Martin Green v Aldi Stores
[2022] FWC 1197
•28 JUNE 2022
| [2022] FWC 1197 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Martin Green
v
Aldi Stores
(U2022/874)
| COMMISSIONER MIRABELLA | MELBOURNE, 28 JUNE 2022 |
Application for an unfair dismissal remedy.
By his application lodged on 18 January 2022, Mr Martin Green applies under s.394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy. Mr Green was employed by Aldi Stores (ALDI) from 28 July 2014 until his dismissal on 29 December 2021.
Mr Green contends that his dismissal was harsh, unjust or unreasonable. He seeks an order for compensation and reinstatement. ALDI contends that Mr Green’s dismissal was not unfair. It says there was a valid reason to dismiss Mr Green and says that he was unable to perform his job as a consequence of the operation of the COVID-19 Mandatory Vaccination (Worker) Directions (Vic) (the Directions) because he was neither fully nor partially vaccinated against COVID-19 (or had made a booking to be vaccinated), nor did he have a medical exemption from vaccination against COVID-19.
The matter was subject to an unsuccessful conciliation on 25 March 2022 and, consequently, was listed for determinative conference before me on 17 May 2022. At the determinative conference, Mr Green was represented by Mr Gareth Rogers and ALDI was represented by Mr Ben Dudley.
Initial matters to be considered
Section 396 of the FW Act requires that certain matters be determined by the Commission in relation to any unfair dismissal remedy application before the merits of the application may be considered. In respect of the matters identified in subsections (a), (b), (c) and (d) of s.396, it was not in dispute, and I find, that:
1. The application was made within the 21-day period allowed in s.394(2)(a);
2. Mr Green was a person “protected from unfair dismissal” within the meaning of that expression in s.382 at the time of his dismissal by ALDI;
3. ALDI is not a “small business employer” and the Small Business Fair Dismissal Code is not relevant; and
4. The dismissal was not a genuine redundancy.
Background
At the determinative conference, Mr Green confirmed that he did not dispute any of the facts as set out in Mr Christopher Worland’s witness statement.
Mr Green commenced employment with ALDI on 28 July 2014.
From 19 April 2019 to 29 December 2021, Mr Green was employed in the role of Permanent Shift Manager at ALDI’s Leopold store in the Derrimut Region. Since commencing employment with ALDI, Mr Green has also been employed with ALDI as a Store Assistant, Deputy Manager and Store Management Trainee.
The role of Permanent Shift Manager is a managerial role which requires physical attendance at the relevant ALDI store. In this role, face-to-face interaction with customers and other ALDI staff is required. It is a managerial role that requires in-person oversight of ALDI’s in-store operations. The Permanent Shift Manager can be required to “stand-in” for the Assistant Store Manager or Store Manager. These roles cannot be performed from home.
In early October 2021, the Victorian Government issued the Directions. The effect of the Directions was that the Victorian Government was imposing a rule that ALDI store employees could not attend work at the store after 15 October 2021, unless they had received their first dose of vaccination or had a medical exemption from vaccination.[1]
On 1 October 2021, ALDI sent an email to all ALDI employees based in Victoria, including Mr Green, which updated staff on the mandatory vaccination requirement for retail staff and included links to further information.
Mr Christopher Worland, employed with ALDI as an Executive Manager of Store Operations in the Derrimut Region, had multiple informal conversations with Mr Green between 1 October 2021 and 8 October 2021 at the ALDI Leopold store. During one of these conversations, Mr Green said to Mr Worland words to the effect of “I am not getting the COVID-19 vaccine because I do not think it is safe”.
Mr Green’s last shift was 8 October 2021. That same day, Mr Green sent Mr Worland an email in which he requested further information regarding the Directions. This email requested, amongst other things, assurances regarding the safety of the COVID-19 vaccination and its legal status.
From 11 October 2021 to 26 November 2021, Mr Green was absent from work on personal leave. He attended the ALDI Leopold Store on four occasions to provide the Store Manager with medical certificates from his doctor which each stated that “Mr Martin Green has a stress due to upcoming mandatory COVID 19 vaccination”.
