Ms Susan Daykin v Challenge Community Services
[2022] FWC 2038
•13 SEPTEMBER 2022
| [2022] FWC 2038 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Susan Daykin
v
Challenge Community Services
(U2022/3232)
| DEPUTY PRESIDENT CROSS | SYDNEY, 13 SEPTEMBER 2022 |
Application for an unfair dismissal remedy
Ms Susan Daykin (the Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy (the Application) in relation to her dismissal from employment with Challenge Community Services (the Respondent). The Application was lodged with the Commission on 16 March 2022.
I conducted a Directions Hearing in this matter on 16 May 2022. At the Directions Hearing, directions were issued for the filing of materials by the parties (the Directions), and the matter was set down for hearing on 11 July 2022.
The parties complied with the Directions. In particular:
· On 30 May 2022, the Applicant filed an Outline of Submissions, and a statement of the Applicant;
· On 14 June 2022, the Respondent filed an outline of submissions, and a witness statement of Mr Andrew Corbett, the General Manager People & Safety for the Respondent; and
· On 21June 2022, the Applicant filed a document titled Reply to Respondent’s Outline of Submission.
At the hearing on 11 July 2022, the Applicant and Mr Corbett were cross-examined.
Background Facts
(a) General Facts
The Applicant commenced employment with the Respondent on 15 May 2001, as a Disability Support Worker on a part-time basis, as part of their Group Homes Team. At all relevant times employment was covered by the Social, Community, Home Care and Disability Services Industry Award 2010 (the Award).
The Respondent is a registered National Disability Insurance Scheme (NDIS) provider.
It provides foster care and therapeutic services, together with services, employment and support to people with disability. The disability services provided include accommodation services, supported independent living (including in group homes), assistance with daily living, day programs and supported employment programs.
The duties of a Disability Support Worker include providing direct care and assistance to clients with a disability, monitoring the safety and well-being of clients, notification of ‘incidents’ to line management for reporting to NDIS Quality and Safeguards Commission, and compliance with the Respondent’s policies and procedures.
(b) The Applicant’s Role at the Time of Dismissal
The issue of what role the Applicant filled at the time of dismissal assumed some prominence in the proceedings because the Applicant submitted it was harsh that she was not made redundant prior to her dismissal.
On 12 June 2017, the Applicant commenced in the role of Senior Support Worker in Accommodation Services on a part-time basis. However, on 2 November 2019, the Applicant requested to stand down from the role of Senior Support Worker and informed the Respondent that she wanted to continue working as a Disability Support Worker. The Applicant maintained that she continued to fulfill the Role of Senior Support Worker until her dismissal with the full knowledge of the Respondent and noted that evidence of that fact could be found in the signature block of every email from the Applicant contained within annexures to Mr Corbett’s statement.
I reject the Applicant’s contention that she remained a Senior Support Worker. On 2 November 2019, the Applicant sent an email to Ms Robyn Mainey and Ms Kristine Carter of the Respondent with the subject “Senior Support Worker”, in which she advised as follows:
“Hi Robyn and Kris,
I would like to advise that I have made the decision to step down form the Senior Support Worker role. I have spent a while thinking about this and believe it is the right decision. I am happy to work across both the Threlkeld site and the Worrikul site as support worker.”
Thereafter, on 27 February 2020, the Applicant received a letter of appointment from the Respondent with the title “Re: POSITION DISABILITY SUPPORT WORKER”, that commenced:
“On behalf of the Board of Challenge Community Services, I wish to confirm your appointment to the part time position as Disability Support Worker with Fletcher Accommodation Services Threkheld Crescent, commencing on 17 February 2020. You will be responsible to the Supervisor, Hunter. The terms and conditions of your employment are set out below:”
I note that some understandable confusion regarding role arose from a letter from the Respondent to the Applicant dated 15 January 2021, that was as follows:
“Dear Susan
Re: POSITION SENIOR SUPPORT WORKER
I wish to formally notify you that you will be transferred from Eskdale Group Home to Wyong Disability Residential 187 Pollock Avenue. You will be responsible to the Supervisor Central Coast. All conditions of employment remain the same as per your appointment letter dated February 2020. When accepting this transfer you agree to abide by the terms and conditions therein.”
