Mr Neil Joyce v The Commissioner for Public Employment
[2022] FWC 1000
•8 JULY 2022
| [2022] FWC 1000 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Neil Joyce
v
The Commissioner for Public Employment
(U2021/11411)
| COMMISSIONER RIORDAN | SYDNEY, 8 JULY 2022 |
Application for an unfair dismissal remedy.
On 9 December 2021, Mr Neil Joyce (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 the Commissioner for Public Employment (the Respondent) on 30 November 2021 on the basis that he was not able to perform the inherent requirements of his job.
The Applicant was employed by the Northern Territory Fire and Rescue Service (NTFRS) as a Firefighter from March 2011 until his dismissal on 30 November 2021. The Applicant’s employment was covered by the Northern Territory Public Sector Fire and Rescue Service 2017 - 2021 Enterprise Agreement.
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 announced 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 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, Ms Jodie Ryan, Chief Executive Officer, Department of the Chief Minister and Cabinet, Northern Territory Government, wrote to all Northern Territory Public Service (NTPS) employees regarding CHO Direction No. 55 and confirming the requirement that all staff receive the first dose of the COVID-19 vaccine by 13 November 2021 and to be fully vaccinated by 24 December 2021. The email correspondence noted the exemption for a proven contraindication.
On 22 October 2021, Ms Vicki Telfer PSM, Commissioner for Public Employment, wrote to all Northern Territory Government staff, advising of, among other things, the requirement for employees’ vaccination statuses to be registered with their employer a week in advance of the due dates. A ‘myHR’ system had been developed for registering these details.
On 22 October 2021, Mr Jamie Chalker, Commissioner of Police and CEO, wrote to all Northern Territory Police, Fire and Emergencies Services (NTPFES) staff regarding Mandatory COVID-19 vaccination for all NTPFES workers. The correspondence provided that due to the nature of their work, all NTPFES workers were subject to the mandatory vaccination criteria directed by CHO Direction No. 55. It provided that all NTPFES workers were required to receive their first dose of an approved COVID-19 vaccination by 13 November 2021, and their second dose of an approved COVID-19 vaccination by 25 December 2021.
Various internal broadcasts followed these communications, providing further information and clarification regarding the vaccination mandate.
On 11 November 2021, the Applicant provided a medical certificate to his employer, which outlined that he was unfit to attend work from 11 November 2021 to 25 November 2021.
On 12 November 2021, Mr Mark Spain, Chief Fire Officer (CFO), sent the following letter to the Applicant:
“Dear Mr Joyce
RE: INABILITY TO PERFORM DUTIES - FAILURE OR REFUSAL TO RECEIVE APPROVED COVID-19 VACCINATION
I am writing to you, pursuant to section 44 of the Public Sector Employment and Management Act 1993 (the Act), to advise you that I suspect that there are "inability or performance grounds" which exist in respect to your employment.
In particular, with reference to sections 44(1)(a) and (b) of the Act, I suspect that you are not able and/or not suitable to perform the duties assigned to you.
Particulars
The basis upon which I suspect there may be inability and performance grounds for your employment are as follows:
(a) You are an ongoing employee of the Department working as a Firefighter
Chief Health Officer Directions No. 55 2021
(b) On 13 October 2021, the Northern Territory Chief Health Officer issued "COVID-19 Directions (No. 55) 2021: Directions for mandatory vaccination of workers to attend the workplace" (CHO Directions No. 55).
(c) CHO Directions No. 55 took effect at 12:00 noon on 13 October 2021 and remain in force.
(d) Direction 4 of CHO Directions No. 55 provide that the Directions apply to workers:
(i)who during the course of work, are likely to come into contact with a vulnerable person;
(ii)who are at risk of infection with COVID-19 because the workers, during the course of work, are likely to come into contact with a person or thing that poses a risk of infection;
(iii)whose workplace poses a high risk of infection with COVID-19; or
(iv)who perform work that is necessary for the operation or maintenance of essential infrastructure or essential logistics in the Territory; and
(e) I am satisfied that Direction 4 of CHO Directions No. 55 applies to your workplace because categories (i), (ii) and (iii) above
(f) Direction 6 of CHO Directions No. 55 provides that:
For the period starting on 13 November 2021 and ending on 24 December 2021, a worker who has not received the first dose of an approved COVID-19 vaccine must not attend the worker's workplace.
(g) Direction 10 of CHO Directions No. 55 relevantly provides that:
A person conducting a business or undertaking must ensure that any worker who performs work for the person must not attend the worker's workplace contrary to direction 6.
Direction to Advise Vaccination Status
(h) On 22 October 2021, the Chief Executive Officer:
(i)published the Northern Territory Police Fire and Emergency Services COVID-19 Vaccination Instruction and Policy; and
(ii)notified you and all workers at the Northern Territory Police Fire and Emergency Services that CHO Directions No. 55 applied to your workplace.
(i) On 26 October 2021:
i.the Chief Executive Officer directed You and all workers at Your workplace to advise their vaccination status by no later than 2 November 2021 (Direction 1 of 2021); and
ii.You were sent a reminder of this direction on 5 November 2021 and 10 November 2021.
(j) On 12 November 2021, you advised Mr Eric Koomen that you had not received the first dose of an approved COVID-19 vaccine and you did not intend to do so before 13 November 2021.
(k) On 10 November 2021, you were directed not to attend your workplace until further notice
(l) As at 12 November 2021, you had not entered any COVID-19 vaccination information into the myHR Vaccination register
(m) For the reasons set out in particulars (a) to (l) above, CHO Directions No. 55 require that you must not attend your workplace, and I must ensure that you do not do so.
(n) I am not able to provide you with suitable alternate duties in a workplace that is not subject to CHO Directions No. 55.
As you are not able to perform your duties in any reasonably available workplace, I have reasonable grounds to suspect that there are inability and performance grounds in relation to your employment because:
1.you are not able to perform the duties assigned to you - for section 44(1)(a) of the Act; and/or
2.you are not suited to perform the duties assigned to you - for section 44(1)(b) of the Act.
However, before I make a decision in that regard, I invite you to make submissions to me as to whether you agree with my suspicion, or provide me with any comments you may have in relation to the matters set out in particulars (a) to (n) above.
