Ms Chantelle O'Connor v The Commissioner for Public Employment
[2022] FWC 1400
•23 JUNE 2022
| [2022] FWC 1400 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Chantelle O'Connor
v
The Commissioner for Public Employment
(U2021/11542)
| COMMISSIONER RIORDAN | SYDNEY, 23 JUNE 2022 |
Application for an unfair dismissal remedy
On 13 December 2021, Ms Chantelle O’Connor (the Applicant) filed an application (the Application) with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the FW Act). The Applicant was dismissed by the Commissioner for Public Employment (the Respondent) on 1 December 2021 on the basis that she was not able to perform the inherent requirements of her job.
The Applicant was employed by the Northern Territory Public Service from 5 October 2018 and was employed by the Department of Health as an Administrative Officer at the time of her dismissal on 1 December 2021.
The Applicant’s employment was covered by the Northern Territory Public Sector 2017 – 2021 Enterprise Agreement.
While the Applicant originally sought reinstatement on filing her Form F2 – Application for unfair dismissal remedy, the Applicant now seeks compensation.
Background
On 18 March 2020, a public health emergency was declared in the Northern Territory as a result of the COVID-19 pandemic.
On 13 October 2021, the Northern Territory Chief Health Officer issued COVID-19 Direction (No. 55) 2021 (CHO Direction No. 55) directing for mandatory vaccination of workers to attend the workplace. These directions applied to the following workers:
a)a worker who, during the course of work, is likely to come into contact with a vulnerable person;
b)a worker who is at risk of infection with COVID-19 because the worker, during the course of work, is likely to come into contact with a person or thing that poses a risk of infection;
c)a worker whose workplace poses a high risk of infection with COVID-19;
d)a worker who performs work that is necessary for the operation or maintenance of essential infrastructure or essential logistics in the Territory.
These directions provided that for the period starting on 13 November 2021, a worker who had not received the first dose of an approved COVID-19 vaccination must not attend the worker’s workplace. On and from 24 December 2021, a worker who had not received two doses of an approved COVID-19 vaccine must not attend the worker’s workplace.
These directions applied unless the worker could provide evidence of a contraindication to all approved COVID-19 vaccines.
On 13 October 2021, Ms Jodie Ryan, Chief Executive Officer, Department of the Chief Minister and Cabinet, Northern Territory Government, wrote to all Northern Territory Public Service (NTPS) employees regarding the CHO Direction No. 55 and confirming the requirement that all staff receive the first dose of the COVID-19 vaccine by 13 November 2021 and to be fully vaccinated by 24 December 2021. The email correspondence noted the exemption for a proven contraindication.
Various Internal Broadcasts by the Northern Territory Health Chief Executive Officer (CEO), Dr Frank Daly, followed Ms Ryan’s correspondence which provided further information regarding COVID-19 vaccination requirements for workers.
On 10 November 2021, the CEO directed the Applicant to provide vaccination information as follows:
“Dear Chantelle Naomi
RE: DIRECTION TO PROVIDE VACCINATION INFORMATION
In order to ensure compliance with Northern Territory Chief Health Officer "COVID-19 Directions (No. 55) 2021: Direction for mandatory vaccination of workers to attend the workplace" (CHO Directions No. 55), on Wednesday 13 October 2021 I directed all employees of the Department that they were required to:
a. record their COVID-19 vaccination status in myHR prior to 5 November 2021; and
b. provide their manager with evidence of their COVID-19 vaccination status for verification.To ensure I discharge my duty of care to all workers and others entering the department’s workplaces I expect all employees in this department to comply with the CHO Direction.
To enable compliance, on 2 November 2021, I again directed all employees of the Department to record their vaccination status in myHR prior to 5 November 2021.
On 9 November 2021 an audit of myHR vaccination information established that you had not yet entered your vaccination status in myHR.
If there is any technical difficulty or other reason preventing you from entering your vaccination information into myHR, or if you have entered uour information, but are yet to provide evidence, or receive a response from your manager, please contact your manager as soon as possible.
Direction to enter vaccination information
In accordance with CHO Directions No. 55 and my duty of care to all workers and other persons entering the Department's workplaces, I direct you to immediately enter your COVID-19 vaccination status into myHR and to provide your manager with the required verification.Exclusion from workplace
If your information is not entered and verified by midnight on Friday 12 November 2021 you are directed not to attend your workplace on and from Saturday 13 November 2021 and you will be stood down from duties on full pay until such time as your vaccination status is entered and verified, or I decide to take action in relation to your employment under the Public Sector Employment and Management Act 1993 (the Act).If you remain non-compliant with the CHO Directions and I decide to take action in respect to your employment under the Act I will write to you and outline my intentions.
If you have updated your status in myHR since the 9 November 2021, please disregard letter.
Yours sincerely
Dr Frank Daly
MBBS FACEM GAICD FLWA
Chief Executive
10 November 2021”
The Respondent received an automatic reply from the Applicant on 10 November 2021, stating:
“I am on unexpected leave and I will not be monitoring emails.
Please contact [redacted].
Thank you, Chantelle”
The CEO wrote to the Applicant on 24 November 2021, by email to the Applicant’s work and personal email addresses, as follows:
“Dear Chantelle
RE: INABILITY TO PERFORM DUTIES - CHO DIRECTIONS No. 55 OF 2021.
I refer to my letter dated 14 November 2021 in which I advised you that I had reasonable grounds to suspect that there were inability and performance grounds in relation to your employment, under section 44(1) of the Public Sector Employment and Management Act 1993 (the Act).
My letter invited you to make submissions as to whether you agreed with my suspicion and provide me with any other comments you wished in relation to the matters particularised in that
letter.I acknowledge receipt of your response on 16 November 2021 in which you advised that you are currently on personal leave up to 24 November.
In accordance with CHO Directions 55 of 2021 and my directive, you were required to show evidence that you had (at least) received your first dose of the COVID-19 vaccine by 12 November 2021 (partially vaccinated) and your second dose by 24 December 2021 (fully vaccinated) or that you have a medical exemption (contraindication).
After considering all of the information and evidence, including your response, I now make the
following findings.1. Because you have not received the first dose of an approved COVID-19 vaccine, Directions
6 and 10 of CHO Directions No. 55 of 2021 require that you must not attend your workplace, and I must not allow you to do so;
2. I am not able to provide you with suitable alternate duties in a workplace that is not subject to CHO Directions No. 55 of 2021;
3. As a consequence, I am satisfied on reasonable grounds that there are inability and performance grounds for your employment because
a. you are not able to perform the inherent duties of your position (for a reason other than physical or mental illness or disability) - under section 44(1)(a) of the Act; and/or
b. you are not suited to perform the inherent duties of your position - under section 44(1)(b) of the Act.Proposed remedial action
Having found that there are inability and performance grounds in relation to your employment, as set out above, I must now consider what is reasonable and appropriate remedial action in the
circumstances and in light of the actions available to me under section 46(1) of the Act.As you have not received an approved COVID-19 vaccination, and you have advised that you do not intend to do so, none of the options available under sections 46(1)(a) to 461(b)(ii) of the Act (including training, reduction in salary, or transfer to alternate duties) will remedy your inability to attend the workplace to perform your duties.
As no other reasonable and appropriate remedial actions are available to me, I consider that the
only reasonable and appropriate action available to me is to terminate your employment under
section 46(1)(c) of the Act.However, before I take that remedial action, I invite you to submit to me in writing any reasons why I should not terminate your employment.
Your written submission, if any, must reach me by the close of business Monday 29 November
2021. If no response is received within this time, I will make final decision based on the material
currently have.Available support
As previously advised, the Employee Assistance Program is available to you. These services are completely confidential. You may also wish to seek advice and assistance from your union.Please note, this matter remains confidential.
If You wish to discuss this matter please contact Workforce Services via email: [redacted].
Yours sincerely
Dr Frank Daly
MBBS FACEM GAICD FLWA
Chief Executive
24 November 2021”
The Applicant provided her response on 28 November 2021, which provided:
“Dear Dr Frank Daly
RE: Inability to Perform Duties - CHO Directions No. 55 of 2021
I provide the following written information in good faith as requested and request that the information in this correspondence be treated with dignity and confidentiality as required pursuant to the Commonwealth Privacy Act (Cth).
This is the first correspondence I have received on this matter.
Firstly, you are referring to your letter dated 14 November 2021 in which you allegedly advised you have reasonable grounds to suspect that there were inability and performance grounds in relation to my employment.
I did not receive this letter. I now request a copy of this letter and the correspondence from me advising I am currently on personal leave up to 24 November.
I was on recreation leave 29 October 2021 - 3 November 2021 inclusive. During this period I attempted to provide my vaccination status in MyHR but there was not a suitable option available.
I did not receive any email or written correspondence from you but I did receive a text message to my personal mobile which prompted me to advise my manager of my vaccination status. I did this via phone conversation on 10 November 2021 at 10:22am whilst on medical leave which commenced 4 November 2021 and is inclusive of the day I received your correspondence in discussion 24 November 2021.
