Mara Laurie v Whitehorse City Council
[2022] FWC 1259
•24 MAY 2022
| [2022] FWC 1259 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mara Laurie
v
Whitehorse City Council
(U2022/530)
| DEPUTY PRESIDENT YOUNG | MELBOURNE, 24 MAY 2022 |
Application for an unfair dismissal remedy – dismissal not harsh, unjust or unreasonable – application dismissed.
Introduction
On 9 January 2022, Ms Mara Laurie (Applicant) made an application to the Fair Work Commission (Commission) under section 394 of the Fair Work Act 2009 (Cth) (Act) for a remedy, alleging that she had been unfairly dismissed from her employment with the Whitehorse City Council (Council). Ms Laurie seeks among other things, compensation and reinstatement.
Council denies that Ms Laurie was unfairly dismissed.
Hearing and Witnesses
Ms Laurie’s application was the subject of a hearing before me on 10 May 2022.
Mr Robert Laurie, Ms Laurie’s husband, appeared on her behalf. Council sought permission to be represented by Ms Gemma Carroll of Maddocks Lawyers. I considered that representation of Council would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. Accordingly, I granted permission for Ms Carroll to appear for Council pursuant to section 596(2)(a) of the Act.
Ms Laurie gave evidence on her own behalf.
Ms Siobhan Belmore, Manager of Major Projects for Council, gave evidence on behalf of Council.
Ms Laurie filed her Outline of Argument and supporting material on 3 April 2022. Council filed its Outline of Argument, witness statements and supporting material on 22 April 2022. Ms Laurie did not file a witness statement and it was agreed at the commencement of the hearing that her Form F2 and her Outline of Argument would comprise her evidence in this matter.
Initial matters
Turning first to the initial matters which must be decided before the merits of the application are considered, it is not in dispute and I find that:
· the application was made within the period required in subsection 394(2);
· Council is not a small business employer, having 15 or more employees at the relevant time and the Small Business Fair Dismissal Code therefore does not apply;
· Ms Laurie was an employee who had completed a period of employment with Council of at least the minimum employment period;
· at the time of dismissal Ms Laurie was a person protected from unfair dismissal; and
· the dismissal was not effected for reasons of redundancy, and so it was not a case of genuine redundancy.
Conclusion
I have concluded that Ms Laurie’s dismissal was not harsh, unjust or unreasonable. These are my reasons for that conclusion.
Employment
Ms Laurie commenced employment with Council as a casual employee on 1 July 2015 and worked in various roles and departments.[1]
At the time of her dismissal Ms Laurie was employed on a full-time basis in the position of Assistant Project Manager (Position), as a member of the Major Projects team, pursuant to a written contract of employment dated 19 November 2018.[2]
The Respondent submits,[3] and I find, that Ms Laurie was a Council employee appointed under section 48 of the Local Government Act 2020 (LG Act).
Dismissal
By letter dated 20 December 2022[4] (Termination Letter) Ms Laurie’s employment with Council was terminated, effective immediately.
The Termination Letter refers to the “COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 1)” and, relevantly, provides as follows:
“The Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 1) and previous health orders released by the Chief Health Officer require that for workers to work outside of their home that they must be fully vaccinated against COVID19 by 26 November 2021; or an excepted person. The Directions further require that the employer must collect, record and hold the vaccination information about the worker. In addition, all workers employed under the Local Government Act 2020 must be vaccinated in accordance with the Directions in order to be able to undertake the inherent requirements of their role.
Being able to attend the workplace is an inherent requirement of all roles at Council. (Section 12.2.6 Vaccination Management Policy, attached).
We have considered your response to our request that you show cause why your employment should not be concluded. Your response has not given Council cause to change its decision in this case. By being unable to attend the workplace you are unable to perform the inherent requirements of your role.
Confirmation of your vaccination status.
In accordance with clause 7 of the Vaccination Management Policy, we have previously confirmed your vaccination status to be not vaccinated and not consenting to being vaccinated other than for medical reasons (‘Refusal’). This means you are unable or unwilling to fulfil the requirements of your role and is in breach of your employment obligations as a Local Government worker.Impact on your employment
I regret to inform you that your employment is being concluded as you are not able to fulfil the inherent requirements of your role and your obligations as an employee. Your employment with Whitehorse City Council will be concluded effective 20 December 2021.In accordance with the Whitehorse City Council Collective Agreement 2019, you will be paid four (4) week’s pay in lieu of notice and one (1) week’s pay as you are over 45 years of age. Payment will also be made for any outstanding annual and long service leave accruals.
