting the Direction required vaccination or production of a valid exemption by 1 November 2021. Mr Bacon availed himself of these opportunities.
Glenelg Hospital communicated openly and repeatedly with Mr Bacon. It made suggestions. It listened to his concerns and responded informally and formally. It did not wish to “lose” Mr Bacon from its employment and gave him time to consider and reconsider his position. The Chief Executive Officer met with Mr Bacon face-to-face on at least two occasions. Mr Bacon was advised in clear and measured terms by his employer that dismissal was a possible consequence of remaining unvaccinated.
Considered overall, Mr Bacon had full opportunity to respond to a transparent and procedurally fair process leading to dismissal. He did so in the manner he saw fit.
This consideration weighs against a finding of unfairness.
Opportunity for support person
Where an employee protected from unfair dismissal has requested a support person to assist in discussions relating to dismissal, an employer should not unreasonably refuse that person being present.
No requests were made by Mr Bacon for a support person. Glenelg Hospital did not unreasonably refuse Mr Bacon a support person. This consideration is not relevant and thus neutral.
Warnings concerning performance
As noted, this matter does not concern Mr Bacon’s performance or competency as a hospital employee. This consideration is not relevant and thus neutral.
Size of enterprise and human resource capability
The employer is not a small business within the meaning of the FW Act.
Whilst not having significant internal human resource capability, there is no sense in which the size of the employer or its internal capacity mitigated managing workplace or disciplinary matters in a fair manner.
This is a neutral consideration.
Other matters
Mr Bacon submits that his dismissal was harsh because the three week notice period was not separately paid out by Glenelg Hospital and was in any event one week short of his legal entitlement.
I do not accept this submission for the following reasons.
Mr Bacon was not, in addition to payment of annual leave, separately paid out the three week notice period 28 October to 18 November 2021.
This was not harsh because there was no obligation on the employer to do so and no unfairness in not doing so.
The employer’s obligation was to give notice. Notice can be given in advance of employment ceasing, or alternatively paid out upon employment ceasing with immediate effect. Mr Bacon was given three weeks advance notice that his employment would terminate on 18 November 2021. This was notice of termination. That Mr Bacon could not lawfully work at the hospital during this period did not detract from the fact that during this period he was on notice that his employment was terminating effective 18 November 2021. That Mr Bacon and the hospital reached an agreement prior to the 28 October 2021, at his request, that he would draw on annual leave accruals during this three week period in order to maintain income (given that the hospital did not intend to, nor was required to, pay him for not working) did not alter the fact that this was a notice period.
Mr Bacon correctly points to the fact that he was not given the full four week period of notice that he was lawfully entitled to. He was only provided three weeks’ notice. In this respect Glenelg Hospital erred.
However, unfair dismissal matters are multifactorial. Just as a lawful dismissal can still be unfair, a dismissal whose terms fail to conform to every legal requirement is not, simply by virtue of that fact, unfair.
That Mr Bacon was, at the time of dismissal, short-changed by one week of notice did not, considered overall, render his dismissal harsh or otherwise unfair. Having been aware of the requirement in the Direction since 7 October 2021, and having been given time to consider and then reconsider his position, and not having put in place any arrangement to seek his own medical advice or make the requisite appointments to be vaccinated, the evidence supports a conclusion that an extra week of notice would not have altered the circumstances as they existed at the date of notice (28 October 2021) or at the date of termination (18 November 2021).
In context, whilst this consideration slightly weighs in favour of a finding of unfairness (as the terms of dismissal were not fully compliant with law) it does so only slightly given that an extra week of notice would not have materially altered the conduct of either Mr Bacon or the decision of Glenelg Hospital.
Mr Bacon further submits that his dismissal was harsh because it had the effect of erasing six and a half years of long service leave accruals in circumstances where if he had worked seven years he would have acquired a pro rata long service leave entitlement under South Australian law.
This submission has no force. At the time of dismissal no right, real or contingent, to long service leave had crystalised. That a dismissal for a valid reason occurs after lengthy service but in advance of a right to long service leave crystalising does not make the dismissal unfair. In this matter there is no evidence that the employer manipulated the circumstances with the intention of depriving Mr Bacon of the additional four months service he needed to establish a contingent pro rata long service leave entitlement. The employer acted for reasons unrelated to his long service leave accruals. Further, for reasons stated, the employer did not seek to lose Mr Bacon from their employment and would not have terminated Mr Bacon’s employment had Mr Bacon presented evidence of compliance with the Direction. It was Mr Bacon’s decision to not be vaccinated, taken in the knowledge that termination was a possible consequence and in the knowledge that termination would erase his accrued service for long service leave purposes.
