Elaine Perris v The Salvation Army (Western Australia) Property Trust as Trustee for the Salvation Army (Wa) Social Work
[2023] FWC 532
•3 MARCH 2023
| [2023] FWC 532 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Elaine Perris
v
The Salvation Army (Western Australia) Property Trust As Trustee For The Salvation Army (Wa) Social Work
(U2022/5169)
| COMMISSIONER SCHNEIDER | PERTH, 3 MARCH 2023 |
Application for an unfair dismissal remedy
On 7 May 2022, Elaine Perris (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that she had been unfairly dismissed from her employment with The Salvation Army (the Respondent). The Applicant seeks compensation.
Background
The uncontested factual background to the matter is as follows:
· The Applicant was engaged by the Respondent on 28 April 2014.
· The Applicant was engaged in the position of Receptionist/Administrative Assistant.
· The Applicant was stood down by the Respondent on 30 November 2021 as a result of State Government mandates.
· The Respondent issued a directive for employees to provide evidence that they had been vaccinated in line with State Government policies on 18 February 2022 and the Respondent’s vaccination policy on 24 February 2022. The Applicant did not provide such evidence.
· The Applicant was issued a show cause letter on 18 March 2022.
· The Applicant and Respondent met on 30 March 2022. The Respondent noted that the Applicant had not received all the information issued to her during the termination process. The Respondent notes that the correspondence was sent to the Applicant’s work email address which she did not have access to at that time.
· The Respondent then determined that further consultation with the Applicant was required.
· The Applicant was provided a further opportunity to comply with the directive, however the Applicant did not and was terminated from her employment with the Respondent on 20 April 2022.
The matter was subject to a Hearing before the Commission. At the Hearing, the Applicant gave evidence on her own behalf. Ms Marisa Romeo (Ms Romeo), HR Manager South Australia, Northern Territory and Western Australia, gave evidence for the Respondent.
Legislation
Section 396 of the Act requires that I determine several initial matters before considering the merits of the Applicant’s application. There is no dispute between the parties concerning these initial matters, and I am satisfied that none of the usual preliminary issues require attention.[1]
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust, or unreasonable, the Commission must take into account several criteria.
Section 387 of the Act reads:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[2]
Submissions – Evidence – Consideration of criteria
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
In order to be valid, the reason for the dismissal should be “sound, defensible or well founded”[3] and should not be “capricious, fanciful, spiteful or prejudiced.”[4]
However, 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.[5]
The Respondent submitted that the Applicant was initially stood down in order for the Respondent to comply with the Western Australia Government’s Mandatory COVID-19 Policy and the Community Care Services Worker (Restrictions on Access) Directions (No 2)(collectively referred to as the Government Mandates), which required all personnel working in the social and community sector to provide evidence to their employer of their vaccination status.
The Applicant was required to provide evidence of her first vaccination by 1 December 2021 and evidence of her second vaccination by 31 December 2021.
As the Applicant did not provide evidence of her vaccination status on 30 November 2021, she was stood down by the Respondent until she would comply with the direction.
When the Applicant was stood down by the Respondent, the Respondent introduced their own internal vaccination policy and conducted an internal risk assessment. The Respondent considered the below factors when developing their vaccination policy:
· the likelihood or risk of personnel and other third parties being infected with or transmitting the COVID-19 virus at the workplace.
· the effectiveness of COVID-safe plans in the elimination or minimisation of risk of COVID-19 transmission or infection.
· the potential harm that would result from the infection or transmission of the COVID-19 virus at the workplace.
· what personnel should be informed about the risk of infection or transmission of the COVID-19 virus at the workplace and ways to eliminate or reduce this risk.
· whether personnel are required to have close contact with people who are particularly vulnerable to the health impacts of COVID-19 in the normal course of duties.
· the risk of exposure to COVID-19 in the normal course of duties.
· the availability of suitable ways to eliminate or reduce the risk of infection or
· transmission of the COVID-19 virus at the workplace.
· the costs of eliminating or reducing the risk of infection and transmission of the COVID-19 virus at the workplace.
