Maja Georgievska v Sydney Water Corporation

[2022] FWC 2461

[2022] FWC 2461

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Maja Georgievska

v

Sydney Water Corporation

(U2022/3130)

COMMISSIONER MATHESON SYDNEY, 14 SEPTEMBER 2022

Application for an unfair dismissal remedy – requirement to provide evidence of vaccination or medical exemption as a condition of site access – requirement to attend site for a minimum of two days per week – direction lawful and reasonable – failure to comply with lawful and reasonable direction of the employer – valid reason for dismissal – application dismissed.

1. On 14 March 2022, Ms Maja Georgievska (Applicant) 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 with Sydney Water Corporation (Respondent). The Applicant seeks reinstatement.[1]

When can the Commission order a remedy for unfair dismissal?

1. Section 390 of the FW Act provides that the Commission may order a remedy if:

(a)   the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

(b)   the Applicant has been unfairly dismissed.

1. Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.

When is a person protected from unfair dismissal?

1. Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a)   the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b)   one or more of the following apply:

(i)a modern award covers the person;

(ii)an enterprise agreement applies to the person in relation to the employment;

(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

When has a person been unfairly dismissed?

1. Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a)   the person has been dismissed; and

(b)   the dismissal was harsh, unjust or unreasonable; and

(c)   the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d)   the dismissal was not a case of genuine redundancy.

Background

1. The uncontested factual background to the matter is as follows:

·  The Applicant commenced employment with the Respondent on 9 February 2004.

·  In September 2021, the Respondent’s Executive requested that a risk assessment be conducted and consultation with unions and employees take place with a view to developing a policy and procedures to reduce the risk of COVID-19 contraction at the Respondent’s sites.[2]

·  On 9 November 2021, a COVID-19 Vaccination Policy (Vaccination Policy) was implemented as a result of this process which required employees to demonstrate proof of COVID-19 vaccination to access the Respondent’s sites from 1 December 2021.[3]

·  The Respondent also has a Flexible Working Policy which came into effect in December 2021. That policy provides:[4]

o“To support our high-performance culture, even for those roles where some work can be done remotely, we will physically come on site at least two days each week”;

o“While our policy applies in business as usual conditions, we prioritise safety, health and wellbeing. We follow NSW Health Guidelines and during periods of significant public health concern we adapt out ways of working to depart from this policy as necessary”; and

othat “remote working” is among the kinds of flexible work options offered by the Respondent, which is defined in the Flexible Working Policy as follows:

“Working remotely is part of our way of working for employees who are primarily office-based. It is expected employees will arrange times to be present on site at least two days every week.”

·  The Applicant and Respondent discussed the Respondent’s Vaccination Policy and Flexible Working Policy in some capacity on 23 November 2021.[5]

·  The Applicant was on carer’s leave between 24 November 2021 and 31 December 2021.[6]

·  At the end of December 2021, there was a further COVD-19 outbreak associated with the Omicron variant and, on 23 December 2021, the Respondent circulated an email to employees entitled “Urgent COVID-19 update - new restrictions” which said, among other things:

“The NSW Government has encouraged anyone who can work remotely to do so until 27 January 2022. Please only attend a Sydney Water site if you are unable to work remotely until that date.”

·  The Applicant resumed full time duties on 4 January 2022, after the New Years’ Day public holiday and, when she did so, commenced working from home.[7]

·  On 11 January 2022, the Applicant’s manager, Christian McNally, called her to advise her that employees needed to be vaccinated to attend the Respondent’s sites, raised the Flexible Work Policy, indicated that as a result the Applicant would need to take leave and foreshadowed that the Applicant would be provided with a letter.[8]

·  The Applicant took issue with this, being of the understanding that, at that time, there was a company direction in place requiring that all employees work from home.[9]

·  On 11 January 2022, after Mr McNally’s phone call to the Applicant, the Respondent sent the Applicant a letter which stated:

“We write to you to further our discussions with you about vaccination.

As you would be aware Sydney Water has announced that from 1 December 2021 to access all Sydney Water sites employees, contractors and visitors are required to be fully vaccinated against the Covid-19 virus. From 15 December, you will also be aware that you are required to be on site for a minimum of two (2) days per week as per our Flexible Working Policy.

As an employee of Sydney Water, you have an employment contract that requires you to work in a manner that complies with applicable laws, orders and directions which includes any reasonable lawful direction given by your employer. I refer you to the clause Duties and Responsibilities of your contract.

Under safety laws, you also have a duty to comply with lawful and reasonable safety directives issued by your employer.

You have told us that you will not be fully vaccinated by 1 December, despite the requirement to be fully vaccinated to access Sydney Water sites. This is a personal choice you have made (and not due to any medical exemption).

If it is the case that you make a choice not to be vaccinated, then we may not be able to provide you with any work from 15 December 2021. We will take all reasonable steps to consider temporary alternative work, but if this cannot be provided you will have to take paid annual or long service leave. You will not be provided with any additional paid special leave or unpaid leave. Without any indication that you will comply with this reasonable lawful direction in a timely manner, we may then need to consider your ongoing employment.

We invite you to spend the next week reflecting on your position. We encourage you to speak to your GP. If you are not fully vaccinated, do not have a medical exemption or cannot prove you have an appointment to be vaccinated in the near future, we will be writing to you again and having further conversations with you concerning your ongoing employment.”

·  On 11 January 2022, the Applicant received a meeting request for the following morning which was to be attended by Mr McNally and a human resources representative, Aimee Munro.[10]

·  On 12 January 2022, a meeting took place in which the Applicant was advised that the Respondent’s directive to work from home did not apply to her and the Applicant indicated that she would lodge a formal grievance.[11]

·  On 12 January 2022, the Applicant wrote to Mr McNally stating:

oas at that time, she had not been able to meet the requirements of the Vaccination Policy and therefore could not attend the Respondent’s sites;

oshe was still “still happy, willing and able to fulfil [her] current role under the working from home instruction from SWIDMT (email 23 and 31 Dec 2021)…”;

oshe intended to “comply with the current company direction which does not require [her] to attend to site”;

oduring the meeting, she had requested to continue working as she has been, however that request was verbally declined on the basis that she was not vaccinated and the Respondent considered she could not “effectively manage a team or developer [sic] relationships remotely”;

othat the letter was notice of a formal grievance as per clause 48.2 of the Respondent’s Enterprise Agreement; and

oshe considered she was being “treated unfairly with respect to the company direction to work from home until 27 January 2022 and the suggestion that no appropriate work is available for [her]” while the Respondent has “serious resourcing gaps and [her] colleagues are able to continue to work remotely”.

·  On 20 January 2022, Mr McNally sent the Applicant a meeting invitation for a meeting on 21 January 2022 in which he stated:

“In accordance with clause 11.5 of your contract of employment, you are stood down on full pay, initially for a period of up to 2 weeks, or until provided with alternate direction. The suspension takes effect immediately.

During this period:

·You will not be required to attend work;

·Your access to Sydney Water facilities and systems will be suspended during this time;

·You are expected to remain contactable by phone during normal business hours; and

·You will make yourself available to participate in any meetings that are scheduled as part of the investigation.

Please provide us with contact number and email. Please make yourself available on Friday 21 January, 2022 9:00 am at such time you will receive a Show cause as to why you should not be terminated letter. You will then be given an opportunity to respond before any outcome is determined.

You are encouraged to bring along a support person to the meeting…”

·  On 21 January 2022, the Applicant attended a meeting with Mr McNally and Liam Connolly, a member of the Respondent’s employee relations team. The Applicant’s colleague, Narelle Berry, attended as her support person.[12]

·  Following the meeting, on 21 January 2022, the Applicant was emailed what Mr McNally described in the email as a “show cause letter” (Show Cause Letter), which stated:

“Following consultation, in November 2021 Sydney Water announced a new Covid-19 Vaccination Policy, an updated Access to Site Policy and an updated Flexible Working Policy that required from 1 December 2021:

·all employees, visitors and contractors to be vaccinated against Covid-19 to gain access to any Sydney Water controlled site and the requirement to provide evidence acceptable to Sydney Water of being fully vaccinated or having a medical exemption.

·all employees to attend a Sydney Water site at least two days a week (in the absence of any relevant public health orders).

We met on 23 November 2021 and discussed the requirements for vaccination in meeting Sydney Waters Flexible Working Policy. You have advised that you are not intending on being vaccinated so I requested that you apply for paid leave from 4 January 2022 following your carers leave. You did not follow this request and commenced working from 4 January 2022.

On 12 January 2022 we wrote to you because you were not in a position to meet this requirement (due to not being fully vaccinated) and to reinforce to you Sydney Water’s position on maintaining the health and wellbeing of our workforce. We advised you that without any indication that you would comply with this requirement in a timely manner, we might then need to consider your ongoing employment.

This was a reasonable and lawful direction clearly communicated to you that Sydney Water required you to comply, as per the requirement set out in your contract of employment and safety legislation. As a result of your failure to do so, we are now considering your ongoing employment.

Proposed Outcome

As a result of you failing to comply with a lawful and reasonable direction, Sydney Water proposes to terminate your employment with notice.

This is your opportunity to respond to this letter and put anything to us that should be considered before we make the final determination.

I would like you to consider this proposed outcome and provide a response by Tuesday 25 January, 2022. You may choose if you would like to provide this response in person or in writing…”

·  On 24 January 2022, the Applicant emailed a letter to Mr McNally stating:

“I refer to our meeting on 21 January 2022 where I was advised that I would be issued with a show cause letter.

