Mr Edward Knight v Victorian Workcover Authority T/A WorkSafe Victoria
[2022] FWC 2534
•21 SEPTEMBER 2022
| [2022] FWC 2534 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Edward Knight
v
Victorian Workcover Authority T/A WorkSafe Victoria
(U2022/4184)
| COMMISSIONER YILMAZ | MELBOURNE, 21 SEPTEMBER 2022 |
Application for an unfair dismissal remedy - serious misconduct alleged – employee’s actions constitute serious misconduct – valid reason for dismissal – dismissal was not unfair – Applicant dimissed
On 8 April 2022, Mr Edward Knight made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with the Victorian WorkCover Authority T/A WorkSafe Victoria (WorkSafe). Mr Knight commenced employment with WorkSafe on 22 December 2008 and in September 2013, he accepted a full-time position as Lawyer (Administrative Review and Advice). Following the implementation of Victoria’s COVID-19 Mandatory Vaccination Directions, WorkSafe introduced its own COVID-19 Vaccination Policy which affected all WorkSafe employees including Mr Knight. All staff were required to provide evidence of vaccination status within fixed timeframes. Mr Knight’s employment was terminated with immediate effect on 21 March 2022 and his letter of termination cited repeated refusal to provide proof of vaccination status in accordance with its COVID-19 Vaccination Policy. Mr Knight seeks a remedy of reinstatement, payment of any remuneration lost and an apology.
It is not in dispute that Mr Knight’s application satisfies the requirement of minimum employment period and coverage under an enterprise agreement pursuant to s.382 of the Fair Work Act 2009 (Cth) (the Act). WorkSafe is not a small business employer covered by the Small Business Unfair Dismissal Code. It is not in dispute that Mr Knight’s employment was terminated on 21 March 2022. The termination of employment is a result of WorkSafe issuing a direction to Mr Knight to record his COVID-19 vaccination information in WorkSafe’s PeopleCentral System and provide proof of his vaccination status by close of business 31 December 2021. There were no jurisdictional matters raised.
At the hearing, Mr Knight gave oral evidence and WorkSafe called three witnesses:
· Mr Andrew Keen, Executive Director of People Culture & Corporate;
· Ms Kirsty Allan, Workplace Relations Manager; and
· Ms Phillipa Cocciolone, Acting Managing Principal Lawyer of Health and Safety Legal.
I received substantial documentary and oral evidence at the hearing from both parties.
Both parties were granted leave to be legally represented.
Background
Mr Knight commenced employment with WorkSafe on 22 December 2008 as a Paralegal and held various positions during his employment. Since October 2013 he held his last position of Lawyer (Administrative Review and Advice) in WorkSafe’s enforcement group division until his dismissal on 21 March 2022.
WorkSafe is a statutory corporation existing pursuant to s.491 of the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRC Act), and is conferred responsibilities, functions and powers as a regulator of the WIRC Act and other related Victorian statutes.
The Victorian Chief Health Officer introduced the COVID-19 Mandatory Vaccination Directions from 7 September 2021, to eliminate or reduce the risk to public health, and to protect public health by limiting the spread of severe acute respiratory syndrome coronavirus (SARS-CoV-2) with vaccination of workers in residential aged care facilities. On 7 October 2021, the Acting Victorian Chief Health Officer widened the coverage of mandatory vaccination obligations in workplaces with the COVID-19 Mandatory Vaccination (Workers) Directions. These Directions imposed obligations on employers to collect vaccination information on its workers that were required to work outside their ordinary place of residence from the specified date (15 October 2021 for public sector employees) and must ensure that unvaccinated workers do not work outside their ordinary place of residence from the dates scheduled for mandatory vaccination. The Directions of October 2021, and subsequent Directions and Pandemic Orders directly affected WorkSafe and its workers. The October Directions specified that public sector workers attending work outside the home from 15 October 2021 were to show evidence of the minimum first dose vaccination (or booking) by 22 October 2021 and second dose or booking by 26 November 2021. No unvaccinated worker was to be permitted to work outside their place of residence unless an exemption as specified in the Directions applied.
