Les Tytula v Coventry Group Ltd T/A Cooper Fluid Systems, Jody Duncan
[2022] FWCFB 219
•28 NOVEMBER 2022
| [2022] FWCFB 219 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Les Tytula
v
Coventry Group Ltd T/A Cooper Fluid Systems, Jody Duncan
(C2022/5979)
| VICE PRESIDENT CATANZARITI | SYDNEY, 28 NOVEMBER 2022 |
Appeal against decision [2022] FWC 2085 of Deputy President Anderson at Adelaide on 10 August 2022 in matter number U2022/1934 – permission to appeal refused.
Background
Mr Tytula (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) against a decision[1] (the Decision) of Deputy President Anderson (Deputy President) issued on 10 August 2022, for which permission to appeal is required. The Decision concerned an application, brought by the Appellant, for an unfair dismissal remedy against Coventry Group Ltd T/A Cooper Fluid Systems (the Respondent) pursuant to s.394 of the Act. The Appellant’s dismissal concerned his failure to comply with the Respondent’s direction to receive a COVID-19 vaccination. The Deputy President ultimately dismissed the application finding that the Appellant was not unfairly dismissed in accordance with the Act.
Directions were set for the filing of material by the Appellant. As this matter was listed for permission to appeal only, the Respondent was not required to file any material. The Appellant filed written submissions and made further oral submissions at the hearing on 12 October 2022. On 28 September 2022, the Respondent filed submissions seeking permission to be legally represented at the hearing in accordance with s.596 of the Act. On 6 October 2022, the Full Bench refused permission for the Respondents to be legally represented at the hearing.
For the reasons that follow, permission to appeal is refused.
Decision Under Appeal
The Appellant is a qualified engineer with senior level experience. Since 2010 he was employed on industrial projects with the Respondent and its predecessor Torque Industries. The Decision concerned the Appellant’s refusal to comply with a vaccination mandate introduced by his employer in circumstances where he held the view that vaccines again COVID-19 were unsafe and ineffective. A summary of the events leading to the Appellant’s dismissal are set out below:
· 1 October 2021 – the Respondent sent a survey to employees inviting views on vaccination.
· 15 October 2021 – the Respondent advised workers that all employees should provide proof of vaccination by 22 October 2021. Concerned employees were advised to contact their manager.
· 15 November 2021 – the Respondent mandated vaccination for all employees by 20 November 2021 (first dose) and 31 December 2021 (second dose) or to produce evidence of medical contraindication. They invited concerned employees to speak to their managers and leadership team.
· The Appellant expressed concerns regarding mandatory vaccination to the Respondent on 4 October 2021, 15 October 2021 and 16 November 2021. On 16 November 2021 the Appellant sent a letter from himself and 14 other employees requesting the Respondent provide them with further information on the vaccine.
· 22 November 2021 – the Respondent held a meeting with the Appellant to inform him that he was not authorised to use company letterhead to express personal views. The Appellant was also asked to outline his concerns on the Respondent’s vaccination policy.
· 29 November 2021 – the Appellant sought and was granted personal leave until 2 January 2022.
· The Appellant did not provide proof of vaccination or a medical exemption by the prescribed deadlines.
· 4 January 2022 – the Respondent gave the Appellant a letter which informed him that as he had not provided proof of vaccination, he would be required to take paid annual leave until he received his first dose or by 10 January 2022. The Respondent also met with the Appellant that day to discuss the letter and to again inquire as to the Appellant’s vaccination status.
· 6 January 2022 – the Appellant sent materials with opposition to the vaccine mandate to the Respondent.
· 1 February 2022 – the Respondent met with the Appellant to discuss his non-compliance with the vaccination policy.
· 2 February 2022 – the Respondent sent the Appellant a show cause letter, giving him until 7 February 2022 to respond. The Appellant responded on 6 February 2022.
· 8 February 2022 – the Respondent met with the Appellant and advised that his response had been considered but not accepted and that his employment would be terminated due to non-compliance with the policy. They sent the Appellant a formal letter advising of his termination. The Appellant was provided five weeks pay in lieu of notice.
· 3 March 2022 – the Appellant requested to keep his company phone. The Respondent declined as the phone had company-specific software. The Appellant did not return the phone and it was remotely deactivated by the Respondent.
The Appellant submitted that his dismissal was unfair and sought reinstatement or compensation on the grounds that: there was no valid reason for dismissal as the policy was unlawful and unreasonable; the Respondent should have allowed him to work from home or take an extended period of leave; the Appellant was denied the opportunity to personally farewell his colleagues; and the Respondent unreasonably deleted the contents of his phone. He submitted the dismissal was harsh given the late stage of his career and that he has been unable to seek alternate employment.