The meeting appointment also stated that I would “receive a Show cause as to why you should not be terminated letter”.

I was expecting to receive such a letter after our meeting however I cannot see the words “show cause as to why you should not be terminated” in the contents of the file emailed to me on 21 January 2022. I consider that your letter does not identify as a notice to show cause. I request that you resend the letter and clarify the title and the subject of that letter.

Further, at our meeting on 21 January 2021, you advised that the letter would provide me with details of the alleged misconduct. I remain unclear about the alleged misconduct and kindly request the following:

1.        A show cause notice which includes the following:

a.        a clear statement of the allegations being made against me;

b.        the precise date(s) of the alleged misconduct, and

c.        the nature of the alleged misconduct.

2. In paragraph 4 of your letter you refer to “the requirements for vaccination in meeting Sydney Waters Flexible Working Policy” and in paragraph 5 you state “you were not in a position to meet this requirement (due to not being fully vaccinated)”. Please provide a clear statement on what specifically “this requirement” refers to.

3. I was advised at our meeting on 21 January 2022 that we are at the “Proposed outcome” stage in the disciplinary process. You further clarified this in a follow up email and provided an excerpt of section 2.4 of the Discipline Policy. Please provide me with a copy of any records of investigations relating to the alleged misconduct carried out under Section 2.2 of the Discipline Policy.

4. At that meeting, I was also advised that you are undertaking disciplinary action as per Clause 11.5 of my contract. Please confirm which step you are currently undertaking from the disciplinary process steps shown in the flow diagram at 4.1 of the Disciplinary Procedure…”

·  On 25 January 2022, the Respondent circulated an email to employees entitled “COVID update - reopening our offices”, which said:

“From this Thursday 27 January 2022, Sydney Water’s office locations will be open for those who wish to return.

At this point, attendance at the office is completely optional, however, our strong controls and safety culture means we can reopen our sites and support our people to work in a safe manner. Your safety remains our top priority.
Option 1: I want to work from the office

You will need to speak with your People Leader and let them know you’ll be working in the office. To continue to protect our location-critical teams at this time, we ask that you do not attend operational sites without manager approval.

Once you’re working from the office, you will need to follow the strict controls that the NSW Government and Sydney Water have put in place to keep our people safe.

·   Masks. You must wear a facemask at all times while indoors at Sydney Water sites, unless you are eating/drinking, there is a legitimate safety issue requiring removal of your mask, or there is nobody else in the area.

·   QR code check-ins. You must check in and out using the QR code every time you enter/leave a Sydney Water site. Swipe your own access card every time you enter a floor so that we know who has been in contact should a positive case occur.

·   Booster shots. In line with NSW Health and Australian Government advice, you are strongly encouraged to get your third vaccination dose as soon as you are eligible to provide maximum protection and reduce the risk of transmission. This is now recommended to be three months after you received your second dose.

·   Symptoms. If you have any symptoms, no matter how mild, do not attend site. If you have attended a site in the past 48 hours and develop symptoms or test positive for COVID-19, you must immediately contact the COVID Response Team on…

Needless to say, do not attend site if you have been notified by NSW Health or by a COVID-positive person that you are a close contact.

Option 2: I want to continue working remotely

If you don’t wish to work from a Sydney Water office at this point, you can continue working remotely. In this current environment, you may also consider meeting colleagues in a park or walking outdoors together in a way that feels safe for you.

These current working arrangements are in line with the NSW Government’s current advice. We will continue to keep you updated with latest information on COVID-19 and how it affects the work you do at Sydney Water. We will also continue to assess the situation and keep you updated you on when we will return to our hybrid way of working.

The pandemic continues to be a disruptive time in our lives, but your safety, health and wellbeing remain our top priority. If you are unwell or show any symptoms, please act with caution, and stay home, notify your People Leader, and follow our established process of testing and isolating.

We encourage you to access the My Wellbeing My Way resources available on iConnect or talk to your People Leader if you need further support or have any questions or concerns…”

·  On 27 January 2022, Mr McNally emailed the Applicant stating:

“My letter to you dated 21 January 2022 outlined to you that Sydney Water was undertaking a review of your employment and inviting you to provide any further information to us that we should consider before making a final decision on your ongoing employment. My letter outlined the lawful and reasonable order we have given you which you are not complying with, the steps we have taken to achieve your compliance, and your continued lack of compliance with our lawful and reasonable direction.

We requested your contribution by 25 January 2022 but have not received it. We would encourage you to provide a response to us by 9:00 am Monday 31 January 2022 after which time we will look to come to a final determination on the matter with the information available to us at that time.”

·  On 31 January 2022, the Applicant emailed Chris Gantt, Mr McNally’s manager, as follows:

“I refer to the attached grievance raised on 12 January 2022 with my manager and PLC.

Despite following up on 21 January 2022, I still have not received a response.

Accordingly, I am referring this to you as my Manager Once Removed, as per Section 48 of the Employee Agreement and the associated Grievance Policy and Grievance Procedure.

I understand from iConnect that the Flexible working our way policy applies during “business as usual conditions” and that Sydney Water can “adapt our ways of working to depart from this policy as necessary”.

The company direction issued before Christmas was a departure from business as usual working. With no office staff attending to site, I have not received a satisfactory resolution for being denied the ability to continue to work from home like everyone else.”

·  On 2 February 2022, the Applicant responded to Mr McNally’s email of 27 January 2022 as follows:

“Apologies, however your email ended up in my junk folder. I have only just read it now.

I responded to your letter on 24 January 2022 and sought information on your allegations. You acknowledged that letter on 27 January 2022.

Please respond to the specific information sought in my letter to you. It will help me understand the allegations being made against me.

Please also:

1.   Specify what was the “lawful and reasonable order”

2.   Provide evidence when that order was given to me

3.   Specify when I allegedly did not follow that order

4.   Specify what action by me you consider to be “continued lack of compliance with our lawful and reasonable direction”.”

·  On 15 February 2022, Mr McNally emailed the Applicant indicating that he had tried to give her a call with an update and requesting that she give him a call to discuss.

·  On 18 February 2022, the Applicant emailed Mr McNally indicating his email of 15 February 2022 had “arrived in junk”, that she did not “have any voicemails or missed calls” and seeking a written update.

·  On 20 February 2022, the Applicant sent a further email to Mr McNally indicating the situation is stressful for her, that her trust and confidence in the Respondent has been eroded and that she would be happy to have a discussion with him over the phone or on Teams on the condition that he agreed to the discussion being recorded.

·  On 22 February 2022, Mr Gantt responded to the Applicant’s email of 31 January 2022 as follows:

“Thank you for your email 31 January. Some internal coordination and discussion has been required ahead of my response. I acknowledge your communications of frustration regarding process, and I understand dealing with workplace issues of this nature can be stressful. However, I do think it is important to point out that the issue at hand is your failure to comply with Sydney Water’s lawful and reasonable directions, and our focus needs to be on that issue.

Regarding your request for me to review the mattes [sic] brought up in your letter of 12 January, I can only respond that your request is unable to be addressed or resolved by me. In your letter, you refer to ‘Section 48 of the Employee Agreement’. I assume you mean the dispute resolution and grievance procedures under the Enterprise Agreement. This matter does not constitute a dispute or grievance, so Christian was unable to make a specific response and consequently, I am unable to respond.

You were issued a letter on 21 January seeking a response to Sydney Water’s proposal to terminate your employment. A response was requested by 25 January. You responded on 31 January with a long list of process questions. Unfortunately, those questions are not relevant to the issue of your failure to obey Sydney Water’s lawful order, and under advice, it would be misdirected for Christian or me to address them in addressing the issue at hand.

As you have not provided any relevant and cogent feedback for consideration ahead of a final determination, I have no choice but to consider and approve a course of action leading to termination with notice. Christian will provide you with further official written communications.

Despite my responsibility to settle such matters on behalf of Sydney Water. It does not come without a heavy heart to me personally; the CGD leadership team and I care about you as a person and colleague beyond our accountabilities for the management and administration of workplace matters. I encourage you to seek support on your own terms. You might find it helpful to access the confidential counselling service that Sydney Water offers employees through our EAP provider…

I am happy to take your call to talk through any points although I acknowledge and respect your desire to communicate through written means…”

·  The Applicant was dismissed by the Respondent on 23 February 2022 and was provided with a letter stating:

“On 21 January 2022 we met regarding your ongoing non-compliance with Sydney Water’s lawful and reasonable directions. You were provided with a letter advising that we were undertaking a review of your employment and providing you with an opportunity to respond to the prospect that your employment may be terminated.

You were given the opportunity to respond to the proposed outcome. We have reviewed your response and have now come to a final determination.

Following consultation, in November 2021 Sydney Water announced a new Covid-19 Vaccination Policy, an updated Access to Site Policy and an updated Flexible Working Policy that required from 1 December 2021:

·   all employees, visitors and contractors to be vaccinated against Covid-19 to gain access to any Sydney Water controlled site and the requirement to provide evidence acceptable to Sydney Water of being fully vaccinated or having a medical exemption.

·   all employees to attend a Sydney Water site at least two days a week (in the absence of any relevant public health orders).

This was a reasonable and lawful direction clearly communicated to you that Sydney Water required you to comply, as per the requirement set out in your contract of employment and safety legislation.