Industrial Relation Matters for consideration
a.I write you pursuant to your obligations in sections 17 and 18 and 19 in the Work Health and Safety (National Uniform Legislation Act (NT) and section 3A of the Return to Work Act (NT).
b.My employment is not only underpinned by the subordinate Public Sector Employment and Management Act (NT) but my employment is also underpinned by the Commonwealth legislation the Fair Work Act (Cth).
c.This is confirmed in the Fair Work Commission decision [2012] FWA 7069 Karen Jones v Northern Territory Commissioner for Public Employment (17 August 2012).
d.I reconfirm that I have provided legitimate medical certificates and now attach them for your information. Pursuant to section 97 (a) of the Fair Work Act (Cth), I have been on legitimate sick leave which is ongoing until 2 December 2021 and the COVID19 Directions (Numbers 55) 2021 issued by the Northern Territory Government Chief Health Officer cannot override section 97 (a) of the Fair Work Act (Cth).
e.As I am on legitimate sick leave certificate in relation to a number of health matters, not pertaining to contraindication pertaining to COVID19 vaccination, and as such the Department is still obligated to comply with section 97 (a) of the Fair Work Act (Cth) and not ignore it because it is not a medical certificate specifically in relation to the contraindication pertaining to COVID19 vaccination.
f.As such I request that the Department continue to pay me for this sick leave pursuant to section 97 of the Fair Work Act (Cth) to the date as stated for the entire period of my sick leave certificate, being up to 2 December 2021.
g.As a CEO, you cannot suspended me without pay prior to 2 December 2021 and in the unfortunate event you were to do so, this decision would be deemed invalid pursuant to sections 97 and 352 of the Fair Work Act (Cth), because I have a legitimate medical certificate.
h.For the sake of completeness section 97 of the Fair Work Act (Cth) states as follows –
“An employee may take paid personal/carer’s leave if the leave is taken:
i.Because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or
ii.To provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of:
(i) A personal illness, or personal injury, affecting the member; or
(ii) An unexpected emergency affecting the member”
i.It is requested that the Department inform itself of its obligations pursuant to sections 97 and 352 of the Fair Work Act (Cth) as explained in the following case authority
[2012] FMCA 208 Kavassilas v Migration Training Australia Pty Ltd (No. 2 )
(29 March 2012).
j.For the sake of completeness section 352 of the Fair Work Act (Cth) states as follows
“352 Temporary absence – illness or injury
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
Note: This section is a civil remedy provision (see Part 4-1).”k.The Department should not adopt a one size fits all approach when dealing with my employment matters.
l.As I am not at at work physically and on legitimate sick leave up until 2 December 2021, and nor in the workplace and nor dealing with stakeholders and or other employees and nor vulnerable persons and nor members of the public, I am not contravening section 351 2 (b) of the Fair Work Act (Cth) dealing with inherent requirements.
m.What constitutes an inherent requirement as per section 351 2 (b) of the Fair Work Act (Cth) is explained in the High Court of Australia decision [1998] HCA 18 Qantas Airways Limited v Christie (19 March 1998).
n.It is contended that a Department not accepting a legitimate medical certificate constitutes unreasonable management action and does not comply with section 3A of the Return to Work Act (NT) and I also rely on the Northern Territory Court of Appeal decision [1999] NTCA 28 Faye Rivard v Northern Territory of Australia (25 March 1999) in relation to what constitutes unreasonable management action and furthermore, I also rely on the Fair Work Commission decisions of Commissioner Jenifer Hunt [2021] FWC 4507 Tao (Selina) Qu v Monards Pty Ltd (27 July 2021) and also the decision of Commission Bruce Williams [2021] FWC 1364 Michelle D'Souza v Woolworths Group Ltd (18 March 2021) in relation to what constitutes unreasonable management action.
o.I have not engaged in serious misconduct as defined in section 12 of the Fair Work Act (Cth) and as per Regulation 1.07 of the Fair Work Act (Cth).
p.20. The Fair Work Commission decision [2010] FWA 8192 Keyin Heffernan v Tabro Meat Pty Ltd (28 October 2010), of Commissioner Michelle Bissett states that the Fair Work Commission supports that the following principles must always be applied whereby employers -
. must not apply two sets of rules, and or
. must not have substantially different tolerances in the workplace.
The question I have is are there any other employees who have been allowed to work from home by the Department whereby it is operational and practicable to be able to do so and request that the Department also now consider my request to work from home on the grounds it is operational and practicable for me to continue to do so.
I do not agree with the Department's assessment that I am unable to perform my duties of employment based on my qualifications and knowhow and it is reasonable and practicable for the Department to allow me to perform my duties from home and the Fair Work Act (Cth) and the CHO Directions (Numbers 55) 2021, does not prohibit the Department making a decision via management prerogative [Fair Work Commission decision [2016] FWC 6791 Transport Workers' Union of Australia v Sydney Night Patrol & Inquiry Co Pty Ltd t/a SNP Security (30 September 2016)] to make a decision to allow me to perform all my role and duties from home.
To support your investigation on your suspicion there is inability or performance grounds which exist in respect to my employment, I am providing additional information specific to my role as it is my opinion that I am able to perform all aspects of my role working from home.
As you are aware, the CHO55 direction states at Part 2.12 "Nothing in these Directions prevents a person conducting a business or undertaking from making reasonable adjustments to accommodate a worker who is not vaccinated".
A worker who is not vaccinated or is exempt from vaccination may attend the workplace if they are:
. not likely to come into contact with a vulnerable person; and
. not likely to come into contact with a person or thing that poses a risk of infection with
COVID-19; and
. not likely to be exposed to a high risk of infection with COVID-19.My immediate team consists of only myself and manager who is not classed as a vulnerable person.
ATTACHMENT A: Northern Territory Government Working from Home authorised agreement for the period 26 March 2020 - 24 April 2021 and evidence working from home took place outside of this agreement. This was a directive from you as my employer.
. Worked from home FULL TIME during March and April 2020
. Worked from home between March 2020 and May 2020
o ATTACHMENT B 22 April 2021 - Email with mixed working arrangements
o ATTACHMENT C 22 May 2020 - Email with mixed working arrangments
. Darwin lockdown periods 28/6/21- 2/7/21 and 16/8/21- 19/8/21 I worked from homeATTACHMENT D: Stakeholder Engagement Officer TEHS ID 122019
Job Description - Work location specified: Darwin (not location specific).I have been the main point of contact for internal communications since I began in this role in February 2020. I am confident confirmation can be sought from any person I had the pleasure of working with to confirm my positive and professional work ethic, as well as the high standard of my work.
Assessing the roles and responsibilities listed in my job description (ATTACHMENT D) there is only one duty that I feel I would need to submit further detail for you, and I do so below.
2. Develops and delivers events and forums
Submission: The event being referenced refers to the Top End Health Service, Service Excellence and Innovation Awards Working with the Chief Operating Officer to establish the expectations, I developed the assessment criteria and collateral, appointed the working group and judging panel, coordinated the assessment of submissions and then was being required to, under pressure, take into consideration the sudden COVID-19 pandemic restrictions. Responding innovatively and adapting, I communicated the requirements with all stakeholders via email and TEAMS meetings, and liaised with the health facilities involved to assist me in facilitating the awards online. I sourced a company to assist with digitally broadcasting, identified some key staff from Katherine, Gove and across the service delivery facilities in the Top End and delivered the awards ceremony online to groups in their local areas across the Territory. I was praised by then Chief Operating Officer Michelle McKay for a fantastic result and was under budget.
ATTACHMENT E - Awards COVID.pdf
Note: The 2021 award ceremony was considered 11/6/21 by Allison Grierson, Mish Hill and Naomi Heinrich to consider a potential whole of NT Health ceremony as Top End Health Service was integrated. It did not progress.
I have proven I can undertake all aspects of my role working from home by doing so successfully during my tenure in this position. Wilfully and deliberately not allowing these working provisions to continue would be unfair.
As my employer, you have management prerogative allowing direction of employees to perform their work. The provisions I have discussed, have already been authorised and undertaken. These are not new working arrangements, they are lawful, reasonable and practical and will fulfil your obligations of risk mitigation and duty of care provisions in sections 17 and 18 and 19 in the Work Health and Safety (National Uniform Legislation Act (NT).
The working from home provisions I am suggesting addresses reasonably and practicably all in relation to ensuring health and safety, taking into account and weighing up all relevant matters section 17 (a) - (c) and the availability and suitability of ways to eliminate or minimise the risk. "After assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk."
Continuing to work from home as per previous arrangements is non onerous a cost-effective solution to enable me to continue in this role.I now seek confirmation of receipt by email from the Department via email and I look forward to your response and my return to work.
Best regards,
ChantelleChantelle O'Connor
[email address redacted]
28 November 2021”
The Applicant annexed to this correspondence three medical certificates providing that:
-she had a medical condition and would be unfit for work from 4 November 2021 to 18 November 2021 inclusive;
-she had a medical condition and would be unfit for work from 18 November 2021 to 24 November 2021 inclusive; and
-she had a medical condition and would be unfit for her usual occupation from 25 November 2021 to 2 December 2021 inclusive.
The CEO dismissed the Applicant by formal letter of 1 December 2021:
“Dear Chantelle
RE: Termination of Employment - Inability to Perform Your Duties
I refer to my letter dated 24 November 2021 in which I advised you of my findings that there were inability and performance grounds in relation to your employment, under sections 44(1)(a) and 44(1)(b) of the Public Sector Employment and Management Act 1993 (the Act).
My letter also foreshadowed my intention to terminate your employment in the NT Public Sector, under section 46(1)(c) of the Act, and invited you to make submission s as to why I should not take that action.
