Sazjah Burgoyne v Shamrock Consultancy Pty Ltd

[2021] FWC 6417

[2021] FWC 6417

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Sazjah Burgoyne
v
Shamrock Consultancy Pty Ltd
(U2021/7256)

VICE PRESIDENT HATCHER SYDNEY, 24 NOVEMBER 2021

Application for an order for costs

Introduction

[1] On 16 August 2021, Ms Sazjah Burgoyne filed an application for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (FW Act) in respect of what she contended was her dismissal by Shamrock Consultancy Pty Ltd (Shamrock) on 9 August 2021. Shamrock is an employing entity owned and operated by Allied Express Transport (Allied), a road transport business based in south-western Sydney. Ms Burgoyne’s application did not settle at conciliation and was the subject of a directions hearing before me on 22 September 2021. The same day, I issued directions requiring Ms Burgoyne to file her evidence and submissions by 6 October 2021 and for Shamrock to do so by 19 October 2021, and the matter was listed for hearing on 25 October 2021. Both parties filed their evidence and submissions in accordance with the directions.

[2] On 20 October 2021, Ms Burgoyne filed a notice of discontinuance. In accordance with her notice, the matter was treated as discontinued and the hearing was vacated. On 29 October 2021, Shamrock filed an application for costs pursuant to ss 400A(1) and 611(2) of the FW Act. This decision is concerned with Shamrock’s costs application.

Factual background and the parties’ respective cases

[3] In order to understand the basis upon which the costs application is brought, it is necessary to outline as neutrally as possible the facts underlying Ms Burgoyne’s unfair dismissal application. Ms Burgoyne was employed by Shamrock as a Marketing Community Advisor. In or about May 2021, Allied adopted a policy to direct all of its staff to register to receive a COVID-19 vaccine when they were eligible to do so. This direction was issued to all staff although, it appears, it was subject to the condition that it did not apply to employees who could not undergo vaccination for medical or religious reasons if supported by proper evidence. The purpose of this policy was to ensure that Allied could continue to operate during lockdowns in a way that maximised health and safety for staff, clients and members of the public with whom the business interacted, and was one of a suite of measures introduced by Allied in response to the COVID-19 pandemic. The priority of this policy was increased when Sydney went into lockdown in June 2021. The main business premises of Allied is located in Chullora, which was in a “Local Government Area of Concern” the subject of a high number of COVID-19 infections and accordingly subject to additional restrictions during the lockdown.

[4] By 6 August 2021, Ms Burgoyne had neither become vaccinated nor registered for vaccination. In her unfair dismissal application, Ms Burgoyne alleged that she was approached by various persons in Allied’s management about this, including the Chief Executive Officer (CEO) of Allied, Mr Colin McDowell, and pressured to register for vaccination immediately. Ms Burgoyne contended that she attempted to do so, but for various reasons could not. On 9 August 2021, she said, she was approached again by various members of Allied’s management and warned that if she had not registered for vaccination by the end of the day, her employment would be terminated. Ms Burgoyne alleged that she tried to register for the Pfizer vaccine because she did not want to take the AstraZeneca vaccine, but was advised she was not eligible. Ms Burgoyne said that she was eventually confronted by Mr McDowell again, who told her (among other things) that she was “dismissed without pay” and to leave the office and not to come back until she had “sort[ed] out your vaccine”. Ms Burgoyne characterised Mr McDowell as speaking in a raised voice and an aggressive tone and acting in an intimidating way. Ms Burgoyne considered that she had been dismissed. In her application, she sought the remedy of compensation.

[5] As part of the evidentiary case which she filed pursuant to the directions made on 22 September 2021, Ms Burgoyne made a witness statement in which she attested to the matters described in her application. She said that she signed Allied’s vaccination policy and thereby agreed to take the vaccine. She also described in greater detail her attempts to register for the Pfizer vaccine, and annexed screenshots of her unsuccessful attempts to register online. She also said that while Mr McDowell was “yelling” at her on 6 August 2021, she was “visibly crying and shaking” and afterwards was “having trouble breathing and suffered from a panic attack”. In relation to the further events on 9 August 2021, Ms Burgoyne said in her statement that “after being repeatedly threatened to be terminated, verbally abused and humiliated in front of my colleagues, I could never return to the workplace” and that her dismissal and the circumstances leading up to it had “exacerbated and worsened my mental health”. Her statement annexed a letter from a psychologist which stated that Ms Burgoyne had, at a consultation “for psychological assessment and intervention” on 13 August 2021, reported symptoms of trauma and current distress “due to an incident at work … where a superior raised their voice at her in front [of] the office”. In her submissions, Ms Burgoyne contended that:

•  her understanding was that the reason for her dismissal was that she had failed to book for the COVID-19 vaccination;

•  there was no valid reason for her dismissal because she attempted to book for the vaccine on several occasions but was unable to do so because she was not eligible;

•  she was not notified of the reason for her dismissal or given an opportunity to respond;

•  her dismissal was harsh because she had demonstrated good performance, had an unblemished record, and the dismissal had adversely affected her both personally and economically; and

•  she did not seek an order for reinstatement, but sought an order for compensation pursuant to s 392 of the FW Act.

