Darren Barwick, Kerryn Corby v Aldi Stores (A Limited Partnership)
[2022] FWC 2285
•26 AUGUST 2022
| [2022] FWC 2285 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Darren Barwick, Kerryn Corby
v
Aldi Stores (A Limited Partnership)
(U2022/3305; U2022/3308)
| DEPUTY PRESIDENT LAKE | BRISBANE, 26 AUGUST 2022 |
Application for an unfair dismissal remedy – refusal of a reasonable and lawful direction – COVID-19 vaccination – where the Applicant was not unfairly dismissed.
Ms Kerryn Corby and Mr Darren Barwick (the Applicants) contend they were unfairly dismissed by Aldi Stores (the Respondent), for whom Ms Corby had worked for since 6 July 2015 and Mr Barwick had worked for since 5 June 2017. The Applicants made separate applications and following a short conference I determined they be heard concurrently. They seek an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act).
In short, the Applicants were terminated from their positions in the Respondent’s grocery retail business after failing to comply with the Respondent’s direction to be fully vaccinated by 1 March 2022. The events leading to the Applicants’ terminations are not in dispute. Rather, the Applicants contend that the unlawfulness of the Respondent’s conduct gives rise to their unfair dismissal claim.
As the matter could not be resolved by conciliation, directions were issued for the filing of material and a hearing was listed for 10.00am on 13 July 2022. At which the Respondent sought to be represented. This was not opposed by the Applicants. Even so, I am still required to consider whether permission ought to be granted under s.596 of the Act.[1] The first pre-requisite: the presence of one of the criteria under s.596(2), does not immediately invoke the right to representation but rather “involves an evaluative judgment akin to the exercise of discretion.”[2] Once that first step is satisfied, the second step “involves consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.”[3] Given the volume of evidence and submissions provided by the parties and the nuanced legal arguments involved in considering whether the Applicants’ dismissal was unfair, I was satisfied that it would be of use to the Commission – and would not unduly prejudice the opposing party – to have the assistance of the Respondent’s legal representative. I was also satisfied that the presence of the representative would also enable the matter to be dealt with more efficiently. Accordingly, I allowed Ms Philippa Noakes from Seyfarth Shaw Australia to appear for the Respondent.
Chronology
On 25 March 2020, the Federal Government declared supermarket workers to be “essential” workers.[4]
ALDI remained opened during the pandemic and had to continually assess how it would manage its operations and ensure the safety of its employees, customers, and members of the public.[5]
In September 2021, ALDI’s COVID-19 Working Group in conjunction with the ALDI Safety Team, took steps to consider whether a mandatory vaccination policy should be proposed across ALDI’s operations in order to reduce risk of COVID-19.[6]
In October 2021, ALDI commenced the process of considering whether it should, as a matter of its own policy, require its team members to be vaccinated against COVID-19 in order to attend the workplace and perform work.[7]
On 20 October 2021, ALDI informed all employees that it was considering a safety management plan to manage the risks of COVID-19 in its stores, distribution centres, and warehouses. One of these measures under consideration would be a requirement that employees be fully vaccinated against COVID-19.[8]
In the announcement, ALDI invited employees to participate in an anonymous survey to provide their feedback on the proposed COVID-19 Safe Plan (Safety Plan) by 31 October 2021, which included the proposed requirement that employees be vaccinated.[9]
On 27 October 2021, ALDI sent an email reminding its employees to submit their views about the Safety Plan by completing the survey.[10]
On 31 October 2021, the survey closed and had more than 4,500 responses. Approximately 70% of the participants supported the Safety Plan with the only exemption being a medical exemption.[11]
Between 1 November to 21 November 2021, ALDI’s CEO, Executive Managers, Health and Safety Representatives, and National Safety Team considered the responses to the Safety Plan and extra feedback received from the employees via their work groups.[12]
On 30 November 2021, ALDI sent communications to all ALDI employees that it would be releasing a COVID-19 Vaccination Policy, which would require all employees to be fully vaccinated by 1 March 2022.[13]
On 1 December 2021, Mr Simon Borham – Director of Work Health and Safety, sent an email to all ALDI employees to confirm their vaccination status and provide proof of their vaccination (or medical contraindication) by 10 January 2022.[14]
By 10 January 2022, the Applicants had not provided ALDI with confirmation of their vaccination status. The Applicants were given an extension until 17 January 2022 to confirm their vaccination status. The Applicants did not respond.[15]
