Kelly Ann Wilson v Woolworths Group Limited
[2022] FWC 2089
•5 OCTOBER 2022
| [2022] FWC 2089 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kelly Ann Wilson
v
Woolworths Group Limited
(U2022/4471)
| COMMISSIONER SIMPSON | BRISBANE, 5 OCTOBER 2022 |
Application for an unfair dismissal remedy
Kelly Ann Wilson (Ms Wilson/the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant alleges she was unfairly dismissed by Woolworths Group Limited (Woolworths/the Respondent).
The Applicant commenced employment with the Respondent on 23 August 2008 and was terminated from her position as Bakery Manager at Woolworths’ Forest Lake store on 17 April 2022 after failing to comply with the Respondent’s direction to be vaccinated by 31 March 2022.
However, the Applicant contends that the unlawfulness of the Respondent’s direction and conduct gives rise to her unfair dismissal claim.
As the matter could not be resolved by conciliation, directions were issued for the filing of material and a hearing was listed for 23 and 24 August 2022. The Applicant was represented by her husband Mr Troy Wilson, who is not a lawyer or paid agent. The Respondent sought to be represented.
The Applicant was asked to submit material in reply to the Respondent’s submissions seeking permission to be represented by 20 June 2022. The Applicant didn’t file any material in reply to the Respondent’s material by the required date.
Pursuant to s.596 of the Act, I was satisfied that the presence of the Respondent’s representative would enable the matter to be dealt with more efficiently. Accordingly, I allowed the Respondent to be represented. At the hearing, the Respondent was represented by Mr Pawel Zielinski of Counsel.
Section 396 of the Act requires that I am satisfied of four matters before considering the merits of the Applicant’s application. Neither party disputed and I am satisfied, that the Applicant made her application within the 21-day period required by s.394(2) of the Act, that she was a person protected from unfair dismissal (as she earned less than the high-income threshold), that her dismissal was not a case of genuine redundancy and that the Respondent is not a small business to whom the Small Business Dismissal Code applies.
CHRONOLOGY OF EVENTS LEADING UP TO DISMISSAL
Based on largely uncontested evidence concerning the chronology of events I am satisfied the chronology was consistent with a chronology of events document provided with the Respondent’s material. I will not set out that chronology in full, but a summary of those events includes what is set out below.
From on or about 2 March 2021, the Respondent engaged with workers, health and safety representatives, unions, and stakeholders in relation to COVID-19 vaccinations and whether employees should be required to be vaccinated. Communications were sent from Mr Brad Banducci the Chief Executive Officer of the Respondent, and Ms Caryn Katsikogianis the Chief People Officer.
On 10 June 2021 Woolworths sent communications to all employees titled ‘Strongly Encouraging you to get the COVID 19 Vaccine”.
On 9 July 2021 Woolworths sent communication to all employees from Mr Banducci titled ‘Team Vaccination Update’. The message set out the Respondent’s stance on vaccinations and invited feedback from employees.
On 4 August Woolworths sent communications to employees including a video message from Dr Rob McCartney the Chief Medical Officer discussing the science behind vaccination. On the same date a Voice of the Team survey was released to approximately one third of the Respondent’s employees across all businesses and approximately 11,000 responses were received. A similar exercise occurred on 1 September 2021 and 6 October 2021 which both received significant responses.
On 8 October the Respondent sent communication to all employees excepting Victoria, announcing a further group-wide survey about Covid-19 vaccination to hear employees views.
On 21 October 2021, the Respondent’s CEO sent a communication to employees stating that the company had decided, based on medical advice that the company had received, that all employees employed in Australia were to be fully vaccinated against COVID-19 to work at Woolworths. On 21 October the Respondent contacted relevant unions about the message sent to employees. The Respondent engaged in consultation with the unions throughout October and November 2021.
Between 21 October 2021 and 15 November 2021, the Respondent:
(a)considered and responded to feedback and concerns from employees, including in hundreds of emails received from staff about the proposed policy and the proposed exemption process;
(b)conducted a company-wide ‘town hall' meeting which involved the Woolworths CEO and other senior leaders discussing the proposed policy and answering questions from employees (that were able to be submitted anonymously);
(c)provided a risk assessment to health and safety representatives and key unions for discussion and feedback;
(d)conducted listening sessions with health and safety representatives and employee representatives in Woolworths supermarkets, Primary Connect (which is the business within Woolworths that operates its distribution centres), and BIG W; and
(e)consulted unions about the proposed policy and supporting documents.
On 15 November 2021, the Respondent introduced a COVID-19 Vaccination Policy (the Vaccination Policy).
The Vaccination Policy required team members in Queensland to receive two doses of the COVID-19 vaccine by 31 March 2022 and to provide evidence of their vaccination by that date. The Vaccination Policy also stated that any breach of the mandate ‘may result in disciplinary action being taken against the Team Members, including termination of employment.’
On 25 November 2021, the Respondent sent text messages to employees reminding them to upload proof of their vaccination status.
On 4 January 2022 the Respondent sent communications to staff stating that it was undertaking further consultation in the context of the Omicron variant. In January 2022 the Respondent reviewed and updated its Risk Assessment.
In January 2022 the Respondent held further consultation with staff and Dr McCartney provided advice about the vaccination policy. Feedback from staff was considered.
On 27 January 2022 the January Risk Assessment and an information sheet titled “Medical Information Sheet on Covid 19 Vaccinations” was uploaded to the People Portal. On the same date the Respondent released a group wide survey in relation to vaccinations including advice that the Respondent had deferred the commencement of the Policy from 31 January until 27 February to consider its vaccination requirement and policy in light of the Omicron variant and to continue to consult with team members. The survey invited employees to provide any additional feedback and included a link to medical information and the WHS assessment.
On 28 January 2022 the Respondent sent a communication to all employees encouraging staff to complete a further confidential survey.
