George Lazcano v Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne
[2022] FWC 2222
•25 AUGUST 2022
| [2022] FWC 2222 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
George Lazcano
v
Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne
(U2022/1384)
| COMMISSIONER BISSETT | MELBOURNE, 25 AUGUST 2022 |
Application for an unfair dismissal remedy – failure to meet requirements of public health order – failure to comply with lawful and reasonable direction – valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed.
On 1 February 2022 Mr George Lazcano made an application to the Fair Work Commission seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Mr Lazcano was employed by Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne (Metro Trains) and his employment was terminated on 13 January 2022. In the letter of termination Metro Trains advised Mr Lazcano that his employment was terminated because of his inability to lawfully attend work and his failure to take steps required by Metro Trains for him to be able to lawfully attend work.
Prior to the hearing of the application I gave permission to Metro Trains to be represented by a lawyer pursuant to s.596 of the FW Act.
Submissions and a witness statement where filed for Mr Lazcano.
Metro Trains filed submissions, a witness statement of Mr Robert Duvel, Executive Director, Metro Trains and a witness statement of Mr Denis Brown, People Business Partner, Metro Trains.
PRELIMINARY MATTERS
It is not in dispute and I am satisfied that:
(a)Metro Trains dismissed Mr Lazcano (within the meaning of s.386(1)(b) of the FW Act) on 13 January 2022;
(b)Mr Lazcano was protected from unfair dismissal within the meaning of s.382 of the FW Act at the time of dismissal;
(c)the dismissal was not consistent with the Small Business Fair Dismissal Code within the meaning of s.388 of the FW Act (because Metro Trains is not a small business employer), or a case of genuine redundancy within the meaning of s.389 of the FW Act; and
(d) the application was filed within 21 days of the dismissal to which it relates.
FACTUAL BACKGROUND
The following factual matters in relation to the matter before me are not disputed, either being agreed or not subject to any contradiction.
Metro Trains operates the Melbourne metropolitan train network. Mr Lazcano was employed as a Suburban Train Maintainer – Electrical within Metro Trains’ Rolling Stock Division. Mr Lazcano’s role included rolling stock repair and attendance and rectification of in-service disabled trains. Mr Lazcano’s employment was covered by the Metro Trains Melbourne Rolling Stock Enterprise Agreement 2019[1] (Rolling Stock Agreement).
On 1 October 2021 the Victorian Premier issued a media statement in which he outlined expanded requirements for workers to be vaccinated against COVID-19. The press release detailed that all specified authorised workers would be required to be vaccinated by 15 October 2021 in order to continue working onsite and would need to be fully vaccinated by 26 November 2021. Metro Trains’ employees were identified as “authorised workers”. The content of this press release was sent to all employees of Metro Trains with a request that they upload their vaccination status to MetroMe by 11 October 2021 and explaining how to do this.[2] On 5 October 2021 a further update was provided to Metro Trains employees advising that a requirement would exist that they be vaccinated to be able to attend work and that they would need to upload this information to MetroMe.
On 7 October 2021 the Victorian Acting Chief Health Officer (CHO) issued the COVID-19 Mandatory Vaccination (Workers) Directions (Directions).[3] The Directions imposed various obligations on Metro Trains including:
·a requirement for Metro Trains to collect, record and hold vaccination information in relation to employees who were or may be scheduled to work outside their ordinary place of residence; and
·that Metro Trains not allow its employees to work outside their normal place of residence after 15 October 2021 unless they had provided Metro Trains with vaccination information including that they had received one dose of an approved COVID-19 vaccine or met one of the exemptions.
The Directions applied to Metro Trains as the employer of workers specified in the Directions.
From 8 October 2021 until the date Mr Lazcano was dismissed there were further iterations of the Directions but none altered the essential fact that Metro Trains could not permit employees to attend work unless they were vaccinated or held a valid exemption.
On 8 October 2021 Metro Trains sent a further email to its employees including specific information about the Directions and the requirements on employees in accordance with those Directions. The email also provided links to relevant Government websites and a video by Metro Trains’ independent Chief Medical Officer. It also provided a link to which employees could send any questions and encouraged employees to contact their GP for “reliable medical advice.”[4]
A Frequently Asked Questions (FAQ) document was sent to employees on 11 October 2021.[5] It provided information in relation to the requirements of the Directions, the need for employees to provide their vaccination status on MetroMe and how to do this and what would happen if they chose not to be vaccinated or provide vaccination status including that:
·They could apply for annual or long service leave which Metro Trains will assess in light of operational requirements.
