Raymond Pham v State of Victoria (Department of Families, Fairness and Housing)
[2022] FWC 2147
•12 AUGUST 2022
| [2022] FWC 2147 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Raymond Pham
v
State Of Victoria (Department Of Families, Fairness And Housing)
(U2022/3025)
| COMMISSIONER O’NEILL | MELBOURNE, 12 AUGUST 2022 |
Application for an unfair dismissal remedy - public health order requiring vaccination against COVID-19 – valid reason for dismissal – dismissal not unfair.
Introduction
This decision concerns an application for an unfair dismissal remedy made by Mr Raymond Pham against the Department of Families, Fairness and Housing (the Department). Mr Pham’s employment was terminated effective 18 February 2022 on the basis that he was no longer able to perform the inherent requirements of his role. Mr Pham contends, and the Department denies, that the dismissal was harsh, unjust, and unreasonable.
After hearing from the parties, I determined that conducting a hearing was the most effective and efficient way to resolve the matter and I granted permission for the Department to be legally represented.
At the hearing on 17 June 2022, Mr Pham represented himself and gave evidence in support of his case, as did Ms Barasits, a former employee of the Department. Mr Philipson (Director, Child Protection) gave evidence for the Department.
For the reasons below, I have found that the Applicant’s dismissal was not unfair.
Relevant facts and findings
The facts in this case are mostly uncontroversial: the disagreement between the parties is mostly about the actions taken by the Department in an agreed factual context. I found each of the witnesses were wholly credible, and I consider that they gave honest and fulsome evidence. Mr Pham was measured, thorough and readily acknowledged various matters put to him by counsel for the Department. Similarly, Mr Philipson’s evidence was considered and measured.
Mr Pham is 43 years old and is the full-time carer to his two children, both of whom have special needs. He commenced employment with the Department on 28 May 2003. Whilst he has always worked within the Child Protection team, there is a disagreement as to his role at the time of dismissal. The Applicant contends his substantive position was an Advanced Child Protection Practitioner (ACPP) within the Statewide Services Intake Team. The Department contends that at the time of his dismissal whilst he was assigned to the Intake Team, his position was as an ACPP at the Dandenong Metropolitan Office at 122 Thomas Street. Ultimately, as will become clear later in this decision, whether Mr Pham was at the time of his dismissal an ACPP specifically in the Intake Team or an ACPP more broadly, does not change my determination.
Both parties agree that in December 2008, the Applicant was reassigned from his duties as a ‘case manager’ to that of an ‘intake worker’ in the Statewide Services Child Protection Intake Team. The document setting out details of this staff movement records that the “Work Location” was “122 Thomas Street Cheltenham”.[1] In evidence, both the Applicant and Mr Philipson agreed that this was a reference to the address of the Department’s office in Dandenong. After this agreed reassignment, whilst the Applicant’s classification grade and level did not change, his daily duties did. When undertaking intake work, Child Protection Practitioners (CPPs) gather information from the person reporting protective concerns about a child, and conduct initial risk assessments to determine what action, if any, is required. Reports are mostly made by telephone, but they can also be made in writing and in person at certain Department offices, including the Dandenong office.
Mr Pham remained in this role undertaking intake work on a part-time basis until his employment was terminated on 18 February 2022. At the time he was dismissed, the Applicant had no approved flexible working agreement in place that permitted him to work wholly from home.[2]
From 15 October 2021, under the COVID-19 Mandatory Vaccination (Workers) Directions (Directions) issued by the Victorian Chief Health Officer, unless a valid medical exemption applied, the Department was not permitted to allow an unvaccinated employee to enter its premises. The Applicant accepts that the Directions were valid and applied to his employment.[3]
On 13 October 2021, the Department Secretary emailed all staff confirming the Directions and advising that employees were required to fill in a COVID-19 vaccination form by 15 October 2021.
On 14 October 2021, the Department also introduced a COVID-19 Vaccinations Policy. The Policy provided guidance to employees about the application of the Directions in the Department, such as setting out processes to deal with employees who are excepted persons or refuse to comply with vaccination requirements.[4] The policy was emailed to all staff on 14 October 2021 and staff were invited to provide feedback on the implementation of the policy by 15 October 2021.
