Rita Anderson v Wongaburra Aged Care
[2022] FWC 69
•17 JANUARY 2022
| [2022] FWC 69 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Rita Anderson
v
Wongaburra Aged Care
(U2021/9366)
| DEPUTY PRESIDENT LAKE | BRISBANE, 17 JANUARY 2022 |
Application for an unfair dismissal remedy – whether the Applicant was dismissed – whether the application was made outside of statutory timeframe and if so, whether extension of time should be granted – where the Applicant was not dismissed – jurisdictional objection upheld – application dismissed
Rita Anderson (the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment by Wongaburra Aged Care (the Respondent).
The Applicant’s employment with the Respondent terminated with effect from 14 September 2021. The unfair dismissal application was officially lodged on 19 October 2021, 35 days later.
There were two jurisdictional questions before me. First, whether the Applicant was dismissed within the meaning of the Act and if so, when. Second, if the application was lodged out of time whether an extension should be granted. A hearing was held before me via Microsoft Teams on 20 December 2021, at which the Applicant appeared on her behalf and Nadia Marroni and Roslyn Browning appeared for the Respondent.
Facts
This dispute arises in the context to the mandatory vaccination directive issued by the government and implemented by the Respondent. The sequence of events which led to the end of the Applicant’s employment were agreed by the parties. I have summarised them below.
The COVID-19 vaccination mandate in aged care meant that all workers were required to have their first dose by 16 September 2021. The first communications in respect of vaccination mandate began in July 2021. The Applicant told the Respondent that she did not wish to be vaccinated.
On 13 September 2021, the Respondent emailed the Applicant in the following terms:
“Hello Rita,
Thank you for your rather lengthy letter outlining your displeasure in submitting to a mandatory COVID-19 vaccination. It is definitely your right to do so. Wongaburra is not disputing that.
Unfortunately, mandatory COVID-19 vaccination is not a directive from Wongaburra, but from the Federal and State government.
What is clear from the mandatory government directive is that after the 16 of September, no-one who is employed in aged care will be allowed on site.
From the 16 of September employees that exercise their right not to be vaccinated will receive a letter from Wongaburra.
The letter will outline the following, that your actions will effectively frustrate your contract of employment with Wongaburra as you will be unable to carry out the inherent requirements of your job. Furthermore, Wongaburra provided a reasonable and lawful instruction requiring your to comply with Federal and State Directives to receive the COVID-19 vaccination.
Thus, Wongaburra will have no recourse but to stand you down without pay. You will be given until Thursday 5pm 23 September in order to comply with the mandated directive.
Wongaburra does not have any influence in overturning government directives State or Federal, and cannot assist you in any way. You may apply for an exemption, please click on the link below about how to proceed with that and what, if any exemptions can be granted…
I have also attached a fact sheet outlining information regarding COVID-19 exemptions for your information.
Once again, Wongaburra understands that you are exercising your right to refuse and does not have an issue with that. However, we are bound by legislation mandated from Federal and State laws and have to ensure that we comply.
Thank you for voicing your concerns, as stated above it is entirely your right not to vaccinate.
Regards
Nadia Marroni”
Following that email, the Applicant was taken off the roster. This included having two shifts that had already been allocated to her (which were to occur before 17 September 2021, when employees were required to have had their first dose of the vaccine) being reallocated such that the Applicant was not provided with any further shifts. This meant that the Applicant did not work for the Respondent after 14 September 2021.
The Applicant was invited to attend a meeting with Ms Marroni and Ms Browning the following week to discuss the situation. At that meeting, which occurred on 22 September 2021, the Applicant brought her daughter along as a support person. The Applicant was asked if she had reconsidered her decision to receive the COVID-19 vaccination. The Applicant was adamant that she would not receive it and articulated her reasons for coming to that conclusion. She understood that if she did not get vaccinated her employment may end.
