Natalia Cabrera Moscoso v ATCO Structures & Logistics Pty Ltd
[2022] FWC 1904
•20 JULY 2022
| [2022] FWC 1904 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Natalia Cabrera Moscoso
v
ATCO Structures & Logistics Pty Ltd
(U2022/2606)
| COMMISSIONER SIMPSON | BRISBANE, 20 JULY 2022 |
Application for an unfair dismissal remedy – Application dismissed
Natalia Cabrera Moscoso (the Applicant) contends she was unfairly dismissed by ATCO Structures & Logistics Pty Ltd (the Respondent), for whom she had worked since 12 August 2019. She seeks an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). In short, the Applicant was terminated from her position as a Senior Financial Accountant with the Respondent after failing to comply the Respondent’s direction to be vaccinated.
As the matter could not be resolved by conciliation, directions were issued for the filing of material and a hearing was listed for 23 June 2022. The Applicant represented herself with the assistance of her partner Mr Jason Cunningham, and the Respondent was represented by Mr Evan Mentiplay of Johnson Winter & Slattery. Mr Mentiplay was granted leave to appear 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. Neither party disputed and 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), that her dismissal was not a case of genuine redundancy and that the Respondent is not a small business to whom the Small Business Dismissal Code applies.
BACKGROUND
The Applicant’s employment was terminated on the basis of her failure to comply with a requirement to be vaccinated in accordance with an ATCO policy or provide evidence of a relevant exemption. There is no dispute that the Applicant did not comply with ATCO’s policy. The issue is whether ATCO’s policy gave rise to a reasonable and lawful direction to the Applicant. The Applicant contends that it did not. ATCO says that it did, and that the termination of the Applicant’s employment was not otherwise harsh, unjust or unreasonable.
On 6 December 2021, the Respondent introduced a mandatory COVID-19 vaccination policy (the ATCO Workplace Vaccination COVID-19 Standard (Australia)) (the Standard) across its Australian operations. The Standard was developed based on a review of the risks of contracting and transmitting COVID-19 in the Respondent’s workplaces, and following discussions throughout November 2021 with affected employees, including the Applicant, regarding the introduction of this Standard. Under the Standard, all employees of the Respondent were required to be vaccinated against COVID-19 by 31 January 2022 unless they had a medical or religious exemption. Discussions continued with employees during December 2021 and January 2022 prior to the deadline to be vaccinated. The Applicant was required to comply with this Standard under clauses 3.4 and 3.5 of her contract of employment.
The Applicant’s position to the Respondent during this period was that she considered any requirement to be vaccinated against COVID-19 to be unlawful and unreasonable, and she refused to comply with the Standard. No medical or religious exemption from vaccination was provided to the Respondent by the Applicant.
On 31 January 2022, the Respondent wrote to the Applicant regarding her failure to comply with the Standard and the terms of her employment. The Applicant continued to refuse to comply with the direction of her employment.
On 7 February 2022, Ms Tania Kabel-Pluck (Ms Kabel-Pluck) met with the Applicant and informed her that if she did not comply with the vaccination requirement she would be dismissed. The Applicant was provided with an opportunity to provide any information she considered the Respondent should take into account before making a decision about dismissal. The Applicant offered to work from home permanently, however, this option was not acceptable to the Respondent given it required the role to be performed from the office.
On 9 February 2022, Ms Kabel-Pluck met with the Applicant again. In this meeting, the Applicant confirmed that she would not comply with the vaccination requirement (or was able to provide a medical exemption) and she understood the consequences to her employment.
Following the meeting, the Respondent terminated the Applicant’s employment on 9 February 2022. The Applicant’s termination was confirmed in writing on 9 February 2022 and she was paid in lieu of notice of termination.
SUBMISSIONS AND EVIDENCE
Mr Jason Cunningham provided a witness statement in support of the Applicant’s case which was admitted into evidence unchallenged.[1] Mr Cunningham’s evidence included that the Respondent had failed to provide information to the Applicant, and a failure on the part of the Respondent to quantify the risk. Mr Cunningham also said the policy failed in relation to the exemption on the basis of religious grounds as church leaders cannot speak on behalf of God.