In addition to emails sent to all staff about the requirements under the Directions, the Department emailed the Applicant on 20 October 2021. The email advised that he had been identified as a staff member required to attend a Department site and/or work outside his home and was therefore subject to the Directions. He was advised that if he did not provide evidence of a first COVID-19 vaccination dose by 22 October, he would not be able to work outside his primary place of residence and that this may have significant impacts on his employment including possible termination of his employment.
The Applicant’s response of 22 October 2021[5] sought information on why he was considered an ‘authorised worker’ under the Directions and challenged the decision that he was required to attend a Department site, including on the basis that he had not been involved in that decision.
The Department, on 22 October 2021, sent a further email outlining the Applicant’s options: that he could provide the required information concerning his vaccination status, take a period of two weeks paid or unpaid leave to consider his position or, should he fail to choose either of these options, his employment would be suspended from close of business 22 October 2021.[6] No response was received from the Applicant that day, and so the foreshadowed suspension on pay commenced from 22 October 2021 and continued until his employment was terminated almost 4 months later, on 18 February 2022.
On 1 November, the Applicant advised that he had been on personal leave between 20-29 October, and he again requested the information he asked for on 22 October.[7] There are lengthy email exchanges between the Applicant and the Department from this date onwards in which the Applicant raised numerous additional concerns and made further requests including:
· requests for meetings with management to discuss the Policy;
· requests for training in relation to the Policy;
· raising what he considered to be inaccuracies in information provided by the Department;
· expressing concerns about the capacity to consent to be vaccinated whilst vaccines are only provisionally approved;
· disagreeing that he had elected to take two weeks’ leave to consider his position;
· disputing that the requirement to be vaccinated to work outside home is a lawful and reasonable direction;
· contending that the Directions contravened the principles of the Public Health and Wellbeing Act2008 (PHW Act);
· asking whether he was being directed to undergo a medical procedure without consent, and if so, to answer further questions;
· as Health and Safety Representative, formally requesting consultation with the Department about the identification and assessments of risks relating to COVID-19;
· disputing that he failed to comply with a lawful and reasonable direction to be vaccinated on the grounds that the Department cannot give a lawful and reasonable direction for him to be vaccinated;
· maintaining that the Directions did not require him to be vaccinated, but rather placed the onus on employers not to allow unvaccinated workers to attend the work site, and that his role did not require him to leave his home; and
· contending that his role did not require him to attend the workplace.
The Department’s communications responded to some but not all of the matters raised by the Applicant, at least not in great detail.
On 16 November 2021, a show cause letter was issued to the Applicant. The letter set out that the Applicant had not complied with the mandatory vaccination requirements. Mr Pham was put on notice that the Department was considering terminating his employment on the basis that he was unable to fulfil the inherent requirements of his role and gave him until 29 November 2021 to respond.
On 29 November 2021, the Applicant provided a written response to the show cause letter and subsequently participated in a video meeting on 7 January 2022.
On 15 February 2022, the Department sent a letter to Mr Pham terminating his employment effective from 18 February 2022 on the basis that he was no longer able to perform the inherent requirements of his role. It provided a copy of the Delegate’s determination dated 15 February 2022. The Delegate’s determination set out the matters raised by the Applicant that were taken into account in making the decision to dismiss him, noting that the Department may not have provided detailed responses to all the matters raised by him during the process. The Applicant was paid 4 weeks in lieu of notice.
Also relevant is that in October 2021, WorkSafe Victoria issued an Improvement Notice to the Department in relation to risks to the health and safety of CPPs identified because of high workloads.[8] As an elected Health and Safety Representative, Mr Pham was familiar with that process.
