Jennifer Lewis v Casey City Council
[2022] FWC 2006
•27 JULY 2022
| [2022] FWC 2006 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jennifer Lewis
v
Casey City Council
(U2022/4064)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 27 JULY 2022 |
Application for an unfair dismissal remedy - employment subject to Directions of Acting Victorian Chief Health Officer and then Orders made under the Public Health and Wellbeing Act 2008 (Vic) – Respondent required to comply and collect, record and hold vaccination information and to not permit an unvaccinated workers to work outside the worker’s ordinary place of residence - Applicant required to attend Respondent’s site and others outside of her ordinary place of residence – refusal to follow a lawful and reasonable direction to provide vaccination information a valid reason for dismissal – termination on the basis that she was unable to meet inherent requirements of her contracted position also a valid reason –Dismissal not otherwise unfair.
Ms Jennifer Lewis has made an unfair dismissal application to the Fair Work Commission pursuant to s.394 of the Fair Work Act 2009 (the Act). While Ms Lewis named the City of Casey as the Respondent in her Form F2 – Unfair Dismissal Application form (Form F2), the Respondent was recorded in the Form F3 – Employer Response to Unfair Dismissal Application as “Casey City Council trading as City of Casey”. No point was taken by Casey City Council regarding the way in which the Respondent had been named in the Form F2 but I have amended the application to record Casey City Council as the Respondent and consider my doing so comes within the circumstances in which it has been held this is possible pursuant to s.586 of the Act.[1] I shall hereafter refer to Casey City Council as “the Respondent”.
The matter proceeded by way of determinative conference on 15 June 2022 via Microsoft Teams when evidence was given by Ms Lewis, as well as Mr Aiden Eddington, Workplace Relations Advisor in the People and Culture Department of the Respondent and Ms Lynelle Marke, the Respondent’s Team Leader of Waste Education and Litter Enforcement.
I did not grant the Respondent’s application for permission to be legally represented at the determinative conference and it was instead represented by its Head of P&C Operations and Business Partnering, Ms Louise Green.
Initial matters to be considered – s.396 of the Act
Ms Lewis commenced employment with the Respondent during 2017 and was employed on a permanent part-time basis as a Recycling Education Officer when her dismissal took effect on 16 March 2022. As such, her application filed on 6 April 2022 was made within the 21-day period after the dismissal took effect, as required by s.394(2) of the Act (s.396(a)). There is no dispute that Ms Lewis is a person protected from unfair dismissal because she had completed the minimum employment period and the Casey City Council Enterprise Agreement 2021 applied to her (s.396(b)). Further, it is not disputed, and I am satisfied that the Respondent was not a small business employer. As such, the matter does not require consideration of whether the dismissal was consistent with the Small Business Fair Dismissal Code (s.396(c)). Finally, it was not claimed by the Respondent and nor does the material before me suggest the dismissal was a case of genuine redundancy (s.396(d)).
Section 385 of the Act – was the dismissal unfair?
As to the circumstances set out at s.385 of the Act, there is no question or dispute that Ms Lewis was dismissed (s.385(a)). Further, as outlined above, this is not a matter that involves a small business, such that consideration of whether Ms Lewis’ dismissal was consistent with the Small Business Fair Dismissal Code (s.385(c)) is required, or one where it is claimed by the employer that the dismissal was a case of genuine redundancy (s.385(d)).
This leaves s.385(b) and in determining whether the dismissal was harsh, unjust or unreasonable, I must have regard to s.387 of the Act:
“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.”
Consideration
Having outlined the criteria in s.387 of the Act, I am under a duty to consider each of these criteria in reaching my conclusion and will do so below.
Was there a valid reason for dismissal relating to Ms Lewis’ capacity or conduct? – s.387(a)
In considering whether the dismissal of Ms Lewis was harsh, unjust or unreasonable, I am required to take into account whether there was a valid reason for the dismissal related to her capacity or conduct (including its effect on the safety and welfare of other employees). The reason or reasons should be “sound, defensible and well founded”[2] and should not be “capricious, fanciful, spiteful or prejudiced”.[3]
By way of background, the Victorian Minister for Health issued a declaration pursuant to s.198(1) of the Public Health and Wellbeing Act 2008 (Vic) (PHWA) on 16 March 2020 that Victoria had entered a state of emergency as a consequence of the COVID-19 pandemic. The declaration was extended numerous times. Where a state of emergency exists, the Chief Health Officer of Victoria may authorise the issuing of emergency powers, which include the issuing of directions pursuant to the PHWA.[4]
On 14 October 2021, the Acting Victorian Chief Health Officer issued the COVID-19 Mandatory Vaccination (Workers) Directions (No 2) (the Directions), which commenced at 11.59pm on 14 October 2021. The Directions imposed obligations on employers of certain identified workers (which included local government workers) to collect, record and hold vaccination information about their workers scheduled to work outside the worker’s ordinary place of residence on or after 15 October 2021. Under the Directions:
a)A “public sector worker” was defined as including a local government worker[5] and a “local government worker” was defined as including a member of Council staff appointed under s.48 of the Local Government Act 2020.[6]
b)Employers of public sector workers were to ensure that “unvaccinated” workers did not work for them outside their ordinary place of residence on or after 15 October 2021 unless they had a booking to receive a first dose of a COVID-19 vaccine by 22 October 2021.
c)Exceptions applied if a worker held a certification from a medical practitioner that they were unable to receive a COVID-19 vaccine due to a medical contraindication or an acute medical illness.