·Employees who were required to attend Metro Trains’ worksites to do their job in the ordinary course but who were absent from work would not be able to fulfil the inherent requirements of their role and this would likely cause operational difficulties.
·Information was available on Government websites including information on privacy matters.
On 13 October 2021 a further email was sent to all staff which reiterated the requirements of the Directions, directed staff who had not provided the information required to be collected by Metro Trains to not attend work from 15 October 2021 and advised that any future leave requests would be subject to operational requirements.[6]
On 14 October 2021 an email was sent to Mr Lazcano advising that he would not be able to attend for work from 15 October 2021 until he met the requirements of the Directions that enabled him to attend for work; would not be paid unless he was on approved leave; and attendance at work was an inherent requirement of his role. For this reason it was likely Metro Trains would be unable to continue his employment.[7]
Given the operational impact on Metro Trains caused by a number of employees who had not complied with the requirement to provide their vaccination status onto MetroMe, on 29 October 2021 Metro Trains sent an email to Mr Lazcano that said, in part:
Unfortunately, the number of Fleet Maintenance Staff who are unable to attend for work under the Government directions remains at a level we cannot sustain into the future.
As such, to continue serving the Victorian travelling public, we must take steps to have our employees return to work, or welcome new team members who can perform work across the network.
I am therefore writing to you today to let you know that you are now required to be able to return to on‐site work by Monday, 8 November 2021. In order for Metro to be able to roster you for shifts from this date, we require you to upload your vaccination information confirming your vaccination status to MetroMe by 5pm, Friday, 5 November 2021.
We expect that this will require you to have at least one dose of an approved COVID‐19 vaccine, or have an approved exemption, and so we encourage you to immediately take whatever steps as are necessary to facilitate your return.
It is important that you be aware that if, at this time, you are unable to return to work, it is unlikely that we will be able to maintain your employment. In those circumstances we will have further discussions with you prior to making any final decisions.[8] (Underlining added)
On 22 October 2021 Mr Lazcano attended the worksite but because he had not provided Metro Trains with the required evidence of his COVID-19 vaccination status or any recognised exemption from vaccination, he was not permitted to enter the premises. Mr Lazcano said that he had a discussion with his Depot Manager (Mr Danny Walsh) and the Production Supervisor (Mr Jeff Smith) and requested a period of long service leave. Mr Lazcano requested that be on half pay so as to extend the period for which he was receiving some income. This was approved and his managers said they would see to the leave being progressed. No formal leave form was completed by Mr Lazcano. Mr Lazcano was on paid approved leave from 22 October 2021 until 31 December 2021.[9]
Over the following week Mr Walsh attempted to contact Mr Lazcano by way of telephone calls and text messages to Mr Lazcano’s mobile phone but received no response. Other maintenance employees had also tried to contact Mr Lazcano with no success. Mr Walsh subsequently contacted Mr Denis Brown and asked him to try and contact Mr Lazcano. He suggested to Mr Brown that if he could not contact Mr Lazcano a welfare check be arranged. Mr Brown arranged the welfare check, having not heard from Mr Lazcano, but did not hear back as to whether the welfare check had been completed.[10]
On 7 January 2022, believing Mr Lazcano was due back at work on 4 January 2022, Metro Trains sent a letter to Mr Lazcano[11] regarding his failure to upload his vaccination status to MetroMe. The letter informed Mr Lazcano that Metro Trains had reached the view that it had no choice but to terminate Mr Lazcano’s employment and invited him to provide any information he wished Metro Trains to take into account prior to deciding the matter. This letter was sent by post to Mr Lazcano’s home address and to his work email account.
