Krystal Dana Smith v Noosa Privatised Hospital Pty Limited
[2022] FWC 1779
•8 JULY 2022
| [2022] FWC 1779 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Krystal Dana Smith
v
Noosa Privatised Hospital Pty Limited.
(U2022/2962)
| DEPUTY PRESIDENT LAKE | BRISBANE, 8 JULY 2022 |
Application for an unfair dismissal remedy – where the Applicant was not unfairly dismissed
Mrs Krystal Smith (the Applicant) contends she was unfairly dismissed by Ramsay Health Care Australia (the Respondent), for whom she had worked since 5 February 2018. She seeks an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). In short, the Applicant was terminated from her position at Noosa Hospital after failing to comply with the Respondent’s direction to be vaccinated by 15 December 2021. The events leading to the Applicant’s termination are not in dispute. Rather, the Applicant contends that the unlawfulness of the Respondent’s 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 20 May 2022. The Applicant appeared on her own behalf, while Mr Peter Ryan, Director of Employee Relations and Policy, and Ms Lynda Hepworth, Human Resources Manager, Queensland, appeared for the Respondent.
At the virtual hearing, as a preliminary matter, the Respondent applied for the application to be corrected to replace Ramsay Health Care Pty Ltd as the correct legal name of the Respondent. Mrs Smith consented to the amendment. Accordingly, I ordered that Ramsay Health Care Pty Ltd be inserted as the Respondent to these proceedings.
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
On 5 February 2018, the Applicant was employed as a part-time Enrolled Nurse at Noosa Hospital working a minimum of twenty hours per week.
On 15 October 2021, Ms Dodd, the Operations Executive Manager for Queensland (OEM), sent an email to all employees that they will need to be vaccinated in order to remain on the roster.
On 10 November 2021, The Queensland Chief Health Officer issued a Direction in accordance with emergency powers arising from the declared public health emergency entitled Workers in healthcare setting (COVID-19 Vaccination Requirements) Direction. This first Direction provided that relevant healthcare workers were required to be fully vaccinated by 15 December 2021 in order to be permitted to enter the hospital as an employee.
On 11 November 2021, Ms Johnson, the Applicant’s Nurse Unit Manager (NUM), sent her a letter advising that the Queensland Government enacted a Public Health Order (PHO) mandating that health care workers in private facilities must be fully vaccinated by 15 December 2021.
On 16 November 2021, the Applicant accessed annual leave accruals available to her.
On 15 December 2021, the Applicant replied to the OEM’s letter dated 15 October 2021. The Applicant detailed her objections to receiving a vaccination in a five-page letter.
On 15 December 2021, Ms Hepworth responded to the Applicant’s letter and confirmed the Queensland Government’s PHO was in place from 15 December 2021 and provided links to the relevant information.
On 11 January 2022, the Director of Clinical Services (DCS) sent an email to the Applicant asking if her unvaccinated status had changed.
On 12 January 2022, the Applicant sent an email to the DCS advising her vaccination status remained unchanged and advised that the employer could allow unvaccinated employees to return if they are providing critical support needs or emergency services and working due to staff shortages.
On 15 February 2022, Ms Lynch, the Human Resources Business Partner (HRBP), contacted the Applicant to query her vaccination status and to advise that consideration was being given to closing her employment file. The Applicant was asked if there was anything further she wanted management to take into consideration before a decision was made.
On 18 February 2022, the Applicant confirmed she was not vaccinated and asked if she could return to work as an unvaccinated employee and referred to information she received from Queensland Health.
On 22 February 2022, the Human Resources Advisor acknowledged the Applicant’s email of 18 February 2022 and confirmed that she would not be permitted back in the hospital as an employee due to her vaccination status and that her employment file would be closed. The Applicant was advised that they could re-apply for employment at Noosa Hospital when and if the PHO was lifted.
Applicant’s Material
The Applicant accepts that she was informed on multiple occasions that if she was not vaccinated by 15 December 2021, her employment may be terminated. She does however question the lawfulness of that directive.
