David Damevski v Westpac Banking Corporation
[2022] FWC 1553
•8 SEPTEMBER 2022
| [2022] FWC 1553 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
David Damevski
v
Westpac Banking Corporation
(U2022/2784)
| DEPUTY PRESIDENT CROSS | SYDNEY, 8 SEPTEMBER 2022 |
Application for an unfair dismissal remedy
Mr David Damevski (the Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy (the Application) in relation to his dismissal from employment with Westpac Banking Corporation (the Respondent/Westpac). The Application was lodged with the Commission on 4 March 2022.
I conducted a Directions Hearing in this matter on 28 April 2022. At the Directions Hearing, directions were issued for the filing of materials by the parties (the Directions), and the matter was set down for hearing on 20 June 2022.
The parties complied with the Directions. In particular:
· On 13 May 2022, the Applicant filed an Outline of Submissions, a statement of the Applicant, and a statutory declaration of Ms K Hoad;
· On 27 May 2022, the Respondent filed an outline of submissions, and witness statements of Mr Daniel Sweeney, Senior Manager of the Continuous Improvement, Consumer and Small Business of the Respondent, Ms Kathryn Marsh-Clutton, a Content Developer in the Continuous Improvement, Consumer and Small Business team of the Respondent, and Mr Neil Harrison, Group Head of Employee Care with the Respondent; and
· On 6 June 2022, the Applicant filed an outline of submissions in reply, and a statement of Ms Eva Zhang.
At the hearing on 20 June 2022, the Applicant was cross-examined. In light of objections taken by the Respondent,[1] the Applicant did not read the statutory declaration of Ms Hoad or the statement of Ms Zhang. In relation to the Respondent’s evidence, the statements of Mr Sweeney, Ms Marsh-Clutton and Mr Harrison were all read without any objections and without any of those deponents being required for cross-examination.
The Applicant’s Evidence
The Applicant worked for the Respondent for a period of over five years in a variety of positions and roles. Those roles were:
(a) Customer Service Advisor from January 2017 to December 2018.
(b) Fraud Officer from January 2019 to October 2019.
(c) Consultant from October 2019 to August 2021.
(d) Content Developer from August 2021 to March 2022.
The key issue of controversy was the terms upon which the Applicant was offered and accepted the role of Content Developer in June 2021. The Applicant’s evidence regarding his manner of performance of his previous role, and the terms upon which he accepted the Content Developer role, was as follows (noting that the Applicant conceded that the phrase “my role changed to a permanent remote worker” in [3] was conceded to be no more than the Applicant’s opinion)[2]:
“2. As a Consultant in the Policy and Procedure team, I was a remote worker from March 2020 till commencing my new role in August 2021 due to the business continuity plan put in place during COVID-19 events. Prior to this I went into the office and had my own desk and telephone with the entire team being located in NSW. I performed my role exceeding expectations during this time and had no faults as per written performance reviews and calls with my then manager Donna Hicks.
3. After my promotion to a Content Developer in the Customer Engagement and Continuous Improvements team in August 2021, my role changed to a permanent remote worker as my manager, Daniel Sweeney, was located in QLD and there was no reason for me to go into an office due to the team collaborating virtually. Further to this, the entire team was located in various states including VIC, QLD, SA and WA. This was also the way the team operated prior to the COVID-19 events.
4. In June of 2021, I had a conversation during and after my video interview for the role of Content Developer with my future manager Daniel Sweeny in regards to working arrangements. The interview also had my future colleague at the time Kathryn Marsh- Clutton sitting in. Daniel Sweeny confirmed that due to the team being spread out across the country, the role was completely remote as was the case prior to the COVID-19 events. I confirmed with him what attendance was required in the office if any at all and he replied ‘If you want to go in, you can go in otherwise we won’t ever force you’. Directly after this call, I called my current manager Donna Hicks to explain the situation and she also asked about the role and if it was a permanent remote role and confirmed again this was the case.”
