Corey Smith v Cleanaway Operations Pty Ltd
[2022] FWC 876
•4 MAY 2022
| [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 and ended on 21 October 2021. It was succeeded by other directions in similar terms. I will refer to them collectively as the Directions.
Cleanaway issued three memorandums to its employees, including Mr Smith, setting out the requirements of the Directions, and that non-compliance by the specified dates would lead to disciplinary action or dismissal. The three memorandums were issued on 4 October, 12 October and 14 October 2021.[1]
Mr Aaron Barty, the Operations Manager and Mr Shane Burbidge, Senior Human Resources Business Partner, gave evidence for Cleanaway. Mr Smith gave evidence on his own behalf.
Mr Barty gave evidence that on 12 October 2021 Mr Smith said words to the effect of:
“The government can go and get stuff (sic). I am not going to get vaccinated. If Cleanaway is going to sack me then so be it.”[2]
Mr Barty states that there were originally three employees who were unvaccinated. However, two of those three employees then elected to be vaccinated, and Mr Smith remained the only employee to be unvaccinated.[3]
On 15 October 2021, Ms Natalie Nugent, HR Officer, sent an email to Mr Smith reminding him of the Directions and that he could not perform his role beyond 15 October 2021 unless he provided the relevant evidence regarding vaccination.[4]
On 20 October 2021 Mr Smith wrote to Cleanaway indicating that he discussed his concerns about the vaccine with his general practitioner, had made an appointment for a physical health check, and would make “decisions from there” with his doctor. Mr Barty responded, thanking Mr Smith for the update, and seeking a response after the health check and consultation with his doctor was completed.[5]
On 27 October 2021, Mr Smith sent a medical certificate saying that he was unfit for work for one day.[6]
On 5 November 2021, Mr Barty wrote to Mr Smith noting that Mr Smith had still not provided the required information in accordance with the Victorian Public Health Orders. Furthermore, that in Cleanaway’s view, he had more than a reasonable amount of time to discuss his concerns and personal circumstances with his doctor and comply with the Victorian Public Health Orders. Cleanaway also provided Mr Smith with a final opportunity to comply with a deadline of 8 November 2021. It was clearly indicated that a failure to comply with the Victorian Public Health Orders would lead to the termination of his employment.[7]
Also on 5 November 2021, Mr Barty sent an SMS to Mr Smith to confirm that he had received the letter. Mr Smith confirmed same and said that he had an appointment with his doctor on the following Wednesday, 10 November 2021. Despite this being after the deadline set out in the 5 November letter, Cleanaway waited for Mr Smith to come back with an outcome from his further appointment. On 11 November 2021, Mr Smith advised Mr Barty that he did not qualify for an exemption, and that he did not intend to get the COVID-19 vaccination.[8]
On 12 November 2021, in response to the 5 November 2021 letter from Mr Barty, Mr Smith sent Mr Burbidge what Mr Burbidge described as a generic anti-vaccination letter.[9] That letter stated, amongst other things, that Mr Smith was unable to give his “free and informed consent to this medical or scientific experiment”. Furthermore, that he invokes his rights and variously refers to obligations and/or alleged breaches of the “International Covenant Rights under the United Nations Treaty - The International Covenant Of Civil And Political Rights, The Charter Of Human Rights And Responsibilities Act (VIC) 2006, The Nuremberg Code, the Mental Health Act 2014, The Disability Discrimination Act 1992, The Commonwealth of Australia Constitution Act 1900, the Privacy Act 1988 [and] the Bankruptcy Act, 1966 (Cth).” In the letter, Mr Smith also sought that Cleanaway take on responsibility for compensation of a range of matters should Mr Smith suffer a “vaccine related injury”. The correspondence then sets out various unsourced claims that the vaccine is not safe or effective, does not provide any immunity and claims that COVID-19 vaccines are causing a high number of deaths.[10]
On 15 November 2021, Mr Barty again wrote to Mr Smith in a letter which included the following:
“You are employed for the principal purpose of performing the function of Driver – Rear Lift. It is a condition of your employment that you maintain the capacity to perform the inherent requirements of the position that you were employed to perform. This means, you must maintain all relevant licenses, authorisations (including evidence of vaccination information in line with the Victorian Public Health Orders), and qualifications during the course of your employment.
Due to your ongoing refusal to provide us with the required information, in compliance with the Victorian Public Health Order, you have elected to remain unauthorised, unwilling and unable to present to work and perform your inherent duties for which you were employed to perform.
