Elli Rosanne Fisher v Tract Consultants Pty Ltd
[2022] FWC 2109
•9 AUGUST 2022
| [2022] FWC 2109 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Elli Rosanne Fisher
v
Tract Consultants Pty Ltd
(U2022/4478)
| COMMISSIONER SIMPSON | BRISBANE, 9 AUGUST 2022 |
Application for an unfair dismissal remedy – Termination not harsh, unjust or unreasonable – Application dismissed
On 17 April 2022, Ms Elli Rosanne Fisher (Ms Fisher/the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against Tract Consultants Pty Ltd (Tract/the Respondent). The Applicant contends her dismissal from the Respondent, for whom she had worked since 26 July 2010, was harsh, unjust and unreasonable. The Respondent held that Ms Fisher’s employment had been terminated following her failure to comply with its vaccination policy (the Policy).
As the matter could not be resolved by conciliation, directions were issued for the filing of material and a hearing was listed for 6 July. The Applicant represented herself with the assistance of her support person Mr Chris Lennon, and the Respondent was represented by Mr Angus Galbraith of Counsel instructed by Maddocks Lawyers. The Applicant did not object to the Respondent being represented. Based on the submissions filed by the Respondent pursuant to s.596, I was satisfied that it would be of use to the Commission and would not unduly prejudice the Applicant to have the assistance of the Respondent’s legal representative. I was also satisfied that the presence of the Respondent’s representative would also enable the matter to be dealt with more efficiently.
The Respondent filed a Form F52 under s.590(2)(c) of the Act, for the Applicant to produce copies of documents pertaining to her current employment and earnings. I ordered the production of the documents requested with the exception of Ms Fisher’s bank statements.
BACKGROUND
The Applicant provided a witness statement of 14 February 2022,[1] and a further statement of 14 June 2022.[2] Ms Lisa Martin provided a witness statement for the Respondent[3], as did Mr Deiter Lim,[4] and Mr Graeme Harvison.[5] Each of the three statements were dated 28 June 2022.
The Applicant’s employment was terminated on 28 March 2022 as a result of her refusal to comply with the Respondent’s Policy requiring her be vaccinated against Covid-19 by an approved vaccine.
The Applicant commenced employment at the Melbourne office of the Respondent and was relocated, at her request, to the Queensland offices in October 2016. Aspects of the Applicant’s role required her to travel and collaborate with clients and staff of the Respondent in-person. The Applicant emphasised that this requirement was limited during the Covid-19 pandemic.
On 3 December 2021, the Respondent implemented a Covid-19 Vaccination Policy following a consultation process, which required employees be vaccinated in order to attend the Respondent’s offices or undertake activities outside their place of residence.
On 15 October 2021, Tract sent all employees a survey to garner responses regarding their views about vaccination and a potential requirement to be vaccinated. Responses to the survey were due on 19 October 2021. The results were presented to the Board of Tract on or around 27 October 2021, for their review.
Following the presentation of the survey results, the Respondent undertook a risk assessment determining the effect of having unvaccinated workers carrying out duties in the Respondent’s workplace and externally. The Respondent submitted that the process was extensive, comprehensive and not taken lightly.
Following the presentation of the Risk Assessment, the Board voted unanimously to implement a Policy. The Policy was finalised and on 3 December 2021 all employees, including the Applicant, were invited to a meeting so as to be provided with information about the Policy. During the meeting, employees were informed that if any employee did not wish to be vaccinated, then they would be required to put forward an alternative plan which would enable them to continue to perform their duties in light of the Policy.
The Applicant expressed her concerns regarding the Policy in emails and conversations with the Respondent. Further, the Applicant advised that it would be unsustainable for her to work from home. She stated that her home environment was unsuitable and that she wasn’t able to effectively fulfil her role from home.
On 25 February 2022, the Respondent held a meeting with Ms Fisher to try to establish a solution to her being able to perform her roles whilst the Policy was in place. Ultimately an agreement could not be reached in this regard and following a show cause process, Ms Fisher’s employment was terminated on 28 March 2022.
SUBMISSIONS AND EVIDENCE
Prior to the termination of Ms Fisher’s employment, the Applicant was engaged as Principal Urban Designer. The Respondent rented office space and Ms Fisher moved from Melbourne to the Sunshine Coast in Queensland. The Applicant’s role required her to carry out duties both on site at the Respondent’s workspaces and outside of her home. Her duties included but were not limited to:
Managing staff;
Leading and working on projects in Queensland;
Project management, budgeting and business development;
Meeting with clients (at times, in person);
Working closely with clients; and
Attending community consultation and site visits.