…”
Background and Factual Findings
Mandatory Vaccination Direction
On 25 August 2021 Mr Simon McMillan, Chief Executive Officer of Council, sent a CEO Update encouraging all Council employees to be vaccinated against COVID-19.[5]
On 22 September 2021 a meeting of the Major Projects team via Microsoft Teams was held. At this meeting, Ms Laurie stated that she would not receive a COVID-19 vaccination. Following this meeting, Ms Belmore had “a couple” of informal discussions with Ms Laurie, in which Ms Belmore encouraged Ms Laurie to speak with her general practitioner about the COVID-19 vaccine.[6]
On 13 October 2021 a CEO Update was sent to all employees via email informing them, amongst other things, that from 15 October 2021 Authorised Workers “may not leave home for any work purpose unless you are confirmed to be compliant with the vaccination status requirements”.[7]
On 15 October 2021 the Victorian Acting Chief Health Officer issued the COVID-19 Mandatory Vaccination (Workers) Directions (No 2) (Direction) pursuant to section 200 of the Public Health and Wellbeing Act 2008 (Vic) (PHW Act). The Direction commenced at 11.59 pm on 14 October 2021. Council submits, and I find, that the Direction applied to Ms Laurie. The Direction imposed certain obligations on employers in relation to the vaccination of “workers”. “Worker” is defined in the Direction to include a “public sector worker”.[8] A “public sector worker” is defined to include a “local government worker”.[9] A “local government worker” is defined to be a member of Council staff appointed under section 48 of the LGA.[10] Accordingly, I find that Ms Laurie was a “worker” for the purposes of the Direction and the Direction therefore applied to Council in respect of Ms Laurie.
The Direction required Council to collect, record and hold vaccination information of a worker who is or may be scheduled to work outside their ordinary place of residence on or after the “relevant date.” The Direction also required that after the relevant date Council must not permit a worker who is unvaccinated to work for it outside the worker’s ordinary place of residence. The relevant date for public sector workers was 15 October 2021.[11] Unvaccinated is defined in the Direction to mean a person who has not received a dose of a COVID-19 vaccine and does not have a valid medical exemption.[12] However, under the Direction Council could, between the relevant date and the “first dose deadline”, permit a worker who was unvaccinated and had a booking to receive a first dose COVID-19 vaccine by the first dose deadline that will cause the worker to become partially vaccinated, to work for the employer outside the worker’s ordinary place of residence.[13] Relevantly, the first dose deadline was 22 October 2021.[14] Finally, the Direction required that workers be fully vaccinated by 26 November 2021.[15]
The Direction lapsed at 11.59 pm on 21 October 2021 and was replaced on several occasions by further directions substantially to the same effect. On 15 December 2021 the Minister for Health made the Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No 1) pursuant to section 165AI of the PHW Act (Order). The Order revoked the then applicable workers direction.[16] The Order commenced at 11.59 pm on 15 December 2021 and is to substantially the same effect as the Direction. The Order has been replaced on several occasions and remains in force.[17]
At no point has the Direction and Order been found to be unlawful or invalid by a court of competent jurisdiction.
The Position
At the time of Ms Laurie’s dismissal the Major Projects team comprised 9 employees, divided into two teams. The team in which Ms Laurie worked comprised a Project Director, two Senior Project Managers and an Assistant Project Manager, being Ms Laurie. Ms Laurie’s role was to provide support to the two Senior Project Managers. The Position Description for the Position describes the role as being “to assist the Project Management team to co-ordinate and project manage the design, tendering, construction and hand over of buildings and related capital projects to achieve outcomes that meet quality, time and stakeholder expectations”.[18]
Council submits that the Position required Ms Laurie, in addition to other duties, to attend project sites to perform her duties (On Site Duties).[19] It submits that it was a requirement of the Position that she attend On Site Duties for approximately 1 to 5 days per week. It submits that Ms Laurie performed On Site Duties before commencing work from home in March 2020 and also during the pandemic, when permitted.[20]
Ms Belmore’s evidence was that the Position required Ms Laurie, amongst other things, to liaise with clients, contractors, consultants and stakeholders both on and off project sites. On Site Duties included providing site access, overseeing defect rectification works, managing signage installations and furniture deliveries.[21] Her further evidence was that the frequency of Ms Laurie’s On Site Duties varied depending on which phase a project was in[22] and that Ms Laurie was required to be available to attend a project site at any time if the need arose.[23] In addition, Ms Belmore’s evidence was that in 2020 and 2021 Ms Laurie was issued with a Permitted Worker Permit and an Authorised Worker Permit (collectively, Permits), respectively, allowing her to work outside her home during lockdown as she could not perform all of her duties from home.[24]
In her Outline of Argument Ms Laurie submits that she, as well as all other team members, successfully completed all duties remotely from home via digital technologies.[25] I reject that submission. At hearing Ms Laurie’s own evidence was that prior to commencing working from home in around March 2020 the Position required On Site Duties and that during the periods of Victoria’s lockdown she was issued with the Permits and performed On Site Duties as required and when permitted.[26] Further, consistent with Ms Belmore’s evidence Ms Laurie’s evidence was also that the extent of On Site Duties varied depending on the phase a project was in.[27] Accordingly, I find that the Position required Ms Laurie to attend On Site Duties. Ms Laurie therefore could not adequately perform all of the duties of the Position from home via digital technologies.
