Nicholas Swire v Barro Group Pty Limited
[2022] FWC 1103
•10 MAY 2022
| [2022] FWC 1103 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Nicholas Swire
v
Barro Group Pty Limited
(U2022/53)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 10 MAY 2022 |
Unfair dismissal application – applicant directed to provide first and second dose vaccination information by 15 October and 26 November 2021 – applicant granted leave until 10 January 2022 – deadline for second dose information missed – applicant directed to confirm intention to receive vaccine by 9 December 2021 – direction ignored – vaccination certificate provided after dismissal – valid reason for dismissal – dismissal not unfair
This decision concerns an application for an unfair dismissal remedy by Mr Nicholas Swire under s 394 of the Fair Work Act 2009 (Act). Mr Swire was dismissed from his employment with Barro Group Pty Limited (company) on 15 December 2021 after he failed to provide the company with information about his vaccination status. On 11 October 2021, Mr Swire had been directed to provide evidence that he had received a first dose of vaccine by 15 October 2021 and a second dose by 26 November 2021. On 14 October 2021, he was stood down because he had not provided evidence of receiving his first dose. On 22 October 2021 Mr Swire was granted leave until 10 January 2022. When Mr Swire failed to provide evidence of his second dose of vaccine by 26 November 2021, the company wrote to him and asked that he show cause by 30 November 2021 why he should not be dismissed. Mr Swire did not respond. On 8 December 2021, the general manager spoke with Mr Swire on the telephone and directed him to advise by close of business on 9 December 2021 whether he was going to get vaccinated. Mr Swire did not do so. He was dismissed on 15 December 2021. Mr Swire received his first dose of vaccine on that day, and on 16 December 2021 sent the company his vaccination certificate. He asked the company to reemploy him. It did not do so.
Mr Swire contends that his dismissal was unfair because he had been granted leave until 10 January 2022 and until that time was not required to be at work. He says that the company had in effect represented to him that he did not need to provide the vaccination information until he returned from leave. He contends that the reason for dismissal cited in the termination letter, namely that he was unable to perform his job, was misconceived, and that in any event his dismissal was unfair because he became vaccinated before he was required to return to work and was not notified of, or given a chance to respond to, the reason for his dismissal.
The company contends that Mr Swire failed to comply with a lawful and reasonable direction to provide evidence that he had received his second dose of vaccine by 26 November 2021, and that the grant of leave until January 2022 did not affect that direction. It submits that Mr Swire failed to respond to the show cause letter of 26 November 2021 and ignored the direction of 8 December 2021 that he confirm his vaccination intentions by the next day. The company contends that it treated Mr Swire fairly by allowing him to take leave at a time when leave would not usually be granted and that in all the circumstances the dismissal was not unfair.
Section 396 requires that I decide four matters before considering the merits of the application. I am satisfied of the following. First, the application was made within the 21-day period required by s 394(2). Secondly, Mr Swire was a person protected from unfair dismissal. Thirdly, the dismissal was not a genuine redundancy. Fourthly, the company is not a small business employer, and the Small Business Fair Dismissal Code is therefore inapplicable.
Background
On 4 October 2021, the company’s director, Mr Raymond Barro, wrote to all employees, including Mr Swire, advising that the Victorian government had announced its intention to introduce mandatory vaccination requirements and that workers who could not work from home would need to receive a first dose of vaccine by 15 October 2021 and a second dose by 26 November 2021, or provide an approved medical exemption. Earlier dates applied to workers in the construction sector. The letter stated that all employees were required to provide the company with evidence of their COVID-19 vaccination status or exemption and that employees who could not do so would not be permitted to attend work.
On 7 October 2021, the COVID-19 Mandatory Vaccination (Workers) Directions (the Directions) took effect. They required the company to collect vaccination information about its workers and to ensure that unvaccinated workers did not work outside their ordinary place of residence from prescribed dates.
On 11 October 2021, Mr Barro wrote to all employees, including Mr Swire, and stated that the Directions had been issued and that all workers were required to complete a first dose of vaccination by 15 October 2021 (or have a booking to receive it by 22 October 2021) and to receive a second dose by 26 November 2021, or alternatively provide an approved medical exemption certificate. Mr Barro’s letter further stated: ‘We require all employees to provide the following evidence to their Manager or the HSEQ team by the dates specified above’. The required items of evidence included: a Medicare immunisation summary for the first dose of vaccination; a booking confirmation for the first dose by 22 October 2021; a booking confirmation for the second dose to occur by 26 November 2021; a vaccination certificate or letter from a medical practitioner confirming vaccination status; a certificate of immunisation; or a medical certificate outlining any exemption. The letter stated that employees who did not provide proof of vaccination status would not be permitted to attend work after the dates indicated and would be stood down.
