Ryan Anderson v Central Queensland Services Pty Ltd T/A BHP Mitsubishi Alliance (BMA)
[2022] FWC 2880
•27 OCTOBER 2022
| [2022] FWC 2880 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ryan Anderson
v
Central Queensland Services Pty Ltd T/A BHP Mitsubishi Alliance (BMA)
(U2022/5987)
| DEPUTY PRESIDENT LAKE | BRISBANE, 27 OCTOBER 2022 |
Application for an unfair dismissal remedy – where the Applicant was not unfairly dismissed.
Mr Ryan Anderson (the Applicant) contends he was unfairly dismissed by Central Queensland Services Pty Ltd T/A BHP Mitsubishi Alliance (BMA) (the Respondent), for whom he had worked since on or about 1 September 2013. He seeks an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). In short, the Applicant was terminated from his position in the Respondent’s mining facility after failing to comply with the Respondent’s direction to be vaccinated by 31 January 2022. The events leading to the Applicant’s termination are not in dispute. Rather, the Applicant contends that the unlawfulness of the Respondent’s conduct gives rise to his unfair dismissal claim.
As the matter could not be resolved by conciliation, directions were issued for the filing of material and a hearing was listed for 12 and 14 October 2022. The Applicant appeared on his own behalf, while Mr Matthew Cameron of Herbert Smith Freehills appeared for the Respondent.
Section 396 of the Act requires that I am satisfied of four matters before considering the merits of the Applicant’s application. Neither party disputed and I am satisfied, that the Applicant made his application within the 21-day period required by s.394(2) of the Act, that he was a person protected from unfair dismissal (as he earned less than the high-income threshold), that his dismissal was not a case of genuine redundancy, and that the Respondent is not a small business to whom the Small Business Dismissal Code applies.
Representation
The Respondent sought to be represented which was not opposed by the Applicant. Even so, I am still required to consider whether permission ought to be granted under s.596 of the Act.[1] Granting permission to be represented under s.596 requires the satisfaction of two elements. The first pre-requisite: the presence of one of the criteria under s.596(2), does not immediately invoke the right to representation and establishing satisfaction “involves an evaluative judgment akin to the exercise of discretion.”[2] Once that first step is satisfied, the second step “involves consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.”[3]
The Applicant had submitted a significant amount of material and raised a series of arguments. In Dinov v ANZ Banking Group Ltd T/A ANZ,[4] Deputy President Bull determined that cases that consider a voluminous amount of material are, in the ordinary course, matters involving a higher degree of complexity.
With significant material filed and the prospect of more documentation being provided by the Applicant in reply, given the Applicant’s statement that he has withheld other documents “at the present moment to see which correspondence BHP and agents of: [sic] include in their response. All relevant documents will be included in following submission if required.”[5] The Respondent then submitted that legal representation would enable the Commission to deal with this matter more effectively and narrow the Commission’s task to focus upon the relevant legal principles.
As Deputy President Easton held in Artery v G Case & H Case T/A Gavin Case Marine Services:[6]
“The only test the Commission must apply under s.596(2)(a) is whether granting permission “would enable the matter to be dealt with more efficiently”. In applying this test, the Commission must take into account the complexity of the matter, but it does not have to find that the matter is actually complex, nor does it have to find that a matter is more complex than other matters.”
I exercised my discretion and granted permission pursuant to s.596(2) to Mr Cameron of Herbert Smith Freehills. I was satisfied that the matter would be dealt with more efficiently and effectively – and would not unduly prejudice the opposing party – considering the complexity of the matter and the capabilities of the parties. The Applicant was represented by his mother, Ms Fiona Anderson who I note is not a lawyer or paid agent.
Chronology
On 31 August 2021, the Respondent announced to the workforce that it was assessing whether to introduce a new site access requirement of having at least two doses of an approved COVID-19 vaccine. A dedicated mailbox was set up for employees to submit thoughts, ideas, and suggestions.
On 7 October 2021, the Respondent announced that for all sites and workplaces in Queensland including Caval Ridge, a site access requirement of having at least two doses of an approved COVID-19 vaccine would take effect on 31 January 2022 (Site Access Requirement).
