Darryl Kubica v InvoCare Australia Pty Ltd
[2022] FWC 1439
•21 JULY 2022
| [2022] FWC 1439 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Darryl Kubica
v
InvoCare Australia Pty Ltd
(U2022/2795)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 21 JULY 2022 |
Application for relief from unfair dismissal – lawful and reasonable direction requiring vaccination against COVID-19 – valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed.
On 4 March 2022, Mr Darryl Kubica (Applicant) filed an application pursuant to s.394 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). The Applicant claims that he was unfairly dismissed from his employment with InvoCare Australia Pty Ltd (Respondent/ InvoCare) on 9 February 2022.[1]
In relation to the merits of the Application, the Respondent asserts that the Applicant was dismissed due to his failure to meet an inherent requirement of his role, namely, to be fully vaccinated against Covid-19, or have a valid medical contraindication, in accordance with the Respondent’s Covid-19 Policy (Covid-19 Policy).
Following the receipt of submissions and evidence in accordance with directions made, I held a hearing by telephone on 6 June 2022 to resolve the Application. Mr Zev Friedlaender appeared for the Applicant, and Ms Fiona Neumann, Human Resources Business Partner of the Respondent employer, appeared for the Respondent.
Factual Background
The Applicant relied upon his affidavit dated 8 May 2022.
The Respondent relied upon their Form F3 dated 25 March 2022, submissions dated 17 May 2022, and other documentary evidence.
There was not any substantive disagreement between the parties as to the facts and chronology of events leading up to the Applicant’s dismissal. I make the findings that follow as to these matters.
The Applicant commenced employment with the Respondent on 21 March 2005. [2]
At the time of his dismissal, the Applicant was employed as a Grade 3 worker under the Invocare Australia Pty Limited NSW Funerals Industry Enterprise Agreement 2019 (enterprise agreement).[3] The Respondent operates in the funeral industry.[4]
As of 7 October 2021 a NSW Public Health Order was released that required that all client facing employees in the funeral industry… be fully vaccinated.”[5]
On 28 October 2021, Mr Shane Lincoln, Regional Manager Operations of the Respondent, wrote to the Applicant (referring to a previous discussion) and stated that in accordance with a NSW state directive, the Respondent employer requires “that all staff are fully vaccinated to attend any size of funeral.” Mr Lincoln further noted that if an employee is “not able to provide evidence to [the Respondent] of their status (or you do not otherwise meet the COVID-19 vaccination requirements imposed by the Chief Health Officer), we will have no choice but to refuse you entry to our sites. Where that occurs and there are no reasonable alternative arrangements available, we may, unfortunately, have to explore alternatives of leave or review your ongoing employment with Invocare.”[6]
The Applicant advised the Respondent on 12 November 2021 that he was still undecided as to whether or not he would receive a vaccination.[7] On 15 November 2021, Ms Claire Bayliss wrote to the Applicant noting the release of a NSW Public Health Order dated 2 November 2021, and reiterated that due to such Order, the Respondent was unable to accommodate the Applicant’s return to work until 15 December 2021. Ms Bayliss advised the Applicant that leave options may be available to him and acknowledged that the Applicant had extended his annual leave until 26 November 2021. The Applicant was also advised that the Respondent intended to introduce a Covid-19 Policy which would take effect on 27 January 2022.[8]
On 3 December 2021, Mr Lincoln wrote to the Applicant advising that after completing a consultation with the Respondent’s Health and Safety Committees, the Respondent’s Covid-19 Policy had been internally endorsed, and would take effect from 7 December 2021. The policy made it a requirement for all employees who attended the Respondent’s workplace to be fully vaccinated, or have been granted an exemption, by 27 January 2022[9] (non-compliance with the policy was said to result in “disciplinary action, which may include termination of employment”).[10] Mr Lincoln acknowledged that the feedback and input received during the consultation process had been reviewed and considered in the final policy document.[11] The Applicant was informed that if he chose not to have one vaccination dose by 6 December 2021, and be fully vaccinated by 14 January 2022, his ongoing employment would be in jeopardy. The Applicant was provided with contact details if he wished to raise queries or concerns regarding the 3 December 2021 letter.[12]
The requirement for the Applicant to adhere to the Respondent’s Covid-19 Policy, and the effect that non-compliance would have on his ongoing employment, was again reiterated to the Applicant in a letter to him dated 17 December 2021.[13]
On 13 January 2022, the Applicant wrote to Ms Amanda Tober of the Respondent, copying in other personnel of the Respondent (including Mr Lincoln and Ms Bayliss) and requested further particulars regarding the Covid-19 Policy which the Applicant described as a “directive to mandate a medical procedure”. Amongst other concerns, the Applicant noted the following:
“1. I protest the interference of a medical service on to me of unknown consequences, and I protest the inspection that violates my medical privacy.