Meetings and communications to discuss vaccination status
On 14 October 2021 Ms Belmore and Mr James Thyer, People and Culture Manager for Council, met with Ms Laurie via Microsoft Teams.[28] At this meeting Ms Laurie confirmed that she was not vaccinated[29] and did not intend to be so. It was agreed that as Ms Laurie was not compliant with the Direction she could not leave home to perform work and that Ms Belmore would consult with the other members of the Major Projects team about temporarily redistributing Ms Laurie’s On Site Duties for a period of four weeks, while Council considered its position and Ms Laurie considered her options. On 18 October 2021 Ms Belmore sent a letter, via email, to Ms Laurie confirming the discussions on 14 October 2021.[30]
It appears uncontested that Ms Laurie’s On Site Duties were redistributed to other members of the Major Projects team during this four week period. On 15 November 2021 Ms Belmore met with Ms Laurie again. Following that meeting Ms Belmore sent a further letter to Ms Laurie. That letter refers to the requirements of the Direction and includes the following:
“Our letter to you dated 18 October 2021, confirmed your advice that you did not comply with the vaccination requirements outlined in the Directions. At that time, as a temporary measure to enable you to further consider your personal circumstances, we approved a period of temporary work from home and your colleagues agreed to complete your onsite duties during this time.
As the end of that temporary period approaches, we request that you confirm your vaccination status with Council so we are able to determine:
1.Confirmation you have commenced your vaccination program and you are able to resume your substantive role; or
2.if requested, provide you with a further period of temporary work from home whilst you finalise your vaccination status.
In the first instance, please contact me by return email to advise which of the above options describes your situation.”[31]
On 26 November 2021 Ms Laurie sent an email to Ms Belmore requesting she be granted “a further period of temporary work from home whilst vaccination status is finalised.”[32] It appears uncontested that it had been agreed that Ms Laurie could work from home until 26 November 2021, with other team members performing Ms Laurie’s On Site Duties. Ms Laurie also sent a further email and letter to Council’s COVID-19 Hotline on that date. In the email Ms Laurie states “I respectfully decline[s] to use any of the scripted statements provided by Whitehorse Council. I prefer to use my own words to describe circumstances specific and unique to me. To fulfil Whitehorse Council’s request for information about my specific and unique circumstances, please refer to the attached document.”[33] In the attached letter (Hotline Letter) Ms Laurie states, amongst other things, that she is “not refusing to take covid vaccinations”, there is no COVID-19 vaccination “anywhere in existence that has full TGA approval”, clinical trials for COVID-19 vaccination are therefore “incomplete and inconclusive” and because of this “nobody, including licenced medical practitioners, is able to fully evaluate and confirm the suitability of covid vaccinations for use in my specific and unique circumstances.” The Hotline Letter concludes as follows:
“I now humble myself to ask for Whitehorse Council’s grace; that for the entire time that covid vaccinations are “deemed mandatory” by any authority(ies), Whitehorse Council will allow me to continue to serve, Whitehorse Council and its stakeholders, remotely, via digital technologies.” [34]
It is to be noted that Ms Laurie provided no details of her asserted “specific and unique circumstances” and at no point provided a medical exemption or any other medical information to Council.
On 30 November 2021 Ms Belmore emailed Ms Laurie asking that she advise her of the period required to finalise her vaccination status so that Ms Laurie’s request for a further period of temporary work from home to do this, as set out in the email of 26 November 2021, could be considered.[35] Ms Laurie responded referring Ms Belmore to the Hotline Letter. [36] Ms Belmore understood this to be a request by Ms Laurie to work from home until vaccinations for work outside of home were no longer required.[37]
On 2 December 2021 Ms Belmore wrote to Ms Laurie (Show Cause Letter).[38] In the Show Cause Letter, amongst other things, Ms Belmore directed Ms Laurie to confirm her current vaccination status in writing via email by 5.00 pm 10 December 2021 and stated that a failure to do so would be regarded as “not vaccinated and not consenting to be vaccinated other than for medical reasons.” The letter also included the following:
“Impact on your employment
Should you intend to remain unvaccinated and/or you do not respond to this reasonable management direction to provide your vaccination status, you are requested to provide justification to council (“show cause”) why your employment should be continued given you are unable to meet the inherent requirements of your role or fulfil your employment obligations. Your response should be sent via return email to me by 5.00 pm Friday 10 December 2021.Temporary arrangement
I note that you are currently working from home up until the previously agreed date of 26 November 2021. The current arrangements may continue to apply until 15 December 2021 by which time we expect to have reached a decision about your employment.…” [39]
Termination of employment
On 10 December 2021 Ms Laurie responded to the Show Cause Letter (Response) stating, amongst other things, that she was not refusing to obey the reasonable management directions of Council and that “I have not broken the Australian Law. I have done nothing illegal. I have nothing to explain by way of “show cause” ”. The Response also asked a number of questions and raised a number of matters directed to, in summary, the nature of the TGA approval of COVID-19 vaccinations, the safety of COVID-19 vaccinations including asking whether Council had undertaken its own due diligence as to this and the “scientific truths” regarding COVID-19 vaccinations and the lawfulness or otherwise of the Direction. The Response included the following statements:
“There is absolutely no reason why my employment, or anybody else’s anywhere, for that matter, should be placed under any scrutiny, in question, or under a cloud of doubt, whatsoever, because of a “state of emergency”, associated pandemic laws, and/or anything else that has come or will come to pass consequential to the covid 19 virus itself.
