Ms Julia Elana Miroch v Powercor Australia Ltd
[2022] FWC 1880
•21 OCTOBER 2022
| [2022] FWC 1880 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Julia Elana Miroch
v
Powercor Australia Ltd
(U2022/4126)
| DEPUTY PRESIDENT BELL | MELBOURNE, 21 OCTOBER 2022 |
Application for an unfair dismissal remedy – COVID-19 public health orders – inherent requirements - application dismissed.
Julia Elana Miroch (Applicant) has made an application (Application) to the Fair Work Commission (Commission) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (Cth) (FW Act). The Applicant alleges she was unfairly dismissed by Powercor Australia Ltd (Respondent) on 17 March 2022. The Respondent agrees the Applicant was dismissed but denies the dismissal was unfair.
The circumstances concerning the Applicant’s dismissal related to a requirement under various Victorian public health orders concerning certain requirements for vaccination against COVID-19. The Applicant was not dismissed, by contrast, for poor performance. Rather, the basis of the dismissal was due to the vaccination requirements of relevant Victorian public health directives and (on the Respondent’s position), the Applicant’s inability to perform an inherent requirement of her role, namely the performance of at least some of her work on-site.
The Applicant was represented by Trevor Alexander at the hearing, although he preferred to describe himself as “‘Trevor John’, of the family Alexander”, and similarly the Applicant described herself as “‘Julia Elana’ of the family Miroch”. (I note briefly that these designations appeared to have some significance to the Applicant’s contention that the Respondent had committed unlawful “personage”, as well as the lawfulness of contracts between natural persons and other entities who are not natural persons, such as the Respondent.) While Mr Alexander described himself as ‘Attorney in Fact’ for the Applicant and some correspondence indicated he represented “The Moot Court of Terra Australis Incognito”, he confirmed, and I am satisfied, he was not a paid lawyer or agent for whom permission needed to be obtained to represent the Applicant.
The Respondent was represented by the law firm Landers & Rogers, with permission to be represented having previously been granted.
Preliminary matters
There were a number of preliminary matters that arose prior to the substantive hearing of the matter. While I have previously ruled upon them, such as I was required to do so, I would briefly note them here for completeness.
The first was that I ought to have refused the Respondent’s request for permission to be represented by its solicitors, Landers and Rogers. While I will not repeat the cut and thrust of that application, I record that I was satisfied that, having regard to the factual complexity of the matter, it would enable the matter to proceed more efficiently if the Respondent were represented.
The second matter was a request for me to recuse myself on the grounds of bias or apprehended bias. Various grounds were advanced. One ground was that my associate, in correspondence with the parties, described the Applicant’s representative as ‘Mr Alexander’. By doing so, it was put that my associate (and, through him, me) engaged in “personage”. The claim of “personage” was not entirely clear to me, even following the hearing. While it has no coherent legal basis that I am aware of, as best as I can understand the claim, it contends that as the Applicant’s representative is a natural person (as distinct from, for example, a body corporate) and by addressing him as “Mr”, that implicitly denies his status as a “living person”. I note that the first question the Applicant’s representative asked in cross-examination was whether the Respondent’s witness was a “living person”. As far as I referred to the Applicant as Ms Miroch or her representative as Mr Alexander, I consider there was (and is) nothing improper about it and, to the contrary, that reflects a common and courteous manner to address or refer to people. This is particularly the case in more a formal forum, such as a court or tribunal hearing, or where over-familiarity might otherwise be conveyed through use of a person’s given name. I would make the same observation about the complaints made by the Applicant and her representative in relation to the Respondent’s communications. That is not to say that a person’s request as to how they might be addressed ought not be reasonably accommodated as a matter of courtesy, but the complaints of “personage” are not maintained.
Other grounds were raised, such as that I was previously a member of the Victorian Bar (which apparently raised a conflict because the Respondent’s representatives were solicitors,). It was also put that the Respondent’s lawyers had failed to provide proof of their indemnity insurance or had proven that they were lawyers. I was also asked for my own vaccination status. I rejected these grounds.
Separately, I also rejected applications by the Applicant for extensive documentation requests and orders for various witnesses to attend. The document requests were largely, in my view, directed at matters not sufficiently relevant to this proceeding, such as the efficacy or safety of COVID-19 vaccines. I also considered the requests, so far as it touched on categories potentially relevant, to be premature.
The orders for witnesses sought the attendance of the Premier of Victoria, the Victorian Minister for Health, the Chief Health Officer of Victoria and various employees of the Respondent. I rejected that request.
At an early stage, there was also some objection by the Applicant for the Commission hearing the matter. One of the grounds, as I understood it, was connected to the jurisdiction to enforce contracts between “living persons” (such as the Applicant) and entities like the Respondent. I inquired whether the Applicant wished to discontinue her claim in light of that jurisdictional objection and it was not pressed. In any case, I reject the premise.
Section 390 of the FW Act provides that the Commission may order a remedy if satisfied that the Applicant was “protected from unfair dismissal” at the time of being “dismissed”, and that the Applicant has been unfairly dismissed.
It was not in dispute that the Applicant was “protected from unfair dismissal”, in that she had completed the minimum employment period and her income was below the high income threshold. In determining whether the Applicant was “unfairly dismissed”, it was also not in dispute that the Applicant had been “dismissed”, nor that the Respondent was not a business to whom the Small Business Fair Dismissal Code applied, nor that the dismissal was one of genuine redundancy. It was also not in dispute, and I am therefore satisfied, that the application was made within the 21-day period required in subsection 394(2).
The critical issue in dispute was whether the dismissal was “harsh, unjust or unreasonable”.
There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing. After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing for the matter (s.399 of the FW Act).
The Applicant gave evidence on her own behalf. The Respondent called its Head of Customer Connections and Requests, Mr Daniel Bye, as a witness. Both witnesses were cross-examined. Each party filed detailed submissions, including closing written submissions following the conclusion of the hearing.
Background and factual findings
The Respondent is an electricity wholesale distributor. It owns and manages poles, wires, electricity meters, and related infrastructure that supplies electricity to homes and businesses across its networks in Melbourne and regional Victoria.
