Daniel Clarke v Babcock Mission Critical Services Australasia Pty Ltd
[2022] FWCFB 215
•24 NOVEMBER 2022
| [2022] FWCFB 215 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Daniel Clarke
v
Babcock Mission Critical Services Australasia Pty Ltd
(C2022/6157)
| VICE PRESIDENT CATANZARITI | SYDNEY, 24 NOVEMBER 2022 |
Appeal against decision [2022] FWC 1794 of Commissioner Hampton at Adelaide on 17 August 2022 in matter number U2022/4130 – permission to appeal refused.
Background
Mr Clarke (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) against a decision[1] (the Decision) of Commissioner Hampton (Commissioner) issued on 17 August 2022, for which permission to appeal is required. The Decision concerned an application, brought by the Appellant, for an unfair dismissal remedy against Babcock Mission Critical Services Australasia Pty Ltd (the Respondent) pursuant to s.394 of the Act. The Appellant’s dismissal concerned his failure to comply with the Respondent’s direction to receive a COVID-19 vaccination. The Commissioner ultimately dismissed the application finding that the Appellant was not unfairly dismissed in accordance with the Act.
Directions were set for the filing of material by the Appellant. As this matter was listed for permission to appeal only, the Respondent was not required to file any material. The Appellant filed written submissions and made further oral submissions at the hearing on 12 October 2022. On 30 September 2022, the Respondent filed submissions seeking permission to be legally represented at the hearing in accordance with s.596 of the Act. On 6 October 2022, the Full Bench refused permission for the Respondents to be legally represented at the hearing.
For the reasons that follow, permission to appeal is refused.
Decision Under Appeal
The Appellant commenced employment with the Respondent in 2007 and at the time of dismissal was an Aircrew Officer at the Adelaide Airport base. The Appellant’s role included assisting aircraft pilots and medical crews on the aircraft, including patient handling and management during medical retrieval flights. At the time of dismissal in March 2022, the Appellant was on personal leave due to a non-work-related illness and had been on such leave since June 2021. His personal leave entitlements had been exhausted and he was accessing income protection payments through an insurance policy of the Respondent.
The Appellant’s employment was terminated based on non-compliance with a direction to comply with the South Australian Emergency Management (Healthcare Setting Workers Vaccination No 7) (Covid-19) Direction (the Direction). A summary of the events leading to the Appellant’s dismissal are set out below:
· 11 October 2021 – the Respondent emailed all employees advising them of the Direction and requirement for employees to comply with the Direction.
· 26 October 2021 – the Appellant sent an email advising that when he had medical clearance to be reinstated at work he would be seeking to take long service leave to consider his options regarding vaccination. Resultingly, the Respondent took the Appellant off the roster for the remainder of the year, pending timing on medical clearance and vaccination discussions.
· 27 October 2021 – the Appellant advised the Respondent he needed to have an additional surgery and therefore there would be additional delays to his return to work.
· 10 December 2021 – the Appellant advised the Respondent that his final surgery would be on 22 December 2021 and that he had developed a further related condition which required surgery on 19 January 2022. He advised that he would make a further application for income protection to cover this absence.
· 20 December 2021 – the Respondent told the Appellant that in light of his lengthy absence and unknown return date, the Respondent was considering his suitability for ongoing employment and asked him to provide any information on his likely return.
· 31 December 2021 – the Appellant’s union informed the Respondent that he had an estimated six-week recovery period following his last surgery and would likely return to work in March 2022.
· 11 January 2022 – the Respondent sought a medical certificate to support the Appellant’s return to work.
· 12 January 2022 – the Respondent emailed all employees advising of an amendment to the Direction which required employees to receive a booster vaccine to be compliant.
· 14 January 2022 – the Appellant’s union advised that the Appellant’s surgery had been indefinitely postponed.
· 17 January 2022 – the Respondent wrote to the Appellant’s union proposing options to facilitate the Appellant’s surgery and the union replied that there were no available options to secure a new surgery date.
· 28 January 2022 – the Respondent inquired about the Appellant’s vaccination status so that he could be ready to return to work when cleared. The Appellant’s union advised that he was not vaccinated.
· 22 February 2022 – there was a meeting held with the Respondent, Appellant and Appellant’s union representative to discuss options for the Appellant’s return to work and surgery. The Appellant advised he did not intend to become vaccinated. They also discussed the Respondent’s social media policy and the fact that the Appellant had been posting ‘political’ material on social media.
