Ms Emma Jamieson v Monash Health
[2022] FWC 1331
•6 June 2022
| [2022] FWC 1331 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Emma Jamieson
v
Monash Health
(U2021/10648)
| COMMISSIONER JOHNS | MELBOURNE, 6 June 2022 |
Application for an unfair dismissal remedy
This decision concerns an application for an unfair dismissal remedy made by Ms Emma Jamieson (Applicant) under s 394 of the Fair Work Act 2009 (FWAct) in respect of her dismissal by Monash Health (Respondent).
In short,
a) Ms Jamieson was employed by the Respondent from August 2013 to 9 November 2021
b) At the time of her dismissal Ms Jamieson was employed in the role of Dental Nurse on a permanent basis.
c) Ms Jamieson was dismissed on the grounds that she was unable to meet the inherent requirements of her job.
d) Ms Jamieson failed to provide the Respondent with proof that she had been vaccinated against COVID-19.
e) Consequently, pursuant to Victorian government directions, Monash Health was therefore required not to allow Ms Jamieson to attend the workplace on or after 15 October 2021.
f) At the date of the hearing before me, Ms Jamieson remained prevented from attending for work at Monash Health by reason of her continuing unvaccinated status.
The loss of a long serving dental nurse from the public health system is a tragedy, for the Applicant and the public health system.
Ms Jamieson contends that her dismissal was unfair and seeks financial compensation. The Applicant conceded that she cannot perform her job from home.[1] Because the Applicant remains unvaccinated, I cannot reinstate her employment.
Section 396 requires that I decide four matters before considering the merits of Ms Jamieson’s application. I am satisfied of the following:
a) First, the application was made within the 21-day period required by s 394(2).
b) Secondly, Ms Jamieson was a person protected from unfair dismissal.
c) Thirdly, the dismissal was not a genuine redundancy.
d) Fourthly, Monash Health is not a small business employer, and the Small Business Fair Dismissal Code is therefore inapplicable.
Background
Before me[2] the Applicant largely accepted the chronology and facts attested to by Karen Lowe, the Respondent’s Executive Director, People and Culture and the documents relied upon by Ms Lowe as annexures to her witness statement[3]. Consequently, I make the following findings of fact:
a) At the start of 2021 Monash health commenced engaging with its employees about COVID-19 vaccinations. This included:
i.Offering all employees the COVID-19 vaccination, starting with those in the most high risk roles,
ii.Providing education and information on COVID-19 and the medical evidence and efficacy of COVID-19 vaccinations online and at employee forums,
iii.Offering all employees the opportunity to speak with an infectious diseases specialist about the vaccines,
iv.Providing employees with priority access at Monash Health’s vaccination clinics,
v.Providing information via the Monash Health Covid-19 Employee Hotline, which is available between 7am to 8pm seven days a week,
vi.Providing staff with paid leave to attend vaccination appointments, and
vii.Regular staff briefings, both in writing and verbally.[4]
b) On 29 September 2021 the Acting Chief Health Officer of Victoria issued the COVID-19 Mandatory Vaccination Directions (No 4) (No 4 Direction)[5] under s 200(1)(d) of the Public Health and Wellbeing Act 2008 (Vic). These imposed obligations on the operators of specified facilities, including healthcare facilities such as Monash Health, not to allow workers to attend for work on or after 15 October 2021 unless they had provided evidence to the employer of having been vaccinated against COVID-19, or of a booking to receive a vaccination by 29 October 2021. An exception applied for workers who provided a certificate that they were unable to receive a vaccination due to a medical contraindication. The No 4 Direction commenced on 29 September 2021 and ended on 1 October 2021. It was succeeded by other directions in similar terms (Directions).