[6] In its amended Form F3 response to Ms Burgoyne’s application, Shamrock did not contest that Ms Burgoyne had been dismissed. It denied that Mr McDowell had said to Ms Burgoyne on 9 August 2021 that she was dismissed and contended that he had instead communicated that she was stood down without pay until she had booked an appointment to be vaccinated. However, it accepted that it had repudiated Ms Burgoyne’s employment contract by standing her down without pay and that she had accepted the repudiation in filing her unfair dismissal application.

[7] In its submissions filed on 19 October 2021 in accordance with the directions, Shamrock contended that:

•  Ms Burgoyne was dismissed because she refused a reasonable management direction to book an appointment to receive the COVID-19 vaccine, and thus there was a valid reason for her dismissal;

•  it should not be accepted that Ms Burgoyne was unable, on or before 9 August 2021, to make an arrangement to be vaccinated;

•  Ms Burgoyne’s non-compliance with the direction was a result of her choice to refuse to be vaccinated;

•  Ms Burgoyne was aware of the direction and that a continued failure to make an appointment to be vaccinated meant that she could not continue to be employed by Shamrock;

•  the direction had been discussed with Ms Burgoyne since May 2021, but there was no evidence that she had attempted to comply with the direction prior to 6 August 2021, and she refused an offer of assistance that would have either obtained the booking or supported her assertion that she was unable to do so;

•  Shamrock did not contest that Ms Burgoyne otherwise had a good employment record;

•  Ms Burgoyne’s personal circumstances did not outweigh the consequence of her refusal to be vaccinated; and

•  if the dismissal was found to be unfair, reinstatement would be inappropriate because of Ms Burgoyne’s refusal to be vaccinated, and any compensation amount would be minimal.

[8] Shamrock filed six witness statements, including one made by Mr McDowell and another made by Allied’s Managing Director, Ms Michelle McDowell. Mr McDowell’s statement gave his version of the events of 6 and 9 August 2021 and, in brief summary, he denied that he had told Ms Burgoyne that she was dismissed, that he had spoken to her with a raised voice or an aggressive tone, or that he had acted in an intimidating way. He also denied much of the detail of Ms Burgoyne’s account of their interaction.

[9] Ms McDowell’s statement described in painstaking detail the justification for Allied’s vaccination policy and the steps taken to implement it. She also gave her version of the events of 6 and 9 August 2021 which, to a significant degree, contradicted the account given by Ms Burgoyne and portrayed her as being deliberately non-cooperative in her response to the business’ attempts to help her book her vaccination appointment and achieve compliance with the policy. Ms McDowell’s statement also annexed an email which Ms Burgoyne sent to her on 10 August 2021, which relevantly stated:

“Please be advised that yesterday I had been dismissed from the office of Allied Express Pty Ltd by Mr Colin McDowell.

Allied Express Pty Ltd, is mandating that I be vaccinated against COVID-19 in order for me to remain in the employ of Allied Express Pty Ltd.

Mr Colin McDowell approached me yesterday and he addressed me with phrases such as ‘get out of my office’, ‘Don't come back until you have booked yourself the vaccine’, ‘I am not going to pay you until you have booked the vaccine’ and ‘you won't get paid for today’. The people who were present and witness to what happened are: Nick Cittadino, Linda Malmgren, Susan Ognenovski, Lenore Condon, Eleisha Birkensleigh, Betty Petrov, Kirstie Veron, Suzan Kourhani, among others.

Vaccination is my choice and is not mandated legally. Furthermore, Allied Express Pty Ltd is not qualified in the dispensation of medical advice nor is anyone there privy to my personal health. Nobody at Allied Express Pty Ltd is in a position to impose medical procedure upon me or dictate the administration of any medicines to me.

In the absence of formal termination, my employment at Allied Express Pty Ltd remains in force and my pay remains active to fulfil my engagement as an employee of Allied Express Pty Ltd.