Your submissions should be in writing and must reach me no later than close of business Thursday 18 November 2021 after you receive this letter.
Suspension Pending Investigation
On the basis of the material set out above, I am of the opinion that the suspected inability or performance grounds are of such a serious nature that you should not perform the duties you have been assigned to perform pending the making of a final decision. Pursuant to section 47 of the Act I foreshadow an intention to suspend you from duty, with remuneration, for a period of 3 months or until the suspension otherwise ceases in accordance with section 47(4) of the Act.
However, before I take action to suspend you, I invite you to make a submission to me in relation to the foreshadowed intention to suspend you from your duties, including whether any suspension should be with or without remuneration. Your submissions should be in writing and must reach me no later than close of business Tuesday 16 November 2021.
You are not required to attend for duty while you prepare your submissions and I encourage you to take this time to consider and prepare your submissions. Your IT and building access will be suspended from midnight Friday 12 November 2021. If you require access to your pay slips or other personnel information please contact DCDD Workforce Services via email [redacted] or phone [redacted].
I enclose for your information copies of:
· Direction 1 of 2021 from CEO NTPFES;
· CHO Directions No. 55;
· Part 7 of the Act;
· Employment Instruction No. 3 - Natural Justice; and
· Employment Instruction No. 6 - Performance and Inability.
…
Yours sincerely
Mr Mark Spain
Chief Fire Officer
12 November 2021”
(My emphasis)
On 17 November 2021, CFO Spain wrote to the Applicant suspending him from duty with remuneration:
“Dear Ms (sic) Joyce
RE: Notice of suspension from duty with remuneration
I refer to my letter dated 12 November 2021 in which I invited you to respond to why you should not be suspended from duty with remuneration, under section 47 of the Public Sector Employment and Management Act 1993 (the Act) in relation to the following inability and performance grounds:
· that you are not able to perform the duties assigned to you - for section 44(1)(a) of the Act; and/or
· that you are not suited to perform the duties assigned to you - for section 44(1)(b) of the Act.
I have not received any response from you and consequently, in accordance with section 47 of the Act I have decided to suspend you from duty with remuneration for the reasons set out in my previous correspondence.
Your suspension will take effect immediately from the date of this letter and will remain in place pending the making of a final decision in relation to the suspected inability and performance grounds.
If you want to make a further submission in respect to the particulars as outlined in my previous correspondence, please do by Monday 22 November 2021, to email: [redacted]. I will write to you further, to foreshadow my intentions with regard to your employment by 24 November 2021. In this next correspondence, I will take into account all submissions received.
My previous directions to you continue to apply.
Available Support
…
If you are aggrieved by my decision you may request a review of the action by the Commissioner for Public Employment in accordance with section 59(1)(b) of the Act. Grievances may lodged at [redacted] within 3 months of your receipt of this letter.
Public Sector Appeals and Grievance Reviews may be contacted for advice on [redacted].
…Yours sincerely
Mr Mark Spain AFSM
Chief Fire Officer
17 November 2021”
(My emphasis)
The Applicant provided a written submission to CFO Spain on 18 November 2021 by email:
“Dear Sir
I write with regard to the matter of a potential COVID vaccine and my desire to be fully informed and appraised of all facts before going ahead. I have been working diligently and loyalty in the NTPFES for the past 18 years. Before that I worked for 4 years as a Tour Guide in the Top End working closely with international travellers and Traditional Owners of various communities. I have also served as an Infantry Soldier for my country for 4 years.
I have emailed W/C Koomen on a couple occasions with my concerns and request for further information, but he was unable to answer my questions. I did inform W/C Koomen that I was not able to fill out vaccination status because no options were available to my situation.
Furthermore the letter I received on Monday 12/11/2021, bottom of the 2nd page states submissions should reach you no later than close of business Thursday 18 November 2021 which is today. I have highlighted and attached document. On the letter I received yesterday I'm addressed as Ms Joyce.
I would be most grateful if you could please provide the following information in accordance with statutory legal requirements.
1.Can you please advise me with documentation of the approved legal status of the 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 controlled groups and the subsequent documented outcomes of those tests.
3.Can you provide the full contents of the vaccines I am to receive and if any are toxic to the body.
4.Can you please fully advise of all the adverse reactions of these vaccines.
5.Can you please confirm that I will not be under any duress from yourself as my employer in compliance with the Nuremberg Code.
6.Can you please advise me of the likely risk of fatality, should I be unfortunate to contract CoVID-19 and the likelihood of recovery
7.Can you please provide documentation of the isolation of the CoVID-19 and any variants.
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 conditions namely that:
1.You will confirm 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, now and in the future.
3.In the event that I should have to decline the offer of vaccination, that I 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.
This is my submission.
Regards
Firefighter Neil Joyce”
On 19 November 2021, CFO Spain wrote to the Applicant, foreshadowing an intention to terminate the Applicant’s employment:
“Dear Mr Joyce
RE: Section 46(1)(c) Public Sector Employment and Management Act 1993- Foreshadowed intention to terminate employment
I refer to my letter dated 12 November 2021 in which I notified you that I suspected there are reasonable grounds for me to be satisfied that there are inability or performance grounds under section 44(1)(b) of the Public Sector Employment and Management Act 1993 (the Act) in relation to your employment as a Firefighter.
In the correspondence I detailed the inability and performance grounds and invited you to provide a submission to me as to whether you agree with my suspicion, or provide me with any comments you may have in relation to the matters set out in the particulars. The relevant inability and performance grounds are:
· that you are not able to perform the duties assigned to you - for section 44(1)(a) of the Act; and/or
· that you are not suited to perform the duties assigned to you - for section 44(1)(b) of the Act.
On 18 November 2021 I received your submission in response to my letter dated 17 November 2021, in which you did not address my view that inability or performance grounds exist.
In your submission you have requested additional information to assist in determining whether you will comply with the CHO Direction No. 55 of 2021. The information you have requested would be best placed with your treating Doctor to address, given the nature of the information you have requested is medical related.
I have carefully considered your submission; however, I remain of the view that, because you have failed to update your COVID-19 vaccination status in myHR, and you do not have a contraindication to all approved vaccines:
· you are not permitted to enter your workplace;
· I must not permit you to enter your workplace;
· you are unable to perform the duties assigned to you, until such time as you can comply with CHO Direction No. 55 of 2021; and
· no alternative duties are reasonably available.