There are no other matters arising.
Conclusion
In considering whether Mr Bacon’s dismissal was “harsh, unjust or unreasonable” the Commission is required to consider each of the matters in s 387 of the FW Act to the extent relevant.[35] Those matters must be considered as part of an overall assessment. Each assessment must be made on its merits. That assessment is to be based on the ordinary meaning of the words, in their statutory context. Context includes the object stated in section 381(2) of the FW Act that:
“…the manner of deciding on and working out such remedies are intended to ensure that a “fair go all round” is accorded to both the employer and the employee concerned.”
In arriving at an overall assessment, the statutory considerations must be applied in a practical, common-sense way to ensure that the employer and the employee are each treated fairly.[36]
This fairness principle applies to all matters under Part 3-2 of the FW Act including where an employee is dismissed for being unable to perform an inherent requirement of a job due to the action of a third party (in this case, the State Co-ordinator for South Australia making the Direction of 7 October 2021). As observed by a full bench of the Commission:[37]
“[I]n a situation where an employee’s capacity to perform the inherent requirements of their job is affected by the actions of a third party, the employer still has an obligation to treat the employee fairly.”
I have found a valid reason for dismissal given that, after 1 November 2021, Mr Bacon was unable to lawfully perform his duties in the health care setting of the private hospital and consequently unable to perform an inherent requirement of his role from that date and into the foreseeable future.
I have also found that Mr Bacon had full opportunity to respond to a transparent and procedurally fair process in advance of being dismissed.
Considerations under s 387(a), (b) and (c) of the FW Act weigh against a finding of unfairness. One consideration under s 387(h) weighs in favour of such a finding but only slightly and does not outweigh these other considerations.
Considered overall, Mr Bacon’s dismissal was not unfair.
Conclusion
Having not found the dismissal to be harsh, unjust or unreasonable, no issue of remedy arises.
Mr Bacon’s application is dismissed. An order[38] giving effect to this decision is issued in conjunction with its publication.
DEPUTY PRESIDENT
Appearances:
R Timms, on behalf of B Bacon, with B Bacon.
M Hii, with permission on behalf of, Glenelg Community Hospital Incorporated
Hearing details:
2022
Adelaide (by video)
26 April
[1] Permission was granted to respondent on 4 March 2022. Permission was granted to Mr Bacon to be represented on 20 April 2022 following a request dated 15 March 2022. At the hearing, the Commission was informed that Mr Timms appeared as an unpaid agent.
[2] A1
[3] A2 to A11
[4] R1 and DM1 to DM6
[5] A2 and A3; DM1 and DM2
[6] Direction, clause 4(1) and (2)
[7] Direction, clause 4(3)(a)
[8] A4
[9] DM2
[10] A5
[11] A6 and DM3
[12] A7
[13] A8
[14] Audio transcript 26 April 2022 Mr Bacon 11:39am
[15] Audio transcript 26 April 2022 Mr Bacon 11:43am
[16] A9
[17] A10 and DM4
[18] A11 and DM5
[19] DM6
[20] Sydney Trains v Hilder[2020] FWCFB 1373 at [26]
[21] Sydney Trains v Hilder[2020] FWCFB 1373 at [26] principle (6)
[22] Letter of termination DM5
[23] Direction, clause 4(2)
[24] Audio transcript 26 April 2022 Mr Bacon 11:43am
[25] R1 paragraph 23
[26] R1 paragraph 27
[27] A8
[28] [2020] FWCFB 6046 at [31]
[29] Parmalat Food Products Pty Ltd v Wililo[2011] FWAFB 7498 at 20
[30] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 at [73]
[31] Previsic v Australian Quarantine Inspection Services Print Q 3730 (AIRC, 6 October 1998)
[32] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 at [75]
[33] RMIT v Asher (2010) 194 IR 1 at 26-30
[34] Gibson v Bosmac Pty Ltd (1995) 60 IR 1 at 7
[35] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR 915674 at [69] (AIRC, 21 March 2002)
[36] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation (2004) 133 IR 458 per Ross VP, Williams SDP, Foggo C and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C at [36]
[37] DA v Baptist Care SA[2020] FWCFB 6046 at [32]
[38] PR740912
Printed by authority of the Commonwealth Government Printer
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