The Applicant provided a witness statement which was admitted into evidence.[2] The Applicant raised that the Respondent did not provide a complete copy of the risk assessment conducted by the Respondent.
The Applicant gave oral evidence that she did not seek reinstatement. The Applicant was paid four weeks’ notice on termination and gained other employment on 20 March 2022. The remuneration for the new employment was $80,000 per year plus superannuation. In closing submissions after the evidence had concluded, the Applicant made a submission that the Applicant did not seek compensation either but was seeking a determination that the termination was unreasonable.
Mr Darren Woodley’s statement as part of the Respondent’s case was admitted into evidence unopposed.[3] Ms Tania Kabel-Pluck’s witness statement in support of the Respondent’s case was admitted into evidence.[4]
Ms Kabel-Pluck was asked if she responded to the issues raised in the Applicant’s email of 4 January 2022 and Ms Kabel-Pluck said she responded by email on 6 January 2022 and that correspondence was provided in the material filed.
Applicant’s Job Role
The Applicant’s role as Senior Financial Accountant was a senior and supervisory role reflected in her annual salary of $96,045 plus superannuation. Ms Cabrera Moscoso’s duties included managing the Accounts Payable team (which consisted of two employees) including supervising, training and coaching those employees, managing ATCO’s financial compliance matters, and performing account reconciliations. The Applicant accepted in her oral evidence her role included supervision and a requirement she attend meetings in the workplace.
The Applicant accepted the policy was discussed with staff before implementation. The Applicant accepted that she had told representatives of the Respondent on a number of occasions that she refused to be vaccinated against COVID 19. The Applicant accepted that she was terminated because of her refusal to be vaccinated against COVID 19.
The Respondent submitted that it was a term of her contract of employment dated 15 July 2019 (Contract) that she: “comply with all lawful orders and instructions given by ATCO” (clause 3.4) and “comply with all policies” (clause 3.5). ATCO’s policies and directives included, at the time of the Applicant’s dismissal, the Standard.
The Standard
The Standard required that all employees of ATCO become fully vaccinated against COVID-19 by 31 January 2022 or provide a valid medical or religious exemption (with any application for exemption on religious grounds to be provided by 17 December 2021). The Applicant submitted that the Respondent failed to provide all the information to support this policy.
The Applicant submitted that the Respondent failed to provide evidence of having performed due diligence upon issuance of the policy, including relevant legislation requested in regard to its Queensland operations, copies of risk assessments and management practices including adherence to the safework hierarchy of controls, and also which Acts, sections, and subsections and clauses within those Acts are to be applied in tandem with the policy.
The Applicant alleged the Respondent failed to:
· provide legal grounds to prove validity of the policy when a government mandate had not been issued for the industry sector in the state of Queensland;
· re‐assess and update Risk & Hazard Identification and Control processes based on changing health advice before the policy effect date of January 31 2022;
· adhere to the Australian Constitution Act 1901 (Sect 51, 23a); and
· adhere to the Australian Constitution Act 1901 (Sect 109).
Additionally, the Applicant contended the Respondent breached:
· the Privacy Act 1988 for demanding the private medical information including vaccination status of any kind as part of condition of employment; and
· the Disability & Discrimination Act 1992 by discriminating in employment status and opportunity based on “vaccination” status.
The Applicant in oral submissions referred to the decision in CFMMEU v Mt Arthur Coal[5] and submitted that it acknowledges that in many cases the Fair Work Commission had found dismissals not to be unfair in relation to terminations related to COVID 19, however it submitted that the termination was unreasonable rather than unlawful. The Applicant submitted that as early as October 2021 the Respondent had already determined to implement the policy prior to staff consultation.
The Applicant referred to the Frequently Asked Questions document and the reference to leaders in that document and uncertainty about that issue. The Applicant referred to an email of 9 November 2021 from Mr Woodley sending through the policy with exemption forms and referring to looking to recruit a replacement for the Applicant.