In November 2021, WorkSafe introduced its own policy that required its employees to comply with the direction to provide vaccination status information in compliance with Victoria’s Directions and Pandemic Orders.
Due to COVID-19 working restrictions Mr Knight commenced working from home from around March 2020 and did not return to the workplace prior to his dismissal.
Mr Knight submits that he is the primary care giver for his elderly mother who has ongoing health issues, accounting for approximately two days per week of his time.[1]
Mr Knight states that on 16 December 2021, he was verbally directed to record his vaccination information and proof of vaccination status in the PeopleCentral vaccination status portal. Mr Knight did not comply with information on his vaccination status, asserting a right to privacy. On the same day, Ms Cocciolone, his manager, emailed to Mr Knight a confirmation of their discussions of 30 November and 16 December concerning its direction to him to upload information on vaccination. In addition, Mr Knight was emailed a copy of the new Victorian Pandemic Order applicable to WorkSafe staff. Mr Knight emailed in response that he “does not intend to waive his legal right to privacy and share or disclose his medical records.”[2]
On 21 December 2021, WorkSafe invited Mr Knight to a meeting to discuss the direction to enter detail on vaccination status on the portal. Mr Knight rejected the invitation advising that the meeting invite conflicted with his regular HSR Committee meeting. In a separate email two minutes earlier, Mr Knight reiterated that he did not intend to waive his legal right to privacy and share or otherwise disclose his medical records. He also states that it is open to WorkSafe to assume that he is unvaccinated in accordance with its own policy.[3]
On the same day, WorkSafe issued a written directive to provide vaccination information through the PeopleCentral vaccination status portal by 31 December 2021. The letter confirms the legal obligations on WorkSafe to collect, record and hold information consistent with Victoria’s Mandatory Vaccination Pandemic Order. The letter further informs Mr Knight that should he fail to comply with the direction that he may be subject to disciplinary action in accordance with its enterprise agreement and WorkSafe’s disciplinary policy, up to and including termination of employment.
On 15 February 2022, Mr Knight emailed Mr Briffa, lawyer acting for WorkSafe, in response to the show cause letter received from his manager, Ms Cocciolone dated 8 February 2022. Mr Knight, among other queries, challenges the allegation that he had failed to follow a “reasonable and lawful direction”. He requests further particulars in relation to the grounds on which WorkSafe rely that the direction is lawful and reasonable and what conduct of Mr Knight’s does it consider “serious”.[4]
On 17 February 2022, WorkSafe responded to Mr Knight’s email of 15 February 2022. On 22 February 2022, Mr Knight again emailed Mr Briffa the questions which he says were not responded to. He also raised the potential that he work from home.
On 4 March Mr Knight was issued a show cause letter. On 11 March Mr Knight responded rejecting the proposed action and proposing he work from home and use his accrued leave until the Pandemic Orders expire.
There were no performance issues in relation to Mr Knight’s employment.
Submissions of the Applicant
Mr Knight contends that his dismissal was harsh, unjust or unreasonable because:
· He has a right to privacy concerning his vaccination status;
· That the consultation process and conduct of WorkSafe was unreasonable;
· That he was not guilty of misconduct, nor serious misconduct;
· That there was an option to allow him to work from home; and
· His personal and financial consequences resulting from the dismissal renders the dismissal harsh.
Submissions of the Respondent
WorkSafe submit there was a valid reason for Mr Knight’s dismissal because he did not disclose his vaccination status as he was required to do. The requirement arose because of the Victorian Government COVID-19 Mandatory Vaccination (Workers) Directions and later the COVID-19 Mandatory Vaccination (Specified Workers) Order 2022 (Pandemic Order). Further, WorkSafe introduced its COVID-19 Vaccination Policy. The policy required disclosure of vaccination status for WorkSafe to comply with the Government Directions and Pandemic Order.
WorkSafe submits that Mr Knight’s assertion to privacy was overridden by the Government’s Directions and Pandemic Order. Further no consultation was required due to its legal obligations under the Directions and Pandemic Order.