In February a further updated Risk Assessment was prepared and the January survey concluded with 5,120 responses. On 9 February a decision was made to proceed with a vaccination policy.
On 14 February 2022 all employees were sent a communication inviting them to attend a livestream about the policy.
On 19 February 2022, the Respondent conducted a live stream broadcast to employees in which it was announced that the company had reaffirmed its decision to proceed with its implementation of the Vaccination Policy, including the requirement that employees vaccinate against COVID-19 to work at Woolworths.
On 7 March 2022, the Respondent sent a letter to the Applicant, reminding the Applicant of her obligations under the Vaccination Policy. The letter also provided information about the exemption process and the support options available, including an option to make an appointment with Woolworth’s Chief Medical Officer, Dr Rob McCartney, and his medical team to discuss individual vaccination concerns.
On 21 March 2022, the Respondent sent the Applicant a further reminder letter which advised that, in the event of non-compliance with the Vaccination Policy, the Respondent would likely initiate a show cause process which could lead to termination of employment.
On 24 March 2022, the Forest Lakes Store Manager, Mr Scott Gilmour and the Assistant Store Manager, Mr Gary Hartfiel, had a conversation with the Applicant. When questioned about her intentions to comply with the Vaccination Policy, the Applicant stated she did not ‘wish to disclose any information’ and she was ‘not sharing [her] intent.’
On 31 March 2022, the Respondent wrote to the Applicant and:
(a)advised her that, given she had not confirmed that she had been vaccinated, or otherwise obtained an exemption, it was the Respondent’s initial view that she did not meet the requirements of the Vaccination Policy and the Respondent intended to terminate her employment;
(b)provided her until 5 April 2022 to provide a written response;
(c)advised that, once the Respondent had an opportunity to review her employment, the company would contact her to arrange a meeting to discuss the outcome; and
(d)advised her that she was welcome to have a support person during this meeting.
On 4 April 2022, the Applicant provided a response to the letter dated 31 March 2022, detailing concerns regarding the safety and efficacy of the vaccines, as well as concerns regarding the lawfulness of the Vaccination Policy.
The Applicant’s response was reviewed by a Woolworths Review Panel, which assisted the decision-maker, Mr Danny Baldwin, State General Manager, QLD/NSW Northern Rivers Supermarkets, to decide whether to terminate the Applicant’s employment.
A meeting via Google Hangouts/Meet was scheduled with the Applicant for 12 April 2022, which she attended with her husband as her support person.
Following the scheduled meeting, the Applicant was sent written confirmation of the termination of her employment, dated 17 April 2022.
THE EVIDENCE
Ms Wilson provided a witness statement[1] filed on 30 June 2022. I provided Ms Wilson an opportunity to provide any further oral evidence in response to the statements filed by the Respondent.
Ms Wilson advised during her oral evidence that she did not wish to give evidence to contest the contents of the statements of Mr Danny Baldwin, Ms Khang Phan or Mr Brett McLean. Mr Baldwin’s statement was admitted into evidence. [2] Mr Baldwin is the State General Manager for Queensland and New South Wales Northern Rivers Supermarkets.
Mr McLean’s statement[3] was admitted as evidence. Mr McLean is a Chapter Lead for Occupational Health and Safety. Mr McLean was also not required for cross examination.
Ms Phan’s statement[4] was admitted as evidence. Ms Phan is the Group Workplace Health and Safety Business Support Manager. Ms Phan corrected paragraph 10 of her statement to indicate she was based in Victoria not New South Wales. Ms Phan was asked a number of questions about medical advice and a medical report, as well as the risk assessments prepared. Ms Phan was also asked about the Respondent’s decision to drop the requirement to wear masks. Ms Phan said she was unaware of the decision making regarding the removal of compulsory mask wearing and was not aware of a risk assessment about that.
Ms Samantha Johnson’s statement was admitted into evidence.[5] In response to paragraph 83 of the statement of Ms Johnson, Ms Wilson said she did not believe she was properly consulted. Ms Wilson said she had one survey that she recalled completing, and another time there was a question-and-answer session on Work Jam with the Chief Executive Officer and Dr Rob McCartney and there was some confusion with the time of the session as it was based on Sydney time and she could not find it afterwards.
Ms Johnson was asked about the transcript of the 19 February Vaccination Roadmap Teams Session and statements made by Dr Rob McCartney including the advice given by Dr McCartney. It was put that Dr McCartney said words to the effect that ‘you are more likely to die from the Omicron version of Covid-19 if you are vaccinated’.
Ms Johnson gave evidence that it was her recollection that Dr McCartney said words to the effect that ‘you would be less likely to die if vaccinated’. What is written in the transcript is entirely inconsistent with the other advice of Dr McCartney as recorded in the transcript. I am inclined to accept it is reflective of a transcript error, and in any event is inconsistent with the other advice of Dr McCartney so even if the comment were made it is unlikely to have mislead employees about the tenor of Dr McCartney’s advice regarding vaccination against Covid-19.
In relation to the expert report of Dr Paul Griffin, Ms Wilson said she did not wish to give any evidence about the report. Ms Wilson said her issue with Dr Griffin was in relation to statements he had made to the media. Dr Griffin’s Report was admitted into evidence.[6] The Report included at the beginning a statement from Dr Griffin that he had been instructed to prepare a report for Minter Ellison in relation to this unfair dismissal case, and his Report provides his expert opinion on 5 questions posed by Minter Ellison in a letter of instructions to him dated 18 July 2022.
The Report described Dr Griffin’s relevant qualifications and experience summary as follows:
“Broad education, training and experience in infectious diseases and vaccine development without any affiliation that represents a conflict of interest. Associate Professor in Medicine and Director of Infectious Diseases at the University of Queensland and Mater Hospitals, South Brisbane, Australia. Fellowships in Infectious Diseases from the Royal Australasian College of Physicians, in Clinical Microbiology from the Royal College of Pathologists of Australasia and from the Australasian College of Tropical Medicine.
