Mr Sumit Aneja v Monash Health

[2022] FWC 780

[2022] FWC 780

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Sumit Aneja
v

Monash Health

(U2021/10150)

COMMISSIONER JOHNS MELBOURNE, 27 May 2022

Application for an unfair dismissal remedy

1. This decision concerns an application for an unfair dismissal remedy made by Mr Sumit Aneja (Applicant) under s 394 of the Fair Work Act 2009 (FWAct) in respect of his dismissal by Monash Health (Respondent).

1. In short:

a)   Mr Aneja was employed by the Respondent from May 2018 to 9 November 2021.

b)   At the time of his dismissal Mr Aneja was employed in the role of Security Officer on a casual basis.

c)   Mr Aneja was dismissed on the grounds that he was unable to meet the inherent requirements of his job.

d)   Mr Aneja failed to provide the Respondent with proof that he had been vaccinated against COVID-19.

e)   Consequently, pursuant to Victorian government directions, Monash Health was therefore required not to allow Mr Aneja to attend the workplace on or after 15 October 2021.

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

1. Mr Aneja contends that Monash Health did not have a valid reason to dismiss him, and that Monash Health in any event could have placed him on unpaid leave instead of dismissing him. He contends that his dismissal was unfair and seeks financial compensation.

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

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

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

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

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

Background

1. I make the following findings of fact:

a)   On 29 September 2021, the Acting Chief Health Officer of Victoria issued the COVID-19 Mandatory Vaccination Directions (No 4) (No 4 Direction)[1] under s 200(1)(d) of the Public Health and Wellbeing Act 2008 (Vic). These imposed obligations on the operators of specified facilities, including healthcare facilities such as Monash Health, not to allow workers to attend for work on or after 15 October 2021 unless they had provided evidence to the employer of having been vaccinated against COVID-19, or of a booking to receive a vaccination by 29 October 2021. An exception applied for workers who provided a certificate that they were unable to receive a vaccination due to a medical contraindication. The No 4 Direction commenced on 29 September 2021 and ended on 1 October 2021. It was succeeded by other directions in similar terms (Directions).

b)   On 1 October 2021 Monash Health sent an email[2] to all employees informing them that they were required to be vaccinated against COVID-19 to continue their employment. This communication was also posted on the Monash Health COVID-19 employee website and on physical noticeboards throughout Monash Health’s premises.

c)   Between 4 October 2021 and 8 October 2021 correspondence[3] passed between Monash Health and Mr Aneja in respect of the COVID-19 vaccination requirements. Mr Aneja raised a number of concerns he had in relation to the requirements. Monash Health provided responses to his concerns.

d)   On 5 October Monash Health conducted an online employee forum where a presentation[4] was given regarding the Directions and the requirement that all Monash Health employees be vaccinated against COVID-19 to continue working at Monash Health. During this presentation employees were informed that if they chose not to be vaccinated they would no longer be able to continue working at Monash Health and that this may result in termination of their employment.

e)   On 8 October 2021 Monash Health sent an email[5] to all employees setting out the relevant dates by which employees were required to have received a COVID-19 vaccine or to make an appointment to receive a COVID-19 vaccine.

f)   On 11 October 2021 Monash Health went above and beyond the Directions.  It decided to issue its own direction to employees “to ensure they are able to enter and remain on the premises of Monash Health.”  It communicated the direction by email.[6] Employees were given until 15 October 2021 to provide evidence that they had either received at least a first dose of a COVID-19 vaccine or had an appointment to receive at least their first dose by 29 October 2021. By 30 October 2021 all employees were required to provide evidence that they had received two doses of a COVID-19 vaccine or that they had received one COVID-19 vaccine and had a booking for a second dose by 15 December 2021. By 16 December all employees were required to provide evidence that they had received two doses of a COVID-19 vaccine (Monash Direction).  In the face of the Victorian Government Directions, it remains unclear why the Monash Direction was necessary.  However, I am satisfied that the Monash Direction was both lawful and reasonable.  The Monash Direction was not a vaccine mandate.