I have carefully considered all the evidence available to me, including your response received 28 November 2021 and your submissions in which you:
oAdvised that you did not receive my letter dated 14 November 2021. Please be advised that I sent it to the same email address as per my latest correspondence that you did receive, (the email address I received your response from on the 16 November 2021). Regardless, I have attached my earlier correspondence with this letter;
oAdvised that you commenced personal leave from 4 November until 24 November 2021 for a number of health matters not pertaining to contraindication to COVID 19 Vaccination which was approved. Have since issued a follow up medical certificate from 25 November to 2 December 2021and have requested the department continue to pay for your personal leave until this date;
oRequested further consideration to a working from home arrangement on the grounds that other staff have been afforded this opportunity.
Having given the matter careful consideration:
1. I am prepared to approve your personal leave from 24 November to 2 December 2021as per your current medical certificate;
2. I am not willing to consider a working from home arrangement on the basis that you have reported you are currently unfit for duty until early December and any working from home arrangements that have been approved were on a short term basis and not to circumvent the requirements of the CHO Directions (No.55) 2021, and all staff were instructed they must be fully vaccinated or provide an exemption by 24 December 2021.
I maintain my earlier findings that because:
1. you have not received the first dose of an approved COVID-19 vaccine, Directions 6 and 10 of CHO Directions No. 55 of 2021 require that you must not attend your workplace, and I must not allow you to do so; or provided any indication that you are willing to receive the vaccination; and
2. I am not able to provide you with suitable alternate duties in a workplace that is not subject to CHO Directions No.55 of 2021;
you are not able to perform the inherent requirements of your duties, under section 44(1)(a) of the Act, and/or you are not suited to perform the inherent requirements of your duties, under section 44(1)(b) of the Act.
Remedial Action
As you have not provided evidence that you have received the first dose of an approved COVID- 19 vaccine I remain satisfied, on reasonable grounds, that the only reasonable and appropriate remedial act ion available to me is to terminate your employment under section 46(1)(c) of the Act.
Notice of Termination
Pursuant to section 46(1)(c) of the Act , I hereby terminate your employment in the NT Public Sector with effect from the date of this letter.
In accordance with section 117 of the Fair Work Act 2009 you will receive a payment in lieu of being given notice of termination.
Under section 59A of the Act you may appeal against my decision. Any appeal must be lodged
within 14 days after you receive this letter with: [redacted]If you would prefer, you may wish to make make (sic) an unfair dismissal application to the Fair Work Commission. More information is available at: https:// rulesform/unfair-dismissal-application or by telephone to 1300 799 675. Applications to the Fair Work Commission must be on the prescribed form, available on the website, and lodged within 21 days.
As previously advised, the Employee Assistance Program is available to you. These services are completely confidential.
If you have any questions about this matter please do not hesitate to contact Workforce Services on via email: [redacted].
Yours sincerely
Dr Frank Daly
MBBS FACEM GAICD FLWA
Chief Executive1st December 2021”
The matter was listed for Hearing by Video via Microsoft Teams on 26 April 2022. Mr Lucio Matarazzo of Lucio Matarazzo Pty Ltd was granted leave to appear on behalf of the Applicant at the hearing. Mr Mark Hathaway, Employee Relations Manager for the Office of the Commissioner for Public Employment Northern Territory Government, appeared for the Respondent.
The Applicant appeared and gave evidence on her own behalf. By way of Orders to Attend at the Applicant’s request, Ms Lucy Morrison, Media and Communications Manager for Top End Health Service, and Mr Jimmy Griffey, Media Advisor for the Office of the Northern Territory Chief Minister, also appeared and gave evidence.
Dr Frank Daly, Chief Executive Officer of the Northern Territory Department of Health, and Ms Anna Skidmore, Regional Health Service Communications Manager (Top End, Big Rivers, and East Arnhem) for the Northern Territory Department of Health, appeared and gave evidence on behalf of the Respondent.
Statutory Provisions
The relevant sections of the FW Act relating to an unfair dismissal application are:
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
381 Object of this Part
(1) The object of this Part is:(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.
Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer atthat time as an employee.
(2) However:(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and(b) if:
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised; the period of service with the old employer does not count towards the employee’s period of employment with the new employer.
385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
see section 388.
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person— whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
Applicant’s Submissions
The Applicant submitted that she was a person protected from unfair dismissal pursuant to s.382 of the FW Act.
The Applicant submitted that she was unfairly dismissed as her dismissal was effected in a seven calendar day period when she was on legitimate sick leave pursuant ss.97 and 352 of the FW Act. The Applicant submitted that the Northern Territory Department of Health haphazardly fast tracked the decision to dismiss her, and in this process the Respondent engaged in significant missteps and denied her a fair and reasonable process.
The Applicant submitted that the Respondent did not comply with s.5F(1) of the Public Sector Employment and Management Act 1993 (PSEM Act) regarding CHO Direction No. 55, which states at Part 2.12: “Nothing in these Directions prevents a person conducting a business or undertaking from making reasonable adjustments to accommodate a worker who is not vaccinated”.
Dismissal effected during a period of sick leave
The Applicant submitted that at the date of her dismissal, 1 December 2021, she was on approved medical sick leave up to 2 December 2021 pursuant to ss.97 and 352 of the FW Act. The Applicant submitted that being dismissed while on sick leave rendered her dismissal harsh, unjust and unfair.
For completeness, the Applicant provided ss.97 and 352 in full:
Section 97 –
“An employee may take paid personal/carer’s leave if the leave is taken:
i.because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or
ii.to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of:
(i)a personal illness, or personal injury, affecting the member.
(ii)an unexpected emergency affecting the member.”
Section 352 –
“Temporary absence—illness or injury
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
Note: This section is a civil remedy provision (see Part 4-1).”
In support of the period of her sick leave, the Applicant annexed three medical certificates. The Applicant submitted that the Respondent has not disputed that the three medical certificates covering the period from 4 November 2021 to 2 December 2021 support that the Applicant was on genuine sick leave in compliance with ss.97 and 352 of the FW Act.
The Applicant submitted that those medical certificates were in relation to a number of other health matters, not matters pertaining to a contraindication to the COVID-19 vaccines and as such the Respondent was obligated to honour those medical certificates and to comply with ss.97 and 352 of the FW Act. The Applicant submitted that the Respondent appears to have acted under a mistaken belief that because the medical certificates did not relate to a contraindication to the COVID-19 vaccines, that the medical certificates were illegitimate and did not comply with the FW Act.
The Applicant submitted that in her termination letter, the Respondent “fictitiously and erroneously” stated:
“I refer to my letter dated 14 November 2021…
My letter (of 14 November 2021) invited you to make submissions…
I acknowledge receipt of your response on 16 November 2021……
2. I am not able to provide you with suitable duties in a workplace that is not subject to CHO Directions No. 55 of 2021.”
The Applicant submitted that she never received a letter of 14 November 2021, nor did she send a response dated of 16 November 2021. The Applicant submitted that no genuine considerations were ever made by the Respondent in relation to the CHO Direction No. 55 at Part 2.12.
The Applicant submitted that the Respondent’s ‘template’ written responses were arbitrary and contravened s.5F(1) of the PSEM Act where it states:
“5F(1) a public sector officer must do the following:
(a) carry out the officer’s duties as follows
(i) objectively, impartially, professionally and with integrity”.
The Applicant submitted that the Respondent wilfully and deliberately denied her a procedurally fair process, and relied here on the decision of Commissioner Steel in Karen Jones v Commissioner for Public Employment (Jones),[1] in which the Commissioner stated:
“[64] The evidence is that the applicant did not have the opportunity of meetings or face-to-face discussions over the period from 19 October 2011 to 13 January 2012. Without such meetings she did not have the opportunity for representation or support persons to assist with discussions with the respondent. Prior to that period the applicant had only two meetings with team leaders or a manager from the commencement of her employment on 14 June 2011. Given the list of grievances that the applicant provided to the respondent and the characterisation of the environment in which she was fulfilling the respondent’s work requirements which ultimately is illustrated prior to dismissal when the applicant informed the respondent she feared for her own safety. The tribunal has formed a view the respondent’s actions referred to above as a “disciplinary process by correspondence” have been too extended and carried out in such a manner that they resulted in unnecessary effects upon the applicant.
[65] The respondent’s evidence on Natural Justice has a guideline which indicates:
“The exact requirements of a fair hearing will vary depending on the circumstances, including the seriousness of the foreshadowed action and the extent to which the person will be adversely affected by the decision. In general the more serious the consequences of a decision for an employee the more rigorously the principle of natural justice should be applied.”
[66] In the tribunal’s view the above scenario does not meet the test of a reasonable consideration of procedural fairness inherent in the provisions of s.387(c) and (d) of the Act.
…
[68] In these circumstances the tribunal does not accept that the applicant has had a viable opportunity to respond to the employer in these circumstances or that she had the opportunity for a support person in discussions. The respondent has applied a less than a procedurally fair approach to a significant disciplinary process.”
The Applicant also relied on the decision in Kavassilas v Migration Training Australia Pty Ltd (No.2),[2] in which Federal Magistrate Smith found that Migration Training Australia (MTA) had acted unlawfully in dismissing the general manager after she took two days of sick leave, which she was entitled to under her employment contract. MTA was fined $20,000 for contravening ss.97 and 352 of the FW Act, and the applicant was awarded $37,000 compensation as well as $57,000 legal costs.
The Applicant submitted that as she was on legitimate sick leave in relation to a number of health matters, not pertaining to a contraindication to the COVID-19 vaccines, at the time of her dismissal, the Respondent acted in breach of ss.97 and 352 in dismissing her. The Applicant submitted that CHO Direction No. 55 could not override her workplace rights pursuant to ss.97 and 352 of the FW Act.
