Reuben Difesa v Woolworths Group Limited
[2022] FWC 2701
•10 OCTOBER 2022
| [2022] FWC 2701 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Reuben Difesa
v
Woolworths Group Limited
(U2022/3915)
| DEPUTY PRESIDENT BELL | MELBOURNE, 10 OCTOBER 2022 |
Application for an unfair dismissal remedy – application dismissed.
On 3 April 2022, Mr Reuben Difesa (Applicant) made an application (the Application) to the Fair Work Commission (Commission) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the FWAct). The Applicant alleges he was unfairly dismissed by Woolworths Group Limited (Respondent) on 13 March 2022. The Respondent agrees the Applicant was dismissed on 13 March 2022 but denies the dismissal was unfair.
The Applicant’s employment was not terminated because of poor conduct or performance. Rather, the Respondent stated that the Applicant was unable to perform the inherent requirements of his job, as he was unable to attend the workplace as a consequence of Victorian public health orders that applied to the Respondent, which prohibited it from permitting the Applicant to work outside his place of residence without proof of vaccination against COVID-19. The Applicant contends his dismissal was unfair, which I must assess against the requirements of the FW Act.
The Applicant represented himself at the hearing. The Respondent was represented by Mr A. Denton of counsel, instructed by Minter Ellison, with permission to be represented having previously been granted.
Section 390 of the FW Act provides that the Commission may order a remedy if satisfied that the Applicant was “protected from unfair dismissal” at the time of being “dismissed”, and that the Applicant has been unfairly dismissed.
It was not in dispute that the Applicant was “protected from unfair dismissal”, in that he had completed the minimum employment period and his income was below the high income threshold. In determining whether the Applicant was “unfairly dismissed”, it was also not in dispute that the Applicant had been “dismissed”, nor that the Respondent was not a business to whom the Small Business Fair Dismissal Code applied, nor that the dismissal was one of genuine redundancy. It was also not in dispute, and I am therefore satisfied, that the application was made within the 21-day period required in subsection 394(2).
The critical issue in dispute was whether the dismissal was “harsh, unjust or unreasonable”.
The Applicant gave evidence on his own behalf. He filed a witness statement and more extensive documentary material. He also filed a statement of Sonia Gelsomino, who was not required for cross-examination. The Respondent called Ms Samantha Johnson, Head of Employee Relations for Woolworths Group, who filed a witness statement and documentary evidence. Each party filed written submissions. After taking into account the views of the parties and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing for the matter (s.399 of the FW Act).
Factual background and findings
The Respondent is one of Australia’s most well-known companies, which includes the operation of a major supermarket business trading under the ‘Woolworths’ brand. It operates nationally although, relevantly in the matter before me, it operates a Woolworths-branded supermarket located at Greensborough, Victoria.
The Applicant had commenced employment with the Respondent on about 10 December 2019, as a ‘Store Team Member’ at the Respondent’s Greensborough store. The Applicant’s contracted hours were 28.5 per week. At all relevant times, the conditions of the Applicant’s employment were also regulated by the Woolworths Supermarkets Agreement 2018, under which he was classified as ‘Retail Team Member Level 1’.
Ms Johnson’s evidence regarding the Applicant’s duties, which I accept, was that the Applicant was required to attend for work at the Greensborough store in-person to perform duties including:
· The receiving and preparation for sale or display, of goods.
· Packing, weighing, pricing and preparing goods for sale.
· Preparing displays, shelf filling, and replenishing sale goods.
· Recording sales.
The above description is not a complete summary but it provides a sufficient indication of the nature of the duties that the Applicant was required to perform for his work at the supermarket.
By October 2021, various public health orders under Victorian law had been made in response to the COVID-19 pandemic. Broadly speaking, the effect of a number of those orders up until that point in time was to prohibit employers allowing workers – particularly during what became known as ‘lock down’ periods - to work at places other than their home, albeit there were a number of businesses (including supermarkets) where relevant authorisations were in place to allow staff to work on site. Beginning in October 2021, a relaxation of those restrictions commenced. That relaxation, however, was coupled with a broadly cast legal requirement that, with relatively few exceptions, had the effect of prohibiting unvaccinated workers from attending their place of work. Those directives, and subsequent iterations of them, applied to the Respondent.
On 7 October 2021, the Acting Chief Health Officer of Victoria signed the “COVID-19 Mandatory Vaccination (Workers) Directions” (Workers Directions) under s.200 of the Public Health and Wellbeing Act 2008 (Vic) (PHW Act). Among other matters, clause 4 of the Workers Directions provided that if a worker “is, or may be”, scheduled to work outside their usual home, the employer must collect “vaccination information” about the worker.