Applicant’s submissions
Mr Pham does not challenge the validity of the Directions or that they applied to him. He acknowledges that the Respondent was not permitted to allow him to work outside his ordinary place of residence, as he was not fully vaccinated or an excepted person.[9] Rather, he contends that the Directions did not require nor authorise the termination of his employment as he could have continued to work from home.[10]
The Applicant submits that his substantive position when he was dismissed was an ACPP in the Statewide Services Intake Team, and that it was not an inherent requirement of that role to leave his ordinary place of residence and attend the Department’s offices.[11] He contends that as an intake worker no physical client contact is required, as reports are received primarily by telephone, and this work can be efficiently carried out whilst working from home.[12]
The other witness for Mr Pham, Ms Barasits, gave evidence that during several years working in the Intake Team she was never requested to work in any other area, and that in the intake role she had no face-to-face contact with members of the public, professionals, children or families, particularly during COVID-19 lockdown periods, and was able to perform her work from home. In cross-examination Ms Barasits acknowledged that there had been an occasion when no-one was able to work from home for a week because the IT systems were down.
The Applicant submits that his dismissal was harsh, because the dismissal was a disproportionate response, especially given his personal situation as the sole carer to two children with special needs; it was unjust because there was no valid reason to terminate his employment because the Department could have allowed him to continue in his employment until he was actually required to perform duties outside his home (and other employees were continuing to work at home); and unreasonable, because the Department did not provide responses to his many attempts to seek clarification and information about its position.[13]
Respondent’s submissions
The Department submits that from 15 October 2021, the Applicant was required, under the COVID-19 Directions in place at the time, to have received a COVID-19 vaccination before being permitted to attend his workplace to perform work. It submits that it was an inherent requirement of his role as an ACPP at the Dandenong Metropolitan Office to attend the workplace, as there are aspects of his role that could not be performed from his home. As the Applicant was not vaccinated, he was unable to do so.
Initial matters to be considered
Section 396 of the Fair Work Act 2009 (Cth) (Act) sets out four matters which I am required to decide before I consider the merits of the application.
There is no dispute between the parties and I am satisfied that Mr Pham was a person protected from unfair dismissal, that the Small Business Fair Dismissal Code did not apply, this was not a genuine redundancy and the application was made within the period required.
Was the dismissal harsh, unjust, or unreasonable?
In considering whether Mr Pham’s dismissal was harsh, unjust and/or unreasonable, I am required to take into account the matters specified in section 387(a) to (h) of the Act.
Valid reason (s.387(a))
General principles
The employer must have had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded” and should not be “capricious, fanciful, spiteful or prejudiced.”[14]
The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the employer’s position. The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).
In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred. It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. The employer bears the evidentiary onus of proving that the conduct on which it relies took place.
Applicant’s submissions - valid reason
On the question of whether there was a valid reason for his dismissal, the Applicant submits that:
· There was no valid reason, as it was not an inherent requirement of his position that he work outside his usual place of residence.[15] The question must be based on the inherent requirements of his role as an ‘intake officer’, given the agreed change in his role in December 2008;[16]
· He has performed well in his role, achieving salary progression and/or bonus progression payments each year;[17]
· The Department was wrong to assert that it “could have been dealt with as a misconduct matter” on the basis that the Applicant refused to comply with a lawful and reasonable direction, because the Applicant has never refused to comply with a direction;[18]
· The Applicant’s suspension from 22 October 2021 was premature as vaccinated or exempted colleagues were permitted to continue working from home for at least 5 weeks until around late November 2021;
· He was not provided procedural fairness because the Department only set out all its reasons for termination in the Delegate’s Determination, provided to the Applicant after his employment was terminated and because the Department did not respond to his emails dated 22 October, 1, 5 and 8 November 2021;[19]
· That the duties and inherent requirements of his role as an intake worker did not require the Applicant to leave his residence to perform his work;
· All intake workers, including the Applicant, were permitted to work from home between 15-22 October 2021 even though the Applicant had provided information that he was not vaccinated and had no booking to do, which was a breach of the PHW Act;[20]
· The Department had introduced a COVID-19 Mandatory Vaccination Policy without consultation, other than how it would be implemented, despite the Applicant’s formal request for consultation as a duly elected Health and Safety Representative, referring to the decision in Construction, Forestry, Mining and Energy Union & Mr Matthew Howard v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059;[21]
· There was no likely basis that he would, within a reasonable period of time, have been deployed to perform a different role that required him to work outside his usual residence, or required to work outside his residence in his actual role;[22]
· Even if it was a ‘requirement’ of his role that he attend work outside his ordinary place of residence, this would not be an ‘inherent’ requirement as it was not an essential requirement, rather a peripheral one that might never be imposed or required by the Department;[23]
· The Department could have allowed him to continue working from home, especially since other members of the Intake Team were permitted to do so.[24]
In cross-examination Mr Pham acknowledged that the quality of a relationship where there is in-person contact is much greater than the quality of a relationship that is entirely remote, that it was very important to management that new staff were in the office and supported by more senior staff, and that because of the nature of the work, having a supportive collaborative team was essential in child protection.