g)   On 12 October 2021 Monash Health sent an SMS to all unvaccinated employees reminding them of the Monash Direction. On 13 October 2021 Monash Health sent a further SMS to employees which did not respond to the previous SMS, reminding them that they were required to be vaccinated or declare their vaccination status before 15 October 2021. Monash Health then telephoned unvaccinated employees who did not respond to either SMS to advise them that their records indicated they were unvaccinated.

h)   On 14 October 2021 Monash Health sent a further SMS to unvaccinated employees advising them that it was their final day to book a vaccination or declare their status and again telephoned employees who did not respond to the SMS to advise them that its records indicated that they did not meet the vaccination requirements.

i)   On 14 October 2021 Jacqueline Thompson, Monash Bureau Manager, sent Mr Aneja a letter (dated 15 October 2021)[7] alleging that he had failed to comply with the Monash Direction and that therefore he may have engaged in serious misconduct and breached his contract of employment. Mr Aneja was informed that he was suspended from duty and that Monash Health was concerned that his failure to follow the Monash Direction meant that he did not have capacity to perform the inherent requirements of his position which required him to be able to enter, and remain on, the premises of Monash Health for the purposes of performing work at Monash Health. Mr Aneja was invited to respond either at a meeting or in writing.

j)    On 14 October 2021 Mr Aneja provided a written response[8] to Ms Thompson denying that he had breached his employment contract and that rather Monash Health was varying the terms of his contract by demanding that he participate in the COVID-19 vaccination clinical trial. Mr Aneja said that his employment contract contained no requirement for him to participate in clinical trials and that forced medical services in any form cannot be made a condition of employment. Mr Aneja stated that he would be willing to receive the COVID-19 vaccine if Monash Health would provide assurances that he would be fully covered he if were to suffer injury or death as a result of taking the vaccine.

k)   On 20 October 2021 Ms Thompson sent Mr Aneja a letter[9] concluding that the allegations against him were substantiated as he had failed to provide evidence that he had received at least his first dose of a COVID-19 vaccine by 15 October 2021 or that he had an appointment to receive at least his first dose of a COVID-19 vaccine by 29 October 2021. It was determined that Mr Aneja’s conduct constituted serious misconduct and a breach of his contract of employment and that his failure to follow the Monash Direction meant that he did not have the capacity to perform the inherent requirements of his job. Mr Aneja was given an opportunity to provide his response to the findings. The letter incorrectly asserted that the Applicant had not responded to the suspension and allegations letter.

l)   On 20 October 2021 Mr Aneja responded[10] to Ms Thompson stating that he was ready and willing to resume his duties but that Monash Health had breached its contract of employment with him by preventing him from entering the premises based on temporary directions made by the Chief Health Officer. 

m)   On 28 October 2021 Ms Thompson sent Mr Aneja a letter[11] providing him with a further and final opportunity to respond to the matters set out in her letter dated 20 October 2021 and to provide any information he considered relevant by 5pm on 2 November 2021.

n)   On 28 October 2021 Mr Aneja responded[12] to Ms Thompson stating that her threats of disciplinary action or the termination of his employment were causing him feelings of anxiety, grief and distress and that Monash Health was seeking to impose a potentially deadly medical outcome on him without his consent by using threats of disciplinary action and the termination of his employment. Mr Aneja provided Ms Thompson with a list of questions related to Monash Health’s liability for any adverse side effects he may incur from taking a COVID-19 vaccine.

o)   On 29 October 2021 Mr Aneja wrote[13] to the Chief Legal Officer of Monash Health, Peter Ryan.  Amongst other things Mr Aneja told Mr Ryan that he was “currently taking legal action against the CHO directions in the Supreme Court of Victoria.”  He asked that the court be permitted to hear and determine the matter before any action was taken against him for being unvaccinated.

p)   On 4 November 2021 Mr Aneja was invited[14] by Monash Health to attend a meeting to discuss the outcome of the investigation.

q)   Having been briefed about the interactions between Monash Health and the Applicant, on 9 November 2021, Ms Lowe made the decision to terminate the Applicant’s employment.[15]At a meeting later that day Mrs Thompson informed[16] Mr Aneja that a decision had been made to terminate his employment on the basis that he had failed to follow a lawful and reasonable direction of his employer, and that he was unable to fulfil the inherent requirements of his position.  The decision was confirmed in writing the following day.[17]

r)   After the meeting Mr Aneja sent Ms Thompson an email[18] in which he stated that the state of emergency in Victoria was due to end and that from 16 December 2021 vaccine mandates would no longer apply. Mr Aneja said that he would have no choice but to take legal action against Monash Health for unfair dismissal and breach of contract.

