George Kazantzis v Patrick Stevedores Holdings Pty Limited
[2022] FWC 1576
•20 JUNE 2022
| [2022] FWC 1576 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
George Kazantzis and Ors
v
Patrick Stevedores Holdings Pty Limited
(U2021/11364; U2021/11023; U2021/11028; U2021/11030; U2021/11031; U2021/11793 & U2021/10923)
| COMMISSIONER JOHNS | SYDNEY, 20 JUNE 2022 |
Application for an unfair dismissal remedy
This decision concerns applications for unfair dismissal remedies commenced against Patrick Stevedores Holdings Pty Limited (Patrick/Respondent) under s 394 of the Fair Work Act 2009 (FWAct) by:
a) George Kazantzis, Stephen Whitling, Jake Whitling, Matthew Whitling, and Gorgi Nikolovski represented, with permission pursuant to s.596 of the FW Act, by NOH Legal and James Ryan of counsel;
b) Karen Kendall representing herself; and
c) Kevin Bracken represented by the Maritime Union of Australia.
(collectively, the Applicants)
In short,
a) The Applicants were variously employed between April 1985 and November 2021.
b) At the time of their dismissal the Applicants were employed as either stevedores at the East Swanson Dock at the Port Melbourne Terminal, as Straddle Operators or as Senior Clerks.
c) Each of the Applicants were required to perform their roles for the Respondent at the Port Melbourne Terminal. Their roles could not be performed remotely (although this was disputed by some of the Applicants).
d) All of the Applicants were dismissed on the grounds that they were unable to meet the inherent requirements of their jobs.
e) Each Applicant failed to provide the Respondent with proof that they had been vaccinated against COVID-19.
f) Consequently, pursuant to Victorian government directions, the Respondent was required not to allow each of the Applicants to attend the workplace on or after 15 October 2021.
g) At the date of the hearing before me, each of the Applicants remained prevented from attending for work at Patrick by reason of their continuing unvaccinated status.
The Applicants contend that the Respondent did not have a valid reason to dismiss each of them, that they were not notified of their dismissal correctly, that they were not provided with a genuine opportunity to respond, that they were not appropriately warned and that the procedure prior to their termination was insufficient. The Applicants each contend that their dismissal was unfair and seek financial compensation and reinstatement.
Background
Facts Common to all Applicants
The facts in this matter were largely uncontested. Consequently, I make the following findings of fact:
Each of the applicants were employed by the Respondent in its container stevedoring operation at East Swanson Dock, in the Port of Melbourne.
In early October 2021, the Victorian Acting Chief Health Officer issued the first iteration of the COVID-19 Mandatory Vaccination (Workers) Directions (Directions). The directions were issued pursuant to the Public Health and Wellbeing Act 2008 (Vic). The effect of the Directions was that:[1]
i. From 15 October 2021, workers in specified industries (including “port or freight workers” such as the applicants) were required to have received at least 1 dose of a COVID-19 vaccine. An employer could not allow an unvaccinated worker to attend for work outside the home. This date was effectively extended to 22 October 2021 if the employee had a booking to receive a first dose during the intervening week.
From 25 November 2021, the same workers were required to have received 2 doses of a COVID-19 vaccine, with the same consequence if they did not.
Employers were required to collect information about employees’ vaccination status (“vaccine information”), in the form of a certificate issued showing the vaccines received by the employee and recorded on the Australian Immunisation Register (AIR).
If an employer did not hold information about an employee’s vaccination status, it was required to treat them as unvaccinated.
On 1 October 2021, correspondence was issued to all employees following an announcement by the Victorian Government of the requirements that would come into effect under the Directions. Employees were informed that they were required to provide information about their vaccination status and information was provided about the availability of the vaccination.
On 8 October 2021, further correspondence was issued to all employees. As per the previous correspondence, the requirements of the Directions and the obligations which have been imposed on the employer were explained. Again, employees were reminded of their requirement to provide information as to their vaccination status. Employees were advised, if they were unable to work, pursuant to the directions, they would need to apply for a period of leave which would be considered. It was made clear that an indefinite period of leave was not able to be approved.