On 18 January 2022, a show cause letter was sent to the Applicants on the basis that they had not confirmed their vaccination status or indicated that they intended to be vaccinated by 1 March 2022.[16]
On 20 January 2022, both Applicants requested an extension to 27 January 2022 to respond to their show cause letters as they were awaiting legal advice. ALDI granted this request.[17]
On 27 January 2022, both Applicants responded to the show cause letters with identical emails requesting information about the safety of the COVID-19 vaccines and assurance from ALDI that they would be liable for any adverse reaction to the vaccine. ALDI directed the Applicants to seek further information from their medical practitioners.[18]
On 3 February 2022, ALDI sent a notice of termination letter to the Applicants. ALDI responded to the concerns raised during the show cause process and advised the Applicants that their employment would conclude on 28 February 2022.[19]
On 11 February 2022, Mr Barwick was invited to a meeting to discuss the termination of his employment. This was rescheduled to 25 February 2022.[20]
On 17 February 2022, Ms Corby was invited to a meeting to discuss the termination of her employment. She attended and indicated that she would only be vaccinated under two conditions. Firstly, if an ingredients list of the vaccine was provided. Secondly, if a waiver was signed by ALDI to cover all costs if Ms Corby became unwell due to receiving the vaccine.[21]
On 25 February 2022, Mr Barwick attended his meeting with Ms Corby as his support person. Both Applicants wore jackets to the venue, which they removed when they entered the meeting revealing high visibility t-shirts with slogans across the back. Mr Barwick wore the slogan, “Coercion is not Consent”. Ms Corby wore the slogan, “My body, my choice”. The parties disagree as to the colour of the t-shirt and the colour of the writing.
The parties disagree as to Mr Barwick’s conduct at the meeting. Both parties agree that during the meeting, Mr Barwick placed a tablet on the table in front of Ms Emily Wright – Executive Manager of Logistics. Parties do not agree as to the colour of the tablet.[22]
On 28 February 2022, both Ms Corby’s and Mr Barwick’s employment was terminated with the Respondent.
Corby’s Material
Ms Corby puts forward four contentions that her dismissal by the Respondent was unlawful. [23]
The first contention is that the Respondent did not undertake comprehensive consultation prior to the implementation of the Vaccination Policy. The survey only provided multiple choice options curated by ALDI which did not allow her to express her opinion. If an employee did not answer one of the questions, they could not fill in a field at the end of the survey where employees could ask questions or voice concerns. Ms Corby asserts this gives the survey “a false indication of what the employee actually wanted to say.”[24]
The second contention is that the Respondent’s risk assessment was unlawful. Ms Corby states that ALDI did not provide its employees with a risk assessment, ALDI failed to consider the dimensions of the Brendale Distribution Centre (DC), and the assessment was not completed to a standard that is acceptable in comparison to other companies in Queensland.[25]
The third contention is that COVID-19 vaccines are dangerous, and ALDI did not have regard to the adverse effects of the vaccine. Ms Corby asserts that all claims that vaccination has been proven to be effective are untrue. She further asserts that she has had an adverse reaction to the vaccine and knows others who have suffered adverse reactions of varying severity. Ms Corby states,
“Aldi is a food distribution company who have chosen to implement a medical procedure on their employees, yet have wiped their hands of all responsibility, all liability and all duty of care with consideration of this.”[26]
The fourth contention is that the Respondent’s Vaccination Policy is in breach of their obligations under the Work Health and Safety Act 2011 (Qld) (the WHS Act). Ms Corby states that by implementing a medical procedure, the Respondent has failed to meet their primary duty of care owed to all employees. Ms Corby provided definitions from the WHS Act and asserted that an adverse effect of the vaccine can be considered a hazard or risk. Therefore, vaccination should not be a control measure.[27]
Ms Corby accepts that she was informed on multiple occasions that if she did not confirm her vaccination status and provide proof of her vaccination (or medical contraindication) by 10 January 2022, her employment may be terminated. She does however question the lawfulness of that directive.
Nevertheless, it was accepted that Ms Corby, as at 10 January 2022, had made it clear that she was not vaccinated and did not have a medical exemption.
For the reasons set out above, Ms Corby submits that she was unfairly dismissed.
Barwick’s Material
Mr Barwick submitted material that was factually similar to Ms Corby.
