Koro Solomon Stacy Hui Hui v Aldi Stores T/A Aldi

[2022] FWC 2052

[2022] FWC 2052

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Koro Solomon Stacy Hui Hui
v

Aldi Stores T/A Aldi

(U2022/3294)

COMMISSIONER SIMPSON BRISBANE, 3 AUGUST 2022

Application for an unfair dismissal remedy

1. On 18 March 2022, Mr Koro Solomon Stacy Hui Hui (Mr Hui Hui/ the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against Aldi Stores T/A Aldi (Aldi/ the Respondent).

1. The matter was scheduled for a conciliation before a Commission Conciliator on 21 April 2022, and as the matter was unable to be resolved, the matter was allocated to me. On 11 May 2022, the Respondent filed their Form F3 Employer response form and I listed the matter for a Directions Hearing on 27 May 2022.

1. Directions were issued for the filing of material and the matter was scheduled for Hearing on 18 July 2022. The Applicant did not comply with the Directions by the date in those Directions. On 20 June 2022, my chambers sent an email to Mr Hui Hui’s nominated email address highlighting this failure to comply and enquiring about his intention to file material. Later that day, the Applicant replied to Chambers informing that his intention was to rely only on the material he had submitted with his originating application. In this email exchange, the Applicant informed that the remedy he sought was solely his long service leave.

1. On 8 July 2022, the Respondent filed submissions and a witness statement from Saffron Newton (Ms Newton), Director of Human Resources for the Respondent and Jim Le (Mr Le), Logistics Manager. In their submissions, the Respondent made an application that given the remedy sought by the Applicant (being his long service leave) and that the Commission does not have Jurisdiction to make orders of such, that the Application should be dismissed.

1. At the Hearing on 18 July 2022, conducted by telephone, Mr Hui Hui appeared on his own behalf and Ms Philippa Noakes of Seyfarth Shaw sought permission to appear for the Respondent. The Applicant did not oppose the request and on the basis of the verbal submissions pursuant to section 596 of the Act from the Respondent, I was satisfied it was appropriate to exercise my discretion to grant the employer the right to be represented by a lawyer, and leave was granted under section 596 for the Respondent to be represented

1. I put to the parties at the outset of the Hearing that as the Applicant had not filed any submissions other than his Form F2 and accompanying annexures, that the factual matrix leading to the termination, at least on a preliminary level, appeared undisputed. After some discussion with the parties about the material before the Commission both parties were content to adopt the approach of allowing the material to come in without the need for cross examination. I determined to admit each statement provided by the Respondent and the written submissions of the Applicant and to take into account the oral submissions and issue a written decision on this basis of that material.   

SUMMARY OF EVIDENCE AND SUBMISSIONS

1. The Applicant informed by way of email that he intended to rely on his Form F2 and the accompanying annexures as his sole submissions. In his application, Mr Hui Hui stated that he was making the application in order to support his long service leave claim as a result of this claim having been denied by the Respondent. The Applicant stated that the termination of his employment was unfair in that he believed the Respondent had not provided information relating to his written response to the show cause letter and that he had been terminated prior to the Respondent’s Vaccination Policy (the Policy) coming into effect.

1. The Respondent filed submissions summarising the consultation regarding their Policy. In around September 2021, the Respondent took steps to consider whether a mandatory vaccination policy should be proposed across its operations. On 20 September 2021, Aldi sent an email to all employees, including the Applicant, which stated that it was considering a safety management plan and that mandatory vaccination might be considered. In this email, employees were invited to provide their views on the proposed plan by 31 October 2021.

1. On 3 November 2021, the Respondent sent an email to all employees which stated, inter alia, that Aldi was proposing to implement the Policy which would require employees be required to be vaccinated by 1 March 2022. Employees were encouraged to provide feedback to the Respondent by 22 November specifically about the Policy.

1. On 30 November 2021, Aldi sent communications to all Aldi employees notifying that the Policy would come into effect. The Policy would require employees to provide evidence of their vaccination status or that of a medical contraindication by 10 January 2022.

1. The Respondent stated that while some employees took the opportunity to speak with their direct managers or health and safety officers, the Applicant did not make any requests or have discussions with his Personnel Leader.

1. On 11 January 2022, one day following the deadline to provide the evidence of his vaccination status, the Respondent sent an email to the Applicant providing an extension to provide the required information until 17 January 2022. The Applicant did not provide a response.

1. On 18 January 2022, the Respondent issued a show cause letter requiring the Applicant to provide reasons as to why his employment should not be terminated. The Respondent stated that the reason for the letter was that Mr Hui Hui had failed to provide evidence of his vaccination status or that of a medical contraindication. Later that day the Applicant provided a response.

1. The Applicant stated in the response that he required Aldi to provide information regarding the legality, efficacy and contents of the Vaccine. The letter also required the Respondent provide assurances that they would be financially responsible and liable for any adverse reactions to the vaccine that he might experience.

1. On 24 January 2022, the Respondent replied to the Applicant, responding to several items in his letter, and further inviting Mr Hui Hui provide any additional information that he would like Aldi to consider.

1. On 28 January 2022, the Respondent met with Mr Hui Hui, in person, to discuss the show cause letter. After the meeting, the Respondent sent a letter to the Applicant giving notice that his employment would terminate due to his failure to comply with the Vaccine Policy.

