David Mordaunt v Anglican Care
[2022] FWC 2148
•12 AUGUST 2022
| [2022] FWC 2148 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
David Mordaunt
v
Anglican Care
(U2022/1658)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 12 AUGUST 2022 |
Application for relief from unfair dismissal – public health order requiring vaccination against COVID-19 – valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed.
Introduction
Mr David Mordaunt was employed by Anglican Care as a casual delivery driver for almost five and a half years. Part of Mr Mordaunt’s role required him to attend aged care facilities to deliver and retrieve laundry and catering goods.
Mr Mordaunt was dismissed on 24 January 2022 because he was not able to lawfully perform the duties of his role in circumstances where a public health order prohibited him from attending a residential aged care facility without being vaccinated against COVID-19 or having an exemption certificate. No alternative work was available for Mr Mordaunt.
Mr Mordaunt contends that his dismissal was harsh, unjust and unreasonable. Anglican Care denies those allegations.
I heard Mr Mordaunt’s unfair dismissal case against Anglican Care on 4 August 2022. Mr Mordaunt gave evidence in support of his case. Anglican Care adduced evidence from Ms Nicole Klasen, Acting Director of People & Culture for the Newcastle Anglican Corporation, of which Anglican Care is a subsidiary.
Relevant facts
There is no dispute that Mr Mordaunt’s role with Anglican Care required him to enter a number of Anglican Care’s aged care facilities.
On 26 August 2021, the Public Health (COVID-19 Aged Care Facilities) Order 2021 (PHO) was made. The PHO included the following relevant obligations:
the following persons must not enter or remain on the premises of a residential aged care facility unless the person has received at least 1 dose of a COVID-19 vaccine:
oan employee of the operator of the facility,
oa person who provides services or the facility or for 1 or more residents of the facility under a contract or arrangement with any person, but not including the following:
§a maintenance contractor,
§a person who provides services to a resident of the facility under a contract or arrangement with the resident,
§a student.
the operator of a residential aged care facility must take all reasonable steps to ensure that a person subject to a direction applicable under the PHO complies with the direction;
a person subject to a direction under the PHO must, if required to do so by the operator of a residential aged care facility, provide the operator with vaccination evidence; and
the relevant obligations under the PHO do not apply to a person who:
ois unable, due to a medical contraindication, to be vaccinated against COVID-19, and
opresents to the operator of the residential aged care facility a certificate, in the form approved by the Chief Health Officer, issued by a medical practitioner, specifying the medical contraindication that makes the person unable to be vaccinated.
The PHO commenced operation on 17 September 2021.
Anglican Care reviewed the PHO and determined that it applied to all of its employees who performed work at any of its aged care facilities, including Mr Mordaunt. Anglican Care also determined that the PHO would apply to its administrative staff who were based at the CA Brown Anglican Village at Booragul.
Anglican Care sent written communications to all staff impacted by the PHO to inform them of the requirements of the PHO and the locations where COVID-19 vaccinations could be obtained.
In the week prior to the commencement of operation of the PHO, Anglican Care sent reminders to all staff, including Mr Mordaunt, who had not provided evidence of vaccination or exemption and made it clear that they could not be rostered to perform work from 17 September 2021.
By email sent on 15 September 2021, Mr Mordaunt informed Ms Klasen that he was waiting on his specialist, Dr Prasad, to address the question of whether his medical condition and treatment would make him “unsuitable at this stage to receive Covid vaccine”.
On 16 September 2021, Ms Klasen met with Mr Mordaunt by video conference to discuss an issue concerning his exemption from a requirement to wear a facial mask. Mr Mordaunt had been stood down for about seven weeks from 26 July 2021 until the close of business on 15 September 2021 because he did not comply with the requirement to wear a facial mask in particular parts of the workplace. Anglican Care later agreed to pay Mr Mordaunt in respect of this period of stand down because it accepted, after undertaking a risk assessment, that he was exempt on medical grounds from complying with the requirement to wear a face mask in some circumstances. Mr Mordaunt says that he lost trust and confidence in Anglican Care as a result of how the mask exemption issue was dealt with.
In their discussion on 16 September 2021, Ms Klasen confirmed to Mr Mordaunt that he could not be included on the roster from 17 September 2021 until he provided evidence of his vaccination status.
Mr Mordaunt did not work for Anglican Care on 16 September 2021. Nor did he work for Anglican Care at any time from the commencement of operation of the PHO on 17 September 2021 until the termination of his employment on 24 January 2022. The last time Mr Mordaunt performed work for Anglican Care was prior to 26 July 2021.
On 5 October 2021, Mr Mordaunt sent an email to Ms Klasen in the following terms:
“Hi Nicole
Just touching base with you, as I have had no communication from HR about my casual status being changed to permanent as per the Fair Work directive 27th Sept 2021 deadline.”
Later on 5 October 2021, Ms Klasen responded to Mr Mordaunt’s casual conversion request by stating that she would do a “review and come back to you ASAP.” In the same email, Ms Klasen asked Mr Mordaunt how he got on with his “Doctor” and his “medical Exemption”.
