Ms Michelle Jenkins v Home@Scope Pty Ltd
[2022] FWC 2003
•16 August 2022
| [2022] FWC 2003 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Michelle Jenkins
v
Home@Scope Pty Ltd
(U2022/2731)
| COMMISSIONER CIRKOVIC | MELBOURNE, 16 August 2022 |
Application for an unfair dismissal remedy – employment subject to Order under the Public Health and Wellbeing Act 2008 (Vic) – Respondent required to comply with the Order to collect, record and hold vaccination information and to not permit unvaccinated workers to work outside the worker’s ordinary place of residence– termination on the basis that she was unable to meet inherent requirements of her contracted position - a valid reason for termination of employment – Dismissal not otherwise unfair.
Ms Michelle Jenkins (Applicant) has made an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the Act) against Home@Scope Pty Ltd (Respondent). The hearing was conducted via Microsoft Teams on 3 August 2022. Ms Jenkins appeared on her own behalf. Mr Tyrell, Senior Workplace Relations Manager appeared for the Respondent. Ms Jenkins gave evidence and Ms Wiehe, Strategic People and Culture Projects Manager gave evidence for the Respondent.
The Applicant commenced employment with the Department of Families, Fairness and Housing in October 2008 and transferred to employment with the Respondent on 1 January 2021. She was employed on a full-time basis in the role of Disability Support Worker until her dismissal took effect on 11 February 2022. The Respondent provides “supported independent living, community supports and other services to people with disability.”
Initial matters to be considered – s.396 of the Act
The Applicant’s application was made within the 21-day period after the dismissal took effect, as required by s.394(2) of the Act (s.396(a)) and there is no dispute that she is a person protected from unfair dismissal because she had completed the minimum employment period, the Disability Services Enterprise Agreement Victoria 2018-2022[1] applied to her and her annual rate of earnings was less than the high income threshold (s.396(b)). Further, it is not disputed, and I am satisfied that the Respondent was not a small business employer. As such, the matter does not require consideration of whether the dismissal was consistent with the Small Business Fair Dismissal Code (s.396(c)). Finally, it was not claimed by the Respondent and nor does the material before me suggest the dismissal was a case of genuine redundancy (s.396(d)).
Section 385 of the Act – was the dismissal unfair?
As to the circumstances set out at s.385 of the Act, there is no question or dispute that the Applicant was dismissed (s.385(a)). Further, as outlined above, this is not a matter that involves a small business, such that consideration of whether the Applicant ’s dismissal was consistent with the Small Business Fair Dismissal Code (s.385(c)) is required or one where it is claimed by the employer that the dismissal was a case of genuine redundancy (s.385(d)).
This leaves s.385(b) and in determining whether the dismissal was harsh, unjust or unreasonable, I must have regard to s.387 of the Act:
“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.”
Consideration
Having outlined the criteria in s.387 of the Act, I am under a duty to consider each of these criteria in reaching my conclusion and will do so below.
Was there a valid reason for dismissal relating to the Applicant’s capacity or conduct? – s.387(a)
In considering whether the Applicant’s dismissal was harsh, unjust or unreasonable, I am required to take into account whether there was a valid reason for the dismissal related to her capacity or conduct (including its effect on the safety and welfare of other employees). The reason or reasons should be “sound, defensible and well founded”[2] and should not be “capricious, fanciful, spiteful or prejudiced”.[3]
By way of background, the Victorian Minister for Health issued a declaration pursuant to s.198(1) of the Public Health and Wellbeing Act 2008 (Vic) (PHWA) on 16 March 2020 that Victoria had entered a state of emergency as a consequence of the COVID-19 pandemic. The declaration was extended numerous times. When the state of emergency existed, the Chief Health Officer (CHO) of Victoria had the power to authorise the issuing of emergency powers, which included the issuing of directions pursuant to the PHWA.[4]
Pursuant to the Victorian Government’s CHO COVID-19 Mandatory Vaccination (Workers) Directions (CHO Vaccination Directions) commencing 11:59:00pm on 7 October 2021,1 “authorised workers” were required to receive their first dose of the COVID-19 vaccine by 15 October 2021. There is no contest that the Applicant was an authorised worker for the purposes of the CHO Vaccination Directions. The Respondent sent an email to all workers, including the Applicant on 4 October 2021 stating:
“Last Friday 1 October, the Victorian government announced mandatory vaccinations for all Authorised Workers to continue working on site. Authorised Workers must have their first COVID-19 vaccine dose by Friday, 15 October in order to continue working onsite. Workers will then need to be fully vaccinated by 26 November. What you need to do 1. Get vaccinated… 2. Send your proof of vaccination to P&C…by email to [email protected].”[5]
The last version of the CHO Vaccination Directions expired at 11:59pm on 15 December 2021.