CONSIDERATIONS

1. The Respondent made submissions on two aspects of the application. The first being that the Application should be dismissed for want of jurisdiction. The Respondent highlighted the remedy sought by the Applicant and the intention of the Applicant to seek an order in respect to his long service leave. The Respondent submitted that an application to the Commission for an order for such has no viable prospect of success and should be dismissed on that basis.

1. I am not satisfied that it would be appropriate to dismiss the application summarily for any of the available grounds set out in section 587(1) of the Act. The Applicant is self-represented. Given the nature of the legislative long service leave entitlements under the Industrial Relations Act 2016 the Applicant understood the only way in which it would be possible for him to obtain accrued pro rata long service leave was a finding by this Commission that his termination was unfair. 

1. I am inclined to the view that the Applicant deciding to make this the focus of the remedy he sought was a reflection of the advice he had received on investigating the matter, and the level of importance he placed on attempting to be able to access this entitlement through contesting his dismissal, rather than supporting any conclusion that he did not genuinely contest that his dismissal was unfair, or that he had no interest in the remedies available under the Act. On that basis the application that the matter be dismissed summarily is dismissed.

1. In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the considerations under section 387 of the Act.

(a) Whether there was a valid reason for dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

1. A valid reason is one which is “sound, defensible or well founded”[1] and must not be “capricious, fanciful, spiteful or prejudice.[2] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.

1. The Respondent submitted that they had a valid reason to terminate the Applicant’s employment due to his refusal to follow a lawful and reasonable direction arising from the Policy. A substantial and wilful breach of an employer’s policy will typically constitute a valid reason for dismissal [3].

1. In CFMMEU v Mt Arthur Coal[4] the Full Bench said as follows:

“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.” 

1. As the Respondent has submitted, failure to comply with a requirement or policy imposed by an employer will “often, if not usually” be a valid reason for dismissal, as a fundamental breach of the central duty implied in employment contracts that employees must comply with the lawful and reasonable directions of their employer.

1. As Aldi has submitted, it has a duty to provide a safe workplace under workplace health and safety law, and to take whatever steps are available and reasonably practicable to protect workers’ safety, regardless of how the workers may feel about it.   

1. Further because of the Applicant’s workplace environment it is not possible for Aldi to avoid persons being in relatively close proximity to each other creating a risk of transmission of COVID-19. Aldi provides essential goods and there is need for supermarkets to be open to all persons. Aldi cannot avoid interactions between its employees and members of the public. 

1. The evidence does not support a conclusion that the decision of the Applicant not to be vaccinated was not his decision.  Aldi’s policy provided for persons who genuinely could not be vaccinated against COVID-19.

1. I am satisfied based on the material before the Commission that Aldi’s direction was lawful and reasonable and the Applicant’s refusal to comply with it was a valid reason for dismissal. 

(b)      whether the person was notified of that reason

1. The Respondent undertook a process of consultation in deciding to implement the policy. Employees, including the Applicant, were notified of the requirement to be vaccinated in order to fulfil their duties.

1. The Applicant was on notice by the letters sent to him on 18 January 2022 and 24 January 2022. The Applicant responded to the correspondence of 18 January 2022 on the same day indicating he understood that he was on notice of the proposal to terminate his employment.

1. I am satisfied that the Applicant was notified of the reason for his dismissal. 

(c)       whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

1. The Applicant was given an opportunity to respond on several occasions as to whether he intended to be vaccinated, including on 22 December 2021, 11 January 2022, and to his proposed dismissal on 18 January 2022, and 24 January 2022.

1. The Applicant had responded to the Show Cause letter with a written response. There was also a meeting with the Applicant on 28 January 2022.  I am satisfied the Applicant was given an opportunity to respond to the reason related to his capacity or conduct. 

(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

1. The Applicant has not claimed that he 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

1. 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 

1. 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, but it ultimately had very little control over what it could do if he chose not to be vaccinated.

(h)      any other matters that the FWC considers relevant.

1. The Applicant has been an employee of Aldi for a reasonably lengthy period and the Applicant also referred to the financial difficulty his termination has caused which are matters that are relevant in weighing the harshness of the impact of the termination on him.  The Applicant has also referred to the fact of his termination currently resulting in him being unable to obtain a pro rata long service leave entitlement.

CONCLUSION

1. I have weighed each of the considerations under section 387 and have concluded that the Respondent had a valid reason for dismissal and that the dismissal was not procedurally flawed. I have taken into account the impact of the termination on the Applicant, however having weighed each of the matters to be considered as required I have concluded that the dismissal was not harsh, unjust or unreasonable and on that basis the application is dismissed.

COMMISSIONER

Appearances:

Mr Koro Solomon Stacy Hui Hui on his own behalf.

Ms Philippa Noakes of Seyfarth Shaw for the Respondent.

Hearing details:

2022
Brisbane (by Telephone)
18 July

[1] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR at 371.

[2] Ibid at 373.

[3] B, C and D v Australian Postal Corporation t/a Australia Post (2013) 238 IR 1, [2013] FWCFB 6191 at 36.

[4] CFMMEU v Mt Arthur Coal[2021] FWCFB 6059 [259].

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