On 6 October 2021, Mr Mordaunt responded by email to Ms Klasen in the following terms:
“Hi Nicole
Thank you for your timely response to the question of my employment status.
With regard to my vaccine status ,my specialist, claims he can’t provide me with an exemption. This in no way ,allays my health concern about receiving an experimental inoculation.
I believe his decision is simply reflecting pressure from Government directives through the Health Department.My reason for hesitancy ,is that all Covid vaccines are released on a provisional basis ,and no long term studies/trials have been conducted.
Since my condition (Multiple Myeloma) is by nature a complex blood disorder and expresses itself differently in each patient ,I believe it’s impossible to predict adverse reactions to Covid vaccines.Since I’m about to commence a new treatment plan ,and the outcome is unknown , I believe my best option is to err on the side of caution ,and wait till long term studies and trials are available before considering a Covid vaccine.
Ultimately this is my informed choice .Importantly ,I would direct you to Federal Register of Legislation. Authorised by Mr Greg Hunt Health Minister , that on January 1st 2022, Covid and Flu vaccines will no longer be mandatory in Aged Care facilities and disclosing vaccine status is to be voluntary.
I have provided the link below to confirm my statement above.to Minister Hunt ,rapid antigen tests avail each from November.
qhd3ONxA
I would be happy to do rapid antigen testing as required to facilitate my return to work.
To be very clear I'm not refusing ,rather declining Covid vaccines at this point in time.
Should long term studies prove no serious adverse reactions then I would accept the vaccines. Overarching my hesitancy ,is that come Jan 1st 2022 , the whole issue I'll become mute. For me it's not worth the risk for such a short period to wait.
Still hoping I can return to my duties at Anglican Care ,soon.Yours Sincerely
David”
Ms Klasen responded by email later that day. She stated:
“Thanks David,
We are working closely with our Lawyer on these matters and will go off the advice
they give on the matter.
As you are aware you are unable to be on shift while we work through this. J will be
in touch with you to advise on next steps and your ongoing employment.
If you have any questions or concerns in the meantime please don't hesitate to
reach out at any time
Chatsoon
Nic”
On 13 October 2021, Mr Mordaunt sent an email in the following terms to Ms Klasen:
“Hi Nicole
I believe ,from the link in Archi Anglican care Intranet ,to NSW Gov website ,that I would qualify to be able to return to work on the 1st of Dec .
It clearly says that as of that date ,no proof of vaccination is required by Public Health Order.
And since my health and vaccine status is a private matter it follows I don't need to answer that question should it be asked.I can't see any impediment to my return to normal shift.
Could you please confirm whether or not, my interpretation of NSW Gov info , is correct and if so , approve my return to work as of the 1st of Dec 2021.
Yours Sincerely
David
See below
When NSW eases restrictions in December 2021
NSW is following a clear path out of the pandemic and lockdowns.
Restrictions are expected to ease further from l December 2021, with changes
including:
• most venues moving to the 2sqm rule
• people who are not fully vaccinated will have greater freedoms.
For all NSW citizens, regardless of your vaccination status
Masks and QR code's
• Masks required only for public transport, planes and airports, and indoor front of-
house hospitality staff.
• Masks no longer required in outdoor settings (including for front-of-house
hospitality staff).
• Proof of vaccination no longer required by Public Health Order.”
Ms Klasen responded by email later that day. She stated:
“Hi David,
Thank you for your email.
Unfortunately, these changes do not change the NSW Public Health Order and under this, those who have not received the first vaccination are still not allowed to be on site.
Happy to chat further about this
Thanks”
On 14 October 2021, the PHO was amended to require relevant workers, including Mr Mordaunt, to receive two doses of a COVID-19 vaccine by 9am on 29 November 2021.
By letter dated 26 October 2021, Mr Mordaunt was asked to show cause as to why his employment should not be terminated. The show cause letter states:
“Dear David
Show Cause Notice
We are writing to you again to acknowledge that you have not provided us with any
evidence that you have received at least your first dose of a COVID-19 vaccine or evidence that you qualify for one of the recognised exceptions in the NSW Public Health directions or have refuse to receive a COVID-19 vaccine.
As you are aware, we have provided opportunities for you to discuss your options to decide on your future employment and whether you will be able to perform the requirements of your role working in aged care facilities.
You are required to show cause as to why your employment should not be terminated via response In writing by 1/11/2021. We will consider your response and all of the relevant circumstances prior to the determination of an outcome.
If you have any questions about this letter or any related matter, please contact me directly in the first instance on 0474 969 771.”
On 28 October 2021, Mr Mordaunt responded by email to the show cause letter. His response was in the following terms:
“Hi Martha
I wish to state that I have concerns that , as a result of raising my work place enquiry in relation to my employment (email to Nicole 5th Oct 2021 ) specifically around conversion from casual to part time status (in-line with changes to Fair Work Legislation as at the 27th Sep 2021 ) I have now been issued a show cause notice.
Following on from me being stood down from work over my lawful mask exemption, I now find another obstacle impeding my return to my role that I have held for 5 1/2 years.
