Donovan Christopher Scott v Vita People/Telstra
[2023] FWCFB 43
•24 FEBRUARY 2023
| [2023] FWCFB 43 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Donovan Christopher Scott
v
Vita People/Telstra
(C2022/8190)
| VICE PRESIDENT CATANZARITI | SYDNEY, 24 FEBRUARY 2023 |
Appeal against decision [2022] FWC 2140 of Deputy President Lake at Brisbane on 11 August 2022 in matter number U2022/1621 – extension of time not granted – appeal dismissed.
Mr Donavan Scott (the Appellant) has lodged an appeal for which permission is required under s.604 of the Fair Work Act 2009 (FW Act) against a decision[1] (the Decision) of Deputy President Lake, issued on 11 August 2022. The decision concerned an application for a remedy for unfair dismissal. In that Decision, the Deputy President found that Vita People (the Respondent) had a valid reason for dismissing the Appellant, that it did so in accordance with a fair process and that the Appellant was not unfairly dismissed.[2]
An appeal filed under s.604 of the FW Act must be filed within 21 calendar days after the date of the decision being appealed, or within such further time allowed by the Commission.[3] The Decision in this matter was issued on 11 August 2022, such that the prescribed 21-day period ended on 1 September 2022. The Appellant lodged the Form F7 – Notice of Appeal on 12 December 2022, therefore making the application 102 days out of time. Accordingly, this appeal cannot proceed unless the Commission grants the Appellant an extension of time.
The matter was listed for the determination of the issues of extension of time to lodge an appeal and permission to appeal only. On 19 December 2022, directions were issued for the filing of material and the matter was listed for hearing on 10 February 2023.
For the reasons given below we decline to grant an extension of time and the appeal is therefore dismissed.
Decision under appeal
The Appellant was employed by Vita People which was acquired by Telstra in September 2021. Telstra had, at this stage, already introduced a COVID-19 Vaccination Policy (the Policy). The Policy also applied to Vita People (by then known as Fone Zone) and its employees because it is a wholly owned subsidiary of Telstra. The Policy “made vaccination mandatory for those in roles where there is a heightened risk of contracting COVID-19 due to the nature of the work and the need to be in contact with others.”[4] The Policy also allowed for employees to obtain an exemption with appropriate supporting information.
The Deputy President sets out in the Decision the chronology of events that led to the termination of the Appellant’s employment.
In October 2021 staff were reminded of the upcoming application of the Policy with a link provided to enable staff to ask questions or provide feedback. The Appellant emailed HR Administration and expressed his deep concerns about the Policy and, following a response, asked if alternative duties would be provided to unvaccinated employees. He was advised that alternative duties would be considered for employees with a valid medical exemption.[5] The Decision continues:
[11] On 19 November 2021, following the feedback, the Policy became operative at Vita People.
[12] On 22 November 2021, the [Appellant] contacted the Respondent stating he had “vaccine hesitancy” in taking a “trial/experimental” vaccine and he intended to make a discrimination complaint. Further, the [Appellant] asserted that it was a breach of privacy laws to request he provide his medical status.
[13] On 23 November 2021, the Respondent replied to the [Appellant], stating that he should gain advice from a qualified medical professional and to indicate whether he was seeking a medical exemption.
[14] On 26 November 2021, the Respondent directed the [Appellant] to comply with the Policy by having his first vaccination dose by 30 November 2021 and second vaccination dose by 31 December 2021. It further stated that failure to comply may result in disciplinary action in line with Vita’s Managing Performance and Conduct Policy, up to and including termination of employment. The [Appellant] refuted the direction stating that it was not lawful or reasonable and that his role did not fit the criteria.
The Deputy President noted that the Appellant was suspended by the Respondent on full pay and given a timeline to respond to the direction or request a formal hearing.[6] The Appellant was required to advise by 1 December 2021 if he required a hearing or to provide his response by 2 December 2021. The Appellant responded on 1 December 2021 with reasons as to why he could not comply with the Policy. The Deputy President observed that:
“Chiefly, he wanted to wait for further information or an alternative vaccine, and he proposed that he could work from home. He further alleged that the direction was not lawful or reasonable. He also asserted that he had a right to deny a request to provide vaccination information and that the Policy was discriminatory.”[7]
There was a further exchange between the Appellant and Respondent on 2 and 3 December 2021.[8] On 6 December 2021 the Appellant was issued with a “final written warning” and was directed to obtain his first dose of the vaccine in the period 8 to 13 December 2021 or evidence of a booking within 48 hours. The Appellant chose not to comply.[9]
On 13 December 2021 the Appellant was given a further opportunity to respond to the allegation that he had failed to comply with a lawful and reasonable direction. The Appellant was also requested to show cause as to why disciplinary action to terminate his employment should not be taken. The Appellant replied on 15 December 2021 and filed a general protections application in the Commission.[10]
The Appellant was advised on 17 December 2021 that the Respondent intended to terminate his employment but offered him a further 7 days to reconsider his position. The Appellant replied on 20 December 2021 and again refused to comply with the direction. The Appellant advised the Respondent that he intended to seek a medical exemption. The Respondent paused the disciplinary process pending the exemption and requested the Appellant “provide evidence of a medical exemption from a qualified medical practitioner by 30 December 2021.” It was reinforced by the Respondent to the Appellant that a failure to comply with the new directions may result in disciplinary action.
