Nadine Tester v Food Connect Brisbane
[2022] FWC 1700
•1 JULY 2022
| [2022] FWC 1700 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Nadine Tester
v
Food Connect Brisbane
(U2022/1149)
| DEPUTY PRESIDENT LAKE | BRISBANE, 1 JULY 2022 |
Application for an unfair dismissal remedy – where the Applicant was not unfairly dismissed
Ms Nadine Tester (the Applicant) contends she was unfairly dismissed by Food Connect Brisbane (the Respondent), for whom she had worked since 1 March 2021. She seeks an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). In short, the Applicant was informed of her dismissal on 7 January 2022 in the Respondent’s food distribution company after failing to comply with the Respondent’s direction to provide proof of the Applicant’s vaccination status or a medical contraindication by 5 January 2022. The events leading to the Applicant’s termination are not in dispute. Rather, the Applicant contends that the unlawfulness of the Respondent’s conduct gives rise to her unfair dismissal claim.
As the matter could not be resolved by conciliation, directions were issued for the filing of material and a hearing was listed for 10 May 2022. The Applicant appeared on her own behalf, with Mr Tony Knight as her support person, while Mr Robert Pekin, Director, appeared for the Respondent.
Section 396 of the Act requires that I am satisfied of four matters before considering the merits of the Applicant’s application. I am satisfied, that the Applicant made her application within the 21-day period required by s.394(2) of the Act, that she was a person protected from unfair dismissal (as she earned less than the high-income threshold), and that her dismissal was not a case of genuine redundancy. However, the Respondent claimed that it is a small business to whom the Small Business Dismissal Code applies and the Applicant disputed this.
Before I could consider the merits of the Application, I had to first decide whether Food Connect Brisbane was a small business to which the Small Business Dismissal Code applies. Both parties provided evidence before and during the Hearing.
Small Business
During Evidence-in-chief, the Respondent provided four payslips dating from 24 December 2021 to 18 January 2022. As the Applicant was dismissed on 7 January 2022, the payslip dated 24 December 2021 was used to determine the Respondent’s number of employees at the time of the Applicant’s dismissal. The Applicant provided her own list of employees that she asserted were regular and systematic due to seeing them regularly. Both lists were worked through together with the Applicant and the Respondent. I asked the Respondent to clarify each employees’ employment status, their hours, and if they had a regular and systematic working pattern. I asked the Applicant which of these employees did she claim were regular and systematic. The findings are below.
| No. | Employee | Employment Status | Employed by the Respondent? | Regular and systematic? |
| 1 | AL | Permanent part-time | Yes | Yes |
| 2 | CP | Permanent part-time | Yes | Yes |
| 3 | CT | Casual | Yes | Contested |
| 4 | DH | Casual | Yes | Yes |
| 5 | EC | Casual | Yes | Yes |
| 6 | GM | Permanent | Yes | Yes |
| 7 | GT | Casual | Yes | Yes |
| 8 | HM | Casual | Yes | Contested |
| 9 | MM | - | Yes | Contested |
| 10 | JS | Casual | Yes | Yes |
| 11 | KD | Casual | Yes | Contested |
| 12 | LO | Permanent | Yes | Yes |
| 13 | LFL | Permanent | Yes | Yes |
| 14 | MA | Permanent | Yes | Yes |
| 15 | MJEA | Casual | Yes | Contested |
| 16 | NT | Permanent | Yes | Yes |
| 17 | PD | Permanent part-time | Yes | Yes |
| 18 | SS | Casual | Yes | Yes |
| 19 | GR | - | No | Contested |
| 20 | JK | - | No | Contested |
| 21 | NM | - | Yes | Contested |
| 22 | A person | - | - | - |
| 23 | A person | - | - | - |
| 24 | A person | - | - | - |
During cross-examination of the Applicant, she asserted that all persons listed were regular and systematic as she had seen each person at work and the Applicant works four days a week on a regular basis.
