Daniela Marinakis (Stojcevska) v Wabtec Control Systems Pty Ltd
[2022] FWC 1624
•19 AUGUST 2022
| [2022] FWC 1624 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Daniela Marinakis (Stojcevska)
v
Wabtec Control Systems Pty Ltd
(U2022/3306)
| DEPUTY PRESIDENT BELL | MELBOURNE, 19 AUGUST 2022 |
Application for an unfair dismissal remedy.
Introduction and Background
This decision concerns an application for an unfair dismissal remedy made by Ms Daniela Marinakis (Stojcevska) (the Applicant) under s.394 of the Fair Work Act 2009 (Cth) (FW Act). The Applicant was, until 7 March 2022, employed by Wabtec Control Systems Pty Ltd (Respondent). On that date, the Respondent gave written notice terminating the Applicant’s employment.
The Applicant’s employment was not terminated because of poor conduct or performance. The evidence discloses she was a valued employee, who had worked with the Respondent since 2011 on a full-time basis. Rather, the Respondent stated that the Applicant was unable to perform the inherent requirements of her role, as she was unable to attend the workplace as a consequence of Victorian public health orders that applied to the Respondent, which prohibited it from permitting the Applicant to work outside her place of residence without proof of vaccination against COVID-19. The Applicant contends she was unfairly dismissed in contravention of the FW Act.
The Applicant represented herself at the hearing. The Respondent was represented by Counsel, with permission to be represented having previously been granted. There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing. After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing for the matter (s.399 of the FW Act).
At the commencement of the hearing, the Applicant made a request for an adjournment of the hearing. The application related to the late withdrawal by the Respondent of one of the witnesses it was intending to call, due to unforeseen circumstances. That witness was Ms Wendy McMillan, who was the Senior Regional Vice President, South East Asia, Australia and New Zealand for ‘Wabtec Australia’. Appropriately, the Respondent did not otherwise seek to rely upon that statement. I note that Ms McMillan’s statement was relatively confined in scope – she in part gave evidence of her discussions with another witness (who was otherwise being called) and that it was her decision to dismiss the Applicant. While Ms McMillan signed the letter of dismissal, that letter was not in dispute and it was part of the Applicant’s evidence. The Applicant indicated she wished to cross-examine Ms McMillan about COVID-19 vaccines not being safe or effective. As I consider that the Applicant did not identify any particular prejudice that would arise from her late withdrawal, I refused the application for the adjournment.
Section 390 of the FW Act provides that the Commission may order a remedy if satisfied that the Applicant was “protected from unfair dismissal” at the time of being “dismissed”, and that the Applicant has been unfairly dismissed.
It was not in dispute that the Applicant was “protected from unfair dismissal”, in that she had completed the minimum employment period and her income was below the high income threshold. In determining whether the Applicant was “unfairly dismissed”, it was also not in dispute that the Applicant had been “dismissed”, nor that the Respondent was not a business to whom the Small Business Fair Dismissal Code applied, nor that the dismissal was one of genuine redundancy. It was also not in dispute, and I am therefore satisfied, that the application was made within the 21-day period required in subsection 394(2).
The critical issue in dispute was whether the dismissal was harsh, unjust or unreasonable.
The Applicant gave evidence on her own behalf. The following witnesses gave evidence on behalf of the Respondent, both of whom were employees of the Respondent: Ms Jennifer Marlow (Director of Human Resources); and Mr Mark Hopkins (Director of Operations).
Factual background and findings
The business of the Respondent is the provision of design, building and maintenance services for rail signalling and associated projects, asset monitoring and managements systems, communications and train control management systems. Its key Victorian clients include Metro Trains Melbourne, VLine and ARTC. Its projects in Victoria relate to rail crossing removals, rail design work, train line updates, rail signalling and track protection.
In Victoria, the Respondent has sites in Keysborough and South Melbourne. The Keysborough site is the largest of the two, with approximately 130 employees out of about 300 nationally. The Keysborough site combines an office and a workshop. Employees at the workshop prepare wiring for cabinets, prepare wiring for level crossings and assemble components. Due to the workshop, other members of the Wabtec group businesses also operate from that site.