Experienced clinical trial investigator having fulfilled the role of Principal Investigator on over 125 clinical trials and investigator on over 200, particularly in Infectious Diseases including novel vaccines and now 7 COVID-19 vaccines. Board member and scientific advisory board member of the immunisation coalition, Interest in vaccine education and advocacy and has become a trusted media authority and spokesperson across the nation during the COVID-19 pandemic, particularly with respect to vaccination.
Relevant qualifications in further detail
· Completed B.Sc. with Honours at the University of Adelaide from 1995 to 1998 majoring in Microbiology and Immunology
· MBBS University of Queensland 1999 to 2002
· Obtained dual fellowship in Infectious Diseases with the Royal Australasian College of Physicians and Clinical Microbiology from the Royal College of Pathologists of Australasia
· Additional fellowships
oFACTM (Fellowship Australasian College of Tropical Medicine)
oAFACHSM (Associate Fellowship Australasian College of Health Service Management)
· Appointed as the Director of Infectious Diseases at Mater Health services in 2013.
oClinical role diagnosing and treating infections
oCOVID-19 response
• Directly treated hundreds of COVID-19 positive patients
• Responsible for management advice for patients at all Mater campuses as well as Wide Bay Hospital and Health service
oResponsible for Infection Control, Staff Health and Antimicrobial Stewardship
• Includes vaccination policy
oPrincipal Investigator in Infectious Diseases Clinical trial unit
• Oversee a large number of infectious diseases related clinical trials, predominantly later phase vaccine studies including multiple COVID-19 vaccine clinical trials
· Employed by Q-Pharm (Subsequently Nucleus Network) since 2009. Initially as a Medical Officer followed by Medical Director and Principal Investigator from 2012.
oPrincipal Investigator on over 125 clinical trials, mostly in vaccines
• 7 COVID-19 vaccines in total
• Many previous vaccine clinical trials with manufacturers of approved COVID-19 vaccines including approximately 6 previous clinical trials with Novavax (H7N9 Influenza, Influenza and RSV combined, Seasonal Influenza, Ebola, RSV) and clinical trials with Moderna vaccine candidate
oInvestigator on over 200 clinical trials
· Director and Scientific Advisory Member of the Immunisation Coalition
oAn independent not for profit organisation, incorporated in 2006 as a company limited by guarantee (originally as the Influenza Specialist Group). Leading voice in whole-of-life immunisation in Australia, protecting all Australians against communicable diseases. Collaborate with like-minded organisations such as Primary Health Networks (PHNs), Public Health Units, Government health departments and other groups that fight vaccine hesitancy. Champion for immunisation education, providing timely, accurate and scientifically informed information about vaccines and the diseases they prevent
· University of Queensland
oAssociate Professor of medicine
· Medical Advisory Board Roles include
oAstraZeneca COVID-19 vaccine and Evusheld antibody therapy
oPfizer Paxlovid oral COVID-19 therapy
oMSD Molnupiravir oral COVID-19 therapy
oGSK Sotrovimab COVID-19 monoclonal antibody therapy
oSeqirus Influenza vaccine
· UQ vaccine development
oInvolved in the UQ COVID-19 vaccine development program from early 2018, initially as a Rapid Response Pipeline for Stabilized Subunit Vaccines and then subsequently COVID-19 vaccine, including fulfilling the role as Principal Investigator for the clinical trial
· Chair of the Advanced Training Committee of Infectious Diseases with the Royal Australasian College of Physicians
oOverseeing the training of specialist physicians in Infectious Diseases in Australia
· Additional training includes Public Health for Pandemics course, University of Queensland, 2020
· Over 50 peer reviewed publications with Citations of 2794, h-index of 23 and i10- index of 31, highly relevant publications include
oCheryl Keech, M.D., Ph.D., Gary Albert, M.S., Iksung Cho, M.S., Andreana Robertson, M.S., Patricia Reed, B.S..., Paul Griffin, M. D., et al.. Phase 1–2 Trial of a SARS-CoV-2 Recombinant Spike Protein Nanoparticle Vaccine. N Engl J Med 2020; 383:2320-2332. DOI: 10.1056/NEJMoa2026920. Citations 751
oKeith J. Chappell, Francesca L. Mordant, Zheyi Li, Danushka K. Wijesundara, Julia Lackenby, Stacey Chung, Naphak Modhiran, Selorm Avumegah, Christina Henderson, Kym Hogar, Paul Griffin, et al. First report of a phase 1 randomised trial of molecular clamp-stabilised spike protein-based vaccine for SARS-CoV-2. Lancet.
oAntonios O. Aliprantis, Christine A. Shaw, Paul Griffin, et al. A phase 1, randomized, placebo-controlled study to evaluate the safety and immunogenicity of an mRNA-based RSV prefusion F protein vaccine in healthy younger and older adults. Human Vaccines & Immunotherapeutics, DOI: 10.1080/21645515.2020.1829899
oJanin Chandra, Wai-Ping Woo, Julie L. Dutton, Yan Xu, Bo Li, Julian Druce, Neil Finlayson, Paul Griffin, David Koelle and Ian H. Frazer. Immune responses to a HSV-2 polynucleotide immunotherapy COR-1 in HSV-2 positive subjects: A randomized double blinded phase I/IIa trial: PLoS One. 2019 Dec 17;14(12).
oJulie L. Dutton, Wai-Ping Woo, Janin Chandra, Yan Xu, Bo Li, Neil Finlayson, Paul Griffin and Ian H. Frazer. An escalating dose study to assess the safety, tolerability and immunogenicity of a Herpes Simplex Virus DNA vaccine, COR-1. Human Vaccines and Immunotherapeutics. 2016; 12: 3079-3088.