On 12 October 2021, Mr Worland sent an email to Mr Green in reply of Mr Green’s 8 October 2021 email. This email reads as follows:
“Dear Martin,
Your below email assumes that ALDI is requiring that you obtain a COVID-19 vaccination. With respect, that is not correct. ALDI is simply complying with clause 5 of the COVID-19 Mandatory Vaccination Directions made under the Public Health and Wellbeing Act 2008. These directions require that ALDI not allow an unvaccinated worker to work outside of their place of residence.
…
At this time, ALDI has not directed you to be vaccinated; that remains your choice. It simply follows that if you are not vaccinated, ALDI cannot lawfully allow you to attend work. Where this is the case and you are not on approved leave, you are not ready, willing and able to fulfil your employment, as a result of factors outside of ALDI’s control.
As such, ALDI does not consider that it is the proper recipient of your enquiries.
Regards,
Chris Worland”
On and from 15 October 2021, and as a result of the Directions, ALDI says it was not permitted to allow Mr Green to attend the workplace as he was not vaccinated against COVID-19, nor had he supplied evidence of a medical exemption.
From 15 October 2021, Mr Green was no longer rostered to work at the ALDI Leopold store because ALDI says he was unable to attend for work.
On 23 October 2021, Mr Green sent a lengthy email to Mr Worland requesting a risk assessment in being vaccinated against COVID-19 and providing numerous challenges to the legality of the Directions.
Mr Worland says that he did not reply immediately to Mr Green’s 23 October 2021 email because he had already informed Mr Green that ALDI was not the proper recipient of his enquiries.
On 3 November 2021, Mr Tom Daunt, Chief Executive Officer of ALDI, sent an email to all employees informing them that ALDI was introducing a policy that they would be required to have two doses of a COVID-19 vaccination by 1 March 2022 to continue performing work (the Vaccination Policy).
Under the Vaccination Policy, all ALDI employees were required to confirm their vaccination status and provide a copy of their proof of vaccination (or, if applicable, evidence of a valid medical exemption) by 10 January 2022.
Mr Green and Mr Worland had a brief telephone conversation in or around mid-November 2021 regarding Mr Green’s vaccination status.
On 17 November 2021, Mr Green sent a further email to Mr Worland regarding COVID-19 vaccination requirements and government health orders and he repeated his request for a safe work method statement.
On the same day, Mr Worland responded to Mr Green and stated, among other matters, that a safe work method statement has no relevance to his employment with ALDI and that ALDI is not interested in debating the legitimacy of public health directions. The email concluded with:
“I again encourage you to consult reputable sources in informing your decision-making, given the potentially significant implications for your employment of continuing to choose not to be vaccinated.
I again ask if you will be able to comply with the vaccination requirement by the 26th of November 2021?
Please respond to me by 5pm Friday 19th of November.”
In the afternoon of 18 November 2021, Mr Worland sent a follow-up email to Mr Green. This email is as follows:
“We have reviewed your vaccination status and note that you are currently listed as being unvaccinated. The current Public Health Directions issued by the Chief Health Officer mean you are unable to work at our store/ Distribution Centre. These Public Health Directions also require all retail workers in our stores and Distribution Centres to be fully vaccinated by 26 November.
Will you be able to comply with this requirement by 26 November?
Regards,
Chris”
On 19 November 2021, Mr Green replied to Mr Worland’s email dated 18 November 2021. This response included the statement that:
“I will not be put under pressure, threatened, forced or coerced into taking any medical treatment such as an experimental vaccine to enable me to keep my employment with Aldi.”
Mr Green’s email concludes with the following: “[a]s you are not allowing me to work, once my sick pay is exhausted, I will be accessing my annual leave and long service leave entitlements before you terminate my contract of employment.”
On 20 November 2021, Mr Worland sent Mr Green a show cause letter. In this letter, Mr Worland notified Mr Green that ALDI was considering terminating his employment on the basis that he had indicated that he did not intend to be vaccinated and that, therefore, he was unable to perform his role because ALDI was unable as a result of the Directions to allow him to attend the workplace. Mr Worland in this letter invited Mr Green to provide any information that he would like ALDI to consider before it made a final decision regarding his employment by 23 November 2021.
Mr Green did not respond to this show cause letter by 23 November 2021.
On 24 November 2021, Mr Worland sent an email to Mr Green attaching a termination letter, giving him notice of the termination of his employment on 29 December 2021.
