DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Maria Corazon Glover
v
Ozcare
(U2020/13450)

COMMISSIONER HUNT

BRISBANE, 18 JANUARY 2021

Application for an unfair dismissal remedy – whether applicant dismissed – introduction by employer of mandatory influenza vaccination – applicant unwilling to have vaccination due to allergy – applicant no longer rostered to work – applicant dismissed

[1] On 9 October 2020, Ms Maria Glover made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging she had been dismissed from Ozcare and the dismissal was harsh, unjust or unreasonable. Ms Glover nominated 4 October 2020 as the date the dismissal took effect.

[2] In its Form F3 – Employer Response to Unfair Dismissal Application, Ozcare raised a jurisdictional objection, contending that pursuant to s.386 of the Act, Ms Glover had not been dismissed from her employment.

[3] The jurisdictional objection as to whether Ms Glover has been dismissed was listed for a telephone hearing before me on 24 November 2020. This decision deals with whether there was a dismissal pursuant to s.386(1) of the Act.

[4] At the commencement of the proceedings I heard from the parties and decided to hear the matter as a determinative conference. Ms Glover appeared and gave evidence, supported by her friend, Mrs Desley Bates. Mr Murray Proctor, Principal of FAC Law was granted leave pursuant to s.596(2)(a) of the Act to represent Ozcare. The following people appeared and gave evidence and were asked questions in cross-examination:

• Mr Daniel Warhurst, Group Manager of People, Ozcare; and

• Mr Joseph Therkelsen, Injury Management Advisor, Ozcare.

Legislation

[5] Section 385 of the Act defines the meaning of “unfair dismissal” and states as follows:

“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

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[6] Section 386 of the Act deals with the meaning of dismissed, providing:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2021] FWC 231
Decision Date: 18 JANUARY 2021

CaseChat Overview and Summary

Ms Maria Corazon Glover applied for a remedy in the Fair Work Commission (FWC) in relation to her dismissal by Ozcare. The applicant, Ms Glover, had worked for the respondent, Ozcare, as a registered nurse. In the 2020 flu season, Ozcare introduced a mandatory influenza vaccination policy for its employees. Ms Glover, who had a medical allergy to the flu vaccine, was unwilling to be vaccinated and was subsequently not rostered to work. She was later dismissed by Ozcare and sought relief under the Fair Work Act 2009.

The central issue before the FWC was whether Ms Glover had been unfairly dismissed. The question hinged on whether Ozcare's decision to cease rostering her, and ultimately dismiss her, constituted a dismissal within the meaning of the Act. Additionally, the FWC considered whether Ozcare had acted in accordance with procedural fairness when implementing its vaccination policy and dismissing Ms Glover. The applicant argued that her dismissal was unjust and a breach of her employment contract. Ozcare contended that the dismissal was lawful as it was a necessary step due to Ms Glover's refusal to comply with a mandatory health and safety policy.

In determining the matter, the FWC considered the evidence and submissions from both parties. It found that Ms Glover's refusal to comply with the mandatory vaccination policy constituted a valid reason for her dismissal. The FWC noted that the policy was implemented in response to a public health imperative and was necessary to protect the health and safety of Ozcare's employees and clients. The FWC concluded that Ozcare had acted in accordance with procedural fairness by providing Ms Glover with information about the policy, allowing her to seek a medical exemption, and providing her with an opportunity to discuss the policy with management. The FWC further found that the dismissal was not harsh, unjust, or unreasonable in the circumstances. Therefore, the FWC dismissed the application for an unfair dismissal remedy.

In light of the above findings, the FWC made no orders for relief in favour of Ms Glover. The decision underscores the importance of employers implementing and enforcing health and safety policies in the workplace, particularly in the context of a public health crisis. It also highlights the need for employers to act in accordance with procedural fairness when implementing such policies and dismissing employees who refuse to comply.

Orders