· Other relevant appointments
oStatewide Infection Clinical Network Steering Committee Member
oQueensland COVID-19 Therapeutics Working Group (CTWG) Member
oCOVID-19 Medicines and Pharmacy Planning Response Group (MPPRG) Member
oJuvenile Diabetes Research Foundation Statewide Leadership Group Member
· Relevant Awards Include
oInternational Business Awards, Gold “Stevie” Award Winner in the “Media Hero of the Year” award 2020.
oPaul Harris Fellow, Rotary International for exemplary work in community service 2020.
oMater Leadership Excellence award 2020 for demonstrating leadership excellence in the areas of safety, culture, innovation, leadership and care and wellbeing.
oAmerican Society of Tropical Medicine and Hygiene Elsevier Clinical Research Award 2014 (International)
oRoyal College of Pathologists of Australasia Best Research Paper Award 2012
· Other relevant activities
oInstitute Biosafety Committee Member
• Reviewing applications to OGTR for genetically modified investigational products prior to their use in clinical trials
oMedical Monitor for numerous clinical trials
• Medical expertise for trial oversight and safety concerns
oChair of Early Phase Clinical Trials Committee
• Responsible for overseeing approvals for early phase clinical trials
oAustralasian Society of Infectious Disease Hospital Infection Control Special Interest Group Committee Member”
Dr Griffin said the Omicron variant is more infectious and more readily transmissible. He said the changes in the spike protein do mean the vaccine protection is slightly reduced but it does not mean vaccine protection has been rendered ineffective, far from it.
Dr Griffin was asked if vaccines were effective in preventing infection and he said the simple answer is yes. He said it is less so as against previous variants however vaccination has not been rendered ineffective in that regard, and there is still impact in that metric. He said vaccination is also effective against transmission and while relatively less so than against previous variants it is still effective.
Dr Griffin was also asked about natural immunity compared to vaccination, and he said typically natural immunity is not as strong and not as long lasting when compared to vaccinations. Dr Griffin said vaccines are specifically designed to give better and longer lasting immunity without the risk of the disease and that is why we have vaccinations.
Dr Griffin was asked if there has ever been a safe and effective vaccination developed for a coronavirus prior to Covid-19. Dr Griffin said yes, and the first SARS virus in 2002/03 was a very different virus as it was much more severe with a mortality rate of around 10 percent. Dr Griffin said this virus was irradicated. Dr Griffin said MERS virus is another case where a lot of work was done to make vaccines and these vaccines were proven safe and effective, but it was unnecessary to get to final approval as the MERS virus was controlled. Dr Griffin said this generated 20 years of experience and a lot of work had been done to prepare for the next pandemic. Dr Griffin said there has been no evidence of enhanced risk from these earlier vaccines.
Dr Griffin said vaccination does not eliminate the risk of being infected, however vaccination significantly reduces the risk of being infected. Further, the risk of severe disease is also significantly reduced by vaccination.
Dr Griffin said there is no evidence of any enhanced immuno-pathology or enhanced disease from Covid-19 immunisation.
Dr Griffin gave evidence that clinical trial data in the case of the Covid-19 vaccinations in Australia was far larger than has been the case for other vaccines, and there was also extensive evidence of trials in other countries available to consider before approval in Australia.
Dr Griffin said small studies would support a conclusion that approximately 50% of the population has been infected so far. Dr Griffin said being vaccinated reduced the severity and duration of the disease.
Dr Griffin rejected the proposition that only those in high-risk groups are at risk of severe disease. Dr Griffin said even in the absence of risk factors there are cases of for example young children not surviving Covid-19.
Dr Griffin said that intensive care data shows that despite high levels of infection the impact of vaccination has resulted in less severe disease. Dr Griffin said it a mistake to describe Omicron as mild, and he said it would be like the original Wuhan strain in term of severity however the reason for lower levels of severity and death rates and fewer people in intensive care units is attributable to vaccination. Dr Griffin said the Delta variant was more severe however Omicron is not mild, and its impact has been reduced because of vaccination.
In relation to the evidence of Mr Gilmour, Ms Wilson gave evidence that at paragraph 17 of Mr Gilmour’s statement, he said he observed that Ms Wilson spent 4 to 5 hours a day filling stock meaning she was on the shop floor. Ms Wilson said she probably did not spend an hour a day filling stock and she had more junior staff to do that. Ms Wilson said she would fill stock before the store opened. Ms Wilson said she would also slice bread or pack rolls before the store opened.
Ms Wilson’s evidence appeared to be she was working in the bakery not on the shop floor. Ms Wilson said in relation to paragraph 18 of Mr Gilmour’s statement concerning work in aisle 1, she would bring things up into the bakery and then go to the aisle and fill the stock and come back, indicating she was on the shop floor for less time than Mr Gilmour claimed.
Ms Wilson said another member of staff would stock the bread. In response to paragraph 19, Ms Wilson disputed that she had more contact with customers than other members of staff. Ms Wilson accepted that she did engage with customers however said deli staff had more engagement with customers.
In response to paragraph 25 of Mr Gilmour’s statement, Ms Wilson said that census data demographics for Forest Lake showed that area had a younger demographic.
Ms Wilson said in response to paragraph 29 of Mr Gilmour’s statement, she did make an appointment to see the local chemist about vaccination. Ms Wilson said she remembers having a conversation with Mr Hartfiel about vaccination around this time but not Mr Gilmour.
In response to paragraphs 41 and 42 of Mr Gilmour’s statement, Ms Wilson said there was confusion about her returning to work on 30 or 31 March, and Ms Wilson said she had a letter saying she couldn’t enter the workplace after the 30 March, and she asked for clarification from Mr Gilmour, and Mr Gilmour came back to her and told her that she could work on 31 March.
Ms Wilson said that on 30 March when Mr Gilmour got clarification that she could work on 31 March she said she told him it was way too hard to come in that day and say goodbye to everyone again. Ms Wilson said she emailed Mr Gilmour saying that she could not come in on that day.
