Stanislaws Rathnam v Kingston City Council
[2022] FWC 2224
•30 AUGUST 2022
| [2022] FWC 2224 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Stanislaws Rathnam
v
Kingston City Council
(U2022/1535)
| DEPUTY PRESIDENT BELL | MELBOURNE, 30 AUGUST 2022 |
Application for an unfair dismissal remedy.
This decision concerns an application for an unfair dismissal remedy made by Mr Stanislaws Rathnam (the Applicant) under s.394 of the Fair Work Act 2009 (Cth) (FW Act). The Applicant was, until 20 January 2022, employed by Kingston City Council (Respondent). On that date, the Respondent gave written notice terminating the Applicant’s employment.
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 he was unfairly dismissed in contravention of the FW Act.
The Applicant represented himself at the hearing. The Respondent was represented by Mr Richard Frazer, an employee of the Respondent.
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 brief witness statement and much more extensive documentary material. The Respondent called no witnesses. In fact, the Respondent filed no evidence or submissions beyond the (cursory) material contained in its Form F3 response and did not cross-examine the Applicant.
Factual background and findings
The Respondent is a local government council in the Melbourne metropolitan region, with its closest point to Melbourne being about 15km south-east of Melbourne.
The Applicant had been employed by the Respondent since about 2 February 2015. He was employed as a ‘Customer Liaison and Admin Officer’.
Some detail about the Applicant’s position was included in a letter he wrote to the General Manager of Planning and Development for the Respondent. The letter is undated, although it appears to have been written toward the end of October 2021 or soon after. The letter notes he had been performing his duties from home during 2020 and 2021, as directed by his team leader. His letter lists a number of tasks that he said can be performed remotely. They include applications for tree removal, various building enquiries, planning enquiries and other matters.
By October 2021, many Victorians were beginning to emerge from what was commonly called ‘lockdown’, which was a consequence of various public health orders made under Victorian law in response to the COVID-19 pandemic. That emergence, however, was coupled with a broadly cast legal requirement that, with relatively limited exceptions, had the effect of prohibiting unvaccinated workers from attending their place of work. The directive, and subsequent iterations of it, applied to the Respondent.
The first of these directions was made on 7 October 2021, when 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 “public sector worker”, although it did not expressly extend to local government staff. On 14 October 2021, the “COVID-19 Mandatory Vaccination (Workers) Directions (No 2)” (Workers Directions No 2) came into force, which extended the definition of public sector employees covered to local government staff. I am satisfied those directions applied to the Applicant.
By clause 5 of the Workers Directions No 2, an employer was not allowed to permit 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. An employer was required to treat an employee as being unvaccinated if they held no information about the employee’s vaccination status.
Subsequent iterations of the Worker Directions No 2 were proclaimed with similar effect. While there were exemptions under the Worker Directions No 2 and its successors, the Applicant did not assert he satisfied any relevant exemption.
On 20 October 2021, the Applicant was sent an all-staff email from the CEO of the Respondent titled “Next Steps in the Roadmap to reopening”. Among other matters, that email summarised the effect of the Workers Directions No 2 (above) but gave a direction that workers “that can work from home must continue to do so” (original emphasis). Despite the direction to remain working at home, the email foreshadowed that “at some point” when staff are returning on site, they must be vaccinated. Discussions with relevant team leaders were invited.
It would appear that some discussion between the Applicant and a manager occurred. On 21 October 2021, the Applicant was sent an email that referred to discussions held on that day. The email gave more information about the return to work date and indicated that 5 November 2021 was the “tentative date for this to occur”.
On 28 October 2021, a further all-staff email was circulated by the CEO. It provided that re-opening dates for various council public facilities would shortly occur, although they did not immediately affect the Applicant. The email stated that for office-based staff, “anyone who is able to work from home must continue to do so”.
On 29 October 2021, the Applicant sent an email requesting to work from home. He specifically referred to the direction that anyone who is able to work from home “must” do so. The Applicant listed other reasons, including his view that the tasks he undertook were ones that he was currently performing remotely and that he was not coming into contact with customers.
On 1 November 2021, the Applicant received a reply to his email of 29 October 2021. The reply stated, among other matters, that it “is expected that all team members are able to attend the office and take part together in team activities”, unless medical reasons prevented this. The email stated this approach also sought to treat all team members “consistently”.
