Margarita Smith v Compass Group Defence Hospitality Services Pty Ltd
[2022] FWCFB 169
•5 SEPTEMBER 2022
[2022] FWCFB 169
The attached document replaces the document previously issued with the above code on 5 September 2022.
Paragraph [32] has been corrected to ‘Deputy President’.
The first footnote has been corrected to reflect the decision referenced.
Associate to Vice President Catanzariti
Dated 5 September 2022
| [2022] FWCFB 169 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Margarita Smith
v
Compass Group Defence Hospitality Services Pty Ltd
(C2022/3764)
| VICE PRESIDENT CATANZARITI | SYDNEY, 5 SEPTEMBER 2022 |
Appeal against decision [2022] FWC 1434 of Deputy President Lake at Brisbane on 9 June 2022 in matter number U2021/12163 – permission to appeal refused.
Background
Margarita Smith (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) against a decision[1] (the Decision) of Deputy President Lake (Deputy President), issued on 9 June 2022, for which permission to appeal is required. The Decision concerned an application, brought by the Appellant, for an unfair dismissal remedy again Compass Group Defence Hospitality Services Pty Ltd (the Respondent), pursuant to s.394 of the Act.
The Appellant’s was dismissed from her position in the Respondent’s Contract Catering and Hospitality service at the RAAF Defense Base after failing to comply with the Respondent’s direction to receive at least one COVID-19 vaccination by 30 November 2021 (the Direction). The Appellant submitted that the Respondent’s unlawful conduct gave rise to her unfair dismissal claim. The Deputy President rejected the Appellant’s submissions, finding that she was not unfairly dismissed.
The matter was listed for permission to appeal only. On 6 July 2022, directions were set for the filing of material and the matter was listed for hearing on 8 August 2022. The Appellant indicated that she consented to the appeal being determined on the papers without the need for oral submissions at a formal hearing. Accordingly, pursuant to s.607(1) of the Act, the appeal was conducted on the basis of written submissions only.
For the reasons that follow, permission to appeal is refused.
Decision under appeal
The Appellant worked for the Respondent from 25 May 2009 until her dismissal on 14 December 2021.
On 18 November 2021, the Respondent implemented a policy which, in summary, required all eligible employees to be fully vaccinated against COVID-19 by a certain date. The policy provided for an exemption on the ground of medical contraindication. On the same day, the Appellant wrote to the Respondent raising questions about the lawfulness of COVID-19 vaccinations and the Respondent’s decision to implement the policy. In this letter, the Appellant also requested that the Respondent confirm that COVID-19 vaccines were safe, take financial responsibility any injury which occurred as a result and that if she declined to be vaccinated it would not compromise her employment.
The Respondent sought to meet with the Appellant to discuss her concerns on 23 November 2021, however the Appellant decided not to meet on the basis that her support person, the Appellant’s son, was unavailable. The Appellant’s son made attempts to reschedule the meeting with the Respondent on the Appellant’s behalf.
On 22 November 2021, the Respondent sent an email to the Appellant informing her that there was a public health order which required employees of the Respondent to have received one vaccination by 11 October 2021 and be fully vaccinated by 1 November 2021. The letter provided that the Appellant was required to comply with the obligations by 1 December 2021. The letter stated that the Appellant may be subject to disciplinary action, including termination, should she fail to comply.
On 25 November 2021, the Appellant sent an email to the Respondent outlining her reasons for declining COVID-19 vaccination. Namely, that it was contrary to her religious views and the vaccines had not undergone sufficient testing. The Appellant criticised the Respondent’s policy on the basis that it violated her human rights, is not proven to prevent traction of the virus, she has high levels of personal hygiene and there is no federal vaccination mandate.
On 30 November 2021, the Respondent informed the Appellant that her reasons for not being vaccinated were insufficient and that she would be unable to attend her workplace from that day. The Respondent invited the Appellant to show cause as to why her employment should not be terminated.
From 1–3 December 2021 there was various correspondence between the parties. On 8 December 2021, the Respondent informed the Appellant that they were not willing to meet with her as her request for an exemption was not based on medical evidence. The Appellant was asked to again show cause why her employment should not be terminated. On 10 December 2021, the Appellant replied by reiterating her concerns about the efficacy of COVID-19 vaccines and that she had been a loyal employee.
On 14 December 2021, the Appellant’s employment with the Respondent was terminated with immediate effect and she received payment in lieu of notice.