You have not complied with the direction when it was first announced. You have failed to comply with the direction when we wrote to you on 11 January 2022 and you continued in your failure to comply when we provided you with a show-cause letter on 21 January 2022. You have refused to work in the way instructed and required by Sydney Water.

This ongoing refusal to follow the lawful and reasonable directions of your employer has created a fundamental breach of trust and confidence in the employment relationship and your employment can no longer be sustained because of your disobedience and non-compliance with our directions.
Outcome

On the basis of your actions, which constitute repeated disobedience and a breach of trust and confidence, we are terminating your employment with Sydney Water, effective immediately with payment of notice…”

·  On 25 February 2022, the Respondent sent an email to its employees welcoming them back to “hybrid working from Monday 28 February” and including further information about this.

·  At the time of her dismissal, the Applicant was paid a full-time annual salary of $159,365.91, inclusive of superannuation[13] and the Sydney Water Enterprise Agreement 2021 applied to the Applicant’s employment.[14]

The conference

1. There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.

1. After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a conference for the matter (s.399 of the FW Act).

1. At the conference on 30 May 2022, the Applicant was self-represented and the Respondent was represented by Ms Mifsud, initial R, an employee of the Respondent.

Witnesses

1. The Applicant gave evidence on her own behalf and filed a witness statement for Ms Berry, who was her colleague and support person.

1. The Respondent filed witness statements for:

·  Mr McNally, Manager of Developer Partnerships for the Respondent; and

·  James Wallace, Manager of Safety Capability and Resilience for the Respondent.

1. Prior to the conference, the parties conferred and confirmed with my Chambers that only the Applicant would be required for cross-examination during the conference. As such, only the Applicant appeared to give evidence during the conference.

Submissions

1. The Applicant filed submissions in the Commission on 22 April 2022. The Respondent filed submissions in the Commission on 9 May 2022. Final written submissions were filed by the Applicant on 23 May 2022.

Has the Applicant been dismissed?

1. A threshold issue to determine is whether the Applicant has been dismissed from her employment.

1. Section 386(1) of the FW Act provides that the Applicant has been dismissed if:

(a)   the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or

(b)   the Applicant has resigned from her employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.

1. Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

1. There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.

1. I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the FW Act.

Initial matters

1. Under s.396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:

(a)   whether the application was made within the period required in subsection 394(2);

(b)   whether the person was protected from unfair dismissal;

(c)   whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d)   whether the dismissal was a case of genuine redundancy.

Was the application made within the period required?

1. Section 394(2) of the FW Act requires an application to be made within 21 days after the dismissal took effect.

1. It is not disputed and I find that the Applicant was dismissed from her employment on 23 February 2022 and made the application on 14 March 2022. I am therefore satisfied that the application was made within the period required in s.394(2) of the FW Act.

Was the Applicant protected from unfair dismissal at the time of dismissal?

1. I have set out above when a person is protected from unfair dismissal.

Minimum employment period

1. It was not in dispute and I find that the Respondent is not a small business employer, having 15 or more employees at the relevant time.

1. It was not in dispute and I find that the Applicant was an employee, who commenced her employment with the Respondent on 9 February 2004 and was dismissed on 23 February 2022, a period in excess of 6 months.

1. It was not in dispute and I find that the Applicant was an employee.

1. I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.

Application of an enterprise agreement

1. It was not in dispute and I find that, at the time of dismissal, the Sydney Water Enterprise Agreement 2021 applied to the Applicant’s employment.

1. I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.

Was the dismissal consistent with the Small Business Fair Dismissal Code?

1. Section 388 of the FW Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a)   immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b)   the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.

1. As mentioned above, I find that the Respondent was not a small business employer within the meaning of s.23 of the FW Act at the relevant time, having in excess of 14 employees (including casual employees employed on a regular and systematic basis).

1. I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as the Respondent is not a small business employer within the meaning of the FW Act.

Was the dismissal a case of genuine redundancy?

1. Under s.389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:

(a)   the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b)   the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

1. It was not in dispute and I find that the Applicant’s dismissal was not due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise.

1. I am therefore satisfied that the dismissal was not a case of genuine redundancy.

1. Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.

Was the dismissal harsh, unjust or unreasonable?

1. 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.

1. I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[15]

1. I set out my consideration of each below.

Section 387(a) - Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?

1. In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[16] and should not be “capricious, fanciful, spiteful or prejudiced”.[17] 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.[18]

1. The Respondent submitted that there was a valid reason for the dismissal related to the Applicant’s conduct in failing to abide by a lawful and reasonable direction of the Respondent. It is necessary to consider whether the direction was lawful and reasonable and whether the Applicant’s conduct in failing to abide by the direction gave rise to a valid reason for the dismissal of the Applicant.

1. A Full Bench of the Australian Industrial Relations Commission found that “[a] failure to comply with a direction to do or refrain from doing something in compliance with an employer’s policy will not provide a valid reason for termination of employment where:

(a)   the policy, or a direction to comply with the policy, is illegal;

(b)   the policy does not relate to the subject matter of the employment or matters affecting the work of the employee; or

(c)   the policy, or a direction to comply with the policy, is unreasonable.”[19]

1. In order to establish if a direction was reasonable, it is not necessary for the Respondent to demonstrate that the direction issued was the preferable or most appropriate course of action, or in accordance with “best practice”, or in the best interests of the parties.[20] Rather, what is required is a consideration of whether the direction was reasonable, having regard to “[t]he nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument…[which] govern[s] the relationship.” [21]

1. “In determining whether a refusal to carry out the lawful and reasonable directions of an employer constitutes a valid reason for termination, it is necessary to have regard to all the circumstances, including the nature and degree of the employee’s conduct.”[22]

The Respondent’s submissions

1. The Respondent submitted that there is no contest in these proceedings that:

·  the Respondent issued a direction to employees, including the Applicant, to be vaccinated against COVID-19 as part of being able to return to the workplace to perform their duties (at least two days a week); and

·  the Applicant is not, and would not get, vaccinated and therefore could not comply with the Respondent’s safety directive and return to the work site. The Applicant never provided a medical contraindicator certificate exempting her from the vaccination requirement.[23]

1. The Respondent submitted that the vaccination directive was lawful because it:

·   involved no illegality; and

·  concerned health and safety and ensuring delivery of essential services and so falls within the scope of employment.[24]

1. The Respondent submitted that the Flexible Working Policy was lawful because:

·  it involves no illegality; and

·  concerns the location of work and so falls within the scope of employment.[25]

1. The Respondent submitted that, regarding the vaccination direction, the relevant circumstances include:

·  the statutory objectives and obligations of the Respondent to deliver essential services;

·  the vaccination direction is directed to the health and safety of workers;

·  the vaccination direction has a logical and understandable basis, including having regard to the fact the Respondent provides essential services to the community and is also directed toward ensuring the continuity of those services without as much disruption as possible; and

·  the Respondent carried out a consultive process during the development and implementation of its vaccination policy.[26]

1. The Respondent submitted that, in relation to the Flexible Working Policy, the relevant circumstances include:

·  the Applicant’s role required her to work at the office;

·  working from home was an exception due to the pandemic;

·  Mr McNally provides logical and reasonable reasons for requiring the Applicant to attend the workplace at least two days a week; and

·  a requirement to attend the office, for part of the week, to assist with collaboration, leadership and mentoring is reasonable (and part of the employer’s usual managerial prerogative to determine how it wants work to be performed).[27]

1. The Respondent submitted:

·  the Applicant has always been clear to Mr McNally that she will not be vaccinated;

·  the Applicant chose, despite opportunity, to not comply with her employer’s directive; and

·  in circumstances where the directive is lawful and reasonable, the failure provides a valid reason for dismissal.[28]

The Applicant’s submissions

1. In her submissions, the Applicant noted that the termination letter given to her on 23 February 2022:

·  states that the termination is due to “actions, which constitute repeated disobedience and a breach of trust and confidence”;

·  refers to a new COVID Vaccination Policy, an updated Access to Site Policy and an updated Flexible Working Policy; and

·  states that “[t]his was a reasonable and lawful direction clearly communicated to you that Sydney Water required you to comply, as per the requirement set out in your contract of employment and safety legislation”.[29]

1. The Applicant submitted she is “unclear about which actions, or what [she] was directed to do, when [she] was directed to do it and what [she] was repeatedly being disobedient about” and is “therefore unable to clearly articulate the reason for [her] dismissal”.[30]

1. The Applicant does not agree that any misconduct occurred and submitted:

·  for any misconduct to have occurred, under the Respondent’s Disciplinary Policy, she would have been made aware of the “conduct informally through discussion, counselling and coaching in the first instance”;

·  she “was not spoken to about any actions that were considered misconduct”; and

·  the first allegation of misconduct was made by the Respondent at the meeting on 21 January 2022.[31]

Consideration and findings

1. The Applicant filed a ‘Chronology of Events’ with her application and that document suggests that her manager, Mr McNally, had various discussions with her regarding the Vaccination Policy and Flexible Working Policy. In particular, the Chronology of Events indicates that, on 23 November 2021, Mr McNally spoke to the Applicant about the Vaccination Policy and Flexible Working Policy and went through a FAQs document that was circulated to all staff in communicating the new policy.

1. This is broadly consistent with the witness statement of Mr McNally filed by the Respondent, in which he states that, on 23 November 2021, he met with the Applicant to discuss the Respondent’s “COVID-19 vaccination requirements, and the need for her to comply with [the Respondent’s] Flexible Working Policy and vaccination requirement” and took her through the COVID-19 FAQs document, which was annexed to his statement.[32]

1. The FAQs document stated:

“5.1 When are we expected to go back to site, including offices?

