Corey Smith v Cleanaway Operations Pty Ltd - [2022] FWC 876

[2022] FWC 876

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Corey Smith
v

Cleanaway Operations Pty Ltd

(U2021/12139)

COMMISSIONER LEE

MELBOURNE, 4 MAY 2022

Application for an unfair dismissal remedy – government directions – employer required to comply with directions and not allow applicant to attend the workplace – applicant unable to perform primary role as no evidence of vaccination or valid exemption – valid reason for dismissal – dismissal was procedurally fair – application dismissed.

Introduction

This decision concerns an application for an unfair dismissal remedy made by Mr Corey Smith under s.394 of the Fair Work Act 2009 (FW Act). Mr Smith worked as a Driver – Rear Lift for Cleanaway Operations Pty Ltd (Cleanaway) from 2015 to December 2021. Mr Smith was dismissed on the grounds that he was unable to perform the inherent requirements of the primary role that he was employed to perform.

Mr Smith failed to provide evidence to Cleanaway that he had been vaccinated against COVID-19, or a medical exemption in line with the directions issued by the Victorian Chief Health Officer (the Directions). Therefore, in order to comply with the Directions, Cleanaway could not allow Mr Smith to attend the workplace after 15 October 2021. Mr Smith contends that Cleanaway failed to consult pursuant to the consultation provisions in the Cleanaway (Tullamarine Depot) Drivers Enterprise Agreement 2017 (the Agreement) and the Work Health and Safety Act 2011 (WHS Act) and that the obligations under both the Agreement and the WHS Act cannot be “voided” by State legislation. Mr Smith also contends that he was treated less favourably than other employees in similar circumstances. He contends that his dismissal was unfair and seeks compensation. The amount of compensation sought includes renumeration lost, claims for backpay, as well as payments for training and various claims of breaches of the Agreement, the WHS Act, his contract of employment and other matters.

Section 396 requires that I decide four matters before considering the merits of Mr Smith’s application. I am satisfied of the following. First, the application was made within the 21-day period required by s.394(2). Secondly, Mr Smith was a person protected from unfair dismissal. Thirdly, the dismissal was not a genuine redundancy. Fourthly, Cleanaway is not a small business employer, and the Small Business Fair Dismissal Code is therefore inapplicable.

Background

On 1 October 2021, the Acting Chief Health Officer of Victoria issued the COVID-19 Mandatory Vaccination Directions (No 5) (No 5 Direction) under s.200(1)(d) of the Public Health and Wellbeing Act 2008 (Vic). These imposed obligations on employers not to allow particular workers to attend for work on or after 15 October 2021 unless they had provided evidence to the employer of having been vaccinated against COVID-19, or of a booking to receive a vaccination by 29 October 2021. An exception applied for workers who provided a certificate that they were unable to receive a vaccination due to a medical contraindication. The No 5 Direction commenced on 1 October 2021…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Corey Smith v Cleanaway Operations Pty Ltd

Details

AGLC: Corey Smith v Cleanaway Operations Pty Ltd [2022] FWC 876
Case: [2022] FWC 876
Decision Date: 4 MAY 2022

CaseChat Overview and Summary

The Fair Work Commission considered an application for unfair dismissal remedy by Corey Smith against Cleanaway Operations Pty Ltd. Mr Smith, who was employed as a Driver – Rear Lift, was dismissed due to his refusal to comply with the Victorian Chief Health Officer's COVID-19 Mandatory Vaccination Directions. These Directions required Mr Smith to provide evidence of vaccination or a medical exemption to attend his workplace after 15 October 2021. Mr Smith's dismissal was based on his inability to perform his primary role as a result of not complying with the Directions.

The central legal issues were whether Cleanaway had a valid reason for dismissing Mr Smith, whether the dismissal was procedurally fair, and if Cleanaway was required to consult with Mr Smith or his union before dismissing him. Mr Smith argued that Cleanaway failed to consult as required by the Cleanaway (Tullamarine Depot) Drivers Enterprise Agreement 2017 and the Work Health and Safety Act 2011. He also contended that Cleanaway treated him less favourably than other employees and that his dismissal was unfair.

The Commission found that Cleanaway had a valid reason to dismiss Mr Smith, as he was unable to perform the inherent requirements of his role due to his refusal to comply with the Directions. The Commission rejected Mr Smith's argument that the Directions were voided by the Work Health and Safety Act or the Enterprise Agreement. The Commission also found that the dismissal was procedurally fair, as Mr Smith was given multiple opportunities to comply with the Directions and respond to his proposed termination. Mr Smith's claims of differential treatment and failure to consult were not substantiated. Therefore, the application for unfair dismissal remedy was dismissed.

The Commission concluded that the dismissal was not harsh, unjust or unreasonable, and thus, not unfair. The Commission considered the valid reason for dismissal, procedural fairness, and other relevant factors as outlined in the Fair Work Act 2009. The application for unfair dismissal remedy was dismissed, and an order to that effect will be separately issued.

Orders