The Applicant was aware of the Site Access Requirement from 12 October 2021. As he was on a period of parental leave from 25 September 2021 to 14 January 2022, his supervisor was providing him with updates and information to his personal email address. The Applicant provided feedback and asked questions in various emails throughout October and December 2021. He was directed to a Frequently Asked Questions document (FAQ sheet) developed by the Respondent.
The Respondent engaged in extensive consultation with employees and unions and information about the Site Access Requirement and vaccinations was made available to all employees. From 15 December 2021 onwards, consultation was undertaken at each of the mine sites, according to a consultation plan agreed with the unions.
On 31 December 2021, the Applicant sent a further email with feedback regarding implementation of the Site Access Requirement. He was directed to the Respondent’s “MinAu COVID-19 Support Team”, who again directed him to the FAQ sheet.
The Applicant was given a letter on 13 January 2022 directing him to provide evidence of vaccination to the Respondent via electronic portal. He responded, “we’ll just have to wait for the legal team to decide where it goes from here”.[7]
The Applicant returned to the workplace for a short period in January 2022, before again taking a period of leave from about 24 January 2022 until 3 May 2022.
On 9 March 2022, the Applicant sent an email to Mr McEvoy titled, “Third and Final Notice”.[8] It contained an attachment requesting that the Respondent “state and cite their adherence to ethical codes”,[9] quoting various pieces of legislation and outlining that if the Respondent did not respond by five business days, “we will consider that your policy, directions and actions are unlawful and unreasonable”. [10]
On 4 May 2022, the Applicant stated in an email: “As I, have had to decline BHP and their agents [sic] demand for mandatory COVID-19 vaccination as a site requirement, I, am therefore unable to provide COVID-19 vaccination proof as required for site entry”.[11]
The Applicant attended a show cause meeting on 5 May 2022 with David Kerr, Maintenance Coordinator and Bradyn McEvoy, Superintendent of the Respondent, and his support person, Fiona Anderson. Mr McEvoy issued the Applicant with a show cause letter at the end of the meeting.
The Applicant responded to the show cause letter in an email of 6 May 2022. He sent a further email on 15 May 2022 titled, “Affidavit and attachments”, reiterating his concerns about lawfulness and reasonableness of the Site Access Requirement.
The Respondent made the decision to terminate the Applicant’s employment, effective 16 May 2022. The Applicant was notified of this at a meeting of that date with Mr McEvoy, and Andrew Bell, Supervisor of the Respondent, and Ms Anderson. This termination was confirmed in writing on the same date and the Applicant was paid four weeks in lieu of notice.
Applicant’s Material
The Applicant accepts that he was informed on multiple occasions that if he was not vaccinated by 31 January 2022, his employment may be terminated. He does however question the lawfulness of that directive.
The Applicant asserts that since COVID-19 vaccinations have been described as a “clinical trial” by former Australian Chief Medical Officer Greg Hunt, then they are therefore “experimental”. The Applicant therefore asserts that no employee should be terminated for declining participation in a clinical trial.
The Applicant argues that since the Respondent did not respond to his extensive communication and requests for further information as to the validity of the Site Access Requirement, he was not adequately consulted as to the implementation of that requirement. Therefore, the consultation process was not genuine, considered, or lawful.
The Applicant makes a number of submissions regarding the medical validity of COVID-19 vaccinations, the potential dangers of the procedure, and various legal and non-legal principles of fairness and discrimination.
Nevertheless, it was accepted that the Applicant, as of 31 January 2022, and when he was due to return to work on 4 May 2022, had made it clear that he was not vaccinated and did not have a medical exemption.
For the reasons set out above, the Applicant submits that he was unfairly dismissed.
Testimony of Applicant
The Applicant asserted that the information regarding the vaccines and the consultative process was not adequate. The Applicant on several occasions requested more data and information as the reply from the Respondent did not answer all of the questions that the Applicant posed.
The Applicant did participate actively in the consultation process and provided a lot of material in reply to the Respondent. This included material that indicated the risks of vaccination and possible deaths.
Testimony of Anderson
Ms Anderson was a registered nurse and the mother of the Applicant. She had done extensive research on the risks of vaccination and the COVID-19 pandemic. In her view, many of the questions that she posed on behalf of her son were not responded to and the requests for further information from the Respondent were similarly not answered. She had worked previously for the Respondent on-site and in her assessment, the risks of medication/vaccination outweighed the risks posed to the workforce.
