Shantay Moriah May v Wesley Mission Queensland
[2022] FWC 1661
•28 JUNE 2022
| [2022] FWC 1661 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Shantay Moriah May
v
Wesley Mission Queensland
(U2022/59)
| DEPUTY PRESIDENT LAKE | BRISBANE, 28 JUNE 2022 |
Application for an unfair dismissal remedy – where the Applicant was not unfairly dismissed
Mrs Shantay Moriah May (the Applicant) contends she was unfairly dismissed by Wesley Mission Queensland (the Respondent), for whom she had worked since 21 November 2009. She 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 her position in the Respondent’s specialist residential accommodation at Wesleycare Sinnamon Village after failing to comply the Respondent’s direction to be vaccinated by 15 December 2021. The events leading to the Applicant’s termination are not in dispute. Rather, the Applicant contends that the unlawfulness of the Respondent’s conduct which gives rise to her 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 17 May 2022. The Applicant appeared on her own behalf with Mr Alex Smith acting as an advocate. At the Hearing the Respondent sought to be Represented by Ms Rebecca Pezzutti, a lawyer from MinterEllison. This 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. Given the volume of material provided by the Applicant and the impact of the Public Health Order and the nuanced legal arguments involved in considering whether the Applicant’s dismissal was unfair, I was satisfied that it would be of use to the Commission – and would not unduly prejudice the Applicant – to have the assistance of the Respondent’s legal representative. I was also satisfied that the presence of the Respondent’s representative would also enable the matter to be dealt with more efficiently. Accordingly, I allowed Ms Pezzutti to appear 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 her application within the 21-day period required by s.394(2) of the Act, that she was a person protected from unfair dismissal (as she earned less than the high-income threshold), that her 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.
Chronology
On 10 November 2021, the Queensland Chief Health Officer made a Public Health Direction titled ‘Workers in a healthcare setting (COVID-19) Vaccination Requirements) Direction (No.3)’ (Public Health Order) which requires a worker in healthcare to receive a COVID-19 vaccination before 15 December 2021.[1]
On 16 November 2021, the Respondent issued a ‘Coronavirus (COVID-19) Health Update’ requiring all staff to be fully vaccinated by 15 December 2021 and requiring a first vaccination by 24 November 2021.[2]
On 16 November 2021 at 9:19am, the Applicant sent an email to the Respondent titled ‘WMQ Coronavirus Response Committee’ stating her intention to apply for a religious exemption’.[3]
On 19 November 2021, the Respondent sent a letter to the Applicant stating that a religious exemption is not possible and provided the Applicant to reconsider her decision on the matter providing a copy of the Public Health Order.[4]
On 22 November 2021, the Applicant sent a document titled ‘Notice to Principal is Notice to Agent, Notice to Agent is Notice to Principal’ in response to a request of vaccination, medical testing and face masks to Mr Steve Eltis refusing vaccination.[5]
On 23 November 2021, the Respondent sent a letter to the Applicant requiring a COVID-19 vaccination or obtain a medical contraindication exemption of the COVID-19 vaccination before 15 December 2021.[6]
On 24 November 2021, the Applicant sent an email to the Respondent confirming that she would ‘not be taking the vaccine’ and wished to take her annual leave.[7]
On 25 November 2021, the Respondent sent an email to the Applicant acknowledging the Applicant’s decision on not to take the vaccination and declined the request for leave.[8]
On 7 December 2021 at 8:10am, the Respondent sent a letter regarding a potential repudiation of employment as the Applicant has not proven her COVID-19 vaccination status or received an exemption and stated that the Applicant will not be able to work any further shifts after close of business 14 December 2021.[9] The Applicant responded that she was not obligated to undertake any medical treatment not resigning her job at 10:02am.[10]
On 7 December 2021 at 11:27am, The Applicant asked why she was unable to obtain annual leave after 15 December 2021 stating it was unreasonable as it would not affect the roster. The Respondent sent an email to the Applicant at 11:43am stating that it was unable to provide leave without compliance to the Health Direction. The Respondent confirmed that all annual and long service leave will be paid to the Applicant.[11]
On 15 December 2021, the Respondent dismissed the Applicant’s employment because of her refusal to obtain the COVID-19 vaccination.[12]
On 18 December 2021, the Respondent stated that a Certificate of Service will be provided and will no longer reply to the Applicant.[13]
Applicant’s Material
The Applicant does not accept that she was informed on multiple occasions that if she was not vaccinated by 15 December 2021, her employment may be terminated. The Applicant challenges the lawfulness of that directive.
The Applicant asserts that the Respondent failed to provide independent physical material evidence to substantiate the lawfulness of the Public Health Order. The Applicant also asserts that the Respondent has failed to consult staff stating that there was no verbal conversation outlining the changes to work requirements.
The Applicant asserts that the imposition of a vaccination mandate by the Respondent is unlawful on the basis that the Queensland Government’s statement that all aged care workers be vaccinated is not law and, further, there is no constitutional basis for such a mandate. Additionally, the Applicant contends that requiring staff to be vaccinated before allowing them to attend work amounts to coercion and duress.
Nevertheless, it was accepted that the Applicant, as at 15 December 2021, had made it clear that she was not vaccinated and did not have a medical exemption.
For the reasons set out above, the Applicant submits that she was unfairly dismissed.
Respondent’s Material
The Respondent asserts that this case is not about whether the government mandate that all health care 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, her 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 her response was considered by the Respondent, but ultimately a decision was made to terminate her employment because she could not fulfil the inherent requirements of her role. She was not unreasonably refused to 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 15 December 2021.
