Ms Theresa Mary Shields v Randstad Pty Ltd
[2022] FWC 1660
•13 july 2022
| [2022] FWC 1660 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Theresa Mary Shields
v
Randstad Pty Ltd
(C2022/295)
| COMMISSIONER HUNT | BRISBANE, 13 july 2022 |
Application to deal with contraventions involving dismissal – casual employee declined to provide proof of vaccination to employer – employer unable to offer shifts to employee due to health direction – employer available to offer shifts in other industries – no dismissal – application dismissed.
Ms Theresa Shields has made an application under s.365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a general protections dispute involving an alleged dismissal under Part 3-1 of the Act.
Ms Shields contends that she was dismissed by Randstad Pty Ltd (the Respondent) on 17 December 2021. The application was made on 6 January 2022.
The Respondent denies that it dismissed Ms Shields. It noted that she commenced working on 19 October 2021, working five casual shifts.
Hearing of the application
I listed the matter for a video Jurisdiction Hearing using Microsoft Teams on 28 April 2022. Ms Shields appeared on her own behalf and gave evidence. She was supported by a friend, Mr Alex Smith. Ms Vanja Bulut of Counsel was granted leave to represent the Respondent pursuant to s.596(2)(a) of the Act. Ms Sladjana Skoric, Associate of Holding Redlich briefed Ms Bulut. Ms Zoe Martin, HR Business Partner gave evidence and was cross-examined.
Legislation
The meaning of “dismissed” is provided at s.386 of the Act:
“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 task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
This decision deals only with the jurisdictional objection to be determined.
Evidence of Ms Martin
Ms Martin stated that Ms Shields commenced employment as a casual employee with the Respondent in the position of Outside School Hours Care (OSHC) Assistant. The main duties of an OSHC Assistant, including Ms Shields, is to provide supervision and engagement to children enrolled in the OSHC program.
Ms Shields entered into a “temporary employee contract of service” which Ms Martin contends applied to Ms Shields’ employment each time she accepted work as offered to her by the Respondent. Ms Shields was offered work with the Respondent’s clients on a shift-by-shift basis. Clause 2 of the contract of service is reproduced below:
“Nature of Employment Relationship
2.1The relationship between yourself and Randstad is that of casual employee and employer. This Contract of Service will apply on each occasion you are offered and accept an Assignment from Randstad.
2.2 Randstad does not control the length of Assignments with its Clients. A Client may vary the length of an Assignment or end your attendance at an Assignment at their absolute discretion, and on short notice. This includes prior to the commencement of an Assignment if the Client reassesses their needs. Changes to the internal workload, operational requirements and budgetary funding can all impact the length of an Assignment.
2.3 On completion of an Assignment, Randstad will use reasonable endeavours to obtain an alternative Assignment for you. However, the casual nature of your engagement means there is no guarantee of ongoing or regular work. Randstad is not liable to pay you if it does not offer you any Assignments, or a particular Assignment.”
The Respondent offered Ms Shields approximately 100 shifts to work between 28 October 2021 and 25 November 2021, noting that this might have included eight various shifts on any one day, offering Ms Shields a choice of schools she might work within. Ms Shields accepted and worked a total of five shifts in a period of approximately four weeks.
The Respondent utilises a system of candidate pool lists. The Active Pool List (the A List) consists of those candidates who at that time are compliant with applicable regulatory requirements and the job criteria set by the Respondent’s clients. For example, it is a requirement for anyone who works in child-related work to hold a Working with Children Check. Where a candidate does not hold such a check, the candidate will not be eligible to be placed on or to remain on the A List until they can provide the Respondent with the check. The effect of removing the candidate from the A List is that they will not receive offers for shifts while the candidate remains ineligible. If the candidate becomes eligible, they are moved to the A List.
To roster candidates for a particular shift, the Respondent sends out an SMS to all eligible candidates on the A List alerting them of the available shift. The candidate can respond to the SMS by replying to the SMS with a ‘YES’ which confirms that they accept the shift. The shift is allocated to the candidate who first responds to the notification.
