Cherie Partington v Monash Health
[2022] FWC 1083
•9 MAY 2022
| [2022] FWC 1083 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Cherie Partington
v
Monash Health
(U2021/10490)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 9 MAY 2022 |
Application for an unfair dismissal remedy – employment subject to Directions of Victorian Chief Health Officer – Respondent required to comply with the Directions to collect, record and hold vaccination information and to take reasonable steps to prevent unvaccinated workers from attend the workplace for the purposes of working – Applicant terminated on the basis that she was unable to meet requirements of her contracted position and for failure to comply with a lawful and reasonable direction of the Respondent – both valid reasons for the termination of her employment – Dismissal not unfair.
Ms Cherie Partington has made an unfair dismissal application to the Fair Work Commission pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to this application is Monash Health. The matter proceeded to a hearing conducted via Microsoft Teams on 17 March 2022. Monash Health sought permission to be legally represented. Having weighed the circumstances, the written submissions and considerations in s.596 of the Act, and noting there was no objection from Ms Partington, I granted permission for Monash Health to be represented by Mr Nick Harrington of Counsel. Ms Partington was assisted at the hearing by Mr Dimitrios Kakavas. During the course of the hearing, Ms Partington gave evidence as did Ms Karen Lowe, Monash Health’s Executive Director, People and Culture.
Initial matters to be considered – s.396 of the Act
Ms Partington’s application was made within the 21-day period after the dismissal took effect, as required by s.394(2) of the Act (s.396(a)) and there is no dispute that she is a person protected from unfair dismissal because she had completed the minimum employment period, the Victorian Public Health Sector (Health and Allied Services, Managers and Administrative Workers) Single Interest Enterprise Agreement 2016 - 2020[1] (the Agreement) applied to her and her annual rate of earnings was less than the high income threshold (s.396(b)). Further, it is not disputed, and I am satisfied that Monash Health was not a small business employer. As such, the matter does not require consideration of whether the dismissal was consistent with the Small Business Fair Dismissal Code (s.396(c)). Finally, it was not claimed and nor does the material before me suggest the dismissal was a case of genuine redundancy (s.396(d)).
Section 385 of the Act – was the dismissal unfair?
As to the circumstances set out at s.385 of the Act, there is no question or dispute that Ms Partington was dismissed (s.385(a)). Further, as outlined above, this is not a matter that involves a small business, such that consideration of whether Ms Partington’s dismissal was consistent with the Small Business Fair Dismissal Code (s.385(c)) is required or one where it is claimed the dismissal was a case of genuine redundancy (s.385(d)).
This leaves s.385(b) and in determining whether the dismissal was harsh, unjust or unreasonable, I must have regard to s.387 of the Act:
“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.”
Factual Background
Ms Partington began work with Monash Health in 1995 and was employed on a continuous basis thereafter in each of casual, part-time and full-time capacities. At the time of her dismissal, Ms Partington worked part-time and had been working in the position of a laboratory assistant for approximately 12 years in an area called specimen reception. This was an on-site role that required her to administer and prepare pathology specimens for laboratory testing.
On 16 March 2020, the Victorian Minister for Health issued a declaration pursuant to s.198(1) of the Public Health and Wellbeing Act 2008 (Vic) (PHWA) that Victoria had entered a state of emergency as a consequence of the COVID-19 pandemic. The declaration has been extended numerous times over the ensuing months, and it covered the relevant period during which Ms Partington’s dismissal took place. Where a state of emergency exists, the Chief Health Officer of Victoria may authorise the exercising of emergency powers, which include the issuing of directions pursuant to the PHWA.[2]
The Acting Chief Health Officer made the COVID-19 Mandatory Vaccination Directions (No 4)[3] which commenced at 11.59pm on 29 September 2021. These Directions imposed certain obligations on the operators of specified facilities, including healthcare facilities. These Directions were revoked at 11.59pm on 1 October 2021, at which time the COVID-19 Mandatory Vaccination Directions (No 5) commenced. These were in turn revoked at 1.59pm on 7 October 2021, at which time the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 6)[4] commenced. These Directions were subsequently updated by versions 7-12. When Ms Partington was dismissed with immediate effect on 9 November 2021, the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 12), which had been made by the Chief Health Officer and had commenced at 6.00pm on 5 November 2021, were in force. I shall hereafter refer to these various versions collectively as “the Directions” and where necessary, will specifically distinguish them by their version number.