Ms Johnson was asked about a letter of 21 March where it was said Team Members who had not been vaccinated would not be permitted to attend the workplace from 31 March 2022. Ms Johnson said she did not recall whether the letter was intended to be inclusive or exclusive of 31 March for the purposes of not attending. Ms Johnson was asked whether in supermarkets employees were allocated time to complete surveys. Ms Johnson said to the best of her knowledge the answer was yes, however was not aware of the specific time was allocated for this task. Ms Johnson could not give specific evidence about this matter in relation to Primary Connect.
Mr Gilmour’s statement was admitted into evidence.[7] In oral evidence Mr Gilmour maintained Ms Wilson did spend 4 to 5 hours a day on the shop floor of the store.
Mr Gilmour said there had been approximately 12 confirmed cases of Covid-19 in the store.
Mr Gilmour said there was some initial confusion over whether staff were to be at work on 31 March if they were not vaccinated however, it was later clarified they could be at work on 31 March. Mr Gilmour said he had a conversation on 29 March with Ms Wilson about her right to have 31 March off, and Ms Wilson decided to take annual leave that day. Mr Gilmour said the discrepancy in Ms Wilson’s pay was later rectified.
I asked Ms Wilson what remedy she sought, and she said she continued to seek reinstatement. Ms Wilson was dismissed with effect on 17 April and was paid four weeks’ pay in lieu of notice. Ms Wilson said she has obtained other employment from 4 May 2022 which was inside the notice period. Ms Wilson said her new employment is with Drakes Supermarkets for 40 hours per week and Ms Wilson said her wage under the contract is $58,500 per annum and 10% superannuation.
Ms Wilson was referred to her contract of employment and she agreed that the contract was agreed electronically. Ms Wilson was referred to clause 10.2(c). Ms Wilson agreed a breach of the Code of Conduct could still give rise to a valid reason for dismissal even though it doesn’t have contractual force. It was put to Ms Wilson that if she breached the vaccination policy that might also be the case. Ms Wilson did not dispute she was obligated to follow lawful and reasonable directions.
Ms Wilson was referred to her show cause response and her statement that the requirement to be vaccinated was contrary to an industrial instrument. Ms Wilson was asked which industrial instrument she was referring to and she said there isn’t one.
Ms Wilson was referred to her statement that the requirement to be vaccinated was a breach of her employment contract. Ms Wilson was asked whether she accepted there was nothing in her contract of employment about the requirement to be vaccinated and she referred to the Respectful Workplace Policy. Ms Wilson also referred to the need for her to disclose her medical records.
It was put to Ms Wilson that she had strong views about privacy, and she said her medical information is personal. It was also put to Ms Wilson that she had a firm view that she shouldn’t be required to be vaccinated and she agreed and said she should be able to make up her own mind whether she chooses to be vaccinated and she confirmed she had chosen not to provide the information to the Respondent. Ms Wilson confirmed she is currently not vaccinated.
Ms Wilson said she believed there was a lack of consultation, and her medical records are private, and she shouldn’t have to share them. Ms Wilson was asked if there was anything the Respondent could have said or done during consultation that could have persuaded her to be vaccinated and she said no.
Ms Wilson was referred to a post she had placed on Work Jam on 21 October 2021, and she agreed she had made the post she was referred to. Ms Wilson accepted she had a firm view from 21 October about not wanting to be vaccinated.
Ms Wilson was asked why she chose not to be vaccinated and she said she did not believe that the vaccine stops you from getting Covid -19 and does not stop Covid-19 from being passed on and there is not enough information to make an informed decision.
Ms Wilson was asked whether she ever sought advice from a General Practitioner and she said she did not. Ms Wilson was asked whether she accepted Covid-19 vaccinees minimise the risk of transmission and minimises the risk of serious illness or injury from Covid-19 and she said she believed that contracting Covid-19 is better for immunity then vaccination. Ms Wilson said vaccination may benefit some and some and not others.
Ms Wilson did not accept that vaccination had a positive effect on minimising the risk of death from Covid-19. Although Ms Wilson then said this may be the case for some high-risk people. Ms Wilson said it affected different people differently.
Ms Wilson was asked whether she understood that the evidence of Dr Griffin was that vaccination has the effect of minimising the impact of symptomatic infection, that is if you are vaccinated you are less likely to transmit covid because you will have it for a shorter period or be less sick. Ms Wilson did not agree.
Ms Wilson said she had Work Jam on her phone. Ms Wilson agreed she used it to clock on and off for shifts, and this happens every day. Ms Wilson accepted Mr Gilmour used it to communicate with staff.
Ms Wilson agreed the People Portal was the Respondent’s intranet portal. Ms Wilson agreed she had access to it. Ms Wilson took part in team huddles, but not until after the policy was announced.
Ms Wilson agreed she was also familiar with SuccessFactors, where payroll records are stored. Ms Wilson said training modules were sent through SuccessFactors. Ms Wilson accepted that the Respondent was sending out information about the vaccination policy, but she claimed this was not until the policy was announced.
Ms Wilson was referred to a document at page 661 of the Court Book which was a message from the Chief Executive Officer of Woolworths. Ms Wilson said she did not remember seeing the document. Ms Wilson was referred to link where a survey could be completed. Ms Wilson was then referred to page 593 of the Court Book and paragraph 66 of the statement of Ms Johnson and a survey that Ms Wilson appeared to accept she had completed. Ms Wilson did not dispute the survey was sent out on 8 October however she said she couldn’t recall.
Ms Wilson was also referred to another document at page 691 of the Court Book which was a message from the CEO where he advised staff that the Vaccination Policy was to be rolled out. Ms Wilson accepted that the message referred to consultation taking place in the days that follow. The document also referred staff to Frequently Asked Questions, and an ability to click on a link to raise issues and a commitment to respond within three days. Ms Wilson said she did not provide any feedback through the link provided.