· 4 March 2022 – the Appellant confirmed his intention not to be vaccinated to the Respondent.
· 9 March 2022 – the Respondent meet to discuss the Appellant’s employment. The Respondent’s managing director recommended that as the Appellant did not intend to comply with the Direction, he would not be able to work in his substantive role. The Respondent issued the Appellant a ‘show cause’ letter indicating they were considering his dismissal as he failed to comply with the Direction.
· 15 March 2022 – the Appellant provided a comprehensive response which included a strong rejection of the safety, effectiveness and lawfulness of the Direction, that there was no purpose in providing a certificate of capacity given his unvaccinated status.
· 17 March 2022 – the Respondent confirmed the Appellant’s termination. The Respondent treated the termination as not being a dismissal for serious misconduct to preserve his access to the income protection scheme and the associated payments. The Appellant was paid four weeks in lieu of notice and his long service leave and annual leave entitlements plus superannuation.
The Appellant contended that his dismissal was unfair on a number of grounds including that there was no lawful requirement for him to comply with the Direction as he was on a period of leave and not required to attend the workplace until he was fit for work on 24 May 2022. The Appellant contended that the Direction was unlawful, and it did not apply to the Respondent’s operations. The Appellant submitted that the dismissal was based upon ideological differences due to him participating in rallies that opposed vaccination. Further, the Appellant submitted that the dismissal was premature and unfair as he was not provided adequate notice, he could have accessed long service leave upon his return and if he was dismissed and then became infected with COVID-19 he could have returned to work as he would be exempt from vaccination for a period. Finally, the Appellant submitted that his dismissal was harsh in light of his medical status.
The Respondent contended that there was a valid reason for the Appellant’s dismissal, namely that: the Appellant failed to comply with a reasonable and lawful direction issued to him; non-compliance with the direction also constituted serious misconduct; and it was the Appellant’s own choice not to comply with the Direction. The Respondent also contended that the Appellant’s dismissal was not premature because the Appellant had indicated several times that he did not intend to be vaccinated; the Respondent had no way of knowing when the Appellant would be able to return to work and they needed certainty to fill his position; and that an absence from work does not mean that the dismissal was unfair or premature. The Respondent maintained that its dismissal procedure was fair in that the Appellant had notice of the dismissal, was given multiple opportunities to discuss his vaccination status and make submissions prior to being terminated.
The Commissioner began by discussing the Direction itself. The Commissioner confirmed that the Direction had not been declared invalid. Further, the Commissioner confirmed that the Direction applied to the Appellant such that he would not be lawfully permitted to work in the Respondent’s workplace without providing proof of vaccination or appropriate medical exemption. The Commissioner then affirmed that the Direction still applied after 24 May 2022, the date that the Appellant was fit to resume duties and it continues to apply to the Respondent’s operations. The Commissioner also found that the Direction provided the Respondent a lawful and reasonable basis to instruct employees to comply with the Direction.
The Commissioner then turned to s.387 of the Act, whether the dismissal was unfair. He began by considering whether there was a valid reason for the Appellant’s dismissal (s.387(a)), noting foremost that he had already found that the Direction was lawful and reasonable. He found that the question which remained was whether the Direction applied to the Appellant as he was not at work and not expected to be at work until some months after the dismissal. The Commissioner referred to Bacon v Glenelg Community Hospital Incorporated[2022] FWCFB 125. Taking into account the Appellants clear intention to not become vaccinated and the Respondent’s staffing issues, the Commissioner found that the Direction was lawful and reasonable in the Appellant’s circumstances and that non-compliance with that instruction is a valid reason for dismissal. The Commissioner rejected that the Appellant was not obligated to do anything while on personal leave and that the Respondent was entitled to make inquiries regarding his medical status, vaccination status and fitness for work.
Additionally, the Commissioner was satisfied that the Appellant was notified of the reasons for his dismissal (s.387(b)), that he was given an opportunity to respond (s.387(c)) and that he was not unreasonably refused a support person (s.387(d)). The Commissioner considered that s.387(e) did not arise and that ss.387(f) and (g) were not relevant. Taking into account other relevant matters (s.387(h)), the Commissioner considered the Appellant’s personal circumstances including his long-standing employment, specialist skills and cochlear implant.
Given the facts of the matter and the statutory considerations, the Commissioner was not satisfied that the Appellant’s dismissal was harsh, unjust or unreasonable. Accordingly, it was not unfair within the meaning of the FW Act. The Commissioner dismissed the application.