Throughout the COVID-19 Pandemic, Ms Fisher did not comply with some of the requirements which had been put in place by both the Respondent and those of the Queensland Government. On occasion, Ms Fisher did not use the QR code check in facility required by the Queensland Government for contact tracing purposes and attended the Respondent’s office after being directed not in in light of her unvaccinated status.
Ms Fisher gave oral evidence in chief responding to the witness statements filed by the Respondent. Ms Fisher indicated in regard to her relocation to Queensland that she had advised the Respondent that she may leave the company and it was in response to this information that the Respondent proposed to her that they could open an office on the Sunshine Coast.
Ms Fisher gave oral evidence that she had told the Respondent that she did not agree with downloading the Government Covid app onto her phone. It was put to Ms Martin that the employer did not put in place an alternative to the Government app. Ms Martin said the Respondent set up Microsoft office forms as an alternative to the government app.
In response to the statement of Mr Harvison, Ms Fisher disputed the claimed balance of work performed between the Brisbane and the Sunshine Coast offices as described by Mr Harvison. Ms Fisher also disputed the evidence about the regularity of visitors to the office, and also the proportion of meetings that were in person compared to meetings held virtually.
In response to the evidence of Mr Lim, Ms Fisher gave evidence that the evidence of Mr Lim about the requirement to travel was not correct, particularly during Covid-19 restrictions. Ms Fisher disputed Mr Lim’s claim that it did not make sense to have a state-based vaccination policy, and also disputed Mr Lim’s claim that the risk assessment process was comprehensive and said her requests for information about the risk assessment were refused.
Ms Fisher disputed Mr Lim’s evidence that the Sunshine Coast office required her to use a common kitchen and bathroom. Ms Fisher accepted that she used the bathroom but said there were other options available.
Ms Fisher accepted that she started in the role of Principal Urban Designer on 1 July 2018 and identified the contract of employment for this role. Ms Fisher accepted at the time of her termination she was working 30 hours a week and that she was always paid for 30 hours per week.
Ms Fisher accepted there were other tenants in the shared office facility where the Respondent’s Sunshine Coast office was located, and she accepted that the Respondent could not control who entered the shared facility or visitors’ movements within the facility. Ms Fisher accepted that the facility had common hallways, bathrooms, kitchen facilities, and common surfaces like door handles and the Respondent’ could not control when others were in common areas. Ms Fisher accepted she was not monitoring the effectiveness of the other businesses Covid-19 safe practices.
Further, Ms Fisher accepted that the Respondent could not be aware of whether other visitors to the common facility may be positive for Covid-19. Ms Fisher accepted that her role involved her working in the Brisbane office and the Sunshine Coast office when she was in the role of Principal Urban Designer. Ms Fisher accepted the Brisbane office was larger with more staff, visitors, and meetings. Ms Fisher said if her projects were mainly on the Sunshine Coast her amount of time in Brisbane was reduced.
Ms Fisher accepted she had a supervisory role over other employees who worked in the offices of the Respondent including staff at the Brisbane office. Ms Fisher accepted her role included collaboration, business development, and bringing in new clients. Ms Fisher accepted she was required to meet with clients from time to time. Ms Fisher said it was not explicit that it had to be face to face. Ms Fisher accepted that she attended client meetings and community consultation and site visits from time to time although she said that there were different conditions during the Covid-19 pandemic.
Ms Fisher accepted that the need to visit a client on site may be dictated by the needs of the client themselves to properly assess the project.
15 October 2021 Staff Survey
Ms Fisher accepted she received the email from Ms Martin dated 15 October 2021 seeking feedback to a survey about Covid 19 vaccination. Ms Martin said 195 employees were surveyed. Ms Fisher agreed the national staff number was around 195 at this time, and Ms Fisher agreed that she responded to the survey. Ms Fisher accepted that the responses were included in the results of the survey.
Ms Fisher accepted that the Respondent had a duty of care to eliminate if possible, and if not possible minimise risks to the safety of its employees, its clients, and members of the public to the extent they come into contact with the Respondent. Ms Fisher accepted that effectiveness of using masks and social distancing measures depended on persons applying them correctly.