Further, the Applicant submitted that she had not engaged in serious misconduct as defined in s.12 of the FW Act and Regulation 1.07 of the Fair Work Regulations. The Applicant submitted that she was entitled to 90 calendar days of unpaid sick leave, subject to medical certificates, pursuant to s.352 of the FW Act and Regulation 3.01 of the Fair Work Regulations. The Applicant submitted that the decision of the Respondent to unilaterally cancel her sick leave and dismiss her employment contravened ss.97, 107 and 352 of the FW Act and the “PSEM Act By Law Number 3 – Natural Justice”.
The Natural Justice document as referred to is an Employment Instruction which was effected on 14 December 2011 by the then-Commissioner for Public Employment. For completeness, the Natural Justice Employment Instruction provides:
“NATURAL JUSTICE
Employment Instruction Number 3
1. Scope
1.1. This Employment Instruction:
a) sets out the principles of natural justice to ensure that persons exercising powers and functions under the Public Sector Employment and Management Act (the Act) understand the principles and apply them properly;
b) is issued in accordance with section 16 of the Act; and
c) is to be read in conjunction with the Act.
2. Natural Justice
2.1. A person who may be adversely affected by an impending decision must be afforded natural justice before a final decision is made. This means that:
a) the person must be informed of any adverse information and other relevant information that may be taken into account by the decision maker;
b) the person must be given a reasonable opportunity to respond to the information including providing any evidence he or she wishes to include in the response;
c) the decision maker must impartially consider the employee’s submissions, prior to making a decision; and
d) a decision maker must not have a personal interest in the outcome of a decision, and he or she must make the decision in a fair and considered manner, based on a consideration of all of relevant information.”
The Applicant cited the decision of Commissioner Hunt in Manojkumar Pradhan v Amcor Flexibles (Australia) Pty Ltd (Manojkumar).[3] In that decision, the Commissioner stated:
“[110] Sections 352 and 772 of the Act prohibit an employer from dismissing an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations. Section 352 is the relevant section governing Mr Pradhan’s termination as he was employed by a constitutional corporation. …
[111] Mr Pradhan was, as of 22 February 2021, temporarily absent from work because of an injury of a kind prescribed by Regulation 3.01. Parliament has determined that employees must not be dismissed within three months of being on unpaid leave because an employee has a temporary illness or injury. This is entirely fair, as employees will, at various stages of their working life have to take time off work to deal with various illnesses or injuries.
…[113] In Rezaeifard v Green Leaves ELC Pty Ltd T/A Green Leaves [2021] FWC 5905, I determined the following, in a similar factual scenario where Mrs Rezaeifard experienced a personal injury and was dismissed while on unpaid leave, a short while after her unpaid leave commenced:
“[107] Employees should not lose their job if they have to take six weeks off work to mend a broken bone. Not all employees will have a balance of six weeks of paid personal leave to cover such a scenario. Nor should employees lose their job if they are having surgery such as a hysterectomy, or retina attachment, or are recovering from hepatitis. A three month protection is in place for very good reason.
[108] Disappointingly and disturbingly, the Respondent was not aware of the obligations within the Act not to dismiss an employee on unpaid leave within this important timeframe. It blindly determined that she could not, in mid-September 2020, perform the inherent requirements of the role, or any available role, and therefore must be dismissed…”
The Applicant noted that in the Rezaeifard decision, the applicant had been employed by the respondent from 28 August 2019 until 18 September 2020 and was granted ten weeks’ compensation in relation to their dismissal.
As to the present case, the Applicant submitted that she had a workplace right to take personal sick leave. Further, the Applicant submitted that she should not have been denied her workplace right to be able to work from home in accordance with Part 2.12 of CHO Direction No. 55.
No breach of CHO Directions
As to any breach of CHO Direction No. 55, the Applicant submitted that at the time of her dismissal she was absent on sick leave and was therefore not physically at work. The Applicant submitted that as she was not in the workplace, she was not dealing with stakeholders, other employees, members of the public or vulnerable persons and was, therefore, not contravening CHO Direction No. 55 or s.351(2)(b) of the FW Act dealing with inherent requirements.
The Applicant submitted that direction 4 of CHO Direction No. 55 states that the mandatory vaccination policy applies to:
“(a) a worker who, during work, is likely to come into contact with a vulnerable person.
(b) a worker who is at risk of infection with COVID-19 because the worker, during the course of work, is likely to come into contact with a person or thing that poses a risk of infection.
(c) a worker whose workplace poses a high risk of infection with COVID-19;
(d) a worker who performs work that is necessary for the operation or maintenance of essential infrastructure or essential logistics in the Territory.These Directions only apply ‘during work,’ ‘in the course of work,’ in a ‘workplace’ or in ‘performing work’ respectively.”
The Applicant submitted that none of these categories were applicable to her while absent on personal sick leave. The Applicant submitted there is nothing in the Schedule to extend direction 4 to apply to persons on personal sick leave who are not at the workplace.
Further, as to Part 2.12 which allowed for work from home arrangements, the Applicant submitted that if a cogent and diligent decision had been made by the Respondent to allow the Applicant to work from home, then direction 4 of CHO Direction No. 55 would have been complied with.
The Applicant submitted that in not accepting her medical certificates or allowing her to work from home, the Respondent carried out unreasonable management conduct in breach of s.3A of the Return to Work Act (NT) and s.789 of the FW Act.
Differential treatment
The Applicant also submitted that she was subjected to differential and unfavourable treatment by the Respondent in comparison to other employees in relation to the application of Part 2.12 of CHO Direction No. 55.
The Applicant submitted that the Northern Territory Department of Health Multimedia Officer, Ms Sanna Swan, performed “the same like work” as the Applicant, however, Ms Swan was not only allowed to work from home but was allowed to be domiciled in Queensland and work from home in Queensland. The Applicant submitted that while she was based in Darwin, she was not allowed to work from home.
The Applicant cited the decision in Eleanora Jalea v Sunstate Airlines (Queensland) Pty Ltd T/A Qantas Link,[4] which was upheld on appeal,[5] in which Commissioner Bissett stated that the following principles must always be applied:
• employers must not apply two sets of rules, and or
• have substantially different tolerances in the workplace.
The Applicant cited a further decision of Commissioner Bissett in Doug Drowley v RTL Mining and Earthworks Pty Ltd,[6] in which the Commissioner stated the following as to differential treatment:
“[138] The most pressing issue in this exercise is the differential treatment shown to the Applicant compared to that of Mr Kilpin. The disregard for safety standards is evident in the action of each person. The existence of a verbal warning to the Applicant is not, in my opinion, enough to justify the difference in outcome.
[139] I am therefore satisfied that the dismissal of the Applicant was unreasonable.
[140] I therefore find that the Applicant was unfairly dismissed.”
The Applicant submitted that the Respondent did not engage in any thorough or diligent process to ascertain whether she could work from home pursuant to Part 2.12 of CHO Direction No. 55, yet had engaged in a “shallow tick and flick response” allowing her to work from home for many months in 2020 at the height of the pandemic.
The Applicant submitted that there was no impediment or any impracticalities relating to her being allowed to work from home in Darwin, nor were there any impracticable operational reasons for not allowing her to work from home. The Applicant submitted that her being allowed to work from home during 2020 and 2021 supported her position that it was operationally viable for this arrangement to continue.
Additional matters
The Applicant submitted that the Commission should also have regard to the following matters in accordance with s.387(h) of the FW Act.
The Applicant submitted that the Respondent is not a small business as defined in s.23 of the FW Act.
The Applicant submitted that a proper consultation process should have been conducted following her return from sick leave, ending 2 December 2021, in compliance with s.5F(1) of the PSEM Act and Part 2.12 of CHO Direction No. 55.
The Applicant submitted that there were no impracticalities or operational reasons that would have rendered her unable to work from home, as evidenced by Ms Swan being allowed to work from home in Queensland.
The Applicant relied here on the Northern Territory Government FAQ’s document regarding ‘Mandatory COVID-19 vaccinations for workers’. In particular, the Applicant noted question 9:
“9. Can I work from home if I have not received a first dose by the required time?
If an employee has not had their first vaccination by close of business 12 November, they will be unable to return to any workplace covered by the CHO Directions on and after 13 November, until they are vaccinated. This does not apply to employees who have provided evidence of a medical exemption in line with the CHO Directions.
Alternative workplace arrangements should be considered as an interim measure only, with the overall aim of mitigating the risk of COVID-19 transmission. This could include, for example, working from home where operationally feasible, or accessing recreation leave with approval, as an interim measure.
As normal, employees can request agency delegate consideration to work from home.”
(Applicant’s emphasis)
The Applicant submitted that she never received the Respondent’s letter of 14 November 2021 regarding ‘inability and performance grounds in relation to the applicant's employment’, therefore, there is no evidence that the Respondent ever sent it.
Further, the Applicant submitted that she was denied the opportunity to have a sound, cogent discussion with her employer about working from home options which would have been possible if a proper and fair process had occurred. The Applicant submitted that the Respondent merely adopted a “one size fits all approach” when dealing with her employment matters.
Remedy
The Applicant does not seek reinstatement, and instead seeks compensation of no less than 12 weeks wages. The Applicant submitted that if the Respondent had conducted a procedurally fair process, this process would have taken no less than 12 weeks’ time to complete.
