Matthew Bruce v BHP Coal Pty Ltd
[2022] FWC 3033
•15 NOVEMBER 2022
| [2022] FWC 3033 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Matthew Bruce
v
BHP Coal Pty Ltd
(U2022/6869)
| COMMISSIONER SIMPSON | BRISBANE, 15 NOVEMBER 2022 |
Application for an unfair dismissal remedy – Dismissal not unfair – Application dismissed
On 5 July 2022, Mr Matthew Bruce (Mr Bruce/ the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against BHP Coal Pty Ltd (BHP/ the Respondent).
On 19 July 2022, the Respondent filed a Form F3 Employer’s Response form, and the matter was listed for a conciliation before a Commission Conciliator on 8 August 2022 but did not settle. The matter was then allocated to me, and I listed the matter for a Directions Hearing on 22 August 2022. The matter was set for a Determinative Hearing on 26 September 2022.
The Applicant commenced employment with the Respondent at their Peak Downs Mine site on 15 July 2019 on a full-time basis as a M1 Controller. The Applicant stated that the Respondent did not follow their process and did not issue correspondence in accordance with their guidelines. The Applicant further stated that the Respondent had not addressed his concerns regarding the requirement that he be vaccinated to attend the workplace.
The Applicant was dismissed on 15 June 2022 for his failure to comply with the Respondent’s direction to be fully vaccinated with an approved COVID-19 vaccine and provide proof of that vaccination to the Respondent.
REPRESENTATION
On 29 August 2022, the Respondent filed submissions pursuant to s.596(2) of the Act to seek leave to be represented by Herbert Smith Freehills. The Applicant objected to this and provided submissions in reply and opposition to the Respondent being represented. In consideration with the positions and submissions of the parties, I decided to grant leave for the Respondent to be represented as it would enable the matter to be dealt with more efficiently, taking into account the complexity and volume in relation to the Applicant’s material which submitted the Respondent acted unlawfully in respect to various pieces of legislation, in addition to acting unreasonably in reaching its decision to terminate the Applicant.
The Applicant was assisted by a friend Ms Laura Wust who conducted the matter on his behalf, and the Respondent was represented by Mr Matthew Cameron of Herbert Smith Freehills.
SITE ACCESS REQUIREMENT
The Respondent underwent a process of consultation in line with the conclusions drawn in CFMMEU v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal (Mt Arthur Coal) issued on 3 December 2021.[1]
The Respondent said it also underwent negotiations with employees and union representatives before the Commission and as a result, the Commission issued the Recommendation of Deputy President Asbury (BHP & Ors Recommendation/the Recommendation) on 21 January 2021.[2]
The parties relevantly referred to the Full Bench Decision and the Recommendation of Deputy President Asbury. Deputy President Asbury’s Recommendation highlighted that the implementation of the requirement was not unreasonable nor unlawful having regard to the Privacy Act and the right to bodily integrity and further that the consultation process had been extensive and comprehensive.
EVIDENCE AND SUBMISSIONS
The Applicant relied on his own statement filed on 7 September 2022,[3] as well as written submissions. The Respondent relied on the statements of Ms Lydia Gentle (Portfolio Delivery Manager) filed on 21 September 2022,[4] Ms Diana Sanchez (Superintendent to the Applicant), filed on 21 September 2022[5] and Mr Lucas Ryals[6] dated 23 September 2022 as well as its submissions.
The Applicant’s filed written submissions contained lengthy information questioning the effectiveness of the vaccine, and the lawfulness of the direction.
Mr Bruce set out that he had expressed his concerns regarding the vaccine and the vaccination requirement of the Respondent but had chosen not to provide formal feedback during the consultation process out of fear that he would be targeted. Mr Bruce stated that he experienced a communication breakdown when the Respondent had referred to ‘first’ and ‘second’ letters whilst he stated he only received one. Mr Bruce stated that he had not received responses to his enquiries.
Consultation and show cause
On 31 August 2021, the Respondent made an announcement to their employees, including the Applicant, that it was assessing whether to introduce a Site Access Requirement (SAR) which included a requirement to be vaccinated. On 7 October 2021, the Respondent announced that it had decided to implement the SAR and the Applicant stated that he was aware of this announcement. The announcement specified that the requirement would come into effect on 31 January 2022.