The South Melbourne site is smaller, with about 20 employees. It is an open plan environment, with the design and project management teams located there. Some employees – including the Applicant prior to the pandemic – perform duties across both sites.
The Applicant was first employed in March 2011, on a full-time basis. Her most recent contract of employment is signed 7 March 2016. Her title under that contract was ‘Project Administrator’, based in Melbourne. On the same date, the Applicant signed a copy of a position description titled “Project Administrator Position Description”. The “Scope / Job Objective” in her position description was:
“This position is responsible for conducting and maintaining project administration and office facilities services, whilst supporting other company support functions such as Finance, Occupational Health & Safety and Human Resources.”
The duties and responsibilities listed in her position description included:
· Promote and ensure the highest standards of health, safety and environmental management systems are implemented and adhered to
· Provide administrate [sic] support for project management from tender stage through to project execution and closing out of project
· Document control as required
· Manage the purchasing of office requisites such as stationary, office equipment and consumables
· Manage office reception, in particular telephone switchboard, incoming & outgoing mail/packages, office appointments and meetings
· Administer contracts for office services including building leases, cleaning contracts, telephone and data transmission facilities and office equipment servicing and leasing
· Assist finance in the preparation and consolidation of time sheeting, invoicing, reporting, general administration and as required
· Coordinate OH&S and HR administration, in conjunction with head office, as required
While there was some ebb and flow of particular duties over time, I am satisfied that the above list broadly reflects many of the Applicant’s duties. That said, I note there was debate about aspects of those tasks and duties, particularly as they concerned the ability of other staff members to perform some of those duties while the Applicant worked at home (with one such example being mail package deliveries, among others).
Prior to the COVID-19 pandemic, the Applicant had an arrangement with her manager where she worked four days in the office and one day at home, to accommodate carer responsibilities. From time to time, she might occasionally work fewer days in the office. If there were meetings at the South Melbourne office, she would go to them. The Applicant estimated, and I accept, that was about once per week although sometimes that might be every two or three weeks. While there was evidently some mutual flexibility in those arrangements, there was nonetheless a requirement for the Applicant to be in the office at least some of the time. On the evidence before me, I find that she was in the office for the majority of time prior to the COVID-19 pandemic.
At the South Melbourne office, the Applicant performed office management duties as well as project management duties. At South Melbourne, there was not a receptionist, so the Applicant took on that role when she was there. While the Applicant describes a number of administrative tasks in that office – such as mail collection, signing for deliveries, answering telephones and even invoicing – being shared to some degree among all staff there, she was the only administrative or office manager position present.
The types of tasks for the office manager would be arranging for items to be fixed (e.g. a leak) or cleaned, and she would arrange that. When she was at the office, she would monitor supplies and, either then or later, would order more. Similarly, if staff at that office said stock items were running low, she would manage their resupply. The Applicant was a fire warden. She would also check fire hydrants yearly.
At the Keysborough office, the Applicant’s duties did not include the office manager component but was primarily project administration work.
During the various periods of ‘lockdown’ in Victoria following the commencement of the COVID-19 outbreak, the Applicant attended the office from time to time to perform duties. I infer this was in accordance with one of the Victorian public health orders at the time (which, at a general level, variously described over time “essential” or “authorised” or “permitted” workers to be present at work outside their home). While the exact specifics were not clear, her evidence was to the effect that she was permitted to attend and a relevant declaration was signed by the Respondent as part of authorising the Applicant’s attendance on-site.
The events leading up to the termination had some history, which relevantly commenced in about October 2021 following the introduction of a Victorian government directive that, with limited exceptions, had the effect of prohibiting a significant number of unvaccinated workers from attending their place of work. The directive, and subsequent iterations of it, applied to the Respondent.
The first of these directions was made on 7 October 2021, when the Acting Chief Health Officer of Victoria signed the “COVID-19 Mandatory Vaccination (Workers) Directions)” (Workers Directions) under s.200 of the Public Health and Wellbeing Act 2008 (Vic) (PHW Act). Among other matters, clause 4 of the Workers Directions provided that if a worker “is, or may be”, scheduled to work outside their usual home, the employer must collect “vaccination information” about the worker.
