Linda Maree Rivette v Vision Australia Limited
[2023] FWC 47
•6 JANUARY 2023
| [2023] FWC 47 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Linda Maree Rivette
v
Vision Australia Limited
(U2022/8272)
| DEPUTY PRESIDENT BELL | MELBOURNE, 6 JANUARY 2023 |
Application for an unfair dismissal remedy – COVID-19 public health orders – inherent requirements - application dismissed.
On 11 August 2022, Ms Linda Rivette (Applicant / Ms Rivette) made an application (the Application) to the Fair Work Commission (Commission) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the FWAct). The Applicant alleges she was unfairly dismissed by Vision Australia Limited (Respondent) on 21 July 2022. The Respondent agrees the Applicant was dismissed on 21 July 2022 but denies the dismissal was unfair.
The Applicant’s employment was not terminated because of poor conduct or performance. Rather, the Respondent stated that the Applicant was unable to perform the inherent requirements of her job, as she was unable to attend her usual workplace as a consequence of Victorian public health orders that applied to the Respondent. Those orders prohibited the Respondent from permitting the Applicant to work outside her place of residence without proof of vaccination against COVID-19.
The Applicant was represented by her brother, Mr Steven Rivette at the hearing. The Respondent was represented by Ms Catherine Pase of counsel, instructed by Russell Kennedy, with permission to be represented having previously been granted. After consulting with the parties, I also determined to conduct the matter by way of a hearing.
Section 390 of the FW Act provides that the Commission may order a remedy if satisfied that the Applicant was “protected from unfair dismissal” at the time of being “dismissed”, and that the Applicant has been unfairly dismissed.
It was not in dispute that the Applicant was “protected from unfair dismissal”, in that she had completed the minimum employment period and her income was below the high-income threshold. In determining whether the Applicant was “unfairly dismissed”, it was also not in dispute that the Applicant had been “dismissed”, nor was it said that the Respondent was a business to whom the Small Business Fair Dismissal Code applied or that the dismissal was one of genuine redundancy. It was also not in dispute, and I am satisfied, that the application was made within the 21-day period required in subsection 394(2).
Upon the matter being allocated to me, I issued directions setting down steps for the filing of evidence and for a hearing date on 11 November 2022. By request of the Applicant on medical grounds, the original hearing date was vacated. To assist in the progress of the matter, I directed the Respondent to file its material by 31 October 2022 and the Applicant to file her material by 18 November 2022. The matter was relisted for 12 December 2022.
On 31 October 2022, the Respondent filed its witness statements and submissions. Witness statements were filed for Ms Melissa Rattle, a People & Culture Business Partner for Vision Australia, and Mr Senaka Mapa, the Manager of IT Operations and Infrastructure of Vision Australia. Both witnesses were cross-examined.
The Applicant filed part of her documentary material on 18 November 2022, as well as foreshadowing an intention to seek orders to compel the attendance of two employees from the Respondent (being the Chief Executive Officer and Chief People Officer). She also foreshadowed a potential statement from herself, as well as a further adjournment request. I did not accept that it was appropriate for the CEO or Chief People Officer to be compelled to attend and further time was provided for the Applicant to file a statement of her own, as well as to identify the documentary material she relied upon. As the Applicant did not file a witness statement and the scope of the documentary material was clarified, I was satisfied that the proceeding listed for 12 December 2022 could proceed.
The critical issue in dispute at the hearing was whether the dismissal was “harsh, unjust or unreasonable”. As is commonly the case, many of the factual issues did not involve significant differences on a number (but not all) matters but, rather, the differences primarily related to how those facts were applied.
Factual background and findings
The Respondent is a national, not-for-profit organisation that provides a range of in-person disability and healthcare services to blind and low-vision clients. Its operations include occupational therapy, physiotherapy, counselling, speech pathology, orientation and mobility, ophthalmology and optometrist clinics. The Respondent employs over 800 people nationally, which includes over 200 at its head office in Kooyong, Victoria.
The Respondent in its current corporate form is the culmination of various mergers and amalgamations beginning in 2004, when Vision Australia was formed following the merger of the Royal Victorian Institute for the Blind (RVIB), the Vision Australia Foundation, and the National Information Library Services.
The Applicant was first employed with RVIB in May 1995. The employment contract with RVIB indicated she was initially based at RVIB’s office in St Kilda Road, Melbourne. Following the series of amalgamations and mergers described above, the Applicant became employed by the Respondent although no further contracts were in evidence before me. It appears that, since around the time of the amalgamation with RVIB, the Applicant worked at the Kooyong site.