c) On 27 September 2021 Ms Jamieson sent an email[6] to Monash Health. Amongst other things Ms Jamieson disputed the legality of the Directions, disputed Monash Health’s authority to collect information relating to her vaccination status and expressed concerns relating to informed consent, mandatory vaccination, economic duress, the efficacy/safety of the COVID-19 vaccines, and the operation of various State, Federal and international laws. The email also contained two pages of questions relating to the vaccines and stated that Ms Jamieson’s ability to legally consent to the vaccine depended on Monash Health answering them in entirety. During the hearing Ms Jamieson stated that “a lot” of the email was copied and pasted from the internet.[7]
d) On 30 September 2021 Ms Rebecca Higgins, Team Coordinator of Oral Health Services responded to Ms Jamieson by email[8] acknowledging receipt of her email and setting out the Employee Privacy policy clause.
e) On 1 October 2021 Monash Health sent an email[9] to all employees informing them that they were required to be vaccinated against COVID-19 to continue their employment. Employees were advised about relevant dates in October 2021 by which vaccination and/or appointments were required by. This communication was also posted on the Monash Health COVID-19 employee website and on physical noticeboards throughout Monash Health’s premises.
f) On 5 October 2021 Mr Peter Ryan, Chief Legal Officer of Monash Health, sent a letter[10] in reply to Ms Jamieson’s email. The letter did not respond to all the matters raised in the Applicant’s email but rather reiterated the requirements of the Directions and explained the consequences of non-compliance with the Directions. Mr Ryan stated that he viewed the Applicant’s legal submissions regarding the operation of State, Federal and international laws as being “wholly misconceived, wrong at law, and completely lacking in substance”. The letter further explained Monash Health’s legal obligation to collect employee’s vaccination information under the Directions. Attached to the letter was Monash Health’s Employee Privacy Procedure. Ms Jamieson claims not to have received this email.[11]
g) On 5 October Monash Health conducted an online employee forum where a presentation[12] was given regarding the Directions and the requirement that all Monash Health employees be vaccinated against COVID-19 to continue working at Monash Health. The presentation clearly informed employees of:
i.The dates by which they were required to be vaccinated or to have booked an appointment to be vaccinated in order to comply with the Directions,
ii.The availability of the vaccines at Monash’s vaccination clinics,
iii.The availability of paid leave to get vaccinated,
iv.The medial grounds for an exemption,
v.The consequences of choosing not to be vaccinated, including the possible termination of their employment; and
vi.Their options to receive further advice
Ms Jamieson gave evidence that she “was unable to [attend] the online forum due to ongoing stress and anxiety…”[13]
h) On 8 October 2021 Ms Karen Lowe, Executive Director People and Culture, sent an email[14] to all employees again setting out the relevant dates by which employees were required to have received a COVID-19 vaccine or to make an appointment to receive a COVID-19 vaccine in order to comply with the Directions.
i) On 8 October 2021 Ms Jamieson sent an email[15] to Ms Julie Papaxanthou, Operations Manager, requesting leave without pay for the week beginning 11 October 2021. The leave was approved by Monash Health.
j) On 10 October 2021 Ms Jamieson sent an email[16] to Monash Health advising that she had cancelled a COVID-19 vaccination booking which she had previously made. Ms Jamieson stated she had been pressured into making the appointment by her work colleagues against her beliefs. Ms Jamieson further stated that she was ‘pro-choice’ and would be standing with her previous emails sent to Monash Health.
k) On 11 October 2021 Monash Health went above and beyond the Directions. It decided to issue its own direction to employees “to ensure they are able to enter and remain on the premises of Monash Health.” It communicated the direction by email.[17] Employees were given until 15 October 2021 to provide evidence that they had either received at least a first dose of a COVID-19 vaccine or had an appointment to receive at least their first dose by 29 October 2021. By 30 October 2021 all employees were required to provide evidence that they had received two doses of a COVID-19 vaccine or that they had received one COVID-19 vaccine and had a booking for a second dose by 15 December 2021. By 16 December 2021 all employees were required to provide evidence that they had received two doses of a COVID-19 vaccine (Monash Direction). The email stated that any failure to comply with the Monash Direction would result in the employee being suspended on full pay and would result in disciplinary action being commenced against them, which may lead to the termination of their employment. It further stated that employees who do not comply with the Monash Direction may be unable to perform the inherent requirements of their position, which may lead to the termination of their employment. In the face of the Victorian Government Directions, it remains unclear why the Monash Direction was necessary. Before me Ms Lowe explained it as follows.