Following 15 October 2021, Patrick directly contacted employees to confirm their vaccination status, including the Applicants to this matter. Each of the applicants variously:
i.Advised that they were not vaccinated;
Failed or refused to supply “vaccine information”
Advised they had a booking to be vaccinated (which they failed to attend); or
Refused to engage with the request at all, in several cases because they were on leave.[2]
From 19 October 2021, Patrick issued correspondence to the Applicants to show cause as to why it should not terminate their employment.
From 25 October 2021, Patrick commenced issuing notices of termination to the Applicants.
Facts specific to the Applicant on Work Cover
The dismissal of Mr Kazantzis took effect on 17 November 2021 after he had made a Workcover claim, but before the claim was accepted (on 15 December 2021). Mr Kazantzis is of the view that he was not able or required to attend for work until his rehabilitation is completed.
On 14 October 2021, Mr Kazantzis attended the workplace on a rostered shift at which time he suffered a workplace injury resulting in a severe back injury. Mr Kazantzis continues to remain on Workcover and has not been required to work since 14 October 2021.[3]
Patrick submitted they first received a Workcover certificate of capacity from Mr Kazantzison 25 October 2021. [4]
Mr Kazantzis’s workers compensation claim was lodged on or around 12 November 2021.[5]
The claim was not accepted by Patrick workers compensation insurer until mid-December 2021.[6]
Patrick maintains that Mr Kazantzis was not on workers compensation when his employment was terminated, this occurred later. It is claimed that Mr Kazantzis was on personal leave at the time of his dismissal.[7] I accept the correctness of this leave assessment.
In the period after 1 October 2021, Mr Kazantzis did not provide Patrick any information regarding his vaccination status.[8] Mr Chris Brewster, Terminal Manager for the Respondent, submits that Mr Kazantzis refused to discuss this matter further with human resources in a phone call on 10 October 2021. Mr Kazantzis claims that during this phone call he explained that he would prefer to discuss such matters in person and no subsequent attempts to meet or speak were made.[9]
In early October 2021 Mr Brewster spoke at a pre-shift toolbox talk to discuss the Victorian vaccination requirements with workers. It is claimed that at this meeting, Mr Kazantzis was openly critical to the government’s approach, referring it as against the Human Rights Charter and the vaccine as experimental.[10] Mr Kazantzis denies questioning the government’s approach and reference to the vaccine as experimental, but did question whether it was against the Human Rights Charter in an attempt to understand the situation further.[11]
On 19 October 2021, Mr Kazantzis received a letter from Patrick providing that he is required to be fully vaccinated by 26 November 2021 and must provide evidence of his vaccination status by 21 October 2021.[12]
Mr Kazantzis did not provide his employer with any evidence that he medically cannot be vaccinated against COVID-19 or has received 2 doses of a vaccine. Patrick determined that Mr Kazantzis was not allowed to attend the workplace and thus was incapable of performing the inherent requirements of his job. Patrick determined that they could not hold this job indefinitely. In consideration of this, Patrick advised Mr Kazantzis of their decision in their termination letter dated 17 November 2021.
Subsequent to the hearing before me Patrick provided an additional note about the cost of leaving an employee on Workcover by reason of their continuing right to accrual leave entitlements. I accept the correctness of that analysis.
Facts specific to Applicants with leave requests
Mr S Whitling, Mr J Whitling, Mr M Whitling and Mr Bracken were terminated by the Respondent either while they were on leave or after they had requested to use their leave entitlements.
Mr S Whitling
Mr S Whitling was on a mix of personal leave, annual leave, and a rostered week off from 14 October to 31 October 2021. On 11 October 2021 Mr S Whitling phoned Ms Bea Curwood, HR Manager for the Respondent and requested additional long service leave until the end of November 2021 to allow him more time to consider the COVID-19 vaccines. Ms Curwood verbally accepted the request. Mr S Whitling’s Leave Report[13], provided in evidence by the Respondent, shows that the Applicant had approved long service leave from 1 November to 14 November 2021 and personal leave from 15 November to 21 November 2021. Mr S Whitling also had pre-booked annual leave from 29 November to 5 December 2021 and 14 February to 20 February 2022 which was approved in June 2021.[14]
On 1 November 2021, Mr S Whitling received a show cause letter[15] from Patrick. The letter stated that as Mr S Whitling had not provided information regarding his intentions of meeting the requirements of the Directions, Patrick must proceed on the assumption that he is unvaccinated. Mr S Whitling was advised that his unvaccinated status meant that he was unable to fulfil the inherent requirements of his role and that on that basis it appeared to the Respondent that the appropriate course of action may be to terminate his employment. Mr S Whitling was given until 4 November 2021 to provide further information and to show cause as to why Patrick should not terminate his employment.
