Li Min He v Legend Corporate Services Pty Ltd
[2022] FWC 2249
•24 AUGUST 2022
| [2022] FWC 2249 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Li Min He
v
Legend Corporate Services Pty Ltd
(U2022/3342)
| DEPUTY PRESIDENT EASTON | SYDNEY, 24 AUGUST 2022 |
Application for an unfair dismissal remedy – mandatory vaccination policy – refusal to be vaccinated against COVID-19 – lawful and reasonable direction – no medical reason not to be vaccinated – valid reason for dismissal related to capacity or conduct – dismissal not harsh, unjust or unreasonable – application dismissed.
Ms Li Min He worked for Legend Corporate Services Pty Ltd for 14 years. In 2021 Legend introduced a policy across its workforce requiring employees to be double vaccinated against Covid-19 by 23 December 2021. Legend extended the deadline for Ms He by a further two months because she sought specific medical advice. Against medical advice from two cardiologists and two general practitioners, Ms Li Min He chose not to be vaccinated because she thought she had an underlying cardiac condition that placed her at risk if she was to be vaccinated. Ultimately Ms He did not provide proof of vaccination by the extended deadline and was dismissed.
Ms He was dismissed on 28 February 2022 after being employed by Legend Corporate Services Pty Ltd (Legend) for 14 years. On 18 March 2022 Ms He made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment.
Requirement to be vaccinated
Ms He worked at Legend’s Seven Hills site. Legend employs approximately 315 employees nationally, including 280 permanent employees. At the Seven Hills site there are approximately 130 employees.
Ms He lived in a local government area that was declared an “Area of Concern” which meant that by August 2021 Ms He needed to have at least one dose of a COVID-19 vaccination to attend work. Ms He was not allowed to work under the public health orders after 1 September 2021 because she was not vaccinated. Those particular public health orders ceased to apply in mid-October 2021.
In early October 2021 Legend consulted with its workforce about the possibility of introducing a policy across the enterprise requiring all staff to be vaccinated. The initial communication to staff included the following:
“The Executive Leadership Team have been following these recent developments closely and have now decided that we wish to adopt one consistent position for all Legend employees in both Australia and New Zealand. We are proposing that we change our workplace safety procedures to require all Legend employees to be fully vaccinated and provide evidence of vaccination by 5pm AEST Thursday 23rd December 2021. We will consider extending this deadline where circumstances require flexibility, such as situations where vaccine supply is limited. Further advice will be provided in due course with regard to the process for providing evidence of vaccination.
This proposal has been based on considerations of workplace safety, the health and wellbeing of our employees, their families and the communities in which they live, as well as the need to provide business continuity for our customers.
Employees who provide a signed exemption letter by a registered medical doctor will be exempt from this requirement.
We invite you to respond to this proposal by 5pm AEST on Friday 10th October to [details].
The Executive Leadership Team will consider all correspondence regarding this proposal.”
On 18 October 2021 Legend announced that staff were required to have two doses of a COVID-19 vaccine by 23 December 2021.
Ms He challenges the reasonableness of Legend’s vaccination policy, maintaining that in her position there was no risk of her contracting or spreading COVID-19. Ms He says she predominantly worked by herself at her own workbench and that there was very little interaction with others. Legend argued that it gave careful thought to the introduction of a vaccination policy and decided to apply the policy uniformly across the whole workforce because it was considered too problematic and unsafe to require employees in only certain work areas to be vaccinated.
In my view Legend’s vaccination policy was reasonable at the time it was introduced. The Vaccination Policy was otherwise reasonable as a control measure to deal with the work health and safety risks associated with the COVID-19 pandemic.
The Applicant’s decision not to be vaccinated
Ms He says that in 2021-2022 she had “three serious instances of heart attack symptoms”. Ms He says she is extremely concerned that the COVID vaccination would have negative side effects and increase her symptoms, risking heart attack or stroke or other complications.
As the deadline approached Ms He raised with Legend her concerns about vaccination and, after consultation with Ms He’s general practitioner, Legend granted Ms He a 2-month extension of time for her to provide proof of vaccination. The time was extended to 28 February 2022 because Ms He indicated that she had a cardiologist appointment on 23 February 2022.
At the hearing Ms He explained that all in all she had consulted her general practitioner, a second general practitioner, and two specialist cardiologists about her concerns regarding the vaccination and what she feared to be an underlying heart condition.
Ms He advised that each doctor advised her to get vaccinated and that no doctor told her they could guarantee that vaccination was 100% safe. No doctor told Ms He that the vaccines would pose an unacceptable risk for her and no doctor provided a medical contraindication certificate, or even a temporary medical contraindication to allow further inquiries.