The Directions were updated in subsequent versions made by both the Chief Health Officer and the Acting Chief Health Officer, with the last version of them to operate being the COVID-19 Mandatory Vaccination (Workers) Directions (No 8) (Version 8). Operating from 11.59pm on 18 November 2021 and ending at 11.59pm on 15 December 2021, Version 8 also imposed obligations on employers of public sector workers to collect, record and hold “vaccination information” about them if they were or might be scheduled to work outside their ordinary place of residence out and to ensure that “unvaccinated” public sector workers did not work for them outside their ordinary place of residence on or after 26 November 2021.
In December 2021, the Victorian Parliament amended the PHWA. This saw the introduction of a framework specific to pandemics[7] whereby the Premier of Victoria can make a pandemic declaration after considering the advice of the Chief Health Officer and the Minister for Health, if the Premier is satisfied on reasonable grounds that there is a serious risk to public health resulting from a disease that is or has potential to be a pandemic disease.[8] If a pandemic declaration has been made, the Victorian Minister for Health can make ‘pandemic orders’ for the purposes of protecting public health.[9]
On 10 December 2021, a pandemic declaration was made.[10] It came into force at 11.59pm on 15 December 2021. On 15 December 2021, the Victorian Minister for Health made the Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 1) (Specified Workers Order), which commenced at 11:59pm on 15 December 2021. The Specified Workers Order replaced Version 8 and provided that:
a) If a worker (which, as identified in Row 25 of Column 1 of Schedule 1 of the Specified Workers Order, included a “public sector worker”) was or might be scheduled to work outside of their ordinary place of residence after 11:59pm on 15 December 2021, their employer was required to collect, record and hold “vaccination information” about them, unless the employer already held “vaccination information” that the worker was “fully vaccinated” or an “excepted person”;
b) A “public sector worker” was defined to include a local government worker[11] and a “local government worker” was defined as including a member of Council staff appointed under s.48 of the Local Government Act 2020;[12] and
c) Employers of such workers, including local government workers, were not to permit their workers to work for them outside of their ordinary place of residence if they were “unvaccinated” or “partially vaccinated”.
At the time of Ms Lewis’ dismissal, Version 5 of the Specified Workers Order (Order Version 5) was in force and provided that:
a) If a worker (which, as identified in Row 26 of Column 1 of Schedule 1 of Order Version 5, included a “public sector worker”) was or might be scheduled to work outside of their ordinary place of residence after 11:59pm on 25 February 2022, their employer was required to collect, record and hold “vaccination information” about them comprising the worker’s “vaccination status” and, if “fully vaccinated”, the date upon which they became “fully vaccinated”;
b) A “public sector worker” was defined to include a person was defined as including a local government worker[13] and a “local government worker” was defined as including a member of Council staff appointed under s.48 of the Local Government Act 2020;[14]
c) Employers of such workers, including local government workers, were not to permit their workers to work for them outside of their ordinary place of residence unless they were “fully vaccinated” or an “excepted person”;
Order Version 5 defined an “excepted person” and “acceptable certification” as follows:
“(6) A person is an excepted person if the person holds acceptable certification that the person is unable to receive a dose, or a further dose, of a COVID-19 vaccine that is available in Australia due to:
(a) a medical contraindication; or
(b) an acute medical illness (including where the person has been diagnosed with COVID-19).
(7) An acceptable certification for the purpose of subclause (6) is:
(a) a current COVID-19 digital certificate issued by Services Australia and displayed through the Medicare App, Service Victoria App or equivalent smartphone wallet, that states that the person is unable to receive a dose, or a further dose, of any COVID-19 vaccine that is available in Australia; or
(b) a printed version of the COVID-19 digital certificate referred to in subparagraph (a);
(c) only in relation to a person who is fully vaccinated, a current Immunisation History Statement displayed through the Medicare App, that states that a fully vaccinated person is unable to receive a booster dose that is available in Australia; or
(d) only in relation to a person who is fully vaccinated, a printed version of the Immunisation History Statement referred to in subparagraph (c).”
The reasons for Ms Lewis’ termination given by the Respondent were outlined in the letter to her from the Respondent dated 16 March 2022 entitled “Outcome Following Failure to Follow Lawful and Reasonable Direction – Mandatory Vaccination” (the Termination Letter).[15] In the Termination Letter, it was stated that Ms Lewis failed to comply with two lawful and reasonable directions that she provide evidence as set out in the Directions of the Chief Health Officer and that this was considered by the Respondent to be both inconsistent with the contract of employment and serious misconduct under the Disciplinary Code within the City of Casey Acceptable Workplace Behaviours Policy. It was also stated that the Respondent did not have trust and confidence in Ms Lewis’ ability to perform “the fundamental expectations” of her position as a Recycling Education Officer “for the foreseeable future” and that her employment was terminated with immediate effect.