On 4 November 2021, Mr S Whitling sent a letter[16] to the Respondent which contained a request for the risk assessment conducted by the Respondent with respect to the COVID-19 vaccine policy, a request for the COVID-19 vaccine policy statement as to how vaccine injuries would be handled, a request for confirmation that that vaccine mandate complied with legislation, and confirmed that Mr S Whitling was ready, willing and able to work.
On 4 November 2021, Patrick replied to Mr S Whitling by email[17] stating that Patrick had not directed him to be vaccinated and that it was not appropriate for Patrick to provide medical advice or a risk assessment. Patrick stated that it was required to comply with the Directions, which prevented Patrick from allowing unvaccinated workers from attending the workplace.
On 8 November 2021, Mr S Whitling emailed a copy of a medical certificate[18] to Ms Curwood, seeking medical leave from work.
On 9 November 2021, Mr S Whitling telephoned Patrick to confirm his leave approval. Mr S Whitling stated that he was advised that his leave request had been reduced and was only valid until 12 November 2021. Mr Brewster denies that any of Mr S Whitling’s previously approved leave was cancelled without Mr S Whitling’s knowledge.
On 10 November 2021, Mr S Whitling received a termination letter[19] from Patrick which stated that because he was not vaccinated he could not perform the inherent requirements of his role. It was stated that Mr S Whitling’s employment would end on that day and that he would be paid 5 weeks’ pay in lieu of notice.
Mr J Whitling
On 12 October 2021, Mr J Whitling sent a letter to Patrick which amongst other things, expressed his concerns with respect to the safety and efficacy of the vaccine, notified Patrick that he was intending to seek medical advice with respect to the vaccination and that he was unable to seek medical advice until he was out of isolation.
On 21 October 2021, Mr J Whitling exchanged emails with Patrick with respect to his request for leave without pay for the period of 1 November to 14 November 2021. The Applicant received a reply that his request had been actioned and processed.
On 29 October 2021, Mr J Whitling sent an email to Patrick in which he advised that he had come out of isolation and that he was still seeking medical advice. Mr J Whitling also requested a copy of the Risk Assessment conducted by the Respondent with respect to the COVID-19 vaccines.
On 1 November 2021, Mr J Whitling received a show cause letter[20] from Patrick. The letter stated that as Mr J Whitling had not provided information regarding his intentions of meeting the requirements of the Directions, Patrick must proceed on the assumption that he is unvaccinated. Mr J Whitling was advised that his unvaccinated status meant that he was unable to fulfil the inherent requirements of his role and that on that basis it appeared to the Respondent that the appropriate course of action may be to terminate his employment. Mr J Whitling was given until 4 November 2021 to provide further information and to show cause as to why Patrick should not terminate his employment.
On 4 November 2021, Mr J Whitling emailed Patrick and requested to take annual leave from 15 November 2021 for a period of four weeks. He noted that he wished to take the Novavax vaccine once it was available in Australia. Mr J Whitling also requested the leave request be in conjunction with his paid parental leave.
On 10 November 2021, Mr J Whitling received a termination letter[21] from Patrick which stated that because he was not vaccinated he could not perform the inherent requirements of his role. It was stated that Mr J Whitling’s employment would end on that day and that he would be paid 4 weeks’ pay in lieu of notice.
Mr M Whitling
In his evidence, Mr M Whitling stated that he was on approved personal leave from 18 October 2021 to 22 October 2021 and 28 October to 3 November 2021. However, Mr Brewster denies that Mr M Whitling was on approved leave during this time. Rather, Mr M Whitling’s Leave Report[22], provided in evidence by the Respondent, shows that the Applicant was on leave without pay, which Mr Brewster says is because he had not contacted Patrick and had no approved leave in place.
On 1 November 2021, Mr M Whitling received a show cause letter[23] from Patrick. The letter stated that as Mr M Whitling had not provided information regarding his intentions of meeting the requirements of the Directions, Patrick must proceed on the assumption that he is unvaccinated. Mr M Whitling was advised that his unvaccinated status meant that he was unable to fulfil the inherent requirements of his role and that on that basis it appeared to the Respondent that the appropriate course of action may be to terminate his employment. Mr M Whitling was given until 4 November 2021 to provide further information and to show cause as to why Patrick should not terminate his employment.