The Applicant said the Respondent said within 6 days it was already contemplating looking at a replacement for the Applicant when the policy said employees had until 31 January 2022 to be vaccinated, and the policy implied that employees had until 31 January 2022 to consider their options.
The Applicant said the global policy was essentially the same everywhere with a few exemptions in countries with specific local laws, and a decision had already been made which did not take into account domestic considerations and laws resulting in a failure to consult.
The Applicant referred to the email of 4 January 2022 from the Applicant raising questions and concerns, and said the vaccinations only have provisional approval and there is a lack of long-term evidence about the vaccinations. The Applicant referred to the 6 January 2022 response from Ms Kabel-Pluck and submitted that the risks had not been properly identified and assessed.
The Applicant submitted that the Respondent did not provided responses to all of the issues raised and this constituted a failure to properly consult. The Applicant submitted that at the meeting on Monday 7 February 2022 the Applicant asked for a copy of the risk assessment and copies of various legislation and the correspondence received from the Respondent after this meeting was the first mention of this.
The Applicant said she received a small portion of the risk assessment and not the entire document and whilst the Respondent claimed it was sharing the pertinent parts of the risk assessment, the Applicant submitted she should have been provided the entire document. The Applicant said she was asked to present for a further meeting on 9 February 2022 which was rescheduled from 10am to 1pm. The Applicant said she was still being paid at that time. The Applicant said at that meeting she again asked for a full copy of the risk assessment and was told by the Respondent that it was not legally obliged to provide the entire document.
The Applicant submitted that it was near the end of this meeting that the Applicant was told that her employment was being terminated. The Applicant said it was only after the application for unfair dismissal was filed that further information came to light.
The Applicant submitted in relation to the risk assessment the Respondent had failed to identify the risk properly or the controls or hazards properly. The Applicant said the risk assessment was not issued with the policy. The Applicant submitted she did not have an exact date of when the risk assessment was undertaken, however the documented risk assessment appeared to have been prepared in January 2022 but the activities in preparing the risk assessment were undertaken in the last quarter of 2021 and there is a lack of evidence about when these activities were undertaken, and if revisions were made to the document.
The Applicant submitted in sites not subject to a government mandate that rapid antigen tests should be sufficient. The Applicant submitted the Omicron variant is less severe and the Respondent should have modified its policy to reflect that. The Applicant also submitted that working from home was an option and the business could have allowed her to work from home. The Applicant submitted meetings could have occurred using Microsoft Teams for example. The Applicant submitted that every task she had to do could have been done using the internet. Further the Applicant submitted that the meetings she was required to attend were not conducted by her and it could have been done using Microsoft Teams.
The Applicant submitted in relation to the risk assessment that the task could be substituted, and it is unnecessary to substitute the person.
The Respondent submitted that the requirement to comply with the Standard was a lawful direction, in circumstances where:
(a)a policy requiring mandatory COVID-19 vaccination is prima facie lawful because it falls within the scope of employment and there is nothing unlawful about becoming vaccinated;
(b)safeguarding the health of ATCO employees and other persons in the workplace is an express purpose stated in the Standard, which is a lawful and reasonable reason for a policy; and
(c)employers can be liable for the transmission of infectious diseases in the workplace, and requiring COVID-19 vaccination amongst the employer’s workforce in response to such legal risk is not unlawful.