In December 2021, the Victorian Parliament amended the PHWA. This saw the introduction of a framework specific to pandemics whereby the Premier of Victoria could make a pandemic declaration after considering the advice of the Chief Health Officer and the Minister for Health, if the Premier was satisfied on reasonable grounds that there was a serious risk to public health resulting from a disease that was or had potential to be a pandemic disease. If a pandemic declaration had been made, the Victorian Minister for Health could make ‘pandemic orders’ for the purposes of protecting public health.
On 10 December 2021, a pandemic declaration was made.[6] It came into force at 11.59pm on 15 December 2021. Relevantly, on 4 February 2022, the Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 3) (Specified Workers Order) came into effect, which provided that:
a) If a worker (which, as identified in Column 1 of Schedule 1 of the Specified Workers Order, included disability workers) was or might be scheduled to work outside of their ordinary place of residence after the commencement of the order, their employer was required to collect, record and hold “vaccination information” about them;
b) A “disability worker” was defined as someone who directly provides a disability service to a person with a disability; or supervises or manages another person who directly provides a disability service to a person with a disability;
c) Employers of such workers, including disability workers, were not to permit their workers to work for them outside of their ordinary place of residence if they were “unvaccinated” or “partially vaccinated”.
The Specified Workers Orders, which were in operation when the Applicant’s dismissal took effect on 11 February 2022, replaced previous iterations of the orders substantially to the same effect. I refer to the various orders collectively as, the PHOs.
For convenience I have set out below the relevant communications between the Applicant and the Respondent that followed the CHO Vaccination Directions and the PHOs and I note that there is no serious contest between the parties as to the substance of the communications between them.
As stated above, on 4 October 2021, the Respondent forwarded correspondence to its entire workforce, including the Applicant, communicating the Victorian Government mandatory vaccination requirements and the application of those requirements to the Respondent and its employees[7].
On 26 October 2021, the Respondent sent a further email[8] to the Applicant stating that “Previous communication has taken place with you to ensure that you were aware of these requirements. You have indicated that either you will not or have not responded and provided proof of at least the first COVID 19 vaccination by the required deadline… Consequently, you have been removed at this time from any work rosters and shifts occurring from this Friday onwards…. as of Friday 29th October 2021, in the absence of this evidence, you will be stood down without pay because of your failure to comply with the Public Health Direction issued regarding mandated vaccinations… what must occur for this standown to change? … You must provide us with proof of at least your first COVID 9 vaccination. This should be sent to the [email protected] email address.”
On 29 November 2021, the Respondent sent an email[9] to the Applicant stating inter alia that:
“Scope has taken the decision to provide one final opportunity to any staff member who is not yet fully vaccinated. You will have a further period until the week commencing 10th January 2022 to provide proof of full vaccination. During this period, you will remain on stand down without pay... What must occur for this stand down to change?... You must provide us with proof of at least your first COVID 9 vaccination. This should be sent to the [email protected] email address.”
On 14 December 2021, the Applicant sent an email[10] to the Respondent stating inter alia that:
“… Take note:
1. I protest the interference of a medical service upon me of unknown consequences, and I protest the inspection that violates my medical privacy.
2. I request production of the written law that requires of me to undergo a forced vaccination as a prerequisite of my employment.
3. I request the production of the written data that proves the vaccine has undergone the clinical trials required of vaccines to prove its safety.