Ms Fisher also accepted that if she was attending a site visit or meetings with a client or stakeholder she or the Respondent could not control whether someone else present had Covid-19, or know whether they did.
Ms Fisher said she was on leave at the time the Respondent sent out its survey. Ms Fisher said contrary to the Respondent’s claims she was not satisfied that the survey was confidential. Ms Fisher said she did not feel like she could give feedback in an open way regarding the Respondent’s vaccination policy without jeopardising her career.
Ms Martin was asked whether ATAGI (Australian Technical Advisory Group on Immunisation) was one of the bases for the adoption of the policy and she said she believed it was. Mr Lim also said that it relied on the ATAGI advice and the risk assessment conducted.
It was put to Ms Martin that there was no risk assessment done for the Sunshine Coast office. Ms Martin said she did not do the risk assessment and understood Ms Parker prepared it and Mr Lim was involved. Ms Martin was later referred in re-examination to the risk assessment attached to the evidence of Mr Lim and a reference at page 392 of the Court Book to the Sunshine Coast office in the body of the risk assessment. Ms Martin identified further information in the risk assessment that pertained to the Sunshine Coast office. Mr Lim was also referred to the risk assessment and confirmed Ms Fisher fell into a category of employees referred to in the risk assessment.
It was put to Mr Lim the survey questions were not fair and balanced and he rejected that. Ms Fisher also disputed that the results of the survey supported the Respondent implementing a vaccination requirement. Mr Lim said that was what the survey results showed, and did not accept the survey questions were biased.
Mr Lim said the policy was intended to operate so that if employees chose not to be vaccinated the Respondent would try to make adjustments so that those employees could remain in employment with the Respondent.
Virtual meeting of 3 December 2021
Ms Fisher accepted that she attended a virtual meeting on 3 December 2021 where Mr Lim gave an overview of the policy the Respondent had adopted and accepted that employees were offered the opportunity to ask questions about the policy. Ms Fisher maintained that Mr Lim had prior to this meeting, made clear his own personal views in favour of vaccination.
Ms Fisher agreed that she received the email from Ms Martin attaching the Respondent’s vaccination policy. It was put to Ms Fisher that there was an opportunity in the policy to speak to Ms Martin privately about the reasons why an employee did not want to be vaccinated. Ms Fisher indicated that she did not believe it was private and this message was contradicted by another email saying that only the official basis for exemption would be accepted.
Ms Fisher accepted the requirement to be compliant with the policy did not commence until 31 January 2022, some eight weeks after the meeting of 3 December 2021. Ms Fisher accepted she did not provide evidence of a recognised basis of medical contraindication. Ms Fisher agreed she had further consultation with Mr Lim through letters and emails after 3 December 2021.
Letter of 6 December 2021
Ms Fisher submitted that the Respondent had refused to answer her questions or provide evidence about the Policy and the vaccine. She stated that the Policy was not lawful and reasonable. In a letter sent by email to the Respondent on 6 December 2021, the Applicant stated that the Respondent was coercing her into taking the vaccine by threatening her employment. The letter stated that “numerous laws, regulations and policies protect the right of informed consent in receiving the vaccine or any medical procedure” then listed several Acts and Codes.
Ms Fisher disputed the statement in Ms Martin’s witness statement that Ms Fisher was disengaging with the Respondent. Ms Fisher disputed the evidence of Ms Martin that Ms Fisher was not contributing to meetings and her hours were dropping off. Ms Fisher also disputed Ms Martin’s evidence that the Respondent was trying to work with her.
Ms Fisher disputed that she stopped putting her name forward for work and disputed the claim that she was unwilling to work. Ms Fisher said she felt threatened and unsupported and attempts she made to receive answers to her concerns were not met.
It was put to Ms Fisher that after the 3 December 2021 meeting, she was not performing her contracted 30 hours per week. Ms Fisher said she was unable to, however she accepted she was still paid 30 hours per week. It was put to Ms Fisher that during this time some of her work was given to other employees to perform in addition to their own work and she accepted that.
Mr Lim was asked why he refused to provided Ms Fisher a copy of the risk assessment. He said that on 3 December the Respondent had sufficiently outlined the reasoning to implement the policy.
