Miss Natalie Louise Cozzi v
[2022] FWC 2260
•13 october 2022
| [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 further updates that will help you answer questions that you may receive and instructions to ensure we are compliant with the health order.
Vaccination Appointments
To assist our team members in getting vaccinated, direct them to the NT Government website
( to book an appointment for a vaccination as soon as possible.Remind your team about our paid vaccination leave policy allowing permanent EA or salaried team 2 x 4 hours paid leave to attend a vaccination appointment if they are unable to find an appointment outside of their rostered shifts. A salaried team member can now use the vaccine leave if they can only get an appointment during their rostered shifts. This can not exceed their normal working hours. The Woolworths COVID vaccination leave policy can be found here.
If a team member has any questions or concerns about he (sic) COVID vaccine, they are able to chat with our Chief Medical Officer, Dr Rob McCartney or one of his specially trained team. This service is free and available 24 hours, 7 days a week. Simply call [redacted].
Sonder is also available
If you or your team have any questions regarding COVID vaccinations, please remember that help is available through Sonder. We recommend downloading Sonder to ensure you are across all of the key updates from the Government and Safety & Wellbeing Team. To download the app, scan this QR code. For immediate assistance, you can call Sonder directly on [redacted].Actions for you:
● Share this information with your store leaders regarding the new Government Requirements.
● Capture any questions/feedback so we will be able to provide further detail as it is announced.Thank you for your continued efforts during this time.
Karl Weber
State General Manager - SA/NT/WA”
(My emphasis)
On 25 October 2021, Mr Weber sent a message to all staff regarding ‘Capturing Team Vaccination Status’. Relevantly, this message provided that:
“● Team members who have had at least one dose of a COVID vaccine before Saturday 13th of November, can continue to attend work as normal.
● Team members will have until Saturday the 13th of November to receive at least their first dose of a COVID vaccine, and must have both doses of a COVID vaccine by Friday the 24th of December.
● Team members who are able to provide a medical certificate from their GP or Government approved contraindication certificate confirming they are unable to have the COVID-19 vaccine due to a medical contraindication or acute medical illness will be exempt from the vaccination requirements under the Public Health Directions.
● Under the Public Health Directions, Woolworths is obliged not to permit an unvaccinated team member to work (unless a relevant exception applies or the team member has an above
appointment). The Public Health Directions also require Woolworths to collect, record and hold vaccination information.”(Original emphasis)
Further general announcements followed to all employees, regarding the vaccination mandate in the Northern Territory.
On 21 November 2021, the Applicant wrote to Mr Ron Dela Cruz, the Alice Springs Store Manager, with a list of questions regarding the COVID-19 vaccine:
“To Mr. R. Dela Cruz, (Woolworths Alice Springs Store Manager)
I write with regard to legal advice I have received regarding the matter of potential covid vaccine side effects, and my desire to be fully informed and appraised of ALL facts before going ahead. I’d be most grateful if you could please provide the following information, in accordance with statutory legal requirements:
1. Can you please advise the approved legal status of any vaccine and if it is experimental?
2. Can you please provide details and assurances that the vaccine has been fully, independently and rigorously tested against control groups and the subsequent outcomes of those tests?
3. Can you please advise the entire list of contents of the vaccine I am to receive and if any are toxic to the body?
4. Can you please fully advise of all the adverse reactions associated with this vaccine since it’s introduction?
5. Can you please confirm that the vaccine you are advocating is NOT experimental mRNA gene altering therapy?
6. Can you please confirm that I will not be under any duress from Woolworths, as my employers, in compliance with the Nuremberg Code?
7. Can you please advise me of the likely risk of fatality, should I be unfortunate to contract Covid 19 and the likelihood of recovery?
8. Can you please advise me if I were to experience any adverse reactions is the manufacturer of the vaccine liable? If the manufacturer isn’t liable, will Woolworths be responsible & liable as it is their request that I have the vaccine in order to carry on my employment?
Once I have received the above information in full and I am satisfied that there is NO threat to my health, I will be happy to accept your offer to receive the treatment, but with certain conditions – namely that:
1. You confirm in writing that I will suffer no harm.
2. Following acceptance of this, the offer must be signed by a fully qualified doctor who will take full legal and financial responsibility for any injuries occurring to myself, and/or from any interactions by authorized personnel regarding these procedures.
3. In the event that I should have to decline the offer of vaccination, please confirm that it will not compromise my position and that I will not suffer prejudice and discrimination as a result?