4. I request that the law for mandated vaccinations be made pursuant to the constitutional guarantee.
5. I request that the health directions and mandates be proved, for enforcement, that it has been made in the fulfilment of the law that governs this Commonwealth, for which unites and protects us.
Failure to produce the written law mandating this forced vaccination, within three days of this notice, shall be taken to be unwarranted coercion and workplace harassment for which substantial compensation may be due...”
On 17 December 2021, the Respondent sent an email[11] to the Applicant stating inter alia that:
“…We have sent you a number of emails to your Scope email, your personal email and most recently to your home address explaining the requirement for Scope to comply with relevant Directions relating to mandatory COVID-19 vaccination requirements which were first issused (sic) by Acting Chief Health Officer Professor Benjamin Cowie on 1st October 2021, I ask that you please refer to these again as these outline the directions that Scope and you as an employee of Scope are required to comply with in order to continue to work at a Scope location.
I also want to reiterate the message conveyed to you in an email sent to you in November in response to an email you sent requesting a risk assessment and laying out some of your reasons for objections. We again recognise it is your personal decision to receive or decline the COVID vaccine. However, it is Scope’s priority to meet its legal requirements of the COVID-19 Mandatory Vaccination Directions and now the new Pandemic Orders issued under the Public Health & Wellbeing Act 2008 so that we can continue to provide services to our customers.
Whilst I appreciate the time, effort and detail you have put into your email, Scope will not engage in dialogue around the merits of the vaccine and the trialing (sic) of the available vaccines. It will also not be responding to the request to provide data about the vaccine trails. I remind you that Scope is simply complying with its legal requirements. You will therefore continue to remain on stand down until proof of full vaccination is provided.
Should you fail to provide proof by week commencing 10th Jan 2022, Scope will begin to discuss if your ongoing employment…”
On 23 December 2021, the Applicant sent a letter to Dr Jennifer Fitzgerald, Chief Executive Officer of the Respondent, stating inter alia that:
“This notice is written in concern of a requirement made unto me, to undertake a medical treatment for the Covid-19 virus, as made on the basis that I may contract a disease and infect others thereafter and that the vaccination required of me to safeguard the community from that disease.
It appears from the notice given, you are claiming to be acting on public health orders issued by the Chief Health Officer of the State which have not accompanied this notice in order to inspect whether such orders are mandating (contracting) and are enforceable and binding on me.
Prior to receiving such notice, I have taken genuine steps and sought competent legal advice and further made enquiries into the Public Health And Wellbeing Act 2008 (VIC) for which the Act has a provision found at s 203(2) for exemption by reasonable excuse, which is not accommodated for consideration in your notice, providing reasonable grounds for action against you for negligence.
Your notice purports to be executed by an authorised person, being an entity created and governed by the Corporations Act 2001(Cth) claiming among other things, to impose changes to my employment contract by invoking a mandate that may not have fulfilled the legal process to overcome my constitutional guarantee of Crown law, found at s2(3) Constitution Act 1889 (WA) (s118 Cth Constitution; Recognition of laws etc. of States) a mandatory prohibition against Acts devoid of the Crown, signature and seal.
Furthermore, it has been declared by the High Court, in the matter COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA AND ORS V QUEENSLAND RAIL AND ANOR [2015] HCA 11 to whereby the High Court unanimously held that a trading corporation within the meaning of s51(xx) of the Constitution that the relations between a trading corporation and its employees are governed by Commonwealth law and not State law and, therefore, seeking to apply State law to its employees is inconsistent with the Fair Work Act 2009 (Cth).
The employer/employee relationship (which is private in nature) is governed by the Federal scheme of corporation law as requested by the States in 2001 via s 51(xxxvii), making the State Health directions inoperable by virtue of s 109 of the Constitution by extinguishing legislative power be imposed on the employer upon employees who enters the workplace.
It is of great concern that I am informed by a variety of government sources, both State and Commonwealth, that the vaccines have not gone through the safeguard trials required of and fail to provide protection from contracting nor spreading the virus and may only be a mechanism to lessen symptoms.
There exists in several media venues reports of substantial adverse effects and the occasional death that occurs immediately to several days thereafter. Reports abound that emergency wards of hospitals are treating vaccinated people for the aftereffects of the vaccines where nurses who are required to have those same vaccines, are refusing and leaving their workplace for fear of the witnessed effects.
