Daniel Pearson v City of Kingston
[2022] FWC 999
•7 JUNE 2022
| [2022] FWC 999 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Daniel Pearson
v
City of Kingston
(U2021/11728)
| COMMISSIONER LEE | MELBOURNE, 7 JUNE 2022 |
Application for an unfair dismissal remedy – government directions – employer required to comply with directions – 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 Daniel Pearson under s.394 of the Fair Work Act 2009 (FW Act). Mr Pearson claims that he was unfairly dismissed from his employment with City of Kingston (Kingston). Mr Pearson worked as an Event Supervisor for Kingston from 20 June 2019 to 13 December 2021. Mr Pearson 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 Pearson’s substantive position was Event Supervisor. He was employed as a casual and worked variable hours.[1]
Mr Pearson failed to provide evidence to Kingston of either a COVID-19 vaccination 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, Kingston could not allow Mr Pearson to attend the workplace after 22 October 2021. Mr Pearson contends that Kingston failed to consult pursuant to the consultation provisions in the Kingston City Council Enterprise Agreement No. 9 (the Agreement). Mr Pearson also contends that the Directions are “inoperable” for various reasons, including their purported legal relationship with the FW Act and s.109 of the Australian Constitution. He submits that his dismissal is unfair and seeks reinstatement and restoration of lost pay.
Section 396 requires that I decide four matters before considering the merits of Mr Pearson’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 Pearson was a person protected from unfair dismissal. Thirdly, the dismissal was not a genuine redundancy. Fourthly, Kingston 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 various operators of specified facilities, including Local Government, 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.
The Submissions and Evidence
Mr Richard Frazer, the Manager of People Support, made submissions on behalf of Kingston. Mr Pearson gave evidence on his own behalf.
On 9 November 2021, Mr Frazer sent an email to Mr Pearson reminding him of the Directions and requesting that Mr Pearson provide evidence of his vaccination status and/or medical exemption by noon on 26 November 2021. The email noted that the request was a lawful and reasonable direction to ensure Kingston was “acting in line with the Government’s direction”.[2]
On 1 December 2021, Mr Frazer wrote to Mr Pearson noting that Mr Pearson had still not yet provided the required information in accordance with the Directions. The letter advised that Kingston was considering termination of his employment on the grounds that he had not complied with a lawful and reasonable work instruction and was therefore unable to fulfil the inherent requirements of the job. It also advised that Kingston would provide Mr Pearson until 5pm Friday 10 December 2021 to show cause as to why his employment should not be terminated.[3]
On 3 December 2021, Mr Pearson wrote to Kingston outlining his concerns regarding Kingston’s direction. His concerns included:
· That under s.203(2) of the Public Health and Wellbeing Act 2008, there is provision for exemption by reasonable excuse and this was not accommodated for consideration in the notice from Kingston.
· That the employer-employee relationship was governed by federal law pursuant to the Corporations Act 2001, and that State Health Directions were inoperable by virtue of s.109 of the Constitution as they are inconsistent with the FW Act.
· That the vaccines had not gone through the “safeguard trials required of vaccinations generally”, and that there were health risks to taking them due to the nature of their constituent substances.
· That he had a right to medical choice and medical privacy that allowed him to refuse an experimental drug and rely on his natural immune system to safeguard his wellbeing.[4]
On 7 December 2021, Mr Pearson wrote to Kingston for a second time, noting that no response to his earlier email had been received and requesting that Kingston provide information to justify the direction by reference to the Agreement, the Privacy Act 1988 and the Work Health and Safety Act 2011 (NSW).
Mr Frazer responded on the same day, advising that Kingston was only following the Directions of the State Government and that Kingston would receive a fine if they allowed a worker to attend the workplace without being double vaccinated. Mr Pearson responded further, reiterating his beliefs that Kingston was required to consult with its employees before enforcing any mandate on them, and that the Directions were not legally binding and overruled by federal law to the point of ineffectiveness.[5]
On 13 December 2021, a termination letter was sent to Mr Pearson. The letter referred again to the Directions and included the following:
“We are writing to you in relation to your employment. This follows our recent correspondence to you on 9 November regarding the State Government requirements that you need to be on a pathway to double vaccination status. We further wrote to you on 1 December requesting that you show cause as to why your employment should not be terminated given your vaccination status remained unclear. We asked that you provide this information to us by Friday 10 December. We thank you for your responses.
We have carefully considered your responses however regret to inform you your employment is being terminated effective 13 December 2021 on the grounds that you have refused a lawful and reasonable request and are therefore unable to fulfil the inherent requirements of your job.