2. I request production of the written Law that requires of me to undergo a forced medical procedure as a prerequisite of my employment.
3. I request that the Law for mandated vaccinations be made pursuant to the constitutional guarantee.
4. I request your absolute guarantee that any substance/agent administered within the. COVID-19/SARS-CoV-2 vaccine designed to cause alterations in my body will be removable at the conclusion of each and every work period and or work shift and also and again at the completion of my contractual obligations with Invacare Australia Pty Limited.”[14]
Further, the Applicant said that the Respondent’s “Failure to produce the written Law mandating this forced medical procedure, within three days of receiving this letter, shall be taken to be unwarranted coercion and workplace harassment for which substantial compensation may be due. Undertaking the medical procedure as a condition to avoid work termination will not release, or absolve, you of the above numbered points and may be deemed a trespass without a written coram judice warrant.”[15]
On 18 January 2022, the Respondent replied to the Applicant in writing, explaining that whilst the Applicant’s position was respected, the Applicant would be unable to attend the Respondent’s workplace from 27 January 2022 as the Applicant was unable to perform (the inherent requirements of) his role. The Respondent maintained that the Covid-19 Policy was lawful, and directed the Applicant to seek a professional medical opinion regarding his concerns with the safety of a Covid-19 vaccination. Notably, the Respondent said in its written response to the Applicant:
“Nothing you have raised in your letter provides grounds for InvoCare to grant you an exemption from the requirements of InvoCare's [COVID-19 Policy]. In these circumstances, if you do not comply with InvoCare's COVID-19 [Policy], regrettably, it will be necessary for InvoCare to review your ongoing employment as you will be unable to fulfil the requirements of your role moving forward and we have not identified any appropriate alternative work arrangements or jobs for you. We note that you have exhausted all your accrued leave entitlements and are currently on a period of unpaid leave with our agreement.
If you change your mind regarding COVID-19 vaccination, please contact me so that
arrangements can be made for you to provide evidence of vaccination to us. In the meantime, you should expect to receive separate correspondence from InvoCare about the abovementioned review of your ongoing employment over the coming week.”[16]
On 20 January 2022, the Respondent wrote to the Applicant requesting his attendance at a consultation meeting. The Applicant was advised that the purpose of the meeting was to discuss the Applicant’s current vaccination status, and confirm next steps regarding his employment. The Respondent noted that the Applicant had been consulted with regarding the implementation of the Covid-19 Policy on several occasions from October 2021 to 20 January 2022. The Applicant was invited to bring a “support person/ representative to this meeting” and was advised that the role of the support person is to provide “support” that may be required throughout the consultation meeting. The Applicant was “advised that a Support Person cannot ask questions or advocate on behalf of [him]… at this meeting.”[17] The Respondent identified to the Applicant that the requirements of its Covid-19 Policy had now been repeatedly reiterated to him verbally and in writing, and reminded the Applicant that he was required to be vaccinated to return to the workplace.[18]
A Microsoft Teams meeting was held with the Applicant on 24 January 2022, wherein the Applicant confirmed that he remained unvaccinated. He was again advised of the potential implications of breaching the Respondent’s Covid-19 Policy.[19]
On 31 January 2022, the Respondent sent the Applicant a show cause letter (Show Cause Letter) regarding his non-compliance with the Covid-19 Policy. The Applicant was once again informed that as his vaccination status remained unchanged, he was in contravention of the Respondent’s Covid-19 Policy, and thus unable to fulfil the inherent requirements of his role. The Respondent explained that due to this contravention, Invocare intended to terminate the Applicant’s employment. The Applicant was asked to attend a show cause meeting with a support person (if he wished), or provide a written response to the Show Cause Letter.[20]
The Applicant attended the show cause meeting with his support person, however, it was agreed at the meeting that the Applicant would provide a written response to the Show Cause Letter.