At no time has Nicole addressed my casual status since I sent her my email request about the matter on the 5th of Oct 2021, her only response was " I will do a review and come back to you ASAP " .
Nicole's letter states that she has provided opportunities for me to discuss options for my return to work but what she hasn't done, is contact me with possible work opportunities in the Anglican Care Group to get me back working.
I on the other hand have responded with Federal Legislation that states Covid and flu vaccinations are voluntary.
This Federal Legislation by Health Minister Greg Hunt, was enacted on the 3rd of June 2021 and is currently In force.Historically, Federal Acts override State Health Orders or directions.
Links were provided in my previous email to Nicole, dated 6th Oct 2021.
For your benefit, I include the following extract from the Explanatory Statement for the above Legislation-
"Whilst approved providers must keep records, it remains voluntary for service staff to be vaccinated and to disclose if they have received an influenza or COVID-19 vaccination"
Should you choose to disregard the Federal Act which is currently in force and default to the Public Health Order, it follows that it has an expiry date on the 23 Nov 2021.
The conditions and requirements of a Public Health Order cease at the time it expires.
In my email to Nicole dated the 13th Oct, I referred to Anglican Care "Archi intranet "
which references NSW Government site ;
"Covid Vaccines not required from the 1st of Dec 2021 as per Public Health Order."
So the question arises why did Anglican Care use this link for info for Aged Care Staff.
One would assume that it is because it applies to Aged Care Facilities and staff."
Since the FPU facility is not on an aged care site, the Public Health Order for Aged Care, does not apply.
My role is a delivery driver to aged care facilities, and as such comes under Health Department guidelines.Clearly drivers are outside the scope of Public Health Orders ,see below.
Further to my efforts to return to work, I offered to utilise Rapid Antigen daily testing, another option Health Minister Greg Hunt publicly endorsed.
To date I have not been provided with a risk assessment of my role which might identify that my return to work would not present a health and safety risk.
This was the case with my mask exemption following an internal review by Nicole.Yours Sincerely
David”
Because Mr Mordaunt had responded to the show cause letter, Ms Klasen deferred making any decision about his continuing employment. I accept Ms Klasen’s evidence that, during this period, “our workload was exceptional, including dealing with COVID outbreaks in various facilities. This compromised our response times to some human resources matters.”[1]
On 15 November 2021, Ms Klasen responded to Mr Mordaunt’s email of 28 October 2021. Ms Klasen’s response was in the following terms:
“Hi David
Apologies for the delay in coming back to you.
I am more than happy to look at the casual conversion for you and these two issues at hand are separated.
Unfortunately we do not have any alterative options within the workplace to offer those who choose to not get vaccinated given all areas within the organisation are now covered by PHO's
Please advise by COB Friday 19th November if your circumstances have changed or if you have any further questions relating to your COVID-19 Vaccination.
Many Thanks”
On 19 November 2021, Mr Mordaunt sent an email to Ms Klasen in the following terms:
“Hi Nicole
I agree with your assessment. Two separate issues at hand.
The FairWork Ombudsman has given clear information for Employers to act on his recommendations for casual conversion.
I believe I meet the requirements for my conversion.
I raised this matter with you in an email date 5th Oct 2021.
Since you have not raised any points of objection to my request I'm confused as to why you haven't progressed my employment status as is required by FairWork direction.
Once I have received my official conversion notice, I will be ready to move onto the vaccination status issue.
Sincerely
David Mordaunt”
On 26 November 2021, Ms Klasen sent an email to Mr Mordaunt in the following terms:
“Hi David,
Thanks for your email.
Please note that the PHO came into play for those who are not vaccinated that they are unable to work on site from the 17th September 2021 if not vaccinated.
The deadline for moving from Casual to part time under Fair work was the 23rd September 2021
Based on the above you were unable to complete the inherent requirements of the role from the 17th which was before the deadline for casual conversion. Please note we are more than happy to look at the casual conversion however need to finalise your status of vaccination and require your final response to the show cause letter sent to you on 26th October 2021.
Please send this through to myself by COB Tuesday 30th November 2021
Any questions please let me know”
On 29 November 2021, Mr Mordaunt responded by email to Ms Klasen in the following terms:
“Hi Nicole
Please refer to my email dated 19th Nov 2021 ,none of the facts of this matter have changed .You are assuming I am not vaccinated and this is clouding the matter at hand.
The dead line for casual conversion was actually the 27 Sept 2021 by which time you were required under the Fair Work Act to assess the previous 6 months of my employment and formally notify me of employment status.
This did not occur and at no time was I given a formal notification as to whether I met the criteria or not.
For privacy reasons I do not wish to share my medical information at this stage of the process until this matter is resolved .
Sincerely
David Mordaunt”
At 8:07pm on 29 November 2021, Ms Klasen sent an email to Mr Mordaunt in the following terms:
“Hi David
I apologise that I assumed you were not vaccinated.
If you are we can get you back on the roster ASAP and get your casual conversion finalised as well.