Mr Sweeney and Ms Marsh-Clutton took issue with the above evidence of the Applicant, and where I have had to prefer a version of statements or events, I have preferred the evidence of Mr Sweeney and Ms Marsh-Clutton as contained in their statements. That is because:
(1) The Applicant did not take issue with the Respondent’s evidence by way of a statement in reply, notwithstanding that the Directions availed him of such an opportunity;
(2) The Applicant did not seek to test the evidence of Mr Sweeney or Ms Marsh-Clutton by way of cross-examination; and
(3) Having observed the Applicant give evidence, I found the Applicant prone to give answers laced with submissions that he saw as favourable to the case he thought would succeed, rather than directly, clearly and truthfully attending to the questions asked of him.[3]
Background Facts
The Applicant commenced employment with the Respondent as a Customer Service Advisor in January 2017. Between 21 August 2021 and 4 March 2022, the Applicant was employed as a Content Developer in the Continuous Improvement, Consumer and Small Business team (the Team) of the Respondent, and reported directly to Mr Sweeney in that role.
The Team consists of 13 team members (including 8 Content Developers), who reported to Mr Sweeney in his role as Senior Manager of the Team. Mr Sweeney is based in Queensland, with members of the Team located around Australia, including in NSW, Victoria, Tasmania, and Western Australia.
While Mr Sweeney supported flexible work arrangements, members of the Team have always been required to be attached to a Westpac office and remain available to attend the office where required by the situation, Mr Sweeney and/or Westpac policy. No members of the Team, including the Applicant, have ever been offered permanent remote working arrangements either before the COVID-19 pandemic, or since the pandemic began.
Prior to joining the Team, the Applicant worked from an office of the Respondent in Kogarah.[4]
On 9 June 2021, Mr Sweeney and Ms Marsh-Clutton interviewed the Applicant for the role of a Content Developer in the Team. While Mr Sweeney promoted the flexibility of the Team, he did not tell the Applicant that he would never be required to go into the office. The Applicant was offered a permanent role as a Content Developer in the Team and started in that role on 2 August 2021. The Applicant’s role was listed in the Westpac internal HR management system, PeopleHQ, as being attached to the Kogarah office. At the time the Applicant joined the Team, all Content Developers were working from home on a full-time basis due to COVID-19 restrictions.
Prior to October 2021, the Applicant had a conversation with Mr Sweeney about him potentially moving to Byron Bay. That was not something Mr Sweeney was opposed to, however any move to another part of the country would have simply meant that the Applicant’s attached office would be changed in Westpac’s system so that he would have an office to attend as required once COVID-19 restrictions lifted.
In October 2021, Westpac announced that it was considering the implementation of an Entry to Workplace policy (the ETW Policy) in response to the COVID-19 pandemic. As part of the draft ETW Policy, Westpac confirmed that it was proposing to introduce a requirement that workers be vaccinated against COVID-19 as a condition of entry to the workplace. Mr Sweeney had regular conversations with the Applicant about the ETW Policy.
The Respondent conducted detailed consultation before introducing the ETW Policy. In summary, that consultation involved the following consultation mechanisms:
(a) direct engagement with workers (for example, through communication to staff, updates on Westpac's intranet, including updates to the FAQs, and town hall meetings);
(b) dedicated consultation mechanisms available for consultation on this issue (for example, HR Service Centre and Entry to Workplace Policy Consultation Feedback Form);
(c) consultation through usual consultation methods (for example, health and safety representatives (HSRs) and Health and Safety Committees and Champions, where they are in place);
(d) direct engagement with the Finance Section Union (FSU); and
(e) direct engagement with employees by their People Leaders - People Leaders were supported by People Leader briefings and Q&A sessions.
On 26 October 2021, Westpac confirmed that the ETW Policy would be implemented and all employees would be required to be fully vaccinated to enter a Westpac Group workplace by certain dates. At the time of announcement, employees based in NSW, as the Applicant was, were required to be fully vaccinated by 1 December 2021.
From around November 2021, Westpac employees were asked to show proof of their vaccination status to their people leaders to confirm compliance with the ETW Policy.
Around this time, Mr Sweeney raised with the Applicant that he understood that the Applicant may have some concerns regarding the ETW policy and offered to be a support person for him, and be a conduit between the Applicant and HR and the corporate leadership team on the issue. The Applicant advised Mr Sweeney that he did not think being required to disclose his vaccination status was correct due to privacy reasons, and that he did not feel the ETW Policy applied to him because he had been able to do his role primarily from home.