The Respondent’s case in relation to s.387(a) is that there was a valid reason for MsLewis’ dismissal related to:
a)her conduct in that as at 16 March 2022, she had failed to obey a reasonable and lawful direction to provide evidence that she was “fully vaccinated”, or evidence that she was an “excepted person” and had made no commitment to provide such evidence; and
b)her capacity in that she was not able to perform the inherent requirements of her job, which required her to work outside her ordinary place of residence.
I am satisfied both the various versions of Directions and Orders, and specifically, Order Version 5 in operation as at 16 March 2022, covered Ms Lewis’ employment with the Respondent. I consider Ms Lewis was a “public sector worker” because she was employed as a “local government worker”. Ms Lewis has not taken issue with the applicability of the Directions and Orders. She accepted the Directions and Orders applied to the Council and that she was regarded as a “local government worker” under them.
Order Version 5 imposed an obligation on the Respondent to collect, record and hold vaccination information about Ms Lewis’ vaccination status in the event she was or might be scheduled to work outside her ordinary place of residence after 11.59pm on 25 February 2022. Further, the Respondent was required to not permit Ms Lewis to work for it outside her ordinary place of residence after 11.59pm on 25 February 2022 unless she was “fully vaccinated” or an “excepted person”. If the Respondent did not hold vaccination information about a worker, it was obliged to treat the worker as if the worker were unvaccinated. A refusal or failure by the Respondent to comply with a pandemic order or with a direction given to it or a requirement in the exercise of a pandemic management power was an offence for which a penalty of 300 penalty units applied.[16]
Correspondence dated 23 December 2021 reminded Ms Lewis that the Directions applied to her role and that Council was requiring all of its employees to return to the office from 31 January 2022. Ms Lewis was issued with a direction to provide the information required by 28 January 2022. Ms Lewis was on notice from at least this time that she would need to return to the office as part of her role, even if the actual date for return was subsequently delayed. After a meeting on 3 February 2022, Ms Lewis was given a further direction to provide the information required by 3 March 2022. She did not do so.
Ms Lewis confirmed, and I am satisfied that:
· she had not had a first dose, nor a booking for a second dose of a COVID-19 vaccine as at 16 March 2022;
· she was not an “excepted person” under the Directions or Orders as at the 16 March 2022; and
· while she held a valid COVID-19 digital certificate from 8 April 2022 stating she had a medical contraindication to COVID-19 vaccines,[17] she did not hold this on 16 March 2022 and nor had she applied for it on 16 March 2022.
In summary, I am satisfied that as at 16 March 2022, Ms Lewis had not complied with the Respondent’s direction that she provide it with “vaccination information”.
I observe that in the recent decision in Roman v Mercy Hospitals Victoria Ltd[18] (Roman), Deputy President Colman discussed the concept of lawful and reasonable directions, as follows:
“Implied into the contract of employment is an obligation of an employee to obey the employer’s lawful and reasonable directions (Bayley v Osborne (1984) 4 FCR 141 at 145). The requirement that the direction be lawful has two dimensions. One is that the employer cannot demand that an employee act unlawfully. The other is that the direction must be within the scope of the contract of employment (see R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621-2 per, Dixon J). The latter reflects the ‘general rule ... that a contract by which a person is employed in a specific character is to be construed as obliging him to render, not indeed all service that may be thought reasonable to render, but such service only as properly appertains to that character’ (see Commissioner for Government Transport v Royall (1966) 116 CLR 314 at 322, per Kitto J).”[19]
In Roman, the Deputy President identified two dimensions required in order for a direction to be lawful. As to them, I am satisfied that the direction the Respondent gave to Ms Lewis that she provide it with information about her COVID-19 vaccination status did not require Ms Lewis to act unlawfully. Secondly, while Ms Lewis submitted that her contract did not include any vaccination requirements, I am satisfied the Respondent issued a direction that was within the scope of Ms Lewis’ contract of employment. The Directions and Orders imposed an obligation on the Respondent to not permit Ms Lewis to work for it outside of her ordinary place of residence unless she had provided “vaccination information” that established she was not “unvaccinated”. The Respondent made a direction related to Ms Lewis’ job because her compliance or non-compliance with the direction bore upon her capacity to perform it. I agree with the view the Deputy President expressed in Roman that a direction to an employee to do something that is a necessary condition for a state of capacity to do their job is a lawful direction.[20]
Turning then to the question of whether the direction given by the Respondent was reasonable, I am satisfied it was. The Directions and Orders imposed new regulatory requirements for Ms Lewis’ role and the direction given by the Respondent in response to them was directed towards Ms Lewis being able to continue to do the job she was hired to do. Ms Lewis was within her rights to decline to become vaccinated and she could elect to not provide the Respondent with the information it requested from her but, having regard to the test enunciated by the Full Bench in CFMMEU and Anor v Mt Arthur Coal Pty Ltd[21] as to whether a direction is reasonable, I am satisfied there was a “logical and understandable basis”[22] for the direction made by the Respondent. I am therefore satisfied that the Respondent had a valid reason for dismissing Ms Lewis on 16 March 2022 for failure to follow a lawful and reasonable direction.