“We believed it was necessary to ensure that employees knew that it was a requirement to provide us with the information of their vaccination status so that we could comply with the CHO order. We believed if we did not do that your employees would not have understood how serious the CHO order was.”[18]
In any case I am satisfied that the Monash Direction was both lawful and reasonable. The Monash Direction was not a vaccine mandate.
l) On 12 October 2021 Monash Health sent an SMS to all unvaccinated employees reminding them of the Monash Direction. On 13 October 2021 Monash Health sent a further SMS to employees which did not respond to the previous SMS, reminding them that they were required to be vaccinated or declare their vaccination status before 15 October 2021. Monash Health then telephoned unvaccinated employees who did not respond to either SMS to advise them that their records indicated they were unvaccinated.[19]
m) On 14 October 2021 Monash Health sent a further SMS to unvaccinated employees advising them that it was their final day to book a vaccination or declare their status and again telephoned employees who did not respond to the SMS to advise them that its records indicated that they did not meet the vaccination requirements.[20]
n) On 14 October 2021 Ms Papaxanthou sent Ms Jamieson a letter[21] informing her that Monash Health was conducting an investigation into an allegation concerning serious misconduct and a breach of contract for failing to comply with the Monash Direction (Suspension Letter). Ms Jamieson was informed that she was suspended from duty and that Monash Health was concerned that her failure to follow the Monash Direction meant that she did not have capacity to perform the inherent requirements of her position which required her to be able to enter, and remain on, the premises of Monash Health for the purposes of performing work at Monash Health. Ms Jamieson was invited to respond either at a meeting or in writing.
o) On 14 October 2021 Ms Jamieson provided a written response[22] to Ms Papaxanthou. Amongst other things Ms Jamieson disputed the legality of the Monash Direction and alleged that Monash Health was exercising intimidation, harassment and stress upon her by suspending her. Further, Ms Jamieson stated that she would be going on stress leave from 15 October 2021.
p) Between 14 and 15 October 2021 Monash Health and Ms Jamieson exchanged further correspondence about the COVID-19 vaccine and the Directions in which Ms Jamieson further disputed the legality of the 15 October deadline. Ms Jamieson made a complaint for bullying, intimidation, harassment, and threats against Monash Health.[23] In an email[24] to Ms Jamieson, Mr Ryan provided the link to the applicable CHO Direction which specified that the date by which Monash Health was to not allow Ms Jamieson to attend for work was 15 October 2021. In a reply email[25] Ms Jamieson accused Mr Ryan of harassment and intimidation while stating that she had made an appointment to receive her first dose of the COVID-19 vaccine on 29 October 2021.
q) On 18 October 2021 Ms Jamieson sent an email[26] to Ms Papaxanthou attaching a copy of her booking confirmation to receive the COVID-19 vaccine on 28 October 2021. Ms Papaxanthou sent Ms Jamieson a letter[27] in reply advising her that the investigation into the allegations had ceased because she had booked an appointment to receive the first dose of a COVID-19 vaccine.
r) On 21 October 2021 Ms Jamieson sent Monash Health an email[28] advising that she had cancelled her vaccination appointment and that she would not be re-booking it. Following this, Monash Health sent Ms Jamieson a second Suspension Letter.[29]
s) On 22 October 2021 Ms Jamieson provided a written response[30] to the Suspension Letter stating that she will not be bullied, harassed or coerced into Monash Health’s ‘unlawful direction’ to participate in a medical procedure.