In respect to unfairness, WorkSafe submit that Mr Knight was given sufficient opportunity to comply with disclosure requirements and procedural fairness leading to his dismissal was appropriately afforded.
On 21 March 2022 Mr Knight was dismissed and the letter of termination records that he “engaged in serious misconduct by failing to follow a lawful and reasonable direction to record [his] vaccination information in PeopleCentral.”[5] On termination of his employment, Mr Knight was paid eight weeks of salary together with his entitlements. The letter describes the process leading to the dismissal as an “exhaustive process of engagement and correspondence for the process of encouraging him to comply with WorkSafe’s lawful and reasonable direction, which was consistent with WorkSafe’s obligations…and subsequently, to show cause as to why his employment should not come to an end in light of his persistent refusal to disclose his vaccination status.”[6]
Was the dismissal harsh, unjust or unreasonable?
Section 385 of the Act states as follows:
“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.
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, I 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 Commission considers relevant.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[7]
Consideration
Was there a valid reason for the dismissal related to capacity or conduct? S.387(a)
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well-founded.”[8] Further it is the role of the Commission to consider the employer’s reasoning to assess whether that reasoning is valid.[9]
I find that WorkSafe’s reason for termination of employment is sound and defensible in respect to conduct. There are no allegations that Mr Knight’s dismissal is attributable to performance, rather his dismissal is due to his refusal to follow a lawful and reasonable direction.
WorkSafe is a statutory corporation conferred with powers to regulate health and safety in Victoria and therefore must not only implement health and safety obligations but also adhere to any obligations imposed on it as a workplace.
The COVID-19 pandemic impacted Australia from about March 2020. Governments throughout Australia declared the virus a pandemic and introduced measures to manage the risk of spread of COVID-19. The Victorian Chief Health Officer provided advice to the Minister that business poses a risk for workers and patrons as people interact which poses the risk of transmission; in particular in respect to where there are common areas, inadequate ventilation, close contact or where there is difficulty in social distancing. As we are all aware the risk of spread was heightened over time with greater infectious strands of the virus. Victoria’s Premier declared a state of emergency due to the pandemic under the Public Health and Wellbeing Act 2008 and the Minister/Chief Health Officer exercised powers by making orders in the form of Directions and Pandemic Orders.
Pursuant to s.200 of the Public Health and Wellbeing Act 2008, the Victorian government introduced Directions and ultimately Pandemic Orders which placed restrictions and obligations on workplaces for the objective of controlling the spread of the virus. The restrictions and obligations included limits on working outside of the home, requirements that employers not permit workers to enter workplaces without vaccination and/or prescribed PPE and the obligation to collect, record and hold the vaccination information of workers that work outside their place of residence. While workers had the option whether to have the vaccination, should they enter workplaces they were required to produce evidence of their vaccination status to their employer. Once the work from home restrictions were lifted, employers could, provided they met the requirements of the Directions or Pandemic Orders reasonably direct their workforce to perform their duties in the workplace.
Directions to employees to provide vaccination status is lawful where employees perform work in the workplace which is not the person’s private residence. If the job inherently requires a physical presence for the position in a workplace outside of the home, or there are circumstances in which the employee could, if infected transmit the virus in the course of their work, the direction to provide information on vaccination status is lawful and reasonable. It is an inherent requirement that an employee perform their work safely. Whether the public health Directions and Pandemic Orders are reasonable is not a matter for this Commission to determine. What the Commission should take into account is that Directions and Public Orders are pursuant to the Public Health and Wellbeing Act 2008, which directly applies to workplaces including WorkSafe. WorkSafe’s direction to Mr Knight to produce his vaccination status in the PeopleCentral portal is lawful and reasonable. WorkSafe must comply with the Directions and Pandemic Orders and its introduction of its own policy is consistent with its compliance obligations. Further there is no evidence that the policy was not afforded the normal consultation processes required under the WIRC Act. I am also satisfied that WorkSafe was not required to consult in respect to the application of the Directions and Pandemic Orders.