At first instance, the Appellant accepted that she was informed of the requirement to be vaccinated however she questioned the lawfulness of the directive. Her submissions disputed the efficacy and safety of COVID-19 vaccines, contended they were experimental and contrary to her religious beliefs. Furthermore, the Appellant submitted that the Respondent did not afford her procedural fairness as it did not provide answers to her questions about the lawfulness of the directive and efficacy of vaccines. The Appellant also submitted that the Respondent hindered her ability to give informed consent by providing misleading information in the FAQ document. The Appellant asserted that other individuals on the work site were not subject to the vaccination mandate.
The Respondent rejected that the Appellant had been unfairly dismissed and submitted that this case is about whether the Direction issued by the Respondent was lawful and reasonable. The Respondent submitted they had valid reasons to dismiss the Appellant, specifically that she did not comply with the Direction, was notified of the Direction well in advance and had ample opportunity to respond. The Respondent asserted that the Appellant’s dismissal process was sound and not affected by any procedural irregularity or unfairness.
The Deputy President began by setting out the factors to be considered in s.387 of the Act to determine whether the Appellant’s dismissal was harsh, unjust or unreasonable.
Turning to whether there was a valid reason for the Appellant’s dismissal, the Deputy Present accepted that that the Direction that the Appellant be vaccinated or provide a valid medical exemption was a lawful and reasonable direction with which the Appellant was required to comply. The Deputy President accepted that at both 1 and 10 December 2021 the Appellant confirmed she was not, and did not intend to become, vaccinated and therefore that she would not be complying with the Direction. The Deputy President considered that the Appellant’s contract of employment required her to comply with all company policies and by failing to comply with the COVID-19 vaccination policy she was in breach of her contract which constituted a valid reason for dismissal. Therefore, the Deputy President was satisfied that the Appellant’s failure to comply with the Direction constituted a valid reason for dismissal.
The Deputy President was satisfied that the Appellant was notified of the reason for dismissal and had an opportunity to respond, finding that she was made aware of the Direction and had taken the opportunity to respond by providing opposition to the policy on several occasions.
The Deputy President found the Appellant was not unreasonably refused a support person and that her dismissal did not relate to unsatisfactory performance. Further, the Deputy President was satisfied that the Respondent is a large employer with a well-resourced human resources function, and it undertook an extensive consultation process, including consulting with the Appellant, in respect of the COVID-19 vaccination policy. The Deputy President also had regard to the fact that the Appellant had worked for the Respondent for many years.
Overall, the Deputy President was not satisfied that the dismissal was harsh, unjust or unreasonable and found that the Appellant was not unfairly dismissed in accordance with the Act.
Principles on appeal
An appeal against a decision to dismiss an unfair dismissal remedy application under s.587 of the Act is one to which s.400(1) of the FW Act applies.[2] Section 400(1) requires that permission to appeal must not be granted unless the Commission considers it is in the public interest to do so. This test is a stringent one.[3] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[4] Some of the considerations that may attract the public interest are where a matter raises issues of importance and general application, or there is a diversity of decisions at first instance so that appellate guidance is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[5] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[6] However, the fact that the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[7]
Grounds of Appeal and Submissions
We observe that the Appellant’s grounds of appeal conflate the premise of her appeal with submissions, opinion, observations, and a request for the intervention by the Queensland Human Rights Commission. However, from that material, the Appellant’s grounds and submissions have been distilled as follows:
Ground 1
The Appellant provided lengthy submissions on the efficacy of COVID-19 vaccinations. The Appellant submitted that the effectiveness of such vaccines is not proven, and the government has misrepresented data on the effectiveness of vaccines and COVID-19 more generally. The Appellant submitted that the vaccination mandate is contrary to international human rights instruments and the Australian Constitution. The Appellant also submitted that the Respondent has used this ‘fraudulent’ information to discriminate and pressure people who have safety concerns about COVID-19 vaccinations.
The Appellant therefore alleges that the Deputy President erred by finding that the Direction was lawful and reasonable in the circumstances.
Ground 2
Ground 2 alleges that the Appellant was not afforded procedural fairness in the dismissal process. The Appellant submits that the Respondent failed to adequately consult with their employees before introducing the policy and refused to answer her questions regarding the safety of vaccines or meet with her to discuss these concerns.
