Miss Natalie Louise Cozzi v - [2022] FWC 2260

[2022] FWC 2260

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Miss Natalie Louise Cozzi
v

Woolworths Group Limited T/A Woolworths
(U2022/4453)

COMMISSIONER RIORDAN

SYDNEY, 13 october 2022

Application for an unfair dismissal remedy

On 15 April 2022, Ms Natalie Cozzi (the Applicant) filed an 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 Woolworths Group Limited (the Respondent) on 27 March 2022 on the basis that she was not able to perform the inherent requirements of her job.

The Applicant was employed by Woolworths Group from 14 May 2020 until her dismissal. She was employed at the Respondent's Alice Springs supermarket.

The Applicant seeks 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 14 October 2021, Mr Karl Weber, State General Manager – SA/NT/WA, sent a message to all staff as follows:

“Mandatory COVID Vaccinations announced for NT
14/10/21
Hi team,
Thank you for your efforts and continued commitment to support each other and look after our customers.
The Northern Territory Government yesterday announced mandatory COVID vaccinations for all customer facing roles, which includes supermarkets. We are waiting for further information on the government, please find below the information we know so far:
Mandatory Vaccinations
All supermarket team members in the Northern Territory will be required to have received at least one COVID vaccination dose by 12 November 2021 and a second dose by 24 December 2021.
Once we have more details, we will provide…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 2260
Decision Date: 13 october 2022

CaseChat Overview and Summary

The matter was an application for an unfair dismissal remedy by Miss Natalie Louise Cozzi (the Applicant) against Woolworths Group Limited (the Respondent). The Applicant alleged that she was dismissed by the Respondent on 27 March 2022 on the basis that she was not able to perform the inherent requirements of her job. The Applicant sought compensation. The relevant legal issues were whether the dismissal was harsh, unjust or unreasonable; whether the dismissal was for a valid reason; whether the Applicant was notified of the reason for dismissal; whether the Applicant was given an opportunity to respond to the reason for dismissal; and whether any other relevant factors existed which would suggest that the dismissal was harsh, unjust or unreasonable. The Commissioner found that the dismissal was not harsh, unjust or unreasonable. The Respondent had a valid reason to terminate the Applicant. The Applicant was notified of the reason for dismissal and was given an opportunity to respond to the reason for dismissal. The Commissioner found that the Applicant’s termination was not harsh, unjust or unreasonable. The Respondent gave the Applicant ample opportunity to comply with CHO Direction No. 55. The Applicant received her statutory entitlement to a “fair go”. The Applicant’s unfair dismissal application was dismissed.

Orders