And finally, at 11:59pm on 15th December, 2021, the statute of limitations will have been reached that specify that any lawful extensions to the “state of emergency” are impossible. “At the same time, this also means that all “mandates” forced upon society as a result of the “state of emergency” will be null and void.
In Australia, nobody has the liberty to take the liberty of others away, for any reason.
When it comes to the rule of law in Australia, the Australian Constitution is absolute.
Therefore, what Whitehorse Council is being forced to do by the State Government, under the guise of a “state of emergency”, is not only unreasonable, it is unlawful.
All the facts that have been presented above confirm that there is no law that prevents me from presenting myself, at Whitehorse Council, to work, at 9:00am on 16th December, 2021.…”[40]
Ms Belmore subsequently sent Ms Laurie an invitation to a meeting on 20 December 2021 via Microsoft Teams. The purpose of the meeting was stated to be “for Council to explain the outcome of its consideration of your inability to attend the workplace.” Ms Laurie was informed of her ability to bring a support person.[41]
On 20 December 2021 Ms Belmore and Mr Thyer met with Ms Laurie via Microsoft Teams. Ms Belmore advised Ms Laurie that Council had decided to terminate her employment, effective immediately, due to her inability to perform the requirements of her role. Ms Laurie was provided with 5 weeks’ pay in lieu of notice. [42]
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[43]
I set out my consideration of each below.
Was there a valid reason for Ms Laurie’s dismissal? – Section 387(a)
The principles that are relevant to the consideration of whether there was a valid reason for the dismissal related to the employee’s capacity or conduct are well established. A valid reason is one that is “sound, defensible or well founded”[44] and should not be “capricious, fanciful, spiteful or prejudiced.”[45]
The Commission does not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[46] The question the Commission must address is whether there is a valid reason, in the sense both that it was a good reason and a substantiated reason.
The Act requires consideration of whether there was ‘a’ valid reason for dismissal. Where several reasons for termination are invoked, it is not necessarily the case that all must be substantiated. [47] It is also well established that a valid reason need not necessarily be the one relied upon by the employer.[48]
Applicant’s submissions
In her Outline of Argument Ms Laurie submits, inter alia, that there was no valid reason for her dismissal as she had successfully worked from home for the bulk of 2021.[49] She submits that Council failed to consider the following alternatives and matters which would have allowed her to continue to work from home:
(a)continuation of the working from home arrangement;[50]
(b)alternative positions or duties that Ms Laurie could perform remotely;[51]
(c)performing On Site Duties outside of regular business hours; [52]
(d)other employees’ willingness to perform Ms Laurie’s On Site Duties; and[53]
(e)there are no major projects requiring site visitation until April or May 2022,[54] (collectively, Alternative Arrangements).
Secondly, Ms Laurie submits that all of the Major Projects team have continued to work from home and have only recently returned to the office on a part-time basis.[55] Thirdly, Ms Laurie submits that the Direction and Order are “illegitimate” and makes reference to “Constitutional Law”, the “Biosecurity Act 2105”, “Commonwealth Law” and matters relevant to Commonwealth employees.[56]
Respondent’s submissions
The Respondent submits that there was a valid reason for the dismissal. It submits that the Direction and subsequent Order applied to Ms Laurie in her work for Council and accordingly, Council was required to ensure that workers who worked outside of their home were fully vaccinated by no later than 26 November 2021, unless an excepted person. Council submits that it was a requirement of the Position that Ms Laurie be able to attend site and the office, and that as Ms Laurie was and remains unvaccinated against COVID-19 she was unable to perform the inherent requirements of the Position.[57] It submits Council was entitled to require Ms Laurie to carry out the full range of her duties.[58] It further submits that working from home arrangements put in place following the introduction of the Direction were a temporary measure only and placed enormous pressure on the remainder of the Major Projects team. As such, it was not supported as a long term solution.[59]
Valid reason
The reason for Ms Laurie’s dismissal is set out in the Termination Letter. As set out above, the Termination Letter refers to the Order and provides that Ms Laurie was dismissed “as you are not able to fulfil the inherent requirements of your role and your obligations as an employee.”
I first address the asserted “illegitimacy” of the Direction and Order. The Direction was made by the Acting Chief Health Officer pursuant to section 200 of the PHW Act and the Order by the Minster for Health pursuant to section 165AI of the PHW Act. Council was entitled to, and indeed required to, treat the Direction and Order as lawful and requiring compliance. Further, the lawfulness of the Direction and the Order are not a matter for this Commission. At the time of the dismissal, and indeed to date, neither the Direction nor the Order has been declared by a court to be invalid. The Commission is an administrative tribunal and will carry out its functions according to the law, proceeding on the basis that legislation and delegated legislation is valid until a court says otherwise. I add that in any event I do not consider the arguments advanced by Ms Laurie to cast doubt on the validity of the Direction or the Order. As to matters relevant to Commonwealth employees, they simply have no application in the present circumstances. Ms Laurie is not a Commonwealth employee and remains subject to Victorian state law until such law is determined by a court to be invalid.