Having determined that there are inability or performance grounds, I must now consider what is reasonable and appropriate action to take in the circumstances and in light of the actions available to me under section 46(1) of the Act (attached).
Having given serious consideration to all of the above matters and the actions available to me under 46(1) of the Act, I hereby foreshadow my intention to terminate your employment pursuant to section 46(1)(c) of the Act.
Before I take action to terminate your employment, I invite you to make a submission to me in relation to the foreshadowed intention to terminate your employment. Your submissions should be in writing and must reach me no later than close of business 25 November 2021. I will write to you further, to confirm my actions by 29 November 2021. In making my final decision, I will take into account any submission received.
Further, I refer to my letter dated 17 November 2021 where I advised that I decided to suspend you from duty with remuneration until a final decision in relation to the suspected inability and performance grounds. Having now decided that there are inability or performance grounds, and having foreshadowed my intention to terminate your employment, I am now foreshadowing my intention to suspend you from duty without remuneration pursuant with section 47(2)(b) of the Act, until a final decision is made in relation to the action I take. You may wish to use your recreation leave or long service leave entitlements during this period.
Before I take action to suspend you from duties without remuneration, I invite you to make a submission to me in relation to the foreshadowed intention to suspend you from duties without remuneration. Your submissions should be in writing and must reach me no later than close of business 22 November 2021.
My previous directions to you continue to apply.
Available Support
…Yours sincerely
Mr Mark Spain AFSM
Chief Fire Officer
19 November 2021”
(My emphasis)
On 23 November 2021 CFO Spain further wrote to the Applicant:
“Dear Mr Joyce
RE: Notice of suspension from duty without remuneration
I refer to my letter dated 19 November 2021 in which I invited you to respond to why you should not be suspended from duty without remuneration, under section 47 of the Public Sector Employment and Management Act 1993 (the Act) in relation to the following inability and performance grounds:
· that you are not able to perform the duties assigned to you - for section 44(1)(a) of the Act; and/or
· that you are not suited to perform the duties assigned to you - for section 44(1)(b) of the Act.
I have now carefully considered the material before me, including your response dated 23 November 2021; noting this was received after the submission due date, that being close of business 22 November 2021.
I note in particular your view that you should be paid sick leave "... in relation to a number of other health matters, not matters pertaining to contraindication pertaining to COVID19 (sic)."
Section 47(5) of the Act does not provide for access to personal (sick) leave where an employee is suspended pending a decision. I refer you to my correspondence dated 17 November 2021 in which you were suspended, effective immediately, with remuneration. Therefore, I am unable approve the use of personal leave during the period of your suspension.
You further advised "As I am now not working physically in the workplace and nor dealing with clients (sic) stakeholders and or other employees and nor vulnerable persons in the workplace, I am not contravening and I am comply with COVID19 Directions (Number 55) 2021 issued by the Northern Territory Government Chief Health Officer."
I take this opportunity to remind you that the Fire and Emergency Act 1996 (NT), in which the Chief Fire Officer may enact powers under Section 9, would allow for a recall to duty should the workforce be impacted by an outbreak of COVID-19. Therefore I require all employees, irrespective of their current leave arrangements, to be compliant with the CHO Direction No. 55 in order to perform the duties assigned to you.
Having now carefully considered your response, I am satisfied, that based on the information before me, you have not complied and do not intend to comply with CHO Direction No. 55.
In accordance with section 47 of the Act, I have decided to suspend you from duty without remuneration as I am of the opinion that, because you have failed to update your COVID-19 vaccination status in myHR and you do not have a contraindication to all such approved vaccines:
· you are not permitted to enter your workplace;
· I must not permit you to enter your workplace;
· you are unable to perform the duties assigned to you, until such time as you can comply with CHO Direction No. 55 of 2021; and
· no alternative duties are reasonably available.
Your suspension will take effect immediately from the date of this letter and will remain in place pending a final decision in relation to the foreshadowed action to terminate your employment. You may wish to use your recreation leave or long service leave entitlements during this period.
During your suspension you are directed to not attend the workplace or any other departmental workplace in relation to the performance of your duties.
While this inability process is ongoing I direct you to make yourself available for the purpose of assisting with any investigations or inquiries relating to this matter.
You are further reminded that your obligations under the Code of Conduct continue to apply throughout and following the conclusion of this process.
It is anticipated that I will make a final decision no later than Monday 29 November 2021.
Available Support
…
Yours sincerely
Mr Mark Spain AFSM
Chief Fire Officer
23 November 2021”
The Applicant provided the Respondent with a medical certificate dated 25 November 2021, stating that he was unfit to attend work from 25 November 2021 to 8 December 2021.
The Applicant was terminated with immediate effect on 30 November 2021:
“Dear Mr Joyce
RE: Termination of Employment - Inability to Perform Your Duties
I refer to my letter dated 19 November 2021 in which I advised you of my findings that there were inability and performance grounds in relation to your employment, under sections 44(1)(a) and 44(1)(b) of the Public Sector Employment and Management Act 1993 (the Act).
My letter also foreshadowed my intention to terminate your employment in the NT Public Sector, under section 46(1)(c) of the Act, and invited you to make submissions as to why I should not take that action.
I have now carefully considered the material before me, including your response dated 23 November 2021; noting this was received after the submission due date, that being close of business 22 November 2021.
I note in particular your view that you should be paid sick leave "... in relation to a number of other health matters, not matters pertaining to contraindication pertaining to COVID19 (sic)."
As I outlined in my letter dated 23 November 2021 Section 47(5) of the Act does not provide for access to personal (sick) leave where an employee is suspended pending a decision. I referred you to my correspondence dated 17 November 2021 in which you were suspended, effective immediately, with remuneration. Therefore, I was unable approve the use of personal leave during the period of your suspension.
You further advised 'As I am now not working physically in the workplace and nor dealing with clients (sic) stakeholders and or other employees and nor vulnerable persons in the workplace, I am not contravening and I am comply with COVID19 Directions (Number 55) 2021 issued by the Northern Territory Government Chief Health Officer. "
As I outlined in my letter dated 23 November 2021, NTFRS members may be recalled to duty and therefore I require all employees, irrespective of their current leave arrangements, to be compliant with the CHO Direction No. 55 in order to perform the duties assigned to you.