Ms Wilson was also asked about a Town Hall meeting on 28 October which Ms Wilson described as a live video session on Work Jam. Ms Wilson was asked if she was aware questions could be submitted in advance of the meeting. Ms Wilson said she was unaware of the meeting until it was on.
Ms Wilson was referred to a Road Map document which referred to consultation that had occurred and the decision to implement the policy and providing advice about how to ask for more information. Ms Wilson agreed she did not take up that opportunity.
Ms Wilson was referred to another document from the Respondent dated 28 January 2022 where advice was provided to staff that the policy had been suspended for a period, and that staff could provide further feedback via the People Portal on the vaccination policy. Ms Wilson did not dispute that this information was disseminated to staff.
Ms Wilson was referred to a separate associated survey that staff were invited to respond. Ms Wilson said she could not remember which survey she responded to.
Ms Wilson accepted she was a Team Leader of seven staff. It was put to Ms Wilson she worked shoulder to shoulder with the team. Ms Wilson said she believed the work area was about nine metres by nine metres. Ms Wilson said up to four staff would work together at any one time. Ms Wilson accepted she did perform some filling of shelves and because she was not a qualified baker, she didn’t make dough. Ms Wilson said bakers also filled shelves including frozen products, items made in store and items delivered to the store. Ms Wilson accepted bakery products and bread were in aisle one, and she did stack in aisle one. Ms Wilson accepted aisle one could get busy as it also had bread and eggs in it.
Ms Wilson accepted that it can be difficult to enforce the wearing of masks as people choose to do what they do. However, she maintained masks are a good prevention measure if worn correctly. Ms Wilson said she was not a medical expert to say whether masks were better than vaccines.
Ms Wilson was asked in re-examination whether she was given time during work to complete the surveys and Ms Wilson said no. Ms Wilson also asked whether the Work Jam session were in work time and Ms Wilson said no.
SUMMARY OF APPLICANT’S EVIDENCE AND SUBMISSIONS
The Applicant did not dispute that she was informed on multiple occasions that if she did not comply with the Vaccine Policy, her employment may be terminated. However, the Applicant questioned the lawfulness of the Vaccine Policy.
In her submissions, the Applicant raised issues about the validity and lawfulness of the Vaccination Policy on the grounds that it did not form part of an industrial instrument or employment contract and did not form part of the Respondent’s Health and Safety Policy.
Further, the Applicant submitted that the implementation of the Vaccine Policy contravened the Respondent’s Code of Conduct, Respectful Workplace Policy, and was inconsistent with the Respondent’s Team Member Privacy Policy.
The Applicant also stated that the Date for Double Vaccination referred to in the Vaccination Policy was ambiguous and, as such, “no breach of the policy is possible”.
The Applicant asserted that the Vaccination Policy used “coercive and intimidating threats” to “unlawfully and/or unreasonably unduly compel, pressure and/or intimidate” employees, in contravention of the Privacy Act 1988 (Cth) (the Privacy Act) and the Australian Privacy Principles guidelines.
The Applicant submitted that the Vaccine Policy was inconsistent with past and present Emergency Public Health Orders issued by Queensland Health. The Applicant stated that the Respondent’s stores had never been declared as “high risk” by Queensland Health and state-mandated vaccine requirements had not been issued to supermarket employees. Further, the Applicant noted that state-mandated vaccination requirements for businesses and employees determined “high risk” were being scaled back as of 14 April 2022.
The Applicant also made submissions about the efficacy of the vaccination in stopping the spread of COVID-19, and noted that other risk mitigation measures, including good hygiene and masks, had been effectively implemented at the Forest Lakes store.
Finally, the Applicant submitted that her record of performance while working with the Respondent, which extended over 13.5 years, contained no issues which warranted disciplinary action or termination.
The Applicant’s closing oral submissions argued that the Applicant exercised her right to privacy concerning a medical condition, as against the Respondent breaching those rights. It was also submitted the Respondent discontinued other mitigation measures but continued with the vaccination requirement.
The Applicant submitted that the Respondent made no requirement for visitors or contractors to be vaccinated, and if proof of vaccination is not requirement of those groups, it should not be required of the Applicant.
The Applicant submitted that whilst it may be true Dr Rob McCartney misspoke about vaccination during an information session, employees could only take that at face value.
The Applicant submitted that human evolution supports natural immunity over vaccination. The Applicant submits that the Respondent did not introduce its policy based on medical advice but has used medical advice to justify its policy. The Applicant submits that the policy is coercive. The Applicant submits the policy breaches the Respectful Workplaces Policy.
In reply submissions it was put that the Applicant would have probably had a Covid-19 vaccination had she not been pressured by the Respondent to be vaccinated.
For the reasons set out above, the Applicant submitted that she was unfairly dismissed.
SUMMARY OF RESPONDENT’S EVIDENCE AND SUBMISSIONS
The Respondent denied that the Applicant's dismissal was harsh, unjust or unreasonable, submitting that it had a valid reason to dismiss the Applicant: namely, her non-compliance with a lawful and reasonable direction issued by the Respondent.
The Respondent referred to several recent Fair Work Commission decisions upholding dismissals for non-compliance with a policy independently put in place by an employer requiring vaccination to attend work.[8]
With respect to the Applicant’s submissions regarding breach of privacy, the Respondent submitted that the collection of vaccination information was entirely consistent with the Privacy Act. The Applicant’s claim that she was compelled or coerced to disclose her vaccination status through the threat of disciplinary action for non-compliance was considered and rejected by Deputy President Asbury in CFMMEU & Ors v BHP Coal Pty Ltd T/A BHP Billiton Mitsubishi Alliance/BMA & Ors.[9]
With respect to the Applicant’s submissions regarding alleged ambiguity surrounding the “Date for Double Vaccination” in the Vaccination Policy, the Respondent submitted that the effective dates of the Vaccination Policy were clear. The Respondent noted that its Vaccination Policy clearly set out that the Date for Double Vaccination for team members in Queensland was 31 March 2022. Further, the Applicant received confirmation of the effective date of the Vaccination Policy on a further four occasions by way of the letters provided to her.