Appeal Grounds and Submissions
The Appellant’s grounds of appeal as set out in the F7 – Notice of Appeal are as follows:
1. The Commissioner erred in law and in its findings of fact.
2. The Commissioner misdirected himself as to the facts.
3. The Commissioner erred in his application of the facts and their application to the law.
4. The Commissioner erred in his understanding and misdirected himself of what applicable law he ought to follow and misapplied facts to the applicable Law.
In his submissions, the Appellant contends that the Commissioner erred in finding that the Direction applied to him as he was not engaging in work specified under the Direction. The Appellant says that this finding contradicts the Direction itself and is a finding the Commissioner is authorised to make. The Appellant also submitted that the Direction was not binding on the Respondent and the Commissioner erred in this regard. The Appellant also takes issue with the fact that the Directions could have expired or been withdrawn at any time and says this was not considered by the Commissioner. Further, the Appellant submits that the Commissioner should not have viewed his concerns regarding the safety of the vaccine as an indication that he would not become vaccinated prior to returning to work. The Appellant submits that while the Respondent says they discussed alternative arrangements which did not require him to become vaccinated, this in fact did not occur.
Additionally, the Appellant contends that the Commissioner erred in his findings of misconduct, specifically that the Commissioner found that the Respondent may have dismissed the Appellant for serious misconduct but chose not to as an act of goodwill. The Appellant also contends that the Commissioner erred by not fully considering his access to accrued leave.
In terms of why the appeal is in the public interest, the Appellant says that there should be stability and certainty for the public with respect to COVID-19 vaccine mandates in the workplace.
Principles on Appeal
An appeal against a decision to dismiss an unfair dismissal remedy application under s.604 of the Act is one to which s.400(1) of the FW Act applies.[2] Section 400(1) requires that permission to appeal must not be granted unless the Commission considers it is in the public interest to do so. This test is a stringent one.[3] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[4] Some of the considerations that may attract the public interest are where a matter raises issues of importance and general application, or there is a diversity of decisions at first instance so that appellate guidance is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[5] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[6] However, the fact that the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[7]
Consideration
Having considered the Appellant’s submissions, we are not satisfied that there is an arguable case of error in the Decision. We consider that the Appellant is attempting to reagitate the merits of his case as put to the Commissioner at first instance, specifically in relation to the validity of the Direction. We note that the Commissioner dealt with these submissions at paragraphs [62] – [81] of the Decision. Here, the Commissioner considered the relevant legislation, authorities and was satisfied that the Direction provided a proper basis for the Respondent to lawfully and reasonably instruct employees to become vaccinated at the relevant time. Further, the Commissioner gave additional consideration to whether the Direction applied to the Appellant at [91] – [103], finding that the Direction applied to the Appellant in advance of his anticipated return to work because to be ready to resume work he needed to become vaccinated. Therefore, taking into account that the Appellant had indicated that he had no intention to become vaccinated, the Commissioner was satisfied that the Respondent had a valid reason to dismiss the Appellant. We have also considered the Appellant’s submissions regarding accessing accrued personal leave and the potential to be dismissed for misconduct, and note that these submissions were put to and considered by the Commissioner at first instance. It is clear that the basis on which the Commissioner reached his Decision discloses an orthodox approach to the determination of the Appellant’s application. The Commissioner applied the correct legal principles, considered, and dealt with the evidence that was before him, and made findings of fact based on that evidence. We are satisfied that the Commissioner’s conclusions were reasonably open on the evidence before him.
Further, we have considered whether this appeal attracts the public interest, and we are not satisfied that:
· there is a diversity of decisions at first instance so that guidance from an appellate body is required;
· the appeal raises issues of importance and/or general application;
· the Decision at first instance manifests an injustice, or the result is counter intuitive; or
· the legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
For the reasons set out above, we are not satisfied that it would be in the public interest to grant permission to appeal pursuant to s.400(1) of the Act.
Accordingly, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr D Clarke, on his own behalf.
Ms J Swinton, for the Respondent.
Hearing details:
2022.
Microsoft Teams (Video).
12 October.
[1] [2022] FWC 1794 (‘the Decision’).
[2] Australian Postal Corporation v Gorman [2011] FCA 975, 196 FCR 126 at [37].
[3] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43] per Buchanan J (with whom Marshall and Cowdroy JJ agreed).
[4] O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46].
[5] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [27].
[6] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
[7] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
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