Having given the matter careful consideration, I maintain my earlier findings that because:
1.You have not received the first dose of an approved COVID-19 vaccine, Directions 6 and 10 of CHO Directions No. 55 of 2021 require that you must not attend your workplace, and I must not allow you to do so; and
2.I am not able to provide you with suitable alternate duties in a workplace that is not subject to CHO Directions No. 55 of 2021
you are not able to perform the inherent requirements of your duties, under section 44(1)(a) of the Act, and/or you are not suited to perform the inherent requirements of your duties, under section 44(1)(b) of the Act.
Remedial Action
As you have not provided evidence that you have received the first dose of an approved COVID-19 vaccine I remain satisfied, on reasonable grounds, that the only reasonable and appropriate remedial action available to me is to terminate your employment under section 46(I)(c) of the Act.
Notice of Termination
Pursuant to section 46(1)(c) of the Act, I hereby terminate your employment in the NT Public Sector with effect from the date of this letter.
In accordance with section 117 of the Fair Work Act 2009 you will receive a payment in lieu of being given notice of termination.
Under section 59A of the Act you may appeal against my decision. Any appeal must be lodged within 14 days after you receive this letter with:
[redacted]
If you would prefer, you may wish to make make (sic) an unfair dismissal application to the Fair Work Commission. More information is available at: …
Yours sincerely
Mr Mark Spain AFSM
Chief Fire Officer
30 November 2021”.
The matter was listed for Hearing by Microsoft Teams on 5 April 2022.
The Applicant appeared on his own behalf at the Hearing, with Ms Kumnick, his mother, present as a support person. The Respondent was represented by Mr Brian Mappas, Employee Relations Manager Office of the Commissioner for Public Employment Northern Territory Government.
The Applicant appeared and gave evidence on his own behalf. On behalf of the Respondent, Mr Mark Spain, Chief Fire Officer, appeared and gave evidence.
Further, the Applicant notified the Commission on 29 April 2022 advising that the Respondent had breached the Agreement in relation to minimum manning on 19 March 2022 at Alice Springs, where a shift was conducted without any off duty firefighters being compulsorily called in to work.
The Hearing was re-commenced on 30 May 2022 to ascertain the accuracy of this information.
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.”
The relevant section of the Public Sector Employment and Management Act 1993 (NT) (PSEM Act) as cited by the Respondent is as follows:
“47 Employee may be suspended pending decision
(1) This section applies if the Chief Executive Officer of an Agency:
(a) suspects there are inability or performance grounds for an employee in the Agency; and
(b) has not yet made a decision under section 44(2); and
(c) is of the opinion that the suspected inability or performance grounds are of such a serious nature that the employee should not continue performing the duties he or she is assigned to perform pending the making of that decision.
(2) The Chief Executive Officer may suspend the employee:
(a) for a period or periods not exceeding a total of 6 months; and
(b) with or without remuneration.
(3) The Commissioner may:
(a) extend the period of the suspension for any further period or periods the Commissioner thinks fit; or
(b) if the suspension imposed by the Chief Executive Officer has lapsed or been revoked – resuspend the employee for any further period or periods the Commissioner thinks fit.
(4) A suspension ceases when any of the following occurs:
(a) the period of the suspension expires;
(b) the Chief Executive Officer makes a decision under section 44(2);
(c) the Chief Executive Officer or Commissioner revokes the suspension.
(5) An employee who is suspended under this section:
(a) does not accrue any leave for the period of the suspension; but
(b) may, during the period of the suspension, take any long service or recreation leave to which the employee was entitled at the time the suspension was imposed.
(6) If the Chief Executive Officer makes a decision under section 44(2) in relation to an employee suspended under this section:
(a) the employee must be credited with any leave that would have accrued to the employee for the period of the suspension had the employee not been suspended; and
(b) if the suspension was without remuneration for any period – the employee must be paid the remuneration to which the employee would have been entitled for that period had the employee not been suspended; and
(c) if the employee took leave as mentioned in subsection (5)(b) – the employee must be re‑credited with the leave so taken.
(7) Subsection (6) does not apply if the employee's employment is terminated under section 46(1)(c).”
The relevant section of the Fire and Emergency Act 1996 (NT) as cited by the Respondent is as follows:
“9 Powers and functions of Chief Fire Officer
(1)Subject to the directions of the Director, the Chief Fire Officer has operational responsibility for the Fire and Rescue Service.
(2)The Chief Fire Officer has power to do all things that are necessary or convenient to be done for or in connection with or incidental to the performance of his or her functions and the exercise of his or her powers.”
Applicant’s Submissions
The Applicant relied on his Form F2 – Unfair dismissal application as satisfying his submissions in this matter.
The Applicant submitted that a valid reason for dismissal must also be objectively valid. The reason must be “defensible or justifiable on an objective analysis of the relevant facts”.[1] The Applicant submitted that a valid reason for the purposes of s.387(a) of the FW Act is a reason which is “sound, defensible or well-founded” rather than “capricious, fanciful, spiteful or prejudiced”.[2]
The Applicant submitted that his dismissal was harsh, unjust, unfair and was invalid. The Applicant submitted that his dismissal was effected based on a template ‘one size fits all’ approach which was erroneous and made without diligent consideration of all relevant facts. Further, the Applicant submitted that the Respondent engaged in serious mismanagement and made a flawed and unlawful decision.
The Applicant submitted that the Northern Territory Fire and Rescue Service (NTFRS) was aware, via his medical certificates, that from 10 November 2021 to 8 December 2021, he was on sick leave in compliance with section 97 and 352 of the FW Act. The Applicant submitted that he had provided two medical certificates confirming that he was on legitimate sick leave from 10 November 2021 to 8 December 2021. The Applicant submitted that the CHO Direction No. 55 could not override sections 97(a), 107 and 352 of the FW Act.
The Applicant submitted that his ‘sick leave certificates’ were in relation to a number of other health matters and not matters pertaining to a contraindication to a COVID-19 vaccination, and therefore his employer was still obligated to honour those medical certificates in compliance with sections 97(a) and 352 of the FW Act.
