Mrs Melissa Hoffman v Eastern Health, Maroondah Hospital - [2023] FWC 1259

[2023] FWC 1259

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mrs Melissa Hoffman
v

Eastern Health, Maroondah Hospital

(U2023/1645)

COMMISSIONER JOHNS

MELBOURNE, 31 JULY 2023

Application for an unfair dismissal remedy – non-compliance with vaccination directions – whether dismissal was unfair – application dismissed

Introduction

On 28 February 2023, Mrs Melissa Hoffmann (Applicant) made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work FW Act 2009 (FW Act) for a remedy in respect of her dismissal by Eastern Health, Maroondah Hospital (Respondent/Hospital).

At the time of her dismissal on 9 February 2023 the Applicant was employed by the Respondent in the role of a Registered Nurse. The Applicant was dismissed because she failed to comply with the Hospital’s directions relating to the COVID-19 booster vaccination which resulted in her being unable to attend the workplace if she was required to do so.

On 21 March 2023, the Respondent filed a response to the unfair dismissal application. No Jurisdictional objections were raised.

Attempts at conciliation were attempted, but the matter remained unresolved.

Consequently, the matter was listed for hearing.

Permission to be represented

At the mention/directions hearing on 3 April 2023, the Respondent made an application for permission to be represented by a lawyer. A determination of this issue is necessary to ensure that the manner in which any conference/hearing is conducted is fair and just.
In Warrell v FWC [2013] FCA 291, the Federal Court held that:[1]
“A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission…”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.”

Section 596 of the FW Act provides as follows:
“Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a)    it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b)    it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c)    it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.”

Having heard from the parties, on 3 April 2023, I determined that allowing the Respondent to be represented by a lawyer would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter and the novel nature of the dismissal arising in the context of the COVID-19 Public Health Orders.

Conference or Hearing

On 3 April 2023, I also sought submissions from the parties about whether the Commission should conduct the matter by way of a determinative conference (s.398) or a hearing (s.399).
Taking account any differences in the circumstances and the wishes of the parties, and considering whether a hearing would be the most effective and efficient way to resolve the matter, I decided to conduct a hearing. The matter was programmed for hearing on 25 May 2023.

The hearing

At the hearing on 25 May 2023:
a) the Applicant was represented by her husband, Mr Aydan Hoffman. The Applicant was the only witness for herself. She was not required for cross-examination.[2]
b) the Respondent was represented by Mr Jack Tracey of counsel and was instructed by Mr David Hartnett of K&L Gates. The Respondent called the following witnesses:
i.Girly Figerado, Nurse Unit Manager, Day Oncology (who was not required for cross-examination[3]); and
ii.Liz Callahan, Director of Business Partnering who gave oral evidence and was cross-examined.
In advance of the hearing the parties filed witness statements, submissions, and documents. Prior to the hearing, the Respondent provided the Applicant’s payslips upon request by my Chambers and this is identified as exhibit 6. Consequently, in coming to this decision I have had regard to the following materials:

Exhibit	Document title
1	Form F2
2	Form F3
3	The Applicant’s submissions
3.1 3.2	The Applicant's Statement of Evidence The Applicant's Outline Argument: Merits
3.3	The Applicant’s Document List
3.3.1	[A] 221020 EH Letter – letter for Mel (U2023-1645)
3.3.2	[B] 221021 Mel email - Re_ Letter re- COVID vaccination status (U2023- 1645)
3.3.3	[C] 221012 Message Exchange - Medical Leave 24 October 2022 (U2023- 1645)
3.3.4	[D1] 221024 Mel email - Re_ Letter re- COVID vaccination status (U2023-1645)
3.3.5	[D2] 221024 Mel email - Attachment A - 6th of June 2022 - Email Fwd_ Melissa Hoffman Exception period (U2023-1645)
3.3.6	[D3] 221024 Mel email - Attachment A - Attachment A - VicDept Health POSITIVE #42506098 Melissa Hoffman ISO to 01 Jun 2022 (U202
3.3.7	[D4] 221024 Mel email - Attachment A - Attachment B - EH Redcaps RAT (U2023-1645)
3.3.8	[D5] 221024 Mel email - Attachment A - Attachment C - Yahoo Mail Document_ EH COVID Hotline Advice - Positive Case (U2023-1645).
3.3.9	[E1] 221026 Mel email - Melissa Hoffman - Immunity Record (U2023- 1645)
3.3.10	[E2] 221026 Mel email - Attachment A - 10 Sep 21, 07 Dec 21 (U2023- 1645)
3.3.11	[E3] 221026 Mel email - Attachment B - 25 Jan 21 (U2023-1645)
3.3.12	[E4] 221026 Mel email - Attachment C - 25 May 22 (U2023-1645)
3.3.13	[E5] 221026 Mel email - Attachment D - 26 Nov 22 (U2023-1645)
3.3.14	[E6] 221026 Mel email - Attachment E - 14 Oct 22 (U2023-1645)
3.3.15	[F] 221111 EH Email - Re _ Melissa Hoffman - Immunity Record (U2023- 1645)
3.3.16	[G] 221212 - EH Letter - Mel Show case letter 12.12.22 (U2023-1645)
3.3.17	[H] 221219 Mel email - Fw_ Melissa Hoffman (U2023-1645)
3.3.18	[J1] 230119 Mel email - Re_ Meeting with Melissa Hoffman (U2023- 1645)
3.3.19	[J2] 230119 Mel email - Attachment A - Risk Assessment (U2023-1645)
3.3.20	[K] 230203 EH email - Fwd_ For Information_ Chief Executive Update - Friday 3 February 2023 (U2023-1645)
3.3.21	[L] 230207 EH letter - Melissa HOFFMAN - Termination Letter - 07.02.2023 (U2023-1645)
3.3.22	[M] 220216 EBA Extract – Pages Cover to 14, 45 to 63, 93 to 99, 119 to 130 (U2023-1645)
3.3.23	[N] 220711 Pandemic-workplace-order-2022-no-10 (U2023-1645)
3.3.24	[O] 221001 Public Health and Wellbeing Act 2008 - 08-46aa057 authorised (U2023-1645)
3.3.25	[P] 220711 Statement-of-Reasons-12-July-2022 (U2023-1645)
3.3.26	[Q] 220711 Human-Rights-Statement-12-July-2022 (U2023-1645)
3.3.27	[R] 221012 secretary-directions-COVID-19-vaccination-requirements- health-care-workers-health-services-act (U2023-1645)
3.3.28	[S] 221013 Vaccination of healthcare workers - Policy Guidance for healthcare settings 2022 (U2023-1645)
3.3.29	[T] 220301 Health Services Act 1988 88-49aa175 authorised (U2023- 1645)
3.3.30	[U] 230306 Certificate of Service - HOFFMAN, MELISSA JANE 27260 (U2023-1645)
3.3.31	[V] 230308 Payslip 00027260_H_18_2022 (U2023-1645)
4	The Respondent's submissions
4.1	Outline of submissions
4.2	The witness statement of Girly Figerado
4.3	The witness statement of Liz Callahan
5	The Applicant's reply submissions
5.1	Outline of submissions
6	The Applicant’s payslips

Background

The following matters were either agreed between the parties or not otherwise substantially contested. Consequently, I make the following findings of fact:

a)On 29 January 2008, the Applicant commenced employment with the Respondent in the role of Graduate Nurse.
b)Since February 2010, the Applicant was working on a permanent part time basis as a Registered Nurse.
c)On 13 October 2022, the Secretary of the Department of Health issued Directions (October Directions) pursuant to the Health Services Act 1988 (Vic). The Respondent had to comply with these Directions. Relevantly and importantly for the circumstances of this matter, the Directions provide (my emphasis):
“Health care workers employed or engaged by a health service prior to the date these Directions take effect (current health care workers)
Current health care workers must be fully vaccinated or fully vaccinated (boosted) (as applicable) against COVID-19

42. Subject to clauses 43 and 44, a health service must ensure that:

a. any current health care worker whom it employs or engages and who is 18 years or older is fully vaccinated (boosted) against COVID-19; and

b. any current health care worker whom it employs or engages and who is under 18 years of age is fully vaccinated against COVID-19.

