Ms Evelyn Paul v Ozcare - [2022] FWC 1139

[2022] FWC 1139

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Evelyn Paul
v

Ozcare

(U2021/8169)

COMMISSIONER SPENCER

BRISBANE, 12 MAY 2022

Application for an unfair dismissal remedy – mandated influenza vaccination – medical contraindication to influenza vaccine – community aged care – not able to perform inherent requirements of job – consultation undertaken – dismissal not harsh, unjust or unreasonable – application dismissed.

INTRODUCTION

Ms Evelyn Paul (the Applicant) lodged an application to the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of her employment by Ozcare (the Employer/the Respondent) was harsh, unjust and unreasonable.

The Respondent is a not-for-profit organisation that provides client support, home care to 13,000 clients across Queensland. The Respondent advised that all of its clients receiving home care are aged 65 years and over, 8,000 of whom are aged 75 years and above. The Respondent employed the Applicant on 11 May 2010, as a Clinical Nurse in the Community Health Program at their Mackay operations. The Applicant was dismissed from her employment after 11 years of employment, for the failure to meet the Respondent’s direction to receive the influenza vaccination. The Applicant argued she had a medical exemption to the influenza vaccination requirement.

The Applicant initially sought reinstatement, later amending the remedy sought to compensation pursuant to s.392 of the Act.

The matter was heard in Mackay, Queensland; all witnesses (except one) provided their evidence in person. The Applicant was represented by Ms Anne-Maree Roche, Industrial Officer of the Australian Nursing and Midwifery Federation – QNMU Branch (the QNMU/the Union), assisted by Ms Kate Angell, Secretary of the QNMU. The Respondent was represented, with permission by Mr Jim Murdoch, of counsel, instructed by Mr Murray Procter, Partner of FAC Lawyers. The Union did not object to legal representation.

Permission was granted pursuant to s.596 (2)(a) (taking into account the complexity of the matter and issues of efficiency with the proceedings) for the Respondent to be legally represented, with the consent of the Applicant. Prior to the Hearing, the Applicant then raised an objection to the Respondent being represented by counsel. The parties were advised that in line with the Full Bench decision of NSW Bar Association v Brett McAuliffe,[1] once permission to appear has been granted, the permission applies, irrespective of the level of representation obtained.

Directions were set for the filing of evidence and submissions. Additional submissions were filed following the Hearing, in accordance with consent Directions, set by the parties.

BACKGROUND

The Applicant commenced employment with the Respondent on 11 May 2010, initially engaged as a Registered Nurse, and was appointed as Clinical Nurse on 29 April 2013. The Applicant was dismissed from her employment on 18 August 2021 for the failure to receive a mandated influenza vaccination. The Applicant submitted that this was due to medical grounds.

The Applicant submitted that she had been diagnosed in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 1139
Decision Date: 12 MAY 2022

CaseChat Overview and Summary

The applicant, Ms Evelyn Paul, brought proceedings against her former employer, Ozcare, in the Fair Work Commission, seeking a remedy for an unfair dismissal. The dispute centred on Ms Paul's refusal to be vaccinated against influenza, a requirement for her role in community aged care. Ms Paul claimed that she had a medical contraindication to the influenza vaccine, which prevented her from fulfilling the inherent requirements of her job. Ozcare maintained that the dismissal was justified due to her refusal to comply with a lawful and reasonable direction.

The primary legal issue the court had to resolve was whether Ms Paul's dismissal was harsh, unjust, or unreasonable. The court examined the nature of the vaccination requirement, the extent of the consultation between the parties, and the reasonableness of the dismissal in light of the medical evidence presented. The court also needed to consider whether Ozcare's decision to dismiss Ms Paul was proportionate to the circumstances and whether there were any alternative measures that could have been taken.

The court found that Ozcare had consulted with Ms Paul and provided her with opportunities to comply with the vaccination requirement. It concluded that the vaccination mandate was a lawful and reasonable direction, and that Ms Paul's refusal to comply amounted to a failure to perform the inherent requirements of her job. The court determined that the dismissal was not harsh, unjust, or unreasonable given the circumstances, including the potential risk to the health and safety of vulnerable clients. The court held that Ozcare had taken appropriate steps to manage the situation and that the dismissal was proportionate to the seriousness of the breach.

Ms Paul's application for an unfair dismissal remedy was dismissed. The court ordered that no further orders be made in relation to the application.

Orders