However, the Applicant submitted that the Respondent was operating under the ‘mistaken and misguided’ belief that because the medical certificates were not pertaining to a contraindication to the COVID-19 vaccine, they were somehow ‘illegitimate medical certificates’ and did not comply with section 97(a) of the FW Act. The Applicant submitted this was nonsensical and wrong at law, constituting serious mismanagement by the Respondent.
For completeness, the Applicant extracted the relevant sections of the Act as follows:
“97 Taking paid personal/carer’s leave
An employee may take paid personal/carer’s leave if the leave is taken:
(a) because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or
(b) to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of:
(i) a personal illness, or personal injury, affecting the member; or
(ii) an unexpected emergency affecting the member.”
“352 Temporary absence—illness or injury
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.”
The Applicant submitted that he was on ‘legitimate sick leave’ for the period covered by the medical certificates, and therefore the Respondent had obligations to him pursuant to sections 97 and 352 of the FW Act. The Applicant relied here on the decision in Kavassilas v Migration Training Australia Pty Ltd (No.2 )[3] in which Federal Magistrate Matthew Smith found that Migration Training Australia (MTA) had acted unlawfully in dismissing the general manager after she took two days of sick leave she was entitled to under her employment contract and fined the employer $20,000 for contravening sections 97 and 352 of the FW Act and awarded $37,000 compensation to the employee as well as $57,000 in legal costs.
The Applicant further submitted that the Respondent had wrongfully adopted a ‘one size fits all’ approach regarding his employment, noting that as he was absent from work on ‘legitimate sick leave’, he was not in the workplace nor dealing with stakeholders, other employees or members of the public and was therefore not contravening section 3512(b) of the FW Act dealing with inherent requirements. The Applicant submitted that in not accepting his medical certificates, the Respondent carried out unreasonable management action which did not comply with s.3A of the Return to Work Act (NT) and s.789 of the FW Act.
For completeness, s.3A of the Return to Work Act (NT) provides:
“3A Injury
(1) An injury, in relation to a worker, is a physical or mental injury arising out of or in the course of the worker's employment and includes:
(a)a disease; and
(b)the aggravation, acceleration, exacerbation, recurrence or deterioration of a pre-existing injury or disease.
(2) Despite any other provision of this Act, a mental injury is not considered to be an injury for this Act if it is caused wholly or primarily by one or more of the following:
(a)management action taken on reasonable grounds and in a reasonable manner by or on behalf of the worker's employer;
(b)a decision of the worker's employer, on reasonable grounds, to take, or not to take, any management action;
(c)any expectation by the worker that any management action would, or would not, be taken or any decision made to take, or not to take, any management action.”
The Applicant relied here on the Northern Territory Supreme Court of Appeal decision in Faye Rivard v Northern Territory of Australia,[4] which considered ‘unreasonable management action’. The Applicant also relied on Commission decisions in Tao (Selina) Qu v Monards Pty Ltd[5] and Michelle D’Souza v Woolworths Group Ltd[6] in relation to what constitutes unreasonable management action.
The Applicant submitted that he had not engaged in serious misconduct as defined in s.12 of the FW Act and Regulation 1.07 of the Fair Work Regulations (FW Regulations). Further, the Applicant submitted that he is entitled to 90 calendar days unpaid sick leave, subject to medical certificates, pursuant to s.352 of the FW Act and Regulation 3.01 of the FW Regulations.
The Applicant submitted that the decision of CFO Spain to ‘unilaterally cancel [his] sick leave and dismiss [his] employment’ was in contravention of ss.97(a), 107 and 352 of the FW Act and s.5F(1) of the Public Sector Employment and Management Act (NT) (PSEM Act), which states:
“5F(1) a public sector officer must do the following:
(a) carry out the officer’s duties as follows
(i) objectively, impartially, professionally and with integrity”.
The Applicant maintained that as he was on ‘legitimate sick leave’ when he was dismissed, the Respondent was not able to ignore its obligations under ss.97(a) and 97(b) of the FW Act simply because the certificates did not relate to a contraindication to the COVID-19 vaccine.
The Applicant cited the Commission decision in Manojkumar Pradhan v Amcor Flexibles (Australia) Pty Ltd,[7] in which it was stated:
“[110] Sections 352 and 772 of the Act prohibit an employer from dismissing an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations. Section 352 is the relevant section governing Mr Pradhan’s termination as he was employed by a constitutional corporation…
[111] Mr Pradhan was, as of 22 February 2021, temporarily absent from work because of an injury of a kind prescribed by Regulation 3.01. Parliament has determined that employees must not be dismissed within three months of being on unpaid leave because an employee has a temporary illness or injury. This is entirely fair, as employees will, at various stages of their working life have to take time off work to deal with various illnesses or injuries.
…
[113] In Rezaeifard v Green Leaves ELC Pty Ltd T/A Green Leaves [2021] FWC 5905, I determined the following, in a similar factual scenario where Mrs Rezaeifard experienced a personal injury and was dismissed while on unpaid leave, a short while after her unpaid leave commenced:
“[107] Employees should not lose their job if they have to take six weeks off work to mend a broken bone. Not all employees will have a balance of six weeks of paid personal leave to cover such a scenario. Nor should employees lose their job if they are having surgery such as a hysterectomy, or retina attachment, or are recovering from hepatitis. A three month protection is in place for very good reason.
[108] Disappointingly and disturbingly, the Respondent was not aware of the obligations within the Act not to dismiss an employee on unpaid leave within this important timeframe. It blindly determined that she could not, in mid-September 2020, perform the inherent requirements of the role, or any available role, and therefore must be dismissed…”
The Applicant outlined that in Rezaeifard v Green Leave ELC Pty Ltd trading as Green Leaves[8] it was found:
“[2] Mrs Rezaeifard commenced employment with Green Leaves on 28 August 2019 and was dismissed on 18 September 2020.
…
[164] I have determined that the Respondent is to pay to Mrs Rezaeifard ten weeks’ compensation.”
The Applicant submitted that as he was on sick leave and, therefore, not in the workplace for the period 10 November 2021 to 8 December 2021, he was in fact complying with the CHO Direction No 55. The Applicant submitted that his dismissal on 30 November 2021 was accordingly ‘wrong at law’ and in contravention of the FW Act.