Mr Sweeney took the Applicant’s concerns to a corporate leadership team Q&A session regarding implementation of the ETW Policy and the process for sighting employees’ proof of vaccination. Mr Sweeney was advised that regardless of existing work from home arrangements, there would always be circumstances where staff are required to work from the office for training and team meetings. That was consistent with Mr Sweeney’s expectations of all Content Developers in the Team. Mr Sweeney relayed this response to the Applicant in a conversation in about December 2021.
On 4 December 2021, Mr Sweeney held a meeting with the Applicant to confirm whether he intended to comply with the ETW Policy and consent to disclosing his vaccination status. During that meeting the Applicant refused to consent to provide his vaccination information. That refusal triggered more formal discussions between Mr Sweeney and the Applicant regarding his compliance with the ETW Policy. Mr Terry Smith, HR Specialist with Westpac’s HR Case Management, Employee Care team, was assigned to assist Mr Sweeney during the ETW Policy non- compliance process.
On 12 January 2022, the Applicant sent an email to Mr Smith and Mr Sweeney raising concerns. That email was as follows:
“Dear Terry,
Dan Sweeney has been liaising with myself with regards to the Entry to Workplace Policy. I have a few questions below that I would like answered. I also appreciate some of these questions may require senior leader intervention and happy to speak to them directly.
About Me:
• I work completely Work from Home
• There is no physical interaction between me and any other staff.
• I am not required to attend the workplace for any matter whatsoever.
• I am in Sydney and my leader is in Brisbane.
• The team is scattered throughout Australia.Why am I required to provide any medical information for a policy which does not affect me? I have no intention nor does my role require me to attend or enter a Westpac Group workplace within Australia.
Workplace Health and Safety
Under section 19 of the Work Health and Safety Act 2011 (NSW) (WH & S Act) provides;"(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:
(a) workers engaged, or caused to be engaged by the person; and
(b) workers whose activities in carrying out work are influenced or directed by the person; while the workers are at work in the business or undertaking."Throughout the Entry to Workplace Policy attached, it clearly states "fully vaccinated to enter a Westpac Group workplace." According to this statement you are requesting me to be vaccinated as a condition of employment/entry to the workplace. Can you please provide me with the Risk Assessment (as that term is used in the context of the WH & S Act) you have completed for me (as an individual) regarding the vaccination you are requiring me to have? I note that any such assessment must have been made without considering my individual medical circumstances and without a medical consultation.
Privacy Act
Can you please provide me with the Westpac Group's exemption from the Privacy Act 1988 (Cth), or other document that provides exclusions to the Privacy Act 1988 (Cth) that the Westpac Group is relying upon to require providing personal medical information as a condition of entry/employment? As the collection of health information, which includes vaccination status, is protected by section 16B Privacy Act 1988 (Cth) and is only permitted by consent and for the provision of a health service. Can you please provide to me in writing where in any contract I have signed that I have waived my right to consent of collecting this information? Can you also detail what health service you are providing me?
Kind regards,”
On 3 February 2022, Mr Sweeney sent an email to the Applicant which responded to the concerns raised in the above email.
On 23 February 2022, Mr Sweeney sent an email to the Applicant to notify him that Mr Sweeney would be scheduling a formal meeting with him on 25 February 2022 to discuss his compliance with the ETW Policy.
On 25 February 2022, Mr Sweeney sent an email to the Applicant attaching a letter that gave the Applicant a final opportunity to comply with the ETW Policy.
On 28 February 2022, the Applicant sent an email to Mr Sweeney stating that his stance had not changed and that he would not be disclosing his personal medical information. The Applicant’s email set out further questions he requested be addressed.
On 3 March 2022, Mr Sweeney sent an email to the Applicant to notify him that he would be scheduling a meeting on 4 March 2022 to discuss the outcomes of his response to non-compliance with the ETW Policy. That meeting occurred by Microsoft Teams, and at 11.12am on 4 March 2022, Mr Sweeney sent an email to the Applicant attaching a letter detailing that meeting and advising him that his employment had been terminated.
On 7 March 2022, Mr Sweeney sent an email to the Applicant in response to a comment the Applicant had made about Tier 4 work during the outcome meeting.