· Government and Medical Authority guidelines (including the Fair Work Ombudsman’s “Covid-19 vaccinations & the workplace” guideline).
The Respondent submitted that there was a valid reason for the dismissal related to the Applicant’s capacity as she was prevented from completing the inherent requirement of her position with the Respondent.
The Applicant was engaged in the position of Receptionist/Administration Assistant.
The Respondent submitted a copy of the Applicant’s position description.
The position description highlighted the below key activities which required the Applicant to be physically present at the workplace. These duties either involve direct interaction, or the potential to come into physical contact, with members of the public:
· Greet clients and visitors.
· Receive deliveries.
· Take and direct initial enquiries.
· Maintain waiting room and reception area.
My conclusions are as follows:
· The Respondent, as a large employer of approximately 10,000 employees nationally, took steps to ensure compliance with a range of State Government Directions. The Government Mandates restricted the Applicant from attending the workplace.
· I do not accept the Applicant’s position that she could have completed her duties in a different manner or while working from home. The tasks included in the job description make clear that several inherent tasks of her role require direct contact with others.
· The Applicant was engaged in a position whereby her position required her to have direct contact with members of the public and therefore as the Applicant could not provide proof of her vaccination status, she was unable to attend work and unable perform the inherent requirements of her position with the Respondent.
Having regard to the matters I have referred to above, I find that there was a valid reason for the dismissal related to the Applicant’s capacity.
Was the Applicant notified of the valid reason?
Proper consideration of section 387(b) of the Act requires a finding to be made as to whether the applicant was notified of the reason for dismissal.
Notification of a valid reason for termination must be given to an employee before the decision is made to terminate their employment,[6] and in explicit[7], plain, and clear terms.[8]
The Applicant was stood down from employment with the Applicant on 30 November 2021.
The stand down letter provided to the Applicant on 30 November 2021, clearly stated the below:
“As you are a worker covered by the Governments Mandatory Policy required to work on site or in the community and you have not complied with the requirements above, TSA is standing you down without pay until further notice”.
Between 1 December 2021 and 18 March 2022, there was no formal contact between the Respondent and the Applicant. Due to an oversight on behalf of the Respondent, communication between the Respondent and the Applicant was being sent to the Applicant’s work email address which the Applicant did not have access to.
On 18 March 2022, the Applicant was issued with a show cause letter, however this was sent to her work email and the Applicant did not receive this email.
On 18 March 2022, the Respondent also contacted the Applicant via telephone, it was at this point the Respondent became aware that the Applicant had not received any communication between the parties from the time of her standing down in November 2021 until that day.
After discovering that the Applicant had not received any communication from the Respondent during the period in question, the Respondent sent a further show cause letter on 25 March 2022.
The show cause letter to the Applicant on 25 March 2022 stated the below and directed the Applicant to attend a meeting on the 30 March 2022.
“The purpose of this letter is to provide you with an opportunity to show cause as to why your employment should not be terminated”.
The Respondent, by their own admission, conceded that, at the meeting on 30 March 2022, it was clear that the Applicant needed to be provided with additional time to provide a response and review the material which the Respondent had sent to her work email address in the months prior.
On Friday 1 April 2022, the Applicant emailed the Respondent confirming that she had not received the letters referred to in the show cause meeting on 30 March 2022. The Applicant requested copies of the letters and material.
On Tuesday 12 April 2022, the Respondent emailed the Applicant attaching the letters previously sent to the Applicant’s work email instead of her private email address.
The show cause meeting, that was meant to be held on 25 March 2022, was rescheduled to Wednesday 20 April 2022.
Following the show cause meeting, the Applicant sent an email to the Respondent, on Friday 22 April 2022, which further outlined her position and response.
The Respondent terminated the Applicant’s employment on Friday 22 April 2022.
My conclusions are as follows:
· The Applicant was notified in writing that her employment with the Respondent was at risk and that she could be terminated when she received the email on 25 March 2022.