The Applicant submitted that he had a workplace right pursuant to ss.340 and 341 of the FW Act to assert his workplace right to take sick leave pursuant to ss.97 and 352 of the FW Act.
The Applicant submitted that the Respondent terminated his employment:
“based on verbal subjective strident communications in the NT Media by an NT Politician without thorough and diligent appraisal of all the corrects facts relating to my specific circumstances and my employer has applied an unsophisticated and erroneous tick and flick one size fits all serious mismanagement approach and has now invalidly, harshly, unfairly and unjustly dismissed my employment”.
Further, the Applicant submitted that the Respondent conducted a procedurally unfair process, and relied here on the decision in Karen Jones v Northern Territory Commissioner for Public Employment (Jones)[9] which states:
“[64] The evidence is that the applicant did not have the opportunity of meetings or face-to-face discussions over the period from 19 October 2011 to 13 January 2012. Without such meetings she did not have the opportunity for representation or support persons to assist with discussions with the respondent. Prior to that period the applicant had only two meetings with team leaders or a manager from the commencement of her employment on 14 June 2011. Given the list of grievances that the applicant provided to the respondent and the characterisation of the environment in which she was fulfilling the respondent’s work requirements which ultimately is illustrated prior to dismissal when the applicant informed the respondent she feared for her own safety. The tribunal has formed a view the respondent’s actions referred to above as a “disciplinary process by correspondence” have been too extended and carried out in such a manner that they resulted in unnecessary effects upon the applicant.
[65] The respondent’s evidence on Natural Justice [Employment Instructions Number 3] has a guideline which indicates:
“The exact requirements of a fair hearing will vary depending on the circumstances, including the seriousness of the foreshadowed action and the extent to which the person will be adversely affected by the decision. In general, the more serious the consequences of a decision for an employee the more rigorously the principle of natural justice should be applied.”
[66] In the tribunal’s view the above scenario does not meet the test of a reasonable consideration of procedural fairness inherent in the provisions of s.387(c) and (d) of the Fair Work Act (Cth).
…
[68] In these circumstances the tribunal does not accept that the applicant has had a viable opportunity to respond to the employer in these circumstances or that she had the opportunity for a support person in discussions. The respondent has applied a less than a procedurally fair approach to a significant disciplinary process.”
The Applicant submitted that despite the decision in Jones, which also involved the Respondent, the Respondent continues to ignore its obligations as explained by Commissioner Steel and continues to contravene their procedural fairness obligations pursuant to s.387 of the FW Act, as occurred in the present case.
The Applicant also noted that in Jones, the applicant had only been employed for seven months and the Commissioner awarded her 12 weeks’ compensation, factoring in that she had been paid 1 weeks’ notice.
The Applicant further relied on the decision in Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal,[10] asserting that the Respondent did not adequately consult with him as required, and the 7 day timeframe between his letter of suspension without remuneration (23 November 2021) and his letter of termination (30 November 2021) was unreasonable and inadequate. The Applicant submitted that this is further evidence of the Respondent’s serious mismanagement and erroneous decision-making regarding his unfair, harsh and unjust dismissal.
Remedy
The Applicant seeks reinstatement at no less remuneration and in the same substantive position he held prior to his dismissal.[11] The Applicant also seeks payment of wages from the date of his dismissal to the date of his reinstatement, and for this period to be recognised as continuous employment service pursuant to s.22 of the FW Act.
The Applicant acknowledged that since his dismissal, he had received some remuneration for recreational leave and/or long service leave.
In the event reinstatement is found to be an inappropriate remedy, the Applicant seeks 26 weeks’ pay pursuant to s.392(6) of the FW Act.
Respondent’s Submissions
The Respondent submitted that following due process, the Applicant’s employment was terminated on 30 November 2021 under the PSEM Act on the basis that he was not able to perform the inherent requirements of his job.
The Respondent submitted that the Applicant’s dismissal was not harsh, unjust or unreasonable for the following reasons.
Section 387(a) – valid reason
The Respondent relied on CFO Spain’s witness statement filed in these proceedings as demonstrating that there was a valid for the dismissal relating to the Applicant’s capacity to perform the inherent requirements of his job. The Respondent submitted that the Commissioner of Police/CEO had determined all jobs within Police, Fire and Emergency Services (PFES) fell within one of the categories of workers who were required to be vaccinated with an approved vaccine otherwise they were precluded from attending the workplace. As at 13 November 2021, the Applicant had not received a first dose of an approved COVID-19 vaccine, the Applicant did not have evidence of a contraindication to the approved vaccines and the Applicant had not indicated that he had an appointment to receive a vaccination such that some flexibility might be afforded, for example, a short period of leave.
The Respondent submitted that in circumstances where an employee is unable to perform the inherent requirements of their job, s.44 of the PSEM Act applied. For completeness, s.44 provides:
“44 Inability or unsatisfactory performance
(1)There are inability or performance grounds for an employee if the employee:
(a)is not able to perform the duties he or she is assigned to perform (whether because of physical or mental illness or disability or any other reason); or
(b)is not suited to perform, or capable of efficiently performing, those duties; or
(c)is not licensed, registered or otherwise qualified for the efficient and satisfactory performance of those duties; or
(d)is not performing those duties efficiently or satisfactorily.
(2) the Chief Executive Officer of an Agency is satisfied, on reasonable grounds, that there are inability or performance grounds for an employee in the Agency, the Chief Executive Officer may take action in relation to the employee under section 46(1)…”
The Respondent submitted that the Applicant was a Firefighter and the CEO was unable to find suitable alternative duties that were not subject to the CHO Direction, as all jobs within the PFES were considered to fall within one or more of the categories specified by the CHO as requiring workers to be vaccinated. The Respondent submitted that had the Applicant been allowed to attend the workplace, the CEO would have committed an offence under the Direction leaving himself and PFES open to prosecution and a maximum fine of $25,120. The Respondent submitted that the actions available to the CFO under s.46(1) of the PSEM Act included taking no further action, ordering training or counselling or other remedial activities, reducing pay, transfer or termination. The Respondent submitted that in circumstances where the Applicant was not vaccinated, had indicated that he would not get vaccinated, and could not be placed in alternate duties where the CHO Direction did not apply, the CFO had no alternative but to terminate the Applicant’s employment.