Respondent’s submissions – valid reason
The Respondent was at all relevant times bound by the Mandatory Vaccination Requirements which, together with the COVID-19 Vaccinations Policy meant that the Applicant was unable to attend the workplace and perform work. The Respondent submits that it was an inherent requirement of his role as an ACPP at the Dandenong Metropolitan Office to attend the workplace, as there are aspects of his role that could not be performed from his home. The Applicant’s inability to perform the inherent requirements of his role is a valid reason for dismissal. The Department submits that prior to the dismissal it had considered whether the Applicant could work wholly from home and concluded he could not.
The Department says Mr Pham was employed as an ACPP and not an Intake Officer, and that all CPPs are required to perform all aspects of their role in case they are required to be moved to a different area of the role to meet operational requirements. It contends that the role of all CPPs includes investigations and after-hours work, which cannot be performed wholly from home. Further, whilst it has always been the case that CPPs can be required to move between child protection areas, this requirement has been formalised due in part to the staffing pressures resulting from COVID-19.[25] Mr Philipson’s evidence was that since he prepared his witness statement, he has had to arrange for CPPs to undertake other duties because of vacancies and COVID-isolation requirements which have created staff shortages.
The Respondent’s evidence is that even while performing solely intake functions, CPPs are still required to attend the office and they cannot work remotely the whole of the time. Mr Philipson, Director, Child Protection, gave evidence that Advanced CPPs are required to attend work at an office in order to fulfil the inherent requirements of their roles. This is because:
· Some functions and responsibilities cannot be performed to the optimal standard while working remotely including consulting with managers to make decisions, modelling learning and development for other team members and training;
· Part of the Applicant’s role involves taking reports from members of the public including in person reports taken at the Department’s offices; and that even during lockdowns when offices were closed to the public, in-person reports were facilitated, because if someone turned up, they can be distressed, and that this is the kind of task the Applicant would undertake in his role;
· While working remotely was in place during lockdown periods for some CPPs, allowing staff to work remotely in the medium to long-term is not feasible and would result in sub optimal outcomes;
· No CPPs currently work wholly from home on a permanent basis;[26]
· All CPPs are required to physically attend the workplace in order to fulfil the requirements of their role;[27]and
· From late November 2021, the Department has required Intake staff to attend the office on a rostered basis, in part to support new CPP staff.[28]
Advanced CPPs, such as Mr Pham, have considerable practical experience and part of their role is to support, advise, and guide less experienced colleagues through mentoring and role modelling. Mr Philipson’s evidence is that mentoring and peer support for the difficult judgment calls that CPPs are required to make about what is in the best interest of children, is much less likely to occur as effectively when people are not in the same workplace. Further, that workers can become isolated when working from home, and that this can have negative impacts that are especially pronounced in the child protection context where employees may suffer vicarious trauma if not able to debrief properly or feel inadequately supported.
Mr Philipson’s evidence was that while the intake functions of the Applicant’s role could technically be performed remotely, this was done out of necessity due to lock downs and is not a measure the Department would choose to implement long term. He considers that allowing staff to work from home indefinitely is not the optimal model of service delivery and that it would impact on client outcomes and practitioner wellbeing if it were adopted as a longer-term practice.[29]
Mr Philipson also gave evidence about the remedial work the Department had undertaken in response to the Improvement Notice issued by WorkSafe in late 2021. This included taking a fresh approach to how the Department delivers supervision to mitigate the psycho-social risks to CPPs, given the very sensitive and difficult nature of the work. The Department’s assessment is that the optimal supervision model occurs in person in a physical room. That is because being unable to see a person’s body language makes it harder to understand how someone is faring. The Department has also placed a focus on connectedness, following consistent feedback from CPPs that their team is one of the support mechanisms they value most, and that this is built through establishing strong connections to work together and support each other. Additionally, staff openly spoke about how being home alone and having no incident debriefs with a peer beside them, impacted them personally, professionally and affected their mental health and wellbeing.