As no response was received by Metro Trains to the letter of 7 January 2022, on 13 January 2022 Mr Duvel made a decision to terminate Mr Lazcano’s employment. This decision was communicated to Mr Lazcano by letter which was sent by post to his home address. The letter was also sent to his work email address.[12]
On 18 January 2022 Mr Brown telephoned Mr Lazcano about finalising his employment and collecting his personal property. Mr Lazcano told Mr Brown he had not received the letters of 7 January 2022 and 13 January 2022 and was unaware his employment had been terminated. Mr Lazcano did not mention a desire to return to work and instead asked for copies of the letters that had been sent to him. During the conversation Mr Lazcano confirmed that a welfare check was carried out on him in October 2021.[13] On 28 January 2022 Mr Brown again spoke to Mr Lazcano who said he had still not received the letters of 7 January 2022 and 13 January 2022. On reviewing the documentation Mr Brown discovered that the incorrect address was on the correspondence. The home address on both letters was incorrect in that each showed the house number as “88” instead of “8B”.[14] Mr Brown then resent the correspondence to Mr Lazcano’s correct address by post and also to his work email and personal email addresses.
On 25 March 2022 Mr Brown sent an email to Mr Lazcano[15] which read as follows:
Dear George,
I write in relation to the unfair dismissal application you filed with the Fair Work Commission on 1 February 2022 in relation to the termination of your employment with Metro Trains Melbourne Pty Ltd.
As you are aware, the reason for the termination of your employment with Metro was that you were unable to lawfully attend for work because you had not met the requirements under the relevant public health orders to provide Metro with evidence that you were fully vaccinated against COVID-19 (or are subject to an approved exemption).
We do however note that in your unfair dismissal application you say that you had not received relevant correspondence from Metro explaining these requirements. While we do not wish at this point to correspond in any detail about this issue, we are prepared to offer you a further opportunity to provide evidence that you are able to lawfully attend for work. If you are able to provide this evidence by 4PM 30 March 2022, Metro will re-instate you into your previous employment.
If you have any questions about what this would require, please do not hesitate to contact me on [number redacted]
Regards
Denis Brown
People Business Partner | Rolling Stock | Metro Trains Melbourne
Mr Brown also sent a text message to Mr Lazcano to alert him to the email. Mr Lazcano did not respond to the email or text message.
Mr Lazcano remains unvaccinated as at the date of hearing.
CONTESTED MATTERS
Circumstances of Mr Lazcano’s leave
I am satisfied that Mr Lazcano applied for long service leave on half pay and that this was approved.
There is some dispute as to how long the leave was for. For this reason I ordered the production of the leave application form. Following a search for the form Metro Trains advised that there was no written application form as Mr Lazcano had attended the site on 22 October 2021 and the leave was arranged verbally. This accords with Mr Lazcano’s evidence as to how he applied for the leave.
Metro Trains did provide copies of Mr Lazcano’s pay slips for the fortnight ending 23 October 2021,[16] the fortnight ending 1 January 2022[17] and the fortnight ending 26 February 2022.[18] These pay slips show that, as at 23 October 2021 Mr Lazcano had 5.79 weeks of long service leave owing to him. As at 1 January 2022 Mr Lazcano had no long service leave left (and had a negative credit of -1.0 weeks).
Mr Lazcano said in his evidence that he noticed in early January 2022 that no money had been deposited into his bank account by Metro Trains. He also said that he did not contact anyone from Metro Trains about this lack of pay.
Given the pay slips and Mr Lazcano’s evidence that his pay stopped in early January 2022 I am satisfied that, as at 1 January 2022, Mr Lazcano was not on any form of approved leave. His period of 5.79 weeks of long service leave, taken at half pay, would have ended close to the end of 2021.
I am satisfied, on this basis, that Mr Lazcano’s approved leave ended on or before 31 December 2021 and that, after this date he was not on authorised leave.
I am further satisfied that Mr Lazcano was aware or would have been reasonably aware, that his leave had come to an end as he was not receiving payment from Metro Trains into his bank account than he would otherwise expect. I am satisfied that Mr Lazcano took no steps to enquire of Metro Trains as to why this might be the case.
To the extent Mr Lazcano claims that he had more long service leave that he should have been offered, the evidence before the Commission does not support this claim.
Could Mr Lazcano access emails while on leave
Metro Trains provided evidence that it had sent correspondence to Mr Lazcano to both his home postal address and his work email address. Mr Brown gave evidence that he was aware that employees could access their work email on their home computers or personal devices based on his experience of having communicated with employees in that manner (although said he had Metro Trains provided devices so was not required to access his emails this way so did not know procedurally how it was accomplished).
