Ms Holly Ranson v The Commissioner for Public Employment
[2022] FWC 1513
•30 JUNE 2022
| [2022] FWC 1513 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Holly Ranson
v
The Commissioner for Public Employment
(U2021/11524)
| COMMISSIONER RIORDAN | SYDNEY, 30 JUNE 2022 |
Application for an unfair dismissal remedy
On 14 December 2021, Ms Holly Ranson (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 2 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 Fire and Rescue Service (NTFRS) as a Firefighter from 19 February 2018 until her dismissal on 2 December 2021. The Applicant’s employment was covered by the Northern Territory Public Sector Fire and Rescue Service 2017 - 2021 Enterprise Agreement.
The Applicant seeks reinstatement to her position with the Respondent, including orders for continuity of service and compensation of lost wages.
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 announced COVID-19 Directions (No. 55) 2021 (CHO Direction No. 55) which came into effect on 12 November 2021, directing for mandatory vaccination of certain 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-I9 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 22 October 2021, Mr Jamie Chalker, Commissioner for Police and CEO, wrote to all Northern Territory Police, Fire and Emergencies Services (NTPFES) staff regarding Mandatory COVID-19 vaccination for all NTPFES workers. The correspondence provided that due to the nature of their work, all NTPFES workers were subject to the mandatory vaccination criteria directed by CHO Direction No. 55. It provided that all NTPFES workers were required to receive their first dose of an approved COVID-19 vaccination by 13 November 2021, and their second dose of an approved COVID-19 vaccination by 25 December 2021.
Various internal broadcasts followed the correspondence from the Commissioner and CEO, providing further information and clarification regarding the vaccination mandate.
The Chief Fire Officer (CFO) wrote to the Applicant on 12 November 2021 as follows:
“Dear Ms Ranson
RE: INABILITY TO PERFORM DUTIES - FAILURE OR REFUSAL TO RECEIVE APPROVED COVID-19 VACCINATION
I am writing to you, pursuant to section 44 of the Public Sector Employment and Management Act 1993 (the Act), to advise you that I suspect that there are "inability or performance grounds" which exist in respect to your employment.
In particular, with reference to sections 44(1) (a) and (b) of the Act, I suspect that you are not able and/or not suitable to perform the duties assigned to you.
Particulars
The basis upon which I suspect there may be inability and performance grounds for your employment are as follows:
(a) You are an ongoing employee of the Department working as a Firefighter.
Chief Health Officer Directions (No. 55)2021
(b) On 13 October 2021, the Northern Territory Chief Health Officer issued "COVID-19 Directions (No. 55) 2021: Directions for mandatory vaccination of workers to attend the workplace" (CHO Directions No. 55).
(c) CHO Directions No. 55 took effect at 12:00 noon on 13 October 2021 and remain in force.
(d) Direction 4 of CHO Directions No. 55 provide that the Directions apply to workers:(i) who during the course of work, are likely to come into contact with a vulnerable person;
(ii) who are at risk of infection with COVID-19 because the workers, during the course of work, are likely to come into contact with a person or thing that poses a risk of infection;
(iii) whose workplace poses a high risk of infection with COVID-19; or
(iv) who perform work that is necessary for the operation or maintenance of essential infrastructure or essential logistics in the Territory; and
(e) I am satisfied that Direction 4 of CHO Directions No. 55 applies to your workplace because categories (i), (ii) and (iii) above.
(f) Direction 6 of CHO Directions No. 55 provides that:For the period starting on 13 November 2021 and ending on 24 December 2021, a worker who has not received the first dose of an approved COVfD-19 vaccine must not attend the worker's workplace.
(g) Direction 10 of CHO Directions No. 55 relevantly provides that:
A person conducting a business or undertaking must ensure that any worker who performs work for the person must not attend the worker's workplace contrary to direction 6.
Direction to Advise Vaccination Status
(h) On 22 October 2021, the Chief Executive Officer:(i) published the Northern Territory Police Fire and Emergency Services COVID-19 Vaccination Instruction and Policy; and
(ii) notified you and all workers at the Northern Territory Police Fire and Emergency Services that CHO Directions No.55 applied to your workplace.
(i) On 26 October 2021:
i. the Chief Executive Officer directed you and all workers at your workplace to advise their vaccination status by no later than 2 November 2021 (Direction 1 of 2021); and
ii. you were sent a reminder of this direction on 5 November 2021 and 10 November 2021.
(j) On multiple occasions you advised your management that you had not received the first dose of an approved COVID-19 vaccine and you did not intend to do so before 13 November 2021.
(k) On 10 November 2021, you were directed not to attend your workplace until further notice.
(l) As at 12 November 2021, you had not entered any COVID-19 vaccination information into the myHR Vaccination register.
(m) For the reasons set out in particulars (a) to (1) above, CHO Directions NO. 55 require that you must not attend your workplace, and I must ensure that you do not do so.
(n) I am not able to provide you with suitable alternate duties in a workplace that is not subject to CHO Directions No.55.
As you are not able to perform your duties in any reasonably available workplace, I have reasonable grounds to suspect that there are inability and performance grounds in relation to your employment because:
1. you are not able to perform the duties assigned to you - for section 44(l)(a) of the Act; and/or
2. you are not suited to perform the duties assigned to you - for section 44(l)(b) of the Act.However, before I make a decision in that regard, I invite you to make submissions to me as to whether you agree with my suspicion, or provide me with any comments you may have in relation to the matters set out in particulars (a) to (n)above.
Your submissions should be in writing and must reach me no later than close of business Thursday 18 November 2021 after you receive this letter.
