Caroline Yip v Roads Corporation
[2022] FWC 1547
•30 JUNE 2022
| [2022] FWC 1547 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Caroline Yip
v
Roads Corporation
(U2022/22)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 30 JUNE 2022 |
Application for an unfair dismissal remedy
Before her dismissal on 13 December 2021, Caroline Yip was employed by Roads Corporation, which trades as VicRoads, as a Senior Customer Service Officer located at its Burwood East Customer Service Centre. Ms Yip held that position since March of 2021 and had been employed by VicRoads since September 2014. According to VicRoads, Ms Yip was dismissed because she was unable to perform the inherent requirements of her position. On 31 December 2021, Ms Yip applied under s 394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy, alleging that she had been unfairly dismissed.
I have decided that Ms Yip’s dismissal by VicRoads was not unfair and that her application should be dismissed. My reasons follow.
Factual background
Except as indicated, the relevant background facts set out below are not in dispute.
VicRoads is a statutory corporation responsible for Victoria’s road network, and provides registration and licensing services. It employs approximately 920 employees across Victoria including in Customer Service Centres located throughout the State.[1]
Ms Yip’s position as a Senior Customer Service Officer required her to undertake various duties including the performance of driving tests, undertaking vehicle inspections, and delivering over-the-counter service to customers which were set out in her position description.[2] Self-evidentially, these duties required Ms Yip to physically attend at work and her duties could not practically be undertaken remotely.
On 16 March 2020, as part of the Victorian Government’s response to the management of the COVID-19 pandemic, the Victorian Minister for Health declared a state of emergency under s 198(1) of the Public Health and Wellbeing Act 2008 (Vic) (PHW Act). The declaration permitted the Chief Health Officer for Victoria (CHO), or any person acting in that position, amongst others, to make various directions directed to “pandemic management”. On 7 October 2021, the acting CHO made the COVID-19 Mandatory Vaccination (Workers) Directions pursuant to s 200 of the PHW Act. Subsequently, and during all material times relevant to this application, the CHO and those acting made successive directions, which were substantially to the same effect (CHO Directions).
During the hearing Ms Yip made a submission which, though largely incoherent, was to the effect that the CHO Directions made under PHW Act were invalid because there was “no government” as the Premier of Victoria and others were the subject of charges brought by an individual in which it is alleged, inter alia, that the Premier was guilty of “Misprison of treason at common law” and “fraud at common law”. Putting to one side the absurdity underpinning the charges, the Commission is not the place to mount an attack on the validity of the CHO Directions. As an administrative tribunal the Commission will proceed on the basis that the CHO Directions made pursuant to the exercise of statutory power were validly made.[3] But in any event, the arguments advanced by Ms Yip in support of her contention were largely incomprehensible, they lacked merit and are rejected.
As part of the submission, Ms Yip also contended that I should deliver “the criminal charges to the Commissioner of Victoria Police under the state and federal criminal laws”[4], that there “will be no pleas given today and no plea taken until” this occurs[5] and that until “the Commission has responded to [her] request, [she] will not permit any crime in this hearing today and the Fair Work Commission cannot make any lawful determination than to make the document for [her] reinstatement”.[6] Ms Yip also contended that “an unlawful determination or adjournment of these matters will be deemed as a further concealment of the serious criminal offence exposed in the file documentation” and that the “only orders that can be issued today is the Herman v Andrews case, M12539558, to be transferred to the Full Court of Appeal, Supreme Court of Victoria, to the attention of the President of Supreme Court of Victoria, Chris Maxwell QC.”[7]
The contentions are self-evidently without merit and the application underpinning them was denied.[8]
Ms Yip further contended that the “Commission or tribunal is not in our legal system, and the Commission is not an authority under the constitution” and has no authority to conduct a hearing and to determine her application.[9] This nonsensical contention was also rejected, and the hearing continued.[10]
Midway through the cross-examination of one of VicRoads’ witnesses, Ms Yip applied for an adjournment, contending again that the Commission did not have authority to continue the hearing[11] and that:
“Right. So, Deputy President Gostencnik, this matter cannot be proceed any longer because – yes, it need to be adjourned because I'll need to make sure this matter's going to – well, this matter cannot be proceed any more because I will have to report it to the public prosecution of this about a criminal charge, and then we clearly have the crime against – you know, big crime against a lot of people here. So I will request this meeting to be adjourned.”[12]
The application for an adjournment was refused.[13] Ms Yip left the hearing after being warned that if she did so the matter would proceed in her absence.[14] The remainder of the hearing proceeded in her absence.
The 7 October 2021 CHO Directions applied to VicRoads and required it, in relation to a worker who was, or may be, scheduled to work outside the worker’s ordinary place of residence on or after 15 October 2021, inter alia:
· As soon as reasonably practicable after 7 October 2021:
oto collect, record and hold vaccination information about the worker;
oif a worker is partially vaccinated, to also collect, record and hold information about whether that worker has a booking to receive, by 26 November 2021 a dose of a COVID-19 vaccine that will cause the worker to become fully vaccinated; and
oif a worker is unvaccinated, to also collect, record and hold information about whether that worker has a booking to receive, by 22 October 2021, a dose of a COVID-19 vaccine that will cause the worker to become partially vaccinated.
· Not permit a worker who is unvaccinated to work for the employer outside the worker’s ordinary place of residence; and
· To treat as unvaccinated any worker for whom the employer does not hold vaccination information.
These directions set out that a person’s vaccination status means:
· fully vaccinated – indicating the person has received two doses of a COVID-19 vaccine;
· partially vaccinated – indicating the person has received one dose of a COVID-19 vaccine and is not an excepted person;
· unvaccinated indicating that the person has not received a dose of a COVID-19 vaccine and is not an excepted person; and
· an excepted person – indicating:
othe person holds certification from a medical practitioner that the person is unable to receive a dose, or a further dose, of a COVID-19 vaccine due to a medical contraindication; or
othe person holds certification from a medical practitioner that the person is unable to receive a dose, or a further dose, of a COVID-19 vaccine due to an acute medical illness (including where the person has been diagnosed with SARS-CoV-2).