In 2005, the Applicant commenced work with the Respondent as a Data Analyst, initially in a temporary role. The Applicant then commenced employment with the Respondent in May 2006 as a Data Analyst, initially on a fixed-term contract. By letter dated 18 October 2006, she became a permanent employee in the role of Data Analyst.
By letter dated 27 November 2014, the Applicant’s position title became Connections Officer.
By letter dated 10 March 2016, the Applicant was to commence a role as a Connections Case Officer effective from 11 April 2016. By letter dated 29 March 2016, the Applicant and Respondent agreed that, effective 1 April 2016, the Applicant would work on a part-time basis of about 30 hours per week.
Connections Case Officers, such as the Applicant, reported to a Team Leader for Customer Connections, who in turn reported to the Manager of Customer Connections (the role previously performed by Mr Bye until commencing his current role in March 2020). The Manager of Customer Connections reports to the Head of Customer Connections and Requests (namely, Mr Bye). There are approximately 107 employees in the broader Customer Connections & Requests Team.
Prior to around March 2020, the Applicant performed all her duties at the Respondent’s main office at Market St, Melbourne.[1] Following the outbreak of COVID-19 in Victoria, in accordance with various Victorian public health restrictions and the Respondent’s own measures, the Applicant commenced working from home from March 2020 onwards, as did the other members of the Customer Connections & Requests Team.
Before and after March 2020, the Applicant’s role was primarily customer-oriented. Her job description (containing a review date of 10 November 2015) described her role as requiring, among other matters, the Applicant to manage and resolve customer enquiries regarding connection and energisation issues. Her job description states that the Applicant would manage and resolve customer enquiries “through phone, online portal and email enquiries in addition to ad hoc in-person inquiries.” In relation to in-person enquiries, there was no specific evidence led about the extent of those enquiries (prior to COVID-19) and I infer that they were only occasional.
As already alluded to, by October 2021, various public health orders under Victorian law had been made in response to the COVID-19 pandemic. Broadly speaking, the effect of a number of those orders up until that point in time was to prohibit employers allowing workers – particularly during what became known as ‘lock down’ periods – to work at places other than their home, albeit there were a number of businesses where relevant authorisations were in place to allow staff to work on site.
Beginning in October 2021, a relaxation of those restrictions commenced. That relaxation, however, was coupled with a broadly cast legal requirement that, with relatively few exceptions, had the effect of prohibiting unvaccinated workers from attending their place of work. Those directives, and subsequent iterations of them, applied to the Respondent.
On 7 October 2021, the Acting Chief Health Officer of Victoria signed the “COVID-19 Mandatory Vaccination (Workers) Directions” (Workers Directions) under s.200 of the Public Health and Wellbeing Act 2008 (Vic) (PHW Act). Among other matters, clause 4 of the Workers Directions provided that if a worker “is, or may be”, scheduled to work outside their usual home, the employer must collect “vaccination information” about the worker.
The definition of “worker” extended to a “utility and urban worker”, which by item (32) of clause 9 was expressly defined as follows:
“(32) For the purposes of these directions:
(a) utility and urban worker means a person who works in connection with:
(i) specialist services at telecommunications stores to support telecommunications as a critical service during the COVID-19 pandemic;
(ii) services to support the ongoing provision and regulation of electricity, gas, water, sewage and waste and recycling services and their maintenance;
…;”
I am satisfied those directions applied to the Respondent in relation to the Applicant’s employment.
By clause 5 of the Workers Directions, an employer was prohibited from allowing an “unvaccinated” employee to work for the employer outsider their ordinary place of residence after 15 October 2021 unless the employee had a booking for a first dose of a COVID-19 vaccine by 22 October 2021. The definition of “unvaccinated” meant an employer was required to treat an employee as being unvaccinated if they held no information about the employee’s vaccination status.
On 11 October 2021, the Respondent’s Chief Executive Officer sent an email to all staff, including the Applicant, about such matters. The email referred to Victorian government vaccination directions and included various dates for the vaccination steps to occur and other requirements concerning evidence of vaccination status. The email noted that the Respondent had been encouraging staff over the previous two months to get vaccinated and, at least by a recent staff survey, 64% of staff were vaccinated.
On 18 October 2021, the Applicant swore a document titled “Statement of Declaration of Truth “Affidavit”” (the quotations around the word “Affidavit” being in the original document). It was 30 pages in length and signed before a Justice of the Peace. The document described the Applicant’s “Purpose (occupation)” as “Galactic emissary” and current address as “Planet known as Earth”. The document was apparently served on the Victorian Government as well as the Australian Government, neither of whom challenged it. The Applicant’s oral evidence in chief says she took the lack of any response or challenge to mean that what she had stated in that document “had become truth”. Suffice to say, that was not the legal or factual consequence but it would appear that the document at least supplies an explanation for the Applicant’s views regarding “fictitious” (i.e. non-individual) entities, which was to “rebut any and all alleged claimed authority and/or jurisdiction of any and all fictitious, corporate or private entities, over the deponent, those entities being without standing on the land”.
On 27 October 2021, the Applicant had an initial meeting with her team leader about a potential return to the office. An email followed that meeting, which foreshadowed, among other matters, the date of “10th January 2021” (sic – that ought to have read “2022”) when all staff would need to return to their designated office location at Market St. The email stated that “all staff” would be required to carry out a percentage of work at Market St.
On 10 December 2021, the Applicant received a ‘check in’ meeting invitation from her team leader, for a meeting scheduled for 16 December 2021. The invitation for the meeting foreshadowed discussing the Applicant’s vaccination and whether she will proceed with getting vaccinated “in order to be able to return to work onsite from the 10th Jan deadline”.
On 17 December 2021, the Respondent’s CEO sent out an all-staff email about the COVID-19 vaccine mandate. Among other matters, the email reiterated the effect of the Victorian public health orders in place and also indicated that the Respondent was considering its own mandatory vaccination policy. For that latter item, the email stated that consultation on the policy would begin on 20 December 2021 and would continue through until 17 January 2022.
On 22 December 2021, the Applicant received a letter from her immediate team leader addressing a number of matters. The letter reiterated the existing COVID-19 vaccination requirements and the government requirements for the same. The letter referred to the previous discussions of the Applicant’s particular circumstances and noted the Respondent’s understanding that the Applicant did not intend to take the COVID-19 vaccination and “hence cannot lawfully return to work on site”. The assumption made in the correspondence that the Applicant was not intending to “take” the COVID-19 vaccination was, on the material before me, justified. There was no evidence at all that the Applicant had been relevantly vaccinated and significant evidence that she opposed it, such as her repeated statements to the effect that the vaccinations were “untested” “experimental” “gene-modifying” substances.