Applicant’s Submissions
The Applicant submitted that the employment relationship between the Applicant and the Respondent is governed by the terms and conditions of the Westpac Group Enterprise Agreement 2019 (which the Applicant defined as the “employment contract”) which was varied by agreement to include work from home arrangements. The Applicant further submitted that the employment contract did not contain vaccination requirements (or any other requirements related to medical procedures or the divulging of medical records) despite the exposure employees generally have to communicable diseases such as Hepatitis, Influenza and common respiratory illnesses (including corona viruses).
The Applicant submitted that no employer can give a direction to undertake a medical procedure or request the provision of health information as a condition of employment. An employer’s direction to employees performing Tier 4 work is unlikely to be reasonable, given the limited risk of transmission of COVID-19. An employer requiring employees to provide “vaccination records” in order to continue their employment was submitted to be not established custom and practice in the workplace, trade or industry of the employer, or any other Australian employer prior to State Government “mandates” (with the limited exception of the Australian Defence Force).
The Applicant submitted that the introduction of a vaccination policy by an employer as a condition of continuing employment is clearly an attempt to unilaterally incorporate an essential term into a contract already on foot. If an employer wishes to introduce a new essential term as a condition of employment, they must do so by agreement.
The Applicant submitted that the clear, unambiguous and specific language used in section 16B of the Privacy Act, outlines a prohibition on requesting, recording and storing a person's "health information” unless the request is being made for the purpose of providing a health service to that person. The stipulations contained in section 16B (1)(b) are not relevant unless the stipulations in section 16B (1)(a) have been met.
The Applicant further submitted that State Public Health Orders are requiring employers to collect sensitive health information that is protected under the Privacy Act. This basis alone renders State Public Health Orders invalid and they should be ignored by employers.[5]
The Applicant noted that an employer has obligations to provide a safe workplace under State Workplace Health and Safety legislation. The Applicant submitted those obligations must be taken into account by an employer when giving employees directions under the terms of the employment contract. The Applicant submitted Covid-19 has not proven to be a significant threat to human health, particularly in Australia. Based on the ABS cause of death statistics alone, it was said to be simply untrue that “Covid- 19” is a risk to “public health” as it was the 38th leading cause of death (898 deaths) during the “height of the pandemic”. The Applicant’s submission was that it is simply false to suggest that “Covid-19” poses any greater risk than the Common Cold or Influenza. Only a very small portion of the general population was said to be at risk of becoming seriously ill from “Covid-19”; namely the elderly and the already sick and dying. This was said to be clearly demonstrated by the average age of death from “Covid-19” in Australia being 84 years of age, which was approximately 4 years above the average life expectancy.
Finally, the Applicant submitted that the vaccine companies’ trial and study documentation and the surveillance data from overseas, and in Australia, reveals numerous adverse health events linked to the vaccines including hypersensitivity, anaphylaxis, anxiety related reactions, increased triggers for auto-immune disease, thrombocytopenia and coagulation disorders, exacerbation of neurological events, Paralysis, convulsions and death.
The Applicant’s Reply Submissions repeated broadly the Applicant’s original submissions, and added a submission that referenced a minority decision of the Full Bench of the Commission,[6] and asserted that the Applicant’s dismissal for failing to have a Covid-19 vaccination breached the Disability Discrimination Act 1992 (the DD Act).
Respondent’s Submissions
The Respondent submitted that it was required to comply with its obligations and responsibilities under Work Health and Safety legislation to keep employees and customers safe and healthy, and in doing so it relied on, and complied with, the expert medical guidance of relevant State, Territory and Commonwealth authorities.
Westpac noted the observations of the Full Bench of the Commission in CFMMEU v Mt Arthur Coal[7], where a number of propositions in respect of the risks of COVID-19, and the measures of effective and efficient control including vaccination, which were described as “uncontentious”, were outlined.
Prior to introducing the ETW Policy, Westpac engaged in meaningful and extensive consultation with its employees, and on 26 October 2021, after formal consultation had ended, Westpac announced that the ETW Policy would be implemented and that, by certain dates depending on jurisdiction, all employees would be required to be fully vaccinated to enter a Westpac workplace.
