Mr Anthony Driscoll v Select Harvests Ltd

[2022] FWC 1415

[2022] FWC 1415

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Anthony Driscoll
v

Select Harvests Ltd

(U2021/10703)

COMMISSIONER JOHNS MELBOURNE, 8 JUNE 2022

Application for an unfair dismissal remedy

1. This decision concerns an application for an unfair dismissal remedy made by Mr Anthony Driscoll (Applicant) under s 394 of the Fair Work Act 2009 (FWAct) in respect of his dismissal by Select Harvests Ltd (Respondent).

1. In short:

a)   Mr Driscoll was employed by the Respondent from August 2017 to 3 November 2021.

b)   At the time of his dismissal Mr Driscoll was employed in the role of H2E Operator Maintainer.

c)   Mr Driscoll was required to perform his role from the Respondent’s Carina West (Victoria) processing facility.

d)   Mr Driscoll was dismissed on the grounds that he,

i.     did not provide evidence regarding his vaccination status or a medical exemption, and

ii.confirmed that he did not intend to be vaccinated, and therefore

iii.was unable to meet a legal requirement of his position.

e)   Because Select Harvests did not have proof that Mr Driscoll had been vaccinated against COVID-19, relevant Victorian Government directions prevented Select Harvests from allowing Mr Driscoll to attend the workplace on or after 15 October 2021.

f)   At the date of the hearing before me, Mr Driscoll remained prevented from attending for work at Select Harvests by reason of his continuing unvaccinated status.

1. Mr Driscoll contends that his dismissal was unfair and seeks financial compensation. The primary basis for the challenge to the dismissal was Mr Driscoll’s contention that the relevant government vaccine directions were invalid. That is not a matter that the Fair Work Commission (Commission) can concern itself with. If Mr Driscoll wants to challenge the lawfulness of those directions he should do so in a court of law.

1. Section 396 requires that I decide four matters before considering the merits of Mr Driscoll’s application. I am satisfied of the following:

a) First, the application was made within the 21-day period required by s 394(2).

b)   Secondly, Mr Driscoll was a person protected from unfair dismissal.

c)   Thirdly, the dismissal was not a genuine redundancy.

d)   Fourthly, Select Harvests is not a small business employer, and the Small Business Fair Dismissal Code is therefore inapplicable.

Background

1. The facts in this matter were largely uncontested.  Consequently, I make the following findings of fact:

a)   On 5 October 2021, Select Harvests conducted a meeting with all employees at Carina West Processing and Select Harvests Orchards (Employees), including the Applicant, to advise them of Select Harvests’ vaccination requirements, which were in accordance with the Victorian Government directions. At the time, the directions required authorised workers to be vaccinated. Employees were advised that they were required to have their first vaccine by 15 October 2021 and needed to be fully vaccinated by 26 November 2021 to enter Select Harvests’ facilities.[1] The Applicant did not attend the meeting.[2]

b)   On 5 October 2021 Mr Driscoll was informed by Mr Concol, H2E Coordinator, that if he chose not to be vaccinated against COVID-19 then his employment would be terminated.[3] At or around this time the Applicant raised his concerns regarding the vaccine with Ms Deanne Kontrec, HR Advisor for the Respondent.[4]

c)   On 6 October 2021 Select Harvests sent a letter[5] to Employees as a follow up to the matters discussed at the 5 October meeting. The letter set out the requirement to receive at least one COVID-19 vaccine by 15 October and to be fully vaccinated by 26 November 2021 in writing. Employees were advised that they would be entitled to an additional day’s annual leave or a $150 gift card upon being vaccinated.

d)   On 7 October 2021, the acting Chief Health Officer of Victoria issued the COVID-19 Mandatory Vaccination (Workers) Directions[6] (Workers Directions) under s 200(1)(d) of the Public Health and Wellbeing Act 2008 (Vic). These imposed obligations on the employers of specified workers, including manufacturing workers, not to allow workers to attend for work on or after 15 October 2021 unless they had provided evidence to the employer of having been vaccinated against COVID-19, or of a booking to receive a vaccination by 22 October 2021. An exception applied for workers who provided a certificate that they were unable to receive a vaccination due to a medical contraindication. The Workers Directions were succeeded by other directions in similar terms (Directions).

e)   On 8 October 2021 Select Harvests sent a letter[7] to all employees advising them that all Select Harvests Employees were required to comply with the Directions. The letter clearly set out the requirements to comply with the Directions by the specified dates and stated that if employees did not comply with the requirements, then they will not be permitted to attend for work which may affect their employment, contract or placement.

f)   On 14 October 2021 Select Harvests issued a company-wide ‘Mandatory COVID-19 Vaccination Policy’[8] (Policy). The Policy replicated the Workers Directions and applied to all workers engaged by Select Harvests. Amongst other matters, the Policy states that:

·“Workers at the Company will be required to have received the minimum first dose of the COVID-19 vaccine by 15 October 2021. All workers will be required to be fully vaccinated (with both doses) by 26 November 2021.