Submissions
Mr Green’s submissions
Valid reason – s.387(a)
Mr Green contends that his dismissal was unfair and that the reasons for his dismissal were not valid reasons.
Mr Green submits that his dismissal was not due to deficiencies in his performance or for failing to comply with a condition of employment, which he says are contained in the ALDI Derrimut Enterprise Agreement 2019 (the Agreement). He says that his employment is governed by the terms and conditions of the Agreement and that the Agreement does not contain any requirements relating to vaccination.
Mr Green further submits that the Directions were not lawful as they are a state law that is inconsistent with a federal law, that being the Privacy Act 1988 (Cth) (the Privacy Act) and, accordingly, are invalid due to s.109 of the Constitution. Mr Green submits that he was dismissed because of a failure to provide personal medical information, that being his vaccination status, which he says falls directly into the meaning of “health information” as defined by s.6FA of the Privacy Act. He says that under the Privacy Act there is a prohibition on requesting, recording and storing a person’s “health information” unless the request is being made for the purpose of providing a health service to that person.
Further, Mr Green submits that it was unlawful for ALDI to require, as a condition of his employment, that he provide his vaccination status to them because under the Privacy Act this constitutes “health information”. He submits that dismissing an employee for failing to provide this information cannot be a valid reason for dismissal.
Mr Green further submits that the Directions applying to ALDI retail employees at the time of his dismissal were invalid due to s.26 of the FW Act. Mr Green submits that s.26 of the FW Act excludes a state law that regulates the workplace in excess of that contemplated in s.27 of the FW Act, which Mr Green says that the Directions purport to do.
Mr Green contends that requiring employees “under threat of termination to undergo a highly dangerous, completely ineffective medical procedure in order to enter the workplace” is a contravention of s.10 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter). Section 10 of the Charter provides that a person must not be “subjected to medical or scientific experimentation or treatment without his or her full, free and informed consent”.
Mr Green also submits that the Occupational Health and Safety Act 2004 (Vic) (OHS Act) requires that an employer assess the risk that may be placed on each employee should new methods of work be introduced, which he says includes the introduction of the requirement that employees receive a COVID-19 vaccination before they attend the workplace, and that ALDI failed to comply with its obligations in this regard.
Mr Green submits that ALDI dismissed him prematurely, and that it was “objectively unreasonable” and “punitive” for ALDI to do so, due to the temporary nature of the Directions requiring that retail workers show proof of vaccination or exemption, as well as due to the fact that Mr Green’s dismissal date was only 21 days before the Directions were due to expire (this being on 15 December 2021). Mr Green says that 15 December 2021 is the only relevant date on which both ALDI and Mr Green could have made an assessment of Mr Green’s ability to attend the workplace and what steps could, or should, be taken to address his potential absence from the workplace. He says that this is because the Directions were designed to respond to “emergencies”, rather than the “usual course of events”. Mr Green argues that ALDI should have attempted to discuss with him alternative leave or work arrangements to be implemented during the 21 days between the date he was notified of his dismissal and 15 December 2021.
He further submits that the COVID-19 Mandatory Vaccination (Workers) Directions (No 8) (Direction No. 8) and s.7 of the Public Health and Wellbeing Act 2008 (Vic) (Public Health Act) in providing that the requirement to be vaccinated does not apply to a requirement to fill a vacancy “to continue essential operations due to an emergency situation or a critical unforeseen circumstance” reinforces that it was unreasonable for ALDI not to offer Mr Green alternative arrangements during the 21-day period. Mr Green says that this is because it is not unusual for an employee to agree to be “on-call” during an extended period of absence if circumstances arose that required their attendance at work, such as responding to an emergency as outlined in s.7 of Direction No. 8.
Opportunity to respond
Mr Green contends that he was not given an adequate opportunity to respond to the allegations made against him in the show cause letter sent to him on 20 November 2021, and that this made his dismissal procedurally unfair. He firstly says that this is because the show cause letter was sent to him while he was on approved leave. Secondly, he says he was not given an opportunity to respond because the show cause letter was sent to him less than three clear business days before the termination letter was sent to him on 24 November 2021. Thirdly, he claims that he was not given an adequate opportunity to respond because he was dismissed while on approved leave.