During cross-examination of Mr Pekin, he asserted evidence regarding the associated entities and the inconsistencies between the Applicant’s and the Respondent’s employee lists.
Mr Pekin stated that the Respondent, Food Connect Foundation Limited ABN 27 141 073 083, and Food Connect Shed Limited ABN 76 628 254 311 are not associated entities as there is no common board or interests shared between the three companies. Therefore, employees GR and JK do not count towards the number of employees.
Mr Pekin proceeded to comment on each employee the Applicant contested. CT is hired as a casual as she is a student and only available to work when free. NM is also a student and only available sporadically. MJEA is a PhD candidate and worked an irregular number of hours over a three-month period. HM worked inconsistent hours over the period of two months. KD works as a chef and only worked one to two mornings a week. MM was not currently working with the Respondent at the time of the Applicant’s dismissal. The three persons listed were unidentifiable and not included in the final count.
On examination, the Respondent only has thirteen regular and systematic employees. Therefore, the Respondent was a small business to which the Small Business Dismissal Code applies. I find that on balance the jurisdictional objection is upheld. Even so, in the circumstance where the jurisdictional objection fails, I will consider the merits of the Application.
Chronology
On 9 December 2021, Mr Pekin sent an email to all employees of Food Connect Brisbane updating them about the upcoming Queensland Government mandate and how that would impact the employees. Any employee who was unvaccinated by 17 December 2021 would be restricted from entering a specific area of the Shed, a part of the building that the employees work in. Mr Pekin also stated that there may be a need for all employees to become vaccinated. The email stated that any concerns would be considered on a case-by-case basis.
On 10 December 2021, the Applicant sent a “notice for further and better particulars” to the Respondent. She stated that she would be willing to comply with any future vaccination policy once all her questions were answered as she had several concerns about the legality and safety, and efficacy of the COVID-19 vaccine. She provided that an answer was required within 28 days of the notice being issued.
On 17 December 2021, the Queensland Government mandated that any person entering an event space must be vaccinated, restricting access to a specific part of the Shed but not restricting access to the employees’ workspaces.
On 23 December 2021, the Respondent sent an email to all employees stating that Food Connect Brisbane would be implementing a pandemic safety plan. This involved limiting the number of people in the office, access to face masks, QR code check-in, sanitisation stations, and insisting that all Food Connect staff and contractors are double vaccinated. All staff were required to confirm their vaccination status, process to be fully vaccinated, or medical contraindication by 5 January 2022 to Mr Pekin. A confirmation of first dose by 17 January 2022, and a confirmation of second dose by 28 February 2022 were also required. If no response was received by 5 January 2022, then it would be presumed that the employee was unvaccinated.
On 5 January 2022, the Applicant sent a “default notice”, stating that Mr Pekin failed to respond to the initial “notice for further and better particulars”. She required a response to her notice within 14 days of the second notice being issued.
On 7 January 2022, Mr Pekin emailed the Applicant stating that Food Connect Brisbane would not be permitting any unvaccinated workers in the workplace, there is an increased risk to unvaccinated people, and there are no roles where the Applicant could work from home. Therefore, the Applicant would not be rostered for work in the coming weeks or months. The Applicant was then supplied with an employment separation certificate dated 11 January 2022.
On 22 January 2022, the Applicant sent another “default notice”, stating that Mr Pekin failed to respond to the initial and second notices and that she required a response to her notice within 7 days of the third notice being issued.
On 26 January 2022, the Applicant filed with the Commission a Form F2 – Unfair Dismissal Application.
Applicant’s Material
The Applicant accepts that she received correspondence from the Respondent on 9 December 2021, 23 December 2021, and 7 January 2022. However, she denies that she was informed that if she did not provide her vaccination status by 5 January 2022, her employment may be terminated.
The Applicant contends that she did not wish to receive a vaccination until Mr Pekin responded to all her questions provided in her request for further and better particulars.
The Applicant contends that for the request to be legal, it needed to be assessed on a case-by-case basis. Ms Tester states that she never was consulted on the vaccination policy.