By clause 5 of the Workers Directions, an employer must not permit an unvaccinated employee to work for the employer outsider their ordinary place of residence after 15 October 2021 unless the employee had a booking for a first dose of a COVID-19 vaccine by 22 October 2021. An employer was required to treat an employee as being unvaccinated if they held no information about the employee’s vaccination status. While there were exemptions under the Worker Directions, the Applicant did not assert she satisfied any relevant exemption.
A “worker” under the Workers Directions included persons defined as a “manufacturing worker” and a “transport worker”. It is sufficient to note that a “manufacturing worker” means a person who works “at” or “in connection with” a premises used for the production or processing or goods “including” but not limited to “machinery and equipment manufacturing including parts”. Having regard to the description of the Respondent’s business set out above, I am satisfied the Applicant was a “manufacturing worker” for the purposes of the Worker Directions.
For convenience, I refer to the Worker Directions as encompassing the relevant Victorian public health directions to that effect which were in force from time to time. I note that the substantive obligations I have described above did not change.
On 12 October 2021, the Respondent sent an email to relevant staff, including the Applicant, requesting their vaccination information and proof of a double vaccination by 26 November 2021 or proof of an exemption.
On 28 October 2021, Ms Marlow co-sent a further email to Australian staff about its return to work plan. Among other matters, that email described at the outset the Respondent’s view that, throughout the COVID-19 pandemic, “we have also come to realise that the workplace plays an important role in collaborating, innovating, and many of our operational interactions are just better done in person.”
The email foreshadowed a flexible work structure, which would consist of in-person activities at their sites at a “minimum of three days a week” (original emphasis) and the potential to work remotely for two days per week.
I also note Ms Marlow’s evidence states her view about employees returning to the office was informed by a number of reasons, including to “ensure collaboration”, “restore workplace culture”, to ameliorate social isolation, and to “ensure resumption of duties which had been deferred, delegated or temporarily neglected by some employees”.
Ms Marlow also stated that certain duties were not being fulfilled by some employees who were working continuously at home. She stated this created a strain on employees who had to undertake another employee’s functions and impacted team morale. Ms Marlow said she had employees raise “issues of fairness” to her as a result of some employees failing to return to the office.
While some of Ms Marlow’s evidence was couched in general terms, she was not substantively challenged about those matters and I accept them and also that they reflected her views.
By 15 November 2021, the Applicant had not told the Respondent that she was either vaccinated or intended to be vaccinated, and the Respondent sent her correspondence to that effect on that date. The letter referred to the obligations under the Worker Directions and the “temporary adjustments” to her role during the recent lockdown that enabled her to perform her work at home. The letter stated that the nature of the Applicant’s work meant those adjustments could no longer be met. The Applicant was told that, unless she was able to meet the requirements for her role, with effect from 29 November 2021 she would be stood down without pay unless she applied to use her leave entitlements.
On 23 November 2021, a further letter of a similar nature was sent to the Applicant. This letter stated more clearly that the Respondent would not “be able to hold your position vacant for an extended period of time” and that, if changes were not made, it might need to consider “termination of your employment”.
The Applicant’s evidence contains a document titled “Agreement between vaccine providers and vaccinated party – notices and conditional acceptance” that I infer the Applicant delivered to the Respondent and sought agreement. Among other matters, the document (if signed) purported to set out various consequences for liability arising from being vaccinated and stated that, if not signed, then refusal of any vaccination was lawful. The exact dates the document was sent was not clear, although it appears to be 23 November 2021 in response to the letter of the same date, described above, from the Respondent to the Applicant. The Respondent did not sign the form.
An email of 23 November 2021 from the Applicant to the Respondent raised a number of other matters. It is not necessary to record them all but they touched upon the Applicant’s personal circumstances at home (which I acknowledge were difficult), her loyalty to the company (which I noted above), and a proposal for the Applicant to work from home. The email set out a number of legal bases that purported to demonstrate the illegality of the Worker Directions (which, with no disrespect to the Applicant, who is not legally trained, but these grounds were misconceived and misunderstood the legal effect of the Victorian government’s public health orders).