Suspension Pending Investigation
On the basis of the material set out above, I am of the opinion that the suspected inability or performance grounds are of such a serious nature that you should not perform the duties you have been assigned to perform pending the making of a final decision. Pursuant to section 47 of the Act I foreshadow an intention to suspend you from duty, with remuneration, for a period of 3 months or until the suspension otherwise ceases in accordance with section 47(4) of the Act.
However, before I take action to suspend you, I invite you to make a submission to me in relation to the foreshadowed intention to suspend you from your duties, including whether any suspension should be with or without remuneration. Your submissions should be in writing and must reach me no later than close of business Tuesday 16 November 2021.
You are not required to attend for duty while you prepare your submissions and I encourage you to take this time to consider and prepare your submissions. Your IT and building access will be suspended from midnight Friday 12 November 2021. If you require access to your pay slips or other personnel information please contact DCDD Workforce Services via email [redacted].
I enclose for your information copies of:
• Direction 1 of 2021 from CEO NTPFES;
• CHO Directions No. 55;
• Part 7 of the Act;
• Employment Instruction No.3 - Natural Justice; and
• Employment Instruction No. 6 - Performance and Inability.If you wish to discuss this matter then please contact Taskforce Protect via email [redacted].
I appreciate that receiving this notification and dealing with the issues it raises may be difficult. If you would like support, please contact the NTPFES Support and Wellbeing service on phone [redacted].
Yours sincerely
Mr Mark Spain
Chief Fire Officer
12 November 2021”
The CFO wrote to the Applicant on 17 November 2021, suspending her from duty with remuneration:
“Dear Ms Ranson
RE: Notice of suspension from duty with remuneration
I refer to my letter dated 12 November 2021 in which I invited you to respond to why you should not be suspended from duty with remuneration, under section 47 of the Public Sector Employment and Management Act 1993 (the Act) in relation to the following inability and performance grounds:
• that you are not able to perform the duties assigned to you - for section 44(l)(a) of the Act; and/or
• that you are not suited to perform the duties assigned to you - for section 44(l)(b) of the Act.On 16 November 20211 received a response submitted by Ms Erina Early, of the United Workers Union on your behalf. I note in this response Ms Early did not make any submission as to why you should not be suspended.
I note in particular that Ms Early refers to you receiving correspondence related to alleged breaches of discipline, the 'restricted notification options' in myHR and requesting consideration pursuant to s49(m) of the Act. I take this opportunity to clarify that my letter to you on the 12 November 2021 was in relation to my suspicion that inability and performance grounds existed in respect to your employment. My letter did not reference disciplinary breaches and therefore this has little relevance to your circumstances. I have attached a copy of this letter for your ease of reference.
I have carefully considered your submission; however, I remain of the view that, because you have failed to update your COVID-19 vaccination status in myHR and you do not have a contraindication to all approved vaccines:
• you are not permitted to enter your workplace;
• I must not permit you to enter your workplace;
• you are unable to perform the duties assigned to you, until such time as you can comply
with CHO Direction No. 55 of 2021;and
• no alternative duties are reasonably available.
Consequently, in accordance with section 47 of the Act, I have decided to suspend you from duty with remuneration. Your suspension will take effect immediately from the date of this letter and will remain in place pending the making of a final decision in relation to the suspected inability and performance grounds.
If you want to make a further submission in respect to the particulars as outlined in my previous correspondence, please do so by no later than close of business Thursday 18 November 2021. I will write to you further, to foreshadow my intentions with regard to your employment by 22 November 2021. In this next correspondence, I will take into account all submissions received.
My previous directions to you continue to apply.
Available Support
I appreciate that receiving this notification and dealing with the issues it raises may be difficult. If you would like support, please contact the NTPFES Support and Wellbeing service on phone [redacted].
If you are aggrieved by my decision you may request a review of the action by the Commissioner for Public Employment in accordance with section 59(l)(b) of the Act. Grievances may lodged at [redacted] within 3 months of your receipt of this letter.
Public Sector Appeals and Grievance Reviews may be contacted for advice on [redacted].
If you wish to discuss this matter then please contact Taskforce Protect via email [redacted].
Yours sincerely
Mr Mark Spain AFSM
Chief Fire Officer
17 November 2021”
The CFO further wrote to the Applicant on 19 November 2021, foreshadowing an intention to terminate her employment:
“Dear Ms Ranson
RE: Section 46(1) (c) Public Sector Employment and Management Act 1993- Foreshadowed intention to terminate employment
I refer to my letter dated 12 November 2021 in which I notified you that I suspected there are reasonable grounds for me to be satisfied that there are inability or performance grounds under section 44(1)(b) of the Public Sector Employment and Management Act 1993 (the Act) in relation to your employment as a Firefighter.
In the correspondence I detailed the inability and performance grounds and invited you to provide a submission to me as to whether you agree with my suspicion, or provide me with any comments you may have in relation to the matters set out in the particulars. The relevant inability and performance grounds are:
• that you are not able to perform the duties assigned to you - for section 44(1)(a) of the Act; and/or
• that you are not suited to perform the duties assigned to you - for section 44(1)(b) of the Act.In my letter of 17 November 2021 I acknowledged receipt of Ms Erina Early's response, submitted on your behalf, and invited you to make any further submissions by COB 18 November 2021.
On 18 November 2021 I received a submission from Mr Chris Dekker, Legal Liaison Officer at Red Union Support, on your behalf and in response to my letter dated 17 November 2021.
In Mr Dekker's submission he has not addressed whether you agree or disagree that inability or performance grounds exist and I have not been provided any additional information, specific to your circumstances, for consideration.
Accordingly, I remain of the view that, because you have failed to update your COVID-19 vaccination status in myHR, and you do not have a contraindication to all approved vaccines:
• you are not permitted to enter your workplace;
• I must not permit you to enter your workplace;
• you are unable to perform the duties assigned to you, until such time as you can comply with CHO Direction No. 55 of 2021; and
• no alternative duties are reasonably available.Having determined that there are inability or performance grounds, I must now consider what is reasonable and appropriate action to take in the circumstances and in light of the actions available to me under section 46(1) of the Act (attached).