I record this history in part to reflect the time of service by the Applicant with the Respondent and in part because the Respondent contended that there was an implied contractual term in the contract of employment to the effect that Applicant’s work location was required to be the Kooyong site. While I do not consider that such a term is necessary to the outcome of the matter, I am satisfied such a term is appropriate to be implied, given that the Applicant had worked continuously at the Kooyong site since first moving to it.
Since about 2017, the Applicant reported to the Manager of IT Operations, Mr Senaka Mapa. By this time, the Applicant was working in a team, managed by Mr Mapa, known as the Information Systems Group or ‘ISG’ team. The ISG team sat within the broader ‘Technology Services’ team, whose overall function was to support the Respondent’s technology needs. The ISG team helped to design, install and maintain the on-premises and cloud IT Infrastructure, Applications, Security and Helpdesk services for the Respondent.
Both the Technology Services Team and the ISG team were based in Vision Australia’s Kooyong (Victoria), Parramatta (NSW) and Coorparoo (Queensland) offices. Kooyong is the location of Vision Australia’s head office. The ISG team and Technology Services team are primarily based in Kooyong, which is where the Applicant worked.
In around 2019, the ISG team underwent an organisational review. A part of the changes following that review, the Applicant moved into a newly created role of ‘IT Customer Support Specialist – Salesforce’.
Following the impact of COVID-19, Vision Australia was required to make a number of significant adjustments to its operations, including in response to various public health orders made by the Victorian government. From about April 2020 to the end of 2021, the ISG team in which the Applicant worked (and the Respondent’s workforce more generally), worked remotely and did not attend the Respondent’s offices.
As already alluded to, by October 2021, various public health orders under Victorian law had been made in response to the COVID-19 pandemic. Broadly speaking, the effect of a number of those orders up until that point in time was to prohibit employers allowing workers – particularly during what became known as ‘lock down’ periods – to work at places other than their home, albeit there were a number of businesses where relevant authorisations were available that permitted particular staff to work on site.
Beginning in October 2021, a relaxation of those restrictions commenced. That relaxation, however, was coupled with a broadly cast legal requirement that, with relatively few exceptions, had the effect of prohibiting unvaccinated workers from attending their place of work. Those directives, and subsequent iterations applied to the Respondent.
On 7 October 2021, the Acting Chief Health Officer of Victoria signed the “COVID-19 Mandatory Vaccination (Workers) Directions” (Workers Directions) under s.200 of the Public Health and Wellbeing Act 2008 (Vic) (PHW Act). Among other matters, clause 4 of the Workers Directions provided that if a worker “is, or may be”, scheduled to work outside their usual home, the employer must collect “vaccination information” about the worker. The Workers Directions, and subsequent iterations of it, as well as other directions to similar effect, applied to the Applicant.
Under the Workers Directions, the definition of “worker” extended to a “social and community services worker”, which by item (30) of clause 9 was expressly defined to mean a person who works “in connection” with (among others) “disability services”. I am satisfied this applied to the Applicant and it is likely those directions also applied by reason of other categories of “worker” as defined (and I note it was not in dispute that there were public health orders in place that applied to the Applicant’s employment). I am also satisfied those directions applied to the Respondent in relation to the Applicant’s employment.
In about July 2022, the various public health orders and their successors began to be lifted for a number of sectors of the Victorian workforce. The position was different in relation to the Respondent and Ms Rivette’s employment.
On 12 July 2022, the Minister for Health for Victoria made the Pandemic (Workplace) Order 2022 (No. 10) (Order No. 10). Order No. 10 was in force at the time of the Applicant’s dismissal. By item 26(2) of Order No. 10, an employer was not permitted to allow an employee to work outside of their ordinary place of residence unless the employee was “fully vaccinated (boosted)”. I am satisfied that Ms Rivette was not “fully vaccinated (boosted)” for the purpose of Order No. 10 and it was not put by any party to the contrary.
Order No. 10 applied to a “facility worker”, which in turn was defined by reference to a “healthcare worker” and a “healthcare facility”. A healthcare facility included day procedure centres, as well as health clinics. I am satisfied that Vision Australia was a “healthcare facility” for the purposes of Order No. 10. A “healthcare worker” included employees of a healthcare facility working in “administrative and ancillary roles”, which was specifically defined to include “information technology”. I am satisfied that the Applicant was a “healthcare worker” for the purposes of Order No. 10.