While confirming a change in employment location, the above letter incorrectly states the Applicant’s position as a Senior Support Worker, but correctly refers to the Applicant’s appointment letter dated February 2020, which was as a Disability Support Worker. I accept on the balance of the evidence regarding duties performed that the Applicant remained in the role of Disability Support Worker from 17 February 2020, until her termination on 25 February 2022.
(c) Management of COVID-19 at the Respondent
In May 2021, the Federal Government released information on its COVID-19 vaccine roll out strategy. COVID-19 vaccinations were being rolled out in ‘Phases’, and Phase 1a included disability care staff. On 19 May 2021, the Respondent sent an email to disability services staff employees, including the Applicant, notifying of the Pfizer COVID-19 vaccine availability at the John Hunter Hospital. The email requested staff members who were interested in receiving the COVID-19 vaccine to register their interest. The email also invited staff members to contact Ms Welk of the Respondent if they had any questions in relation to the email. The Applicant responded to that email on the same day stating, “No thanks, not at this stage”.
On 6 August 2021, the NDIS Quality & Safeguards Commission issued a Provider Alert. This Alert referred to a prior Disability Provider Alert dated 12 July 2021 issued by the Department of Health (DOH Alert) and that the DOH Alert contained strong encouragement from National Cabinet for all disability workers to get vaccinated against COVID-19, to protect their own health and the health of people that they support.
On 18 August 2021, the Respondent sent an email to all staff members, including the Applicant, advising that a ‘Challenge Staff Vaccination Notification’ form (known as the vaccination portal) had been set up for staff to update their vaccination status. The Applicant did not respond to that email.
On 20 August 2021, the New South Wales Government (the NSW Government) issued a media release introducing new rules targeting local government areas (LGAs) of concern including that disability support workers who lived or worked in the LGAs of concern must have their first vaccination dose by 30 August 2021, and “authorised workers” who worked outside their LGA of concern were only permitted to work if rapid antigen testing is implemented at their work-site or they have had their first vaccination dose by 30 August 2021.
Following the NSW Government’s media release, on 27 August 2021, the Respondent sent an email notifying all staff members of the NSW Government’s rules. That email:
(a) Outlined that the rules applied to disability support workers who lived and or worked in an LGA of concern, and that they must obtain at least the first dose of an approved COVID-19 vaccine by 11:59pm Sunday 29 August 2021 to be able to attend work from 30 August 2021 onwards;
(b) Notified staff members who did not live or work in an LGA of concern that “the Executive team believes the requirement to have at least on (sic) dose of the vaccination will be extended to our provision of services in other areas/regions of NSW, and therefore, we are encouraging all staff to get at least one dose of an approved vaccination as soon as possible”; and
(c) Requested staff members who had received a COVID-19 vaccine to record their vaccination status on the online vaccination portal. The Respondent did not receive a response from the Applicant in relation to their email, nor did the Applicant update her vaccination status via the online vaccination portal.
The Applicant stated that in August 2021, she did not work in areas where vaccination was required but acknowledged the Respondent’s encouragement to record vaccination.
On 3 October 2021, NSW Government issued a media release titled “New public health advice for NSW reopening”. This media release stated, “Despite the ongoing challenges that will continue to be posed by COVID-19, we have the opportunity to lead the world which is why it is vital everyone is vaccinated and follows the updated public health advice that will be in place from 11 October”. That media release provided that, with respect to vaccination compliance and obligations, “businesses will be responsible for taking reasonable measures to stop unvaccinated people entering premises”, and stated, “penalties may apply for individuals and businesses who don’t comply.”
On 7 October 2021, the Respondent sent two emails to disability services staff members, including the Applicant, providing a summary of the above media release. Those emails advised:
(a) “People who have (sic) had zero vaccination are not permitted on any site as of Monday 11th October 21. Staff will need to take leave.”
