Mr Yutaka Shinoda v Challenger Security Pty Ltd
[2022] FWC 2420
•12 SEPTEMBER 2022
| [2022] FWC 2420 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Yutaka Shinoda
v
Challenger Security Pty Ltd
(U2021/11788)
| COMMISSIONER P RYAN | SYDNEY, 12 SEPTEMBER 2022 |
Application for an unfair dismissal remedy – public health order requiring vaccination against COVID-19 – valid reason for dismissal – dismissal not harsh unjust or unreasonable – application dismissed.
Introduction
Mr Yutaka Shinoda (Applicant) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Challenger Security Pty Ltd (Respondent).
The matter was heard before me on 27 June 2022 with the assistance of a Japanese interpreter.
I exercised my discretion to grant permission to the Respondent to be represented by a lawyer, as I was satisfied as to the matters set out in s.596 (2)(a) of the FW Act. The Applicant represented himself. The Respondent was represented by Ms E Ikonomou, solicitor.
Witness statements were tendered from the following persons:
·The Applicant (Exhibit A1); and
·Ms Sally O’Connor, National HR Manager for the Respondent (Exhibits R3 and R4).
The Applicant and Ms O’Connor also gave evidence at hearing.
When can the Commission order a remedy for unfair dismissal?
Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed. If I am satisfied that the Applicant was so protected, I must then consider whether the Applicant has been unfairly dismissed.
When is a person protected from unfair dismissal?
Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(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.
When has a person been unfairly dismissed?
Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission 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.
Factual Background
The factual background is not in dispute[1] and can be set out as follows:
The Applicant worked as a security guard in retail stores who were clients of the Respondent. As a result of the COVID-19 pandemic and public health orders issued, the Applicant was stood down from his employment in July 2021.[2]
On 1 October 2021, Ms O’Connor sent correspondence to the Applicant informing him that because of the continued lockdowns associated with the COVID-19 pandemic, the period of stand down would continue until 11 October 2021.[3]
On 2 October 2021, the Applicant responded with reference to the New South Wales first dose vaccination rates and then stated “I can’t believe it. I am not doing wrong.”[4]
On 3 October 2021, the New South Wales Minister for Health and Medical Research issued the Public Health (Covid-19 General) Order 2021 (Public Health Order). Clause 1.2 of the Public Health Order stated that it commences from the beginning of 11 October 2021.
Relevant to this matter, the effect of the Public Health Order was that a person could not enter retail premises unless they were fully vaccinated. This required a person to have had 2 doses of the COVID-19 vaccine or a valid exemption.[5]
On or about 5 October 2021, the Applicant provided evidence that he had received his first dose of the COVID-19 vaccine on 4 September 2021.[6]
On 7 October 2021, Mr Darren Krug, a director of the Respondent, sent correspondence to the Applicant seeking to clarify his vaccination status and whether he wants to return to work. On 8 October 2021, the Applicant responded, “you have good contractor”. The Applicant did not otherwise respond to the Respondent’s queries.[7]
On 29 October 2021, Ms O’Connor sent correspondence to the Applicant seeking to clarify if his correspondence dated, 8 October 2021 was a resignation or if not, seeking an update as to his vaccination status.[8]
On 3 November 2021, and having not received a response from the Applicant, the Respondent sent correspondence to the Applicant inviting the Applicant to a meeting to discuss his vaccination status and show cause with respect to his ongoing employment. The correspondence stated:
Invitation to Show Cause Meeting
The purpose of this letter is to formally advise you that issues have arisen in relation to your ongoing employment, which Challenger Security (the Company) directs you to explain or justify. The Company is aware that your ability to lawfully perform the inherent requirement of your role of Security Guard is at risk. The reasons for this are as follows:
· the Company’s clients require evidence that our employees have received at least 2 doses of COVID-19 vaccination;
· it is also a requirement by the NSW Health department that anyone entering the site have received at least 2 doses of CO VID-19 vaccination;
· we have directed you to provide us with the evidence yet you refuse to do so; and
· your role cannot be performed elsewhere.
