DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Maria Corazon Glover
v
Ozcare
(U2020/13450)

COMMISSIONER HUNT

BRISBANE, 26 MAY 2021

Application for an unfair dismissal remedy – whether mandated influenza vaccinations for all employees without exemption is lawful and reasonable – lack of evidence of medical contraindication – communication about public health direction to applicant misleading – other relevant matters weighed against valid reason – application dismissed.

Introduction

[1] On 9 October 2020, Ms Maria Glover (the Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging she had been dismissed from Ozcare (the Respondent) and the dismissal was harsh, unjust or unreasonable.

[2] Ozcare raised a jurisdictional objection, denying that there had been a dismissal. On 18 January 2021, I issued a decision 1 dismissing the jurisdictional objection to the application, finding that Ms Glover had been dismissed within the meaning of the Act and that her application for an unfair dismissal remedy could proceed.

[3] On 28 January 2021, I convened a Directions Hearing, where I flagged with the parties my interest in bringing the application to the attention of the President of the Commission to determine if the President would, pursuant to s.615 of the Act, direct a Full Bench to determine the merit issue. On 30 January 2021, the President emailed the parties informing them he was considering referring the matter to a Full Bench for hearing and determination. The President sought the parties’ views.

[4] On 5 February 2021, the President emailed the parties to advise that he did not propose to exercise, of his own motion, his powers under s.615 of the Act to refer the application for determination by a Full Bench.

[5] I issued directions for the filing of material and listed the matter for hearing in-person on 29 March 2021. As Ms Glover was self-represented, the parties were provided with an extract of ss.387 and 390 to 392 of the Act, as well as the Unfair Dismissal Benchbook published by the Commission.

Hearing

[6] Ms Glover appeared and gave evidence, supported by her friend, Mrs Desley Bates. Mr Leigh Howard of Counsel was granted leave pursuant to s.596(2)(a) of the Act to represent Ozcare, instructed by Mr Murray Procter and Ms Ashlee Miller of FAC Law. The following people appeared and gave evidence and were asked questions in cross-examination:

• Dr Andrew Lingwood, Occupational and Environmental Physician;

• Mr Joel Reading, Group Manager, Risk & Compliance, Ozcare;

• Mr Damian Foley, Head of Community Care, Ozcare;

• Mr Brett Warhurst, Group Manager of People, Ozcare; and

• Mr Joseph Therkelsen, Injury Management Advisor, Ozcare.

Submissions and evidence of Ms Glover

[7] In response to the Commission’s directions, Ms Glover filed a bundle of documents that is a mix of submission and evidence. I do not say that critically but more as an explanation as to how the material…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Maria Corazon Glover v Ozcare

Details

AGLC: Maria Corazon Glover v Ozcare [2021] FWC 2989
Case: [2021] FWC 2989
Decision Date: 26 MAY 2021

CaseChat Overview and Summary

Maria Corazon Glover sought relief from an unfair dismissal against Ozcare, her employer, following her refusal to comply with a mandated influenza vaccination policy. The dispute was heard in the Fair Work Commission. The primary issue before the Commission was whether Ozcare's policy mandating influenza vaccinations for all employees, without exemption, was lawful and reasonable. This included examining the lack of evidence concerning any medical contraindications for Ms Glover, and whether the communication from Ozcare about public health directives was misleading. The Commission also weighed other relevant factors to determine if Ozcare had a valid reason for dismissing Ms Glover.

The Fair Work Commission determined that Ozcare's vaccination policy was reasonable, given the public health context and the lack of any evidence presented by Ms Glover that would exempt her from the mandate. The Commission found that Ozcare had adequately communicated the public health directives to Ms Glover, despite her assertion that the communication was misleading. Additionally, the Commission considered other relevant factors, such as the need for workplace safety and the protection of vulnerable individuals, and concluded that these factors supported Ozcare's position. The Commission found that Ozcare had a valid reason for dismissing Ms Glover, and thus dismissed her application for an unfair dismissal remedy.

No additional orders were made by the Commission beyond the dismissal of the application. The decision underscores the importance of employers ensuring that their vaccination policies are communicated effectively and are based on sound public health directives, while also considering individual circumstances on a case-by-case basis.

Orders