t) On 25 October 2021 a meeting was scheduled with Ms Jamieson, Ms Papaxanthou and Ms Rebecca Higgins, Team Coordinator, to provide Ms Jamieson with Monash Health’s findings following its investigation. Ms Jamieson did not attend the meeting.[31]
a) On 26 October 2021 Ms Papanxanthou sent Ms Jamieson a letter[32] setting out Monash Health’s findings (Show Cause Letter). It stated that the allegations against her were substantiated as she had failed to provide evidence that she had received at least her first dose of a COVID-19 vaccine by 15 October 2021 or that she had an appointment to receive at least her first dose of a COVID-19 vaccine by 29 October 2021. It was determined that Ms Jamieson’s conduct constituted serious misconduct and a breach of her contract of employment and that her failure to follow the Monash Direction meant that she did not have the capacity to perform the inherent requirements of her job. Ms Jamieson was given an opportunity to provide her response to the findings. The letter incorrectly asserted that the Applicant had not responded to the Suspension Letter.
u) On 29 October 2021 Ms Jamieson responded to the Show Cause Letter by email[33] stating, amongst other things, that she was not in breach of her contract of employment “in any way, shape or form”. She again questioned the lawfulness and reasonableness of the Monash Direction and stated that she was bullied, threatened and harassed into undertaking medical treatment. Ms Jamieson further requested the reference number for her complaint made against harassment, bullying and threats.
v) On 1 November 2021 Ms Mondous sent an email[34] to Ms Jamieson advising her that Monash Health did not consider there to be a proper basis for her complaint of bullying, intimidation, harassment and threats as it arose out of Monash Health issuing a lawful and reasonable direction.
w) On 1 November 2021 Monash Health sent an email[35] to Ms Jamieson providing her with a further and final opportunity to respond to the matters set out in the Show Cause Letter and to provide any information she considered relevant, by 5pm on 3 November 2021. Ms Jamieson was also given a further opportunity to provide evidence of having received at least one dose of a COVID-19 Vaccine or evidence of a medical exemption 5pm on 3 November 2021. Ms Jamieson did not respond.
x) On 9 November 2021 Ms Karen Lowe, Executive Director of People and Culture, made the decision to terminate Ms Jamieson’s employment on the basis that she had engaged in serious misconduct and did not have the capacity to perform the inherent requirements of her role. Ms Lowe was provided with a detailed termination brief[36] prepared by Ms Papaxanthou which she considered demonstrated the Applicant had chosen not to comply with the Monash Direction, was unable to perform work at Monash Health sites and therefore could not perform the inherent requirements of her role because she was required to work on site.[37]
a) On 9 November 2021 a meeting was arranged with Ms Jamieson to notify her of the termination of her employment. Ms Jamieson did not attend the meeting. Ms Jamieson was notified of the termination of her employment by letter[38] on 9 November 2021. It was stated that Ms Jamieson’s employment would end on that day and that she would be paid in lieu of notice.
Submissions of the Parties
Ms Jamieson contended that her dismissal was harsh, unjust or unreasonable. She contended that Monash Health was exercising coercion and duress upon her by threatening her employment and that Monash Health failed to provide her with enough safety data for her to make an informed decision. Ms Jamieson stated that she could not consent to the taking of a medical procedure without entering into a contract with the people that were responsible for any possible adverse reactions. She contended that she did not commit any serious misconduct nor wilfully disobey any lawful and reasonable direction of Monash Health. For these reasons, Ms Jamieson contended that her dismissal was unfair.
At the date of the hearing Ms Jamieson contended that there was still not sufficient data or evidence about the safety or efficacy of any of the vaccines that would satisfy her to get vaccinated.[39] Before me[40] the Applicant gave evidence that she had read the Australian product information about COVID-19 vaccines published by the Therapeutic Goods Administration. When I asked “did you read, say for example, in relation to AstraZeneca, Item 4.4 ‘Special warnings and precautions for use?” The Applicant replied “I’ve read them all. …There’s still not enough data there”. None of this satisfied the Applicant. Ms Jamieson conceded[41] that Monash Health provided its employees with Frequently Asked Questions and Answers information and links to various websites providing information about COVID-19 vaccines and provided employees with a COVID-19 employee hotline. None of this satisfied the Applicant. What was clear from the Applicant’s evidence is that there is no information that Monash Health could have provided to the Applicant that would have satisfied her. In any case, Monash Health were not mandating the COVID-19 vaccine. It had no obligation to provide the Applicant with the information she requested.