(b) “Businesses will be responsible for taking reasonable measures to stop unvaccinated people entering premises. Workers who are not fully vaccinated will be required to work from home or take leave if unable to work from home”.
The Applicant stated that from 7 October 2021, she did not hear from the Respondent again absent her initiative, and there were no checks as to her health, financial position, or even to say hello.
On 14 October 2021, the Public Health (COVID-19 Care Services) Order 2021 commenced. It provided:
“The Minister directs that a person who provides disability services must not provide the services unless –
(a) if the work is done on or after 9am on 25 October 2021 but before 9am on 29 November 2021 – the person has received at least 1 dose of a COVID-19 vaccine, or
(b) if the work is done on or after 9am on 29 November 2021 – the person has received at least 2 doses of a COVID-19 vaccine”
On 15 October 2021, the Respondent issued its COVID-19 Preparedness Plan, which made clear that the Respondent would be adopting all policies as introduced as part of the Public Health Order. In the light of the Public Health (COVID-19 Care Services) Order 2021, on 19 October 2021, the Respondent sent an email to the Applicant summarising the public health order requirements. The Applicant did not respond to that email.
On 1 November 2021, the Respondent sent an email to the Applicant summarising the Public Health (COVID-19 Care Services) Order (No 2). The email stated “Advice to Disability Services – Current 30th October - A person who provides disability services to a person must have received their first dose of a COVID-19 vaccine and they must receive their second dose by 9am on 29 November 2021.” The Applicant did not respond to that email.
On 23 December 2021, the NSW Government issued the Public Health (COVID-19 Care Services) Order (No 3) 2021. Section 9 of the Order specified that “a person must not provide disability services unless the person has received at least 2 doses of a COVID-19 vaccine”.
On 12 January 2022, the Respondent received an email from the Applicant in the following terms:
“Hi Team, I was placed on leave last year by Challenge due to my vaccination status (unvaccinated), I am continuing to be placed on leave by Challenge which is up to April this year. My vaccination status remains unchanged (unvaccinated) till further more. Could you please confirm if Challenge is seeking to find alternative working arrangements for me that can support more unvaccinated status or will Challenge be terminating my employment.”
As a Disability Support Worker, there were no alternative work arrangements that could be made for the Applicant, and she was unable to undertake the inherent requirements of her role. The Applicant terminated the Applicant’s employment by letter in the following terms:
‘Dear Susan,
TERMINATION OF EMPLOYMENT
I am writing regarding the termination of your employment as a Disability Support Worker with Challenge Community Services effective, Friday, 25 February 2022.
You have not provided Challenge with suitable evidence to show you meet the requirements of the Public Health (Covid-19 Care Services) Order (No 2) 2021 (PHO), which requires Disability Services workers such as yourself, to have two doses of an approved COVID-19 vaccination (or a completed Medical Contraindication Exemption form) effective as of 29 November 2021.
As a result, Challenge has deemed you are unable to provide Disability Services to our clients and is of the view therefore you are unable to perform the inherent requirements of your role.
This letter provides six weeks notice, which is in excess of your statutory entitlement. Additionally, it should be noted that Challenge Community Services has allowed a period of 90 days after the application of the PHO for you to meet its requirements. You will be paid your accrued entitlements, including annual leave, in accordance with SCHADS with any outstanding pay up to and including your last day of employment.
Please ensure you return any organisational items in your possession to your Operations Manager by Friday, 25 February 2022.
Your attention is drawn to the “confidential information in your possession,” which includes client information, confidential and proprietary information, business methodology, and information relating to the operation and financial condition of Challenge. Such confidential information was disclosed in confidence, and Challenge requires you to continue to hold such information as strictly confidential.
Other relevant documentation regarding your termination, including an Employment Separation Certificate, if requested, will be forwarded to your home address in due course. Some termination payments may give rise to waiting periods for any applicable Centrelink payments. If you need to lodge a claim for payment, you should contact Centrelink immediately to find out if there is a waiting period.”
In the hearing of the matter the Applicant confirmed that she remained unvaccinated, and that she had not wanted to resign from her employment prior to her termination as resignation would have resulted in the Applicant having to wait a qualifying period before receiving unemployment benefits.