Government Mandatory Vaccination Health Direction
Effective 11 December 2021, Dr Peter Aitken, Queensland’s Chief Health Officer issued a mandatory health Direction (the Health Direction) for workers in a high-risk setting. The Health Direction was made pursuant to s.362B of the Public Health Act 2005. The Health Direction relevantly defined a high-risk setting to include:
“Early childhood, primary and secondary educational settings including:
schools and outdoor education facilities
other education facilities, including TAFE, that are co-located with a school
outside school hours care and vacation carekindergartens, registered and licensed early childhood settings and family daycare providers.”
The Health Direction required workers in a high-risk setting to meet COVID-19 vaccination requirements, being that they needed to have received a first dose of a COVID-19 vaccination by 17 December 2021, and a second dose by 23 January 2022. The employee was required by the Health Direction to show evidence of the vaccinations to their employer.
An exemption from complying with the Health Direction was available in limited circumstances including for a medical contraindication if certain other measures were put into place.
Another exemption applied if a responsible person for a high-risk setting approved an unvaccinated worker to enter, work in, or provide services in the high-risk setting for a maximum period of one month until a critical workforce issue could be resolved. The definition of “responsible person” within the Health Direction is reproduced below:
“Responsible person for a high-risk setting means the person who is legally responsible for the setting, including in relation to compliance with regulatory and other requirements for the setting.
Example: the Principal of a school may be the responsible person; the Director General is the responsible person for a government department; a chief executive or Board Chair is the responsible person for a not-for-profit organisation. The responsible person may also be the employer.”
It is uncontested that the Respondent was not the “responsible person” for any of the educational settings where it provided services.
On 18 November 2021, Ms Renee Young, Education Consultant sent an email to Ms Shields in relation to the Health Direction and her vaccination status.
On 24 November 2021, Ms Young sent an email to Ms Shields reminding her to update her availability for the following week. On the same day, Ms Shields replied by email that she was not available for that week as she had accepted some shifts to work for another organisation. Ms Young replied, “Hey, that’s great! Just make sure you’re updating your availability each day if you get booked elsewhere.”
On 30 November 2021, Mr Samuel Piper, Consultant, wrote to Ms Shields to confirm the Health Direction and requested confirmation of Ms Shields’ vaccination status, or otherwise, in accordance with the Health Direction. On 9 December 2021, Ms Shields sent an email to Ms Young about the Health Direction, stating she hadn’t seen it and would be keeping her “status” private.
On 9 December 2021, Ms Jeannou Stijns, General Manager, wrote to Ms Shields as follows:
“Thank you for your email.
On the 30th of November 2021, the QLD Premier announced that COVID-19 vaccinations will be mandated for working in Education (including Early Childhood and OSHC).
Everyone working in these nominated high-risk settings must receive a first dose by 17 December 2021 and be fully vaccinated by 23 December [2021].
This is a Qld Government mandate and Randstad has to follow these mandates and therefore we are unable to send you to an Education setting from the respective dates without ensuring ourselves that you are meeting the vaccination requirements.
We totally respect your decisions around the vaccinations and it is your choice to provide us with the required documentation. However, we are not in a position to go against Government mandates.”
Ms Shields did not provide the Respondent with evidence of having received the COVID-19 vaccination or evidence of a medical contraindication.
After being provided with a link to the Heath Directive, Ms Shields emailed Ms Stijns on 10 December 2021, declaring the following and attaching a notice she had prepared:
“I advise that IF you follow these pronouncements you will be in breach of laws of this land.”
On 16 December 2021, Ms Shields wrote to Ms Young, stating that she hadn’t received any text messages and inquired if Randstad was closed. Ms Stijns responded on behalf of the Respondent:
“Thank you for your email.
As discussed before, due to the Qld Government regulations around vaccine mandates we are unable to offer you work in an Education setting.
We would highly recommend you to explore other sectors of work that don’t have these mandates.
Wishing you all the best.”
On 17 December 2021, Ms Shields sent to the Respondent a second notice she had prepared. Ms Stijns replied that day:
“Thank you for your response.
We appreciate you reaching out to us but from now on we will no longer respond to your emails as we have made it very clear in our previous emails.You can connect with the Qld Government if you wish to get further answers and information.”
In evidence given during the hearing, Ms Martin said that if Ms Shields complied with the Health Directive, she would move from the pool of candidates in the B List to the A List. In cross-examination she stated that Ms Shields could not apply for shifts on the Respondent’s app as she didn’t have up-to-date information regarding her compliance. Only A List candidates could apply for shifts.