· However, it is clear that the letter dated 25 March 2022, from the Respondent to the Applicant, did provide inaccurate information, namely:
“We refer to the notice sent to all personnel on 12 January 2022 regarding the introduction of TSA’s COVID-19 Vaccination Procedure and our letter to you dated 24 February 2024 in relation to the...Vaccination Procedure” and “Following extensive consultation with you regarding the Vaccination Procedure and your personal circumstances”.
· At the time of this letter being sent to the Applicant, the Applicant was not yet in receipt of this material nor had the Respondent completed any meaningful consultation with the Applicant directly.
· It was articulated to the Applicant in a clear manner that her failure to provide proof of vaccination status to the Respondent meant that she was unable to comply with the Respondent’s vaccination procedure and that her employment could be terminated.
· The Applicant was directed to attend a meeting on 30 March 2022, during this meeting it was clear that the Applicant required further time. The Respondent noting that it had used the wrong email address to communicate with the Applicant, provided the Applicant with further time to review the documentation and put forward further material to the Respondent for consideration.
The Respondent made an error in continuing to email the Applicant at her work email address when the Applicant did not have access to her work emails. This was an error and an oversight that the Respondent, upon learning of, took measures to provide the Applicant with a further period to respond and show cause prior to any final decision being made.
Having regard to the matters referred to above, I find that the Applicant was notified of the reason for her dismissal prior to the decision to dismiss being made, and in explicit and plain and clear terms.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity.
An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[9]
The opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly.[10]
Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[11]
As I have outlined above, between 18 March 2022 and 20 April 2022, there was correspondence between the parties and the Applicant was provided with an opportunity to respond as to why her employment should not be terminated.
The Respondent, upon learning of their error in sending communication, remedied their error and provided additional time for consultation with the Applicant.
In all the circumstances, I find that the Applicant was given an opportunity to respond to the reason for her dismissal prior to the decision to dismiss being made.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”[12]
Neither party submitted that this consideration is a live issue.
The Parties submitted into evidence a ‘show cause letter’ dated 18 March 2022, which stated the below:
“As this is a formal meeting, you are welcome to bring a support person along with you. Please let us know in advance of the meeting the name of the support person”.
The Parties submitted into evidence the “termination letter”, dated 22 April 2022, which stated the below:
“We also refer to our Teams Meeting with you and your support person on Wednesday 20th April in which we further discussed this matter”.
I am satisfied there was no unreasonable refusal of a support person.
Was the Applicant warned about unsatisfactory performance before the dismissal?
As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
To what degree would the size of the Respondent’s enterprise and the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
The Respondent is a larger employer, with approximately 10,000 employees nationally.
The Respondent has internal human resources management specialists.
Having regard to the foregoing, I find that the Respondent’s enterprise did not lack dedicated human resource management specialists and expertise. The procedure followed was largely what would be expected of an organization of such size.
However, the Respondent, by their own admission, had been incorrectly emailing the Applicant using her work email address when the Applicant had been stood down from 30 November 2021 until the Applicant was issued with a show cause letter on 18 March 2022.
When it became apparent to the Respondent that the Applicant had not received some of the previous correspondence, the Respondent provided the Applicant with additional time and the materials in question prior to the Applicant being required to provide a response.
I am not satisfied that any lack of expertise contributed to the above procedural flaw. I am satisfied however that the Respondent remedied the issue in an appropriate manner, preventing the potential damage this error could pose to procedural fairness.
What other matters are relevant?
Section 387(h) of the Act requires the Commission to take into account any other matters that the Commission considers relevant.
The Applicant submitted that the following other matters are relevant to the Commission’s consideration of whether the dismissal was harsh, unjust, or unreasonable:
· The Applicant highlighted the lack of communication from the Respondent due to the email issue highlighted earlier in this decision. The Applicant highlighted that because of her position with the Respondent, she had not worked from home during the earlier stages of the pandemic.
· The Respondent had failed to complete a risk assessment for the Applicant’s position.
· The Applicant did not have a single point of contact that she could speak to at the Respondent in relation to her concerns and ask questions.
· The Applicant submits that the Respondent should have found alternative duties for her to complete from home, such as the telephone helpline which the Applicant submits could have been completed from her home.