On 2 February 2022, the Applicant replied to the Show Cause Letter, referring to various statutes and decisions, and submitting that the Covid-19 Policy is “unlawful and unreasonable”, and that his current employment contract does not require him “to undertake a medical procedure or provide [his] personal and private medical information”.[21] Notably, the Applicant claimed that the Respondent’s Covid-19 Policy and “current polices introduced and the assumption of authority to enforce such unlawful and unreasonable polices are in breach of the following laws and High Court Case precedents, and my inalienable rights, carrying serious liability for [InvoCare] which may result in civil and or criminal penalties for [InvoCare] as well as further claims for unfair dismissal, including but not limited to:
a)NSW Public Health Act 2010 Section 62 in relation to no public health order issued in the appropriate form and or format pursuant to the above cited section. Please note that proof of receipt of service or an affidavit of service will be required to provide proof of claim of a correctly issued public health order to both myself and InvoCare Australia Pty Ltd.
b)Pursuant to the Privacy Act 1988(Cth) that the request for access to and or the storing and or acquisition of my personal and private medical information is a breach of the Privacy Act 1988(Cth):
c)That the act of discriminating against me is a breach of the Disability and Discrimination Act 1992(Cth)
d)That the ICCPR’s ( International Covenant on Civil and Political Rights) articles 5(1), 6(1), 7 8(3a), 17(1) and 26 are being breached pertaining to my rights as recognised at international law
e)UN Universal Declaration of Human Rights 1948
f)The Constitution of the Commonwealth Australia 1900, 1901, Sections 51, 51xx, 51xxiii(a), 109, and 116 if religious exemptions apply
g)Bio Securities Act 2015 (Cth) including but not limited to: sections 8, 60,61,89,90,91,92,93,94,95,580-585
h)Criminal code act 1995 (Cth)
Rome Statute 1998 and the United Nations Liber code Art. 10, 13, 26
j)Crimes Act 1914(Cth) Sections 3ZZIA, 4C, 15”.[22]
The Applicant indicated that he may adhere to the Covid-19 Policy subject to being provided with further particulars regarding the safety, effectiveness and lawfulness of the Respondent’s Covid-19 Policy.[23] Specifically, the Applicant requested that the Respondent address eleven of his concerns “in full and in writing”.[24]
The Applicant was invited to attend a Microsoft Teams meeting on 7 February 2022 to discuss his responses to the Show Cause Letter, and the outcome of the show cause process. The Applicant declined this invitation, and requested that all communication to him be in writing.[25]
As a consequence of the Applicant’s failure to comply with the Respondent’s Covid-19 Policy, and due to his inability to perform his role, the Applicant was terminated by letter on 9 February 2022 (sent by email).[26]
Statutory provisions
Section 385 of the Act reads:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
The parties are not in dispute as to the following:
a)The Applicant is a person protected from unfair dismissal within the meaning of s.382 of the Act.
b)The Applicant had been “dismissed” by the Respondent within the meaning of s.386 of the Act.
c)The Small Business Fair Dismissal Code (as provided for in s.388 of the Act) does not apply.
d)The Applicant’s dismissal was not a case of genuine redundancy within the meaning of s.389 of the Act.
I accept and make findings consistent with the foregoing position of the parties.
Section 387 of the Act provides what matters must be taken into account by the Commission in determining whether a dismissal was harsh, unjust or unreasonable:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 turn to consider each of these matters.
s.387(a) — Whether there was a valid reason for the Applicant’s dismissal which is related to his capacity or conduct
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”, and not “capricious, fanciful, spiteful or prejudiced”.[27] 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.[28] The question the Commission must address is whether there was a valid reason for an employee’s dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).[29]
Where a dismissal relates to an employee’s conduct, the reason for dismissal might be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur, or it did occur, but did not justify termination.[30] The question of whether alleged conduct took place, and what it involved, is to be determined by the Commission on the basis of the evidence in the proceedings before it.[31]
Where a dismissal relates to an employee’s capacity (i.e. where the reason is associated or connected with the ability of an employee to do their job),[32] and there is a dispute as to whether the employee possessed the requisite capacity to perform their job, it is for the Commission to resolve that disputed issue as a matter of fact.[33]
The Respondent submits that it had a valid reason to terminate the Applicant’s employment on the basis that he failed to adhere to its Covid-19 Policy, and was thus unable to perform the inherent requirements of the role that he was employed to perform.[34]
In his affidavit, the Applicant submitted the following on the issue of “valid reason”:
“15. NSW Public Health Act 2010 Section 62 in relation to no public health order issued in the appropriate form and or format pursuant to the above cited section. Please note that proof of receipt of service or an affidavit of service will be required to provide proof of claim of a correctly issued public health order to both myself and lnvoCare Australia Pty Ltd.