The Directions imposed an obligation on Monash Health to collect, record and hold ‘vaccination information’ about specified workers, including healthcare workers. Further, these Directions provided that:
a) An unvaccinated worker was defined as a person who had not received a dose of COVID-19 vaccine and who was not an ‘excepted person’; and
b) Operators were obligated to take all reasonable steps to ensure that on and from 15 October 2021, ‘unvaccinated’ workers did not enter, or remain on, the premises of a specified facility for the purposes of working at the facility.
There was initially an exception to this latter requirement, in that an unvaccinated worker who had a booking to receive a first dose of COVID-19 vaccine by 29 October 2021 was still permitted to enter, and remain on, the premises of the specified facility for the purposes of working at the facility. However, when Version 11 of the Directions commenced operation at 6.00pm on 29 October 2021, this exception ceased to apply.
At all material times, a person would not be regarded as unvaccinated if they were an ‘excepted person’. In Versions 4 and 5 of the Directions, an ‘excepted person’ was one who had obtained certification from a medical practitioner that they were unable, due to a medical contraindication, to receive a dose, or a further dose, of a COVID-19 vaccine. From Version 6 of the Directions onwards, an ‘excepted person’ was defined to also include a person unable to receive a dose or further dose of a COVID-19 vaccine due to an acute medical illness (including where the person had been diagnosed with SARS-CoV-2). The Directions outlined the certification requirements a person had to satisfy in order for the requisite medical contraindication or acute medical illness categories to apply.
Monash Health undertook a number of initiatives to explain the requirements imposed by the Directions. These included an email to all employees dated 1 October 2021 about Version 4 of the Directions and postings on the Monash Health COVID-19 employee website and noticeboards throughout Monash Health. Further, on 5 October 2021, Monash Health hosted an online employee forum outlining the details of the Directions and the requirement that all Monash Health employees be vaccinated against COVID-19 if they were to continue working at Monash Health. Ms Lowe also wrote to employees dated 8 October 2021, reminding them of Version 4 of the Directions and the need to be vaccinated in order to work at Monash Health.
Ms Partington sent a letter in reply to Ms Lowe dated 9 October 2021 that was entitled “COVID-19 Vaccine Direction Your economic duress is negating my ability to decline a Covid-19 vaccine”. In this letter Ms Partington outlined concerns about COVID-19 vaccines and questioned the legality of the Directions.
An email dated 11 October 2021 was sent by Monash Health to employees who were either not vaccinated or who had not declared that they had a booking to be vaccinated by 29 October 2021. This email advised that Version 6 of the Directions had been made and that Monash Health was now providing all employees with “a lawful and reasonable direction (the Requirements) to ensure they were able to enter and remain on the premises of Monash Health when required to do so on or after 15 October 2021”. Monash Health outlined “the Requirements” (a term I will hereafter adopt for the purposes of this Decision) as being for all employees to be able to provide evidence they:
Had either received at least their first dose of a COVID-19 vaccine by 15 October 2021; or had an appointment to receive at least their first dose of a COVID-19 vaccine by 29 October 2021; and
Had either received two doses of a COVID-19 vaccine by 30 October 2021 or one COVID-19 vaccine plus a booking for a second vaccine by 15 December 2021.
It was further stated that by 16 December 2021, all employees at Monash Health were required to be able to provide evidence that they had received two doses of a COVID-19 vaccination, albeit information regarding the ‘excepted person’ exemption was also provided. It was then stated that a failure to meet the Requirements would mean that an employee would have failed to comply with a lawful and reasonable direction and further, may also mean that the employee did not have capacity to perform the inherent requirements of their position, both of which might lead to the termination of their employment.
Additionally, a specific letter in reply to Ms Partington dated 13 October 2021 was sent from Mr Peter Ryan, Chief Legal Officer at Monash Health. The letter purported to address:
How the law in Victoria had changed;
The consequences of that change for Monash Health; and
The consequences for Ms Partington’s ability to work at Monash Health if she decided to be ‘unvaccinated’.
