Stephen Brunec v Department of Justice and Community Safety
[2022] FWCFB 137
•25 JULY 2022
| [2022] FWCFB 137 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Stephen Brunec
v
Department of Justice and Community Safety
(C2022/3442)
| VICE PRESIDENT HATCHER | SYDNEY, 25 JULY 2022 |
Appeal against decision [2022] FWC 1262 of Commissioner Cirkovic at Melbourne on 23 May 2022 in matter number U2022/1753.
Introduction and background
Mr Stephen Brunec has lodged an appeal, for which permission is required, against a decision of Commissioner Cirkovic made on 23 May 2022[1] concerning Mr Brunec’s application under s 394 of the Fair Work Act 2009 (Cth) for an unfair dismissal remedy in respect of the termination of his employment by the Victorian Department of Justice and Community Safety (Department). Mr Brunec was dismissed from his position as a Case Officer with the Department effective from 20 January 2022 on the ground that he was unable to meet the inherent requirements of his position arising from his refusal to be vaccinated for COVID-19. The Commissioner determined in her decision that there was a valid reason for Mr Brunec’s dismissal, that he was afforded procedural fairness, and that his dismissal was not harsh, unjust or unreasonable, and accordingly dismissed Mr Brunec’s application. Mr Brunec appeals the decision on grounds which are summarised later in this decision.
The facts in this matter are largely not in contest. Mr Brunec commenced employment with the Department on 15 February 2010. His role as a Case Officer was, prior to the COVID-19 pandemic, an office-based position located at the Department’s Justice Service Centre in Wodonga. As a Case Officer, Mr Brunec had responsibility for the administration of court orders for offenders as being at low risk of re-offending and managing offenders on reparation orders.
After the commencement of the pandemic in 2020, Mr Brunec was required to work from home, and was provided with a laptop and phone for this purpose. He conducted inductions of offenders, which had previously been done face-to-face, online by video. In the period April to August 2021, during which time restrictions were eased, Mr Brunec returned to the office for initially one, then two days per week. After the reimposition of restrictions in 2021, Mr Brunec returned to working wholly at home.
On 7 October 2021, the Acting Chief Health Officer of Victoria made the COVID-19 Mandatory Vaccination (Workers) Directions (Directions) pursuant to s 200(1)(d) of the Public Health and Wellbeing Act 2008 (Vic). In respect of custodial workers, the Directions relevantly required that their employer not permit them to work for the employer outside their ordinary place of residence on or after 15 October 2021 if they were “unvaccinated” (that is, had not received any dose of a COVID-19 vaccine and was not a medically exempted person). This was subject to the exception that the worker could keep working until 22 October 2021 if they had a booking to receive a first dose of the vaccine. For a custodial worker to be considered “fully vaccinated” under the Directions required two doses of vaccine to have been received by 26 November 2021. There is no dispute that the Directions applied to the Department in respect of Mr Brunec’s employment.
On 8 October 2021, the Department sent an email to all its employees, including Mr Brunec, advising that all employees who needed to leave their home to work had to have at least one vaccine dose by 15 October 2021 or provide evidence of a booking to receive one before 22 October 2021, and had to have received both vaccine doses by 26 November 2021. In respect of staff working from home (as Mr Brunec was at this time), the email advised them “to be fully vaccinated by 26 November to ensure they are able to enter a worksite or work in the community when restrictions ease, or earlier if there is an operational requirement”.
On 15 October 2021, the Department sent a further email to all its employees updating them as to the implementation of the Directions. The email advised that the Department had, after consultation, promulgated a vaccination policy to support the implementation of the Directions (Policy). A hyperlink to the Policy, together with “Frequently asked questions” concerning the Policy (FAQs), was included in the email. The substantive requirements of the Policy were as follows:
“Employees are required to get vaccinated within the timeframes specified by the department and/or any time frame set by a Chief Health Officer direction.
Employees are required to provide information about and evidence of their vaccination status to the department, including whether they are fully, partially or not COVID-19 vaccinated.
Personal or health information recorded from employees will be collected, recorded, stored and disclosed if needed, in accordance with the department’s obligations under the Privacy and Data Protection Act 2014 and where relevant the Health Records Act 2001.
Employees and other workplace participants who are unvaccinated outside the timeframes specified by the department and/or any time frame set by a Chief Health Officer direction will not be permitted to work for the department outside their ordinary place of residence, after this period.