The definition of “worker” extended to a “retail worker”, which was expressly defined to include “supermarket”. I am satisfied those directions applied to the Applicant. By clause 5 of the Workers Directions, an employer was prohibited from allowing an “unvaccinated” employee to work for the employer outsider their ordinary place of residence after 15 October 2021 unless the employee had a booking for a first dose of a COVID-19 vaccine by 22 October 2021. The definition of “unvaccinated” meant an employer was required to treat an employee as being unvaccinated if they held no information about the employee’s vaccination status.
This matter is not in dispute and nor was the fact that the Applicant was unable to satisfy those public health orders. I note the Applicant’s material states that:
“Since 15 October 2021, I have been unable to attend work due to public health orders issued by the Victorian Government. These public health orders prevented the Respondent from allowing me access to the workplace because I was not able to provide evidence that I was fully vaccinated with a COVID-19 vaccine or that I was otherwise exempt from the public health orders”.
The requirement for workers to be relevantly vaccinated by 15 October 2021 was a matter that the Respondent commenced communicating with its workforce. While the publicity regarding these requirements was arguably notorious in Victoria at the time, a Store Manager of the Greensborough store contacted the Applicant on 8 October 2021 about the matter and sent out a ‘Team Communication’ stating those requirements. On 13 October 2021, the Applicant was sent a text message from the Respondent to similar effect.
The Applicant was unable to produce the relevant certification or an exemption and, accordingly, the Respondent treated him as “unvaccinated” in accordance with the requirements of the relevant iteration of the Workers Directions. The Respondent’s records show that the last day that the Applicant worked in store was on 11 October 2021. This status was then recorded in the Respondent’s internal records.
The Applicant’s evidence, which I accept, is that he undertook a period of annual leave of around 4 weeks in total commencing at or shortly after that point in time.
The Applicant notes he also had a discussion with his Store Manager on 1 December 2021 to clarify the dates of his annual leave (which was resolved to his satisfaction) and they also briefly discussed whether the “Victorian law is the law we operate under”, which the Applicant disagreed with what I infer was his manager’s stated view.
The evidence before me shows that various communications occurred throughout November and December 2021 regarding the matter. It is unnecessary that I record the details of them. Suffice to say, it shows that the Applicant raised various matters, largely directed at the lawfulness of the vaccination requirements on a variety of bases. It also records that the Respondent, in clear terms, explained its views of its obligations under the relevant public health orders and other attempts to provide assurances regarding specific concerns, such as the Applicant’s privacy.
On 16 and 21 February 2022, the Applicant received reminders from the Respondent regarding vaccination. The second of those communications foreshadowed that the Respondent was intending to review the continuing employment of team members who could not perform their role because they did not meet the requirements of the applicable public health orders. The letter indicated that possible outcome foreshadowed was the Applicant being asked to ‘show cause’ why his employment should continue.
On 25 February 2022, the relevant Workers Directions were contained in the Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2022 (No. 5) (Specified Workers Order No. 5), made under Victorian law. The Specified Workers Order No. 5 commenced operation on 25 February 2022 and was expressed to end on 12 April 2022. As with the previous directions, the definition of “worker” in the Specified Workers Order No. 5 applied to the Applicant as a “retail worker” working in a “retail facility” (supermarket). The order applied to the Respondent as an employer of the Applicant. The Specified Workers Order No. 5 required the Respondent to hold information about the Applicant’s vaccination status (Part 1, clause 7) and prohibited the Respondent from allowing the Applicant to work outside of his usual place of residence unless fully vaccinated (Part 1, clause 10). The Applicant was not “fully vaccinated” under the relevant definition of the Specified Workers Order No. 5.
On 28 February 2022, the Respondent wrote to the Applicant setting out that it had no evidence that the Applicant was vaccinated. The letter said that, due to the applicable public health orders, the Respondent was of the view the Applicant could not perform the inherent requirements of his role and, as a result, his employment should be terminated. The Applicant was invited to supply information about his current vaccination status, or proof that he had booked or was intending to book to be vaccinated, any information about his ability to meet the requirements of the public health orders and any other information he wanted the Respondent to consider. The Applicant was asked to respond by 7 March 2022.
On 6 March 2022, the Applicant was sent a text message indicating the Respondent had not yet received a response to the letter dated 28 February 2022 and reminded the Applicant that 7 March 2022 was the due date for any response. No response was received.
By a letter dated 9 March 2022 (sent by the Applicant’s manager on 11 March 2022), the Applicant was given notice of the termination of his employment. The letter referred to the ‘show cause’ process I have described above and reiterated those reasons as the basis for dismissal. The dismissal was expressed to occur on 13 March 2022 and the Applicant would be paid 4 weeks’ notice in lieu.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
“(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[1]
I set out my consideration of each below.