As to training, Mr Philipson’s evidence was that there is a need for the Applicant to attend the office for training, including because child sexual abuse training materials are explicit, and inappropriate to deliver in the home environment given the psychosocial risks. As a result, the Department hasn’t delivered this training during the pandemic, however this is being renewed and this training will be required of all CPPs.
Counsel for the Department put it well in submitting that when protecting children, it is not enough to work sub-optimally and just get by – we need to do the best we can for children.
Whilst decisions in other cases are of limited relevance, as each case turns on its own particular facts and circumstances (and Mr Pham sought to distinguish them), the Department relied on various decisions of the Commission, that have found:
· An employee’s decision not to be vaccinated when there are public health directions in place requiring vaccination to attend work, constitutes a valid reason for dismissal;[30]
· Just because a worker was able to work from home during COVID-19 lockdown periods, does not mean an employer’s refusal to allow this to continue indefinitely is unreasonable;[31]
· Even where workers are only required to attend the workplace very occasionally, this will still mean that they cannot perform all of their role from home, and this constitutes a valid reason for dismissal;[32]
· Where the employee agreed when entering his employment contract that his ordinary place of work would be at the employer’s premises, the employer is entitled to have him perform his role at the ordinary place of work;[33] and
· It is reasonable to take into account that the Victorian Government had announced that vaccination requirements would be in place for a considerable period of time, and therefore employers are not required to hold the employment of unvaccinated employees open indefinitely.[34]
I am satisfied that the Applicant’s role at the time he was dismissed was as an Advanced Child Protection Practitioner and was not confined to the duties he was performing as an intake worker at the time he was dismissed. However, this is ultimately of no consequence, as I am satisfied that it was an inherent requirement of his duties as an intake worker, to attend at the Department’s offices.
It was clear in December 2008 when the Applicant was reassigned to the Intake Team, that the location for this work was the Department’s Dandenong premises and not his home. That is where he worked from prior to the pandemic. Absent a flexible working arrangement, Mr Pham is not entitled to work from home on an ongoing basis. The Department was entitled to require him to attend its site, and he could not be permitted to do so under the Directions, as he was unvaccinated.
It is not to the point that most of his duties could be (and had been during much of the Pandemic) undertaken at home. The Department was entitled to decide whether and in what circumstances the Applicant would be permitted to work from home. I am satisfied that it was an essential part of his role to take reports from the public, and whilst mostly taken by phone or writing, can also be made in person at the Department’s offices. I am also satisfied that it was an essential part of his role to participate in mentoring and supervision of less experienced staff, as was participating in training. Even if they are not required to be undertaken often or have been required in the immediate past or future, they are legitimate and lawful requirements of his employment and I do not accept the Applicant’s description of these aspects of the role as being peripheral or an ‘extra’. Mr Philipson’s evidence as to why supervision should be in person was compelling, and Mr Pham himself did not dispute that remote supervision was ‘suboptimal’. The Department has taken significant steps to address psycho-social risks following the WorkSafe Improvement Notice, and these steps validate the legitimacy of the Department’s assessment that it was not acceptable for Mr Pham to continue working from home indefinitely.
Mr Pham’s contention that he was not seeking to work permanently from home are misplaced. All CPPs were, by the end of November 2021, required to work from the Department’s offices for at least part of the time. Mr Pham was unable to do so. There is a further difficulty with Mr Pham’s contention that he could perform his work from home for an undefined period. There was evidence that as a result of IT system issues during a lockdown period, CPPs were unable to work from home for a week. If that were to occur again, Mr Pham would not be able to undertake work. Similarly, I reject the Applicant’s submission that the dismissal was premature, as the Directions would expire and may not be replaced. At the time of the dismissal, the Applicant had been suspended on pay for four months and there was no obligation on the Department to continue this arrangement or make modifications to his role for an indefinite period.
