Jelka Trepic v Goodstart Early Learning Limited
[2022] FWC 1099
•24 JUNE 2022
| [2022] FWC 1099 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jelka Trepic
v
Goodstart Early Learning Limited
(U2022/1167)
| COMMISSIONER PLATT | ADELAIDE, 24 JUNE 2022 |
Application for an unfair dismissal remedy
On 27 January 2022, Ms Jelka Trepic (the Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Goodstart Early Learning Limited (Goodstart or the Respondent).
On 4 March 2022, Goodstart filed a Form F3 Employer Response and did not raise any jurisdictional objection.
On 31 March 2022, the matter was allocated to me and on 4 April 2022, a directions conference was held, and directions were issued for the filing of material.
The Applicant was required to file their material by 19 April 2022. The Applicant failed to file their material in line with the directions, and as such, a non-compliance hearing was convened on 20 April 2022. After hearing submissions from the Applicant’s representative at the non-compliance hearing, amended directions were issued which were complied with.
A Hearing was held, by videoconference, on 5 May 2022. The Applicant was represented by Mr Robert Fenwick Elliott and the Respondent was represented by Mr Murray Procter (both of Counsel). Permission was granted to both the Applicant and Respondent to be represented pursuant to s.596 (2)(a) on the basis of complexity and efficiency.
When can the Commission order a remedy for unfair dismissal?
Section 390 of the Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
When is a person protected from unfair dismissal?
Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
There was no submission that the Applicant was not protected from unfair dismissal.
When has a person been unfairly dismissed?
Section 385 of the Act provides that a person has been unfairly dismissed if the Commission 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.
There was no dispute that the Applicant had been dismissed, and it was not contended that the dismissal was a case of genuine redundancy or that the Respondent was a small business such that the dismissal could have been consistent with the Small Business Fair Dismissal Code. The only remaining issue is whether the Applicant’s dismissal was harsh, unjust or unreasonable within the meaning of s.387 of the Act.
Evidence
The Applicant filed two witness statements from Ms Trepic (with attachments). The first was dated 21 April 2022[1] and the second was dated 3 May 2022[2]. In addition, Ms Trepic gave evidence at the Hearing and was cross-examined.
The Respondent filed a witness statement (with attachments)[3] from Ms Juvena Rowe, People Partner – Employee Relations. In addition, Ms Rowe gave evidence at the Hearing and was cross-examined.
The following facts were not in dispute:
·Goodstart provides childcare and early learning services.
·On 8 July 2015, the Applicant commenced employment with Goodstart as an Assistant Director.
·In December 2018, Ms Trepic was promoted to Centre Director at Goodstart Semaphore Park.
·In early 2020, Ms Trepic was appointed as Centre Director of Goodstart Clearview.
·Goodstart Clearview is licensed to care for 110 children.
·Ms Trepic’s most recent contract of employment states that she was engaged on a part-time basis and that the place of work is Goodstart Clearview.
·Ms Trepic was not vaccinated against COVID-19 and was not the holder of an exemption certificate.
·Ms Trepic was determined not to be vaccinated due to her concerns about the potential adverse effects of the vaccine on her.
·Between 28 September 2021 and 27 October 2021, both parties engaged with each other in relation to vaccination requirements and Ms Trepic’s concerns.
·On 11 November 2021, Goodstart advised Ms Trepic that if she was not vaccinated or the holder of a medical exemption by 29 November 2021, she would not be able to work, but could access her leave. At this stage, the Respondent was relying on a policy-based approach.
·Ms Trepic was stood down on 29 November 2021.
·Further correspondence was exchanged between the parties about Goodstart’s requirements and Ms Trepic’s concerns, including the lawfulness of the requirements.
·On 1 December 2021, Goodstart sent Ms Trepic a letter requesting that she show cause as to why her employment should not terminate.
·On 3 December 2021, Ms Trepic responded and raised certain issues. On 20 December 2021, Goodstart responded to the issues raised by Ms Trepic.
·On 30 December 2021, Goodstart advised Ms Trepic that she would not be granted an exemption from the vaccination requirement.
·On 4 January 2022, Ms Trepic advised that she did not consider that Goodstart could require her to be vaccinated.