On 4 November 2021, Mr M Whitling sent an email to Patrick advising that he was willing to take the COVID-19 vaccine but that he was, at that point in time, hesitant given that it had only been provisionally approved for emergency use. Mr M Whitling also raised concerns with the safety and efficacy of the vaccines, noted that being vaccinated was not a necessary condition of his employment and requested a workplace risk assessment completed by the Respondent related to the COVID-19 vaccines.
On 4 November Mr Brewster replied to Mr M Whitling referring him to the vaccination directions applicable at the time but otherwise did not engage with the concerns raised by Mr M Whitling.
On 10 November 2021, Mr M Whitling received a termination letter[24] from Patrick which stated that because he was not vaccinated, he could not perform the inherent requirements of his role. It was stated that Mr M Whitling’s employment would end on that day and that he would be paid 4 weeks’ pay in lieu of notice.
At the time of his dismissal, Mr M Whitling had requested to take personal leave to give him more time to consider his options regarding the COVID-19 vaccines. Mr M Whitling’s leave request was denied. Mr Brewster stated in evidence that it was his view that this was not a valid reason to take personal leave as it was not a medical condition.[25]
Mr Bracken
On or around 6 October 2021, Mr Bracken telephoned Ms Curwood and requested to take long service leave until mid-December. Ms Curwood approved Mr Brackens request, but only from 1 November to 14 November 2021.
On 11 October 2021, Mr Brewster telephoned Mr Bracken and asked for his vaccination status. Mr Bracken indicated that he had an appointment with his GP to consider the safety of the vaccine. Mr Brewster was advised that he could not be allocated from 15 October 2021 if he is not vaccinated.
On 13 October 2021, Mr Bracken sent an email[26]to Mr Brewster requesting that Patrick meet its consultation and risk assessment obligations in accordance with s35 of the OHS Act.
On 14 October 2021, Mr Brewster replied to Mr Bracken by email[27] stating that Mr Bracken would need to raise this with his local government representative as it related to a government directive.
Mr Brewster was on a period of annual leave from 18 October to 24 October 2021.
On 19 October 2021, Patrick sent a letter[28] to Mr Brewster which confirmed that Mr Brewster had advised Patrick that he was not vaccinated and that as a result he was unable to fulfil his employment obligations. The letter stated that Patrick had approved limited leave but that they will be unable to continue approving leave, as Patrick would not be able to meet its operational labour requirements. Mr Brewster was given until 29 October 2021 to advise Patrick if his vaccination status or intentions to become vaccinated had changed. It was stated that if Mr Brewster remained unvaccinated, then Patrick would need to consider how the Directions would impact on his ongoing employment.
On 21 October 2021, Mr Brewster emailed[29] Ms Curwood, notifying her that he was on leave.
From 25 October 2021 to 31 October 2021, Mr Brewster had a rostered week off.
From 1 November to 14 November 2021, Mr Brewster was on long service leave.
On 1 November 2021, Mr Bracken received a show cause letter[30] from Patrick. The letter stated that as Mr Bracken had not provided information regarding his intentions of meeting the requirements of the Directions, Patrick must proceed on the assumption that he is unvaccinated. Mr Bracken was advised that his unvaccinated status meant that he was unable to fulfil the inherent requirements of his role and that on that basis it appeared to the Respondent that the appropriate course of action may be to terminate his employment. Mr Bracken was given until 4 November 2021 to provide further information and to show cause as to why Patrick should not terminate his employment.
On 10 November 2021, Mr Bracken received a termination letter[31] from Patrick which stated that because he was not vaccinated, he could not perform the inherent requirements of his role. It was stated that Mr Bracken’s employment would end on that day and that he would be paid 5 weeks’ pay in lieu of notice.