Employees should note that failure to comply with the provisions of this policy may constitute misconduct as per clause 25 of the Victorian Public Service Enterprise Agreement 2020 (VPS Agreement).”
The FAQs included the following:
“Who does the COVID-19 vaccination policy apply to?
This policy applies to all employees of the department who are, or may be, required to work outside their ordinary place of residence. This includes employees who are currently working from home but who may be scheduled to work outside their ordinary place of residence.
This policy also requires all workplace participants performing work for the department to be vaccinated if they are required to work outside their ordinary place of residence.
. . .
This mandatory requirement for employees to be vaccinated is a lawful and reasonable direction and constitutes an inherent requirement of employee’s roles.
When am I required to be vaccinated?
Employees who are required to work outside of their ordinary residence from the 15 October 2021 must have received their first dose of a COVID-19 vaccine by 15 October 2021 or provide evidence of an appointment for their first dose of a COVID-19 vaccine to occur before 22 October 2021. They must have received their second dose of a COVID-19 vaccine by 26 November 2021.
If you are currently working from home but may be scheduled to work outside of your ordinary residence, you must also be vaccinated in the above timeline to ensure you are ready to be deployed.
Consistent with DJCS's current policies around office-based work, it is expected that no employees will be able undertake all their hours of work from their ordinary place of residence once return to work restrictions are lifted.”
The covering email of 15 October 2021 also included the following statement:
“Staff working from home
All staff still working from home are strongly encouraged to get vaccinated now. This will allow sufficient time to get both doses of the COVID-19 vaccination and ensure everyone is able to enter a worksite or work in the community when public health directions allow, or when the default position of three days a week comes back into effect, or earlier if there is an operational requirement.”
Mr Brunec was opposed to being vaccinated and did not provide the Department with evidence of his vaccination status. On 29 October 2021, the Department sent Mr Brunec a “show cause” letter which began by stating:
“I am writing regarding your ability to perform your substantive role as an Advanced Case Manager for the Department of Justice and Community Safety (department). The department's records show you have not confirmed that you have received your first dose of a COVID-19 vaccination. Given you have not complied with the department's COVID-19 vaccinations policy (Policy) the department has formed the view that you are unable to perform the inherent requirements of your role.
The Chief Health Officer's COVID-19 Mandatory Vaccination Directions (CHO Directions) imposes obligations upon employers in relation to the vaccination of workers to limit the spread of COVID-19. Under the CHO Directions, the department must not permit unvaccinated workers, or workers who have not provided evidence that they are vaccinated, to work outside their homes.
Subsequently, the Policy was introduced to ensure the department complies with the CHO Directions and to ensure a safe work environment where protection against transmission of COVID-19 is a priority.
. . .
Because you have not confirmed that you have received your first dose of a COVID-19 vaccination, you are unable to attend the Wodonga Justice Service Centre and perform the duties and responsibilities for which you are employed. The requirement for employees to be COVID-19 vaccinated is a lawful and reasonable direction and an inherent requirement of your role. The department is proposing to terminate your employment because you cannot fulfil the inherent requirements of your role.”
The letter went on to provide Mr Brunec with an opportunity to respond within 14 days. Mr Brunec responded to the show cause letter on 11 November 2021 in a lengthy email in which he discussed his record of employment and his opposition to vaccination and vaccination mandates. In relation to the requirement of his role to perform his duties outside of his residence, Mr Brunec said:
“It’s important to note that my role as a Case Officer requires very minimal client facing contact. And over the past 20 months I have been able to continue to be effective in my role and deliver positive outcomes remotely, as the nature of my role makes this achievable. There have not been any issues or ‘inability to perform the inherent requirements of my role’ over the past 20 months as I’ve clearly been able to demonstrate, and I refute the departments view that this is now the case based on vaccination status.”
Mr Brunec also requested that the Department consider alternative arrangements for the performance of his duties:
“Lastly, I respectfully ask that the department consider my ability to continue to work remotely to be acceptable. Not long ago I had flexible working arrangements approved whereby I was only going to be working in the office two days a week as my role could easily accommodate this. As an alternative to vaccination, I ask that the department consider Rapid Antigen testing for days that I might need to attend the office in person in the future. Another option that could be considered is redeployment to another role. As I stated above, I like my job and I don't want to lose my job. Anyone would agree these are difficult times and whilst the department will claim that I have failed to comply with a lawful and reasonable direction, I can clearly demonstrate that I in fact do have the ability to perform the inherent requirements of my role.”