Employees of the Respondent were invited to engage in the consultation process and the Respondent had a dedicated email address to which employees could send concerns. The Applicant submitted that he did not ask questions during the meetings with the Respondent, nor did he provide any information to the Respondent’s consultation email address.
The Respondent continued in their consultation with employees and unions regarding the implementation of the SAR throughout December 2021. The Respondent provided accessible consultation hubs with documents and information regarding the risk assessment and about COVID-19 Vaccinations.
On 21 January 2022, the Respondent provided a Frequently Asked Questions document, and the Applicant provided a copy of this in his submitted material and was therefore aware of the document. The Commission’s Recommendation was also issued on this date and concluded that the SAR was a lawful and reasonable direction. The then General Manager of the Respondent, Mr Lynn, decided to introduce the SAR.
The Applicant commenced a period of leave in December 2021 and was due to return after exhausting his long service leave on 6 June 2022.
On 14 January 2022, a letter was sent to the Applicant from the Respondent directing him to provide evidence of his vaccination status by 31 January 2022. As the Applicant was on a period of leave, the Respondent did not address the matter further until the Applicant was due to return back to work.
On 10 May 2022, the Respondent enquired if the Applicant had uploaded his vaccination status to the Respondent’s site. 17 days later, the Applicant responded by email informing he hadn’t as he was not vaccinated. The Respondent replied and informed the Applicant that vaccination was a condition of entry to the workplace.
On 2 June 2022, the Applicant was issued with a letter requesting evidence of his vaccination as there had not been any record of him having provided this to the Respondent. The Applicant replied on 3 June 2022, requesting further information about the requirement and the direction. The Applicant advised in this correspondence that he was not vaccinated and that he had already expressed his concerns in relation to being vaccinated.
On 6 June 2022, the Respondent sent a further email requesting the Applicant provide the evidence of his vaccination status. The Applicant replied, informing that he was not vaccinated.
The Respondent issued a show cause letter to the Applicant on 7 June 2022. The Show Cause letter required the Applicant provide reasons as to why his employment should not be terminated as a result of his refusal to comply with a lawful and reasonable direction from the Respondent.
The Applicant responded to this show cause letter with a lengthy submission questioning the lawfulness of the direction and the efficacy of the vaccine.
On 8 June 2022, the Applicant had a meeting with Ms Sanchez to discuss the show cause letter, and Ms Heidi Bruce attended as a support person for the Applicant. Considering all the information provided by the Applicant, the Respondent made the decision to terminate his employment effective 15 June 2022.
The Respondent submitted that the Site Access Requirement does not involve coercion to undertake a medical procedure or impair an employee’s bodily integrity to such an extent that it renders unlawful any direction given by the Respondent to comply with it. Further, the Respondent submitted that the Respondent’s direction for the Applicant to supply evidence of his capacity to comply with the Site Access Requirement was, consequently, a lawful and reasonable direction. The Applicant’s failure to comply with that direction was therefore a valid reason for his dismissal.
The Respondent submitted that the Applicant lacked the capacity to fulfil the inherent requirements of his role because he was unable to perform any work after 31 January 2022 and that the evidence discloses that the Applicant’s duties could not be performed from any location other than the Peak Downs mine, consistent with his contract of employment. The Respondent further submitted that due to his choice, the Applicant was unable to enter the Peak Downs mine. The Respondent submitted that the Applicant was not willing to comply with the Site Access Requirement and therefore was unable to perform the inherent requirements of his position.
The Respondent contended that the Applicant’s own evidence discloses that he was aware of how he could ask questions about the Site Access Requirement prior to its implementation. The Applicant chose not to raise those concerns until after the Site Access Requirement came into effect and he was requested to show cause as to why his employment should not be terminated for failure to comply. The Respondent also submitted that as is evident from the FAQ Document dated 21 January 2022 in the Applicant’s own material, the matters raised by the Applicant during the show cause process were considered by the Respondent prior to the implementation of the Site Access Requirement. The Respondent took the matters raised by the Applicant into account when deciding to terminate his employment.