The letter stated she was being given “time to consider your options and arrange vaccination before 31 January 2022” (and I note that the original date of 10 January 2022 had evidently been extended). The letter again foreshadowed that the Respondent was considering the introduction of its own vaccination policy, which would have a commencement date of 31 January 2022 and included an invitation for her to complete a staff survey about that matter.
The letter continued, under a heading “What this means for you” and stated (underlining added):
“Our expectation is that all employees will return to the office (at least some of the time and/or in accordance with an approved flexible work arrangement) from no later than 31 January 2022. This means that you will need to be able to provide evidence that you have been fully vaccinated before this date.
Working from home indefinitely is not a sustainable long-term solution. All employees are required to attend the office from time to time to attend training, collaborate, participate and to contribute to their teams and functions.
We understand that there are many factors to consider in relation to getting vaccinated. Please see attached a Frequently Asked Questions and answers information sheet that explains the company’s rationale for proposing this office, workplace/worksite entry requirement.
You are required to inform me of your intentions by 21 January 2022. If you decide that you do not want to be vaccinated and will not return to working in the office by 31 January 2022 please advise me directly or contact your HR Business Partner, [whose name and contact details were provided] to discuss.”
On 22 December 2021, the Applicant obtained a medical certificate stating she would be unfit to continue her usual occupation for 23 – 24 December 2021.
On 6 January 2022, the Applicant’s team leader within Customer Connections met with Mr Bye (Head of Customer Connections and Requests), together with other team leaders. Mr Bye’s evidence, which I accept, is that the purpose of the meeting was to discuss the transition process for that group’s return to office work. Mr Bye identified two particular conclusions:
a.The requirement for many team members to be conducting staff training. The substance of Mr Bye’s evidence, which I accept, was that such training runs more effectively in a face-to-face environment, with the assistance of onsite equipment and support services; and
b.That “in-person interaction was an important way for us to foster a strong work culture and camaraderie especially during the pandemic”.
The Applicant’s closing submissions contended Mr Bye’s statement (and, I infer, his oral evidence) was “completely” unreliable. I reject that submission and record my conclusion that I considered Mr Bye to be a witness of truth, who sought to give his evidence succinctly and without evasion. Mr Bye answered many questions as best as he could, with patience, even though a significant number of the questions he was asked were essentially irrelevant to the case before me and that, on no fair basis, could Mr Bye be expected to answer them (an example being repeated questioning concerning Mr Bye’s understanding of various laws or legal propositions and their purported meaning or effect.) A repeated technique used in the cross-examination of Mr Bye, relied upon a question asked at the commencement of cross-examination to the effect that Mr Bye had “fully prepared” himself before attending. Mr Bye confirmed his view that he was so prepared (a point noted in the Applicant’s closing submissions). Where Mr Bye was unable to answer a later question, he was accused of not being fully prepared. Some of these descended into triviality, such as whether the Respondent came “under the jurisdiction” of the Corporations Act (to which that question itself was unclear, Mr Bye candidly said he did not know the answer and, in any case, Mr Bye’s opinion was wholly irrelevant.)
As to the training requirement, the Respondent contends that the Applicant’s role required her to assist in training colleagues and to engage in team building activities. The Applicant’s witness statement did not appear to dispute this as such, but said that the whole of her duties could be performed from home, which she said she was doing (and I accept was the case) since 2020. Her submissions stated that “Job training could just as easily have been performed via Teams meetings. ‘Julia Elana’ had been regularly attending all of her required training and team meetings via Microsoft Teams whilst working from home.”
In response to questions in cross-examination, the Applicant gave evidence – which appears to have been given for the first time – that in the team she was working in training was not a part of her role. She explained she was new to the team and others above her “pay grade” were responsible for training. In effect, her evidence was that while she once undertook training of others, she no longer did so.
Mr Bye gave supplementary oral evidence about training activities. He said that there was a particular training component regarding the “on-shoring” of work that, I infer, was at the time being performed in Manilla. Mr Bye’s evidence, which I accept, was that there was a “buddy process” for training of new staff, in which existing (experienced) Customer Connections staff would train new employees. At the time of the hearing, Mr Bye’s evidence was that that training hadn’t been without challenges and the training was ongoing. I accept Mr Bye’s evidence and I find that the training of others by a “buddy” systems was a requirement of the Applicant’s role, with the “on-shoring” training aspect being part of that requirement if work demands required it.
It was put to Mr Bye that there was nothing in the Applicant’s position description about training. I disagree. Under the section “Leadership Values and Behaviours” there were clear statements about “Motivating and coaching” others, and “Developing & Coaching Others”. It also stated she “Develops and coaches team members to meet work requirements” and was also required to assist with “Succession Planning and sharing of talent across the business”. I consider these statements clearly support Mr Bye’s evidence regarding training for the “on-shoring” work he described as being important around that time and throughout 2022.
Also on 6 January 2022, the Applicant (along with other team members) was sent an email by a Customer Connections Team Leader titled “Return to Flexible Working Arrangements”. The email referred to resuming flexible working arrangements from 10 January 2022 and stated that for most people, that would involve working 5 days a fortnight in the office.
On 18 January 2022, the Applicant obtained a medical certificate stating she would be unfit for work from 18 – 19 January 2022, inclusive.
On 20 January 2022, the Applicant obtained a further medical certificate stating she would be unfit for to continue her usual occupation from 20 – 21 January 2022, inclusive.
On 21 January 2022, the Applicant sent her team leader a letter, which was a little under two pages in length. Among other matters, the letter stated that working from home “eliminates the total risk”, which the balance of the letter makes clear is a reference to the risk of contracting or being affect by COVID-19. The Applicant requested a “working from home option for me in the interim”. The “interim” period referred to appears to be a reference to the pandemic ending. After having stated that she does not “want to contract the virus at all” and her preference to “keep everyone safe”, the letter continued:
“With that being said, after the pandemic is called to an end, and a safe return to work is attainable, I most likely will take a vaccine by that moment in time as the vaccine I'm waiting for should be available.”