Respondent letter of 9 December 2021
The Respondent replied in a letter of 9 December 2021, reaffirming that “Tract is not requiring you to be vaccinated against COVID-19. The decision to be vaccinated … is always a personal choice…”. Further, the letter referred Ms Fisher to seek medical advice for the assertions made in her letter about the vaccine itself. The letter also referred to the Public Health and Social Measures linked to vaccination status Direction (the Vaccination Direction) which was to come into effect on 17 December 2021. The Vaccination Direction was highlighted to possibly prevent Ms Fisher from performing certain inherent requirements of her role. Ms Fisher was referred to this letter of 9 December from Mr Lim and agreed she read it when she received it.
It was put to Ms Fisher that she did not obtain evidence of a medically recognised contraindication and she said she believed she would not fall into that category. Ms Fisher was referred to the part of the letter that proposed discussing alternative options or plans to allow her to continue to work if she was unvaccinated. Ms Fisher said it did not say she would be allowed to continue to work.
Applicant letter of 17 December 2021
On 17 December 2021, the Applicant wrote back to the Respondent by email with another letter attached informing she felt her concerns had not adequately been addressed by the Respondent. This letter reiterated her concerns about the lawfulness of the Policy. It also referred to the Vaccination Direction and enquired if she should “assume that (Tract) will not accept reasonable adjustments for the duration of the Public Health Direction”.
It was put to Ms Fisher that her response to the letter of 17 December provided no alternative options or plans. Ms Fisher said she felt that was premature as she did not accept the policy was lawful or reasonable.
Employer letter of 21 December 2021
The Respondent replied to this letter on 21 December 2021. This letter again stated that it was Ms Fisher’s choice to be vaccinated and that the Policy made vaccination a requirement to attend Tract workplaces. The letter also again stated that any concerns about health in relation to the vaccine should be directed to a medical professional. The letter advised that the choice not to be vaccinated, in the absence of a medical contraindication, may have consequences for an employee’s ability to perform the full requirements of their role and that each case would be considered individually.
Ms Fisher was asked about Mr Lim’s response of 21 December 2021 to her letter of 17 December, and it was put to her that Mr Lim responded to the issues Ms Fisher raised. It was put to Ms Fisher that this letter also indicated a preparedness on the part of the Respondent to work with her to deal with this situation. Ms Fisher claimed this was not genuine, and the risk to herself would have been greater working from home than at work.
Letter of 10 January 2022
The Applicant sent a letter to the Respondent on 10 January 2022. This letter again referred to her position that she felt the Policy was tantamount to coercion, that this would lead to Tract being liable for adverse reactions to the vaccine, that the policy was unlawful and that she was dissatisfied with the responses to her letters. This letter again requested Tract provide the evidence in relation to the Policy and the risk assessment. Ms Fisher also raised that she felt her role did not require her to ‘interact with the public’.
Ms Fisher was referred to her response to Mr Lim on 10 January 2022, and it was put to her that nowhere in that letter did Ms Fisher propose any options to deal with the situation. Ms Fisher accepted that.
Employer response of 14 January 2022
The Respondent replied to the 10 January letter on 14 January 2022. Their response indicated that Ms Fisher did have aspects of client facing duties as part of her role. Their letter reiterated that in accordance with the Policy she was required to provide her vaccination status, or medical contraindication before 31 January 2022.
Applicant letter of 17 January 2022
On 17 January 2022, the Applicant wrote to the Respondent with a list of the evidence she stated the Respondent refused to supply at her request. In this letter she stated she felt ‘disrespected and unheard’. She stated that she felt it was with the Respondent to propose a solution or outcome to the situation.
Accompanying this letter was a document entitled “First and Final Notice of Demand for Better and Further Particulars” (First and Final Notice). This document stated that a failure to respond to the notice would be taken as acceptance of its contents. The letter stated, inter alia, that Ms Fisher required the Respondent’s and Mr Lim’s personal guarantee that the vaccine was “100% safe and effective and will do (Ms Fisher) no harm whatsoever”.
Employer response of 21 January 2022
On 21 January 2022, the Respondent replied confirming receipt of the Applicant’s email and letters. Their response informed that the Respondent did not have an intention to require employees return to the office/worksites and that working from home arrangements would likely remain in place. The letter informed that when the Respondent believed it to be safe, that they would communicate this to Employees. The letter also stated that if the Applicant was required to return to the office and remained non-compliant with the Policy, that disciplinary action including the termination of her employment might be considered.