The effect of the CHO Directions was explained to VicRoads’ staff, including Ms Yip, in a staff meeting held at the Burwood East Customer Service Centre on or about 6 October 2021[15] and later through all-staff communications from VicRoads.[16] Earlier, on 1 October 2021, VicRoads’ staff were advised by email of the Victorian Government’s announcement that it intended to introduce directions that applicable Victorian Public Sector staff have at least one vaccine dose by 15 October 2021, or provide evidence of an appointment before 22 October, and have both vaccine doses by 26 November 2021 (Mandatory Vaccination Directions). The key requirements of the Mandatory Vaccination Directions were explained to staff in the same correspondence.[17]
Ms Yip had a conversation with John Hackett, VicRoads’ Centre Manager of its Burwood East Customer Service Centre on or about 7 October 2021 during which she raised concerns about the CHO Directions, the fact that she did not want to disclose her vaccination status, the requirement to be vaccinated and the insufficiency of available information about COVID-19 vaccines.[18]
On or about 14 October 2021, Mr Hackett spoke individually to staff, including to Ms Yip, who were yet to provide information about their vaccination status. He advised these staff that they would not be able to attend at work the next day if they had not provided evidence of having received the COVID-19 vaccination, an appointment to receive the vaccination by the necessary date, or a medical exemption and that they would be suspended with pay.[19] Ms Yip was given a letter, signed by Dean Tillotson, VicRoads’ Executive Director Registration and Licensing, notifying her of the suspension on 14 October 2021.[20] The letter also advised Ms Yip that:
Should you continue to refuse to comply with the above vaccination requirements, DoT will be undertaking a review process to consider the possible termination of your employment due to your incapacity to perform the inherent requirements of your position.
Before a decision is made regarding the possible termination of your employment, DoT will write to you and provide an opportunity to respond to these matters, and to provide any information, including any mitigating circumstances and any proposals on reasonable adjustments, noting the very limited nature of any exceptions under the Directions.
Please note that during this process you are entitled to have a support person/representative, including a Union representative.[21]
Ms Yip was also encouraged to take several steps during the period of suspension (which was until 28 October 2021). The steps included Ms Yip seeking independent medical advice, accessing the Department’s Employee Assistance Program, considering all information provided and evaluating her decision.[22]
On 20 October 2021, William Little, VicRoads’ Senior Workplace Relations Advisor and Mr Hackett called Ms Yip to conduct a welfare check and to discuss her vaccination status. During the discussion Ms Yip said that she had not changed her mind and was not going to comply with the vaccination requirements. Mr Hackett told Ms Yip that VicRoads would have to undertake a review of her employment.[23] The following day, Mr Hackett sent Ms Yip an email which set out the substance of the discussion, and which provided as follows:
I trust you are well and thanks for your time yesterday on the phone when I rang to check-in. The email is to recap our conversation and provide links to the support discussed.
Firstly, we confirmed with you that your personal email address on our system was accurate and you had received the capacity for work and suspension with pay letter which was sent to you on 14 October 2021.
You advised that at this stage you are not prepared to disclose if you are intending to receive a first dose of a COVID-19 vaccine by 22 October 2021 and we discussed the requirements as outlined in the letter. We ensured at this time that you were aware of next steps (as per our letter as referenced above) will include DoT undertaking a review process to consider the possible termination of your employment due to your incapacity to perform the inherent requirements of your position.
We discussed that if you choose to be vaccinated on or before 22 October 2021 please use the CHM link (sent to your VicRoads email) to provide information on your vaccination status and notify your manager.
DoT encourages you to access the Employee Assistance Program (EAP) for counselling support if needed. All services are confidential and available 24 hours per day, 7 days per week and can be accessed both at work and outside of the workplace.
We agreed to follow up again in the next week to see if there’s any further support or information you might need to support your decision making.
As mentioned in our call, to provide you further information about COVID-19 vaccinations, DoT will provide you the opportunity to speak with a qualified staff member at Corporate Health Management (CHM), DoT’s medical services provider, to help you make an informed decision about getting vaccinated. I will be in touch when I have those contact details for you.
I have also attached a link below to a presentation from the Acting Chief Health Officer titled ‘COVID-19 Vaccines – Your Questions Answered’ which may assist you in your decision making at this time.
COVID-19 Vaccines - Your Questions Answered - Prof Ben Cowie on Vimeo
Please do not hesitate to contact me should you have any further questions.[24]
On 22 October 2021, Ms Yip sent an email to Mr Hackett in which she applied to take a career break for 3 months.[25] The application was refused on operational grounds.[26]
On 27 October 2021, Messrs Hackett and Little called Ms Yip. During the discussion Ms Yip confirmed that she did not intend disclosing her vaccination status.[27] Mr Hackett advised Ms Yip, as had previously been outlined in the 14 October 2021 letter, that VicRoads would undertake a review process to consider the possible termination of Ms Yip’s employment because of her incapacity to perform the inherent requirements of her position.[28] An email setting out the substance of the discussion was sent by Mr Hackett to Ms Yip the following day.[29]
On 28 October 2021, Ms Yip provided VicRoads with a Certificate of Capacity which stated that she did not have capacity to work until 11 November 2021. Consequently, on 5 November 2021, VicRoads extended Ms Yip’s suspension to that date.[30]
On 3 November 2021, Ms Yip sent a letter to Mr Tillotson by email through Mr Hackett in which she raised several questions including about clinical trials of COVID-19 vaccines, liability for death or disability, the contents of COVID-19 vaccines, privacy legislation and regulatory requirements associated with the US Securities Exchange Commission.[31] Mr Tillotson responded by letter dated 9 November 2021 in which he provided Ms Yip with links to relevant information about COVID-19 vaccines, and encouraged her to participate in a free medical consultation with CMH, which was VicRoads’ medical services provider.[32]
Messrs Hackett and Little held another conversation with Ms Yip on 12 November 2021 during which there was a discussion about Ms Yip’s vaccination status and VicRoads’ review of her employment.[33] Mr Hackett sent an email to Ms Yip summarising the discussion.[34] Ms Yip responded that day by email posing a series of questions, to which Mr Hackett responded on 18 November 2022. For ease of reference Ms Yip’s email questions are reproduced in bold font, and Mr Hackett’s responses appear in italicised font below.