We thank you for your valuable contribution to Kingston City Council and wish you well in your future endeavours. Any outstanding payments for any available leave entitlements will be paid to you in the next available pay run.”[6]
In his submissions and evidence, Mr Pearson claims that Kingston failed to consult over the vaccine mandate as required by the Agreement, and that they made attempts to coerce, threaten, and harass him to be vaccinated. He also complains that they did not reply to his email of 3 December 2021. Mr Pearson’s submissions and evidence also included, in summary:
· That the Agreement and his employment contract do not require him to be vaccinated.
· That the Directions are either inconsistent with or over-ridden by the operation of various other laws including the “Privacy Act 1988; Bio-Security Act 2015; Public Health and Well Being Act 2008; [and] s.28 of the Crimes Act 1914”.
· References to purported obligations under the Work Health and Safety Act 2011 (NSW) (I note that as Mr Pearson is employed in Victoria, this legislation is clearly irrelevant).
· References to objections pursuant to the Nuremberg Code and the International Covenant on Civil and Political Rights (ICCPR).
· That Kingston did not offer alternative work from home duties. In particular, Mr Pearson asserts that he has offered solutions such as working off-site doing data entry work or “cleaning and maintenance work after hours when employees and clients are not onsite.”[7]
Mr Pearson also quotes, perhaps unwittingly, from the Safe Work Australia website which includes the following:
“You must also comply with any public health orders made by state and territory governments that apply to you and your workplace”.[8]
Kingston submits that it was applying the vaccination mandate regarding employees who were required to attend the workplace as required under the Directions at the time. The decision to terminate Mr Pearson’s employment was made because Mr Pearson was given a reasonable and lawful work instruction to provide Kingston with evidence that he was complying with the Directions for Local Government employees to be fully vaccinated to attend the workplace. Furthermore, there was no requirement to consult under the Agreement that applied to Mr Pearson as Kingston did not make a decision to introduce a major change as contemplated in the Agreement. Kingston simply applied the Directions. In response to the proposals by Mr Pearson, Mr Frazer responded as follows:
“They were considered by the team leader and found to be inadequate for what Daniel was required to do. Throughout the period there was limited work anyway, given the restrictions across the whole state, so that cleaning after hours was not really relevant, and working from home data entry was being performed by others. It wasn't really a component of Daniel's work. So the team leader and managers' position was that there was no relevant work for Daniel to perform.”[9]
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.
I consider that Kingston had a valid reason to dismiss Mr Pearson. Mr Pearson was a worker covered by the Directions.[10] He was required to be vaccinated and provide evidence of such, or alternatively, provide evidence of an exemption in order to work outside of his home/attend the workplace. Mr Pearson did not provide evidence of either a vaccination or an exemption. Kingston submitted that the position Mr Pearson held required him to attend the workplace.[11] Mr Pearson did not refute that, instead he asserted that there was other work he could do such as data entry which did not require him to attend the workplace.[12] However, even if such other work was available, Kingston was entitled to direct Mr Pearson to undertake his substantive role. They are not obligated to find Mr Pearson other work as a consequence of his refusal to vaccinate. If Kingston allowed him to attend the workplace from 15 October 2021, it would have broken the law and been exposed to financial penalties. Mr Pearson was therefore unable to perform the inherent requirements of his role.
The Directions meant there was a regulatory requirement that Mr Pearson 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 Pearson does not dispute that he fell within the definitions of a worker covered by the Directions. As he was not vaccinated, he was unable to attend the workplace to perform his main role as Event Supervisor. Mr Pearson was not eligible for an exemption from vaccination. At the time of the hearing, Mr Pearson refused to answer my question as to whether he remained unvaccinated.[13]
I reject the submissions that the Directions were “inoperable” to which I understand to be a claim that they were also of no effect, by virtue of the Agreement that applied to Mr Pearson. Firstly, in respect of the Agreement, while it contains a provision requiring consultation in respect of significant change where the employer has made a definite decision to introduce a change, Kingston did not make a definite decision to introduce significant change. Kingston simply implemented a requirement mandated by the State Government. Therefore, there was no requirement to consult under the Agreement. In any event, in relation to Mr Pearson’s various contentions that the operation of the Work Health and Safety Act 2011 (NSW) as well as other legislation and international covenants made the Directions inoperable or otherwise invalid, I agree with the observations of Deputy President Colman in another matter 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.”[14]
I also reject the notion set out in Mr Pearson’s correspondence to Kingston where he refers to the vaccine as including known “toxins” and that they have not gone through the same safeguard trials as vaccines generally.[15] As noted by the Deputy President in Isabella Stevens v Epworth Foundation:
“…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.”[16]
In summary, Kingston was compelled to implement the Directions and they have done exactly that in respect of Mr Pearson. By virtue of the Directions, they could not allow Mr Pearson to attend the workplace because of his decision not to vaccinate against COVID-19. Mr Pearson 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 Pearson. 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)).