What was of greater contention between the parties were the Applicant’s duties that Mr Mapa (and Ms Rattle) stated were required to be performed onsite following the return of workers to Vision Australia’s office, as outlined above.
There was a position description for Ms Rivette’s role of “IT Customer Support Specialist – Salesforce”. The position description was created in 2019 and remained unchanged by the date of Ms Rivette’s dismissal. The position description set out the broad areas of the Applicant’s responsibilities, which were largely uncontentious. From time to time, Mr Mapa directed the Applicant to perform specific duties within those areas of responsibilities.
The reference to ‘Salesforce’ is to a customer relationship management software under that name, which was software used by the Respondent as part of its operations. The Salesforce software was used by all client-facing staff at the Respondent to review and record client information relating to the services provided. It was used by clinical staff to maintain accurate client records and for service billing.
Mr Mapa gave evidence that, during the period when employees were required to work at home, the majority of the ISG team’s helpdesk activities could be sufficiently performed remotely. He also gave evidence that “upskilling and coaching activities” that were previously performed in person were performed online. He also stated that, since February 2022, the ISG team was now planning to introduce in-person upskilling of staff members for commonly reported issues. Mr Mapa said he required his team to spend “at least” two days per week in the office for full-time staff unless there were specific circumstances to prevent that attendance.
The first onsite requirement for the Applicant that Mr Mapa (and Ms Rattle) identified was the requirement to “Liaise with Client Services Management and staff to support the data gathering and recording system of Salesforce (CMS/VMS)”. In relation to this requirement, Mr Mapa says that Ms Rivette was required to have the ability to travel to all Vision Australia offices to engage with managers and staff to provide in-person support in respect of Salesforce. I accept that proposition, and I also note that Ms Rivette’s position description from 2019 described one of her “Essential Job Competencies” was to provide staff support and service “in person, by telephone and electronically” (my emphasis).
Mr Mapa also stated that most of the ISG team, including the Applicant, were based at the Kooyong office. He stated it was “vital” that the team had the ability to be able to work from the Kooyong office to engage with each other and problem solve together in the office from time to time.
Mr Mapa also stated that the ISG team - and the Applicant - were required to provide in person support at the Kooyong office when “walk in” requests were made, which he said occurred “regularly”. The team, including the Applicant, were also required to travel to other Vision Australia offices if required. In the latter respect, I also note that the Applicant’s position description provides that “Ability to travel independently is required”.
Mr Mapa also gave evidence he considered it was necessary for the Applicant, in the performance of her role, to attend the Kooyong office to engage in team meetings, team building activities, development sessions and to receive onsite training. Mr Mapa also considered those activities to be very important to fostering a team culture. He also considered that face-to-face contact is better for building relationships and teamwork would suffer without regular contact with colleagues.
While I note that Ms Rivette did not give evidence, Mr Mapa was challenged in his evidence regarding a number of the above functions and duties.
For example, it was put to Mr Mapa that the Applicant did not, as a factual matter, travel to other offices prior to the work-from-home period that commenced in April 2020. Mr Mapa was unable to give an example of such travel occurring and I infer that Ms Rivette did not, at least in the 2019 period, attend work locations other than at the Kooyong site or if she did so it was rare.
In relation to “walk in” work, it was put to Mr Mapa that walk-in requests for assistance were discouraged. Mr Mapa agreed with that proposition. It is necessary to briefly explain what these requests involved. An important part of the Applicant’s role was to provide support to other staff about the Salesforce function. While the evidence was not clearly explained in the material before me, the Respondent had an internal ‘helpdesk’ where staff could log problems for assistance. While the exact scope of the helpdesk activities were unclear, the helpdesk was a resource for staff affected by technology or IT problems or questions, including Salesforce.
Although Ms Rivette was not a member of the helpdesk, the helpdesk was a function of the ISG team. Matters that could not be resolved by the helpdesk could be elevated to Ms Rivette where, I infer, they related to her Salesforce support role.
A request to the helpdesk was “ticketed” or “logged”. Where the request was made online, the ticket was issued automatically. It was partly for this reason that “walk in” requests for help were discouraged, as such requests were not automatically ticketed but instead had to be separately entered. I infer that another reason it appears why walk in requests were discouraged, was because the centralised system of ticketing allowed for a specific request to be more efficiently allocated to an appropriate person for resolution.