Ms Fisher accepted that she received a further letter from Mr Lim of 21 January 2022 setting out the consequences of her not being vaccinated.
Applicant’s letter of 24 January 2022
On 24 January 2022, Ms Fisher’s response to the Respondent included the reasons why it was unsuitable and impossible for her to work from home. This letter stated that she was not refusing to comply with the policy, but that she was requiring proof that it was lawful. She also stated that until she was supplied with the ‘proof’ that she could “see no reason not to continue with (her) employment duties as per normal”.
Employer letter of 28 January 2022
On 28 January 2022, the Respondent replied, reiterating the impact that the risk of the spread of COVID-19 had and that the Policy was implemented to protect Tract employees and visitors. The Respondent stated that the Policy set out the relevant information considered in its development. Further, the Respondent informed that whilst the Respondent was sympathetic to her issues with working from home, that it did not agree to allow Ms Fisher to work from the office at that stage.
Ms Fisher was also asked about this letter and she agreed she remembered reading it. Ms Fisher accepted that the letter included saying that unless she was vaccinated, she was not to work in the office from 31 January 2022.
31 January 2022 - Commencement of requirement to be vaccinated in order to attend work
From 31 January 2022 the Policy required all employees and other workers be vaccinated in order to attend the office/workplace by 31 January 2022. On this date, the Applicant wrote to the Respondent informing that her concerns hadn’t been answered and that the Respondent hadn’t responded to the 15 concerns in the First and Final notice document. The letter continued, stating that Ms Fisher was not refusing to comply with the policy, rather that she would provide the required information once she was supplied with proof that she was required to do so under the Privacy Act 1988.
Ms Fisher said she made it clear to Mr Harvison around this time that she would not be able to successfully perform her role from home.
It was put to Ms Fisher that she did not comply with the direction not to attend the office. Ms Fisher said she knows that she did go into the office after 31 January 2022 to pack up. Ms Fisher said she could not recall if she had a meeting there after 31 January 2022.
It was put to Ms Fisher that the document the Applicant had obtained recording logs of entries to the Respondent’s Sunshine Coast office indicated that Ms Fisher, contrary to the directions of the Respondent not to enter the office at the Sunshine Coast, did enter the office on 31 January 2022, 1 February, 4 February, 2 March, 7 March, 8 March, 11 March, 22 March, 25 March, 28 March and 6 April 2022. Ms Fisher accepted that she did access the office on these dates. Ms Fisher said she was accessing equipment, and the entries that occurred after her termination were at the direction of the Respondent to remove property from the office.
Employer response to Applicant 1 February 2022
On 1 February 2022, the Respondent replied to Ms Fisher confirming the Applicant had not complied with the vaccination Policy and confirmed, again, that Ms Fisher was required to work from home. The Respondent highlighted that they were aware that Ms Fisher had attended the workplace on 31 January 2022, without wearing a mask and in breach of the Policy. The Respondent requested Ms Fisher explain her reasoning for attending the Office, and why she had not worn a mask as required under the Queensland Government’s Public Health Face Mask Requirements Direction (No. 4) (Face Mask Requirement).
2 February 2022 Applicant response to employer
The following day, the Applicant sent a letter stating she required the Respondent reply to her First and Final notice before 14 February 2022 and stated that in the absence of this that she would ‘serve an estoppel notice’. She further stated she believed she was exempt from the Face Mask Requirement because she was able to maintain physical distance and worked alone in an office. She further stated that she had a medical exemption to wearing a face mask but that any inquiry into this would “constitute discrimination” against her.
18 February 2022
On 18 February 2022, the Respondent requested to meet with Ms Fisher to discuss her correspondence and particularly her issues relating to working from home.
25 February 2022
On 25 February a meeting was held with Ms Fisher, Mr Lim and Ms Martin. During this meeting it was agreed that Ms Fisher’s current working from home arrangement was not working and that Ms Fisher had only been able to perform a few hours of work per day effectively. Suggestions on how to improve this situation were discussed but ultimately refused by Ms Fisher as inappropriate. Following the meeting, the Applicant commenced a period of leave.
Ms Fisher disputed Mr Harvison’s evidence about Ms Fisher refusing to be involved in projects. Ms Fisher said contrary to Mr Harvison’s claim that he supported Ms Fisher in working from home, Ms Fisher said he provided little support.