Facts specific to other Applicants
Ms Kendal
Ms Kendal was able to work after 14 October 2021 as she provided evidence that she had booked an appointment to be vaccinated on 21 October 2022.[32]
On 19 October 2021, Ms Kendall sent correspondence to Michael Jovicic, Chief Executive Officer of the Respondent and Chris Brewster challenging the MVW Directions on the basis that they are unlawful.[33]
On 19 October 2021, Ms Kendall emailed Patrick highlighting her concerns with the COVID-19 vaccinations and requests evidence of a risk assessment. Ms Kendall received a response to her correspondence on 20 October 2021, advising that the vaccination is a government directive; and they cannot provide her requested risk assessment. Ms Kendall was not satisfied with this response.[34]
On 22 October 2022, Patrick sent further correspondence to Ms Kendall seeking an update by 28 October 2022 of her vaccination status.[35] On this same day Ms Kendall was contacted as to her vaccination appointment scheduled for 21 October 2022. Ms Kendall indicated that she did not proceed with this appointment and was subsequently directed to leave the Terminal.
Following this, Ms Kendall was approved for leave from 1 November 2021 – 14 November 2021.[36]
On 1 November 2022, Ms Kendall was issued a show cause letter in which a response was requested by 4 November 2022.
On 8 November 2021, Ms Kendall emailed Patrick which indicated that she had made an appointment for her first dose of the vaccination on 11 November 2021. Attached to the email was an unsigned note on the letterhead of Lara Medical Centre.
The note was unsigned and appeared unprofessional. An enquiry was made with the practice to confirm if they issued the note. Lara Medical Centre responded indicating that they had not seen Ms Kendall since 2019. Lara Medical Centre further indicated that Ms Kendall was not booked into any of the vaccination clinics that day and that the letter had been generated by a receptionist.
These issues were raised with Ms Kendall who explained that she had booked to see a doctor to discuss the vaccination. This explanation provided was inconsistent with the details provided in her correspondence on 8 November 2021.
On 10 November 2021, Ms Kendall received her termination letter from the Respondent which informed her that as she was unable to perform the inherent requirements of her role because she remained unvaccinated, her employment was terminated. Patrick maintains that Ms Kendall never supplied any evidence that she obtained a vaccination. Ms Kendall booked an appointment for vaccination for 13 November 2021; however, this was not conveyed to Patrick until after her termination.
Mr Nikolovski
On 1 November 2021, Mr Nikolovski received a show cause letter from Patrick which sought a response by no later than 4 November 2021.
Mr Nikolovski responded to his show cause letter on 1 November 2021 advising that he had previously made his intentions with respect to the vaccination clear to a manager and that he had an appointment with his doctor on 5 November 2021 to receive medical advice on the COVID-19 vaccine.[37]
On 5 November 2021, Mr Nikolovski was provided a medical certificate from his doctor which he forwarded on to his employer. The note stated that Mr Nikolovski will be booking the Pfizer vaccination within the next fortnight and it is recommended that he first receives a blood test.
Mr Nikolovski was approved for leave until 18 November 2021 to enable him to undertake his blood test.[38] Mr Nikolovski maintains that he was approved for leave until 5 December 2021 and not 18 November 2021.[39]
On 10 November 2021, Patrick emailed Mr Nikolovski requesting confirmation of his booking for the first does of the vaccination by close of business 11 November 2021. On the same day Mr Nikolovski responded, advising that he was still awaiting the results from his blood test.
Patrick sent further correspondence on 16 November 2021 requesting proof of a booking by 19 November 2021. The letter informed Mr Nikolovski that failing this, the appropriate course of action would be to terminate his employment.
On 19 November 2021 Mr Nikolovski was provided another medical certificate which provided that he was to undergo a medical procedure on 17 January 2022 and it was the doctor’s recommendation that he should not receive the COVID-19 vaccine prior to the medical procedure.
On 23 November 2021, Patrick issued a letter to Mr Nikolovski advising that he was unable to fulfil the inherent requirements of his role as he has remained unvaccinated and that a final decision as to his employment would be made on 25 November 2021.
Mr Nikolovski wrote to his employer on 24 November 2021 reiterating the details of his medical procedure he was required to undergo on 17 January 2022 and requested access to his accrued leave entitlements pending completion of his procedure.
On 29 November 2021, Mr Nikolovski received his termination letter which stated that he was unable to perform the inherent requirements of his employment due to his vaccination status.