Cross-examination of Stevens
Mr Stevens in cross-examination stated that he was an active participant in the consultation process as a manager. He gave evidence that all the material that the Applicant had sent in had been reviewed and passed onto the BHP Health Team for consideration. He confirmed that medically qualified doctors on the panel considered the medical evidence and risks.
Mr Stevens also confirmed that the decision maker in the process regarding site access was the acting general manager, Susan Ditton. He also confirmed that the Respondent received hundreds of submissions and the health and safety representatives were involved in the consultation process. He confirmed that the risk assessment for the site was undertaken on 17 December 2021.
Cross examination of McEvoy
Mr McEvoy confirmed that he had read Mr Anderson’s termination letter regarding the alleged medical risk. He outlined that as he was not a health professional, he did not understand all the information and data.
He also confirmed that no decision regarding the Applicant’s employment had been made prior to the show cause process.
He answered wider questions that Ms Anderson had regarding who prepared the FAQ sheet. He replied that the COVID response team and that he was not sure if there was a Public Health Order that covered the mine site. He also confirmed that the mine site had cases of COVID-19 in more recent times.
Applicant’s Closing Submissions
The Applicant contended that the Respondent had a duty of care to their employees and that on the data and medical evidence provided by the Applicant that the Respondent should have determined that the vaccination posed a risk to the employees that was not in proportion to the medical risk of the disease and thus the Respondent had let the workers down.
Further, the vaccines are still under a clinical trial status and there is no law that can compel workers to be vaccinated with exception to a Public Health Order. There was no alternative to having vaccinations offered to employees and given the evidence of adverse effects and deaths due to vaccinations, there was a high risk involved in having the vaccination which should have been considered. The Applicant further stated that the workers had placed their trust in the employer, and this had not been responded to appropriately. Further, the consultation process was not correctly followed and the material the Respondent relied upon was selective.
Respondent’s Material
The Respondent asserts that this case is not about whether their policy requiring their workers be vaccinated is lawful. That question falls outside the scope of this jurisdiction. Rather, the sole question before me is whether the Applicant was unfairly dismissed in light of s.387 of the Act.
The Respondent states that it had a valid reason to dismiss the Applicant: namely, his non-compliance with a lawful and reasonable direction issued by the Respondent. Further, the Respondent asserts that the Applicant was notified of that reason well in advance of the termination occurring, had ample opportunity to respond (and did so), that his response was considered by the Respondent, but ultimately a decision was made to terminate his employment because he could not fulfil the inherent requirements of his role. He was also not unreasonably refused a support person. The Respondent further asserts that the consultation process undertaken was comprehensive and that given the extensive communications leading up to the implementation of the vaccination mandate, all staff – including the Applicant – were very aware of what would happen if they were not vaccinated by 31 January 2022.
The Respondent denies that its staff were coerced into having the vaccine. The Respondent always accepted that it was their choice. However, the Respondent had no choice but to terminate the Applicant’s employment because he did not meet the inherent requirements of his role. The Respondent maintains that the Applicant was not unfairly dismissed.
Further, the Respondent submits that since they paid the Applicant four weeks in lieu of notice, and the Applicant has obtained new employment. There are no mitigating circumstances leading to a conclusion that the termination is otherwise harsh, unjust, or unreasonable.
Cross-examination of Anderson
In cross-examination, Mr Anderson stated that he did attend the pre-start and knew that refusing to have the vaccine would have consequences. However, he felt the process of termination was not personal and that he should have had a sit-down meeting rather than his name be read out at a pre-start meeting.
The Applicant confirmed that he had access to the FAQ sheet, but he was not satisfied with the explanations provided and requested more information which was not provided. He stated that relying upon the Therapeutic Goods Administration (TGA) was not enough and that the evidence worldwide did not add up. He further stated that he had provided the Respondent with links to a series of websites and that it was up to the Respondent to follow up on the links.
Cross-examination of Anderson
Ms Anderson gave evidence that she was a nurse trained in multiple fields including operating theatres, trauma, emergency, palliative care, remote area nursing, general nursing, and Aboriginal nursing. She also confirmed that she was not a trained epidemiologist or virologist, however she responded that she was quite capable of reading peer reviewed articles.
