Mark Strother v Department of Justice and Community Safety
[2022] FWC 1397
•1 JULY 2022
| [2022] FWC 1397 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mark Strother
v
Department of Justice and Community Safety
(U2021/12346)
| COMMISSIONER LEE | MELBOURNE, 1 JULY 2022 |
Application for an unfair dismissal remedy – government directions – employer required to comply with directions and not allow applicant to attend the workplace – applicant unable to perform primary role as no evidence of vaccination or valid exemption – valid reason for dismissal – dismissal was procedurally fair – applicant’s long period on WorkCover up until termination weighs towards harshness – dismissal not unfair taking into account all the circumstances – application dismissed.
Introduction
This decision concerns an application for an unfair dismissal remedy made by Mr Mark Strother under s.394 of the Fair Work Act 2009 (FW Act). Mr Strother claims that he was unfairly dismissed from his employment with the Department of Justice and Community Safety (DJCS). Mr Strother worked as a Prison Officer at Barwon Prison from 16 March 2015 to 23 December 2021, when the dismissal took effect. Mr Strother was dismissed on the grounds that he was unable to perform the inherent requirements of the primary role that he was employed to perform because he did not provide evidence of vaccination against COVID-19, nor a valid exemption from the requirement to do so. He was provided payment in lieu of notice.[1]
Section 396 requires that I decide four matters before considering the merits of Mr Strother’s application. I am satisfied of the following. First the application was made within the 21-day period required by s.394(2). Secondly, Mr Strother was a person protected from unfair dismissal. Thirdly, the dismissal was not a genuine redundancy. Fourthly, DJCS is not a small business employer, and the Small Business Fair Dismissal Code is therefore inapplicable.
Background
On 1 October 2021, the Acting Chief Health Officer of Victoria issued the COVID-19 Mandatory Vaccination Directions (No 5) (No 5 Direction) under s.200(1)(d) of the Public Health and Wellbeing Act 2008 (Vic). These imposed obligations on various operators of specified facilities, including Local Government, not to allow particular workers to attend for work on or after 15 October 2021 unless they had provided evidence to the employer of having been vaccinated against COVID-19, or of a booking to receive a vaccination by 29 October 2021. An exception applied for workers who provided a certificate that they were unable to receive a vaccination due to a medical contraindication. The No 5 Direction commenced on 1 October 2021 and ended on 21 October 2021. It was succeeded by other directions in similar terms and of the same effect. I will refer to them collectively as the Directions.
Mr Strother failed to provide evidence to DJCS of either a COVID-19 vaccination or a medical exemption in line with the Directions. Therefore, in order to comply with the Directions, DJCS could not allow Mr Strother to attend the workplace after 15 December 2021. Mr Strother contends that DJCS failed to take into account that under his WorkCover rehabilitation plan he was working from home and felt the policy did not apply to his circumstances. He submits that his dismissal was unfair and seeks compensation.[2] DJCS states that Mr Strother “has never performed his role of Prison Officer from his home”.[3]
The Submissions and Evidence
Mr Strother gave evidence on his own behalf. Ms Susana de Pedro, Director of Employee and Workplace Relations, People and Workplace Services, gave evidence on behalf of DJCS.
Mr Strother commenced employment with DJCS as a Trainee Prison Officer on 16 March 2015 in a full-time position, on a fixed term contract from 16 March 2015 to 6 May 2015. He successfully completed his traineeship. By letter dated 10 March 2016, Mr Strother was offered the opportunity to transfer to an ongoing position as a Prison Officer. Mr Strother accepted the offer and was employed on that basis since.