The Respondent submitted the Appellant’s dismissal was not unfair. They submitted that the issue before the Commission is not an inquiry into COVID-19 vaccinations; there was a valid reason for dismissal namely that the Appellant did not produce proof of vaccination; their policy was reasonable and lawful; the dismissal was not procedurally unfair; it would have been unreasonable for the Respondent to allow the Appellant to work from home or go on further leave.
Turning to his consideration of the matter, the Deputy President was satisfied there were no jurisdictional or preliminary issues, and that the Appellant was protected from unfair dismissal. The Deputy President then considered the criteria in s.387 of the Act.
Considering whether there was a valid reason for the Appellant’s dismissal (s.387(a)), the Deputy President was satisfied that the Respondent’s policy to provide proof of vaccination or medical contraindication was not unlawful or unreasonable. The Deputy President also found that it was reasonable for the Respondent to apply this policy to the Appellant. Given these findings, the Deputy President was satisfied that there was a valid reason for the Appellant’s dismissal and that this weighed against a finding of unfairness.
The Deputy President found that the Appellant was notified of his dismissal (s.387(b)) and that this weighed against a finding of unfairness. Further the Deputy President rejected the Appellant’s submission that he was denied procedural fairness because the Respondent did not answer all of his questions and correspondence, finding that it was not unreasonable for the Respondent to decline to debate the science and efficacy of COVID-19 vaccines. He therefore concluded that the Appellant was given an opportunity to respond (s.387(c)) and that this weighed against a finding of unfairness.
The Deputy President considered ss.387(d)–(g) to be neutral considerations. Finally, the Deputy President considered other relevant matters (s.387(h)), finding:
· there was no merit in the Appellant’s submission that he should have been able to work from home instead of being dismissed;
· the dismissal was not harsh because the Respondent failed to allow the Appellant to take leave instead of being dismissed;
· the dismissal was not harsh because the Respondent failed to allow the Appellant to farewell his colleagues in person;
· the dismissal was not harsh because it denied the Appellant career progression; and
· the dismissal was not harsh because the Respondent erased the Appellant’s personal data from his company phone.
Ultimately, the Deputy President was not satisfied that the Appellant’s dismissal was harsh, unjust or unreasonable. The Deputy President therefore dismissed the application.
Appeal Grounds and Submissions
The Appellant’s grounds of appeal and submissions are as follows:
Errors in application of law
1. The hearing had been scheduled to be before a Full Bench, as advised by an amended Notice of Listing, dated 10th of May 2022; however, it was conducted by a single member.
2. The Deputy President failed to recognise that the Respondent violated laws by requesting the Appellant’s proof of vaccination several times.
3. The Deputy President failed to assess the Appellant's first ground for the mandate to be unreasonable, namely, the absence of a COVID-19 pandemic in Australia, and in particular in South Australia.
4. The Deputy President failed to assess the Appellant's second ground for the mandate to be unreasonable, namely, that the Appellant could not validly consent to the vaccination as the Respondent was exerting undue influence on him to be vaccinated by threatening to terminate his employment.
5. The Deputy President failed to assess the Appellant's third ground for the mandate to be unreasonable, namely, that the Appellant could not validly consent to the vaccination as the Respondent refused to provide critical information necessary for making an informed decision.
6. The Deputy President failed to recognise the seriousness of the Respondent’s negligence due to deliberate inaction on the safety concerns of the vaccine.
7. The Deputy President failed to recognise the deficiency of the risk assessment completed by the Respondent as to whether to introduce the vaccination policy.
8. The Deputy President failed to recognise the disingenuity of the consultations carried out by the Respondent in relation to the vaccination policy.
9. The Deputy President volunteered to perpetrate statements about COVID-19 such as: ‘the virus placed unprecedented pressure’; ‘resulted in loss of life and illness’; ‘differing levels of transmissibility and severity’; and ‘without any factual evidence being presented during the hearing.’
10. The Deputy President failed to recognise the data presented by the Appellant, from verifiable sources, as facts and instead referred to the evidence as “the Appellant's views.”
11. The Deputy President failed to recognise the data from a Pfizer report provided by the Appellant.
12. The Deputy President did not consider the comprehensive explanation and practical examples of the Appellant's work to be ‘persuasive’ evidence of being able to perform his work duties remotely.
13. The Deputy President did not consider that the Appellant was unrepresented and the Appellant did not know that he could object to the Respondent having legal representation.
Significant errors of fact
14. The Deputy President incorrectly considered the main perspective of the Appellant's claim as being based on safety of the vaccine rather than on valid consent.
15. The Deputy President erred by stating that Mr Smallwood reported to Mr Carter, despite Mr Smallwood admitting under oath that he did not report to Mr Carter.