Monash Health contended that Ms Jamieson’s dismissal was not harsh, unjust or unreasonable and that it dismissed Ms Jamieson for a valid reason, namely that she had failed to comply with a lawful and reasonable direction of her employer and that she had rendered herself unable to perform the inherent requirements of her role by choosing not to be vaccinated. Ms Jamieson’s decision not to get vaccinated meant that Monash Health, bound by the terms of the Directions, was required to ensure Ms Jamieson did not attend the workplace. Monash Health contended that it was an inherent requirement of Ms Jamieson’s position that she be able to attend Monash Health’s premises and perform work and that she was unable to perform her work from home. Monash Health contended that it warned Ms Jamieson of its concerns in relation to her failure to comply with a lawful and reasonable direction and her inability to perform the inherent requirements of her position and that it gave her the opportunity to respond to those concerns and therefore provided her with procedural fairness as contemplated by the FW Act.
Consideration
For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable (s 385(b)). In considering whether it is so satisfied, the Commission must take into account the various matters specified in s 387.
The Commission is required to consider whether there was a valid reason for the dismissal related to the person’s capacity or conduct (s 387(a)). Such a reason is one that is valid in the sense both that it was a good or sufficient reason, and also a substantiated reason.
The essence of a valid reason is a reason that is sound, defensible or a well-founded reason – one that is not capricious, fanciful, spiteful or prejudiced.[42]
Ms Jamison is not an “anti-vaxxer”. Her evidence, which I accept, is that, during the 8 years of her employment with Monash Health, she has received a number of vaccines for “Influenza Vaccine, Whooping Cough, MMR [measles, mumps, and rubella] and boosters as well as Quantiferon blood test.”[43] Her evidence is that her opposition to the COVID-19 vaccine is based solely on a lack of evidence and information about those vaccines. I have commented above that it is clear no amount of evidence and information would have changed the Applicant’s mind. Wide scale, all of population, roll-outs of COVID-19 vaccines began in January 2021. In the lead up to the approval (sometimes provisional approval) of those vaccines and since the roll-out there have been countless reputable studies about vaccine efficacy and safety. Ms Jamieson is a competent, smart and resourceful person. She gave evidence that she copied and pasted a lot of her questions to Monash and her submissions before the Commission from the internet. She claimed to have “researched it”.[44] There is no reason why she could not have deployed these research skills to better satisfy herself of the safety and efficacy of COVID-19 vaccines. She was not entitled to expect Monash Health to provide it to her. I reject her contention[45] that Monash Health was involved in “the withholding of crucial medical information” to her.
I am satisfied that Monash Health had a valid reason to terminate Ms Jamieson’s employment. Ms Jamieson was entitled to make the decision she made not to get vaccinated. This case is not about vaccine mandates. There was no vaccine mandate. There was, however, a direction to employers not to allow employees to attend for work on site unless they were vaccinated. Monash Health then issued its own direction to employees “to ensure they are able to enter and remain on the premises of Monash Health.” Again, this was not a vaccine mandate.
As a dental nurse attending on site (as and when required) was an inherent requirement of the Applicant’s position. The evidence did not support a finding that the Applicant could have undertaken her work from home. By deciding (as she was freely able to do and did) not to get vaccinated the Applicant made herself unable to perform the inherent requirements of her role. It was her choice. It is simply the case that Ms Jamieson does not like the consequence that flowed from the voluntary choice that she made. By reason of that choice Ms Jamieson was not able to attend work on site. Ms Jamieson’s decision not to get vaccinated meant that Monash Health, bound by the terms of the Directions, was required to ensure that Ms Jamieson did not attend the workplace. Monash Hospital was in no position not to comply with the Directions. It acted as it was lawfully required to do.