Mr Ryan stated in his concluding paragraph of that letter:
“I trust that this response addresses the matters raised in your letter. I view the legal submission made in your letter regarding the operation of State, Federal and international laws as being wholly misconceived, wrong at law, and completely lacking in substance. In the circumstances I encourage you to seek consider urgently seeking independent advice, including legal advice on the matters raised in your correspondence, and in this reply.”[5]
By letter dated 14 October 2021, Monash Health then notified Ms Partington it would be conducting an investigation into an allegation of serious misconduct and that it had concerns about her capacity to perform the inherent requirements of her job. Monash Health also advised Ms Partington that she was suspended from duty effective 15 October 2021. The letter informed Ms Partington that she would be given an opportunity to respond at a meeting to be conducted by WebEx on 19 October 2021.
Ms Partington responded with a letter dated 15 October 2021. Her letter outlined a range of questions about COVID-19 vaccines and challenged the legal basis for the Directions. Ms Partington also set preconditions which required sign-off from Monash Health. These included:
“In the event that I should have to decline the offer of vaccination, please confirm that it will not compromise my position and that I will not suffer prejudice and discrimination as a result?”[6]
Ms Partington then referenced the Charter of Human Rights and Responsibilities Act 2006 (Vic), the Criminal Code Act 1995 (Cth), Disability Discrimination Act 1992 (Cth), the Australian Constitution, the Privacy Act 1988 (Cth) and statements said to have been made by the Prime Minister. Ms Partington responded to the offer of the proposed Webex meeting by stating she required all correspondence to be in writing.
Monash Health replied with a letter dated 20 October 2021, through which it notified Ms Partington that based on her admissions of having not received at least her first dose of the COVID-19 vaccination and not having booked for her first dose by 29 October 2021, the allegation of serious misconduct had been substantiated. Monash Health advised it had determined that the conduct constituted serious misconduct and a breach of Ms Partington’s contract of employment and her duty to follow lawful and reasonable directions. Monash Health foreshadowed disciplinary action and advised it might include termination of employment without notice. It also asserted that Ms Partington’s failure to meet the Requirements meant that she did not have the capacity to perform the inherent requirements of her position and foreshadowed this too could result in the termination of her employment. Ms Partington was invited to respond with any information that she considered relevant either in writing or at a Webex meeting scheduled for 22 October 2021.
This meeting ultimately took place on 28 October 2021 and following this, a letter of the same date was sent to Ms Partington by Monash Health advising her of a further and final opportunity to respond to the matters set out in the Monash Health letter of 20 October 2021 and inviting her to provide any information she considered relevant. Monash Health stated it had not received any evidence from Ms Partington that she had either received at least a first dose of a COVID-19 vaccine or had an appointment to receive one by 29 October 2021 or that she had a medical exception. It was stated that in the absence of evidence going to these matters, Monash Health would treat Ms Partington as unvaccinated.
Ms Partington responded with a letter dated 1 November 2021, in which she outlined 16 questions and a range of assertions, plus conditions she required to be addressed. The response to this from Monash Health was made by Mr Ryan in a letter dated 4 November 2021. Mr Ryan outlined that Monash Health was required to collect, record and hold information of all workers who may be scheduled to work at a Monash Health facility on or after 15 October 2021 to ensure that a worker who was unvaccinated did not enter or remain on their premises for the purpose of work. He proffered that Monash Health was required by the Occupational Health and Safety Act 2004 (Vic) to implement control measures to ensure the health and safety of employees, patients and any other persons who were on Monash Health premises. Mr Ryan sought to emphasise that the Directions were law and there were consequences and penalties if they were not complied with. He argued that Ms Partington’s questions and demands were misconceived because they were not relevant to either the Directions or the obligations of Monash Health to comply with them. Mr Ryan stated they would not be entertained.
Monash Health followed up by sending a letter dated 5 November 2021 to confirm a Webex Outcome meeting to take place on 9 November 2021, at which it would deliver the outcome of its consideration of disciplinary action in response to the alleged serious misconduct. The letter also invited Ms Partington to have a support person present and advised that if she was unable to attend the meeting, the outcome would be provided to her in writing via email. On 8 November 2021, Ms Partington wrote to Monash Health stating that she would be unable to attend the Outcome meeting because she had a dental appointment which had already been rescheduled once and was unable to be rescheduled again. Ms Partington also stated:
“If you are not prepared to reschedule this meeting, and the only purpose of the meeting is to be presented with an outcome and final decision pertaining to my employment without any capacity to discuss the matter any further, then my presence at that meeting is unnecessary and I prefer your final decision and reasons that determined that to be fully expressed in writing.”