Let me know when your ready to go and I will advise Barry to get you back in the roster and we catch up on day 1 to discuss your casual conversion
Chat soon”
On 30 November 2021, Mr Mordaunt sent an email to Ms Klasen in the following terms:
“Hi Nicole
Thank you for your response.
And now I will wait for the contract of employment which reflects the regular and systematic hours which I have been performing well in excess of 6 months as per previous emails provided.
Therefore the contract will need to be part time in nature.
Once I have received and signed off on the Contract I will be happy to forward my medical information .”
At the time he sent his email to Ms Klasen on 30 November 2021, Mr Mordaunt had not received a COVID-19 vaccine.
By letter sent via email 13 December 2021, Ms Klasen responded to Mr Mordaunt’s request for casual conversion and addressed a range of other matters. The letter states:
“Dear David,
The purpose of this letter is:
1. to seek to clarify your vaccination status;
2. to respond to your request for an update about your consideration for casual
conversion; and
3. to provide notice of a review of your casual employment.
Your vaccination status
In your emails of 19 November 2021 and 29 November 2021, you have declined to provide details about your vaccination status.
As you have been repeatedly advised, you have not been rostered to work since the
commencement of the Public Health Order (COVID-19 Care Services) Order 2021 (No 1) and then No. 2) (PHO) on 17 September 2021 because you have declined to indicate that you are in a position to comply with the vaccination requirements of the PHO.
It is of course your right not to disclose your vaccination status, but whilst you are not in a position to provide evidence of your vaccination status or contraindication to vaccination, Anglican Care cannot lawfully permit you to perform your usual duties.
Consideration of casual conversion
You have not performed any work at Anglican Care since 23 July 2021.
Anglican Care is aware that there was a deadline of 27 September 2021 under the National Employment Standards to make a determination about casual conversion for casual employees performing work as at that date.
At the time of that deadline, you were not able to work and indeed had not performed work with Anglican Care for a period of over 2 months.
Therefore, as at that deadline, you were not considered an employee for whom it was
necessary to assess casual conversion under the National Employment Standards.However, I will consider your email of 29 November 2021 as a request made by you for casual conversion which I have considered in accordance with clause 11.4(b )(i) of the Anglican Care, NSWNMA and HSU NSW Enterprise Agreement 2017 - 2020 (the
Enterprise Agreement).In considering your request, I note that prior to your email of 29 November 2021, you worked the following hours:
(a) fortnight ending 16 April 2021 - 33.5 hours
(b) fortnight ending 30 April 2021 - 35.5 hours
(c) fortnight ending 14 May 2021 - 30 hours as a driver and 5 hours as a storeman
(d) fortnight ending 28 May 2021 - 37 hours
(e) fortnight ending 11 June 2021 - 45 hours as a driver and 2 hours as a storeman
(f) fortnight ending 25 June 2021 -44.5 hours
(g) fortnight ending 9 July 2021 - 38.5 hours
(h) fortnight ending 23 July 2021 -44 hours
(i) fortnight ending 5 August 2021 - no hours
(j) fortnight ending 19 August 2021 - no hours
(k) fortnight ending 3 September 2021 - no hours
(I) fortnight ending 17 September 2021 - no hours
(m) fortnight ending 1 October 2021 - no hours
(n) fortnight ending 15 October 2021 - no hours
(o} fortnight ending 29 October 2021 - no hours
(p) fortnight ending 12 November 2021 - no hours
(q) fortnight ending 26 November 2021 - ho hoursAttached is a copy of your timesheets for these periods.
In the view of Anglican Care, irrespective of whether the period examined is the six months up to 29 September 2021 or the six months up to the date of your request, you have not been rostered on a regular and systematic basis for either comparison period.
As a result, Anglican Care considers that you have not met the criteria under 11.4(b)(i) of the Enterprise Agreement to make such a request.
If you wish to dispute this decision, please ensure that you comply with clause 44.4 of the Enterprise Agreement. A copy of clause 44 is attached for your reference.
Notice to show cause
As indicated above, whilst you cannot provide information about your vaccination status, Anglican Care cannot offer you work.
You have consistently declined to provide such information, as is your right.
However; given that you have now not performed any work with Anglican Care for over four months, and since at least 17 September 2021, the only reason for this is that you have declined to provide evidence of vaccination or contraindication to vaccination to comply with the PHO, I am now formally giving you one final opportunity to provide that evidence.
Therefore, for the purpose of clause 34.1 of the Enterprise Agreement, within fourteen (14) days of the date of this letter, you are directed to either:
1. provide me with satisfactory evidence that you have received double vaccination;
2. provide me with evidence that you have received one dose of an approved COVID-
19 vaccine and that you are booked for a second dose; or
3. provide me with appropriate evidence that you have a medical contraindication to
Vaccinationto enable you to be lawfully able to work in your usual duties in accordance with the PHO.
If you fail to comply with this direction, then Anglican Care will proceed to conclude your employment on the grounds that you are not able to perform the inherent requirements of your role.
In such circumstances, upon the expiry of the PHO, you will of course be welcome to reapply for employment.