I would also advise that my inalienable rights are reserved.
Kind Regards,
Natalie Cozzi”
Mr Dela Cruz responded on the same date, advising that he would contact the People and Culture Partner, Ms Jessica Wybrew, to ensure a response was provided.
Ms Wybrew wrote to the Applicant on 23 November 2021 as follows:
“Hi Natalie,
Thanks again for your time.
I received the below advice from our national people services team. There are links available below if you would like further information on any of this.
Regards,
Jessica Wybrew
Dear Natalie,
Thank you for raising your query regarding Woolworths’ Vaccination policy. We appreciate the comments you have raised and understand the situation surrounding COVID-19 presents a number of challenges to our team members and customers.
Woolworths respects that vaccination is a personal choice. Whilst our vaccination requirement will restrict a team member’s ability to work for Woolworths if they are unvaccinated (and do not have an exemption under the policy), we will not be requiring any person to undergo a vaccination procedure. We encourage all of our team to make their own decision about whether to be vaccinated, based on their personal views and circumstances and, in consultation with their doctor.
Woolworths is confident it has a solid legal basis for this policy, and that the vaccination requirement is lawful and reasonable. Our vaccination policy does not require our team members to do anything illegal. This takes into account our duty of care, the nature of Woolworths’ workplaces, the extent of community transmission, the effectiveness of the vaccines and the provision for appropriate exemptions. The medical science is clear that a vaccinated team member reduces their risk of symptomatic COVID infection or hospitalisation/mortality by more than 90%. Vaccination also significantly reduces the risk of transmission. As our internal policies are not legislative in nature, there is no conflict with the Constitution.
The vaccination requirement will be set out in a policy. This policy will not form a part of your employment contract, however will impose requirements on you with which you are required to comply. You can find the Woolworths Vaccination Policy via this link: [redacted].
If you would like additional information on the safety of COVID-19 vaccination and/or the medical science that has informed our decision, Dr. McCartney or a member of his specially trained team will be able to provide you with more information about the vaccine options and relevant vaccination safety data. We understand from Dr McCartney that, whilst all vaccines have a risk of some adverse events, those events are rare and the benefits dramatically outweigh the risks. COVID-19 has presented as one of the greatest health risks of our time, and it is important that our Team Members stay up to date with correct information. Should you wish to find out more information on vaccines, the rollout approach throughout Australia, and how the vaccines are tested and approved, by visiting the Australian Department of Health website you would like to chat with Dr Rob McCartney or one of his specially trained team you can schedule an appointment 7 days a week via this form.
We are unable to provide you with medical advice about the side effects of vaccination. We are also unable to provide you with personal legal advice on the issue of liability for vaccine side effects or on the issue of workers compensation liability.
We trust that the above responses provide some further clarity. Thank you for raising your questions with us.
If you or your team members need any support, please contact Sonder on [redacted] free, confidential and independent counselling services.
…
Thank you for your query.
If you have any further questions, please don't hesitate to contact us.
Thank you,
Benjamin
People Services”
The Applicant responded on 24 November 2021, to the effect that she was dissatisfied with the Respondent’s response to her list of questions:
“Hi Ms. Wybrew,
Please note that I have found your response to my original email unsatisfactory and has not answered the questions I have submitted to you.
Please be advised that I have no intention of resigning or abandoning my full time position with Woolworths, and at this stage, I intend to be present for work after my annual leave expires on the 29th November 2021, unless otherwise instructed by Woolworths.
Please advise me as to your intentions regarding this matter.
Regards,
Natalie Cozzi”
Ms Wybrew responded to the Applicant on 24 November 2021, directing the Applicant to the Respondent’s Vaccination FAQs document, specifically highlighting the following:
“1. Isn’t it my right to choose if I get vaccinated?
a. We have not taken this decision lightly. It involves a careful balance of providing a safe environment for all of our team members and customers and each team member’s right to choose to get vaccinated.
b. Based on advice from our Chief Medical Officer Dr. Rob McCartney, we believe that this requirement is essential to providing a safe working environment for our team members and customers. In particular, this is because vaccination is about more than protecting the individual. It’s proven to significantly reduce the risk of transmission to others.
c. You can choose not to get vaccinated. However, unless you have an approved exemption, that will likely mean that you cannot continue working with Woolworths.2. Where do I go for more information?