The second cardiologist that she saw also said referred Ms He for more tests without giving her a medical contraindication against vaccination. Ms He says that it was unfair that Legend did not allow Ms He further time to undergo additional tests. In circumstances where that cardiologist refused to provide Ms He with a temporary medical contraindication, I must assume that there was no medical reason to delay vaccination pending further inquiries.
The only conclusion available in light of these indications from Ms He, is that there is no medical reason why Ms He could not have been vaccinated by the deadline set.
Consideration
Section 387 of the FW Act requires me to take into account the following matters in determining whether Ms He’s dismissal was harsh, unjust or unreasonable:
(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. I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
To be a valid reason, the reason for the dismissal should be sound, defensible or well founded and should not be capricious, fanciful, spiteful or prejudiced. However, in assessing the validity of the reasons for dismissal the Commission will not stand in the shoes of the employer and determine what the Commission would do in the same position.
The test is whether, on the evidence before the Commission, there was a valid reason for dismissal connected with the employee’s capacity or conduct.
Legend relied on Ms He’s failure to provide either proof of vaccination or proof of a medical contraindication as the reason for dismissal.
Having found that Legend’s policy requiring proof of vaccination was reasonable, I find that there was a valid reason for dismissal.
Was the Applicant notified of the valid reason?
Section 387(b) requires me to take into account whether Ms He “was notified of that reason.” Sections 387(b) and (c) direct the FWC’s inquiry to matters of procedural fairness. In general terms a person should not exercise legal power over another, to that person’s disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case (per Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151 [70] citing FAI Insurances Ltd v Winneke (1982) 151 CLR 342; Kioa v West (1985) 159 CLR 550; Annetts v McCann and others (1990) 170 CLR 596).
In context, the inquiry to be made under s.387(b) is whether the employee was “notified” of that reason before the employer made the decision to terminate. The reference to “that reason” is a reference to the valid reason(s) found to exist under s.387(a) and the reference to being “notified” is a reference to explicitly putting the reasons to the employee in plain and clear terms.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
The opportunity to respond to which s.387(c) refers is an opportunity to respond to the reason for which the employee may be about to be dismissed.
Ms He was given a proper opportunity to respond to the allegations against her.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
This factor is not a relevant consideration in this matter.
Was the Applicant warned about unsatisfactory performance before the dismissal?
As the dismissal did not relate to unsatisfactory performance, strictly speaking this factor is not relevant to the present circumstances.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
Neither party submitted that the size of Legend’s enterprise was likely to impact on the procedures followed in effecting the dismissal.
To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
Legend’s enterprise does not appear to lack dedicated human resource management expertise.
What other matters are relevant?
Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
Ms He was convinced that her dismissal was in fact a redundancy in disguise. At the hearing Ms He focused extensively on trying to prove that her position was redundant. In early 2021 Ms He was moved to a particular part of Legend’s premises at Seven Hills called the “repack” area. Ms He moved to the repack area because of a problem with her ankle. When she raised concerns about her ankle with Legend she advised that it was due to her age and not due to her work. At the hearing Ms He maintains that the problem with her foot was the result of working for Legend in its warehouse for 14 years. I do not need to decide if she was moved to the repack centre because of the deterioration of Ms He’s ankle, I can merely note that the move took place in March 2021.
From March 2021 until Ms He stopped working in August 2021, the work in the repack area reduced. The clear evidence from Legend’s witnesses was that after Ms He stopped working in August 2021 there continued to be work to be done in the repack area.
The Group Operations and Property Manager, Mr Chalmers, was adamant in his evidence that even though the work in the repack area had reduced there was still sufficient work for two people in the area. Mr Chalmers’ evidence was that Ms He’s position was definitely not made redundant and that there is still sufficient work in the repack area for two full-time employees. He also observed that Legend allocated some casual work to the repack area and that, to the extent there has been a reduction in the number of workers required to work in the repack area, Legend has simply reduced its allocation of casuals to the area rather than make any permanent employee redundant. Mr Chalmers did concede that the position of the manager of the area, a full-time position, had been redundant due to a management restructure in 2021. I do not find at all that Ms He’s position was made redundant.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable and therefore an unfair dismissal.
I find that the dismissal of Ms He was not harsh, unjust or unreasonable.
Accordingly, I will make an order dismissing Ms He’s application.[1]
DEPUTY PRESIDENT
Appearances:
Ms L M He, Applicant
Mr S Rowe for the Respondent
Hearing details:
2022.
Sydney (By Video using Microsoft Teams)
July 20.
[1] PR745124.
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