Lauren Celeste Dimmer v St John of God Murdoch Hospital

[2022] FWC 1720

[2022] FWC 1720

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Lauren Celeste Dimmer
v

St John Of God Murdoch Hospital

(U2021/10265)

COMMISSIONER WILLIAMS PERTH, 13 JULY 2022

Application for an unfair dismissal remedy

1. This decision concerns an application made by Mrs Lauren Dimmer (the applicant) under section 394 of the Fair Work Act 2009. The respondent is St John of God Murdoch Hospital (the respondent).

1. Evidence was given at the hearing by Ms Dimmer and Vermell Paul, a former colleague of the applicant. For the respondent, evidence was given by Mr Michael Salter, the respondent’s Director of Corporate Services, as well as acting Chief Executive Officer Mr Dilwyn Griffiths, the respondent’s Director of Finance. I note whilst the Commission’s directions provided the opportunity for the applicant to provide a second witness statement in reply to the materials filed by the respondent, the applicant elected not to do so.

Evidence and factual findings

1. The applicant was first employed on a permanent position in November 2009. In 2017 she underwent training as a clinical coder and was promoted to that position from June 2018.

1. She worked part-time, usually 46 to 48 hours a fortnight.

1. To the extent the evidence is relevant to this matter, the applicant says she received an email on 1 July 2021 from the respondent’s then-Chief Executive Officer that hinted at what she refers to as ‘vaccine mandates’. She emailed in response concerns she had about this, but the applicant says these were not addressed.

1. Having received this email, she sought out a remote clinical coder position and obtained a temporary contract with Fiona Stanley Hospital for six months.

1. She started at Fiona Stanley in August 2021 working two days a week while she continued working two days a week for the respondent.

1. The applicant says that on 2 September 2021 the respondent emailed employees to inform them that Covid 19 vaccination was now a requirement of employment.

1. She submitted two questions and one comment concerning the safety of the vaccines. One question was subsequently answered one was not. She followed up these concerns she held with the respondent’s CEO, Finance Director, Medical Services Director and her Manager.

1. She was dissatisfied by the responses she received.

1. On September 30, October 6 and October 26 of 2021 she emailed her manager requesting to work from home temporarily. In response she says she was advised by her manager on 30 September 2021 that vaccination was a requirement of her employment regardless of her role or location.

1. On 20 October 2021 she received a letter from her manager regarding providing evidence of her vaccination status. In the letter the applicant says the respondent said it was not able to sustain long-term use of accrued leave or approve leave without pay.

1. The applicant says at this stage she had 191 hours of long service leave and 59 hours of annual leave, which were subsequently paid out to her when she was dismissed.

1. She received a show cause letter regarding the requirement to be vaccinated for Covid-19 dated 29 October 2021, which explained that maintaining her employment was untenable as she was not vaccinated, and that termination of her employment was warranted. She replied on 7 November 2021.[1]

1. In the applicant’s response to the show cause letter, she advised she had chosen to wait for other vaccines to become available that may be a safer choice for her. She stated that vaccines do not stop transmission or contraction of the virus, that no long-term studies of the virus exist and that the long-term effects are unknown. She referred to the fact that two clinical coder contractors were working remotely as being unfair and discriminatory towards herself, as she had requested to work remotely. She repeated her request that she work from home while waiting for a safer vaccine to possibly be made available.

1. She requested the respondent provide her with scientific evidence to prove vaccines are safe, effective, and necessary. Firstly, she requested a risk assessment that shows an unvaccinated person is a threat and more risk than a vaccinated person being at the workplace. Secondly, she requested independent peer reviewed scientific studies supporting the policy of mandatory Covid-19 injections in promoting the health of employees.

1. The following day, 8 November 2021, she received a termination letter which was hand delivered to her.

1. The termination letter[2] refers to the show cause letter and the applicant’s response and explains that as advised previously, the recent Public Health Order (PHO) requires Covid-19 vaccination for all health care workers and is legally binding on the respondent and the caregivers who fall within its scope and accordingly must be complied with. The letter explains that on multiple occasions the hospital has highlighted this requirement to the applicant. The letter goes on to explain that given that she remains unvaccinated she is not compliant with the PHO and so her employment must be terminated.

1. The evidence of Ms Paul was that she had worked as a clinical coder for the respondent for 20 years. She worked with the applicant between June 2017 and October 2021. Her evidence to the extent it was relevant was that another co-worker was permitted to work from home as a clinical coder while she recovered from surgery between September and October 2021.