We understand that team members may have questions that are not answered here or are very specific to their circumstances. Please click here to see the support options available to provide you with more information – including contacting our support teams such as Sonder for Wellbeing Support and medical information supported by our Chief Medical Officer Dr. Rob McCartney3. What about the government public health orders?
We all must comply with the law. Where public health orders require vaccination before the policy requirement starts (for example, currently in Victoria), Woolworths expects that team members will meet the legal requirements of those orders (from the earlier date) in order to attend for work. If public health orders are still in place when the policy requirement starts, the policy requirement is in addition to the public health orders (for example if the scope of the health orders and the policy is different).”
On 16 February 2022, the Respondent’s ‘COVID Support Team’ issued the following letter to the Applicant:
“Re: Reminder to upload your vaccination status
Dear Natalie
By now you will know that recent Public Health Orders (PHO) made by the NT Government requires team members in some roles to be vaccinated before they can attend the workplace. You are currently unable to attend work because you do not meet the requirements of the PHO in your State/Territory.
You can read more information on the PHOs here.
We are writing to you because we don’t yet have confirmation that you are fully vaccinated in accordance with the applicable PHO in your state/territory, or that you have a valid medical exemption permitted under the PHOs in your state. You are required under the PHOs to have had at least two doses of a COVID-19 vaccine. In some cases, you may also be required to have had a booster dose (or third dose).
You may have been vaccinated and not yet provided us with confirmation. Alternatively, you may have uploaded your Digital Pass/Certificate to SuccessFactors recently and it is pending verification.
If you:
● have already uploaded your Digital Pass/Certificate to Success Factors, we ask that you please log into Success Factors to confirm that you have fully completed the process or provide any further information required, or
● are vaccinated (or have a medical contraindication) but have not yet provided us with confirmation, we need you to provide this information so we know whether you can return to work.Simple steps to provide your vaccination evidence
There are two easy ways you can provide evidence of your vaccination status:
1. The quickest way is to upload your Digital Pass/Certificate into SuccessFactors. You can do this from your smartphone or computer, and it takes less than five minutes. You can click here for a guide that sets out the exact steps to do this. Make sure you upload the correct Digital Pass/Certificate.
2. If you are unable to upload your Digital Pass/Certificate (or you do not want to) you can also show your Digital Pass/Certificate to your direct manager/line leader and they can update SuccessFactors to confirm it has been seen.You might also have a medical contraindication certificate from your doctor. We also need to see that. You can find a step by step guide here. We ask that you now make this a priority.
The Novavax Vaccine Option
You may know that Novavax has recently been approved as a COVID-19 vaccination in Australia and we understand it is likely to become available in mid to late February. We are aware that some team members have been waiting for Novavax as their preferred vaccine. If you intend to be vaccinated with Novavax, please complete this declaration survey as soon as possible.
Support is available if you need it
The COVID pandemic has been tough on all of us, and your wellbeing is our first priority. We have support available for you, both on the issue of vaccination and in terms of your wellbeing generally:
● The Sonder app provides free and confidential 24/7 wellbeing support and access to healthcare practitioners and specialists, as well as additional resources and tools to support you. You can download the app for free, or for immediate assistance, you can call Sonder directly on [redacted].
● Woolworths’ Chief Medical Officer Dr Rob Mc Cartney has a medical team who can assist you with information regarding COVID-19 and the vaccination itself, which you seek via this link or, for an urgent appointment, you can call [redacted].
Similarly, if you have any further questions or concerns, please do not hesitate to contact your leaders, your People Partner or the People Services by submitting a query using the following link [redacted], and selecting “Covid Vaccination Support” as the category.
We appreciate you taking the time to review the information we’ve provided here and hope you’ve found it helpful.
Thank you,
COVID Support Team”
A further reminder letter was sent to the Applicant on 21 February 2022 as follows:
“Reminder to comply with COVID-19 Vaccination Policy
Dear Natalie
As you will be aware, public health orders (PHOs) are in place in NT that require team members in certain roles to be vaccinated to attend the workplace. The PHOs are Government requirements and both you and Woolworths must comply with them.
You can read more about the requirements of PHOs in our COVID-19 Public Health Order Guidelines (Guidelines) on the People Portal.
Vaccination
Our records show that you have not provided evidence that you are fully vaccinated in accordance with the applicable PHO in your state/territory, and do not have a medical exemption from being vaccinated. Because of this, you have not been able to attend work for some time now.
If you are fully vaccinated, we request that you upload confirmation of your vaccination status as soon as possible.
