Mark Scoble v Esso Australia Pty Ltd
[2022] FWC 1778
•8 JULY 2022
| [2022] FWC 1778 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mark Scoble
v
Esso Australia Pty Ltd
(U2022/1080)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 8 JULY 2022 |
Application for an unfair dismissal remedy – employment subject to Directions of Acting Victorian Chief Health Officer and then Order under the Public Health and Wellbeing Act 2008 (Vic) – Respondent required to comply with the Directions and Order to collect, record and hold vaccination information and to not permit unvaccinated workers to work outside the worker’s ordinary place of residence – termination on the basis that the Applicant was unable to meet requirements of his contracted position a valid reason for termination of employment – Dismissal not otherwise unfair.
Mr Mark Scoble has made an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the Act). The respondent to this application is Esso Australia Pty Ltd (Esso). Having regard to the issues in ss.397-399 of the Act, my ultimate determination was that the matter should proceed by way of a determinative conference. This took place via Microsoft Teams on 2 June 2022, when Mr Scoble and his former colleague, Mr Deepinder Singh gave evidence, along with Ms Kimberly Hribar, Esso’s Long Island Point Operations and Maintenance Superintendent. I did not grant Esso’s application for permission to be legally represented at the determinative conference.
Initial matters to be considered – s.396 of the Act
Mr Scoble commenced employment with Esso on 1 September 2008 and was employed on a full-time basis as a Senior Maintenance Technician when his dismissal took effect on 11 January 2022. As such, his application filed on 25 January 2022 was made within the 21-day period after the dismissal took effect, as required by s.394(2) of the Act (s.396(a)). There is no dispute that Mr Scoble is a person protected from unfair dismissal because he had completed the minimum employment period and the Esso Gippsland (Longford and Long Island Point) Enterprise Agreement 2017[1] (the Agreement) applied to him (s.396(b)). Further, it is not disputed, and I am satisfied that Esso was not a small business employer. As such, the matter does not require consideration of whether the dismissal was consistent with the Small Business Fair Dismissal Code (s.396(c)). Finally, it was not claimed by Esso and nor does the material before me suggest the dismissal was a case of genuine redundancy (s.396(d)).
Section 385 of the Act – was the dismissal unfair?
As to the circumstances set out at s.385 of the Act, there is no question or dispute that Mr Scoble was dismissed (s.385(a)). Further, as outlined above, this is not a matter that involves a small business, such that consideration of whether Mr Scoble’s dismissal was consistent with the Small Business Fair Dismissal Code (s.385(c)) is required or one where it is claimed by the employer that the dismissal was a case of genuine redundancy (s.385(d)).
This leaves s.385(b) and in determining whether the dismissal was harsh, unjust or unreasonable, I must have regard to s.387 of the Act:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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.”
Consideration
I have outlined the criteria set out in s.387 of the Act above. I am under a duty to consider each of these criteria in reaching my conclusion and will do so below.
Was there a valid reason for dismissal relating to Mr Scoble’s capacity or conduct? – s.387(a)
In considering whether the dismissal of Mr Scoble was harsh, unjust or unreasonable, I am required to take into account whether there was a valid reason for the dismissal related to his capacity or conduct (including its effect on the safety and welfare of other employees). The reason or reasons should be “sound, defensible and well founded”[2] and should not be “capricious, fanciful, spiteful or prejudiced”.[3]
By way of background, the Victorian Minister for Health issued a declaration pursuant to s.198(1) of the Public Health and Wellbeing Act 2008 (Vic) (PHWA) on 16 March 2020 that Victoria had entered a state of emergency as a consequence of the COVID-19 pandemic. The declaration was extended numerous times until approximately 4 weeks before Mr Scoble’s dismissal took effect. When the state of emergency existed, the Chief Health Officer of Victoria had the power to authorise the issuing of emergency powers, which included the issuing of directions pursuant to the PHWA.[4]
On 7 October 2021, the Acting Victorian Chief Health Officer issued the COVID-19 Mandatory Vaccination (Workers) Directions (the Directions). The Directions imposed obligations on employers of certain identified workers (including utility and urban workers) to collect, record and hold “vaccination information” about their workers scheduled to work outside the worker’s ordinary place of residence on or after 15 October 2021. Further, under these Directions:
a)A “utility and urban worker” was defined to include a person who worked in connection with services to support the ongoing provision and regulation of electricity, gas, water, sewage and waste and recycling services and their maintenance;[5]
b)Employers of utility and urban workers were to ensure that “unvaccinated” workers did not work for them outside their ordinary place of residence on or after 15 October 2021 unless they had a booking to receive a first dose of a COVID-19 vaccine by 22 October 2021.
c)Exceptions applied if a worker held a certification from a medical practitioner that they were unable to receive a COVID-19 vaccine due to a medical contraindication or an acute medical illness.