The letter suggested “Rapid Saliva Testing instead of vaccinations” and stated, at that time, she was “currently unable to give informed consent to be vaccinated” due to a lack of “safety data”.
On 24 January 2022, the Applicant’s team leader acknowledged her letter and, among other matters, noted the consultation period for the Respondent’s policy development was extended to 31 January 2022.
On 25 January 2022, the Applicant asked her team leader in an email if she could continue working from home until 7 February 2022. That request was approved the same day.
On 7 February 2022, the Applicant sent an email to her team leader. In it, she asked whether it was “ok to continue working from home”. She also raised a number of questions in response to the Respondent’s ‘FAQ’ regarding its vaccination policy consultation.
On 8 February 2022, the Applicant’s team leader responded to the request to continue working from home made on 7 February 2022. The request was approved “for the short term” but foreshadowed the team leader expected to “come back to you shortly with further information”. There was a brief further explanation given in relation to the vaccination policy consultation, which is not necessary for me to set out.
On 22 February 2022, the Applicant’s team leader had arranged a Microsoft Teams meeting with the Applicant, which was scheduled for 24 February 2022. There was evidently some discussion about that, as an email from the Applicant to her team leader included the contact details for the Applicant’s representative, described in the email as her “attorney in fact” (and being the same representative, Mr Alexander, in the hearing before me). The covering text of the Microsoft Teams invitation itself stated the meeting was “to discuss the Victorian Government Vaccination Mandate and how this impacts on your employment.” It stated a person from HR would be joining the meeting.
On 23 February 2022, the Applicant’s representative sent the Applicant’s team leader an email regarding the following day’s meeting. It was addressed to the “living woman known as” the Applicant’s team leader. He described himself as “’Trevor John’, of the family/house/tribe/clan Alexander” and as the Applicant’s “Attorney in Fact concerning this matter”. In it, he requested – although it was more in the nature of a direction – that all communications with the Applicant be through him.
The email purported to contain what was described as a “Notice of Legal Liability” which alleged as follows:
“Notice of Legal Liability: Any deviation from this directive will be taken as your willful attempts to intimidate and harass Julia, and, as such, you agree that any such action in contradiction to this directive, by you, [the Applicant’s team leader], or any agent of "Powercor" at this meeting, or from the moment of this correspondence forwards, shall incur a remedy to Julia of $50,000 per incursion, per living man or woman who commits these serious assaults, payable to Julia within 28 days of service of invoice, in accordance with the terms contained within that invoice.”
The content of the purported notice needs only be stated to observe that it is legally nonsensical. The notice has no such legal effect and has no legal basis. Nonetheless, it would appear that the Applicant (or at least, her representative for whom she appeared content to allow him to speak on her behalf) believed it to be real and, while it not necessary for me to make conclusions about that belief, it perhaps explains the subsequent tenor of subsequent communications (which I set out below).
On 24 February 2022, a meeting between the Applicant and Respondent occurred. While the Applicant did attend, it appears her representative spoke entirely on her behalf. While Mr Bye did not attend, he evidently received an account of it shortly after and, later that day, issued a “show cause” letter to the Applicant.
The show cause letter briefly summarised the earlier course of communications beginning on 27 October 2021. The letter stated that the Applicant’s position required her to attend the workplace at least “some of the time, even if you can perform some of your duties from home.” The letter stated the Applicant was required to attend the workplace for “face-to-face meetings, training and collaboration purposes.” The letter noted that, as she cannot lawfully work outside of her place of residence, she cannot perform the full range of duties required by the Respondent.
The letter specifically asked the Applicant to show cause as to why the Respondent should not terminate her employment for those reasons. It asked for a response by 3 March 2022.
On 25 February 2022, the relevant Workers Directions had been extended by replacement iterations of the original directions and were by that time contained in the Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2022 (No. 5) (Specified Workers Order No. 5), made under Victorian law. The Specified Workers Order No. 5 commenced operation on 25 February 2022 and was expressed to end on 12 April 2022. As with the previous directions, the definition of “worker” in the Specified Workers Order No. 5 applied to the Applicant as a “utility and urban worker”. The order applied to the Respondent as an employer of the Applicant. The Specified Workers Order No. 5 required the Respondent to hold information about the Applicant’s vaccination status (Part 1, clause 7) and prohibited the Respondent from allowing the Applicant to work outside of her usual place of residence unless fully vaccinated (Part 1, clause 10). The Applicant was not “fully vaccinated” under the relevant definition of the Specified Workers Order No. 5.
On 25 February 2022, the Applicant obtained a medical certificate stating she would be unfit to continue her usual occupation from 25 February to 3 March 2022, inclusive.
Also on 25 February 2022, the Applicant’s representative sent to “The living man known as “Daniel Bye”” an invoice that purportedly required payment of $50,000 for an alleged breach of the notice sent on 23 February 2022. The invoice was expressed to be “certified”, perhaps to imply some additional legal status, as follows:
“Certified True Copy
Milky Way Galaxy
Solar System
Planet known as Earth
Land Mass known as:
Terra Australis Incognito
Earth date known as
25/2/2022
Registrar: [which was initialled ‘TJA’]”
The invoice made other claims, including for “workplace violence”. The payment was to be made in “Sterling Silver” of “99.9999% Troy weight” although it would appear that “cash” would be acceptable. It required payment within 10 days or to otherwise dispute the invoice “with a sworn affidavit of rebuttal”, lest there be “Tacit Acquiescence” of its terms. The invoice itself appears to have been signed by the Applicant.
A materially identical “invoice” was sent to the Applicant’s team leader.
The invoices are legally nonsensical. Suffice to say, neither document had any of their purported legal effect, despite the recourse to the various pseudo-legal words, phrases and jargon contained within them. I do not wish to be too critical, however. From the Applicant’s perspective, she was being placed in a position where the operation of Victorian government public health orders directly clashed with her (sincere) beliefs and concerns regarding the vaccinations those mandates were promoting. That said, I do not consider that the “invoices” and similar such documents assisted and, so far as they might have given her a false sense of hope, they were unhelpful.
It would appear, however, that the Applicant and her representative were just beginning with the “legal” demands and notices of such a kind.