You can confirm your vaccination status via SuccessFactors by uploading your COVID-19 Digital Pass/Certificate. You will find a step by step guide to upload your Digital Pass/Certificate in our Policy FAQ document here, or you can contact People Services for support via this link.
If you have a medical contraindication to vaccination, you should obtain a medical contraindication certificate in the approved format as soon as possible following guidance from your line leader.
If you are not fully vaccinated (and not medically exempt), we encourage you to make an appointment to be vaccinated as soon as possible and confirm your vaccination status in SuccessFactors.
The Novavax vaccine
Novavax has recently been approved as a COVID-19 vaccination in Australia and will be available in Australia in mid to late February 2022.
We are aware from various surveys (including the most recent survey), listening sessions and other forums that some Woolworths team members have been waiting for Novavax as their preferred vaccine.
We are open to Woolworths team members having this choice. If you intend to be vaccinated with Novavax, please complete this declaration survey as soon as possible. If you choose to be vaccinated with Novavax, you will not be able to attend work until you have been fully vaccinated.
What happens if I do nothing?
It is an inherent requirement of your role that you be able to lawfully perform your work duties onsite. You are not able to do this at the moment because you have not provided us with evidence of your vaccination status as required by the PHOs. The PHOs have now been in operation for some time and we expect that they will continue to be in place into the foreseeable future.
Woolworths proposes to review the continuing employment of team members who cannot perform their role because they do not meet the requirements of applicable PHOs.
If you continue to be unable to perform work, Woolworths intends to write to you at the end of February, to ask you to show cause as to why your employment with Woolworths should continue. A possible outcome of this process is the termination of your employment.
Next steps
If you have been vaccinated or intend to be vaccinated against COVID-19, or have a valid medical contraindication certificate, we encourage you to provide this information to us as soon as possible.
If our records continue to indicate at the end of February 2022 that you are not vaccinated, do not hold a valid exemption under the PHO, and do not intend to be vaccinated with Novavax, Woolworths will commence a review of your employment. Woolworths will write to you again on commencing this review, and you will be given an opportunity to provide an update on your vaccination status and provide any further information you would like Woolworths to consider.
Support available
We appreciate that this is a difficult situation and it may be unsettling or confronting. We have support available for you, both on the issue of vaccination and in terms of your wellbeing generally:
● The Sonder app provides free and confidential 24/7 wellbeing support and access to healthcare practitioners and specialists, as well as additional resources and tools to support you. You can download the app for free, or for immediate assistance, you can call Sonder directly on [redacted].
● Woolworths’ Chief Medical Officer Dr Rob Mc Cartney has a medical team who can assist you with information regarding COVID-19 and the vaccination itself, which you seek via this link or, for an urgent appointment, you can call [redacted].
Similarly, if you have any further questions or concerns, please do not hesitate to contact your leaders, your People Partner or the People Services by submitting a query using the following link [redacted], and selecting “Covid Vaccination Support” as the category.
Kind regards,
Samantha Johnson
Head of Employee Relations
Woolworths Group”
(Original emphasis)
The Applicant wrote to Ms Johnson on 22 February 2022, stating:
“Dear Samantha Johnson,
I still remain willing to attend work if and when required, but my medical records will remain strictly confidential.
Please be aware in regards to your letter, that there are provisions in law to protect employees from coercion and threats of unfair dismissal.
Yours Sincerely,
Natalie Cozzi”
Ms Wybrew wrote to the Applicant on 24 February asking whether the Applicant would be available for a catch up via phone. Ms Wybrew invited the Applicant to advise when she would be available for this call.
The Respondent sent the Applicant a Show Cause letter on 28 February 2022:
“Dear Natalie,
We are writing to you in relation to your employment with the Woolworths Group.
Background
You have been unable to work at Woolworths as a result of the Public Health Orders (PHOs) implemented by the State Government. Based on the information currently available to us, you do not meet the requirements of the PHOs that require you to:
● be fully vaccinated in accordance with the PHOs or have a medical exemption from the PHOs; and
● provide evidence of this to us.
It is important you understand that, although Woolworths has announced a COVID-19 Vaccination Policy (Policy), the Policy is separate from, operates in addition to and does not replace any vaccination requirements set out in the PHOs implemented by the State Government.
Review of Employment
On 21 February 2022, we wrote to you to:
● inform you that you had not yet confirmed your vaccination status with us;
● ask you to confirm your vaccination status, indicate if you intend to be vaccinated, or if you have a medical exemption from being vaccinated; and
● tell you that if you continued to be unable to work, we intended to ask you to respond as to why your employment with us should not be terminated.