The ETW Policy allows employees to submit a request for medical exemption to the vaccination requirements. The ETW Policy also enables employees to confirm that they do not intend to be vaccinated against COVID-19 for other non-medical reasons, or to decline to share their vaccination status.
Westpac and the Applicant exchanged numerous pieces of correspondence regarding the application of the ETW Policy. Westpac’s correspondence made it clear that the Applicant would need to be vaccinated to enter a Westpac workplace and that he was required to provide confirmation of his vaccination status. Further, the Policy and associated FAQs circulated by Westpac made clear that termination of employment was a possible outcome for individuals who chose not to comply with the Policy and/or failed to disclose their vaccination status as required.
Westpac submitted the directions for its employees to return to the office and be vaccinated is lawful and reasonable, notwithstanding that those workers had worked from home during the period of the pandemic. Further Westpac’s direction to its employees to provide proof of their vaccination status is lawful and reasonable to enable Westpac to ensure that it can meet its obligations under Work Health and Safety legislation to keep employees and customers safe and healthy. Those directions were consistent with the express and implied terms of the Applicant’s employment contract. The Applicant was not engaged on the basis that he could work entirely from home.
The Respondent submitted there is no basis for the Applicant’s assertion that requiring confirmation of his vaccination status in line with the ETW Policy amounted to a breach of the Privacy Act. This issue was considered by the Commission in Stevens v Epworth Foundation[8] where it was found that the collection, use, and storage of evidence of workers’ vaccination status could be achieved in line with the privacy principles, as well as in Construction, Forestry, Maritime, Mining and Energy Union and Ors v BHP Coal Pty Ltd t/a BHP Billiton Mitsubishi Alliance/BMA and Ors[9] where the Commission confirmed that an employer’s requirement to show proof of vaccination in order to enter a site did not breach the Privacy Act 1988. Westpac needed to know each of its employees’ vaccination status to ensure that it could comply with its obligations under Work Health and Safety legislation to keep employees and customers safe and healthy.
The Respondent further submitted there is no basis for the Applicant’s assertion that requiring workers to comply with the ETW Policy equates to requiring them to participate in a “medical trial procedure”. Plainly, the rollout of COVID-19 vaccination in Australia is not a trial, with vaccine use approved by the relevant medical authorities in Australia, namely the TGA, following extensive testing of the vaccines.[10]
The Respondent submitted that at no stage was it contemplated that employees would be entitled to work from home permanently and there is no evidence that any representations made to the Applicant altered that position.
Westpac noted that it complied with its obligation and consulted extensively with its workforce, and the Financial Services Union, prior to confirming any decision to implement its ETW Policy. That consultation was genuine, and as a direct consequence of worker engagement, and amendments to the Policy were made prior to its adoption and implementation.
Consideration
Initial matters to be considered
Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of the unfair dismissal application lodged by the Applicant (the Application). There is no dispute between the parties, and I am satisfied on the evidence, that:
(a) The Application was made within the period required in s 394(2) of the Act;
(b) The Applicant was a person protected from unfair dismissal;
(c)The Small Business Fair Dismissal Code did not apply to the Applicant’s dismissal; and
(d) The Applicant’s dismissal was not a genuine redundancy.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of that section in considering whether the Applicant’s dismissal was harsh, unjust or unreasonable. I will address each of these matters in turn below.
Valid reason (s 387(a))
General principles
It is necessary to consider whether the Respondent had a valid reason for the dismissal of the Applicant, although it need not be the reason given to the Applicant at the time of the dismissal. In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded”[11] and should not be “capricious, fanciful, spiteful or prejudiced.”[12]
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.[13] The question the Commission must address is whether there was a valid reason for the dismissal related to the Applicant’s capacity or conduct (including its effect on the safety and welfare of other employees).[14]
Consideration as to whether there was a valid reason
As noted above, the Full Bench of the Commission in CFMMEU v Mt Arthur Coal[15] (Mt Arthur Coal), outlined a number of propositions in respect of the risks of COVID-19, and the measures of effective and efficient control including vaccination. Those risks and measures, that were outlined in the decision dated 7 December 2021, were described as follows:
“There are a number of general factual propositions which are uncontentious and which we accept have been established on the evidence before us:
1. COVID-19 involves a high burden of disease, greater than influenza.
2. Any infected person is at risk of developing serious illness from the virus, which may lead to death.
3. The risks posed by COVID-19 have changed with the rapid rise of the Delta variant which is more infectious and has more severe health effects than previous variants.
