Louis Eljiz v Dnata Airport Services Pty Ltd T/A dnata

[2022] FWC 2180

[2022] FWC 2180

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Louis Eljiz
v

Dnata Airport Services Pty Ltd T/A dnata

(U2022/1548)

DEPUTY PRESIDENT EASTON SYDNEY, 16 AUGUST 2022

Application for an unfair dismissal remedy – refusal to be vaccinated against COVID-19 – public health orders – valid reason found – dismissal was not harsh, unjust or unreasonable – application dismissed.

1. Mr Louis Eljiz was employed by Dnata Airport Services Pty Ltd for approximately 12 years. At the time of his dismissal he was employed as a Ramp Service Delivery Agent and his primary duties were to load and unload cargo from planes at Kingsford Smith Airport, Sydney.

1. Like many employees in the workforce in late 2021, Mr Eljiz’s employment was subject to a Public Health Order which prevented him from attending work unless he was vaccinated against COVID-19.

1. Unfortunately Mr Eljiz refused to be vaccinated/refused to provide proof of vaccination by a nominated date and his employment was terminated.

1. Perhaps less typical of the many cases already heard and determined in the Commission in similar circumstances, at the time of dismissal Mr Eljiz was on a period of unpaid carer’s leave and had told Dnata that he planned to be vaccinated by the time he was due to return to work. Dnata was not prepared to wait and dismissed him while on approved carer’s leave.

1. For the reasons that follow I find that Mr Eljiz was not unfairly dismissed and that his unfair dismissal application must be dismissed.

The evidence

1. The evidence relied on by Mr Eljiz was poor. He did not file any statements of evidence nor did he file any outlines of submissions as directed. For his first round of evidence/submissions Mr Eljiz filed copies of three emails. None of those three emails were relied upon as evidence at the hearing and in fact the only evidence in chief relied upon by Mr Eljiz was an email he sent to the Commission the day before the hearing after being asked whether he intended to file any evidence in reply.

1. There were, however, several emails exchanged between Mr Eljiz and Dnata in the final three months of employment and eventually most if not all those emails found their way into evidence in the proceedings.

1. Dnata led evidence from Ms Clarice Gillies, HR Advisor, who was cross-examined by Mr Eljiz’s representative. Ms Gillies gave evidence about Dnata’s operation at Sydney Airport, evidence that Dnata employs approximately 1950 people in Australia supplying services to customer airlines, the impact of COVID-19 on Dnata’s operations and the ramping up of operations in late 2021 as airlines returned to more normal levels of operation. Ms Gillies also provided evidence of the communication with Mr Eljiz about vaccination and the process undertaken that ultimately resulted in Mr Eljiz’s dismissal.

1. From 1 November 2021 Public Health (Covid 19 Air Transportation Quarantine) Order (No 3) 2021 (“PHO”) required Mr Eljiz to be vaccinated to attend his work at Sydney Airport. There is no dispute as to the effect of the PHO and Mr Eljiz accepted that he knew the requirements of the order at all relevant times.

1. Mr Eljiz did not work after 1 November 2021.

1. From 8 November 2021 Mr Eljiz was on carer’s leave to provide care to his father, who had been in an accident. Initially Mr Eljiz provided a statutory declaration to Dnata about his father’s needs. The Statutory Declaration was not questioned for several weeks by Dnata because several employees all stopped work on 1 November 2021 because of the PHO. Mr Eljiz’s absence was assumed for several weeks to be because of his vaccination status rather than because of his carer’s leave.

1. Eventually Dnata asked for medical evidence of Mr Eljiz’s father’s needs. Mr Eljiz thought that Dnata was acting unfairly in requiring this medical evidence and took issue with Dnata via email about the request. Eventually Mr Eljiz provided a medical certificate relating to his father’s illness which satisfied Dnata’s enquiries.

1. After 1 November 2021 Dnata dealt with its unvaccinated staff, including Mr Eljiz. Dnata pressed Mr Eljiz to provide proof of vaccination by the dates nominated in its policy. Dnata was entitled to do so because it needed to plan its staffing levels at a time when aviation activity was increasing. As Ms Gillies said in her statement:

   “As a result of Covid and restrictions thereto, dnata has had a significant part of its workforce stood down which led to almost 35% of our workforce seeking employment in other industries within the first 6-12 months.

   With the rapid return of international flying around in late 2021 and airlines aggressively returning back to pre COVID flying numbers the aviation industry is unable to keep up with the demand more specifically ground handling.”