As you were advised that you do not qualify for a medical exemption, Cleanaway is providing you with a final opportunity to comply with the Victorian Public Health Order. Should you not provide evidence you have received a first dose of COVID-19 vaccine and have commenced the process to comply with the Victorian Public Health Order by 5pm on 19 November 2021. Cleanaway will have no other option but to proceed with the termination of your employment.”[11]
In a further letter to Mr Smith dated 2 December 2021, Mr Barty referred to the previous letters and advised that Cleanaway had no choice other than to propose termination of his employment, but that before the decision was finalised Mr Smith would be offered an opportunity to respond to the proposed termination.[12] In an email dated 6 December 2021, Mr Smith responded to the letter indicating that he sought an opportunity to respond in a meeting accompanied by representatives of his union, the Transport Workers’ Union of Australia (TWU) (the show cause meeting).[13]
The show cause meeting was held on 9 December 2021, and was attended by Mr Smith, Mr Anthony Goddard, TWU Organiser as his support person, Mr Barty and Mr Burbidge. At this meeting, Mr Smith said that “he would not put experimental drugs in his system.” Mr Barty and Mr Burbidge state that it was obvious to them that Mr Smith was not going to be vaccinated.[14]
On 13 December 2021, a further meeting was held with Mr Smith where he was informed that his employment would be terminated. A termination letter was sent to Mr Smith on the same day.[15] The termination letter referred again to the Directions and included the following:
“As an employee of Cleanaway, you have a contractual obligation to provide your services to Cleanaway and to perform the duties you were employed to perform.
We note that your continued refusal to obtain the required COVID-19 vaccination in line with the Public Health Order or provide us with a valid medical exemption means that you have elected to remain unauthorised, unwilling and unable to present to work and perform your inherent duties for which you were employed to perform.
You are employed for the principal purpose of performing the function of Driver - Rear Lift. It is a condition of your employment that you maintain the capacity to perform the inherent requirements of the position that you were employed to perform. This means, you must maintain all relevant licenses, authorisations (including evidence of vaccination information in line with the Victorian Public Health Orders), and qualifications during the course of your employment.
We are of the view that you have had more than a reasonable amount of time to comply with the Victorian Public Health Orders and to present to work to perform the duties you were employed to perform.
We have given consideration to your responses and due to your ongoing refusal to comply with the Victorian Public Health Order Clenaway (sic) has no choice other than to proceed with terminating your employment.
Please be advised that your employment is terminated effective today 13 December 2021. You will be paid five weeks pay in lieu of notice and any accrued entitlements into your bank account that we have on file.”
Mr Smith was paid the notice period that accorded with his years of service and age, and all of his statutory entitlements.[16] At the time he was terminated, Mr Smith was not attending the workplace as he was unable to do so as a result of the Directions. Mr Burbidge said that Mr Smith was on leave without pay at the time of his dismissal.[17]
In his evidence, Mr Smith claims that Cleanaway failed to consult over the vaccine mandate and that they made attempts to coerce, threaten and harass him to be vaccinated. He complains that they did not reply to his email in which he sought they accept liability for any adverse effects of the vaccine.[18]
Mr Smith claims that he was treated differently to other employees. Initially his evidence was that one employee was given leave until his preferred vaccine was available. However, during the hearing he admitted that he had no direct knowledge of this person and their circumstances and that he had simply heard about them through a third party. Ultimately Mr Smith withdrew this evidence. However, he maintained that two other employees were given three months leave when their drivers’ license was suspended and were unable to work, and that he was treated differently to these employees.
Mr Smith submits that:
· The vaccine mandate was outside of the scope of the Agreement.
· Cleanaway should have consulted, and the dispute resolution process implemented as requested.
· The Agreement and his employment contract do not require him to be vaccinated or to take “experimental, untested vaccinations”.[19]
· Cleanaway failed to take any of the information, laws, regulations, Agreement and contracts which as conveyed to them and based the decision wholly on the Victorian Public Health Orders.
· Cleanaway failed to consult under the WHS Act.
· As the FW Act and the WHS Act are Federal Government Acts, they cannot be “voided” by the State legislation.
· Cleanaway did not give any reference to a timeframe for vaccinations to be completed.
· He was not given a fair opportunity to respond.
· As the vaccines are not “fully approved” and “experimental” and have adverse effects, Cleanaway were in breach of the WHS Act for failing to report adverse effects to Comcare.
· Cleanaway did not offer alternative work from home duties.
Cleanaway submits that the “Applicant’s choice to remain unvaccinated and non-compliant with the Directions meant that he was not able to fulfil the inherent requirements of the role he was employed to perform, providing the Respondent with a valid reason to dismiss his employment.”[20] Cleanaway submits that it communicated clearly, on numerous occasions, of the need to comply with the Directions and the consequences of non-compliance. Furthermore, there was no requirement to consult under the Agreement that applied to Mr Smith as Cleanaway did not make a decision to introduce a major change as contemplated in the Agreement. Cleanaway simply applied the Directions. Mr Smith was notified of the reason for dismissal and given an opportunity to respond and there was no unreasonable refusal of a support person. Mr Goddard, TWU Organiser, attended the show cause meeting as Mr Smith’s support person.