ALDI’s submissions
Valid reason – s.387(a)
Aldi submits that Mr Green’s employment was terminated because he was unable to perform his job as a consequence of the operation of the Directions, because the Directions meant that he was unable to attend the workplace and that the valid reason for dismissal relates to Mr Green’s capacity.
ALDI submits that:
· The making and enforcement of the Directions were matters outside its control as the Directions operate as a matter of Victorian law.
· Further, there is no reason to doubt the validity or enforceability of the Directions and it is not for ALDI to assume that directions or orders issued by the Victorian Government are invalid and should not be complied with. ALDI says it was required to comply with the Directions and that to act differently would expose ALDI to serious penalties and other consequences.
· The Commission should not proceed on the basis that legislation or delegated legislation is invalid or of no effect until a Court holds otherwise.
ALDI submits that there is, and can be, no inconsistency between the provisions of the FW Act and the Directions or Public Health Act. It submits that the Public Health Act does not fall within the scope of any of the parts of s.26 of the FW Act, nor does the Public Health Act touch on any of the matters referred to in s.26 of the FW Act. It submits that the purpose of the Public Health Act is plainly not - contrary to Mr Green’s submission - to regulate the workplace or establish terms and conditions of employment. It points to s.1 of the Public Health Act which provides that “[t]he purpose of this Act is to enact a new legislative scheme which promotes and protects public health and wellbeing in Victoria”.
Further, it submits that s.27(2)(c) of the FW Act, which provides that state laws that are not excluded include those dealing with occupational health and safety. ALDI submits that, on Mr Green’s argument, the Public Health Act would fall squarely within that provision.
ALDI also submits that it was entirely reasonable, and in fact appropriate, that it took the view that the Victorian Government would continue to adopt the same requirements relating to vaccination on an ongoing basis after 15 December 2021.
ALDI notes that the Directions continued to be issued after 15 December 2021 in similar terms; that is, under the current public health Directions, the prohibition on unvaccinated persons attending relevant workplaces was, and is, ongoing. ALDI submits that it had no expectation that the Directions would cease to exist after 15 December 2021, given the nature of the Directions and the ongoing nature of the COVID-19 pandemic, as well as increasing case numbers of those contracting the illness during the relevant time.
ALDI points to other decisions by the Commission where the Commission has held that an employer, in the same shoes that ALDI found itself in in respect of Mr Green’s dismissal, is entitled to act in accordance with the legislation in place at the time of the dismissal.[2]
ALDI also contends that the Commission has previously held that there is no reason to think that the Directions are inconsistent with the Privacy Act and that evidence of vaccination status can be gathered, used and stored in accordance with the Privacy Principles.[3]
ALDI submits that, in any event, it was not unlawful for it to request that Mr Green supply information related to his vaccination status. It submits that not only is that required by the Directions, but s.16B of the Privacy Act (as referred to by Mr Green) is irrelevant and reliance on it by Mr Green is entirely misconceived - it applies to the collection of information in connection with the provision of a health service. ALDI submits that the provision clearly does not, as Mr Green contends, operate to prevent ALDI requesting health information unless the request is being made for the purpose of providing a health service. ALDI submits that there is no provision in the Privacy Act that prohibits it from making a request for health information that is reasonably necessary for, or directly related to, one of its functions or activities (which this clearly was). ALDI submits that, in any event, it did not take action against Mr Green because he declined to provide health information to ALDI.
ALDI submits that the contention of Mr Green that the Directions are invalid on the ground that they are contrary to the Charter because it subjects him to “medical or scientific experimentation or treatment without his or her full, free and informed consent” is misconceived and of no merit.
ALDI submits that neither it nor the Directions imposed a mandatory requirement that Mr Green be subjected to a medical or scientific experimentation or treatment. ALDI submits that Mr Green was within his rights to decline to receive a vaccination or to provide ALDI with the information it requested from him; however, Mr Green’s choice not to do so had the inevitable consequence that ALDI was, by law, required to ensure he did not attend the workplace to perform work and that he was therefore unable to perform his job.
ALDI also denies that it has failed to comply with its obligations under the OHS Act. ALDI submits that Mr Green’s submission that “requiring an employee to undertake an unwanted and unnecessary medical procedure in order to attend their place of employment would obviously be introducing a new risk into the workplace” is misconceived and irrelevant to these proceedings before the Commission.