(d) Leave Taken by the Applicant
Arising from the 3 October 2021, NSW Government media release, the Respondent made a decision to only permit fully vaccinated staff members to attend to disability services work from 11 October 2021. Unvaccinated staff would be permitted to take leave and would need to arrange such leave with their line managers.
A conversation took place between the Applicant and her supervisor on 11 October 2021 and following the conversation, the supervisor processed leave for the Applicant for the period from 11 October 2021 to 30 November 2021. This leave was processed on 6 October 2021. The leave approval stated “Unvaccinated staff member. Will not be undertaking vaccination. Looking to obtain possible medical exemption”.
The Respondent was aware that disability services staff members who either elected not to receive a COVID-19 vaccination, remained undecided about receiving the COVID-19 vaccination, or who did not have an approved medical contraindication, and who had been authorised to take leave until 30 November 2021, would not legally be able to perform the inherent requirements of their position once their leave expired. The Respondent made a decision that for the 90 days from 29 November 2021, it would authorise absences of such staff members, including to enable them additional time to reconsider their position or obtain a valid medical contraindication (if applicable). Employees would be permitted to either take leave without pay or paid leave (if paid leave was available) during this maximum 90-day period. The 90-day grace period from 29 November 2021 ended on 27 February 2022 (which was a Sunday). The 90-day grace period was consistent with the Respondent’s Leave Without Pay (LWOP) policy, which provided “LWOP would not be granted for a period in aggregate in excess of 90 days during any 24-month period”.
The Applicant denied ever applying for or signing any leave applications, while the Respondent stated the Applicant submitted various leave requests for the period from 11 October 2021 until 25 February 2022. That leave was Annual Leave until the Applicant exhausted such leave, and then Leave Without Pay. In the hearing of the matter the Applicant accepted that, while she raised concerns with being on Annual Leave with the Human Resources department of the Respondent, she did not do so before her termination on 12 January 2022. The Applicant stated that her lack of contact was because she was depressed, and she had no choice but to take the leave.
(e) Possible Redundancy
On 17 October 2021, the Applicant sent an email to the Respondent in the following terms:
“Hi Robyn, Moving forward with the organisational restructure for Challenge it is my understanding that my Senior Support Worker role will no longer exist under this restructure. I am aware of the three options made available to Senior Support Workers but I don’t know anything about Redundancy. Are you able to fill me in on what this would look like please.”
On 19 October 2021, the Respondent replied to the above enquiry of the Applicant as follows:
“I have spoken to HR Advisor Tony Whale, as there are no changes to the support worker role there are no redundancies being offered for that job description. I am aware that you took on the Senior Support Worker role while at Eskdale but when you requested to step down from this role in November 2019 it was actioned in February 2020 please refer to the attached letter of offer for confirmation.
Please reach out to myself or Tony if you have any other questions.”
On 20 October 2021, the Applicant re-asserted her claim to be entitled to redundancy, asserting that she was a Senior Support Worker, as follows:
“Hi Robyn, Thanks for getting back to me. When I applied for the Central Coast Position I completed the paperwork for HR and they sent me confirmation back via my Challenge emails of Senior Support Worker position also stating that everything was the same as when I was previously Senior Support Workers (sic). HR then changed my email status from Support worker to Senior Support Worker.”
The Respondent thereafter confirmed with the Applicant that she was a Support Worker, not a Senior Support Worker, and so would not be considered for redundancy.
Applicant’s Submissions
In her written submissions, the Applicant submitted that the dismissal was an unfair one in the entirety of the circumstances due to tardiness and neglect on behalf of the Respondent. The Applicant sought $10,000.00, to partially cover her losses and anguish.
In her written submissions in reply, and in the hearing, the Applicant submitted that she should have been made redundant in late 2021, as she was a Senior Support Worker. The Applicant also submitted the dismissal was harsh as:
(a) She should have been terminated earlier, on 25 October 2021, as she had clearly conveyed her resolve to not be vaccinated. The requirement to take leave was part of a strategy of “starving out”.