The Applicant cited a decision of Judge Humphreys in the Federal Circuit Court in Ostle v Wilson Mining Pty Ltd,[7] in which the Judge cited McAlister v Yarra Australia Pty Ltd [2021] FCCA 1409, stating:
“39 In McAlister v Yarra Australia Pty Ltd [2021] FCCA 1409 (“McAlister”), Judge Obradovich at [221]–[224] sets out the objectives required for the giving of reasonable notice. The length of the required notice in any case is a question of fact to be decided in light of the objective circumstances as they exist at the time notice is given.
40 Considerations which may be relevant to the termination of the period of reasonableness are as follows;
• the length of service of the employee;
• the professional standing of the employee;
• the employee’s age;
• the employee’s qualifications and experience
• her or his degree of job mobility
• expected period of time it would take the employee to obtain alternative employment
• the period it was likely, apart from the dismissal, that the employee would have continued in the employment
• what the employee gave to come to the present employer (for example, a secure long-standing job);
• the employee’s prospective pension or other rights.”
The Applicant noted that in Jones, the applicant only had seven months employment service in the Northern Territory Public Service and was awarded 12 weeks’ compensation, factoring in that she had been paid 1 weeks’ notice.
The Applicant submitted that as to the present case, she was paid 3 weeks’ notice on termination. The Applicant, therefore, seeks no less than the balance of 9 weeks’ wages as a remedy, being $19,672.62 gross.
Respondent’s Submissions
In support of its submissions, the Respondent outlined a chronology of the circumstances and correspondence leading up to the Applicant’s dismissal as follows:
a.On 13 October 2021, the Northern Territory Chief Health Officer issued COVID-19 Directions (No 55) 2021 under the Public and Environmental Health Act 2011 (Attachment A). COVID-19 Directions (No 81) amended those Directions. (Attachment B) (Directions jointly referred to as Directions 55/81). (The CHO Directions are referred to throughout this decision as ‘CHO Direction No. 55’)
b.Directions 55/81 are lawful Chief Health Officer Directions that apply to both the Applicant and the Respondent.
c.Directions 55/81 apply to all workers in the Northern Territory who fall within one or more of the following categories that are set out at paragraph 4 of the Directions:
i.a worker who, during the course of work, is likely to come into contact with a vulnerable person;
ii.a worker who is at risk of infection with COVID-19 because the worker, during the course of work, is likely to come into contact with a person or thing that poses a risk of infection;
iii.a worker whose workplace poses a high risk of infection with COVID-19;
iv.a worker who performs work that is necessary for the operation or maintenance of essential infrastructure or essential logistics in the Territory.
d.Directions 55/81 provided that workers who fell within one or more of the categories in paragraph 2.c above must not attend their workplace for the period from 13 November to 24 December 2021 if they had not received their first dose of an approved COVID-19 vaccination (Direction 6) or unless they had approved evidence of a medical contraindication to all COVID-19 vaccines.
e.Directions 55/81 provided that workers who fell within one or more of the four categories in paragraph 2.c above must not attend their workplace from 24 December 2021 unless they had received two doses of an approved COVID-19 vaccine (Direction 7), and unless they had approved evidence of a medical contraindication to all COVID-19 vaccines.
f.Directions 55/81 provided that a person conducting a business or undertaking must ensure that any worker who performs work for the person does not attend the workplace contrary to Directions 6 and 7 (Direction 10).
g.The Chief Executive Officer (‘the CEO’) of the Department of Health is the ‘person conducting a business or undertaking’ and is responsible for implementing Directions 55/81 in that agency and for directing staff in relation to the requirements of those Directions.
h.On 13 October 2021, the CEO of the Department of the Chief Minister and Cabinet emailed all Northern Territory Government employees about the Chief Health Officer’s Directions making COVID-19 vaccinations mandatory for certain workers (Attachment C). The advice included information about those workers who were affected by the Directions and those workers who would need to have their first dose of a COVID-19 vaccine by 12 November 2021 in order to continue working in the same role. It also advised them that they needed to be fully vaccinated from 25 December 2021. The advice also included information about the requirement for proof of vaccination status or proof of a contraindication to all COVID-19 vaccines.
On 13 October 2021, the CEO of the Department of Health emailed all employees. That email advised them that the Chief Minister had announced a new Chief Health Officer direction that made the COVID-19 vaccine a condition of employment for certain workers as set out above.
j.The CEO noted that under the Chief Health Officer Directions, workers who failed to be vaccinated and who failed or refused to disclose their vaccination status, were to be excluded from the workplace, which could affect their employment (Attachment D).
k.On 22 October 2021, the Commissioner for Public Employment (‘the Respondent’) emailed all Northern Territory Government employees about the Chief Health Officer’s Directions. That email reiterated the directions and the requirements for evidence of vaccination status or contraindications to all COVID-19 vaccines. It also stated that employees could have access to paid miscellaneous leave to facilitate making appointments to be vaccinated (Attachment E).
l.On 2 November 2021, the CEO of the Department of Health sent an email to all departmental employees confirming that all employees had to comply with the Chief Health Officer’s Directions. The email reminded employees of the evidentiary requirements and the deadlines for providing that evidence to him through the MyHr personnel management system (Attachment F).
m.The CEO also attached a set of frequently asked questions about COVID-19 vaccines to his email of 2 November 2021 (Attachment G).
n.On 10 November 2021, the CEO wrote to the Applicant via her work email advising that as at 9 November 2021, the Applicant had not yet entered her vaccination status into MyHr and reminding her of his previous correspondence on the issue. In accordance with the Chief Health Officer Directions, the CEO directed her to enter her vaccination status into MyHr immediately and to provide verification of same with her manager. The email advised the Applicant that if this information was not verified by midnight on Friday, 12 November 2021, she was directed not to attend her workplace and that she would be stood down from duties on full pay until such time as her vaccination status was entered and verified or the CEO decided to take action in relation to her employment under the Public Sector Employment and Management Act 1993 (‘the PSEM Act’) (Attachment H).
o.The CEO received an ‘out of office’ message from the Applicant on 10 November 2021. It said that the Applicant was on unexpected leave that she was not monitoring her emails (Attachment I). The CEO’s letter was re-sent to the Applicant’s work email on 11 November 2021 (Attachment J).
p.By 13 November 2021, the Applicant had not entered any vaccination information into MyHr.
q.On 24 November 2021, the CEO wrote to the Applicant in which he referred to correspondence dated 14 November 2021 and to the Applicant’s response to that correspondence dated 16 November 2021. These references were erroneous (Attachment K).
r.However, in that letter, the CEO advised the Applicant that because she had not received the first dose of approved COVID-19 vaccine under the Chief Health Officer’s Directions she was not to attend the workplace. Further, the CEO advised that he was unable to provide her with suitable alternative duties in a workplace that was not subject to the Chief Health Officer’s Directions. Consequently, he was satisfied on reasonable grounds that there were performance and inability grounds under s 44 of the PSEM Act for which the reasonable and appropriate remedial action would be to terminate her employment. In that letter, consistent with natural justice and procedural fairness, the CEO invited the Applicant to prepare submissions in writing as to why she should not be terminated. He gave her a deadline of 29 November 2021.
s.On 28 November 2021, the Applicant provided a written submission to the CEO (Attachment L).
t.On 1 December 2021 in Attachment M, the CEO wrote to the Applicant in which he referred to his letter of 24 November 2021 in which he had foreshadowed termination of her employment. The CEO noted her response of the 28 November 2021 and that she had approved personal leave until 24 November 2021 and a further medical certificate for the period 25 November until 2 December 2021.
u.He also noted that the Applicant had asked him to re-consider her request to work from home, which she had based on the grounds that she was aware that other employees had been afforded this opportunity.
In response, the CEO said that he was prepared to approve the personal leave until 2 December 2021, but that he was unwilling to reconsider her request to work from home. He pointed out that approvals for working from home had been short-term arrangements and not for the purpose of circumventing the Chief Health Officer’s Directions.
w.He said that he had considered her submissions, but that his earlier finding that she had not received her first dose of an approved COVID-19 vaccine, stood as did his direction for her not to attend the workplace. Consequently, he terminated her employment under s 46(1)(c) of the PSEM Act, effective from 1 December 2021. He advised her of her appeal rights and that she would be paid in lieu of notice as required by the FW Act.
Whether the Requirements of s 387 of the FW Act were met
The Respondent submitted that the requirements of s.387 of the FW Act were met in this matter, as follows.
Valid reason
The Respondent submitted that as set out in his letter of 1 December 2021, the CEO had a valid reason for the dismissal that was related to the Applicant’s capacity to perform her duties in that there were inability and performance grounds under ss.44(1)(a) and 44(1)(b) of the PSEM Act. Section 44 of the PSEM Act relevantly provides:
“44 Inability or unsatisfactory performance
(1) There are inability or performance grounds for an employee if the employee:
(a) is not able to perform the duties he or she is assigned to perform (whether because of physical or mental illness or disability or any other reason); or
(b) is not suited to perform, or capable of efficiently performing those duties”.
The Respondent submitted that the CEO made these findings because the Applicant had failed to comply with directions to record her vaccination status for a COVID-19 vaccination or an appropriate medical certificate indicating that she had a contraindication to all approved COVID-19 vaccines. The Respondent submitted that the Applicant’s failure to provide this information meant that the CEO was not permitted to allow the Applicant to attend the workplace to perform her duties.