Thanks for your call today.
In our discussion, you asked if I have questions, I responded yes and would like to put my questions in writing. I have put them out in writing as below.
I indictated (sic) to you that I am unwilling to disclose my medical status to you (as protected until the Privacy Act), as now I am suffering from undesirable consequences from work, therefore, I would like to be provided a copy of DoT/ VicRoads exemption from the Privacy Act 1988 (Cth), or other document that provides exclusions to the Privacy Act 1988 (Cth) that DoT/VicRoads is relying upon to require providing personal medical information as a condition of employment?
On 7 October 2021, the Acting Chief Health Officer issued COVID-19 Mandatory Vaccination (Workers) Directions pursuant to section 200(1)(d) of the Public Health and Wellbeing Act 2008 (Vic), which have subsequently been amended - the most recent version being COVID-19 Mandatory Vaccination (Workers) Directions (No 7): file:///C:/Users/rbb/Downloads/COVID-19- Mandatory-Vaccination-(Workers)-Directions-(No-7)%20(2).pdf (Direction).
The Direction requires VicRoads to collect, record and hold vaccination information for employees specified in the Direction and to ensure unvaccinated workers do not work outside their ordinary place of residence.
VicRoads must not permit any employee to work from a place outside their ordinary place of residence after the dates specified in the Direction if they are unvaccinated or their vaccination status is unknown.
As part of VicRoads’ commitment to protecting employee personal and sensitive information, VicRoads engaged our current medical services provider, Corporate Health Management (CHM) to build and manage a secure platform for employees to confirm their vaccination status or medical exemption. This provides the highest level of privacy and security for our employees. Data is stored securely by CHM as per the state and federal legislative requirements and remains compliant with the requirements of the Australian Privacy Principles (APPs) and is governed by the Health Records Act 2001 (Vic) and the Privacy and Data Protection Act 2014 (Vic) and will strictly not be used for any other purpose.
Further to the above;
• CHM will only use your personal details for the purposes of verifying your COVID-19 vaccination status for VicRoads to meet legislative requirements.
• CHM will not share any personal information with VicRoads outside of vaccination history for this purpose.
• CHM will supply VicRoads only with an outcome of vaccination status to support government legislation.
As the collection of health information, which includes vaccination status, is protected by section 16B Privacy Act 1988 (Cth) and is only permitted by consent and for the provision of a health service. Can you please provide to me in writing where in any contract I have signed that I have waived my right to consent of collecting this information.
Please see my previous response.
In my view, the Public Health Order 2021 does not in fact place any obligation on me to disclose any personal health information (which is subject to the protections under the Privacy Act 1988 (Cth)). As I choose not to consent to disclosing my personal health information to you, can you explain to me why such would be considered an incapacity to perform the inherent requirements of my position? and could subsequently result in an unfair outcome against me such as an (sic) termination of my employment?
It is an inherent requirement of your employment at VicRoads that you are able to work outside of your ordinary place of residence for the purposes of working at VicRoads, and as a result, that you are vaccinated against COVID-19 in accordance with the Direction and that VicRoads has collected, recorded and holds your vaccination information in accordance with the Direction.
According to the new DoT/VicRoads policy, I am required to be vaccinated as a condition of my employment. Can you please provide me with the Risk Assessment based on Work Health and Safety Act you have completed for me (as an individual) regarding the vaccination you are requiring me to have as a condition of my employment. I note that any such assessment must have been made without considering my individual medical circumstances and without a medical consultation.
VicRoads’ compliance with the Direction does not give rise to an obligation on VicRoads to undertake any risk assessment for COVID-19 in the workplace, nor to consult.
And lastly, can you please refer me to the section of my contract or Enterprise Agreement where you are unilaterally allowed to amend my employment conditions?
As noted above, it is an inherent requirement of your employment at VicRoads that you are able to work outside of your ordinary place of residence for the purposes of working at VicRoads, and as a result, that you are vaccinated against COVID-19 in accordance with the Direction and that VicRoads has collected, recorded and holds your vaccination information in accordance with the Direction.[35]
On 12 November 2021, Mr Tillotson sent correspondence to Ms Yip advising her that VicRoads was now considering the possible termination of her employment because of her inability to perform the inherent requirements of her position, inviting Ms Yip to provide a response by 19 November 2021 to VicRoads’ proposal to terminate her employment and to provide any information, including any mitigating circumstances and any proposals on reasonable adjustments.[36] The correspondence also advised Ms Yip that she was entitled to be assisted by a support person or representative.
Thereafter Ms Yip made several requests for an extension of the time to respond.
· On 18 November 2021 VicRoads granted Ms Yip an extension to 22 November 2021;
· On 22 November 2021, an extension to 24 November 2021 was granted;
· Following a further request on 24 November 2021, Ms Yip was advised that she could provide a response by close of business on 26 November 2021.[37]
Ms Yip advised Mr Tillotson on 26 November 2021, that she would be unable to provide a response by the due date and asked for a further extension to 20 December 2021.[38] On 29 November 2021, Ms Yip provided a medical certificate stating she was not fit for work until 3 December 2021[39] and later that day, Mr Tillotson responded to Ms Yip noting that her suspension with pay would continue until there was an outcome from VicRoads’ review process, that he had been advised that CHM had responded to her questions about the vaccine, and noted that she had until 30 November 2021 to respond.[40]
Ms Yip provided a response by email on 1 December 2021 as follows:
Here is my response to show cause notice.