Ms Tester further contends that it is not stated in her employment contract that medical measures (or a vaccination) are required.
The Applicant asserts that the Respondent did not provide relevant data or information to support the implementation of the vaccination policy.
Finally, the Applicant asserts that no State or Territory public health order applies. Employers can only require their employees to be vaccinated where a specific law requires it.
Nevertheless, it was accepted that the Applicant, as at 5 January 2022, did not provide evidence of vaccination or a medical exemption.
For the reasons set out above, the Applicant submits that she was unfairly dismissed.
Respondent’s Material
The Respondent asserts that this case is not about whether the government mandate that all workers be vaccinated is lawful. That question falls outside the scope of this jurisdiction. Rather, the sole question before me is whether the Applicant was unfairly dismissed in light of s.387 of the Act.
The Respondent states that it had a valid reason to dismiss the Applicant: namely, her non-compliance with a lawful and reasonable direction issued by the Respondent. Further the Respondent asserts that the Applicant was notified of that reason well in advance of the termination occurring, had ample opportunity to respond (and did so), that her response was considered by the Respondent, but ultimately a decision was made to terminate her employment because she could not fulfil the inherent requirements of her role. She was not unreasonably refused a support person. The Respondent further asserts that the consultation process undertaken was comprehensive and that given the extensive communications leading up to the implementation of the vaccination mandate, all staff – including the Applicant – were very aware of what would happen if they did not provide their vaccination status, process, or evidence of a medical contraindication by 5 January 2022.
The Respondent denies that its staff were coerced into having the vaccine. The Respondent always accepted that it was their choice. The Respondent maintains that the Applicant was not unfairly dismissed.
Consideration
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
I am required to consider each of these criteria to the extent they are relevant to the factual circumstances before me.[1]
(a) whether there was a valid reason for the dismissal
To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[2] and should not be “capricious, fanciful, spiteful or prejudiced.”[3] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.
The Respondent asserts that its direction was lawful and reasonable. As to what is “reasonable” in the context of employer directions, the Full Bench provided in CFMMEU v Mt Arthur Coal that:
“The reasonableness of a direction is a question of fact having regard to all the circumstances, which may include whether or not the employer has complied with any relevant consultation obligations; the nature of the particular employment; the established usages affecting the employment; the common practices that exist; and the general provisions of any instrument governing the relationship.”[4]
In the current case, the Respondent underwent a consultation process with their employees prior to the implementation, the Respondent operates in the business of food distribution which is heavily regulated and requires high standards for hygiene. The Respondent provided their reasoning and justification for the implementation of the policy. Further the employment contract governing the relationship between the Respondent and the Applicant required the Applicant to comply with the Respondent’s policies.
For those reasons, I am satisfied that the Respondent’s direction that the Applicant be vaccinated or provide a valid medical exemption by 5 January 2022 was a lawful and reasonable direction with which the Applicant was required to comply.
It is uncontentious that as at 5 January 2022, the Applicant’s stance was that she refused to receive a vaccination or confirm her vaccination status until Mr Pekin answered her questions in her “notices for further and better particulars” dated 10 December 2021 and 5 January 2022. On 22 January 2022, the Applicant again refused to confirm her vaccination status and did not intend to become vaccinated against COVID-19 at that time. In other words, she indicated that she would not be complying with the Respondent’s direction.
In light of those intimations by the Applicant, the Respondent could not provide her with further work. I am satisfied that the Applicant’s failure to comply with the Respondent’s direction – the consequence being that the Respondent could not provide her with any further shifts or else be in contravention of the government mandate – constituted a valid reason for dismissal.
It is not in dispute that the Respondent holds certain responsibilities under the Privacy Act. These requirements outline that any proposed information to be collected from employees consent to the collection pursuant to APP3.3(a). This notion of consent and whether the information is collected in a lawful and reasonable circumstances is dependent on the context in which it is invoked.