The Respondent submitted that there were two reasons for the CEO issuing these directions:
a.the requirement to comply with a lawful direction from the Chief Health Officer of the Northern Territory, which obliged him as a person conducting a business or undertaking to ‘ensure that any worker who performs work for the person’s workplace’ not attend the workplace, if they had not received their first dose of an approved COVID-19 vaccine on and from 13 November 2021; and if they had not received their second dose of an approved COVID-19 vaccine on and from 25 December 2021; and
b.the inability of the CEO to assign the Applicant to an alternative workplace (such as working from home) that would not be subject to the Chief Health Officers directions.
The Respondent submitted that while the Applicant might disagree with part (b) above, the responsibility and the prerogative of determining whom in the health workforce would need to record their vaccination status or evidence of a contraindication to all approved COVID-19 vaccines to ensure compliance with the CHO Directions rests with the CEO as the person conducting a business or undertaking. The Respondent submitted that, similarly, the consequences of non-compliance with those directions rest primarily with the CEO.
The Respondent submitted that on 13 October 2021, the CEO determined that most of the CHO’s Directions applied to all employees of the Department of Health. The Respondent submitted that the Applicant was notified of this reason.
The Respondent submitted that although there was confusion over the question of whether an initial letter of 14 November 2021 was either sent to or received by the Applicant, it was nevertheless clear that the Applicant was aware of this reason on 24 November 2021 and of the consequences of failure to provide the necessary evidence of either her vaccination status or a contraindication to all approved COVID-19 vaccines.
The Respondent submitted that notwithstanding the global communications about the requirements to provide this evidence and the CEO’s letter to the Applicant dated 10 November 2021, the Applicant persisted with a futile attempt to record her vaccination status as unvaccinated contrary to actual evidentiary requirements. The Respondent submitted that from this fact, and the fact that the Applicant continued to press for alternative work arrangements such as working from home, it was clear that the Applicant had no intention to provide the necessary information. The Respondent submitted that the consequences of this failure should have been clear to the Applicant.
The Respondent noted that in the letter of 10 November 2021, the CEO set out the consequences of non-compliance:
“Exclusion from workplace
If your information is not entered and verified by midnight on Friday 12 November 2021 you are directed not to attend your workplace on and from Saturday 13 November 2021 and you will be stood down from duties on full pay until such time as your vaccination status is entered and verified, or I decide to take action in relation to your employment under the Public Sector Employment and Management Act 1993 (the Act).
If you remain non-compliant with the CHO Directions and I decide to action in respect to your employment under the Act I will write to you and outline my intentions.”
(Original emphasis)
The Respondent submitted that the CEO “made good his undertaking to write to the Applicant” when he wrote to her on 24 November 2021, in which he foreshadowed those intentions:
“Proposed remedial action
Having found that there are inability and performance grounds in relation to your employment as set out above, I must now consider what is reasonable and appropriate remedial action in the circumstances and in light of the actions available to me under section 46(1) of the Act.
As you have not received an approved COVID-19 vaccination and you have advised that you do not intend to do so, none of the options available under sections 46(1)(a) to 46(1)(b)(ii) of the Act (including training, reduction in salary or transfer to alternative duties) will remedy your inability to attend the workplace to perform your duties.
As no other reasonable and appropriate remedial actions are available to me, I consider that the only reasonable and appropriate action available to me is to terminate your employment under section 46(1)(c) of the Act.”
(My emphasis)
The Respondent submitted that consistent with the decision in Crozier v Palazzo Corporation Pty Ltd[8] at [73], the CEO presented the Applicant with his reasons before he made the decision to terminate her employment (Respondent’s emphasis). The Respondent submitted that the CEO provided the Applicant with an opportunity to respond to the reasons related to her capacity or conduct and to the foreshadowed remedial action. The Respondent noted that the CEO’s letter of 24 November 2021 provided:
“However before I take that remedial action, I invite you to submit to me in writing any reasons why I should not terminate your employment.
Your written submission, if any, must reach me by close of business, Monday 29 November 2021. If no response is received within this time, I will make final decision based on the material I currently have.”
(My emphasis)
The Respondent noted that on 28 November 2021, the Applicant provided a written submission to the CEO in response to the letter of 24 November 2021, and in that submission the Applicant stated:
“a. she had attempted to enter her vaccination status (i.e. that she was unvaccinated) into MyHR, but that there was not a suitable option available;
b. she had received a text message on 10 November 2021 advising her to enter her vaccination status into MyHR;
c. she had had a telephone conversation with her manager at 10.22 am on 10 November 2021, in which she confirmed her vaccination status (i.e. that she was unvaccinated);
d. she referred to ss 17—19 of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) (‘the WHS(NUL) Act’) and s 3A of the Return to Work Act 1986 (NT) (‘the RW Act’);
e. she referred to the fact that her employment in the Northern Territory Public Sector was underpinned by the PSEM Act and the FW Act;
f. she referred to Jones v the Commissioner for Public Employment [2012] FWA 7069, with the inference being that the CEO was barred from taking action to terminate her employment until there had been discussions about the said termination;
g. she was on ‘legitimate sick leave’ and that the Chief Health Officer’s Directions could not override s 97(a) of the FW Act, which sets out the National Employment Standard providing for the taking of paid personal leave because an employee is not fit for work due to a personal illness or a personal injury;
h. her sick leave was not related to COVID-19;
i. she requested that the Department of Health continue to pay her for her sick leave until 2 December 2021;
j. any action to suspend her (and by implication, terminate her employment) whilst she were on sick leave would be contrary to ss 97(a) and 352 of the FW Act;
k. expanded on her references to ss 97(a) and 352 of the FW Act;
l. she has not engaged in serious misconduct as defined in the FW Act and its regulations;
m. she should not be subject to differential treatment (i.e. not being permitted to work from home, when another colleague was permitted to do so);
n. she disagreed with the Department’s assessment that she was unable to perform her duties from home or an alternative working arrangement;
o. she believed that the risk mitigation provisions of the WHS(NUL) Act would permit the CEO to make a decision to enable her to return to work, at home.”
The Respondent submitted that in the termination letter of 1 December 2021, the CEO indicated that he had considered the Applicant’s submissions, in particular that he was unable to provide her with suitable alternative duties in a workplace that was not subject to CHO Direction No. 55. That Direction mandated that he could not permit her to attend her workplace, and that as a consequence, there were performance and conduct grounds for her employment to be terminated because she was unable to perform the inherent duties of her position.
Any refusal of a support person
As to s.387(d) of the FW Act, the Respondent submitted that this provision did not apply in this case. The Respondent submitted that there were no discussions relating to the dismissal, and all communication between the CEO and the Applicant was in writing.
The Respondent noted that the Applicant relies on the decision in Jones to suggest that the absence of any discussions amounts to procedural unfairness. The Respondent submitted this is not correct and that procedural fairness does not require the employer to hold discussions about the termination. The Respondent submitted that a close reading of section 387(d) identifies the adjective ‘any’ qualifying the noun ‘discussions’. It submitted that the inference is that if there were or had been discussions then the employer must not unreasonably refuse the employee’s request for a support person. Given that there were no discussions relating to the dismissal, the Respondent submitted that s.387(d) is not enlivened in this case.
Unsatisfactory performance
The Respondent submitted that although the dismissal was not related to the Applicant’s unsatisfactory performance and was related to her ability to perform work in the workplace at all, the requirements of s.387(e) were nevertheless met. The Respondent submitted that the CEO warned the Applicant about the performance and conduct issues relating to her employment in his letter of 24 November 2021. The Respondent also relied here on the explanatory memorandum for the Fair Work Bill, which stated that the section does not impose a positive obligation to offer an employee the opportunity for a support person at paragraph [1542]. The Respondent also cited BlueScope Steel (AIS) Pty Ltd v Agas,[9] in which the Full Bench determined that s.387(d) of the FW Act did not apply in discussions that could lead to dismissal. The Respondent submitted it is reasonable to assume that there is no positive obligation on an employer to hold discussions relating to a dismissal.
Size of the employer’s organisation and HR expertise
The Respondent submitted that ss.387(f) and 387(g) are not relevant in the current case. The Respondent noted that the Northern Territory Public Service has in excess of 20,000 employees and does have the dedicated human resource management specialists to manage the procedures used in effecting this and other dismissals.
Any other matters
The Respondent submitted the following regarding the Applicant’s arguments around ss.97(a) and 352 of the FW Act.
The CEO did not deny the Applicant access to paid personal leave.
The CEO did not terminate the Applicant’s employment because she was temporarily absent from work due to an illness or injury. The Respondent submitted that as stated above, the CEO terminated the Applicant’s employment because she was unable to perform the inherent requirements of her job due to her failure to provide him with evidence of her vaccination status or contraindications to all COVID-19 vaccines as required by the CHO Directions.
The Respondent submitted that the Commission should also give consideration to the fact that the FW Act goes to some of the ‘bumps in the road’ in relation to the procedures followed by the Department of Health and the Department of Corporate and Digital Development in this particular case. Namely, the mistaken references to the CEO’s letter of 14 November 2021 and the Applicant’s response of 16 November 2021. The Respondent submitted that these oversights make the process less than perfect, but, on balance, the process was fair. The Respondent relied here on the decision in Gao v Department of Home Affairs[10] at [72]-[73]:
“[72] I am satisfied that, viewed, objectively and considered in its entirety, the Department’s processes were balanced fair and reasonable. If there was any procedural misstep, it was minor. Further I am satisfied that, on the whole, the officers of the Department behaved professionally. That is not to say that the conduct of the Department and its officers was perfect. However, we do not expect perfection. In all the circumstances of this matter the conduct of the Department and its officers was what could be reasonably expected of it and them. The process leading to the show cause letter was not unfair.