Soon after, the Applicant sent a five-page letter to the manager with whom he had been corresponding. The exact date is not clear, but it appears to have been sent by around 10 November 2021. That letter noted again the earlier direction that employees “must” work from home and reagitated his request to do so. The letter explained that the Applicant had not yet come to a decision about his vaccination at that point. The letter requested a risk assessment and set out various matters about the vaccine (mostly related to safety and risk) he said he was considering.
On 19 November 2021, the Respondent sent the Applicant a letter by email regarding his recent discussions. Among other matters, the letter stated that “as at today’s date our understanding is that you remain unvaccinated but are being supported with duties that enable you to work from home.” The letter reiterated previous requests for the Applicant’s vaccination status and stated that “all Council employees will be required to attend the workplace from 4 Jan 2022.” The letter stated that to ensure the Applicant could resume in the workplace he “would need a first vaccination at least four weeks prior to the 4 Jan to qualify for a second vaccination by 4 Jan”. It also required the Applicant to provide evidence and/or medical exemption to Mr Frazer by 5pm Friday 10 December 2021.
On 2 December 2021, the Applicant sent an email to his manager requesting to take leave from 29 December 2021 to 4 February 2022. The email indicated he wished to take leave to spend time with family.
On the same day, the Respondent replied to the leave request. While it indicated it would approve his request from 5 January 2022, that approval was stated to be conditional on the Applicant first being vaccinated by 10 December 2021. The letter also stated that, if the Applicant did not do so, that “Termination will be based on you not complying with the lawful and reasonable instruction to provide evidence of a first vaccination by 5pm Friday 10 December 2021.”
On 9 December 2021, the Applicant responded to the above letter. He disagreed that his duties had been changed to allow him to work at home and stated he was able to do normal duties from home or the office. He reiterated his request for a risk assessment and stated he was awaiting that assessment before making a final decision regarding his vaccination. He also stated that he was applying to take leave from 4 January 2022 for approximately 6 weeks “to give you ample opportunity to provide me with a Risk Assessment”.
On 11 December 2021, the Respondent sent the Applicant a letter (dated 10 December 2021) by email. The letter relevantly stated that unless the Applicant was vaccinated or could provide a medical exemption by 4 January 2022, that his employment would be terminated effective the following day. The letter noted there was currently no indication from the Applicant when or if he would be vaccinated and would “return to your role”. The grounds stated for such a termination were not having “complied with a lawful and reasonable work instruction and therefore are unable to fulfil the inherent requirements of your job”.
By 15 December 2021, the relevant Workers Directions were replaced by the Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2022 (Specified Workers Orders), made under Victorian law. The Specified Workers Orders commenced operation on 15 December 2021 and were expressed to end on 12 January 2022. They repealed the then version of the Workers Directions (which by that time was up to version No 8). As with the previous directions, the definition of “worker” in the Specified Workers Orders applied to the Applicant as a “public sector worker”. The orders applied to the Respondent as an employer of the Applicant. The Specified Workers Orders 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 Orders.
On 18 December 2021, the Applicant made a written complaint to the CEO of the Respondent about the author of the correspondence he received on 11 December 2021.
On 30 December 2021, the Applicant then sent to various staff members of the Respondent a document titled “Notice of Default”, which purported to establish a “private contract with you” about various demands and complaints the Applicant had about the COVID-19 vaccinations and whether he would be required to become vaccinated to avoid termination of his employment. The notice purported to establish various consequences if it was not complied with. For example, if the Applicant’s employment was terminated without providing “sworn evidence” for the matters listed (such as safety assurances, evidence about PCR test accuracy, etc) the named parties would be required to pay two million dollars in Australian currency in cleared funds. With no disrespect to the Applicant, who is not legally trained and was clearly under a great degree of stress at the time, this notice was fundamentally misconceived and misunderstood the legal matters it relied upon and its purported legal effect.
On 4 January 2022, the CEO of the Respondent sent an update email to all staff stating that the “compulsory return to the workplace for staff currently working from home will be delayed until at least Monday 31 January.” The communication noted that, after 31 January 2022, staff might perform a mix of spending a few days in the office and some at home. Until then, staff were “encouraged” to work from home although staff who “prefer to come to the workplace may continue to do so”. The email listed various other matters, largely directed at the Respondent’s efforts to managing the impacts of COVID-19.