Please advise in writing how long I am dismissed for, the reason for being dismissed and whether my pay remains active.”

[10] Also annexed to Ms McDowell’s statement were two documents containing what are said to be offers of settlement which are now relied upon in the costs application. The first document is an email from Ms McDowell to Ms Burgoyne dated 11 August 2021 (apparently in reply to the email set out above) which stated:

“You have indicated to us on many occasions over the past few months that you were getting vaccinated.

You have told us on Friday you were looking for an appointment, then told us you were going home on the weekend to do, and then told us you were doing on Monday. This was just untrue.

The workplace is open for you to return.

Allied Express will be a fully vaccinated business.

You make the decision when or whether you are returning to work.”

[11] The second document was contained in correspondence from Shamrock’s lawyer to Ms Burgoyne’s lawyer dated 20 August 2021 which (omitting formal parts) stated:

“In the interests of resolving the proceedings, the Respondent is prepared to make the following offer:

1. That your client agree to provide a written undertaking of her agreement to proceed to receive the Covid-19 vaccine forthwith upon becoming eligible pursuant to the Government rollout;

2. That part of the undertaking provided by her shall include agreement to facilitate all steps required to be undertaken by the Respondent to ensure her online registration for the vaccine with vaccination dates confirmed;

3. Upon receipt of the above named undertakings, and finalisation (with documented proof) of the vaccine registration process, she shall return to her substantive position with the Respondent;

4. Your client formally withdraw her application before the Commission forthwith;

5. Each party bears their own costs; and

6. This offer will be binding on acceptance. The terms of the offer will be set out in a deed reflecting these terms.

This offer is open for acceptance until close of business on Thursday, 9 September 2021.

Our client reserves its rights in respect of this letter, including the right to rely upon it in support of an application for costs if the matter proceeds.”

[12] The other statements filed by Shamrock were made by Linda Malmgren, Anna Andreou, Eleisha Birkensleigh and Jacquelyn Hamad. Generally speaking, they describe the events they witnessed on 6 and/or 9 August 2021 and contradicted the account given by Ms Burgoyne to varying degrees.

The costs application

[13] Shamrock’s costs application stated the grounds upon which it sought costs as follows:

“1. Ms Burgoyne made the application vexatiously or without reasonable cause in that the application was made on the basis that the dismissal was unfair because Ms Burgoyne was willing to be vaccinated but was unable to make a booking to do so.

2. It should have been reasonably apparent to Ms Burgoyne that her application had no reasonable prospect of success because the day after the termination and before making the application, Ms Burgoyne sent an email to Ms McDowell to the effect that Ms Burgoyne was not willing to be vaccinated.

3. Ms Burgoyne caused Shamrock Consultancy Pty Ltd to incur costs because Ms Burgoyne unreasonably failed to accept an offer of re-employment made:

(a) On 10 August 2021 [sic, actually 11 August 2021] by email from Ms Michelle McDowell; and / or

(b) On 20 August 2021 by email from Pendlebury Workplace Law.”

[14] The application seeks party-party costs as per the schedule of costs contained in Schedule 3.1 to the Fair Work Regulations 2009. The total claim, as itemised in a schedule attached to the application, is for $6,741.50.

[15] Shamrock filed written submissions in support of its costs application which formulated the basis of the application in the following terms (footnotes omitted):

“1. Shamrock Consultancy seeks an order that the Applicant pay its costs pursuant to section 400A(1) of the Fair Work Act on the grounds that:

a. If [it] was true that Ms Burgoyne was willing to be vaccinated, she unreasonably failed to accept 2 offers of reinstatement, and this act or omission caused Shamrock Consultancy Pty Ltd to incur costs; or

b. If it was not true that Ms Burgoyne was willing to be vaccinated, her act of putting a case to the Commission on a factual basis she knew to be untrue was unreasonable and this act caused Shamrock Consultancy Pty Ltd to incur costs.

2. In the alternative Shamrock Consultancy seeks an order that the Applicant pay its costs pursuant to section 611(2) on the grounds that:

a. Ms Burgoyne made the application vexatiously or without reasonable cause in that the application was made on the basis that the dismissal was unfair because Ms Burgoyne was willing to be vaccinated.

b. It should have been reasonably apparent to … Ms Burgoyne that her application had no reasonable prospect of success because Ms Burgoyne [said] that she was not willing to be vaccinated and sent an email to Ms McDowell to the effect the day after the termination and before making the application.”