4. All COVID-19 vaccines currently available in Australia are effective at preventing symptomatic infection, including from the Delta variant.
5. All COVID-19 vaccines currently available in Australia substantially reduce the risk of serious illness or death, including from the Delta variant.
6. All COVID-19 vaccines currently available in Australia are safe and any adverse effects are usually mild. There is a much higher risk of developing serious complications and dying from acquiring COVID-19.
7. An unvaccinated person is more likely to acquire COVID-19 from another unvaccinated person, rather than a vaccinated person.
8. While other measures, such as mask wearing, and social distancing, are demonstrated to reduce the transmission of COVID-19, the effectiveness of these measures depends on people applying them consistently or correctly. They do not provide a substitute for the constant protection offered by vaccines, nor do they reduce the risk of developing serious illness once somebody acquires an infection.
9. Vaccination is the most effective and efficient control available to combat the risks posed by COVID-19.
10. Even with high vaccine rates in the community, COVID-19 will remain a significant hazard in any workplace in which there is a possibility that people will interact or use the same common spaces (even at separate times). The Mine is clearly such a workplace.”
Chronologically, it is apparent that the Respondent’s consideration of risk and control occurred around the time the Full Bench distilled the above propositions.
Due to the COVID-19 pandemic, the Respondent was required to comply with its obligations to ensure the health and safety of its workers while at work in accordance with work health and safety legislation. This included consideration of available and effective means to control the risk of COVID-19 in workplaces controlled by the Respondent so far as was reasonably practicable. In light of the prevailing circumstances at the time of the introduction of the ETW Policy, the risks of COVID-19, and the measures of effective and efficient control including vaccination, I find the terms of the ETW Policy, and its introduction, to be unremarkable and reasonable.
The corollary of the above conclusion is that I reject the Applicant’s submissions regarding the risks and hazards arising from COVID 19, that stood in contrast to the propositions in respect of the risks of COVID-19 accepted by the Full Bench in Mt Arthur Coal, and were put in summary by the Applicant as follows:
“To put it simply, the Respondents Policy is purporting to control “risks and hazards” that are far less than the risk that is ordinarily posed by communicable diseases generally (influenza kills far more people EVERY YEAR) and the Respondent is using a “control” that has proven to be dangerous and ineffective. The Respondent is clearly in breach of its obligations under the Work Health and Safety Act by coercing employees into injecting themselves with a toxin that is known to cause serious injury and death.”
Prior to introducing the ETW Policy, the Respondent engaged in meaningful and extensive consultation with its employees, and after that consultation had ended, the Respondent announced that the ETW Policy would be implemented. Additionally, following the introduction of the ETW Policy, the Respondent regularly communicated to its employees about entry to workplace and vaccination expectations, and the likely return to the workplace for those who had been working from home.
As noted above, I have preferred the evidence of Mr Sweeney and Ms Marsh-Clutton as contained in their statements. I therefore have found that the Applicant was neither employed, nor recruited as a Content Developer in the Team on the basis that he would be entitled to work remotely with no requirement that he ever attend a Westpac workplace.
There is no basis for Applicant’s submission that requiring confirmation of vaccination status in line with the ETW Policy amounted to a breach of the Privacy Act. In Wendy Robinson and Others v Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne[16], Commissioner Bissett considered reliance on s.16B of the Privacy Act in a submission that that the Privacy Act prohibited the collection of health information unless a permitted health situation existed. Commissioner Bissett found:[17]
“A review of the APP [the Australian Privacy Principles] does not disclose that health information can only be collected in a “permitted health situation” as put by the Applicants. This is because health information is personal information (which can be collected in a permitted general situation) and is also sensitive information and APP clause 3.4 allows for the collection of sensitive information.
I do not consider s.16B of the Privacy Act to be of any assistance in this matter. Section
16B of the Privacy Act is a definition only. It does not provide assistance in determining if the actions taken by Metro Trains in accordance with the Directions have breached the Privacy Act.For these reasons I do not consider that there is conflict between the Privacy Act and the requirement of the Directions that the Applicants disclose their individual vaccination status to Metro Trains.”