WorkSafe submit that Mr Knight was required to attend the workplace and work outside his home in the performance of his duties. The work from home was always intended to be a temporary arrangement in compliance with Pandemic Directions. WorkSafe gave evidence of the drop in performance of key deliverables due to the work from home arrangements, it also led evidence concerning the inherent requirements of Mr Knight’s role in respect to key stakeholders, namely interaction with and training of inspectors. On balance, I prefer the evidence of WorkSafe over Mr Knight regarding the inherent requirements of his role which required performance of work outside his home. Ms Cocciolone gave compelling evidence of the face-to-face work with inspectors, the team’s work with the Coroners Court and litigation matters. The evidence that working arrangements were to be a hybrid of work from home and at the place of work was compelling and this means that Mr Knight would need to submit to the requirement of providing his vaccination status if his employment was to continue. He made his position clear that he would not, therefore WorkSafe, had no option but to dismiss him.
On the matter of privacy, I am satisfied that Mr Knight’s arguments are not valid due to the application of the Health Records Act 2001 (Vic) and Mandatory Directions and Pandemic Orders which not only permits, but places obligations on employers to collect, record and hold vaccination information.
Based on the evidence, Mr Knight’s submission that WorkSafe failed to consider his carer duties, in my view is weak. There was an absence of evidence that carer responsibilities were raised in any meaningful way by Mr Knight. On first mention of his mother, Ms Cocciolone gave evidence that he was guarded when she tried to speak to him about his options. She stated that Mr Knight could have but did not apply for a flexible working arrangement, nor expressed any interest to seek an exemption. Further, Ms Cocciolone gave evidence that Mr Knight instructed her not to raise his caring of his mother to P&C. Had carer responsibilities been Mr Knight’s main concern, he had every opportunity to advise P&C, make a flexible working arrangement application or articulate his requirements for the purpose of reaching agreement on meeting the return-to-work hybrid model. Mr Knight instead was resolute that he would not engage in providing any information on his vaccination status.
I am satisfied that on the facts Mr Knight was given a lawful and reasonable direction and he knowingly and wilfully did not comply with the direction on multiple occasions.
WorkSafe submit that Mr Knight’s refusal to comply with a lawful and reasonable direction is serious misconduct.
Regulation 107 of the Fair Work Regulations 2009 provides:
Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a)wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b)conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer's business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee's employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault; or
(iv) sexual harassment;
(c)the employee being intoxicated at work;
(d)the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
(5) For paragraph (3)(b), an employee is taken to be intoxicated if the employee's faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee's duties or with any duty that the employee may be called upon to perform.
To meet the definition of the serious misconduct in Regulation 107, the conduct must meet each of the subregulations: wilful or deliberate behaviour that is inconsistent with the continuation of the contract of employment, causes serious or imminent risk to health or safety of a person or causes risk to the reputation, profitability or viability of the employer’s business. In addition, subregulation 107(3) refers to an employee’s refusal to carry out lawful and reasonable instruction with the employee’s contact of employment.
Mr Knight contends that the Respondent had not met the legal principles regarding serious misconduct. By his reference to authorities, he infers that his refusal to comply with the direction was not wilful and did not show a repudiation of his contract of employment. He submits that he was working from home and there was a clear ability to continue to do so. He further states that WorkSafe did not take any steps to enquire, assist or satisfy itself of any reasonable adjustments that could be made.
WorkSafe submit that Mr Knight refused a lawful and reasonable direction which is serious misconduct and is inconsistent with his contract of employment.
This was not a case of Mr Knight not comprehending the seriousness of his decision to refuse the lawful and reasonable direction. He wilfully and persistently refused on many occasions, he was warned of the consequences, and refusing a reasonable and lawful direction is inconsistent with his contract of employment. Further, I find that WorkSafe established the reasonableness of requiring Mr Knight to return to the workplace, albeit in a hybrid model.