[73] The show cause letter then provided another opportunity for procedural fairness.”
The Respondent submitted that the CEO’s letter of 24 November 2021 was an opportunity for procedural fairness, which gave the Applicant an opportunity to make submissions as to why the CEO should not terminate her employment.
The Respondent acknowledged that the Commission also needs to consider the Applicant’s arguments that she was treated differentially to another employee, Ms Sanna Swann. The Respondent submitted that on the face of it, this would appear to be correct. However, the Respondent submitted that the differential treatment related to Ms Swann’s circumstances, including her pregnancy, the short-term nature of her contract of employment and the fact that she was re-locating to Queensland. The Respondent submitted that it was both feasible and suitable for the Department to allow Ms Swann to work from home for a defined period, noting it was a short-term arrangement.
The Respondent concluded that the Commission should find there was a valid reason for the Applicant’s termination, and on the balance, the termination was not harsh, unjust or unreasonable.
Applicant’s Submissions in Reply
The Applicant maintained that she was unfairly dismissed, and that her dismissal was harsh, unjust and procedurally unfair noting the Respondent’s missteps and rushed dismissal process effected in a “one size fits all” manner whilst she was on legitimate sick leave.
The Applicant noted that Natural Justice Employment Instruction provides:
“2.1 –
b) the person must be given a reasonable opportunity to respond to the information including providing any evidence he or she wishes to include in the response;
c) the decision maker must impartially consider the employee’s submissions, prior to making a decision;..”
The Applicant noted that the Natural Justice Employment Instruction is referenced in the Jones decision as follows:
“[65] The respondent’s evidence on Natural Justice has a guideline which indicates:
“The exact requirements of a fair hearing will vary depending on the circumstances, including the seriousness of the foreshadowed action and the extent to which the person will be adversely affected by the decision. In general the more serious the consequences of a decision for an employee the more rigorously the principle of natural justice should be applied.”
The Applicant relied on the Jones decision in support of her submission that the Respondent has denied her a procedurally fair process for reasons including no opportunity for face-to-face discussions.
The Applicant maintained her submission that the Respondent engaged in significant missteps as evidenced by the reference in the Respondent’s 24 November 2021 letter to:
“My letter (of 14 November 2021) invited you to make submissions.
…
I acknowledge receipt of your response on 16 November 2021.
…
2. I am not able to provide you with suitable duties in a workplace that is not subject to CHO Directions No. 55 of 2021.”
The Applicant maintained that she never received a letter of 14 November 2021 and did not provide any response dated 16 November 2021.
The Applicant also maintained that no valid genuine considerations were ever made by the Respondent in relation to Part 2.12 of CHO Direction No. 55 allowing for work from home arrangements. The Applicant maintained her contention that the Respondent adopted a “one size fits all” approach and relied on template letters, scripts and processes in dealing with her employment matters. The Applicant relied here on paragraph [29] of Ms Skidmore’s witness statement, where Ms Skidmore stated that, after being advised by the Applicant on 22 November 2021 that the Applicant had not heard from HR nor received any formal correspondences from the Department, Ms Bella Skidmore’s evidence was that:
“At 2.20pm, I formally advised Ms Pike of this fact and sought clarification on what steps to take. Ms Pike raised this with members of the NT Health senior executive and advised me that HR was managing this process…”.
The Applicant also relied on Dr Daly’s evidence at paragraphs [44] and [46] of his statement, which provided:
“On November 14 November 2021, no correspondence was sent to Ms O’Connor…”
…
“I wrote to Ms O’Connor referring to my previous correspondence of 14 November 2021, noting that we did put a stop on this letter being sent, this reference should have been removed.”
The Applicant submitted there was a deliberate avoidance and lack of thorough explanation by the Respondent and Dr Daly as to why the Respondent’s correspondence of 24 November 2021 referred to correspondence of 14 November 2021 and a response of the Applicant on 16 November 2021. The Applicant submitted that the Respondent has failed to provide a copy of the correspondence “putting a stop on the letter being sent”. The Applicant relied here on the doctrine of ‘contra proferentem’, such that where ambiguity exists, a correspondence will be interpreted as against the party who formulated the document.[11]
As to the Respondent’s reliance on the decision in Gao v Department of Home Affairs, the Applicant submitted that the decision is not on point and not relevant as it dealt with whether or not the employee was constructively dismissed after he had resigned from his employment voluntarily. The Applicant submitted that the commentary in that decision regarding an employer not having to be perfect does not assist in the present matter and is a “diversionary attempt … to explain away and soften the significant failures of the Respondent” which fell excessively short of their obligations in s.5F(1) of the PSEM Act.
Further, the Applicant noted that the Respondent has relied on emails and correspondence sent to the Applicant’s work email address only and not to her private email address on 22 October 2022, 2 November 2022, 10 November 2022. The Applicant submitted that as she was on leave, it is unreasonable for the Respondent to assume that the Applicant would have read these emails. The Applicant submitted that only the Respondent’s letter of 24 November 2022 and dismissal letter of 1 December 2022 were sent to her private email address during her period of leave.
As to the dismissal letter, the Applicant noted that the Respondent provides:
“1. I am prepared to approve your personal (sick) leave from 24 November 2021 to 2 December 2022 as per your current medical certificate.
2. I am not willing to consider a working from home arrangement on the basis that you have reported you are currently unfit for duty until early December 2021 and any working from home arrangement that have been approved were on a short term basis…”
The Applicant submitted that the Respondent harshly and unfairly denied her a work from home arrangement, despite Part 2.12 of CHO Direction No. 55. The Applicant submitted this contravened s.5F(1) of the PSEM Act.
The Applicant maintained her earlier submissions that she was treated unfairly and differentially as compared to Ms Swann who was allowed a work from home arrangement.
As to additional matters raised in Dr Daly’s witness statement, the Applicant provided reply submissions as follows:
“In relation to [60], [61], [62], [63], [64], [65], in the witness statement of Dr Frank Daly, the Applicant Ms Chantelle O’Connor states that up to and prior to her dismissal on 1 December 2021 the so called new “stakeholder engagement” duties were never raised with Applicant Ms Chantelle O’Connor and that they did not form part of her duties.
In relation to [60], [61], [62], [63], [64], [65], in the witness statement of Dr Frank Daly, the Applicant Ms Chantelle O’Connor states that it has now become rather too convenient to claim when being faced with an unfair dismissal hearing in the Fair Work Commission that the Respondent has now claimed that these the so called “stakeholder engagement” duties in remote parts of the Northern Territory and travel to these remote parts of the Northern Territory have now miraculous become essential when throughout her employment period in this role they were not essential and did not occur.”
The Applicant maintained that she seeks 12 weeks’ compensation, being the period it would have taken to effect a procedurally fair process. Further, the Applicant noted that at the time of her dismissal, she was on a six months rolling fixed term contract which would have ended on 10 February 2022. The Applicant noted that if she had been allowed to work from home, she would have remained in employment for the additional period of time from 1 December 2021 to 10 February 2022. The Applicant submitted that it is fair and reasonable for the Commission to award her 10 weeks’ compensation plus another 1 week and 10 hours that she has lost in annual leave as compensation for this period of time.
Consideration
I am satisfied and find that there are no jurisdictional reasons which prevent the Commission from determining this Application.
I have taken into account all of the submissions that have been provided by the parties and I have attached the appropriate weight to the evidence of the witnesses. The fact that an issue is not mentioned in this decision does not mean that it has not been taken into account.
When considering whether a termination of an employee was harsh, unjust or unreasonable, the oft-quoted joint judgement of McHugh and Gummow JJ in Byrne v Australian Airlines (Byrne)[12] is of significance:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
In analysing Byrne, a Full Bench of the Australian Industrial Relations Commission in Australian Meat Holdings Pty Ltd v McLauchlan (AMH)[13] held:
“The above extract is authority for the proposition that a termination of employment may be:
· unjust, because the employee was not guilty of the misconduct on which the employer acted;
· unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before the employer; and/or
· harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct”.
Further, a Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd[14] said:
“[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination”.
I now turn to the criteria for considering harshness as provided in s.387 of the FW Act.
Section 387(a) – valid reason
The meaning of the phrase “valid reason” has been universally drawn from the judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd:[15]
“In broad terms, the right is limited to cases where the employer is able to satisfy the Court of a valid reason or valid reasons for terminating the employment connected with the employee’s capacity or performance or based on the operational requirements of the employer. …
In its context in s 170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that” the employer and employee are each treated fairly…”.
(My emphasis)
In Rode v Burwood Mitsubishi,[16] a Full Bench of the Australian Industrial Relations
Commission held:
“… the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.”
It is not in dispute that CHO Direction No. 55 applied to the Applicant. The CEO identified all employees as being bound by the Direction. As a result, the Applicant was required to have a first dose of an approved COVID-19 vaccine by 12 November 2021 or provide evidence of a contraindication. In a conversation with her manager on 10 November 2021, the Applicant advised her manager that she was not vaccinated and had no intention of being vaccinated with the vaccines that were available at that time.
The Applicant exercised her right not to be vaccinated. However, the Respondent had an obligation to comply with CHO Direction No. 55. The Respondent could not allow the Applicant to enter its workplace. Having decided not to allow the Applicant to work from home, the Respondent had little option but to unfortunately terminate the Applicant.