The impact of these issues on the Company is that it cannot provide you with other alternative work or risk losing a contract with a major client and/or receive a penalty from the NSW Health Department.
The purpose of this meeting is to give you an opportunity to respond with an explanation and show cause in relation to the above concerns the Company has, and with regards to the outlined impact these issues will have on the business.
We wish to discuss these issues with you, along with the impact of this on your ongoing employment with the Company. You are therefore required to attend a meeting with myself and Darren Krug, Director at 15:00 on Friday 5th November 2021, via Microsoft Teams in order to obtain your response to the above. You will receive a separate email with the link to attend the meeting and you will be required to download Microsoft Teams.
You are expected to make every effort to attend this meeting and you are also required to bring an interpreter with you.
You are of course welcome to bring a support person to this meeting should you choose.
After the meeting, the business will proceed to make a decision about your employment, having regard to your responses and feedback you provide during the meeting. Should the business confirm its preliminary view about next steps, this may involve the termination of your employment on a summary basis.
Please note, should you fail to attend the meeting or provide a response than the Company make a decision in your absence.
Also be advised that your Workers Compensation claim has been reviewed again as per your request and the claim has still be disputed.
All matters and information relating to this issue and the Company’s concerns are confidential and you are directed not to discuss them with any other person without my express prior consent. Any failure by you to maintain confidentiality may lead to further disciplinary action.[9]
At 10:53am on 4 November 2021, the Applicant sent correspondence to the Respondent in reply to the invitation to the show cause meeting which stated, “I am very sorry but it’s so so short notice. I cannot make a time 5th November (Friday)”. In response, Ms O’Connor proposed rescheduling the meeting to Tuesday, 9 November 2021. At 12:09pm, the Applicant replied stating “Sorry I have issues on this day”.[10]
At 1:29pm on 4 November 2021, the Applicant sent correspondence in reply to the Respondent’s correspondence dated, 29 October 2021, confirming he had not resigned from his employment with the Respondent.[11]
On 5 November 2021, Ms O’Connor sent correspondence to the Applicant noting the Applicant had not provided an alternative suitable time for a meeting and directing the Applicant to provide a written response to the matters set out in the invitation to show cause correspondence dated 3 November 2021.[12]
At 2:09pm on 8 November 2021, the Applicant provided a written response in which he disputed that he did not respond and referred to matters relevant to an unrelated workers compensation claim.[13]
At 2:57pm on 8 November 2021, Ms O’Connor sent correspondence in reply to the Applicant advising that the show cause process is not related to the Applicant’s workers compensation claim and requested he respond to the following four questions:
1. Are you as at today fully vaccinated against COVID-19? (Fully Vaccinated means 2 doses of the vaccine) Yes/No
2. If you have been fully vaccinated have you shared your vaccination certificate with the Employer? (Note you do not have to answer this question if you answered No to question 1) Yes/No
3. If you are not fully vaccinated (i/e answered No to question one) are you planning to get vaccinated? (Note you do not have to answer this question if you answered Yes to question 1) Yes/No
4. If you are not fully vaccinated Challenger cannot allow you to work at our clients [sic] sites. Can you think of anything we can do to utilise you in your role?[14]
At 3:21pm on 8 November 2021, the Applicant responded to the questions as follows:
1. No
2. No
3. Yes
4. Depend on your determination.[15]
On 9 November 2021, Ms O’Connor sent correspondence to the Applicant which stated:
I refer to your responses to the email and letter dated 08 November 2021.
We now understand that you are not vaccinated against Covid-19, but that you plan on being vaccinated. Please confirm by 5.00 pm 10 November 2021 of your appointment date for a Covid-19 vaccination.
Challenger reminds you that the direction to be vaccinated is to comply with a public health order applicable to your workplace and employment. Should you refuse to receive a vaccination as requested by the Company we consider your conduct to be an unreasonable refusal of a lawful and reasonable direction by the Company.
Lastly, we highly encourage you to contact the New South Wales Covid hotline which can provide you your vaccination requirements to work the security industry. You can contact them by calling 13 77 88.