·Between 6 and 11 January 2022, Goodstart Clearview was closed due to a COVID-19 outbreak.
·The Emergency Management (Education and Early Childhood Settings Vaccination) (COVID-19) Direction 2021 (the State Government Direction) came into effect on 16 November 2021.
·On 12 January 2022, Goodstart dismissed Ms Trepic, providing her with four weeks’ pay in lieu of notice.
·Goodstart now rely on the State Government Direction as providing the requirement for Ms Trepic to be vaccinated.
Goodstart submits that:
·The operations of Goodstart Clearview and the work performed by Ms Trepic fell under the State Government Direction.
·The Applicant did not comply with the vaccination requirements of the State Government Direction or hold a medical exemption and was therefore unable from 11 December 2021 to attend Goodstart Clearview and fulfill the inherent requirements of her role. This was the valid reason relied upon for the dismissal.
·Goodstart engaged with Ms Trepic extensively concerning the requirement to be vaccinated as part of a policy-based approach and advised Ms Trepic that a failure to be vaccinated would impact on her employment.
·On 12 January 2022, Ms Trepic was dismissed as a result of her not meeting the vaccination requirements. Notice was paid in lieu.
Ms Trepic submits that:
·Goodstart failed to consult with her as required by the Goodstart Early Learning Enterprise Agreement 2021.[4]
·Her role was essentially administrative and could easily have been performed from home. Any incapacity of Ms Trepic to perform the requirements of her role were modest in scale and could have been rearranged in a way that would represent a “reasonable adjustment”.
·By the time of the dismissal, Goodstart should have been aware that the Omicron variant of COVID-19 had overtaken the Delta variant, and that the Omicron variant posed a modest risk to elderly people and no risk at all to children and as such, the State Government Direction would shortly be lifted.
·Goodstart failed to consult appropriately such that it could rely on its vaccination policy as a lawful and reasonable direction. Goodstart did not give proper consideration to the matters raised by Ms Trepic.
·Ms Trepic considered that her status, as unvaccinated but having been exposed to COVID-19, presented a lesser health risk to others than a vaccinated person, and that the administration of a vaccination presented some risk to her.
·Ms Trepic was denied procedural fairness.
·The dismissal of the Applicant was a cynical marking objective employed by Goodstart so as to present itself as an organisation in which everyone was vaccinated.
·The dismissal did not arise as a result of the State Government Direction, as Goodstart’s requirement for the Applicant to be vaccinated pre-dated the publication of the State Government Direction.
Consideration
Ms Trepic submitted a number of documents concerning COVID-19.[5] No expert evidence was presented to the Commission to explain or advance the matters detailed in these documents.
In terms of the risks posed by COVID-19 and the utility of vaccinations, nothing presented to me persuades me to depart from the following general factual propositions observed by the Full Bench in Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal[6] (Mt Arthur):
“1. COVID-19 involves a high burden of disease, greater than influenza.
2. Any infected person is at risk of developing serious illness from the virus, which may lead to death.
3. The risks posed by COVID-19 have changed with the rapid rise of the Delta variant which is more infectious and has more severe health effects than previous variants.
4. All COVID-19 vaccines currently available in Australia are effective at preventing symptomatic infection, including from the Delta variant.
5. All COVID-19 vaccines currently available in Australia substantially reduce the risk of serious illness or death, including from the Delta variant.
6. All COVID-19 vaccines currently available in Australia are safe and any adverse effects are usually mild. There is a much higher risk of developing serious complications and dying from acquiring COVID-19.
7. An unvaccinated person is more likely to acquire COVID-19 from another unvaccinated person, rather than a vaccinated person.
8. While other measures, such as mask wearing, and social distancing, are demonstrated to reduce the transmission of COVID-19, the effectiveness of these measures depends on people applying them consistently or correctly. They do not provide a substitute for the constant protection offered by vaccines, nor do they reduce the risk of developing serious illness once somebody acquires an infection.
9. Vaccination is the most effective and efficient control available to combat the risks posed by COVID-19.
10. Even with high vaccine rates in the community, COVID-19 will remain a significant hazard in any workplace in which there is a possibility that people will interact or use the same common spaces (even at separate times).”