Mr Barwick accepts that he was informed on multiple occasions that if he did not confirm his vaccination status and provide proof of his vaccination (or medical contraindication) by 10 January 2022, his employment may be terminated. He does however question the lawfulness of that directive.
Nevertheless, it was accepted that Mr Barwick, as at 10 January 2022, had made it clear that he was not vaccinated and did not have a medical exemption.
For the reasons set out above, Mr Barwick submits that he was unfairly dismissed.
Respondent’s Material
The Respondent states that it had a valid reason to dismiss the Applicants: namely, their non-compliance with a lawful and reasonable direction issued by the Respondent. Further the Respondent asserts that the Applicants were notified of that reason well in advance of the termination occurring, had ample opportunity to respond (and did so), that their response was considered by the Respondent, but ultimately a decision was made to terminate their employment because they could not fulfil the inherent requirements of their roles. They were not unreasonably refused a support person. The Respondent further asserts that the consultation process undertaken was comprehensive and that given the extensive communications leading up to the implementation of the vaccination policy, all staff – including the Applicants – were very aware of what would happen if they were not vaccinated by 1 March 2022.
The Respondent denies that its staff were coerced into having the vaccine. The Respondent always accepted that it was their choice. However, the Respondent had no choice but to terminate the Applicants’ employment because they did not meet the criterion. The Respondent maintains that the Applicants were not unfairly dismissed.
The Respondent asserts that all the arguments raised by the Applicants have already been dispensed with by the Commission. The Respondent relies on the following decisions in relation to validity of dismissal based on policies requiring vaccination that are similar in fact to the current matter:[28]
Margarita Smith v Compass Group Defence Hospitality Services Pty Ltd [2022] FWC 1434;
Matthew Colwell v Wellways Australia [2022] FWC 1086;
Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015;
Ms Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156;
Fawaz v G4S Integrated Services Pty Ltd [2022] FWC 777;
Glover v Ozcare [2021] FWC 2989; and
Construction, Forestry, Maritime, Mining and Energy Union and Ors v BHP Coal Pty Ltd t/a BHP Billiton Mitsubishi Alliance/BMA and Ors [2022] FWC 81.
The Applicants’ arguments are spurious and do not have the effect that ALDI did not have a valid reason to terminate.[29]
The Respondent purports that the Applicants were put on notice and provided with the reasons on 18 January 2022.
The Applicants were given a reasonable opportunity to respond.
The Respondent claims that there was no unreasonable refusal of a support person.
The Respondent requests that the Commission consider the Applicants’ conduct. Firstly, Ms Corby’s and Mr Barwick’s conduct in the meeting that occurred on 25 February 2022. Secondly, that Ms Corby was issued with a Final Written Warning on 12 January 2022 for her conduct during a toolbox talk regarding Rapid Antigen Tests.
ALDI opposes the remedies sought by the Applicants.
Consideration
Section 387 of the 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.[30]
(a) whether there was a valid reason for the dismissal
To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[31] and should not be “capricious, fanciful, spiteful or prejudiced.”[32] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.
The Respondent asserts that its direction was lawful and reasonable. As to what is “reasonable” in the context of employer directions, the Full Bench provided in CFMMEU v Mt Arthur Coal that:
“The reasonableness of a direction is a question of fact having regard to all the circumstances, which may include whether or not the employer has complied with any relevant consultation obligations; the nature of the particular employment; the established usages affecting the employment; the common practices that exist; and the general provisions of any instrument governing the relationship.”[33]
In this matter, the Respondent undertook a comprehensive consultation process prior to implementing the vaccine policy, including surveying employees to understand their views, offering employees the opportunity to consult with health and safety representatives, and taking account of feedback received through the consultation process.
Motivated by a conviction that the COVID-19 vaccine was dangerous and unsafe; the Applicants requested a risk assessment and vaccine ingredient list. The Respondent was under no obligation to provide that information. Nonetheless, the Respondent had conducted a risk assessment, which the Applicants determined to be inadequate. As to the safety and efficacy of vaccines, as Ms Corby relevantly pointed out, “Aldi is just a food distribution company.” The data regarding the efficacy and safety of COVID-19 vaccines had already been considered by the Therapeutic Goods Administration (TGA) and approved for use. The Respondent simply acted on that advice.
I acknowledge that there is a common law right to personal and bodily autonomy and integrity which is recognised in the Mt Arthur Coal Full bench decision. In relation to the present case, requesting an employee to provide vaccination status does not in any way put undue pressure on an employee to undergo vaccination. The Full Bench noted that the choice lay with the Applicant and his/her decision to decide between getting the vaccination and continuing to be employed. The rights of bodily integrity need to be balanced against all other rights, including the health and safety of other employees in the workplace.