Further, there are reports of ingredients in the makeup of the vaccines that have cause for alarm in that they are known toxins and the studies to ensure the safety of these harmful substances have not been carried out in the push for early release.
Albeit that said, it is my responsibility as an adult, and for my family that I do not put myself in harm’s way needlessly, and that I am not denied my rights to medical choice and medical privacy. In that sense, I protest the requirement made on me to reveal my medical status on the basis for employment, when I am not under the effects of a disease and cannot be subject to the State’s Quarantine powers which are for want of jurisdiction (employer/employee) as deemed by the High Court.
Take note:
1. I protest the interference of a medical service upon me of unknown consequences, and I protest the inspection that violates my medical privacy.
2. I request production of the written law that requires of me to undergo a forced vaccination as a prerequisite of my employment.
3. I request the production of the written data that proves the vaccine has undergone the clinical trials required of vaccines to prove its safety.
4. I request that the law for mandated vaccinations be made pursuant to the constitutional guarantee.
5. I request that the health directions and mandates be proved, for enforcement, that it has been made in the fulfilment of the law that governs this Commonwealth, for which unites and protects us…”[12]
On 5 January 2022, the Respondent sent correspondence[13] to the Applicant headed “Notification to show cause – Failure to comply with legal requirements under Victorian Government’s Public Health Directions” stating that “more than 2 months have passed since you were stood down…. Relevantly, the Respondent confirmed that it was “considering termination of your employment”.
On 15 January 2022, the Applicant sent an email[14] to Mr Turton, Chief People and Culture Officer, stating “… I am writing to inform you that your letter dated 05/01/2022 was received on 13/01/2022. How can anyone respond by the 12/01/2022 when a letter is not received by this date?”
On 16 January 2022, Ms Diane Wiehe, Strategic People and Culture Projects Manager, sent the following response: “I acknowledge receipt of another letter Scope has received from you outlining the same views are (sic) you have outlined previously. Our position has not changed and our response has not changed for the ones you have received from us previously.”
For completeness I observe the Applicant’s contention that the 5 January 2022 correspondence was not received by her until 13 January 2022. Regardless, I note that the Applicant has not provided evidence of having responded to the correspondence, other than by the 15 January email referred to at [22] above.
Further I note that the 16 January 2022 email was produced by the Respondent on the morning of the hearing and that at the hearing the Applicant stated that the email address used in the email was not one she used regularly. That said, I note that the 15 January email forwarded by the Applicant to the Respondent came from the same email address.
On 17 January 2022, the Applicant was notified in writing that her employment was terminated[15] (the Termination Letter). The Termination Letter stated inter alia:
“Dear Michelle,
Your employment with Scope/Home@Scope
We are writing to you to confirm that we have made a decision about your employment arrangement with Scope/Home@Scope...
You are currently stood down from your duties because you have not met the requirement under Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (previously Public Health Directions) to provide Scope with evidence that you are fully vaccinated against COVID-19 or have a medical exemption.
On 4 January 2022, we advised that Scope was considering termination of your employment on the basis that you are unable to perform the inherent requirements of your position.
Before this, you were advised on multiple occasions that unless you provided evidence of full COVID-19 vaccination or acceptable certification of a medical exemption by 10 January 2022, Scope would consider termination of your employment…
You were provided with an opportunity to present any additional information to show cause why Scope/Home@Scope should not terminate your employment. You chose not to provide a response.
Based on this decision you are formally notified that your employment with Scope/Home@Scope will end effective in four weeks time 11th February 2022.
As you are not ready, willing and able to perform work during this notice period, you are not entitled to receive any payment for that time…
If you have any relevant accrued leave entitlements, these will be paid to you at the end of the notice period unless you wish to waive the notice period…”
The Respondent submits that the Applicant was dismissed because she was no longer able to meet the inherent requirements of her role.