The Appellant produced a medical certificate certifying that he was unfit for work from 24 to 30 December 2021. The certificate also noted that the Appellant was seeking an exemption and would not be able to attend work until that was completed.
On 31 December 2021 the Appellant was given a further opportunity to respond as to why his employment should not be terminated. He responded that day.
On 12 January 2021 a conference was held in the Commission in relation to the Appellant’s general protections application. It was agreed that the Appellant would provide information regarding his medical exemption on 14 January 2022. On 14 January 2022 the Appellant advised he had not been able to secure an appointment to see a cardiologist to which the Respondent sought information of attempts by the Appellant to secure the appointment. On 17 January 2022 the Appellant advised he had an appointment but was unable to attend as he was waiting for a COVID-19 PCR test result and on 18 January 2022 provided a “purported” screen shot confirming a COVID-19 positive test result.[11]
The Deputy President concluded the narrative as follows:
[30] On 21 January 2022, the Respondent advised the [Appellant] that if he wished to be considered for a medical exemption from the vaccination requirement based on his positive COVID-19 test result, he would need to consent to the medical exemption process. Further, the Respondent advised that Vita People had not yet received any evidence of his long-term medical exemption.
[31] On 25 January 2022, [the Appellant] told the HR Business Partner that he could provide the requested information once he received a negative COVID-19 test result and that he did not consent to Vita or Telstra accessing his medical records to determine the status of his COVID-19 test results.
[32] The Respondent terminated the [Appellant’s] employment on 27 January 2022.
The Deputy President set out the submissions and material of the Appellant and Respondent,[12] including the detailed letter of termination of employment given to the Appellant.[13]
The Deputy President then turned to those matters he was required to consider under s.387 of the FW Act.
The Deputy President found that the Respondent’s direction that the Appellant be vaccinated or provide a valid medical exemption by 30 December 2021 was a lawful and reasonable direction.[14]
In reaching this conclusion the Deputy President found that requesting an employee to provide their vaccination status does not put undue pressure on the person to undergo vaccination as it is the Appellant’s decision to decline such vaccination. He consequently found that “the Respondent’s direction that requires collection of employee sensitive information such as their vaccination status does not impinge on the rights of employee’s bodily integrity and is not an unlawful or unreasonable direction”.[15]
The Deputy President rejected the Appellant’s argument that the direction was inconsistent with s.51(xxiiA) of the Australian Constitution, Commonwealth anti-discrimination legislation, Australian Human Rights Conventions and the Biosecurity Act 2015 (Cth).
As to whether the direction was inconsistent with the Appellant’s contract of employment, the Deputy President noted that clause 1.1 of the Appellant’s contract of employment required compliance with the Greenfields Agreement 2009 which, at clause 40, states that the employee agrees to comply with all company policies and procedures. The Appellant was therefore required to comply with the Policy and his failure to do so was a breach of his contractual provisions and may provide a valid reason for dismissal.[16]
The Deputy President noted that the Appellant undertook a course of conduct that led to his dismissal. The Appellant was given a lawful and reasonable direction and he refused to comply on multiple occasions.
The Deputy President therefore found that a valid reason existed for the termination of the Appellant’s employment.[17]
The Deputy President was satisfied that the Appellant was notified of the reason for his dismissal and given an opportunity to respond,[18] was not unreasonably refused a support person[19] and that the Respondent is a large employer with access to relevant support staff including Human Resources.[20]
The Deputy President concluded, on the basis of the evidence before him, that the Appellant had not been unfairly dismissed and dismissed his application for unfair dismissal.
Grounds of appeal
On the basis of the Appellant’s notice of appeal we understand the grounds of appeal to be that:
1. The FW Act cannot be understood by “commoners” and is linguistically ambiguous.
2. The Appellant did not understand the law and, despite the assistance provided by the Deputy President to the Appellant, the Deputy President did not consider the points made by the Appellant.
3. The Deputy President did not consider the fact that the Appellant contracted COVID-19 and was self-isolating at the time he was dismissed.
4. Evidence in relation to the Appellant’s enlarged heart and the risk therefore posed by the mRNA vaccine was not considered.