Mr Mapa explained that the ticketing system does not record whether a request was made via the helpdesk or by a walk in (or a direct telephone request outside of the helpdesk). While the exact proportion of walk-in requests was unclear, it appears that most requests are made via the helpdesk. Notwithstanding the discouragement of walk-in requests, I accept Mr Mapa’s evidence was that they still occurred “regularly”.
Mr Mapa was examined about the person who replaced the Applicant following the termination of her employment. Her replacement was another employee, located in the Queensland office. While the replacement employee works in an office environment – not from home - Mr Mapa agreed that the new employee has not attended the Kooyong office (and, I infer, is unlikely to do so for regular duties other than rarely, if at all).
It was put to Mr Mapa that the fact that the Applicant’s replacement was located in Queensland suggests that the walk-in duties for Ms Rivette at Kooyong were not essential or not required at all for her role. Mr Mapa disagreed. He also noted that, in respect of the Salesforce functions, the team leader of the help desk had progressively been “upskilled” and that person (and, it appears, other members of the team) has been taking responsibility for walk in requests at Kooyong in the Applicant’s absence from the office while she was working at home.
In relation to Ms Rivette’s replacement, Mr Mapa gave evidence that the replacement employee has the same job description as Ms Rivette, but he is still learning a number of new matters. He currently performs the role with a Salesforce administrator for assistance.
I accept Mr Mapa’s and Ms Rattle’s evidence (the salient aspects being set out above) and consider that each of them were doing their best to give honest and straight-forward evidence.
A final factual matter concerns one aspect of how the Applicant put her case before me. In her summary submissions filed very shortly before the hearing commenced, Ms Rivette asserted in various places that the reasons for her dismissal were “deliberately contrive[d]”, a “strategy” based on “deceit”, and was “deceitful, obfuscatory and deliberately misleading”. While it appears that the Applicant’s representative sought to disavow the Applicant from those statements in closing submissions, that disavowal was made in the context of the Respondent’s submissions regarding the inappropriateness of any potential reinstatement. I do not accept that disavowal as the material includes numerous emails in the Applicant’s name prior to her dismissal to similar effect to her submissions and, while those emails were also drafted by her brother, they were sent in her name and a number were personally forwarded by her. In the lead up to the hearing, Msa Rivette also signed a statutory declaration, in which she authorised Mr Rivette to act on her behalf. I would not order reinstatement if I found the dismissal to be unfair. However, so far as those factual matters concerning deceit (etc) were pressed, I reject them.
Return to work requests
It is not necessary to record all the communications that occurred between the Applicant and Respondent prior to her dismissal. Most are set out in the statement of Ms Rattle, whose evidence I accept. A brief summary follows.
Beginning in October 2021, following the changes to the public health orders described above, the Respondent sent out various communications regarding the public health vaccination requirements. There were also specific discussions held with Ms Rivette regarding that issue. Ms Rivette was not at the time relevantly vaccinated.
On 2 December 2021, Ms Rattle sent Ms Rivette an email documenting a discussion they had had that day. The email agreed to “extend” a “temporary remote work arrangement” until 31 January 2022. The email stated, “if you remained unvaccinated for COVID-19 we could not continue to accommodate you working from home in your role of full time IT Customer Support Specialist as an inherent requirement of the role is the ability to be onsite to engage with the team and complete training as required”.
On 14 December 2021, the Respondent’s CEO sent out an email to all staff titled “Merry Christmas and here's to better days ahead in 2022”. Among other matters, the email stated:
“While agile work practices will remain, and flexibility is a core part of who we are, there is something about face to face connections that cannot be underestimated. In 2022, I expect everyone to come into the office more, attend team meetings and be able to participate in training in person to connect with colleagues and others in the organisation.
It's all about balancing the interests of our clients, with our lives outside of work, and the needs of Vision Australia. I ask that you all work with your manager to find the best balance of work environments in 2022.”
I accept that the above extract reflected the corporate position and preference of the Respondent and there was no reason for me to doubt it (noting again the contentions regarding “deceit” originally advanced by the Applicant).
On 17 December 2021, the Applicant was sent a letter titled “Letter of Notification” which set out various matters regarding the requirement to work onsite and to be vaccinated. The letter foreshadowed the possible termination of the Applicant’s employment by 31 January 2022 if she was not relevantly vaccinated or exempt. The temporary remote work plan was reiterated.
Further emails in December 2021 were also exchanged with the Applicant individually. It is not necessary to summarise them.