The Directions were updated in subsequent versions made by both the Chief Health Officer and the Acting Chief Health Officer, with the last version of them to operate being the COVID-19 Mandatory Vaccination (Workers) Directions (No 8) (Version 8). Operating from 11.59pm on 18 November 2021 and ending at 11.59pm on 15 December 2021, Version 8 also imposed obligations on employers of utility and urban workers to collect, record and hold “vaccination information” about them if they were or might be scheduled to work outside their ordinary place of residence out and to ensure that “unvaccinated” utility and urban workers did not work for them outside their ordinary place of residence on or after 26 November 2021.
In December 2021, the Victorian Parliament amended the PHWA. This saw the introduction of a framework specific to pandemics[6] whereby the Premier of Victoria can make a pandemic declaration after considering the advice of the Chief Health Officer and the Minister for Health, if the Premier is satisfied on reasonable grounds that there is a serious risk to public health resulting from a disease that is or has potential to be a pandemic disease.[7] If a pandemic declaration has been made, the Victorian Minister for Health can make ‘pandemic orders’ for the purposes of protecting public health.[8]
On 10 December 2021, a pandemic declaration was made.[9] It came into force at 11.59pm on 15 December 2021. On 15 December 2021, the Victorian Minister for Health made the Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 1) (Specified Workers Order), which commenced at 11:59pm on 15 December 2021. The Specified Workers Order replaced Version 8 and provided that:
a) If a worker (which, as identified in Row 33 of Column 1 of Schedule 1 of the Specified Workers Order, included a “utility and urban worker”) was or might be scheduled to work outside of their ordinary place of residence after 11:59pm on 15 December 2021, their employer was required to collect, record and hold “vaccination information” about them;
b) A “utility and urban worker” was defined to include a person who worked in connection with services to support the ongoing provision and regulation of electricity, gas, water, sewage and waste and recycling services and their maintenance:[10] and
c) Employers of such workers, including utility and urban workers, were not to permit their workers to work for them outside of their ordinary place of residence if they were “unvaccinated” or “partially vaccinated”.
In a meeting held via video conference on 14 December 2021, Ms Hribar and Ms Rebecca Francey (Esso Employee Services Advisor) met with Mr Scoble. Ms Hribar says that she said words to the effect that Esso was terminating his employment with four weeks’ notice and that the termination would take effect on 11 January 2022. It is not in dispute that Ms Hribar told Mr Scoble that the reason for this was that he was unable to perform the inherent requirements of his role of Maintenance Technician at the LIP Fractionation Plant.[11] Ms Hribar sent Mr Scoble a letter dated 14 December 2021 by email and post which confirmed the termination of his employment (Termination Letter). The Termination Letter stated:
“ Dear Mark
Termination of your employment
Further to recent discussions, this letter is to confirm that your employment with Esso Australia Pty Ltd will end on 11 January 2022 as you are unable to perform the inherent requirements of your role as Maintenance Technician at Long Island Point Fractionation Plant.
As you are unvaccinated, you have not been permitted to work outside of your ordinary place of residence in accordance with the COVID-19 Mandatory Vaccination (Workers) Directions (Directions). You have been stood down since 8 November 2021 (at the completion of your pre-approved leave) and now the company is providing you with four weeks’ notice of the termination of your employment.
Upon termination any remaining accrued and unused annual leave and long service leave entitlements will be paid to you in full.
…”[12]
The Specified Workers Order was in operation when Mr Scoble’s dismissal took effect on 11 January 2022.
Esso’s case in relation to s.387(a) is that there was a valid reason for Mr Scoble’s dismissal related to his capacity. Mr Scoble submits there was no valid reason for his dismissal related to his capacity because neither the various versions of the Directions nor the Specified Workers Order were legally valid.
The Commission, not being a court, cannot make any binding declaration about the validity of state or federal legislation.[13] I have noted the range of submissions Mr Scoble has advanced questioning and disputing the legality of the Directions and the Specified Workers Order, and challenging their application to both him and Esso, but do not consider they have any arguable merit. I otherwise observe the Directions and Orders have at no stage been declared invalid by a court and were in effect at all material times, and proceed on the basis that they are valid and lawful and that the Commission must discharge its functions according to law.[14]
I am satisfied both the Directions and the Specified Workers Order covered Mr Scoble’s employment with Esso. I consider Mr Scoble was an ‘urban and utility worker’ because he was employed within Esso’s production department at the Long Island Point (LIP) Fractionation Plant to perform work in connection with services to support the ongoing provision, regulation and maintenance of gas.