The Respondent also submitted Ms Lewis was not able to perform the inherent requirements of her job because it was legally obliged not to allow any unvaccinated worker to perform work outside of their ordinary place of residence. As outlined above, the Respondent was required (under Order Version 5) to treat Ms Lewis as if she was “unvaccinated” and was prohibited under Order Version 5 from permitting Ms Lewis to work outside of her ordinary place of residence. Had the Respondent permitted Ms Lewis to work outside of her ordinary place of residence, it would have been guilty of an offence and exposed to a substantial financial penalty.
Ms Lewis argued:
a)Her role had transitioned to remote work from 31 March 2020 and from that time she had continued to work efficiently, meeting all her work targets and transferring to virtual and alternate communication methods;
b)She had discussed with her team leader picking up extra administrative duties to continue working and supporting her team, so as to free up other team members to do the “face to face on site contact” work;
c)She had taken on extra administrative duties in a handover of an exiting staff member;
d)There was more than enough remote work she could do to keep working as an effective team member, supporting her team, the council and their community; and
e)The majority of her work could be completed from home, such that her request to complete all her work from home until the mandates lifted was reasonable.
Ms Lewis agreed that there were some forward-facing duties that others were performing for her and some administrative duties that she was performing for others.
Ms Marke gave evidence that the Respondent undertook virtual community engagement sessions during the Government lockdowns in 2020 and 2021 but by March 2022, the members of Ms Lewis’ team were resuming their pre-COVID “community facing activities” of visiting schools and various venues for community groups and undertaking presentations because these were much more effective. Ms Marke surmised that approximately 40% of the role of Recycling Education Officer could have been performed from home in March 2022, comprising administrative, preparation and planning tasks. Ms Marke said the balance of the time was required to be spent at the office (one day per week) and community events.
Ms Marke gave the following evidence about the work of the Waste Education and Litter Enforcement team if the work had been reorganised around Ms Lewis’ inability to work outside her ordinary place of residence:
“MS MARKE: It wouldn't have been done as effectively. Jen was one of the key communicators and presenters in the team, and so the impact has been a lot of pressure on our other key presenter in the team that she is now pretty much doing those solo, and the redistribution of tasks of Jen taking over all the administration would have reduced the amount of residents we were able to engage with. With only having one other key presenter we just can't have the reach that we could have with two people out and about interacting with the community, not as effective model.
THE DEPUTY PRESIDENT: So what you're suggesting there is that you could have done presentations but not as many?
MS MARKE: Correct.”[23]
Ultimately, the position of Ms Marke was that the arrangement she had made with Ms Lewis to work from home was a temporary, short-term measure and was not an agreement for her to continue to do so on a permanent or ongoing basis. She said Ms Lewis could not have continued to serve residents and the community of the Respondent without disruption if she kept working from home.
I am satisfied the evidence establishes that as at 16 March 2022, Ms Lewis could not perform the job she was employed by the Respondent to do. On her own evidence, Ms Lewis conceded her forward facing duties had to be performed by others. Ms Lewis’ proposal to work full time at home was based on a temporary set of arrangements borne out of external COVID-19 pandemic restrictions and predicated on other colleagues being able to undertake certain tasks for her in a re-organisation of duties. I am not persuaded that Ms Lewis’ proposal to spend 100% of her working week at home was reasonable or realistic having regard to her responsibilities and duties and the broader process of returning to face-to-face activities occurring within the operations of the Respondent at that time. In this regard, I have noted Ms Lewis’ role included the requirement to provide “quality customer service to all Casey residents and visitors to the Recycling education facility”[24] and the evidence of Ms Marke that Ms Lewis was one of only two key presenters. Further, I have noted that amongst the duties of her key responsibility area of community education, Ms Lewis was required to both develop a range of programs to be delivered from the education facility or as incursion activities off site and participate in recycling industry and education workshops, seminars and conferences.[25] I am therefore satisfied that in order to perform her job, Ms Lewis had to be able to fulfil the requirement to work outside of her ordinary place of residence.
The choice of Ms Lewis to decline to become “fully vaccinated” that persisted as at 16 March 2022 therefore had the inevitable consequence of rendering her unable to perform the job she was employed by the Respondent to do. Ms Lewis’ assertion that the temporary arrangements could have continued until she had obtained her medical exemption and that she then would have been able to perform her duties to her full capacity once medically exempt is advanced on a false premise because:
a)Ms Lewis she was not an “excepted person” at the time of her dismissal;
b)Ms Lewis had given no indication that she was seeking to obtain the status of an “excepted person” on or before 16 March 2022; and
c)There was, as at 16 March 2022, no indication that Ms Lewis would become an “excepted person”.