Also on 25 February 2022, Mr Bye was sent a separate document, titled “Notice of Conditional Acceptance” and “Notice of Agent is Notice to Principal”. It was expressed to be signed by the Applicant. It is not necessary to set out its content but it required “further and Better Particulars, and, Full and Complete Disclosure” of various topics, the first of which being “the ingredients in each and every one of the so-called, “vaccines”” and ending with an acknowledgement by the Respondent of legal liability for various events. Dollar amounts for liability were provided, depending on the liability, up to $50,000,000.
Also on 25 February 2022, the Applicant sent a separate document to the Respondent’s CEO, this document being titled “Notice of Objection”, “Notice to Cease and Desist”, and “Notice of Agent is Notice to Principal”. This letter was 16 pages in length. I do not propose to summarise it, although I note it reiterated the allegations and demands set out above, disputed any lawful basis for the Applicant’s vaccination, and stated that the Applicant would not be in a position to respond to the Respondent’s show cause letter until she receives “all of the documents” listed in a notice of request. Notwithstanding, the letter did assert that the Applicant could continue “training via zoom”.
The “Notice of Objection” also requested that the meeting foreshadowed for 8 March 2022 be rescheduled to 10 March 2022.
On 26 February 2022, the Applicant sent a separate document, titled “Proposal for the Resolution of Dispute” and “Notice of Agent is Notice to Principal”. It was expressed to be signed by the Applicant and was four pages in length. Among other matters, “in considering an appropriate settlement amount, ‘Julia Elana’, of the family Miroch” asked for $7.25 million.
Also on 26 February 2022, the Applicant sent a document titled “Notice of Request for Better and Further Particulars and Full and Complete Disclosure”. It was 5 pages in length and contained a list of 21 paragraphs, although a number of those each spanned a range of subjects. The document also contained a “Notice of Legal Liability”. It is unnecessary to summarise its terms.
The exact dates the above correspondence was received does not directly align with the dates of the documents, although Mr Bye’s evidence indicates they were all received by no later than 27 February 2022.
There was a dispute about whether, on 28 February 2022, the Applicant sent her team leader a text message regarding a medical certificate she had obtained for the period from 25 February to 4 March 2022. Mr Bye gave evidence about it, although it was hearsay. The text message itself was not produced, because (according to Mr Bye) the telephone containing the text message had been lost. The Applicant objected to the evidence. I accept that communication was not proven to my satisfaction. One consequence, although it is not ultimately material, is that there also was no material otherwise before me indicating that the Applicant had communicated she had a valid medical certificate to be away from work for that period.
On 1 March 2022, the Respondent sent the Applicant an email titled “Victorian Government Vaccination Mandate”. It referred to the voluminous correspondence I have described above and attached them to the email. It stated “You still have time to provide a response of your own and we would prefer to hear directly from you”, although it stated that if they did not hear from her, then they would take the documents attached to the email to form her response that the Respondent would consider prior to the next meeting.
On 4 March 2022, the Applicant obtained a medical certificate stating she would be unfit to continue her usual occupation from 4 to 11 March 2022, inclusive.
Also on 4 March 2022, the Applicant’s representative sent an email to the Applicant’s team leader, titled “Sick leave”. It indicated the Applicant was not at work that day due to distress, stated it was uncertain “when or if” she would return, and reiterated the demand that all communications with the Applicant go through him. No medical certificates were attached (and it is not clear to me whether the medical certificate obtained on 4 March 2022 were available before the email was sent). I do accept, however, that the email was a sufficient communication giving notification of the Applicant’s absence due to illness for that day.
On 7 March 2022, the Applicant’s team leader sent a meeting invitation to the Applicant titled “Victorian Government Vaccination Mandate – Julia Miroch”. The invitation referred to the meeting on 24 February 2022 and stated this meeting was a “follow up meeting to discuss your future with the business”. The time scheduled for the meeting was 10:30am on 10 March 2022. The email stated a support person was welcome.
On 9 March 2022, the Applicant’s representative sent the Applicant’s team leader an email titled “Meeting”. The email stated that the Applicant “is still on sick leave due to the workplace violence committed against her” and asserted that the team leader had “breached” the “Notice of Legal Liability” (i.e. the “invoice” I described above) and committed a “further act” of workplace violence. He stated he would be attending the meeting for the Applicant and requested a meeting link. The email itself contained in the evidence does not expressly identify the Applicant’s representative by name as the “From” email field instead refers to it being sent by “Galactic Emissary”. It was also signed “The Moot Court of Terra Australis Incognito”. It does not appear in controversy, and I find, that the email was sent by the Applicant’s representative. I also conclude he did so at the request of the Applicant, as her representative was not copied into the meeting invitation sent on 7 March 2022.
On 10 March 2022, Mr Bye and the Applicant’s representative spoke by telephone at around 10:00am or 10:15am regarding the scheduled meeting that was to occur that day. Mr Bye asked for proof of the Applicant’s representative’s status as power of attorney. Mr Bye also stated that the meeting would only proceed if the Applicant was able to attend. The Applicant’s representative stated that the Applicant would not speak to Mr Bye or the other attendees for the Respondent under any circumstances. There is a dispute about what was said, although I accept Mr Bye’s account in his statement, as just summarised. It was asked of Mr Bye in cross-examination whether that the Applicant’s representative said the Applicant would not be attending, which Mr Bye said was the case (a matter which was then put to him was not true and Mr Bye denied). I accept Mr Bye’s account, although again I consider it ultimately makes no difference to the result.
Shortly after the telephone call, the Applicant’s representative sent Mr Bye an email containing two documents that, it appears, purported to provide proof of his “attorney” status. One document was expressed to be a “general non-enduring power of attorney” made under the “law of the land of, Terra Australis” and “also” under the Power of Attorney Act 2014 (Vic). Neither basis was effective. The other document was slightly shorter and referred to the Applicant appointing her representative on 23 February 2022 as her “attorney in fact”. It was dated 10 March 2022 and appears to have been signed by her.
While I do not consider that the Applicant’s representative was, at any stage, clothed with the powers under a valid power of attorney by either of those documents, it is tolerably clear that he was acting on the Applicant’s behalf in a more general sense by representing her – with her permission – in her dealings with the Respondent. Notwithstanding, the Respondent was justified in my view in seeking to understanding just what, or what scope of, authority he might have had, particularly where he would be purported to act on her behalf in a meeting that might ultimately lead to the termination of her employment.