Mr Brown also gave evidence that, while he would expect someone on long service leave to check their work email account he conceded that he would not expect to have to do so himself were he on leave. He also gave evidence that he would expect an employee on unapproved leave to check their work emails.
Mr Lazcano said he did not know how to go about checking his work emails from his home computer or personal device. I do not doubt Mr Lazcano’s evidence on this point although he fails to explain why he made no attempt to contact Metro Trains after 31 December 2021 and even then did not do so until Mr Brown contacted him on 18 January 2022.
WAS MR LAZCANO UNFAIRLY DISMISSED
Section 385 of the FW Act states that:
385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c)the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note:For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
I have found above in relation to ss.385(a), (c) and (d). It is therefore necessary for me to decide if the dismissal was harsh, unjust or unreasonable.
Whether a dismissal is harsh, unjust or unreasonable requires a consideration of those matters set out in s.387 of the FW Act. Section 387 of the FW Act states as follows:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a)whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c)whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d)any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e)if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f)the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g)the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
Note:For the purposes of paragraph (a), the following conduct can amount to a valid reason for the dismissal:
(a) the person sexually harasses another person; and
(b) the person does so in connection with the person’s employment.
Section 387(a) – whether there was a valid reason related to the person’s capacity or conduct
In order for a reason for dismissal to be valid a reason it must be “sound, defensible or well founded”[19] and should not be “capricious, fanciful, spiteful or prejudiced.”[20] The reason for termination must be defensible or justified on an objective analysis of the facts in the case.[21] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[22]
Mr Lazcano was dismissed from his employment for two reasons. Firstly Metro Trains says it dismissed Mr Lazcano because, not having been vaccinated, he could not lawfully attend work and therefore could not fulfil the inherent requirements of his job. That is, he lacked the capacity to do his job.
The Full Bench of Fair Work Australia considered the operation of the incapacity provisions in s.387(a) of the FW Act in J Boag and Son Brewing Pty Ltd v Allan Button[23] (Boag and Son) and concluded as follows:
[22] When an employer relies upon an employee’s incapacity to perform the inherent requirements of his position or role, it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must be considered.
[23] In X v Commonwealth the High Court was concerned with an allegation of discrimination on the grounds of disability contrary to the Disability Discrimination Act 1992 (Cth) by a solider who had been dismissed from the army on account of being HIV positive. Section 15(4)of that Act contains an exemption from liability if the person “would be unable to carry out the inherent requirements of the particular employment”. Gummow and Haynes JJ addressed the notion of “inherent” requirements:
“[102] The reference to “inherent” requirements invites attention to what are the characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral. …[T]he requirements that are to be considered are the requirements of the particular employment, not the requirements of employment of some identified type or some different employment modified to meet the needs of a disabled employee or applicant for work.”
[24] Although the High Court was concerned with the meaning of the expression “inherent requirements” in a statute, this analysis is equally applicable to a consideration of what constitutes the “inherent requirements” of a position as a valid reason for dismissal…
[25] In Qantas Airways Ltd v Christie Gaudron J, with whom Brennan CJ agreed, noted that the expression “inherent requirements”, in its natural and ordinary meaning “directs attention to the essential features or defining characteristics of the position in question.”… [Footnotes omitted]
Mr Lazcano does not put any argument that there was not a valid reason for his dismissal related to capacity. Mr Lazcano agrees that he was, and remains, unvaccinated. I am therefore satisfied that Mr Lazcano could not lawfully attend the workplace, his job could not be performed at home, therefore, there was a valid reason for his dismissal at the time he was dismissed related to capacity.
Second, Metro Trains says it dismissed Mr Lazcano for conduct reasons in that he failed to comply with the direction in the letter to him of 31 October 2021 that he be vaccinated by the time he was due to return to work following his long service leave.
Whether a direction given to an employee will be lawful and reasonable was considered most recently by the Full Bench of the Commission in Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal[24] (Mt Arthur Coal) where the Full Bench made the following observations:
[68] It is uncontentious that a lawful direction is one which falls within the scope of the employee’s employment. There is no obligation to obey a direction which goes beyond the nature of the work the employee has contracted to perform, though an employee is expected to obey instructions which are incidental to that work.