Ms Anderson confirmed that she discussed the emerging evidence regarding the safety of the vaccines with the Applicant. She felt there were red flags from some of the data and when she became aware of multiple red flags, she decided to investigate.
Ms Anderson did provide the Applicant with most of the material he sent onwards to the Respondent. She had chosen not to become vaccinated, and she thought the data provided by the Respondent was very selective and there was a lot of misinformation and dubious or questionable information.
Testimony of Stevens and McEvoy
Both Mr Stevens and Mr McEvoy relied upon their statements providing no further evidence.
Respondent’s Closing Submissions
In closing submissions, the Respondent stated that site safety is a chief concern for the Respondent and that the Respondent had undertaken consultation and had a policy regarding vaccinations. The Applicant knew that if he was not vaccinated by the required date that he would no longer be employed, that his role had to be performed at the site and could not be done remotely.
The Respondent had provided answers to many of the questions raised by the Applicant however they were not obliged to reply to all the data he provided.
Consideration
Section 387 of the 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.[12]
(a) whether there was a valid reason for the dismissal
To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[13] and should not be “capricious, fanciful, spiteful or prejudiced.”[14] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.
The Respondent asserts that its direction was lawful and reasonable. As to what is “reasonable” in the context of employer directions, the Full Bench provided in CFMMEU v Mt Arthur Coal Pty Ltd (Mt Arthur Coal) that:
“The reasonableness of a direction is a question of fact having regard to all the circumstances, which may include whether or not the employer has complied with any relevant consultation obligations; the nature of the particular employment; the established usages affecting the employment; the common practices that exist; and the general provisions of any instrument governing the relationship.”[15]
In this matter, the Respondent undertook a comprehensive consultation process prior to
implementing the vaccine policy, including surveying employees to understand their views,
offering employees the opportunity to consult with health and safety representatives and taking account of feedback received through the consultation process.
For those reasons, I am satisfied that the Respondent’s direction that the Applicant be vaccinated or provide a valid medical exemption by 31 January 2022 was a lawful and reasonable direction with which the Applicant was required to comply.
The requirement by the Respondent for compliance with the site access requirement was consistent with their obligations under the Coal Mining Safety and Health Act 1999 (Qld) s.39(2)(d) and the BMA Caval Ridge Enterprise Agreement 2018 does not prevent the Respondent requiring compliance with lawful and reasonable direction.
The Applicant alleges that the COVID-19 vaccines are experimental and pose a significant risk is an argument that has been rejected previously by the Commission in Mt Arthur Coal.[16] The relevant vaccines have been approved by the TGA and it is not the role of an employer to independently investigate the COVID-19 vaccines for safety or effectiveness.
In terms of consultation, the Respondent provided extensive consultation under a plan that had been agreed with the unions following the decision in CFMMEU & Ors v BHP Coal Pty Ltd & Ors.[17] The Applicant had been provided with information and had also responded with his own questions regarding the vaccines and there had been a site-specific risk assessment conducted at the site.
Considering those intimations by the Applicant, the Respondent could not provide him with further work. I am satisfied that the Applicant’s failure to comply with the Respondent’s direction – the consequence being that the Respondent could not provide him with any further shifts or else be in contravention of their Site Access Requirement – constituted a valid reason for dismissal.
It is not in dispute that the Respondent holds certain responsibilities under the Privacy Act 1988 (Cth) (Privacy Act). These requirements outline that any proposed information to be collected from employees requires consent to the collection pursuant to APP3.3(a). This notion of consent and whether the information is collected in lawful and reasonable circumstances is dependent on the context in which it is invoked.
There is a common law right to personal and bodily autonomy and integrity which is recognised in the Mt Arthur Coal Full Bench decision. In relation to the Privacy Act or bodily integrity, any consent given for the two matters may be vitiated by a threat of discipline or termination. In this matter there is no issue of lack of compliance by the Respondent to any of the requirements of the Privacy Act.
In relation to the present case, requesting an employee to provide vaccination status does not in any way put undue pressure on an employee to undergo vaccination. The decision resides with the Applicant and is open for him to decline. The Full Bench noted that the choice lay with Applicant and his decision to decide between getting the vaccination and continuing to be employed. The rights of bodily integrity need to be balanced against all other rights, including the health and safety of other employees in the workplace. For these reasons, I find that the Respondent’s direction that requires for the collection of employee sensitive information such as their vaccination status does not impinge on the rights of employees’ bodily integrity and is not an unlawful or unreasonable direction.