I believe it’s in your/ DoT/ VicRoads best interest not to terminate my employment because you do not have valid grounds and risk breaking so many Laws as I explain below.
I asked John Hackett, my direct manager, a number of legal related questions on 12 Nov. He passed it on to HR and provided insufficient responses which are approved by Dean yourself. I asked to be provided with a risk assessment but it is insufficient (ie no mention of COVID, or the vaccine, or its impacts on me individual) I do not believe Vic Roads is exempted from providing a risk assessment under Workplace Health and Wellbeing Act. No lawful workplace could be exempted from it. You must provide one with supporting data on it, which to date, you failed to do so.
You failed to provide any meaningful explanation as to when and how my employment contract amendment was made, how you consider yourself meeting your obligation as an lawful employer, this has broken the Industrial Relations Act. You also didn't provide any Privacy Act waiver, which means you are in serious violation to my privacy right as an employee and as a human being.
I have written an open letter to you and DoT/ VicRoads on 3 Nov in seeking answers to 12 clinical questions in regards to the vaccine. You basically did not answer any, so I escalated to Sherryn Lethlean, head of clinical management of CHM as suggested by you in your reply.
Even Sherryn agrees there is risk of myocarditis and this is "no laughing matter". She pointed me to TGA website where it publicly published 682 deaths and 83301 adverse effects post vaccination reported in Australia as at 25 November 2021.
Therefore, I am exercising my International Covenant Rights under the United Nations Treaty – The International Covenant on Civil and Political Rights (ICCPR). I refer to Article 7: ‘No one shall bе subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his (or her) free consent to medical or scientific experimentation.
Furthermore, Both Dean and Sherryn failed to provide me with the details of ‘Public-Liability Insurer’. I require this information so that the Insurance corporation will cover the corporation’s liabilities and cover my living-expenses, medical and financial scheme protection should any serious adverse effects occur to me.
Under the circumstances outline above, it is unfortunate I come to a conclusion that Dean and the management team in VicRoads do not have my health and wellbeing in mind. You have used coersion (sic) and threat of termination to try and make me comply with the unjustified public health order.
The Australian Government and Prime Minister Scott Morrison and Health Minister Greg Hunt have clearly stated that the Government cannot mandate a vaccination (see attached). This covers and includes a State. The powers and the administration of Health are a Federal Government responsibility. Therefore, it takes precedence over the public health order of Victoria.
As a consequence, my health and wellbeing have seriously been damaged by your coersion (sic) and threats. This is shockingly against the Human Rights code. And to take things very seriously, it could lead to serious criminal charges under the Nuremberg Code 2.0
The Nuremberg Code states that without full, free and informed consent, this constitutes a ‘War-Crime’, and if proven before a Tribunal, may extend to ‘Crimes against Humanity’.
I also am extremely disappointed to Vic Roads lack of flexibility in helping me to overcome the difficulties. As a workaround, I applied for a career break (leave without pay) but my request was rejected.
You also failed to provide work from home as a (sic) alternative, knowing very well that I have the skill and capacity to handle the job from home, as demonstrated by back-office duties during lockdown. I think it is very fair and straight forward to offer me a "Work from home" position as opposed to threat of an unlawful dismissal.
I would like to meaningfully engage with you and improve the way I was treated to be taken seriously. Therefore I have applied to Fair Work Commission for a dispute resolution meeting, which is scheduled to be on 15 December 2021. I would like to waiting (sic) for the outcome of the ruling of FWC in order to have a fair and open way of resolving the issue.[41]
Mr Tillotson gave consideration to Ms Yip’s response and then on 8 December 2021 he recommended to the VicRoads executive team that Ms Yip’s employment be terminated because she did not have capacity to perform the inherent requirements of her position.[42] He set out his reasoning in a briefing note.[43] A letter of termination was prepared.
Mr Tillotson gave evidence that he conveyed the decision to terminate Ms Yip’s employment to her in a telephone conversation on 13 December 2021 during which he read out the proposed dismissal letter to her “more or less verbatim”, he asked whether Ms Yip had any questions, and he said she did not.[44] Ms Yip’s evidence was that she did not remember the telephone call on 13 December 2021 but recalled receiving the termination letter the same day.[45] Although nothing material turns on this dispute, I prefer Mr Tillotson’s evidence about the conversation. Ms Yip’s evidence was simply that she could not recall the conversation and she was stressed and not fit on the day.[46] Not recalling the conversation is not a denial that conversation occurred. Moreover, Ms Yip did not challenge Mr Tillotson about his evidence of the conversation when she had the opportunity to do so during cross-examination.
Following the conversation, Ms Yip was sent a letter signed by Mr Tillotson advising her that VicRoads had decided to terminate her employment on 13 December 2021, on the grounds that she was unable to perform the inherent requirements of her position.[47] Ms Yip was paid 3 weeks’ pay in lieu of the required notice period and her accrued but untaken leave entitlements.[48]
At all material times, Ms Yip was an unvaccinated person who was not an excepted person within the meaning of the operative CHO Directions.[49]
I turn to consider whether Ms Yip’s dismissal was unfair.
Whether Ms Yip’s dismissal was unfair
Protection from unfair dismissal
An order for reinstatement or compensation may only be made if I am satisfied the applicant was, at the date of the dismissal, protected from unfair dismissal under the Act and that the dismissal was unfair. Section 382 of the Act sets out the circumstances that must exist for Ms Yip to be protected from unfair dismissal and there is no dispute, and I am satisfied, that she was, on 13 December 2021, protected from unfair dismissal within the meaning of s 382.