[69] Further, employer directions which endanger the employee’s life or health, or which the employee reasonably believes endanger his or her life or health, are not lawful orders; unless the nature of the work itself is inherently dangerous, in which case the employee has contracted to undertake the risk.
[70] The order or direction must also be ‘lawful’ in the sense that an employee cannot be instructed to do something that would be unlawful; such as a direction to drive an unregistered and unroadworthy vehicle.
[71] Employees are only obliged to comply with employer directions which are lawful and reasonable.
[72] Reasonableness is ‘a question of fact having regard to all the circumstances’ and that which is reasonable in any given circumstance may depend on, among other things, the nature of the particular employment… [Footnotes omitted]
There is a real question as to whether Mr Lazcano’s failure to comply with the direction given to him by email on 29 October 2021 provides a valid reason for dismissal in circumstances where the email was sent while he was on approved leave but to his work email address and where he did not have access to his work email. This however must be balanced against Mr Lazcano’s full knowledge that he was required to be vaccinated or have a valid medical exemption in order to be able to lawfully attend work.
Having found that there was a valid reason for his dismissal related to capacity it is not necessary that I determine the question of receipt of the correspondence which contained the direction. Not knowing of the direction issued makes compliance with that direction difficult. It is difficult to find that non-compliance could provide a valid reason for dismissal in these circumstances.
I am, however, satisfied that there was a valid reason for the dismissal of Mr Lazcano as he no longer had the capacity to fulfil the inherent requirements of his job because he could no longer lawfully attend the workplace.
Sections 387(b) & (c) – if the employees were advised of the reason for the dismissal and given an opportunity to respond
That a person has been notified of the reasons for dismissal and is given an opportunity to respond to those reasons before a final decision is made goes to the need for procedural fairness in the process undertaken. As was said in Crozier v Palazzo Corporation Pty Ltd[25]:
[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG (3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.
I accept that Mr Lazcano was on long service leave from 22 October 2021 until 31 December 2021. I do not accept that he was on any approved or authorised leave after this date. It is accepted that Mr Lazcano, even if he knew how to access his work emails, did not access his work emails while he was on long service leave. He was not advised, when going on leave and having that leave approved, that he was required to access his work emails whilst on leave or that leave was dependent on maintaining access. If it is that Metro Trains wanted or needed to communicate with Mr Lazcano while he was on leave the obligation to ensure that communication could, and did, occur (nothing else having been pre-arranged) rests solely with Metro Trains. Of course such an obligation could be met by mailing correspondence to the correct address, telephoning (with an appropriate message left) or texting to a correct telephone number and indicating some basis for the need for contact during leave.
I would note that, in dealing with a matter such as consideration of, and then a decision to, terminate employment, the sending of mail by regular post seems a rather haphazard approach to communication. Not only can Metro Trains not know if the letter has been delivered (clearly the residents at house number 88 in Mr Lazcano’s street did not bother to “return to sender” the incorrectly addressed letter) but even if delivered cannot know if the mail has been received by the addressee. The mail may be stolen, the intended recipient away and so on. Metro Trains would do well to consider, as a standard policy approach and where a personal email address is not known, such correspondence being sent by registered post to ensure delivery or knowledge of the inability to deliver.
Mr Lazcano cannot be held to account for not having complied with the direction in the email sent to him of 29 October 2021 in circumstances where the evidence does not support a conclusion that he received or was aware of that email.
The situation changes however from 1 January 2022 when Mr Lazcano was no longer on approved leave. Mr Lazcano gave evidence that in early January 2022 his pay stopped. He also gave evidence that at no time after this did he make any attempt to contact Metro Trains to find out why his pay had stopped. This is inexplicable in circumstances where Mr Lazcano maintains he had 6 months long service leave on half pay available to him when he went on leave. That he did nothing supports my conclusion that he was not on authorised leave after 31 December 2021 and supports an inference that he was aware of this. Once Mr Lazcano’s period of authorised leave expired the obligation was reasonably on him to contact Metro Trains.
