Matthew Jolly v The Commissioner for Public Employment
[2022] FWC 1676
•20 JULY 2022
| [2022] FWC 1676 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Matthew Jolly
v
The Commissioner for Public Employment
(U2021/12349)
| COMMISSIONER RIORDAN | SYDNEY, 20 JULY 2022 |
Application for an unfair dismissal remedy
On 27 December 2021, Mr Matthew Jolly (the Applicant) filed an application (the Application) with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the FW Act). The Applicant was dismissed by the Commissioner for Public Employment (the Respondent) on 13 December 2021 on the basis that he was not able to perform the inherent requirements of his job.
The Applicant was employed by the Northern Territory Fire and Rescue Service (NTFRS) as a Firefighter from 5 May 2015 until his dismissal on 13 December 2021. The Applicant’s employment was covered by the Northern Territory Public Sector Fire and Rescue Service 2017 - 2021 Enterprise Agreement.
The Applicant seeks 26 weeks’ compensation.
Background
On 18 March 2020, a public health emergency was declared in the Northern Territory as a result of the COVID-19 pandemic.
On 13 October 2021, the Northern Territory Chief Health Officer issued COVID-19 Directions (No. 55) 2021 (CHO Direction No. 55) which came into effect on 12 November 2021, directing for mandatory vaccination of certain workers to attend the workplace. These directions applied to the following workers:
(a)a worker who, during the course of work, is likely to come into contact with a vulnerable person;
(b)a worker who is at risk of infection with COVID-I9 because the worker, during the course of work, is likely to come into contact with a person or thing that poses a risk of infection;
(c)a worker whose workplace poses a high risk of infection with COVID-19;
(d)a worker who performs work that is necessary for the operation or maintenance of essential infrastructure or essential logistics in the Territory.
These directions provided that for the period starting on 13 November 2021, a worker who had not received the first dose of an approved COVID-19 vaccination must not attend the worker’s workplace. On and from 25 December 2021, a worker who had not received two doses of an approved COVID-19 vaccine must not attend the worker’s workplace.
These directions applied unless the worker could provide evidence of a contraindication to all approved COVID-19 vaccines.
On 13 October 2021, Ms Jodie Ryan, Chief Executive Officer, Department of the Chief Minister and Cabinet, Northern Territory Government, wrote to all Northern Territory Public Service (NTPS) employees regarding the CHO Direction No. 55 and confirming the requirement that all staff receive the first dose of the COVID-19 vaccine by 13 November 2021 and to be fully vaccinated by 24 December 2021. The email correspondence noted the exemption for a proven contraindication.
On 22 October 2021, Ms Vicki Telfer PSM, Commissioner for Public Employment, wrote to all Northern Territory Government staff, advising of, among other things, the requirement for employees’ vaccination statuses to be registered with their employer a week in advance of the due dates. A ‘myHR’ system had been developed for registering these details.
On 22 October 2021, Mr Jamie Chalker, Commissioner of Police and CEO, wrote to all Northern Territory Police, Fire and Emergencies Services (NTPFES) staff regarding Mandatory COVID-19 vaccination for all NTPFES workers. The correspondence provided that due to the nature of their work, all NTPFES workers were subject to the mandatory vaccination criteria directed by CHO Direction No. 55. It provided that all NTPFES workers were required to receive their first dose of an approved COVID-19 vaccination by 13 November 2021, and their second dose of an approved COVID-19 vaccination by 25 December 2021.
Various internal broadcasts followed these communications, providing further information and clarification regarding the vaccination mandate.
On 23 November 2021, Mr Mark Spain, Chief Fire Officer (CFO) wrote to the Applicant as follows:
“Dear Mr Jolly
RE: INABILITY TO PERFORM DUTIES - FAILURE OR REFUSAL TO RECEIVE APPROVED COVID-19 VACCINATION
I am writing to you, pursuant to section 44 of the Public Sector Employment and Management Act 1993 (the Act), to advise you that I suspect that there are "inability or performance grounds" which exist in respect to your employment.
In particular, with reference to sections 44(1)(a) and (b) of the Act, I suspect that you are not able and/or not suitable to perform the duties assigned to you.
Particulars
The basis upon which I suspect there may be inability and performance grounds for your employment are as follows:
(a) You are an ongoing employee of the Department working as a Firefighter.
Chief Health Officer Directions No. 55 2021
(b) On 13 October 2021, the Northern Territory Chief Health Officer issued "COVID-19 Directions (No. 55) 2021: Directions for mandatory vaccination of workers to attend the workplace" (CHO Directions No. 55)
(c) CHO Directions No. 55 took effect at 12:00 noon on 13 October 2021 and remain in force.
(d) Direction 4 of CHO Directions No. 55 provide that the Directions apply to workers:
(i) who during the course of work, are likely to come into contact with a vulnerable person;
(ii) who are at risk of infection with CoVID-1.9 because the workers, during the course of work, are likely to come into contact with a person or thing that poses a risk of infection;
(iii) whose workplace poses a high risk of infection with COVID-19; or
(iv) who perform work that is necessary for the operation or maintenance of essential infrastructure or essential logistics in the Territory; and
(e) I am satisfied that Direction 4 of CHO Directions No. 55 applies to your workplace because categories (i), (ii) and (iii) above.
(f) Direction 6 of CHO Directions No. 55 provides that:
For the period starting on 13 November 2021 and ending 24 December 2021, a worker who has not received the first dose of on approved COVD-19 vaccine must not attend the worker's workplace.
(g) Direction 1.0 of CHO Directions No. 55 relevantly provides that:
A person conducting o business or undertaking must ensure that any worker who performs work for the person must not attend the worker's workplace contrary to direction 6.
Direction to Advise Vaccination Status
(h) On 22 October 2021, the Chief Executive Officer:
i. published the Northern Territory Police, Fire and Emergency Services COVID-19 vaccination Instruction and Policy; and
ii. notified you and all workers at the Northern Territory Police, Fire and Emergency Services that CHO Directions No. 55 applied to your workplace
(i)On 26 October 2021:
i. the Chief Executive Officer directed you and all workers at your workplace to advise their vaccination status by no later than 2 November 2021 (Direction 1 of 2021); and
ii. you were sent a reminder of this direction on 5 November 2021 and 10 November 2021
(j) On 11 November 2021 you were contacted by Watch Commander Eric Koomen to remind you of your requirement to comply with the CHO Direction No. 55 given you had been on an extended leave and may not have had access to the previous correspondence. You did not answer and a message was left.
(k) On 11 November 2021 Watch Commander Eric Koomen received an email from your personal email account, in which you indicated "I am trying to comply with your requirements..." with respect to the CHO Directions No. 55. This is accepted as confirmation that you were reasonably aware of the requirements with respect to your employment and compliance with the CHO Directions No. 55
(l) As at 12 November 2021, you had not entered any COVID-19 vaccination information into the myHR Vaccination register.
(m) On 16 November 2021 you were contacted by Ms Natalia Drake of Taskforce Protect, to follow up your vaccination status. During this conversation you advised that because you are on leave you are not required to be vaccinated and that you were yet to have your first approved vaccination
(n) For the reasons set out in particulars (a) to (m) above, CHO Directions No. 55 require that you must not attend your workplace, and I must ensure that you do not do so.
(o) I am not able to provide you with suitable duties in a workplace that is not subject to CHO Directions No. 55
As you are not able to perform your duties in any reasonably available workplace, I have reasonable grounds to suspect that there are inability and performance grounds in relation to your employment because:
1. you are not able to perform the duties assigned to you - for section 44(1)(a) of the Act; and/or
2. You are not suited to perform the duties assigned to you - for section 44(1)(b) of the Act
However, before I make a decision in that regard, I invite you to make submissions to me as to whether you agree with my suspicion.
Your submissions should be in writing and must reach me by no later than the close of business on 29 November 2021.