16. Pursuant to the Privacy Act 1988(Cth) that the request for access to and or the storing and or acquisition of my personal and private medical information is a breach of the Privacy Act 1988(Cth)
17. That the act of discriminating against me is a breach of the Disability and Discrimination Act 1992(Cth)
18. That the ICCPR's (International Covenant on Civil and Political Rights) articles 5(1), 6(1), 7 8(3a), 17(1) and 26 are being breached pertaining to my rights as recognised at international law
19. UN Universal Declaration of Human Rights 1948
20. The Commonwealth Constitution of Australia 1900, 1901, Sections 51, 51xx, 51xxiii(a), 109, and 116 if religious exemptions apply
21. Bio Securities Act 2015 (Cth) including but not limited to: sections 8, 60,61,89,90,91,92,93,94,95,580-585
22. Criminal code act 1995 (Cth)
23. Rome Statute 1998 and the United Nations Liber code Art. 10, 13, 26
24. Crimes Act 1914(Cth) Sections 3ZZIA, 4C, 15
25. [2015] HCA 11; 256 CLR 171; 89 ALJR434; 318ALR 1; 151 ALO 28 High Court case involving OLD Rail pertaining to their registration under the corporations act ( Commonwealth jurisdiction) via their ABN prohibiting them in accordance with 51xx and 109 of the Constitution of the Commonwealth of Australia 1900/1901from enforcing state law on their employees, contractors or staff.
26. [1956] HCA 10;94 CLR254 High court case referred to as R v Kirby or the ex-parte boilermakers case pertaining to the separation of powers for statutory bodies and the legislative, executive and the judiciary, where it was ruled upon by the high court that bodies or entities that are not part of the executive, legislative or judiciary can not act as such.
27. [1996] HCA 57; 186 CLR 71;70 ALJR 772; 138 ALR 259; 43 ALO 481 Breen v
Williams HCA in relation to informed consent refer to paragraphs 3-7 in the transcripts
28. [1990] HCA 26; 170 CLR 104; 64 ALJR 384; 93 ALR 483; 48 A Crim R 246 GEORGE v. ROCKETT”[35]
The Applicant’s representative made similar oral submissions at the Hearing,[36] and also submitted that:
a) the lawfulness and reasonableness of the Respondent’s Covid-19 Policy was contentious as the Respondent relied upon a Public Health Order in making this policy, but has failed to provide evidence to justify the legitimacy of the Public Health Order pursuant to ss.7,8,9 and 62 of the Public Health Act 2010 (NSW).[37]
b) the Covid-19 Policy was in breach of the Applicant’s employment contract. In this regard:
·the Covid-19 Policy, or other terms enabling its enforcement, were not present in the Applicant’s original employment contract, or its subsequent variations; and/or
·the Covid-19 Policy was unlawful and/or unreasonable.
A lawful direction is one which falls within the purview of an employee’s employment.[38] Determining the reasonableness of a direction is question of fact, having regard to all the circumstances.[39] The requirement for an employee to comply with the reasonable and lawful directions of his or her employer is implied into every contract of employment (i.e. such a requirement need not be expressly stated in a written employment contract).[40]
The Applicant has produced no evidence, and relied upon no argument, to support any suggestion that a term requiring him to comply with the Respondent’s reasonable and lawful directions is not implied (as a matter of law) into his employment contract with the Respondent. I therefore find that the Applicant was required, during his employment with the Respondent, to comply with the Respondent’s reasonable and lawful directions.
The stated purpose of the Respondent’s Covid-19 Policy is “to facilitate the protection of the health and safety of all people who attend any of InvoCare’s Australian workplaces and the communities [the Respondent] serve.”[41] In the context of the Covid-19 pandemic, client facing employees in the funeral industry are (and have been) considered at high risk of COVID-19 infection and transmission (hence previous public health orders that require client facing employees in the funeral industry to be vaccinated in New South Wales). In light of this background, and the nature of the Applicant’s role, I am satisfied that the Respondent’s direction to the Applicant to comply with its COVID-19 Policy reasonably fell within the scope of the Applicant’s employment.