The Specified Workers Order commenced at 11.59pm on 15 December 2021. As was the case with Version 8, which was in operation when Mr Scoble was notified of his dismissal on 14 December 2021, the Specified Workers Order imposed an obligation on Esso to collect, record and hold vaccination information about workers who were or might be scheduled to work outside the worker’s ordinary place of residence. If Esso did not hold vaccination information about a worker, it was obliged to treat the worker as if the worker was “unvaccinated”. Esso was further obliged to ensure that its “unvaccinated” workers did not work for it outside of the worker’s ordinary place of residence. A refusal or failure by Esso to comply with a pandemic order or with a direction given to it or a requirement in the exercise of a pandemic management power was an offence for which a penalty of 300 penalty units applied.[15]
Mr Scoble did not provide “vaccination information” to ESSO disclosing he was a “fully vaccinated” person and there is no dispute that Mr Scoble was “unvaccinated” at the time of his dismissal. At the determinative conference, it was apparent this remained the case. Mr Scoble describes himself as being vaccine hesitant and continues to decline vaccination. At no stage has Mr Scoble claimed to have been an “excepted person” and therefore eligible to not be regarded as “unvaccinated”. In the circumstances of this matter, Esso was obligated not to permit Mr Scoble to work for it outside of his ordinary place of residence.
To counter Esso’s determination that he was unable to perform the inherent requirements of his role, Mr Scoble submitted that he could have worked as a Senior Maintenance Technician remotely. Esso’s position was that a Senior Maintenance Technician within its production department at the LIP Fractionation Plant was a field-based role and its expectation was that it would be performed on site. In addition, Mr Scoble’s responsibilities were said to have involved preparing work areas and plant equipment for use, assessing equipment for safe handling and executing maintenance activities on equipment such as compressors or turbines.
Clause 14(c)(iii)(2) of the Agreement lists the duties of a ‘Senior Technician’. It is not in dispute[16] that the following were duties required of Mr Scoble:
· Optimise all performance parameters in relation to Occupational Health and Safety, environment, product quality, cost efficiency and product throughput;
· Troubleshoot process and equipment problems across the plant;
· Find and solve problems in a proactive manner;
· Train and assess competency of Technicians Levels 1 & 2;
· Participate in the process of performance review of the maintenance team;
· Act in the position of Supervisor or other relief positions as required. If required to act as supervisor, the acting supervisor allowance will be paid;
· Provide expert advice to other Technicians in their areas of specialisation; and
· Liaise with Engineering/Technical groups as required.
It was argued by Mr Scoble that 80% of his work was office/computer based and therefore able to be performed at home, with the 20% balance comprising:
· supervisory roles, “potentially out in the field”;
· other “smaller” maintenance-type activities; and
· mentoring of apprentices.[17]
It was further argued by Mr Scoble that he was not required to physically examine and identify all equipment problems and that trouble shooting could have been performed remotely, with the requisite data collected and information downloaded by a colleague in the field and the subsequent data analysis performed by him off site.
Esso challenged these contentions, with Ms Hribar disputing the 80% office-based proposition and arguing:
· a large component of Mr Scoble's role was in the field, fixing and troubleshooting equipment;
· troubleshooting requires physically interacting with the equipment;
· a Field Technician is required to identify and solve issues themselves rather than pass them on to someone else;
· it would not have been practicable to assign someone into the field to collect data for Mr Scoble; and
· it would not have been practical, or even possible, for Esso to create an entirely remote role that absorbed all the computer-based tasks currently spread between the Maintenance Technicians.