We are welcoming you back to site from 1 December to commence hybrid working arrangements and re-connect with your teammates before the end of the year. Please speak to your People Leader if you are unable or feel uncomfortable being on site – you may be able to continue working remotely until 15 December if reasonably practicable.

From 15 December, hybrid working arrangements require everyone to be on site at least two days per week.

5.2 How many days am I expected to go in for?

When we surveyed our people last year as part of the Flexible Working Our Way program, you told us that you would most like a workplace that used hybrid working practices. Those who can work from home indicated that they would like to continue to do so for 2-3 days per week. When we return to hybrid working arrangements, you will be required to work from site a minimum of two days per week. You can read the Flexible Working Our Way Policy and FAQs for more information.

…

6.2 What is considered a Sydney Water site?

From 1 December 2021, full COVID-19 vaccination will be required for entry into any Sydney Water site.

Sydney Water sites, in this context, include any location where Sydney Water staff are required to perform their work but do not include:

·  any Sydney Water asset or land where a contractor is engaged as a principal contractor for work health and safety purposes (and controls access and egress to and from the asset/land);

·  any land containing a Sydney Water asset where another entity has only granted Sydney Water access rights to inspect/maintain the asset; or

·   any location where a contractor is engaged to deliver a service without engaging or interacting with Sydney Water staff.

…

6.3 Will I be able to attend my workplace if I am unvaccinated?

If you are unable to reasonably work from home (i.e. field or plant worker) you may continue to attend your workplace if you are unvaccinated until 30 November 2021 as long as you comply with any relevant NSW Government vaccination requirements. From 1 December 2021 you are expected to have both your doses of COVID-19 vaccination or be able to provide a valid medical exemption that has been assessed through the Injury & Rehab team…

…

6.4 I can do my job without having to go on to a Sydney Water site at all. Do I need to vaccinate?

It is a requirement at Sydney Water that all employees are expected to be able to work on site including any of our offices when requested, which may include attending training, meetings and workshops. You may not regularly need to attend a site but there is an expectation that at some point in the course of your employment with Sydney Water you will need to so to fulfil this condition. Sydney Water is committed to face-to-face collaboration and building connection with our colleagues through hybrid ways of working.

…”

1. The ‘Chronology of Events’ document filed by the Applicant indicates that, on 11 January 2022:

·  Mr McNally advised the Applicant that staff need to be vaccinated to attend the Respondent’s site and again referred to the Flexible Working Policy; and

·  the Applicant received a letter from Mr McNally.

1. The letter provided to the Applicant on 11 January 2022 explained:

·  from 1 December 2021, the Respondent required all employees, contractors and visitors to be fully vaccinated against the COVID-19 virus in order to access its sites;

·  from 15 December 2021, the Applicant is required to be on site for a minimum of two days per week as per its Flexible Working Policy;

·  the Applicant’s employment contract required her to work in a manner that complies with applicable laws, orders and directions which includes any reasonable lawful direction given by her employer; and

·  under safety laws, the Applicant had a duty to comply with lawful and reasonable safety directives issued by her employer.

1. The letter stated that the Applicant had told the Respondent that she would not be fully vaccinated by 1 December 2021, despite its requirement to be fully vaccinated to access its site, and this was a personal choice she had made and was not due to any medical exemption.

1. The letter then states:

“If it is the case that you make a choice not to be vaccinated, then we may not be able to provide you with any work from 15 December 2021. We will take all reasonable steps to consider temporary alternative work, but if this cannot be provided you will have to take paid annual or long service leave. You will not be provided with any additional paid special leave or unpaid leave. Without any indication that you will comply with this reasonable lawful direction in a timely manner, we may then need to consider your ongoing employment.

We invite you to spend the next week reflecting on your position. We encourage you to speak to your GP. If you are not fully vaccinated, do not have a medical exemption or cannot prove you have an appointment to be vaccinated in the near future, we will be writing to you again and having further conversations with you concerning your ongoing employment.”

1. It is clear to me that the Respondent communicated to the Applicant that vaccination was a condition of entry to site, that the Flexible Working Policy required her to work on site for a minimum of two days per week and that if she was not fully vaccinated, did not have a medical exemption or could not prove she had an appointment to be vaccinated in the near future, the Respondent would be writing to her again and having further conversations with her concerning her ongoing employment.

1. However, it is apparent that the Applicant took issue with this because, at the time the letter was provided to her, employees were working from home, including the Applicant when she returned from leave on 4 January 2022. The email circulated to employees on 23 December 2021 entitled “Urgent COVID-19 update - new restrictions” stated:

“The NSW Government has encouraged anyone who can work remotely to do so until 27 January 2022. Please only attend a Sydney Water site if you are unable to work remotely until that date.”

1. The ‘Chronology of Events’ document filed by the Applicant indicates that, during the meeting with Mr McNally and Ms Munro on 12 January 2022:

·  the Respondent again raised the Vaccination Policy and Flexible Working Policy and the Applicant was asked to go on leave;

·  the Applicant could not understand why she was asked to take leave when other employees were working from home; and

·  Ms Munro advised that the company direction (to work from home) could end tomorrow and then the Applicant could not go on site.

1. The Applicant’s evidence was that, during this meeting:[33]

·  she was advised that there was no appropriate work for her; and

·  Mr McNally advised that the company direction (to work from home) did not apply to her because she was unvaccinated.

1. The witness statement of Mr McNally suggests that, during the meeting with the Applicant on 12 January 2022, both he and Ms Munro:[34]

·  reinforced the requirement to return to the office and the COVID-19 vaccination requirement; and

·  discussed the implications and risk to the Applicant’s ongoing employment.

1. The witness statement of Mr McNally indicates:[35]

·  it is “not correct that [he and Ms Munro] told the Applicant that ‘the company directions does [sic] not apply to [her]’”;

·  the requirement to be vaccinated existed from 15 December 2021 and the Applicant needed to be ready and able to return to work, when conditions permitted; and

·  the message to the Applicant was that she needed to be able to, and comply with, the Respondent’s requirement to be vaccinated.

1. I appreciate that the timing of these discussions may have given rise to some frustration for the Applicant as they occurred at a time where employees were required to work from home if they were able to. The letter dated 11 January 2022 also indicated that, from 15 December 2021, the Applicant was required to be on site for a minimum of two days per week as per its Flexible Working Policy. However, this appears to be inconsistent with the directive provided to employees on 23 December 2021 that employees could work remotely until 27 January 2022 if they could do so.

1. I am also satisfied that, prior to the Applicant being suspended with pay on 20 January 2022, the Applicant was told that she would need to take leave. In this regard:

·  Mr McNally indicates in his witness statement that, in his discussion with the Applicant on 23 November 2021, he told her that, if she was not vaccinated on her return from leave (or had a medical exemption), she would need to take her paid leave or be on leave without pay;[36]

·  Mr McNally also indicates in his witness statement that, when he returned from leave on 11 January 2022, he “called the Applicant as [he] saw she had not applied for leave”;[37]

·  the letter dated 11 January 2022 stated:

“If it is the case that you make a choice not to be vaccinated, then we may not be able to provide you with any work from 15 December 2021. We will take all reasonable steps to consider temporary alternative work, but if this cannot be provided you will have to take paid annual or long service leave. You will not be provided with any additional paid special leave or unpaid leave…”;

·  the Show Cause Letter dated 21 January 2022 stated:

“You have advised that you are not intending on being vaccinated so I requested that you apply for paid leave from 4 January 2022 following your carers leave. You did not follow this request and commenced working from 4 January 2022.”

1. On 20 January 2022, the Applicant was suspended with pay and invited to a meeting. Following that meeting, she was emailed the Show Cause Letter dated 21 January 2022.

1. The Show Cause Letter indicated to the Applicant that this was her “opportunity to respond to this letter and put anything to [the Respondent] that should be considered before [the Respondent made] the final determination” and requested a response by 25 January 2022.

1. On 24 January 2022, the Applicant emailed the Respondent correspondence noting that she was advised at the meeting that she would be issued with a show cause letter, that the meeting appointment stated she would “receive a Show cause as to why you should not be terminated letter” and that she was expecting to receive such a letter but cannot see the words “show cause as to why you should not be terminated” in the email provided to her on 21 January 2022. The Applicant indicated in her email that she remained “unclear about the alleged misconduct” and requested the following:

“1.         A show cause notice which includes the following:

a.    a clear statement of the allegations being made against me;

b.   the precise date(s) of the alleged misconduct, and

c.   the nature of the alleged misconduct.

2.   In paragraph 4 of your letter you refer to “the requirements for vaccination in meeting Sydney Waters Flexible Working Policy” and in paragraph 5 you state “you were not in a position to meet this requirement (due to not being fully vaccinated)”. Please provide a clear statement on what specifically “this requirement” refers to.

3.   I was advised at our meeting on 21 January 2022 that we are at the “Proposed outcome” stage in the disciplinary process. You further clarified this in a follow up email and provided an excerpt of section 2.4 of the Discipline Policy. Please provide me with a copy of any records of investigations relating to the alleged misconduct carried out under Section 2.2 of the Discipline Policy.

4.   At that meeting, I was also advised that you are undertaking disciplinary action as per Clause 11.5 of my contract. Please confirm which step you are currently undertaking from the disciplinary process steps shown in the flow diagram at 4.1 of the Disciplinary Procedure.”