On 19 November 2021, the Department sent an email to Mr Brunec stating that his response to the show cause letter had not changed the requirement to adhere to the Policy. The email stated:
“The COVID-19 vaccination policy applies to any employee who is, or may be, required to work outside their ordinary place of residence. This includes employees like you who have been temporarily working from home, but who will be required to return to work outside their place of residence.
It is unclear from your response whether you have any intention to be vaccinated in the foreseeable future, however the requirement is for you to be fully vaccinated against COVID-19 by 26 November 2021, which is a lawful and reasonable direction and an inherent requirement of your role. If you remain unvaccinated you will be unable to attend your workplace and perform the duties and responsibilities for which you are employed.”
The email requested that Mr Brunec provide, by 28 November 2021, evidence of a medical contraindication to the vaccine or evidence of an appointment to receive the first dose of the vaccine. Mr Brunec was also warned that unless this evidence, or further information that materially altered the Department’s view about his capacity to fulfil the inherent requirements of his role, was provided, the Secretary of the Department would be advised to consider the termination of his employment.
Mr Brunec claimed that he did not become aware of the 19 November 2021 email until 25 November 2021. He sent an email in response on 26 November 2021 which articulated at length his anti-vaccination views but which also stated:
“It still isn’t clear to me, however temporary my working from home arrangements were going to be (20 months+ is hardly temporary), why now is any different to the past 20 months. I wasn’t allowed to attend the office in that time and didn’t have to. It was ‘business as usual’. There were times when I would have liked to, but I was not permitted. It wasn't an issue. In fact, the department and management encouraged and enforced this practice. It wasn’t an inherent requirement and didn't impact my ability to perform the duties and responsibilities for which I was employed. The situation is now the same, the department are not permitting me to attend the office. So how is the department now determining or forming an opinion that I am unable to perform the duties and responsibilities for which I am employed? What is different compared to the past 20 months?”
At or about the time Mr Brunec sent the email, he went on sick leave. He gave evidence before the Commissioner that this was because he was “under stress and anxious, and was finding it difficult to focus and concentrate on work”. He remained on sick leave until he commenced a period of previously-approved annual leave on or about 21 December 2021.
The Department provided a comprehensive response on 1 December 2021 which included the following in respect of Mr Brunec’s request for a continuation of working from home arrangements:
“The requirement for staff to work from home, where practicable, was introduced as a temporary response to the pandemic. The pandemic has had a serious worldwide impact. In Victoria, stringent measures were implemented to minimise the impact of COVID-19 on the community, including significant lockdowns that has affected businesses and the community. The vaccination now alleviates the need for these stringent measures and also removes the temporary need that department employees work from home. Similar to home schooling not being viable on an ongoing basis, it is also not viable that department employees would never return to the office on an ongoing basis. As a Case Officer, your email of 11 November 2021 acknowledges that there are times that you may need to attend the office in person. The proposal of Rapid Antigen Test does not provide a layer of protection against the COVID-19 virus like the vaccination does, it is limited to determining whether an individual has contracted the COVID-19 virus.”
The email warned Mr Brunec again that unless he provided evidence of a medical exemption from vaccination by 8 December 2021, the Secretary would be advised to consider the termination of his employment. Mr Brunec then responded with an email on 7 December 2021 which further articulated his anti-vaccination and anti-vaccination mandate views, and reminded that he would be taking annual leave from the end of the following week and would not be returning to work “until school goes back next year”. Mr Brunec did not provide evidence of a medical exemption by the deadline of 8 December 2021. On 21 December 2021, Mr Brunec sent a further email to the Department which included the following:
“The unfortunate reality is that I cannot afford to lose my job or my ability to provide for my family. Given the coercion, threat, and fear of being terminated I will reluctantly submit to the experimental jab. I will do so under duress and only for the purpose of preserving my employment and ongoing employability. I do not want the experimental jab and nor do I consent to it in any way. I absolutely do not give informed consent. I will be making it very clear to the doctor or nurse of the reason I am there submitting and that I do not consent in any way to having the experimental medical procedure. I will make it clear I do not give informed consent. I will submit to the departments direction but as is my right/choice, I will not consent to the procedure. Should the doctor or nurse refuse to carry out the experimental medical procedure on me due to me not consenting, I don’t expect to be victimised due to their actions nor for expressing my opinions on this issue in this email. I am on annual leave until 28th January 2022 and I will provide confirmation of a booking and completion of a first dose prior to my expected return.”