My conclusions are as follows:
· As highlighted earlier, the Respondent has acknowledged that the delayed communication between the Respondent and the Applicant due to the email issue was far from ideal and did cause a delay. However, the Respondent once alerted to this issue provided the Applicant with additional time to respond before making any decision to terminate the Applicant’s employment.
· The Applicant had an expectation that an individual risk assessment was required for her particular position, however this was not required by the Respondent. The Respondent conducted a risk assessment process, however there was no requirement for the Respondent to complete this on an individual position basis.
· The Applicant was not happy with how the risk assessment process was conducted by the Respondent; however, this does not mean the risk assessment was not completed.
· The Respondent is a large employer with approximately 10,000 employees nationally. It is not uncommon or unusual in organisations the size of the Respondent for these processes or situations to feel impersonal. It is understandable that the Applicant was frustrated that there was no single point of contact for her concerns, however, this does not mean the process was harsh, unjust, or unfair.
· The Respondent required the Applicant to complete the inherent requirements of her position as a Receptionist/Administration Assistant from the Applicant’s workplace. Given the nature of the duties completed by the Applicant it was a reasonable requirement of the Respondent.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in section 387 of the Act as relevant.
I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust, or unreasonable.[13]
Having considered each of the matters specified in section 387 of the Act, I am satisfied that the dismissal of the Applicants was not harsh, unjust, or unreasonable.
The Applicant was provided with procedural fairness and had the opportunity to respond prior to being terminated from their employment with the Respondent.
The Respondent provided information to the Applicant for review and explained the reasons for their decision. These reasons are sound, defensible, and clearly explained for all employees.
The Applicant’s inability to complete the inherent requirements of her position with the Respondent left the Respondent with no alternative but to terminate the Applicant’s employment.
This process has been traumatic and upsetting for the Applicant, whilst being sympathetic to the situation that the Applicant has found herself in, I am not able to conclude that the dismissal was harsh, unjust, or unfair.
The restrictions that were placed on the Respondent initially provided them no alternative but to stand down the Applicant as she could not provide a valid medical exemption or evidence of her vaccination status. Had the Respondent failed to follow the Government Directions, the Respondent was placing itself at risk of non-compliance with the directions.
The Applicant was unable to provide a valid medical exemption or evidence of her vaccination status. The Respondent was subject to the Government Mandates and an internal policy, unfortunately the Applicant did not comply with these instruments leading to her inability to perform the inherent requirements of her role.
It is uncontroversial that exclusion from the workplace due to Government Mandates can result in the inability to perform the inherent requirements of one’s position and therefore gives rise to termination.
The Respondent assessed that as the Applicant was in a position whereby, she had direct contact with members of the community seeking to use the services of the Respondent, that the Applicant needed to comply with the policy in order to perform the inherent requirements of her position. As the Applicant could not fulfil key duties of her position as a Receptionist/Administration Assistant, there was no alternative but to terminate the Applicant’s employment.
On assessment of the material before me, I am satisfied the decision, and reasons for the decision, of the Respondent is sound and that the termination of the Applicant was not unfair.
Conclusion
Not being satisfied that the dismissal was harsh, unjust, or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the Act. The Applicant’s application is therefore dismissed, an Order has been issued to that effect.[14]
COMMISSIONER
[1] The application was made within the relevant time period (s.394(2)). The Applicant is a person protected from unfair
dismissal (s.386) The Applicant’s dismissal was not a case of genuine redundancy (s.389). The Small Business Fair
Dismissal Code is not applicable (ss.385; 388(1)).
[2] [2011] FWAFB 7498, [14]; PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[3] (1995) 62 IR 371, 373.
[4] Ibid.
[5] (1996) 142 ALR 681, 685.
[6] (2000) 98 IR 137, 151.
[7] Print Q3730 (AIRC, Holmes C, 6 October 1998).
[8] Ibid.
[9] Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
[10] (2010) 194 IR 1, 14-15.
[11] (1995) 60 IR 1, 7.
[12] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
[13] (2002) 117 IR 357, [51]; See also PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; [1999] FCA 1836, [6]–[7].
[14] [PR760016].
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