1. On 27 January 2022, Mr McNally emailed the Applicant and stated that the letter dated 21 January 2022 outlined to her that the Respondent was undertaking a review of her employment and invited her to provide any further information to the Respondent that it should consider before making a final decision in relation to her ongoing employment. This email stated that the “letter outlined the lawful and reasonable order we have given you which you are not complying with, the steps we have taken to achieve your compliance, and your continued lack of compliance with our lawful and reasonable direction”. The email also noted a response was requested by 25 January 2022 but had not been received and requesting a response by 31 January 2022, indicating that after this time the Respondent would look to come to a final determination on the matter with the information available at that time.

1. On 2 February 2022, the Applicant made the following requests:

“Please respond to the specific information sought in my letter to you. It will help me understand the allegations being made against me.

Please also:

1.   Specify what was the “lawful and reasonable order”
2.   Provide evidence when that order was given to me
3.   Specify when I allegedly did not follow that order

4. Specify what action by me you consider to be “continued lack of compliance with our lawful and reasonable direction.””

1. It is unclear to me why the Applicant remained confused about what she was being asked to respond to, having received the Show Cause Letter dated 21 January 2022.

1. I have considered the contents of the Show Cause Letter, which clearly indicates that:

·  the Respondent’s Vaccination Policy, Access to Site Policy and Flexible Working Policy required employees to provide evidence of vaccination or a medical exemption and that all employees attend site at least two days a week (in the absence of any relevant public health orders);

·  the Applicant advised that she was not intending on being vaccinated;

·  the Applicant was requested to apply for paid leave from 4 January 2022 following her carer’s leave but did not follow this request and commenced working from 4 January 2022;

·  on 12 January 2022, the Applicant was advised that “without any indication that [the Applicant] would comply with this requirement in a timely manner, [the Respondent] might then need to consider [her] ongoing employment”; and

·  as a result of the Applicant failing to comply with a lawful and reasonable direction, the Respondent proposed to terminate her employment with notice.

1. In her submissions, the Applicant suggests she is still “unclear about which actions, or what [she] was directed to do, when [she] was directed to do it and what [she] was repeatedly being disobedient about” and is “therefore unable to clearly articulate the reason for [her] dismissal”.[38]

1. However, it is abundantly clear to me, as it would be to the reasonable person, that the Respondent was imposing a requirement that all employees attend site two days a week and show evidence of vaccination or a medical exemption in order to do so, and this is a requirement that the Applicant did not meet. This was the reason that the Applicant’s ongoing employment was under consideration and she was asked to respond to the Respondent’s proposal that her employment be terminated before the Respondent made its decision.

1. I do not understand the basis for the requirement that the Applicant take leave in the lead up to her dismissal and prior to her suspension with pay on 20 January 2022 when employees were directed to work from home if they were able to and the Applicant indicated she was willing to work from home. If the Applicant was able to work from home and other employees were doing so, it raises the question as to why she was not permitted to do so until such time as the Government guidance on working from home changed. This is a matter I have considered further in this decision.

1. However, it is clear to me that, as articulated in the letter of termination dated 23 February 2022, the Applicant’s employment was terminated for failing to comply with the Respondent’s direction that, in accordance with its Vaccination Policy, Access to Site Policy and Flexible Working Policy that:

·  “all employees, visitors and contractors to be vaccinated against Covid-19 to gain access to any Sydney Water controlled site and the requirement to provide evidence acceptable to Sydney Water of being fully vaccinated or having a medical exemption”; and

·  “all employees to attend a Sydney Water site at least two days a week (in the absence of any relevant public health orders)”.

1. I am satisfied that the Applicant did not comply with this direction. The Applicant did not provide evidence of being fully vaccinated or having a medical exemption. In determining whether there was a valid reason for the dismissal, it is necessary for me to consider whether the direction was lawful and reasonable and whether the Applicant’s conduct in failing to abide by the direction gave rise to a valid reason for the dismissal of the Applicant.

1. The Full Bench of the Australian Industrial Relations Commission found that “[a] failure to comply with a direction to do or refrain from doing something in compliance with an employer’s policy will not provide a valid reason for termination of employment where:

(a)   the policy, or a direction to comply with the policy, is illegal;

(b)   the policy does not relate to the subject matter of the employment or matters affecting the work of the employee; or

(c)   the policy, or a direction to comply with the policy, is unreasonable.”[39]

1. In order to establish if a direction was reasonable, it is not necessary for the Respondent to demonstrate that the direction issued was the preferable or most appropriate course of action, or in accordance with “best practice”, or in the best interests of the parties.[40] Rather, what is required is a consideration of whether the direction was reasonable, having regard to “[t]he nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument…[which] govern[s] the relationship.”[41]

1. In Sharp v BCS Infrastructure Support Pty Limited,[42] the Full Bench found:

“[25] The correct approach to the assessment, pursuant to s.387(a) of the Act, as to whether there is a valid reason for an employee’s dismissal relating to the employee’s capacity or conduct where the employee is alleged to have committed misconduct was that stated by the Full Bench (Lawler VP and Cribb C) B, C and D v Australian Postal Corporation T/A Australia Post as follows:

“[34] In considering whether there was a valid reason for a dismissal under s.387(a), the reason(s) being considered are the employer’s reason(s). In a misconduct case, the Commission \ is concerned with whether the misconduct in fact occurred, not with whether the employer has reasonable grounds to believe that it occurred (eg. Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1).

[35] Subject to that, as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer, that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a valid reason “should not impose a severe barrier to the right of an employer to dismiss an employee”.

[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.””

1. The timeline of events creates a complication in this matter. The Applicant commenced a period of extended carer’s leave on 24 November 2021. Around this time the Respondent was adapting its policies in response to COVID-19 and, following a period of consultation, determined that there would be a general requirement for employees to attend site for a minimum of two days a week from 15 December 2021 and that vaccination would be required as a condition of access to site. The complication arises as a further COVID-19 outbreak associated with the Omicron variant occurred at the end of December 2021, after the policy changes had been announced and while the Applicant was on leave.

1. As a result of the Omicron outbreak, and as the Respondent indicated in its communication titled “Urgent COVID-19 update - new restrictions” circulated to employees on 23 December 2021, the NSW Government encouraged anyone who could work remotely to do so until 27 January 2022. As a result, the Respondent directed its employees to only attend site if they were unable to work remotely until that date.

1. At the time of this change, both the Applicant and Mr McNally were on leave. Before the Applicant had commenced her period of leave, I am satisfied that Mr McNally had explained to the Applicant the need to comply with the Vaccination Policy and Flexible Working Policy and that this would be an expectation upon her return from leave. I am also satisfied that, on 23 November 2021, Mr McNally went through the FAQ document with the Applicant, which made it clear that:

·  “From 15 December, hybrid working arrangements require everyone to be on site at least two days per week”.

·  “From 1 December 2021, full COVID-19 vaccination will be required for entry into any Sydney Water site”.

·  “From 1 December 2021 you are expected to have both your doses of COVID-19 vaccination or be able to provide a valid medical exemption that has been assessed through the Injury & Rehab team…”.

1. I am also satisfied that, in his discussion with the Applicant on 23 November 2021, Mr McNally told her that, if she was not vaccinated on her return from leave (or had a medical exemption), she would need to take leave.[43]

1. The Applicant returned from leave on 4 January 2022 and commenced working from home and, despite the request that had been made of her on 23 November 2021 to take leave if she was not vaccinated, did not do this. It is likely that the Applicant instead commenced working from home as she had received the communication sent by the Respondent to all employees on 23 December 2021, asking that employees only attend site if they were unable to work remotely until 27 January 2022.

1. Mr McNally did not return from leave until 11 January 2022 and, upon doing so, learned that the Applicant had not taken leave as he had requested on 23 November 2021 and had proceeded to work from home during his absence between 4 January and 11 January 2022. While Mr McNally appears to have taken issue with this, the assumption made by the Applicant that she was able to work from home upon her return was not an unreasonable one given the Respondent’s direction in its communication on 23 December 2021 that employees do so until 27 January 2022.

1. Had the Applicant been dismissed for failing to comply with the direction to take leave in isolation, I would have been unlikely to have found a valid reason for her dismissal. However, as I have earlier found, the real reason for the Applicant’s dismissal was her failure to comply with the Respondent’s requirements that employees attend site at least two days a week (in the absence of any relevant public health orders) and to be vaccinated against COVID-19 to gain access to site and provide evidence of this (or a medical exemption).

1. The complication arises because, at the time of the show cause process and dismissal on 23 February 2022, employees were still working from home in accordance with the direction of 23 December 2021 and did not return to hybrid working (i.e. the requirement that they be on site two days per week) until 28 February 2022, being two days after the dismissal. In other words, the Applicant was dismissed from her employment before other employees were asked to return to the office.

1. I have considered the decision of Commissioner Johns in Marriott v Baptcare Limited[44] (Marriott). In that matter, the applicant’s employment was terminated on 10 November 2021 for failing to provide evidence of vaccination, expressing an intention to be vaccinated within a reasonable period or time or provide a valid medical exemption. The respondent in that matter did not require its employees to attend in person for work until 24 February 2022. The Commissioner found that, between when the applicant had his employment terminated and 24 February 2022, when employees were required to attend in person for work, the applicant remained ready, willing and able to perform the inherent requirements of his job.[45] The Commissioner found:[46]

“[40]There is no criticism of Baptcare that it, ultimately, required CSS employees to return to the office. That was its managerial prerogative. But until such time as they actually required in person attendance, nothing prevented the Applicant from performing the job that, for the better part of two years, he had been performing from home in any case.