43. A health service is not required to ensure that a current health care worker whom it employs or engages is fully vaccinated or fully vaccinated (boosted) (as applicable) against COVID-19 in accordance with clause 42 if the current health care worker has displayed acceptable certification to the health service to show that they are an excepted person.

Exemptions to the requirement to be fully vaccinated or fully vaccinated (boosted) (as applicable) against COVID-19 where the health care worker has not displayed acceptable certification to show that they are an excepted person
44. A health service is not required to comply with clause 39 or clause 42 in respect of a new health care worker or a current health care worker who is employed or engaged by the health service, and who has not displayed acceptable certification to the health service to show that they are an excepted person, if the health service has conducted an assessment of the workplace health and safety risks associated with a health care worker attending work onsite and determined that permitting the health care worker to attend work whilst not fully vaccinated (boosted) will not pose an unacceptable risk having regard to the health service's work health and safety obligations and if:

a. the health care worker is on leave, but only for the duration of that period of leave; or
Note: once the health care worker’s period of leave concludes, the health service must ensure that the health care worker whom it employs or engages is fully vaccinated or fully vaccinated (boosted) (as applicable), where required under these Directions.

b. the health care worker has become fully vaccinated in the previous 3 months and 14 days; or
Note: once 3 months and 14 days have passed since a health care worker aged 18 years or older has become fully vaccinated, the health service must ensure that the health care worker whom it employs or engages is fully vaccinated (boosted), where required under these Directions.

c. the health care worker satisfies the requirements in clause 41(b); or
Note: once 4 weeks have passed since a new health care worker aged 18 years or older has entered Australia from another country, the health service must ensure that the new health care worker whom it employs or engages is fully vaccinated (boosted), where required under these Directions.

d. the health care worker was, but has ceased to be in the previous 14 days, an excepted person; or
Note 1: once 14 days have passed since a health care worker aged 18 years or older has ceased to be an excepted person, the health service must ensure that the health care worker whom it employs or engages is fully vaccinated (boosted), where required under these Directions.
Note 2: once 14 days have passed since a health care worker aged under 18 years or older has ceased to be an excepted person, the health service must ensure that the health care worker who it employs or engages is fully vaccinated, where required under these Directions.

e. the health care worker is 18 years or older, and is fully vaccinated but not fully vaccinated (boosted) and:

i. was a diagnosed person whose infectious period ended within the previous 3 months; or

ii. was a probable case whose infectious period ended within the previous 3 months, and the health care worker received a positive result from a COVID-19 rapid antigen or COVID-19 PCR test undertaken during their infectious period; or
Note 1: to demonstrate to a health service that a health care worker is covered by this exemption, the health care worker may provide the health service with a written positive result from a COVID-19 PCR test, or an SMS message from the Department confirming the reporting by the health care worker of a positive COVID-19 rapid antigen test to the Department (from which the health care worker was diagnosed with COVID-19), including the date of the test for the purpose of subclause (e).
Note 2: once 3 months have passed since the end of the infectious period for a health care worker aged 18 years or older, the health service must ensure that the health care worker whom it employs or engages is fully vaccinated (boosted), where required under these Directions.

f. any one or more of the following exceptional circumstances applies:
i. the health care worker is required to perform duties onsite, which is or are necessary to provide for urgent specialist clinical or medical care due to an emergency situation or a critical unforeseen circumstance; or

ii. the health care worker is required to fill a vacancy to provide urgent care, to maintain quality of care, or to continue essential operations for the health service due to an emergency situation or a critical unforeseen circumstance; or

iii. the health care worker is required to respond to an emergency onsite; or

iv. the health care worker is required to perform urgent and essential work onsite for the health service, including critical training, to protect the health and safety of workers, patients or members of the public, or to protect assets and infrastructure.”

d)As of 1 October 2022, the Applicant had received two doses of AstraZeneca vaccinations but not a booster. Therefore, she was not fully vaccinated as per the October Directions.
e)After the two AstraZeneca vaccinations the Applicant developed a retinal eye detachment. There is no medical evidence of a direct causal link between the vaccinations and the retinal eye detachment.
f)The Applicant had previously contracted COVID-19 and was thus exempted from being fully vaccinated until 14 October 2022.
g)The Applicant commenced a period of approved leave from 1 October 2022.
h)On 20 October 2022, the Respondent sent a letter by email to the Applicant advising that it was considering terminating her employment because the Applicant could not perform the inherent requirements of the role. The Respondent invited the Applicant to a show cause meeting on 24 October 2022.

During the meeting and in emails sent on 21, 24 and 26 October 2022 from the Applicant, it was contended that the booster requirements did not apply to her because she has antibodies which satisfy ‘compliance with the current mandated settings’.[4] The Respondent did not agree but further provided the Applicant with unpaid leave until 11 November 2022.

j)On 11 November 2022, the Respondent sent the Applicant an email advising that because the Applicant had not yet received the booster vaccine, she was being invited to a show cause meeting to demonstrate why her employment should not be terminated. The Respondent noted that the Applicant is “released from duty on unpaid leave”.[5] At no time after 11 November 2022 was the unpaid leave cancelled. At no time was the Applicant required to return to work.
k)On 19 December 2022, the Respondent sent a letter to the Applicant (dated 12 December 2022) noting a further show cause meeting was scheduled on 22 December 2022. However, the meeting was adjourned to 19 January 2023 with mutual agreement.
l)The show cause meeting of 19 January 2023 did not shift each party’s respective positions.
m)At all relevant times the Applicant refused to be boosted. Her refusal to be boosted was for non-medical reasons. At no time did the Applicant submit evidence to the Respondent (or the Commission) that she had a medical reason for refusing a booster. The Respondent did not direct the Applicant to obtain medical evidence. Nor was the Respondent required to make such a direction. At all times it was open to the Applicant to obtain medical evidence. She did not.
n)The Respondent did not conduct a risk assessment about returning the Applicant to the workplace. Nor was it required to do so. In any event, if a risk assessment determined that the Applicant was not a risk to the workplace, the Respondent remained prevented from returning her to the workplace by reason of the October Directions.
o)By 7 February 2023 the Applicant had not presented to the Respondent an exemption from vaccination certified by the Australian Immunisation Registry.
p)On 9 February 2023, (by letter dated 7 February 2023), the Respondent terminated the Applicant’s employment and provided her with four weeks’ pay in lieu of notice (as a gesture of goodwill) and noted that the Applicant would be welcome to re-apply for a role at the Hospital in the future should her vaccination status change. However, because of demands at that time in the Respondent’s workforce (resulting from COVID-19) it needed all staff to be utilised. Accordingly, it decided that it could not keep the Applicant’s position open any longer. The Respondent had been unable to fill the Applicant’s substantive position while she was on leave. It was backfilling the position from October 2022. It decided it could not do so any longer. It wanted to fill the substantive position.
q)Before me the Applicant (and her representative) were unable to point to any part of the October Directions that would have allowed the Respondent to permit the Applicant to attend the workplace and work as a Registered Nurse.
r)The payment in lieu of notice was not paid until May 2023.[6]

On 24 May 2023 I put 20 propositions to the parties and sought their views about whether they agreed with the propositions[7] (see below).