From 1 March 2021, Mr Strother has not attended work at Barwon Prison due to a work-related injury sustained on 22 July 2020. The injury is a mental health injury that is related to employment.[4] The injury was accepted by WorkCover on 1 September 2020. Mr Strother was paid 95% of his Pre-Injury Average Weekly Earnings for the first 13 weeks, amounting to $1,657 per week, and subsequently has been entitled to 80% of his Pre-Injury Average Weekly Earnings amounting to $1,395.20.[5]
Mr Strother also provided evidence that he has been diagnosed by a psychiatrist to “not able to wear a mask in the work environment.”[6] This issue seems to have been at least one impediment to Mr Strother being successfully returned to the workplace. Several Return to Work attempts were made between 7 September 2020 and 10 March 2021. These attempts proved to be unsuccessful due to Mr Strother’s mental health issues which formed the basis of his WorkCover claim.[7]
Mr Strother was somewhat evasive during the hearing as to whether or not his substantive role required him to attend the workplace. When this question was put to him, he asserted the role of a Prison Officer is not a face to face role and instead referred to alternate roles he asserted he could perform.[8] However, Mr Strother agreed earlier in the hearing that his role involved activities that could only have been performed at the prison including day to day supervision of prisoners, observing and assessing prisoners, escort duties and many other duties, and agreed that he undertook those duties on-site.[9] The evidence of Ms de Pedro was that Prison Officers are required to attend work at Barwon Prison to perform their role, and that this role is a face to face role.[10] I accept the evidence of Ms de Pedro on this point. It is abundantly clear, indeed obvious, that Mr Strother’s role as a Prison Officer required him to attend the workplace and I so find.
On 15 October 2021 DJCS implemented its COVID-19 vaccination policy, after consultation with its workers. The vaccination policy was consistent with and gave effect to the Directions and required DJCS workers working outside of their place of residence to be vaccinated against COVID-19.[11]
On 18 October 2021, Mr Colin Thompson, General Manager, Barwon Prison sent a letter to Mr Strother which detailed the mandatory vaccination requirements made in accordance with the Directions. It informed Mr Strother that he would be unable to attend any DJSC worksite after 15 October 2021 while unvaccinated (or if there was no applicable medical contraindication).[12]
On 28 October 2021, Mr Strother responded to this letter stating that the request for his personal medical information was unlawful and a breach of the Privacy Act 1988 and the Ministerial Code of Conduct. Mr Strother stated that such a request was tantamount to bullying him into compliance with an unlawful direction. Mr Strother concluded by stating that if this resulted in the termination of his employment, he would pursue action against unfair dismissal, bullying, discrimination and negligence.[13]
On 28 October 2021, Ms de Pedro sent a show cause letter to Mr Strother. The letter indicated the requirements of the Directions which were placed on DJCS, and that Mr Strother had not provided the required vaccination information under DJCS’s policy. This meant that Mr Strother would be unable to attend Barwon Prison and perform the duties of his role. Because of this, Mr Strother was informed that DJCS proposed to terminate his employment as Mr Strother could not perform the inherent requirements of his role. Mr Strother was provided with 7 days to respond.[14]
Between 29 October 2021 and 15 December 2021, Mr Strother corresponded with DJCS, seeking clarification regarding various matters and outlining his objections. Ms de Pedro set out a useful summary of the extensive exchanges in her witness statement which is set out below:
“(a) On 29 October 2021, Mr Strother sent an email to the DJCS regarding his return to work (SDP-8).
(b) On 3 November 2021, Mr Strother sent an email to the DJCS offering to settle his claim for a total of $220,000. The DJCS responded on 25 November 2021 to the offer of 3 November 2021 stating it would not accept his offer, and asking Mr Strother to confirm if he had alternative employment (SDP-9).
(c) On 8 November 2021, Mr Strother submitted a Workplace Behaviour Complaint Form alleging discrimination because of his medical condition that he could not wear a surgical mask (SDP-10). The letter of 25 November 2021 ([SDP]-9) deals with this Complaint by stating that attempts were made through a return to work program to integrate Mr Strother back into the workplace, that his role of Prison Officer could not be performed from home, and to change the prison officer role from a workplace role to a home-based role was not a reasonable adjustment.
(d) On 20 November 2021, Mr Strother sent an email to the DJCS regarding his return to work (SDP-11).
(e) On 28 November 2021, Mr Strother sent an email that set out his issues regarding return to work. The DJCS responded on 30 November 2021, stating that as Mr Strother had not provided evidence of a medical exemption to COVID- 19 vaccination, alternative duties would not be considered. Mr Strother responded further on 30 November 2021 (SDP-12).
(f) On 1 December 2021, Mr Strother sent a list of further questions. The DJCS responded on 2 December 2021, further stating the requirements of the Directions (SDP-13).
(g) On 5 December 2021, Mr Strother sent a request for compensation attaching invoices (SDP-14).
