| [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…
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- [2022] FWC 2780
- Decision Date
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