Having given serious consideration to all of the above matters and the actions available to me under 46(1) of the Act, I hereby foreshadow my intention to terminate your employment pursuant to section 46(1)(c) of the Act.
Before I take action to terminate your employment, I invite you to make a submission to me in relation to the foreshadowed intention to terminate your employment. Your submissions should be in writing and must reach me no later than close of business 25 November 2021. I will write to you further, to confirm my actions by 29 November 2021. In making my final decision, I will take into account any submission received.
Further, I refer to my letter dated 17 November 2021 where I advised that I decided to suspend you from duty with remuneration until a final decision in relation to the suspected inability and performance grounds. Having now decided that there are inability or performance grounds, and having foreshadowed my intention to terminate your employment, I am now foreshadowing my intention to suspend you from duty without remuneration pursuant with section 47(2)(b) of the Act, until a final decision is made in relation to the action I take. You may wish to use your recreation leave or long service leave entitlements during this period.
Before I take action to suspend you from duties without remuneration , I invite you to make a submission to me in relation to the foreshadowed intention to suspend you from duties without remuneration. Your submissions should be in writing and must reach me no later than close of business 22 November 2021.
My previous directions to you continue to apply.
Available Support
I remind you that Employee Assistance Programs are available if you require support.
If you are aggrieved by my decision you may request a review of the action by the Commissioner for Public Employment in accordance with section 59(1)(b) of the Act. Grievances may be lodged at [email protected] within 3 months of your receipt of this letter.
Public Sector Appeals and Grievance Reviews may be contacted for advice on [redacted].
If you wish to discuss this matter then please contact Taskforce Protect via email [redacted].
Yours sincerely
Mr Mark Spain AFSM
Chief Fire Officer
19 November 2021”
The Applicant wrote to the CFO by email on 22 November 2021, stating:
“Dear Mr. Spain,
In reply to your letters in relation to your notification to dismiss me from my position of firefighter with the NTFRS.
You were sent by email on 15 November 2021 copies of:
My current NT Worksafe Statement of Fitness for Work which is current from 11 November 2021 until 9 December 2021.
My current NT Worksafe Workers compensation Claim also dated 11 November 2021.Consequently, I bring to your intention that any dismissal is in breach of the relevant sections set out in the Fair Work Act 2009 (Cth) and relevant rule of the Fair Work Regulations 2009 (Cth).
I also bring to your attention that your letters dated 17 November and 19 November 2021 are consequently ultra-virus (sic) and will be challenged accordingly.
Your continued harassment, bullying and coercion intending me to comply with your ill-advised directions set out in your letters, will be referred to the Ombudsman and other legal recourse.
Any communication to me must now be sent to me by email at this email address [redacted].
Thank you.
Holly Ranson”
Mr Thomas Malone, Industrial Officer for the United Workers Union (UWU), also wrote to the CFO by email on behalf of the Applicant on 22 November 2021, providing:
“Dear Mark,
We write on behalf of our member, Ms Holly Ranson, in response to your correspondence dated 19 November 2021.
We note that your letter foreshadows suspending our member without pay. Ms Ranson has significant financial obligations that she must meet.
Ms Ranson’s partner has lost his job recently, and her remuneration is of vital importance in supporting him and his three-year-old son.
A suspension without pay would have an immediate damaging effect on our member’s household budget, and longer-term consequences which would be difficult to repair. A suspension without pay risks Ms Ranson and her partner’s rental being terminated due to an inability to keep up with rental payments. With rents in Darwin having increased by over 20%, this would result in potential homelessness for the family as any replacement property would be far more unaffordable.
In the last year, the consumer price index in Darwin rose by 6.1%, the highest in the nation, with similar issues in Alice Springs and across the Territory. This has had significant implications for the family’s budget.
Considering the above, we believe that our member should continue to be remunerated due to the adverse impact of not doing so.
Please let me know if you have any further questions.
Regards,
Thomas Malone
Industrial Officer
United Workers Union”
The Applicant was suspended from duty without remuneration on 23 November 2021:
“Dear Ms Ranson
RE: Notice of suspension from duty without remuneration
I refer to my letter dated 19 November 2021 in which I invited you to respond to why you should not be suspended from duty without remuneration, under section 47 of the Public Sector Employment and Management Act 1993 (the Act) in relation to the following inability and performance grounds:
• that you are not able to perform the duties assigned to you - for section 44(l)(a) of the Act; and/or
• that you are not suited to perform the duties assigned to you - for section 44(l)(b) of the Act.I have now carefully considered the material before me, including your response received on 22 November 2021.
I note in particular that you have advised that the submission of a workers compensation claim may negate any actions I have foreshadowed in previous correspondence. I understand a liability decision is yet to be established in relation the workers compensation matter; however, in any case that outcome does not affect this performance and inability process and will be treated separately to your workers compensation claim.
I have carefully considered your response and advise that I am satisfied that you have not complied, and do not intend to comply, with CHO Direction No. 55.
In accordance with section 47 of the Act I have decided to suspend you from duty without remuneration as I am of the opinion that, because you have failed to update your COVID-19 vaccination status in myHR and you do not have a contraindication to all such approved vaccines:
• you are not permitted to enter your workplace;
• I must not permit you to enter your workplace;
• you are unable to perform the duties assigned to you, until such time as you can comply
with CHO Direction No. 55 of 2021;and
• no alternative duties are reasonably available.
Your suspension will take effect immediately from the date of this letter and will remain in place pending a final decision in relation to the foreshadowed action to terminate your employment. You may wish to use your recreation leave or long service leave entitlements during this period.