Please be advised, should you fail to confirm your appointment time and by the required time frame, the Company will have no other choice but to assume you are refusing to be Covid-19 vaccinated.[16]
On 10 November 2021, the Applicant sent the following correspondence in reply:
Glory hallelujah. I just told the person “Get ready to call” just like Humpty Dumpty.
I am gonna fall, I am sitting on top of the world.
I am Rollin’ Along. Don’t want any millions. I am getting’ my share.
I’ve only got one suit just one. Move along that’s all I can wear.A bundle of money, don’t make me feel gay.
A sweet little honey is making me say.[17]
During the proceedings, the Applicant confirmed this was an extract of lyrics to a song and he sent it as a joke.[18]
On 12 November 2021, Ms O’Connor sent correspondence to the Applicant advising that his employment will be terminated with effect from 17 December 2021. The correspondence states:
Outcome of Show Cause Meeting: Termination of your employment
We refer to our letter concerning issues regarding your ongoing employment with the Company dated 3rd November 2021.
A subsequent show cause meeting was scheduled on Friday 5th November 2021, for the purposes of discussing your ongoing employment with Challenger Security (the Company) to allow you the opportunity to respond with an explanation to discharge our concerns regarding the impact that the outlined issues has on the Company, and any suggestions you may have to negate this.
You advised that you could not attend the initial meeting, we agreed to reschedule and we requested other date options from you. You did not provide other date options and we therefore requested your response to the issues raised via email and you have since responded as below.
Those issues, together with our findings are noted below:
·the Company’s clients (including [redacted]) require evidence that our employees have received at least 2 doses of COVID-19 vaccination;
You responded that you are not fully vaccinated against COVID 19
·it is also requirement by the NSW Health department that anyone entering the site have received at least 2 doses of COVID-19 vaccination; and
You responded that you are not fully vaccinated against COVID 19
·we have directed you to provide us with the evidence yet you refuse to do so;
You responded in such a way that we feel you are no longer participating in assisting the Company resolve the issues.
Your response was “ Glory hallelujah. I just told the person “Get ready to call” just like Humpty Dumpty.
I am gonna fall, I am sitting on top of the world.
I am rollin` along. Don't want any millions. I am gettin` my share.
I've only got one suit, just one. Move along that's all I can wear.A bundle of money, don't make me feel gay.
A sweet little honey is making me say.”·your role cannot be performed elsewhere
You failed to respond to this concern.
As discussed, the impact of these issues on the Company is that you are no longer able to meet the inherent requirements of your role as a Security Guard.
The Company has considered your responses, concerns and has since reviewed its operations again and regrettably informs you there are no vacancies at the Company and unfortunately no available opportunities within the business at alternative locations that would suit your employment.
In the circumstances, and for the reasons outlined above, the Company maintains the view that it is appropriate that your employment should be terminated due to your inability to lawfully perform the inherent requirement of your role to be able to be deployed to client sites, and there is no other position the Company can offer you in the business.
We therefore advise you that your employment will be terminated effective Friday 17th December 2021.[19]
The letter of termination provided the Applicant with five weeks’ notice that his employment will end on 17 December 2021.
At 7:44pm on 16 December 2021, the Applicant sent correspondence to the Respondent advising he was fully vaccinated and attached a copy of his COVID-19 Vaccination Certificate. The certificate stated that the Applicant received his second dose of the COVID-19 vaccine on 16 December 2021.[20]
On 17 December 2021, Ms O’Connor sent correspondence to the Applicant inviting him to a meeting on Monday 20 December to discuss his ongoing employment with the Respondent.[21]
On 18 December 2021, the Applicant sent correspondence in reply stating, “… at this stage. We have to avoid verbal communication. Appreciate organization will contact you”.[22]
At 9:32am on 20 December 2021, Ms O’Connor sent correspondence to the Applicant which stated:
Thank you for your response.
As you have provided your vaccination certificate, we are retracting the termination letter sent to you on 12th November 2021 as you have met the requirements of the letter.