[16] Shamrock submitted, in summary, that:

•  the essence of Ms Burgoyne’s case was that she was willing to be vaccinated but unable to make a booking, which was a matter within her knowledge;

•  if that factual proposition was false, it was inherently unreasonable for a person to put to the Commission a factual proposition that they know to be untrue;

•  if it was true, any reasonable person in her position who was willing to be vaccinated would have accepted the offers of re-employment, and her failure to accept the offers of 11 and 20 August 2021 were unreasonable acts or omissions;

•  in respect of the latter offer, the unreasonableness of her failure to accept the offer is reinforced by the fact that a public health order made on 20 August 2021 required an authorised worker who lived or worked in an area of concern to have at least one dose of the COVID-19 vaccine by 28 August 2021;

•  alternatively, the factual premise of Ms Burgoyne’s case, being that she was willing to be vaccinated but was unable to book an appointment, was false, as demonstrated by her clear and unambiguous email to Ms McDowell of 10 August 2021;

•  for whatever reason, Ms Burgoyne chose not to tell the truth and instead put a false position to the Commission; and

•  the conduct in making an application founded upon a proposition that the applicant knew to be false is so egregious and so far beyond the bounds of reasonable behaviour that the Commission should have no hesitation in exercising its discretion to award costs against Ms Burgoyne.

Consideration

[17] The principles relating to costs applications made pursuant to ss 400A and 611 were recently summarised, by reference to the applicable case authorities, by the Full Bench in Tracey v BP Refinery (Kwinana) Pty Ltd. 1I rely upon, but do not repeat, those principles here.

[18] On the basis of her application and the material filed by her, it appears that the case intended to be advanced by Ms Burgoyne may be summarised as consisting of the following propositions:

•  Ms Burgoyne made reasonable attempts to comply with Allied’s vaccination policy on 6 and 9 August 2021 by trying to obtain registration to receive the Pfizer vaccine, but she was not eligible for the vaccine at that time;

•  there was therefore no valid reason for her dismissal on the basis of her non-compliance with Allied’s vaccination policy;

•  Shamrock denied her procedural fairness in dismissing her;

•  her dismissal was unfair because there was no valid reason, she was denied procedural fairness, she had an otherwise unblemished employment record, and the dismissal had caused her personal distress and economic loss;

•  reinstatement was not an appropriate remedy because of the way she was treated on 6 and 9 August 2021, which caused her personal distress and rendered her unable to return to the workplace; and

•  monetary compensation was the appropriate remedy.

[19] Ms Burgoyne did not contend at any stage prior to her discontinuance that Allied’s direction for her to register to receive the COVID-19 vaccination pursuant to its vaccination policy was not lawful or reasonable.

[20] I have made reference to the witness statements and documents filed by the parties in order to outline the nature of the cases which the parties intended to present at the hearing for the purposes of the consideration of the costs application. However, it needs to be emphasised that this material is not evidence as such. The hearing never went ahead and accordingly none of this material was admitted into evidence or tested in cross-examination. Ms Burgoyne did not have the opportunity, prior to the discontinuance, to reply to Shamrock’s material. Shamrock has not sought to adduce any evidence in support of the costs application. Accordingly, it is not possible to make any findings about the issues of contested fact for the purpose of determining this costs application. In dealing with a costs application after a proceeding has been discontinued, it is not usually appropriate to attempt to determine a hypothetical trial, particularly one in which there would be a factual contest involving issues of credit. 2

[21] The first basis upon which the costs application is pressed, pursuant to s 400A, is that Ms Burgoyne acted unreasonably in failing to accept the offers of re-employment said to have been made to her by Shamrock on 11 and 20 August 2021, and thus caused Shamrock to incur costs. I doubt the email of 11 August 2021 can be taken into account under s 400A, since it was not an offer of settlement as such and was sent five days prior to Ms Burgoyne filing her application, so that it is difficult to say that any failure of Ms Burgoyne to respond positively to it was an act “in connection with the conduct or continuation of the matter”. In any event, I do not accept, on the basis of the case she intended to advance at the hearing, that Ms Burgoyne acted unreasonably in refusing to accept re-employment then or in response to the formal offer of 20 August 2021. Ms Burgoyne did not seek the remedy of reinstatement at any stage of her proceedings on the basis that she could not return to the workplace as a result of the personal distress she said she suffered by reason of the events of 6 and 9 August 2021, and instead sought the alternative remedy of compensation. Taking her case as described in her application and witness statement at its highest, it seems to me that her refusal of re-employment was a rational and not unreasonable act, since from her perspective her (alleged) treatment at the hands of Mr McDowell caused her significant personal distress and rendered the restoration of a workable employment relationship impossible. To put this another way, if Ms Burgoyne’s version of events had been accepted at the hearing and she had been successful in demonstrating that her dismissal was unfair, I consider that it would have been reasonably open for the Commission to conclude that reinstatement was not an appropriate remedy and to order compensation.