Having found that there was a valid reason for the dismissal associated with the Applicant’s inability to the perform the inherent requirements of her position it is not necessary for me to determine whether the Applicant engaged in serious misconduct by not complying with the Monash Direction. That is what Monash Health contended. I will not decide the point. However, I observe that it appears somewhat overstated and a heavy-handed approach.
In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether an employee has been notified of the reasons for dismissal and whether the person was afforded an opportunity to respond to any reason related to their capacity or conduct (ss 387(b) and (c)). The Show Cause Letter of 26 October 2021 notified Ms Jamieson of the proposed reason for dismissal and gave her an adequate opportunity to respond.
Monash Health did not refuse, unreasonably or otherwise, to allow Ms Jamieson to have a support person present to assist in discussions relating to the dismissal (s 387(d)).
If a dismissal relates to unsatisfactory performance, s 387(e) requires the Commission to consider whether the person has been warned about that unsatisfactory performance prior to dismissal. However, Ms Jamieson’s employment was not terminated for unsatisfactory performance, but for issues relating to her capacity.
The Commission is required to consider the degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal (ss 387(f), (g)). The purpose of these provisions is not to raise the bar for larger employers such as Monash Health, but to require the Commission to take into account these common features of smaller employers. In any event, there was no procedural deficiency in respect of which mitigation might be sought in connection with these provisions. Sections 387(f) and (g) carry no weight in the present matter.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account any other matters that it considers relevant (s 387(h)). In the present matter I have taken into account the Applicant’s long service, unblemished record, the economic impact on her of the loss of her employment and Ms Jamieson’s genuinely held concerns about the safety of COVID-19 vaccines.
However, I do not consider that any of these additional factors render the dismissal harsh or otherwise unfair. Monash Health had no choice in the matter. It had to comply with the Directions. Ms Jamieson did have a choice – to either get vaccinated or not. She freely exercised that choice. The consequences of exercising that choice were made clear to her, and, nonetheless, she made her choice not to be vaccinated.
Having regard to s 387 of the FW Act, I consider that Ms Jamieson’s dismissal was not harsh, unjust or unreasonable, and that it was therefore not unfair. The application is dismissed.
COMMISSIONER
Appearances:
E. Jamieson for herself
M. Minucci for Monash Health
Hearing details:
2022
Melbourne
15 March
[1] Transcript PN55.
[2] Transcript PN185-193.
[3] Exhibit 6.
[4] Witness Statement of Karen Lowe dated 2 March 2022 (Exhibit 6), at Court Book p 43.
[5] KL-4.
[6] KL-10.
[7] Transcript PN109
[8] KL-11.
[9] KL-5.
[10] KL-12.
[11] Transcript PN132.
[12] KL-6.
[13] Court Book page 185.
[14] KL-7.
[15] KL-13.
[16] KL-14.
[17] KL-8.
[18] Transcript PN236.
[19] Witness Statement of Karen Lowe dated 2 March 2022 (Exhibit 6), at Court Book p 47.
[20] Ibid.
[21] KL-15.
[22] KL-16.
[23] KL-17.
[24] KL-18.
[25] Ibid.
[26] KL-19.
[27] KL-20.
[28] KL-21.
[29] KL-22.
[30] KL-23.
[31] Witness Statement of Karen Lowe dated 2 March 2022 (Exhibit 6), at Court Book p 51.
[32] KL-24.
[33] KL-25.
[34] KL-26
[35] KL-27.
[36] KL-28
[37] Witness Statement of Karen Lowe dated 2 March 2022 (Exhibit 6), at Court Book p 52.
[38] KL-29.
[39] Transcript PN214.
[40] Transcript PN62-68.
[41] Transcript PN95.
[42] Selvachandran v Peteron Plastics [1995] IRCA 333, (1995) 62 IR 371 at 373.
[43] Court Book page 185.
[44] Transcript PN109.
[45] Court Book page 186.
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