(h) On 6 December 2021, the DJCS responded to Mr Strother regarding his queries and stating that his responses did not alter the DJCS's view regarding his capacity to perform the inherent requirements of his role. Mr Strother responded on the same day reiterating similar arguments he had made previously (SDP- 15).
(i) On 7 December 2021, Mr Strother sent a further email to the DJCS regarding his treatment at DJCS (SDP-16).
(j) On 8 December 2021, Mr Strother sent a further email stating that he would like a formal investigation into the negligence regarding his employment. The DJCS responded on 8 December 2021, stating that he had previously been responded to and his ongoing objections were noted (SDP-17).
(k) On 14 December 2021, Mr Strother lodged a Review of Actions application form, regarding the recommendation that the Secretary considers the termination of his employment (SDP-18).
(l) On 15 December 2021, Mr Strother lodged a further Review of Actions application forms, regarding the action the DJCS had taken in resolving his concerns (SDP-19).”
On 15 December 2021, DJCS sent Mr Strother a letter terminating his employment on the basis he was no longer able to perform the inherent requirements of his role. Mr Strother’s employment was terminated effective from 23 December 2021, and he was provided four weeks’ payment in lieu of notice.
Mr Strother believes that the dismissal is unfair because:
“At the time I was given my ‘show cause’ notice, I was on work cover doing everything within my power to rehabilitate and return to work.
There is no history of any employees at Barwon being terminated after 52 weeks on work cover.
They usually keep them on the books in hope that they can rehabilitate and re-join the workforce.
Therefore it is not fair and unreasonable to dismiss me on a technicality, based on what policies are required for fully able workers.
The British Government has fully dismissed all mandates and Covid restrictions. New Zealand has also done away with mandates.
The respondent would see these pandemic measures as temporary, if they were acting fair and reasonable, and would give an opportunity for seeing if Australia follows the lead by the Commonwealth of Great Britain.
The respondent tried three times in a matter of weeks to terminate my employment on technicalities, and only followed through on the third try. It is clear they had a bias against me and an agenda to terminate my employment. Acting in such a way is unjust as well as unreasonable.
Six days before I received my letter of termination, I had submitted a ‘Workplace Behavior (sic) Complaint Form’ in relation to Mr. Thompson’s discrimination against me. The fair thing to do, would be to follow the due process of investigating the complaint and settling that matter, before deciding on any termination of employment.
By terminating my employment, they then could throw my complaint in the bin and any crimes committed are covered up. This is unjust.”[15]
Consideration
For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable (s.385(b)). In considering whether it is so satisfied, the Commission must take into account the various matters specified in s.387.
The Commission is required to consider whether there was a valid reason for the dismissal related to the person’s capacity or conduct (s.387(a)). It is a well-established principle that the reason for dismissing the applicant must be sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced cannot be a valid reason.[16]
I consider that DJCS had a valid reason to dismiss Mr Strother. Mr Strother was a worker covered by the Directions and was required to be vaccinated and provide evidence of such, or alternatively, provide evidence of an exemption by 15 October 2021 in order to work outside of his home/attend the workplace. He did neither. The position he held as a Prison Officer required him to attend the workplace. If DJCS allowed him to attend the workplace from 15 October 2021, it would have been in breach of the law and exposed itself to penalties. Mr Strother was therefore unable to perform the inherent requirements of his role.
The Directions meant there was a regulatory requirement that Mr Strother was required to meet in order to continue to perform his role. He elected not to meet the requirement. He could have done so, but it is apparent he decided he would not.