Proposition	Applicant’s response	Respondent’s response
1. Although the letter of termination is dated 7 February 2023, the Applicant appears not to have been made aware of the dismissal until 9 February 2023. On ordinary principles a termination of employment is not effective until communicated. Do the parties agree then the effective date of termination is 9 February 2023.	Agreed	Agreed
2. What is to be determined in respect of valid reason is to be determined as at the effective date of dismissal.	Agreed	Agreed
3. At the effective date of dismissal, the relevant instrument, against which the Applicant's compliance had to be assessed, where the Directions that applied from 13 October 2022 (Post 13 Oct Directions).	Agreed	Agreed
4. Compliance with prior Directions is irrelevant.	Agreed	Agreed
5. As at the effective date of dismissal the Applicant had received two doses of the AstraZeneca vaccine, but she had not received a booster. That is to say the Applicant could not be considered "fully vaccinated (boosted)" as defined in the Post 13 Oct Directions.	Agreed	Agreed
6. If the Applicant could not comply with the Post 13 October Directions that was a valid reason for dismissal.	Not agreed, because of the guidance documents (Exhibit 3.3.28)	Agreed
7. The Applicant had a permitted exception at least up until 14 October 2022 (that means she did not need to get a booster up until that date).	Agreed	Agreed
8. The Applicant was on leave from 1 October 2022. The Applicant was "provided with additional unpaid leave to 11 November 2022” (Figerado, para 14).	Agreed	Agreed
9. It appears that, even after 11 November 2022, the Applicant remained on authorised unpaid leave.	Agreed	Initially disagree.[8] It was contended that the Applicant was released from duty on unpaid leave.[9] However, later in the hearing the Respondent no longer contested proposition 9.[10]
10. The Applicant says she complied with the Post 13 October Directions because of the operation of paragraph 44.a. That is because she was a "health care worker" "on leave".	Agreed	Understands that is how the Applicant puts her case.
11. The Applicant does not contend that any other exception to or exemption form the Post 13 October Directions applied to her other than 44.a.	Agreed	Understands that is how the Applicant puts her case.
12. No medical contraindications applied to the Applicant as at the effective date of termination.	Agreed	Agreed
13. The Post 13 October Directions contains a definition (para 27), "leave means any period of authorised leave".	Agreed	Agreed
14. Leave, as defined, does not have to be paid leave. Unpaid leave can also be authorised.	Agreed	Agreed
15. The Respondent in its submissions does not expressly engage with the applicability of paragraph 44.a.	Not sure what the Respondent means.	Agreed
16. The Respondent contends (para 7) that Direction 44 "provides some limited exceptions." The Commissioner thinks the Respondent may mean "exemptions". Direction 44 is headed, "Exemptions to the requirement to be fully vaccinated or fully vaccinated (boosted) (as applicable) against COVID-19 where the health care worker has not displayed acceptable certification to show that they are an excepted person."	Agreed	Agreed
17. The Respondent further contends (para 7) that, "from 20 October 2022, the Applicant and her circumstances did not fall within any of those "exceptions". Again, the Commissioner thinks the Respondent means "exemptions".	Agreed	Agreed
18. The Commissioner presently does not understand why 44.a did not apply as at the effective date of dismissal.	N/A	N/A
19. The Commissioner wants to know when the Applicant ceased to be on authorised unpaid leave? When and how was this communicated? There appears to be no evidence that unpaid leave was cancelled, and the Applicant was required to return to work. If the Commissioner is wrong about this proposition, he invites the Respondent to take him to the evidence as it presently stands that contradicts the proposition.	N/A	N/A
20. Finally, the Commissioner asks that the Respondent provide to him and the Applicant, with the Applicant's leave records for the period 11 November 2022 - 9 February 2023. The Commissioner wants to know how the Applicant's period of absence from the workplace was being treated by the Respondent in its payroll/HR management system.”	Exhibit 6	Exhibit 6

As requested, the Respondent provided the Applicant’s payslips (Exhibit 6 in the DTB). The records indicated that the Applicant was on unpaid leave until 9 February 2023.

The Applicant submits that she was unfairly dismissed and seeks an order that she be reinstated.

Protection from Unfair Dismissal

An order for reinstatement or compensation may only be issued where the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of the dismissal. In the present matter this is not an issue in dispute in the proceeding, the Respondent concedes the same.

Consequently, the Commission, as presently constituted, is satisfied the Applicant was protected from unfair dismissal.

I will now consider if the dismissal of the Applicant by the Respondent was unfair within the meaning of the FW Act.

Was the dismissal unfair?

A dismissal is unfair if the Commission is satisfied, on the evidence before it, that all of the circumstances set out at s.385 of the FW Act existed. Section 385 provides the following:

“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.”

In the present matter it was agreed, and I so find that the Applicant was dismissed. Subsections 385(c) and (d) are not relevant. Consequently, it remains only for me to determine if the dismissal was harsh, unjust or unreasonable and, if so, what, if any, remedy should be awarded.

Harsh, unjust or unreasonable

In considering whether the Commission is satisfied the dismissal was harsh, unjust or unreasonable, the criteria the Commission must take into account are set out at s.387 of the FW Act:
“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 ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd[1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:[11]
“.... 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.”
I am under a duty to consider each of these criteria in reaching my conclusion.[12]

The Applicant submitted that the dismissal was harsh, unjust or unreasonable because:

“1. The Applicant (Melissa Hoffman) contends that the Respondent (Eastern Health) unfairly dismissed her in accordance with s.385 of the Fair Work Act of 2009 (as amended) (FWA 2009), without a valid reason for her dismissal and that termination of her employment was harsh, unjust and unreasonable.
2. The Applicant argues that the Respondent:

-          Terminated her employment against mandates which are revoked
-          Has not established any basis to terminate her employment
-          Failed procedural fairness by preventing opportunity to respond, using political bias, using coercion and punitive financial sanctions.

3. The witness evidence as well as written documentation evidence, demonstrates the Respondent’s clear and repeated failures to address fundamental issues, preventing the Applicant a fair-go.