Had the Respondent permitted Ms Lewis to work outside of her ordinary place of residence while not holding “vaccination information” about her before she became an “excepted person”, it would have been guilty of an offence and exposed to a substantial financial penalty. Having regard to these circumstances, I am satisfied that the Respondent had a valid reason for dismissing Ms Lewis on 16 March 2022 that was related to her capacity.
Notification of the valid reason – Opportunity to respond to any reason related to capacity or conduct – s.387 (b) and (c)
Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made,[26] in explicit terms,[27] and in plain and clear terms.[28] In Crozier v Palazzo Corporation Pty Ltd[29] a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following:
“[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 170(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.”
In an email to all staff dated 15 October 2021,[30] the Respondent outlined the requirement for staff to have two doses of a COVID-19 vaccine from 26 November 2021 or a medical exemption. On 23 December 2021, the Respondent sent an email to Ms Lewis. This email outlined that from 31 January 2022, all staff would be required to return to onsite work and by 28 January 2022, they were required to provide evidence that they had been fully vaccinated or had an exemption. The email contained a direction that Ms Lewis provide evidence of her vaccination record by 12pm on 28 January 2022 and cautioned that a failure to follow this direction without reasonable explanation may result in disciplinary action.[31] Ms Lewis confirmed being aware of this requirement. In a letter emailed to Ms Lewis dated 14 January 2022 with the header “Reasonable Lawful Direction – Mandatory Vaccination”, the Respondent advised that the return to office date had been deferred but her vaccination information was still required by 12pm on 28 January 2022.[32] This letter also included:
“Failure to follow a reasonable and lawful direction, without reasonable explanation may result in disciplinary action. As such, you are encouraged to adhere to this direction.”
Mr Eddington sent an email to Ms Lewis dated 27 January 2022 in which he stated that Ms Lewis may be required to attend work outside her ordinary place of residence at any time and repeated the caution that a failure to follow a reasonable and lawful direction without reasonable explanation may result in disciplinary action. Ms Lewis was again encouraged to adhere to this direction.
A meeting was held on 3 February 2022 between Ms Lewis, Mr Eddington and Mr Michael Jansen (Manager Sustainability and Waste for the Respondent). Mr Eddington said the meeting was held in order to give Ms Lewis an opportunity to provide her response as to why “she had failed to comply with the reasonable and lawful direction to provide the vaccination information.”[33] Mr Eddington’s evidence was that Ms Lewis advised that she was seeking further medical information whereas Ms Lewis did not demonstrate a clear recollection of what was said, although she appeared to recall being made aware that she might receive a first and final warning.[34] Ms Lewis also gave evidence that she was aware that she was required to provide either evidence of vaccination or an exemption by 3 March 2022. The Respondent’s position is that Ms Lewis was sent an email after this meeting attaching a letter dated 3 February 2022 which notified her that she had been issued with a first and final warning.[35] Ms Lewis gave evidence that she did not read this letter until 3 March 2022 and as such, she was unaware she had actually been issued with a first and final warning until then.
Ms Lewis confirmed that she received the ‘Show Cause’ letter dated 3 March 2022[36] following a meeting held on the same date. This letter advised her that the Respondent was considering ending the employment relationship by way of termination as a result of her failure to follow its two previous requests that she comply with the reasonable and lawful request to produce evidence of her being fully vaccinated or the holder of an exemption. The following was then outlined in the letter:
“However, before a final decision is made, we wish to provide you with an opportunity to present any further information that may influence our decision.”
Ms Lewis was given the opportunity to provide further information by 5pm on 7 March 2022 and took it up. Ms Lewis sent the Respondent emails at 5.10pm on 3 March 2022 and at 4.55pm on 7 March 2022. Upon receipt of the second email, Mr Eddington reviewed its contents and at 5.04pm, forwarded it to Vicki Blackman (Manager – People and Culture) and James Collins (Director – City Planning and Infrastructure) with the recommendation that the Respondent terminate Ms Lewis’ employment. Mr Eddington requested their endorsement as the Respondent’s decision makers. By 8.37am on 8 March 2022, both had communicated their endorsement.
Having regard to the circumstances outlined above, I am satisfied Ms Lewis was on notice of the reasons for her dismissal, the possibility of dismissal and provided with opportunities to respond prior to the decision to terminate her employment being made.
A further meeting to advise Ms Lewis of the outcome was foreshadowed by the Respondent. Such a meeting was to have taken place after 8 March 2022. That it did not ultimately take place is not a factor that I consider weighs against the Respondent given its intended purpose was for the Respondent to convey the decision it had made to dismiss Ms Lewis.