Much of Ms Trepic’s case was predicated on the reliance on a policy-based dismissal by Goodstart as opposed to a dismissal based on the State Government Direction. Mt Arthur considered the consultation requirements for the introduction of an employer policy-based approach. In this case, whilst Goodstart started a process intending to introduce a policy, the dismissal occurred whilst the State Government Direction imposed certain obligations on the parties. The consultation requirements in respect of a State Government Direction are much less onerous and arguably limited to the procedural requirements of s.387 of the Act. As a result of the Respondent’s reliance on the State Government Direction, I do not believe the requirements of Mt Arthur or consultation requirements contained in the relevant enterprise agreement have application in this matter.
I am not persuaded that the minority decision in the matter of Kimber v Sapphire Coast Community Aged Care[7] provides guidance.
There was no dispute as to the application of the State Government Direction. The State Government Direction imposed certain vaccination requirements or the holding of an exemption certificate in order for a person to engage in work or perform duties at an education and early childhood setting from 11 December 2021. In the State Government Direction, an education and early childhood setting is defined as, amongst other things, a government or non-government kindergarten, early learning centre or preschool. The operations of Goodstart are an education and early childhood setting.
Simply put, the State Government Direction required the Applicant, in order to engage in work or perform duties at an education and early childhood setting, to:
· have had her first vaccination by 10 December 2021, and
· to have made a booking (or received) a second vaccination dose, or
· have already received two doses of an approved vaccine, or
· hold a medical exemption.
There is no dispute that Ms Trepic was not able to satisfy any of these requirements. I accept that Ms Trepic had genuine reasons for not wishing to vaccinate, however the State Government Direction does not afford any discretion in terms of its requirements.
Ms Trepic contended that Goodstart did not expressly advise her that the requirement to vaccinate arose from the State Government Direction rather than a company policy. This appears to be the case. None of the communications from Goodstart (including the termination letter) expressly rely upon the State Government Direction as the source of the requirement to vaccinate. Whilst this may be true, Ms Trepic and Goodstart had both made their respective positions about vaccination clear. I have no doubt that the Applicant understood that her vaccination status was the key factor that placed her employment at risk.
The final matter I wish to address is Ms Trepic’s role and whether it can be performed without attending the workplace.
At the time of dismissal, Ms Trepic was engaged as Centre Director. A position description was submitted by the Respondent, together with a document titled Performance Framework which appears to contain the KPIs relevant to the Centre Director role.
The Centre Director is the leader of the Centre and is required to establish and maintain relationships with the families of the children that attend the Centre and the staff employed at the centre. The role provides leadership so as to build capability and support within the team and make the Centre a safe and engaging place for children and their families. Key deliverables include providing a safe environment for children, families, employees and visitors, ensuring compliance with the National Quality Framework, managing centre performance using business and financial discipline, attracting, converting and retaining families, leading, mentoring and supporting employees, providing professional development opportunities for employees, and driving the continuous improvement of the Centre. The documentation provides significantly more detail than this summary.
The Applicant contends that by leveraging off other persons employed at the Centre and by using technology such as Zoom and telephone calls, all of the requirements of her role could have been done without attendance at the Centre. The Applicant gave numerous examples where individual requirements had been met without the need for her attendance.
Whilst I accept that during the preceding stages of the COVID-19 pandemic the Applicant had successfully managed her way through the varying demands of her role without attending at the workplace, this does not mean that there was no longer any need to attend the workplace to fulfill the requirements of her role on an indefinite basis.
An objective review of the role requirements (particularly the requirement to lead and manage), indicates to me that one of the inherent requirements of the role is that the Applicant be physically present in the workplace.
This requirement is reflected in Ms Trepic’s contract of employment, which states the role will be performed at the Clearview site. The fact that the Respondent permitted some flexibility in allowing employees to work from home during the pandemic does not mean that it has waived its ability to demand that the role be performed in the manner described in the employment contract.