Suspension Pending Investigation
On the basis of the material set out above, I am of the opinion that the suspected inability or performance grounds are of such a serious nature that you should not perform the duties you have been assigned to perform pending the making of a final decision. Pursuant to section 47 of the Act I foreshadow an intention to suspend you from duty, without remuneration, for a period of three (3) months or until the suspension otherwise ceases in accordance with section 47(4) of the Act. You may wish to use your recreation leave or long service leave entitlements during this period.
However, before I take action to suspend you, I invite you to make a submission in relation to the foreshadowed intention to suspend you from your duties without remuneration. Your submissions should be in writing and must reach me no later than close of business 26 November 2021.
As you are currently on recreational leave and there is no requirement for you to attend duty your IT and building access will be suspended effective immediately. If you require access to your payslips or other personnel information please contact DCDD Workforce Services via email [redacted].
I enclose for your information copies of:
. Direction I of 2021 from CEO NTPFES
. CHO Directions No. 55;
. Part 7 of the Act;
. Employment Instruction No. 3 - Natural Justice; and
. Employment Instruction No. 6 - Performance and Inability.
If you wish to discuss this matter please contact Taskforce Protect via email [redacted].
I appreciate that receiving this notification and dealing with the issues it raises may be difficult. If you would like support, please contact NTPFES Support and Wellbeing service on phone [redacted].
Yours sincerely
Mr Mark Spain AFSM
Chief Fire Officer
23 November 2021”
On 26 November 2021, Ms Erina Early, Secretary – Northern Territory for the United Workers Union (UWU), provided a written response to CFO Spain on the Applicant’s behalf:
“Dear Mr Spain
Disciplinary Proceedings pursuant to the Public Sector Employment and Management Act - s 49
We write on behalf of our member, Mr Matthew Jolly, in response to your correspondence relating to alleged breaches of discipline under the Public Sector Employment and Management Act ('the Act'). We refer to your foreshadowed intention to suspend Mr Jolly.
Suspension Generally
As you are aware, Mr Jolly is on leave until3 1 January 2021. Mr Jolly has no intentions of attending his workplace in breach of the Chief Health Officer Directions (No. 55).
We submit that it is not open for you to suspend an employee while they are on leave.
Suspension without pay
Mr Jolly took his leave expecting to be remunerated until 31 January. After that date, if you suspend our member, it should be with pay.
Our member has considerable expenses, and the loss of remuneration would be financially disastrous for he and his wife.
Matt is the sole income earner in his family. His wife is unable to work presently due to a chronic health condition. This requires her to attend various specialist medical appointments, not all of which are covered by her private health insurance that Mr Jolly pays for.
Our member also makes $500 fortnightly mortgage repayments and has a range of other bills including phone and power. With the Consumer Price Index in the Northern Territory rising by 5.1% in the last year, our member has already been struggling with the cost of living.
If you require further information, please do not hesitate to contact Mr Thomas Malone (Industrial Officer) on [redacted].
Yours sincerely
Erina Early
Secretary - Northern Territory
United Workers Union”
Ms Early further wrote to CFO Spain on the Applicant’s behalf on 29 November 2021:
“Dear Mr Spain
Disciplinary Proceedings pursuant to the Public Sector Employment and Management Act – s 49
We write on behalf of our member, Mr Matthew Jolly, in response to your correspondence dated 23 November relating to the Public Sector Employment and Management Act ('the Act').
Inability to Perform the Duties Assigned
You suspect that Mr Jolly may be unable to perform the duties assigned to him.
Mr Jolly is currently on approved leave and has no assigned duties. When Mr Jolly returns from his approved leave, we do not anticipate him being unable to perform any of the duties assigned to him.
Not suited to Perform Duties Assigned
You suspect that Mr Jolly may not be suited to perform the duties assigned to him. Mr Jolly is currently on approved leave and has no duties assigned to him. Upon his return from leave we do not anticipate him being unsuitable to perform any duties assigned to him.
Your letter to Mr Jolly states:
"As you are currently on recreational leave and there is no requirement for you to attend duty your IT and building access will be suspended effective immediately."
Mr Jolly returns from leave on 31 January 2022.
On the above basis, UWU and our member do not agree with your suspicions set out in your letter.
If you require further information, please do not hesitate to contact Mr Thomas Malone (Industrial Officer) on [redacted].
Yours sincerely
Erina Early
Secretary - Northern Territory
United Workers Union”
CFO Spain wrote to the Applicant on 1 December 2021, foreshadowing an intention to terminate the Applicant’s employment and suspending the Applicant from duty without remuneration:
“Dear Mr Jolly
RE: Section 46(1)(c) Public Sector Employment and Management Act 1993- Foreshadowed intention to terminate employment and notice of suspension from duty without remuneration
I refer to my letter dated 23 November 2021 in which I notified you that I suspected there are reasonable grounds for me to be satisfied that there are inability or performance grounds under section 44(1)(b) of the Public Sector Employment and Management Act 1993 (the Act) in relation to your employment as a Firefighter.
In the correspondence I detailed the inability and performance grounds and invited you to provide a submission to me as to whether you agree with my suspicion, or provide me with any comments you may have in relation to the matters set out in the particulars. The relevant inability and performance grounds are:
· that you are not able to perform the duties assigned to you - for section 44(1)(a) of the Act; and/or
· that you are not suited to perform the duties assigned to you - for section 44(1)(b) of the Act.
On 29 November 2021 I received a response submitted by Ms Erina Early, in which she has incorrectly referenced disciplinary action pursuant to section 49 of the Act. The action, in which I suspect there are reasonable grounds that you are not able to or not suited to perform the duties assigned to you, is in accordance with section 44 of the Act.
Ms Early advised that you do not agree with my determination and that "Upon his [your] return from leave we [you] do not anticipate him being unsuitable to perform any duties assigned to him [you]."
I take this opportunity to remind you that the Fire and Emergency Act 1996 (NT), in which the Chief Fire Officer may enact powers under Section 9, would allow for a recall to duty should the workforce be impacted by an outbreak of COVID-19. Therefore I require all employees, irrespective of their current leave arrangements, to be compliant with the CHO Direction No. 55 in order to perform the duties assigned to you.
As I outlined to you in my letter of 23 November 2021, I am advised that you have yet to receive your first COVID-19 vaccination and by delaying your first vaccination you have not complied with CHO Direction No. 55 to receive your first vaccination by 12 November 2021.
You have not provided any evidence to support your compliance with the CHO Direction No. 55 and therefore I remain of the view that, because you have failed to update your COVID-19 vaccination status in myHR, and you do not have a contraindication to all approved vaccines:
· you are not permitted to enter your workplace;
· I must not permit you to enter your workplace;
· you are unable to perform the duties assigned to you, until such time as you can comply with CHO Direction No. 55 of 2021; and
· no alternative duties are reasonably available.
Having determined that there are inability or performance grounds, I must now consider what is reasonable and appropriate action to take in the circumstances and in light of the actions available to me under section 46(1) of the Act (attached).
As you have not received an approved COVID-19 vaccination, none of the options available under sections 46(1)(a) to 461(b)(ii) (sic) of the Act (including training, reduction in salary, or transfer to alternate duties) will remedy your inability to attend the workplace to perform your duties.
As no other reasonable and appropriate remedial actions are available to me, I consider that the only reasonable and appropriate action available to me is to terminate your employment under section 46(1)(c) of the Act.
Before I take action to terminate your employment, I invite you to make a submission to me in relation to the foreshadowed intention to terminate your employment. Your submissions should be in writing and must reach me no later than close of business 3 December 2021. I will write to you further, to confirm my actions by 6 December 2021. In making my final decision, I will take into account any submission received.
Suspension from duty without remuneration
Further, I refer to my letter dated 23 November 2021 where I invited you to respond why you should not be suspended from duty without remuneration, under section 47 of the Act.