I am not persuaded by Mr Scoble’s submission that he could have worked remotely as a Senior Maintenance Technician. Mr Scoble’s proposal had the flavour of straining to fit a square peg into a round hole. The nature of the operating environment in which Mr Scoble worked and the duties of a ‘Senior Technician’ outlined in the Agreement speak for themselves and Ms Hribar’s evidence in relation to them[18] was more compelling than Mr Scoble’s. By insisting that 80% of his work as a Senior Maintenance Technician was office-based, Mr Scoble was in effect conceding that at least 20% of his duties could not be performed remotely. Mr Scoble also conceded that not all equipment problems can be identified and examined remotely[19] and the proposal to work remotely was a temporary proposition only. In this respect, when he raised the possibility of remote work at the determinative conference, Mr Scoble did not suggest it become a permanent arrangement.[20] These various concessions highlight the compromised nature of Mr Scoble’s proposal from an operational perspective. The inevitable consequence of Mr Scoble’s proposal to work from home would have been the requirement to perform particular important duties relying on the observations of a colleague who was on-site. This would have been impractical in the sense that it would have required additional labour resources to be deployed to tasks when that would not normally have been required. It would also have been far from optimal in the context of the operation of a Plant that is classified as a major hazard facility because Mr Scoble would have lacked completely the ability to physically interact with equipment when this was required. Ultimately, I consider that Mr Scoble’s proposal would have required an unreasonable and sub-optimal rearrangement of tasks and duties amongst colleagues to ensure that important functions related to significant and potentially hazardous infrastructure were safely and properly performed.
Mr Scoble also urged a reading of the whole of the Directions and Specified Workers Order and highlighted the “exceptional circumstances” exception in the Directions and Specified Workers Order. [21] Mr Scoble argued this exception would have enabled him to perform the (20%) balance of the work that required his attendance on site.[22] This argument is flawed because it elevates routine duties of Mr Scoble to a permanent state of urgency in a manner not contemplated by the Specified Workers Order. Further, it does not take into account the limitation of the “exceptional circumstances” exception in provisions in the Specified Workers Order, which states “the employer must take all reasonable steps to ensure that the worker does not work outside the worker’s ordinary place of residence for any longer period than the period of time necessary to respond to the exceptional circumstance” (my underlining).[23] In short, I am not persuaded the “exceptional circumstances” exception in the Directions and Specified Workers Order provided a basis for Mr Scoble’s proposal to work remotely.
For these reasons, I do not consider Esso acted unreasonably in not adopting the proposal of Mr Scoble. While I observe there was no mandatory requirement for Mr Scoble to receive a COVID-19 vaccination and nor has there ever been, I am satisfied that his job was field-based and required him to have the capacity to perform his duties on site. Mr Scoble was within his rights to decline to become vaccinated however this choice had the inevitable consequence of rendering him unable to perform his job. As Mr Scoble chose not to become vaccinated and did not hold the certification required to be regarded as an “excepted person” under either the Directions or the Specified Workers Order, he was unable to perform the job he was employed by Esso to do. Esso did not hold “vaccination information” about Mr Scoble on 11 January 2022 and was therefore required under the Specified Workers Order to treat him as if he was “unvaccinated”. The consequence of this state of affairs was that Esso was prohibited under the Specified Workers Order from permitting Mr Scoble to work outside of his ordinary place of residence. Had it done so, it would have been guilty of an offence and exposed to a substantial financial penalty.
Having regard to the circumstances of this case, I am satisfied that Esso had a valid reason for dismissing Mr Scoble on 11 January 2022 that was related to his capacity.
Notification of the valid reason – Opportunity to respond to any reason related to capacity or conduct – s.387 (b) and (c)
Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made,[24] in explicit terms,[25] and in plain and clear terms.[26] In Crozier v Palazzo Corporation Pty Ltd[27] a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following:
“[73] 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 170(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.”
When the COVID-19 Mandatory Vaccination (Workers) Directions were announced by the Victorian Government on 1 October 2021, Mr Scoble was on a period of pre-approved long service leave and not due to return to work until 8 November 2021. Esso responded to the Government announcement by sending an email from Mr Dylan Pugh (Australia Lead Country Manager) to all Esso employees on 4 October 2021. This email, which Mr Scoble confirmed he received, provided some information in relation to the impending Directions and included the following:
“there may also be some members of our workforce who prefer not to receive the COVID19 vaccine. If you are an Authorised Worker who will be unable to meet the government’s vaccinations requirement …please advise your supervisor as soon as possible.”
On 8 October 2021, Mr Scoble sent an email from his private email address to Mr Shane Beggs (Esso Maintenance Supervisor) seeking answers to several questions relating to the COVID-19 vaccine and Esso’s approach to the Directions.[28] From this email, it was evident that Mr Scoble was not vaccinated at that time.