4. Contents - The remainder of part 6.d is broken down into:

5. Section 385 Applicability
6.        Why the Applicant seeks a hearing
7.        Mandate Settings Definition (Prior / Current)
8.        Harshness Criteria Assessment

5. Section 385 Applicability - Up-front, to establish the basis of unfair dismissal under s.385 of the Fair Work Act of 2009 (as amended) (FWA 2009), the Applicant summarises the constitute elements as applicable to case U2023/1645:

- The Applicant was dismissed by the Respondent. s.385(a) applies as my Employer Eastern Health used their initiative on the 7th of February 2023 to declare termination of my employment through the letter at Document [L] (as per s 386(1)(a)).
- The Applicant’s dismissal was clearly harsh, unjust and unreasonable. s.385(b) applies to the extent that is detailed through the following harshness criteria:

(Harshness Criteria Applies)
o there was no valid reason for the dismissal (as per s.387(a))
o Applicant was not adequately notified of the reason (as per s.387(b))
o Applicant was impeded from responding to reason (as per s.387(c))
o Respondent’s large size enterprise, should have capacity to follow fair EBA procedures (as per s.387(f))
o (Other Matters) final payment to Applicant remains outstanding (as per s.387(h))
(Harshness Criteria Does Not Apply)
o suitable support and representation presence was allowed (as per s.387(d))
o matter not related to unsatisfactory performance, stating no fault termination (as per s.387(e))
o People and Culture representatives were present throughout (as per s.387(g))

- The Respondent is not a small business s.385c Applies as the Respondent is too large to be classified to be a small business (as per s.388)
- Not Redundancy. S385(d) applies as the dismissal was not declared as a case of genuine redundancy, rather they declared needing to fill this position (as per S.389)

6. Why the Applicant seeks a hearing:

- It is understandable that under exceptional COVID circumstances, that the Respondent might be overwhelmed with enforcement of vaccine mandates, that would be reasonably expected have required significant legal and Human Resource support to ensure compliance.

- However, the Respondent continued to demonstrate an ongoing organisational failure to recognise the revocation of ‘prior’ mandate settings and apply the significant change to ‘current’ mandate settings which are completely different legal instruments. This behaviour continues.

- Unfortunately, the Applicant has become collateral damage, whilst being too insignificant to bring about the important change that is urgently required.

- The Applicant provides evidence to a significant timeline of events linking documents as evidence to demonstrate the lengths she went to ensure that at each instance/opportunity, she provided clear and timely information to Respondent, to notify them of their obvious errors, providing complete information with accurate references, along with un-challenged and non-anecdotal evidence of compliance to BOTH ‘prior’ and ‘current’ mandate settings.

- The Applicant had an expectation to be provided a fair assessment process by complying with all requests, even proposing to use her own leave to offer the Respondent time so they could transition to the ‘current’ settings then assess her evidence. She also actively sought participation in a risk assessment process a clear employment right and common sense. -Ultimately none of this was afforded.

- At each instance the Respondent demonstrated a clear rejection of the ‘current’ mandate settings, summarily dismissing without reason of all evidence provided by the Applicant and any reasonable processes she proposed to get back to work.

- Ultimately the Respondent’s decisions throughout this process remain unilateral and with disregard of the Applicant or the Enterprise Barging Agreement (EBA) (Document [M]). This disregard extends to the requirements and safeguards of the law.

- And so, through this hearing the Applicant brings out into the light her claim of unfair dismissal for the Fair Work Commission’s assistance to remedy.

7. Mandate Settings Definition used to reduce confusion:

- Prior Mandate Settings - The Applicant uses the term ‘Prior Mandate Settings’ to refer to a suite of settings characterised by Documents [N], [O], [P] and [Q], which were in effect up to and including 12 October 2022 on which they were revoked. This includes the Health Minister’s Orders (Previously the Chief Health Officer’s Orders), which are underpinned by the Public Health and Wellbeing Act of 2008 and includes required supporting documents including a Human Rights Statements and Statement of Reasons.

- Current Mandate Settings - The Applicant uses the term ‘Current Mandate Settings’ to refer to a suite of settings characterised by Documents [R, [S] and [T], which commenced on 13 October 2022 and remain currently in-force. This includes the Health Secretary’s Directions underpinned by the Health Services Act of 1988 and includes the required supporting document Health Department Guidance on Secretary Directions.

- Note that both suites of mandate settings are distinct from each other and are materially different in relevant areas including: authorities involved, ability to use coercion, Exemption vs Exceptions, use of Leave as an exemption, use of compliance through vaccination or proof of immunity, Vaccine refusal requirements, ability to discriminate on basis of political beliefs.

8. Harshness Criteria Assessment - The Applicant argues that the harshness criteria is amply satisfied through the following sub criterion of s.387 and traced through to provided Documents:
8.1 Criteria s.387(a) examines “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)”
8.1(a) Applicant response to Dismissal Reason [1] - That the Applicant failed to comply with the Chief Health Officer for Victoria (CHO) Directions under the Public and Health Wellbeing Act 2008 (Vic):
- In short: The Applicant remained compliant, until the point that the settings were revoked.
- The Applicant provided the Respondent timely confirmation and full answers which demonstrate she maintained compliance to these settings (and other relevant settings) whilst also supporting these statements with evidence, including at Documents [B], [D] and [E].

- It is not possible to demonstrate compliance to the revoked prior mandate settings past 12 October 2022.

- The Respondent’s position remained fixed and unchanging on the assessment only against the prior mandate settings. This was evident in the two meetings but also documented in the doubling down on the Chief Health Officer Orders and Public Health and Wellbeing Act including Letters [L] and [G].

- The Respondent did not make it possible for the Applicant to be meaningfully heard on ‘current’ mandate settings including compliance, exemptions, relevant procedural guidelines and risk assessment/mitigation options. This is evidenced throughout the Applicant’s witness timeline in with Respondent responses in light of new information provided with references and direct hyperlinks. The Respondent’s actions in the face of this evidence, clearly make their decision and process as not sound and not well-founded.

- Coercion The Respondent’s actions to threaten or execute termination of an employee contingent on their vaccination choice, has been expressly confirmed by the Victorian Government within Documents [P] and [Q] to be Coercive by engaging and limiting Human rights (possibly by ignorance rather than by deliberate intent) and as such is un-reasonable and not consistent with Victorian Law.

o The current Secretary Directions at Document [R] under the Health Services Act (HAS) (Document [T]) are not coercive measures (as in they don’t carve out dismissal of the Human Rights Charter), which now allow for compliance via proof of immunity against the specified disease (HAS Document [T] Section 42(1)(ca) & HSA Section 105A), and also contain more exemptions and are supplemented with process guidelines for vaccine refusal within the Health Department Guidance.

o The current mandate settings are distinct from prior revoked Pandemic (Workplace) Orders at Document [N], under the Public Health and Wellbeing Act of 2008 (Document [O]) which are formally recognised by the Victorian Government (at Document [P]) in their exceptional context as coercive measures and limiting to worker’s human rights (Document [Q])

o There are a lot of openly available sources of advice on vaccine refusal and risk assessment requirements, including on the Fair Work’s own website which reasonably require the Respondent as an organisation to consider implementing reasonable measures as mandates ease, and recognise the importance of proportional response, and risk mitigations.