[41]The termination of the Applicant’s employment on 10 November 2021 was premature. There is no reason why Baptcare could not have allowed the Applicant to continue in his employment until such time as it actually required him to return to the office. Had that been on 11 November 2021 I would have dismissed the Applicant’s application for an unfair dismissal remedy. Had it been reasonably within the contemplation of Baptcare that the return to the office was likely to occur at some point close to 10 November 2021, the Respondent would have been able to successfully argue that the Applicant could not perform the inherent requirements of his job. Had Baptcare terminated the employment of the Applicant on 24 February 2022 I would have dismissed the Applicant’s unfair dismissal application.

[42]But that is not what occurred. For three months and 14 days after the employment of the Applicant was terminated he could have continued to perform his work at home just like every other CSS employee.”

1. I have considered the facts in this matter. The Respondent’s requirement, as communicated in its Flexible Working Policy, that employees return to the office for a minimum of two days per week involved no illegality, falls within the scope of employment and it was within its managerial prerogative to make this decision. It did so following a period of consultation with employees and I consider the requirement to constitute a lawful and reasonable direction.

1. I have also considered the requirements of the Vaccination Policy. In Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal,[47] the Full Bench of the Commission considered the risks of COVID-19 and control measures available to combat those risks, stating:

“[29] There are a number of general factual propositions which are uncontentious and which we accept have been established on the evidence before us:

1.   COVID-19 involves a high burden of disease, greater than influenza.

2.   Any infected person is at risk of developing serious illness from the virus, which may lead to death.

3.   The risks posed by COVID-19 have changed with the rapid rise of the Delta variant which is more infectious and has more severe health effects than previous variants.

4.   All COVID-19 vaccines currently available in Australia are effective at preventing symptomatic infection, including from the Delta variant.

5.   All COVID-19 vaccines currently available in Australia substantially reduce the risk of serious illness or death, including from the Delta variant.

6.   All COVID-19 vaccines currently available in Australia are safe and any adverse effects are usually mild. There is a much higher risk of developing serious complications and dying from acquiring COVID-19.

7.   An unvaccinated person is more likely to acquire COVID-19 from another unvaccinated person, rather than a vaccinated person.

8.   While other measures, such as mask wearing, and social distancing, are demonstrated to reduce the transmission of COVID-19, the effectiveness of these measures depends on people applying them consistently or correctly.  They do not provide a substitute for the constant protection offered by vaccines, nor do they reduce the risk of developing serious illness once somebody acquires an infection.

9.   Vaccination is the most effective and efficient control available to combat the risks posed by COVID-19.

10.  Even with high vaccine rates in the community, COVID-19 will remain a significant hazard in any workplace in which there is a possibility that people will interact or use the same common spaces (even at separate times). The Mine is clearly such a workplace.”

1. The Respondent’s consideration of the COVID-19 risk and appropriate controls and the consultation process it implemented occurred in close proximity to the Full Bench’s consideration of these matters. I am satisfied that, in implementing the requirement for vaccination as a condition of entry to site, the Respondent was seeking to comply with its obligations to ensure the health and safety of its workers while at work in accordance with work health and safety legislation, and that it imposed the vaccination requirement as an effective and efficient means of controlling the risk of COVID-19 in its workplace, so far as was reasonably practicable.  I find that the requirement as set out in the Vaccination Policy is not illegal and relates to the subject matter of the employment and, given the prevailing circumstances at the time of the introduction of the Vaccination Policy, the risks at that time and understanding about effective and efficient controls, I find that the requirements in the Vaccination Policy and its introduction in December 2021 to be both unremarkable and reasonable.

1. Before the Applicant commenced extended carer’s leave, it was reasonable for Mr McNally to seek to understand her vaccination status and make the requirements in the Vaccination Policy and Flexible Working Policy clear to her. The Applicant had been advised that the Respondent’s policies required that she return to the office for a minimum of two days per week and be vaccinated in order to do this (absent acceptable medical evidence). While the Omicron outbreak and NSW Government guidance at the end of December 2021 meant that the return to hybrid working on 15 December 2021 did not proceed as the Respondent may have planned, it remained reasonably within the contemplation of the Respondent that the return to the office was likely to occur at some point close to 27 January 2022 as communicated to employees on 23 December 2021. This distinguishes the facts of this matter from those in Marriott. While the return to hybrid working was ultimately delayed until 28 February 2022, this was in very close proximity to the Applicant’s dismissal on 23 February 2022.

1. In order for the Applicant to comply with the directions of the Respondent, she was going to have to work from its site for a minimum of two days per week and provide evidence of being vaccinated as a condition of doing so (or evidence of a medical exemption). While employees were still working from home at the time of her dismissal and in the lead up to it, the mandatory return to the office via hybrid working was imminent and occurred only three working days after her dismissal.

1. Having regard to the circumstances in this matter, I find that the Applicant’s refusal to comply with the Respondent’s lawful and reasonable directions constituted a valid reason for her dismissal and had the consequence that the Applicant was not ready, willing and able to fulfil the inherent requirements of her role. I also observe that the Applicant’s contract specifically required the Applicant to “comply with all reasonable and lawful orders, directions and instructions given by the Corporation”, defined as the Respondent, and to “comply with the Corporation’s policies and procedures (as varied from time to time)”, which she did not.

Section 387(b) - Was the Applicant notified of the valid reason?

1. Proper consideration of s.387(b) of the FW Act 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) of the FW Act.[48]

1. 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,[49] and in explicit[50] and plain and clear terms.[51]

1. The contents of the Show Cause Letter dated 21 January 2022 clearly indicated that:

·  the Respondent’s Vaccination Policy, Access to Site Policy and Flexible Working Policy required employees to be vaccinated or have a medical exemption and that all employees attend site at least two days a week (in the absence of any relevant public health orders);

·  the Applicant advised that she was not intending on being vaccinated;

·  the Applicant was requested to apply for paid leave from 4 January 2022 following her carer’s leave but did not follow this request and commenced working from 4 January 2022;

·  on 12 January 2022, the Applicant was advised that “without any indication that [the Applicant] would comply with this requirement in a timely manner, [the Respondent] might then need to consider [her] ongoing employment”; and

·  as a result of the Applicant failing to comply with a lawful and reasonable direction, the Respondent proposed to terminate her employment with notice.

1. The Applicant was given until 25 January 2022 to respond and this was further extended to 31 January 2022.

1. Having not provided a satisfactory response and as articulated in the letter of termination dated 23 February 2022, the Applicant’s employment was terminated for failing to comply with the Respondent’s direction that, in accordance with its Vaccination Policy, Access to Site Policy and Flexible Working Policy:

·  “all employees, visitors and contractors to be vaccinated against Covid-19 to gain access to any Sydney Water controlled site and the requirement to provide evidence acceptable to Sydney Water of being fully vaccinated or having a medical exemption”; and

·  “all employees to attend a Sydney Water site at least two days a week (in the absence of any relevant public health orders)”.

1. 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.

Section 387(c) - Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

1. 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.[52]

1. 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.[53] 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.[54]

1. On 20 January 2022, the Applicant was suspended with pay and invited to a meeting. Following that meeting, she was emailed the Show Cause Letter dated 21 January 2022.

1. The Applicant indicated in her application that she was emailed the “show cause” letter shortly after the meeting and that she was “disappointed that it provided little information about the allegation of misconduct and basic information that would constitute a show cause letter”.[55]

1. On 24 January 2022, the Applicant emailed a letter to Mr McNally, which stated:

“I refer to our meeting on 21 January 2022 where I was advised that I would be issued with a show cause letter.

The meeting appointment also stated that I would “receive a Show cause as to why you should not be terminated letter”.

I was expecting to receive such a letter after our meeting however I cannot see the words “show cause as to why you should not be terminated” in the contents of the file emailed to me on 21 January 2022. I consider that your letter does not identify as a notice to show cause. I request that you resend the letter and clarify the title and the subject of that letter.

Further, at our meeting on 21 January 2021, you advised that the letter would provide me with details of the alleged misconduct. I remain unclear about the alleged misconduct and kindly request the following:

1.        A show cause notice which includes the following:

a.        a clear statement of the allegations being made against me;
           b.        the precise date(s) of the alleged misconduct, and
           c.        the nature of the alleged misconduct.

2. In paragraph 4 of your letter you refer to “the requirements for vaccination in meeting Sydney Waters Flexible Working Policy” and in paragraph 5 you state “you were not in a position to meet this requirement (due to not being fully vaccinated)”. Please provide a clear statement on what specifically “this requirement” refers to.

3. I was advised at our meeting on 21 January 2022 that we are at the “Proposed outcome” stage in the disciplinary process. You further clarified this in a follow up email and provided an excerpt of section 2.4 of the Discipline Policy. Please provide me with a copy of any records of investigations relating to the alleged misconduct carried out under Section 2.2 of the Discipline Policy.

4. At that meeting, I was also advised that you are undertaking disciplinary action as per Clause 11.5 of my contract. Please confirm which step you are currently undertaking from the disciplinary process steps shown in the flow diagram at 4.1 of the Disciplinary Procedure.”