Under the terms of the Direction, Ms Laurie did not provide the required vaccination information and was therefore considered unvaccinated. Further, her evidence at hearing was that she was, and remains, unvaccinated against COVID-19.[60] Accordingly, from 15 October 2021 the Direction required that Council not permit Ms Laurie to work for it outside her ordinary place of residence. I have earlier found that the Position required Ms Laurie to perform On Site Duties. In circumstances where Ms Laurie’s role required that she attend project sites and she was prohibited from doing so under the terms of the Direction and Order, I do not consider that she was ready, willing and able to perform the requirements of her role. For completeness, that the On Site Duties varied in frequency depending on the stage of the project or that Council has not precisely quantified the proportion of the Position comprised of the On Site Duties,[61] is not to the point. The On Site Duties were a requirement of Ms Laurie’s role and from 15 October 2021 she was unable to perform those duties. Indeed, after 15 October 2021 the On Site Duties were redistributed to other members of the team, further evidencing that those duties were a necessary and required component of the Position.
I reject the submission that Ms Laurie had “successfully worked from home” for the bulk of 2021. Her own evidence is that during that time she was issued with the Permits and continued to be required to perform On Site Duties.
As to Ms Laurie’s submissions regarding the Alternative Arrangements, I reject those submissions. Firstly, Ms Laurie could not fulfil the requirements of the Position working from home. She could not perform the On Site Duties. The arrangement that Ms Laurie work from home without On Site Duties being performed was put in place as a temporary measure to allow Ms Laurie time to consider her options following the introduction of the Direction. I do not consider that it would have been reasonable for Council to waive for an indefinite period the requirement that Ms Laurie be ready, willing and able to perform the full range of her duties. At hearing Ms Laurie submitted that the pandemic is finite and will end.[62] Whilst that may be correct, it is the case that the obligations under the Order still remain in force and some seven months after their introduction Ms Laurie is still not permitted to perform the On Site Duties as she remains unvaccinated. Further, Ms Laurie would not be able to attend the office for a minimum of three days per week as has been the expectation for all employees of Council since late February 2022.[63] Secondly, Ms Laurie was employed in the Position. The Respondent was entitled to require performance of all of the duties of that position. It was not required to provide or consider alternative duties or positions. Thirdly, after 15 October 2021 the Direction precluded Council from permitting Ms Laurie to perform work for it outside her residence if she was unvaccinated. Accordingly, it matters not when those duties are performed. The Direction provided no provision allowing unvaccinated workers to work outside their residence if that work was performed outside of business hours. Fourthly, it is uncontested that between 15 October 2021 and 26 November 2021 Ms Laurie’s On Site Duties were redistributed amongst the two Senior Project Managers in her team while Ms Laurie considered her position. Accordingly, Council did give consideration to this alternative. However, I consider it obvious that requiring other team members on an on-going basis to perform Ms Laurie’s On Site Duties, in addition to their own duties, is unsustainable and unreasonable. Further, Ms Belmore’s evidence was that Ms Laurie’s absence had a significant impact on the team, increasing the Senior Project Managers workloads and putting added pressure on the Project Director. Ms Belmore’s further evidence was Ms Laurie’s absence took key project staff away from their duties and meant that other members of the team were significantly overcapacity. Ms Belmore submitted that the other members of the team “were juggling what they were doing, typically as part of their responsibilities and taking on additional work components that Ms Laurie would be doing.”[64] Further, Ms Belmore’s evidence at hearing was that if an employee in her team was on leave for “anything more than four to five weeks” the Council would be “looking at back-filling”[65] And that for a three month period of time the Council would “definitely need to look to back-filling.”[66] I accept that evidence and find that the redistribution of On Site Duties to other team members was not viable or reasonable for an extended period of time. Finally, as to required site visitations, Ms Belmore’s evidence, which I accept, was that “(i)t is in everybody's job description within my department that they are required to attend site.”[67] Further, under cross examination she said that the nature of the work undertaking by the Major Project team requires any team member to be able to attend a construction site where a project is in progress at any given time.[68]
Finally, as to the submission that all of the Major Projects team have continued to work from home and have only recently returned to the office on a part-time basis, I reject that submission. Whilst Ms Belmore’s evidence was that all Major Project team members worked from home in late 2021 and early 2022 while that was the recommendation of the Victorian Government, her further evidence was that team members continued to perform all on site duties during this time.[69] Ms Belmore’s further evidence is that working from home is not a productive or efficient way to manage a project and the team returned to the office as soon as possible in 2022. On 22 February 2022 Ms Belmore emailed the Major Projects team informing them that from 28 February 2022 the team could return to the office and that employees were expected to be in the office a minimum of three days per week.[70] Her further evidence, was that her whole team is “back in the office full time”[71] following a direction from her that this occur.[72] Under cross examination she did not resile from this position[73] and I accept that evidence.