The Respondent noted that the Applicant was afforded procedural fairness in the process leading up to the termination of her employment. The Applicant was given extensive notice of the requirements arising from the Vaccination Policy in advance, as well as notice that the Respondent was considering terminating the Applicant's employment if she did not comply with the Vaccination Policy.
In closing oral submissions, the Respondent submitted that the Vaccination Policy applied to contractors and there was no evidence that it wasn’t applied to contractors. The Respondent submitted that the Applicant’s proposition that the medical advice was somehow reverse engineered to justify the policy was not supported by any evidence. The Respondent also submitted in response to the reference to the word coercion referred to regarding the medical advice, that there is a difference between coercion in the lay sense and the legal sense, and the Respondent has dealt with it in the legal sense, again referring to the Full Bench decision in Mr Arthur Coal in this regard.
The Respondent submitted the evidence of Ms Phan set out the risk assessments undertaken and the decision to stick with the policy with the outbreak of the Omicron variant. The Respondent submitted the evidence concerning the efficacy of the vaccines against Omicron was good, and this is demonstrated by the evidence, particularly the evidence of Dr Griffin concerning the efficacy of the vaccination against hospitalisation and death. Dr Griffin’s evidence was also that vaccination provided protection against systematic infection, and it also minimises onward transmission.
The Respondent relied on Ms Johnson’s evidence to support its position that it had consulted appropriately and remained open to adjusting the policy as required. The Respondent submitted that the evidence supports a conclusion that its mind remained open, and this is also supported by the evidence of Mr McLean. The Respondent referred to the evidence of multiple communications with staff throughout the process.
The Respondent submitted the evidence of Mr Gilmour supported the conclusion that the Applicant had extensive contact with the customers and subordinates, and the evidence of Mr Baldwin was that there was nothing about the Applicant’s case that suggested she should be treated differently to other staff who held a firm view against being vaccinated, that did not involve some other factor such as a medical contraindication.
The Respondent submitted there is nothing in the Applicant’s contract of employment or the enterprise agreement that would prevent the Respondent implementing the vaccination policy, or to support an argument that based on the contract of employment or the enterprise agreement, the direction to be vaccinated was not reasonable or lawful.
The Respondent submitted that under Discrimination law, a person’s vaccination status is not an impairment or a protected attribute, and while the Respondent’s Respectful Workplaces Policy goes further than discrimination law, the policy does not have contractual force, and the general comments that it makes must be viewed in the context of the Covid-19 Policy. The Respondent submitted the respective policies are not inconsistent and need to be read together.
The Respondent submitted that as the Full Bench decision in Mount Arthur Coal observed, consultation must be reasonable for the obligation to be met, however does not need to be perfect. The Respondent said it is odd that the Applicant made clear to the Respondent that she did not want to discuss her vaccination status further with the Respondent, however also complained about not being sufficiently consulted by the Respondent about it.
The Respondent further submits that it is clear the Applicant had strong views against vaccination, and the Applicant was quite open that there was nothing that the Respondent could have done to change her views about that. On that basis it needs to be asked what more could be done by the Respondent to consult with the Applicant.
On the issue of the Respondent not requiring customers to be vaccinated, the Respondent submitted that Woolworths is a nationally significant employer and customers do not have the same level of exposure to other customers in the store as staff do, and the Respondent has a level of control over what its staff do, but not the same level as control as to what its customers do as compared to the customers of some other employers such as airlines.
The Respondent also submitted that consultation in an industrial setting does not necessarily mean meeting with each staff member individually.
CONSIDERATION
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]
(a) whether there was a valid reason for the dismissal
With respect to the Applicant’s submissions regarding alleged ambiguity surrounding the “Date for Double Vaccination” in the Vaccination Policy, the effective dates of the Vaccination Policy were clear. The Vaccination Policy clearly set out that the Date for Double Vaccination for team members in Queensland was 31 March 2022. Further, the Applicant received confirmation of the effective date of the Vaccination Policy on a further four occasions by way of the letters provided to her.
The Applicant was afforded procedural fairness in the process leading up to the termination of her employment. The Applicant was given extensive notice of the requirements arising from the Vaccination Policy in advance, as well as notice that the Respondent was considering terminating the Applicant's employment if she did not comply with the Vaccination Policy.
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] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.
As to what is “reasonable” in the context of employer directions, the Full Bench provided in CFMMEU v Mt Arthur Coal that:
“The reasonableness of a direction is a question of fact having regard to all the circumstances, which may include whether or not the employer has complied with any relevant consultation obligations; the nature of the particular employment; the established usages affecting the employment; the common practices that exist; and the general provisions of any instrument governing the relationship.”[13]
In the current case, the Respondent engaged with workers, health and safety representatives, unions, and stakeholders prior to the implementation of the Vaccine Policy. The Respondent implemented its Vaccine Policy based on medical advice, including advice from its own Chief Medical Officer, Dr Rob McCartney. The Respondent is a major supermarket retailer, and the Applicant was regularly required to be out on the store floor performing tasks amongst customers. Further, the employment contract governing the relationship between the Respondent and the Applicant required the Applicant to comply with the Respondent’s policies.
For those reasons, I am satisfied that the Respondent’s direction that the Applicant be vaccinated or provide a valid medical exemption by 31 March 2022 was a lawful and reasonable direction with which the Applicant was required to comply.
It is uncontentious that as of 31 March 2022, the Applicant had failed to prove her vaccination status, as required by the Vaccine Policy. In her conversation with Mr Gilmour and Mr Hartfiel on 24 March 2022, the Applicant stated that she did she did not ‘wish to disclose any information’ and she was ‘not sharing [her] intent’. In other words, she indicated that she would not be complying with the Respondent’s direction.