Mr Lazcano agreed in his evidence that he was aware of, and understood, that he would not be able to attend the workplace unless he was vaccinated or had an appropriate medical exemption after 15 October 2021. He was on personal leave from 13 October 2021 to 19 October 2021 during which time he attempted (unsuccessfully) to get a medical exemption. Mr Lazcano then went on long service leave from 22 October 2021 because he knew he could not return to the workplace unless he was vaccinated or had a medical exemption. In these circumstances I also consider it reasonable to infer that Mr Lazcano did not contact Metro Trains after 1 January 2022 when his approved leave had come to an end because he was not vaccinated, did not have a medical exemption and knew or at least was aware of the possible consequences for his employment. Had Mr Lazcano contacted Metro Trains at the expiration of his leave he would have been clearly aware of his obligations and the consequences of failure to comply with the requirements of Metro Trains.
However, I accept that Mr Lazcano did not receive the letters of 7 January 2022 or 13 January 2022 and was not aware of their contents until he received a telephone call from Mr Brown on 18 January 2022. He could hardly respond to a letter he did not receive.
This procedural deficiency is not explained by the evidence but is not to be taken lightly.
To the extent Mr Lazcano complains of some procedural unfairness because no-one from Metro Trains reached out to him prior to his dismissal, the uncontested evidence of Mr Brown is that, shortly after Mr Lazcano went on leave, attempts were made to contact him but he did not return calls or texts. That Metro Trains did have concern for his welfare is evidenced by its (successful) attempts to have a welfare check done on him.
Further, I do note that, after the expiration of his approved leave and even in the circumstances where he was not receiving any pay, Mr Lazcano made no attempt to contact Metro Trains when there was a general obligation on him to do so.
I am therefore satisfied that Mr Lazcano was not advised of the reason for his dismissal nor given an opportunity to respond prior to the decision to dismiss him having been made. This was not caused by any deliberate act of Metro Trains but by assumptions about access to work emails and some not so careful attention to whether correspondence contained the correct address prior to being sent.
Section 387(d) – access to a support person
There was no denial by Metro Trains of Mr Lazcano having access to a support person. This is not an issue in the matter before me.
Section 387(e) – dismissal related to performance
This was not a dismissal for performance related reasons. This is therefore not a relevant consideration.
Sections 387(f) & (g) – was the size of the employer’s business and access to human resources expertise likely to impact on the procedures in relation to the dismissal
I am satisfied that Metro Trains is a large organisation with a well-equipped human resources team. Its procedures in relation to this matter before me appears sound and it approached the issues in a structured and professional manner as is to be expected.
Section 387(h) – any other matters
Mr Lazcano submits that the vaccine “mandates” were never a law and were no more than a “direction from the Premier”. He also says that the requirement to be vaccinated has now been “scrapped” and this should be taken into consideration.
I appreciate Mr Lazcano’s view that the Directions issued by the Chief Health Officer were not a law but this is not a matter for the Commission. As has been pointed out in a substantial number of decisions of the Commission in relation to vaccine requirements, as an administrative tribunal, the Commission operates according to the law as it stands. Any challenge to the lawfulness of the Directions is a matter for the Courts, not the Commission.
That there may be no requirement to be vaccinated in place now does not change that at the time of his dismissal Mr Lazcano could not fulfil the inherent requirements of his job as he could not lawfully enter the workplace. That, some 4 months or more later, this situation may have changed does not alter the facts as they existed at the time of his dismissal.
I note Mr Lazcano’s view as to the experimental nature of the vaccine but would observe that Metro Trains did not require Mr Lazcano to be vaccinated. Rather it complied with the law at the time – Mr Lazcano could not enter the workplace without showing evidence of vaccination of a valid exemption. It was and remains Mr Lazcano’s personal choice as to whether he is vaccinated or not. Mr Lazcano made his decision but, having done so, he must live with the consequences.
Mr Lazcano submits that the requirement to be vaccinated amounted to discrimination. Mr Lazcano submits that he is a Christian and his religious beliefs do not allow him to have to be vaccinated. The evidence before me does not allow me to conclude that Mr Lazcano’s religion means he cannot be vaccinated or that it is discriminatory to require him to be vaccinated. The evidence before me does not go to the details of his religion and its cannons or laws that supports the submissions made. Just because Mr Lazcano is a Christian and he personally does not believe in the vaccine that does not equate to him being decimated against on the grounds of his religious beliefs. Moreover I note that Metro Trains did not require Mr Lazcano to be vaccinated.