I also reject the notion set out in Mr Strother’s correspondence in his Form F2 application in relation to the vaccine that “…the employers claim that it is a proven control against transmission needs to be substantiated or it is not a proper cause for dismissal based on wishful thinking the vaccine works.”[17] The following observations made by Deputy President Colman in Isabella Stevens v Epworth Foundation (Stevens) are also relevant to this matter:
“…the relevant COVID-19 vaccines have been approved for use in Australia by the national regulator, the Therapeutic Goods Administration (TGA), which is an expert body. The TGA’s approval of relevant vaccines is a matter of public record and is evidence of their safety and efficacy.”[18]
To the extent that Mr Strother contends that the Directions are not valid, I am not satisfied that is the case. I agree with Deputy President Colman’s finding that the contentions advanced by the applicant in Stevens to the effect that the Directions are inconsistent with federal law and therefore invalid pursuant to s.109 of the constitution do not have any merit.[19] In respect of the obligations under the Privacy Act 1988, a matter specifically raised by the applicant in Stevens, his honour observed:
“In particular, there is no reason to think that the Directions are inconsistent with the Privacy Act 1988; evidence of vaccination status can be gathered, used and stored in accordance with the privacy principles.”[20]
In any event, the Directions have not been declared invalid by a Court and the Commission, as an administrative tribunal, must carry out its functions according to law.[21]
Mr Strother has referred to the “temporary nature of the pandemic” and stated that the “fair thing would be to wait and see”, meaning hold his employment open for the foreseeable future. I agree with DJCS’s submissions that the Commission has considered cases where an employee who did not comply with the Directions has requested to take long service leave.[22] It was held to be reasonable to take into account that the Victorian Government had announced that vaccination requirements would be in place for a considerable period of time, and therefore employers are not required to hold the employment of unvaccinated employees open indefinitely. Further, as the Directions are still in place for custodial and public sector workers, if Mr Strother was still employed, he would remain unable to fulfil the inherent requirements of his role.
Mr Strother has made many references in his submissions and documents to DJCS discriminating against him because he was unable to wear a surgical mask, and this being the reason he was unable to come into work. However, I agree with DJCS that from 15 October 2021, the reason that Mr Strother could not come into work was due to his vaccination status, and this was the reason for his dismissal.[23]
In summary, DJCS was compelled to implement the Directions and they have done exactly that in respect to Mr Strother. By virtue of the Directions, they could not allow Mr Strother to attend the workplace because of his decision not to vaccinate against COVID-19. Mr Strother did not provide a valid exemption from the requirement to do so. There was a sound and defensible, and thus valid reason to dismiss Mr Strother. He was unable to perform the inherent requirements of his role. This factor weighs against a finding the dismissal was unfair.
In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether an employee has been notified of the reasons for dismissal and whether the person was afforded an opportunity to respond to any reason related to their capacity or conduct (ss.387(b) and (c)).
Mr Strother was given an opportunity to respond to the show cause letter dated 28 October 2021. As is evident from the exchange of correspondence set out in the background earlier, Mr Strother was clearly put on notice of the reason for dismissal and given an opportunity to respond, which he exercised. As highlighted by DJCS, as part of the process leading to the termination of his employment, Mr Strother:
· received multiple letters of correspondence in relation to his failure to receive a COVID-19 vaccine, setting out that this could have implications on his ongoing employment with the DJCS;
· was given an opportunity to respond to those concerns;
· was invited to show cause as to the termination of his employment;
· provided multiple responses to his show cause letter, which were taken into account and responded to; and
· was given written notice of his termination.[24]
The extensive procedural fairness afforded Mr Strother weighs against a finding the dismissal was unfair.
With respect to s.387(d), there is no evidence that there was an unreasonable refusal by DJCS to allow Mr Strother to have a support person present to assist at any discussions relating to dismissal. This is a neutral consideration.
If a dismissal relates to unsatisfactory performance, s.387(e) requires the Commission to consider whether the person has been warned about that unsatisfactory performance prior to dismissal. However, Mr Strother’s employment was not terminated for unsatisfactory performance, but for issues relating to his capacity.
The Commission is required to consider the degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal (ss.387(f), (g)). There was no procedural deficiency in the manner of effecting the dismissal such that these provisions are relevant. Sections 387(f) and (g) are neutral considerations.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account any other matters that it considers relevant (s.387(h)). Mr Strother worked for DJCS for approximately 6 years and 8 months. This is a reasonable period of time, however it is not a period I consider to be of particularly long service.