8.1(b) Applicant response to Dismissal Reason [2] - Under these circumstances, that the Applicant cannot legally attend the workplace and lawfully fulfil the requirements of my employment contract:
- In short: The applicant remained legally able to attend the workplace under these circumstances.
- The Applicant was working on-site under the similar exception conditions and apart from periods of leave, demonstrated willingness and (legal) ability work using my exception until settings were revoked.

- After 12 October 2022 these specific mandate settings no longer legally applied.

- Throughout correspondence and both meetings the Applicant maintained constant confirmation of her compliance. The Respondent had in their possession suitable and abounding amount of information, which an inquisitive mind should be reasonably expected at least reasonably suspect that their position was untenable and requiring re-investigation.

- The Respondent has failed to complied with explicit EBA obligations to assess the Applicant’s fitness for work in accordance with Clause 63 of the EBA at Document [M]. Without this, the Respondent has failed to achieve a minimum required EBA standard to assess the applicant’s ability to perform her role whilst there is a disagreement on suitability.

8.1(c) Applicant response to Dismissal Reason [3] – That the Applicant did not provide evidence of exemption:
- In Short: The Applicant did provide evidence of this exception (and then exemption) on multiple occasions. Only two of the multiple exception/exemptions were acknowledged.
- The Applicant is fully vaccinated (dose 1 and 2) and against Document [N] held valid exceptions from paragraphs 30 and 31, effective through to 14 October 2022 inclusive, that was provided to the Respondent within Document [D] (see also Attachment A of Document [D]).

- At Document [A] the Respondent initially claimed the Applicant’s exception (Which they refer to as an Exemption) expired on 1 October 2022. The Applicant sought to highlight this error, along with other apparent errors in paragraph 2.d of Document [B], also during the 24 October 2022 show cause meeting at and then by re-sending the evidence and timing (through to 14 October 2022) within Document [D]. A Respondent reaction email at Document [F] appears to acknowledge this evidence and adjust the termination consideration timelines retrospectively to correct. Also within Document [F] The Respondent acknowledges periods of leave post 13 October 2022. Therefore, opposite to the Respondent claims, they were clearly holding evidence of my valid exceptions and Exemptions.

- Explicit examples of the Respondent’s written dismissal of the new mandates (in addition to the two show cause meetings) is the rejection to accept the Applicant’s exception linked to Section 44.a ‘Leave’ of the ‘current’ mandates (one pair example is at Documents [D] and [F]).

8.1(d) Applicant response to Dismissal Reason [4] – That termination urgency was due to the Respondent’s temporary current workforce demand resulting from COVID:
- In short: This is not a legitimate reason to remove the Applicant’s due-process and cut-short her opportunity to address the show cause concerns in pursuit of preserving her career. The Respondent’s claim is in stark contradiction to their own all-staff messaging and requires further scrutiny.
- Both ‘current’ and ‘prior’ mandate settings allow for health care workers who are not fully vaccinated (boosted) to help reduce the stress on the health system should the employer deem it necessary (as per Documents [R] & [N]). The same urgency was not mentioned or demonstrated in the show cause process during the predicted “peak wave” in November and December of 2022.

- It is unreasonable for a permanent termination to the Applicant’s employment to be used as a solution to a temporary issue, being the healthcare workforce potential demand related to COVID.

- The witness statement and all Documents show that the Respondent’s workforce considerations were not raised prior to termination letter. Although the Applicant recognises that the Respondent’s need to prioritise their workforce for the care of our patients, they are choosing to take this action at the direct detriment and in disregard to her employment rights in the EBA at Document [M].

- The credibility of the Respondent’s ‘goodwill’ is in question from statement “as a gesture of goodwill we will pay you 4 weeks in lieu of notice (in addition to any outstanding leave that you have accrued but not taken) and your employment will end today.”. Once paid, evidence can be put on if they provided an additional 4 weeks as good will, or if they only provided the minimum amount imposed (by clause 23.1.d of Document [M]) upon an employer for not providing the minimum notice in accordance with Clause 23.1.a of Document [M]. As of 17 April 2023, the Respondent has not complied with payment of termination in accordance with Clause 26.3 of Document [M], providing only a partial payment.

- Through this hearing, the Applicant will require the Respondent to evidence their termination urgency claim, as it is ultimately in an untenable conflict with their public all-staff messaging. On 3 February 2023 at Document [K], the Respondent’s CEO confirmed the department’s concerns were not in an urgent state of readiness.

8.1(e) Applicant response to Other Dismissal Reasons – Respondent assertion that the Applicant refused vaccination:

- At no stage has the Applicant refused to be vaccinated, rather, on two occasions She demonstrated her willingness to receive COVID-19 vaccinations to protect against losing her employment as per Document [E].

- Note: Further, through this process the Respondent has not demonstrated they have followed the current mandate settings for ‘Vaccine refusal guidelines’ in accordance with Document [S].

8.1(f) Applicant response to Other Reasons – Respondent assertion of Applicant’s political intent, affecting termination decision, process and access to leave.
- The Respondent brought their perception on the Applicant’s political beliefs into the discussion and ultimately irreparably tainted the termination consideration with this bias.

- The first instance was recounted in the first show-cause meeting at by the Respondent’s People and Culture Representative, who out of no-where, asserted that the Applicant was wanting to wait until the government changed. This was directly refuted.
o The Applicant was seeking time to show full compliance (without reliance on exemption) to the current mandates. Also note-worthy is that the day after the ‘current’ mandate settings were released, the Applicant went for the serology test and that required time to provide the evidence of compliance to the Respondent.

o The Applicant knew (and made known) at that time that she was compliant through coverage by ‘current’ exemption 44.a (referring to paragraph 44.a of Document [R]), however depending on the medical results required, She was seeking to ensure this 44a exemption provided coverage. The Applicant did have other medical investigations progressing but did not want the Respondent further involved.

- However, denying leave is a tactic that could be used to put the Applicant into a technical default of compliance. The Respondent continued to outright deny that 44.a provided any valid exemptions and hence increased to a effective coercive action.

- The Respondent continued to memorialise the confirmed false representation of the Applicant’s political beliefs and motivations, on two formal occasions in November at Document [F], and again in their December letter at Document [G].

o The Applicant’s witness statement described how deeply distressing this was due to it being false (directly opposite to an addressed issue), that it had now been written down as a termination consideration, along with others the Applicant needed to address (the Applicant could not just address single changes, as this would indicate a level of agreement for other errors) and that we were in the lead-up to the state political election and She believed this reflected their bias.

o From 11 November 2022 the Applicant described hopeless on what she could do to remedy the detrimental effect on her termination process and was eager to address and remove this issue as quickly as possible. However, when preparing to address this issue, She realised that the ‘current’ mandate settings at Document [T] provides a specific ‘carveout’ in the Health Services Act to allow discrimination on Political Beliefs, and even noting the EBA at Document [M] does not allow this discrimination, it was understood to not legally be discrimination. She was at a loss of how to recover the damage to the termination decision being considered.

o However, although preparing for the next meeting, the Respondent did not readily arrange the next meeting and seemingly paused correspondence. There was a significant void in time between 11 November 2022 and 19 December 2022 when Eastern Health next contacted the Applicant to provide the second show cause letter, although dated 12th of December 2022 at Document [G].

o The significance of this time is the state election and caretaker period. The Respondent even explicitly comments on the election results within the show cause letter at Document [G].

o Given three day’s notice and fearing the inability for union representation in the hastily proposed meeting before Christmas (proposed for 22 December 2022) at Document [H] The Applicant provided a quick response to alert that the Respondent to more of their ‘significant’ errors within their letter which mis-represent previously addressed issues. This was one such significant issue.