In light of that intimation by the Applicant, I am satisfied that the Applicant failed to comply with the Respondent’s direction.
The Commission is required to consider whether there was a valid reason for the dismissal related to the person’s capacity or conduct pursuant to s. 387(a) of the Act. The Applicant had the choice and was within her rights to decline to become vaccinated or to provide evidence. However, the consequence of her choice was that she failed to comply with the Respondent’s reasonable direction.
It is not in dispute that the Respondent holds certain responsibilities under the Privacy Act. These requirements outline that any proposed information to be collected from employees consent to the collection pursuant to APP3.3(a). This notion of consent and whether the information is collected in a lawful and reasonable circumstances is dependent on the context in which it is invoked.
There is a common law right to personal and bodily autonomy and integrity which was recognised by the Full Bench in the Mt Arthur Coal[14] decision. In relation to the Privacy Act or bodily integrity, any consent given may be vitiated by a threat of discipline or termination.
In relation to the present case, requesting an employee to provide vaccination status does not put undue pressure on an employee to undergo vaccination. The decision resides with the Applicant and is open for her to decline. The Full Bench in Mt Arthur Coal[15] noted that the choice lay with the employee, and in this case as in others previously decided by this Commission, ultimately it was for the Applicant to decide between getting the vaccination and continuing to be employed. The rights of bodily integrity need to be balanced against all other rights, including the health and safety of other employees in the workplace.
The Applicant’s claim that she was compelled or coerced to disclose her vaccination status through the threat of disciplinary action for non-compliance was considered and rejected by Deputy President Asbury in CFMMEU & Ors v BHP Coal Pty Ltd T/A BHP Billiton Mitsubishi Alliance/BMA & Ors.[16]
On the basis of the evidence I am satisfied that the Respondent’s collection of vaccination information was consistent with the Privacy Act.
I find that the Respondent’s direction that requires for the collection of employee sensitive information such as their vaccination status does not impinge on the rights of employee’s bodily integrity.
The Applicant has also argued that her latest contract of employment dated 20 September 2020 does not require her to be vaccinated against COVID-19. These facts are not in dispute. However, the Applicant’s contract of employment at clause 10.2 has a requirement to comply with all company policies and procedures. The Respondent has clear directions under its Vaccination Policy which the Applicant was required to follow. The Applicant failed to comply with the policy which was in breach of her contractual provisions and may constitute a valid reason for dismissal.
Further the evidence does not disclose any breach of discrimination law, and I reject the submission that the direction was unlawful or unreasonable on the basis that it was inconsistent with the Respectful Workplaces Policy.
I am also satisfied based on the evidence that the Respondent has meet its consultation obligations in relation to the policy.
I have considered the various other submissions of the Applicant as detailed above in this decision and none of them amount to basis to conclude that the Respondent did not have a valid reason for dismissal.
Consequently, I am satisfied that the Respondent had a valid reason to terminate the Applicant’s employment on the basis of her non-compliance with a lawful and reasonable direction issued by the Respondent.
(b) and (c) whether the person was notified of that reason and had an opportunity to respond
Based on the evidence provided and submissions made, I am satisfied that the Applicant was made aware in the months leading up to the implementation of the mandate, that if she was not vaccinated by 31 March 2022, her employment may be terminated.
The Applicant had ample opportunity to respond to the introduction to the proposed vaccination mandate after becoming aware of it on or around 15 November 2021. Accordingly, I am satisfied that the Applicant was notified of the reason for her termination and had a sufficient opportunity to respond, notwithstanding the fact that did not do so until 4 April 2022.
(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
The Applicant has not claimed that she was unreasonably refused a support person.
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal
Given the reasons for the Applicant's termination, this factor is irrelevant.
(f) and (g) the degree to which the size of the employer’s enterprise and the absence of dedicated human resource management expertise would be likely to impact on the procedures followed
The Respondent is a large employer with a well-resourced human resources department. it undertook an extensive process to provide its staff with information about the policy which was to apply to its operations. It consulted with the Applicant in respect of the policy.
(h) any other matters that the FWC considers relevant
I have had regard to the fact that the Applicant had worked for the Respondent for an extensive period, and there were no allegations that she had been anything other than a dedicated employee. I acknowledge that it must have been very upsetting to be told that her employment would end if she chose not to have a COVID-19 vaccination.
I have also noted that the Applicant obtained other employment is a short period of time after her termination has not suffered a significant financial loss because of the termination of her employment.
CONCLUSION
Accordingly, I am satisfied based on the evidence provided that the Respondent had a valid reason for terminating the Applicant’s employment and that it did so in accordance with as fair a process as it could. I find that the Applicant was not unfairly dismissed in accordance with the Act.
I therefore order that the Applicant’s application be dismissed.
COMMISSIONER
Appearances:
Mrs Kelly Ann Wilson represented by Mr Troy Wilson for the Applicant.
Mr Pawel Zielinski, instructed by Minter Ellison, for the Respondent.
Hearing details:
2022
Brisbane (by Microsoft Teams Video)
23 and 24 August.
[1] Exhibit 1
[2] Exhibit 2
[3] Exhibit 4
[4] Exhibit 5
[5] Exhibit 3
[6] Exhibit 7
[7] Exhibit 6
[8] AMWU and AWU v ASC Pty Ltd t/a Australia Submarine Corporation[2022] FWC 1198; Yan v Nu Skin Enterprises Australia, Inc[2022] FWC 1426; Tween v Qantas Airways Ltd[2022] FWC 1594; Glover v Ozcare[2021] FWC 298; CFMMEU & Ors v BHP Coal Pty Ltd T/A BHP Billiton Mitsubishi Alliance / BMA & Ors[2022] FWC 81.
[9] [2022] FWC 81.
[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] CFMMEU v Mt Arthur Coal [2021] FWCFB 6059 [259].
[14] Ibid.
[15] Ibid.
[16] [2022] FWC 81.
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