Mr John William Lisle v Nbn Co Ltd T/A nbn - [2022] FWC 1854

[2022] FWC 1854

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr John William Lisle
v

NBN Co Ltd T/A nbn

(U2022/2455)

COMMISSIONER RIORDAN

SYDNEY, 29 JULY 2022

Application for an unfair dismissal remedy

On 25 February 2022, Mr John Lisle (the Applicant) filed an application (the 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 NBN Co Ltd T/A nbn (the Respondent) on 21 February 2022 due to his inability to perform the inherent requirements of his role.

The Applicant claims that he was first employed by the Respondent on 11 September 2013. At the time of his dismissal, the Applicant was employed by the Respondent in the role of Senior Field Technician Specialist in the Northern Territory.

The Applicant seeks reinstatement.

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 COVID-19 Directions (No. 55) 2021 (CHO Direction No. 55) came into effect directing for mandatory vaccination of specified 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.

(My emphasis)

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 24 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 13 October 2021, Mr David Campbell, Area Manager, NT & SA Operations for the Respondent, wrote to the Applicant and other staff members with the following:

“Guys

Im sure you’ve already heard but if you havnt
From Nov 13 the vaccine will be mandatory in NT
I hear anything from nbn ill let you know
Thanks
David Campbell
Area Manager | NT & SA South Operations”

The Applicant responded to Mr Campbell on the same date, stating:

“Hi Dave,

Firstly, please let me state that I have no wish to resign from my position at nbn.
I acknowledge the NT Governments Commerce Law Offer to provide…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Mr John William Lisle v Nbn Co Ltd T/A nbn

Details

AGLC: Mr John William Lisle v Nbn Co Ltd T/A nbn [2022] FWC 1854
Case: [2022] FWC 1854
Decision Date: 29 JULY 2022

CaseChat Overview and Summary

Mr John William Lisle filed an application for unfair dismissal remedy with the Fair Work Commission. The application was dismissed. The Applicant was employed by the Respondent in the role of Senior Field Technician Specialist in the Northern Territory. The Applicant was dismissed by the Respondent due to his inability to perform the inherent requirements of his role. The Applicant claims that he was dismissed due to his refusal to comply with the COVID-19 vaccine mandate. The Applicant also contends that the Respondent coerced him into receiving a COVID-19 vaccine, which he refused to accept. The Applicant further contends that the dismissal was a result of discrimination, victimisation and adverse action, contrary to the Fair Work Act 2009. The Commission found that the Applicant had not provided a valid reason for refusing to comply with the vaccine mandate. The Commission also found that the Respondent had a valid reason for dismissing the Applicant, and that the dismissal was not harsh, unjust or unreasonable.

Orders