At a meeting on 20 January 2022, the Applicant’s temporary remote work arrangement was extended by agreement to 28 February 2022. During the meeting, the Applicant indicated she was discussing medical exemptions (i.e. as applicable to the COVID-19 public health orders) with her doctor and was also exploring the potential of the Novavax vaccination.
In February 2022, further meetings and correspondence ensued. Again, it is not necessary to set out the detail. Suffice to say that much of those exchanges concerned requests by Ms Rivette for further time while she pursued medical requests or considered her position regarding Novovax. On 24 February 2022, Ms Rivette signed a document indicating a commitment to obtain the Novavax vaccine. During this period, the temporary remote work arrangement was extended to 31 March 2022, with a review of it to occur by mid-March.
The review of the latest remote work agreement in fact occurred slightly later, on 29 March 2022. At that meeting, Ms Rivette confirmed she remained unvaccinated, did not have a valid medical exemption, and was still exploring the Novavax option. Ms Rattle indicated at that meeting that further remote work extensions would not be granted beyond 31 March 2022 and she would be provided with 5 weeks’ notice of the termination of her employment.
On 31 March 2022, Ms Rivette’s remote work arrangement was extended until 5 May 2022, which equated to the 5 week notice period. The correspondence stated that if she was not vaccinated before that time, Ms Rivette’s employment would be terminated.
Further communications ensued through April 2022 (and, from 7 April 2022, largely with Ms Rivette’s brother on her behalf). On the Applicant’s behalf, most was drafted by Ms Rivette’s brother, although she forwarded the correspondence by email to the identified addressees. The correspondence was voluminous. It canvassed a range of matters, including (primarily) requests to rescind the foreshadowed termination of employment, correspondence with the Therapeutic Goods Administration about Novavax, statements from the Victorian Premier said to demonstrate that the public health orders would be lifted, and other matters.
This correspondence also sought to demonstrate that Ms Rivette had been performing her duties successfully while working remotely and challenged any “inherent requirement” that she be required to attend the Kooyong site. The correspondence asserted the Respondent was engaged in a “spurious, concocted and coercive strategy”.
Notwithstanding, it was agreed that the Applicant would be able to take a combination of annual and long service leave from 5 May 2022 to 14 July 2022. The correspondence documenting that arrangement stated that, absent vaccination by that latter date, the Applicant’s employment would be terminated because she would be unable to attend the workplace and therefore perform the inherent requirements of her role.
While voluminous correspondence ensued in May and June 2022, the position remained unchanged. On 12 July 2022, the Respondent wrote to Ms Rivette setting out that she remained unvaccinated and unable to perform the requirements of her role, which included attendance on site. The Applicant was granted an additional week of paid leave to reconsider her position but, failing receiving a first dose of a vaccine or a medical exemption by 21 July 2022, her employment would be terminated.
While further correspondence ensued (which I will not set out), the Applicant did not obtain a medical exemption or vaccination and she was given written notice of the termination of her employment on 21 July 2022. The reasons for dismissal reflect the matters already described.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the FW 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.
I set out my consideration of each below.
Whether valid reason for the dismissal related to the Applicant’s capacity or conduct – s.387(a)
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[1] and should not be “capricious, fanciful, spiteful or prejudiced.”[2] However, the Commission will not “stand in the shoes of the employer” and determine what the Commission would do if it was in the position of the employer.[3]
There are two components to the Respondent’s contention that there was a valid reason. The first rests upon the requirements it said existed by non-compliance with Order No. 10, which was applicable at the time of the Applicant’s dismissal, if the Applicant worked outside of her home. The second concerns the contention that an inherent requirement of the Applicant’s employment required her to perform at least some of her role on-site.
There was no challenge to the Victorian public health orders before me and, in any case, for the reasons set out above, I am satisfied they were applicable. Rather, the disputed issue was whether or not there were inherent requirements of the Applicant’s role that required her to work on-site.
Inherent requirements
Having regard to the detailed submissions filed for the Applicant regarding the issue of the inherent requirements of her role and her representative’s candid concession that, if she failed to succeed on that point, then it was likely her case would fail, I will set out my reasoning in some greater detail on this point.
I would note at the outset that the term “inherent requirement” is not a term used in s.387 of the Act. In some respects, the term is used in a shorthand way to identify circumstances where there might be a “valid reason” that was “related to a person’s capacity” for the purpose of s.387(a) of the FW Act. In the case before me, that is how the Respondent relied upon the concept.