Ms Yip’s dismissal will have been unfair if, on the evidence, I am satisfied that all of the circumstances set out in s 385 of the Act existed. There is also no dispute that she was dismissed at the initiative of VicRoads within the meaning of s 386(1)(a). VicRoads is not a small business employer, so the Small Business Fair Dismissal Code is not engaged, and Ms Yip’s dismissal was not a case of genuine redundancy within the meaning of s 389.
Harsh, unjust or unreasonable
A consideration of whether a dismissal was harsh, unjust or unreasonable, requires the following matters in s 387 of the Act be taken 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.”
A statutory requirement that a matter be taken into account means that the matter is a ‘relevant consideration’ and is a matter which the decision maker is bound to take into account.[50] To take into account the matters set out in s 387 means that each of the matters must be treated as a matter of significance in the decision-making process[51] and requires the decision maker to evaluate it and give it due weight, having regard to all other relevant factors.[52] In weighing relevant matters, the weight given to a particular matter is ultimately a matter for the Commission subject to some qualifications, which for example might lead a court to set aside a decision if the decision maker has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance.[53]
The phrase “harsh, unjust or unreasonable”, finds no definition in the Act, but a dismissal may be harsh but not unjust or unreasonable; it may be unjust but not harsh or unreasonable; or may be unreasonable but not harsh or unjust. There will be cases where these concepts will overlap. In any given case all the concepts may be present, or only some, or none. A dismissal may be unjust because the employee was not guilty of the misconduct on which the employer acted. It may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer. And may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.[54] But the assessment of whether any or all of these concepts is present in a given case of dismissal is undertaken in a statutory context and it is the matters set out in s 387 of the Act to which regard must be had in assessing whether a particular dismissal was harsh, unjust or unreasonable.
Valid reason – s 387(a)
The essence of a valid reason is that the reason is a sound, defensible or a well-founded reason – one that is not capricious, fanciful, spiteful or prejudiced.[55] The issue is whether there was such a valid reason related to the applicant’s capacity or conduct. Whether conduct which is said to found a valid reason occurred is to be determined based on the evidence in the proceedings assessed on the balance of probabilities taking into account the gravity or seriousness of the allegations.[56] The existence of a valid reason is not ascertained by asking whether the employer, after a sufficient investigation, had a reasonably held belief that the conduct occurred.[57] A reason would be valid because the conduct occurred, and it justified termination. There would not be a valid reason for termination because the conduct did not occur or it did occur but did not justify termination.[58] It is not necessary to show the misconduct as sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).[59] An assessment of the degree of seriousness of the misconduct which is found to constitute a valid reason for dismissal for the purposes of s 387(a) may also be a relevant matter under s 387(h). In that context the issue is whether dismissal was a proportionate response to the conduct in question.[60]
In addition to the matters earlier discussed, Ms Yip contends that there was no valid reason for her dismissal and that her dismissal was “unfair and unlawful”, in essence, because:
· her privacy and human rights have been undermined;
· her right to a safe workplace prevents VicRoads from requiring her to undergo a medical procedure, and VicRoads was coercing her to undergo a medical procedure and it did not conduct a risk assessment;
· her concerns about vaccination were not addressed by VicRoads;
· her conditions of employment were unilaterally changed without the opportunity for negotiation; and
· VicRoads did not consult her under the operative enterprise agreement.[61]
VicRoads contends that its decision to dismiss was due to Ms Yip’s inability or unwillingness to attend the workplace to perform her job. It says the reason given relates to Ms Yip’s capacity and that the concept of “capacity” for the purposes of s 387(a) is not one confined to physical or mental capacity – it extends to an employee’s inability to adopt a new procedure, or the inability brought about by the loss of a required qualification. VicRoads says that it was required to give effect to the CHO Directions and if VicRoads permitted Ms Yip to enter the workplace without providing proof of her vaccination status, it would have committed a criminal offence.[62]
VicRoads contends that it was lawful and reasonable for VicRoads to comply with the law and to give effect to its obligations under the CHO Directions, that Ms Yip’s refusal to provide evidence of her vaccination status and her status as an unvaccinated person meant that she could not, under the CHO Directions, attend the workplace, and she thus lost the ability and capacity to perform her job.[63]
VicRoads’ contentions are in my view correct. The operative CHO Directions required VicRoads to take all reasonable steps to ensure that Ms Yip, who was at all material times an unvaccinated person, did not enter, or remain on, its premises for the purpose of performing work. Ms Yip was not an excepted person. That Ms Yip was vaccinated or was an excepted person was thus an externally imposed requirement of the role affecting her capacity to fulfil the role because it required her to attend physically at the workplace to perform her duties. To do so Ms Yip had to meet any precondition required by law to enable that to occur. If VicRoads had permitted Ms Yip to attend its workplace, it would have breached the operative CHO Directions, which would have exposed it to financial penalties. VicRoads was required to prevent Ms Yip from attending its premises for work because she was not vaccinated (or presumed not to be vaccinated) and was not an excepted person. Ms Yip was entitled to refuse or decline to become vaccinated or to refuse to provide information about her vaccination status. Ms Yip’s choice not to provide any information to VicRoads about her vaccination status meant that VicRoads was required by the operative CHO Directions to treat her as an unvaccinated person. But these choices had consequences. It meant that Ms Yip was unable to perform the inherent requirements of her role. In these circumstances, I am satisfied that at the time of her dismissal Ms Yip was unable to perform the inherent requirements of her role because she did not have the requisite capacity to do so. This provides a valid reason for dismissal which related to Ms Yip’s capacity.