ALDI says that it did not impose a requirement that Mr Green undertake a medical procedure as a condition for continued employment and that, at all times, Mr Green was entitled to choose not to be vaccinated against COVID-19 and, indeed, he did exercise that choice. ALDI submits that as a consequence of that choice ALDI was not permitted to allow him to attend its workplace for the purposes of performing his work.
Notification of the reason - section 387(b)
ALDI submits that Mr Green was put on notice of ALDI’s proposal to terminate his employment by way of letter sent to him on 20 November 2021.
Opportunity to respond - section 387(c)
ALDI submits that the salient issue under s.387(c) of the FW Act is whether Mr Green was given an opportunity to respond to reasons related to, relevantly, his inability to attend the workplace as a consequence of the Directions. It submits that Mr Green was given an opportunity to respond on multiple occasions to ALDI’s requests as to whether he intended to be vaccinated, including on 1 October 2021, 17 November 2021 and 18 November 2021, as well as an opportunity to respond to the proposed dismissal in the letter dated 20 November 2021.
Regarding Mr Green’s contention that the process adopted by ALDI was not fair because he was on “approved leave” at the time he received a letter indicating that ALDI was proposing to terminate his employment, ALDI submits the following:
· The evidence discloses that Mr Green had, prior to receiving the show cause letter, regularly been corresponding with Mr Worland, even while on sick leave;
· In order to mitigate the financial impact of the Directions on Mr Green, ALDI allowed Mr Green to continue to access paid leave entitlements after 15 October 2021 and after he had exhausted his personal leave entitlements, as he was unable to attend for work as a consequence of the Directions; and
· At no point did Mr Green indicate to ALDI that he was unable to respond to the show cause letter or request more time. If he had done so, that would have been considered by ALDI.
No unreasonable refusal of support person – section 387(d)
ALDI says that Mr Green was offered an opportunity to meet via video or telephone conference and was invited to bring a support person with him to any such meeting, as set out in the letter to Mr Green dated 20 November 2021.
ALDI submits that, whether or not Mr Green took up the opportunity (which he did not), there was no refusal to allow him to have a support person present at any discussions relating to dismissal.
Unsatisfactory performance – section 387(e)
ALDI submits that this factor is not relevant to the current proceedings.
Size of enterprise and dedicated human resources expertise – sections 387(f) and (g)
ALDI submits that this factor is not relevant to these proceedings.
Other relevant matters – section 387(h)
ALDI submits that Mr Green has pointed to no factors, other than those addressed and dealt with above, that mean that the dismissal was harsh, unjust or unreasonable.
Was the dismissal unfair? – section 385 of the FW Act
As to the circumstances set out in s.385 of the FW Act, there is no question or dispute that Mr Green 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 Green’s dismissal was consistent with the Small Business Fair Dismissal Code (s.385(c)) is required nor one where it is claimed 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 FW 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.”
I am required to consider each of these criteria, to the extent that they are relevant to the factual circumstances before me.[4]
I set out my consideration of each below.
Section 387(a) – valid reason for the dismissal relating to capacity or conduct
Under s.387(a), the Commission is required to consider whether there was a valid reason for dismissal that related to Mr Green’s capacity or conduct. To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[5] and should not be “capricious, fanciful, spiteful or prejudiced.”[6]
In Crozier v AIRC,[7] it was found that:
“A reason will be “related to the capacity” of the employee where the reason is associated or connected with the ability of the employee to do his or her job.”
In my view, ALDI had a valid reason to dismiss Mr Green and this valid reason related to his capacity to do his job. That Mr Green chose not to comply with the Directions meant that he was unable to attend his workplace and perform his job.
In correspondence on 19 November 2021, Mr Green referred to COVID-19 vaccination as “experimental”. He concludes this email with the words “[a]s you are not allowing me to work, once my sick pay is exhausted, I will be accessing my annual leave and long service leave entitlements before you terminate my contract of employment”. Mr Green had previously stated, “I am not getting the COVID-19 vaccine because I do not think it is safe”.[8]
In these circumstances, ALDI was entitled to conclude that Mr Green was, and would, remain unvaccinated, and therefore unable to perform his job.
