Emily Brown v Woolworths Group Limited - [2022] FWC 1870

[2022] FWC 1870

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Emily Brown
v

Woolworths Group Limited

(U2022/3299)

Chantelle Brown

Woolworths Group Limited

(U2022/3316)

DEPUTY PRESIDENT EASTON

SYDNEY, 18 JULY 2022

Application for an unfair dismissal remedy – section 590(2)(a) – application for an order requiring a person to attend Fair Work Commission – orders refused.

On 18 March 2022 Ms Emily Brown and her daughter Ms Chantelle Brown made applications pursuant to s.394 of the Fair Work Act 2009 (Cth), alleging that they had been unfairly dismissed from their casual employment with Woolworths Group Limited.

On 15 November 2021 Woolworths Group Limited (“Woolworths”) introduced a Covid-19 Vaccination Policy (Vaccination Policy) that required staff to be vaccinated against Covid-19. Both Applicants refused to be vaccinated and were dismissed from their employment.

Both Applicants are represented by Mr Alex Smith, who is not legally qualified, nor medically qualified, is not a paid agent, but has strongly held legal and medical views that are opposed to vaccination and vaccination mandates.

The Applicants have sought orders under s.590(2)(a) of the Fair Work Act 2009 (Cth) (the FW Act) that two senior officers of Woolworths, Mr Bradford Banducci (CEO) and Dr Rob McCartney (Chief Medical Officer) to attend the Commission and give evidence. This decision only deals with the application for orders to attend to give evidence.

Section 590 of the FW Act is in the following terms:

“590 Powers of the FWC to inform itself
(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.
(2) Without limiting subsection (1), the FWC may inform itself in the following ways:
(a) by requiring a person to attend before the FWC;
…
(d) by taking evidence under oath or affirmation in accordance with the regulations (if any);
…
(i) by holding a hearing (see section 593).”

In Uijland v Airservices Australia [2020] FWC 3613, Deputy President Sams listed considerations that may arise when considering such orders:

Whether the person’s evidence is likely to be the same or corroborative of other persons who give evidence about the same matters and will add nothing to that evidence; see: Kennedy v Qantas Ground Services Pty Ltd [2019] FWC 4819;
Whether the evidence of the person concerns agreed or uncontested facts;
Whether the person’s evidence is otherwise obtainable from relevant documents, CCTV footage or business records:
Whether the person’s evidence has ‘apparent’, not necessarily direct relevance; see: Hu v Shanghai Garden Chinese Restaurant[2020] FWC 1308;
Whether there is an unwarranted or disproportionate inconvenience on an unwilling person being required to attend the Commission; or
Whether there is probative value in a person’s recollection of long passed historic events.

Both Mr Banducci and Dr McCartney are squarely in the Woolworths’ camp[1] and Woolworths has chosen not to lead evidence from either person. Jones v Dunkel[2] inferences may or may not 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 1870
Decision Date: 18 JULY 2022

CaseChat Overview and Summary

The applicants, Emily Brown and Chantelle Brown, sought an unfair dismissal remedy against Woolworths Group Limited, alleging they were unfairly dismissed due to their refusal to be vaccinated against Covid-19. Woolworths had implemented a Vaccination Policy requiring all employees to be vaccinated, leading to the termination of the applicants' employment when they refused to comply. The applicants sought orders under section 590(2)(a) of the Fair Work Act 2009 for Woolworths' CEO, Mr Bradford Banducci, and Chief Medical Officer, Dr Rob McCartney, to attend the Fair Work Commission and give evidence.

The legal issues before the court were whether the Commission should exercise its powers under section 590 to require Mr Banducci and Dr McCartney to attend and give evidence. The court considered the factors outlined in Uijland v Airservices Australia, including whether their evidence would have apparent relevance to the matters in contest. The applicants argued their evidence was necessary to interrogate and rebut Woolworths' assertions and evidence. However, Woolworths did not rely on any evidence from Mr Banducci or Dr McCartney and had not shown that their potential evidence would have apparent relevance.

The court found that there was no apparent relevance to any evidence Mr Banducci or Dr McCartney might give. Their potential evidence was likely to be the same or corroborative of other evidence already filed and would not concern contested facts. The court did not need to consider the other factors outlined in Uijland. The court concluded it was not necessary to exercise its powers under section 590 to require Mr Banducci or Dr McCartney to attend and give evidence.

In summary, the court declined to make any orders requiring Mr Banducci or Dr McCartney to attend the Commission to give evidence. The applicants were fundamentally entitled to interrogate and rebut Woolworths' assertions and evidence, but the court found their potential evidence was not necessary for the applicants to fairly prepare and present their case. The decision focused only on whether the Commission's powers should be exercised, not on the merits of the unfair dismissal applications themselves.

Orders