Unreasonable refusal by the employer to allow a support person – s.387(d)
For the meeting held on 3 February 2022 and 3 March 2022, Ms Lewis did not make a request to have a support person present.[37] There were a number of attempts to schedule the meeting for the purpose of the Respondent advising Ms Lewis of the outcome in relation to the ‘Show Cause’ letter. The first attempt was made on 7 March 2022 at 5.34pm when Mr Eddington sent an invitation to Ms Lewis to meet at 12.30pm on 9 March 2022. This was postponed after Ms Lewis filed an application pursuant to s.372 of the Act at 12.17am on 9 March 2022 and an email from the Commission had been sent to the Respondent at 9.54am that day with advice that the application had been filed. The meeting was rescheduled for 10 March 2022.[38] Ms Lewis declined this invitation because her support person could not attend on that day[39] and the consequent attempt at rescheduling for 11 March 2022 was not successful because this was not a work day for Ms Lewis. When a meeting on 15 March 2022 was proposed, Ms Lewis advised that her support person was unavailable due to having to attend a funeral but indicated they would be available on both Wednesday 16 March 2022 and Thursday 17 March 2022.
The Respondent’s initial position was that the meeting on 15 March 2022 would need to proceed but it subsequently rescheduled the meeting to 16 March 2022 after Ms Lewis gave notification that she was medically unfit for work on 15 March 2022. Ms Lewis did not attend the proposed 16 March 2022 meeting because she remained certified as medically unfit for work. The Respondent proceeded to deliver the Termination Letter to Ms Lewis on 16 March 2022. Mr Eddington gave evidence that when Ms Lewis said she could not attend the meeting, the Respondent initially decided that it would reschedule but it then decided to convey its decision in writing. He explained that at that stage, the decision had already been made and the purpose of the meeting was to inform Ms Lewis of the outcome.
I am satisfied there was no refusal per se to allow Ms Lewis to have a support person present to assist at discussions relating to the dismissal. At its highest, the Respondent eventually ceased being prepared to continue to accommodate the availability issues of the particular preferred support person Ms Lewis had in mind and this was only after there had been a number of attempts to schedule a meeting. Further, as I have observed above, the purpose of the final meeting, from the Respondent’s perspective, was to convey the decision that had been made and I note from Ms Lewis’ email to the Respondent on 7 March 2022 that she understood her dismissal was a possibility.[40] Therefore, in the circumstances of this case, I am satisfied that there was not any unreasonable refusal by the Respondent to allow Ms Lewis to have a support person present to assist at any discussions relating to the dismissal.
Warnings regarding unsatisfactory performance – s.387(e)
This consideration is not a factor in this application. The dismissal was not related to unsatisfactory performance of Ms Lewis.
Impact of the size of the employer on procedures followed - s.387(f) and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
I do not consider the size of the Respondent to have been a relevant factor in this case (s.387(f)) and as the Respondent had a human resources team, s.387(g) of the Act is not a relevant factor either.
Other relevant matters – s.387(h)
Section 387(h) of the Act requires the Commission to take into account any other matters it considers relevant.
Ms Lewis submitted her dismissal was unfair because she was terminated while she was sick. In this regard, she cited both s.352 and s.773 of the Act. Prior to being notified of her dismissal, Ms Lewis had also made application pursuant to s.372 of the Act. In relation to these matters, I am satisfied the Respondent’s decision to dismiss Ms Lewis was clearly based upon the requirements in the Order Version 5. In any event, it is apparent from the evidence that the Respondent had made the decision to dismiss Ms Lewis before she was absent due to certification that she was “unfit for work” and before the Respondent had received a medical certificate. Similarly, even if it had been threatened by Ms Lewis on 7 March 2022, the decision to dismiss Ms Lewis was also made before the Respondent received notification that Ms Lewis had actually made the s.372 application. Finally, even if Ms Lewis held a medical certificate stating she was “unfit for work due to a medical illness” at the time of her dismissal, I do not consider this factor prevented her from being dismissed or that it makes her dismissal unfair. This is because even though she was absent from work, I am not persuaded Ms Lewis was incapable of engaging with the Respondent and I have noted that on 7 March 2022, Ms Lewis sent a response to the ‘Show Cause’ letter while certified “unfit for work”.
While I am satisfied Ms Lewis’ concerns regarding vaccination were genuinely held, the Respondent was required to comply with the law and the requirements under the Directions and Specified Workers Order. While at one point Ms Lewis appeared to challenge the legality of the Directions and Orders, she did not maintain this position. To the extent that Ms Lewis’ hesitancy was based on her views about the efficacy of certain COVID-19 vaccinations and her desire “to give informed consent”, I observe that the COVID-19 vaccines applicable at the material times had been approved for use by Australia’s national regulator, the Therapeutic Goods Administration. I have also noted Ms Lewis’ statements that she had experienced an adverse reaction to another vaccine a number of years ago and had communicated to the Respondent that she was addressing her private health needs but I consider that once it became apparent that the Respondent was subject to the Directions, these are matters about which Ms Lewis could have sought early medical advice and in particular, advice as to whether they were a basis for her to be an “excepted person”.