- The Respondent’s own words and conduct demonstrate political considerations are inherent within their termination process and decision. Further than just demonstrating bias, they even were so bold at Document [G] as to link the Applicant’s perceived political belief as contingent to Her ability to access leave (i.e. employment conditions). Which was being used as a punitive measure throughout the show-cause process.
- The Applicant was repeatedly denied access to her annual leave and Long Service Leave (LSL), based on the Respondent’s error in stating that she was not compliant with the CHO’s directions. Even once the Applicant’s compliance was recognised to extend past the end date of the revoked orders, She continued to have her leave denied. This was grossly unfair as the Applicant even showed the Respondent by paragraph numbers within the current order’s guidelines where it clearly stated that having access to Annual leave and using LSL entitlements are appropriate courses of actions prior to consideration of termination (Documents [B] & [D])

8.1(g) Applicant response to Other Reasons – Respondent dismissed evidence of compliance and evidence of exemptions to ‘current’ mandate settings, with the understanding that ‘current’ mandate settings not applying:
- This is mainly described within the Applicant’s response to Dismissal Reason [1] above.

- At Document [E], the Applicant was able to show full compliance to the applicable ‘current’ mandate settings which legally allow her attendance on-site at the workplace, through non-anecdotal evidence that she held current immunity to COVID-19, and was double vaccinated, consistent with the applicable Secretaries Directions (Documents [R] and [S]) under the current mandate settings. The Respondent has not requested any clarification required, only that they only want to see a 3 vaccination or exceptions which a subset of exemptions limited to the ’prior’ mandate settings.

8.1(h) Applicant response to Other Reasons – Respondent denied their ability to use discretion in requirement waivers or leniency due to statutory obligations:
- In short: the Respondent’s position is contradicted by their own generosity. Also legally they are required to demonstrate proportionality.
- The Respondent states as fact in the Termination letter at Document [L] that “we have no discretion to waive these requirements”.

o This is in contradiction to Document [F] where the Respondent claim they are exercising generosity on granting leave and then seek to negotiate a leave offer package stating “Eastern Health did not review your employment at the point your exemption expired on 15 October and generously granted you annual leave, in October and November. You have requested further leave to remain employed to see if a change in political party will mean a change to the mandated vaccine requirements. If your intent is not to be vaccinated, we have no obligation to grant you leave”.

o The Applicant will seek the respondent to confirm this contradiction and the fairness basis of their negotiation terms on ability to access leave.
- Note that to prevent coercion, and as per current Department of Health guidelines at Document [S], a risk assessment is one of a few reasonable courses of action required to be part of this process. The Applicant demonstrates raising the reasonable expectations that a risk assessment would be part of the process if there was any delay in assessing her immunity compliance including within Document [B]. During the second show-cause meeting the Applicant highlighted that she had prepared input into a risk assessment process and sent this through during the meeting at Document [J]. The Respondent confirmed that they would not be including the Applicant within a risk assessment. This is in direct process conflict with the requirements of Document [S] required by Document [R]. This is in complete disregard to the current Law and it safeguards provided at Document [T] (albeit likely by organisational ignorance rather than by intention).

8.2 Criteria s.387(b) examines “whether the person was notified of that reason:
- The Applicant was notified of her dismissal though Termination Letter dated 7 February 2023 in Document [L].

- Where the Respondent explicitly defines “COVID-19 Mandatory Vaccination Directions” in Document [G] as being the ‘prior’ mandates, re-enforced explicitly by Documents [L], [G] and [A] as depicted below.”

The Respondent submitted that the dismissal was not harsh, unjust or unreasonable because:

“3 In summary, having regard to s 387 of the Fair Work Act 2009 (Cth) (FW Act), and relying upon the evidence filed by the parties, Eastern Health contends that:

a. the Applicant’s dismissal on 7 February 2023 was not harsh, unjust or unreasonable as alleged by the Applicant;

b. there was a valid reason for the Applicant’s dismissal – namely, that she could not perform the inherent requirements of her role as a Registered Nurse, due to being unable or unwilling to provide evidence that she was fully vaccinated (boosted), which was a requirement of the Victorian Government’s Directions, including those made the Secretary of the Department of Health under the Health Services Act 1988 (Vic) which operated from 13 October 2022;

c. the Applicant was notified of the valid reason;

d. the Applicant was given an opportunity to respond to the reason for her dismissal, including the proposed sanction of dismissal itself;

e. there was no refusal of any request from the Applicant for a support person;

f. Eastern Health accorded the Applicant fair treatment and procedural fairness in relation to the dismissal; and

g. in all the circumstances, the Applicant’s dismissal was fair and justified by the Applicant’s inability or unwillingness to perform the inherent requirements of her role.

4 This outline of submissions addresses the factors in s 387 of the FW Act in the order in which they are set out in that provision. Eastern Health submits that a consideration of those factors strongly supports a conclusion that the Applicant has not discharged her onus of establishing that her dismissal was harsh, unjust or unreasonable. The proceeding should accordingly be dismissed.
Valid reason for dismissal

The Government Directions
5 On 29 September 2021, the Victorian Government legislated and gazetted a Direction under the Public Health and Wellbeing Act 2008 (Vic) (PHW Act). The Direction is known as the COVID-19 Mandatory Vaccination Directions (No 4). The Directions made under the PHW Act were frequently updated, but each new Direction imposed an obligation to ensure a worker who is not vaccinated is not permitted to enter a specified facility for work purposes unless they provide proof that they are fully vaccinated (including “fully vaccinated (boosted)” ) or an excepted person. On 13 October 2022 the Directions made under the PHW Act were revoked and replaced by Directions made the Secretary of the Department of Health under the Health Services Act 1988 (Vic) (HS Act) (Directions). The most recent Directions made under the HS Act are found at Document [R] of the Applicant’s Statement.
6 Direction 42 of the current Directions is the key Direction with which Eastern Health had to comply. It relevantly provides:
Health care workers employed or engaged by a health service prior to the date these Directions take effect (current health care workers)
Current health care workers must be fully vaccinated or fully vaccinated (boosted) (as applicable) against COVID-19

42. Subject to clauses 43 and 44, a health service must ensure that:

a. any current health care worker whom it employs or engages and who is 18 years or older is fully vaccinated (boosted) against COVID-19 …

7 Direction 44 is also of some relevance. It provides some limited exceptions to the requirement in Direction 42. Eastern Health submits that, from 20 October 2022, the Applicant and her circumstances did not fall within any of those exceptions. It follows that Eastern Health was required at relevant all times to comply with Direction 42 (and Direction 45 – see below) in relation to the Applicant, and that the Applicant lacked capacity to perform her role in the absence of such compliance.
8 Direction 45 relevantly imposes the requirement on Eastern Health to obtain evidence of its employee’s vaccination status (and to record it), in aid of compliance with Direction 42.
The Facts