On 24 November 2021 and again on 25 and 26 November 2021, the Applicant sent a further email that largely reiterated her email sent on 23 November 2021.
On 29 November 2021, the Applicant (not being vaccinated) was stood aside from her employment, consistent with the earlier correspondence. The Applicant requested that she commence long service leave, which was granted.
It is not entirely clear when the Applicant’s leave expired, but it appears that it did so by around mid-January 2022, although I note the exact dates are not critical.
On 24 January 2022, the Applicant received a letter confirming that she remained stood aside and that her annual leave and long service leave were now exhausted. The letter stated the Applicant was now on leave without pay. The Applicant disputed aspects of the leave calculations, although they are not ultimately material to this matter.
On 11 February 2022, the relevant Workers Directions were contained in the Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2022 (No 4) (Specified Workers Order No 4), made under Victorian law. The Specified Workers Order No 4 commenced operation on 11 February 2022 and was expressed to end on 12 April 2022. As with the previous directions, the definition of “worker” in the Specified Workers Order No 4 applied to the Applicant as a “manufacturing worker”. The order applied to the Respondent as an employer of the Applicant. The Specified Workers Order No 4 required the Respondent to hold information about the Applicant’s vaccination status (Part 1, clause 7) and prohibited the Respondent from allowing the Applicant to work outside of her usual place of residence unless fully vaccinated (Part 1, clause 10). The Applicant was not “fully vaccinated” under the relevant definition of the Specified Workers Order No 4.
On 18 February 2022, the Respondent sent the Applicant a letter titled “Your employment with Wabtec”. It is not necessary to set out the letter in full but it referred to the Applicant’s unvaccinated status, the Specified Workers Order No 4 and stated that “Wabtec has formed the preliminary view that it has no choice but to terminate your employment. This is because you are unable to perform the inherent requirements of your role and are unlikely to be able to do so for the foreseeable future.” The letter proposed a meeting for 25 February 2022 (by video conference) to consider any further information the Applicant wanted to provide. The letter was signed by the Applicant’s Director of Human Resources, Ms Marlow.
On that day, the Applicant responded to the email and said she was unavailable before 28 February 2022, although no explanation was provided. The Applicant requested the meeting be rescheduled to 28 February 2022 between 11:00am and 2:00pm, which the Respondent acceded to.
On 25 February 2022, the Applicant sent a further email. It accused the Respondent of discrimination, bullying and many other “abuse tactics”. On the material before me, I reject those claims although I would make the observation that the Applicant was sincere in her reservations about a requirement to be vaccinated and I appreciate that she felt she was being unfairly treated. Among other matters, her letter again raised various legal reasons in support of her contention that she was not required to be vaccinated.
The Applicant also contended that she was “not refusing the vaccinations” but wanted “more evidence provided to me in the "clinical trials" that we will not get adverse reactions and until the government and big pharma can produce to me that information i am going to wait.” Notwithstanding that distinction, she was not at that stage vaccinated nor capable of providing proof of vaccination for the purposes of the relevant Workers Directions in force under Victorian law at the time.
On 25 February 2022, the Applicant also sent a letter to Ms Marlow (it appears to have been attached to the email on 25 February 2022) containing a list of questions she required answered. I will not set them all out but they broadly demanded information about the legal status of any COVID-19 vaccine, various scientific assurances about safety, the absence of duress in compliance with the Nuremberg Code, and other matters. The email sought a signed confirmation by Wabtec and also to be signed by a fully qualified doctor, the latter of whom “will take full legal and financial responsibility for any injuries occurring to myself”. The email did not set out any matters relating to working from home.
On 27 February 2022, an email from the Respondent noted that most of what the Applicant had provided in her email of 25 February 2022 had been previously provided and that the Respondent was seeking “new” material, such as the examples in the show cause letter. The Applicant responded to this, saying some material was new (such as the document to be signed, and an additional constitutional law case). Later again on 27 February 2022, the Respondent replied stating that the company will not be signing the documents provided. The upcoming video conference was reiterated.