We have not received any confirmation from you about your vaccination status.
Therefore, it is our initial view that:
● the inherent requirements of your role require you to attend your workplace to perform your duties;
● as you are not fully vaccinated (and have not provided a valid medical exemption), you cannot attend the workplace and you cannot perform the inherent requirements of your role; and
● as a result, your employment should be terminated.Before making a final decision about your ongoing employment, it is important that you provide us with any information you would like us to consider in our review of your employment, which may include:
● information about your current vaccination status or evidence that you have booked or intend to book your vaccination;
● information about your ability to meet the Public Health Order; and
● any other information you would like the us to consider, for example, any relevant personal circumstances.Please provide any information you would like us to consider by completing this form by 7 March 2022. Details on how to upload your vaccination status to SuccessFactors are available at the bottom of this letter. However, if you have any difficulties completing these actions, please contact People Advisory on [redacted] to support you through it.
If we do not receive a response from you by 7 March 2022 or if you do not provide sufficient information, we will make a decision about your ongoing employment based on the information
currently available to us.Next steps
Once we have had an opportunity to review your employment (including considering any information you provide), we will contact you to arrange a meeting to discuss the outcome. You are welcome to have a support person present during this meeting.
Support available
We appreciate that these are difficult circumstances and we would like to take the opportunity to remind you of the support that is available to you through Sonder. Sonder can provide on-demand, 24/7, free and confidential support on a range of issues including psychological, safety, health and wellbeing needs. You and your family can access Sonder on [redacted] or by downloading the Sonder app on your device, from the Google Play or App Store.
You may also wish to seek further advice from Dr Rob’s team regarding COVID-19 and the vaccination itself, which you can do via this link or, for an urgent appointment, you can call [redacted].
Thank you for your cooperation throughout this process.
Yours sincerely,
Samantha Johnson
Head of Employee Relations
Woolworths Group”
The Applicant provided a response to the Show Cause letter on 6 March 2022 as follows:
“To Whom It May Concern, I wish to reaffirm that as always, I still remain fit, able and willing to attend work if and when required, but please note that the situation with regard to the disclosure of my personal medical record has not changed. As I have stated on previous occasions, my medical record will remain strictly confidential and that it was never a part of my contractual/conditions of employment that details of said record or any part thereof be disclosed at any time to my employer, or that it was a requirement for the purpose of either gaining or maintaining ongoing employment with Woolworths. Please be aware with regard to your letter, that there are provisions in law to protect employees from discrimination, coercion and threats of unfair dismissal. Yours Faithfully, Natalie Cozzi”
(My emphasis)
The Respondent wrote to the Applicant on 11 March 2022, inviting the Applicant to a phone/video conference meeting to discuss the Respondent’s decision relating to the Show Cause process.
The Applicant wrote to Ms Wybrew on 11 March 2022 as follows:
“Dear Jessica,
I have been advised by my legal representative not to participate in a Google Meet interview for reasons of documented verification which may be required for further action. Please find attached, my Show Cause email that I sent on the 6th March 2022.
Yours Sincerely,
Natalie Cozzi”
The Applicant was dismissed by way of formal letter on 25 March 2022:
“Dear Natalie,
Termination of your employment
We are writing to you about the outcome of the review of your employment and because you cannot perform the inherent requirements of your role.
You have been unable to work at Woolworths as a result of the Public Health Orders (PHOs) implemented by the State Government because you are not fully vaccinated (and you do not have a medical exemption). It is an inherent requirement of your role that you be able to attend the workplace to perform your duties.
Show cause process
We wrote to you on 28 February 2022 because our records showed that you had not provided us with evidence that you were fully vaccinated against COVID-19 and you had not been granted a medical exemption.
In this letter, we told you that:
· The inherent requirements of your role involve you attending your workplace to perform your duties;
· If you cannot attend the workplace, you cannot perform the inherent requirements of your role; and
· As a result, your employment should be terminated on that basis.
We invited you to provide us with any further information you would like considered as a part of our decision making process by 7 March 2022.
Your response
On 6 March 2022 you provided us with further information to consider when making a decision about your ongoing employment. Your response included that your medical information will remain strictly confidential. Without this information we were unable to verify your vaccination status.
Outcome – termination of employment
In making a decision about your employment, we have considered the PHOs, the inherent requirements of your role and the responses you have provided.