9         The central facts are not in dispute.
10       Since February 2010, the Applicant was working on a permanent part-time basis as a Registered Nurse at Maroondah Hospital. She was employed by Eastern Health from 2008.
11       As at 21 September 2022, the Applicant had received two AstraZeneca vaccinations but not a third booster dose as required by the Directions. At that time, the Applicant indicated (through her Union representative) that she wanted to wait “to determine if there will be a change to the booster mandate [and if it] will be lifted” (LC-1 to the Callahan Statement).
12       The Applicant commenced approved leave on 1 October 2022. Ms Hoffman was due to return to work on 20 October 2022, but by that time she had not received a third booster dose, which was required in order to be fully vaccinated (boosted) and to be able to lawfully attend work under the Directions.
13       The Applicant had previously contracted COVID-19 and therefore had an exemption, meaning she did not need to receive a booster dose, until 3 months after her infectious period ended, in order to lawfully attend work. That exemption period ended on 15 October 2022.
14       On 20 October 2022, Ms Figerado sent a letter by email to the Applicant, notifying her that Eastern Health was considering terminating her employment based upon her ongoing inability to perform the inherent requirements of her role. The letter (Applicant’s Statement, Document [A]) confirmed she was unable or unwilling to provide evidence of her third (booster) vaccination as required, and she was being released from duty as a result. The Applicant was invited to provide any further information or otherwise show cause as to why her employment should not be terminated at a meeting scheduled for 24 October 2022.
15       On 24 October 2022, a meeting occurred. It was attended by the Applicant, her Union representative (Ms Somerville of the ANMF), Ms Figerado and Ms Callahan (and others). At the meeting, the Applicant stated that she should be allowed to return to work, as she had immunity because she had previously contracted COVID-19 and she still had antibodies.
16       On 21, 24 and 26 October 2022, the Applicant emailed Ms Callahan asking to go on leave in order to avoid the booster requirement and contending that the vaccination booster requirement did not apply to her as she had antibodies to COVID-19 (Applicant’s Statement, Documents [B], [D] and [E]).
17       The Applicant was not compliant with the Directions by virtue of having antibodies, as she contended. However, she was provided with additional unpaid leave to 11 November 2022.
18       On 11 November 2022 Ms Callahan sent an email to the Applicant in which she advised the Applicant that she would receive a show cause letter based upon her ongoing failure or refusal to be fully vaccinated (boosted) as her exemption had expired on 15 October 2022 (Applicant’s Statement, Document [F]).
19       On 12 December 2022, Ms Figerado wrote to the Applicant notifying her that a provisional decision had been made to terminate the Applicant’s employment, based upon her ongoing inability to perform the inherent requirements of her role. The letter (Applicant’s Statement, Document [G]) confirmed she was unable or unwilling to provide evidence that she was fully vaccinated (boosted) as required. The letter referred to the Chief Health Officer’s directions under the PHW Act, rather than the directions of the Secretary under the HS Act, however there was no material difference between the requirements to be fully vaccinated in those directions. The Applicant was invited to attend a further meeting in order to provide any further information or otherwise show cause as to why her employment should not be terminated.
20       On 19 January 2023, there was a further meeting, attended by the Applicant, her Union representative, Ms Figerado and Ms Callahan (and others). The Applicant stated at that meeting that she should be allowed to return to work as she had immunity because she had previously contracted COVID-19. She said she still had antibodies.
21       On 7 February 2023, Ms Figerado wrote to the Applicant notifying her of the termination of her employment based upon her decision not to receive the COVID-19 vaccinations as required in order to lawfully attend the workplace. The letter (Applicant’s Statement, Document [L]) stated that the Applicant would receive four weeks’ pay in lieu of notice as a gesture of goodwill, despite not being entitled to any notice or payment in lieu, as she was unable to work. The letter also noted that the Applicant could reapply for a role at Eastern Health should she change her mind in regard to being vaccinated.
22       As the letter of 7 February 2023 confirmed, the Applicant was unable to fulfil the inherent requirements of her role as an employee of Eastern Health because she had not provided evidence that she was fully vaccinated (boosted) as required by Direction 42 of the Directions.
23 This was a valid reason for dismissal relating to the Applicant’s capacity, for the purposes of s 387(a) of the FW Act. It weighs strongly in favour of the conclusion that the Applicant’s dismissal was not harsh, unjust or unreasonable.
Notification of reason and opportunity to respond
24       As part of a procedurally fair process, Eastern Health provided the Applicant with a real and substantial opportunity to respond to what ultimately became the valid reason for her dismissal. This is demonstrated by the facts set out in paragraphs 14 to 16 and 18 to 21 above.
25       The Applicant availed herself of the opportunity to respond (both orally and in writing) and was clearly well apprised, before the dismissal occurred, of the reasons for the dismissal.
26 The factors in ss 387(b) and (c) accordingly weigh in favour of a conclusion that the dismissal was fair.
Support person
27 The factor in s 387(d) of the FW Act is neutral in the present case, and certainly does not weigh in the Applicant’s favour. There was no denial of a request for a support person and, in fact, the Applicant had union representation at all stages of the process.
Performance
28 The factor in s 387(e) is not a relevant consideration or it is neutral, because the dismissal was in relation to the Applicant’s capacity.
The Respondent’s size and human resources expertise
29 The matters in ss 387(f) and (g) of the FW Act are neutral factors. Eastern Health is a substantial organisation which employs persons with human resources expertise.
Circumstances of the termination and other matters

30 The circumstances of the Applicant’s dismissal were not harsh, unjust or unreasonable. She was treated with respect, politeness and as well as an employer could treat an employee whose employment is being terminated. The Applicant lacked capacity to perform the inherent requirement of her role. Dismissal was a fair and reasonable response to that reality.
31 The procedurally fair process also weighs in favour of the conclusion that the dismissal was fair and not in any way harsh. The fact that the Applicant was advised that she could reapply for a role at Eastern Health should she change her mind in regard to being vaccinated also militates in favour of a conclusion that the dismissal was fair.
32 The Commission should have regard to the preceding matters pursuant to s 387(h) of the FW Act.”

I will now consider each of the criteria at s.387 of the FW Act separately.

Valid reason - s.387(a)

The Respondent must have a valid reason for the dismissal of the Applicant, although it need not be the reason given to the Applicant at the time of the dismissal.[13] The reasons should be “sound, defensible and well founded”[14] and should not be “capricious, fanciful, spiteful or prejudiced.”[15]
There are now ample decisions of the Commission that support the proposition that the failure of an employee to meet the inherent requirements of their position provides a valid reason for dismissal based on capacity (or rather incapacity). This does not require a medical incapacity.
In the present matter:

a) it was an inherent requirement of the Applicant’s position, as a Registered Nurse, to attend the workplace.
b) the October Directions prevented the Respondent from allowing the Applicant to attend the workplace without being “fully vaccinated (boosted)” unless
i.(paragraph 43 of the October Directions) she was an “excepted person”, or
ii.(paragraph 44 of the October Directions) if the Applicant was not an excepted person, the Respondent had:

A.    conducted a health and safety risk assessment;
B.     determined that the Applicant did not pose an unacceptable risk; and
C.     (relevant for present purposes) the Applicant was on leave.

c)   the Applicant was not an excepted person.
d)   on the date of dismissal, the Applicant was on leave.
e)   however, as at the date of dismissal, the Respondent had not:
i.conducted a health and safety risk assessment (it was not required to do so);
ii.determined that the Applicant did not pose an unacceptable risk.

