Nnamdi Elege v Barwon Health - [2022] FWC 1082

[2022] FWC 1082

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Nnamdi Elege
v

Barwon Health

(U2021/10287)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 16 MAY 2022

Application for an unfair dismissal remedy; vaccination for COVID-19; direction to provide evidence of vaccination status; inherent requirements of the position; whether valid reason for dismissal; whether dismissal unfair; application dismissed

Barwon Health is a public sector entity established under the Health Services Act 1988 (Vic). It operates public health services ranging from emergency and acute services to mental health, primary care, community services, aged care, subacute and rehabilitation services. These health services are delivered across multiple regional locations in Geelong and Southwest Victoria. Barwon Health employs in the order of 9000 staff engaged in various clinical and non-clinical roles.[1]

Mr Nnamdi Elege was, until his dismissal on 12 November 2021, employed by Barwon Health as a maintenance planner. Mr Elege has applied for an unfair dismissal remedy under the Fair Work Act 2009 (Act) alleging that his dismissal was unfair. He began his employment with Barwon Health as a casual employee in November 2016 and later was appointed to his position as a full-time maintenance planner on 2 July 2018.[2]

At the time of his dismissal, Barwon Health advised Mr Elege that he was dismissed because he had failed to follow a reasonable and lawful direction which constituted serious misconduct.[3] The reasonable and lawful direction with which Mr Elege was said not to have complied, related to his status as a person not vaccinated for COVID-19. Barwon Health submits that in addition to the reason for dismissal communicated to Mr Elege at the time of his dismissal, there was a further valid reason for the dismissal related to his capacity – that it was an inherent requirement of Mr Elege’s position that he be able to attend Barwon Health’s premises and perform work; he was unable to perform his work adequately from home; and because of his unvaccinated status, Barwon Health could not permit him to attend the workplace to perform work - so his inability to perform the inherent requirements of his role was a valid reason for dismissal.

I have concluded that Mr Elege’s dismissal by Barwon Health was not unfair and that his application for an unfair dismissal remedy should be dismissed. My reasons for that conclusion follow.

Except as indicated below, the relevant factual matters are not in dispute. At all material times following the declaration of a state of emergency in Victoria pursuant to s 198 of the Public Health and Wellbeing Act 2008 (Vic) (PH&W Act), the Chief Health Officer (CHO) in and for the State of Victoria was empowered to issue any directions that he or she “considered reasonably necessary to protect public health” in accordance with s 200(1)(d) of the PH&W Act. Several directions were made by the CHO requiring that particular classes of operators and employers in identified settings obtain information about their workers’ vaccination against COVID-19 status. The operative directions also prohibited these…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nnamdi Elege v Barwon Health

Details

AGLC: Nnamdi Elege v Barwon Health [2022] FWC 1082
Case: [2022] FWC 1082
Decision Date: 16 MAY 2022

CaseChat Overview and Summary

The case before the Court was an application for an unfair dismissal remedy brought by Mr Nnamdi Elege against Barwon Health. Mr Elege was employed by Barwon Health as a maintenance planner until his dismissal on 12 November 2021. The dismissal was on the basis of his failure to follow a lawful and reasonable direction which constituted serious misconduct, namely, a direction that he provide evidence of his vaccination status for COVID-19. The Fair Work Commission was required to determine whether Mr Elege's dismissal was unfair and whether an unfair dismissal remedy should be granted. The Court held that Mr Elege's dismissal was not unfair and dismissed the application. The Court held that Barwon Health had a valid reason to dismiss Mr Elege. The reason was that as an inherent requirement of Mr Elege's role, he was required to be able to attend Barwon Health's premises and perform work, but because of his unvaccinated status, Barwon Health could not permit him to attend the workplace to perform work, so his inability to perform the inherent requirements of his role was a valid reason for dismissal. The Court also held that Mr Elege was notified of the valid reason for his dismissal and given an opportunity to respond to the reason. The Court also held that there was no unreasonable refusal by Barwon Health to allow Mr Elege to have a support person present to assist at any discussions relating to dismissal.

Orders