Monash Health acknowledged receipt of this correspondence and by letter dated 9 November 2021 (the Termination letter), Monash Health notified Ms Partington that her employment was terminated effective 9 November 2021. It was stated in the Termination letter that while Ms Partington’s failure to comply with the Requirements had been found to constitute serious misconduct as defined in the Agreement, a payment equal to an amount payable in lieu of notice in accordance with the Agreement would nonetheless be made, together with payment in respect of applicable accrued leave entitlements. The Termination Letter also outlined that Ms Partington’s failure to provide vaccination information meant that she did not have the capacity to perform the inherent requirements of her position.
Consideration
I have outlined the criteria set out in s.387 of the Act above. I am under a duty to consider each of these criteria in reaching my conclusion and will do so below.
Was there a valid reason for dismissal relating to Ms Partington’s capacity or conduct? – s.387(a)
In considering whether the dismissal of Ms Partington was harsh, unjust or unreasonable, I am required to take into account whether there was a valid reason for the dismissal related to her capacity or conduct (including its effect on the safety and welfare of other employees). The reason or reasons should be “sound, defensible and well founded”[7] and should not be “capricious, fanciful, spiteful or prejudiced”.[8]
In the Termination letter, Monash Health outlined it was terminating Ms Partington’s employment for what it regarded as serious misconduct due to her failure to comply with the Requirements, which it considered was wilful, deliberate and inconsistent with the continuation of her contract of employment and/or amounted to a refusal to comply with a lawful and reasonable instruction which was consistent with her contract of employment. Monash Health further outlined that Ms Partington’s failure to provide vaccination information meant that she did not have the capacity to perform the inherent requirements of her position.
Despite the range of submissions Ms Partington has made questioning and disputing the legality of the Directions and challenging their application to both her and Monash Health, the Directions have at no stage been declared invalid by a Court and were in effect at all material times. I therefore proceed on the basis that the Directions are valid and lawful and I do not propose to engage with the various propositions Ms Partington has advanced. The Commission must discharge its functions according to law.
I am satisfied the Directions, and specifically the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 12) in force at the time of Ms Partington’s dismissal, applied to Monash Health and Ms Partington. That is, having regard to the definitions in the Directions, I am satisfied Monash Health was a ‘healthcare operator’ covered by the Directions which was operating a ‘healthcare facility’ and I am satisfied the Directions covered the employment of Ms Partington by Monash Health as a ‘healthcare worker’ because she was employed to perform ‘healthcare services’ and/or ‘administrative or ancillary roles’.
Version 12 of the Directions required Monash Health to take all reasonable steps to ensure that its ‘unvaccinated’ workers did not enter or remain on its premises for the purposes of work. Further, Version 12 imposed an obligation on Monash Health to collect, record and hold vaccination information about workers who were or might be scheduled to work at its premises. If Monash Health did not hold vaccination information about a worker, it was obliged to treat the worker as if the worker was ‘unvaccinated’. A refusal or failure by Monash Health to comply with a direction given to it or a requirement made of it under the Directions was an offence for which a penalty of 600 penalty units applied.[9]
Ms Partington sought to maintain that at no time did she formally refuse to comply with the Requirements but rather, she was waiting for answers to her questions so that she could make an informed decision. However, even though Ms Partington asserted this during her employment and made this submission before the Commission, she did not ultimately dispute that she had never complied with the Requirements of Monash Health.[10] That is, Ms Partington did not provide vaccination information that disclosed she was either ‘fully vaccinated’ or ‘partially vaccinated’. Further, I observe that as at the date of the Hearing, Ms Partington remained ‘unvaccinated’[11] and it has never been asserted she was an ‘excepted person’ under the Directions and therefore eligible to not be regarded as ‘unvaccinated’.