Mr Brunec further expanded upon his anti-vaccination views in this email.
On 24 December 2021, the Department sent Mr Brunec an email which relevantly stated:
“Thank you for your emails, including the emails dated 7 December and 21 December 2021.
The department’s COVID-19 vaccinations policy (policy) required you to be fully vaccinated by 26 November 2021. The requirement for you to be vaccinated is a lawful and reasonable direction and an inherent requirement of your role.
I understand that you are not currently vaccinated and do not intend to get vaccinated.
I note the material provided in your emails and the earlier correspondence that has been provided, including the department’s response to you dated 1 December 2021.
As mentioned in the 1 December 2021 email, please note that the correspondence you have provided does not materially alter the department’s view about your capacity to fulfil the inherent requirements of your role. The Secretary will be advised to consider terminating your employment.”
On 13 January 2022, the Secretary of the Department sent Mr Brunec a letter advising him that his employment would be terminated effective from 20 January 2022. The letter relevantly stated:
“The department has assessed your capacity for employment in line with the department’s Policy which requires an employee who is, or may be, required to work outside their ordinary place of residence to be COVID-19 vaccinated.
Your role as a Case Officer, Community Correctional Service – Hume Region requires you to leave your primary place of residence to undertake the inherent requirements of your role, including attending the Wodonga Justice Service Centre to apply case management practice to reduce reoffending, engage with offenders to build responsibility, connect offenders to programs, services and community and complete paperwork and court order administration.
Your non-compliance with the requirement to be vaccinated means that you are unable to leave your home to undertake the inherent requirements of your role.
Given your circumstances, including your non-compliance with the department’s policy and that you cannot lawfully attend your workplace, I am satisfied that you cannot perform your role as a Case officer, Community Correctional Services and therefore in line with the provisions of section 33 of the Public Administration Act 2004 (Vic) I am terminating your employment.”
There is no evidence that Mr Brunec attempted to obtain a COVID-19 vaccination in accordance with his statement of intention in his email of 21 December 2021 at any time prior to being advised of his dismissal, and he remains unvaccinated.
Mr Brunec filed his unfair dismissal application on 9 February 2022. In his application, Mr Brunec contended that his dismissal was unfair because he was able to perform the inherent requirements of his job while working at home and there was no reason why this could not have continued.
The decision
After outlining the non-contentious facts in her decision, the Commissioner made findings in respect of the matters required to be taken into account under s 387 of the FW Act. In respect of s 387(a), the Commissioner found that the effect of the Directions was that the Department was prohibited from allowing Mr Brunec to undertake work from its Wodonga office from 15 October 2021 due to his refusal to be vaccinated and his failure to provide a medical exemption, and that “[t]his meant that he was not able to fulfil his role, which at least in part, could only be performed on site”.[2] The Commissioner referred to Mr Brunec’s grievance that a flexible working arrangement should have been granted and the factual dispute about whether such an arrangement in respect of Mr Brunec existed, and said that even if the arrangement did exist in the terms contended by Mr Brunec, it required him to attend the Wodonga office at least two days per week.[3] The Commissioner also noted the following concessions made by Mr Brunec in cross-examination:
The part of his job that required attendance at the workplace would need to be performed by someone else if he were to work remotely indefinitely.
The position description put into evidence by the Department applied to his position and stated that Mr Brunec might need to “attend call outs as required”, which would require him to leave home and attend the workplace.
The Flexible working policy and related guideline applicable to him contemplated face-to-face meetings as part of the role as a case officer.