It is an inherent requirement of your role that you perform your duties in the workplace, and, due to the operation of the PHOs, you are not able to do so (and have not been able to do so for some time). It is for this reason we have decided to terminate your employment.
Your employment will terminated effective 27 March 2022. You will be paid 2 weeks’ pay in lieu of notice, in line with your contract of employment.
On termination of your employment, you will receive all accrued entitlements (less applicable taxes) and monies owed to you. If you require a separation certificate or copies of payslips, please contact People Services on [redacted]. Please note, it may take up to 14 days after the date of your termination before these documents are available to you.
On termination of your employment, you will be required to return all Woolworths property and arrangements should be made with your line leader or people partner.
Outplacement
To support your transition to a new role, you will be provided with free outplacement support from Lee Hecht Harrison (LHH) or Career Steer. This support is not compulsory but we encourage you to take it up. Please complete this form within 30 days to opt in and provide consent for us to share your name, contact details and employee number with the provider so that you can start the program. Details about outplacement support can be found in the Team Member FAQ – Leaving Woolworths Guide.
Support Available
We appreciate that these are difficult circumstances and we would like to take the opportunity to remind you of the support that is available to you through Sonder. Sonder can provide on-demand, 24/7, free and confidential support on a range of issues including psychological, safety, health and wellbeing needs. You and your family can access Sonder on [redacted].
If you have any questions about this letter, please contact People Services by submitting a query using this ling, and selecting “Covid Vaccination Support” as the category.
We wish you well in your future endeavours.
Yours sincerely,
Karl Webber
General Manager – SA/NT/WA Supermarkets
Woolworths Group”
The matter was listed for Hearing by Microsoft Teams on 25 August 2022. The Applicant appeared and gave evidence on her own behalf. The Respondent was granted leave to be represented by Ms Kirsty Stewart of Counsel.
The Respondent relied on witness evidence of the following individuals:
· Ms Samantha Johnson, Head of Employee Relations.
· Ms Jessica Wybrew, Team Experience/People Partner.
· Mr Ron Dela Cruz, Store Manager in Alice Springs.
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.”
Applicant’s Submissions
Further to the directions for filing of materials issued by Chambers on 17 June 2022, the Applicant elected not to file a formal outline of submissions or witness statement. The Applicant stated that she did not have anything further to submit and sought only to rely on her Form F2 application. The Applicant’s Form F2 application relevantly provided as follows.
The Applicant submitted that her dismissal was unfair because it was never a requirement for her gaining employment, or provision of her contract, that she provide any details of her confidential medical records. The Applicant submitted that an employer cannot change an employee’s employment contract without first asking the employee or providing them with prior notice of the proposed change. The Applicant submitted that this is especially the case where an employer is trying to change ‘fundamental terms’ in an employee’s contract.
The Applicant submitted that she never received any notification of any proposed changes to her employment contract. The Applicant relied on her show cause response to the employer as extracted at paragraph [14] of this decision. The Applicant submitted that she had a right to maintain the confidentiality of her medical records and therefore her dismissal was unfair.
Remedy
The Applicant provided in her Form F2 application that she seeks a remedy of compensation for lost income, which she estimated to be 18,929.24 gross.
Further to an order to produce at the request of the Respondent, the Applicant provided further information regarding commencement at her new job and remuneration being earned as follows:
“Commencement Date: 26/04/22
Gross Remuneration: (weekly) $1110.74”
The Applicant elected not to answer any further questions regarding her new job or income earned, when put to her at the Hearing. While the Applicant made a comment at the Hearing that her hours and income are variable at her new job, she did not provide any further information on this issue.
Respondent’s Submissions
Valid reason
The Respondent submitted that the Applicant was dismissed for capacity reasons, in that she was unable to perform the inherent requirements of her role due to the COVID-19 vaccination requirements imposed by the Northern Territory Government.
The Respondent submitted that the Applicant was a ‘worker’ to whom CHO Direction No. 55 applied, because she was a worker who, during the course of her work, was likely to come into contact with a vulnerable person. The Respondent submitted that in accordance with CHO Direction No. 55, from 13 November 2021 the Applicant was not permitted to attend her workplace unless she had been vaccinated against COVID-19 or she had evidence of a contraindication to all approved COVID-19 vaccines. The Respondent submitted that it was obliged under the Directions to ensure that any qualifying worker did not attend the workplace unless they met these requirements. Further, the Respondent submitted that CHO Direction No. 55 required that it take reasonable steps to determine the extent to which any qualifying worker was vaccinated with an approved COVID-19 vaccine.