Consideration
For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable (s.385(b)). In considering whether it is so satisfied, the Commission must take into account the various matters specified in s.387.
The Commission is required to consider whether there was a valid reason for the dismissal related to the person’s capacity or conduct (s.387(a)). It is a well-established principle that the reason for dismissing the Applicant must be sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced cannot be a valid reason.[21]
I consider that Cleanaway had a valid reason to dismiss Mr Smith. Mr Smith was a worker covered by the Directions and was required to be vaccinated and provide evidence of such, or alternatively, provide evidence of an exemption by 26 November 2021 in order to work outside of his home/attend the workplace. He did neither. The position he held required him to attend the workplace. If Cleanaway allowed him to attend the workplace from 15 October 2021, it would have been in breach of the law and exposed itself to penalties. Mr Smith was therefore unable to perform the inherent requirements of his role.
The Directions meant there was a regulatory requirement that Mr Smith was required to meet in order to continue to perform his role. He elected not to meet the requirement. He could have done so, but it is apparent he decided he would not. Mr Smith does not dispute that he fell within the definitions of a worker covered by the Directions.[22] Mr Smith agreed as he was not vaccinated that he was unable to attend the workplace to perform his main role as Driver – Rear Lift.[23] Mr Smith was not eligible for an exemption from COVID-19 vaccination. At the time of the hearing, Mr Smith remained unvaccinated.[24]
I reject the submission that the Directions were “voided”, which I understand to mean that they were of no effect, by virtue of the operation of the WHS Act and the Agreement that applied to Mr Smith. Firstly, in respect to the Agreement, it contains a provision requiring consultation in respect to significant change where the employer has made a definite decision to introduce a change.[25] In this matter, Cleanaway did not make a definite decision to introduce change. Cleanaway simply implemented a requirement mandated by the State Government. Therefore, there was no requirement to consult under the Agreement, nor was there a requirement to consult with Mr Smith under the WHS Act. In any event, in relation to Mr Smith’s various contentions that the operation of the WHS Act as well as other legislation and International Covenants made the Directions invalid,[26] I agree with the observations of Deputy President Colman in Isabella Stevens v Epworth Foundation where similar submissions as to the claimed invalidity of the Directions were made:
“Ms Stevens variously contended that the Directions were invalid. However, at the time of the dismissal, and indeed to date, the Directions have not been declared by a court to be invalid. The Commission is an administrative tribunal and will carry out its functions according to law, proceeding on the basis that legislation and delegated legislation is valid until a court says otherwise. I would add, parenthetically, that in any event I do not consider the arguments advanced by Ms Stevens to cast doubt on the validity of the Directions. The contention that the Directions are inconsistent with federal law and therefore invalid pursuant to s 109 of the Constitution does not appear to me to have any merit. In particular, there is no reason to think that the Directions are inconsistent with the Privacy Act 1988; evidence of vaccination status can be gathered, used and stored in accordance with the privacy principles. Nor would there appear to be any cogent basis to contend that the Directions are inconsistent with Commonwealth anti-discrimination legislation, because the status of being unvaccinated is not a protected attribute. Further, the contention of Ms Stevens that the Directions are invalid on the ground that they are contrary to international human rights conventions is misconceived, because international conventions have domestic effect in Australia only to the extent that they have been incorporated into legislation. There is no general ‘right to work’ in Australia, regardless of what the ICESCR may say about the matter.”[27]
The same can be said of Mr Smith’s argument that the WHS Act in some manner displaces the requirement of the employer to comply with the Directions. I am unaware of any decision of a Court to that effect and Mr Smith did not direct me to any such decision.
I also reject the notion set out in Mr Smith’s correspondence to Cleanaway where he refers to directions to participate in an “unproven experimental vaccination study/program”.[28] The following observations made by Deputy President Colman in Isabella Stevens v Epworth Foundation are also relevant to this matter:
“…the relevant COVID-19 vaccines have been approved for use in Australia by the national regulator, the Therapeutic Goods Administration (TGA), which is an expert body. The TGA’s approval of relevant vaccines is a matter of public record and is evidence of their safety and efficacy.”[29]
In summary, Cleanaway was compelled to implement the Directions and they have done exactly that in respect to Mr Smith. By virtue of the Directions, they could not allow Mr Smith to attend the workplace because of his decision not to vaccinate against COVID-19. Mr Smith did not provide a valid exemption from the requirement to do so. There was a sound and defensible, and thus valid reason to dismiss Mr Smith. He was unable to perform the inherent requirements of his role. This factor weighs against a finding the dismissal was unfair.