On 28 February 2022 at 10:22am (being about 40 minutes before the then-scheduled meeting for that day), the Applicant wrote an email reiterating in substance her earlier demands and stating that she wanted the meeting rescheduled in order for the Respondent to respond to the matters she raised. The meeting did not go ahead, as the Applicant did not attend. The email indicated that the adjournment was required “so that you are able to respond and that we can have an open discussion”. In cross-examination, the Applicant proffered as a further reason that she was in “family law” proceedings, although that is not mentioned in her email. The Applicant in cross-examination advanced an explanation that there was a problem with the Microsoft Teams link and her ability to access by Teams. She did not refer to this in the email nor did she make a telephone call to explain her alleged technical difficulties.
Also in cross-examination, the Applicant explained that she requested the meeting be rescheduled because “they [the company] weren’t willing or wanting to discuss the contents which” the Applicant had previously supplied.
On 2 March 2022, Ms Marlow sent the Applicant an email noting that she had declined the meeting scheduled on 28 February 2022 and rescheduled the meeting to Friday, 4 March 2022 at 10:00am. The email addressed various other matters, including that the Respondent was required to comply with the Victorian government pandemic orders, the various material sent by the Applicant to date, and that the company would not be signing the vaccination agreements the Applicant had provided. The email also stated that if the Applicant did not attend without reasonable excuse, the Respondent would proceed to a final decision based on the information available.
On 4 March 2022, the Applicant sent an email requesting a further delay to the scheduled meeting. The email was sent approximately 30 minutes before the meeting that morning was scheduled to start. She requested the date be adjourned until Friday, 11 March 2022 at any time after 11:00am. The explanation for the delayed response to Ms Marlow’s email dated 2 March 2022 was that “I have been with lawyers: re family court this week”. She also stated that she did not “decline” the meeting initially scheduled for 28 February 2022 and referred to the additional documents she had previously submitted. She said she asked for the initial meeting to be rescheduled “so that you could respond to my questions and discuss the documents in which I had submitted”. She also said a Zoom link was more appropriate.
The Applicant did not receive a response to her email in the 30 minutes before the meeting began. She did not attend the meeting. She did not make a telephone call to say that she would not be attending.
In cross-examination, the Applicant alleges she attempted to log into the Microsoft Teams link at the 11:00am start time. This is not described in any of her evidence. She did not make a telephone call at 11:00am to say that she couldn’t log in. Her explanation for not doing so was that she did not feel comfortable talking on the telephone with Ms Marlow.
The Respondent’s Counsel put, in substance, that the reason the Applicant did not attend either of the scheduled meetings on 28 February 2022 and 4 March 2022 was because the Respondent had not answered the Applicant’s list of questions (which I note included signing documents creating purported legal liability). I accept that contention. The Applicant describes this requirement in various ways, including her wanting to have an “open discussion”, although the “open discussion” she refers to required discussing many of the matters previously raised about the lawfulness of the Victorian government mandate, and the risk and safety of the vaccines and the Applicant’s “supporting documents” about such matters. Another example (among many) of the discussion sought was in the Applicant’s reply submissions/statement. She states “… I am not highly critical of the vaccine. I would like more information provided to me as Wabtec Australia did not have an open discussion with its employees or have a risk assessment done. They also did not advise employees that they are participating in a clinical trial vaccine.”
The Applicant’s other explanations for her non-attendance at either of the meetings scheduled for 28 February 2022 and then 4 March 2022 were wholly unconvincing. I do not accept that she was entirely unavailable for a 30 minute meeting during the day or at some other time on that day if she proposed it (which she did not) in circumstances where she was not presently working. As to the alleged impact by the Applicant’s family law commitments, she provided no meaningful evidence showing that her family law commitments made any serious impact on her time. She referred in general terms to proceedings that had been ongoing for some time and accepted there was no actual hearing that week at all but the work (if it occurred) was about an affidavit.
The alleged difficulties in accessing the meetings by Microsoft Teams was equally unconvincing and often contradictory. In any case, so far as the issue existed (which I have doubts about), it should have been squarely raised after attempting to join the first meeting on 28 February 2022 (although I have doubts that she did attempt to join that meeting) or she should have called by telephone to explain any difficulties. I do not accept that the Applicant was so uncomfortable to pick up the telephone to Ms Marlow in circumstances where the Applicant was proposing a Zoom video conference with the same person and allegedly attempted to have such a meeting by activating the Microsoft Teams link (which she had previously said she could not join).