In J Boag & Son Brewing Pty Ltd v Button (2010) 195 IR 292; [2010] FWAFB 4022 (Boag), the Full Bench of Fair Work Australia considered the requirements of a person’s capacity to perform the inherent requirements of a position or role in the context of a valid reason for dismissal. They stated (footnotes omitted):
[22] When an employer relies upon an employee’s incapacity to perform the
inherent requirements of his position or role, it is the substantive position or role
of the employee that must be considered and not some modified, restricted
duties or temporary alternative position that must be considered.[23] In X v Commonwealth the High Court was concerned with an allegation of
discrimination on the grounds of disability contrary to the Disability Discrimination Act 1992 (Cth) by a solider who had been dismissed from the army on account of being HIV positive. Section 15(4) of that Act contains an exemption from liability if the person “would be unable to carry out the inherent requirements of the particular employment”. Gummow and [Hayne] JJ addressed the notion of “inherent” requirements:[102] The reference to “inherent” requirements invites attention to what are the
characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral … [T]he requirements that are to be considered are the requirements of the particular employment, not the requirements of employment of some identified type or some different employment modified to meet the needs of a disabled employee or applicant for work.
[24] Although the High Court was concerned with the meaning of the expression “inherent requirements” in a statute, this analysis is equally applicable to a consideration of what constitutes the “inherent requirements” of a position as a valid reason for dismissal. Thus, in Hail Creek Coal Pty Ltd v CFMEU a Full Bench noted:
[124] The phrase “inherent requirements” has been judicially considered to mean something that is essential to the position. [See generally X v The Commonwealth (1999) 200 CLR 177] To determine what are the inherent requirements of a particular position usually requires an examination of the tasks performed, because it is the capacity to perform those tasks which is an inherent requirement of the particular position. [Qantas Airways Ltd v Christie (1998) 193 CLR 280 at 304 per McHugh J] As her Honour Gaudron J said in Qantas Airways Ltd v Christie (at 295):
A practical method of determining whether or not a requirement is
an inherent requirement, in the ordinary sense of that expression, is
to ask whether the position would be essentially the same if that
requirement were dispensed with.
[25] In Qantas Airways Ltd v Christie Gaudron J, with whom Brennan CJ agreed,
noted that the expression “inherent requirements”, in its natural and ordinary meaning “directs attention to the essential features or defining characteristics of the position in question”. Her Honour noted:[33] There may be many situations in which the inherent requirements of a particular position are properly identified as the characteristic tasks or skills required for the work done in that position. But that is not always so. In the present case, the position in question is that of captain of B747-400 aircraft flying on Qantas’ international routes, a matter as to which there is no real dispute between the parties. To identify the inherent requirements of that position as “the characteristic tasks or skills required in being a pilot”, as did Marshall J in the Full Court, is to overlook its international character.
[34] Moreover, the international character of the position occupied by Mr Christie cannot be treated as irrelevant simply because it derives from his contract of employment or from the terms and conditions of the industrial agreements which have, from time to time, governed his employment with Qantas. It is correct to say, as did Gray J in the Full Court, that an inherent requirement is something that is essential to the position. And certainly, an employer cannot create an inherent requirement for the purposes of s 170DF(2) by stipulating for something that is not essential or, even, by stipulating for qualifications or skills which are disproportionately high when related to the work to be done. But if a requirement is, in truth, essential, it is irrelevant that it derives from the terms of the employment contract or from the conditions governing the employment relationship.
[26] Gaudron J also noted that the fact that a requirement is stipulated in an employment contract does not, of itself, direct an answer one way or another as to the question whether it is an inherent requirement of the particular position in question.
Boag was a matter where the inherent requirements considered arose out of the context of an employee’s injury. There have been numerous recent cases in the Commission where the requirement to perform work on-site at a particular location have been held to be an inherent requirement of a role in the context of COVID 19 public health orders.
In X v Commonwealth,[4] other factors considered (in that matter) included the place of work. At [103], Gummow and Hayne JJ stated:
“[103] It follows from both the reference to inherent requirements and the reference to particular employment that, in considering the application of s 15(4)(a), it is necessary to identify not only the terms and conditions which stipulate what the employee is to do or be trained for, but also those terms and conditions which identify the circumstances in which the particular employment will be carried on. Those circumstances will often include the place or places at which the employment is to be performed and may also encompass other considerations. For example, it may be necessary to consider whether the employee is to work with others in some particular way. It may also be necessary to consider the dangers to which the employee may be exposed and the dangers to which the employee may expose others.”