Consideration
Ground 1
Turning first to Ground 1, that the Deputy President erred in finding that the Direction was lawful and reasonable, we note that the Appellant’s submissions on this ground are the same as those put before the Deputy President at first instance. The Appellant has provided the Full Bench with several arguments that in essence challenge the efficacy of COVID-19 vaccinations. The substance of these arguments was similarly put before the Deputy President, and he considered these submissions as set out below:
[22] The Applicant disputes the efficacy and safety of the COVID-19 vaccines and contends that, by requiring her to be vaccinated, the Respondent attempted to coerce her into taking an “unproven injection” brought about by “an experimental injection campaign rollout with no longitudinal studies” and breached the various obligations referred to in [13] and [16] above. In addition, the Applicant’s submissions and evidence reference a number of other reports, authorities, articles and statements said to cast doubt on the efficacy or safety of COVID-19 vaccines. The Applicant did not lead expert evidence to support her assertions. [see p 9]
…
[25] The Applicant further asserts that mRNA vaccines are contrary to her religious views as a Roman Catholic on the basis that mRNA vaccines are “gene sequencing therapy” and contain “liquid nano particles which enter the cell hosts” … “altering her genetic make up created by God” and that “she would like to retain her body in God’s image”. The Applicant also refers to historical vaccines being “derived from aborted foetus cells” as being contrary to her religion. [p 49, PN 24, PN 319]
Furthermore, the Deputy President considered the above submissions and made appropriate findings regarding whether the Direction was lawful and reasonable. The relevant parts of the Decision as set out as follows:
[38] The Respondent asserts that its direction was lawful and reasonable. As to what is “reasonable” in the context of employer directions, the Full Bench provided in CFMMEU v Mt Arthur Coal that:
“The reasonableness of a direction is a question of fact having regard to all the circumstances, which may include whether or not the employer has complied with any relevant consultation obligations; the nature of the particular employment; the established usages affecting the employment; the common practices that exist; and the general provisions of any instrument governing the relationship.”
[39] In the current case, the Respondent underwent a consultation process with their employees prior to the implementation, the Respondent operates in the business of hospitality and the role of the Applicant was a kitchenhand which is heavily regulated and required to operate with high standards for hygiene and free from infection. The Respondent provided their reasoning and justification for the implementation of the policy. Further the employment contract governing the relationship between the Respondent and the Applicant required the Applicant to comply with the Respondent’s policies.
[40] For those reasons, I am satisfied that the Respondent’s direction that the Applicant be vaccinated or provide a valid medical exemption by 31 January 2022 was a lawful and reasonable direction with which the Applicant was required to comply. (Footnotes omitted)
We find that the Deputy President’s findings in relation to the lawful and reasonableness of the Direction were open to him and are not infected by error. Therefore, Ground 1 fails to identify any arguable case of appealable error and is instead an attempt by the Appellant to reagitate the same arguments put forth at first instance.
Ground 2
Ground 2 asserts that the Appellant was not afforded procedural fairness in the dismissal process as the Respondent failed to adequately consult with their employees before introducing the policy and refused to answer the Appellant’s questions or meet with her, to discuss the Direction.
The Appellant submits that the Respondent did not satisfy its obligation to consult with their workforce prior to introducing the policy. The Appellant submits that the Respondent only consulted with their employees by providing a questionnaire and failed to answer their employee questions about the policy, other than providing generic letters. We have taken the Appellant’s submissions into account and find that it is clear from the evidence before the Deputy President, that even if there that been more full-some consultation with the Respondent’s workforce this would not have had an impact on the Decision. Accordingly, we are not satisfied that this justifies disturbing the finding as to whether the dismissal was unfair.
Furthermore, in relation to the Appellant’s submissions that she was not afforded procedural fairness in the dismissal process more generally, we find that the substance of this submissions has already been put to and considered by the Deputy President at first instance:
[23] The Applicant asserts that the Respondent failed to give the Applicant procedural fairness as it did not provide answers to her questions regarding the lawfulness of the directive and the safety and efficacy of COVID-19 vaccines, did not give fair consideration to information provided by the Applicant and made no effort to communicate with her regarding her concerns relating to the safety and efficacy of COVID-19 vaccines.
Similarly, we find that this submission does not give rise to any appellable error. The Deputy President approached the task of assessing whether the dismissal process was procedurally fair in an orthodox manner, and the Deputy Presidents findings and conclusions were reasonably open on the evidence that was before him.
Public Interest
We have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s.604(2) that:
· there is a diversity of decisions at first instance so that guidance from an appellate body is required;
· the appeal raises issues of importance and/or general application;
· the Decision at first instance manifests an injustice, or the result is counter intuitive; or
· the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
Permission to appeal is refused.
VICE PRESIDENT
Hearing details:
Matter decided on the papers.
Final written submissions:
Appellant’s written submissions 27 July 2022.
[1] [2022] FWC 1434.
[2] Australian Postal Corporation v Gorman [2011] FCA 975, 196 FCR 126 at [37].
[3] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43] per Buchanan J (with whom Marshall and Cowdroy JJ agreed).
[4] O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46].
[5] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [27].
[6] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
[7] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
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