Was Ms Laurie notified of the valid reason? – Section 387(b)
Section 387(b) requires the Commission to take into account whether an employee has been notified of the reasons for dismissal. Notification of a valid reason for termination must be given before the decision is made to terminate the employee’s employment,[74] and in explicit[75] and plain and clear terms.[76] In Crozier v Palazzo Corporation Pty Ltd(t/as Noble Park Storage and Transport)[77] a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 observed:
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”[78]
Ms Laurie was notified of the valid reason for the termination of her employment in the Show Cause Letter and the Termination Letter.
Was Ms Laurie given an opportunity to respond to any valid reason related to her capacity or conduct? - Section 387(c)
Section 387(c) requires the Commission to take into account whether an employee was provided an opportunity to respond to any reason for their dismissal relating to their conduct or performance. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[79]
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.[80] 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.[81]
In Wadey v YMCA Canberra[82] Moore J stated the following principle about the right of an employee to appropriately defend allegations made by the employer:
“[T]he opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.”
Ms Laurie was provided with an opportunity to respond to the Show Cause Letter and did so, in writing, on 10 December 2021.
Did the School unreasonably refuse to allow Ms Laurie to have a support person present to assist at discussions relating to the dismissal? - Section 387(d)
Section 387(d) requires the Commission to take into account whether there was an unreasonable refusal by the employer to allow an employee to have a support person present to assist in discussions relating to dismissal.
It is not contended that Ms Laurie was refused a support person. Ms Laurie was informed of her ability to have a support person present at the meeting on 20 December 2021 and chose not to do so.
Was Ms Laurie warned about unsatisfactory performance before the dismissal - Section 387(e)
If a dismissal relates to unsatisfactory performance, section 387(e) requires the Commission to consider whether the employee has been warned about the unsatisfactory performance prior to dismissal.
It is uncontested that Ms Laurie’s dismissal was not related to her performance. This ground is therefore not presently relevant.
To what degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resource management specialists or expertise in Council’s enterprise would be likely to impact on the procedures followed in effecting the dismissal? - Section 387(f) and (g)
Section 387(f) and (g) require the Commission take into account the degree to which the size of the employer’s enterprise and the absence of dedicated human resources management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal.
Council is a large employer and employs approximately 876 employees.[83] The size of the employer’s enterprise would have no impact on the procedures followed in effecting dismissal. There was no absence of dedicated human resource management specialist or expertise in Council’s enterprise.[84] Accordingly, section 387 (f) and (g) have no application.
What other matters are relevant? - Section 387(h)
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is to take into account any other matters that it considers relevant.
It is well accepted that a dismissal may be harsh, unjust or unreasonable despite the existence of a valid reason for the dismissal. In B v Australian Postal Corporation[85] the Full Bench stated that:
“That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be ‘relevant matters’ that do not bear upon whether there was a ‘valid reason’ for the dismissal but do bear upon whether the dismissal was ‘harsh, unjust or unreasonable’.”[86]
Applicant’s submissions
Ms Laurie submits that a range of other matters ought be taken into account when considering whether her dismissal was harsh, unjust or unreasonable. Those matters are:[87]
(a) there was no proper consultation with employees regarding the implementation of Council’s COVD-19 policy (Policy);
(b) Council did not consider the decision in CFMMEU & Howard v Mount Arthur Coal Pty Ltd [2021] FWCFB 6059 (Mount Arthur Coal);
(c) Council did not undertake its own due diligence as to the safety and efficacy of COVID-19 vaccinations nor did it assist with informed consent;
(d) Council did not consider permitting Ms Laurie to take accrued leave, leave without pay or have other employees donate leave to her;
(e) Council did not consider standing Ms Laurie down from her employment, redeploying her to another role or varying her contract of employment;
(f) Council failed to consider the use of Rapid Antigen Tests;
(g) Council failed to comply with other policies when terminating Ms Laurie’s employment;
(h) the Position has been varied since Ms Laurie’s dismissal to comprise administrative duties only; and
(i) termination of employment was a disproportionate response.
I reject Ms Laurie’s submissions as to these matters and address each in turn below.