Ms Browning explained that the basis for standing the Applicant down was the State and Federal government mandates with respect to workers in aged cared. It was not a decision made by the Respondent. This had been articulated in several text messages and emails that had been sent by the Respondent to all staff over the preceding weeks. The Applicant disagreed with this analysis and also complained of the quantum of correspondence she had received from the Respondent regarding the mandate giving that she had no intention of complying.
Ms Browning went on to say that it was a matter for the Applicant whether she chose to be vaccinated or not. The Respondent respected her decision. However, if she did not get vaccinated, the Respondent could not allow her to undertake any work as she was not compliant with mandate. She asked the Applicant if she would reconsider her stance. The Applicant said she would not.
The Applicant asked what would happen next. Ms Marroni stated that the Applicant could remain on the books – that is, stood down without pay – to give her time to decide whether she wished to comply with the mandate or see what happened. If the Applicant did not wish to remain stood down, she could end her employment and look for work elsewhere.
The Applicant’s daughter then suggested that the Applicant be issued with a separation certificate because this would mean she could at least receive Centrelink payments. The Applicant agreed.
The Applicant then asked what she would be paid in severance. She thought she was entitled to be paid for the two days of pay in the fortnight prior to the mandate becoming effective in respect of which she had been removed from the roster. She also sought severance pay on the basis that she had been there six and a half years.
Ms Browning assured the Applicant that she would receive her accrued annual leave, as well as a severance letter. However, the Respondent would not be entertaining any requests for the additional two days or severance pay.
Ms Browning thanked the applicant and her daughter for attending the meeting and they left. The payroll team was instructed issue the separation certificate in the next payroll cycle. The separation certificate indicated that the termination had occurred on 17 September 2021, the first effective day of the mandate, by way of resignation.
Ms Marroni’s evidence is that the separation certificate would have been posted on 23 September 2021.
Was the Applicant dismissed? If so, when?
Section 386(1) of the Act relevantly provides that a person has been dismissed if:
“(a) the person's employment with his or her employer has been terminated on the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
Section 386 of the Act has created two clear grounds on which a claim could potentially proceed. In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli, the Full Bench expanded on the content of the two limbs:
“(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable (sic) result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”[1]
Submissions
The Respondent submits that there is no case of unfair dismissal because the Applicant was never dismissed. Rather, the Applicant’s choice to not undertake the mandatory COVID-19 vaccination rendered her non-complaint and she therefore could not be rostered on for any shifts. She was stood down without pay. The Respondent submits that it was the Applicant’s decision to leave her employment and this was effected after she (and her daughter) had asked for a separation certificate to be issued so that she would be eligible for Centrelink payments.
The Applicant submits that in standing her down without pay and in issuing the separation certificate, the Respondent dismissed her from her employment.
Consideration
I have had regard to all the material and evidence provided by each party in these proceedings. I am satisfied that it was the Applicant’s request for a separation certificate that was the catalyst for the termination of her employment. It is immaterial whether that was first proposed by the Applicant or her daughter because it was not contended that the Applicant had not consented to that course at the meeting on 22 September 2021.
While I acknowledge that the request for the separation certificate came because of the Respondent’s communication to the Applicant that she would not receive any further shifts if she remained unvaccinated given the Respondent’s obligation to comply with the vaccination mandate. I do not consider that this amounts to a termination at the initiative of the Respondent. The Respondent was simply communicating the effect of the government mandate to its staff. As of 22 September 2021, the Applicant had three options available to her. She could have stayed stood down without pay for some time to reconsider her stance on vaccination or to see if the mandate was lifted, she could have decided to get the vaccination or she could have resigned. In requesting the separation certificate as she did, she effectively chose the latter option. Consequently, there was no dismissal within the meaning of the Act.
Accordingly, I order that the first jurisdictional objection be upheld and that the Applicant’s application be dismissed.
Given that finding and the making of that order, it is unnecessary for me to consider the second jurisdictional objection.
DEPUTY PRESIDENT
<PR737540>
[1] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 [47]; see also Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.
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