It should be stated that there was no mandatory requirement for Ms Partington to receive a COVID-19 vaccination and nor has there ever been. Ms Partington was within her rights to decline to become vaccinated. It was also open to her to decline to provide Monash Health with the information it requested from her. However, these choices of Ms Partington had the inevitable consequence of rendering her unable to perform her job. As Ms Partington chose not to become vaccinated and did not hold the certification required to be regarded as an ‘excepted person’ under the Directions, she was unable to perform the job she was employed by Monash Health to do. For its part, Monash Health did not hold ‘vaccination information’ about Ms Partington on 9 November 2021 and was therefore required under the Directions to treat her as if she was ‘unvaccinated’. The consequence of this state of affairs was that Monash Health was prohibited under the Directions from allowing Ms Partington to enter, or remain on, its premises for the purposes of working. Had it done so, it would have been guilty of an offence and exposed to a substantial financial penalty.
Ms Partington never worked from home and nor was it asserted that she could have performed from home her job as a laboratory assistant administering and preparing pathology specimens for laboratory testing. Ms Partington had to be able to attend a ‘specified facility’ to do her job. Having regard to these circumstances, I am satisfied that Monash Health had a valid reason for dismissing Ms Partington on 9 November 2021 that was related to her capacity.
Monash Health also asserted the Requirements were a lawful and reasonable direction given by it in response to obligations imposed by the Directions. In the recent decision in Roman v Mercy Hospitals Victoria Ltd[12] (Roman), Deputy President Colman discussed the concept of lawful and reasonable directions, as follows:
“Implied into the contract of employment is an obligation of an employee to obey the employer’s lawful and reasonable directions (Bayley v Osborne (1984) 4 FCR 141 at 145). The requirement that the direction be lawful has two dimensions. One is that the employer cannot demand that an employee act unlawfully. The other is that the direction must be within the scope of the contract of employment (see R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621-2 per, Dixon J). The latter reflects the ‘general rule ... that a contract by which a person is employed in a specific character is to be construed as obliging him to render, not indeed all service that may be thought reasonable to render, but such service only as properly appertains to that character’ (see Commissioner for Government Transport v Royall (1966) 116 CLR 314 at 322, per Kitto J).”[13]
In Roman, the Deputy President identified two dimensions required in order for a direction to be lawful. As to them, I am firstly satisfied, for the reasons given above, that the Requirements of Monash Health did not require Ms Partington to act unlawfully. Secondly, I am satisfied the Requirements amounted to a direction within the scope of Ms Partington’s contract of employment. The Directions imposed an obligation on Monash Health to take reasonable steps to ensure Ms Partington did not enter or remain on, its premises for the purposes of working unless she had provided vaccination information that establishing she was not ‘unvaccinated’. In communicating the Requirements, Monash Health made a direction related to Ms Partington’s job because her compliance or non-compliance with the Requirements bore upon her capacity to perform it. I agree with the view the Deputy President expressed in Roman that a direction to an employee to do something that is a necessary condition for a state of capacity to do their job is a lawful direction.[14]
Turning then to the question of whether the Requirements were reasonable, I am satisfied they were. The Directions imposed new regulatory requirements for Ms Partington’s role and “the Requirements” imposed by Monash Health in light of them were directed towards Ms Partington being able to continue to do the job she was hired to do. As I have stated above, Ms Partington was within her rights to decline to become vaccinated and she could elect to not provide Monash Health with the information it requested from her but having regard to the test enunciated by the Full Bench in CFMMEU and Anor v Mt Arthur Coal Pty Ltd[15] as to whether a direction is reasonable, I am satisfied there was a “logical and understandable basis”[16] for the Requirements imposed by Monash Health. I reject the suggestion by her advocate that Monash Health would have had a reasonable excuse for failing to comply with a direction or requirement imposed by the Directions on the basis that it and/or one of its employees wanted to challenge the validity of the Directions.[17] I also note Ms Partington did not fall within any of the exceptions in the Directions.
I am therefore satisfied that Monash Health also had a valid reason for dismissing Ms Partington on 9 November 2021 which involved misconduct constituted by her refusal to follow a lawful and reasonable direction.