·It is a condition, and inherent requirement, of your employment that you are, and remain, vaccinated against COVID-19 by the above dates; and

·If at any time you are not fully vaccinated against COVID-19 (including in respect to any required booster vaccinations), the Company may terminate your employment.”

g)   On 15 October 2021 Mr Daniel Wilson, General Manager for Select Harvests, sent a letter[9] to Mr Driscoll advising him that as he had not been vaccinated or provided confirmation that he had an appointment to get vaccinated Select Harvests could not permit him to be on site. The letter stated that the Applicant’s decision not to get vaccinated meant that he could not meet what has become a legal requirement of his position. Mr Driscoll was advised that he was suspended without pay until he could meet the vaccination requirement or until there was a change to the Government mandate. Mr Driscoll was provided with the opportunity to take two weeks accrued annual leave during the suspension period. The letter further stated that if the Applicant did not get vaccinated or the Government mandate did not change, then Select Harvests may need to consider terminating his employment.

h)   On 19 October 2021 Select Harvests sent a letter[10] to all employees. Amongst other things the letter confirmed that all employees who had not complied with the Directions were suspended without pay for 2 weeks and could not attend the worksite. Select Harvests stated that it would move to termination if the vaccination policy was not met.

i)   On 21 October 2021 Mr Driscoll sent a letter[11] drafted by Human Rights Advocates and Advocate Me to Select Harvests. The letter, which was signed by the Applicant, stated “I [Antony Driscoll] hereby decline and refuse the COVID-19 vaccination”. Amongst other things the letter disputed the safety of the COVID-19 vaccines and cited the Constitution, various Federal laws and the Nuremberg Code in relation to informed consent. The letter also provided a link to a 114-page paper on the risks associated with the COVID-19 vaccination.

j)   On 25 October 2021 Ms Kontrec responded to the Applicant’s letter by email.[12] The letter set out the requirements to be vaccinated or to have an appointment to be vaccinated by specified dates and stated that Select Harvests may need to consider terminating his employment if he did not comply with the Directions.

k)   On 3 November 2021 Mr Driscoll attended Select Harvests’ worksite without having provided his vaccination status. Mark Davis, Operations Manager for the Respondent, called the Applicant and instructed him to leave, as he was not permitted to be on site. The Applicant refused to leave and ended the call. Mr Davis called Mr Driscoll a further two times and instructed him to leave the premises. However, Mr Driscoll refused to leave. Mr Davis then advised Mr Driscoll that in light of his conduct, including the breach of company policy and the terms of his employment contract and the fact that he was not permitted to be on site under the Directions, that his employment was being terminated effective immediately. Mr Driscoll was told that a termination letter would be provided via email and to direct further questions to Ms Kontrec.[13]

l)   Later that day on 3 November 2021 Select Harvests sent a letter[14] to Mr Driscoll terminating his employment. The reason provided was that Mr Driscoll had not provided evidence regarding his vaccination status and confirmed that he did not intend to be vaccinated. It was stated that Mr Driscoll’s employment would end immediately, and that given Mr Driscoll was not legally permitted to perform his duties no payment in lieu of notice would be made.

Submissions of the parties

1. Mr Driscoll contended that his dismissal was harsh, unjust or unreasonable. He contended that Select Harvests exercised financial duress upon him when it threatened him with the loss of his employment. Mr Driscoll disputed the legality of the Directions and Select Harvests’ Vaccination Policy and contended that he did not breach his contract of employment when he did not comply with them. Mr Driscoll further contended that there was no meaningful consultation provided by Select Harvests when he raised his concerns in his letter to the Respondent dated 21 October 2021. Mr Driscoll contended that Select Harvests terminated his employment when he was fully fit, functioning and able to work to the best his ability to fulfil his employment contract and that it was unfair to do so. 

1. Select Harvests contended that Mr Driscoll’s dismissal was not harsh, unjust or unreasonable and that it dismissed Mr Driscoll for a valid reason, namely that he had failed to comply with a lawful and reasonable direction of his employer by attending the workplace unvaccinated on 3 November 2021 and that he had rendered himself unable to perform the inherent requirements of his role by choosing not to be vaccinated. Mr Driscoll’s decision not to get vaccinated meant that Select Harvests, bound by the terms of the Directions (which it contends applied to the Applicant as a ‘manufacturing worker’), were required to ensure that Mr Driscoll did not attend the workplace. Select Harvests submitted that it took all reasonable steps to ensure procedural fairness by giving Mr Driscoll ample opportunity to respond to their concerns about his vaccination status.

Consideration

1. For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable (s 385(b)). In considering whether it is so satisfied, the Commission must take into account the various matters specified in s 387.

1. The Commission must consider whether there was a valid reason for the dismissal related to the person’s capacity or conduct (s 387(a)). Such a reason is one that is valid in the sense both that it was a good or sufficient reason, and also a substantiated reason.