As you are still employed with Challenger Security, we need you to come into the office to discuss your ongoing employment and shifts at [redacted].
Could you please advise when you are able to come to the office?[23]
At 10:19am on 20 December 2021 that sent correspondence in reply stating:
Thank you for your response
Retract ??
Sorry. I have already logged application. I am indignant about the idea of Challenger Security P/L.Please talk appropriate organization [sic].[24]
Summary of the Applicant’s Submissions
The Applicant’s primary submission was that the real reason for his dismissal was victimisation and harassment by the Respondent following an altercation with a supervisor in mid-2020, for which he received a written warning.
The Applicant submitted that he was a hard working employee for a long time, and that the termination of his employment was very harsh and unfair.
The Applicant understood that the Respondent offered his job back but, without elaborating any further, stated he could not accept that because of his Japanese nationality.
Summary of the Respondent’s Submissions
The Respondent submitted the that the Public Health Order required the Applicant to be fully vaccinated to enter its client’s premises, which were retail stores.
With reference to relevant authorities, the Respondent submitted that the Applicant’s failure to comply with the requirement in the Public Health Order to be fully vaccinated was a valid reason for the termination of his employment as he did not have the capacity to perform the requirements of his role.
The Respondent submitted that it offered to retract its decision to terminate the Applicant’s employment upon being notified that he was fully vaccinated. However, the Applicant refused to accept this and return to work.
The Respondent submitted the termination process was procedurally fair and that it did everything in its power to maintain the employment of the Applicant once it became aware that he was fully vaccinated. In this respect, the Respondent submitted the Applicant was given a fair go all round.
Has the Applicant been dismissed?
A threshold issue to determine is whether the Applicant has been dismissed from their employment.
Section 386(1) of the FW Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
There was no dispute, and I find that the Applicant’s employment with the Respondent was terminated at the initiative of the Respondent.
I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the FW Act.
Initial matters
Section 396 of the FW Act requires the Commission to decide four initial matters before considering the merits of the application.
There is no dispute between the parties, and I am satisfied on the evidence that:
(a) the application was made within the period required in s.394(2);
(b) the Applicant is a person protected from unfair dismissal;
(c) the Small Business Fair Dismissal Code did not apply to the Applicant’s dismissal; and
(d) the Applicant’s dismissal was not a case of genuine redundancy.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the FW Act provides that in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[25]
I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[26] and should not be “capricious, fanciful, spiteful or prejudiced.”[27] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[28]
As stated above, the effect of the Public Health Order was that a person could not enter retail premises unless they were fully vaccinated. This required a person to have had 2 doses of the COVID-19 vaccine or a valid exemption.
In Shepheard v Calvary Health Care T/A Little Company Of Mary Health Care Limited[29], Deputy President Saunders stated:
“… Once a public health order is in force and applies to a particular workplace, the employer of employees who work in the workplace is obliged to comply with the order unless or until it is declared invalid or unlawful by a court of competent jurisdiction.”[30]
For whatever reason, the Applicant chose not to become vaccinated until 16 December 2021. This meant that he was not able to fulfil his role and there were no suitable alternative duties available for him to undertake.
For these reasons, the Respondent had a valid reason to terminate the Applicant’s employment, based on the information available to it at the time it made the decision.[31]
Furthermore, I do not consider the fact that the Applicant subsequently became fully vaccinated on 16 December 2021 impacts my finding that the Respondent had a valid reason for terminating the Applicant’s employment on 12 November 2021. Prior to 16 December 2021, the Applicant failed to advise the Respondent as to when he was intending to receive the second dose, and simply forwarded them his vaccination certificate, after hours, on the day before his employment ended.
Despite that, the Respondent attempted to retract its decision and maintain the Applicant’s employment. However, such a retraction requires the consent of the Applicant which was not forthcoming.[32]
I also do not accept the Applicant’s contention that the real reason for the termination of his employment was the altercation with a supervisor in 2020. The Respondent’s attempt to retract the termination and maintain the Applicant’s employment is a complete answer to that contention.