Should you have any questions about any matter set out in this letter, please do not hesitate to contact me.”
I accept Ms Klasen’s evidence that she reviewed Mr Mordaunt’s casual conversion request at about this time and decided to decline it on the basis that Mr Mordaunt’s “pattern of work was not regular and systematic”.[2] Ms Klasen did not consider at an earlier time whether to convert Mr Mordaunt from a casual position to a permanent position because she was dealing with Mr Mordaunt’s mask exemption issue as well as other issues associated with the public health orders applicable across Anglican Care’s organisation.
By email sent on 16 December 2021, Mr Mordaunt responded to Ms Klasen’s letter of 13 December 2021. Mr Mordaunt’s email states:
“Hi Nicole
I need to correct factual errors in your email regarding this matter.
My last payslip is dated 3rd of Oct 2021.
This partly represented a 7 week 2 day stand down from shift because you made a decision to not accept my lawful mask exemption.
You acknowledged your error and reimbursed me for those shifts lost through the stand down. This approval proves that I was still on the roster and had you not made this error I would have actually been working my regular shifts.Also, by doing this you created a window where It seemed I was not working systematic and regular hours. This has had the effect of running down the clock to the 27th Sep 2021.
I contend however that Fair Works Casual Conversion Legislation is clear that you should have by the 27th of Sept 2021 assessed my eligibility and written to me with an offer of conversion or not. You have therefore breached your obligation under Fair Work Legislation as your email is dated the 13th of Dec 2021 .
Referencing Anglican Care EA is not appropriate as the Fair Work Legislation is what you should be guided by.I am concerned, as to whether due process has occurred regarding this matter, not just for myself but for the many casuals employed by the Anglican Care Family .
Secondly did the vaccine status form part of the consideration for Casual Conversion?
Being discriminated against for my lawful mask exemption in front of other employees and now the delay tactics which I believe are a consequence of my raising a work place issue leaves me feeling that we may now be at an impasse.
Given this, I would accept 5 weeks in lieu of notice plus an ex gratia payment of $4,000 in consideration of the distress and inconvenience this has caused me.Alternatively I will be forced to pursue this matter with the Fair Work Commission , considering several options including unlawful dismissal, adverse action or unfair dismissal.
I will leave this for your consideration and await your reply.
Regards
David Mordaunt”
On 29 December 2021, Ms Klasen sent an email to Mr Mordaunt in the following terms:
“Dear David
I refer to your email dated 16 December 2021.
Anglican Care does not intend to further engage with you about casual conversion.
It is noted that, hypothetically, even if you were to convert to permanent employment you would not have been able to be deployed to work with Anglican Care from the date of the conversion because from 17 September 2021, you have not provided evidence that you were in a position to comply with the relevant public health order, despite
consultation and numerous requests.
Further, due to your vaccination status, if you converted to permanent employment, it is quite likely that the employment would now be terminated.
Final request for vaccination status
You have been requested to provide your vaccination status on a number of occasions.
You have until 5pm on 14 January 2022 to provide evidence that you are in a position to comply with the Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (as amended) by either providing evidence of your vaccination or medical evidence supporting a vaccination exemption.
Should you fail to do so, Anglican Care will proceed to review the future of your employment.
Many Thanks”
Mr Mordaunt did not respond to Ms Klasen’s email of 29 December 2021.
On 21 January 2022, Ms Klasen reviewed Mr Mordaunt’s ongoing employment with Anglican Care. Based on Mr Mordaunt’s job and his requirement to be vaccinated against COVID-19 or have a medical exemption, Ms Klasen formed the view that there was no prospect of being able to find any alternative work for Mr Mordaunt with Anglican Care. Ms Klasen concluded that Mr Mordaunt’s employment could not continue. By letter dated 21 January 2022, Ms Klasen informed Mr Mordaunt of the decision to terminate his employment, but gave him a final opportunity to “submit for a COVID-19 vaccination or otherwise obtain a medical exemption”. The termination letter states:
“Dear David
RE: Your decision not to submit for COVID-19 vaccination
Notice of termination of employment
We refer to your employment as a Hospitality Service Assistant with Anglican Care.
As you are aware, the NSW Government instituted the Public Health (COVID-19 Aged Care Facilities) Order 2021 (PHO) with effect from 9am on 17 September 2021. The PHO requires that all staff of a residential aged care facility are to have received their first dose of a COVID-19 vaccination or have provided a valid medical exemption by that deadline in order to enter or remain in the facility.
Anglican Care has determined that the PHO applies to your employment.
You have been consulted about the introduction of the PHO and numerous requests have
been made of you to advise as to whether you intend complying with the requirement to have the first dose of a COVID-19 vaccination or otherwise that you are able to provide a valid medical exemption.
We therefore believe that you intend to exercise your right not to receive the COVID-19 vaccination. Anglican Care has not been able to identify any alternate work for you to perform that would not otherwise require compliance with the PHO.
Anglican Care respects your decision not to be vaccinated. However, as you have not
presented Anglican Care with a valid medical exemption, the PHO prohibits Anglican Care from being able to roster you to perform any work in its aged care facilities.