As a result, I find that the actions of the Respondent, in complying with CHO Direction No. 55, were sound, well founded and defensible.
Section 387(b) – Notified of the reason
It is not in dispute that the Applicant was notified of the reasons for her termination.
Section 387(c) – Opportunity to respond
It is not in dispute that the Applicant was given an opportunity to respond to the reasons for her dismissal.
Section 387(d) – Refusal of a support person
The Respondent did not arrange a meeting with the Applicant, nor invite an opportunity for a meeting. As there were no physical meetings ahead of the Applicant’s termination, there was no opportunity or requirement for a support person to be present at any meeting.
Section 387(e) – Unsatisfactory performance
The Applicant’s dismissal did not relate to unsatisfactory performance, in fact, her performance was the subject of a number of commendations.
In response to a question from me, Dr Daly, the CEO of the Department of Health, testified:
“THE COMMISSIONER: … It would appear that Ms O'Connor was very, very good at her job. She has been able to account for a reduction in her staff, in her department, and appears to have gone on - the work appears to have gone on without any hiccups. She has received commendation after commendation from her superiors for her work. Are you satisfied that every attempt was made to keep Ms O'Connor?‑‑‑Yes. Actually, yes, I would like to thank you, Commissioner for giving me the opportunity to say that because that maybe hasn't come out. I believe and I am briefed that she did a very, very good job and did receive commendation and that we're sorry that she's left.”[17]
Section 387 (f) and (g) – Size of Enterprise and HR Staff – procedures followed
The Respondent did not seek to make any submissions on these matters. It is noted that the Respondent is large employer and has human resource management specialists.
Section 387(h) – Any other matters
At the start of giving his evidence, Dr Daly made the following statement:
“Dr Daly, is there anything in your witness statement that you wish to amend or supplement?‑‑‑Thank you. No, I don't wish to make any amendments but I might make some additional statements as points of emphasis. The first thing I'd like to say is that I am personally very sorry that this has happened to Ms O'Connor and this is certainly not the outcome we would have liked. As CEO of the Department of Health, I have very clear responsibilities under the legislation and the Chief Health Officer's directions make very clear my personal obligations as CEO.
Yes?‑‑‑As somebody or a person conducting a business and undertaking so I have very, very clear obligations in this area. I concede and acknowledge that there were some clerical errors made in correspondence to Ms O'Connor in November 2021 and I apologise for those and I take responsibility for those. However, I do believe that we provided natural justice to Ms O'Connor and gave her every opportunity to respond. I'm going to make this point a couple of times. I would like to say that we would have viewed very favourably any indication by Ms O'Connor that she was willing to consider vaccination.
Yes?‑‑‑The Department of Health has been, I believe, extremely respectful of people with vaccine hesitancy, not only our own workers but also people in the community and we've been respectful of vaccine hesitancy and the questions that people have about vaccines and in general and the COVID vaccines in particular. As a Department for our own stakeholders we conducted several forums in the lead up in this period and they were conducted and led by recognised infectious diseases and vaccine experts and in addition to that, uniquely, we gave individual employees the opportunity to meet privately, one on one with these experts and this was Dr Jane Davies in this particular case, to allow an informal and as I say, private conversation in an attempt to answer any questions or anxieties about vaccination and that was not to be coercive or in any way place undue pressure but it was - we really did want everybody to have an opportunity to get good information so that they could make a clear personal choice.
Yes?‑‑‑No other agency did this and this opportunity was provided not just to Ms O'Connor but to others as well. So as I say, I'm very sorry that we've reached this hearing today but we would have viewed very favourably any indication if she had come forward and said, 'Look, I indicate that I will get vaccinated but I just need some time', then we would have viewed that favourably and we would have looked at trying to accommodate that with short‑term and interim measures. I mean, that's my - those are my additional thoughts that I add to my statement. Thank you.”[18]
The Applicant argued that the Respondent had no right to terminate her employment whilst she was on sick leave. With the greatest respect to the Applicant and her representative, I do not agree. There is no doubt that the Applicant had a right to take her sick leave in accordance with s.97 of the FW Act. The Applicant’s absence was covered by a number of medical certificates, however, s.352 of the FW Act prohibits an employee from being terminated because “the employee is temporarily absent from work because of illness or injury…”. This is not the scenario in this circumstance. The Applicant was terminated because she was not able to perform the inherent requirements of her job on the basis that she was not permitted to attend work as a result of the Respondent complying with CHO Direction No. 55. The Applicant was not terminated because she was on sick leave.
I do not accept the differential treatment comparison between the Applicant and the Applicant’s pregnant colleague. The Applicant’s colleague had moved to Queensland during the lockdown, was pregnant and had limited time before her baby was born. It would have been inappropriate and unfair to force her to return to the Northern Territory in these circumstances. Further, in response to a question from Mr Matarazzo, the CEO said:
“I think I wish to ask you about the document - the differential treatment in allowing another team member - Ms Sarna Swan to be based and worked from her home in Queensland who perform same like work as Chantelle O'Connor but subjectively (indistinct) disallowed Ms Chantelle O'Connor to work out her higher duties employment of 10 February 2022. Is it not fair to say that this is another example of inconsistent subjective and arbitrary decision making by the department and the HR section of the Public Service?‑‑‑No. Two key differences. Ms Swan's request to work remotely from Queensland was on a short-term basis only. And, secondly, I don't think it's fair to say that her work - I think your words were, 'She's the same and like'. They're not the same thing. Ms Swan led - essentially Design and Social Media work which is computer-based and digital. And did not involve the networking and stakeholder engagement which are - we have discussed in the JDF but also is simply incurred by the title.”[19]
The evidence of Mr Griffey was unchallenged. Mr Griffey testified:-
“However, your witness statement says that it's your opinion you were dismissed from your employment on 17 November following a story in the NT Independent. Is this correct?‑‑‑That is correct, yes.
Now, you've been called as a witness to support the applicant, Ms O'Connor. What do you understand is the case currently before the Commission?‑‑‑Sorry, it's been a little - a couple of weeks since we last spoke. I understand she was working remote, or planning on working remote, or exhausting the last of her sick leave entitlement, and was summarily terminated once the mandates came into effect.”
The Applicant’s Manager, Ms Skidmore, testified that she would not have supported the Applicant working from home in the long term and that it was not possible for the Applicant to perform all of her functions from a remote location:
“Were you supportive - if Ms Chantelle O'Connor said she wanted to work from home, would have you supported that request with HR? I don't think long term or indefinitely it would have worked, in terms of working from home indefinitely. It can definitely work for a short period of time, but there are still pieces of work that need to be done either at the hospitals or in communities in other regions. So I don't think that I would have been able to support it indefinitely. I would have been able to support it for a short amount of time.”
I accept the Applicant did not receive the correspondence from the Respondent on 14 November 2021, nor did the Applicant respond on 16 November 2021. For the Respondent to assert these facts was unfortunate and procedurally sloppy. Even if the Department was under pressure at the time, mistakes such as these are unprofessional. However, it was a mistake and we all make them. This mistake though, does not automatically result in the Applicant’s termination becoming unfair. The Applicant was provided with a show cause letter and was given an opportunity to provide reasons as to why she should not be terminated. I am satisfied that the Applicant knew as early as the announcement of the Chief Health Officer on 13 October 2021 that her termination had a sense of inevitability due to her refusal to become vaccinated.
Conclusion
I am satisfied that the Respondent and the Applicant were required to comply with CHO Direction No. 55. This meant that the Applicant had to have received her first dose of an approved COVID-19 vaccination by 12 November 2021 or provide an appropriate medical certificate identifying a contraindication. On the basis that the Applicant was unvaccinated and could not supply evidence of a contraindication, I find that the Respondent had a valid reason to terminate the Applicant.
Whilst the process may appear to have been concluded somewhat hastily due to an administrative error, I am satisfied and find that the Applicant was provided with procedural fairness in this circumstance. The Applicant knew of the binding CHO Direction No. 55 restrictions in October 2021, one month before the Directions were to be enforced.
Further, it was not compulsory for the Respondent to provide the Applicant with the opportunity to work from home. I find that the Respondent did not engage in differential treatment between the Applicant and her pregnant colleague. I find that the Applicant and her colleague were performing different jobs, with different responsibilities, expectations and timeframes.
I am satisfied and find that the evidence of Mr Griffey was honest and truthful, and that the Applicant was attempting to exhaust her sick leave entitlements before the Applicant was eventually terminated for her decision to not comply with the CHO Direction No. 55.
For the reasons stated above, I find that the Respondent had a valid reason to terminate the Applicant and that the Applicant’s termination was not harsh, unjust or unreasonable.
I find that the Applicant was not unfairly dismissed.
The Application is dismissed.
COMMISSIONER
[1] [2012] FWA 7069.
[2] [2012] FMCA 208.
[3] [2021] FWC 6125.
[4] [2012] FWA 1360.
[5] [2012] FWAFB 7267.
[6] [2021] FWC 1911.
[7] [2022] FedCFamC2G 109.
[8] (2000) 98 IR 37 at 151.
[9] [2014] FWCFB 5993.
[10] [2021] FWCFB 1906.
[11] [2016] FWC 5052.
[12] (1995) 185 CLR 410.
[13] (1998) 84 IR 1.
[14] [2000] AIRC 1019.
[15] (1995) 62 IR 371.
[16] PR4471.
[17] Transcript at PN153.
[18] Transcript at PN34-37.
[19] Transcript at PN147.
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