Whether valid reason for the dismissal related to the Applicant’s capacity or conduct – s.387(a)
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[2] and should not be “capricious, fanciful, spiteful or prejudiced.”[3] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[4]
There are two components to the Respondent’s contention that there was a valid reason. The first rests upon the requirements of the relevant Victorian public health orders, namely the Specified Workers Order No 5 applicable at the time of the Applicant’s dismissal. The second concerns the contention that an inherent requirement of the Applicant’s employment required him to perform his role on-site.
The Specified Workers Order No 5 was made under s.165AI of the Public Health and Wellbeing Act 2008 (Vic). Whatever the outer boundaries of the power of that Act are, in the context of similar laws operating in New South Wales, Justice Beech-Jones of the Supreme Court of NSW recently observed:[5]
“The function of determining its validity is for this Court to discharge and the function of determining whether it should have been made is for the political process. The Fair Work Commission has neither function.”
Commendably, this is a matter that the Applicant himself appears to acknowledge. His supplementary submissions state:
“The crux of this matter lies within the controversial direction government has taken in the interests of public health and the significance of the circumstances which support and challenge that direction.
I understand it is not the object of this court to order on matters outside of the scope of the FWA and if with the evidence presented an unfair dismissal verdict is reached, it may not be considered appropriate for the re-instatement order I am seeking as remedy.”
Notwithstanding the acknowledgement set out above, the Applicant contends, on a variety of legal bases, that the decision to dismiss him was unlawful. Some of those matters relate more directly to whether a “lawful and reasonable” direction existed (a matter I consider would be relevant if the Respondent’s vaccination policy was being relied upon by the Respondent) but were of doubtful relevance to compliance with the Specific Workers Order No. 5. They included:
· The greater risk to the Applicant of vaccination than any observed benefit, including vaccine safety. The Applicant’s evidence referred to alternative options – such as treatment by the medicine Ivermectin – being available. Similar, he contended that there were a number of incorrect statistics about death rates and false positive cases from testing.
· The requirement for vaccination amounted to coercion and unlawful workplace bullying.
· The Privacy Act 1988 (Cth).
· The differential treatment between him and store customers.
I do not accept those contentions. Many, if not all, of the matters have been previously addressed before a Court or this Commission in varying contexts and have been rejected. I will address them only briefly.
The concerns regarding the balance of the risks and benefits of COVID-19 were not a matter for the Respondent to consider. The Specified Workers Order No. 5 was made in sufficiently clear terms and the Respondent, quite appropriately, sought to comply with it. As I noted above, whatever the outer boundaries of the Specified Workers Order No. 5 are - or as the Applicant’s material alludes, ought to be –I am satisfied that those directives were lawful and clear in their terms. It is not for me to consider whether the directives ought to have been cast more narrowly or at all.
The contentions regarding consent and bullying are misplaced. The Specified Workers Order No. 5 and earlier iterations were clear in its terms and was binding upon the Respondent. It prohibited the Respondent from allowing relevant employees – including the Applicant – from working outside of their ordinary residence unless they were “fully vaccinated” or relevantly exempt. The Specified Workers Order No. 5 did not make employee consent a condition – that was arguable a key feature of those orders, otherwise their purpose would likely be otiose.
It is not clear what the Privacy Act allegations entail but I infer it is to the effect that the Privacy Act prevents the ability of the Respondent to collect relevant information from employees about their vaccination status, to the exclusion of the Victorian public health orders. I do not consider the operation of that Act in any way impinged upon the operation of the Specified Workers Order No. 5. I repeat my observation made in Sommerville v University of Tasmania (a matter concerning a vaccination policy, not a public health order).[6]
As to the differential treatment between the Applicant and store customers, the Applicant (and Ms Gelsomino’s statement) drew attention to the fact that, as a customer, he could walk the aisles of a supermarket without being vaccinated and yet, as an employee, he was prohibited from doing much the same. So much might be accepted, however the essential point to note is that the public health orders prohibited the Respondent from permitting the Applicant to be in store as an employee without vaccination. Compliance was not optional.
In summary, I consider it clear that the Specified Workers Order No. 5 supplied a properly founded and valid basis that prohibited the Respondent from allowing the Applicant to work on-site and the Respondent, quite properly, sought to comply with those requirements.
The second of the matters I listed above regarding the question of valid reason concerned the “inherent requirements” of the Applicant’s role.
In this context, “it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must be considered”[7] and “the reference to ‘inherent’ requirements invites attention to what are the characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral.”[8]
In the period of time I have described above, up to and including the Applicant’s dismissal, I am satisfied from the evidence that it is plainly clear that the Applicant’s role could only have been performed at the Respondent’s workplace. Attendance at the Greensborough supermarket was an inherent requirement of his role.
In summary, I consider there was a valid reason for the Applicant’s dismissal.
Was the Applicant notified of the valid reason – s.387(b)?