The Applicant asserts that the Respondent’s Covid-19 Policy breaches various statutes and principles. These assertions were not particularised in the Applicant’s written submissions, and wholly lacked specificity at the hearing. I find that these submissions do not clearly demonstrate any unlawfulness or unreasonableness of the Respondent’s Covid-19 Policy. There is nothing unlawful or ‘illegal’ about becoming vaccinated, or possessing a valid medical contraindication.[42]
The Applicant’s submission that the Respondent’s Covid-19 Policy is unlawful as there is no evidence of a Public Health Order being made in the correct form is erroneous. The Respondent relies upon an implied contractual power to issue lawful, reasonable directions, and not a Public Health Order, in requiring the Applicant to comply with its COVID-19 Policy. It follows that the Applicant’s submissions regarding s.109 of the Constitution must fail, in that the Respondent has not relied upon a state or federal law when issuing the Covid-19 Policy, but rather a contractual right.
At the Hearing, the Applicant accepted that the alleged breaches of the Privacy Act 1988 (Cth) (Privacy Act) do not arise in this matter.[43] Evidence of vaccination status can be obtained in accordance with the Privacy Act and privacy principles, and there is no evidence to suggest that the Respondent’s directions pursuant to its Covid-19 Policy were not made in accordance with same.[44] Further, the Applicant’s argument that the direction to adhere to the Respondent’s Covid-19 Policy was discriminatory is flawed in that the status of being unvaccinated is not a protected attribute under anti-discrimination legislation.[45]
In directing the Applicant to adhere to the Covid-19 Policy, the Respondent was required to consult with Applicant in accordance with the enterprise agreement[46] and WH&S consultation obligations. The Applicant submitted that the Respondent failed to adequately consult with the Applicant. In this regard, I note the following oral submissions of the Applicant’s representative:
“First, we will just get started with we don't believe that there was any proper, fair or reasonable consultation that actually occurred. Any consultation that Darryl attempted to engage in was very one sided. None of his questions or queries were answered or even honoured in any way, shape or form, for lack of better wording, for any of his queries or concerns in relation to this, which we believe to be in breach of duty of care by InvoCare.
The consultation process was almost non-existent and, again, a consultation requires an open dialogue between the parties, not a cookie-cutter cut and paste response via email that just says the same thing, but doesn't address any questions or concerns, and that doesn't qualify as a consultation.”[47]
I also note the following statement from the Respondent:
“We did do consultation. There was actually a lot of correspondence as in one on one. That was either via Teams or phone with Mr Kubica. We also had information sent out by our COVID task force, which sent out regular updates. You would have also seen that we even had Dr Coatsworth, who was an expert in COVID, we had him online doing a presentation about COVID as well and vaccinations. We tried every avenue to make sure that every employee got the correct information. So, there was definitely a consultation process when it came to the policy. The union were definitely on board and, as I mentioned, we went through consultations from October regarding our policy. We believe we have done this in a very, very fair manner.
The company has treated every employee exactly the same. We have consulted. We have never, ever forced anyone to get a vaccination. We have allowed them to make up their own decision or their own mind.”[48]
Taking into account the principles of adequate consultation, including that a consultation process must be real, and not “a merely formal or perfunctory exercise”, and that a right to be consulted with, though a valuable right, is not a right of veto, I am satisfied that the Respondent lawfully and properly consulted with the Applicant.[49] In making this determination, I note that over a period of several months, the Respondent provided information to its employees (including the Applicant) concerning the proposed implementation of its Covid-19 Policy. The Covid-19 Policy was endorsed only after consultation, including with Health and Safety Committees, and any feedback was reviewed and considered in the final policy document.[50] The Respondent engaged in separate, nuanced discussions with the Applicant regarding the Covid-19 Policy, enabling him to express his views.