1. She says contract coders working interstate were employed in October 2021 but permanent clinical coders working remotely was not accommodated.

1. The evidence of Mr Salter was that the applicant was unable to perform the inherent requirements of her position due to being unable to enter a healthcare facility, including the respondent’s premises, as a result of being a person who was unvaccinated as defined in the Covid-19 Mandatory Vaccination Directions.

1. The applicant requested working from home after outlining to her manager she would not be complying with the vaccination directions.

1. His evidence was that the respondent had determined that all caregivers must comply with the PHO and no caregiver would be given permission to work permanently from home.

1. Caregivers are only permitted to work from home on a part-time basis and must be available at all times when required to attend the hospital.

1. Consequently all caregivers eligible for working from home are also required to be vaccinated in accordance with the PHO and are required to attend the hospital when necessary or directed.

1. Contractors engaged in coding are not employees of the respondent and in any event may be required to attend the Melbourne offices or hospitals as required.

1. With respect to the clinical coder Ms Paul referred to, Mr Salter’s evidence was this employee was permitted to work from home on a temporary basis whilst recovering from surgery and was not authorised to work from home on a permanent basis.

1. Under cross-examination Mr Salter advise that this clinical coder was also vaccinated.

1. Under cross-examination Mr Salter’s evidence was that the applicant had requested to work from home permanently so she would not have to be vaccinated. His evidence was that however from time to time her attendance at the workplace would have been required so her remaining in employment unvaccinated was not acceptable.

1. The evidence of Mr Griffiths was consistent with the evidence of Mr Salter.

1. His evidence also explained that there was a full process of communication with the applicant, followed by multiple notifications including video discussions and significant correspondence between the applicant and the respondent before her termination occurred.

1. He explained that both the respondent’s policy regarding Covid-19 vaccination and the PHO required the applicant to be vaccinated because she would be required to attend the hospital on occasion as part of her job.

The legislation

1. Section 387 of the Act, set out below, prescribes criteria the Commission must take into account when considering whether a dismissal was harsh, unjust or unreasonable.

“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

Valid reason

1. Whilst the applicant commonly worked from home the evidence, which is not contested, and which I accept, is that she was required to attend the hospital on occasions as part of her job.

1. Being capable of attending the workplace in person was an inherent requirement of the applicant’s employment.

1. The PHO to which the respondent refers required that health workers attending the respondent’s workplace had to either be vaccinated for Covid 19 or have a valid exemption.

1. The applicant had not been vaccinated for Covid 19 and did not have a valid exemption.

Consequently the applicant was not able to lawfully attend the respondent’s workplace in person and was incapable of fulfilling this inherent requirement of her employment. This was a valid reason for her dismissal to do with her capacity.

Notification of the reason

1. The applicant was notified of the reason the respondent was considering dismissing her employment in the show cause letter provided to her.

Opportunity to respond

1. The applicant had a proper opportunity to respond to the reason for which the respondent was considering dismissing her and in fact provided a detailed written response to the show cause letter.

Refusal to have a support person present

1. There was no unreasonable refusal by the respondent to allow the applicant to have a support person present to assist in any discussions relating to her dismissal.

Unsatisfactory performance warnings

1. The dismissal was not due to unsatisfactory performance.

The size of the employer’s enterprise and whether dedicated human resource management specialists were absent

1. The employer’s enterprise is large and it does have dedicated human resource management specialists. Consequently, appropriate procedures were followed in effecting the dismissal.

Other relevant matters

1. The applicant had been employed for approximately 12 years at the time of her dismissal.

1. The suggestion the respondent should have allowed the applicant to remain employed until her various forms of leave were exhausted ignores the fact that at the time this decision was made there was no certainty that vaccine mandates would be lifted by the Western Australian government let alone any knowledge when that would be. The respondent had no obligation to keep employees employed indefinitely for their convenience when they are unable to work. Such an approach would complicate staff numbers and be problematic in the medium term, when the respondent had an immediate need to employ someone to do the work.

Conclusion

1. Ms Dimmer made a conscious choice not to be vaccinated in the full knowledge that this was likely to lead to her employment being terminated, which it was.

1. Considering all of the matters in this case there is no basis for the Commission to find that the dismissal of Ms Dimmer was harsh, unjust or unreasonable.

1. Ms Dimmer was not unfairly dismissed.

1. This application will be dismissed and an order to that effect will now be issued.

[1] Attachment K to the applicants statement.

[2] Attachment B to the applicant’s statement.

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