Notification of the valid reason – Opportunity to respond to any reason related to capacity or conduct – s.387 (b) and (c)
Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made,[18] in explicit terms,[19] and in plain and clear terms.[20] In Crozier v Palazzo Corporation Pty Ltd[21] a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following:
“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
Ms Partington was notified in writing of the reasons for her dismissal in the letters from Monash Health dated 14, 20 and 28 October 2021. Each invited her to respond, and Ms Partington took the opportunity to do so. Additionally, Ms Partington was given an opportunity to respond at a meeting held on 28 October 2021. The valid reasons were confirmed in the Termination letter.
Unreasonable refusal by the employer to allow a support person – s.387(d)
This consideration is irrelevant in this case. There was no unreasonable refusal by Monash Health to allow Ms Partington a support person at discussions relating to her dismissal and nor has any such refusal been alleged. On each occasion Monash Health invited Ms Partington to a meeting, it was communicated that she was entitled to have a support person with her.
Warnings regarding unsatisfactory performance – s.387(e)
This consideration is not a factor in this application.
Impact of the size of the employer on procedures followed - s.387(f) and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
Monash Health is a large employer with a human resources team. I do not consider the size of Monash Health to have been a relevant factor in this case. Sections.387(f)) and (g) of the Act are not relevant factors in this case.
Other relevant matters – s.387(h)
Section 387(h) of the Act requires the Commission to take into account any other matters it considers relevant.
Ms Partington had worked for Monash Health for an extended period of time and had a good employment record. While Monash Health made the decision to terminate her employment on the basis of serious misconduct, it nonetheless paid Ms Partington a 5-week payment in lieu of notice.
I have noted the requests for information made by Ms Partington and her complaint that she was not provided with safety data statistics. However, I also observe that Monash Health made available its Infection Prevention Specialists, established an Employee Coronavirus hotline and arranged for a presentation on the evidence of COVID-19 vaccination efficacy to be given by its Medical Director, Infection Prevention & Epidemiology at an employee forum, which was subsequently able to be viewed online.[22] I have also noted employee forums were recorded and all employees could access that information.[23] Further, I observe that following the Monash Health email to all employees dated 1 October 2021 about Version 4 of the Directions, there was a 10-week period before the dismissal during which Ms Partington had time to consider her options.
Bearing in mind the vaccines applicable at the material time had been approved for use by Australia’s national regulator, the Therapeutic Goods Administration, I have taken into account Ms Partington’s concern about being vaccinated, which appeared to be her primary concern.[24] Ms Partington disclosed a range of personal circumstances that informed her hesitancy about receiving vaccinations. These are understandable and I am satisfied her concerns were seriously and sincerely held. However, Monash Health had to comply with the law and the requirements under the Directions remain in force. While Ms Partington was willing to continue working in full PPE, the Directions did not provide for such an exception. Monash Health was simply unable to allow Ms Partington to attend the workplace. Ms Partington was unable to work as a consequence of the decision she made.
Conclusion
I have made findings in relation to each matter specified in s.387 of the Act as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[25] Ultimately, I consider that Ms Partington’s dismissal was not harsh, unjust or unreasonable. The dismissal was not unfair and accordingly, Ms Partington’s unfair dismissal application is dismissed.
DEPUTY PRESIDENT
Appearances:
Ms C Partington on her own behalf, with assistance from D Kakavas.
Mr N Harrington of Counsel for Monash Health.
Hearing details:
2022.
Melbourne (via Microsoft Teams).
March 17.
[1] [2016] FWCA 8834 (AE422598 PR588360).
[2] Public Health and Wellbeing Act 2008 (Vic), s.200(1)(d).
[3] Digital Court Book (DCB) at p.96.
[4] DCB at p.138.
[5] DCB at p.133.
[6] DCB at p.29.
[7] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[8] Ibid.
[9] DCB at p.153.
[10] Transcript PN 246.
[11] Transcript PN 74.
[12] [2022] FWC 711.
[13] Ibid at [30].
[14] Ibid at [31].
[15] [2021] FWCFB 6059.
[16] Ibid at [96].
[17] Transcript PN 937-949.
[18] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[19] Previsic v Australian Quarantine Inspection Services (AIRC, Holmes C, 6 October 1998), Dec 907/98 M Print Q3730.
[20] Ibid.
[21] (2000) 98 IR 137, 151.
[22] Exhibit R1 at paragraph 11, DCB at p.84 and DCB at pp 110-111.
[23] Transcript PN618-619.
[24] Transcript PN 439-449.
[25] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
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