I further note that in in Stevens v Epworth Foundation[18] the Commission found that the collection, use, and storage of evidence of employee’ vaccination status could be achieved in line with the privacy principles, and in Construction, Forestry, Maritime, Mining and Energy Union and Ors v BHP Coal Pty Ltd t/a BHP Billiton Mitsubishi Alliance/BMA and Ors[19] the Commission confirmed that an employer’s requirement to show proof of vaccination in order to enter a site did not breach the Privacy Act 1988.
Finally, I reject the Applicant’s contention of breach of the Disability Discrimination Act 1992 (Cth). That submission is advanced on the basis of the minority decision in Kimber v Saphire Coast Community Aged Care Ltd.[20] The Respondent did not discriminate against a person, because of a disability. The Respondent was complying with its obligations to ensure the health and safety of its workers while at work in accordance with work health and safety legislation.
I accept that the Respondent needed to know each of its employees’ vaccination status to ensure that it could comply with its obligations under Work Health and Safety legislation to keep employees and customers safe and healthy, and enquiries as to the vaccination status of employees were lawful and reasonable. The Applicant had been directed to provide proof of his vaccination status and had refused to do so. That refusal to comply with a lawful and reasonable direction alone constituted a valid reason for his dismissal, and had the consequential result that the Applicant was not ready, willing and able to fulfil the requirements of his role by attending a Westpac work premise as reasonably required by the Respondent, thereby providing further valid reason for dismissal.
Notification of reason (s.387(b))
The Applicant was notified of the reasons for his dismissal in the 25 February 2022 letter that gave the Applicant a final opportunity to comply with the ETW Policy, and in the letter of termination of 7 March 2022.
Opportunity to respond (s.387(c))
The Applicant was given opportunities to respond, and did in fact respond, to the reason for his dismissal in his written communication to the Respondent prior to his dismissal.
Unreasonable refusal to allow a support person (s.387(d))
The Applicant did not ask to have a support person present during his disciplinary discussions, and so there was not any unreasonable refusal by the Respondent to allow the Applicant to have a support person present.
Warnings of unsatisfactory performance (s.387(e))
The Applicant was not dismissed for unsatisfactory performance. This criterion is not relevant to the present case.
Size of enterprise and absence of human resource specialists or expertise (s.387(f) and (g))
The Respondent is a large enterprise, with significant human resource management specialists and expertise. Neither the size of the Respondent’s enterprise nor any absence of human resource management specialists or expertise had any impact on the procedures followed in affecting the Applicant’s dismissal.
Other relevant matters (s.387(h))
The Applicant has principally addressed issues of legality and reasonableness when addressing whether a valid reason for dismissal existed. No issues have been submitted to arise pursuant to this consideration.
Conclusion
After considering each of the matters specified in s.387 of the Act, my evaluative assessment is that the Respondent’s dismissal of the Applicant was not harsh, unjust or unreasonable. The Respondent had valid reasons for the dismissal, and it afforded procedural fairness to the Applicant prior to making the decision to bring his employment to an end. The Application is dismissed.
DEPUTY PRESIDENT
Appearances:
G Rogers for the Applicant.
D Mahendra of Counsel for the Respondent.
Hearing details:
2022.
Sydney (via Videoconference):
June 20.
[1] Transcript at PN 180 to 193.
[2] Transcript PN 39 to 42
[3] Transcript PN 75, 94, 112, 116.
[4] Transcript PN 71.
[5] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA;(1920) 28 CLR 129
[6] Kimber v Sapphire Coast Community Aged Care Ltd[2021] FWCFB 6015 at [174] to [178].
[7] [2021] FWCFB 6059, at [29].
[8] [2022] FWC 593.
[9] [2022] FWC 81.
[10] Stevens v Epworth Foundation [2022] FWC 593.
[11] Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373.
[12] Ibid.
[13] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at [685].
[14] Ibid.
[15] [2021] FWCFB 6059, at [29].
[16] [2022] FWC 1614.
[17] At [81] to [83].
[18] [2022] FWC 593.
[19] [2022] FWC 81.
[20] [2021] FWCFB 6015.
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