On 14 October 2021, the company’s general manager, Mr Darren Dean, wrote to Mr Swire and advised him that he would be stood down from the following day because he had not provided evidence of his first dose of vaccine, noting that Mr Swire’s role as yard foreman required him to be able to attend the workplace. Mr Dean’s letter stated that during the stand down Mr Swire could request to take annual or long service leave.
On 15 October 2021, Mr Swire sent to Mr Dean an email attaching a booking confirmation for an appointment to receive his first COVID-19 vaccine on 21 October 2021. However, on 21 October 2021, Mr Swire told Mr Dean that he was not going to attend his vaccination appointment that day because he was unsure about the vaccine. He asked Mr Dean whether he could take leave, and Mr Dean said that he could. That day, Mr Dean wrote again to Mr Swire, in terms essentially identical to the letter of 14 October 2021, but confirming that his stand down would continue from 22 October 2021 because Mr Swire had not provided proof of vaccination.
Later on 21 October 2021, Mr Swire applied for annual and long service leave running until 10 January 2022. Mr Dean said in his evidence that ordinarily he would not grant the taking of leave at this time of year because the lead up to Christmas is the company’s busiest period, however the company wanted to give employees who had not been vaccinated additional time to consider their position and either become vaccinated or tell the company that they did not want to become vaccinated.
Mr Dean gave evidence that, because the due date for employees to be fully vaccinated (26 November 2021) was approaching, he telephoned Mr Swire several times in November 2021 to ask him about his vaccination status, but Mr Swire did not answer or return his calls. Mr Swire said in his witness statement that he received several missed calls from Mr Dean. However, in his oral evidence Mr Swire said that in fact he had not received any missed calls from Mr Dean during November.
On 26 November 2021, Mr Dean sent Mr Swire a letter by email, in which he stated that Mr Swire had previously decided not to receive a dose of COVID-19 vaccine, and had therefore not been permitted to attend work; that he had been directed to provide vaccination information but had failed to do so; that he had been granted leave in order to take time to make an informed decision about whether to get vaccinated; and that Mr Swire had recently confirmed that he would not be getting vaccinated. (In cross-examination, Mr Dean acknowledged that there had been no ‘recent’ statement from Mr Swire that he would not get vaccinated; he was referring to Mr Swire’s decision to cancel his vaccination appointment in October.) The letter stated that the company was considering terminating Mr Swire’s employment and that before any final decision was made, Mr Swire was to show cause why his employment should not be terminated. A response was to be given by 4.00pm on 30 November 2021. None was provided. Mr Swire’s evidence was that he did not see the letter because he was not checking his emails.
On 7 December 2021, Mr Dean telephoned Mr Swire, but there was no answer.
On 8 December 2021, Mr Dean telephoned Mr Swire again. This time, Mr Swire answered. Mr Dean said in his witness statement that he and Mr Swire had a conversation to the following effect:
“Darren: ‘Hi mate, I’m just following up with you, you’ll need to provide [proof] of vaccination before you come back to work, have you been vaccinated?’.
Nick: ‘No I haven’t.’
Darren: ‘Did you receive the email we sent on 26 November?’
Nick: ‘No I haven’t seen it, I’m having trouble accessing work emails through my phone.’
Darren: ‘ok, I’ll give you the benefit of the doubt that you didn’t receive it. I’ll give you until COB tomorrow to tell me whether you are going to be vaccinated and when.’
Nick: ‘I thought I had until 10 Jan?’
Darren: ‘No mate, we need to know what your answer is now, we can’t wait any longer. Head office is chasing me up about this.’
Nick: ‘oh alright’”
After the call, Mr Dean resent the letter of 26 November 2021 to Mr Swire.
Mr Swire’s evidence of this conversation differed from that of Mr Dean. Mr Swire said that he did not recall Mr Dean telling him that he needed to respond to him by close of business the following day. He also said that he told Mr Dean that he would be vaccinated by the time he returned to work. Mr Dean denies this.