As to Ms Yip’s contentions summarised earlier, it is not open to Ms Yip in proceedings of this kind to collaterally attack the legality of the CHO Directions. The Commission is an administrative tribunal tasked with functions and powers under the Act, including dealing with this unfair dismissal remedy application. It does not have the power to judicially review the validity of Victorian legislation or of instruments such as the CHO Directions.[64] There is a difference between the Commission, in the course of considering an application, expressing an opinion about the meaning or effect of a legislative instrument (or an action purportedly taken pursuant to such an instrument) which may be necessary in order to deal with a matter in issue in the application, and the Commission opining on the invalidity of a legislative instrument and thus ignoring or discounting its legal effect in connection with an application. Nor is it the Commission’s role to review the political efficacy of the CHO Directions or whether such directions are contrary to international human rights instruments or otherwise contrary to “human rights”. In this regard Ms Yip was correct in her contention (albeit directed to a different point) that the Commission is not a court. In any event, Ms Yip does not advance any cogent argument about how the CHO Directions are not enforceable, invalid or are contrary to any applicable international human rights instruments or how her human rights were undermined.
VicRoads did not breach the Privacy Act 1988 (Cth) in seeking evidence of Ms Yip’s vaccination status as the collection of such information was authorised, and required, by force of law – the operative CHO Directions.[65] Furthermore VicRoads did not coerce Ms Yip. Ms Yip’s choice to be vaccinated or not was, as already explained, a matter for her. VicRoads had obligations under the operative CHO Directions with which it was bound to comply. VicRoads merely informed Ms Yip as to its obligations under the CHO Directions and the consequence for her employment if she was, or was presumed to be, an unvaccinated person, given those obligations. VicRoads did not contravene any occupational health and safety obligation it owed to Ms Yip. It was required by law to take the steps it did vis-à-vis its staff and their vaccination status.
Ms Yip’s contention that her concerns about vaccination were not addressed by VicRoads is not supported by the evidence. As earlier discussed, Ms Yip sent a letter to Mr Tillotson by email on 3 November 2021 in which she raised several questions including about clinical trials of COVID-19 vaccines, liability for death or disability, the contents of COVID-19 vaccines, privacy legislation and regulatory requirements associated with the US Securities Exchange Commission.[66] Mr Tillotson responded by letter dated 9 November 2021 in which he provided Ms Yip with links to relevant information about COVID-19 vaccines, and encouraged her to participate in a free medical consultation with CMH, which was VicRoads’ medical services provider.[67] Further, on 12 November 2021 Ms Yip sent an email to Mr Hackett posing a series of questions, to which Mr Hackett responded on 18 November 2022. The text of this exchange is earlier set out. Ms Yip might not have accepted or been satisfied with the responses, but responses to her concerns they were.
Ms Yip’s lack of consultation contention is misconceived. The consultation provision of the operative enterprise agreement is simply not engaged in the circumstances. It is concerned with the proposed introduction by the employer of major workplace change. Thus, even if it could be said that the requirement imposed on VicRoads by the operative CHO Directions which caused it to take steps concerning the vaccination status of its staff constituted major workplace change, it was not change proposed by VicRoads. VicRoads did not propose the requirements in the CHO Directions, they were imposed on it by the CHO Directions. The only proposal made by VicRoads was to comply with the CHO Directions, about which it had no choice.
Ms Yip’s conditions of employment were not unilaterally changed without the opportunity for negotiation. The CHO Directions imposed a legal requirement on VicRoads vis-à-vis Ms Yip’s capacity to undertake her role. Compliance with the CHO Directions was not a matter for negotiation.
As to the career break as an alternative to dismissal, the enterprise agreement does not confer a right to a career break, nor a right to work from home. In any event I accept, as earlier detailed, that VicRoads had cogent reasons for its refusal of the request.
Other clauses of the enterprise agreement to which Ms Yip points in her submissions – which deal with individual flexibility arrangements and the transfer of a pregnant employee to a safe job, are not relevant and were not engaged.
For the reasons stated above, there was a valid reason for Ms Yip’s dismissal relating to her capacity. That there was a valid reason weighs against a conclusion that her dismissal was unfair.
Notification of the reason for dismissal and opportunity to respond – s 387(b) – (c)
Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made,[68] in explicit terms,[69] and in plain and clear terms.[70] This is an element which may be described as procedural fairness in order that an employee may respond to the reason. Procedural fairness requires that an employee be notified of the reason for the dismissal before any decision is taken to terminate employment, to provide the employee with an opportunity to respond to the reason identified. Section 387(b) and (c) would have little practical effect if it were sufficient to notify an employee and give them an opportunity to respond after a decision had been taken to terminate employment.[71] An employee protected from unfair dismissal should also be given an opportunity to respond to any reason for dismissal relating to the employee’s conduct or capacity.
The process adopted by VicRoads as discussed in the background facts earlier set out, shows that Ms Yip was notified of VicRoads’ reasoning for the proposed dismissal, and that she was given an opportunity to respond which she took up. Ms Yip complains that VicRoads failed to accept her opinions on vaccination and the alternatives she advanced. VicRoads understandably did not accept the veracity of her vaccination protests and it had cogent reasons for rejecting the alternatives proposed. Moreover, as is evident from the factual background, VicRoads responded to Ms Yip’s vaccination questions appropriately.
In the circumstances, that Ms Yip was notified of the reason and given an opportunity to respond also weighs against a conclusion that the dismissal was unfair.
Any unreasonable refusal by the employer to allow the person to have a support person – s 387(d)
As the correspondences discussed in the background facts disclose, Ms Yip was alerted to her right to have a support person attend and to assist her. The opportunity to have face-to-face meetings, with a support person present, was not available because of the effect of the CHO Directions. There is no suggestion of any denial by VicRoads to allow Ms Yip to have a support person present to assist at any discussions relating to dismissal. VicRoads contends, and I agree, that this matter is consequently a neutral factor.
Warnings regarding unsatisfactory performance – s 387(e)
Ms Yip’s dismissal was not related to any unsatisfactory performance and so this consideration does not arise.