The evidence does not persuade me that Ms Lewis was exploring the possibility of attaining the status of an “excepted person” prior to her dismissal and at no stage did she convey this to the Respondent. While Ms Lewis was waiting for vaccines other than Pfizer and AstraZeneca to become available and in particular, the Novavax vaccine to be approved, she made no commitment that she would proceed to get vaccinated if this occurred. Ms Lewis’ position was only that if Novavax became available, she intended to obtain medical information about it. Ms Lewis’ medical appointment for 23 March 2022 was for the purpose of discussing her situation and the Novavax vaccine so she could make what she would have considered to be an informed choice. This medical appointment had not been made for the purpose of exploring the prospect of Ms Lewis attaining the status of an “excepted person”.
On February 2022, the Australian Technical Advisory Group on Immunisation (ATAGI) released expanded guidance on acute major medical conditions that warranted a temporary medical exemption relevant for COVID-19 vaccines. I observe this guidance provided that a valid reason for a temporary exemption/medical deferral for all COVID-19 vaccines for a period of up to 4 months included SARS-Cov-2 infection. I have noted Ms Lewis’ production of a COVID-19 digital certificate outlining a medical contraindication to COVID-19 vaccines, which appeared to be valid from 8 April 2022 until 25 July 2022 and afforded her the “vaccination status” of an “excepted person” for that period. Ms Lewis advised that she had attained her ‘medical exemption’ on the basis that she had come into contact with COVID-19 and had COVID-19.[41] I conclude from these matters that Ms Lewis’ status as an “excepted person” was only temporary and linked only to her exposure to COVID-19 in late March 2022. At no point has Ms Lewis advised that she has received the Novavax vaccine since her dismissal.
Despite her job with the Respondent requiring her to be able to work outside of her ordinary place of residence and the process of returning to face-to-face activities that was occurring within the operations of the Respondent at the time she was dismissed, Ms Lewis contends she could have continued to work from home. However, as outlined above, I consider her proposal to work full time at home would have required the ongoing adoption of what were essentially a temporary set of arrangements, predicated unreasonably and unrealistically on a re-organisation of duties, until either the restrictions imposed by the Orders were lifted (which has not occurred since her dismissal) or she became vaccinated (which does not appear to have occurred since her dismissal). As I have outlined, Ms Lewis’ “vaccination status” as an “excepted person” seems to have been of a temporary nature only.
I also observe that Ms Lewis was afforded a not insignificant period of nearly 5 months to weigh up her options in the face of the announcement of the Directions in October 2021 and the resulting correspondence from the Respondent outlined in paragraphs [35]-[38] above. I make some allowance for the initial period after the Directions first commenced operating in October 2021 because the Respondent’s staff were predominantly working from home at that time and were going to be until at least 31 January 2022. However, this did not prevent Ms Lewis from taking steps to obtain medical advice in relation to her concerns. Further, from 23 December 2021, Ms Lewis was on notice that the Respondent expected its direction to be complied with by the end of January 2022. Even if Ms Lewis was waiting for Novavax to be approved, there was no evidence of any significant steps taken by Ms Lewis to respond to the direction of the Respondent until February/early March 2022. Ms Lewis seemed to be in denial about the requirements under the Directions and Orders and not appreciate the significance of the direction the Respondent had given her, despite being aware from 3 February 2022 that she might be subject to disciplinary action. It was only in late February/early March 2022 that Ms Lewis made the medical appointment for 23 March 2022. For the Respondent to have agreed to Ms Lewis’ proposal that she take rapid antigen tests in the event she was required to leave her residence for work was not realistic because it would have resulted in the Respondent breaching Order Version 5.
I have considered the action of the Respondent in proceeding to make the decision to dismiss Ms Lewis on 8 March 2022, despite being on notice of the 23 March 2022 appointment. Ms Lewis complains that the Respondent should have delayed and afforded her more time. She says she requested leave without pay in the meeting on 3 March 2022, but her request was refused. Mr Eddington appeared to concede Ms Lewis raised leave without pay (albeit he said she did not “formally” apply for it) but explained that the Respondent’s decision to proceed to termination was based on its belief that it had already provided Ms Lewis with a reasonable period of time to seek information and yet Ms Lewis still remained non-committal to returning to on-site work. The Respondent considered Ms Lewis’ seeking of further time to obtain information until 23 March 2022 without committing to getting vaccinated, meant that even more time would have had to pass before any compliance with Order Version 5 could have been possible. The Respondent proceeded to termination having regard to the time that had already been afforded to Ms Lewis and because her position, in its view, remained unsatisfactorily open-ended.
I am satisfied that by the date of dismissal on 16 March 2022, the Respondent had provided Ms Lewis with a more than reasonable period of time to consider her options in relation to the Directions, Orders and its direction to her. I am also satisfied that the Respondent’s opinion at that time that Ms Lewis’ position remained open-ended was, and continues to be, well-founded. Firstly, Ms Lewis gave no indication prior to her dismissal that she was going to seek to obtain the status of an “excepted person” or that she was going to commit to receiving Novavax. This erodes her proposition that she should have been granted leave without pay until she obtained her medical exemption. Secondly, despite being asked about her “vaccination status” at the determinative conference, Ms Lewis did not indicate that she had been vaccinated with Novavax since her dismissal. Finally, Ms Lewis only appeared to obtain what was no more than a temporary exemption from vaccination after her dismissal.