Mr Dean’s evidence was that, because he had not heard back from Mr Swire by 9 December 2021, and head office was asking him about Mr Swire’s response, he called Mr Swire twice on 13 December 2021, at 11.14am and at 1.40pm, but there was no answer. In his witness statement, Mr Swire said that he missed these calls, but did not say that he had called Mr Dean back. However, in his oral evidence, Mr Swire said that he did return Mr Dean’s call but could not remember what was said. Mr Swire attached to his witness statement a printout of his call log of 13 December 2021, which shows an outgoing call on 13 December 2021 at 1.57pm lasting one minute and 35 seconds. The call log does not identify what number Mr Swire called. Mr Dean said that he had no recollection of receiving a telephone call from Mr Swire that day.
On 15 December 2021, Mr Dean sent Mr Swire a letter by email, in which he stated that Mr Swire’s employment was terminated effective that day, and that he would be paid four weeks in lieu of notice. The letter stated that the company had not received evidence that Mr Swire was fully vaccinated, that he was therefore unable to undertake an inherent requirement of his role as yard foreman, which was to attend the workplace, and that the company had no alternative but to terminate Mr Swire’s employment.
On the evening of 15 December 2021, Mr Swire telephoned Mr Dean and told him that he had been vaccinated earlier in the day. Mr Dean’s evidence was that he asked Mr Swire why he had not called to tell him that this was what he was going to do, and that Mr Swire had mumbled and said that he did not know. Again, Mr Swire’s evidence differed from that of Mr Dean. Mr Swire’s evidence was that he asked Mr Dean why his employment had been terminated given that he had confirmed that he would become fully vaccinated prior to returning to work. Mr Dean said that Mr Swire could take the matter up with the company’s general manager for health and safety, Ms Hamley, which he did. On 16 December 2021, Mr Swire sent to the company a copy of his MyGov vaccine certificate. The company did not reemploy Mr Swire.
Submissions of the parties
Mr Swire contended that his dismissal was unfair because the company did not have a valid reason to dismiss him. He said that contrary to the company’s assertion in the termination letter, he was not unable to perform the inherent requirements of his position. Rather, he had been granted leave until 10 January 2022, and until that time he was not required to be at work. Mr Swire submitted that by 10 January 2022, he had received both doses of vaccine, and that he would have been perfectly able to attend the workplace and perform his full range of duties as a yard foreman. He said that the company could not purport unilaterally to bring the agreed period of leave to an end early and suggest that because he was not vaccinated by that point, he was unable to perform the requirements of his job in the future.
Mr Swire submitted that he had planned to become vaccinated by the end of his period of leave, that the company had represented to him that this was acceptable, and that he had confirmed to Mr Dean on 8 December 2021 that he would become vaccinated. Mr Swire submitted that despite this, the company proceeded to dismiss him before the end of his leave, wrongly citing an inability to perform the requirements of the role. Any doubt about his fitness for duty was removed by the provision of his vaccination certificate to the company, albeit after the dismissal. The company then refused to reverse its unjust decision to dismiss him. Mr Swire further submitted that he was not notified or given a chance to respond to any reason for dismissal that might be considered valid.
The company contended that it had a valid reason to dismiss Mr Swire that was constituted by his failure to comply with a lawful and reasonable direction to provide evidence that he had received his second dose of vaccine by 26 November 2021. This direction had not been displaced by the grant of leave. Mr Swire had also ignored the show cause letter of 26 November 2021, and Mr Dean’s direction on 8 December 2021 that he advise by the following day whether he would get vaccinated and if so when. The company submitted that it had acted reasonably in granting Mr Swire leave when it could have dismissed him in mid-October. But instead of complying with its directions, Mr Swire had been evasive and ignored the company’s efforts to obtain the required information. It submitted that in all the circumstances the dismissal was not unfair.
Findings
I make the following factual findings. First, I accept Mr Dean’s evidence that he telephoned Mr Swire several times in November 2021 to ask him about his vaccination status, and that Mr Swire did not answer or return his calls. Mr Dean had a clear recollection about making these calls, as well as a clear reason for making them. Mr Swire gave conflicting evidence about the missed calls. I prefer the version that accords with Mr Dean’s evidence.