Impact of the size of the respondent on the procedure followed – s 387(f)
The consideration in s 387(f) of the Act is concerned with the likely impact of the size of an employer’s enterprise on the procedures followed by the employer. VicRoads is a large and well-resourced employer. Its size and available resources meant that it had available to it the capacity to obtain advice about the procedure that it adopted. But there is no evidence that its size negatively impacted the procedure it adopted to effect the applicant’s dismissal. This consideration weighs neutrally.
Absence of dedicated human resources management specialist/expertise on procedures followed – s 387(g)
This consideration is concerned with “the degree to which the absence of dedicated human resources management specialists or expertise” would be likely to have impacted on the procedure it adopted to effect the applicant’s dismissal. VicRoads has dedicated human resources management specialists or expertise available to it, and as the evidence discloses, it made use of those resources. The consideration does not arise.
Any other matters that the Commission considers relevant – s 387(h)
In addition to the matters already canvassed, Ms Yip contends that two other matters are relevant to the issue whether her dismissal was unfair. The first concerns the ability for her to work from home. Ms Yip’s role required her physical attendance at work as earlier noted. It was not reasonable nor practicable for Ms Yip to perform her job from home. Her duties were customer facing. Licence testing, vehicle inspections and over the counter service, which she was required to undertake, necessarily had to be performed at her place of work – the Burwood East Customer Service Centre.
The second concerns her request for a career break which was Ms Yip’s “workaround” proposal. As the background facts disclose, operationally, VicRoads required all of its Customer Service Officers, including Ms Yip to return to centres to assist in meeting the level of demand that had accrued during the 2021 lockdowns. It determined for equity and policy reasons, that it was not reasonable for VicRoads to make exceptions for Ms Yip when all other employees were required to comply with the CHO Directions. These reasons are cogent.
Nothing about these matters, nor those earlier discussed points to unfairness in the dismissal.
VicRoads raised several matters – that there were other reasons on which it could have elected to dismiss; that it made a payment in lieu of notice of dismissal; its conduct in seeking to refer Ms Yip to medical practitioners for advice about vaccinations; its obligations under the operative CHO Directions; and its equal treatment of staff in the same positions – as matters relevant to the assessment and as weighing against a conclusion the dismissal was unfair. In the circumstances of this case, I need not consider these matters as the matters thus far considered point squarely to only one conclusion.
Respondent’s costs application
At the conclusion of the hearing on 7 June 2022, VicRoads applied for an order for costs under s 400A of the Act. That provision confers a discretion on the Commission to order a party to an unfair dismissal remedy proceeding to pay costs incurred by the other party to the proceeding if the Commission is satisfied that the first mentioned party caused those costs to be incurred because of reasonable acts or omissions of the first mentioned party in connection with the conduct or continuation of the matter. The grounds on which the application is made is that recorded in the transcript as follows:
. . .This morning Ms Yip sought to run a case to the effect that you had no authority to decide applications under the Fair Work Act and had to be – I don’t think she actually – she eventually chose to pursue the application for some hours, but she has hung up the phone as it were and has abandoned the hearing mid-stream, Deputy President. There is no point to this application on her abandonment. We say her conduct in doing so and her conduct today wasn’t a reasonable act or omission that prolonged the hearing beyond the day today. It should not have needed a hearing, and we would seek the costs of today’s hearing on that basis, on the conclusion that she unreasonably prolonged this matter.[72]
By this stage, as noted earlier, Ms Yip had left the hearing. Consequently, I arranged for Ms Yip to be alerted to the fact that an application had been made and provided her with a copy of the transcript of the hearing. I allowed Ms Yip until 28 June 2022 to file any submissions in opposition to the application. No submissions have been received.
In short compass, I decline the application because I am not empowered to make an order. Section 400A(2) of the Act makes clear that the Commission may only make an order for costs if the other party to the matter has applied for such an order in accordance with s 402. That section provides that an “application for an order for costs under s 611 in relation to a matter arising under this Part, or for costs under s 400A or 401, must be made within 14 days after” the Commission determines the matter or the matter is discontinued. At the time the application was made neither event had occurred. There is thus no valid application to determine.
But if I am wrong in this view or if I accept the application as having been made in accordance with s 402 of the Act, I would not grant the application as a matter of discretion. It is fair to say that some of the conduct in which Ms Yip engaged during the hearing and some of the submissions she made were bordering on irrational and certainly were not properly founded. The conduct in leaving the hearing before its conclusion after her adjournment request had been refused, was against her interests. The conduct might arguably be regarded as an unreasonable act or acts. That said, I do not consider that the conduct caused the costs claimed to be incurred. Ms Yip made her submissions, then sought an adjournment and then left the hearing which continued in her absence. I dealt with her earlier submissions as to the lack of power and a subsequent application for an adjournment without calling on VicRoads to respond. Other than the short period of time required to hear and deal with these matters, no material costs could reasonably be said have been incurred, and, in any event, once Ms Yip had left the hearing, the remaining evidence was received without any cross-examination and final submissions were received without any further submissions from Ms Yip. The length of the proceeding was overall truncated rather than elongated.
I also do not accept the characterisation of Ms Yip’s conduct in leaving the proceeding after her application for an adjournment was refused, as abandoning her application. Ms Yip applied for an adjournment, but she did not indicate that she did not press her application. Moreover, she knew that her application would proceed to be heard and determined in her absence. VicRoads did not at that point contend that there was no utility in continuing because Ms Yip had abandoned the application. Indeed, VicRoads continued, properly in my view, to conclude its case.
Therefore, if there is a valid application for costs, I would dismiss it.
Conclusion
As will be seen from my discussion above, there was a valid reason for Ms Yip’s dismissal related to her capacity. There was no procedural unfairness involved in the way the dismissal was effected, and none of the matters raised by Ms Yip point to unfairness in the dismissal. The other mandatory considerations either weigh neutrally or do not arise. In these circumstances I am not persuaded that the dismissal was harsh, unjust or unreasonable. Ms Yip’s dismissal was therefore not unfair. Her application for unfair dismissal remedy will therefore be dismissed.