Evidence of Ms Shields
Ms Shields stated that she first worked for the Respondent in 2019, however she was also working elsewhere. Her availability to work for the Respondent lapsed and she lost contact with the Respondent.
In October 2021, she decided to ‘reinstate’ her availability with the Respondent so that she could obtain work from more than one source.
Ms Shields stated that she was surprised to receive the email from Ms Stijns at [20], even though it is noted that she had been corresponding with Ms Young in November 2021 regarding vaccination requirements.
After Ms Shields received the email from Ms Stijns at [24], she considered that the Respondent wasn’t going to engage with her in a discussion. She received the following email on 5 January 2022 from Ms Young:
“…I want to reach out and see if you are looking for work? We are currently really busy for vacation care and are expecting term 1 to same. If you are available for work, we can fast-track your reactivation and get you out to work as early as next week!..”
Ms Shields concluded that the Respondent was struggling to fill rosters. She said she felt excited and that maybe it was ‘all sorted’. In her response to Ms Young she stated that she was available, but thought Randstad only took people who “had the injection”. She said she would love to be back on the team.
Ms Young replied, “…unfortunately we need to follow the QLD Government regulations and the COVID Vaccination is still required to work within the industry. If this changes, I will notify you.”
Ms Shields’ position is that she considered the Respondent was labouring under a misconception when it considered it was following regulations. She also considered the Respondent was labouring under a misconception as to “the thing that they refer to as a vaccination”.
Ms Shields provided various reasons as to why she would not consent to her employer requiring her to, at the threat of losing her job, be “stabbed/inject[ed] with a poison/mRNA/covid-19/gene-therapy/irreversible invasive medical procedure/medical service into my body is murder by degree and grievous bodily harm”.
Ms Shields contended that she tried to have a discussion with the Respondent over the new workplace demand and was met with condescending, dictatorial replies that did not address the fundamental issues and did not put forward any solutions.
Ms Shields contended that being de-activated is effectively a dismissal as one needs to reapply to the Respondent to have emails turned on.
Ms Shields stated that all the Respondent had to do was to put a sign up on the wall and allow staff to make their own medical choices. She said that to protect staff from the overreach of government departments, the Respondent could request a statutory declaration from employees where employees could rely on the Privacy Act 1988 to protect their medical privacy.
Ms Shields contended:
“Staff who have had the injection are still susceptible to illness and in fact are more susceptible to illness, and they are still contagious, further evidence shows they can actually infect others with the SPIKE PROTEIN!”
In evidence given during the hearing, Ms Shields considered that the Respondent didn’t read the Health Direction properly, and she could have been excused from being vaccinated due to there being a critical workforce issue.
Ms Shields said that the Respondent should have looked for other areas of work for her. She noted that she does not hold any qualifications other than to be in receipt of a blue card, allowing her to work with children.
Ms Shields stated that she considered the email of 17 December 2021 to mean that she would need to look for another job. She said that she had received a phone call from Ms Young and had asked her, “What am I going to do?” Her evidence is that Ms Young said that she couldn’t assist. The Respondent noted that Ms Young’s correspondence at [31] concludes with her agreeing to notify Ms Shields if the vaccination requirements change.
Ms Shields contended during the hearing that when she resumed working for the Respondent in October 2021, she had to go through a fresh application. She received an email on 8 October 2021, congratulating her, notifying her that she had now been activated to work with Randstad Education. Ms Shields rejected the Respondent’s argument that de-activating her account did not equate to a dismissal. Ms Shields considers that the act of her applying for the role in September 2021 and having to provide relevant information before being accepted to work demonstrates that the employment had earlier ended and then started again, so in December 2021 it had ended.
The Respondent’s submissions
Following the hearing, the Respondent filed written closing submissions to supplement its earlier submissions. The Respondent submitted that Ms Shields had not been dismissed by the Respondent for the following reasons:
(a) The Respondent has not offered to Ms Shields a shift in a high-risk setting in compliance with the Health Direction;
(b) The Respondent has invited Ms Shields to explore other sectors serviced by the Respondent that did not have a public health order in place preventing her from working; and
(c) The Respondent has maintained Ms Shields’ name on the Respondent’s system for casual assignments.