No further meetings were rescheduled. The Respondent then determined to terminate the Applicant’s employment.
On 7 March 2022, the Respondent sent a letter to the Applicant terminating her employment. The letter set out in some detail the reasons for the termination, namely the effect of the Victorian government directions, the Applicant’s unvaccinated status, and the requirement that the Applicant work at least some of her time on-site. The letter set out the ‘show cause’ history, and the opportunities for meetings described above. The Applicant was not requested to work her final four weeks in accordance with the notice given to her – which I note she would have been unable to work and therefore be paid for - but was paid that money in lieu.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
“(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[1]
I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[2] and should not be “capricious, fanciful, spiteful or prejudiced.”[3] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[4]
There are two components to the Respondent’s contention that there was a valid reason. The first rests upon the requirements it said existed by the Specified Workers Order No 4, which were applicable at the time of the Applicant’s dismissal. The second concerns the contention that an inherent requirement of the Applicant’s employment required her to perform at least some of her role on-site.
In the second of these matters, “it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must be considered”[5] and “the reference to ‘inherent’ requirements invites attention to what are the characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral.”[6]
The Applicant contends, on a variety of legal bases, that the Specified Workers Order No 4 were unlawful. They included:
· That the Applicant’s employment contract does not state she needs “to have medical procedures to keep my job”.
· The Privacy Act 1988 (Cth), section 94H.
· The Disability Discrimination Act 1992 (Cth).
· Section 51(xxiiiA) of the Constitution of Australia (regarding civil conscription) and s.109 of the same (regarding inconsistent Commonwealth and State laws).
· The Nuremberg Code.
· The Biosecurity Act 2015 (Cth), sections 60, 92 and 95.
· The Fair Work Act 2009.
· The Criminal Code Act 1995 (Cth), s.83.4 (interfering with political rights or duties).
· The Australian Immunisation Handbook, s.2.1.3.
· The Ministerial Code of Conduct for Victoria.
I do not accept those contentions. Many, if not all, the matters have been previously addressed before a Court or the Commission in varying contexts. I will address them only briefly. In relation to the Applicant’s contract of employment, what her employment contract required (and what I consider below) is whether there was an inherent requirement that she was required to work on-site. If the answer to that was ‘yes’, then it is the Specified Workers Order No 4, not the contract, that prevents the Applicant from performing an inherent requirement of her role – it does not require her to be vaccinated.
Section 94H of the Privacy Act 1988 (Cth) is directed at use of the ‘COVIDSafe’ app. That app was not relevant to this proceeding.
In relation to the Disability Discrimination Act 1992, it is not clear exactly what is alleged. This argument appears to rest on the contention that there is discrimination against unvaccinated workers when compared to vaccinated workers that enlivens (as I understand matters) the operation of that Act. The argument (appears to) assert that not being vaccinated is a disability. Under that Act, the definition of “disability” is as follows:
“disability, in relation to a person, means:
(a) total or partial loss of the person’s bodily or mental functions; or
(b) total or partial loss of a part of the body; or
(c) the presence in the body of organisms causing disease or illness; or
(d) the presence in the body of organisms capable of causing disease or illness; or
(e) the malfunction, malformation or disfigurement of a part of the person’s body; or
(f) a disorder or malfunction that results in the person learning differently from a
person without the disorder or malfunction; or
(g) a disorder, illness or disease that affects a person’s thought processes, perception of
reality,emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
(h) presently exists; or
(i) previously existed but no longer exists; or
(j) may exist in the future (including because of a genetic predisposition to that
disability); or
(k) is imputed to a person.
To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.”
I do not consider that being unvaccinated is a disability on any of these definitions or more generally. Discrimination laws do not operate on discrimination at large, such as “vaccinated versus unvaccinated”. They apply to specific matters, frequently described as “attributes”. However, even if I were wrong on that conclusion, s.21A of that Act provides a specific exemption in the case of employment where the discrimination applies to the “inherent requirements” of the role. I consider this below.