[22] It needs to be emphasised, of course, that her version of events was strongly contested by Mr McDowell and others in their witness statements, and that Shamrock did not get the opportunity to test her account at a hearing. I am not in a position now to determine factually what occurred on 6 and 9 August 2021. However, it can comfortably be concluded that, on the basis of Ms Burgoyne’s pleaded case, an offer of re-employment was no remedy at all for her dismissal.

[23] The second basis for the costs application is that it was not true that Ms Burgoyne was willing to be vaccinated, that she put forward a case that she knew to be factually untrue, and that in doing so:

(1) she acted unreasonably and caused Shamrock to incur costs, justifying an order for costs under s 400A;

(2) she made her application vexatiously or without reasonable cause, justifying an order for costs under s 611(2)(a); and

(3) it should have been reasonably apparent to her that her application had no reasonable prospect of success, justifying an order for costs under s 611(2)(b).

[24] I do not accept any of these bases for the costs application. The starting point is necessarily a consideration of Ms Burgoyne’s pleaded case, which I have summarised in paragraph [18] above. I consider that, had Ms Burgoyne given evidence in terms of her witness statement at the hearing and had that evidence been accepted, it would have been reasonably open to find that her dismissal was unfair and to award her monetary compensation as a remedy. It may be noted that a number of matters were not in issue: as earlier stated, Ms Burgoyne did not challenge the lawfulness and reasonableness of Allied’s vaccination policy; on either version of the facts, Ms Burgoyne was not informed of the reason for her dismissal or given an opportunity to respond; and Shamrock does not contest that Ms Burgoyne had an otherwise unblemished employment record. The key issue in dispute was whether there was a valid reason for her to be dismissed for not complying with the direction to book her vaccination and, if Ms Burgoyne’s version of events had been accepted, I consider it would have been open to find that she was making reasonable attempts to comply with the policy at the time she was dismissed and therefore that there was no valid reason for her dismissal.

[25] Shamrock’s key contention is that Ms Burgoyne’s case was necessarily based on a lie because her email of 10 August 2021, annexed to Ms McDowell’s statement, demonstrates that she was not willing to be vaccinated in accordance with Allied’s vaccination policy. I do not accept this contention. In the context of this costs application, it is difficult to draw any clear conclusion about the import of this email because the response to or explanation for it, if any, which Ms Burgoyne might have given at the hearing will never be known.

[26] Taking the email at its highest, it shows that, as at 10 August 2021 and after the dismissal, Ms Burgoyne was expressing strong opposition to Allied’s vaccination policy. However, the email does not necessarily demonstrate that Ms Burgoyne did not make reasonable attempts to comply with the policy on 6 and 9 August 2021. There are a range of possibilities. The email may have simply reflected Ms Burgoyne’s state of mind as at 10 August 2021 in reaction to the events of 6 and 9 August 2021 and her dismissal. It may have reflected advice Ms Burgoyne got from someone immediately after she was dismissed. It may indicate that Ms Burgoyne had been opposed to Allied’s policy all along and would have preferred not to be vaccinated, but had nonetheless been prepared to comply with the policy in order to keep her job. An employee does not need to agree with a lawful and reasonable workplace direction in order to comply with it. There are no doubt other possibilities, including that the email had the import contended for by Allied. The position is that the email cannot by itself conclusively invalidate Ms Burgoyne’s case as to what occurred on 6 and 9 August 2021. Without conducting the hearing, that conclusion simply cannot be reached.

[27] For these reasons, I do not accept that Ms Burgoyne acted unreasonably in bringing her application, that the application was made vexatiously or without reasonable cause, or that it should reasonably have been apparent to her that her application had no reasonable prospect of success. There is therefore no power to order costs under either s 400A or s 611(2).

[28] Shamrock’s costs application is dismissed.

VICE PRESIDENT

Final written submissions:

29 October 2021.

Printed by authority of the Commonwealth Government Printer

<PR736060>

 1   [2021] FWCFB 4970 at [19]-[24]

 2   Australian Securities Commission v Aust-Home Investments Ltd [1993] FCA 585, 44 FCR 194 at 201, 116 ALR 523 at 530