Was the Applicant notified of the valid reason?
It is not in dispute, and I find that the Applicant was notified of the reason for the termination of his employment prior to the decision to dismiss being made, and in explicit and plain and clear terms in the Show Cause Letter on 3 November 2021.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
It is not in dispute, and I find that the Applicant was given an opportunity to respond to the reason for the dismissal.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
A meeting did not take place between the Applicant and the Respondent, as the Applicant was not available at the time the Respondent scheduled the show cause meeting. The Applicant did not provide the Respondent with any other available time for the show cause meeting to take place.
In all the circumstances, I find there was not any unreasonable refusal by the Respondent to allow the Applicant to have a support person present to assist in discussions relating to his dismissal.
Was the Applicant warned about unsatisfactory performance before the dismissal?
As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
Neither party submitted that the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s enterprise had no such impact. This factor weights neutrally in my consideration.
To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
It is not in dispute, and I find that the Respondent’s enterprise did not lack dedicated human resource management specialists and expertise. This factor weights neutrally in my consideration.
What other matters are relevant?
Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
I have taken into account the Applicant’s length of service and that he is from a non-English speaking background. However, in all the circumstances, I do not consider that these matters support a finding that the Applicant’s dismissal was harsh, unjust or unreasonable.
I also note the Applicant tendered an independent medical report.[33] I do not place any weight on the medical report as it is not related to the issue of vaccination and, in any event, the Applicant was able to receive a second dose of the COVID-19 vaccine on 16 December 2021.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[34]
Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable because there was a valid reason for the dismissal and no other factors weigh in favour of a finding that the dismissal was unfair.
Even if I had found that the Applicant was unfairly dismissed, I would not have exercised my discretion to order a remedy, as any loss suffered by the Applicant could have been avoided if he had accepted the Respondent’s offer to retract the termination of his employment on 20 December 2021.
In coming to this decision, I have taken into account all of the evidence and submissions of the parties. The fact that an issue is not mentioned in this decision does not mean that it has not been taken into account.
Conclusion
Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act.
The Application is dismissed. An Order to that effect will be issued with this decision.
COMMISSIONER
Appearances:
Mr Y Shinoda, the Applicant
Ms E Ikonomou, solicitor, for the Respondent.
Hearing details:
Sydney:
2022.
27 June
[1] Transcript at PN264 to PN301.
[2] Exhibit R3 at [5].
[3] Exhibit R3 at [6], Annexure SO1.
[4] Ibid at [7].
[5] See clause 2.18 and Schedule 6 of the Public Health Order.
[6] Exhibit R3 at [9].
[7] Ibid at [10], Annexure SO3.
[8] Ibid at [12], Annexure SO4.
[9] Ibid at [14], Annexure SO6.
[10] Ibid at [15], Annexure SO7.
[11] Ibid at [13], Annexure SO5.
[12] Ibid at [16], Annexure SO8.
[13] Ibid at [17], Annexure SO9.
[14] Ibid, Annexure SO10.
[15] Ibid at [18], Annexure SO11.
[16] Ibid at [19], Annexure SO12.
[17] Ibid at [20], Annexure SO13.
[18] Transcript at PN290-PN292.
[19] Exhibit R3 at [22]-[23], Annexure SO14.
[20] Ibid at [25], Annexure SO15.
[21] Ibid at [26], Annexure SO16.
[22] Ibid at [27], Annexure SO17.
[23] Exhibit R3 at [28], Annexure SO18.
[24] Ibid at [29], Annexure SO19.
[25] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [69].
[26] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
[27] Ibid.
[28] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681 at 685.
[29] [2022] FWC 92
[30] Ibid at [33].
[31] CSL Limited T/A CSL Behring v Chris Papaioannou[2018] FWCFB 1005 at [77].
[32] Keith Chapman v City Collision Centre (SA) Pty Ltd[2019] FWC 2090 at [44]-[45].
[33] Exhibit A2.
[34] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357 at [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [92]; Edwards v Justice Giudice [1999] FCA 1836 at [6]-[7].
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