Was Mr Knight notified of the valid reason? S.387(b)
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[10] and in explicit[11] and plain and clear terms.[12]
There is no need to repeat the numerous communications from WorkSafe. Both WorkSafe and Mr Knight tendered evidence of communications. Impotently he did not contest the breadth of correspondence which was tendered in addition to his own. Mr Knight was given a copy of the Pandemic Order and he had received a copy of the WorkSafe policy. I am also mindful that Mr Knight was on the WorkSafe WHS Committee which would have dealt with the formulation of the policy.
No evidence was led that Mr Knight was not notified or understood the reason for the dismissal. I am satisfied, having assessed the evidence, that Mr Knight was notified of the reason for his dismissal, and was expressed in explicit, plain and clear terms.
Was he given an opportunity to respond to any reason related to his capacity or conduct?
S. 387(c)
An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[13]
Mr Knight contends that the process was flawed, that he was not given a fair and reasonable opportunity to address the allegations and there was a poor consultation process.
The obligation of employees of WorkSafe to provide vaccination information commenced from 26 November 2021. The evidence is not contested that Mr Knight’s manager Ms Cocciolone verbally discussed his obligations to comply with the direction, but there was also written communication to that effect. It is also not contested that Mr Knight understood the direction as he clearly articulated his refusal. His emails demonstrate an understanding of the direction, and his refusal was deliberate and clear.
Did WorkSafe unreasonably refuse to allow the Applicant to have a support person present? S.387(d)
It was not contested that Mr Knight was not unreasonably refused a support person.
Was he warned about unsatisfactory performance before the dismissal? S.387(e)
Mr Knight was not dismissed for reason of performance therefore this consideration does not apply.
To what degree would the size of the enterprise and degree of human resource expertise be likely to impact on the procedures followed in effecting the dismissal? SS.387(f) and (g)
WorkSafe is not a small employer and is well resourced in human resource expertise. This consideration is neutral as there was no reason to suggest the procedure was impacted by size of business.
What other matters are relevant? S.387(h)
Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
I have considered matters pertaining to carer responsibilities and the financial impact of the dismissal and do not consider either add weight to Mr Knight’s application.
Was the dismissal harsh, unjust or unreasonable and conclusion?
I have considered each matter specified in s.387 and in reaching my determination I have considered whether the dismissal was harsh, unjust or unreasonable. I have weighed up all of the circumstances of the dismissal including that termination was for serious misconduct. In the circumstances, I find that Mr Knight’s dismissal was proportionate to his refusal to comply with a lawful and reasonable direction.
Mr Knight raised the impact of the dismissal on his personal circumstances as a valid consideration regarding harshness. The evidence on this point did not support the contention that Mr Knight could not care for his mother nor that he was financially destitute as a consequence of the dismissal. Neither of these arguments favour a finding of harshness.
I have considered each matter specified in s.387 and in reaching my decision I have considered whether the dismissal was harsh, unjust or unreasonable. I have weighed up all of the circumstances of the case and find pursuant to s.385 that Mr Knight was not unfairly dismissed. The dismissal was neither harsh, unjust or unreasonable.
Conclusion
Having considered all the relevant factors, I do not consider Mr Knight unfairly dismissed.
As the dismissal was not unfair, I am not required to consider issues of remedy.
For these reasons, I will issue an order[14] separate to this decision, that the application be dismissed.
COMMISSIONER
Appearances:
Mr J. Polese for the Applicant
Mr L. Howard for the Respondent
Hearing details:
2022
Melbourne
1 August
[1] Exhibit A1, Witness Statement of Edward Knight at [8].
[2] Applicant’s submissions at [10] and email of 21 December 2021 at 9:57am from Edward Knight to Pip Cocciolone.
[3] Emails from E Knight at 9:57am and 9:59 am on 21 December 2021 to P Cocciolone.
[4] Email from E Knight to M Briffa on 15 February 2022 at 4:59pm.
[5] Respondent’s outline of submissions at [4] and WorkSafe Exhibit, tab 77.
[6] Ibid at [5].
[7] Sayer v Melsteel Pty Ltd (2011) FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[8] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[9] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
[10] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[11] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
[12] Ibid.
[13] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
[14] PR746084
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