Not everyone who needed to access the Department’s services would be able to have a meeting remotely given potential issues accessing technology.[4]
The Commissioner did not accept Mr Brunec’s assertion that the Department’s refusal to allow him to continue working from home was unreasonable, and accepted the evidence of the Department’s witness, Susana de Pedro (Director, Employee and Workplace Relations, People and Workplace Services) that the Department could not operationally accommodate Mr Brunec’s request to continue working from home and that the decision to dismiss him was made on reasonable business grounds.[5] The Commissioner also took into account the indications from the Victorian Government that the vaccination requirements would be in place for a considerable period and that the Department was currently in consultation concerning a requirement for its employees to receive a third dose of the COVID-19 vaccination.[6] The Commissioner concluded that, for the reasons she gave, the Department had a valid reason to terminate Mr Brunec’s employment.[7]
In relation to s 387(b) and (c), the Commissioner found that Mr Brunec was notified of the reasons for his dismissal and given an (ample) opportunity to respond, of which he took advantage.[8] There is no issue raised in Mr Brunec’s appeal concerning the Commissioner’s findings in respect of paragraphs (d), (e), (f) or (g) of s 387 and, accordingly, it is not necessary to refer to them here. In relation to s 387(h), the Commissioner considered the following matters:
Mr Brunec had no capacity to work in his job with the Department from 15 October 2021, and that situation was not likely to change in the foreseeable future taking into account that Mr Brunec was not yet vaccinated at the time of the hearing;[9]
it was misguided for Mr Brunec to point to arrangements put in place by the Department to deal with employees who had provided evidence of a medical exemption from vaccination because Mr Brunec had provided no evidence of an exemption in line with the Directions;[10]
while Mr Brunec’s concerns about the COVID-19 vaccine were genuinely held and his dismissal had caused him great distress, the Department was obliged to comply with the law;[11]
the submission that Mr Brunec could have attended the Wodonga office and undergone rapid antigen testing was also misguided, since the Directions provided no exceptions for employees who returned negative COVID-19 results;[12]
there was no basis for Mr Brunec’s submission that the reason for his termination was because the Department disapproved of his choice to remain unvaccinated and that this was the driver of the decision to terminate his employment;[13]
the Full Bench decision in Lee v Superior Wood[14] which was relied upon by Mr Brunec was of no assistance in the matter;[15]
Mr Brunec had worked for the Department for nearly 12 years and had an unblemished record but, because he remained unvaccinated, the Department was prevented from allowing him to attend the workplace;[16] and
the Department had not acted unreasonably in not allowing Mr Brunec’s temporary arrangements to work from home to continue in the short to medium term.[17]
The Commissioner concluded that the dismissal was not harsh, unjust or unreasonable, and said:
“[54] The Respondent conducted a fair and thorough process in all the circumstances and was respectful of the Applicant’s concerns. However, ultimately the Applicant was unable to meet the inherent requirements of his role, and his employment was terminated as the Respondent had no option but to comply with the CHO vaccination directions.
[55] I appreciate that this is disappointing for the Applicant after nearly 12 years at a job that he loved, but I am satisfied that his dismissal by the Respondent was not unfair. The application is dismissed.”
Appeal grounds and submissions
Mr Brunec’s appeal grounds and his written submissions raised four matters. First, Mr Brunec contended that a position description for his role which the Department had placed into evidence (via a supplementary witness statement made by Ms de Pedro) constituted “false and misleading evidence”. It was submitted that the position description was not the current position description at the time of the dismissal, had been altered to make it appear authentic, was dated to a time (2016) when the role of Case Officer did not yet exist, and was an “old, redundant and no longer used position template”. Mr Brunec contended that the position description was relied upon by the Department because it contained a reference to a requirement to “attend call-outs as required”, which requirement did not appear in the current position description and was not in fact a requirement of the Case Officer role. It was submitted that, apart from this, there was “no reason to have used a six year old template that is redundant, over the current version which has existed for a minimum two years at least, since 2020.” Mr Brunec sought, in the appeal, to have admitted into evidence a document which he contended was the current position description.
Second, Mr Brunec contended that the Commissioner made a significant error of fact in finding that he did not have the capacity to work in his job with the Department from 15 October 2021. To the contrary, Mr Brunec submitted, from 15 October 2021 to the time he commenced his period of annual leave, he had not been scheduled to work outside his residence nor directed to return to the office to work. At the time of the dismissal, Mr Brunec was on annual leave, and he had not been directed to attend the office on his return from annual leave on 27 January 2022. Mr Brunec also referred to the Department’s 15 October 2021 email (by which employees were notified of the Policy and the FAQs), which “strongly encouraged” staff working from home to get vaccinated so that everybody was able to enter the worksite or work in the community when “public health orders allow”. He submitted that “given I was still deployed from home and had not been given a direction or date to attend the office to work, the evidence of the Respondent does not support a finding that I was unable to perform the inherent requirements of my role (because I had not been required to attend the office)”.