The Applicant’s reliance on the Mt Arthur Coal decision in submitting that the Policy introduced by the Department was invalid is also misplaced. It was the Directions that the Department had to comply with and not the Policy that make it impossible for Mr Pham to work outside his home. He was not dismissed for failing to comply with the Policy or for failing to comply with a lawful and reasonable direction. He was dismissed for being unable to meet the inherent requirement of his role, to attend the office, which he could not be permitted to do under the Directions. In any event, the circumstances he faced were very different to those in the Mt Arthur Coal case. The question in that case was whether a direction that workers had to be vaccinated as a condition of entry to the mine site was lawful and reasonable where, unlike in the present case, there was no externally imposed Directions to be vaccinated. Here, the requirements imposed by the Directions were not introduced by the Department.
I also do not consider the fact that the Department did not suspend the Applicant until one week after the Directions took effect on 15 October, assists him. I accept the Department’s submission that it decided to allow a reasonable transition period.
Whilst the Department may have had other options, it considered whether to allow the Applicant to continue working from home and concluded he could not. In my assessment, the Department had very good reasons for rejecting that alternative. Overall, I am satisfied that the Department had a defensible, sound and ultimately valid reason for dismissing the Applicant. This weighs against a finding of unfairness.
Notification of reason (s.387(b)), Opportunity to respond (s.387(c))
The Applicant submits that he was not given a proper opportunity to respond because the Delegate’s determination was provided to him at the same time as the notice of termination.[35] He contends that he was not given adequate information, for example, in his closing submissions he submitted that the Department did not identify that aspects of his role, such as training and supervision of less-experienced CPPs, were inherent requirements of his role. He was not afforded an opportunity to have this explained and discussed with him.
The Department submits that it afforded procedural fairness to the Applicant. It informed him of the Directions and their effect, invited him to provide feedback on the draft COVID-19 Vaccination Policy; was provided the final Policy; was asked to provide his vaccination status to which he confirmed he was unvaccinated; was invited to show cause as to why his employment should not be terminated; provided multiple responses to his show cause letter which were taken into account and responded to; and was given written notice of his termination.
The process followed by the Department was thorough and comprehensive. Mr Pham was informed on multiple occasions of the requirements under the Directions, the potential impact on his role, and he chose not to be vaccinated. He was notified of the reason why his employment was at risk, and he had been the support person for another employee, Ms Barasits, who was facing dismissal on the same basis. I do not consider there was any failure to afford appropriate procedural fairness to the Applicant.
This weighs against a finding of unfairness.
Unreasonable refusal to allow a support person (s.387(d)); Warnings of unsatisfactory performance (s.387(e))
There was no unreasonable refusal to allow a support person, and this weighs against a finding of unfairness. In relation to s.387(e) of the Act, the Applicant was not dismissed for unsatisfactory performance, and this is a neutral consideration.
Size of enterprise and absence of human resource specialists or expertise (ss.387(f) and (g))
The Applicant contends that the Department should have adopted better procedures, and if they had done so, might have avoided termination of employment.[36]
The Department is a large and well-resourced government organisation with approximately 6,000 employees.[37] I am satisfied that the procedures adopted were adequate, and neither the size of the Department or its access to human resource specialists and expertise, negatively impacted on the procedure adopted. This is a neutral consideration.
Other relevant matters
Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
The Applicant contents that even if there was a valid reason, the Department should have considered other options such as temporarily or permanently removing any requirement to work outside his residence, providing alternative duties that didn’t require him to work outside his residence, or redeploying him to a different role where he could work from home. There was no evidence of other duties or roles that Mr Pham could have been deployed to where he could work from home indefinitely and I accept Mr Philipson’s evidence that all CPPs are required to attend the office. Mr Pham referred to a position that was advertised around the time of his dismissal that was able to be “undertaken remotely”.[38]However, Mr Philipson’s evidence, which I accept, was that the reference in the advertisement that the role could be “undertaken remotely” meant that it could be performed at the office closest to the successful Applicant’s home. In other words, it meant ‘remote’ from the Department’s headquarters in the Melbourne central business district and not that the role could be performed wholly from home.