I do not accept Mr Green’s various contentions that the Directions were invalid, that ALDI’s direction that he show proof of vaccination was not a lawful direction, that the operation of Direction No. 8 means that it was unreasonable for ALDI not to offer him alternative arrangements and that the Directions were temporary and should not apply to him. Mr Green was entitled to exercise his choice to decline to be vaccinated and decline to provide ALDI with the information it requested from him. This choice came with the serious consequences that he put himself in the position where he was not able to attend at his workplace to perform his job. That is because, effective from 15 October 2021, ALDI was legally required to not allow Mr Green to attend the workplace unless he provided the information as detailed in the Directions. ALDI had no choice but to follow the Directions. To do otherwise would have exposed it to financial penalties.
One of Mr Green’s submissions relating to the validity of the Directions is that sections 26 and 27 of the FW Act prevent the Directions from applying to his workplace because they operate to exclude laws regulating the workplace. I do not accept Mr Green’s submissions. ALDI’s corresponding submissions are compelling. ALDI contends that the purpose of the Public Health Act, as set out in s.1 of that Act, is to “enact a new legislative scheme which promotes and protects public health and wellbeing in Victoria” and not, as Mr Green contends, to regulate the workplace. ALDI also relies on s.27(2)(c) of the FW Act. Section 27 generally includes a list of matters that are not excluded. Section 27(2)(c) lists “occupational health and safety” as a matter that is not excluded from the operation of the FW Act.
Accordingly, I find that the FW Act does not operate to the exclusion of the Directions by virtue of s.26 of the FW Act. The Directions are not a state or territory industrial law. In so far as they relate to the workplace, they do so because they relate to occupational health and safety, and as per s.27(1)(c) and s.27(2) they are not excluded from applying to Mr Green’s workplace.
Mr Green submits that his employment is governed by the Agreement and that the terms of the Agreement do not contain any clauses relating to vaccination. An obligation of an employee to obey the employer’s lawful and reasonable direction is implied into the employment contract.[9] The first element is that the direction be a lawful one. ALDI’s direction that Mr Green show proof of vaccination or exemption (ALDI’s direction) did not require Mr Green to act unlawfully. In the circumstances of this matter, I find that ALDI’s direction was reasonable. The Directions, in legally requiring ALDI to ensure that Mr Green did not attend its premises for work unless he had provided the required evidence regarding his vaccination status, are an additional regulatory requirement on ALDI’s operations.[10]
I reject Mr Green’s submissions that by virtue of the Charter, the OHS Act, and the Privacy Act, ALDI’s direction was invalid. The submissions are misconceived.
I reject the contention that, contrary to the Charter, Mr Green was being subjected to a medical or scientific experiment. The rollout of the COVID-19 vaccinations is not an experiment or a trial. Prior to approval by the Therapeutic Goods Administration, relevant vaccinations have been tested and trialed. In any case, if Mr Green’s contention is intended to apply to ALDI, it cannot because the Charter cannot apply to a privately owned company.[11] In relation to the OHS Act, I reject the contention that Mr Green was required to undertake an unwanted and unnecessary medical procedure that would be introducing a new risk into the workplace. Firstly, the choice to have the vaccination was his to make and, secondly, there is no evidence that by being vaccinated, a new risk was being introduced into the workplace. In fact, the converse would apply where employers who do not take steps to mitigate the spread of COVID-19, including through policies of vaccination, could leave open the possibility of breaching the OHS Act. I reject the contention that the Directions were inconsistent with the Privacy Act as there is no inconsistency between the Privacy Principles and the gathering, use and storage of evidence of Mr Green’s vaccination status.
I reject Mr Green’s contention that the Directions were temporary, and that ALDI acted punitively because they dismissed Mr Green 21 days before the relevant Directions were to expire. It was reasonable for ALDI to act according to the law that existed at the time of the dismissal.[12]
Sections 387(b) and (c) – notification of reason for dismissal and opportunity to respond
Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made,[13] in explicit, plain and clear terms.[14]
There is no dispute and I find that Mr Green was notified of his dismissal on 24 November 2021 in clear and explicit terms and, further, that this dismissal was foreshadowed in a “show cause letter” on 20 November 2021 (the show cause letter).
In contending that he had an inadequate opportunity to respond, Mr Green says that the show cause letter was sent to him whilst he was on approved leave, that he had less than three business days within which to respond and he submitted that this was not an adequate time frame within which to respond, and that he was dismissed whilst on approved leave.