Secondly, I prefer Mr Dean’s evidence about his telephone conversation with Mr Swire on Wednesday 8 December 2021. I find that Mr Dean told Mr Swire that he had until the close of business the following day, Thursday 9 December 2021, to advise the company whether he was going to get vaccinated, and if so, when. I accept the account of the dialogue given by Mr Dean in his witness statement. In cross-examination, it was suggested to Mr Dean that when Mr Swire said ‘alright’ or ‘OK’, it was possible that he was referring to an intention to get vaccinated. Mr Dean agreed that this was possible. I asked Mr Dean to reread the account in his witness statement of the telephone discussion on 8 December 2021, and to explain what he had understood Mr Swire to mean when he said ‘alright’. Mr Dean said that he believed this meant that Mr Swire had understood that he needed to advise by the following day whether he would get vaccinated and if so by when. In my assessment, this was the objective meaning of Mr Swire’s response. In the context of the discussion that Mr Dean had with Mr Swire (see [14] above), the word ‘alright’ could have no other logical, objective meaning. While it might be possible that Mr Swire meant something else, this is highly improbable.
Mr Dean’s evidence about the conversation of 8 December 2021 was clear and convincing. He said that he remembered it vividly because it was important, and that he was standing in the car park talking on his mobile phone at the time. Mr Dean’s evidence about the discussion was consistent with his evidence that he had tried on a number of occasions in November to contact Mr Swire to ascertain his intentions. In this regard, as Mr Dean explained in his evidence, he needed to understand whether Mr Swire’s role would have to be filled. Head office was also chasing him about Mr Swire’s vaccination status. Further, Mr Dean’s evidence about the discussion on 8 December 2021 is consistent with his evidence that, having not heard from him on 9 December 2021, he called Mr Swire again on Monday 13 December 2021 to follow up on his direction that Mr Swire provide a final answer by close of business on 9 December 2021.
Next, I find that Mr Swire did not return Mr Dean’s calls on 13 December 2021. But if he did so, nothing of any significance occurred, because Mr Swire cannot remember what was said during the call, and Mr Dean has no recollection of it at all.
Finally, I prefer Mr Dean’s account of the telephone conversation on 15 December 2021. I accept Mr Dean’s evidence that before the telephone call on 15 December 2021, he did not know that Mr Swire had any intention of becoming vaccinated. I find that Mr Dean asked Mr Swire why he had not called to tell him that this was what he was going to do, and that Mr Swire mumbled and said that he did not know.
I did not find Mr Swire to be an impressive witness. He gave inconsistent evidence about various matters. One example is his evidence about the missed calls from Mr Dean in November 2021, referred to earlier. Another example is that Mr Swire said in his witness statement and in oral evidence that when he commenced leave on 22 October 2021, he already intended to become vaccinated prior to returning from leave in January 2022; but in cross-examination he admitted that this was not the case, and that he was only considering whether he would get vaccinated. A third example is that in his witness statement, Mr Swire stated that after his dismissal he immediately started looking for jobs; but in his oral evidence he said that he applied for jobs only in mid-February and early March 2022. I found Mr Dean to be a credible witness.
Consideration
For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable (s 385(b)). Section 387 requires the Commission to take into account particular matters in considering whether it is so satisfied.
The Commission must consider whether there was a valid reason for the dismissal related to the person’s capacity or conduct (s 387(a)). In my opinion the company had a valid reason to dismiss Mr Swire because he had failed to follow lawful and reasonable directions. First, the letter of 11 October 2021 required Mr Swire to provide the company with proof of his vaccination status by the dates indicated in the letter, namely 15 October 2021 for the first dose (or a booking by 22 October 2021), and a completed second dose by 26 November 2021. Technically speaking, Mr Swire met the first deadline. He provided evidence of a booking to receive his first dose of vaccine by 22 October 2021, but then cancelled it. To the extent that the cancellation was contrary to the spirit, if not the wording, of the direction to provide evidence relating to the first dose, the company evidently did not disapprove. Mr Swire was stood down, and then granted leave. But this did not mean that the company had waived the requirement that Mr Swire meet the second deadline of providing proof of receiving a second dose by 26 November 2021. The effect of the government Directions was that Mr Swire could not attend the workplace until he was vaccinated. The Directions did not require him to be vaccinated by 26 November 2021 if he was not attending work. However, the company had required him to provide evidence of his vaccination status by 26 November 2021. The company did not tell Mr Swire that because he was on leave, he no longer needed to provide evidence that he was fully vaccinated by 26 November 2021. It did not tell him that it was sufficient to provide such evidence by his return to work in January 2022. The company’s reason for granting Mr Swire leave was to allow him time to consider his position, but that did not mean that the requirement to provide evidence of his second dose by 26 November 2021 was lifted or put in abeyance until 10 January 2022. At no point did the company make any statement or representation to this effect.