The Respondent submitted that the Applicant failed to provide her vaccination status or otherwise confirm a contraindication to the COVID-19 vaccines, despite requests for her to do so. The Respondent submitted that, consequently, the Applicant was unable to remain working at its Alice Springs Store. The Respondent submitted that the Applicant could not perform her duties from home, accordingly, she was unable to perform the inherent requirements of her job.
The Respondent noted that in her Form F2 application, the Applicant stated that she considers her dismissal was unfair because there was no provision in her employment contract which required her to disclose details of her medical records and that she was never notified by her employer of any changes to her contract. The Respondent submitted that those reasons ignore the fact that both the Respondent and the Applicant were subject to the requirements of CHO Direction No. 55, which had the force of law and operated independently of the Applicant’s contract.
Notice of reasons and opportunity to respond
The Respondent submitted that on 8 November 2021, the Applicant would have received a text message that was sent to all employees in the Northern Territory who had not advised the of their vaccination status. The text message referred to the Directions, explained they meant that an unvaccinated worker could not attend work, informed the employee that the Respondent was required to collect and hold vaccination information and asked the employee to provide information regarding their vaccination status.
The Respondent submitted that it also wrote to the Applicant on 16 February 2022, noting the Applicant had not provided any vaccination information.
A further letter was sent to the Applicant on 21 February 2022, in which the Applicant was put on notice that by not providing her vaccination status to the Respondent, she was unable to lawfully perform her work duties because she was unable to attend the store. The letter outlined that if the situation continued, the Respondent intended to write to the Applicant again at the end of February 2022 and would ask her to show cause as to why her employment with the Respondent should continue. The Respondent submitted that termination of employment was expressly stated as a possible outcome in this letter.
The Respondent submitted that the Applicant sent an email to Ms Samantha Johnson, Head of Employee Relations, on 22 February 2022 stating that she was “willing to attend work if and when required but my medical records will remain strictly confidential”. In response to the email, Ms Jessica Wybrew, Culture and People Partner, offered to meet with the Applicant to discuss the vaccination policy and check-in on her wellbeing. The Respondent submitted that Ms Wybrew received no response from the Applicant.
The Respondent issued a show cause letter to the Applicant on 28 February 2022. The Applicant provided a written response on 6 March 2022, in which the Applicant reiterated to the Respondent that her medical records would remain strictly confidential.
The Respondent submitted that the Applicant was given ample notice and opportunities to respond to the reason for dismissal and made her views known to the Respondent before any decision to dismiss was made.
Support person
The Respondent submitted that the issue of a support person did not arise in this case.
Unsatisfactory performance
The Respondent submitted that the issue of unsatisfactory performance did not arise in this case.
Size of the employer and human resource specialists
As to the size of the Respondent and any dedicated human resource management, the Respondent submitted that it is a large organisation and employs an employee relations team of about 65 employees across Australia. The Respondent submitted that it conducted itself in a manner expected of an organisation with these resources. The Respondent submitted that it provided the Applicant with procedural fairness that goes well beyond what is contemplated by the FW Act.
Any other matters
As to other relevant matters, the Respondent submitted that the Commission should have regard to the following.
The Respondent submitted that CHO Direction No. 55 came into effect on 13 October 2021, and as the Respondent was unable to satisfy itself of the Applicant’s vaccination or contraindication status, it placed the Applicant on paid leave from that date. The Respondent noted that the Applicant’s employment was not terminated until 27 March 2022, and during that period the Respondent:
(a)Allowed the Applicant several opportunities to provide the relevant information and clearly explained the reasons why it needed the information and the consequences for not doing so;
(b)Provided the Applicant with free wellbeing support which was also made available to the Applicant’s family; and
(c)Provided the Applicant with free access to an in-house medical team to assist with all COVID-19 related queries including those relating to vaccination.
The Respondent noted that on termination, the Applicant was paid 2 weeks in lieu of notice as well as being offered free outplacement support to assist the Applicant to obtain alternative employment. The Respondent also noted that the Applicant and her family were able to continue accessing free wellbeing support through the Respondent’s Sonder app.
For all of these reasons, the Respondent submitted that the Applicant’s dismissal was not harsh, unjust, or unreasonable and her application should be dismissed.
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.