Submissions of the parties
The Applicants contended that their dismissal was harsh, unjust or unreasonable and that the Respondent did not have a valid reason to dismiss them. The Applicants contended that the Directions were not a condition of their employment but rather they imposed an obligation on an employer not to permit unvaccinated employees to attend the workplace. The Applicants therefore contended that the Directions did not require their termination and that being vaccinated was not an inherent requirement of their jobs.
It was further contended by the Applicants that the obligation on employers to record an employee’s vaccination status was only applicable to employees scheduled and/or rostered to work at the time that the Direction were in force and that an employer cannot give notice of termination of employment to an employee on approved leave.
They contended that their dismissal was premature, and that Patrick could not have known when new directions would be issued (if at all) and for how long they would apply. The Applicants contended that in any event, Patrick should have allowed them to use their leave entitlements and to remain on leave, but instead decided to dismiss them and that it was unfair to do so.
The Applicants also contended that that they did not receive proper notification of their dismissal as the Respondent’s letter appeared to be a generic letter with each Applicant’s details inserted and did not consider the personal circumstances of the Applicants. Further, the Applicants contended that the Respondent failed to give them a genuine opportunity to respond as they were given unrealistic deadlines.
Patrick contended that the dismissal of the Applicants was not harsh, unjust or unreasonable and that it dismissed them for a valid reason, namely that they had failed to provide the required vaccination information and therefore they had rendered themselves unable to perform the inherent requirements of their role. Patrick contended that the directions applied to all Applicants, including those who were absent from the workplace. Patrick further contended that being able to attend for work at the only location the work can be performed is an inherent requirement of the Applicants’ roles.
Patrick further contended that the Applicants were offered procedural fairness and that the processes they undertook were closely guided by s.387 (b) and (c) of the FW Act. Patrick contended that the Applicants were notified of the reasons for which their dismissal was being contemplated and that they were provided with an opportunity to respond.
As to the Applicants’ requests for leave, Patrick contended that it could not leave the Applicants on indefinite periods of the leave as none of the Applicants provided a time by which the were willing to be vaccinated and therefore there was no certainty as to when the Applicants would have been capable of filling the inherent requirements of their roles. Patrick further contended that accommodating such leave requests would cause severe labour availability problems because employees who became vaccinated to keep their jobs might not otherwise have done so. As for the Applicants who were dismissed on leave, Patrick contended that when one takes leave, one is taking leave from working, however none of the Applicants (because of their failure to comply with the Directions) were ready, willing or able to work. Patrick contended that therefore, there is a question as to whether the Applicants were entitled to take leave at all in the period after 14 October or 21 October 2021.
Consideration
For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable (s 385(b)). In considering whether it is so satisfied, the Commission must take into account the various matters specified in s 387.
The Commission must consider whether there was a valid reason for the dismissal related to the person’s capacity or conduct (s 387(a)). Such a reason is one that is valid in the sense both that it was a good or sufficient reason, and also a substantiated reason.
The essence of a valid reason is a reason that is sound, defensible or a well-founded reason – one that is not capricious, fanciful, spiteful or prejudiced.[40]
Workcover
At the time of his dismissal Mr Kazantzis was not on approved Workcover. He had made an application that was yet to be accepted. At the time of his dismissal he was on approved leave. However, he was also unable to perform the inherent requirements of his job if he was not on leave. It was reasonable for Patrick to make this assessment. There was a valid reason for the dismissal. Even if the Workcover claim had been accepted at the time that the dismissal was effected, there are continuing leave costs associated with leaving an employee on Workcover. Those costs recognised that an employee on Workcover will have continuing return-to-work obligations. However, in the present matter, because Mr Kazantzis was unvaccinated he prevented himself from participating in return-to-work programs. Patrick should not have to incur ongoing costs when the employee (because of decisions they have made) cannot fulfil their part of the return-to-work bargain.
In any case I do not consider it necessary for an employer to wait for an employee to return from leave before making the decision to dismiss. In the unique circumstances faced by Patrick and its employees during a period that required a vaccine to attend for work, the assessment made by Patrick about Mr Kazantzis’ likely ongoing inability to perform the inherent requirements of his job was a legitimate assessment. It was well-founded.