Kingston wrote to Mr Pearson on 9 November 2021, setting out in clear terms the requirement for Mr Pearson to comply with the Directions. The text of that letter is as follows:
“We are writing to you following several conversations with your supervisor and further response from Council (Julian Harvey) dated 8 October 2021, responding to your letter regarding the requirement to vaccinate. This followed the State Government’s requirement that you need to be on a pathway to double vaccination status which included a single dose vaccination by 22 October 2021. At this time, we understand you are not vaccinated, and your vaccination pathway remains unclear.
Kingston City Council continues to follow advice of a public health order including COVID-19 Mandatory Vaccination (Workers) Directions; a requirement of this order is that our employees are fully vaccinated and have provided evidence of this or evidence of exemption in line with these requirements.
As part of our commitment to work with you and to ensure we adhere to these requirements, we request that you provide evidence of your vaccination status.
Please provide your evidence and/or medical exemption by email at [email protected] by Noon, Friday 26 November 2021. We note that this request is a lawful and reasonable direction to ensure we are acting in line with the Government’s direction. As previously communicated to you, I would like to reiterate to you that Council has an Employee Assistance Program which offers confidential counselling and support, and you are welcome to seek their assistance to deal with this matter or other personal matters. You can reach them on 1300 687 327.”[17]
It is clear from the exchange of correspondence set out in the background earlier that Mr Pearson was clearly put on notice of the reason for dismissal and was given an opportunity to respond, which he exercised. The procedural fairness afforded to Mr Pearson weighs against a finding that the dismissal was unfair.
Kingston did not refuse Mr Pearson the assistance of a support person in any discussions relating to the dismissal. 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 Pearson’s employment was not terminated for unsatisfactory performance, but for issues relating to his capacity. This is a neutral consideration.
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 Pearson had worked for Kingston for approximately two and a half years. This is a reasonable period of time, however, it is not a period I consider to be of long service. Mr Pearson also submitted that Kingston did not offer him any alternative duties, such as data entry work or cleaning after hours. He submitted that earlier in 2021 he performed this work during periods of lockdown. Kingston submits that Mr Pearson’s suggestions were considered by his team leader and found to be inadequate or not relevant to Mr Pearson’s position. Given the restrictions across the State, cleaning after hours was not relevant, and data entry roles were being performed by other employees. Neither position was a component of Mr Pearson’s work.
There was no obligation for Kingston to offer alternative employment to Mr Pearson. His primary role was Event Supervisor. This role required him to attend the workplace and Kingston were entitled to expect him to return to performing that role. Having taken into account other relevant matters under s.387(h), I am not satisfied that any of them weigh in favour of a finding the dismissal was unfair.
Having taken into account the 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 Pearson’s dismissal, and this is a factor that weighs against Mr Pearson. In respect to the procedural fairness to effect the dismissal considered under s.387(b) and (c), this also weighs against Mr Pearson. All other factors were neutral. There are no factors that weigh in favour of a finding that the dismissal was unfair. Mr Pearson’s application lacks merit.
Having regard to s.387 of the FW Act, I consider that Mr Pearson’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:
D Pearson, Applicant.
R Frazer for the Respondent.
Hearing details:
2022.
Melbourne (via Microsoft Teams):
April 26.
[1] Witness Statement of Mr Pearson at page 38 of the Digital Court Book (DCB).
[2] DCB at page 61.
[3] DCB at page 62.
[4] DCB at pages 63-64; Attachment DP-3.
[5] DCB at pages 65-67; Attachment DP-4.
[6] DCB at page 68; Attachment DP-5.
[7] DCB at pages 43-58.
[8] DCB at page 56.
[9] Transcript at PN107.
[10] Transcript at PN47.
[11] Transcript at PN105.
[12] Transcript at PN121.
[13] Transcript at PN53.
[14] Isabella Stevens v Epworth Foundation[2022] FWC 593 at [26].
[15] DCB at page 64.
[16] [2022] FWC 593 at [19].
[17] Attachment DP-1.
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