5. A Pfizer nonclinical report was not considered by the Deputy President.
6. The Respondent agreed that its consultation process was no more than the Respondent telling staff what would happen.
The Appellant maintains that the appeal is in the public interest because:
1. Justice is in the public interest.
2. Businesses have a duty of care to protect their staff and take into consideration the potential health effects of the imposition of a blanket policy.
3. Where ambiguity exists in the law this should be resolved.
Extension of time to file appeal
It is necessary to first determine if an extension of time to file the appeal should be granted. The principles relevant to determining if an extension of time in which to lodge an appeal should be granted were summarised by the Full Bench in Jobs Australia v Eland[21] as follows:
[15] Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 56(2)(c):
· whether there is a satisfactory reason for the delay;
· the length of the delay;
· the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
· any prejudice to the respondent if time were extended.
[16] In broad terms the issue for the Commission is whether, in all the circumstances and having regard to the matters set out above, the interests of justice favour an extension of the time within which to lodge the appeal.
Reason for the delay
As to the lateness of his appeal, the Appellant submits that:
1. He contacted the Fair Work Ombudsman who directed him to Queensland Health. Queensland Health said it had never recommended vaccines for retail workers although supports businesses in requiring such vaccination. He is still waiting on their definition of “safe and effective”.
2. He had been engaged with the Queensland Human Rights Commission.
3. He had to “lick his wounds”.
4. He had not read the totality of the Decision until the Human Rights Commission denied his application citing that the matter had already been dealt with.
5. He found the opinions expressed by the Deputy President in the Decision “offensive” when the Appellant’s only goal was to protect his health particularly when there is not enough research into the consequences of medical interference.
6. He was not aware of the time period in which to appeal.
7. He made a complaint about the Member but was told this could be dealt with by way of an appeal.
We have considered the reasons for the delay in filing the appeal as articulated by the Appellant.
The evidence before the Commission does not allow a conclusion that there was any satisfactory reason for the delay by the Appellant in filing his notice of appeal. The Appellant could have read the Decision and appealed within the 21-day timeframe but apparently chose, instead, to pursue a case in the Queensland Human Rights Commission. For reasons that are not apparent, the Appellant chose to “lick his wounds.” While it may be that the Appellant was dissatisfied with the Decision, he made the choice not to read it in its totality but to pursue matters elsewhere. These were all matters within the control of the Appellant. He chose to follow paths outside of the Commission. While these actions explain why the delay occurred, they do not provide a satisfactory reason for his delay.
We consider the absence of a satisfactory reason for the delay weighs against the grant of an extension of time.
Length of the delay
The appeal was lodged 102 days outside the statutory time limit. The delay is significant. The Appellant had ample opportunity to take action to file the appeal. This weighs against the grant of an extension of time.
Nature of the grounds of appeal and the likelihood any would succeed if time was extended
Having considered the Appellant’s submissions filed on appeal we are not satisfied that there is an arguable case of error in the decision of the Deputy President.
The Appellant claims ambiguity in, and difficulty with, the FW Act. However, he does not identify such ambiguity and fails to identify how this led to any arguable error in the Decision. The Appellant also fails to identify those points he says were raised by him at first instance that were not considered by the Deputy President and therefore led the Deputy President into error.
While the Appellant says that the Deputy President failed to consider medical information in relation to his enlarged heart and hence the risk of mRNA vaccines, it is clear that the Deputy President took into account the opportunities afforded to the Appellant to provide information to the Respondent in relation to seeking a medical exemption. At the conference in relation to his general protections application the Appellant agreed to provide information in relation to his medical exemption by 14 January 2022 (a date agreed to by him). He failed to do so and failed to provide evidence that he was seeking an appointment to gain the exemption. The Deputy President also considered that, when the Appellant was diagnosed with COVID-19, the Respondent gave him an opportunity – which he declined – to seek a medical exemption based on his COVID-19 status. Further, the Appellant does not dispute the evidence he gave that he chose not to provide the Respondent with any information in relation to the securing of a medical appointment with his cardiologist.[22] It is apparent from the Decision that the Deputy President gave due consideration to the multiple opportunities afforded to the Appellant to gain a medical exemption of show evidence that he was attempting to gain that information.
As to consultation in relation to the Policy of the Respondent, it is apparent that the Deputy President considered what the Appellant sought from the Respondent, including health and safety data sheets and efficacy and safety information, but found that this was not a responsibility of the Respondent.
As to the Appellant’s ground of appeal that the Respondent “agreed” that the consultation that did occur in relation to the Policy was no more than telling employees what would occur, we find that this is not supported by the evidence.