I have now carefully considered the material before me, including your response received 26 November 2021 and I note in particular that you are of the view that it is not open for me to suspend you from duty while you are on leave. You also raised concerns that the loss of remuneration would be financially disastrous for you and your wife as you are the sole income earner with considerable expenses. Having now carefully considered your response, I am satisfied, that based on the information before me, you have failed to comply with CHO Direction No. 55.
In accordance with section 47 of the Act I have decided to suspend you from duty without remuneration. Your suspension will take effect immediately from the date of this letter and will remain in place pending a final decision in relation to the foreshadowed action to terminate your employment. You may wish to use your recreation leave or long service leave entitlements during this period.
Noting in your response that you requested to continue your recreation leave until 31 January 2022, as was previously approved, for the purposes of efficiency, rather than requiring you to formally request to utilise your recreation leave during your period of suspension, I have determined that you have requested to utilise your recreation leave during your period of suspension and I will not alter your current recreation leave period.
During your suspension you are directed to not attend the workplace or any other departmental workplace in relation to the performance of your duties.
While this inability process is ongoing I direct you to make yourself available for the purpose of assisting with any investigations or inquiries relating to this matter.
You are further reminded that your obligations under the Code of Conduct continue to apply throughout and following the conclusion of this process.
It is anticipated that I will make a final decision no later than Monday 6 December 2021.
My previous directions to you continue to apply.
Available Support
I remind you that Employee Assistance Programs are available if you require support.
…Yours sincerely
Mr Mark Spain AFSM
Chief Fire Officer
1 December 2021”
On 2 December 2021, Ms Early wrote to the CFO as follows:
“Dear Mr Spain
Employee Rights whilst on Approved Leave
I refer to your recent suggestions that you are empowered under s.9(2) of the Fire and Emergency Act 1996 to recall firefighters from approved leave.
I am aware that you have suggested this, to some of our members as well as me.
I am aware that you have threated to take disciplinary action, including dismissal of our members, who are on approved leave, and who have not yet been vaccinated for Covid-19. Your threats have been based upon your suggestion that you have powers under s 9 (2) of the Fire and Emergency Act 1996 to recall employees from approved leave.
I have been unable to identify a power under s 9 (2) of the Fire and Emergency Act 1996 for the Chief Fire Officer to recall employees from approved leave.
The Fire and Emergency Act 1996 does not regulate annual leave entitlements. Annual Leave entitlements form part of the National Employment Standards under the Fair Work Act 2009.
I request that you inform me as to the basis of your suggestion that s 9 (2) of the Fire and Emergency Act 1996 provides a basis to recall employees from approved leave.
Employment conditions of employees of the Northern Territory Fire and Rescue Service are regulated by the Northern Territory Public Sector Fire and Rescue Service 2017-2021 Enterprise Agreement (“The Agreement”).
The Agreement provides specific provisions about recalling off-duty employees. It is those provisions which apply, to questions of recalling employees from approved leave, and not s 9(2) of the Fire and Emergency Act 1996.
Enterprise Agreement
The Northern Territory Public Sector Fire and Rescue Service 2017-2021 Enterprise Agreement prescribes provisions regarding recalling off-duty employees only in very limited circumstances in the case of fire in Clause 32.4:
Notwithstanding anything contained in this Agreement, in the case of fire, an employee off duty is liable to be called upon to report for duty and if called upon, will report for duty immediately. Provided that, in the opinion of the Director or their delegate, the employee recalled to duty is fit for duty.
Our members on approved leave cannot be recalled under this Clause as:
a) Only an employee who is off duty is liable to be called upon to report for duty. Members on approved absences as distinct from being off-duty are not liable to be called upon.
b) There is unlikely to be a period of high fire risk, and demand for firefighting services during our members’ leave, considering the impending wet season.
c) The unius est exclusion alterius principle of statutory interpretation means that where certain things are specified in law, an intention to exclude all others from its operation may be inferred. By including the emergency recall travel times for people in Darwin, Katherine, Alice Springs and Track Stations, the ability to recall employees outside these areas is inferred not to exist.
Section 9(2) of the Fire and Emergency Act
The Chief Fire Officer has the power under s9(2) only to do things that are necessary or convenient to be done for or in connection with or incidental to the performance of his functions and the exercise of his powers.
It is neither necessary nor convenient to recall employees to work when they are on approved periods of leave.
The High Court has expressed a clear and settled interpretation of ‘necessary or convenient’ for over 70 years. Where the Act confers a very general power to do what is ‘necessary or convenient,’ Courts will construe what is ‘necessary or convenient’ far more narrowly than if the power were granted in a more specific manner.
The conferral of powers 'necessary or convenient' is limited to what is strictly 'necessary or convenient for you to perform your statutory duties. We note that:
a. At no stage in the past has it ever been necessary to recall employees from annual leave for you (or your predecessors) to perform the statutory duties of the Chief Fire Officer; and
b. Suggesting the act is necessary or convenient would necessitate that you have attempted to recall members who are not on annual leave, which is a far more convenient act; and
c. As discussed below, you are only empowered to recall employees who are off duty instead of being on an approved absence. It is neither necessary nor convenient to act in contravention of the Enterprise Agreement.
d. The approaching wet season has been declared as a La Niña weather event, further reducing the anticipated demand upon Fire Services and staff levels.
Powers in an Outbreak
In some of your correspondence to our members you suggest that the Chief Fire Officer may enact powers under Section 9 of the Fire and Emergency Act 1996, including a recall to duty. You suggest that this recall to duty can only occur ‘should the workforce be impacted by an outbreak of COVID-19.’
The workforce has not been impacted by an outbreak of COVID-19.
If it were the case that s.9(2) provided such powers, the conditions precedent as suggested by you have not been met.
COVID-19 Vaccinations.
Direction 4 of CHO Directions 55 of 2021 states that the mandatory vaccination policy applies to:
(a) a worker who, during work, is likely to come into contact with a vulnerable person.
(b) a worker who is at risk of infection with COVID-19 because the worker, during the course of work, is likely to come into contact with a person or thing that poses a risk of infection.
(c) a worker whose workplace poses a high risk of infection with COVID-19;
(d) a worker who performs work that is necessary for the operation or maintenance of essential infrastructure or essential logistics in the Territory.
These Directions only apply ‘during work,’ ‘in the course of work,’ in a ‘workplace’ or in ‘performing work’ respectively. None of these categories are applicable to people who are on approved leave. There is nothing further in the Schedule to suggest that the Directions apply to persons on annual leave.
Further Considerations
We appreciate that there is a requirement for all on duty firefighters to provide information about their vaccination status and get vaccinated.
We believe that it is unfair and unreasonable to threaten disciplinary action, including termination of employment, of employees who are taking approved leave, and are in the process of arranging vaccinations to be compliant with the CHO directive when they return from leave.
Where individuals may have been delayed in arranging these matters while they are on leave, some flexibility ought to be provided for their unique circumstances.
It does appear as if your suggestions about hypothetical recalls from approved leave are
misconceived and unhelpful to the circumstances.
I request that you adjust your practices to accommodate a more reasonable time frame
for those employees who are on approved leave.
Finally, I note that there is a photograph of a white board circulating on social media which shows a list of names of some of your employees, who appear to be subject of correspondence from you about their vaccination status. I trust you will take whatever steps necessary to address that situation.
If you require further information, please do not hesitate to contact Mr Thomas Malone
(Industrial Officer) on [redacted].
Yours sincerely
Erina Early
Secretary – Northern Territory
United Workers Union”
On 3 December 2021, Ms Early provided a response to CFO Spain on the Applicant’s behalf:
“Dear Mr Spain
Inability or performance grounds - pursuant to the Public Sector Employment and Management Act - s 44
We write on behalf of our member, Mr Matt Jolly, in response to your correspondence dated 1 December 2021 relating to inability or performance grounds pursuant to the Public Sector Employment and Management Act ('the Act').
You have invited our member to make a submission about your foreshadowed intention to terminate his employment by no later than close of business 3 December.