On 12 October 2021, Mr Beggs sent an email to Mr Scoble advising Mr Scoble that if he had not received his first vaccination dose prior to his return to work on 8 November 2021, he would not be able to attend Esso workplaces and would be stood down without pay.[29] Mr Beggs also attached a copy of Esso’s “Mandatory Vaccination Frequently Asked Questions” document[30] to his 12 October 2021 email. Mr Scoble recalls receiving and reading this document,[31] which included a section with the heading “Impact on Employees” and the following:
“I do not want to get a vaccine and do not qualify for a medical exception. What is the impact to my employment?
ExxonMobil needs to follow the Directions and cannot allow people to work outside of their ordinary place of residence if they are not vaccinated. Access to site is required for you to perform the inherent duties of your job.
You may be stood down without pay whilst options are considered. You may apply to use Annual Leave, Long Service Leave, Unpaid Leave or Leave of absence. You will need to discuss with your Supervisor and determine whether this can be supported by the business.
If you continue to be unable to perform the inherent duties of your role as a result of this government mandate, your employment may be at risk.
I do not want to get a vaccine and do not qualify for a medical exception. Can I be reassigned to an alternative job role and / or work completely from home?
We will look at available options for you. However, you will be unable to work at any of worksites so redeployment opportunities are expected to be very limited. There are very few roles in the company that allow people to permanently work from home.
…
What will happen if I need more time to decide if I want to get the vaccination?
If you are unable to attend work due to not receiving a vaccination by the required date and do not have an exception, you will be stood down without pay. You may apply to take Annual Leave, Long Service Leave, Unpaid Leave or Leave of absence. You will need to discuss with your Supervisor and determine whether this can be supported by the business.
…
I am currently on extended leave (long service leave, sick leave, etc) – do I need to get vaccinated?
You will need to be vaccinated to be able to return to work at any company site.”
(underlining my emphasis)
Mr Beggs also sent a letter dated 14 October 2021 to Mr Scoble at his home address (the Stand Down Letter).[32] The letter notified Mr Scoble that upon his return from pre-approved leave on 8 November 2021, he would be stood down without pay as a consequence of the Directions and his vaccination status. The Stand Down Letter also asserted that as the COVID-19 Mandatory Vaccination (Workers) Directions required Esso to treat him as “unvaccinated”, Mr Scoble was not permitted to work outside of his ordinary place of residence on or after 15 October 2021. It was asserted that as a result, Mr Scoble could not perform the inherent requirements of his role because ESSO required him to attend the LIP Fractionation Plant. Mr Scoble was cautioned that his employment with Esso was at risk and may be terminated if he chose to remain unvaccinated and continued to be unable to perform his role. It was also outlined in the Stand Down Letter that Mr Scoble would not, or would no longer be stood down if he was able to demonstrate (to Esso’s satisfaction) that the COVID-19 Mandatory Vaccination (Workers) Directions would be complied if he was to return to work.
On 18 October 2021, Mr Scoble responded with an email to Mr Beggs which confirmed he remained unvaccinated. [33] In an email dated 19 October 2021, Ms Hribar acknowledged receipt of this email and asserted Esso was required to comply with the COVID-19 Mandatory Vaccination (Workers) Directions.[34] When Mr Scoble sent an email to Ms Hribar on 1 November 2021 requesting an extension of his long service leave, Ms Hribar replied and confirmed she had approved long service leave until 19 November 2021 and advised that if Mr Scoble remained unable to comply with the Directions by this date, Esso would review options with him, such as the approval of further leave.[35] While this prompted Mr Scoble to reply by email and assert that he would use paid sick leave as per a sick leave form he had submitted on the previous day, Ms Hribar responded with an email on 5 November 2021 stating that Mr Scoble was unable to take sick leave from 8 November 2021 because ESSO had previously advised he was to be stood down from that date if he remained unable to comply with the COVID-19 Mandatory Vaccination (Workers) Directions.
Emails between Mr Scoble and Ms Hribar were exchanged on 19 November 2021. At 2.10pm, Mr Scoble sent an email to Ms Hribar, stating that his position on the vaccination requirements had not changed, before advising:
“I will be returning to work willing and able to conduct my normal duties on Monday the 22nd of November 2021 if I do not have a response from you by close of business today 19th of November 2021.”[36]
For her part, Ms Hribar had sent an email to Mr Scoble at 2.04pm advising that Version 8 had been released and reconfirming that Mr Scoble had been stood down because he was unable to perform the inherent requirements of his role while unable to comply with the Directions. Mr Scoble was invited to apply for further annual leave or long service leave and notified that Ms Hribar wanted to arrange a meeting to discuss his ongoing employment, to which he could bring a support person if he wished.[37]
A meeting between Mr Scoble, Ms Hribar and Ms Francey took place on 25 November 2021 for the purpose of discussing the employment status of Mr Scoble. It is not in dispute that Ms Hribar cautioned Mr Scoble that if he continued to be unable to comply with the Directions and therefore unable to fulfil the requirements of his role, his employment may be terminated.[38] Mr Scoble says that he was in shock at that meeting but had been asked whether he wanted to say anything. He said that he had asked for the (then) current version of the Directions and subsequent confirmation by email of what they had discussed.