Leave requests
A number of Applicant’s contended that they should have been allowed to take approved leave (presumedly until attendance vaccine mandates were lifted). I have considered this contention and I find that it was not unreasonable to deny the Applicants’ leave requests. The “can we wait it out?” approach that some of the Applicants urged upon Patrick was not a workable option. It was not viable to grant leave to unvaccinated employees and then wait until they could legally return to the workplace (whenever that might be). Patrick (like other employers) needed to be able to manage challenging operational circumstances with staff absent due to COVID infections and/ or COVID exposure. Permitting unvaccinated employees to take paid or unpaid leave would have impeded the ability of Patrick to recruit into roles where staff were on indefinite leave. There would also have been a cost to Patrick in continuing to accrue leave for staff while they were on approved leave for an indefinite period.
Other Applicants
Ms Kendall’s primary contention was that as a Senior Clerk there was scope for Patrick to allow her to work from home. [41] She contended that like accommodations had been made for other employees (such as allocators[42]). The first observation I make is that an employer has a right to decide where its work is performed. So long as it is not making decision that are unlawfully discriminatory, while it should give consideration to requests to work from home, it does not have to accede to them.
It is also the case that during the pandemic Patrick (like other employers) made a range of accommodations for employees so that its business could continue in some fashion. Ms Kendall gave evidence that there were staggered smoko arrangements, straddle drivers being provided with their own straddles, extra overtime, changes to start and finish times and working from home arrangements.[43] I accept this evidence.
However, now that lock-downs are (hopefully) a thing of the past and employers are looking to return to as normal as possible work arrangements, it is not incumbent on employers to maintain work methods that were implemented to address a particular point in time crisis. Some new ways of working might continue (like online hearings), but others may “snap back” to the preferred ways of the past. An employer is entitled to make decisions (ideally after consulting with its employees) that maximise its productive interests, customer/client needs/preference and employee relations/well-being. Recent research by Deloitte and Swinburne Edge shows the four main flexible working challenges facing employers and what they contend are the limitations of the Fair Work Systems to enable the employee-led flexible work revolution.[44]
In this matter, the evidence did not support a finding that Ms Kendall could have continued effectively in her role working exclusively from home. The analogy that Ms Kendall drew with land side managers was a false one. There is only ever one senior clerk engaged during a shift. In any case, Patrick was entitled to decide that it wanted the work of Senior Clerk to return to being conducted onsite.
By deciding (as she was freely able to do and did) not to get vaccinated Ms Kendall made herself unable to perform the inherent requirements of her role. It was her choice. It is simply the case that Ms Kendall (like the other Applicants in this matter) does not like the consequence that flowed from the voluntary choice that she made. By reason of that choice Ms Kendall (like her co-workers) was not able to attend work on site. Ms Kendall’s decision not to get vaccinated meant that Patrick, bound by the terms of the Directions, was required to ensure that Ms Kendall did not attend the workplace. Patrick was in no position not to comply with the Directions. It acted as it was lawfully required to do.
Mr Nikolovski was in a different category. Mr Nikolovski contended that he should not have been dismissed because he intended to have the COVID-19 vaccine after a medical procedure he was to have in January 2022. However, the evidence before me did not establish that the impending medical procedure prevented him from having the COVID-19 vaccine before the procedure occurred. If Mr Nikolovski had provided such evidence to Patrick it may have granted him the leave he was seeking. However, he did not. Nor did he provide a medical certificate to state that he could not work up and until the medical procedure. If that had been the case he could have been granted personal sick leave. In any case Mr Nikololvski led no evidence before me that, subsequent to the January medical procedure he was now vaccinated. No remedy could flow to him in these circumstance (see further discussion below).
I am satisfied that Patrick had a valid reason to terminate the Applicants’ employment. The Applicants were entitled to make the decision they made not to get vaccinated. This case is not about vaccine mandates. There was no vaccine mandate. There was, however, a direction to employers not to allow employees to attend for work on site unless they were vaccinated.
The positions held by the Applicants at the East Swanson Dock at the Port Melbourne Terminal all shared the same quality in that attending on site (as and when required) was an inherent requirement of their positions. By reason of the Applicants’ decisions not to get vaccinated, they were not able to attend work on site. Their decisions \ meant that Patrick, bound by the terms of the Directions, were required to ensure that they did not attend the workplace.
In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether an employee has been notified of the reasons for dismissal and whether the person was afforded an opportunity to respond to any reason related to their capacity or conduct (ss 387(b) and (c)). The show cause letters notified each of the Applicants of the proposed reason for dismissal and gave each of them an adequate opportunity to respond.