Section 387(b) and (c) – notification of the reason and opportunity to respond
The Respondent submitted that the Applicant was notified of the reason for considering dismissal and was provided with a number of opportunities to respond.
The Respondent submitted that following the CHO Direction of 13 October 2021, at least eight notices were sent to all employees in PFES advising of the CHO Direction, its requirements and its impact on employment. The Respondent submitted that following these advices, the Applicant received specific and detailed correspondence on 12 November, 17 November, 19 November and 23 November and 30 November 2021 and was invited to make submissions on each occasion. The Applicant made submissions on 18 November and 23 November 2021.
The Respondent submitted that these responses were considered by the CFO before a decision was made regarding the Applicant’s employment.
Section 387(d) – support person
The Respondent submitted that there was no request by the Applicant to meet to discuss the inability proceedings and therefore the question of whether there was an unreasonable refusal by the employer to allow a support person to assist at any discussions relating to the dismissal does not arise.
Section 387(e) – unsatisfactory performance
The Respondent submitted that the dismissal did not relate to the Applicant's unsatisfactory performance. The Respondent submitted the dismissal arose because the Applicant chose not to be vaccinated and, consequently, was precluded from attending work and the employer was not permitted to allow the Applicant to attend. The Respondent submitted that as the Applicant could not attend, he could not perform the inherent requirements of his job.
Section 387(f) and (g) – size of the enterprise and HR management
The Respondent submitted that whether the size of its enterprise impacted on the procedures followed and the degree of dedicated human resource management were not matters that the Respondent wished to raise.
Responses to the Applicant’s contentions
As to the various case authorities cited by the Applicant, the Respondent submitted that in relation to most, the Applicant has not provided the relevant legal principle or precedent the case has set/made and how that applies to the present matter.
While the Applicant contended that because he was on personal leave his employment could not be terminated as it would be a breach of s.352 of the FW Act, the Respondent submitted that this submission misconstrues s.352 which prohibits an employer for dismissing an employee “because the employee is temporarily absent from work because of illness or injury…”.
The Respondent submitted that the Applicant was not terminated because he was on personal leave, rather it was because he could not perform the inherent requirements of his job. The Respondent submitted this was the product of the Applicant choosing not to be vaccinated by 13 November 2021 as required by the CHO Direction, resulting in him not being permitted to attend the workplace and the employer not being able to permit him to attend.
While the Applicant seems to advance an argument that the Respondent has misunderstood the difference between a medical certificate for personal leave and one for a contraindication, the Respondent refuted this assertion and submitted the argument is irrelevant.
As to the Applicant contending that the Respondent not accepting his medical certificates constitutes unreasonable management action, the Respondent submitted that the CFO acted in accordance with the provisions of the Act, including s.47(5) of the PSEM Act. The Respondent submitted that it afforded the Applicant procedural fairness and could not be taken to satisfy any claim of unreasonable action.
As to the Applicant’s citation of and reliance on s.3A of the Return to Work Act (NT), the Respondent submitted that section applies to situations where an employee is making application for a work-related injury which does not apply in the present case. The Respondent submitted the Applicant’s citation is therefore unclear.
As to the Applicant’s contention that the dismissal was based on a ‘one size fits all approach’, the Respondent acknowledged that the template letters were prepared that would form the basis for communicating with employees, however, it submitted that was not surprising and would be expected to ensure that the process for each employee was consistent with the requirements of the Act. The Respondent submitted that these templates were designed to be amended as necessary to encompass the specific facts and issues for each employee.
The Respondent relied on CFO Spain’s evidence to demonstrate that the issues raised by the Applicant at each stage in the process were considered by the CFO prior to any decisions being taken.
While the Applicant contended that as he was on sick leave and not physically working in the workplace, therefore, he could not have been contravening Direction 55/81, the Respondent submitted this is ‘technically correct’, however, was only existing at that given point in time and for a specified period. The Respondent noted that similarly, if someone was on a day off, applying that logic would result in them also not contravening the CHO Direction for that limited period. The Respondent submitted that at the end of these specified periods, it was expected that an employee would be able to return to work immediately and without delay (e.g. not having to wait for an appointment to receive a first vaccination and then waiting for another 4 weeks before the second dose can be administered). The Respondent submitted that requiring an employer to work around this assertion would leave the employer not knowing who was available and when, severely impacting the employer’s ability to manage its human resources efficiently and effectively deliver its services.
The Respondent submitted that the proper approach is to not give weight to these temporal circumstances when considering whether an employee on leave is required to be vaccinated under Direction 55/81.
The Applicant has contended that he had not engaged in serious misconduct as defined in section 12 of the FW Act. The Respondent agreed with the Applicant on this point.
The Respondent submitted that the Applicant appears to contend that the decision of a single Commissioner in Jones establishes that the obligation to provide natural justice for s.387(c) of the FW Act includes an obligation to hold face to face meetings with the employee as distinct from providing the employee with an opportunity to respond to reasons for dismissal in some other way. The Respondent submitted that in a unanimous decision of a Full Bench of the Commission in Bluescope Steel v Agas[12] at paragraph [77], the Full Bench stated:
“[77] In summary, the Commissioner failed to make requisite findings about the criteria set out in s.387(b), (c) or (d)of the Act. If he had - based on the evidence - he would have been bound to conclude that BlueScope had notified Mr Agas of the reason they were considering dismissing him, had given him an opportunity to respond to that reason and had not unreasonably refused to allow him a support person at any relevant discussions. Despite this, the Commissioner found that ‘the investigative process’ was procedurally unfair. He did this by substituting an alternative notion of procedural unfairness to that set out in the Act. The process was unfair he found because it ‘did not involve an interview with the relevant employee.’ The requirements are those set out in s.387(b), (c) and (d); whether to conduct an interview is a matter for the person conducting the investigation. In this case, Mr Agas well knew the basis of BlueScope’s concerns, and had ample opportunity to present his case. There were no sound grounds for finding that there was any procedural unfairness. Mr Agas’s union made written representations for BlueScope to consider. Moreover, further representations were made at the show cause meeting and, relevantly, prior to the final decision to dismiss.”
(Respondent’s emphasis)
The Respondent submitted that the gist of the Full bench decision at paragraph [77] above, is that the Commissioner in that matter substituted an alternative notion of procedural fairness to that set out in the FW Act, and the same conclusion can be reached with respect to the Jones decision.