The Applicant submits there was no valid reason for her dismissal related to her capacity or conduct. In evidence, she makes a range of assertions as to both the validity of the various versions of both the CHO Vaccination Directions and the PHOs and the obligations that arise from the Australian Privacy Act 1988, s 51 of the Constitution and the Biosecurity Act in support of her submissions that she should not have been terminated. The Applicant further asserts that she was able to perform the administrative part of her role remotely and as such she “should not have been dismissed”.[16]
I have not summarised the Applicant’s extensive submissions but note that the material before me, which I have considered in coming to my decision, includes extracts of the Nuremberg Code, the Bill of Rights 1688, Tim Dwyers Clearfield Doctrine, a number of legal authorities including USFF v Atlas Air, and final submissions of 815 Truemans Cabin Hire Pty Ltd. I have attempted to summarise the essence of the Applicant’s complaints as follows;
a) Her contract of employment falls under federal law and cannot be overridden by a pandemic declaration;
b) The vaccination mandate is unconstitutional;
c) Under the Nuremberg Code, it is a criminal act to pressure or coerce someone into having a vaccination; and
d) Her vaccination status is protected by the Privacy Act 1988 (Cth).
I do not consider that any of these submissions can be sustained. Regardless, I observe that the CHO Vaccination Directions and PHOs have at no stage been declared invalid by a court and were in effect at all material times and I proceed on the basis that the Directions and Orders are valid and lawful and the Commission must discharge its functions according to law.[17] To the extent the Applicant raised privacy concerns as a basis for objection to the Directions and Orders, I am unconvinced that her vaccination status is protected by the Privacy Act 1988 (Cth). As was proffered by Deputy President Colman in Isabella Stevens v Epworth Foundation,[18] there is no reason to think that the Directions and Orders were inconsistent with the Privacy Act 1988 (Cth) or that evidence of vaccination status cannot be collected, recorded and stored in accordance with the privacy principles.
There is no contest that the Applicant did not provide vaccination information to the Respondent disclosing she was a fully vaccinated person. In addition, the Applicant has at no stage claimed to have been an excepted person, as defined in any of the CHO Vaccination Directions or PHOs.
I am satisfied that the effect of the CHO Vaccination Directions was that the Respondent was prohibited from allowing the Applicant, as a disability worker, to provide direct care to clients of the Respondent in their homes from 15 October 2021, unless she was at least partially vaccinated or had a valid medical exemption. The Applicant chose not to become vaccinated, at least in part because of concerns relating to the safety of the vaccine and her numerous challenges as to the legality of the CHO Vaccination Directions. Further, the Applicant did not provide a valid medical exemption. This meant that she was not able to fulfil her role, which at least in part, could only be performed outside of her primary residence. The Applicant makes various submissions regarding the validity of the CHO Vaccination Directions and the Respondent’s policy introduced to ensure compliance with the directions. I do not accept the Applicant’s submissions. The Respondent would have been in breach of its legal obligations and exposed itself to significant financial penalties if it had allowed the Applicant to work outside of her primary residence from 15 October 2021.
Given the Applicant’s submissions as to the legality of the CHO Vaccination Directions and their interaction with the Respondent’s directions to the Applicant, I observe that in the recent decision in Roman v Mercy Hospitals Victoria Ltd[19] (Roman), Deputy President Colman discussed the concept of lawful and reasonable directions, as follows:
“Implied into the contract of employment is an obligation of an employee to obey the employer’s lawful and reasonable directions (Bayley v Osborne (1984) 4 FCR 141 at 145). The requirement that the direction be lawful has two dimensions. One is that the employer cannot demand that an employee act unlawfully. The other is that the direction must be within the scope of the contract of employment (see R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621-2 per, Dixon J). The latter reflects the ‘general rule ... that a contract by which a person is employed in a specific character is to be construed as obliging him to render, not indeed all service that may be thought reasonable to render, but such service only as properly appertains to that character’ (see Commissioner for Government Transport v Royall (1966) 116 CLR 314 at 322, per Kitto J).”[20]
In Roman, the Deputy President identified two dimensions required in order for a direction to be lawful. As to them, I am satisfied that the direction the Respondent gave to the Applicant that she provide it with information about her COVID-19 vaccination status did not require the Applicant to act unlawfully. Secondly, to the extent that the Applicant says there was no contractual obligation requiring her to become vaccinated, I am satisfied the Respondent issued a direction that was within the scope of the Applicant’s contract of employment. The CHO Vaccination Directions and PHOs imposed an obligation on the Respondent to not permit the Applicant to work for it outside of her ordinary place of residence unless she had provided vaccination information that established she was not unvaccinated. I agree with the view the Deputy President expressed in Roman that a direction to an employee to do something that is a necessary condition for a state of capacity to do their job is a lawful direction.[21] In my view the Respondent made a lawful direction related to the Applicant’s capacity to perform her job.