As to.51(xxiiiA) of the Constitution, that section, among other matters, authorises the Parliament to make laws with respect to the provision of “medical and dental services (but not so as to authorize any form of civil conscription)”. The Applicant’s contention, as I understand it, is that any form of vaccination mandate is invalid against that constitutional provision, possibly as a form of civil conscription.
This argument misunderstands the operation of s.51(xxiiiA). First, s.51(xxiiiA) is a source of legislative power for the Commonwealth Parliament. The exclusion for civil conscription narrows the scope of that source. But regardless of the scope of that exclusion, s.51(xxiiiA) does not, itself, prohibit the making of laws by any State on that subject matter. I would make a similar observation with the other sources of legislative power under s.51 of the Constitution that the Applicant raised.
In relation to the Biosecurity Act 2015, it was not clear what the ground of objection was. Argument based on this legislation was considered recently by Justice Lee, in the context of NSW public health orders, and was rejected.[7] I, too, reject it in the context before me. I do not consider that the other laws and documents referred to have any impact on invalidated, or affect, the Specified Workers Order No 4.
In summary, the Specified Workers Order No 4 was made under s.165AI of the Public Health and Wellbeing Act 2008 (Vic). Whatever the outer boundaries of the power of that Act are, in the context of similar laws operating in NSW, Justice Beech-Jones of the Supreme Court of NSW recently observed:[8]
“The function of determining its validity is for this Court to discharge and the function of determining whether it should have been made is for the political process. The Fair Work Commission has neither function.”
I consider it clear that the Specified Workers Order No 4 supplied a properly founded and valid basis that prohibited the Respondent from allowing the Applicant to work on-site and the Respondent, quite properly, sought to comply with those requirements.
As to whether there was an inherent requirement for the Applicant to perform her work on-site, I am satisfied there was. Firstly, I accept the evidence of Ms Marlow about these matters, which I have set out above. The Applicant’s argument advocating for a permanent fully-remote arrangement tended to adopt a task-based analysis, focussing on the tasks that were performed while she was required to work at home. However, the performance of particular tasks is only one aspect. As Ms Marlow’s evidence stated, there are less tangible benefits of having people working physically together, particularly to “ensure collaboration”, to “restore workplace culture”, to ameliorate social isolation, and to “ensure resumption of duties which had been deferred, delegated or temporarily neglected by some employees”.
Ms Marlow also referred to the “strain” arising from some employees having to undertake some tasks of other employees who were working at home. To give a real example of this, an aspect of the Applicant’s role at the South Melbourne office included incidental tasks such as answering telephones, collecting deliveries and the like. The Applicant’s evidence on this was that other employees at that office also performed those tasks, which was plainly correct given that the Applicant’s normal (pre-COVID) duties would only see her working at that site about once per week. But this is exactly the issue Ms Marlow was addressing. So long as the Applicant was not at that office, her share of those tasks would have to be picked up by someone else. While they might not be especially burdensome, it doesn’t change the fact that other people would have to be performing some of the tasks that the Applicant used to perform.
Another example is supplies and sundries. While the Applicant is correct in stating that if supplies were running low, other employees in the office could tell her and she could order supplies (while working at home). But with her presence on the ground in the office then those other employees might not have to even ask, as a part of the Applicant’s role would have been to check those matters. These are just two examples.
I also consider relevant that, before and during the COVID-19 pandemic, the Applicant worked on-site. I consider it would be a peculiar result if, in those circumstances, it could be said that an inherent requirement of the Applicant’s permanent role (i.e. not a role modified to accommodate the circumstances of responses to COVID-19) had no on-site requirement at all.
As the Applicant was not vaccinated in satisfaction of the requirements of the Specified Workers Order No 4, she could not meet the inherent requirements of her role.
In summary, I consider there was a valid reason for the Applicant’s dismissal.
Was the Applicant notified of the valid reason?
Proper consideration of s.387(b) requires a finding to be made as to whether the applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a).[9]
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[10] and in explicit[11] and plain and clear terms.[12]
I am satisfied that the Applicant was given notification of the reasons for the Respondent’s reasons, beginning 15 November 2022 if not earlier by the email dated 28 October 2021. In the November correspondence, she was told it was “essential” for her to attend the workplace. By 18 February 2022, the position was made clear if there was doubt beforehand. She was told she may not be able to perform the inherent requirements of her role and why. She was told her employment was being reviewed, which may include termination of her employment.