During your suspension you are directed to not attend the workplace or any other departmental workplace in relation to the performance of your duties.
While this inability process is ongoing I direct you to make yourself available for the purpose of assisting with any investigations or inquiries relating to this matter.
You are further reminded that your obligations under the Code of Conduct continue to apply throughout and following the conclusion of this process.
It is anticipated that I will make a final decision no later than Monday 29 November 2021.
Available Support
I remind you that Employee Assistance Programs are available if you require support.
If you are aggrieved by my decision you may request a review of the action by the Commissioner for Public Employment in accordance with section 59(l)(b) of the Act. Grievances may be lodged at [redacted] within 3 months of your receipt of this letter.
…
Yours sincerely
Mr Mark Spain AFSM
Chief Fire Officer
23 November 2021”
The Applicant responded by email on 24 November 2021 as follows:
“Dear Mr. Spain,
In reply to your letter dated 23 November 2021 in relation to your notification to suspend me from duty without remuneration from my position of firefighter with the NTFRS.
I again bring to your attention of the documents that were sent to you in my previous communication by email, of 15 November 2021:
My current NT Worksafe Statement of Fitness for Work which is current from 11 November 2021 until 9 December 2021.
My current NT Worksafe Workers compensation Claim also dated 11 November 2021.In your latest communication you fail to refer to the current fitness for work certificate which is current from 11 November to 9 December 2021.
You were in possession of said medical certificate prior to the letters dated 17 and 19 November 2021. Consequently, you were aware of my administrative situation (medical certificate).
It appears that you have chosen to ignore the same and by this action you are, by suspending me from duty without renumeration, in breach of the relevant sections set out in the Fair Work Act 2009 (Cth) and relevant regulations of the Fair Work Regulations 2009 (Cth). Similarly your decision is ultra-virus.
More so, any further action resulting in dismissing me whilst covered with a current medical certificate will also be in breach of the above-mentioned Commonwealth legislation and such decision would also be considered to be ultra-virus. Similarly, any such decision will be ultra-virus.To avoid legal action against you as employer, I invite you to reverse your decision of suspension forthwith, and give you a 24 hour period to inform me of your decision to reverse said decision.
Failure to do so will result in legal action be engaged against you as employer.
Parallel, a decision to dismiss me upon the grounds that you set out in your communications will also result in legal action.Thank you.
Yours sincerely,
Holly Ranson”
The CFO terminated the Applicant’s employment on 2 December 2021 by formal written letter:
“Dear Ms Ranson
RE: Termination of Employment - Inability to Perform Your Duties
I refer to my letter dated 19 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(l)(a) and 44(l)(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(l)(c) of the Act, and invited you to make submissions as to why I should not take that action.
I have carefully considered all the evidence available to me, including your response received 22 November 2021.
I noted your opinion that the submission of a workers compensation claim may negate any actions I had foreshadowed in previous correspondence. As I advised in my letter dated 23 November 2021 the performance and inability process would be treated separately to your workers compensation claim.
Furthermore, your current medical incapacity is alleged to be a result of work related "sexual harassment, bullying, discrimination, coercion, intimidation by supervisor, senior colleagues and managers" for which the liability is yet to be established.
Irrespective of the outcome of this performance and inability action, the necessary enquiries will be made to thoroughly investigate these serious allegations. However, the matter remains that you have not complied and do not intend to comply with CHO Directions No.55.
Having given the matter careful consideration, 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; 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(l)(a) of the Act, and/or you are not suited to perform the inherent requirements of your duties, under section 44(l)(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 action available to me is to terminate your employment under section 46(l)(c) of the Act.
Notice of Termination
Pursuant to section 46(l)(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: 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.
Available Support
I remind you that Employee Assistance Programs are available if you require support.
If you wish to discuss this matter then please contact Taskforce Protect via email [redacted].
Yours sincerely
Mr Mark Spain AFSM
Chief Fire Officer
2 December 2021”
The matter was listed for Hearing by Microsoft Teams on 8 June 2022. Mr Jean-Remi Campion, legal representative, was granted leave to appear for the Applicant. Mr Damien Doherty, Manager Employee Relations, Office of the Commissioner for Public Employment, appeared for the Respondent.
Neither party sought to file or rely on witness evidence in the proceeding. The Applicant also elected not to file an Outline of Submissions in Reply. Accordingly, this matter is determined on the submissions filed by the parties and the closing submissions as delivered orally at the Hearing.
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 at the time of her dismissal, she was exercising a workplace right of absence from the workplace due to a medical condition sustained at the workplace. The Applicant submitted that her workplace injury was substantiated via a current Norther Territory WorkSafe Initial Fitness for Work Certificate valid from 11/11/2021 to 09/12/2021. The Applicant submitted that at or around the same date, she had also submitted a Northern Territory WorkSafe Workers Compensation form for bullying and sexual harassment that she sustained in the workplace. The Applicant submitted that the CFO had been informed of her absence from the workplace and had been provided with a copy of her Initial Fitness for Work Certificate.
The Applicant submitted that the Respondent dismissed her whilst she was on authorised absence from work due to her workplace injury. The Applicant submitted that at all
material times, the Respondent was aware, “by their admittance”, that she was on an authorised absence from the workplace.
The Applicant noted that the Respondent relies on the Public Sector Employment and Management Act 1993 (the PSEM Act) in stating that the Applicant is not able to perform the inherent requirements of her position. However, the Applicant maintained that she was suffering a mental health injury, sustained in the workplace by way of workplace bullying and sexual harassment, at the lead up to and time of her dismissal and could not perform her duties for this reason.
The Applicant submitted that her dismissal was discriminatory as the Respondent was unable to rely on the ‘inherent requirements’ exemption in the FW Act. The Applicant submitted that the Respondent has treated her workplace right of absence from work due to a medical condition “separately from the administrative process in place under the Act and that in doing so, the employer’s dismissal of the worker is invalid and ultra-virus (sic)”.