Order
I order:
The application by Ms Caroline Yip in U2022/22 for an unfair dismissal remedy be dismissed; and
VicRoads’ oral application for costs made on 7 June 2022 is dismissed
DEPUTY PRESIDENT
Appearances:
Ms C Yip appeared self-represented
Mr L Howard of Counsel on behalf of the respondent
Hearing details:
2022
Melbourne (by Video)
7 June
[1] Exhibit 2 at [5]-[6]
[2] Exhibit 2 at [41], Exhibit 4 at [8]; Exhibit 5 at Tab 3; Transcript PN287-PN295
[3] Roy-Chowdhury v Ivanhoe Girls’ Grammar School [2022] FWCFB 101 at [16]; Roman v Mercy Hospitals Victoria Ltd[2022] FWCFB 112 at [26]
[4] Transcript PN120
[5] Ibid
[6] Transcript PN121
[7] Transcript PN131
[8] Transcript PN170
[9] Transcript PN175-PN181
[10] Transcript PN182-PN185
[11] Transcript PN566
[12] Transcript PN564
[13] Transcript PN566-PN568
[14] Transcript PN568-PN581
[15] Exhibit 4 at [10]; Transcript PN297-PN299
[16] Exhibit 2 at [15 (b) and (c)]
[17] Ibid at [15(a)] and Exhibit 5 at Tab 5
[18] Exhibit 4 at [11]; Transcript PN300-PN201
[19] Ibid at [12]
[20] Exhibit 5 at Tab 8
[21] Ibid
[22] Ibid; See also Transcript PN308-PN309
[23] Exhibit 4 at [14]; Transcript PN310-PN313
[24] Exhibit 5 at Tab 9
[25] Exhibit 4 at [16]; Exhibit 5 at Tab 10; Transcript PN314
[26] Exhibit 4 at [18]-[21]; Exhibit 5 at Tab 11; Transcript PNPN315
[27] Exhibit 4 at [22]; Transcript PN316-PN317
[28] Exhibit 5 at Tab 12; Transcript PN 318-PN319
[29] Exhibit 5 at Tab 12
[30] Transcript PN320-PN323; Exhibit 2 at [21] Exhibit 5 at Tab 14
[31] Exhibit 2 at [20]; Exhibit 4 at [24] Exhibit 5 at Tab 13; Transcript PN324-PN326
[32] Exhibit 2 at [22]; Exhibit 5 at Tab 15; Transcript PN327-PN334
[33] Exhibit 4 at [23]; Transcript PN339-PN340
[34] Exhibit 5 at Tab 17
[35] Ibid
[36] Exhibit 4 at [24]; Exhibit 5 at Tab 16; Transcript PN341-PN344
[37] Exhibit 4 at [25]-[27]; Exhibit 5 at Tabs 19-23; Transcript PN345-PN360
[38] Exhibit 4 at [28]; Exhibit 5 at Tab 24
[39] Exhibit 4 at [29]; Exhibit 5 at Tab 25
[40] Exhibit 4 at [30]; Exhibit 5 at Tab 26; Transcript PN 364-PN366
[41] Exhibit 4 at [31]-[33]; Exhibit 5 at Tab 27; Transcript PN367-PN374
[42] Exhibit 4 at [34]
[43] Exhibit 5 at Tab 28
[44] Exhibit 5 at [36]
[45] Transcript PN375-PN386
[46] Transcript PN374, PN382
[47] Exhibit 5 at Tab 29
[48] Ibid
[49] Transcript PN368; Exhibit 5 at Tab 27
[50] Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24; see also Griffiths v The Queen (1989) 167 CLR 372 at 379; Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] and cited in Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]
[51] Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836 and National Retail Association v Fair Work Commission [2014] FCAFC 118
[52] Nestle Australia Ltd v Federal Commissioner of Taxation (1987) 16 FCR 167 at 184
[53] Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24 at [15]
[54] Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410 at 465
[55] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333, (1995) 62 IR 371 at 373
[56] Briginshaw v Briginshaw [1938] 60 CLR 336
[57] King v Freshmore (Vic) Pty Ltd Print S4213 at [23]-[24]
[58] Sydney Trains v Gary Hilder[2020] FWCFB 1373 at [26]
[59] Ibid
[60] Ibid
[61] Exhibit 1 – Outline of submissions
[62] Respondent’s Outline of submissions at [12]-[13]
[63] Ibid at [14]
[64] Roy-Chowdhury v Ivanhoe Girls’ Grammar School [2022] FWCFB 101 at [16]; Roman v Mercy Hospitals Victoria Ltd[2022] FWCFB 112 at [26]
[65] Privacy Act 1988 (Cth), s 16B. See also Shepheard v Little Company of May Health Care Limited[2022] FWC 92, [46]-[50]; CFMMEU v Mt Arthur Coal[2021] FWCFB 6059, [202]-[215]; In any event it is likely that the relevant Act governing the topic is the Health Records Act of 2001 (Vic) , and Health Privacy Principle 1 found in schedule 1 of that Act, which provides that “An organisation must not collect health information about an individual unless the information is necessary for one or more of its functions or activities and at least one of the following applies . . . (b) the collection is required, authorised or permitted, whether expressly or impliedly, by or under law”.
[66] Exhibit 2 at [20]; Exhibit 4 at [24] Exhibit 5 at Tab 13; Transcript PN324-PN326
[67] Exhibit 2 at [22]; Exhibit 5 at Tab 15; Transcript PN327-PN334
[68] Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]
[69] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [150]–[151]
[70] Previsic v Australian Quarantine Inspection Services Print Q3730
[71] See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151 which was dealing with the corresponding provisions in s 170CG(3)(b) and (c) of the Workplace Relations Act 199
[72] Transcript PN647
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