Submissions of the parties

1. Mr Aneja contended that his dismissal was harsh, unjust or unreasonable and that there was no legal basis for Monash Health to terminate his employment under the Chief Health Officer’s temporary directions. He stated that there was no lawful or reasonable direction requiring him to be vaccinated against COVID-19 but that rather, the Directions required Monash Health to prevent unvaccinated workers from entering the workplace and that therefore the requirement to be vaccinated was a temporary condition of entry into the workplace and not a condition of his employment. Mr Aneja said that it was harsh, unjust and unreasonable for Monash health to terminate his employment before the expiry of the Directions on 15 December 2021.

1. Mr Aneja further contended that by threatening his employment, Monash Health was exercising economic duress upon him and that such duress prevented him from providing his consent to receive the COVID-19 vaccine. Mr Aneja disputed the efficacy and safety of the COVID-19 vaccines and said that Monash Health failed to address his concerns and did not meet with him to discuss his individual circumstances. Mr Aneja contended that therefore Monash Health’s decision-making process leading to his dismissal was unfair.

1. Mr Aneja further submitted that as a casual employee, Monash Health could have chosen to place him on unpaid leave, but they instead dismissed him after three years of service and that it was harsh, unjust or unreasonable to do so.

1. Monash Health contended that Mr Aneja’s dismissal was not harsh, unjust or unreasonable and that it dismissed Mr Aneja for a valid reason, namely that he had failed to comply with a lawful and reasonable direction of his employer and that he rendered himself unable to perform the inherent requirements of his role by choosing not to be vaccinated. Mr Aneja’s decision not to get vaccinated meant that Monash Health, bound by the terms of the Directions, was required to ensure Mr Aneja did not attend the workplace. Monash Health contended that it was an inherent requirement of Mr Aneja’s position that he be able to attend Monash Health’s premises and perform work and that he was unable to perform his work adequality from home. Monash Health contended that it warned Mr Aneja of its concerns in relation to his failure to comply with a lawful and reasonable direction and his inability to perform the inherent requirements of his position and that it gave him the opportunity to respond to those concerns and therefore did not deprive him of any procedural fairness.

1. Monash Health submitted that in any event, even if it had allowed Mr Aneja to remain on unpaid leave, it would not have changed the outcome, as Mr Aneja does not intend to get vaccinated and therefore would not be vaccinated at the time the leave expires. Monash Health contended that therefore Mr Aneja’s submission that he should have been left on unpaid leave cannot render the dismissal harsh.

Consideration

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

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

1. The essence of a valid reason is a reason that is sound, defensible or a well-founded reason – one that is not capricious, fanciful, spiteful or prejudiced.[19]

1. I am satisfied that Monash Health had a valid reason to terminate Mr Aneja’s employment. Mr Aneja was entitled to make the decision he made not to get vaccinated.  This case is not about vaccine mandates.  There was no vaccine mandate.  There was, however, a direction to employers not to allow employees to attend for work on site unless they were vaccinated.  Monash Health then issued its own direction to employees “to ensure they are able to enter and remain on the premises of Monash Health.”  Again, this was a vaccine mandate.

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

1. Mr Aneja contended that under the Directions he could have been allowed to continue to work under the exceptional circumstances exemption.  He said that staff shortages in the security area meant that he could have been allowed to continue to work as “as worker … required to fill a vacancy and provide to … continue essential operations at [a] facility due to an emergency situation or a critical unforeseen circumstance.”  However, the evidence in this matter did not support a finding that Monash found itself in such a situation.  There were staff shortages and challenges in the security area, but there was no emergency.

1. During the hearing Mr Aneja advised that he had recently tested positive for COVID-19. He contended that this meant he could now attend for work and that he was exempt from booster requirements because the anti-bodies in his system.  This late evidence does not change my mind about whether (at the time of dismissal) the Applicant was able to perform the inherent requirements of his position (to be able to attend on site as and when required).  The evidence of a recent COVID-19 infection may have been relevant to remedy, but it does not displace my finding that there was a valid reason for the dismissal.