As to the question of the whether the direction given by the Respondent (in writing through its managers) was reasonable, I am satisfied it was. The CHO Vaccination Directions and the PHOs imposed new regulatory requirements for the Applicant’s role and the direction given by the Respondent in response to them was directed towards the Applicant being able to continue to do the job she was hired to do. The Applicant was within her rights to decline to become vaccinated and she could elect to not provide the Respondent with the information it requested from her, but I am satisfied that the direction was reasonable. In coming to my decision I have had regard to the test enunciated by the Full Bench in CFMMEU and Anor v Mt Arthur Coal Pty Ltd[22] as to whether a direction is reasonable.
As stated above, the Applicant chose not to become partially vaccinated or fully vaccinated and did not provide vaccination information, such that the Respondent did not hold vaccination information about her on 17 January 2022. Further, the Applicant did not hold the certification required to be regarded as an excepted person under either the CHO Vaccination Directions or the PHOs. The Respondent was therefore required to treat the Applicant as if she was unvaccinated and was prohibited from permitting the Applicant to work outside of her ordinary place of residence. Had the Respondent permitted the Applicant to work outside of her ordinary place of residence, it would have been guilty of an offence and exposed to a substantial financial penalty.
A further grievance raised by the Applicant is that the Respondent had no valid reason to terminate her employment as the Respondent ought to have permitted her to perform the administrative part of her job remotely.
I have noted the Applicant’s role required her to perform duties including daily support, physical assistance and personal care to clients of the Respondent. These duties required the Applicant to attend at the specialist disability accommodation at which the clients reside. The Applicant’s submission is misguided and, in any event, I note the Applicant’s concession at the hearing that at least part of the role of disability support worker, for which she was engaged, required her to attend the premises of clients of the Respondent.
I am satisfied that in order to perform the job she was employed by the Respondent to do, the Applicant had to be able to fulfil the requirement to work outside of her ordinary place of residence. Therefore, the Applicant’s decision to not provide vaccination information, such that the Respondent did not hold vaccination information about her on 17 January 2022 had the inevitable consequence of rendering her unable to perform the job she was employed by the Respondent to do. I do not consider that she was ready, willing and able to perform the inherent requirements of her role.
Having regard to the circumstances outlined above, I am satisfied that the Respondent had a valid reason for dismissing the Applicant that was related to her capacity.
Notification of the valid reason – Opportunity to respond to any reason related to capacity or conduct – s.387 (b) and (c)
Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made,[23] in explicit terms,[24] and in plain and clear terms.[25] In Crozier v Palazzo Corporation Pty Ltd[26] a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following:
“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
I have set out above at paragraphs 15 to 26, the correspondence from the Respondent to the Applicant for the period 4 October 2021 to the date of the termination of her employment on 17 January 2022. Having regard to the correspondence I have outlined above, I am satisfied:
· The Respondent advised the Applicant on multiple occasions between 4 October 2021 and 17 January 2022, that it could not lawfully permit her to work unless she provided evidence of her vaccination status;
· On 17 December 2021 and 5 January 2022, the Applicant was notified in writing that her employment may be terminated on the ground that she could not perform the inherent requirements of her position due to a failure to provide evidence of either vaccination against COVID-19 or a medical exemption; and
· The Respondent gave the Applicant multiple opportunities to respond and provide evidence of her vaccination status or evidence of a valid exemption over the course of over 3 months.
Having regard to the circumstances, I am satisfied the Applicant was on notice of the reasons for her dismissal and the possibility of her dismissal and was provided with opportunities to respond prior to the decision to terminate her employment being made.