The time frame you have provided to our member to respond is unreasonable.
Our member will be restricted in capacity to seek advice and representation about this serious matter within two days. The time frame you have imposed is irregular, and inconsistent with common practices within the NTFRS, regarding reasonable time frames for employees to respond to such matters.
NTFRS has professional resources and is aware of reasonable time frames and procedural fairness and ought to know that two days in an insufficient and unfair time frame to expect a response to a proposed termination.
Mr Jolly has been on approved annual leave and is due to return to work on 31 January 2022. Mr Jolly is endeavouring to receive an approved COVID-19 vaccination and expects to be fully vaccinated by 31 January.
Inability to Perform the Duties Assigned
You suspect that Mr Jolly may be unable to perform the duties assigned to him.
Mr Jolly is currently on approved leave and has no currently assigned duties.
When Mr Jolly returns from his approved leave on 31 January 2022, we do not anticipate him being unable to perform any of the duties assigned to him.
Not suited to Perform Duties Assigned
You suspect that Mr Jolly may not be suited to perform the duties assigned to him.
Mr Jolly is currently on approved leave and has no duties assigned to him.
When Mr Jolly returns from his approved leave on 31 January 2022, we do not anticipate
him being unsuitable to perform any of the duties assigned to him.
Chief Health Officer Directions (No 55) 2021
Our member is compliant with the CHO Directions No 55 as he is on approved leave from attending his workplace until 31 January 2021.
Our member will not attend his workplace without having received an approved vaccine.
Provisions under the Fire and Emergency Act 1996
Your letter to our member dated 23 November stated:
"As you are currently on recreational leave and there is no requirement for you to attend duty your IT and building access will be suspended effective immediately".
Your letter dated 23 November made no reference to Section 9 of the Fire and Emergency Service Act 1996.
Your letter dated 1 December includes you purporting to 'remind' our member about powers under Section 9. Our member has no recollection of your having previously raised these matters. When our member's leave was approved, no suggestions were made to him about a possibility of him being recalled from approved leave.
We refer to the letter sent to you by Erina Early on 2 December 2021 regarding your suggestions about recalling employees from approved leave.
Our member is on annual leave. Annual leave forms part of the National Employment Standards and is regulated by the Fair Work Act 2009.
The Fire and Emergency Act 1996 does not regulate annual leave.
Resolution
For the reasons summarised above, we disagree with your suspicions set out in your correspondence to our member dated 1 December.
Mr Jolly looks forward to returning to work on 31 January 2022.
Suspension without pay
It is not open for you to suspend Mr Jolly without pay given that he currently is on approved paid leave.
If you require further information, please do not hesitate to contact Mr Thomas Malone
(Industrial Officer) on [redacted].
Yours sincerely
Erina Early
Secretary - Northern Territory
United Workers Union”
(My emphasis)
On 7 December 2021, CFO Spain wrote to the Applicant inviting a last opportunity to provide proof that he had made an appointment to receive a COVID-19 vaccination:
“Dear Mr Jolly
RE: Termination of Employment - Inability to Perform Your Duties
I refer to my letter dated 1 December 2021 in which I advised you of my findings that there were inability and performance grounds in relation to your employment, under sections 44(1)(a) and 44(1)(b) of the Public Sector Employment and Management Act 1993 (the Act).
My letter also foreshadowed my intention to terminate your employment in the NT Public Sector, under section 46(1)(c) of the Act, and invited you to make submissions as to why I should not take that action.
I have now carefully considered the material before me, including a response submitted on your behalf by Ms Erina Early, Secretary at United Workers Union, on 3 December 2021. I note in particular your view that the timeframe in which I have requested your submission, in response to the foreshadowed termination of employment, is unreasonable. You will note in my first correspondence to you dated 23 November 2021 I outlined my suspicion that there are inability and performance grounds in relation to your employment; at which time you had reasonable opportunity to "seek advice and representation" with respect to these matters.
You further advised that you are "endeavouring to receive on approved COVD-19 vaccination and expects to be fully vaccinated by 31 January." I am concerned that you have chosen to delay your vaccination. There is available capacity to receive your first COVID-19 vaccination at all greater Darwin COVID-19 Vaccination Centres and by delaying your first vaccination you have not complied with CHO Direction No. 55 to receive your first vaccination by 12 November 2021.
As I outlined in my letter dated 1 December 2021, NTFRS members may be recalled to duty and therefore I require all employees, irrespective of their current leave arrangements, to be compliant with the CHO Direction No. 55 in order to perform the duties assigned to you.
Having given the matter careful consideration, I maintain my earlier findings that because:
1. you have not received the first dose of an approved COVID-19 vaccine, Directions 6 and 10 of CHO Directions No. 55 of 2021 require that you must not attend your workplace, and I must not allow you to do so; and
2. I am not able to provide you with suitable alternate duties in a workplace that is not subject to CHO Directions No. 55 of 2021;
you are not able to perform the inherent requirements of your duties, under section 44(1)(a) of the Act, and/or you are not suited to perform the inherent requirements of Your duties, under section 44(1)(b) of the Act.
As you have not provided evidence that you have received the first dose of an approved COVID-19 vaccine I remain satisfied, on reasonable grounds, that the only reasonable and appropriate remedial action available to me is to terminate your employment under section 46(1)(c) of the Act.
However, I note your intention to receive an approved COVID-19 vaccination and you expect to be fully vaccinated by 31 January 2022. Before I issue your notice of termination, I invite you to provide me evidence of you having made an appointment to receive an approved COVID-19 vaccination by no later than close of business 8 December 2021. Your appointment must be prior to close of business 10 December 2021 and evidence of you having received your first COVID-19 vaccination must be provided to me by no later than close of business 12 December 2021. If I do not receive evidence that you have made an appointment and received your first COVID-19 vaccination as requested, I will be issuing your notice of termination.
You remain on suspension without remuneration, noting that you are utilising your recreation and long service leave during your period of suspension.
Available Support
I remind you that Employee Assistance Programs are available if you require support.
…
Yours sincerely
Mr Mark Spain AFSM
Chief Fire Officer
7 December 2021”
(My emphasis)
CFO Spain terminated the Applicant’s employment on 13 December 2021 by way of formal letter:
“Dear Mr Jolly
RE: Termination of Employment - Inability to Perform Your Duties
I refer to my letter dated 7 December 2021 in which I advised you of my intention to terminate your employment under section 46(1)(c) of the Public Sector Employment and Management Act 1993 (the Act), but that before doing so invited you to provide evidence that you had made an appointment and received your first COVID-19 vaccination by 10 December 2021.
As you did not provide the required evidence, or any further submissions in response to my intention to termination your employment, I have made my decision based on the evidence before me and for the reasons set out in my previous letter.
Having given the matter careful consideration, I maintain my earlier findings that because:
1. you have not received the first dose of an approved COVID-19 vaccine, Directions 6 and 10 of CHO Directions No. 55 of 2021 require that you must not attend your workplace, and I must not allow you to do so; and
2. I am not able to provide you with suitable alternate duties in a workplace that is not subject to CHO Directions No. 55 of 2021;
you are not able to perform the inherent requirements of your duties, under section 44(1)(a) of the Act, and/or you are not suited to perform the inherent requirements of your duties, under section 44(1)(b) of the Act.
Remedial Action
As you have not provided evidence that you have received the first dose of an approved COVID-19 vaccine I remain satisfied, on reasonable grounds, that the only reasonable and appropriate remedial action available to me is to terminate your employment under section 46(1)(c) of the Act.
Notice of Termination
Pursuant to section 46(1)(c) of the Act, I hereby terminate your employment in the NT Public Sector with effect from the date of this letter.
In accordance with section 117 of the Fair Work Act 2009 you will receive a payment in lieu of being given notice of termination.
Under section 59A of the Act you may appeal against my decision. Any appeal must be lodged within 14 days after you receive this letter with: [redacted].