It is not in dispute and I find that the Applicant is protected from unfair dismissal, submitted her 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)[1] 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)[2] 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:[3]
“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,[4] 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)[5] 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.”
At the hearing, in response to questions by me, the Applicant stated as follows:
“The Northern Territory Government issued a public health order, under a public health emergency. Are you saying that that public health order was not legal?”
“I’m saying I felt coerced, felt coerced, and I felt I was being blackmailed to pass over my personal information to maintain my job.”
“But do you accept though that the Northern Territory Government has the right to make laws for its citizens?”
“Well, yeah, they change them as well quite constantly by the looks of it”
“But do you accept that they do have that authority though?”
“I don’t think so anymore, but yes they did then.”
“Okay so if they changed the law to say well if you are a certain type of worker or you may come in contact with vulnerable people or worked for a, in an essential industry, essential service industry, they required people to be vaccinated”
“Yes, that’s fair enough. But you know, it’s the personal medical information. This is why we’re here. Because I’m not giving that to anyone. This is my personal medical information. I’m going to stick to this and this is the reason why I was terminated.”
“I’m just asking though, whether or not you accept that the Northern Territory Government had the capacity to make that decision?”
“Yes, and it seems to me that its overriding people’s privacy laws as well. People’s privacy information”
“Okay. Do you accept that Woolworths have an obligation to follow the law of the Northern Territory Government?”
“Yes”
…
“You accept that Woolworths followed the public health order by terminating you?”
“Well, yeah.”
“Alright. So if Woolworths followed the Northern Territory law, by following the public health order, how was it an unfair dismissal?”
“Because I felt coerced into giving my personal medical details. And it was not a part of my job. I didn’t sign a contract when I started my work there, saying that I have to do this. And it was not a part, you know, I didn’t have to do that to maintain my employment there, it just came out of the blue, didn’t it?”
“Well, it was a response to the worldwide pandemic wasn’t it?”
“Yeah, I’m not going to comment on that, to be honest with you”.[6]
The Applicant accepted that the Respondent had a legal obligation to follow CHO Direction No. 55. Further, the Applicant accepted that the Respondent was following CHO Direction No. 55 when it terminated her employment.
As a result of this evidence, I am satisfied and find that the Respondent had a valid reason to dismiss the Applicant.
Section 387(b) – Notified of the reason
It is clear on the evidence before the Commission, and the correspondence extracted at paragraphs [8]-[24] of this decision, that the Applicant was notified of the reasons for her dismissal.
Section 387(c) – Opportunity to respond
It is not in dispute that the Applicant was provided opportunities to respond to the reasons for her termination, and she did provide responses, including on 22 February 2022 and 6 March 2022.
Section 387(d) – Refusal of a support person
On the evidence, no meetings were held ahead of the Applicant’s termination due to the Applicant refusing to accept a meeting invitation from the Respondent. Accordingly, this factor is not relevant.
Section 387(e) – Unsatisfactory performance
The Applicant was not dismissed for unsatisfactory performance, so this factor is not relevant.
Section 387 (f) and (g) – Size of Enterprise and HR Staff – procedures followed
It is not in dispute that the Respondent is a large employer and had the benefit of dedicated human resource specialists.
Section 387(h) – Any other matters
I accept that the Applicant did not want to disclose her personal medical information to the Respondent. That is her inalienable right. However, the Northern Territory Government placed legally binding and enforceable restrictions on employers and employees in certain categories of the Northern Territory workforce via CHO Direction No. 55. A contraindication to all approved COVID-19 vaccines was the only exemption to CHO Direction No. 55. It is not in dispute that the Applicant did not have a contraindication.
I am satisfied and find that the Respondent was required to source the COVID-19 vaccination status of the Applicant in order for the Applicant to be able to attend for work after 12 November 2021.
I do not accept the argument from the Applicant that the Respondent is changing her contract of employment by forcing her to advise of her vaccination status in order to maintain her employment. CHO Direction No. 55 was a temporary measure to protect all citizens, including the most vulnerable, from a global pandemic.
Conclusion
I have previously found that the Respondent had a valid reason to terminate the Applicant.
The Applicant has raised no other issues which would suggest that her termination was harsh, unjust or unreasonable. I find 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 is dismissed.
I so Order.
COMMISSIONER
[1] (1995) 185 CLR 410.
[2] (1998) 84 IR 1.
[3] (1995) 62 IR 371.
[4] PR4471.
[5] (1998) 84 FCR 483.
[6] Transcript typed from audio recording.
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