At the time of his dismissal, Mr Green had been on leave since 11 October 2021. His four medical certificates[15] all cited the following reason for his inability to attend at work: “stress due to upcoming mandatory COVID-19 vaccination”. During the leave period and prior to the show cause letter from ALDI, Mr Green exchanged lengthy correspondence with his employer on at least the following dates: 23 October 2021,[16] 17 November 2021 and 19 November 2021.[17] That Mr Green was on medical leave did not prevent him from corresponding with ALDI on these occasions, it did not prevent him from responding to the show cause letter and it did not create an immunity to dismissal.
Prior to the show cause letter, the requirement to provide proof of vaccination status was an issue that ALDI had canvassed with Mr Green on 1 October 2021, 12 October 2021, 17 November 2021, and 18 November 2021. I am satisfied that the correspondence of 1 October 2021 foreshadowing mandatory vaccination and subsequent correspondence that Mr Green could not attend at work if he did not provide evidence of his vaccination status was discussed by the parties.
Having regard to the circumstances of this case, I am satisfied that Mr Green was on notice of the reasons for his dismissal and the possibility of dismissal, and that he was provided with opportunities to respond prior to the decision to terminate his employment being made.
Section 387(d) – any unreasonable refusal to allow Mr Green to have a support person present to assist at discussions relating to the dismissal
This consideration is irrelevant in this case. There was no unreasonable refusal by ALDI to allow Mr Green a support person at discussions relating to his dismissal and nor had any such refusal been alleged.
Section 387(e) – any warnings about unsatisfactory performance before the dismissal
This factor is not relevant in this case.
Section 387(f) and (g) – the degree to which the size of ALDI’s enterprise and the absence of dedicated human resource management specialists would be likely to impact on the procedures followed in effecting the dismissal
Neither party made submissions on these factors. I find that sections 387(f) and (g) are not relevant factors in this matter.
Section 387(h) – any other relevant matters
I have noted Mr Green’s various concerns about COVID-19 vaccination, including issues of safety and legality, as well as the information he relies on in support of these contentions.[18]
Mr Green submits that ALDI was unreasonable in dismissing him because they acted on “speculation” and contrary to publicly available information, including Australian Bureau of Statistics (ABS) statistics as interpreted by him and that, in these circumstances, ALDI should have discussed alternative arrangements, such as redeployment. I do not accept Mr Green’s self-serving interpretation of ABS statistics, and this consideration is not relevant.
Having considered and weighed the matters raised, I do not find that they are sufficient to render Mr Green’s dismissal harsh, unjust or unreasonable.
Conclusion
Having made findings in relation to each of the matters specified in s.387 of the FW Act, I am satisfied that Mr Green’s dismissal was not harsh, unjust or unreasonable, and that it was, therefore, not unfair. The application is dismissed.
COMMISSIONER
[1] Respondent’s outline of submissions dated 6 May 2022, paragraph 2.
[2] Roy-Chowdhury v Ivanhoe Girls' Grammar School[2022] FWC 84, [23].
[3] Stevens v Epworth Foundation [2022] FWC 593, [26].
[4] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[5] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[6] Ibid.
[7] Crozier v AIRC [2001] FCA 1031; (2000) 50 AILR.
[8] Witness statement of Christopher Jon Worland, paragraph 14.
[9] Bayley v Osborbe (1984) 4 FCR 141, 145.
[10] Roman v Mercy Hospitals Victoria Ltd [2022] FWC 711, [31].
[11] Charter of Human Rights and Responsibilities Act 2006 s.6(2).
[12] Roy-Chowdhury v Ivanhoe Girls' Grammar School[2022] FWC 849, [23].
[13] Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport (2000) 98 IR 137, [73].
[14] Previsic v Australian Quarantine Inspection Services, Print Q3730 (AIRC, Holmes C, 6 October 1998).
[15] Witness statement of Christopher Jon Worland, annexure CJW-6.
[16] Witness statement of Christopher Jon Worland, annexure CJW-7.
[17] Witness statement of Christopher Jon Worland, annexure CJW-11.
[18] Applicant’s outline of submissions filed 21 April 2022; Applicant’s submissions in reply filed 15 May 2022.
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