Third, the Department had relied upon three functions as justifying its conclusion that Mr Brunec was unable to perform the inherent requirements of his role, namely offender induction, filing and client contact. Mr Brunec contended that none of these functions is included in the key accountabilities or role purpose of the “actual” Case Officer position description, which makes no reference to face-to-face work with offenders, any actual contact is minimal and kept to phone, text or email, and thus the functions are not inherent requirements of the role. It was submitted that when the Commissioner referred to Mr Brunec accepting that part of his job required attendance at the workplace, this referred to filing, which was a peripheral or non-essential task.
Fourth, because the show cause letter and the termination letter only raised the capacity-related reason for Mr Brunec’s dismissal that he was unable to perform the inherent requirements of his role as a Case Officer, he contended that he was not notified of any reason relating to his conduct arising from a failure to comply with a lawful direction nor given any opportunity to respond to this. It followed, it was submitted, that paragraphs (b) and (c) of s 387 were not satisfied, and there was no valid reason for dismissal under paragraph (a) relating to misconduct for failing to comply with lawful directions.
In his oral submissions, Mr Brunec raised what we understand to be an additional ground of appeal, namely that the Commissioner erred by not taking into account that, in his email to the Department of 21 December 2021, he had indicated a preparedness to be vaccinated prior to his return from annual leave. He submitted that, in the face of this indication, it was unfair for the Department to proceed to dismiss him on the basis that he did not intend to be vaccinated.
Mr Brunec submitted that it would be in the public interest to grant permission to appeal because:
as a Victorian public sector agency with over 9000 employees, there needs to be transparency and accountability on the part of the Department;
the submission of false and misleading evidence on the part of the Department to affect the outcome of an unfair dismissal application is an offence, needs to be the subject of public awareness, is unacceptable and cannot go unchecked;
the Commissioner relied upon false and misleading evidence, which led to her using irrelevant factors to guide her decision, and the Commissioner did not fully understand the facts presented by Mr Brunec in the context of his role and capacity; and
the Department had failed to provide Mr Brunec with pay slips despite numerous requests by him since his dismissal.
Consideration
The Commissioner’s decision is one to which s 400 of the FW Act applies. Therefore, permission to appeal must not be granted unless the Commission considers it is in the public interest to do so (s 400(1)). Further, appeals on a question of fact can only be made on the ground that the decision involved a significant error of fact (s 400(2)).
This test in s 400(1) a stringent one.[18] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[19] Some of the considerations that may attract the public interest are where a matter raises issues of importance and general application, or there is a diversity of decisions at first instance so that appellate guidance is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[20] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[21] However, the fact that the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[22]
In this matter, we do not consider that any of Mr Brunec’s contentions of appealable error are reasonably arguable. Mr Brunec’s first contention is that the position description for his role as a Case Officer which the Department placed into evidence via the supplementary witness statement of Ms de Pedro was “false” and “fabricated”. However, that contention is entirely contrary to the evidence which Mr Brunec gave before the Commissioner. He was taken to that position description by counsel for the Department in cross-examination, and the following exchange occurred:
“…Mr Brunec, we’ll put aside the case officer guidelines for a moment now and I’d like to ask you, there’s a position description and I understand I haven’t yet tendered this in evidence but it will be tendered in evidence and I understand there’s no objection to this document. It’s the annexure to the supplementary statement of Ms De Pedro. This was the document that was sent last night and then re-sent again this morning. But what I’m wanting to take you to is your position – the position description which is the annexure to that supplementary statement? - Yes, I have that there.
Yes, great. This is the position description for a case officer, would you accept that? - Yes, yes.