Further, the Respondent submitted that the implementation of the Standard was reasonable, given:
(a)The Standard was a reasonably proportionate response to the COVID-19 pandemic and was developed with respect to ATCO employees’ working environments (including given many ATCO employees are required to attend customer worksites);
(b)The Standard was developed and implemented in response to identified work health and safety risks;
(c)Employees were notified of the proposal to introduce the Standard on 21 October 2021 and consultation with employees, including Ms Cabrera Moscoso, occurred via discussions in meetings with managers and emails. In response to issues raised by employees, ATCO extended the deadline for compliance with the Standard from 1 January 2022 to 31 January 2022;
(d)The implementation of the Standard on 9 November 2021 (and again in the variation issued on 6 December 2021) was expressly stated to be subject to consultation with employees and was amended to take into account matters raised by employees, including by extending the time for applying for a religious exemption under the Standard until 31 December 2021. The Commission has held that consultation steps taken after the implementation of a mandatory vaccination policy, but before the deadline for compliance, can satisfy an employer’s consultation obligations. ATCO continued to liaise with employees about the Standard and receive their feedback about the Standard. Following discussions with employees, ATCO continued to hold the view that the Standard was the appropriate means of mitigating the risk associated with transmitting or contracting COVID-19 at ATCO’s workplaces;
(e)The Standard provided reasonable paid time off for employees to receive the COVID-19 vaccination;
(f)The Standard was implemented after ATCO had spent substantial resources encouraging vaccination, by providing an incentive of $1,000 per employee to become vaccinated under the voluntary vaccination program; and
(g)It was not possible for Ms Cabrera Moscoso to permanently work from home in lieu of being vaccinated, due to the seniority and other requirements of her position as Senior Financial Accountant.
The Respondent submitted that the Standard was a lawful and reasonable instruction under section 3.4 of the Contract, and Ms Cabrera Moscoso was required to comply with it as a term of her continuing employment. Ms Cabrera Moscoso refused to comply with the Standard. It is not disputed that Ms Cabrera Moscoso was not vaccinated against COVID-19 and did not provide ATCO with evidence of a valid medical exemption, or exemption on religious grounds. Accordingly, the Respondent submitted that there was a valid reason for Ms Cabrera Moscoso’s dismissal.
In submissions dated 31 May 2022, the Respondent submitted that Ms Cabrera Moscoso refers to numerous pieces of legislation and contends that the Standard was contrary to that legislation. It is not said how the Standard was contrary to the legislation. Matters relevant to the Work Health and Safety Act 2011 (Qld) are whether a risk was identified, whether the Standard was a reasonable measure to address that risk, and whether employees were consulted on the Standard as a measure to address risk.
The Respondent submitted that requests for information made by Ms Cabrera Moscoso by email on 4 January 2022 were responded to by email on 6 January 2022. The only further request for further information made by the Applicant regarding the Standard was a request for a copy of the risk assessment documented in January 2022. This request was not made until 7 February 2022, after the time compliance with the Standard had passed. Notwithstanding this, relevant extracts of the risk assessment were provided to the Applicant on 8 February 2022.
The Respondent submitted that the witness statement of Mr Cunningham dated 30 May 2022 includes a submission that the religious exemption in the Standard is not consistent with religious beliefs generally. The Respondent submitted that Ms Cabrera Moscoso never raised any issue of religious exemption in her employment.
The Respondent in closing said it relied on its written submissions. The Respondent said in response to the Applicant’s submissions concerning the risk assessment, that even it was not perfect it was conducted by qualified persons and the Respondent was entitled to reply on it.
The Respondent also said in closing that it did consult with employees and in reference to the correspondence of 4 January 2022 from the Applicant and the Respondent’s response of 6 January 2022 and the Applicant’s response to that of 10 January 2022, that it did not disclose in any way that the Applicant was dissatisfied with the response of the Respondent on 6 January 2022. Any further request for more information from the Applicant did not occur until after the time for compliance with the policy had passed on 31 January 2022.
In relation to the submissions of the Applicant concerning the issue of succession planning arrangements if the Applicant was not vaccinated, if there was issue with that it should have been put to one of the witnesses for the Applicant, however if the Applicant had have decided to get vaccinated there would have been no need for succession planning.
In relation to the working from home submission, the Respondent said it was not an ideal or efficient arrangement on an ongoing basis, and because the Applicant had a senior role and because her role is more efficiently performed from the office it was reasonable for the Respondent to require it be performed in the office.
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.[6]
(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”[7] and should not be “capricious, fanciful, spiteful or prejudiced.”[8] 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.”[9]
I have considered all of the evidence in the particular facts in this case. I have taken into account the submissions in relation to the risk assessment, and extent of consultation undertaken as well as the submissions that the Applicant could have worked from home.
