Faatupu Sipaia v ALDI Foods Pty Ltd

[2022] FWC 2463

[2022] FWC 2463

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Faatupu Sipaia
v

ALDI Foods Pty Ltd

(U2022/3284)

COMMISSIONER MCKINNON SYDNEY, 15 SEPTEMBER 2022

Application for an unfair dismissal remedy – non-compliance with COVID-19 vaccination policy.

1. For more than 6 years, Ms Faatupu Sipaia worked as a Store Assistant for ALDI Foods Pty Ltd (ALDI). On 28 February 2022, Ms Sipaia’s employment was terminated for failing to comply with a mandatory vaccination policy introduced by ALDI in connection with the COVID-19 pandemic.

1. On 17 March 2022, Ms Sipaia applied in time to the Commission for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (Act). Ms Sipaia submits that she was a good and loyal employee for more than 6 years. She worked hard and without falling ill during the pandemic. Ms Sipaia also submits that ALDI cannot mandate vaccination against COVID-19 when there is no obligation to become vaccinated nor receive any other medical treatment under the ALDI Prestons Enterprise Agreement 2020 (the Agreement), which applied to her employment. Further, Ms Sipaia submits that mandatory vaccination is harmful and illegal because COVID-19 vaccines are unsafe and it is impossible to have informed consent. Ms Sipaia also submits that it is unfair for a mother of four children under 10 years of age to be thrown out of work for exercising her right to refuse an experimental vaccine and choose what goes into her body.

1. ALDI denies that the dismissal of Ms Sipaia was unfair. ALDI submits that its mandatory vaccination policy is lawful and reasonable, noting that it was introduced after consultation with employees. Under the policy, store employees were required to be fully vaccinated against COVID-19 by 1 March 2022. Ms Sipaia was aware of the requirement but did not become vaccinated or provide evidence of an exemption from the requirement by the deadline. Her employment was then terminated. ALDI says there was a valid reason for the dismissal and that it was not otherwise harsh, unreasonable or unjust.

1. A person has been unfairly dismissed under the Act if the Commission is satisfied that:

   (a)   the person has been dismissed,

   (b)   the dismissal was harsh, unjust or unreasonable,

   (c)   the dismissal was not consistent with the Small Business Fair Dismissal Code, and

   (d)   the dismissal was not a case of genuine redundancy.[1]

1. Under section 382 of the Act, a person is protected from unfair dismissal if they have completed at least the minimum employment period; and they are either covered by a modern award; or an enterprise agreement applies to them in relation to their employment; or their annual earnings are less than the “high income threshold”.[2]

1. The parties agree that Ms Sipaia was dismissed from her employment on 28 February 2022. Her application was within the 21‑day filing period established by the Act. Ms Sipaia’s period of employment with ALDI was more than the minimum employment period and the Agreement applied in relation to her employment. Ms Sipaia is protected from unfair dismissal.

1. ALDI employs more than 12,000 employees.[3] The dismissal could not have been consistent with the Small Business Fair Dismissal Code because ALDI was not a small business employer at the time of dismissal. The dismissal was also not a case of genuine redundancy.

1. The question is whether the dismissal was harsh, unjust or unreasonable.

Chronology

1. On 30 August 2021, ALDI posted a Staff Update encouraging employees to become vaccinated “ASAP”.

1. On 20 October 2021, ALDI published an update on its ‘myALDI’ app and sent an email to all employees advising that it was considering a safety management plan to manage the risks of COVID-19 in its stores, distribution centres and warehouses (COVID Safety Plan). One of the measures notified to employees as under consideration was a requirement for employees to become fully vaccinated against COVID-19 as a condition of attending for work. Employees were invited to participate in an anonymous survey to provide feedback on the COVID Safety Plan, including the proposed requirement for employees to be vaccinated, by 31 October 2021.

1. On 27 October 2021, ALDI sent a further email to its employees reminding them to submit their views about the COVID Safety Plan by 31 October 2021 via the employee survey. Ultimately, over 4,500 employees participated in the survey. 89% of participants were vaccinated against COVID-19 or would be shortly, and 70% indicated their support for mandatory vaccination for all employees except those with a valid medical exemption.

1. On 1 November 2021, ALDI management sent a communication to relevant managers summarising the survey results to confirm it was moving ahead with its COVID Safety Plan, which would require all employees to become vaccinated by 1 March 2022 as a condition of ongoing employment (Vaccination Policy).

1. On 3 November 2021, the CEO of ALDI, Mr Tom Daunt, notified all employees by email that ALDI was introducing the Vaccination Policy. The email foreshadowed consultation on key elements of the proposed policy with health and safety representatives (HSRs) from across the business, including warehouse, transport and store operations, and head office employees.

