Melanie McConnon v Police and Nurses Limited
[2022] FWC 2408
•15 SEPTEMBER 2022
| [2022] FWC 2408 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Melanie McConnon
v
Police and Nurses Limited
(U2022/3117)
| COMMISSIONER WILLIAMS | PERTH, 15 SEPTEMBER 2022 |
Application for an unfair dismissal remedy
This decision concerns an application made by Ms Melanie McConnon (the applicant)
under s.394 of the Fair Work Act 2009 (Cth). The respondent is Police and Nurses Limited t/a P&N Bank (the respondent).
Evidence was given at the hearing by the applicant and, for the respondent, evidence was given by Ms Brittany Nguyen, the respondent’s Senior Manager Human Resources and the respondent’s Manager Business Partnering, Mr Oliver Hughes.
Evidence and factual findings
The evidence of the witnesses is that the applicant was first employed by the respondent in July 2000. Immediately before her dismissal in February 2022, she was employed as a Finance Business Partner Support Officer.
The respondent is a bank.
In October 2021, the Western Australian Government announced that a policy of mandatory Covid-19 vaccination would be put into effect in December 2021. The policy indicated financial service facilities such as the respondent would not be able to allow workers to attend for work after 1 January 2022 unless they had been vaccinated.
Staff, including the applicant, were made aware of the government’s policy.
In November 2022, the respondent advised employees that, consistent with the policy, all staff and contractors working in WA branches, including the Perth corporate head office, were required to be at least partially vaccinated by 1 January 2022.
Subsequently, the Critical Businesses Worker (Restrictions on Access) Directions (the Directions) were issued by the Western Australian Government on 6 December 2021.
I am satisfied that the Directions applied to the respondent.
The Directions required that critical business workers attending the respondent’s workplace had to either be vaccinated for Covid-19 or have a valid medical exemption or a temporary exemption, as defined in the Directions.
The vaccination requirement at the time involved being partially vaccinated (i.e. having received one dose) by 1 January 2022 and being fully vaccinated (i.e. having received two doses) by 1 February 2022.
Information was provided to staff including frequently asked questions which also dealt with the process for obtaining medical exemptions.
The evidence is the applicant viewed these various communications on a number of occasions.
The evidence is not contested that the applicant engaged in multiple conversations with Mr Hughes saying that she was not going to be vaccinated.
From 10 December 2021, she commenced a period of personal leave.
On 8 February 2022, the applicant emailed Ms Nguyen attaching a letter from her doctor. The doctor stated that the applicant is very stressed and he has put her off work for up to 2 months. He states she is able to go back to work at any time if she fulfils the company’s obligations in terms of vaccination.
The applicant’s email details her concerns for her health and her unwillingness to be vaccinated for Covid-19.
She states she is seeking to continue her employment on a working from home basis. She says not coming into the office will keep her in isolation at home. She asked the respondent to advise how it wishes to proceed in regard to her employment.
The respondent advised the applicant that it would consider her request to work exclusively from home and that during this time she would not be required to work but would be paid as usual.
The evidence is the respondent also considered the applicant being allowed to take an extended period of leave. At this point in time, it was unknown how long the Directions would be in place for.
The respondent considered that allowing her to commence an extended period of leave on short notice was unreasonable for the business to facilitate given the important nature of her role. The respondent also considered leave as an option which other employees had requested, notably the applicant had not and never did submit any request for an extended period of leave nor did she discuss it with her manager.[1]
The evidence is that whilst employees do at times work from home, the expectation is always that employees are able to, and will be required to, attend the office, even if infrequently. Consistent with this, the working from home arrangement that the applicant entered into in December 2020 required her to attend the office two days per week.
The respondent’s Flexible Work Arrangements Policy, which is available for employees to view on the respondent’s intranet, states that employees do not work remotely full-time and would attend the respondent’s premises to ensure ongoing face-to-face collaboration and engagement with the business.
The respondent gave other instances of the necessity to, on occasion, attend the respondent’s premises where employees are working from home and there are IT updates required or IT infrastructure problems. Such an issue occurred on 31 May 2022 when the respondent’s VPN server suffered an outage and employees working from home had to attend a respondent site to resolve this.
The respondent gave evidence regarding the applicant’s place of work at its head office. In short, the respondent occupies the fourth, fifth and sixth levels of the CBD building. There are currently 300 employees at the corporate head office as their base location.
Level 6 houses what is known as the Branch Hub. Members of the public, customers, do attend in person at the Branch Hub to complete simple banking transactions.
In addition, on level 6 is the board room, confidential meeting rooms, training rooms and the mailroom. The entrances to these facilities are at most 5 m from the Branch Hub location on level 6.
Whilst the applicant may have been able to work on level four and five, there are situations where the applicant would be required to attend at level 6, including for in person meetings, to collect mail, to enter and exit from the building during periods of maintenance on the lift or to attend training.
In addition, there are no restrictions on where a member of the public such as a customer would go to attend a meeting with a staff member. Consequently, this could be on level four or five if the level six meeting rooms were occupied.