Patrick did not refuse, unreasonably or otherwise, to allow any of the Applicant’s to have a support person present to assist in discussions relating to the dismissal (s 387(d)).
If a dismissal relates to unsatisfactory performance, s 387(e) requires the Commission to consider whether the person has been warned about that unsatisfactory performance prior to dismissal. However, none of the Applicants’ employment was not terminated for unsatisfactory performance. The dismissals related solely to each of their capacity.
The Commission is required to consider the degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal (ss 387(f), (g)). The purpose of these provisions is not to raise the bar for larger employers such as Patrick, but to require the Commission to take into account these common features of smaller employers. In any event, there was no procedural deficiency in respect of which mitigation might be sought in connection with these provisions. Sections 387(f) and (g) carry no weight in the present matter.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account any other matters that it considers relevant (s 387(h)). In the present matter I have taken into account each of the Applicants service, each of their unblemished records, the economic impact on them of the loss of their employment and their genuinely held concerns about the safety of COVID-19 vaccines.
However, I do not consider that any of these additional factors render the dismissal harsh or otherwise unfair. Patrick had no choice in these matters. It had to comply with the Directions. The Applicants to this matter did have a choice – to either get vaccinated or not. They freely exercised that choice. The consequences of exercising that choice were made clear to them, and, nonetheless, they made their choice not to be vaccinated or not to disclose their vaccine status.
Having regard to s 387 of the FW Act, I consider that the dismissal of each of the Applicants was not harsh, unjust or unreasonable, and that it was therefore not unfair.
I also note, as an aside, that even if I had found that any of the Applicants were unfairly dismissed, they would have been awarded no remedy. This is because they could not be reinstated because of their unvaccinated status and they also could not be compensated. Under the relevant tests for determining compensation it is relevant to consider what the Applicants would have earned if their employment had not been terminated. In each of the present matters that amount would have been $0.00. This is because, by reason of their unvaccinated status, they could not attend for work. Because they could not attend for work, Patrick would not have been obliged to pay them. In all the circumstances, noting the inability to award any remedy, I was left struggling to understand the utility of the proceedings. Notwithstanding, the parties urged me to make findings about whether the dismissals were unfair.
Each of the applications are dismissed.
COMMISSIONER
Appearances:
Mr J Ryan for George Kazantzis, Stephen Whitling, Jake Whitling, Matthew Whitling, and Gorgi Nikolovski
Mr Pedram Mohseni for Kevin Bracken
Mrs K Kendall for herself
Mr S Crilly for the Respondent
Hearing details:
2022
Melbourne
20 April
[1] Digital Court Book, page 789 – 790.
[2] Digital Court Book, page 790.
[3] Digital Court Book, page 43.
[4] Digital Court Book, page 820.
[5] Digital Court Book, page 821.
[6] Digital Court Book, page 821.
[7] Digital Court Book, page 802
[8] Digital Court Book, page 820
[9] Digital Court Book, page 921
[10] Digital Court Book, page 820
[11] Digital Court Book, page 922
[12] Digital Court Book, page 44
[13] CB-26
[14] Digital Court Book, page 831.
[15] Digital Court Book, page 250.
[16] Digital Court Book, page 254.
[17] Digital Court Book, page 251.
[18] Digital Court Book, page 256.
[19] Digital Court Book, page 257.
[20] JW-21.
[21] JW-23.
[22] CB-25.
[23] CB-23.
[24] CB-24.
[25] Transcript PN300.
[26] KJB-4.
[27] KJB-5.
[28] KJB-6.
[29] KJB-7.
[30] KJB-8.
[31] KJB-9.
[32] Digital Court Book, page 821
[33] Digital Court Book, page 821
[34] Witness Statement of Karen Kendall at 13.
[35] Witness Statement of Karen Kendall at 14
[36] Witness Statement of Karen Kendall at 15
[37] Witness Statement of Gorgi Nikolovski at 12
[38] Digital Court Book, page 824.
[39] Digital Court Book, page 914
[40] Selvachandran v Peteron Plastics [1995] IRCA 333, (1995) 62 IR 371 at 373.
[41] Transcript PN73.
[42] Transcript PN75.
[43] Transcript PN75.
[44] and by authority of the Commonwealth Government Printer
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