Firstly, Ms Laurie’s employment was not terminated for failure to comply with the Policy. Her employment was terminated because she was unable to perform the requirements of her role as a result of the obligations imposed by the Direction and Order. Accordingly, whether there was adequate consultation as to the Policy is not presently relevant. The decision in Mount Arthur Coal is therefore also of no relevance. Notwithstanding that, I note that in the letter of 15 November 2021 Ms Laurie was advised that Council had developed the draft Policy “that is currently out for consultation across the organisation.”[88] Ms Belmore’s uncontested evidence is that Ms Laurie did not provide Council with any feedback in relation to the draft Policy.[89]
Secondly, I consider Ms Laurie’s submissions regarding due diligence by Council and informed consent to be misconceived. Until determined otherwise by a Court of competent jurisdiction, the Direction and Order are lawful and Council was required to comply with them. This required Ms Laurie to be vaccinated in order to perform work outside her place of residence. I have earlier found that the Position required Ms Laurie to perform On Site Duties. In those circumstances, no due diligence as to the safety and efficacy of COVID-19 vaccinations was required, necessary or relevant. At hearing, Ms Laurie submitted that the “elephant in the room” is that the COVID-19 vaccines are only provisionally approved by the Therapeutic Goods Administration (TGA).[90] For my part, I do not consider there to be any such elephant. Even if it be correct that the available COVID-19 vaccines have only received provisional approval by the TGA, it does not alter the fact that the Direction and Order are lawful, Council was required to comply with them and was therefore required to ensure that Ms Laurie did not work outside her place of residence unless she was vaccinated, provisional approval or otherwise. I reject Ms Laurie’s submissions regarding informed consent on this basis also and note that, in any event, Ms Belmore’s evidence was that she had numerous conversations with Ms Laurie about her vaccination status and encouraged her to speak with her general practitioner in relation to any concerns she had about the vaccines.[91]
Thirdly, there is no evidence that Ms Laurie had accrued annual leave to take nor does she contend that she made any request to take that leave. There is no evidence that other employees were willing to donate leave to Ms Laurie nor that any scheme existed at Council allowing this to occur. Further, Council was entitled to require that Ms Laurie perform all of the duties of the Position and comply with the obligations of her employment. As to taking unpaid leave, I have addressed this earlier at paragraph [48] and refer to and repeat those comments here.
Fourthly, I am unable see upon what basis Council could have lawfully stood Ms Laurie down from her employment. As to redeployment and variation of contract, as already set out, Ms Laurie was employed in the Position. Council was entitled to require that she perform the full range of duties attached to the Position and discharge the obligations of her employment.
Fifthly, as already set out, until such time as the Direction and the Order is declared invalid by a court of competent jurisdiction, it is lawful and Council is required to comply with it. Refusal or failure to comply with the Direction and the Order is an offence which carries a significant penalty. The Direction and the Order required that Council ensure that unvaccinated workers not work outside their ordinary place of residence on or after 15 October 2021. The only exemption from this was if the worker was an excepted person.[92] As such, undertaking rapid antigen testing would not meet the requirements of the Direction and the Order and it was simply not open to Council to consider this as an alternative means of compliance.
Sixthly, there is no evidence as to which of Council’s policies are said not to have been complied with, nor any particularisation of the specific failures. Accordingly, these submissions rise no higher than generalised, unparticularised and unsupported assertions.
Seventhly, I reject the submission that the Position had been “varied” to comprise only administrative duties. Ms Belmore’s evidence was that in early 2022, in consultation with the Project Directors, it was determined, based on the progress of current projects, that the Major Projects team would be most assisted by the creation of a new Project Administrator role to work across both teams for a period of six months.[93] I accept that evidence and consider it consistent with the position descriptions for the two roles. The position description for the role of Project Administrator (New Role) provides that it is a Band 5, “temporary” role. The role is “to provide high quality administrative support to the Major Projects Department.”[94] As set out earlier, Ms Laurie was employed in the position of Assistant Project Manager. The position description for the role of Assistant Project Manager provides that the role of Assistant Project Manager is a Band 6, permanent, full-time role. As also set out earlier, the role of Assistant Project Manager is “to assist the Project Management team to co-ordinate and project manage the design, tendering, construction and hand over of buildings and building related capital projects to achieve outcomes that meet quality, time and stakeholder expectations”.[95] Further, a review of the key position specific responsibilities of the two roles demonstrates that the responsibilities of the New Role are different from those of the Position. In light of these matters, I do not consider that the Position has been varied; rather, I consider that a new, less senior, temporary role of a purely administrative nature has been created.
Finally, I do not consider that termination of employment, in all the circumstances, was disproportionate. Ms Laurie was unable to perform the full range of duties of the Position. Council was entitled to require her to do so. I do not consider that it would have been reasonable for Council to waive for an indefinite period the requirement that Ms Laurie be ready, willing and able to perform the full range of her duties. Further, I consider it obvious that it was also unreasonable and unsustainable for other employees in the team to be required to perform Ms Laurie’s On Site Duties, in addition to their own duties, for an extended period of time.
I have, however, taken into account that Ms Laurie has strongly held views as to the safety and efficacy of COVID-19 vaccinations and that those views are genuinely held. She is entitled to those views and also to choose not to be vaccinated. Equally, however, Council is required to comply with the law. I reject that Council has in any way coerced Ms Laurie. Ms Laurie had a choice as to whether she would be vaccinated and she exercised it. Unfortunately, one of the consequences of that choice was that although Ms Laurie was ready and willing to work, she was unable to do so as she could not perform the full range of her duties.
I have also had regard to the fact that Ms Laurie was provided with five weeks’ pay in lieu of notice.
Conclusion and disposition
I have made findings in relation to each matter specified in section 387 as relevant.
I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[96]
Having considered each of the matters specified in section 387 of the Act, taking into account all of the evidence and based on my factual findings, I do not consider that the termination of Ms Laurie’s employment was harsh, unjust or unreasonable
Accordingly, the application is dismissed.
DEPUTY PRESIDENT
Appearances:
R Laurie on behalf of M Laurie
G Carroll, Maddocks Lawyers, for the Respondent
Hearing details:
2022.
Melbourne.