A different circumstance was considered by the Full Bench decision in Pettifer v MODEC Management Services Pty Ltd[2016] FWCFB 5243. In that matter, Mr Pettifer had been employed by the labour hire company, MODEC. MODEC supplied services (including the services of Mr Pettifer) to BHP Billiton Petroleum Inc. Following an incident, BHPB exercised a contractual right to remove Mr Pettifer from its site. While MODEC did not agree with BHPB’s decision, MODEC terminated Mr Pettifer’s employment. While Mr Pettifer’s challenge to that dismissal was successful at first instance, the Full Bench held:
“[33] Consequently we have concluded that the Commissioner was in error in her conclusion that the circumstances of the termination of Mr Pettifer’s employment did not give rise to valid reason considerations. Mr Pettifer’s incapacity to work on the BHPB Site arose directly from the BHPB prohibition on his returning to work on that site, as distinct from any dispute over his conduct. As a consequence, Mr Pettifer was incapable of working on the BHPB Site in a manner which was akin to a bar or the loss of a form of licence, essential to his capacity to work. Hence Mr Pettifer’s capacity was a factor which required a conclusion in terms of whether it represented a valid reason for the termination of his employment.”
In summary, it is the substantive role of the Applicant that requires consideration, not a modified or altered form of her role (whether to accommodate her preference to remain working at home or whether from the temporary arrangements during the “lock down” periods.) As to whether there was an inherent requirement for the Applicant to perform her work onsite, I am satisfied there was. I have accepted the evidence of Mr Mapa and Ms Rattle about these matters, which I have set out above. That evidence supports a number of independent bases as to why an inherent requirement of Ms Rivette’s role required her to physically be on site for at least some of the time.
First, the Applicant’s role required her to assist with “walk in” requests. That feature had always been part of her role prior to COVID-19, and it remained a business need to be addressed following the return of staff to the office at Kooyong. While walk in requests were discouraged, the practical reality was that walk in requests occurred regularly and were likely to do so for the foreseeable future. The absence of Ms Rivette being on site meant that work was required to be performed by others (notably, the helpdesk team who were being progressively trained to meet that gap.)
Second, it was an express requirement of the Applicant’s role that she have the ability to travel to other sites (in addition to the Kooyong site) to provide in person support for Salesforce. While those requirements for other sites were historically rare, the same could not be said for the Kooyong site itself. Moreover, the need for in person support for Salesforce and upskilling of other staff was being prepared and planned for. Ms Rivette would plainly have had a role in those endeavours, which would require her to perform that work in person.
Third, Ms Rivette was required to be present in person for activities such as team building, development sessions and onsite training. Moreover, Mr Mapa considered that these were important for fostering a positive team culture. Mr Mapa’s views were reflected at the highest levels of the company, namely the CEO.
The Applicant’s argument advocating for a permanent fully-remote arrangement tended to adopt a task-based analysis, focussing on some specific tasks that were performed while she was required to work at home. In doing so, this would require adjustments to her permanent role to remove any responsibility to perform in person work (which would have to be performed by other people or not at all).
However, the performance of particular tasks is only one aspect.
As the evidence shows, there are less tangible benefits of having people working physically together, particularly for a positive team culture, including face-to-face meetings and training. While they are less tangible, that does not make them less important. Even if I accepted the Applicant’s challenges regarding the need for her to conduct work onsite (which I do not), the Respondent’s desire for face-to-face interactions and collaboration were clearly matters of importance to it. While I accept these are matters that different employers might place a different level of emphasis upon, the Commission will not “stand in the shoes” of an employer regarding reasonable judgments about such matters.[5] The Respondent’s position was reasonable. While many (but not all) of the tasks performed by the Applicant had been performed remotely for nearly two years, it is clear that the Respondent considered a wholly-remote working arrangement as a second-best option. While a second-best option during the periods of “lockdown” may have been the only option at that time, that was no longer the case once staff were permitted to return to the office. It was reasonable for the Respondent to expect staff to return to the office.
The engagement of the Applicant’s replacement, who was located in Queensland, does not change the above conclusions. All this shows is that the Respondent was required to make adjustments following the dismissal of the Applicant. Had the Applicant been onsite, those adjustments would not have been necessary.
I also consider it relevant that, before the COVID-19 pandemic, the Applicant worked onsite. I consider it would be a peculiar result if, in those circumstances, it could be said that an inherent requirement of the Applicant’s permanent role (i.e. not a role modified to accommodate the circumstances of responses to COVID-19) had no onsite requirement at all.