There is a common law right to personal and bodily autonomy and integrity which is recognised in the Mt Arthur Coal Full Bench decision. In relation to the Privacy Act or bodily integrity any consent given for the two matters may be vitiated by a threat of discipline or termination. In this matter there is no issue of lack of compliance by the Respondent to any of the requirements of the Privacy Act.
In relation to the present case, requesting an employee to provide vaccination status does not in any way put undue pressure on an employee to undergo vaccination. The decision resides with the Applicant and is open for her to decline. The Full Bench noted that the choice lay with the Applicant and her decision to decide between getting the vaccination and continuing to be employed. The rights of bodily integrity need to be balanced against all other rights, including the health and safety of other employees in the workplace. For these reasons, I find that the Respondents direction that requires for the collection of employee sensitive information such as their vaccination status does not impinge on the rights of employee’s bodily integrity and is not an unlawful or unreasonable direction.
The Applicant argues that her contract of employment does not require her to be vaccinated against COVID-19. and there is not a public health order in place prohibiting those working in food distribution without being vaccinated or providing a medical exemption. However, an employee is duty bound to follow lawful and reasonable directions from their employer. Further to this, the Applicant’s contract of employment has a requirement to comply with all company policies and procedures. The Respondent provided evidence that they drew up a COVID-19 Vaccination policy which under the contract of employment the Applicant was required to follow. The Applicant failed to comply with the policy and procedures, which was in breach of her contractual provisions and may constitute a valid reason for dismissal.
Consequently, I am satisfied that the Respondent had a valid reason to terminate the Applicant’s employment.
(b) and (c) whether the person was notified of that reason and had an opportunity to respond
Based on the evidence provided and submissions made, I am satisfied that the Applicant was made aware in the months leading up to the implementation of the mandate, that if she was not vaccinated by 5 January 2022, her employment may be terminated.
She had – and took – the opportunity to respond on a couple of occasions to indicate her opposition to the introduction and enforcement of the direction. This was done on 10 December 2021 and 5 January 2022, and again after being informed of her termination on 22 January 2022. Accordingly, I am satisfied that the Applicant was notified of the reason for her termination and had a sufficient opportunity to respond.
(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
The Applicant has not claimed that she was unreasonably refused a support person.
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal
Given the reasons for the Applicant’s termination, this factor is irrelevant.
(f) and (g) the degree to which the size of the employer’s enterprise and the absence of dedicated human resource management expertise would be likely to impact on the procedures followed
The Respondent is a small employer. Despite this, it undertook an extensive process to provide its staff with information about the government mandate which was to apply to its operations. It consulted with the Applicant in respect of the mandate, but it ultimately had very little control over what it could do if she chose not to be vaccinated.
(h) any other matters that the FWC considers relevant
I have regard to the fact that the Applicant had no allegations that she had been anything other than a dedicated employee. It must have been very upsetting to be told that her employment would end if she chose not to have a COVID-19 vaccination. However, it must also be noted that the Respondent also had very little choice in the matter. If it wanted to continue operating its business, it had to implement these policies to protect the staff and the vulnerable community that the company served.
Conclusion
Accordingly, I am satisfied based on the evidence provided that the Respondent was a small business and the Applicant had not served the minimum employment period of one year. This means that the Applicant is unable to bring an application for an Unfair Dismissal Remedy and I therefore dismiss the Application. If I am wrong on that then I have considered the merits.
I also have determined that the Respondent had implemented a Vaccination policy that was both lawful and reasonable and as the Applicant, without providing evidence of having had the Covid Vaccination did not meet the inherent requirements of the role was not able to continue her employment. The Respondent had a valid reason for terminating the Applicant’s employment and it did so in accordance with a fair process. I find that the Applicant was not unfairly dismissed in accordance with the Act.
I therefore order that the Applicant’s application be dismissed.
DEPUTY PRESIDENT
[1] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) [69].
[2] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[3] Ibid.
[4] CFMMEU v Mt Arthur Coal [2021] FWCFB 6059 [259].
Printed by authority of the Commonwealth Government Printer
<PR743290>
0
3
0