If you would prefer, you may wish to make make (sic) an unfair dismissal application to the Fair Work Commission. More information is available at: au/content/rulesform/unfair-dismissal-application or by telephone to 1300 799 675. Applications to the Fair Work Commission must be on the prescribed form, available on the website, and lodged within 21 days.
Available Support
I remind you that Employee Assistance Programs are available if you require support.
…Yours sincerely
Mr Mark Spain AFSM
Chief Fire Officer
13 December 2021”
The matter was listed for Hearing by Microsoft Teams on 14 June 2022.
The Applicant appeared on his own behalf at the Hearing. The Respondent was represented by Mr Brian Mappas, Employee Relations Manager Office of the Commissioner for Public Employment Northern Territory Government.
The Applicant appeared and gave evidence on his own behalf. On behalf of the Respondent, Mr Mark Spain, Chief Fire Officer, appeared and gave evidence.
Statutory Provisions
The relevant sections of the FW Act relating to an unfair dismissal application are:
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
381 Object of this Part
(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.
Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer atthat time as an employee.
(2) However:(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and(b) if:
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised; the period of service with the old employer does not count towards the employee’s period of employment with the new employer.
385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
see section 388.
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.”
The relevant sections of the Public Sector Employment and Management Act 1993 (NT) (PSEM Act) as cited by the Respondent is as follows:
“44 Inability or unsatisfactory performance
(1) There are inability or performance grounds for an employee if the employee:
(a) is not able to perform the duties he or she is assigned to perform (whether because of physical or mental illness or disability or any other reason); or
(b) is not suited to perform, or capable of efficiently performing, those duties; or
(c) is not licensed, registered or otherwise qualified for the efficient and satisfactory performance of those duties; or
(d) is not performing those duties efficiently or satisfactorily.
(2) If the Chief Executive Officer of an Agency is satisfied, on reasonable grounds, that there are inability or performance grounds for an employee in the Agency, the Chief Executive Officer may take action in relation to the employee under section 46(1).
(3) In determining whether there are inability or performance grounds for an employee, the Chief Executive Officer must have regard to:
(a) the performance and conduct principle; and
(b) the employee's performance record under the Agency's employee performance management and development system as mentioned in section 24(3)(f); and
(c) any other matter the Chief Executive Officer considers relevant.
(4) For determining whether there are reasonable grounds as mentioned in subsection (2), the Chief Executive Officer may, subject to the Employment Instructions, do one or more of the following:
(a) obtain relevant information from persons as, and in the way, the Chief Executive Officer considers appropriate;
(b) consult with persons as the Chief Executive Officer considers appropriate;
(c) make inquiries as the Chief Executive Officer considers appropriate;
(d) if applicable, obtain a report from a health practitioner under section 45.
(5) The Chief Executive Officer must not take remedial action in relation to an employee unless satisfied:
(a) the action is appropriate and reasonable in the circumstances; and
(b) the employee:(i) has been given written notice of the proposed action and the grounds for taking it; and
(ii) has been given a reasonable opportunity to show why the action should not be taken.
(6) As soon as practicable after making a decision under subsection (2), the Chief Executive Officer must give written notice of the decision to the employee.
(7) If the decision is to take remedial action, the notice must:
(a) give the reasons for the decision; and
(b) inform the employee of the employee's right to request a review under section 59 or to appeal under section 59A (as appropriate).
(8) A decision to take remedial action takes effect on the day the notice is given to the employee or a later day specified in the notice.”
“46 Remedial action
(1) If permitted under section 44 to take action in relation to an employee, the Chief Executive Officer may:
(a) take no further action; or
(b) do one or more of the following:(i) order the employee to undertake training, counselling or other remedial activities the Chief Executive Officer considers appropriate in the circumstances;
(ii) reduce the employee's salary within the range applicable for the employee's designation;
(iii) under section 35:
(A) transfer the employee to perform other duties in the Agency; or
(B) transfer, or request the Commissioner to transfer, the employee to perform duties in another Agency; or
(c) terminate the employee's employment.
(2) The employee must comply with an order made under subsection (1)(b)(i) within the period specified in the order.
(3) The merit principle and section 36(3) do not apply in relation to a transfer under subsection (1)(b)(iii).”
The relevant section of the Fire and Emergency Act 1996 (NT) as cited by the Respondent is as follows:
“9 Powers and functions of Chief Fire Officer
(1)Subject to the directions of the Director, the Chief Fire Officer has operational responsibility for the Fire and Rescue Service.
(2)The Chief Fire Officer has power to do all things that are necessary or convenient to be done for or in connection with or incidental to the performance of his or her functions and the exercise of his or her powers.”
Applicant’s Submissions
Valid reason
The Applicant submitted that his dismissal was not valid as he was on pre-approved annual and long service leave at the time of his dismissal.
The Applicant submitted that for a reason for dismissal to be valid, it must be “defensible or justifiable on an objective analysis of the relevant facts”.[1] Further, the Applicant submitted a valid reason is one which is “sound, defensible or well-founded” rather than “capricious, fanciful, spiteful or prejudiced”.[2]
The Applicant submitted that the Respondent had formally approved his annual leave in advance, for the period 9 November 2021 to 31 January 2022 in compliance with sections 87 and 88 of the FW Act. The Applicant submitted that this pre-approval of his leave formed part of the terms of his contract of employment.[3]
The Applicant submitted that in cancelling his approved annual leave, the Respondent contravened sections 87 and 88 of the FW Act, and section 5F(1) of the Public Sector Employment and Management Act (NT) (PSEM Act), which, for completeness, provides:
“5F(1) a public sector officer must do the following:
(a) carry out the officer’s duties as follows
(i) objectively, impartially, professionally and with integrity.”
The Applicant submitted that the Respondent was legally obligated to honour his pre-approved leave, and in dismissing him during his period of pre-approved annual leave, the Respondent has “broken the law”.
Further, the Applicant submitted that as he was on pre-approved annual leave, he was not contravening section 351(2)(b) of the FW Act dealing with ‘inherent requirements’.
The Applicant also sought to rely on section 3A of the Return to Work Act (NT) and section 789 of the FW Act, submitting that his dismissal was in contravention of these provisions and constituted unreasonable management action. For completeness, s.3A of the Return to Work Act (NT) provides:
“3A Injury
(1) An injury, in relation to a worker, is a physical or mental injury arising out of or in the course of the worker's employment and includes:
(a)a disease; and
(b)the aggravation, acceleration, exacerbation, recurrence or deterioration of a pre-existing injury or disease.
(2) Despite any other provision of this Act, a mental injury is not considered to be an injury for this Act if it is caused wholly or primarily by one or more of the following:
(a)management action taken on reasonable grounds and in a reasonable manner by or on behalf of the worker's employer;
(b)a decision of the worker's employer, on reasonable grounds, to take, or not to take, any management action;
(c)any expectation by the worker that any management action would, or would not, be taken or any decision made to take, or not to take, any management action.”
The Applicant submitted that he has not engaged in serious misconduct as defined in section 12 of the FW Act and Regulation 1.07 of the Fair Work Regulations. The Applicant submitted that he had a workplace right pursuant to sections 340 and 341 of the FW Act to be able to, and continue to, assert his workplace rights pursuant to sections 87 and 88 of the FW Act.
The Applicant submitted that his dismissal was harsh, unjust, unfair, and invalid, and was effected based on a generic template. The Applicant submitted that the Respondent adopted a ‘one size fits all approach’ which was erroneous and without diligent consideration of all the facts of his situation. The Applicant submitted that in doing so, the Respondent engaged in serious mismanagement and made a flawed and unlawful decision in terminating his employment.
The Applicant submitted that, as to the unfairness and harshness of his dismissal during his period of approved leave, he relied on all contentions and points as raised by the UWU in its letter to CFO Spain of 2 December 2021.