Having weighed all of the evidence, I am satisfied that the Respondent’s direction that the Applicant be vaccinated or provide a valid medical exemption by 31 January 2022 was a lawful and reasonable direction with which the Applicant was required to comply.
It is uncontentious that the Applicant had indicated that she was not vaccinated, nor did she have a medical exemption. During the conversation on 9 February 2022, the Applicant again confirmed that she was not vaccinated 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.
Despite the criticisms the Applicant had levelled at the risk assessment, I am satisfied the Respondent was entitled to rely on it as a basis to implement the policy given the risks associated with COVID 19.
I have also considered the competing contentions regarding whether the Respondent should have allowed the Applicant to perform her role from home. Whilst I accept that many of the functions that the Applicant was required to fulfill in her role could have been performed using the internet, the role and supervisory responsibility and the requirement to participate in meetings in the workplace lead to the conclusion that the Respondent was entitled to maintain the requirement that the role be performed in the office.
Whilst the Applicant said nothing more at the hearing than what had been put in the material in relation to the issue of the Privacy Act, in the present case, the evidence does not support a conclusion that the Applicant was placed under undue pressure to undergo vaccination, and the decision was the Applicant’s to make. This conclusion is consistent with the Full Bench decision in Mr Arthur Coal.
In light of the clear position of the Applicant that she would not be vaccinated, 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 Respondents policy – constituted a valid reason for dismissal.
The Applicant’s contract of employment required that she comply with the Respondent’s policies. The Applicant has failed to do so.
The Applicant also submitted that the Respondent had not afforded the Applicant sufficient time and its consultation processes were flawed and predetermined. On the weight of the evidence I do not agree with this submission. The evidence discloses a consultation process did occur and the Applicant was afforded appropriate opportunities to be informed before making a decision herself as to whether she intended to be vaccinated or not.
The brief submissions made by the Applicant in regard to the Australian Constitution and Disability & Discrimination Act 1992 were not developed in the course of the hearing. There is no basis to regard either submission as undermining a conclusion that the Respondent had a valid reason for dismissal. On the basis of all of the conclusions set out above, I am satisfied that the Respondent had a valid reason for dismissal.
(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 policy, that if she was not vaccinated by 31 January 2022, her employment may be terminated.
The Applicant had and took the opportunity to respond on a couple of occasions to indicate her opposition to the introduction and enforcement of the policy. 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. Ms Cabrera Moscoso was provided the opportunity to have a support person present and Mr Cunningham acknowledges that he attended meetings with Ms Cabrera Moscoso as her 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 large employer with a well-resourced human resources department. It undertook an extensive process to provide its staff with information about the policy which was to apply to its operations. It consulted with the Applicant in respect of this, 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
The Applicant’s period of employment with the Respondent was not particularly long, and the Applicant advised in the course of the hearing that she had obtained other employment.
The Applicant’s partner made a closing oral submission on the Applicant’s behalf that she did not press for a remedy of reinstatement or compensation but instead a finding that the dismissal was unfair. Whilst I appreciate the Applicant was self-represented and therefore did not have the assistance of a lawyer or paid agent to properly appreciate what may flow from making such a submission, the very fact of the submission having been made during closing raises a question as to whether it would have been necessary to consider the substantive merits of the matter at all had the submission been made at an earlier stage.
CONCLUSION
Having weighed each of the matters that I am required to consider, I am satisfied based on the evidence provided that the Respondent had a valid reason for terminating the Applicant’s employment and that it did so in accordance with a fair a 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.
COMMISSIONER
Appearances:
Ms Natalia Cabrera Moscoso on her own behalf.
Mr Evan Mentiplay of Johnson Winter & Slattery for the Respondent.
Hearing details:
2022
Brisbane (via Microsoft Teams Video)
23 June
[1] Exhibit 2.
[2] Exhibit 1.
[3] Exhibit 3.
[4] Exhibit 4.
[5] CFMMEU v Mt Arthur Coal [2021] FWCFB 6059.
[6] 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].
[7] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[8] Ibid.
[9] CFMMEU v Mt Arthur Coal [2021] FWCFB 6059 [259].
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