The Applicant claims that the Respondent’s actions are both “ethically wrong and unjustifiably hysterical.”[1] She accepts that the Respondent may terminate her employment if she failed to execute her professional nursing duties efficiently or behaved in a socially unacceptable manner. However, she believes that she could not have been dismissed for these reasons as she was contacted by the Respondent to get vaccinated so that she could return to her job.
The Applicant maintains that informed consent is required under the Nuremberg Code, the common law, and section 51 of the Australian Constitution. Thus, the Government and the Respondent have erred in their implementation of the mandate and acted unconstitutionally.[2]
Finally, the Applicant emphasises that she had a reasonable and sound basis on which to question the safety of the COVID-19 vaccination. The Applicant states,
“A number of the papers critical of the use of these drugs clearly identified that there are real dangers to the wellbeing of a patient who is pregnant or likely to become pregnant in respect of potential negative impact on the foetus.
For this reason alone, I consider that I had every reason not to accept being injected with the formally prescribed drug that has a high statistical potential to permanently injure my future child and had the right to take that position.
Therefore, I submit that I had sound reason to refuse to be vaccinated and that Ramsay Health Care had no valid basis to dismiss me”.[3]
To that end, the Applicant asserts that the imposition of a vaccination mandate by the Respondent is unlawful on the basis that the Queensland Government’s statement that all healthcare workers be vaccinated is not law and, further, there is no constitutional basis for such a mandate. Additionally, the Applicant contends that requiring staff to be vaccinated before allowing them to attend work amounts to coercion and duress. The Applicant also claims a COVID-19 vaccination may cause complications for the health of her and her unborn children in the future.
Nevertheless, it was accepted that the Applicant, as at 15 December 2021, had made it clear that she was not vaccinated and did not have a medical exemption.
For the reasons set out above, the Applicant submits that she was unfairly dismissed.
Respondent’s Material
The Respondent asserts that this case is not about whether the government mandate that all healthcare workers be vaccinated is lawful. That question falls outside the scope of this jurisdiction. Rather, the sole question before me is whether the Applicant was unfairly dismissed in light of s.387 of the Act.
The Respondent states that it had a valid reason to dismiss the Applicant: namely, her non-compliance with a lawful and reasonable direction issued by the Respondent, relying on Deputy President Colman’s decision in Stevens v Epworth Foundation.[4] Further the Respondent asserts that the Applicant was notified of that reason well in advance of the termination occurring, had ample opportunity to respond (and did so), that her response was considered by the Respondent, but ultimately a decision was made to terminate her employment because she could not fulfil the inherent requirements of her role.[5] She was not unreasonably refused a support person. The Respondent further asserts that the consultation process undertaken was comprehensive and that given the extensive communications leading up to the implementation of the vaccination mandate, all staff – including the Applicant – were very aware of what would happen if they were not vaccinated by 15 December 2021.[6]
The Respondent denies that its staff were coerced into having the vaccine. The Respondent always accepted that it was their choice.[7] The Respondent relied upon Deputy President Saunders’ decision in Shepherd v Calvary Healthcare.[8] The Respondent asserted that the Deputy President decided that it is not unfair to dismiss an applicant if they are unable to perform their role.[9] Given the public health order which mandated that workers in healthcare be vaccinated, the Respondent had no choice but to terminate the Applicant’s employment because she did not meet that criterion.[10] The Respondent maintains that the Applicant was not unfairly dismissed.
The Respondent asserts that the Applicant’s request to return to the workplace unvaccinated was not agreed due to the significant risks involved with the position of a patient-facing Enrolled Nurse.[11]
During cross-examination of Ms Hepworth, I asked her what was meant by the term, “closing the file”. Ms Hepworth elaborated that the pandemic had caused distress, so the Respondent decided to implement a softer term to approach the Applicant’s dismissal.
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.[12]
(a) whether there was a valid reason for the dismissal
To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[13] and should not be “capricious, fanciful, spiteful or prejudiced.”[14] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.
In light of government mandates, the Respondent was required to ensure that all its employees were vaccinated against COVID-19 by 15 December 2021. It had no choice but to enforce that requirement and did so by directing its employees to provide proof of vaccination (or a medical exemption) by that date.