The Applicant’s representative raised other concerns regarding the reasonableness of the Respondent’s Covid-19 Policy, including issues of bodily autonomy and/or integrity, inalienable rights (unspecified), and the safety and efficacy of Covid-19 vaccinations.[51]. I note that the Applicant’s representative made the following remark: “The threat of loss of employment or be vaccinated is hardly done free of coercion or duress or something that anyone could enter into freely and voluntarily under such circumstances.”[52] The Respondent said the following regarding the reasonableness of the Covid-19 Policy:
“The whole reason for this particular policy was to make sure that we keep our employees and also the vulnerable families that come to our sites on a daily basis safe. That was the reason for the COVID policy.”[53]
In determining reasonableness, all factors should be considered and weighed. It is not necessary to show that the direction in contention is the preferable or most appropriate course of action or in the best interest of the parties.[54] I adopt the following passage from Beech-Jones CJ at CL in Kassam v Hazzard[55], which has been cited with approval by the Full Bench of this Commission in Mt Arthur[56]:
“It can be accepted that there is room for debate at the boundaries of what external factors might vitiate a consent to medical treatment so as to render the treatment a battery and a violation of a person’s right to bodily integrity. [...] People may choose to be vaccinated or undertake some other form of medical procedure in response to various forms of societal pressure including a law or a rule, an employment condition or to avoid familial or social resentment, even scorn. However, if they do so, that does not mean their consent is vitiated or make the doctor who performed the vaccination liable for assault. So far as this case is concerned, a consent to a vaccination is not vitiated and a person’s right to bodily integrity is not violated just because a person agrees to be vaccinated to avoid a general prohibition on movement or to obtain entry onto a construction site. Clauses 4.3 and 5.8 of [Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No. 2) 2021 (NSW)] do not violate any person’s right to bodily integrity any more than a provision requiring a person undergo a medical examination before commencing employment does.”[57]
Whilst I accept that issues of bodily integrity are significant, the Respondent’s Covid-19 Policy was implemented to manage real and present risks to health and safety in a collective sense. The risks of taking a vaccine must be weighed against the benefits in reducing transmission, contraction, illness and death.[58]
Having regard to the foregoing, I am satisfied that the direction to be vaccinated or present evidence of a valid medical contraindication, pursuant to the Covid-19 Policy, was a lawful and reasonable direction. I also find that the Applicant’s non-compliance with that direction meant that he was unable to perform the inherent requirements of the role that he was employed to perform, and that this was a valid reason for the Applicant’s dismissal. This finding weighs against any ultimate finding that the Applicant’s dismissal was harsh, unjust, or unreasonable.
s.387(b) — Whether the Applicant was notified of the valid reason; s.387(c) — Whether the Applicant was given an opportunity to respond to any reason related to his capacity or conduct
Proper consideration of s.387(b) of the Act requires a finding to be made as to whether the Applicant “was notified of that reason” and given an opportunity to respond to same. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a) of the Act.[59] 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, and in explicit, plain and clear terms.[60]
In order to be given an opportunity to respond for the purposes of s.387(c), the employee must be made aware of allegations concerning their capacity or conduct so as to be enable them to respond to the allegations and have an ‘opportunity’ to defend themselves.[61]
I have already found that the Respondent had a valid reason to dismiss the Applicant. The Applicant was notified of that reason pursuant to the Show Cause Letter dated 31 January 2022. I therefore consider the criterion under s.387(b) of the Act to be a neutral consideration in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable.
The Respondent, in the Show Cause Letter, gave the Applicant an opportunity to respond to the reason for his dismissal (via his attendance at the show cause meeting, and by providing the Applicant with an opportunity to respond to the Show Cause Letter in writing).[62] The Applicant attended the show cause meeting on 31 January 2022, and replied to the Show Cause Letter in writing on 2 February 2022.[63]
The Applicant was thus notified of the proposed reason for his dismissal, given an adequate opportunity to respond (which he did), and was advised in no uncertain terms (prior to providing his response) of the consequences that would follow (i.e. dismissal) if his response was not considered (by the Respondent) to be satisfactory. I therefore consider the criterion under s.387(c) of the Act to be a neutral consideration in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable.
s.387(d) — Whether there was any unreasonable refusal by the Respondent to allow the Applicant to have a support person present to assist at any discussions relating to dismissal
Section 387(d) of the Act relates only to discussions concerning an employee’s dismissal, and requires the Commission to take into account “any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal”. There is no obligation upon an employer to allow their employee to have an “advocate” or “representative” present. A refusal to allow the employee to have an advocate present is not a factor that the Commission is required to take into account under s.387(d) of the Act.[64]
Both parties agree that the Applicant was invited to bring a support person to the show cause meeting on 31 January 2022, and that the Applicant attended that meeting with Mr Friedlaender, his paid agent. I therefore consider the criterion under s.387(d) of the Act to be a neutral consideration in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable.
s.387(e) — Whether the person had been warned about that unsatisfactory performance before the dismissal
The Applicant’s dismissal does not concern unsatisfactory performance. I therefore treat this criterion as a neutral consideration.