Further, while the Respondent relies on CHO Direction No. 55, the Applicant submitted that the Respondent has made an assumption that she would not comply with the Directions. The Applicant submitted that in exercising her workplace right to be absent from the workplace, she was not working physically in the workplace nor dealing with clients, stakeholders or other employees, nor vulnerable persons in the workplace. The Applicant submitted, therefore, she was not contravening nor at risk of contravening CHO Direction No. 55.
The Applicant submitted that for these reasons, the CFO’s decision to dismiss her was ‘ultra vires’ as the CFO acted beyond fulfilling the purpose of the Act and “extended, added to or varied” the legislative intention, in contravention of the FW Act. The Applicant submitted the CFO acted outside the scope of that which the Act allows and carried out an abuse of process.
The Applicant further submitted that the Directions for mandatory vaccination of workers to attend the workplace was ultra vires as the directions were outside the intentions and interpretation of the Public and Environmental Health Act 2011.
The Applicant submitted that the Respondent took adverse action against her in contravention of the FW Act in effecting her dismissal while she was on authorised absence from work due to a workplace injury supported by a Northern Territory Workplace Fitness for Work Certificate.
Further and in the alternative, the Applicant submitted that her dismissal was harsh, unjust and unfair as she was absent from work suffering from a mental health illness caused by workplace bullying and sexual harassment, and the Respondent effected her dismissal without diligent consideration of her particular situation. The Applicant contended that the Respondent’s dismissal process was a “tick and flick process” and was a “disciplinary process by correspondence”.
The Applicant submitted that for these reasons, the Respondent engaged in serious mismanagement and made a flawed and unlawful decision in terminating her employment. The Applicant submitted that the Respondent’s administrative action of suspension and consequential dismissal of her is ultra-vires, an abuse of process and unlawful.
Remedy
The Applicant seeks reinstatement to her employment, in the same substantive employment position and remuneration held with the Respondent prior to her dismissal. The Applicant also seeks orders for payment of lost wages from the time of her dismissal to the date of her reinstatement and for this period to be recognised as continuous employment service.
In the event reinstatement is considered to be an inappropriate remedy, the Applicant seeks 26 weeks’ compensation based on her annualised salary rate.
Respondent’s Submissions
The Respondent submitted that the Applicant’s dismissal was valid, and was not harsh, unjust or unreasonable for the following reasons.
CHO Directions/CFO Authority
The Respondent submitted that there was a valid reason for the Applicant’s dismissal relating to the Applicant’s capacity to perform the inherent requirements of her job.
The Respondent submitted that CHO Direction No. 55, as amended by CHO Direction No. 81 (jointly referred to as CHO Directions No. 55/81), was in place which in essence provided that, if a worker fell within one of four categories, they were precluded from attending their workplace and their employer was required to ensure the worker did not attend their workplace if they had not received two doses of an approved COVID-19 vaccine by the dates specified in the CHO Directions. This applied unless the worker had a medical exemption. The Respondent noted that an offence would be committed if CHO Directions No. 55/81 were breached by a worker and/or the employer.
The Respondent submitted that the CEO/Commissioner of Police had determined that all jobs within NTPFES fell within one of the categories of workers who were required to be vaccinated, as outlined in the correspondence of 22 October 2021.
The Respondent submitted that the CFO reports directly to the Commissioner of Police in their capacity as the CEO of the NTFRS, in accordance with the Fire and Emergency Act 1996. The Respondent submitted that as CFO, Mr Spain held the delegation under NTPFES Human Resource delegations (section 12) to consider and make decisions in relation to the ‘Inability or unsatisfactory performance’ provisions under Part 7 of the PSEM Act, including to terminate the employment of an employee.
The Respondent submitted that at the relevant time, being 13 November 2021, the Applicant had not received a first dose of an approved COVID-19 vaccine, did not have evidence of a contraindication to all approved vaccines, and had not indicated that she had an appointment to receive an approved vaccination such that some flexibility might have been afforded to her. The Respondent submitted that in circumstances where an employee is unable to perform the inherent requirements of their job, section 44 of the PSEM Act, ‘Inability or unsatisfactory performance’ provisions, applied.
The Respondent submitted that as the Applicant was employed as a Firefighter, the CFO was unable to find suitable alternative duties that were not subject to the CHO Directions as all jobs within the NTPFES were considered to fall within one or more of the categories identified in the Direction as requiring workers to be vaccinated.
The Respondent submitted that in these circumstances, if the Applicant had been allowed to attend the workplace at any time after 12 November 2021, the CEO would have committed an offence under the CHO Directions No. 55/81 leaving himself and the NTPFES open to possible prosecution and a maximum possible penalty of $62,800.
The Respondent submitted that the actions available to the CFO under s.46(1) of the PSEM Act included taking no further action, ordering the Applicant to undertake training, counselling or other remedial activities, reducing the Applicant’s pay, transferring her to perform other duties or terminating the Applicant’s employment. In circumstances where the Applicant was not vaccinated and did not have a contraindication, had advised management on multiple occasions that she had no intention of being vaccinated and could not be placed in alternate duties where the CHO Directions did not apply, the Respondent submitted that the CFO had no alternative but to terminate the Applicant’s employment.
Notified of Reasons/Opportunity to respond
The Respondent submitted that the Applicant was notified of the reason for considering dismissal and was provided opportunities at each stage of the inability process to respond. Following the CHO Direction No. 55, issued on 13 October 2021, at least eight notices were sent to all employees in NTPFES between 13 October 2021 and 12 November 2021 referencing CHO Direction No. 55, its requirements, and its impact on future employment. The Respondent submitted that following these general advices, the Applicant received individual and specific advice on four occasions, being 12 November 2021, 17 November 2021, 19 November 2021 and 23 November 2021, prior to the eventual termination of her employment on 2 December 2021.