The Respondent denies that its staff were coerced into having the vaccine. The Respondent always accepted that it was their choice. However, given the public health order which mandated that workers in aged care be vaccinated, the Respondent had no choice but to terminate the Applicant employment because she did not meet that criterion. The Respondent maintains that the Applicant was not unfairly dismissed.
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.[14]
(a) whether there was a valid reason for the dismissal
The Commission is required to consider whether there was a valid reason for the dismissal related to the persons capacity or conduct pursuant to section 387(a) of the Act. To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[15] and should not be “capricious, fanciful, spiteful or prejudiced.”[16] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.
In light of , the Public Health Direction titled ‘Workers in a healthcare setting (COVID-19) Vaccination Requirements) Direction (No.3)’ (Public Health Order) which required a worker in healthcare to receive a COVID-19 vaccination before 15 December 2021, the Respondent was required to ensure that all its employees were vaccinated against COVID-19 by 15 December 2021. It had no choice but to enforce that requirement and did so by directing its employees to provide proof of vaccination (or a medical exemption) by that date.
It is uncontentious that as at 24 November 2021, the Applicant had indicated that she was not vaccinated, nor did she have a medical exemption. In her email on 24 November 2021, the Applicant confirmed that she will not take the vaccine.
In an email on 7 December 2021, the Applicant again confirmed that she was not vaccinated and did not intend to become vaccinated against COVID-19 at that time. In other words, she indicated that she would not be complying with the Respondent’s direction.
In light of those intimations by the Applicant, the Respondent could not provide her 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 her with any further shifts or else be in contravention of the government mandate – constituted a valid reason for dismissal.
Pursuant to the Queensland Public Health Direction titled ‘Workers in a healthcare setting (COVID-19) Vaccination Requirements) Direction (No.3)’ (Public Health Order) which required a worker in healthcare to receive a COVID-19 vaccination before 15 December 2021, the Respondent had regulatory requirements to ensure that the Applicant provided the required evidence relating to a COVID-19 vaccination. The Respondent was required to take all reasonable steps to ensure that a worker who was unvaccinated did not enter the Respondent’s premises for work purposes.
On 16 November 2021, the Respondent advised the Applicant of the requirement. The Applicant had originally intended to request an exemption based upon religious grounds and set this out to the Respondent on 16 November in an email. On 19 November, the Respondent advised that religious exemptions would not be possible under the Direction. On the 23 November the Respondent requested evidence be provided of either proof of vaccination or a medical exception. On 24 November, the Applicant advised she would not be taking the vaccine. On 7 December the Respondent again wrote to the Applicant and advised that if she could not provide either proof or an exemption then she would face termination. The Applicant advised she would not be having the vaccination and provided no medical exemption and thus on 15 December she was dismissed by the Respondent.
Had the Respondent allowed the Applicant to attend the workplace from 15 December 2021, it would have been in breach of the law and exposed itself to the risk of penalties. Compliance with the public health madidate was an inherent requirement of her role as a Registered Nurse in an Aged Care establishment.
The Applicant was not vaccinated and did not have a valid exemption, so as a consequence, she could not from that time perform her job. Therefore, there was a valid reason for her dismissal relating to her capacity.
The Applicant had the choice and was within her rights to decline to become vaccinated or to provide evidence, however her own choice not to do so rendered her unable to perform the inherent requirements of the job. The Applicants failure to comply with the direction concerning her vaccination status resulted in Respondent being unable to permit the Applicant to perform the role.
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 she was not vaccinated by 15 December 2021 her employment may be terminated.
The Applicant had – and took – the opportunity to respond on a couple of occasions to indicate her opposition to the introduction and enforcement of the mandate. This was done on the 24 November when the Applicant stated that she would not be taking the vaccination. The Employer wrote again on 7 December 2021 and put the Applicant on notice that without proof of vaccination or a medical exemption she could not meet the inherent requirements of her role. Accordingly, I am satisfied that the Applicant was notified of the reason for her 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 she 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 government mandate which was to apply to its operations. It consulted with the Applicant in respect of the mandate, but it ultimately had very little control over what it could do if she chose not to be vaccinated.
(h) any other matters that the FWC considers relevant
I have regard to the fact that the Applicant had worked for the Respondent for an extensive period, and there were no allegations that she had been anything other than a dedicated employee. It must have been very upsetting to be told that her employment would end if she chose not to have a COVID-19 vaccination. However, it must also be noted that the Respondent also had very little choice in the matter. If it wanted to continue operating its business, it had to comply with the government mandate. This meant that it could not allow someone who was not vaccinated against COVID-19 to continue working on its premises.
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] Digital Court Book (‘DCB’) Respondent’s Materials Annexure GB-01.
[2] Ibid Annexure GB-02.
[3] Ibid Annexure GB-03.
[4] Ibid Annexure GB-04.
[5] Ibid Applicant’s Materials Attachment 5 – Notice to Principal is Notice to Agent, Notice to Agent is Notice to Principal: Respondent’s Material GB-05.
[6] Ibid Respondent’s Materials Annexure GB-06.
[7] Ibid Applicant’s Materials Attachment 4; Respondent’s Materials Annexure GB-07.
[8] Ibid Applicant’s Materials Attachment 5, Respondent Materials Annexure GB-07A
[9] Ibid Applicant’s Materials pg. 21; Respondent’s Material GB-07
[10] Ibid Respondent’s Materials GB-08
[11] Ibid.
[12] Ibid Applicant’s Form F2 and Respondent’s Form F3.
[13] Ibid Applicant’s Materials Attachment 2 – Separation Certificate; Respondent’s Materials Annexure GB-09A and B.
[14] 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].
[15] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[16] Ibid.
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