Conclusion as to whether the dismissal was harsh, unjust or unreasonable
I have found above that there was a valid reason for the dismissal of Mr Lazcano related to his capacity to do his job.
I have also noted the procedural failings associated with Mr Lazcano not receiving the correspondence of 7 January 2022 prior to the decision being made to terminate his employment. At times such procedural failings would provide a counterweight to the valid reason for dismissal. However, for the reasons outlined above I do not consider that to be so in this case. While the procedural deficiency in the process identified above is not insubstantial I do not consider it determinative in deciding if the dismissal was harsh, unjust or unreasonable. I reach this conclusion for three reasons, all particular to the circumstances of this case.
Firstly, at the time Metro Trains did make direct contact with Mr Lazcano on 18 January 2022, Mr Lazcano was aware that his employment had been terminated and expressed no desire to return to work.
Second, by the time contact was made with Mr Lazcano on 18 January 2022 even if Metro Trains had recommenced the process of a show cause letter and a letter of termination the outcome for Mr Lazcano would, inevitably, have been the same because he could not lawfully return to work. The requirement to be vaccinated to lawfully attend work has remained at least through January and February 2022 so it is difficult to comprehend, – given Mr Lazcano remains unvaccinated – that he could meet the requirements necessary to lawfully return to work at Metro Trains. The outcome of a recommencement of the process is hardly likely to have resulted in any different outcome. As Mr Lazcano was not receiving pay he has not been denied any money he otherwise would have received had his employment been terminated later in January 2022.
Third, following receipt of his unfair dismissal application form, and noting his claim not to have received either of the January letters, Metro Trains offered to return Mr Lazcano to his position if he could show he could lawfully attend work. Mr Lazcano did not respond to this email (even though he seeks a remedy of reinstatement) suggesting that at the time the offer was made he was unable to, and knew he was unable to, lawfully return to work.
Mr Lazcano has had multiple opportunities to show that he was capable of fulfilling the inherent requirements of his position. He could have told Mr Brown on 18 January 2022 that he wanted his job back and had been vaccinated or had a valid exemption. He did not do so and, on Mr Brown’s evidence which is not contradicted on this point, did not even express a desire to return to work. Mr Lazcano had another opportunity arising from the email of 25 March 2022 to provide the appropriate evidence that he could lawfully attend work. He did not do so. Mr Lazcano made the choices he did in the knowledge that he could not lawfully return to the workplace unless he was vaccinated or had a valid exemption.
For these reasons I am satisfied that the dismissal of Mr Lazcano was not harsh, unjust or unreasonable.
CONCLUSION
Having found that the dismissal of Mr Lazcano was not harsh, unjust or unreasonable I am satisfied that he was not unfairly dismissed.
Mr Lazcano’s application is therefore dismissed. An order[26] to this effect will be issued shortly.
COMMISSIONER
Appearances:
L. Brockie for the Applicant.
B. Popple for the Respondent.
Hearing details:
2022.
Melbourne by Microsoft video:
August 18.
[1] AE507020
[2] Witness statement of Robert Duvel, Annexure RD-2
[3] Witness statement of Robert Duvel, Annexure RD-4. Note that Mr Duvel says the Directions were issued on 8 October 2021 but it is dated 7 October 2021
[4] Witness statement of Robert Duvel, Annexure RD-6
[5] Witness statement of Robert Duvel, Annexure RD-7
[6] Witness statement of Robert Duvel, Annexure RD-8
[7] Witness statement of Robert Duvel, Annexure RD-10
[8] Witness statement of Robert Duvel, Annexure RD-11
[9] Witness statement of Denis Brown, paragraph 9
[10] Witness statement of Denis Brown, paragraphs 9-13
[11] Witness statement of Robert Duvel, Annexure RD-13
[12] Witness statement of Robert Duvel, Annexure RD-14
[13] Witness statement of Denis Brown, paragraph 23
[14] Witness statement of Denis Brown, paragraph 26
[15] Witness statement of Denis Brown, Annexure DB-1
[16] Exhibit R1
[17] Exhibit R2
[18] Exhibit R3
[19] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373
[20] Ibid
[21] Rode v Burwood Mitsubishi Print R4471
[22] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685
[23] [2010] FWAFB 4022
[24] [2021] FWCFB 6059
[25] Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print S5897; (2000) 98 IR 137
[26] PR745015
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