Ms Risa Gall gave evidence for the Respondent in the hearing below and, in response to cross examination by the Appellant, said that the consultation process undertaken by the Respondent “provided the team members with the opportunity to review the policy that’s going to be implemented, so in that sense, yes, consultation did occur.”[23] Further, she confirmed that no changes were made to the Policy as a result of the feedback received from employees but said that “Consultation wouldn’t require for us to make any amendments but to consider any concerns that’s been raised and potentially change it accordingly. So we did take into consideration any concerns that was raised.”[24] We see no case of arguable error in the Deputy Presidents findings in this regard.
In relation to the non-consideration of the Pfizer report by the Deputy President, we note that the Appellant was given the opportunity to put his concerns in relation to the safety of the vaccine to the Commission below. He did so, but as observed by the Deputy President, this was not a matter for the Commission to determine. To the extent the Deputy President did not consider the contents of the Pfizer report in detail we do not consider this to be in error given the matter the Commissioner was required to determine.
The Appellant also says that he wasn’t aware of the law and, although the Deputy President explained things to him, the Appellant says his submissions were not taken into account. This matter apparently relates to confusion by the Appellant as to the meaning of “lawful and reasonable” as the term was used in relation to the direction given to him by the Respondent and his question as to how a direction could be lawful and reasonable “when he regards the vaccine as possibly causing illness or even death and research is still being conducted.”[25] We do not consider that there is an arguable case of appealable error in relation to the Deputy President’s finding that the direction to the Appellant was a lawful and reasonable direction. That the Appellant might not consider it so given his expressed views in relation to the vaccination does not, and cannot, change the characterisation of the direction itself.
Generally, we would observe that the Appellant, in the hearing below, wished to have matters determined that are beyond the jurisdiction of the Commission. The relevant questions before the Deputy President are those set out in s.387 of the FW Act. Having determined that there was a valid reason to dismiss the Appellant based on his failure to comply with the lawful and reasonable direction of the Respondent to comply with the Policy, the Deputy President considered if the Appellant had been informed of the reasons for his dismissal and was given an opportunity to respond and then other matters required to be considered by him.
Overall, we do not consider that the Deputy President was in error in the way he determined the application or the matters he took into account. The approach of the Deputy President was orthodox. He applied the correct legal principles and dealt properly with the evidence. His conclusions were reasonably open to him on the basis of that evidence. For these reasons we do not consider the Appellant’s grounds of appeal have a reasonable prospect of success. This weighs against the grant of an extension of time.
Prejudice to the Respondent
We do not consider any insurmountable prejudice to the Respondent caused by the delay in filing the appeal. This however does not necessarily weigh in favour of the grant of the extension of time. We consider this a neutral factor in our consideration.
Conclusion
We have considered each of the matters relevant to whether we should grant an extension of time within which the Appellant could make his appeal against the Decision. The delay in filing the appeal was significant, there is no satisfactory explanation for the delay and the appeal does not have a reasonable prospect of success. In all of the circumstances we do not consider the interest of justice would be served by an extension of time being granted.
The appeal was filed outside the time period prescribed by Rule 56(2)(a) of the Fair Work Commission Rules 2013 and an extension of time for the filing of such appeal has not been granted. The appeal is therefore dismissed.
VICE PRESIDENT
Appearances:
Mr Donovan Scott, on his own behalf.
Mr Hayden Small, on behalf of the Respondent.
Hearing details:
2023.
Microsoft Teams (Video).
10 February.
[1] [2022] FWC 2140.
[2] [2022] FWC 2140, [76].
[3] Rule 56(2) of the Fair Work Commission Rules 2013.
[4] [2022] FWC 2140, [6].
[5] [2022] FWC 2140, [7]-[10].
[6] [2022] FWC 2140 [15]-[16].
[7] [2022] FWC 2140, [16].
[8] [2022] FWC 2140, [17]-[18].
[9] [2022] FWC 214, [19].
[10] [2022] FWC 2140, [20]-21].
[11] [2022] FWC 2140, [26]-[[29].
[12] [2022] FWC 2140, [34]-[51].
[13] [2022] FWC 2140, [45].
[14] [2022] FWC 2140, [66].
[15] [2022] FWC 2140 [57].
[16] [2022] FWC 2140, [60].
[17] [2022] FWC 2140, [66].
[18] [2022] FWC 2140, [71].
[19] [2022] FWC 2140, [72].
[20] [2022] FWC 2140, [74].
[21] [2014] FWCFB 4822.
[22] [2022] FWC 2140, [63].
[23] Transcript of hearing on 30 June 2022, PN292.
[24] Transcript of hearing on 30 June 2022, PN294.
[25] [2022] FWC 2140, [36].
Printed by authority of the Commonwealth Government Printer
<PR751156>
0
3
0