Unreasonable refusal by the employer to allow a support person – s.387(d)
This factor is not relevant in this case. There was no evidence before me of an unreasonable refusal by the Respondent to allow the Applicant a support person at any material time. The parties communicated almost exclusively by written correspondence.
Warnings regarding unsatisfactory performance – s.387(e)
The Applicant’s dismissal was not related to unsatisfactory performance and therefore this factor is not a relevant consideration in this case.
Impact of the size of the employer on procedures followed - s.387(f) and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
The Respondent is an employer with over 2,000 employees. I do not consider the size of the Respondent to have been a relevant factor in this case (s.387(f)). The Respondent had a human resources team and as such, s.387(g) of the Act is not a relevant factor in this case.
Other relevant matters – s.387(h)
Section 387(h) of the Act requires the Commission to take into account any other matters it considers relevant.
The Applicant worked for the Respondent and predecessors since October 2008. There do not appear to have been issues with her performance during that time. The Applicant states that the dismissal has resulted in significant financial hardship, which has been a source of stress and concern. I have no reason to doubt the sincerity of the Applicant’s grievances nor the significant consequences that she has faced by reason of the termination of her employment. That said, the decisions taken by the Applicant are decisions for which the Respondent cannot be held responsible.
I have taken into account the Applicant’s objection to becoming vaccinated and the fact that she expressed a range of views about the COVID-19 vaccination mandates and the efficacy of the COVID-19 vaccinations but note that the COVID-19 vaccines applicable at the material times had been approved for use by Australia’s national regulator, the Therapeutic Goods Administration.
I note that the Applicant was afforded a 3-month period to weigh up her options in the face of the CHO Vaccination Directions and the PHOs. As stated above, I have noted the Applicant’s assertion that the show-cause letter dated 5 January 2022 was received by her on 13 January 2022, 1 day after the requested response was due. That said, there is no evidence before me that the Applicant responded substantively to the Respondent after 13 January 2022.
I have made findings above as to the Applicant’s submissions that the Respondent has acted unreasonably by not allowing her to perform the administrative part of her role remotely. For reasons discussed at paragraphs 38 and 39, I do not accept that the Respondent acted unreasonably in refusing the Applicant’s request.
Having considered and weighed the matters arising in relation to s.387(h) of the Act, I do not find that they are sufficient to render the Applicant’s dismissal harsh, unjust or unreasonable.
Conclusion
I have made findings in relation to each matter specified in s.387 of the Act 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.[27] I am satisfied the dismissal of the Applicant was not harsh, unjust or unreasonable. Accordingly, I find that the Applicant’s dismissal was not unfair. As I have found that the Applicant’s dismissal was not unfair, her application for unfair dismissal remedy is dismissed.
COMMISSIONER
Appearances:
Ms M. Jenkins for herself
Mr G. Tyrrell for the Respondent
Hearing details:
Melbourne
2022, 3 August.
video using Microsoft Teams.
[1]AE500582.
[2] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[3] Ibid.
[4] Public Health and Wellbeing Act 2008 (Vic), s.200(1)(d).
[5] DW-2.
[6] Victorian Government Gazette No. S 705, Friday 10 December 2021.
[7] DW-2.
[8] DW-4.
[9] DW-5.
[10] DW-6.
[11] DW-7.
[12] DCB at p.173.
[13] DW-8.
[14] DCB at p.242.
[15] DW-9.
[16] DCB at p.8.
[17] Kathryn Marguerite Roy-Chowdhury v Ivanhoe Girls’ Grammar School T/A The Ivanhoe Girls’ Grammar School [2022] FWCFB 101 at [16].
[18] [2022] FWC 593 at [26].
[19] [2022] FWC 711.
[20] Ibid at [30].
[21] Ibid at [31].
[22] [2021] FWCFB 6059.
[23] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[24] Previsic v Australian Quarantine Inspection Services (AIRC, Holmes C, 6 October 1998), Dec 907/98 M Print Q3730.
[25] Ibid.
[26] (2000) 98 IR 137, 151.
[27] 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].
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