On 29 November 2021, Ms Hribar sent Mr Scoble an email which referred to the 25 November 2022 meeting and was stated to be “as confirmation of our discussion”. This email, while not attaching Version 8, confirmed it remained in place until 15 December 2021 and predicted the vaccination requirement to work would become a longer term proposition. In this email, it was also stated that should this transpire, and Mr Scoble remain unable to perform his role, Esso would make a decision on the future of his employment shortly after.[39] Approval of further long service leave until 10 December 2021 was also confirmed.
As outlined above, in a meeting held via video conference on 14 December 2021, Mr Scoble was advised his employment was terminated with four weeks’ notice for the reason that he was unable to perform the inherent requirements of his role of Maintenance Technician at the LIP Fractionation Plant. This was confirmed in writing in a letter of the same date. As to the nature of the conversation at the meeting, the evidence at the determinative conference was:
“THE DEPUTY PRESIDENT: All right. So you say you asked Mr Scoble whether his position had changed at the outset of the meeting?
MS HRIBAR: Yes, it was along the lines that we confirmed that he was still unable to perform the duties, the inherent duties, of his role.
THE DEPUTY PRESIDENT: Mr Scoble, were you asked whether your position had changed?
MR SCOBLE: I don't recall being asked whether my position had changed, more to the fact that Kimberly and Rebecca actually stated 'as my position had not changed'. I don't recall actually being asked.
THE DEPUTY PRESIDENT: All right. Well, if it was stated to you, was it a statement that was true and correct?
MR SCOBLE: Yes, it was correct, my position hadn't changed.”[40]
I am satisfied Esso notified Mr Scoble of the reason for his termination prior to making the decision to terminate his employment, having regard to the following factors:
a)As early 12 October 2021, Mr Scoble was in receipt of information that put him on notice that Esso held the view that access to site was required for him to perform the inherent duties of his job, that he would need to be vaccinated to be able to return to work at any company site and that if he continued to be unable to perform the inherent duties of his role as a result of the Directions, his employment might be at risk.
b)In the Stand Down Letter, [41] Esso:
· confirmed its position that Mr Scoble was not permitted to work outside of his ordinary place of residence because the Directions required it to treat him as “unvaccinated”;
· proffered that Mr Scoble could not perform its inherent requirements of his role because it required him to attend the LIP Fractionation Plant; and
· warned Mr Scoble that his employment was at risk and might be terminated if he chose to remain “unvaccinated” and continued to be unable to perform his role.
c)At the meeting on 25 November 2021, Mr Scoble was cautioned that his employment may be terminated if he continued to be unable to comply with the Directions and was therefore unable to fulfil the requirements of his role.
Further, regardless of how it was addressed at the termination meeting on 14 December 2021, I am also satisfied, having regard to the correspondence and the chronology of events, that Mr Scoble was given an opportunity to respond to the reason for his termination. Mr Scoble was invited to maintain dialogue with Esso, he wrote to Esso and there was the 25 November 2021 meeting held prior to the termination meeting. The termination meeting itself was flagged as a prospect by Esso on 29 November 2021, when it advised that a decision on the future of Mr Scoble’s employment would be made if vaccination requirements became a longer-term proposition as a result the passage of a parliamentary bill, and if so, a meeting would be arranged to discuss next steps.
Unreasonable refusal by the employer to allow a support person – s.387(d)
There was no unreasonable refusal by Esso to allow Mr Scoble a support person at discussions relating to his dismissal.
Warnings regarding unsatisfactory performance – s.387(e)
Mr Scoble’s dismissal was not related to unsatisfactory performance and therefore this factor is not a relevant consideration in this case.
Impact of the size of the employer on procedures followed - s.387(f) and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
Esso is an employer with approximately 700 employees. I do not consider the size of ESSO to have been a relevant factor in this case (s.387(f)). Esso had a human resources team and as such, s.387(g) of the Act is not a relevant factor in this case.
Other relevant matters – s.387(h)
Section 387(h) of the Act requires the Commission to take into account any other matters it considers relevant.