Considering these circumstances, the respondent’s view was that the Directions applied to their head office at which the applicant usually worked and, separately, that the applicant fell within the meaning of critical business worker in the Directions. On the evidence before the Commission, I find the Directions did apply to the respondent’s head office and the applicant was a critical business worker.
Following these considerations, the respondent’s view was that the applicant was not able to exclusively work from home and that if she remained unvaccinated, she would be unable to attend for work at head office.
On 17 February 2022, Ms Nguyen with Mr McDonald of the respondent met with the applicant and Mr Munyard, her support person, by video.
The respondent explained its view of the applicant’s request to work from home full-time and its view of the requirements in the Directions.
She was told that it was not for the respondent to address any concerns she had about Covid-19 vaccinations either in terms of their legality, their efficacy or their risk.
The applicant was advised that because the respondent had not received evidence of her being vaccinated and that she had previously advised she would not be receiving a Covid-19 vaccination, it was the respondent’s intention to terminate her employment because of the inability of her to meet the inherent requirements of her role, namely being able to attend the head office in person, unless she could show cause as to why this action should not be taken.
The applicant was advised that she was required to provide an adequate reason why she should not be terminated, such as proof of a medical exemption or of her vaccination, by 5:00 PM on 20 February 2022.
A show cause letter confirming this was provided to the applicant by email dated 17 February 2022 and is titled “Notice of Intent to Terminate Employment”.
The evidence is that the applicant up to and including 20 February 2022 did not provide evidence of her Covid-19 vaccination or of an approved medical exemption, nor did she otherwise respond to the respondent’s show cause letter.
Consequently, on 21 February 2022 by email, the respondent in a letter notified the applicant that she had been dismissed with immediate effect.
The legislation
Section 387 of the Act, set out below, prescribes criteria the Commission must take into
account when considering whether a dismissal was harsh, unjust or unreasonable:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
Consideration
Valid reason
Whilst the applicant could have partly worked from home, the evidence I accept is that she was required to attend the respondent’s head office at times, consistent with the respondent’s working from home policy, and in any event would have been required to attend the office for practical reasons from time to time. That policy requirement was entirely reasonable. It was not possible for the applicant to exclusively work from home.
Being capable of attending the workplace in person was an inherent requirement of the applicant’s employment.
The Directions required workers attending the respondent’s workplace to either be vaccinated for Covid-19 or have a valid exemption.
The applicant did not provide at any time evidence to the respondent that she had been vaccinated for Covid-19 and did not prove she had a valid exemption.
Consequently, the applicant was not able to lawfully attend the respondent’s workplace in person and was incapable of fulfilling this inherent requirement of her employment. This was a valid reason for her dismissal to do with her capacity.
Notification of the reason
The applicant was notified of the reason the respondent was considering dismissing her employment during the meeting on 17 February 2022 and in the show cause letter provided to her of the same date.
Opportunity to respond
The applicant had a proper opportunity to respond to the reason for which the respondent
was considering dismissing her up until 20 February 2022, however, she did not respond.
Refusal to have a support person present
There was no unreasonable refusal by the respondent to allow the applicant to have a support person present to assist in any discussions relating to her dismissal. Indeed, Mr Munyard attended as the applicant’s support person during the video meeting on 17 February 2022.
Unsatisfactory performance warnings
The dismissal was not due to unsatisfactory performance. The respondent had no complaint with the applicant’s performance.
The size of the employer’s enterprise and whether dedicated human resource management specialists were absent
The employer’s enterprise is large and it does have dedicated human resource management specialists. Consequently, appropriate procedures were followed in effecting the dismissal.
Other relevant matters
The applicant had been employed for approximately 22 years at the time of her dismissal.
The suggestion the applicant made in her questioning and oral submissions at hearing that the respondent should have allowed her to remain employed until her various forms of leave were exhausted ignores the fact that, at the time this decision was made, there was no certainty that vaccine mandates would be lifted by the Western Australian Government, let alone any knowledge when that would be.
Notably, the applicant herself had in any event never applied for an extended period of leave.
The respondent has no obligation to keep employees employed indefinitely for their convenience when they are unable to work.
The respondent had continued to pay the applicant for a period when she was not present at work and not doing work for the respondent during which she contemplated her position. This was a generous approach adopted by the respondent.
Conclusion
The applicant made a choice not to be vaccinated in the knowledge that this would lead to her employment being terminated. Consequently, but regrettably, she was terminated after 22 years’ service.
Whilst the applicant is unsurprisingly upset by this, it was, however, the Western Australian Government that chose to impose the Directions on employers and employees. The respondent was obliged legally to comply with the Directions.
Considering all of the matters in this case, there is no basis for the Commission to find that the dismissal of the applicant was harsh, unjust or unreasonable.
The applicant was not unfairly dismissed.
This application will be dismissed and an order to that effect will now be issued.
[1] Statement of Ms Nguyen, 3.8.
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