The Respondent noted that the Applicant was invited to make submissions in response to the CFO’s correspondence on three occasions, and did make submissions on 22 November 2021 and 24 November 2021. The Respondent highlighted that an Industrial Officer from the UWU also provided a further submission on behalf of the Applicant on 22 November 2021.
The Respondent submitted that the CFO considered the Applicant’s submissions before reaching his findings and making a final decision to terminate the Applicant’s employment.
Request for support persons in meetings
The Respondent submitted that the Applicant did not make any request to meet to discuss the inability proceedings and therefore the question of whether there was an unreasonable refusal by the employer to allow a support person to assist at any discussions relating to the dismissal did not arise.
Unsatisfactory performance
The Respondent submitted that the dismissal did not relate to the Applicant's unsatisfactory performance.
Size of the employer
The Respondent submitted that whether the size of its enterprise impacted on the procedures followed and the degree of dedicated human resource management were not matters that the Respondent wished to raise.
Addressing the Applicant's contentions
No valid reason for dismissal
While the Applicant contended that there was no valid reason for her dismissal, the Respondent submitted that there was a valid reason for the dismissal, namely, that the Applicant was not able to perform the inherent requirements of her job because she was not vaccinated with an approved COVID-19 vaccine (and did not have an exemption), and she was therefore not permitted to attend her workplace and the employer was required to ensure she did not attend, in accordance with CHO Direction No. 55.
The Respondent confirmed its position that due to the nature of the work performed by NTPFES workers, there were no alternative duties the Applicant could have been given that were not also subject to CHO Direction No. 55.
Exercising a workplace right- Personal leave/workers compensation claim
While the Applicant contended that her employment could not be terminated as she was exercising a workplace right of absence from the workplace due to a medical condition at the time of dismissal, the Respondent submitted that the CFO considered the Applicant’s submissions in relation to this matter during the inability process. The Respondent submitted that the CFO advised that the workers compensation claim (for which liability had yet to be established at that time) did not affect, and would be treated separately to, the inability process which was related to the Applicant’s noncompliance with CHO Direction No. 55.
The Respondent submitted that the Applicant’s claim for workers compensation, which was submitted 2 days before the first COVID-19 vaccination was due, was disputed by the employer on the basis that any mental injury that may have been sustained by the Applicant was caused wholly or primarily by the employer’s compliance with the CHO Directions and its communications to NTPFES workers advising of their obligation to comply with the CHO Directions. The Respondent submitted that Mr Gallagher Bassett, the employer’s workers compensation claims manager, assessed the claim and provided the Applicant with a ‘Notice of Decision and Rights of Appeal’ on 21 January 2022 which, in essence, provided that the mental injury that was said to be caused by the employer, was a result of management action, taken on reasonable grounds and in a reasonable manner, namely, the employer’s compliance with the CHO Directions and communications in relation to the same. The Respondent submitted that such an injury is not an injury for the purposes of the Return to Work Act 1986. That Act provides that ‘management action’ includes the stand down and dismissal of a worker and communications in relation to such actions.
The Respondent submitted that Mr Bassett also provided the Applicant with information titled ‘Rights of Appeal – Mediation’ and a form to complete should she wish to dispute the ‘Notice of Decision’. The Applicant had 90 days after receiving the Notice of Decision dated 21 January 2022 to dispute the decision and request mediation. The Respondent noted that terminating the Applicant’s employment did not release the Territory from its employer obligations under the Return to Work Act 1986. The Applicant retained her right to progress this separate matter to the Work Health Court. The Respondent submitted, however, the Applicant did not apply for mediation of the decision to dispute her worker’s compensation claim.
The Respondent submitted that notwithstanding the above, irrespective of the inability process and the disputation of the workers compensation claim, the CFO committed to thoroughly investigate the allegations made by the Applicant.
Not physically in the workplace to breach CHO Directions while on personal leave
As to the Applicant’s submission that she was on personal leave at the time of the dismissal and therefore was not in the workplace and not breaching CHO Direction No. 55, the Respondent submitted that while it is technically correct that the Applicant was not in breach of the CHO Directions whilst she was on personal leave, the Applicant’s situation was merely temporal. The Respondent noted that if an NTPFES employee was absent for another reason, such as on recreation leave, a rostered day off, or simply between shifts, applying the Applicant’s logic would result in the employee also not contravening the CHO Directions for the limited period the worker was away from the workplace. However, at the end of the relevant period, it would be expected that an employee would be able to return to work immediately and without delay in order to resume their duties, i.e. not having to wait for an appointment to receive a first vaccination and then waiting for another 3-4 weeks before the second dose could be administered at that time.
The Respondent submitted that accepting the Applicant’s submissions in this regard would have a significant impact on the employer’s operations and would create uncertainty for the employer about who may be available to work and when, severely impacting the employer’s ability to manage its human resources efficiently and its capacity to effectively deliver its services. The Respondent submitted that the proper approach is to not give weight to these temporal circumstances when considering whether an employee on leave is required to be vaccinated under CHO Direction No. 55.
The Respondent noted that, in any event, the Applicant had advised management on multiple occasions that she did not intend to get vaccinated for COVID-19 prior to the first vaccine due date of 13 November 2021, and, therefore, even if the CFO had delayed commencing a formal inability process and/or taking action under that process until after the Applicant’s return from personal leave, any such delay would only have been putting off the inevitable.