This letter now serves to notify you that with effect from 24 January 2022 your employment with Anglican Care will be terminated due to the fact that, whilst you have been provided sufficient opportunity to comply with the vaccination requirements of the PHO, you have exercised your right not to be vaccinated and therefore Anglican Care cannot offer you work in your usual employment and no other duties are available.
Please note that if, prior to 24 January 2021 you either decide to submit for a COVID-19 vaccination or otherwise obtain a medical exemption to enable you to comply with the requirements of the PHO, you should immediately notify me so that Anglican Care can determine whether it is in a position to review the decision to terminate your employment.
On behalf of Anglican Care, I wish you well for your future endeavours. After the effective date of the termination of your employment, I will forward you a Certificate of Service.”
Mr Mordaunt did not take up the final opportunity afforded to him to obtain a COVID-19 vaccination or a medical exemption. His employment with Anglican Care came to an end on 24 January 2022.
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 application.
There is no dispute between the parties and I am satisfied on the evidence that:
(a)Mr Mordaunt’s application for unfair dismissal was made within the period required in s 394(2) of the Act;
(b)the Small Business Fair Dismissal Code did not apply to Mr Mordaunt’s dismissal; and
(c)Mr Mordaunt’s dismissal was not a genuine redundancy.
There is a contest as to whether Mr Mordaunt was a person protected from unfair dismissal. I will address that question next.
Minimum period of employment
Anglican Care submits that Mr Mordaunt was not protected from unfair dismissal because, at the time of his dismissal, his casual employment was not “regular and systematic” and he did not have a reasonable expectation of continuing employment. These submissions are made on the basis that Mr Mordaunt did not perform any work for Anglican Care from the commencement of operation of the PHO on 17 September 2021 until his dismissal on 24 January 2022.
I do not accept Anglican Care’s submission in relation to the assessment of Mr Mordaunt’s period of employment with Anglican Care. A person is protected from unfair dismissal if, amongst other things, they have, at the time of their dismissal, “completed a period of employment … of at least the minimum employment period”: s 382(a) of the Act. The minimum employment period for a non-small business employer such as Anglican Care is six months. A period of service as a casual employee does not count towards the employee’s period of employment unless (i) the employment as a casual employee was on a regular and systematic basis and (ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis: s 384(2) of the Act. It is apparent from these provisions of the Act that an employee must have “completed” their six month minimum employment period at the time of their dismissal. The Act does not stipulate when the six month minimum employment period must be completed, save that completion must have taken place by the time of the employee’s dismissal. It follows that the six month minimum employment period may be completed at any time during the employee’s employment with their employer. In the case of a casual employee, the employee may complete their six month minimum employment period well before their dismissal. In that event, it does not matter whether some or all of the casual employee’s later period of service with their employer does not meet the requirements of s 382(2)(a)(i) or (ii) of the Act.
Anglican Care conceded, quite properly, that if it was incorrect in its contention that the time for assessing whether Mr Mordaunt’s casual employment was regular and systematic and he had a reasonable expectation of continuing employment was “at the time of his dismissal”, then Mr Mordaunt had completed his six month minimum employment period earlier in his five years of casual employment with Anglican Care. I am satisfied on the evidence that Mr Mordaunt’s earlier service with Anglican Care met the requirements of s 382(2)(a)(i) and (ii) of the Act. He had completed his six month minimum period of employment with Anglican Care well before his dismissal.
I am satisfied that Mr Mordaunt was protected from unfair dismissal within the meaning of s 382 of the Act.
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 the section in considering whether Mr Mordaunt’s dismissal was harsh, unjust and/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 employer had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal.[3] In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded”[4] and should not be “capricious, fanciful, spiteful or prejudiced.”[5]
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.[6] The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).[7]
In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.[8] It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.[9]
Submissions re valid reason
Anglican Care contends that it had a valid reason to dismiss Mr Mordaunt because he did not provide evidence of having had a COVID-19 vaccination or an exemption certificate, and the effect of the PHO meant that he could not undertake his job as a casual delivery driver. Further, Anglican Care did not have any alternative duties or job available for Mr Mordaunt.
Mr Mordaunt contends that he should have been converted from casual employment to permanent part time employment and if that had happened, he would have been in a “position to make an informed choice to get the vaccine”.[10] He also contends that “Had Ms Klasen issued me with a part time contract I would have applied for leave without pay (which is afforded to other permanent staff on a regular basis) to allow me to achieve vaccine catch up”.[11] Mr Mordaunt says that he “would have proceeded to be vaccinated immediately”.[12]
Consideration re valid reason
There is no dispute that the PHO was lawful and applied to Mr Mordaunt in relation to his employment with Anglican Care.[13] Nor is there any dispute that prior to his dismissal Mr Mordaunt did not provide Anglican Care with evidence of having had a COVID-19 vaccine or an exemption certificate. In fact, Mr Mordaunt informed Anglican Care that his medical specialist “claims he can’t provide me with an exemption”.[14]
The effect of the PHO was to prohibit Mr Mordaunt from lawfully entering or remaining on the premises of a residential aged care facility. As a result, Mr Mordaunt could not undertake essential requirements of his job as a casual delivery driver for Anglican Care. There were no alternative duties or jobs available for Mr Mordaunt with Anglican Care.