Conclusion
The Respondent submitted that the evidence provided demonstrates the Applicant’s dismissal was not harsh, unjust or unreasonable. However, in the event the Commission finds in the alternative, the Respondent requested an opportunity to make further submissions as to remedy.
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. The fact that an issue is not mentioned in this decision does not mean that it has not been taken into account.
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)[13] 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)[14] 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:[15]
“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,[16] 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)[17] 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.”
It is not in dispute that CHO Direction No. 55 applied to all Firefighters in the Northern Territory, including the Applicant. It is not in dispute that the Respondent had to comply with CHO Direction No. 55 or suffer financial penalties for breaching this Direction. On the basis that the Applicant was not willing to comply with CHO Direction No. 55, and the Applicant could not be redeployed or reallocated into a role where he did not need to be vaccinated, the Respondent had no option but to prevent the Applicant from attending the workplace. The Applicant may have been passed fit for work on either 26 November or 9 December 2021. The Respondent, being the provider of an emergency service, needed to ensure that its workforce was fit for purpose. The Respondent decided to terminate the Applicant based on the Applicant’s decision to not comply with the CHO Direction. I am satisfied and find that the Respondent’s action in terminating the Applicant was sound and well-founded.
Section 387(b) – Notified of the reason
It is not in dispute that the Applicant was notified of the reasons for his termination.
Section 387(c) – Opportunity to respond
The Applicant was given a number of opportunities to respond to the reasons for his termination.
Section 387(d) – Refusal of a support person
The Respondent did not arrange a meeting with the Applicant, nor invite an opportunity for a meeting. As there were no physical meetings ahead of the Applicant’s termination, this issue is not relevant.
Section 387(e) – Unsatisfactory performance
There were no issues of unsatisfactory performance raised by the parties. This issue is not relevant.
Section 387 (f) and (g) – Size of Enterprise and HR Staff – procedures followed
The Respondent did not seek to make any submissions on these matters. It is noted that the Respondent is large employer.
Section 387(h) – Any other matters
I am satisfied and find that CHO Direction No. 55 applies to all firefighters in the Northern Territory.
I do not dispute that the Applicant was in possession of legitimate medical certificates to cover his absences from 10 November to 8 December 2021. As was his right, the Applicant did not disclose the nature of his illness, at this point in time, to the Respondent. Therefore, the Respondent is unaware if the Applicant’s ailment would have prevented him from returning to work on 8 December 2021. However, the Respondent had an obligation to ensure that the Applicant was compliant with CHO Direction No. 55 when he returned to work. This scenario, based on the Applicant’s medical certificates, could have occurred on either 26 November or 9 December 2021.
I do not accept that the Applicant was not proffered the appropriate amount of natural justice by the Respondent. The Applicant was given numerous opportunities to respond to the Respondent’s correspondence. Relevantly, the Applicant never disputed or refuted the Respondent’s assertion that the Applicant had told his Manager that he had no intention of receiving a vaccination by 12 November 2021. The Applicant was seeking answers, guarantees and remedies that no individual or doctor would give any employee or patient in any circumstance. His requests and demands were strikingly similar to other applicants who have appeared before the Commission seeking an unfair dismissal remedy having been terminated during the COVID-19 pandemic. At the end of the day, the Applicant’s vaccination status is a matter for the Applicant.
Further, I do not accept the argument that section 352 prevents an employer from dismissing an employee whilst on sick leave. The FW Act is quite clear. An employer cannot dismiss an employee due to the fact that they are on sick leave. In this circumstance, the Applicant was dismissed because he could not comply with the inherent requirements of his job, not because he went on sick leave 2 days before the provisions of CHO Direction No. 55 applied to his employment.
At the reconvened hearing on 30 May 2022, CFO Spain advised that a gas truck had rolled on the Lassiter Highway approximately 200kms from Alice Springs. Due to the manning at this incident, the 10-hour Saturday day shift was one firefighter short, albeit in breach of the manning levels in the Agreement.
CFO Spain testified that he would only call in a firefighter from their recreational leave in exceptional circumstances and never for a short-term absence.
The Applicant submitted that the decision taken by CFO Spain in this circumstance is not consistent with his approach to employees who failed to comply with CHO Direction No. 55.
The Respondent submitted that the powers of the CFO to recall employees under the Fire and Emergency Act are only used in exceptional circumstances, such as COVID, where the number of firefighters available to be rostered for duty could be decimated as a result of a COVID cluster in a fire station.
I accept and find that CFO Spain is very careful and cautious in utilising his emergency powers under the Fire and Emergency Act, to recall employees from recreational leave. I accept that CFO Spain made a decision to not utilise these powers in relation to the staffing issue at Alice Springs on 19 March 2022.
Conclusion
I am satisfied and find that the Respondent had a valid reason to terminate the Applicant. CHO Direction No. 55 applied to the Applicant’s role as a Firefighter. The Applicant refused to be vaccinated in accordance with that Direction or provide a relevant contraindication, therefore, he could not attend work and, therefore, could not perform his duties.
I am satisfied and find that there are no other reasons or issues pertaining to sections 387(b) – (h) of the FW Act which result in the Applicant’s termination being harsh, unjust or unreasonable. I am satisfied and find that the Applicant has received his statutory entitlement to a fair go.
I find that the Applicant was not unfairly dismissed.
The Application is dismissed.
I so Order.
COMMISSIONER
[1] Rode v Burwood Mitsubishi, Print R4471 at [19].
[2] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
[3] [2012] FMCA 208.
[4] [1999] NTCA 28.
[5] [2021] FWC 4507.
[6] [2021] FWC 1364.
[7] [2021] FWC 6125.
[8] [2021] FWC 5905.
[9] [2012] FWA 7069.
[10] [2021] FWCFB 6059.
[11] The Applicant relied here on Giuseppina (Josie) Cartisano v Sportsmed SA Hospitals Pty Ltd[2015] FWCFB 1523.
[12] [2014] FWCFB 5993.
[13] (1995) 185 CLR 410.
[14] (1998) 84 IR 1.
[15] (1995) 62 IR 371.
[16] PR4471.
[17] (1998) 84 FCR 483.
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