10 May 2022
Final written submissions:
Applicant: 3 April 2022
Respondent: 22 April 2022
[1] Applicant’s Outline of Argument at question 1(a)
[2] Witness Statement of Siobhan Belmore, SB-1
[3] Respondent’s Outline of Submissions at [10]
[4] Witness Statement of Siobhan Belmore, SB- 47
[5] Witness Statement of Siobhan Belmore at [23]
[6] Witness Statement of Siobhan Belmore at [24]
[7] Witness Statement of Siobhan Belmore at [25], SB-6
[8] Direction, clause 8(b), Schedule 1 at 24
[9] Direction, clause 8(24)(b)(ii)
[10] Direction, clause 8(24)(a)(ii)
[11] Direction, Schedule 1 at 24
[12] Direction, clause 8(1), (4),(5)
[13] Direction, clause 5(3)
[14] Direction, Schedule 1 at 24
[15] Direction, Schedule 1 at 24
[16] Order, clause 4(2)
[17] See Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order (No 6)
[18] Witness Statement of Siobhan Belmore, SB-2
[19] Respondent’s Outline of Submissions at [13], [16]
[20] Respondent’s Outline of Submissions at [16]
[21] Witness Statement of Siobhan Belmore at [12]
[22] Witness Statement of Siobhan Belmore at [14]
[23] Witness Statement of Siobhan Belmore at [15]
[24] Witness Statement of Siobhan Belmore at [19] – [22], SB-4
[25] Applicant’s Outline of Argument, q.6(d)
[26] Transcript PN 190 – 194
[27] Transcript PN 193
[28] Witness Statement of Siobhan Belmore at [26]
[29] Witness Statement of Siobhan Belmore at [26]
[30] Witness Statement of Siobhan Belmore at [27], SB-8
[31] Witness Statement of Siobhan Belmore at [29], SB-10
[32] Witness Statement of Siobhan Belmore at [30], SB-11
[33] Witness Statement of Siobhan Belmore, SB-11
[34] Witness Statement of Siobhan Belmore, SB-11
[35] Witness Statement of Siobhan Belmore at [31], SB-12
[36] Witness Statement of Siobhan Belmore at [31], SB-12
[37] Witness Statement of Siobhan Belmore at [31]
[38] Witness Statement of Siobhan Belmore at [32]
[39] Witness Statement of Siobhan Belmore at [32], SB-13
[40] Witness Statement of Siobhan Belmore at [37], SB-15
[41] Witness Statement of Siobhan Belmore at [39], SB-17
[42] Witness Statement of Siobhan Belmore at [40-41]
[43] 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]
[44] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373
[45] Ibid
[46] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685
[47] Hatwell and Another v Esso [2018] FWC 2398 at [76]
[48] Hatwell and Another v Esso [2018] FWC 2]398 at [76]
[49] Applicant’s Outline of Argument, q.3.2 at [10]
[50] Applicant’s Outline of Argument, q.3.2 at [7]
[51] Applicant’s Outline of Argument, q.3.2 at [3]
[52] Applicant’s Outline of Argument, q.3.2 at [9]
[53] Applicant’s Outline of Argument, q.3.2 at [15]
[54] Applicant’s Outline of Argument, q.3.2 at [16]
[55] Applicant’s Outline of Argument, q.6(d)
[56] Court Book page 39 at [12-16], Applicant’s Outline of Argument, q.3.2 at [19-20]
[57] Respondent’s Outline of Argument at [34]
[58] Respondent’s Outline of Argument at [46]
[59] Respondent’s Outline of Argument at [43]
[60] Transcript PN 232
[61] Form F2 at q3.2 at [14], Applicant’s Outline of Argument, q. 6(d)
[62] Transcript PN 573
[63] Witness Statement of Siobhan Belmore at [44], SB-19
[64] Transcript PN 637
[65] Transcript PN 639
[66] Transcript PN 639
[67] Transcript PN 516
[68] Transcript PN 495
[69] Witness Statement of Siobhan Belmore at [43]
[70] Witness Statement of Siobhan Belmore at [44], SB-19
[71] Transcript PN 337
[72] Transcript PN 361
[73] Transcript PN 359-363
[74] Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137, 151
[75] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998)
[76] Ibid
[77] (2000) 98 IR 137
[78] Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137, 151
[79] 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]
[80] RMIT v Asher (2010) 194 IR 1, 14-15
[81] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7
[82] [1996] IRCA 568; cited in Dover-Ray v Real Insurance Pty Ltd[2010] FWA 8544
[83] Form F3, q.1.7
[84] Respondent’s Outline of Argument at [60]
[85] (2013) 238 IR 1
[86] Ibid at [41]
[87] Form F2 at q.3.2, Applicant’s Outline of Argument, q.6(d)
[88] Witness Statement of Siobhan Belmore at [29], SB-10
[89] Witness Statement of Siobhan Belmore at [29]
[90] Transcript PN 51, PN 648
[91] Transcript PN 395, PN 504
[92] Direction, clause 9
[93] Statement of Siobhan Belmore at [45]
[94] SB-20
[95] SB-2
[96] 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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