I do not accept Mr Mordaunt’s evidence that had he been provided with a contract of employment as a part time employee of Anglican Care, he “would have proceeded to be vaccinated immediately”.[15] First, at no time during his employment with Anglican Care did Mr Mordaunt inform Ms Klasen or any other person from Anglican Care that he would be vaccinated if he were converted from casual to part time employment. In his many communications with Ms Klasen on the subject, the most he said was “Once I have received my official conversion [to part time] notice, I will be ready to move onto the vaccination status issue.”[16] I do not accept Mr Mordaunt’s oral evidence that what he meant by this statement was that he would move on to get vaccinated against COVID-19. In later communications, Mr Mordaunt stated, “For privacy reasons I do not wish to share my medical information at this stage of the process until this matter [casual conversion] is resolved”[17] and “Once I have received and signed off on the Contract I will be happy to forward my medical information”.[18]
Secondly, Mr Mordaunt explained his reasons for “declining Covid vaccines at this point in time” in his email to Ms Klasen on 6 October 2021. Those reasons do not include Mr Mordaunt’s status as a casual employee. Mr Mordaunt gave his explanation for his “informed choice” in the following terms:[19]
“My reason for hesitancy, is that all Covid vaccines are released on a provisional basis, and no long term studies/trials have been conducted.
Since my condition … is by nature a complex blood disorder and expresses itself differently in each patient, I believe it’s important to predict adverse reactions to Covid vaccines.
Since I’m about to commence a new treatment plan, and the outcome is unknown, I believe my best option is to err on the side caution, and wait till long term studies and trials are available before considering a Covid vaccine.
Ultimately this is my informed choice…”
Thirdly, the fact that Mr Mordaunt had in the past received an influenza vaccine was not of any significant weight because Mr Mordaunt’s hesitancy against getting a COVID-19 vaccination was based on his belief “that all Covid vaccines are released on a provisional basis, and no long term studies/trials have been conducted”.[20] The same cannot be said of influenza vaccines.
Fourthly, on 13 December 2021, Mr Mordaunt was informed in writing that his request for casual conversion had not been accepted by Anglican Care.[21] Mr Mordaunt did not seek to dispute or challenge that decision, notwithstanding that he was informed that he could do so.[22]
In my view, it is clear from Mr Mordaunt’s communications with Ms Klasen that he did not have any intention of being vaccinated against COVID-19 during his employment with Anglican Care. It follows that even if Mr Mordaunt had been converted into a part time employee, he would not have been able to comply with the PHO and would have been prevented from lawfully entering or remaining on the premises of a residential aged care facility.
Further, and in any event, I do not consider that Mr Mordaunt had a right to be converted from casual to part time employment with Anglican Care. Mr Mordaunt made a number of requests for such conversion. The first request was made on 5 October 2021. Mr Mordaunt also raised the issue in later correspondence to Ms Klasen, including on 28 October 2021, 19 November 2021, 29 November 2021, 30 November 2021 and 16 December 2021. Mr Mordaunt was not rostered to work, and did not work, for Anglican Care during two relevant periods of time. First, in the period from 26 July 2021 until 15 September 2021 inclusive. Mr Mordaunt was stood down because he was not willing to comply with Anglican Care’s requirement for him to wear a facial mask. Anglican Care subsequently agreed to pay Mr Mordaunt for this period because it accepted that he had a medical exemption from wearing a mask in particular circumstances. Secondly, Mr Mordaunt was not rostered to work, and did not work, for Anglican Care from 17 September 2021 until the termination of his employment on 24 January 2022. Mr Mordaunt’s absence from work during this period was on account of the fact that he did not meet the requirements of the PHO to enter an aged care facility.
Under clause 11.4(b)(i) of the Anglican Care, NSWNMA and HSU Enterprise Agreement 2017 – 2020, a casual employee has the right to request conversion to permanent employment if they have “been rostered on a regular and systematic basis over a period of 26 weeks”. Because Mr Mordaunt was not rostered to work, and did not work, for Anglican Care from 17 September 2021, he was not “rostered on a regular and systematic basis over a period of 26 weeks” prior to his request for conversion to part time employment, whether the date of the request was 5 October 2021 or any other time between 5 October 2021 and the termination of his employment on 24 January 2022.
Under s 66B of the Act and the relevant transitional provisions, Anglican Care had from 28 March 2021 until 27 September 2021 to assess and determine whether an offer of part time employment should be made to Mr Mordaunt. Anglican Care did not undertake its assessment within this 6 month transitional window afforded to employers. However, even if Anglican Care had complied with its obligation under the Act to assess and determine, on 27 September 2021, whether an offer of part time employment should be made to Mr Mordaunt, he would not have qualified for conversion to part time employment because he had not worked a regular pattern of hours on an ongoing basis during the last six months leading up to 27 September 2021.