16. The Deputy President misrepresented the facts by stating that “one employee out of 850 had fallen ill” after receiving the vaccine. The Appellant submits that approximately 50 people suffered post vaccination injuries.
In terms of why the appeal is in the public interest, the Appellant submits that the matter raises issues of importance and general application and thus enlivens the public interest; the preservation of public confidence in the administration of justice could be undermined by a decision that was manifestly unjust; and there were a number of significant errors of fact in the original decision.
Principles on Appeal
An appeal against a decision to dismiss an unfair dismissal remedy application under s.604 of the Act is one to which s.400(1) of the FW Act applies.[2] Section 400(1) requires that permission to appeal must not be granted unless the Commission considers it is in the public interest to do so. This test is a stringent one.[3] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[4] Some of the considerations that may attract the public interest are where a matter raises issues of importance and general application, or there is a diversity of decisions at first instance so that appellate guidance is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[5] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[6] However, the fact that the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[7]
Consideration
In this case, we are not persuaded that it would be in the public interest to grant permission to appeal. We do not consider that any reasonably arguable case has been advanced that the Decision of the Deputy President was attended by appealable error.
The majority of the Appellant’s grounds of appeal can be grouped together and summarised as the Appellant’s objection to the Respondent’s policy for all employees to be vaccinated against COVID-19 and the Appellant’s concerns about the safety and efficacy of COVID-19 vaccines. These grounds are an attempt by the Appellant to reagitate the merits of his case as put to the Deputy President at first instance. We note that the Deputy President dealt with these submissions in significant detail, and we do not wish to repeat his findings in this decision. The Deputy President was ultimately satisfied that the Respondent’s vaccination policy was lawful and reasonable in the circumstances and that it applied to the Appellant. The Deputy President was satisfied that the Appellant’s failure to comply with the policy provided a valid reason for his dismissal. It is clear that the basis on which the Deputy President reached his Decision discloses an orthodox approach to the determination of the Appellant’s application. The Deputy President applied the correct legal principles, considered, and dealt with the evidence that was before him, and made findings of fact based on that evidence. We are satisfied that the Deputy President’s conclusions were reasonably open on the evidence before him. We find no error in the Deputy President’s findings and accordingly, we dismiss grounds 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 14 and 16.
Ground 1 alleges error in that the first instance matter was originally listed for a Full Bench hearing but only proceeded to be heard by a single member. We note that it is standard practice in the Commission for first instance matters to be heard by a single member. This is likely a typological error on the notice of listing that has had no impact on the findings in the Decision. This is not an appealable error.
Ground 12 alleges error in the Deputy President’s findings regarding the Appellant’s ability to work from home instead of being dismissed. Again, we note that these submissions were put to and considered by the Deputy President at first instance. The Deputy President made findings in respect of these submissions at [210]-[219] of the Decision. We are satisfied that the Deputy President’s conclusions were open to him on the evidence and disclose no appealable error. Accordingly, we dismiss this ground of appeal.
Ground 13 alleges that the Deputy President did not consider that the Appellant was unrepresented in the first instance proceedings. We note that at [10] of the Decision the Deputy President acknowledges that the Appellant was self-represented in the proceedings. We have considered this submission and are not satisfied that the Appellant’s lack of representation caused any procedural unfairness in the first instance matter. The Appellant was given the opportunity to provide written and oral evidence and to respond to the Respondent’s evidence and he did so. We dismiss this ground of appeal.
Ground 15 alleges that the Deputy President erred by stating that Mr Smallwood reported to Mr Carter. We consider this to be a minor error that has no impact on the Deputy President’s findings. This error does not amount to a significant error of fact and we dismiss this ground of appeal.
Further, we have considered whether this appeal attracts the public interest, and we are not satisfied that:
· there is a diversity of decisions at first instance so that guidance from an appellate body is required;
· the appeal raises issues of importance and/or general application;
· the Decision at first instance manifests an injustice, or the result is counter intuitive; or
· the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
For the reasons set out above, we are not satisfied that it would be in the public interest to grant permission to appeal pursuant to s.400(1) of the Act.
Accordingly, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr L Tytula, on his own behalf.
Mr B Sewell, for the Respondent.
Hearing details:
2022.
Microsoft Teams (Video).
11 October.
[1] [2022] FWC 2085 (‘the Decision’).
[2] Australian Postal Corporation v Gorman [2011] FCA 975, 196 FCR 126 at [37].
[3] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43] per Buchanan J (with whom Marshall and Cowdroy JJ agreed).
[4] O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46].
[5] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [27].
[6] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
[7] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
Printed by authority of the Commonwealth Government Printer
<PR748333>
0
7
0