Adverse action/Discrimination - Action taken while on personal leave
As to the Applicant’s contention that the employer has taken adverse action against her, the Respondent submitted that the action taken was not discriminatory. The Respondent submitted that CHO Directions No. 55/81 were lawful directions that applied to all employers and workers equally across the Northern Territory, regardless of a worker’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
The Respondent reiterated that due to the nature of their work, all NTPFES Firefighters were required to comply with CHO Directions No. 55/81. The Respondent submitted that all NTPFES employees were made aware of the CHO Directions and those who were unable to comply with the vaccination timeframes were provided with opportunities to have their individual circumstances considered. The Respondent noted that the Applicant provided a medical certificate on 11 November 2021, 2 days before the first mandatory vaccination date became effective, stating she was on personal leave due to an illness sustained in the workplace as a result of bullying and sexual harassment. The Respondent noted that the Applicant’s worker’s compensation claim related to events alleged to have commenced in 2018. The medical certificate covered the period 11 November 2021 to 9 December 2021.
The Respondent submitted that the employer did not dismiss the Applicant, nor take adverse action, because of her temporary absence from work for illness or injury, or accessing a workplace right. The Respondent submitted that the dismissal was due to the Applicant’s non-compliance with the lawful requirements set out in CHO Directions No. 55/81 and that, as previously submitted, her period of personal leave was temporal and would not have obviated the requirement for her to return to work vaccinated.
Assumed non-compliance with CHO Directions
While the Applicant contended the CFO made an assumption that she would not comply with the CHO Directions, the Respondent submitted that the Applicant had, on multiple occasions, advised management that she had not received and did not intend to receive an approved COVID-19 vaccination by 13 November 2021. The Respondent submitted that this statement was put to the Applicant on 12 November 2021, amongst a range of other particulars, and she was invited to make submissions to the CFO in response. The Applicant did not deny making the above statement to her managers in any of the written submissions provided by her or on her behalf during the inability process.
Further, the Respondent submitted that in notifying the Applicant of his decision to suspend her from duty without remuneration on 23 November 2021, the CFO advised that, having considered her response received on 22 November 2021, he was satisfied that the Applicant had not complied and did not intend to comply with the CHO Directions. In that letter, the CFO also advised that if the Applicant was aggrieved by that decision, she could seek a review of it under s59(1)(b) of the PSEM Act. No such review was sought by the Applicant.
The Respondent submitted that the Applicant was aware through the various communications provided to her and other NTPFES employees that it was the responsibility of employees to provide evidence of their vaccination status to their employer by 13 November 2021. Of particular note, on 1 November 2021, all NTPFES employees were sent an internal broadcast e-mail with a link to a document entitled ‘Mandatory COVID Vaccinations for Workers Frequently Asked Employment Questions’. Questions 10 and 12 of that document covered the questions ‘Can I refuse to be vaccinated?’ and ‘If I refuse to be vaccinated (not related to an approved contraindication) can my employment be terminated?’. The Respondent noted that the responses to those questions relevantly stated:
“Individuals make their own choice about whether to be vaccinated. However, a COVID-19 vaccination is mandatory for a worker if it is deemed a requirement under the CHO Directions”
and
“Employees who refuse to vaccinate, ... must not attend the workplace on and from 13 November 2021 and may be subject to suspension from employment. The employee may be subject to an inability process under Part 7 of the PSEMA ..., which could lead to the termination of the employee's employment”.
The Respondent submitted the Applicant had made it clear prior to the due date for the first COVID-19 vaccine on 13 November 2021 that she had not complied and did not intend to comply with the CHO Directions. Accordingly, the employer did not make any assumptions but proceeded on the basis of the statements the Applicant herself had communicated to her managers on multiple occasions, and did not deny making during the inability process, and her failure to provide evidence that she had received an approved COVID-19 vaccine by the due dates set out in the CHO Directions. The Respondent submitted that it was clear to the Applicant that termination of employment was a possible outcome of failing to comply with CHO Directions No. 55/81.
Decision of employer was ultra-vires
The Respondent submitted that the employer did not terminate the Applicant’s employment because she had accessed personal leave for workers compensation purposes (that is, accessing a workplace right). The Respondent submitted that CHO Directions No. 55/81 were lawful directions with which the CEO/Commissioner of Police, the CFO and NTPFES employees were bound to comply.
As previously stated, the Respondent relied on the Applicant’s advice to management on multiple occasions that she had not received, and did not intend to receive, an approved Covid-19 vaccination by 13 November 2021. The Respondent maintained that the consequence of the Applicant’s failure to comply with the CHO Directions was that she would not be able to return to the workplace and continue performing her duties on and from 13 November 2021. The Respondent submitted that being on a short period of personal leave did not obviate this requirement.
The Respondent reiterated its submission that the exercise of the CFO’s power to terminate the Applicant’s employment did not remove the Applicant’s right to pursue her worker’s compensation claim under the Return to Work Act 1986.
‘Tick and Flick process’/’Disciplinary process by correspondence’
The Respondent noted in this regard that the Applicant appeared to cite and rely on the decision of a single member of the Fair Work Commission in Karen Jones v NT Commissioner for Public Employment (Jones)[1]. The Respondent submitted that in Jones, it was considered that the obligation to provide natural justice in s.387(c) of the FW Act includes an obligation to hold face to face meetings with the employee.
The Respondent submitted that by contract, a unanimous decision of a Full Bench of the Commission in Bluescope Steel v Agas (Bluescope)[2] found:
“[77] In summary, the Commissioner failed to make requisite findings about the criteria set out in s.387(b), (c) or (d) of the Act. If he had - based on the evidence - he would have been bound to conclude that Bluescope had notified Mr Agas of the reason they were considering dismissing him, had given him an opportunity to respond to that reason and had not unreasonably refused to allow him a support person at any relevant discussions. Despite this, the Commissioner found that 'the investigative process' was procedurally unfair. He did this by substituting an alternative notion of procedural unfairness to that set out in the Act. The process was unfair he found because it 'did not involve an interview with the relevant employee.' The requirements are those set out in s.387(b), (c) and (d); whether to conduct an interview is a matter for the person conducting the investigation. In this case, Mr Agas well knew the basis of BlueScope's concerns, and had ample opportunity to present his case. There were no sound grounds for finding that there was any procedural unfairness. Mr Agas's union made written representations for Bluescope to consider. Moreover, further representations were made at the show cause meeting and, relevantly, prior to the final decision to dismiss”.