(b) While the Respondent submits the Applicant could have remedied her situation by resigning, such resignation would result in the Applicant having to serve a qualifying period before receiving unemployment benefits; and
(c) The Applicant’s Annual Leave was exhausted a month before her dismissal, and it was unfair that the Applicant was not allowed to access Long Service Leave.
Respondent’s Submission
The Respondent submitted that the Applicant’s position at the relevant times was Disability Support Worker, and that position was not abolished as part of the Respondent’s restructure. Following the Respondent’s restructure, the Applicant’s position was still required. There were therefore no grounds for dismissing the Applicant due to redundancy.
The Respondent noted it is not in dispute that the Applicant’s employment continued until it was terminated by the Respondent, effective 25 February 2022, or that the Respondent had valid reason to terminate the Applicant’s employment due to her unvaccinated status from 25 October 2021. The Applicant’s employment was not terminated at that date because the Respondent decided to instead make reasonable accommodations to support unvaccinated Disability Support Workers with additional time to reconsider vaccination whilst maintaining continued employment, through authorising absences up to 90 days from 29 November 2021. That accommodation incurred cost to the Respondent, however it was to the benefit of the Applicant and other unvaccinated Disability Support Workers as continued employment, including service, would not be broken in the event that the Applicant had changed her mind about vaccination, and during periods the Applicant was on annual leave, the Applicant continued to accrue entitlements.
The Applicant’s complaint that her employment should have been terminated earlier was capable of being remedied by her, including by resigning from the employment. It was not unfair that the Respondent did not make the dismissal more advantageous.
Consideration
Initial matters to be considered
Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of the unfair dismissal application lodged by the Applicant. There is no dispute between the parties, and I am satisfied on the evidence, that:
(a) The Application was made within the period required in s 394(2) of the Act;
(b) The Applicant was a person protected from unfair dismissal;
(c)The Small Business Fair Dismissal Code did not apply to the Applicant’s dismissal; and
(d) The Applicant’s dismissal was not a genuine redundancy.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of that section in considering whether the Applicant’s dismissal was harsh, unjust or unreasonable. I will address each of these matters in turn below.
Valid reason (s 387(a))
It is necessary to consider whether the Respondent had a valid reason for the dismissal of the Applicant, although it need not be the reason given to the Applicant at the time of the dismissal. In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded”[1] and should not be “capricious, fanciful, spiteful or prejudiced.”[2]
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.[3] The question the Commission must address is whether there was a valid reason for the dismissal related to the Applicant’s capacity or conduct (including its effect on the safety and welfare of other employees).[4]
While I note that there existed between the parties no issue that a valid reason for dismissal existed, I accept that the Respondent needed to know each of its employees’ vaccination status to ensure that it could comply with its obligations under the various Public Health Orders, and enquiries as to the vaccination status of employees were lawful and reasonable. The Applicant had been directed to provide proof of her vaccination status and had failed to do so. That refusal to comply with a lawful and reasonable direction alone constituted a valid reason for his dismissal, and had the consequential result that the Applicant was not ready, willing and able to fulfil the requirements of her role.
Notification of reason (s.387(b))
The Applicant was notified of the reasons for her dismissal in the letter of 14 January 2022. That notification was consistent with previous advice from the Respondent regarding the need for vaccination, and the consequences of remaining unvaccinated, and was in fact prompted by the Applicant’s own correspondence of 12 January 2022, enquiring as to termination.
Opportunity to respond (s.387(c))
The Applicant was provided with opportunities to comply with the vaccination requirements, and to provide the Respondent with evidence necessary to comply with the Public Health Orders and thus maintain her employment. The Applicant responded to the Respondent’s concern when she confirmed her unvaccinated status in her email on 12 January 2022, and did not indicate any intention to receive a COVID-19 vaccine. The Applicant’s communication on 12 January 2022, did however seek confirmation of whether her employment would be terminated as a result of her unvaccinated status.
In the circumstances I find this criterion has been satisfied.
Unreasonable refusal to allow a support person (s.387(d))
The Applicant did not ask to have a support person present at any time, and so there was not any unreasonable refusal by the Respondent to allow the Applicant to have a support person present.