1. On 4 November 2021, a risk assessment was completed by the COVID-19 Working Group and ALDI’s National Safety Team. The purpose of the risk assessment was to assess risk and provide recommendations to the COVID-19 Working Group and broader business when making decisions about requirements for vaccination and the wearing of masks. Among other things, the risk assessment recommended a requirement of vaccination or medical exemption for all employees, contractors, labour hire, consultants, volunteers and visitors to site for more than 15 minutes (other than customers).

1. On 5 November 2021, a briefing guide was sent to Executive Managers, enclosing a letter to be distributed to HSRs by 10 November 2021. The letter invited HSRs to consult with their work groups and provide feedback about a proposed rollout of the Vaccination Policy by 22 November 2021.

1. Between 10 November and 21 November 2021, employees (via their work groups) provided feedback to HSRs who in turn filled out HSR Consultation template forms and provided them to the relevant Executive Manager. HSR Consultation forms were collated by the National Safety Team and provided to the COVID-19 Working Group.

1. On 12 November 2021, the National Safety Team hosted a consultation meeting with HSRs, the Regional WHS Committee and the Executive Manager - Safety and Services. At the meeting, the proposed Vaccination Policy was discussed as well as exemption guidelines to vaccination and the return to office requirements.

1. On 22 November 2021, the deadline for providing feedback on the proposed Vaccination Policy expired.

1. Following consultation, ALDI decided to proceed with the Vaccination Policy. On 30 November 2021, employees were formally notified of the Vaccination Policy on the ‘MyALDI’ platform, which among other things required them to be fully vaccinated against COVID-19 by 1 March 2022 and to provide proof of vaccination status or valid medical exemption by 10 January 2022.

1. On 1 December 2021, an email was sent to ALDI employees about the Vaccination Policy, providing a link to the policy and reminding employees of the requirement to confirm their vaccination status or valid medical exemption by 10 January 2022.

1. On 1 December 2021, employees were sent an update asking them to confirm their vaccination status as a condition of ongoing employment by 10 January 2022.

1. Later in December 2021, ALDI became aware of comments made by Ms Sipaia at a Christmas party that she did not intend to become vaccinated. Consistent with these comments, Ms Sipaia did not provide ALDI with evidence of her vaccination status or valid medical exemption by 10 January 2022 as directed.

1. On 22 December 2021, a reminder email was sent to employees who had not provided evidence of vaccination status asking that this be provided at their earliest convenience.

1. On 11 January 2022, employees who had not provided evidence of vaccination status or medical exemption were sent a letter requiring them to do so by 17 January 2022. The letter advised that employees who were not, or did not intend to be, fully vaccinated by 1 March 2022, would be in breach of the Vaccination Policy and no longer able to continue to work from 1 March 2022.

1. Ms Sipaia received each of the group emails and updates described above. She did not respond to any of the emails or raise any concerns about the Vaccination Policy with her Executive Manager, Mr Arthur Michael (Mike) Richardson.

1. On 18 January 2022, a show cause letter was sent to Ms Sipaia by email informing her that ALDI was considering terminating her employment because she did not intend to be vaccinated and for that reason, could not work in accordance with ALDI’s safety policies and procedures. Ms Sipaia’s evidence is that she did not get the letter, which said she had to be vaccinated by “28 January 2022”. I do not accept this evidence and find that the letter was sent to Ms Sipaia and that she was aware of its contents. The letter was sent to the email address being used by Ms Sipaia over the period from January to February 2022, including in correspondence with ALDI. The letter indicated that she should let ALDI know if she intended to become vaccinated by 28 February 2022.

1. Ms Sipaia gave evidence that she received a letter explaining her termination that also said she had to be vaccinated by 28 January 2022. Ms Sipaia is wrong about the date by which vaccination was required, and the letter of termination of 28 January 2022 does not provide a further opportunity for Ms Sipaia to become vaccinated to avoid dismissal. This is in contrast to the letter of 18 January 2022, where this option was raised directly. For these reasons, I prefer the evidence of Mr Richardson that he was copied in on an email to Ms Sipaia on 18 January 2022 containing the show cause letter, and that he rang Ms Sipaia on the same day to discuss the letter.

1. Ms Sipaia did not respond to the show cause letter. In the discussion with Mr Richardson on 18 January 2022, Ms Sipaia acknowledged the letter and expressed her disappointment, saying it was “sad to end this way”.