s.387(f) and (g) — The degree to which the size of the Respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal. 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
Whilst neither party directly addressed these criteria, I note that the Respondent is a medium to large organisation with human resources personnel.[65] I am satisfied that neither the size of the Respondent’s enterprise, nor any absence of human resources personnel, adversely impacted upon the procedures followed by the Respondent to dismiss the Applicant. I therefore consider the criteria under ss.387(f) and (g) of the Act to be neutral considerations in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable.
s.387(f) — Any other matters that the Commission considers relevant
The Applicant submitted that he was an “honourable and loyal employee” of the Respondent for over 18 years.[66] This was not disputed by the Respondent. However, in my view, this does not weigh in favour of a finding that the Applicant’s dismissal was harsh, unjust or unreasonable. The Applicant was dismissed because of his inability to meet the inherent requirements of his role, flowing from his failure to follow a reasonable and lawful direction. Neither the Applicant’s loyalty, performance or length of service alter this fact.
The Applicant also suggested that the Respondent’s Covid-19 Policy (or its subsequent variations) were revoked four months following his termination.[67] The Respondent contested this submission, stating that whilst the Respondent had chosen to pause the requirement for employees to receive a third dose of the Covid-19 vaccination, employees were still required to be double vaccinated pursuant to the Covid-19 Policy.[68] I do not need to resolve this issue given that my task is to assess the Applicant’s dismissal in terms of the requirements that applied at the time of his dismissal, not four months after.
Having considered the evidence and submissions of the parties, I do not consider that any of the “other matters” weigh in favour of a finding that the Applicant’s dismissal was harsh, unjust or unreasonable. I treat each of the “other matters” (s.387(h)) raised by the Applicant in these proceedings as neutral considerations.
Conclusion
In considering whether the Applicant’s dismissal was “harsh, unjust or unreasonable” the Commission is required to consider each of the matters in s.387 of the Act to the extent relevant.[69] Those matters must be considered as part of an overall assessment. Each assessment must be made on its merits. That assessment is to be based upon the ordinary meaning of the words in the Act, in their statutory context. Context includes the object stated in s.381(2) of the Act that reads:
“…the manner of deciding on and working out such remedies are intended to ensure that a “fair go all round” is accorded to both the employer and the employee concerned.”
In arriving at an overall assessment, the statutory considerations must be applied in a practical, common-sense way to ensure that the employer and the employee are each treated fairly.[70]
I have found a valid reason for the Applicant’s dismissal (s.387(a)). I have also found that none of the considerations under ss.387(b) to (h) of the Act weigh in favour of a finding that the Applicant’s dismissal was harsh, unjust or unreasonable.
Overall, I find that the Applicant’s dismissal was not unfair. Accordingly, an order dismissing the Application filed by the Applicant in these unfair dismissal proceedings will be issued contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
Mr Zev Friedlaender appeared for the Applicant
Ms Fiona Neumann, Human Resources Business Partner, appeared for the Respondent.
[1] Given that the Applicant filed his Application on 4 March 2022, it had been filed one day outside of the 21-day statutory time limit (s.394(2)). A hearing was held on 22 April 2022 to deal with the Applicant’s out of time Application. An Order was made on 29 April 2022, pursuant to s.394(3) of the Act, granting an extension of time for the Application to be filed on 4 March 2022 (PR741101).
[2] Form F3 dated 25 March 2022.
[3] Ibid.
[4] Ibid.
[5] Form F3 dated 25 March 2022.
[6] Ibid, appended letter dated 28 October 2021.
[7] Applicant’s affidavit dated 8 May 2022.
[8] Form F2 dated 4 March 2022, appended letter dated 15 November 2021.
[9] Form F3 dated 25 March 2022, appended Covid-19 Policy.
[10] Ibid.
[11] Form F3 dated 25 March 2022, appended letter dated 3 December 2021.
[12] Form F2, appended letter dated 3 December 2021. Form F3 dated 25 March 2022, appended letter dated 3 December 2021. Applicant’s affidavit dated 8 May 2022.
[13] Ibid, appended letter dated 17 December 2021. Form F3 dated 25 March 2022, appended letter dated 17 December 2021. Applicant’s affidavit dated 8 May 2022.
[14] Form F2 dated 4 March 2022, appended letter dated 13 January 2022.
[15] Ibid.
[16] Ibid, appended email dated 18 January 2022.
[17] Form F3 dated 25 March 2022., appended email dated 20 January 2022.
[18] Ibid.
[19] Applicant’s affidavit, dated 8 May 2022, including video attachment.