Even if I had concluded that the grant of leave to Mr Swire until 10 January 2022 had waived or rendered unclear the direction that he provide the company with evidence of receiving a second dose of vaccine by 26 November 2021, I consider that by 26 November 2021, when the letter of that date was sent to Mr Swire, the company was clear about what it now required of Mr Swire. The letter stated that Mr Swire had been directed to provide vaccination information by particular dates, that Mr Swire had disobeyed the direction, and that he now had until 30 November 2021 to show cause why his employment should not be terminated. The letter was drawn to Mr Swire’s attention during the telephone discussion with Mr Dean on 8 December 2021 and was resent to him. Mr Swire did not respond to it.
But even putting the letter of 26 November 2021 to one side, on 8 December 2021 Mr Dean gave Mr Swire a clear direction that he had until the close of business the following day to tell the company whether he would get vaccinated and if so when. Mr Swire defied this direction. He did not contact the company by the required time.
The directions in the letter of 11 October 2021, and the direction in the telephone call of 8 December 2021, were lawful and reasonable. I will focus on the direction of 8 December 2021. In relation to the contractual obligation of an employee to follow the lawful and reasonable direction of the employer, and the meaning of ‘lawful’ in this context, I adopt my remarks in Roman v Mercy Hospitals Victoria Ltd[2022] FWC 711 at [30]. The direction of 8 December 2021 was lawful because it was within the scope of Mr Swire’s contract of employment. It required Mr Swire to provide evidence about his ability to do his job. An employer is entitled to know whether its employees will in the future be able to do the job they have been contracted to perform. The fact that from 22 October 2021 until 10 January 2022 Mr Swire was on authorised leave is beside the point. The company wanted to know whether Mr Swire was going to be vaccinated, because if not it would have to find someone else to do Mr Swire’s job. Mr Dean’s direction on 8 December 2021 was entirely reasonable. Mr Swire had already been given a generous period to reflect on the question of whether he would get vaccinated, when the company might simply have terminated his employment in October 2021.
I reject the suggestion in Mr Swire’s contentions that he had no obligation to return calls or engage with the company’s efforts to contact him during his period of leave. He remained the company’s employee. He owed the company a duty of good faith. By failing to engage with the company’s efforts to contact him, he acted contrary to this duty. In my view, Mr Swire wrongly sought to hide behind his leave in order to avoid telling the company whether he would get vaccinated because he remained unsure of what he was going to do.
I agree with Mr Swire that the reason for dismissal referred to in the termination letter – inability to perform the job – was not a valid reason for dismissal at that time, because Mr Swire was on leave and did not need to be at work. But there was another valid reason for dismissal, as I have explained above. It is well-established that a valid reason for dismissal need not be the one that was relied on by the company at the time of dismissal. The Commission must decide for itself whether there was a valid reason for the employer to dismiss the employee. In this case, there was such a reason. Mr Swire refused to comply with lawful and reasonable directions.
The Act requires the Commission to take into account whether an employee has been notified of a valid reason for dismissal and whether he or she was afforded an opportunity to respond to any reason related to capacity or conduct (ss 387(b) and (c)). Mr Swire was notified of the valid reason for dismissal constituted by his refusal to follow the direction of 11 October 2021. This was adverted to in the letter of 26 November 2021, which noted that Mr Swire had wilfully disobeyed the company’s direction by failing to provide the necessary vaccination information. Mr Swire had an opportunity to respond to this allegation but chose not to do so.
Mr Swire was not notified of, or afforded an opportunity to respond to, the valid reason for dismissal constituted by his refusal to follow the direction of 8 December 2021. However, I consider that this carries little weight in the analysis of whether the dismissal was unfair. This is because Mr Swire was clearly told on 8 December 2021 what was expected of him. He was not told that he would be dismissed if he did not comply with that particular direction. But in my view, it should have been obvious that the direction was important. Mr Swire should have known (if he did not actually know) that by defying his employer’s direction, he was putting his employment at risk. Again, the letter of 26 November 2021, which was resent to Mr Swire on 8 December 2021, stated clearly that the company was considering terminating his employment. I consider that providing Mr Swire with an opportunity to respond to the allegation that he had failed to follow the lawful and reasonable direction of 8 December 2021 would not have made any difference to the outcome.