Mr Strother has made claims of discrimination against him by DJCS. I am not satisfied that there is any evidence to support such a finding. Ms de Pedro provided evidence that:
“On 5 January 2022, WorkSafe Victoria notified DJCS that it has received an allegation that the DJCS had discriminated against Mr Strother in breach of s.76 of the Occupational Health and Safety Act 2004 (Vic). A WorkSafe inspector reviewed this complaint, concluded that based on the information obtained they could not substantiate that discrimination had occurred, and did not take any further action.”[25]
Mr Strother has contended that it is harsh to dismiss an employee who is on a period of WorkCover. I agree with DJCS’s submissions that Mr Strother was not dismissed because of his work-related injury or because he was on a period of WorkCover. Rather, he was dismissed due to his failure to comply with the Directions, meaning he was unable to fulfil the inherent requirements of his role. Under s.103 of the Workplace Injury Rehabilitationand Compensation Act 2013 (Vic), an employer must, to the extent that it is reasonable to do so, provide to a worker, until the expiration of the employment obligation period, suitable employment (while the worker has a current work capacity) and pre-injury employment (while the worker no longer has an incapacity for work). I agree with the DJCS’s submissions that these obligations were discharged during the employment obligation period of 52 weeks, which concluded in August 2021. After this period, Mr Strother remained unfit to perform his pre-injury job, meaning DJCS was no longer required under WorkCover legislation to keep his job open for him.
Mr Strother has further referenced workers of DJCS who are able to work from home and requested that he also be permitted to work from home. However, DJCS requires all workers who perform any work not at home to be vaccinated before attending one of DJCS’s worksites. Given Mr Strother’s skill set as a Prison Officer, no matter what role Mr Strother was in, he would have been required to attend the work site.[26]
However, I do accept that the mental injury that Mr Strother has suffered, its apparent long-term impact and the fact that he was on a period of WorkCover at the time he was dismissed is a factor that weighs towards a finding the dismissal is harsh. However, it is only one factor that must be weighed against the other factors that weigh against a finding the dismissal is unfair.
Having taken into account all of matters above, I am not satisfied that that the dismissal was unfair.
I have had regard to all of the factors under s.387 of the FW Act. There is a valid reason for Mr Strother’s dismissal, and this is a factor that weighs against Mr Strother. In respect to the procedural fairness to effect the dismissal considered under s.387(b) and (c), this also weighs against Mr Strother. The fact that Mr Strother was on WorkCover at the time of the dismissal and that he has suffered a long term injury is a factor that weighs towards a finding that the dismissal was harsh. All other factors are neutral. Taking into account all of the factors to which I am to have regard, I am not satisfied that the dismissal is harsh, unjust or unreasonable.
Having regard to s.387 of the FW Act, I consider that Mr Strother’s dismissal was not harsh, unjust or unreasonable, and that it was therefore not unfair. The application is dismissed. An order to that effect will be separately issued.
COMMISSIONER
Appearances:
M Strother, Applicant.
N Campbell of Counsel for the Respondent.
Hearing details:
2022.
Melbourne (via Microsoft Teams):
May 11.
[1] Witness Statement of Ms Susana de Pedro, Digital Court Book (DCB) p.750 at [24].
[2]Applicant’s Outline of Arguments, DCB p.30-31.
[3] Form F3 at 3.2.
[4] Attachment MS-3, DCB p.62.
[5] Outline of Submissions of the Respondent, DCB p.737 at [5]-[6].
[6] Applicant’s Outline of Arguments, DCB p.26 and Attachment MS-29, DCB p.677.
[7] Witness Statement of Ms Susana de Pedro, DCB p.747 at [12].
[8] Transcript at PN92-PN100.
[9] Transcript at PN66-PN85.
[10] Witness Statement of Ms Susana de Pedro, DCB p.747 at [8] and p.751 at [30].
[11] Ibid p.748 at [15].
[12] Attachment SDP-5, DCB p.813.
[13] Attachment SDP-6, DCB p.815.
[14] Attachment SDP-7, DCB p.817.
[15] Applicant’s Outline of Arguments, DCB p.30.
[16] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333.
[17] Form F2 at 3.2.
[18] Isabella Stevens v Epworth Foundation [2022] FWC 593 at [19].
[19] Ibid at [26].
[20] Ibid at [26].
[21] Ms Kathryn Marguerite Roy-Chowdhury v Ivanhoe Girls' Grammar School T/A The Ivanhoe Girls’ Grammar School[2022] FWCFB 101 at [16].
[22] Mr Ross Barry Edwards v Regal Cream Products Pty Ltd [2022] FWC 257 at [28].
[23] Outline of Submissions of the Respondent, DCB p.742 at [27]-[28].
[24] Ibid, p.743 at [30].
[25] Ibid p.752; Witness Statement of Ms Susana de Pedro, DCB p.752 at [33].
[26] Outline of Submissions of the Respondent, DCB p.744 at [33]-[34].
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