Mr Bruce during his oral evidence in response to the evidence of Ms Sanchez, that he did work at home for a period in 2020 when he had a skin condition. Mr Bruce accepted that he hadn’t done the job at home since that time.
Mr Bruce also said in response to paragraph 25 of the statement of Ms Sanchez that Ms Sanchez did say there was a breakdown in communications between the Applicant and herself.
Mr Bruce accepted during his oral evidence that he knew from 7 October 2021 that the SAR would come into effect 31 January 2022. Mr Bruce accepted that he knew where to get information about the SAR. Mr Bruce said from day one he monitored the frequently asked questions process. Mr Bruce said for him to speak up about the process he would feel targeted.
In response to a document attached to the statement of Mr Ryals, Mr Bruce agreed that he sent an email including the frequently asked questions information dated 21 January 2022 from his work email account to his personal email account on 31 January 2022. Mr Bruce evidence was to the effect that he sent the email to his own email address so he could have the time to read the material at home. Mr Bruce accepted that the information in this email was consistent with the information provided by the Respondent on 7 October 2021. Mr Bruce said that none of it makes sense as he is not going to be forced into taking a vaccination.
Mr Bruce was referred to question 406, 408 and 409 on the frequently asked questions document and the answers provided. Mr Bruce accepted that he had this information as at 31 January 2022 but questioned whether it was accurate.
Mr Bruce was also referred to question 601 and the requirement for the Respondent to know the vaccination status of employees and how to provide it. Mr Bruce said he did say he was not vaccinated. Mr Bruce was asked why he did not mention in his statement receiving the information he forwarded to his own email address on 31 January 2022, and he said it was not information.
Mr Bruce accepted he received another document attached to the statement of Mr Ryals on 14 January 2022. Mr Bruce agreed during cross examination there was not a breakdown in communication about the SAR. Mr Bruce insisted that Ms Sanchez said to him there must have been a breakdown in communications.
Mr Bruce said he commenced new employment on 12 July 2022 earning $65 per hour and he said the salary in the new role would be approximately $131,000. Mr Bruce appeared to accept that his role with the Respondent had a salary of $130,000 but with the Respondent he received a bonus and other benefits.
Ms Sanchez was asked whether she had considered the issues Mr Bruce raised in his show cause letter. Ms Sanchez said the show cause response was received and everything was considered, however the Respondent has taken a risk-based approach and it has been proven vaccination has saved lives.
In closing oral submissions, it was put for the Applicant that Mr Bruce showed he could perform his duties at home and not only at the mine. It was submitted that Mr Bruce asked for more information after the October 2021 announcement and there were “red flags” that deserved to be investigated.
It was submitted that it was impossible for the Applicant to give consent, and doctors cannot give consent when Mr Bruce is pressured to obtain a questionable treatment. It was submitted vaccines are only provisionally approved and there is no medium term and long-term safety data to ensure they are safe. It was submitted that the COVID 19 Emergency Response Act says that it does not override the Human Rights Act.
The Respondent submitted in closing that the Respondent continues to apply the SAR at the workplace and it continued to be an important control measure.
The Respondent submits the evidence supports its position that appropriate consultation occurred. The Respondent submitted that the submissions concerning the section of the Human Rights Act 2019 (Qld) referred to by the Applicant dealt with medical treatment without consent. The Respondent submitted Mr Bruce has chosen not to be vaccinated. The Respondent referred to a New South Wales decision of the Court of Appeal in Kassam v Hazzard which it submitted supports its contention that the SAR does not involve coercion to undertake a medical procedure or impair an employee’s right to bodily integrity to such an extent that it renders any directions given unreasonable or unlawful.
The Respondent further submitted that the Human Rights Act 2019 (Qld) is not relevant because the SAR does not derive its legal force and effect from any action by an agency or law of the State of Queensland. The Respondent submitted that the SAR is imposed by BHP as a condition of entry to the mine and conditions given to Mr Bruce to provide evidence of vaccination so that he could comply with the SAR must stand or fall as lawful and reasonable directions under his contract of employment with the company. The Respondent submitted that the Applicant’s contract makes clear that he is required to comply with such directions.