The Respondent referred to oral evidence given by Ms Martin during the hearing to the effect of:
‘The term re-activation means that a candidate will be moved into the active list when their information is up to date. The active list consists of a pool of candidates who at the time are compliant with the regulatory requirements and meet the job criteria. For example, if a candidate’s working with children check or vaccination status is not active they will be moved to the in-active list until they contact a consultant and provide up to date information, at which stage Randstad would reinstate their shifts’.
The Respondent submitted that Ms Martin’s oral evidence supports the Respondent’s position that the term ‘re-activation’ means that one’s employment has been paused until the worker satisfied all the regulatory requirements and is moved to the ‘active’ list, and does not refer to, or require a worker to reapply for their job. It is a process used by the Respondent to ensure that workers do not incorrectly secure placement offers when they do not meet the inherent requirements of that type of placement.
The Respondent referred to Ms Shields’ evidence demonstrating that due to her decision to not be available to the Respondent between October 2019 and October 2021, noting that because she stated that she had lost contact with the Respondent and worked elsewhere, she had to supply up-to-date information nearly two years later.
The Respondent referred to the following decisions in support of the proposition that an employee had not been dismissed in somewhat similar circumstances:
Lord v Amywood Pty Ltd t/a Central Kitchens[2022] FWC 243;
Callender v MCI Southport Properties Pty Ltd t/a Southport Day Hospital/Cosmetic Evolution[2022] FWC 164; and
Varichak v COG Regional Team Pty Ltd [2022] FWC 186.
Ms Shields’ submissions
Other than the above relevant evidence of Ms Shields, which I have given weight to, much of Ms Shields’ submissions went to the legality of the Health Direction, whether the vaccine is in fact a vaccine, and matters relevant to privacy.
Ms Shields’ final written closing submissions dealt largely with what she says is the adverse action she claims the Respondent has taken against her. It did not address the matter before the Commission; that is, has there been a dismissal at the initiative of the Respondent, other than to assert that the Respondent did not offer her any other alternative employment positions.
Consideration
Section 15A of the Act defines a casual employee:
“15A Meaning of casual employee
(1) A person is a casual employee of an employer if:
(a) an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and
(b) the person accepts the offer on that basis; and
(c) the person is an employee as a result of that acceptance.
(2) For the purposes of subsection (1), in determining whether, at the time the offer is made, the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person, regard must be had only to the following considerations:
(a) whether the employer can elect to offer work and whether the person can elect to accept or reject work;
(b) whether the person will work as required according to the needs of the employer;
(c) whether the employment is described as casual employment;
(d) whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.
Note: Under Division 4A of Part 2‑2, a casual employee who has worked for an employer for at least 12 months and has, during at least the last 6 months of that time, worked a regular pattern of hours on an ongoing basis may be entitled to be offered, or request, conversion to full‑time employment or part‑time employment.
(3) To avoid doubt, a regular pattern of hours does not of itself indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern of work.
(4) To avoid doubt, the question of whether a person is a casual employee of an employer is to be assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct of either party.
(5) A person who commences employment as a result of acceptance of an offer of employment in accordance with subsection (1) remains a casual employee of the employer until:
(a) the employee’s employment is converted to full‑time or part‑time employment under Division 4A of Part 2‑2; or
(b) the employee accepts an alternative offer of employment (other than as a casual employee) by the employer and commences work on that basis.”
Section 386 of the Act provides that a person has been dismissed in several circumstances, including when their “employment” has been “terminated on the employer’s initiative”. Such a situation refers to a termination that is brought about by an employer and which is not agreed to by the employee.[1]
When analysing whether there has been a ‘termination at the initiative of the employer’ for the purpose of s.386(1)(a) of the Act, it is necessary for the analysis to be conducted by reference to termination of the employment relationship. It is not conducted by reference to the termination of the contract of employment in operation immediately before the cessation of the employment.[2]
A ‘termination at the initiative of the employer’ is when two criteria are satisfied:
the employer's action 'directly and consequentially' results in the termination of employment, and
had the employer not taken this action, the employee would have remained employed.[3]
For there to be a ‘termination at the initiative of the employer’ there must be action by the employer that either intends to bring the relationship to an end or has that probable result.