Goodstart was under no obligation to vary Mr Trepic’s contract of employment to accommodate choices made by her. This view is consistent with the decisions in Gee v Eastern Health[8] and O’Toole v Australian Community Support Organisation Ltd.[9]
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[10]
I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[11] and should not be “capricious, fanciful, spiteful or prejudiced.”[12] 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.[13]
I find that Ms Trepic’s contract of employment required her to attend at Goodstart Clearview. Ms Trepic was not entitled to require the Respondent to vary her contract of employment to allow her to work from home, nor was she entitled to require the Respondent to reorganise her duties and distribute those duties which must be performed in person to other employees. In my view, these would not be reasonable adjustments.
I find that as a result of the requirements of Ms Trepic’s role, the operation of the State Government Direction, and Ms Trepic’s vaccination status, she was unable to perform the inherent requirements of her role with effect from 11 December 2021.
This was a valid reason for dismissal related to Ms Trepic’s capacity.
Was the Applicant notified of the valid reason?
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[14] and in explicit[15] and plain and clear terms.[16]
Ms Trepic was expressly not informed prior to her dismissal that her dismissal was due to the requirements of the State Government Direction. As I have noted earlier, however, I find that it was clear to all involved that the reason for the dismissal related to Ms Trepic’s vaccination status.
Having regard to the matters referred to above, I find that the Applicant was not notified of the reason for her dismissal in clear and concise terms prior to the decision to dismiss being made.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[17]
The applicant was provided with a ‘show cause’ letter on 1 December 2021 which asked her to show cause as to why her employment should not be dismissed. Ms Trepic responded to that communication. The show cause process permitted Ms Trepic to respond to concerns about her vaccination status but not the requirements of the State Government Direction.
I find that the Applicant was not given an opportunity to respond to the reason for her dismissal prior to the decision to dismiss being made.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”[18]
The Applicant did not seek to have a support person present however the manner in which the termination was affected did not allow such an opportunity.
Was the Applicant warned about unsatisfactory performance before the dismissal?
The Applicant was not dismissed as a result of unsatisfactory performance.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
In all the circumstances, I do not find that the size of the Respondent’s enterprise impacted on the procedures followed in effecting the dismissal.
To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
In all the circumstances, I do not find that the absence of dedicated human resource management specialists in the Respondent’s enterprise had an impact on the procedures followed in effecting the dismissal.
What other matters are relevant?
Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
The Applicant contends that her role could have been performed remotely and that the employer should have made a “reasonable adjustment” to assign those portions of the role that could not be performed to others. I do not accept this submission. The remote undertaking of Ms Trepic’s role as Centre Director is inconsistent with the delivery of the requirements of the role. The proposed changes were significant. In my view, it was not open to Ms Trepic to require Goodstart to restructure her role, and that of others, such that she could comply with the State Government Direction whilst unvaccinated. The duration of the State Government Direction was unknown at the time of the dismissal. Whilst the State Government Direction was revoked on 31 March 2022, at the time of dismissal there was no information available to the Respondent as to the likely duration of the vaccination requirements subject of the State Government Direction. In any case, at the time of revocation the requirement for Ms Trepic to be vaccination to attend the workplace remained, as the Goodstart company policy took effect. As such, I am not able to accept that the changes sought by Ms Trepic are minor or short term or temporary in nature.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in section 387 as relevant.
I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[19]
Having considered each of the matters specified in section 387 of the Act, I am not satisfied that the dismissal was harsh, unjust or unreasonable.
Conclusion
I am therefore not satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the Act. As such, the application is dismissed.
COMMISSIONER
Appearances:
Mr R Fenwick Elliott for the Applicant
Ms Procter for the Respondent
Hearing details:
2022.
Adelaide (by videoconference)
May 5
[1] Exhibit A1
[2] Exhibit A2
[3] Exhibit R2
[4] AE512638.
[5] The information is contained at pages 22-89 of the Digital Court Book
[6] [2021] FWCFB 6059
[7] [2021] FWCFB 6015
[8] [2022] FWC 932
[9] [2022] FWC 477
[10] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[11] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[12] Ibid.
[13] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[14] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[15] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
[16] Ibid.
[17] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
[18] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
[19] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
Printed by authority of the Commonwealth Government Printer
<PR741422>
0
9
0