1. On 2 February 2022, the Applicant made the following further requests:

“Please respond to the specific information sought in my letter to you. It will help me understand the allegations being made against me.

Please also:

1.   Specify what was the “lawful and reasonable order”
2.   Provide evidence when that order was given to me
3.   Specify when I allegedly did not follow that order

4. Specify what action by me you consider to be “continued lack of compliance with our lawful and reasonable direction”.”

1. As I have earlier noted, it is unclear to me why the Applicant remained confused about what she was being asked to respond to having by this stage received the Show Cause Letter dated 21 January 2022. The contents of the Show Cause Letter dated 21 January 2022 clearly indicate that:

·  the Respondent’s Vaccination Policy, Access to Site Policy and Flexible Working Policy required employees to be vaccinated or have a medical exemption and that all employees attend site at least two days a week (in the absence of any relevant public health orders);

·  the Applicant advised that she was not intending on being vaccinated;

·  the Applicant was requested to apply for paid leave from 4 January 2022 following her carer’s leave but did not follow this request and commenced working from 4 January 2022;

·  on 12 January 2022, the Applicant was advised that “without any indication that [the Applicant] would comply with this requirement in a timely manner, [the Respondent] might then need to consider [her] ongoing employment”; and

·  as a result of the Applicant failing to comply with a lawful and reasonable direction, the Respondent proposed to terminate her employment with notice.

1. The letter indicated to the Applicant that this was her “opportunity to respond to this letter and put anything to [the Respondent] that should be considered before [the Respondent made] the final determination” and requested a response by 25 January 2022. This was extended to 31 January 2022.

1. In all the circumstances, I find that the Applicant was given an opportunity to respond to the reason for her dismissal prior to the decision to dismiss being made.

Section 387(d) - Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

1. 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.

1. There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”[56]

1. On 20 January 2022, the Applicant was invited to a meeting on 21 January 2022 and was “encouraged to bring along a support person”. It is not in contest that the Applicant brought Ms Berry as a support person to the meeting. There is no evidence suggesting that the Applicant requested and was refused a support person at any discussions relating to the dismissal.

1. In all the circumstances, I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal.

Section 387(e) - Was the Applicant warned about unsatisfactory performance before the dismissal?

1. As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.

Sections 387(f) and (g) - Size of enterprise and absence of human resource specialists or expertise

1. The Respondent is a large enterprise, with significant human resource management specialists and expertise. I find that neither the size of the Respondent’s enterprise nor an absence of human resource management specialists or expertise had any impact on the procedures followed in affecting the Applicant’s dismissal.

Section 387(h) - Other relevant matters

1. The Applicant submitted that the following matters are relevant to my consideration:[57]

·  her “attempt to understand the allegations made by [the Respondent] in [her] letter dated 24 January 2022” and that the “letter was sent in response to [the Respondent’s] letter dated 21 January 2022 where insufficient details were provided to [her] to be able to respond to the allegation of an incident that required the activation of the Discipline Policy”;

·  that she raised the “non-response to that letter in an email to [the Respondent] dated 2 Feb 2022 and 23 February 2022”; and

·  she considers that the “Grievance (Fair Treatment) Policy and Procedure and the Discipline Policy and Procedure were not adhered to by [the Respondent]”.

1. I have earlier found that the Show Cause Letter dated 21 January 2022 clearly indicated that:

·  the Respondent’s Vaccination Policy, Access to Site Policy and Flexible Working Policy required employees to be vaccinated or have a medical exemption and that all employees attend site at least two days a week (in the absence of any relevant public health orders);

·  the Applicant advised that she was not intending on being vaccinated;

·  the Applicant was requested to apply for paid leave from 4 January 2022 following her carer’s leave but did not follow this request and commenced working from 4 January 2022;

·  on 12 January 2022, the Applicant was advised that “without any indication that [the Applicant] would comply with this requirement in a timely manner, [the Respondent] might then need to consider [her] ongoing employment”; and

·  as a result of the Applicant failing to comply with a lawful and reasonable direction, the Respondent proposed to terminate her employment with notice.

1. I do not consider that the details in that letter were insufficient to enable the Applicant to respond to it as requested in the letter. The Applicant submits that she raised the “non-response” in her letter to the Respondent dated 24 January 2022 and in emails dated 2 February 2022 and 23 February 2022. However, on 27 January 2022, Mr McNally did email the Applicant stating:

“My letter to you dated 21 January 2022 outlined to you that Sydney Water was undertaking a review of your employment and inviting you to provide any further information to us that we should consider before making a final decision on your ongoing employment. My letter outlined the lawful and reasonable order we have given you which you are not complying with, the steps we have taken to achieve your compliance, and your continued lack of compliance with our lawful and reasonable direction.

We requested your contribution by 25 January 2022 but have not received it. We would encourage you to provide a response to us by 9:00 am Monday 31 January 2022 after which time we will look to come to a final determination on the matter with the information available to us at that time.”

1. I consider that this response made clear that the Applicant was required to respond to those matters raised in the letter dated 21 January 2022 and extended the time in which the Applicant could do so until 31 January 2022.

1. However, the Applicant did not provide a response to the matters raised in the letter dated 21 January 2022 concerning her non-compliance with the Respondent’s policies by the extended deadline. Instead, the Applicant emailed Mr Gantt on 31 January 2022 as follows:

   “I refer to the attached grievance raised on 12 January 2022 with my manager and PLC.

   Despite following up on 21 January 2022, I still have not received a response.

   Accordingly, I am referring this to you as my Manager Once Removed, as per Section 48 of the Employee Agreement and the associated Grievance Policy and Grievance Procedure.

I understand from iConnect that the Flexible working our way policy applies during “business as usual conditions” and that Sydney Water can “adapt our ways of working to depart from this policy as necessary”.

The company direction issued before Christmas was a departure from business as usual working. With no office staff attending to site, I have not received a satisfactory resolution for being denied the ability to continue to work from home like everyone else.”

1. While this email raised a concern about not being able to work from home, as I have found earlier, the direction to work from home was a temporary measure due to the Omicron outbreak, initially expected to be until 27 January 2022, and the Respondent’s ultimate requirement was that employees attend site two days per week and show evidence of vaccination (or a medical exemption) in order to do so. The Applicant did not address her non-compliance with this requirement.

1. On 2 February 2022, the Applicant responded to Mr McNally’s email of 27 January 2022 as follows:

“Apologies, however your email ended up in my junk folder. I have only just read it now.

I responded to your letter on 24 January 2022 and sought information on your allegations. You acknowledged that letter on 27 January 2022.

Please respond to the specific information sought in my letter to you. It will help me understand the allegations being made against me.

Please also:

1.   Specify what was the “lawful and reasonable order”
2.   Provide evidence when that order was given to me
3.   Specify when I allegedly did not follow that order

4. Specify what action by me you consider to be “continued lack of compliance with our lawful and reasonable direction.””

1. As I have earlier found, I do not consider that the details in the Respondent’s letter dated 21 January 2022 were insufficient to enable the Applicant to respond to it as requested in that letter and Mr McNally’s further letter of 27 January 2022 made it clear that the Applicant needed to respond by the extended deadline of 31 January 2022.

1. On 22 February 2022, Mr Gantt responded to the Applicant’s email of 31 January 2022 indicating that the issue at hand was the Applicant’s failure to comply with the Respondent’s lawful and reasonable directions, and the focus needs to be on that issue and that, as she had “not provided any relevant and cogent feedback for consideration ahead of a final determination”, he had “no choice but to consider and approve a course of action leading to termination with notice” and that further official written communications would follow. The termination of the Applicant’s employment followed her failure to respond directly to the issues raised in the letter of 21 January 2022 or otherwise produce evidence of compliance with the Respondent’s requirements.

1. I have had regard to the Applicant’s submission that the “Grievance (Fair Treatment) Policy and Procedure and the Discipline Policy and Procedure were not adhered to by [the Respondent]”.[58]

1. The Applicant’s grievance was that she wanted to be able to work from home like other employees while the Respondent’s direction to do so was in place. I consider that aspects in the lead up to the Applicant’s dismissal could have been handled better. For example, given the temporary requirement for people to work from home from 23 December 2021, the Applicant could have been told that the dismissal was proposed to take effect as soon as people returned to work and she could have been permitted to continue working from home until this time rather than being asked to take leave and being placed on suspension with pay.

1. However, on the other hand, I appreciate that the circumstances regarding the COVID-19 outbreak at that time were rapidly evolving, as was NSW Government policy in response, and that the directive to work from home was clearly a temporary one (initially expected to come to an end on 27 January 2022). Before the Applicant commenced carer’s leave in November 2021, the Respondent had put in place a course of action to ensure that she was aware of its expectations regarding site attendance and vaccination requirements and it may have been even more confusing if the Respondent had have communicated to the Applicant expectations upon her return that were different to those given to her prior to taking leave.

1. The Respondent had already consulted about its policies, made decisions in relation to them and communicated those policies to its employees in December 2021 before the temporary Omicron outbreak measures regarding working from home were communicated. I accept that the Respondent needed to take steps to ensure that employees were aware of and compliant with its requirements in relation to site attendance and vaccination in time for the return to hybrid working, which was reasonably expected to occur at some point close to the Applicant’s dismissal on 23 February 2022.