Ms Fisher agreed she had a meeting with Mr Lim and Ms Martin on 25 February 2022. Ms Fisher agreed that an email sent to her after the meeting asked for information about her arrangements for working from home, and Ms Fisher accepted that she did not provide the information requested by the time requested. It was put to her that she did not provide the information for a month and she agreed. It was put to Ms Fisher that she did not provide any response to the request for other possible solutions, and she responded there were not any.
Ms Fisher agreed that for the purpose of the subsequent show cause process she decided to respond in writing rather than have a meeting.
Ms Fisher disputed the evidence in Mr Lim’s statement that she said to Ms Martin she had not researched home office options and disputed his evidence that she never had any intention to work from home. Ms Fisher said it is false that she refused to cooperate with the Respondent’s offer for her to work from home.
Ms Martin said that the Respondent tried to come up with a solution with Ms Fisher to be able to work from home. Ms Martin was asked about what the Respondent did when it was apparent Ms Fisher would not be able to do her duties at home. Ms Martin said she understood that is what the employer was trying to resolve with Ms Fisher.
Ms Martin said she had discussions with Mr Harvison about trying to accommodate Ms Fisher, and Ms Martin said Mr Harvison had inquired whether Ms Fisher’s husband could adjust his working days and whether her hours could be adjusted.
It was put to Ms Martin by Ms Fisher that she disputed Ms Martin’s evidence that Ms Fisher was not interested in finding a solution. Ms Martin said that in the course of the meeting Ms Fisher questioned the point of the meeting, implying that there was no point in trying to come up with solutions.
Mr Lim said he understood the Respondent purchased a stand-up desk so that Ms Fisher could work from home. Further the Respondent asked for the dimensions of Ms Fisher’s home office so that the Respondent could purchase some other equipment so the Respondent could help Ms Fisher to adjust her work from home arrangements and help Ms Fisher to be able to work from home. Mr Lim said during the two-month period after the implementation of the policy the Respondent wanted to work with Ms Fisher to allow her to work from home.
Mr Harvison was asked whether he was aware that Ms Martin or Mr Lim made any efforts to assist Ms Fisher work from home after the implementation of the policy on 31 January 2022. Mr Harvison said he understood that they were both working with Ms Fisher to address the issues.
Mr Harvison was asked whether he agreed Ms Fisher attempted to complete her duties when she was working from home. Mr Harvison said he did not think so.
21 March 2022
Upon Ms Fisher’s return, on 21 March 2022, the Respondent sent a letter requiring the Applicant show cause as to why her employment should not be terminated as a result of her not having capacity to perform her position (Show Cause Letter).
22 March 2022
The following day, Ms Fisher provided her response to the Show Cause Letter informing of her view that the vaccine was an experimental drug, that the policy was coercion, that she was willing to perform her role and that the Respondent was forcing her to work from home. Supplementary to her response, Ms Fisher provided a document entitled “Notice of Demand and Liability”. This document stated that “Liability is currently set at, but not limited to the sum certain of $250,000.00” and specified that the Respondent and Mr Lim personally were liable.
Ms Fisher was referred to this document. It was put to Ms Fisher that the document said there is a current liability amount of $250,000 and further it said Ms Fisher did not want to speak to her employer. Ms Fisher said that was not true.
It was put to Ms Fisher that asserting that her employer has a liability of $250,000 to her, and that she otherwise did not want to be contacted by telephone is not conducive to an ongoing employment relationship. Ms Fisher said the reference to not wanting to talk by telephone was only regarding the notice, and not generally. Ms Fisher said if the relationship had broken down it was the result of the Respondent’s actions.
Ms Fisher accepted that the Respondent tried to arrange meetings with her after this point and agreed she did not see any point to meeting until after the “Notice of Demand and Liability” had been responded to, as well as her other concerns. Ms Fisher was referred to a letter of 25 March 2022 she had sent to another employer about potential employment. This letter was produced subject to an order of the Commission. It was put to Ms Fisher based on the letter that she had no intention of returning to work for the Respondent. Ms Fisher said she had not left. Ms Fisher accepted that she had sent correspondence to an alternative potential employer seeking employment by this stage, however Ms Fisher said that she felt that the Respondent was seeking to arrange a meeting with her to terminate her employment.