Consequently, at the date of dismissal:
a)   (and indeed to date), the October Directions have not been declared by a court to be invalid.
b)   neither paragraph 43 nor 44 in the October Directions applied to the Applicant.
c)   the Respondent was prevented from allowing the Applicant to attend the workplace.
d)   the Applicant could not perform an inherent requirement of her position.
e)   the Respondent had a valid reason to dismiss the Applicant.

Mr Hoffman, for the Applicant, placed much store in the application of the Policy Guidance for Healthcare Settings (Exhibit 3.3.28) and his contention that the Respondent did not follow them. It was a misplaced argument because the Policy Guidance:
a) expressly states “Health care settings are not required to adopt all elements of this policy”; and
b) does not override the authority of the October Directions.
Noting that the Applicant had been on approved leave since 1 October 2022, it was open to the Respondent to allow the Applicant to continue approved leave. However, it was not required to do so. The Respondent gave evidence about the cogent business reasons for wanting to fill the Applicant’s substantive position. The fact that the Respondent could have done something different does not deprive it of having had a valid reason for dismissal at the date of dismissal.
For these reasons I am satisfied that the Respondent had a valid reason to dismiss the Applicant. It was one related to her capacity to perform her role. The Applicant was entitled to be concerned about what might be the health consequences of a vaccine booster having regard to her previous experience. She was entitled to her opinions about the efficacy and safety of the COVID-19 vaccines. The Applicant was also within her rights to decline to be boosted. But her choice had the inevitable consequence that the Applicant rendered herself unable to perform her job. The Respondent was prohibited by law from allowing her to attend the workplace unless she provided the required evidence. Had the Respondent allowed the Applicant to attend the workplace it would have broken the law. As Deputy President Colman explained in IsabellaStevens v Epworth Foundation,[16]
“There was … a … regulatory requirement that attached to [the Applicant’s] job. She could have decided to take the necessary steps to meet the requirement. She decided not to do so.”

Notification of the valid reason - s.387(b)

Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,[17] in explicit terms[18] and in plain and clear terms.[19] In Crozier v Palazzo Corporation Pty Ltd[20] a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations FW Act 1996 stated the following: [21]
“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
In the present matter I am satisfied that the Applicant was notified of the valid reason.

Opportunity to respond - s.387(c)

An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common-sense way to ensure the employee is treated fairly and should not be burdened with formality.[22]
The evidence in this matter clearly demonstrates that the process gone through by the Hospital was procedurally fair (albeit protracted for various reasons). The Applicant remained an employee, albeit on leave, from 1 October 2022 onwards. Additionally, the Applicant was given the opportunity to attend with a union representative to each show cause meeting. There is nothing more that the Respondent could have done from a procedural fairness perspective.
I find the Applicant was given an opportunity to respond to the reason for the dismissal.

Unreasonable refusal by the employer to allow a support person - s.387(d)

Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
The Applicant attended with a union representative to each show cause meeting. Consequently, I find the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal.

Warnings regarding unsatisfactory performance - s.387(e)

Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct.[23]
The dismissal of the Applicant was not related to her performance. The dismissal related to the Applicant’s capacity to perform her job when the Hospital determined that she could not satisfy the requirements of the relevant public health order. Consequently, warnings about unsatisfactory performance are not a relevant consideration.

Impact of the size of the Respondent on procedures followed - s.387(f) and absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

The size of the Respondent’s enterprise is unlikely to have impacted the procedures followed by the Respondent in effecting the dismissal.
The purpose of ss.387(f) and (g) is,
“not to raise the bar larger employers like [Hospital], but require the Commission to take into account these common features the small 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.”[24]

Other relevant matters - s.387(h)

Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant.
I take into account the following:
a)   The fact that the Applicant’s views and concerns about being boosted with a COVID-19 vaccination were genuinely held. Although the Applicant was not required for cross-examination and I was not able to assess her for myself, nothing in the material suggests that the Applicant was anything but sincere. The Applicant was and is entitled to her opinions. But the Respondent had to comply with the law.
b)   The Applicant submitted that her dismissal was unfair because she was dismissed at a time when she could have been allowed to continue with unpaid leave. I have addressed this matter above. The Respondent had cogent business reasons for not doing so. The Respondent had already granted her a long period of unpaid leave. In my opinion, the Respondent had reasonable business grounds to not continue with unpaid leave. But in any event, even if the Applicant had been allowed to remain on unpaid leave, it would not have made any difference. At some point, (if not on the date of dismissal) the leave would have concluded and (even at the date of the hearing) the Applicant would have been the subject of directions she chooses not to comply with.
c)   The fact that the Applicant had worked for the Respondent for over 15 years and had a good employment record. She was fit, ready and willing to work. But she was unable to work. As a consequence of the decisions the Applicant made, the Respondent was prohibited from allowing her to attend the workplace. Her dismissal was a tragedy for her and a great loss to the public health system.

Conclusion

Having considered each of the matters specified in s.387, the Commission, as presently constituted, is satisfied the dismissal of the Applicant was not harsh, unjust nor unreasonable.
Accordingly, I find the Applicant’s dismissal was not unfair.
Her application for an unfair dismissal remedy is dismissed.

An order will be issued with this decision [PR762598].

COMMISSIONER

Appearances:

Mr A Hoffman on behalf of the Applicant
Mr J Tracey & Mr D Hartnett on behalf of the Respondent

Hearing details:

2023
Melbourne (by Video using Microsoft Teams)
25 May.

[1] [24].

[2] Transcript PN295.

[3] Transcript PN311.

[4] Exhibit 3.1 at page 25 of the Digital Tribunal Book (“DTB”).

[5] Exhibit 3.3.14 at page 87 of the DTB.

[6] Transcript PN334.

[7] Transcript PN29-136.

[8] Transcript PN67.

[9] See also page 87 of the DTB.

[10] Transcript PN662.

[11] [128].

[12] Sayer v Melsteel[2011] FWAFB 7498.

[13] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

[14] Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

[15] Ibid.

[16] [2022] FWC 593, [24].

[17] Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

[18] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

[19] Previsic v Australian Quarantine Inspection Services Print Q3730.

[20] (2000) 98 IR 137.

[21] Ibid at 151.

[22] RMIT v Asher (2010) 194 IR 1, 14-15.

[23] Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.

[24] Stevens v Epworth Foundation[2022] FWC 593, [32].

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Citations

Mrs Melissa Hoffman v Eastern Health, Maroondah Hospital [2023] FWC 1259

Cases Citing This Decision

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Statutory Material Cited

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Warrell v Fair Work Australia [2013] FCA 291

Byrne v Australian Airlines Ltd [1995] HCA 24