Further correspondence was sent by the Applicant’s representative on 10 March 2022. He says (and it appears correct) that he had not been sent a meeting link. He reiterated other matters regarding various documents he had sent, including the purported “power of attorney”. He also stated that “You are reminded that any personal contact with ‘Julia Elana’ by any member/employee/agent” of the Respondent “will be considered wilful workplace violence” as well as a “deliberate” breach of the so-called Notice of Legal Liability sent on 23 February 2022.
The Applicant did not attend the meeting on 10 March 2022. Indeed, it does not appear it proceeded at all (noting the Applicant’s representative did not appear to have a link).
On 11 March 2022, Mr Bye sent the Applicant an email enclosing a letter. The email was titled “Julia Miroch – Final response letter” and the letter titled “Your employment”. The documents invited her to attend a meeting on 17 March 2022. Among other matters, the email stated she was welcome to bring a support person but that they also needed “to discuss with you directly” the matters in the letter. The letter referred to the “show cause” letter of 24 February 2022, and noted her absence from work since. In respect of the latter, the letter noted that no supporting medical documentation had been provided for any period since 25 February 2022. The letter stated that a “final opportunity” to meet to discuss her ongoing employment would occur, namely on 17 March 2022.
Mr Bye also sent a follow-up text message to confirm receipt of the above email and letter. I am satisfied all of the communications were received.
On 15 March 2022, Mr Bye sent the Applicant a Microsoft Teams invitation link for the meeting scheduled for 17 March 2022. The email invitation included a copy of the letter dated 11 March 2022 and stated that, if she did not attend to provide a response to the letter dated 24 February 2022, the Respondent would make a decision based on the information made available to that date.
On 14 March 2022, the Applicant obtained a medical certificate stating that she would be unfit for work from 14 March to 18 March, inclusive. A copy was not provided to the Respondent. I would note that the Applicant’s evidence was to the effect that it was her understanding it was sufficient that medical certificates be provided on return to work. Whatever her understanding may have been, I do not consider it plausible following the letter dated 11 March 2022, which clearly raised the issue of her absence. Nonetheless, there is force to the Applicant’s submissions, which I accept on this matter, that it does not appear that the Applicant was being asked for medical certificates and I note from my findings above that the Applicant did, in fact, have the medical certificates I have described. I also consider tolerably clear that the Applicant’s absence had been explained because she was sick. I am not satisfied, however, that the Applicant was at any stage unable to communicate with the Respondent (either directly or through her representative about the matters being raised by the Respondent at the time).
On 16 March 2022, Mr Bye received a letter from the Applicant’s representative. The letter was dated 15 March 2022 and also expressed to be sent to the Applicant’s team leader and also to the Respondent’s CEO. The letter was titled “Notice of Acceptance by Tacit Acquiescence” and “Notice to Agent is Notice to Principal”. The letter was 4 pages in length and of similar style to the earlier correspondence issued on the Applicant’s behalf from 23 February 2022 onwards, described above. In summary, the “Notice of Acceptance by Tacit Acquiescence” purported to provide Mr Bye (and, presumably, the others) two options to resolve the dispute by reference to the earlier correspondence. A period of 14 days was provided, otherwise it would be taken as “Tacit Acquiescence” in the absence of a response. I make the same observations about the “Notice of Acceptance by Tacit Acquiescence” as I do with the earlier correspondence.
The meeting on 17 March 2022 did not proceed, as neither the Applicant nor her representative sought to attend. Later that day, the Respondent sent the Applicant a letter giving notice of the termination of her employment. It was signed by Mr Bye and was titled “Your Employment with Powercor Aust Ltd”. Among other matters, the letter referred to the “show cause” meeting and letter from 24 February 2022. The letter noted the earlier meeting attempt on 10 March 2022 and the further opportunity provided for another meeting on 17 March 2022. The letter stated that she did not provide any response or attend the meeting on 17 March 2022.
The letter stated the Applicant’s position required her to attend the workplace at least some of the time and that all employees, including those working from home, needed to attend for face-to-face meetings, training and collaboration purposes. The letter concluded she could not perform those duties as she was unable to lawfully work outside of her home.
The letter stated that the Applicant would be paid 4 weeks’ pay in lieu of notice.
The Respondent received no direct reply or acknowledgement that the notice of termination letter had been received. I am satisfied, and find, that it was received on the date it was sent. Mr Bye sent it by email, and then made subsequent attempts to inform the Applicant by calling her (he left a message) and sending her a text message.
If there was doubt, on about 28 March 2022, the Applicant’s representative sent another “invoice” letter dated 28 March 2022, which referred to the “abusive termination letter, 17 March 2022”. I also record, if there were doubt, that sending the termination letter was not “abusive” in part or at all. The invoice dated 28 March 2022 required payment of $50,000 (with substantially similar payment terms to the first invoice).
For completeness, I note that the Applicant, through her representative, sent a further invoice dated 6 April 2022 (for $7,250,000), a “Notice of Acceptance by Tacit Acquiescence” dated 8 April 2022 (again for $7,250,000) and a “Reminder Invoice Notice” on 8 April 2022 (for $50,000) and again on 10 May 2022 (for $7,250,000).
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.”
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[2]
I set out my consideration of each below.
Whether valid reason for the dismissal related to the Applicant’s capacity or conduct – s.387(a)
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[3] and should not be “capricious, fanciful, spiteful or prejudiced.”[4] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[5]
There are two components to the Respondent’s contention that there was a valid reason. The first rests upon the requirements it said existed by non-compliance with the Specified Workers Order No. 5, which was applicable at the time of the Applicant’s dismissal. The second concerns the contention that an inherent requirement of the Applicant’s employment required her to perform at least some of her role on-site.
The public health order requirements
The Specified Workers Order No. 5 was made under s.165AI of the Public Health and Wellbeing Act 2008 (Vic). Whatever the outer boundaries of the power of that Act are, in the context of similar laws operating in New South Wales, Justice Beech-Jones of the Supreme Court of NSW recently observed:[6]
“The function of determining its validity is for this Court to discharge and the function of determining whether it should have been made is for the political process. The Fair Work Commission has neither function.”