Proper consideration of s.387(b) requires a finding to be made as to whether the applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a).[9]
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[10] and in explicit[11] and plain and clear terms.[12]
I am satisfied that the Applicant was given notification of the Respondent’s reasons for dismissal, by the letter dated 28 February 2022 and, in substance, from the earlier communications including the letter dated 21 February 2022. In the letter dated 28 February 2022, he was told in clear terms his employment was being reviewed, which may include termination of his employment, due to his failure to provide proof of his vaccination or proof of a relevant exemption.
Having regard to the matters referred to above, I find that the Applicant was notified of the reason for his dismissal prior to the decision to dismiss being made, and in explicit and plain and clear terms.
Whether opportunity to respond to any valid reason related to their capacity or conduct – s.387(c)
An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[13]
The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.[14] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[15]
I am satisfied that the Applicant was given an opportunity to respond to the letter dated 28 February 2022. I note also that a number of the substantive matters of concern regarding the requirement to be vaccinated had been matters previously raised by the Applicant with the Respondent during November and December 2021. While it is not necessary for me to do so, I infer that the Applicant did not respond to the letter dated 28 February 2022 because he had previously raised substantive concerns about the requirements for vaccination and he anticipated that the answers he had previously received – unfortunately, being unsatisfactory to him – were likely to be unchanged.
In all the circumstances, I find that the Applicant was given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal – s.387(d)?
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
There was no evidence before me that I considered would lead to a conclusion that the Applicant made a request nor was refused any relevant opportunity for a support person. I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal. The issue of refusal did not arise.
Was the Applicant warned about unsatisfactory performance before the dismissal – s.387(e)?
As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal– s.387(f)?
Neither party submitted that the size of the Respondent was likely to impact on the procedures followed in effecting the dismissal. I find that the size of the Respondent’s enterprise had no such impact.
To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal s.387(g)?
It was not submitted that the Respondent’s enterprise lacked dedicated human resource management specialists or expertise. I find that the Respondent’s enterprise did not lack dedicated human resource management specialists and expertise. Were it necessary for me to consider, I would record that the Respondent’s processes reflected on it positively, in that its communications were expressed clearly, accurately and it responded in a timely way to the Applicant’s request and concerns, having regard to the size of the Respondent’s workforce and the challenges that would have been upon it at the time in complying with various State and Territory public health requirements.
What other matters are relevant s.387(h)?
The Applicant raised a number of matters in his material. While there is some overlap with the matters described above, the Applicant’s witness statement explained in some length his developing views about the various responses to COVID-19 and vaccination. While it is not necessary for me to set out those matters here, I would record my observation that those views appear to be sincerely held.
However, for the reasons I have explained above, the Victorian public health orders – and the Specified Workers Order No. 5 applicable at the time of his dismissal – were agnostic to a person’s reasons for not being vaccinated, other than by the specific exemptions that applied.
I take into account the Applicant’s length of employment with the Respondent, and Ms Gelsomino’s attestation of the Applicant’s character.
I have also taken into account the economic impact upon the Applicant that flows from the dismissal, which is a matter in the Applicant’s favour.
I have addressed the other matters raised by the Applicant above and, so far as I have, I also consider whether they might independently be factors that would lean in favour of a finding that the dismissal be unfair. I do not consider they do, whether separately or in combination. There was no other matter put before me that I consider would also point to a different conclusion. The Respondent complied with relevant provisions of the Woolworths Supermarkets Agreement 2018.
Conclusion
I have made findings in relation to each matter specified in section 387 as relevant.
I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[16]
Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable. There was an inherent requirement for the Applicant’s work to be performed in-person at his workplace. By reason of the operation of the Victorian public health orders, as variously applied up to and including the Specified Workers Order No. 5, which the Respondent was required to comply with, he was unable to meet the inherent requirements of his role. Those matters gave the Respondent a valid reason to dismiss the Applicant. I consider that the Respondent afforded procedural fairness to the Applicant prior to making the decision to bring his employment to an end. I do not consider there are other matters that, taken together with the other factors, would render the dismissal unfair.
Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act. The Applicant is therefore dismissed. An order[17] to this effect will be issued separately.
DEPUTY PRESIDENT
Appearances:
R Difesa on his own behalf
A Dalton of Counsel
Hearing details:
2022.
Melbourne (by video via Microsoft Teams):
July 20, 21.
[1] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[2] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[3] Ibid.
[4] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[5] Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320, [68].
[6] [2022] FWC 1582 at [117] – [120].
[7] J Boag & Son Brewing Pty Ltd v Button[2010] FWAFB 4022, [22].
[8] X v Commonwealth [1999] HCA 63, [102].
[9] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
[10] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[11] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
[12] Ibid.
[13] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
[14] RMIT v Asher (2010) 194 IR 1, 14-15.
[15] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[16] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
[17] PR746604.
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