The Commission is required to consider whether an employer unreasonably refused to allow the employee to have a support person present to assist in discussions relating to the dismissal (s 387(d)). There was no such refusal in this case. If a dismissal relates to unsatisfactory performance, s 387(e) requires the Commission to consider whether the person has been warned about that unsatisfactory performance prior to dismissal. However Mr Swire’s employment was not terminated for unsatisfactory performance. The Commission is required to consider the degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal (ss 387(f) and (g)). In my view, these matters carry no weight in the present case.
The Commission is required to take into account any other matters that it considers relevant (s 387(h)). Mr Swire submitted that the dismissal was harsh, because it had resulted in the loss of his only income and a range of emotional and psychological symptoms, including stress and anxiety, in circumstances where he had 13 years of unblemished service. I take these matters into account, but I do not consider that they render the dismissal harsh or otherwise unfair. Mr Swire submitted that the decision to dismiss him on 15 December 2021 was disproportionate to any failure to follow a lawful and reasonable direction. I do not consider that dismissal was a disproportionate response. Refusing to comply with a lawful and reasonable direction is a serious matter.
Mr Swire said that his dismissal during a pandemic would limit his ability to find work. I reject this submission. Unemployment is currently at a very low 4%. Mr Swire said that being dismissed by email rendered the termination harsh. I reject this too. It was a reasonable means to effectuate dismissal given that Mr Swire had not bothered to respond to the show cause letter of 26 November 2021 or to return Mr Dean’s various calls.
I reject Mr Swire’s contention that the company’s failure to reemploy him after he had submitted his vaccination certificate on 16 December 2021 supports his contention that his dismissal was unfair. Strictly speaking, I consider the events that occurred after the dismissal to be irrelevant to whether the dismissal was unfair. A claim under s 394 of the Act concerns an alleged unfair dismissal, not an alleged unfair refusal to reemploy. But even taking these subsequent matters into account, I see nothing harsh, unjust or unreasonable in the company’s actions. I note that Mr Swire obtained his first dose of vaccine before his dismissal took effect (he received the vaccination in the morning and read his termination letter in the evening). But he did not tell the company about his vaccination until after the dismissal, and well after the 9 December 2021 deadline by which he had been directed to confirm his intentions.
I do not accept Mr Swire’s contention that his dismissal was unfair because he was simply confused about the company’s requirements of him and thought that he was not required to be fully vaccinated until he returned to work on 10 January 2022. In my view, Mr Swire knew what the company required, and was evasive because he had not made up his mind about whether to get vaccinated. He decided too late to get vaccinated, after having ignored the company one too many times. But if in fact Mr Swire was confused, it was because he had not paid due attention to the company’s requirements. The letter of 11 October 2021 was clear. So was the letter of 26 November 2021. Mr Dean’s direction to Mr Swire on 8 December 2021 was also clear, and very simple – Mr Swire had to tell him by close of business the following day whether he would get vaccinated and if so when.
I reject Mr Swire’s contention that because his position was later filled by another company employee, there was nothing compelling the company to make a decision about his future. The company does not need to justify its desire to plan for the future. It wanted to know whether Mr Swire would be able to do his job. That meant that it needed to know whether he would be vaccinated. It was not unfair of the company not to give Mr Swire an even longer period to meet its requirements. The dismissal was not ‘premature’, as Mr Swire contended. Nor was it unfair of the company to decline to rehire Mr Swire after he produced his vaccination certificate. By that stage, Mr Swire had failed to follow the company’s directions.
Finally, even if I had concluded that Mr Swire’s dismissal was unfair, I would not have awarded a remedy. I would have found reinstatement to be inappropriate, because Mr Swire does not seek it. And I would have declined to award compensation, because I am not persuaded that Mr Swire took appropriate steps to mitigate his loss. Mr Swire said that since his dismissal he had applied for about five jobs, but not until mid-February and early March 2022. His mitigation efforts were confined to a mere few weeks. Mr Swire’s evidence in re-examination that employers were ‘not hiring’ in December and January was unexplained and unconvincing. An order for compensation would have been inappropriate, and I would not have made one.
Conclusion
Having regard to s 387 of the Act, I consider that Mr Swire’s dismissal was not harsh, nor was it unjust or unreasonable. It was not unfair. The application is dismissed.
DEPUTY PRESIDENT
Appearances:
M. Kriewaldt for the applicant
I. Dixon for the respondent
Hearing details:
2022
Melbourne
5 May
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