28 March 2022
On 28 March 2022, the Respondent terminated the Applicant’s employment because of her inability to work either from the workplace or work effectively from her home, rendering her not ready, willing and able to perform the genuine and reasonable requirements of her position.
Ms Fisher accepted that she received notice pay of 12 weeks in the amount of $22,993.02 cents from the Respondent. Ms Fisher accepted she obtained other employment about five weeks after her termination.
CONSIDERATION
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:
(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.[6]
(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)
A question was put on behalf of Ms Fisher in the course of the hearing claiming that each of the members of the ATAGI board had a conflict of interest. There was no evidence led by the Applicant to support that proposition. It was also submitted that given the limited extent of Ms Fisher’s contact with others, Ms Fisher could have been allowed to continue to work from the Sunshine Coast office.
Ms Fisher submitted that she felt she was denied the information she needed to make the decision as to whether to be vaccinated, and the situation in Queensland was different to New South Wales and Victoria and this should have been taken into account. Further the extent of her contact with others was exaggerated, and her specific situation at home was not properly considered.
The vaccination policy of the Respondent was clearly directed to workplace health and safety. The following factual propositions were set out in the Full Bench decision in Mt Arthur Coal:[7]
COVID-19 involves a high burden of disease, greater than influenza;
Any infected person is at risk of developing serious illness from the virus, which may lead to death;
The risks posed by COVID-19 have changed with the rapid rise of the Delta variant which is more infectious and has more severe health effects than previous variants;
All COVID-19 vaccines currently available in Australia are effective at preventing symptomatic infection, including from the Delta variant;
All COVID-19 vaccines currently available in Australia substantially reduce the risk of serious illness or death, including from the Delta variant;
All COVID-19 vaccines currently available in Australia are safe and any adverse effects are usually mild. There is a much higher risk of developing serious complications and dying from acquiring COVID-19;
An unvaccinated person is more likely to acquire COVID-19 from another unvaccinated person, rather than a vaccinated person;
While other measures, such as mask wearing, and social distancing, are demonstrated to reduce the transmission of COVID-19, the effectiveness of these measures depends on people applying them consistently or correctly. They do not provide a substitute for the constant protection offered by vaccines, nor do they reduce the risk of developing serious illness once somebody acquires an infection;
Vaccination is the most effective and efficient control available to combat the risks posed by COVID-19; and
(10)Even with high vaccine rates in the community, COVID-19 will remain a significant hazard in any workplace in which there is a possibility that people will interact or use the same common spaces (even at separate times). The Mine is clearly such a workplace.
The Applicant provided as part of its submissions a series of medical journal articles. There was no expert evidence on the subject. I adopt the observation of Deputy President Asbury in the matter of Mrs Eileen Owens v I-Med Radiology Ltd where the Deputy President observed that Covid-19 vaccinations are approved for use in Australia pursuant to Commonwealth legislation and employers are not required to prove their safety or efficacy to employees or the Fair Work Commission in the event of a dispute with an employee.[8]
Ms Fisher’s position as contracted required her to work at both the Brisbane and Sunshine Coast offices. I accept that while temporary measures were put in place because of the Covid-19 pandemic, the Respondent is entitled to require that the employee meet the requirements of their employment contract of employment when temporary measures are no longer required.
The evidence supports a conclusion that the majority of employees supported the vaccination policy on the basis of the survey responses. The Board of the Respondent considered this, and also the risk assessment.
It was submitted for Ms Fisher that if no proper risk assessment was done then the Respondent had not complied with the requirements of workplace health and safety legislation. It was also submitted that the Respondent had not disclosed the risk assessment to Ms Fisher. The evidence supports the conclusion that the risk assessment conducted by the Respondent is detailed and I am satisfied that the risk assessment identifies the risk that needed to be mitigated and that the Respondent was entitled to adopt the policy ultimately endorsed by the Board as the appropriate way to mitigate that risk. The ATAGI advice was also considered.
Ms Fisher’s own evidence supports the conclusion that the risk assessment contemplated a person in her situation and the risk associated with her performing her role, including encountering others such as clients and other employees of the Respondent.
The meeting of 3 December 2021 provided employees an opportunity for consultation, and it was not implemented until approximately two months later. I am satisfied on the state of the evidence that any consultation obligations under workplace health and safety law have been met by the Respondent.
I am also satisfied based on the evidence that the Respondent did attempt to engage with Ms Fisher about an arrangement to modify her working arrangements such that her role could be performed from home however it was apparent this was not workable from Ms Fisher’s perspective.