Having regard to the matters referred to above, I find that the Applicant was notified of the reason for her dismissal prior to the decision to dismiss being made, and in explicit and plain and clear terms.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[13]
The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.[14] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[15]
I am satisfied that the Applicant was given an opportunity to respond and that she did so, particularly by her emails of 25 and 28 February 2022 (the latter of which referred to earlier correspondence). She was also given specific opportunities to meet to discuss with the Respondent about those matters. While those meetings did not eventuate, that was because the Applicant did not wish to do so until her demands for the various information requests and agreements would be complied with or at least form the basis of discussion. I do not consider any of the other matters raised by the Applicant were an impediment to providing a further response or otherwise denied her an opportunity to respond.
As a particular complaint of the Applicant was that she did not have an opportunity for an “open discussion” with the Respondent, I wish to be clear in my conclusion that I considered the Respondent acted appropriately in telling the Applicant that it was not going to be signing the documents the Applicant had asked be signed. Nor was it necessary – even if, which I doubt, it was possible – for the Respondent to have provided the extensive list of information that the Applicant sought.
The Respondent was simply intending to comply with the various Workers Directions up to and including the Specified Workers Order No 4. It was proper for it to do so. In no part of that was there a requirement for the Respondent to justify the various Worker Directions, nor to justify any aspect of the safety or efficacy of the COVID-19 vaccines the various Workers Directions required compliance with.
In all the circumstances, I find that the Applicant was given an opportunity to respond to the reason for her dismissal prior to the decision to dismiss being made.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
The Respondent’s correspondence expressly raised the Applicant’s entitlement for a support person. There was no evidence before me that I considered would lead to a conclusion that the Applicant made a request nor was refused any relevant opportunity for a support person. I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal. The issue of refusal did not arise.
Was the Applicant warned about unsatisfactory performance before the dismissal?
As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
Neither party submitted that the size of the Respondent was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s enterprise had no such impact.
What other matters are relevant?
Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
The Applicant’s submissions listed a number of matters, although I conclude they were all matters separately raised and considered above. They included: the Applicant’s constitutional arguments about legality; the information she sought about the vaccine risks and the open discussion she wanted; the Applicant’s contention she could fully work at home; her coercion claims; and the requirement for her to participate in a clinical trial.
While I consider that much of the correspondence from the Applicant was deeply misconceived legally, I reiterate that I do not wish to be overly critical, having regard to the stress the Applicant was experiencing and that she is not legally trained. However, I consider that none of the matters she has raised would otherwise render the dismissal unfair.
Conclusion
I have made findings in relation to each matter specified in section 387 as relevant.
I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[16]
Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable. There was an inherent requirement that the Applicant’s work, or at least some of it, be performed in-person at the office. By reason of the operation of the Workers Directions, as variously applied, which the Respondent was required to comply with under the laws of Victoria, she was unable to meet the inherent requirements of her role. Those matters gave the Respondent a valid reason to dismiss the Applicant. I consider that the Respondent afforded procedural fairness to the Applicant prior to making the decision to bring her employment to an end.
Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act. The Applicant’s application is therefore dismissed. An order[17] to this effect will accompany this decision.
DEPUTY PRESIDENT
Appearances:
D Marinakis (Stojcevska) on her own behalf
R Preston of Counsel
Hearing details:
2022.
Melbourne (by video link via Microsoft Teams):
June 24.
[1] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[2] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[3] Ibid.
[4] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[5] J Boag & Son Brewing Pty Ltd v Button[2010] FWAFB 4022, [22].
[6] X v Commonwealth [1999] HCA 63, [102].
[7] Kikuyu v Hazzard (No 2) [2022] FCA 812.
[8] Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320, [68].
[9] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
[10] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[11] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
[12] Ibid.
[13] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
[14] RMIT v Asher (2010) 194 IR 1, 14-15.
[15] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[16] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
[17] PR743031
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