Mr Scoble raised the fact of having previously made a WorkCover claim and his perception that Esso, as a self-insurer, was conflicted in that regard, in making a submission that this was an underlying reason for the decision to terminate his employment. A related submission advanced was that Esso acted in breach of various general protections provisions within Part 3-1 of the Act. I am not persuaded by these submissions. Esso’s decision was clearly based upon the requirements in the Directions and the Specified Workers Order and the workers’ compensation claim process operates independently of this application. Similarly, I do not find, based on a mere assertion from Mr Scoble and no more, that Esso terminated Mr Scoble’s employment as part of a broader process of reducing the number of maintenance personnel at the LIP Fractionation Plant in the medium term.
Mr Scoble contends that other roles (and any required retraining) could have been considered as an alternative to dismissal. Ms Hribar’s evidence was that there were no other roles that would have been suitable for Mr Scoble. Ms Hribar also stated that at no stage did ESSO have any field-based roles working 100% of their time in an office-based role or from home. She maintained that all field-based roles have a component of field-based activities and a requirement for the holders of them to enter the plant environment. While Mr Scoble does not appear to have directly raised the possibility of performing an alternate role either during the meeting on 25 November 2021 or in subsequent correspondence with Esso at that time,[42] he has nonetheless submitted that a full time, office-based planning role could have been made available to him. Ms Hribar’s response to this proposition was that the planning role is covered by field-based employees on a rotating basis and is not able to be worked from home. Further, she said employees undertaking the planning role are still required to attend site in order to “walk the job” they are planning.[43] Consistent with his position on working remotely as a Senior Maintenance Technician, Mr Scoble did not propose that working in the planning role or alternate duties become a permanent arrangement.[44] I observe that the requirements in the Specified Workers Order applicable at the date of termination have remained in force over the ensuing 6 months to date and consider this erodes the suggestion that temporary arrangements could have been adopted until the requirements were removed, as an alternative to dismissal. Having regard to these matters, I do not consider the position adopted by Esso in relation to the planning role or alternate duties weighs in favour of a finding that Mr Scoble’s dismissal was harsh, unjust or unreasonable.
Mr Scoble also argued that Esso breached the Agreement in various ways. I do not consider this proposition is valid. Firstly, a number of the alleged breaches relate to clauses in the appendix applicable to clerical employees. Secondly, I do not accept that the duties to notify and discuss change outlined in Clause 24 of the Agreement arose in this case because the Directions and the Specified Workers Order did not arise from a decision of Esso to “introduce major changes”. Thirdly, the disputes procedure in the Agreement does not apply to the operation and application of the Directions and Specified Workers Order. Fourthly, my assessment is that the clause relating to “Problem Solving” relates to problems of a sitewide/collective nature, as opposed to an issue concerning an individual.
As to Mr Scoble’s complaints of a lack of support from Esso (in breach of company policy) and a failure by it to provide him with information, I note that Mr Scoble was offered access to the Employee Assistance Program and assistance from the Medical and Occupational Health department. When Mr Scoble contacted Esso’s Medicine and Occupational Health department, Dr Nathan Pastor (Esso’s Occupational & Environmental Physician) sent an email to Mr Scoble dated 12 October 2012 attaching links to Government websites that he considered answered some of Mr Scoble’s queries and followed up with a telephone conversation on the same day, during which he attempted to answer some of Mr Scoble’s questions by drawing upon Government health advice.[45] While Mr Scoble complained that other Esso employees were afforded flexibility he was denied, I am satisfied the circumstances raised regarding the other employees were distinguishable.
To the extent that Mr Scoble’s position was based on his views about the efficacy of the various COVID-19 vaccinations, I observe that the COVID-19 vaccines applicable at the material times had been approved for use by Australia’s national regulator, the Therapeutic Goods Administration.
Mr Scoble also mentioned the pressure he felt under because of his family responsibilities and financial commitments and complained that he had been forced to take his long service leave to avoid financial duress. However, I have weighed this against the fact that Esso’s multiple approvals for Mr Scoble to take long service leave not only gave the parties additional time to consider their positions in the face of changing circumstances, but also allowed for the continuing payment of regular salary to Mr Scoble until approximately 2 weeks’ prior to the effective date of his dismissal. I have noted Mr Scoble’s complaint that he was not paid during his period of notice but draw no adverse inference in relation to this because he was not, during that period, able to perform the job he was employed to do.