[20] Form F2 dated 4 March 2022, appended letter dated 31 January 2022.
[21] Ibid, appended letter dated 2 February 2022. Form F3 dated 25 March 2022., appended email dated 2 February 2022.
[22] Ibid.
[23] Ibid.
[24] Ibid.
[25] Applicant’s affidavit dated 8 May 2022.
[26] Form F3 dated 25 March 2022, appended termination letter dated 9 February 2022. Applicant’s affidavit dated 8 May 2022.
[27]Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (2000) IR 371, at 373.
[28]Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, at 685.
[29] Ibid.
[30]Edwards v Justice Giudice (1999) 94 FCR 561; (1999) 169 ALR 89; [1999] FCA 1836, at [7].
[31]King v Freshmore (Vic) Pty Ltd, Print S4213, [2000] AIRC 1019, at [23]-[24].
[32]Crozier v AIRC (2000) 50 AILR 4-488; [2001] FCA 1031, at [14].
[33]See more broadly: Jetstar Airways Ltd v Neeteson-Lemkes[2013] FWCFB 9075; CSL Limited v Chris Papaioannou[2018] FWCFB 1005.
[34] Form F3 dated 25 March 2022.
[35] Applicant’s affidavit dated 8 May 2022.
[36] Transcript, PN120-PN325.
[37] Ibid, PN32-PN35.
[38] Price v Mouat (1862) 11 CBNS 508. Bampton v Viterra Ltd (2015) 123 SASR 80; 251 IR 261; [2015] SASCFC 87; BC201505246; Mackie v Wienholt (1880) 5 QSCR 211. Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal[2021] FWCFB 6059, at [68]-[70].
[39] R v Darling Island Stevedore & Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601, at 622 (per Dixon J), as endorsed by the Full Bench of this Commission in Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal[2021] FWCFB 6059.
[40] R v Darling Island Stevedore & Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601, at 621-622. See also Castlemaine Tooheys Ltd v Carlton & United Breweries Ltd (1987) 10 NSWLR 468, at 487; Concut Pty Ltd v Worrell (2000) 75 ALJR 312 at 317, at [23].
[41] Form F3 dated 25 March 2022, appended Covid-19 Policy.
[42] Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal[2021] FWCFB 6059, at [85].
[43] Transcript, PN194.
[44] Construction, Forestry, Maritime, Mining and Energy Union & Ors v BHP Coal Pty Ltd T/A BHP Billiton Mitsubishi Alliance / BMA & Ors[2022] FWC 81, [151]-[177]. Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal[2021] FWCFB 6059.
[45] Isabella Stevens v Epworth Foundation[2022] FWC 593, at [26].
[46] Invocare Australia Pty Limited NSW Funerals Industry Enterprise Agreement 2019, part 2.
[47] Transcript, PN21-PN23.
[48] Ibid, PN327-328.
[49] Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal[2021] FWCFB 6059, at [98]-[111].
[50] Form F3 dated 25 March 2022, appended letter dated 3 December 2021.
[51] Transcript, PN295-296, PN316 -PN337.
[52] Ibid, PN335.
[53] Ibid, PN329.
[54] Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal[2021] FWCFB 6059, at [77].
[55] [2021] NSWSC 1320.
[56] Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal[2021] FWCFB 6059, at [218].
[57] [2021] NSWSC 1320, at [63].
[58] Ibid. See also Gregory John Casper v New Horizons[2022] FWC 1269, at [51].
[59] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, at [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, at [55]; Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, at 151.
[60] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
[61] Wadey v YMCA Canberra [1996] IRCA 568.
[62] Form F2 dated 4 March 2022, appended letter dated 31 January 2022.
[63] Ibid, appended letter dated 2 February 2022.
[64] Victorian Association for the Teaching of English Inc v de Laps[2014] FWCFB 613, at [52].
[65] Form F3 dated 25 March 2022. Respondent’s submissions dated 17 May 2022.
[66] Form F2 dated 4 March 2022.
[67] Applicant’s affidavit dated 8 May 2022.
[68] Respondent’s submissions dated 17 May 2022.
[69] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, at [14]; Smith v Moore Paragon Australia Ltd PR915674, at [69] (AIRC, 21 March 2002).
[70] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (as cited in Potter v WorkCover Corporation (2004) 133 IR 458 per Ross VP, Williams SDP, Foggo C, and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, 2 December 2010, per Kaufman SDP, Richards SDP and Hampton C, at [36]).
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