I consider it clear that the Specified Workers Order No. 5 supplied a properly founded and valid basis that prohibited the Respondent from allowing the Applicant to work on-site and the Respondent, quite properly, sought to comply with those requirements.
The Applicant contends, on a variety of legal bases, that the decision to dismiss her was unlawful. While many of these do not directly engage as to how or why the Specified Workers Order No. 5 should not apply, or were more relevant as to how she was consulted, I have also considered whether they might impugn the reason relied upon by the Respondent under s.387(a). They included:
· Section 340 (exercise of a workplace right) and s.343 (coercion) of the FW Act.
· The absence of “clean hands” due to alleged “workplace violence”.
· The letter of termination is “invalid” (because the date should have been 14 April 2022, being 4 weeks from the date of termination).
· The Specified Workers Order No. 5 and related public health orders had not been proven to be lawful. Reference here was made to the fact that Mr Bye could not answer questions about them and that, separately (among other reasons), I failed to require the Minister for Health to be present at the hearing to give evidence about them.
· The Respondent ought to have ignored the public health orders.
· The Applicant had requested “risk assessments” and similar kinds of information, none of which were provided to her or undertaken.
· The Victorian public health orders could not “override” federal legislation, such as the Privacy Act 1988 (Cth) or the Corporations Act 2001 (Cth).
· The Applicant’s evidence proved the vaccines were not safe, including proving that she demonstrated a lack of informed “consent”.
· A general failure to comply with work health and safety laws.
· The vitiating effect of the Respondent’s non-compliance with the various “notices” issued to it.
I do not accept those contentions. Many, if not all, the matters have been previously addressed before a Court or this Commission in varying contexts and have been rejected. I will address them only briefly.
The FW Act allegations are rejected. Section 340 directs attention to whether a person (relevantly) was dismissed because of the exercise of a workplace right. Section 343 prohibits taking action against a person “with intent” to coerce the other person to exercise or not exercise a workplace right or to do so in a particular way. In the respective provisions, it is a person’s actual reasons or intent that are relevant. Mr Bye was the relevant decision-maker. Even if I took into account the actions of others, such as the Applicant’s team leader, I am not satisfied the evidence discloses any such state of mind (or a “substantial” part – s.360 and 361) infected by a prohibited purpose or reason. Mr Bye’s decision was solely based upon the Applicant’s inability to lawfully attend the workplace in the context of the Victorian public health orders.
The allegation of “workplace violence” is a repeated premise of the Applicant’s case and the correspondence exchanged with the Respondent. The Applicant’s use of the term “workplace violence” was not entirely consistent but appears to be used as a synonym for “work-related violence”, a definition of which was set out in the Applicant’s “Notice of Objection” dated 25 February 2022 as follows:
“Definition of work-related violence
Work-related violence involves incidents in which a person is abused, threatened or
assaulted in circumstances relating to their work. This definition covers a broad range
of actions and behaviours that can create a risk to the health and safety of
employees. It includes behaviour sometimes described as acting out, challenging
behaviour and behaviours of concern.Examples of work-related violence
A range of sources can expose employees to work-related violence, including co-workers, clients, customers, patients, people in custody and members of the public.
Examples of work-related violence include:
· biting, spitting, scratching, hitting, kicking
· pushing, shoving, tripping, grabbing
· throwing objects
· verbal threats or abuse
· threatening someone with an object or weapon
· armed robbery
· sexual harassment and assault
· online harassment, threats or abuse
· assault with a weapon”
The Applicant’s definition extends further, as (for example) the first “invoices” dated 25 February 2022 contained an expanded definition of workplace violence to effectively include directly communicating with the Applicant on any matter. I would note that the Applicant’s use of the term “workplace violence” appears sometimes interchangeably, or alongside, the allegation of “bullying”.
I reject all allegations of workplace violence (and, for that matter, bullying). The Respondent’s communications were nothing of the sort. I accept that the subject matter of the communications was plainly stressful to the Applicant, as it involved matters that had the potential to lead to the termination of her employment - and ultimately did. However, the communications were factual, polite (albeit necessarily direct in part) and reflected an understanding that the subject matter was likely to be stressful for the Applicant.
Regarding the alleged invalidity of the notice of termination, I do not accept that contention. However, even if it were correct, it would not affect the outcome. The Applicant was unable to attend work onsite because she was not vaccinated. It was open for the Respondent to give her notice without payment in lieu and the consequence of doing so was that the Applicant would not have been paid for any work she could not perform onsite. It was to the Applicant’s advantage being paid in lieu.
I do not accept that the Respondent failed to prove the Specified Workers Order No. 5 was lawful. I repeat the observations of Justice Beach-Jones, which I set out above. Similarly, the contention that the Respondent ought to have knowingly breached those laws is fanciful.
As to the complaints regarding a lack of “risk assessments”, the Applicant’s “proof” that the vaccines were not safe or, more generally contravened obligations under work and health safety laws (in addition to the “workplace violence” claims described above), are misplaced. The Specified Workers Order No. 5 was clear in its terms and was binding upon the Respondent. It prohibited the Respondent from allowing relevant people – specifically employees such as the Applicant – onto its premises unless they were “fully vaccinated” or relevantly exempt. The Specified Workers Order No. 5 did not make employee consent a conditional feature – that was arguably a key feature of those orders, otherwise their purpose would likely be otiose. Similarly, the orders did not require risk assessments or safety assessments – the orders were made under Victorian law and they were required to be complied with.
Finally, none of the Applicant’s various “notices” or “invoices” otherwise vitiated the validity of the reason for dismissal. I will not repeat what I said about those matters earlier.
Inherent requirements
As to whether there was an inherent requirement for the Applicant to perform her work on-site, I am satisfied there was. Firstly, I accept the evidence of Mr Bye about these matters, which I have set out above, and which was supported by contemporaneous communications to the Applicant (and other employees) from the Respondent reflecting those reasons. The Applicant’s argument advocating for a permanent fully-remote arrangement tended to adopt a task-based analysis, focussing on the tasks that were performed while she was required to work at home. However, the performance of particular tasks is only one aspect.