Respondent’s powers to recall employees to work
The Applicant submitted that he was terminated during his period of approved leave, on the basis that he was unable to respond to recall by the Respondent, “which CFO Spain asserts he has the authority to implement”. The Applicant submitted that the UWU challenged this assertion, on the grounds that the only power the CFO has is to recall members who are off duty in the event of fire. The Applicant submitted that, as far as he was aware, CFO Spain has not justified his interpretation of this power to include any emergency he deems worthy. The Applicant relied here on the 2 December 2021 letter from the UWU to the Respondent, and all contentions contained therein.
Further, the Applicant raised an incident that occurred in Alice Springs on the evening of 18 March 2022. The Applicant submitted that an incident occurred which resulted in the failure of NTFRS to meet minimum manning requirements as per the Agreement. The Applicant contended that at no point during this incident were members on leave contacted and recalled, even where that would likely have remedied the situation. The Applicant filed and relied on a letter dated 30 March 2022 from CFO Spain to the UWU, in which CFO Spain provided:
“Dear Ms Early
Re: NTFRS Minimum Staffing of Appliances - Alice Springs
In response to your correspondence dated 24 March 2022, the Alice Springs Acting Senior Station Officer (A/SSO) made me aware of the staffing short fall on the Friday evening with a number of factors leading to this position outlined below.
There was an out of Emergency Response Area protracted event on the Lasseter Highway in excess of 200 kilometres from Alice Springs, which required the attention of the Fire Service. Every effort was made by the A/SSO to fill the shortfalls created by the Lasseter Highway incident, recreation leave and ineligibility from those members who were not available to fill the positions on overtime (either on shift or on rest relief as per the Enterprise Agreement).
Friday night's crew of six ran three overtimes to include the A/SSO due to no availability to fill from the lower ranks. There were a further two overtime positions required for the Saturday day shift with only one position filled by a Station Officer (as a firefighter) and one position not filled due to the position as explained above. I was also advised, that all available members were called twice with no success, calling a third time was not an option.
I can assure you every effort was made and will continue to be made to fill all positions within NTFRS operations however the relief pool in Alice Springs was exhausted again as a result of the circumstances outlined above.
Yours sincerely
Mark Spain AFSM
Chief Fire Officer
Northern Territory Fire and Rescue Service
30 March 2022”
The Applicant submitted that CFO Spain differentiates in this letter between those members on approved leave and those on shift or on rest relief. The Applicant submitted this “suggests a distinct difference between the two in terms of ability to be recalled”. The Applicant stated his belief, therefore, that CFO Spain does not in fact have the power to recall members on approved leave. The Applicant submitted that, the fact that CFO Spain did not contact members on leave in order to address the manning shortfall and avoid a breach of the Agreement undermines his assertion that he has the power to do so.
The Applicant also relied here on the ‘NTFRS General Order – Overtime Procedures’ which outline the procedure for dealing with manning shortfalls when calling for overtime. The Applicant submitted that nowhere in this document does it state that members are able to be recalled from leave in order to address manning shortfalls. He submitted, however, that there are other measures in place, such as the shutdown of the Bronto, Humpty Doo Station and recall of those off duty but not on leave. The Applicant submitted this procedure was current at the time of his dismissal.
The Applicant submitted that he was not aware of any policies addressing how recall of employees on leave would be achieved. The Applicant stated that in his 6 years of service with the Respondent, he was never advised of any rules governing his leave which addressed a requirement of him to return to work in the event of a recall. He stated that he has been on a number of trips where he was out of contact for two months or more, and would not have been contactable for a recall. The Applicant argued that if CFO Spain is asserting the ability to respond to recall is grounds for dismissal, then he and other employees who have taken trips rendering them uncontactable would also have been grounds for dismissal.
Applicant’s employment with the Respondent
The Applicant submitted that on commencement with the Respondent in May 2015, he completed his recruit course and obtained a reward for his performance on the course. The Applicant submitted that he performed his duties with the Respondent to a high standard and without incident. He submitted that he volunteered for and conducted further duties above and beyond those expected of him, including but not limited to Compartment Fire Behaviour Training (CFBT) instruction and running a large number of Road Crash Rescue drills on shift.
Effect of dismissal on the Applicant
The Applicant submitted that in the last two years of his employment with the Respondent, he had taken minimal time off and therefore decided to take leave for the period November 2021 to 31 January 2022. The Applicant submitted that during this leave he was “constantly bombarded with emails and phone calls” from the Respondent, which he considered to be unnecessary and resulted in him suffering significant stress while he was attempting to have some time away from work. The Applicant submitted that the Respondent’s threats of disciplinary action during his period of approved leave undermined his right to enjoy his leave to the fullest extent.
Further, as a result of his dismissal, the Applicant submitted that he has missed out on additional leave that he would have accrued had he been able to take the full term of his pre-approved leave.
The Applicant submitted that as a result of his dismissal and loss of regular income, he has suffered financial penalty which would not have otherwise been present, including having to sell his house and pay for the storage of his belongings. He submitted that at the time of his dismissal, he was the sole income earner due to his wife’s medical condition, and his dismissal therefore placed an enormous amount of stress on them both.
Remedy sought
The Applicant seeks 26 weeks’ pay as compensation, in accordance with s.392(6) of the FW Act, or an appropriate amount as determined by the Commission. The Applicant submitted that the Commission should take into account the Applicant’s inability to appropriately utilise his approved leave due to harassment by the Respondent, the loss of potential accrued leave and pain and suffering which resulted from the Respondent’s actions.
Respondent’s Submissions
The Respondent submitted that the Applicant’s dismissal was not was harsh, unjust or
unreasonable for the following reasons.
Valid reason
The Respondent relied on CFO Spain’s evidence as demonstrating there was a valid reason for the Applicant’s dismissal relating to the Applicant’s capacity to perform the inherent requirement of his job.
The Respondent submitted that CHO Direction No. 55 was in place which provided that if a worker fell within one of four categories they were precluded from attending work and their employer was precluded from allowing the worker to attend if they had not received an approved COVID-19 vaccine within specific times. The Respondent submitted that an offence would be committed if the CHO Directions were breached.
The Respondent submitted that the Commissioner of Police and CEO determined that all jobs within the Police, Fire and Emergency Services (PFES) fell within one of the categories of workers who were required to be vaccinated. The Respondent noted that at the relevant time, being 13 November 2021, the Applicant had not received a first dose of an approved COVID-19 vaccine. The Respondent submitted that on 16 November 2021, the Applicant indicated they were yet to have the first dose of an approved vaccination. The Respondent submitted that the Applicant had not indicated he had an appointment to receive a vaccination such that some flexibility might be afforded to get the vaccination or that he had a contraindication to all of the approved vaccines. The Respondent submitted that in circumstances where an employee is unable to perform the inherent requirements of their job, section 44 of the PSEM Act - Inability and performance provisions – applied.
The Respondent submitted that the Applicant was a Firefighter and the CFO was unable to find suitable alternative duties that were not subject to the CHO Directions, as all jobs within the PFES were considered to fall within one or more of the categories specified by the CHO as requiring workers to be vaccinated. The Respondent submitted that had the Applicant been allowed to attend the workplace, the CEO would have committed an offence under the Direction leaving himself/PFES open to prosecution and a maximum fine of $25,120.
The Respondent submitted that the actions available to the CFO under s.46(1) of the PSEM Act included taking no further action, ordering training or counselling or other remedial activities, reducing pay, transfer or termination. The Respondent submitted that in circumstances where the Applicant was not vaccinated, not intending to be vaccinated and could not be placed in alternate duties where the CHO Directions did not apply, the CFO had no alternative but to terminate the Applicant’s employment.
The Respondent noted that the Applicant still has not indicated whether he is vaccinated.