On 7 January 2022, the Applicant was sent a letter that was, in substance, a ‘show cause’ letter. The letter set out aspects of the public health orders that were at that time in force. It also responded to earlier correspondence from the Applicant in which he had set out reasons why he considered he could continue to work at home. The letter of 7 January 2022 addressed those matters in some detail, and said the Applicant’s duties included the following:
“Support our other front facing staff by:
· Stocking the photocopier each day
· Stocking paper and envelopes
· Produce a monthly planning register, makes redactions then prints and places at the customer counter
· Produce a monthly building register, makes weekly redactions then prints and places at the customer counter
These duties are currently being undertaking by your team leader Naomi Crowe as you have not been available in the office in which is not an acceptable use of staff resources.
Your role also requires you to attend the office in person for the following occasional matters:
· Staff meetings
· Training sessions / team building exercises (for example Stan was not able to attend the Christmas party or group team building exercise we ran on that day)
· From last year Naomi has been up skilling all of her admin staff and training them in a broader range of tasks across the team so we have greater coverage when someone goes on leave which makes the team more flexible. This has not been able to occur with yourself as this training is best done when staff are in the office in order to demonstrate and respond to questions
· More complex data checking as this requires support, so it’s also best done in the office”
On 7 January 2022, the Applicant sent a letter titled “Final Notice of Default”. It would appear to have been sent as a result of the correspondence he received on 7 January 2022. The Final Notice of Default was essentially the same as the earlier notice served on 30 December 2021. I make the same observations about the second notice as I do of the first.
On 11 January 2022, the Applicant sent a further document to the same list of recipients for his previous “notices”, which was titled “Notice of Confirmation”. The header of that document stated that “estoppel conditions apply”. The Notice of Confirmation purported to “confirm” the commencement of the “contract” established “by acquiescence” to the two previous notices. Suffice to say, it had no binding legal consequence to that effect at all. Nonetheless, the Notice of Confirmation was indicative of the Applicant’s position at the time, which was that he considered himself “exempt” from vaccinations, disclosing or providing his vaccine status, wearing a mask, and various “restrictions” including restrictions of access to offices and/or workplaces.
On 12 January 2022, the relevant Specified Workers Orders were contained in the Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2022 No 2 (Specified Workers Orders No 2), made under Victorian law. The Specified Workers Orders No 2 commenced operation on 12 January 2022 and were expressed to end on 12 April 2022. A change to these orders was that they began introducing vaccine “booster” deadlines for certain workers, although that change was not yet presently relevant for the Applicant.
On 16 January 2022, the Applicant responded to an earlier letter he had been sent regarding the rejection of his conduct complaints (cf 18 December 2021, above). In that letter, he also responds to a few of the matters regarding the in-person requirements listed in the letter to him dated 7 January 2022 (extracted above). He notes that Christmas parties do not impact performance reviews. He states that he had “been able to largely work from home” during the pandemic and his time was used effectively. He indicates that if the photocopier runs out, the “next person refills it”. He referred to the “written directive (email dated 4 January 2022 from yourself) requiring that people work from home till the end of January if possible” and states this indicates it is “completely unreasonable to plan to have a fully functional office in the foreseeable future”. He asks about the fact that the Respondent is “moving to a paperless model” and gives examples about the front counters having large monitors. He asks, rhetorically it appears, how many times in the Applicant’s “six years has his adeptness at filling in the photocopier been commended”. And he asks, again rhetorically it appears, about what aspects of the “specific data checking training” that is so complex that it cannot be done remotely.
In his oral evidence, the Applicant agreed that (at least before COVID-19 when he was working in the office) he undertook a number of the tasks listed above. For example, he agreed he stocked the photocopier with paper, albeit he noted that was done along with others present. Similarly, the Applicant would (as would others) stock paper and envelopes.
He agreed that, before COVID-19, he would produce planning registers as broadly stated in the letter. The Applicant says that, since COVID-19, he could prepare those remotely and people could see them remotely.
He acknowledged that, when he was previously in the office, he would attend staff meetings although he added that people often missed those meetings. The Applicant agreed he previously attended training exercises, although he said that since COVID-19, he was trained by his manager online for those matters. He agreed he did not attend the Christmas party but said that it was often the case that people did not attend them.
On 20 January 2022, the CEO of the Respondent sent an update email to all staff stating that the “compulsory return to office-based working has been pushed back to Monday 28 February.”
Also on 20 January 2022, the Applicant was sent a letter in which his employment was terminated. Among other matters, the letter stated that in the Respondent’s letter dated 10 December 2021 “we advised that given there is currently no timeline or indication provided by you as to when you will comply with the Public Health Order and return to your role, it was recommended that your employment be terminated on the grounds that you have not complied with a lawful and reasonable work instruction and therefore are unable to fulfil the inherent requirements of your job.” The letter went on to state that, as those requirements had not been met, the Applicant’s employment was terminated.