(Respondent’s emphasis)
The Respondent submitted that the relevant effect of Bluescope is that the Commissioner first hearing the matter had substituted an alternative notion of procedural fairness (i.e. being required to involve an interview), to that set out in s.387(c) of the FW Act. The Respondent submitted that the same conclusion can be reached with respect to Jones.
The Respondent submitted that in the present case, the process followed was not one of a ‘disciplinary nature’ as proposed by the Applicant, rather an inability process under Part 7 of the PSEM Act.
Further, the Respondent submitted that while a range of templates were developed to assist CEOs in managing COVID-19 compliance employment matters, these were tailored to each individual’s circumstances and the submissions they put forward for consideration. The Respondent submitted that as evidence by the correspondence, the CFO carefully considered and responded to the Applicant’s individual circumstances and submissions, and therefore, it was not a ‘tick and flick’ process.
Consideration
I have taken into account all of the submissions that have been provided by the parties. I note that neither party submitted any witness statements. As such, the parties only made verbal submissions at the hearing on 8 June 2022. The fact that an issue that may have been raised by the parties is not mentioned in this decision does not mean that it has not been taken into account.
It is not in dispute and I find that the Applicant is protected from unfair dismissal, submitted her application within the statutory timeframe, was not made genuinely redundant and did not work for a Small Business.
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)[3] 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)[4] 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”.
I now turn to the criteria for considering harshness as provided in s.387 of the 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:[5]
“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…”.
In Rode v Burwood Mitsubishi,[6] 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.”
In Qantas Airways Ltd v Cornwall (Cornwall)[7] the Full Court of the Federal Court of Australia said:
“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”
It is not in dispute that CHO Direction No. 55 applied to the Applicant’s role as a Firefighter.
I am satisfied and find that the Applicant had no intention of ever being vaccinated due to the unchallenged claim by the Respondent in correspondence to the Applicant. If the Applicant had intended to be vaccinated, she would have replied to the show cause letter, advising the Respondent of her intentions. I do not accept that the Respondent acted on an assumption. Correspondence from the CFO on 12 November 2021 stated:
“(j) On multiple occasions you advised your management that you had not received the first dose of an approved COVID-19 vaccine and you did not intend to do so before 13 November 2021.
…
As you are not able to perform your duties in any reasonably available workplace, I have reasonable grounds to suspect that there are inability and performance grounds in relation to your employment because:
1. you are not able to perform the duties assigned to you - for section 44(l)(a) of the Act; and/or
2. you are not suited to perform the duties assigned to you - for section 44(l)(b) of the Act.However, before I make a decision in that regard, I invite you to make submissions to me as to whether you agree with my suspicion, or provide me with any comments you may have in relation to the matters set out in particulars (a) to (n)above.”
Future correspondence from the UWU, the Red Union and the Applicant, did not deny that the Applicant had made these comments or challenge their veracity or current status.
On the basis that the Applicant was not going to comply with CHO Direction No. 55, the Respondent had a valid reason to terminate the Applicant. I am satisfied and find that the Respondent’s decision was sound, defensible, well founded and therefore valid.
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 provided an opportunity to respond to her termination.
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, this issue is not relevant.
Section 387(e) – Unsatisfactory performance
The Applicant was not dismissed for unsatisfactory performance.
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.
Section 387(h) – Any other matters
The Applicant was of the misguided view that she could not be terminated because she had submitted a Workers Compensation claim. I would agree with this proposition if the Respondent had dismissed the Applicant for making a Workers Compensation claim, but that is not the case in this scenario. The Applicant was not dismissed because she made a Workers Compensation claim but because she would not comply with CHO Direction No. 55.
The Applicant claimed that she was on sick leave, under a doctor’s certificate, and suffering from a mental illness as a result of bullying and sexual harassment in the workplace. When asked to supply information to the Respondent in relation to these claims, the Applicant failed to respond. I note the underlying reasons for the Applicant to take sick leave were not associated with CHO Direction No. 55.
I accept the argument from the Respondent that the Applicant’s absence was only temporary and not associated with CHO Direction No. 55. Whilst the Applicant still had 7 days cover on her medical certificate, the Respondent acted in relation to the CHO Direction and the need for the Applicant to comply with CHO Direction No. 55. The Applicant was required to be vaccinated prior to her return to work and double vaccinated by 24 December 2021.
Conclusion
I am satisfied and find that the Respondent had a valid reason to terminate the Applicant.
I find that the decision to terminate the Applicant was not ultra vires. In relation to the accusation that the Applicant was subject to adverse action, such a determination is outside the jurisdiction of the Commission without agreement between the parties. The Applicant was dismissed because she would not comply with CHO Direction No. 55, not because she was on sick leave or had submitted a workers compensation claim.
I am satisfied and find that the process followed by the Respondent, which included contact on 8 separate occasions, was not procedurally unfair.
I find that the Applicant’s termination was not harsh, unjust or unreasonable.
I find that the Applicant was not unfairly dismissed.
The Application is dismissed.
I so Order.
COMMISSIONER
[1] [2012] FWA 7069.
[2] [2014] FWCFB 5993.
[3] (1995) 185 CLR 410.
[4] (1998) 84 IR 1.
[5] (1995) 62 IR 371.
[6] PR4471.
[7] (1998) 84 FCR 483.
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