The Applicant had the choice and was within his rights to decline to become vaccinated or to provide evidence, However, his own choice not to do so rendered him unable to perform the inherent requirements of the job. The Applicant’s failure to comply with the direction concerning his vaccination status resulted in the Respondent being unable to permit the Applicant to perform his role after 31 January 2022.
Consequently, I am satisfied that the Respondent had a valid reason to terminate the Applicant’s employment.
(b) and (c) whether the person was notified of that reason and had an opportunity to respond
Based on the evidence provided and submissions made, I am satisfied that the Applicant was made aware in the months leading up to the implementation of the mandate, that if he was not vaccinated by 31 January 2022, his employment may be terminated.
He had – and took – the opportunity to respond on a couple of occasions to indicate his opposition to the site requirements. During the show cause process, the Applicant was given an opportunity to respond and did so and also the Applicant provided a response as to why his employment should not be terminated. The Respondent considered all the matters raised by the Applicant into consideration when deciding to terminate his employment.
I am satisfied that the Applicant was notified of the reason for his termination and had a sufficient opportunity to respond.
(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
The Applicant has not claimed that he was unreasonably refused a support person.
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal
Given the reasons for the Applicant’s termination, this factor is irrelevant.
(f) and (g) the degree to which the size of the employer’s enterprise and the absence of dedicated human resource management expertise would be likely to impact on the procedures followed
The Respondent is a large employer with a well-resourced human resources department. it undertook an extensive process to provide its staff with information about the policy which was to apply to its operations. It consulted with the Applicant in respect of the mandate. This factor is a neutral consideration.
(h) any other matters that the FWC considers relevant
The decision to not comply with the site requirements was done with the knowledge that he would face termination of his employment. It was a deliberate and considered course of action by the Applicant and he participated in a process that enabled him to ask questions and request information. That the outcome of his choices led to his employment being terminated was entirely foreseeable and any hardship he has experienced following his dismissal does not render the dismissal harsh.
Conclusion
Accordingly, I am satisfied based on the evidence provided that the Respondent had a valid reason for terminating the Applicant’s employment and that it did so in accordance with as fair a process as it could. I find that the Applicant was not unfairly dismissed in accordance with the Act.
I therefore order that the Applicant’s application be dismissed.
DEPUTY PRESIDENT
[1] Wellpacks Holdings Pty Ltd t/a ERGT Australia v Mr Kevin Grovender [2021] FWCFB 268.
[2] Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618, [19], (3).
[3] Wellpacks Holdings Pty Ltd t/a ERGT Australia v Mr Kevin Grovender [2021] FWCFB 268, [48].
[4] Dinov v ANZ Banking Group Ltd T/A ANZ [2021] FWC 360 at [17]–[19] per Bull DP.
[5] Anderson, ‘Unfair Dismissal Submission’, Submission in Anderson v Central Queensland Services Pty Ltd T/A BHP Mitsubishi Alliance (BMA), U2022/5987 at 36.
[6] Artery v G Case & H Case T/A Gavin Case Marine Services [2021] FWC 4130 at [19] per Easton DP.
[7] BHP Mitsubishi Alliance (BMA), ‘Respondent’s Outline of Submissions’, Submission in Anderson v BHP Mitsubishi Alliance (BMA), U2022/5987, 28 September 2022, [15].
[8] BHP Mitsubishi Alliance (BMA), ‘Witness Statement of Bradyn McEvoy’, Submission in Anderson v BHP Mitsubishi Alliance (BMA), U2022/5987, 28 September 2022, BM-9, 191–216.
[9] Ibid.
[10] Ibid.
[11] Ibid BM-11, 220.
[12] 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].
[13] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[14] Ibid.
[15] CFMMEU v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059 at [259] (‘Mt Arthur Coal’).
[16] Ibid at [29]; CFMMEU & Ors v BHP Coal Pty Ltd & Ors [2022] FWC 81 at [15]; Trzcinka v Mt Arthur Coal Pty Ltd [2022] FWC 2424 at [47].
[17] [2022] FWC 81.
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