Curiously, the letter stated that the date of termination was 18 January 2022, although I cannot see how that would be the case as there was no evidence of any prior communication to that effect. I infer that date was a typographical error, perhaps reflecting an earlier draft of the letter that was not updated on finalisation. There was no issue raised before me that the Applicant’s notice period had been backdated.
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.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
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 it said existed by the Specified Workers Orders No 2, which were 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 at least some of his role onsite.
For the second of these matters, “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”[5] 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.”[6]
In relation to the first component of the Respondent’s reason for dismissal, I note that the Applicant’s witness statement states he is not contesting the legality of any vaccine mandate or pandemic order. I am satisfied this is appropriate.
I consider it clear that the Specified Workers Orders No 2 (and earlier iterations) 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.
As to whether there was an inherent requirement for the Applicant to perform his work on-site, I am satisfied there was. Firstly, and it was not in dispute, the Applicant’s pre-pandemic role was located on-site. He also accepted that, during that period, he performed most of the onsite tasks and activities described in the letter sent to him on 7 January 2022. While the Applicant, with some force, noted that some of those activities – such as the Christmas party – were more peripheral it is tolerably clear to me that the other tasks listed are matters that needed to be performed once the Respondent had reopened (which it had done, albeit it was proceeding in fits and starts).
I consider it would be a peculiar result if, in those circumstances, it could be said that an inherent requirement of the Applicant’s permanent role (i.e. not a role modified to accommodate the circumstances of responses to COVID-19) had no onsite requirement at all in the absence of demonstrable evidence of a permanent change. I consider the evidence of his pre-pandemic duties is a strong indicator of his ongoing requirements.
The Applicant’s contentions in this respect were, in substance, that those tasks were either not that important, or could be performed by other people (as, indeed, the letter of 7 January 2022 states was already occurring via the Applicant’s manager). I do not accept that contention. The simple point is that, upon the Respondent reopening, a number of on-site tasks that were previously paused due to staff being excluded from the office would have to – and were – be undertaken. While a number of those were shared tasks the Applicant would not be undertaking his share of those tasks while he remained at home. Necessarily, they would fall to someone else to perform.
Similarly, I do not accept the contention that the Respondent’s move towards a “paperless” office is an answer. Whatever the status of that shift (and the evidence was a long way from indicating it had been completed or was even near completion), that does not detract from the present requirements of the Applicant’s substantive role. While the Applicant’s substantive role had been temporarily modified by directions from the Respondent, made in response to managing the impacts of the COVID-19 pandemic, the Respondent made it clear that it was intending to return to many of the pre-pandemic arrangements.
What the Applicant was in effect seeking was an indefinite extension of temporary (albeit over an extended period) modifications to his permanent position.
The Applicant contends that, despite these matters, he was still under a direction to work at home and this would be the case whether he was vaccinated or not. While there is some greater force to this, the evidence makes clear that the Applicant was unlikely to ever be vaccinated. At the time of his dismissal, the current version of the Specified Workers Orders were expressed to continue until 12 April 2022, although at the time it ought be fairly considered likely that that date would be extended, as had been steadily occurring since October 2021.
While the Respondent’s plans for a return of staff to the office had a ‘stop-start’ aspect to them, this reflected the challenges of executing the planned return to work. However, it remained very clear that the Respondent did expect – initially from early November 2021 – staff to return to their substantive roles in the office. From at least December 2021, staff were permitted to return (subject to being vaccinated) if they wished to.
While I note at the time of the termination of the Applicant’s employment that the Applicant (along with other staff), were “encouraged” to work from home, that did not affect an inherent requirement of the role, which was to work in the office when required. Those particular circumstances were apt to change at short notice.
The Respondent was, quite appropriately, attempting to give the Applicant and other staff as much notice as possible of the time when compulsory onsite work would be required again. While those dates were changing to meet the changing circumstances of Respondent’s management of the impact of the pandemic, it was entitled to plan for the full return of staff and this included taking steps to ensure that its staff would in fact be in a position to return to the office when required. An essential aspect of that was establishing compliance with the various pandemic orders and the associated vaccination requirements for those staff who would be required in the office. While I accept that the Applicant’s views on vaccination were sincerely held, it is nonetheless clear he would not be getting vaccinated and was unlikely to ever be capable of complying with the pandemic orders in the short to medium term. As an anticipatory breach for an inherent term of his employment contract, I consider that the Respondent was entitled to terminate the contract when it did.