Notification of the reasons for the dismissal
The Respondent submitted that the Applicant was notified of the reason for the Respondent considering dismissal, and was provided opportunities to respond. The Respondent submitted that following the CHO Directions being issued on 13 October 2021, at least eight notices were sent to all employees in PFES between 13 October 2021 and 12 November 2021 advising of the CHO Direction, its requirements and its impact on employment. The Respondent submitted that following these advices, the Applicant received specific and detailed advice on three occasions, on 23 November, 1 December and 7 December 2021 prior to eventual termination on 13 December 2021. The Respondent submitted that the Applicant was invited to make submissions on each of those three occasions, and the Applicant made submissions on 26 November, 29 November and 3 December 2021. The Respondent submitted that each of these responses were considered by CFO Spain before a decision was made to dismiss the Applicant.
Refusal of a support person
The Respondent submitted that there was no request by the Applicant to meet to discuss the inability proceedings and therefore the question of whether there was an unreasonable refusal by the employer to allow a support person to assist at any discussions relating to the dismissal does not arise.
Unsatisfactory performance
The Respondent submitted that the Applicant’s dismissal did not relate to the Applicant’s performance; rather, it arose because the Applicant chose not to be vaccinated and, consequently, was precluded from attending work and the employer was not permitted to allow the Applicant to attend.
Size of the employer’s enterprise and HR resources
The Respondent submitted that whether the size of the employer’s enterprise impacted on the procedures followed and the degree of dedicated human resource management are not matters that the Respondent wished to raise.
Addressing the Applicant’s contentions
As to whether there was a valid reason for the dismissal, the Respondent submitted that there was a valid reason being that the Applicant was not able to perform the inherent requirements of his job because he chose not to be vaccinated with an approved COVID-19 vaccine and as a result, under the CHO Directions he was not able to attend his workplace and the Respondent was not allowed to permit him to attend. The Respondent restated that there were no alternative duties the Applicant could have been given that were not also subject to the CHO Directions.
While the Applicant contended the dismissal was based on a template one size fits all approach and made without diligent consideration of all relevant facts, the Respondent acknowledged that ‘template letters’ were prepared to form the basis for communicating with employees. The Respondent submitted that in the circumstances, this was not surprising, and in fact would be expected to ensure the process for each employee was consistent with the requirements of the Act. The Respondent submitted however, these templates were also designed to be amended as necessary to address the specific facts and issues for each employee. In the Applicant’s case, the Respondent relied on CFO Spain’s evidence as demonstrating the issued raised by the Applicant at each stage in the process were considered by the CFO prior to any decisions taken regarding the Applicant’s employment.
As to the Applicant’s submissions regarding being on pre-approved leave at the time of his dismissal, the Respondent noted that the Applicant’s leave was from 9 November 2021 to 31 January 2022, that the Applicant had received 6 notices regarding the CHO Directions and its requirements prior to commencing leave, with the first on 13 October 2021. The Respondent submitted the inability provisions in the Act can be commenced and finalised at any time where circumstances warrant and in this case, the CHO Directions specified particular dates for workers to be vaccinated to be able to attend work. The Respondent submitted that this was the trigger for commencing the inability process. The Respondent submitted that the corollary of the Applicant’s argument is that an employee faced with a management process (e.g. discipline, performance, inability) would be able to avoid scrutiny simply by going on or continually extending leave.
While the Applicant contended that as he was on leave and not physically working in the workplace, therefore, he could not have been contravening the CHO Directions, the Respondent acknowledged that whilst this is “technically correct”, this state was temporal, only existing at a given point in time for a specified period. The Respondent submitted that, similarly, if someone is on a day off, or simply between shifts, applying this logic would result in them also not contravening the CHO Directions for that limited period. The Respondent noted that, unfortunately, at the end of these specified periods it is expected that an employee would be able to return to work immediately and without delay, that is, not having to wait for an appointment to receive a first vaccination and then waiting for another 4 weeks before the second dose could be administered. The Respondent submitted that requiring an employer to work around this assertion would leave the employer not knowing who was available and when, severely impacting the employer’s ability to manage its human resources efficiently and effectively deliver its services. The Respondent submitted that these temporal circumstances should be disregarded when considering whether an employee on leave is required to be vaccinated under the CHO Directions.
Further, the Respondent submitted that the Applicant is a Firefighter and under the Fire and Emergency Act 1996 (NT), the CFO has the power to recall a Firefighter in the event of an emergency. While the Applicant contends that the CFO does not have the power to recall employees from leave in the event of an emergency in accordance with the provisions of the Agreement, the Respondent submitted that the Fire and Emergency Act and the Agreement work together, and the Agreement provides for specific recalls for fires and how they are dealt with, but in respect to recalls for other emergencies they fall within the general provisions of the Fire and Emergency Act. The Respondent submitted there is no inconsistency between the provisions. The Respondent submitted that if the Applicant’s interpretation were adopted it would lead to a nonsense whereby there may be a significant and critical event (such as a plane crash in Darwin city) that requires all hands and Darwin firefighters who were on annual leave in Darwin could not be recalled/directed back to duty. The Respondent noted that while this is an extreme example, in November 2021 there was a real possibility of COVID-19 getting out of control and infecting multiple firefighters such that they were incapacitated/infectious spreaders of the disease and this is likely to have been a time when the CFO might decide it necessary to recall firefighters from leave. The Respondent submitted that if those firefighters were not vaccinated, they could not be recalled immediately or else there would be a breach of the CHO Directions.
As to the history of recalls, the Respondent submitted that while this is of interest, there has not ever been an emergency like COVID-19 and its complexity, seriousness and urgency as encapsulated in the responses by Australia’s medical experts, including through the issuing of CHO Directions around the country. The Respondent submitted therefore, to require all Firefighters to be available for recall for duty in the event of an emergency is critical to the NTFRS service delivery.
In response to the incident at Alice Springs on 18 March 2022 as raised by the Applicant, the Respondent submitted that the response by the CFO demonstrated an appropriate use of the emergency powers, in that the incident that caused the shortfall was assessed and, based on it being a one-off event, which was expected to be resolved within a defined period and not likely to result in a sustained staffing shortfall, the recall of firefighters from leave was not required under the emergency powers. The Respondent contrasted this with an event where a significant number of firefighters become infected with COVID-19 over a sustained period which is likely to result in the usual recall arrangements not being effective, and therefore requiring the use of the emergency powers under the Fire and Emergency Act.
While the Applicant relied on the General Order Overtime Procedure not including any reference to recalling firefighters from leave, the Respondent noted the General Order is a ‘guide’ and was promulgated in 2015, well before the COVID-19 outbreak. The Respondent submitted that the General Order does not override the powers of the CFO/Director in the Fire and Emergency Act.
As to the Applicant’s reliance on section 3A of the Return to Work Act (NT), the Respondent submitted the action taken by the CFO was done in accordance with and consistent with the PSEM Act, and if the Applicant wished to lodge a workers compensation claim, that is entirely a matter for the Applicant. As to the Applicant’s reliance on section 789 of the FW Act, the Respondent noted that section sets out ‘Limits on the scope of this Division’, and therefore submitted it did not understand this contention and made no specific submission in reply.
The Respondent agreed with the Applicant’s submission that he had not engaged in serious misconduct as defined in section 12 of the FW Act. The Respondent confirmed the Applicant was terminated on inability grounds only.
Conclusion
The Respondent submitted that on the evidence and for all of the above reasons, the Applicant’s dismissal was not harsh, unjust or unreasonable.
Consideration
I have taken into account all of the submissions that have been provided by the parties and I have attached the appropriate weight to the evidence of the witnesses. The fact that an issue is not mentioned in this decision does not mean that it has not been taken into account.
It is not in dispute and I find that the Applicant is protected from unfair dismissal, submitted his application within the statutory timeframe, was not made genuinely redundant and did not work for a Small Business.