The Respondent submitted that section 58 of the Human Rights Act 2019 (Qld) imposes obligations on public entities and a public entity is defined in section 9 of the Act to mean a Queensland Government, Local Government, Queensland Police, Government owned corporations and the like. The Respondent submitted that the Respondent is not a public entity subject to the Human Rights Act.
The Respondent referred to a series of recent decisions of the Commission which have continued to adopt the same position as was found in Mr Arthur Coal that supported the safety and efficacy of vaccination, and no evidence has been provided to support the Commission departing from those decisions.
CONSIDERATION
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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 they are relevant to the factual circumstances before me.[7]
(a) Whether there was a valid reason for dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)
To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[8] and should not be “capricious, fanciful, spiteful or prejudiced.”[9] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.
The Respondent asserts that its direction was lawful and reasonable. As to what is “reasonable” in the context of employer directions, the Full Bench provided in Mt Arthur Coal that:
“The reasonableness of a direction is a question of fact having regard to all the circumstances, which may include whether or not the employer has complied with any relevant consultation obligations; the nature of the particular employment; the established usages affecting the employment; the common practices that exist; and the general provisions of any instrument governing the relationship.”[10]
Mr Bruce argued that his human rights had been impinged as a result of the SAR. His response to why the SAR was unlawful and unreasonable, was to question the efficacy of the vaccine and that he believed the requirement was in breach of several sections of the Human Rights Act 2019. Mr Bruce filed a copy of a document entitled “Opinion, Legal Ramifications for Registered Health Practitioners And AHPRA Public Officers re The AHPRA and the National Boards joint statement of 9 March 2021.” Mr Bruce relied on this document to support his assertion that the direction was unlawful and the vaccines ineffective and dangerous.
The decision in the case of Mt Arthur Coal of 3 December 2021 made conclusions in relation to the SAR, the same issue in contest here. The Full Bench in Mt Arthur Coal had before it extensive expert evidence. There was no contrary expert evidence in this case. The decision in Mt Arthur Coal concluded the SAR was capable of being lawful and reasonable however there was a deficiency in the consultation process.
The decision in Mt Arthur Coal accepted a number of general factual propositions were established on the evidence as follows:
COVID 19 involves a high burden of disease, greater than influenza.
Any infected person is at risk of developing serious illness from the virus, which may lead to death.
The risks posed by COVID-19 have changed with the rapid spread of the Delta variant which is more infectious and has more severe health effects than previous variants.
All COVID-19 vaccines currently available in Australia are effective at preventing symptomatic infection, including the Delta variant.
All COVID-19 vaccines currently available in Australia substantially reduce the risk of serious illness or death, including from the Delta variant.
All COVID-19 vaccines currently available in Australia are safe and any adverse effects are usually mild. There is a much higher risk of developing serious complications and dying from acquiring COVID-19.
An unvaccinated person is much more likely to acquire COVID-19 from another unvaccinated person, rather than a vaccinated person.
While other measures, such as mask wearing, and social distancing, are demonstrated to reduce the transmission of COVID-19, the effectiveness of these measures depends on people applying them consistently or correctly. They do not provide a substitute for the constant protection offered by vaccines, nor do they reduce the risk of developing serious illness once somebody acquired infection.
Vaccination is the most effective and efficient control available to combat the risks posed by COVID-19.
10.Even with high vaccination rates of community, COVID-19 will remain a significant hazard in any workplace in which there is a possibility that people will interact or use the same common spaces (even at separate times). The Mine is clearly such a workplace.”
I adopt the reasoning in Mt Arthur Coal. It is uncontentious that Mr Bruce continued to indicate up to the time of his termination that he was not fully vaccinated, and that he was not prepared to be vaccinated, and nor did Mr Bruce have a medical exemption. It is clear Mr Bruce would not comply with the Respondent’s direction.
Mr Bruce’s position focussed mostly on his assertion that the SAR was illegal rather than whether he had been appropriately consulted.
Mr Bruce has submitted that the Respondent was required to provide the written law enabling the legality of the SAR, and written evidence that the vaccine was safe. I am satisfied from the evidence that the Respondent undertook appropriate steps, and a consultation process, to ensure that its directions to be vaccinated were both lawful and reasonable in the particular circumstances in its workplace.