With respect to this matter, it is uncontentious that as of 17 January 2022, the Applicants had indicated that they were not vaccinated, nor did they have a medical exemption. In Ms Corby’s meeting on 17 February 2022 and Mr Barwick’s meeting on 25 February 2022, the Applicants again confirmed that they were not vaccinated and did not intend to become vaccinated against COVID-19 at that time. In other words, they indicated that they would not be complying with the Respondent’s direction. The Applicants had the choice and was within their rights to decline to become vaccinated or to provide evidence. However, the consequence of their choices was that they failed to comply with the Respondent’s reasonable direction.
For those reasons, I am satisfied that the Respondent’s direction that the Applicants be vaccinated or provide a valid medical exemption by 17 January 2022 was a lawful and reasonable direction with which the Applicants were required to comply.
I am also satisfied that the Applicant’s failure to comply with the Respondent’s direction – the consequence being that the Respondent refused to comply with a lawful and reasonable direction – constituted a valid reason for dismissal.
(b) and (c) whether the person was notified of that reason and had an opportunity to respond
Based on the evidence provided and submissions made, I am satisfied that the Applicants were made aware in the months leading up to the implementation of the mandate, that if they were not vaccinated by 17 January 2022, their employment may be terminated.
They had the opportunity to respond throughout the consultation process indicate their opposition to the introduction and enforcement of the mandate. This was not done until after being issued with the show cause notice and prior to their termination on 28 February 2022. Accordingly, I am satisfied that the Applicants were notified of the reason for their termination and had a sufficient opportunity to respond.
(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
The Applicants have not claimed that they were unreasonably refused a support person.
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal
Given the reasons for the Applicants’ termination, this factor is irrelevant.
(f) and (g) the degree to which the size of the employer’s enterprise and the absence of dedicated human resource management expertise would be likely to impact on the procedures followed
The Respondent is a large employer with a well-resourced human resources department. it undertook an extensive process to provide its staff with information about the government mandate which was to apply to its operations. It consulted with the Applicants in respect of the mandate, but it ultimately had very little control over what it could do if they chose not to be vaccinated.
(h) any other matters that the FWC considers relevant
I consider that there are no other matters before me that are relevant.
Conclusion
Accordingly, I am satisfied based on the evidence provided that the Respondent had a valid reason for terminating the Applicants’ employment and that it did so in accordance with as fair a process as it could. I find that the Applicants were not unfairly dismissed in accordance with the Act.
I therefore order that the Applicants’ respective applications be dismissed.
DEPUTY PRESIDENT
[1] Wellpacks Holdings Pty Ltd t/a ERGT Australia v Mr Kevin Grovender [2021] FWCFB 268.
[2] Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618, [19], (3).
[3] Wellpacks Holdings Pty Ltd t/a ERGT Australia v Mr Kevin Grovender [2021] FWCFB 268, [48].
[4] ALDI Stores, ‘Respondent’s Outline of Submissions’, Submission in Corby & Barwick v ALDI Stores, U2022/3305; U2022/3308, 18 June 2022, [12].
[5] Ibid [13].
[6] Ibid [22], (a).
[7] Ibid [20].
[8] Ibid [22], (b).
[9] Ibid [22], (d).
[10] Ibid [22], (e).
[11] Ibid [22], (f).
[12] ALDI Stores (n 4) [22], (g)–(m).
[13] Ibid [22], (n).
[14] Ibid [30].
[15] Ibid [34].
[16] Ibid [35].
[17] Ibid [36].
[18] Ibid [37].
[19] Ibid [38].
[20] Ibid [40].
[21] ALDI Stores (n 4) [39].
[22] Ibid [41]–[42].
[23] Corby, ‘Applicant’s Outline of Submissions’, Submission in Corby & Barwick v ALDI Stores, U2022/3305; U2022/3308, 6 June 2022, 1.
[24] Ibid 1–2.
[25] Ibid 3.
[26] Corby (n 23) 4.
[27] Ibid 4–5.
[28] ALDI Stores (n 4) [64], (a)–(g).
[29] Ibid [66].
[30] 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].
[31] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[32] Ibid.
[33] CFMMEU v Mt Arthur Coal [2021] FWCFB 6059 [259].
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