Daniel Clarke v Babcock Mission Critical Services Australasia Pty Ltd - [2022] FWC 1794

[2022] FWC 1794

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Daniel Clarke
v

Babcock Mission Critical Services Australasia Pty Ltd

(U2022/4130)

COMMISSIONER HAMPTON

ADELAIDE, 17 AUGUST 2022

Application for an unfair dismissal remedy – whether unfair – externally required vaccination mandate – instruction to comply – whether instruction lawful and reasonable direction – whether dismissal premature given all of the circumstances including the applicant’s absence from work – instruction lawful and reasonable– dismissal not unfair in the circumstances – fair go all around provided – application dismissed.

What this decision is about

Mr Daniel Clarke (the Applicant) has applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the FW Act) following his dismissal from Babcock Mission Critical Services Australasia Pty Ltd (Babcock or the Respondent).

Babcock is part of the aviation arm of Babcock Australasia and operates a fleet of ambulance-configured helicopters contracted to undertake medical retrieval services for the South Australian Ambulance Service and South Australian Government. This forms part of Babcock’s frontline Aviation Emergency Medical Service. Babcock also operate helicopters under contract with the SA Government providing policing and emergency rescue facilities and does so in other States of Australia with similar remits.

Mr Clarke commenced employment with Babcock in 2007 and at the time of the events canvassed in this Decision was an Aircrew Officer based at the Adelaide Airport base. The Applicant’s role included to assist the aircraft pilots and medical crews on the aircraft including patient handling and management during medical retrieval flights.

It is uncontested that at the time of dismissal in mid-March 2022, Mr Clarke was on personal leave due to non-work-related illness and had been on such leave since June 2021. His personal leave entitlements had been exhausted and he was then accessing income (salary) protection payments through a Babcock insurance policy that was provided under the relevant industrial instrument (income protection payments).

Mr Clarke’s employment was terminated on the basis of non-compliance with a direction (vaccination instruction) to comply with the South Australian Emergency Management (Healthcare Setting Workers Vaccination No 7) (Covid-19) Direction (Vaccination Direction). The termination was confirmed by letter dated 17 March 2022:

“Re: Non Compliance with our Direction - outcome
We refer to your response to our letter dated 8 March 2022. We provide the following responses to the questions and comments that you have provided:
1.“Compulsory, experimental medical procedures were not a part of my employment contract. See attached Position Description and Offer of Employment from 2008.”
a.we have reviewed your contract of employment, and note that it requires compliance with all lawful and reasonable instructions given by the employer.
b.The requirement to comply with the South Australian Emergency Management (Healthcare Setting Workers Vaccination No 7) (COVID-19) Direction (the Direction) and our customer requirements, is a lawful and reasonable instruction.

2.“Babcock has failed to conduct a risk assessment before passing…

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.

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Details

AGLC: Daniel Clarke v Babcock Mission Critical Services Australasia Pty Ltd [2022] FWC 1794
Case: [2022] FWC 1794
Decision Date: 17 AUGUST 2022

CaseChat Overview and Summary

Daniel Clarke, an aircrew officer employed by Babcock Mission Critical Services Australasia Pty Ltd (Babcock) applied to the Fair Work Commission (FWC) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (FW Act) following his dismissal. The dismissal was based on non-compliance with a direction to comply with the South Australian Emergency Management (Healthcare Setting Workers Vaccination No 7) (COVID-19) Direction (Vaccination Direction). Clarke was on personal leave due to non-work-related illness at the time of the dismissal and was accessing income (salary) protection payments through a Babcock insurance policy. Babcock contends that the dismissal was for a valid reason and the dismissal was not premature. The FWC found that the dismissal was not unfair. The Vaccination Direction applied to Babcock's operations and required compliance by employees, including Clarke, to perform their work at the workplace. Although Clarke was not at work at the time of his dismissal, Babcock considered that he was required to be ready to attend the workplace when he was cleared fit to resume. There was no lawful requirement for Clarke to comply with the Vaccination 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. However, in order for Clarke to comply with the Vaccination Direction at the scheduled return to work date, he would need to have had at least one dose of a vaccination and have a booking for a second (in the absence of a medical exemption). Given all of the circumstances including the anticipated timing of his capacity to return to work, applying the vaccination instruction to Clarke in advance of his anticipated return to work was a lawful, objectively logical and reasonable requirement. The dismissal was not premature.

Orders