As the evidence shows, there are less tangible benefits of having people working physically together, particularly for “collaboration purposes”, face-to-face meetings and training. They were matters specifically affirmed by Mr Bye in cross-examination and I accept his evidence. Even if I accepted the Applicant’s challenges regarding the need for her to conduct training (which I do not), the Respondent’s desire for face-to-face interactions and collaboration were clearly matters of importance to it. While I accept these are matters that different employers might place a different level of emphasis upon, however, “the Commission will not stand in the shoes” of an employer regarding reasonable judgments about such matters. The Respondent’s position was reasonable.
I also consider relevant that, before the COVID-19 pandemic, the Applicant worked onsite. I consider it would be a peculiar result if, in those circumstances, it could be said that an inherent requirement of the Applicant’s permanent role (i.e. not a role modified to accommodate the circumstances of responses to COVID-19) had no onsite requirement at all.
As the Applicant was not vaccinated in satisfaction of the requirements of the Specified Workers Order No. 5, she could not meet the inherent requirements of her role.
In summary, I consider there was a valid reason for the Applicant’s dismissal.
Was the Applicant notified of the valid reason – s.387(b)?
Proper consideration of s.387(b) requires a finding to be made as to whether the applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a).[7]
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[8] and in explicit[9] and plain and clear terms.[10]
I am satisfied that the Applicant was given notification of the reasons for the Respondent’s reasons, beginning 24 February 2022 if not earlier by the letter dated 22 December 2021. By the email and letter of 11 March 2022, the position was restated clearly.
Having regard to the matters referred to above, I find that the Applicant was notified of the reason for her dismissal prior to the decision to dismiss being made, and in explicit and plain and clear terms.
Whether opportunity to respond to any valid reason related to their capacity or conduct – s.387(c)
An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[11]
The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.[12] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[13]
I am satisfied that the Applicant was given an opportunity to respond and that she did so, particularly by the significant volume of correspondence generated upon her behalf from 23 February 2022. While I consider much of that correspondence was seriously misguided and, ultimately, unhelpful for the Applicant, it did not belie an opportunity to respond. I have included in my consideration of this matter the fact that the Applicant was on sick leave for periods of that time.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal – s.387(d)?
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
Section 387(d) of the FW Act requires the Commission to take into account “any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal”. There is no obligation on the employer to allow the employee to have an advocate present. A refusal to allow the employee to have an advocate present is not a factor that the Commission is required to take into account under s.387(d).[14]
The Respondent invited the Applicant to have a support person. I do not consider there was any “refusal”, let alone an “unreasonable refusal” for her to have a support person, even in circumstances where her representative was largely acting as an advocate. The Applicant complains that the Respondent corresponded directly with the Applicant, rather than through the Applicant’s representative. While that complaint ought properly be more appropriately considered under the heading below for “other matters”, it is convenient to address it here.
I do not consider that the Respondent’s direct communications with the Applicant were improper. First, communications with the Applicant prior to the direct involvement of her representative were cordial (albeit evidently a matter of underlying stress for the Applicant). Second, the purported directive on 23 February 2022 by her representative that all communications be through “me and me only” was initially coupled with a threatened “Notice of Liability” in the sum of $50,000 for each alleged breach. While the notice was legal nonsense, I consider that the Respondents were justified in a concern that any communication they might make would be faithfully conveyed in a legally accurate fashion if communications were solely through him. Third, the matters being discussed were serious and it was appropriate for the Respondent to retain direct communications. Fourth, when asked for proof of his capacity to act as the Applicant’s attorney, the Applicant’s representative provided a “power of attorney” that was clearly invalid on its face if it were to be a deed.
In summary, while the Applicant was entitled to share her communications with her representative, that did not alter the position that it was appropriate for the Respondent to communicate directly with her.
Was the Applicant warned about unsatisfactory performance before the dismissal – s.387(e)?
As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal– s.387(f)?
I find that the size of the Respondent’s enterprise had no such impact on the procedures followed in effecting the dismissal.
To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal - s.387(g)?
It was not submitted that the Respondent’s enterprise lacked dedicated human resource management specialists or expertise. I find that the Respondent’s enterprise did not lack dedicated human resource management specialists and expertise.
What other matters are relevant - s.387(h)?
I take into account that the Applicant was a long-term employee of the Respondent, having worked with the Respondent since 2005. At the time of her dismissal, Mr Bye confirmed she was a valued member of her team.
I also acknowledge the economic impact upon the Applicant that flows from the dismissal. These are matters in the Applicant’s favour.
I have addressed other matters raised by the Applicant above and, so far as I have, I also consider whether they might independently be factors that would lean in favour of a finding that the dismissal be unfair. I do not consider they do, whether separately or in combination. There was no other matter put before me that I consider would also point to a different conclusion.
Conclusion
I have made findings in relation to each matter specified in section 387 as relevant.
I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[15]
Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable.
There was an inherent requirement that the Applicant’s work to be performed in-person at her workplace. By reason of the operation of the Victoria public health orders, as variously applied up to and including the Specified Workers Order No. 5, which the Respondent was required to comply with under the laws of Victoria, she was unable to meet (and it was tolerably clear she would not be meeting) the inherent requirements of her role.
Those matters gave the Respondent a valid reason to dismiss the Applicant. I consider that the Respondent afforded procedural fairness to the Applicant prior to making the decision to bring her employment to an end. I do not consider there are other matters that, taken individually or together with the other factors, would render the dismissal unfair.
Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act. The Applicant’s application is therefore dismissed. An order[16] to this effect will be issued separately.
DEPUTY PRESIDENT
Appearances:
T Alexander for the Applicant
A Mollison of Lander & Rogers for the Respondent
Hearing details:
2022.
Melbourne (by video via Microsoft Teams):
July 19.
Final written submissions:
Applicant: 22 July 2022
Respondent: 27 July 2022
Applicant Reply: 1 August 2022
[1] Witness statement of Daniel Bye, [12]
[2] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[3] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[4] Ibid.
[5] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[6] Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320, [68].
[7] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
[8] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[9] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
[10] Ibid.
[11] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
[12] RMIT v Asher (2010) 194 IR 1, 14-15.
[13] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[14] Victorian Association for the Teaching of English Inc v de Laps[2014] FWCFB 613, [52].
[15] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
[16] PR746652.
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