1. As it turned out, hybrid working resumed on 28 February 2022 so even if the Applicant was permitted to work from home, this would only have been for a short time. I also note that the Applicant’s employment was terminated on 23 February 2022 with payment of notice in lieu and she would not have been able to meet the requirement to work on site had she worked through the notice period given employees were required to return to hybrid working from 28 February 2022. In these circumstances, I do not consider that the grievance raised by the Applicant or the Respondent’s means of dealing with it would have changed the outcome, being the Applicant’s dismissal from her employment, and I do not consider that this has a bearing on my finding as to whether the dismissal was unfair.

1. In relation to the Applicant’s concern regarding the Respondent’s non-adherence with the “Discipline Policy and Procedure”, I have considered the materials filed by the Applicant that turn to this matter. In her submissions, the Applicant states:

·  the “Respondent prematurely commenced a disciplinary process. The Respondent did not follow its policies and procedures”;[59] and

·  the “Respondent’s long standing policies concerning its disciplinary and grievance processes, were not adhered to”,[60]

however the Applicant does not explain why she says this in her submissions.

1. In her statement of evidence, the Applicant states that, at the meeting on 21 January 2022, she asked what step in the disciplinary process the Respondent was at and Mr Connolly advised her it was at the “proposed outcome” stage.[61] On 21 January 2022, Mr McNally confirmed this via an email in which he stated:

“A [sic] have attached the Discipline Policy and the excerpt below on where we are at in the process.

2.4 The outcome

A decision will be made as to whether the allegation(s) have been substantiated and whether disciplinary action should be taken. If it’s decided that the allegations are substantiated the employee and their representative will be provided reasons for the decision made, taking into account the employee’s response. Action taken may include but is not limited to:

·  plan to improve behaviour/performance

·  verbal warning

·  written warning

·  transfer to a new work group, position or location

·  regression to a lower rate of pay

·  termination with or without notice (in which case the employee will be afforded a further opportunity to respond to address any mitigating circumstances, before the action is taken)

·  other action deemed to be appropriate.

Substantiating allegations does not necessarily lead to disciplinary action – there may be valid mitigating circumstances that have a legitimate impact on disciplinary action. Each case will be determined on its merits.
In all cases any penalty imposed must be proportionate to the breach when considered in light of all of the circumstances of a case….”

1. The Applicant filed a copy of her letter dated 24 January 2022, which was emailed to Mr McNally, in which she states:

“3. I was advised at our meeting on 21 January 2022 that we are at the “Proposed outcome” stage in the disciplinary process. You further clarified this in a follow up email and provided an excerpt of section 2.4 of the Discipline Policy. Please provide me with a copy of any records of investigations relating to the alleged misconduct carried out under Section 2.2 of the Discipline Policy.

4. At that meeting, I was also advised that you are undertaking disciplinary action as per Clause 11.5 of my contract. Please confirm which step you are currently undertaking from the disciplinary process steps shown in the flow diagram at 4.1 of the Disciplinary Procedure.”

1. It is unclear to me exactly what the exact nature of the deficiency was, however in her application the Applicant states:

“…the dismissal was harsh because it was too severe and disproportional in the absence of clear information of any alleged misconduct. I consider that a full and extensive investigation into the alleged misconduct did not take place. For if it did, I would have been made aware when it was initiated and provided with copies of the details when I requested them in my letter of 24 Jan 2022. I remain adamant that I have not taken any action/s that would be deemed misconduct or warrant dismissal.”[62]

1. The Respondent submitted that there was not, “as asserted by the Applicant, any obligation to follow any elaborate process under any disciplinary policy. The issues were clear: the Applicant would not comply with a safety directive.”[63]

1. As I have earlier found, it was clear that, during the show cause process, the Respondent was putting to the Applicant that she had not complied with its lawful and reasonable directions, being the requirement for employees to provide evidence of vaccination or a medical exemption and to attend site at least two days a week (in the absence of any relevant public health orders) and the Applicant was invited to provide a response before the Respondent made its ultimate decision to terminate her employment. The Applicant’s manager had previous discussions with the Applicant about this and, at the time of her dismissal, she had not produced evidence that she had met the requirements. If the Applicant is asserting that some broader investigation was required, it is difficult to see what utility this would have had or how this would have yielded a different result. The Applicant was required to produce evidence acceptable to the Respondent of being fully vaccinated or having a medical exemption, did not do so and was ultimately dismissed as a result.

1. I do not consider that the matters raised by the Applicant have a bearing on my consideration as to whether the dismissal was harsh, unjust or unreasonable.

1. The Applicant was a long serving employee. An employee’s long and satisfactory work performance or history may be taken into consideration under s.387(h) of the FW Act and, depending on all the circumstances, may weigh in favour of a conclusion that the dismissal of the employee was harsh, unjust or unreasonable.[64] In this regard, the Respondent submitted that, while it can be accepted the Applicant had 18 years’ service, without incident, the fact remains that she was not, and will not be, compliant with the Respondent’s safety directive and requirement to be vaccinated to work at the office and, in those circumstances, her employment could not continue. In the circumstances of this matter, I do not consider that Applicant’s length of service has a bearing on my consideration as to whether the dismissal was harsh, unjust or unreasonable.

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 s.387 of the FW Act as relevant.

1. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[65]

1. Having considered each of the matters specified in s.387 of the FW Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable. The Respondent had valid reasons for the dismissal and afforded procedural fairness to the Applicant prior to making the decision to bring her employment to an end.

1. The application is dismissed.

COMMISSIONER

Appearances:

Ms M Georgievska on her own behalf.
Ms R Mifsud on behalf of the Respondent.

Conference details:

2022.
Sydney (by Video using Microsoft Teams).
May 30.

[1] Applicant, ‘Outline of argument: merits’, filed 22 April 2022, 7a.

[2] Respondent, ‘Outline of Submissions’, filed 9 May 2022, [5]-[9].

[3] Ibid, [10].

[4] Respondent, ‘Flexible Working Policy’, filed 9 May 2022, 1.3; 2.2; 3.

[5] Respondent, ‘Outline of Submissions’, filed 9 May 2022, [31(b)].

[6] Applicant, ‘Statement of evidence’, filed 22 April 2022, 1.

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] Ibid.

[11] Ibid, 1-2.

[12] Ibid, 3.

[13] Ibid, 1; Respondent, ‘Form F3 – Employer response to unfair dismissal application’, filed 5 April 2022, 1.5.

[14] Respondent, ‘Form F3 – Employer response to unfair dismissal application’, filed 5 April 2022, 1.1.

[15] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

[16] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

[17] Ibid.

[18] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.

[19] Woolworths Ltd (t/as Safeway) v Brown PR963023 (AIRCFB, Lawler VP, Lloyd SDP, Bacon C, 26 September 2005), [34].

[20] Briggs v AWH Pty Ltd[2013] FWCFB 3316, [8].

[21] The King v Darling Island Stevedoring and Lighterage Company Limited; Ex parte Halliday and Sullivan (1938) 60 CLR 601, 622 (per Dixon J).

[22] Izdes v L.G. Bennett & Co Pty Ltd t/as Alba Industries [1995] IRCA 499.

[23] Respondent, ‘Outline of Submissions’, filed 9 May 2022, [21].

[24] Ibid, [24].

[25] Ibid, [25].

[26] Ibid, [28].

[27] Ibid, [29].

[28] Ibid, [30].

[29] Applicant, ‘Outline of argument: merits’, filed 22 April 2022, 3c.

[30] Ibid.

[31] Ibid, 4c.

[32] Respondent, ‘Witness Statement of Christian Mark McNally’, dated 9 May 2022, [37].

[33] Applicant, ‘Statement of evidence’, filed 22 April 2022, 1-2.

[34] Respondent, ‘Witness Statement of Christian Mark McNally’, dated 9 May 2022, [45].

[35] Ibid, [46].

[36] Ibid, [41].

[37] Ibid, [43].

[38] Applicant, ‘Outline of argument: merits’, filed 22 April 2022, 3c.

[39] Woolworths Ltd (t/as Safeway) v Brown PR963023 (AIRCFB, Lawler VP, Lloyd SDP, Bacon C, 26 September 2005), [34].

[40] Briggs v AWH Pty Ltd[2013] FWCFB 3316, [8].

[41] The King v Darling Island Stevedoring and Lighterage Company Limited; Ex parte Halliday and Sullivan (1938) 60 CLR 601, 622 (per Dixon J).

[42] [2015] FWCFB 1033.

[43] Respondent, ‘Witness Statement of Christian Mark McNally’, dated 9 May 2022, [41].

[44] [2022] FWC 300.

[45] Ibid, [39].

[46] Ibid, [40]-[42].

[47] [2021] FWCFB 6059.

[48] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].

[49] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

[50] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

[51] Ibid.

[52] 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].

[53] RMIT v Asher (2010) 194 IR 1, 14-15.

[54] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

[55] Applicant, ‘Form F2 – Unfair dismissal application’, filed 14 March 2022, 3.2 [16].

[56] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].

[57] Applicant, ‘Outline of argument: merits’, filed 22 April 2022, 4d.

[58] Ibid.

[59] Applicant, ‘Submission to Respondent’s Outline of Argument’, filed 23 May 2022, [3].

[60] Ibid, [16].

[61] Applicant, ‘Statement of evidence’, filed 22 April 2022, 3.

[62] Applicant, ‘Form F2 – Unfair dismissal application’, filed 14 March 2022, 3.2.

[63] Respondent, ‘Outline of Submissions’, filed 9 May 2022, [47].

[64] Telstra Corporation v Streeter [2008] AIRCFB 15, [27].

[65] 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].

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