1. Dnata wrote to Mr Eljiz on 7 November 2021 referring to the PHO, indicating that Mr Eljiz could not be rostered for work because he was not vaccinated, and advised Mr Eljiz that he was required to confirm in writing by 9 November 2021 whether he was vaccinated or to state that he did not intend to be vaccinated. Mr Eljiz does not appear to have responded to this email at all.

1. On 24 November 2021 Dnata requested a formal meeting with Mr Eljiz “regarding the public health order and your intentions on complying”. Mr Eljiz replied on the same day as follows:

   “Hi

   I am on personal leave until January. I have intentions on following the public health order and complying. I will not be able to attend the meeting as I am currently on personal leave. I hope you understand, please forward all communication via email.

   Thanks.”

1. Dnata wrote again on 7 December 2021, in terms including the following:

   “As you may not be aware but the demand for international travel is increasing which is creating resourcing challenges within our industry and we now need to have all employees engaged and working.

   We note that you have a preference not to meet with us and in order to respect your wish we will not insist that we meet at this stage. You have indicated in previous correspondence that you intend to receive the vaccination, but to date, we have not received a confirmation of a booking or a copy of your Covid 19 vaccination certificate. We understand that this is a personal choice and have allowed an extended period of time for you to seek advice from your medical practitioner. We now require you to provide a written response to the attached letter by no later than 1800, Thursday 9 December 2021.

   This response is required so we are able to understand your intention to comply with the Public Health Order and therefore your ability to meet an inherent requirement of your role as an airport worker.”

1. Mr Eljiz’s reply on 9 December 2021 included the following:

   “As mentioned previously, I am on personal leave, currently looking after my father who is currently ill. I return to work in January my plan is to have my covid vaccination when I return to work.

   If only the company showed the same energy and determination for compliance on the vaccination matter as they have with [another matter that appears to call into question Dnata’s compliance with other certain requirements]. Please keep this in mind when you want to discuss compliance.

   Hopefully this clarifies my stance in my intent to comply and that I stopped getting harassed with emails that constantly ask for the same information.”

1. In corresponding with Dnata Mr Eljiz did not ever provide a reason for why he had not been vaccinated or why he could not be vaccinated straight away. I recognise that there is a tension between the respective interests at this point. Mr Eljiz was not due to be at work until the end of March so Dnata’s insistence that he be vaccinated by the middle of January might appear unreasonable. On the other hand, Dnata wanted some assurance that Mr Eljiz would in fact get vaccinated and was not just stalling for time.

1. In my mind the issue between the parties became one of trust. Mr Eljiz said in his evidence that he thought Dnata told lies to its employees. Mr Eljiz told Dnata he was prepared to be vaccinated but provided no further proof or assurance that he would be vaccinated. Dnata was not prepared to take Mr Eljiz’s statements at face value.

1. Unfortunately the stalemate in the correspondence was broken by Mr Eljiz deciding to attack Dnata about other matters. In his emails Mr Eljiz took issue with Dnata’s request that he provide a medical certificate about his father’s health, alleging that Dnata breached the enterprise agreement covering his employment. Mr Eljiz also raised some kind of historical underpayment of wages, which he apparently had never raised before. Mr Eljiz also raised allegations about another matter and threatened to report Dnata to a regulator. I will not describe the nature of the allegations raised because the allegations have no connection at all to COVID-19 vaccination and appear to have been raised with Dnata vexatiously.

1. In his closing submissions Mr Eljiz suggested that “the communication was not clear on both sides”, which I reject. Almost all the communication between Mr Eljiz and Dnata was by email. Having read all the emails, at least all of the emails tendered in evidence, the communication was quite clear. For better or worse Mr Eljiz became increasingly hostile and uncooperative in his communication with Dnata and eventually Dnata, quite reasonably, lost patience.

1. Perhaps the real test of the ongoing viability of Mr Eljiz’s employment came on 10 January 2022 when Dnata offered Mr Eljiz alternative duties at a location close to the airport in a position where he would not have to be vaccinated. Mr Eljiz did not respond to this offer at all. It seems reasonably apparent that when this offer was made Mr Eljiz had already resolved that his time at Dnata was coming to an end. By January 2022 Mr Eljiz knew that his employment was at risk but he grabbed none of the lifelines Dnata threw to him.

Consideration

1. Section 387 of the FW Act requires me to take into account the following matters in determining whether Mr Eljiz’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.

1. 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?