There was no dispute that Ms Lewis was a valued employee with a record of good service and an absence of prior disciplinary issues and I acknowledge that Ms Lewis was invested in her work for the Respondent. Equally, I have noted that the Respondent granted Ms Lewis access to its EAP program throughout and continued to pay her during the ‘Show Cause’ period leading up to her dismissal, without requiring her to utilise leave. I have acknowledged Ms Lewis’ concerns about, and objections to, becoming vaccinated. I am satisfied Ms Lewis’ concerns and objections were sincerely held but it is not for the Commission to engage in commentary about them, other than to observe they motivated her choice to decline vaccination and her failure to provide “vaccination information”, as required by Order Version 5, in the period leading up to her dismissal. Ms Lewis was employed in a position that required her to work outside of her ordinary place of residence and her proposal to be relieved of this requirement through the reorganisation of duties was not reasonable in circumstances where she remained “unvaccinated” and non-committal on the question of getting vaccinated, and had given no indication that she was going to seek to obtain the status of an “excepted person”. The Respondent had to comply with the law and the requirements under the Order Version 5. It was required to collect “vaccination information” in relation to Ms Lewis if she was to perform the job it had employed her to do and the Respondent was simply unable to permit Ms Lewis to attend work outside of her ordinary place of residence if she was “unvaccinated”. Ultimately Ms Lewis was unable to work for the Respondent in the job she had been employed to perform as a consequence of the decision she made.
Having considered and weighed the matters arising in relation to s.387(h) of the Act, I do not find that they are sufficient to render Ms Lewis’ dismissal harsh, unjust or unreasonable.
Conclusion
I have made findings in relation to each matter specified in s.387 of the Act 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.[42] I am satisfied the dismissal of Ms Lewis was not harsh, unjust or unreasonable. Accordingly, I find that Ms Lewis’ dismissal was not unfair. As I have found that Ms Lewis’ dismissal was not unfair, her application for unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
Ms J Lewis on her own behalf.
Ms L Green for Casey City Council.
Hearing details:
2022.
Melbourne (via Microsoft Teams).
June 15.
Printed by authority of the Commonwealth Government Printer
<PR744304>
[1] Djula v Centurion Transport Co. Pty Ltd [2015] FWCFB 2371 at [28].
[2] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[3] Ibid.
[4] Public Health and Wellbeing Act 2008 (Vic), s.200(1)(d).
[5] COVID-19 Mandatory Vaccination (Workers) Directions (No. 2) at Clause 9(24)(b)(ii).
[6] COVID-19 Mandatory Vaccination (Workers) Directions (No. 2) at Clause 9(24)(a)(ii).
[7] Part 8A of the Public Health and Wellbeing Act 2008 (Vic).
[8] Public Health and Wellbeing Act 2008 (Vic), s.165AB.
[9] Public Health and Wellbeing Act 2008 (Vic) s.165AI.
[10] Victorian Government Gazette No. S 705, Friday 10 December 2021.
[11] Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 1) at Clause 28(2)(b) of Schedule 2.
[12] Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 1) at Clause 28(1)(b) of Schedule 2.
[13] Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 5) at Clause 29(2)(b) of Schedule 2.
[14] Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 5) at Clause 29(1)(b) of Schedule 2.
[15] Exhibit R1, Witness Statement of Mr Eddington, Attachment AE18, page 387 Digital Court Book.
[16] Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 5) at Part 4, Clause 24.
[17] Produced to Chambers of Deputy President Clancy at 1.02pm on 15 June 2022.
[18] [2022] FWC 711.
[19] Ibid at [30].
[20] Ibid at [31].
[21] [2021] FWCFB 6059.
[22] Ibid at [96].
[23] Transcript PN409.
[24] Attachment LM1 to Exhibit R2, DCB at p.428.
[25] Ibid at DCB p.427.
[26] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[27] Previsic v Australian Quarantine Inspection Services (AIRC, Holmes C, 6 October 1998), Dec 907/98 M Print Q3730.
[28] Ibid.
[29] (2000) 98 IR 137, 151.
[30] Attachment AE2 to Exhibit R1, DCB at p.316.
[31] Attachment AE-3 to Exhibit R1, DCB at p.318.
[32] Attachment AE-5 to Exhibit R1, DCB at p.352.
[33] Paragraph 11 of Exhibit R1, DCB at p.303.
[34] Transcript PN 544.
[35] Attachment AE-8 to Exhibit R1, DCB at p.362.
[36] Attachment AE-10 to Exhibit R1, DCB at p.367.
[37] Exhibit A1, DCB at p.40.
[38] Exhibit R3.
[39] Exhibit R4.
[40] Attachment AE-12 to Exhibit R1, DCB at p.373.
[41] Transcript PN 748-755.
[42] 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
<PR744304>
0
12
0