There are some significant factors that in my assessment, point to the dismissal being unfair. In particular, the Applicant’s very long period of service of almost 19 years, and evidence that he has performed at a high standard throughout his employment. Also relevant is that he is the sole carer for his two children, and that he intended to continue working at the Department until he retired, in order to support them. Whilst the Department did not provide detailed responses to the many issues raised by the Applicant, this does not render the process harsh or unfair in and of itself.
The Department, from 15 October 2021, was required to prevent the Applicant from attending its premises for work because he was not vaccinated, did not have a vaccination appointment nor a medical exemption. Mr Pham was entitled to refuse or decline to become vaccinated. But that choice had consequences. It meant that he was unable to perform the inherent requirements of his role. It is nothing short of tragic that Mr Pham, after such a long period of working in an area that he was clearly passionate about and highly skilled in, has lost his job. He has lost it because of his decision to not be vaccinated, which is his right. However, he has now borne the consequences of that choice.
Conclusion
After considering each of the matters in section 387 of the Act, my assessment is that the Department’s dismissal of Mr Pham was not harsh, unjust or unreasonable. The Department had a valid reason for the dismissal and it afforded procedural fairness to the Applicant prior to terminating his employment. The Applicant’s length of service and personal circumstances do not outweigh the considerations that weigh against a finding of unfairness.
I find that Mr Pham’s dismissal was not an unfair dismissal and his application must be dismissed. An Order to this effect will be separately issued.
COMMISSIONER
Appearances:
R Pham, Applicant.
S Fitzgerald of counsel for the Respondent.
Hearing details:
2022.
Melbourne (by video):
June 17.
[1] Exhibit A9, Attachment RP-7.
[2] Exhibit R1 Witness Statement of Robert Andrew Philipson at [38].
[3] Exhibit A1 Applicant’s outline of submissions (Digital Hearing Book p.40) (DHB).
[4] Exhibit R1 Witness Statement of Robert Andrew Philipson, Annexure AP-5.
[5] Ibid, Annexure AP-6.
[6] Ibid, Annexure AP-7.
[7] Ibid, Annexure AP-8.
[8] Exhibit A16, Attachment RP-14.
[9] Exhibit A1 Applicant’s outline of submissions (DHB p.40).
[10] Ibid.
[11] Ibid.
[12] Ibid p.41.
[13] Ibid pp.21-22.
[14] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[15] Exhibit A1 Applicant’s outline of submissions (DHB p.41).
[16] Ibid p.32.
[17] Ibid p.33.
[18] Ibid.
[19] Ibid p.35.
[20] Ibid p.37.
[21] Ibid pp.38-39.
[22] Ibid p.42.
[23] Ibid p.43
[24] Ibid.
[25] Exhibit R1 Witness Statement of Robert Andrew Philipson at [21].
[26] Ibid [38].
[27] Ibid [16].
[28] Exhibit A20, Attachment RP-18 (DHB p.652).
[29] Respondent’s outline of submissions at [15].
[30] See Floors Aucamp v Association for Christian Senior Citizens Homes Inc [2021] FWC 6669;
Aleisha Jean Shepheard v Calvary Health Care T/A Little Company of Mary Health Care Limited
[2022] FWC 92; Mr Ross Barry Edwards v Regal Cream Products Pty Ltd [2022] FWC 257; O'Toole v
Australian Community Support Organisation Ltd [2022] FWC 477; Ali Fawaz v G4S Integrated
Services Pty Ltd [2022] FWC 777; Stephen Brunec v Department of Justice and Community Safety
[2022] FWC 1262.
[31] Stephen Brunec v Department of Justice and Community Safety [2022] FWC 1262 at [35].
[32] Ibid [33].
[33] Marina Zhang v Parks Victoria [2022] FWC 1203 at [31].
[34] Mr Ross Barry Edwards v Regal Cream Products Pty Ltd [2022] FWC 257 at [28].
[35] Exhibit A1 Applicant’s outline of submissions (DHB p.44).
[36] Ibid.
[37] Respondent’s outline of submissions at [1].
[38] Exhibit A17, Attachment RP-15.
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