1. In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether an employee has been notified of the reasons for dismissal and whether the person was afforded an opportunity to respond to any reason related to their capacity or conduct (ss 387(b) and (c)). The show cause letter of 20 October 2021 notified Mr Aneja of the proposed reason for dismissal and gave him an adequate opportunity to respond.

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

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

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

1. In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account any other matters that it considers relevant (s 387(h)). In the present matter I have taken into account Mr Aneja’s 3 years of service and unblemished employment record.  I have taken into account the economic cost to Mr Aneja caused by losing a second source of income following the dismissal.  I have taken into account the Applicant’s genuinely held concern about getting the COVID-19 vaccine.

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

1. I have also taken into consideration Mr Aneja’s contention that he should have been allowed leave without pay – effectively “kept on the books” as a casual, but not allocated shifts until Directions or circumstances changed that allowed him to attend for work unvaccinated.  It would have been possible for Monash Health to do this without cost to itself (unlike giving a permanent employee authorised leave).  However, Monash Health was not required to keep the Applicant on the books.

1. Although another employer may have made a different decision, it was not unreasonable to deny the Applicant leave without pay as a casual employee.  Karen Lowe, Executive Director, People & Culture, gave uncontested evidence[20], which I accept, that it was not an appropriate or viable option for a large public health service such as Monash Health to have employees 'on the books' who were not ready, willing and able to work. Ms Lowe explained that during COVID-19 Monash Health was managing challenging operational circumstances with staff absent due to COVID infections and other staff being furloughed as a result of COVID exposure. Ms Lowe also contended that to keep unvaccinated employees’ roles open would mean that they would continue to accrue benefits. Of course, in relation to casual employees like the Applicant Ms Lowe was wrong about that contention. Ms Lowe further gave evidence that to have left the Applicant on the books “would be out of step with how [Monash Health] manages casuals in the casual bank (and indeed how it manages its staff more broadly).”  Her evidence was uncontested.  I accept her evidence.

1. Before me Ms Lowe elaborated[21] as follows:

There is an addition of some administrative burden so our health service accreditation processes that we are required to do, there's what we call mandatory training where all employees are required to do a range of training programs.  If somebody is on the books and not working they are still required to do that otherwise it goes to our accreditation process, so there is an admin burden in chasing people up.  For example, the enterprise agreement ballot processes, actually last week the health and allied managers and admin was put out to ballot.  We have to actually communicate with all employees under that enterprise agreement about what the requirements are for them, what the enterprise agreement is opposing for them to have a vote on it.  If somebody is not working we need to continue to try and track down their email addresses, track down where they live when they're not working and communicating with us, so we've got personal records, and ultimately whilst it's not necessarily always with a casual, for a casual that works regularly and systematic shifts if you do want to replace those it's in many cases far better to replace them with a permanent employee, because it's a regular and systematic shift, and so why wouldn't you have a permanent employee.  So that goes then to some budget issues.  So there are reasons why you don't do it.  Equally, you don't want to keep a growing book of employee records for people that have not worked …

1. I accept the sound administrative reasons for not leaving the Applicant “on the books”.

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

COMMISSIONER

Appearances:

S. Aneja for himself
M. Minucci for Monash Health

Hearing details:

2022
Melbourne
18 and 21 February

Final written submissions:

8 March 2022

[1] “KL-1.

[2] KL-2.  I observe that the communications issued by Monash Health consistently incorrectly claimed that the No. 4 Direction mandated vaccination.  It did not.  The Directions obligated employers to collect, record and hold vaccination information and to prevent entry of unvaccinated workers. The distinction is important. There was no vaccine mandate.  The communications made by Monash Health should have been accurate.

[3] JT-3 through to JT-9.

[4] KL-3.

[5] KL-4.

[6] KL-5.

[7] JT-10.

[8] JT-11.

[9] JT-12.

[10] JT-13.

[11] JT-14.

[12] JT-15.

[13] JT-16.

[14] JT-17.

[15] Exhibit 41.

[16] Exhibit 48.

[17] SA-1.

[18] JT-20.

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

[20] Exhibit 76.

[21] Transcript PN1188.

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