When considering whether a termination of an employee was harsh, unjust or unreasonable, the oft-quoted joint judgement of McHugh and Gummow JJ in Byrne v Australian Airlines (Byrne)[4] is of significance:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
In analysing Byrne, a Full Bench of the Australian Industrial Relations Commission in Australian Meat Holdings Pty Ltd v McLauchlan (AMH)[5] held:
“The above extract is authority for the proposition that a termination of employment may be:
· unjust, because the employee was not guilty of the misconduct on which the employer acted;
· unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before the employer; and/or
· harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct”.
I now turn to the criteria for considering harshness as provided in s.387 of the Act.
Section 387(a) – valid reason
The meaning of the phrase “valid reason” has been universally drawn from the judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd:[6]
“In broad terms, the right is limited to cases where the employer is able to satisfy the Court of a valid reason or valid reasons for terminating the employment connected with the employee’s capacity or performance or based on the operational requirements of the employer. …
In its context in s 170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that” the employer and employee are each treated fairly…”
In Rode v Burwood Mitsubishi,[7] a Full Bench of the Australian Industrial Relations
Commission held:
“… the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.”
In Qantas Airways Ltd v Cornwall (Cornwall)[8] the Full Court of the Federal Court of Australia said:
“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”
It is not in dispute and I find that CHO Direction No. 55 applied to the Applicant in his role as a Firefighter.
It is not in dispute that the Applicant was not vaccinated in accordance with the timeline stipulated in the Directions. The Applicant testified that he is still unvaccinated and that he was less incentivised to become vaccinated after losing his job, despite the claim by the UWU that it was the Applicant’s intention to become vaccinated.
On the basis that the Applicant was not vaccinated in accordance with CHO Direction No. 55 and did not take up the offer to get an approved vaccination by 10 December 2021, I am satisfied and find that the Respondent had a valid reason to terminate the Applicant.
Section 387(b) – Notified of the reason
It is not in dispute that the Applicant was notified of the reasons for his termination.
Section 387(c) – Opportunity to respond
The Applicant was given a number of opportunities to respond to the reasons for his termination.
Section 387(d) – Refusal of a support person
The Respondent did not arrange a meeting with the Applicant, nor invite an opportunity for a meeting. As there were no physical meetings ahead of the Applicant’s termination, this issue is not relevant.
Section 387(e) – Unsatisfactory performance
There were no issues of unsatisfactory performance raised by the parties. This issue is not relevant.
Section 387 (f) and (g) – Size of Enterprise and HR Staff – procedures followed
The Respondent did not seek to make any submissions on these matters. It is noted that the Respondent is large employer.
Section 387(h) – Any other matters
The Applicant raised the legality of the CFO possibly directing an employee back to work off recreation leave in accordance with the provisions in the Fire and Emergency Act. The Commission does not have the required jurisdiction to determine this issue. Such a determination would need to be made by the Supreme Court of the Northern Territory.
I accept the explanation provided by CFO Spain that he would only use his powers under the Fire and Emergency Act in extreme cases of an emergency. Whilst I do not condone any employer or employee breaching a registered Enterprise Agreement, I accept the explanation from CFO Spain that the Alice Springs incident, where a fire station was one firefighter below the minimum manning level for one shift, did not justify the use of these powers. However, if 25-30% of Darwin based firefighters all caught COVID-19 at the same time, an alternate decision may have needed to be made.
I do not accept the argument from the Applicant that he only had to be vaccinated in accordance with CHO Direction No. 55 by the end of his recreation leave, ie 31 January 2022. An outbreak of COVID-19 in a single fire station could have a significantly detrimental effect on the manning capabilities of that station over the next 7-8 days. It is not in dispute that firefighters work extremely closely with their colleagues in a very tight workplace environment.
In Rowe v Commissioner For Public Employment (Northern Territory),[9] Hatcher VP made the following pertinent comments:
“[80] In respect of the first matter, I consider it was unfair in a general sense to impose a vaccination requirement upon Mr Rowe in circumstances where his pre-approved leave would not have required him, in all probability, to attend the workplace. It is true that Mr Rowe retained his overall responsibility to attend for work in some fashion if required to do so in response to an emergency or disaster, but the prospect of this occurring in a limited six-week period, in circumstances where it had never occurred before in a period of over seven years, was vanishingly small. A more realistic and flexible approach was called for. It would not have involved any contravention of the CHO Orders for the PWC not to require Mr Rowe to be vaccinated prior to him returning for work after the end of his leave period. Questions and answers 9, 13 and 16 of the FAQ document specifically contemplated that a person could proceed to go on approved leave even if not vaccinated, in which case they would not be required to show proof of vaccination until immediately before returning to work at the end of the leave period. The FAQ document was intended to guide managers in their implementation of the CHO directions, but it was in my view not followed in a practical fashion by Ms Pollard. The requirement to vaccinate in advance caused Mr Rowe to cancel his pre-approved annual leave.
[82] These matters are of potential relevance to the fairness or otherwise of the dismissal because Mr Rowe submits that he had not made a positive decision to refuse to be vaccinated, that he had legitimate concerns about risks associated with taking the mRNA vaccines that had been approved at the relevant time, and that he wished to reflect upon his position and work through his concerns away from the pressures of work and, perhaps, to wait for the approval and availability of the Novavax vaccine.
[83] If I were satisfied that there was a serious possibility that Mr Rowe may have reconsidered his position and ultimately agreed to be vaccinated if he had been allowed to take his pre-approved leave without being required to be vaccinated beforehand, I would be inclined to the view that his dismissal effective from 6 December 2021 was premature and harsh. I would similarly be inclined to this view if I considered that there was a serious possibility that Mr Rowe might have taken the Novavax vaccine (which was approved and available by mid-February 2022, as earlier stated) had PWC had stayed its hand whilst Mr Rowe was on suspension without pay. Matters that would support a conclusion of that nature include that the CHO Directions were introduced at relatively short notice, and that it is understandable that some persons may be hesitant to take the vaccine in the face of the significant amount of disinformation about vaccination being peddled in social media and elsewhere in the public sphere.
[84] However, ultimately, I do not consider that there was ever a real possibility that Mr Rowe would agree to vaccination, and I do not accept his evidence to the contrary…”
These comments from the Vice President are equally relevant in this matter. I am satisfied and find that the Applicant was highly unlikely to ever agree to be vaccinated. The CFO gave the Applicant a number of opportunities to get vaccinated. The CFO extended to the Applicant one final opportunity to book and organise a vaccination in December. The Applicant did not take up the opportunity.
Whilst I can see some merit in the Applicant’s claim that had he been allowed to continue his recreation leave that he would have accrued additional leave, the simple fact is that the Respondent may have needed to recall the Applicant at any time from 13 November 2021. The fact that the Applicant was unvaccinated meant that his skills and competencies were of no use to the Respondent whilst CHO Direction No. 55 remained in force.
I do not accept the argument from the Applicant that the Respondent “gained no nett gain from his termination”. I acknowledge that it takes a significant amount of time to train a firefighter and that the Respondent has unilaterally downsized its crew of firefighters for a period of time. However, the Respondent has now taken steps to recruit more firefighters, which is a positive step.
Conclusion
I have previously found that the Respondent had a valid reason to terminate the Applicant.
Based on the reasons above, I find that there are no issues pertaining to section 387(b)-(h) of the Act which would render the Respondent’s valid reason to terminate the Applicant as harsh, unjust or unreasonable.
The Applicant received his statutory entitlement to a fair go.
The Application is dismissed.
I so Order.
COMMISSIONER
[1] Rode v Burwood Mitsubishi, Print R4471 at [19].
[2] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
[3] The Applicant relied here on a decision of a Full Bench of the Australian Industrial Relations Commission in Advanced Australian Workplace Solutions Pty Ltd Dec 1257/99 M Print S0253 at [49].
[4] (1995) 185 CLR 410.
[5] (1998) 84 IR 1.
[6] (1995) 62 IR 371.
[7] PR4471.
[8] (1998) 84 FCR 483.
[9] [2022] FWC 1405.
Printed by authority of the Commonwealth Government Printer
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