I am satisfied that Ms Shields’ work with the Respondent was as a casual employee. The contract entered into between the parties detailed how the employment relationship was established, noting that assignments may be offered and accepted, at times.
Ms Shields did not provide the required evidence of vaccination to the Respondent. The Respondent was therefore required by law not to allow her to be placed in an education setting. By choosing not to provide evidence of vaccination, Ms Shields rendered herself unable to perform an inherent requirement of her casual role, to be lawfully able to attend the workplace.
Whilst the casual employment might end when an assignment ended, it does not correlate that the employment relationship ended with each cessation of an assignment. I consider that point to be clear in the communication sent by Ms Stijns on 16 December 2021, when she informed Ms Shields that the Respondent could not offer her work in an education setting but encouraged her to explore other sectors of work where mandates were not present. I do not consider that Ms Stijns’ email to Ms Shields was dismissive of her from the Respondent’s employment entirely.
While Ms Shields’ evidence is that she considered the above email and the email of 17 December 2021 to mean the Respondent would not engage in a discussion with her over the vaccination requirement, Ms Shields did not suggest at any relevant time to the Respondent that she considered the Respondent had terminated the employment relationship. At the commencement of the new year, Ms Young invited Ms Shields to notify her availability, in which case work could be offered the following week. This action does not strike me as an employer who had washed their hands completely of a casual employee on the Respondent’s books. I consider Ms Young’s inquiry of Ms Shields to be genuine, and it was not an attempt to appear to have Ms Shields ‘on the books’ when it had no intent to find work for her. I accept that the Respondent, at that time would have placed Ms Shields into an assignment if she had satisfied the requirements of the Health Direction.
Ms Shields then communicated that she would love to be back on the team and inquired if a vaccination was still required. Ms Shields did not ask if she would have to reapply for employment from scratch. I consider that Ms Shields would have known that the nature of labour hire employment, with such a short period of time since her last assignment would have resulted in her promptly being placed into work if she could meet the inherent requirements of the role.
The correlation Ms Shields seeks to make between the two-year gap between 2019 and 2021 in her work for the Respondent, and the short, six-week gap where she couldn’t be placed in an assignment is not, in my view, a valid correlation. On Ms Shields’ own evidence, she left the Respondent’s business in late 2019 to take on work elsewhere. She lost contact with the Respondent in that time. Naturally, when she sought to work for the Respondent in late 2021, it would make relevant inquiries of her and request evidence of various requirements, including a valid blue card.
No such gap in time existed in late 2021. Ms Shields was not required to reapply for employment in early January 2022. That much is clear from Ms Young’s email of 5 January 2022 to her; she could place her next week in an assignment, if appropriate.
I am not satisfied that Ms Stijns’ email of 17 December 2021 at [24] constituted a termination of the employment relationship. Ms Shields had emailed a second notice she had manufactured, making demands on Ms Stijns and Ms Young personally to provide various things to her, including that Ms Stijns and Ms Young demonstrate how the requirement to be vaccinated was constitutionally valid. Simply, Ms Stijns informed Ms Shields that the Respondent would no longer respond to her emails as the Respondent had made it clear in previous emails the requirements of the Health Direction. Ms Shields was invited to contact the QLD Government if she required further answers and information. I consider Ms Stijns’ response to have been an appropriate one as the notice provided to the Respondent is incapable of being answered. The notice was, amusingly, prepared by a person stated to be named “De Cline.”
Ms Shields cited her inability to be placed in other work the Respondent had available due to not holding any formal qualifications. There are many roles where formal qualifications are not required; Ms Shields did not make inquiries of the Respondent to be placed into other positions while ever the Health Direction prohibited her working in the education sector.
I am not satisfied that the employment relationship was terminated on 17 December 2021 or at any time.
Conclusion
For the reasons set out above I have determined that Ms Shields was not a person dismissed from employment and the jurisdictional objection raised by the Respondent is upheld.
I must dismiss the application for lack of jurisdiction. An Order [PR743721] will be issued together with this decision.
COMMISSIONER
[1] Khayam v Navitas English Pty Ltd t/a Navitas English[2017] FWCFB 5162 at [75], see also Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200.
[2] Khayam v Navitas English Pty Ltd t/a Navitas English[2017] FWCFB 5162 at [75].
[3] Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200.
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