The Respondent contended that there was an implied term of the Applicant’s contract of employment to the effect that her permanent place of work location was Kooyong. I accept this contention, however even if this were not the case, I am satisfied that the Respondent would be entitled to issue a lawful and reasonable direction to the Applicant to attend the Kooyong premises for the functions Mr Mapa identified. Such functions fall squarely within the Applicant’s position description.
As the Applicant was not vaccinated in satisfaction of the requirements of Order No. 10, she could not attend the Kooyong premises (or other locations she might be directed to attend) and therefore she could not meet the inherent requirements of her role.
In summary, I consider there was a valid reason for the Applicant’s dismissal.
Was the Applicant notified of the valid reason – s.387(b)?
Proper consideration of s.387(b) requires a finding to be made as to whether the applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a).[6]
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[7] and in explicit and plain and clear terms.[8]
I am satisfied that the Applicant was given notification of the reasons for dismissal, beginning 9 December 2021, if not earlier. In the correspondence that followed, the position was restated clearly.
Having regard to the matters referred to above, I find that the Applicant was notified of the reason for her dismissal prior to the decision to dismiss being made, and in explicit and plain and clear terms.
Whether opportunity to respond to any valid reason related to their capacity or conduct – s.387(c)
An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[9]
The opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly.[10] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[11]
I am satisfied that the Applicant was given an opportunity to respond and that she did so, particularly in the correspondence from December 2021 onwards, and from April 2022 with the assistance of her brother.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal – s.387(d)?
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
The Respondent invited the Applicant to have a support person, beginning in the correspondence to her on 17 December 2021. I do not consider there was any “refusal”, let alone an “unreasonable refusal” for her to have a support person, and I treat this factor neutrally.
Was the Applicant warned about unsatisfactory performance before the dismissal – s.387(e)?
As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
To the contrary, the evidence indicates that Ms Rivette was a valued employee who performed her role well. In this respect, I would also note that Ms Rivette was granted an additional week of special paid leave to reconsider her position, even after her other leave entitlements had been exhausted.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal– s.387(f)?
I find that the size of the Respondent’s enterprise had no such 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 - s.387(g)?
It was not submitted that the Respondent’s enterprise lacked dedicated human resource management specialists or expertise. I find that the Respondent’s enterprise did not lack dedicated human resource management specialists and expertise, and that there was no relevant impact on the procedures that followed as a result.
What other matters are relevant - s.387(h)?
I take into account that the Applicant was a long-term employee of the Respondent, having worked with the Respondent and its corporate predecessors since 1995 with RVIB and 2004 when Vision Australia was established (and in either case, I consider these represent a significant length of service). She was a valued member of her team.
I also take into account the Applicant’s age, being over 70 years, and the economic circumstances that the dismissal will have on her. These are matters in the Applicant’s favour.
I have addressed other matters raised by the Applicant above and, so far as I have, I also consider whether they might independently be factors that would lean in favour of a finding that the dismissal be unfair. I do not consider they do, whether separately or in combination. There was no other matter put before me that I consider would also point to a different conclusion.
Conclusion
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.[12]
Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable.
There was an inherent requirement that some of the Applicant’s work was to be performed in-person at her workplace. By reason of the operation of the Victoria public health orders, as variously applied up to and including Order No. 10, which the Respondent was required to comply with, she was unable to meet (and it was tolerably clear she would not be meeting) the inherent requirements of her role.
Those matters gave the Respondent a valid reason to dismiss the Applicant. I consider that the Respondent afforded procedural fairness to the Applicant prior to making the decision to bring her employment to an end. I do not consider there are other matters that, taken individually or together with the other factors, would render the dismissal unfair.
Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act.
The Applicant’s application is therefore dismissed. An order to this effect will be issued separately. [13]
DEPUTY PRESIDENT
Appearances:
Steven Rivette on the Applicant’s behalf
Catherine Pase of counsel for the respondent (instructed by Russell Kennedy)
Hearing details:
2022.
Melbourne (by video via Microsoft Teams and Telephone):
December 12.
[1] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[2] Ibid.
[3] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[4] X v Commonwealth [1999] HCA 63, [102].
[5] Cf, Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681 op cit.
[6] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
[7] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[8] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
[9] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
[10] RMIT v Asher (2010) 194 IR 1, 14-15.
[11] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[12] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
[13] PR749451.
Printed by authority of the Commonwealth Government Printer
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