As the Applicant was not vaccinated in satisfaction of the requirements of the Specified Workers Orders No 2, he could not meet – and would not be able to meet - the inherent requirements 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?
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).[7]
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,[8] and in explicit[9] and plain and clear terms.[10]
I am satisfied that the Applicant was given notification of the reasons for the Respondent’s reasons, beginning 7 January 2022 although in substance notification was provided earlier, albeit in less direct terms, by the emails in November and December 2021.
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.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
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.[11]
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.[12] 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.[13]
I am satisfied that the Applicant was given an opportunity to respond and that he did so. Following on from the letter dated 7 January 2022, the Applicant corresponded with the Respondent about those matters (and other matters that he also raised).
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
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 or 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?
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?
Neither party submitted that the size of the Respondent was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s enterprise had no such impact.
What other matters are relevant?
Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
The Applicant raised a number of other matters in his witness statement. They included alleged breaches of the Kingston City Council Enterprise Agreement No.9 (Agreement). Two of the alleged breaches concerned an alleged failure to consult, including for “major change” and to “reduce risks”. The Applicant alleges here that the Respondent failed to provide him with the information he sought, such as that set out above in the various “notices” – an example was information about vaccine safety. I do not consider that the Respondent was required to provide such information and nor do I expect it could have provided such information even if it wished to. The Respondent was required to comply with the Victorian government’s various pandemic orders – it was not required to undertake any safety assessment or otherwise in complying with those obligations.
The second alleged breach concerns an alleged failure to provide a pro rata payment for long-service leave upon termination. This is not an issue that affects whether the termination was unfair or not, although I apprehend that the Applicant states that if the termination of his employment was delayed, he would have been entitled to long-service leave. I have considered this matter in that context.
The final breach was said to be of his employment contract, which was an alleged failure to deal with the Applicant’s complaint (cf. 18 December 2021, above) in a fair and just manner. The gravamen of that complaint was that he was denied natural justice, had not been given an opportunity for genuine consultation, that the Respondent had breached safety policies, and that the Respondent had been deceptive. While there are a number of aspects of the Respondent’s communications that could have been expressed more clearly, I consider they fall a long way short of establishing any level of unfairness that the Applicant complains of.
In his ‘Form F2’ application that the Applicant filed to commence his claim, he also states that the termination process was carried out while he was on sick leave. There was no evidence of this given, and the dates are not clear, although I accept his claim as correct (noting that the Respondent did not seek to lead any evidence at all nor cross-examine the Applicant). Nonetheless, I do not consider that it presented any disadvantage to such a level that it rendered the dismissal otherwise unfair. I note that, at around that time, the Applicant was generating substantial pieces of correspondence that he was sending to the Respondent concerning his employment and matters about vaccination.
I have separately considered whether the fact that the Applicant was “encouraged” to be working from home might render the termination harsh or unreasonable, separately to its relevance to the existence of a valid reason. I do not consider those matters sufficient to render the termination unfair. The Respondent was attempting to return to a pre-pandemic form of work, namely with staff in the office for at least a significant period. Its preference was to do that at an early opportunity, although that was delayed. But even with those delays, staff were permitted to work at the office. I consider it reasonable for the Respondent to be taking steps to ensure that, as soon as it was practicable to do so, all staff whose roles required them to have a permanent presence in the office would be ready to do so. It was not required to allow some form of extended or indefinite ‘wait-and-see’ approach before staff in fact returned.
I consider that none of the matters he has raised would otherwise render the dismissal unfair.
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.[14]
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 that the Applicant’s work, or at least some of it, be performed in-person at the office. By reason of the operation of the Workers Directions, as variously applied up to and including the Specified Workers Orders No 2, which the Respondent was required to comply with under the laws of Victoria, he was unable to meet (and made clear he would not be meeting) 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.
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’s application is therefore dismissed. An order[15] to this effect will be issued separately.
DEPUTY PRESIDENT
Appearances:
S Rathnam on his own behalf.
R Frazer from the Respondent.
Hearing details:
2022.
Melbourne (by video link via Microsoft Teams):
June 27.
[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] J Boag & Son Brewing Pty Ltd v Button[2010] FWAFB 4022, [22].
[6] X v Commonwealth [1999] HCA 63, [102].
[7] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
[8] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[9] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
[10] Ibid.
[11] 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].
[12] RMIT v Asher (2010) 194 IR 1, 14-15.
[13] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[14] 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].
[15] PR745309
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