It is uncontentious that as at 15 December 2021, the Applicant had indicated that she was not vaccinated, nor did she have a medical exemption. In her correspondence to the Respondent on 15 December 2021, 12 January 2022, and 18 February 2022, the Applicant again confirmed that she was not vaccinated and did not intend to become vaccinated against COVID-19 at that time. In other words, she indicated that she would not be complying with the Respondent’s direction.
In light of those intimations by the Applicant, the Respondent could not provide her with further work. I am satisfied that the Applicant’s failure to comply with the Respondent’s direction – the consequence being that the Respondent could not provide her with any further shifts or else be in contravention of the government mandate – constituted a valid reason for dismissal.
Inherent Capacity
[25] Pursuant to the Workers in healthcare setting (COVID-19 Vaccination Requirements) Direction, the Respondent had regulatory requirements to ensure that the Applicant provided the required evidence relating to a COVID-19 vaccination. The Respondent was required to take all reasonable steps to ensure that a worker who was unvaccinated did not enter the Respondents premises for work purposes. On the 15 December 2021, the Respondent requested evidence for employees to provide their current vaccination status. Had Respondent allowed the Applicant to attend the workplace from 15 December 2021, it would have been in breach of the law and exposed itself to the risk of penalties. Compliance with the public health madidate was an inherent requirement of her role as an Enrolled Nurse, as the role required her to undertake duties that required care of patients who are susceptible to transmission and diseases.
[26] The Applicant had the choice and was within her rights to decline to become vaccinated or to provide evidence, however her own choice not to do so rendered her unable to perform the inherent requirements of the job. The Applicant’s failure to comply with the direction concerning her vaccination status resulted in the Respondent being unable to permit the Applicant to perform the role.
(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 15 December 2021, her employment may be terminated.
She had – and took – the opportunity to respond on a couple of occasions to indicate her opposition to the introduction and enforcement of the mandate. This was done on 15 December 2021, 12 January 2022, and 18 February 2022 and prior to her termination on 22 February 2022. Accordingly, I am satisfied that the Applicant was notified of the reason for her termination and had a sufficient opportunity to respond.
(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 government mandate which was to apply to its operations. It consulted with the Applicant in respect of the mandate, but it ultimately had very little control over what it could do if she chose not to be vaccinated.
(h) any other matters that the FWC considers relevant
I refer to the Applicant’s passing references to the Nuremberg Code and section 51 of the Australian Constitution. I am only able to have consideration of matters as they pertain to the Fair Work Act 2009 (Cth).
I have regard to the fact that the Applicant had worked for the Respondent for four years, and there were no allegations that she had been anything other than a dedicated employee. 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 understand that the Applicant is a young woman who expressed her concerns about the long term effects the vaccination may have in pregnant women, lactating mothers, and women of childbearing age. However, it must also be noted that the Respondent also had very little choice in the matter. If it wanted to continue operating its business, it had to comply with the government mandate. This meant that it could not allow someone who was not vaccinated against COVID-19 to continue working on its premises.
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.
DEPUTY PRESIDENT
[1] Smith, ‘A submission by Krystal Dana Smith regarding her wrongful dismissal claim to the Fair Work Commission’, Submission in Krystal Dana Smith v Ramsay Health Care Pty Ltd, U2022/2962, 16 April 2022
[2] Smith, ‘Informed consent to medical treatment’, Submission in Krystal Dana Smith v Ramsay Health Care Pty Ltd, U2022/2962, 22 April 2022.
[3] Smith (n 1).
[4] [2022] FWC 593.
[5] Ramsay Health Care Pty Ltd, ‘Submissions in Reply’, Submission in Krystal Dana Smith v Ramsay Health Care Pty Ltd, U2022/2962, 26 April 2022, para 5.
[6] Ibid [6].
[7] Ibid [5].
[8] Aleisha Jean Shepheard v Calvary Healthcare T/A Little Company Of Mary Health Care Limited [2022] FWC 92.
[9] Ibid [50].
[10] Ramsay Health Care Pty Ltd (n 5) [6].
[11] Ramsay Health Care Pty Ltd, ‘Form F3 – Employer response to unfair dismissal application’, Submission in Krystal Dana Smith v Ramsay Health Care Pty Ltd, U2022/2962, 5 April 2022, 7.
[12] 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].
[13] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[14] Ibid.
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