Ms Gentle and Ms Sanchez’s evidence was they had regard to all relevant information including the opinion document tendered by Mr Bruce. Mr Bruce engaged in the show cause process and participated in meetings, however, chose not to participate during the consultation process for the introduction of the SAR. This does not point to a deficiency in the process, and I am satisfied Mr Bruce had an opportunity to participate in the process.
The evidence of Ms Gentle and Ms Sanchez set out in detail the extent of consultation that occurred. I am satisfied that the evidence has established that the Respondent engaged in appropriate consultation.
I am also satisfied on the basis of the evidence that the Applicant’s role is a role that does need to be performed at the worksite and it is not unreasonable for the Respondent to adopt the position that it was not prepared to consider the Applicant performing his role from home as an alternative to termination in the circumstances.
The submission made for Mr Bruce that the direction was unlawful on the basis of human rights legislation, or that Mr Bruce has been subjected to unlawful coercion are arguments that have all been argued and dismissed in other proceedings before the Commission. I am persuaded by the Respondent’s submissions and the authorities it has referred to in its submissions that answer each of the arguments raised against it, and I adopt the same approach in relation to the Applicant’s submissions concerning these arguments as has been found in other proceedings before this Commission and reject each of them. There is no evidence or submission to support a conclusion that the Respondent’s direction was unlawful. For all of the reasons set out above, I am satisfied that the Respondent’s direction was both lawful and reasonable.
In light of Mr Bruce’s decision to refuse to comply with the Respondent’s direction the Respondent could not provide him with further work. Having considered all of the evidence, I am satisfied that Mr Bruce’s failure to comply with the Respondent’s direction constituted a valid reason for dismissal.
(b) and (c) whether the person was notified of that reason and had an opportunity to respond
Based on the evidence provided and submissions made, I am satisfied that the Applicant was made aware in the months leading up to the implementation of the policy, that if he was not vaccinated his employment may be terminated, and further that he was given sufficient opportunity to respond to that reason.
(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist in any discussions relating to dismissal
The Applicant submitted that he was offered and granted a support person during the show cause meeting.
(e) Was the Applicant warned about unsatisfactory performance before dismissal
Given the reasons for the Applicant's termination, this factor is irrelevant.
(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
The Respondent is a large employer with a well-resourced human resources department. It undertook an extensive process to provide its staff with information about the vaccination policy which was to apply to its operations. It consulted with the Applicant in respect of the policy, but it ultimately had very little control over what it could do if he chose not to be vaccinated.
(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
The Respondent is a large organisation with a dedicated human resource management team. Further the Respondent undertook, to a significant extent, to garner advice from the relevant industry employee unions and from the Commission in establishing the Policy.
(h) Any other matters that the FWC considers relevant
Mr Bruce has worked for over 20 years in the coal mining industry. He submitted that he has successfully obtained employment in a position with another employer who does not have a vaccination requirement. He submitted that the impact of the dismissal on him has been harsh. It is clear he made a considered decision that he did not wish to be vaccinated.
The Respondent submitted that ultimately the matter is about the Respondent’s approach to managing risks in relation to COVID-19, and Mr Bruce exercised his right to choose not to be vaccinated.
On the basis of the evidence, the consideration in section 387(h) weighs as neutral.
CONCLUSION
I have determined that the Respondent had a valid reason for dismissal and that the process followed by the Respondent that led to the termination was not unfair. I have concluded that overall the dismissal was not harsh, unjust or unreasonable and I find that the Applicant was not unfairly dismissed in accordance with the Act.
I therefore order that the Applicant’s application be dismissed.
COMMISSIONER
Appearances:
Ms Laura Wust for the Applicant.
Mr Matthew Cameron of Herbert Smith Freehills for the Respondent.
Hearing details:
2022
Brisbane (by Video on Microsoft Teams)
26 September.
[1] [2021] FWCFB 6059.
[2] [2022] FWC 81.
[3] Exhibit 1.
[4] Exhibit 2.
[5] Exhibit 3.
[6] Exhibit 4.
[7] 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].
[8] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[9] Ibid.
[10] [2021] FWCFB 6059 [259].
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