1. The essence of a valid reason is a reason that is sound, defensible or a well-founded reason – one that is not capricious, fanciful, spiteful or prejudiced.[15]

1. I am satisfied that Select Harvests had a valid reason to terminate Mr Driscoll’s employment. Mr Driscoll was entitled to make the decision he made not to get vaccinated.  This case is not about vaccine mandates.  There was no vaccine mandate. Mr Driscoll was at pains to assert that he has “the right to maintain dominion over [his] bodily autonomy.” And so, he does.  Nothing the State Government mandated or that his employer complied with interfered with that autonomy. It is nonsense to suggest that the State Government or Select Harvests were requiring anyone to “undergo a medical experiment”.

1. There was, however, a government direction to employers not to allow employees to attend for work on site unless they were vaccinated.

1. As a H2E Operator Maintainer attending on site (as and when required) was an inherent requirement of the Applicant’s position.  The evidence did not support a finding that the Applicant could have undertaken his work from home.  By deciding (as he was freely able to do and did) not to get vaccinated the Applicant made himself unable to perform the inherent requirements of his role. It was his choice.  It is simply the case that Mr Driscoll does not like the consequence that flowed from the voluntary choice that he made.  By reason of that choice Mr Driscoll was not able to attend work on site. Mr Driscoll’s decision not to get vaccinated meant that Select Harvests, bound by the terms of the Directions, was required to ensure that Mr Driscoll did not attend the workplace.  Select Harvests was in no position not to comply with the Directions.  It acted as it was lawfully required to do.

1. Although it is not mentioned in the letter of termination Select Harvests had a further valid reason to dismiss the Applicant. That was his attendance at the work site on 3 November 2021 as an unvaccinated person.  He was in breach of a lawful and reasonable direction by Select Harvests not to attend the work site.  He compounded this misconduct by refusing to leave the work site when directed to do so by Mr Davis.  Mr Davis had three phone calls with the Applicant.  The direction to leave the work site was lawful and reasonable. Mr Driscoll engaged in misconduct by not following the direction to leave.

1. In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether an employee has been notified of the reasons for dismissal and whether the person was afforded an opportunity to respond to any reason related to their capacity or conduct (ss 387(b) and (c)). The termination letter of 3 November 2021 notified Mr Driscoll of the reason for dismissal.  I accept that, because of the immediate nature of the termination that occurred during the third phone call between Mr Davis and the Applicant, the Applicant was not given an opportunity to respond.  However, he brought this on himself.  By attending the work site unvaccinated he was in flagrant breach of a lawful and reasonable direction by the employer, that was compounded by his refusal to leave. In the circumstances of his misconduct any denial of procedural fairness does not make the dismissal unfair.  In any case Mr Driscoll was on notice from at least 5 October 2021 that his unvaccinated status would result in the termination of his employment.

1. Select Harvests did not refuse, unreasonably or otherwise, to allow Mr Driscoll to have a support person present to assist in discussions relating to the dismissal (s 387(d)).

1. If a dismissal relates to unsatisfactory performance, s 387(e) requires the Commission to consider whether the person has been warned about that unsatisfactory performance prior to dismissal. However, Mr Driscoll’s employment was not terminated for unsatisfactory performance, but for issues relating to his capacity.

1. The Commission is required to consider the degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal (ss 387(f), (g)). The purpose of these provisions is not to raise the bar for larger employers such as Select Harvests, but to require the Commission to take into account these common features of smaller employers. In any event, there was no procedural deficiency in respect of which mitigation might be sought in connection with these provisions. Sections 387(f) and (g) carry no weight in the present matter.

1. In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account any other matters that it considers relevant (s 387(h)). In the present matter I have taken into account the Applicant’s medium length service, unblemished record, the economic impact on him of the loss of his employment and Mr Driscoll’s genuinely held concerns about the safety of COVID-19 vaccines.

1. However, I do not consider that any of these additional factors render the dismissal harsh or otherwise unfair.  Select Harvests had no choice in the matter. It had to comply with the Directions.  Mr Driscoll did have a choice – to either get vaccinated or not.  He freely exercised that choice.  The consequences of exercising that choice were made clear to him, and, nonetheless, he made his choice not to be vaccinated.

1. Having regard to s 387 of the FW Act, I consider that Mr Driscoll’s dismissal was not harsh, unjust or unreasonable, and that it was therefore not unfair. The application is dismissed.

COMMISSIONER

Appearances:

Mr A. Driscoll for himself
Mr D. Sztrajt for the Respondent

Hearing details:

2022
Melbourne
24 March

[1] Court Book p 269.

[2] Transcript PN81.

[3] Court Book p 269.

[4] Court Book p 69.

[5] MD-1.

[6] DK-07.

[7] MD-2.

[8] DK-06.

[9] MD-3.

[10] MD-4.

[11] DK-09.

[12] DK-10.

[13] Court Book p 270.

[14] MD-5.

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[15] Printed by authority of the Commonwealth Government Printer

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Selvachandran v Peteron Plastics [1995] IRCA 333, (1995) 62 IR 371 at 373.