I also consider that Anglican Care had reasonable grounds not to make an offer of part time employment to Mr Mordaunt from 17 September 2021. In particular, from 17 September 2021 an employee had to be vaccinated against COVID-19 or have an exemption certificate to enter an aged care facility. Mr Mordaunt did not meet those requirements of the PHO and did not, at any time, inform Anglican Care that he would be vaccinated against COVID-19. It was therefore reasonable for Anglican Care not to offer permanent employment to Mr Mordaunt at any time from 17 September 2021.
I do not accept Mr Mordaunt’s contention that he was discriminated against, or treated adversely, by reason of the mask exemption issue. I am satisfied on the evidence that Anglican Care made a decision to terminate Mr Mordaunt’s employment on the basis of the fact that he had not complied with the requirements of the PHO and that there were no other duties or jobs available for him.
Conclusion re valid reason
Anglican Care was obliged to comply with the PHO. So was Mr Mordaunt. Because Mr Mordaunt was not vaccinated against COVID-19 and he did not have an exemption certificate, the effect of the PHO was to prevent Mr Mordaunt from being able to do his job as a delivery driver, whether as a casual or part time employee. Mr Mordaunt was given about five months from late August 2021, when the PHO was made, until his dismissal on 24 January 2022 to meet the requirements of the PHO. It could not be suggested that Anglican Care rushed to its decision to dismiss Mr Mordaunt from his job as a casual deliver driver. Further, there were no other jobs or alternative duties available for Mr Mordaunt with Anglican Care. Those matters gave Anglican a sound, defensible and well founded reason to terminate Mr Mordaunt’s employment.
I am satisfied that Anglican Care had a valid reason for Mr Mordaunt’s dismissal related to his capacity.
Notification of reason (s 387(b))
Mr Mordaunt was notified of the reason for his dismissal in the letter dated 21 January 2022. Mr Mordaunt was also notified of the reason for his dismissal in the show cause letters dated 26 October 2021 and 13 December 2021, as well as the email sent to him by Ms Klasen on 29 December 2021.
Opportunity to respond (s 387(c))
Mr Mordaunt was given an opportunity to respond to the reason for his dismissal in reply to the show cause letters sent to him on 26 October 2021 and 13 December 2021, and in response to the email sent to him on 29 December 2021.
Having regard to all the circumstances, I am satisfied that Mr Mordaunt was given an opportunity to respond to the reason for his dismissal.
Unreasonable refusal to allow a support person (s 387(d))
There were not any in-person discussions with Mr Mordaunt relating to his dismissal. Mr Mordaunt did not make a request for a support person to attend any meetings with Anglican Care.
In all the circumstances, I am satisfied that there was not any unreasonable refusal by Anglican Care to allow Mr Mordaunt to have a support person present to assist in any discussions relating to his dismissal.
Warnings of unsatisfactory performance (s 387(e))
Mr Mordaunt 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))
Anglican Care is a large organisation. It has human resources specialists and expertise in its human resources team. In all the circumstances, I am satisfied that neither the size of Anglican Care enterprise nor any absence of human resource management specialists or expertise had any material impact on the procedures followed in effecting Mr Mordaunt’s dismissal.
Other relevant matters
There are no other relevant matters that require consideration.
Conclusion
After considering each of the matters specified in section 387 of the Act, my evaluative assessment is that Anglican Care’ dismissal of Mr Mordaunt was not harsh, unjust or unreasonable. Anglican Care consulted with Mr Mordaunt in relation to the requirement for him to be vaccinated against COVID-19 if he wished to continue to work in his current role. Mr Mordaunt was given almost five months to be vaccinated against COVID-19 or obtain an exemption certificate. Anglican Care had a valid reason for the dismissal and it afforded procedural fairness to Mr Mordaunt prior to making a decision to bring his employment to an end. Anglican Care was legally obliged to comply with the PHO. The effect of the PHO was that Mr Mordaunt was unable to undertake his role from 17 September 2021. There were no alternative duties available for Mr Mordaunt.
I am satisfied that Anglican Care’s dismissal of Mr Mordaunt was not unfair within the meaning of the Act. The application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr Mordaunt was self represented
Mr S Puxty, solicitor, for the Respondent
Hearing details:
2022.
Newcastle (by videoconference)
4 August.
[1] Ex R1 at [31]
[2] Ex R1 at [39]
[3] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at [373, 377-8]
[4] Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at [373]
[5] Ibid
[6] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at [685]
[7] Ibid
[8] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24]
[9] Ibid
[10] Ex A2 at [14]
[11] Ex A2 at [21]
[12] Ex A3 at [11]
[13] Ex A3 at [51]
[14] Ex A1 at annexure M
[15] Ex A3 at [11]
[16] Ex R1 at annexure NK-17
[17] Ex R1 at annexure NK-18
[18] Ex R1 at annexure NK-20
[19] Ex R1 at annexure NK-10
[20] Ex R1 at annexure NK-10
[21] Ex R1 at annexure NK-21
[22] Ibid
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