1. 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 reason (s) for dismissal the Commission will not stand in the shoes of the employer and determine what the Commission would do in the same position.

1. Dnata relied on the following two reasons for dismissal:

(a)Reason 1 – Mr Eljiz did not have capacity to lawfully perform the inherent requirements of the Ramp Service Delivery Agent to enter Sydney Airport because he had not complied with the Vaccination Requirement; and

(b)Reason 2 – Mr Eljiz had failed to comply with Dnata’s lawful and reasonable direction to comply with the Proof of Vaccination Requirement during the period from 1 November 2021 to 18 January 2022.

1. There is no doubt that Reason 1 above is a valid reason for dismissal. The parties accept that the PHO applies to Mr Eljiz’s employment.

1. Reason 2 requires more nuanced consideration because of issues of timing and the fact that Mr Eljiz was on approved carer’s leave. Dnata insisted that Mr Eljiz provide proof of vaccination by a date many weeks before he was due to return to work.

1. Mr Eljiz told Dnata that he was prepared to be vaccinated but clearly Dnata had its doubts. Dnata’s suspicions, and therefore its insistence that Mr Eljiz provide proof of vaccination, was reasonable in the circumstances.

1. At the time Dnata was under significant pressure to ensure its operation was properly staffed. From what it knew, it was quite feasible that Mr Eljiz had no intention of being vaccinated but every intention of extending his employment for as long as possible before leaving.

1. More importantly, there was no apparent reason why Mr Eljiz had not already been vaccinated, and he certainly did not give Dnata any reason why he had not been vaccinated.

1. Before 1 November 2021 Mr Eljiz’s employment was not dependent upon him being vaccinated. Quite obviously, during this period Mr Eljiz had chosen not to be vaccinated, as was his right. After 1 November 2021 Mr Eljiz was off work caring for his injured elderly father, including taking his father to medical appointments. The benefit of Mr Eljiz being vaccinated while he was caring for is elderly parent and attending medical facilities is obvious, as were the risks of him doing so without being vaccinated. In my view Mr Eljiz’s decision to do these things without being vaccinated dramatically undermined his bare assertion that he was prepared to be vaccinated.

1. Further, Mr Eljiz’s hostile responses to the enquiries from Dnata did nothing to quell Dnata’s concerns. In fact, Mr Eljiz did not directly engage with any of the reasonable requests made by Dnata about his vaccination status, and instead he responded with aggressive complaints about matters that had no connection at all to his vaccination status. That is, not only did he not answer Dnata’s direct questions about vaccination, but his responses also picked new fights that no doubt damaged any ongoing employment relationship.

1. In these circumstances, Mr Eljiz’s failure to provide proof of vaccination by January 2022, particularly after more than two months of follow-up from Dnata, was a valid reason for dismissal even though Mr Eljiz was not due to return to work for some weeks.

Procedural Fairness

1. Section 387(b) requires me to take into account whether Mr Eljiz “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.[1] There is no doubt that Mr Eljiz was notified of the reasons for his dismissal (s.387(b)).

1. Mr Eljiz was also given a proper opportunity to respond to the allegations against him (s.387(c)).

Other factors – s.387

1. Dnata did not have discussions with Mr Eljiz relating to the dismissal, although it did invite such discussions. The parties communicated by email and so the absence of a support person in these communications (s.387(d)) does not affect the fairness of the dismissal in this matter.

1. As the dismissal did not relate to unsatisfactory performance, the fact that Mr Eljiz was not warned about unsatisfactory performance (s.387(e)) does not affect the fairness of the dismissal.

1. Similarly, the size of Dnata’s enterprise (s.387(f)) and the availability of dedicated human resource management expertise (s.387(g)) do not affect the fairness of the dismissal.

1. There are no other relevant matters (s.387(h)) that impact upon the fairness of the dismissal of Mr Eljiz.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

1. 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.

1. Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of Mr Eljiz was not unfair. There were valid reasons for his dismissal and he was afforded procedural fairness.

1. Accordingly, I will separately make an order that Mr Eljiz’s unfair dismissal application is dismissed.[2]

DEPUTY PRESIDENT

Appearances:

Mr L Eljiz, Applicant with Mr J Helou, support person/representative
Mr S Maybury for Dnata Airport Services Pty Ltd

Hearing details:

2022.
Sydney (By Video using Microsoft Teams)
July 13.

[1] 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.

[2] PR744863.

Printed by authority of the Commonwealth Government Printer

<PR744862>