1. On 21 January 2022, ALDI issued an update for employees “waiting for the Novavax vaccine”. The update advised that the Novavax vaccine had recently been approved by the Therapeutic Goods Administration and that employees would be able to access annual leave or leave without pay between 1 and 31 March 2022 if they wanted to become vaccinated with Novavax. These employees would need to provide proof of vaccination bookings by 10 March 2022, to allow for a second dose by 31 March 2022. The letter advised that it would not be possible to hold positions open beyond 31 March 2022 for employees who were not fully vaccinated. Employees were asked to advise their Personnel Leader as soon as possible if they intended to be vaccinated with the Novavax vaccine. Ms Sipaia did not provide any advice of this kind to ALDI.

1. On 28 January 2022, Ms Sipaia was sent a letter of termination, giving one month’s notice that her employment would terminate on 28 February 2022 due to her failure to comply with the Vaccination Policy. Mr Richardson also called Ms Sipaia to let her know that the letter was being issued and to arrange a meeting with her. Ms Sipaia did not have any questions for Mr Richardson and did not raise any concerns with him about either the Vaccination Policy or her dismissal.

1. On 31 January 2022, Ms Sipaia contracted COVID-19. As a result, the meeting arranged with Mr Richardson was rescheduled from 2 to 3 February 2022, and from in person to over the phone.

1. On 3 February 2022, Mr Richardson and Ms Sipaia spoke over the phone. The arrangements set out in the letter of 28 January 2022 were confirmed. Ms Sipaia thanked Mr Richardson for the information. Again, she did not raise any questions or concerns about the process or the fact of her dismissal.

Was the dismissal harsh, unjust or unreasonable?

1. The phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd[4] as follows:

“....It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

Procedural matters

1. The reason for dismissal was Ms Sipaia’s failure to comply with ALDI’s Vaccination Policy. The context in which it was given, the period of notice and consultation with employees in relation to the Vaccination Policy, the multiple emails and updates provided to Ms Sipaia about the need to comply with the Vaccination Policy and Ms Sipaia’s decision to not to comply, I am satisfied that this was a valid reason for dismissal. Specifically, Ms Sipaia was on notice from 30 November 2021 that she was required to comply with the Vaccination Policy as a condition of ongoing employment. The show cause letter of 18 January 2022 provided additional notice of the requirement ahead of the letter of termination on 28 January 2022. On that day, Ms Sipaia was given one month’s notice of dismissal for failing to comply with the Vaccination Policy. Ms Sipaia knew about the fact of her dismissal both before, and at the time, it took effect.

1. Ms Sipaia was given multiple opportunities to respond to the requirement to comply with the Vaccination Policy and later, to the question of why her employment should not be terminated. Ms Sipaia did not take up any of these opportunities. There was no unreasonable refusal by ALDI to allow Ms Sipaia to have a support person present to assist in discussions about the dismissal. The dismissal was not related to unsatisfactory performance and the parties agree that Ms Sipaia was otherwise a good and valued employee.

1. I am satisfied that Ms Sipaia was afforded procedural fairness in connection with the dismissal.

The size of the employer’s business and access to dedicated human resources management specialists or expertise

1. ALDI is a business of significant size, employing more than 12,000 employees. It has dedicated human resources management expertise as well as established processes and structures in place to ensure procedural fairness in connection with termination of employment. As I have found, the procedure followed by ALDI in terminating Ms Sipaia’s employment was fair and based on a valid reason for dismissal. Arrangements were made to ensure that Ms Sipaia had adequate notice of the requirement to become vaccinated and information about the consequences of failing to do so. Developments in relation to the Novavax vaccine offered the opportunity for additional time to comply with the Vaccination Policy and avoid dismissal. Ms Sipaia did not engage with the numerous opportunities to raise her concerns about the policy and its likely effect on her employment with ALDI before she was dismissed.

Other relevant matters

1. The sad reality in this case is that a mutually beneficial employment relationship has come to an end despite this not being what either party wanted. While the choice about whether to become vaccinated is a personal one, Ms Sipaia’s decision, at least partly based on fear and misinformation, placed her in conflict with the reasonable and lawful requirements of ALDI. The consequence was that she lost the job that had helped support her family for many years. Equally, ALDI lost a valued member of its team.

Conclusion

1. On balance, I am not satisfied that Ms Sipaia’s dismissal was harsh, unjust or unreasonable. It was for a valid reason. It was procedurally fair. None of the other relevant circumstances provide a basis for altering the outcome in Ms Sipaia’s favour.

1. Ms Sipaia was not unfairly dismissed.

1. The application is dismissed.

COMMISSIONER

Appearances:

D Kikhtev for the applicant.
S Crilly of Seyfarth Shaw for the respondent.

Hearing details:

2022.
Sydney (by video):
July 6.

[1] Fair Work Act 2009 (Cth), s.385.

[2] See s. 382(b)(iii) and Reg. 3.05 of the Fair Work Regulations 2009.

[3] Form F3.

[4] [1995] HCA 24; (1995) 185 CLR 410 at 465.

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