I have taken into account the 13 years of service of Mr Scoble and his good employment record, with its absence of issues relating to conduct or performance. Mr Scoble also raised the uncertainty he felt in relation to his prospects for re-employment, particularly to a role that would require his specialist skill set. I also acknowledge Mr Scoble’s concerns about, and objections to, becoming vaccinated. I am satisfied Mr Scoble’s concerns and objections were firmly held but it is not for the Commission to engage in commentary about them, other than to observe they motivated his choice to decline vaccination and his failure to provide “vaccination information”, as required by the Specified Workers Order applicable at the time of his dismissal. Esso, however, had to comply with the law and the requirements under the Directions and Specified Workers Order. Esso was required to collect vaccination information in relation to Mr Scoble if he was to perform his job and Esso was simply unable to permit Mr Scoble to attend the workplace if he was “unvaccinated”. The “reasonable excuse” defence for failing or refusing to comply with the Specified Workers Order did not extend to Mr Scoble and insofar as it applied to Esso, I do not consider that to have managed Mr Scoble in the way he proposed would have amounted to a scenario falling within its scope. Ultimately, Mr Scoble was unable to work for Esso as a consequence of the decision he made.
Having considered and weighed the matters raised in relation to s.387(h) of the Act, I do not find that they are sufficient to render Mr Scoble’s dismissal harsh, unjust or unreasonable.
Conclusion
I have made findings in relation to each matter specified in s.387 of the Act 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.[46] I am satisfied the dismissal of Mr Scoble was not harsh, unjust or unreasonable. Accordingly, I find that Mr Scoble’s dismissal was not unfair.
As I have found that Mr Scoble’s dismissal was not unfair, his application for unfair dismissal remedy is dismissed. Given this conclusion, I will not issue an Order.
DEPUTY PRESIDENT
Appearances:
Mr M Scoble on his own behalf.
Ms A Pate for Esso Australia Pty Ltd.
Hearing details:
2022.
Melbourne (via Microsoft Teams).
June 2.
[1] [2017] FWCA 1860 (AE423884 PR591524).
[2] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[3] Ibid.
[4] Public Health and Wellbeing Act 2008 (Vic), s.200(1)(d).
[5] COVID-19 Mandatory Vaccination (Workers) Directions at Clause 9(32)(a)(ii).
[6] Part 8A of the Public Health and Wellbeing Act 2008 (Vic).
[7] Public Health and Wellbeing Act 2008 (Vic), s.165AB.
[8] Public Health and Wellbeing Act 2008 (Vic) s.165AI.
[9] Victorian Government Gazette No. S 705, Friday 10 December 2021.
[10] Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 1) at Schedule 2, Division 2, Clause 36(2).
[11] Exhibit A1 - DCB at p.54 and Exhibit R1 at (46), DCB at p.522.
[12] DCB at p. 681.
[13] Barbara Roman v Mercy Hospitals Victoria Ltd [2022] FWCFB 112 at [26].
[14] Kathryn Marguerite Roy-Chowdhury v Ivanhoe Girls’ Grammar School T/A The Ivanhoe Girls’ Grammar School [2022] FWCFB 101 at [16].
[15] Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 1) at Part 4, Clause 19.
[16] Transcript PN 249-252.
[17] Transcript PN 229.
[18] Exhibit R1 at (15), DCB at p.516.
[19] Transcript PN 267.
[20] Transcript PN 456.
[21] See, for example, Division 4, Clause 15 of the Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 1).
[22] Transcript PN 1037.
[23] Division 4, Clause 15(3) of the Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 1).
[24] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[25] Previsic v Australian Quarantine Inspection Services (AIRC, Holmes C, 6 October 1998), Dec 907/98 M Print Q3730.
[26] Ibid.
[27] (2000) 98 IR 137, 151.
[28] DCB at pp. 649-650.
[29] DCB at p. 656.
[30] DCB at pp.145-149.
[31] Transcript PN 525-528.
[32] DCB at p. 657.
[33] DCB at pp. 658-659.
[34] DCB at p. 660.
[35] DCB at p. 662.
[36] DCB at p. 677.
[37] DCB at p. 679.
[38]Exhibit R1 at (46), DCB at p.522 and Transcript PN 406-407.
[39] DCB at p. 680.
[40] Transcript PN 739-744.
[41] DCB at p. 657.
[42] Transcript PN 409-434.
[43] Exhibit R1 at 25(c), DCB at p.519.
[44] Transcript PN 468 and 1133.
[45] DCB at pp. 651-655.
[46] 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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