Ms Fisher’s case raised the issue of the application of the Privacy Act in a general way. On the evidence the request of the Respondent to provide evidence of her vaccination status did not put undue pressure on the Applicant to undergo a vaccination. The decision remained with Ms Fisher and it is open for her to decline. There was no evidence of a lack of compliance with the Privacy Act.
Consistent with the conclusion in the Mt Arthur Coal decision, there is also nothing unlawful about the direction in the policy in relation to vaccination. I am satisfied on the basis of the evidence that the direction of the employer on the basis of its policy was both a lawful and reasonable direction.
Given Ms Fisher had decided not to be vaccinated, her decision resulted in her being excluded from working in the Respondent’s offices. The evidence also supports a conclusion that Ms Fisher was not meeting her contractual obligations to complete her contracted hours of work at home, and further did not herself believe she could fulfil the requirements of her role working from home.
Considering that situation, Ms Fisher’s failure to comply with the Respondent’s direction had the consequence that Ms Fisher could not perform the inherent requirements of her role, and as she could not perform her role, for that reason the Respondent has a valid reason for termination.
(b) and (c) whether the person was notified of that reason and had an opportunity to respond
The Applicant and Respondent corresponded in depth over a period of several months leading to the dismissal. The Applicant was sufficiently notified as to the date her vaccination status would be required and had discussions about possible adjustments to her working situation. I am satisfied that the Applicant was notified of the reason for her dismissal.
The Applicant was given the opportunity to respond on several occasions to indicate her position in relation to the policy and this is supported by the regular exchange of correspondence between the parties, and the show cause process. I am satisfied that the Applicant had an opportunity to respond.
(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
The Respondent submitted that there had not been any unreasonable refusal of a support person to assist in any relevant discussion. Further, the Respondent submitted that there is no positive obligation on an employer to offer an employee the opportunity to have a support person[9] and referred to the Explanatory Memorandum, Fair Work Bill 2008 which states:
“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.”
In this instance, I weigh this factor as neutral.
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal
As to the reason for termination this factor is mostly irrelevant. I therefore weigh this at neutral.
(f) and (g) the degree to which the size of the employer’s enterprise and the absence of dedicated human resource management expertise would be likely to impact on the procedures followed
The Respondent is not a small business and followed a procedure leading to the decision to terminate the Applicant’s employment.
(h) any other matters that the FWC considers relevant
The Applicant was paid 12 weeks pay on termination and obtained other employment within approximately 5 weeks after her termination, earning an income in the new employment not dissimilar to the income Ms Fisher was receiving at the time of termination. This indicates that the termination has not had a significant financial impact on Ms Fisher as at the time of the hearing.
It is also apparent from the evidence in the hearing, that whilst it is not something that was within the knowledge of the Respondent at the time of termination, Ms Fisher did not comply with the direction of the Respondent not to attend the Sunshine Coast office whilst she remained unvaccinated, and in fact disregarded this direction on numerous occasions. This evidence tells against a conclusion to her termination was unfair.
Ms Fisher also decided to send a notice to the Respondent toward the end of the employment relationship making a demand of the Respondent to pay a significant sum of money to her. The step by the Applicant tends to support a conclusion that the employment relationship was becoming untenable.
I have taken into account that Ms Fisher had a lengthy period of employment with the Respondent, and further that prior to the issues that arose over the vaccination policy there were no performance or conduct issues.
CONCLUSION
I have weighed each of the matters that are required to be considered in section 387 of the Act. Having found that the Respondent had a valid reason for dismissal, and that otherwise termination was not procedurally flawed, and that there are other factors in this case telling against the termination being unfair, I have concluded that the termination was not harsh, unjust or unreasonable. On that basis the application is dismissed.
COMMISSIONER
Appearances:
Ms Elli Rosanne Fisher on her own behalf.
Mr Angus Galbraith of Counsel instructed by Maddocks Lawyers for the Respondent.
Hearing details:
2022
Brisbane (via Microsoft Teams Video)
6 July
[1] Exhibit 1.
[2] Exhibit 2.
[3] Exhibit 6.
[4] Exhibit 7.
[5] Exhibit 8.
[6] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) [69].
[7] CFMMEU v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059.
[8] [2022] FWC 1823.
[9] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
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