Warnings of unsatisfactory performance (s.387(e))
The Applicant was not dismissed for unsatisfactory performance. This criterion is not relevant to the present case.
Size of enterprise and absence of human resource specialists or expertise (s.387(f) and (g))
The Respondent is a large enterprise, with significant human resource management specialists and expertise. Neither the size of the Respondent’s enterprise nor any absence of human resource management specialists or expertise had any impact on the procedures followed in affecting the Applicant’s dismissal.
Other relevant matters (s.387(h))
The matters that the Applicant has raised regarding fairness principally relate to issues of harshness.
(a) Prior Redundancy
It is an unusual submission in an unfair dismissal application that such challenged dismissal was harsh as it should have occurred earlier, for a different reason, and with a greater monetary payment. I have serious doubt as to whether such a scenario could provide foundation for a conclusion that a dismissal that subsequently occurred was harsh, and so unfair.
Nonetheless, arising from my conclusions in the factual determination of the Applicant’s role at the time of her dismissal, there is no basis to the Applicant’s assertion that at the relevant time she was a Senior Support Worker, and consequentially no basis to the submission as to harshness on that basis.
While I have accepted that some understandable confusion regarding role arose from the letter from the Respondent to the Applicant dated 15 January 2021, that incorrectly stated the Applicant’s position as a Senior Support Worker, but correctly referred to the Applicant’s appointment letter dated February 2020, which was as a Disability Support Worker, I note that:
(a) On 2 November 2019, the Applicant requested to stand down from the role of Senior Support Worker to which she had been appointed on 12 June 2017, and informed the Respondent that she wanted to continue working as a Disability Support Worker; and
(b) On 27 February 2020, the Applicant received a letter of appointment from the Respondent to the position of Disability Support Worker.
There were therefore no grounds for even considering the possible dismissal of the Applicant due to redundancy.
(b) Earlier Termination
It is accepted that the Respondent had valid reason to terminate the Applicant’s employment due to her unvaccinated status from 25 October 2021. In the circumstances, I do not consider any harshness or unfairness arises from the Respondent’s decision to support unvaccinated Disability Support Workers with additional time to reconsider vaccination whilst maintaining continued employment. I accept that accommodation incurred cost to the Respondent, and was to the benefit of the Applicant, as continued employment, including service, would not be broken in the event that the Applicant had changed her mind about vaccination, and during periods the Applicant was on annual leave, the Applicant continued to accrue entitlements.
While the Applicant may have resisted resigning in an attempt to avoid a delay in receiving unemployment benefits, that is not a consideration of which she made the Respondent aware. Upon the Applicant enquiring regarding her termination on 12 January 2022, that employment was promptly terminated on 14 January 2022, albeit effective 25 February 2022.
(c) Annual Leave/Long Service Leave
The Applicant’s complaints regarding the requirement to take Annual Leave and/or the non-availability of Long Service Leave also fail to establish harshness due to the Applicant’s failure to adequately and contemporaneously agitate those complaints while in employment.
There is no basis to submit that the Respondent was somehow “starving out” the Applicant. I consider that in the difficult circumstances that existed for so many employers and employees in late 2021 and early 2022, the Respondent was giving a long serving and valued employee every opportunity to remain in employment. That such a result could not be achieved was unfortunate but cannot be seen to reflect adversely on the Respondent.
Conclusion
After considering each of the matters specified in s.387 of the Act, my evaluative assessment is that the Respondent’s dismissal of the Applicant was not harsh, unjust or unreasonable. The Respondent had an undoubted valid reason for the dismissal, and it afforded procedural fairness to the Applicant prior to making the decision to bring her employment to an end. The dismissal was not in any way harsh, and the Application is dismissed.
DEPUTY PRESIDENT
Appearances:
Ms T Daykin, for the Applicant
Ms Thompson, for the Respondent.
Hearing details:
2022.
July 11.
Sydney (via videoconference).
[1] Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373.
[2] Ibid.
[3] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at [685].
[4] Ibid.
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