In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether an employee has been notified of the reasons for dismissal and whether the person was afforded an opportunity to respond to any reason related to their capacity or conduct (ss.387(b) and (c)).
Mr Smith was given an opportunity to respond to his proposed termination in a letter dated 2 December 2021 as well as the show cause meeting on 9 December 2021. As is evident from the exchange of correspondence set out in the background earlier, Mr Smith was clearly put on notice of the reason for dismissal and given an opportunity to respond, which he exercised.[30] The extensive procedural fairness afforded Mr Smith weighs against a finding the dismissal was unfair.
Cleanaway did not refuse, unreasonably or otherwise, to allow Mr Smith to have a support person present to assist in discussions relating to the dismissal (s.387(d)). Indeed, Mr Goddard, TWU Organiser, attended the show cause meeting on 9 December 2021 as his support person. This is a neutral consideration.
If a dismissal relates to unsatisfactory performance, s.387(e) requires the Commission to consider whether the person has been warned about that unsatisfactory performance prior to dismissal. However, Mr Smith’s employment was not terminated for unsatisfactory performance, but for issues relating to his capacity.
The Commission is required to consider the degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal (ss.387(f), (g)). There was no procedural deficiency in the manner of effecting the dismissal such that these provisions are relevant. Sections 387(f) and (g) are neutral considerations.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account any other matters that it considers relevant (s.387(h)). Mr Smith had worked for Cleanaway for approximately 6 years. This is a reasonable period of time, however it is not a period I consider to be of long service. Other matters Mr Smith claims are relevant and not already dealt with include that Cleanaway did not offer alternative work from home duties. However, there was no obligation for Cleanaway to do so. Mr Smith concedes that is primary role was as a Driver – Rear Lift, and that this role required him to attend the workplace.
Mr Smith claims he was not allowed enough time by Cleanaway to comply with the Directions. That claim is without foundation. Cleanaway extended the time for Mr Smith to become vaccinated by a significant amount. Secondly, it is apparent that no amount of time would have been enough for Mr Smith as he clearly is opposed to being vaccinated at least at this point in time for COVID-19 and remains unvaccinated. He says that he is not an “anti vaxxer” but that he is “vaccine hesitant”.[31]
Finally, Mr Smith gave evidence that drivers who had lost their licence to drive were allowed to take leave until their licences were reinstated and that he was treated unfairly when that is taken into account. However, that of no relevance to this matter as Mr Smith was clear that he was not going to get vaccinated. There would have been no utility in allowing him to take leave to some future time.
Having taken into account the other matters above, I am not satisfied that any of these factors weigh in favour of a finding that the dismissal was unfair.
I have had regard to all of the factors under s.387 of the FW Act. There is a valid reason for Mr Smith’s dismissal, and this is a factor that weighs against Mr Smith. In respect to the procedural fairness to effect the dismissal considered under s.387(b) and (c), this also weighs against Mr Smith. All other factors are neutral. There are no factors that weigh in favour of a finding that the dismissal was unfair.
Having regard to s.387 of the FW Act, I consider that Mr Smith’s dismissal was not harsh, unjust or unreasonable, and that it was therefore not unfair. The application is dismissed. An order to that effect will be separately issued.
COMMISSIONER
Appearances:
C Smith, Applicant.
S Edwards, Respondent.
Hearing details:
2022.
Melbourne (via Microsoft Teams):
April 4.
[1] Digital Court Book (DCB) at SB-3, SB-4 and SB-5.
[2] DCB at page 90, [10].
[3] DCB at page 90, [13].
[4] DCB at SB-9.
[5] DCB at AB-1.
[6] DCB at SB-13.
[7] DCB at AB-2.
[8] DCB at page 91, [19]
[9] DCB at page 121, [37].
[10] DCB at SB-18.
[11] DCB at AB-5.
[12] DCB at AB-6.
[13] DCB at AB-7.
[14] DCB at page 93, [27]; page 123, [48].
[15] DCB at AB-10.
[16] DCB, at page 124, [53]; SB-29.
[17] Transcript at PN259.
[18] DCB at page 32; See also SB-18.
[19] DCB at page 25.
[20] DCB at page 84, [26].
[21] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333.
[22] Transcript at PN203.
[23] Transcript at PN107 - PN109.
[24] Transcript at PN174.
[25] Cleanaway (Tullamarine Depot) Drivers Enterprise Agreement 2017 at clause 10.
[26] DCB at SB-18.
[27] Isabella Stevens v Epworth Foundation[2022] FWC 593 at [26].
[28] DCB at SB-18.
[29] Isabella Stevens v Epworth Foundation[2022] FWC 593 at [19].
[30] DCB at AB-6.
[31] DCB at page 26.
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