Emily Brown v Woolworths Group Limited - [2022] FWC 2780

[2022] FWC 2780

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Emily Brown
v

Woolworths Group Limited

(U2022/3299)

Chantelle Brown
v

Woolworths Group Limited

(U2022/3316)

DEPUTY PRESIDENT EASTON

SYDNEY, 17 OCTOBER 2022

Application for an unfair dismissal remedy – refusal to be vaccinated against COVID-19 – alleged invalidity of public health orders because of inconsistency with the Australian Constitution – assertion that no vaccines against COVID-19 have been approved – valid reason found – procedural fairness – dismissal was not harsh, unjust or unreasonable – application dismissed.

Ms Emily Brown and her daughter Ms Chantelle Brown were employed by Woolworths Group Limited as casual shop assistants at the Woolworths supermarket in Jindabyne. In February 2022 Woolworths introduced a group-wide policy that required each of its 180,000 employees to be vaccinated against COVID-19, subject to a small number of exemptions. Emily and Chantelle Brown were dismissed from their employment because they did not provide proof of vaccination.

Emily Brown commenced employment with Woolworths Group Limited (Woolworths) in July 2020. Chantelle Brown commenced employment in March 2021. Both were dismissed by letter dated 12 March 2022.

On 18 March 2022 Emily Brown made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Woolworths.

On the same day Emily Brown also filed an application under s.394 on behalf of Chantelle Brown. Emily and Chantelle’s applications were heard together and the circumstances in each application are largely indistinguishable.

On 5 July 2022 I gave permission for Woolworths permission to be represented by a lawyer pursuant to s.596 of the FW Act.[1]

On 18 July 2022 I declined to make orders requiring Woolworths’ Chief Executive Officer and Chief Medical Officer to attend and give evidence.[2]

At final hearing I also declined the Applicants’ application that I recuse myself from hearing the matter. I gave an ex-tempore decision and the Applicants immediately asked that the hearing be adjourned so that they could appeal my decision. I declined the adjournment application.

Early in the proceedings I gave the Applicants permission to be represented by Mr Alex Smith. Mr Smith is not a lawyer and says he is not a paid agent. There was some conjecture about whether the Applicants have a right to be represented by an unpaid agent who is not a lawyer. In a preliminary directions hearing Emily Brown suggested, in effect, that because s.596 is silent on requiring permission to be represented by unpaid non-lawyers, that she and Charlotte therefore have an unqualified right to have a person such as Mr Smith appear for them. I do not agree. The normal position is that parties in proceedings in the Commission must appear on their own behalf (per Warrell v Walton [2013] FCA 291, (2013) 233 IR 335 at [24]). Section 596 imposes specific requirements that must be satisfied before the normal position can be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 2780
Decision Date: 17 OCTOBER 2022

CaseChat Overview and Summary

The applicants, Emily Brown and Chantelle Brown, both former casual employees of Woolworths Group Limited, sought relief from the Fair Work Commission for what they alleged were unfair dismissals. The applicants were dismissed after they failed to comply with Woolworths' vaccination policy, which required all employees to be vaccinated against COVID-19 by a certain date. The applicants' claims were dismissed by the Deputy President. The applicants' arguments were largely based on the premise that the vaccination policy was unlawful. However, the Deputy President found that the policy was lawful as it was based on the implied term in all contracts of employment that employees must follow the lawful and reasonable directions of their employer. The Deputy President also found that the policy was reasonable, in part due to the expert evidence provided by Dr Paul Griffin, which demonstrated the benefits of vaccination, particularly in the workplace. The Deputy President found that the dismissals were not harsh, unjust or unreasonable as there was a valid reason for the dismissals, the applicants were notified of the reason, and they were given an opportunity to respond to the reason.

Orders