Yes and this was the position description for your job, wasn’t it? - Correct.”[23]
The above exchange makes it clear that Mr Brunec accepted that the position description relied upon by the Department applied to his job, and at no stage during the hearing before the Commissioner did Mr Brunec contend that the position description was incorrect or out-of-date let alone “false” or “fabricated”. Mr Brunec is therefore attempting to advance a new case on appeal in respect of the position description. We see no reason to depart from the usual principle that permission to appeal would not be granted in order to allow an appellant to argue a case on appeal which it did not raise at first instance, in circumstances where the respondent might have adduced evidence about the issue had it been agitated at first instance.[24]
In any event, Mr Brunec’s new case concerning the alleged falsity of the position description was not supported by any probative evidence. At the hearing of the appeal, he tendered a document which he submitted constituted the position description applicable to him at the time of his dismissal. However, upon inquiry about the provenance of this document, Mr Brunec said that he only obtained a copy of the document in about March 2022, after he was dismissed. The Department’s position was that the document took effect after February 2022 and thus was never applicable to Mr Brunec’s employment. The document contained a reference to a requirement to be vaccinated against COVID-19, so it was plainly not “the current version which has existed for a minimum of two years at least, since 2020” as referred to in Mr Brunec’s appeal submissions (which alleged version has never been produced by Mr Brunec). We rejected the tender of the document at the hearing because, in the circumstances described, there was nothing probative to suggest that it was operative during the period of Mr Brunec’s employment. Beyond this, Mr Brunec’s new case rose no higher than the level of assertion.
Mr Brunec’s second contention is that the Commissioner made a significant error of fact in finding that he did not have the capacity to work in his job from 15 October 2021 because he was never scheduled to work outside his residence or directed to return to the office to work. This contention is fundamentally flawed. The relevant requirement of the Directions was that the Department was prohibited from allowing Mr Brunec to work outside his residence from 15 October 2021 unless he was vaccinated or evidenced a medical exemption from vaccination. Accordingly, the Department was not in a position from that time to schedule or direct Mr Brunec to perform any work outside his residence or return to the office because to do so would have involved a contravention of the Directions given that Mr Brunec refused to be vaccinated and did not have a medical exemption. The purpose of the Department requiring (through the Policy) that Mr Brunec be vaccinated by the deadlines prescribed by the Directions was so that the Department would be in a position to require him to return to the office and perform his duties in the manner that they had been performed prior to the pandemic.
It may be accepted that, as someone who was then performing his duties at home, the all-staff emails of 8 and 15 October 2021, and the Policy and FAQs, were not entirely clear as to when Mr Brunec was actually expected to return to the office. The 8 October 2021 email referred to a requirement to be vaccinated by 26 November 2021 so that staff could enter a worksite or work in the community “when restrictions ease, or earlier if there is an operational requirement”, without specifying when either of these events might occur. It may be noted that, by the date of this email, restrictions on movement in regional Victoria had already been lifted, but it is not clear whether these are the “restrictions” referred to in the email. The 15 October 2021 email referred, in respect of staff then working at home, to them being vaccinated so that they could enter a worksite or work in the community “when public health directions allow, or when the default position of three days a week comes back into effect, or earlier if there is an operational requirement”. These are all future contingent events. The FAQs similarly said that staff working at home had to be vaccinated “to be ready to be deployed” and would not be allowed to work entirely from home “once return to work restrictions are lifted”. It cannot be said therefore that anything in the 8 and 15 October 2021 communications clearly conveyed, in respect of Mr Brunec, any current requirement or expectation that he return to the office.
However, any doubt on that score would have been dispelled by the 29 October 2021 show cause letter, which made it clear that the Department then regarded Mr Brunec as being unable to perform the inherent requirements of his role because he was “unable to attend the Wodonga Justice Service Centre and perform the duties and responsibilities for which you are employed”. That Mr Brunec understood that the Department now expected him to return to the office (and be vaccinated to allow this lawfully to occur) is seen in his reply of 11 November 2021, when he requested he instead be given permission to continue working from home or, alternatively, that he be subject to rapid antigen testing when attending the office rather than being vaccinated.
On one view, it might be considered unsatisfactory that a clear expectation that Mr Brunec return to work in the office was only conveyed in a show cause letter which threatened him with dismissal. If the show cause letter had quickly led to Mr Brunec’s dismissal, that might arguably have given rise to unfairness. However, Mr Brunec was afforded multiple opportunities after both the 15 October 2021 and the 26 November 2021 vaccination deadlines had passed to become vaccinated or provide evidence of a medical exemption so that he could return to the office, and all the matters which he raised were comprehensively responded to by the Department. He was not given notice of his dismissal until approximately eleven weeks after the show cause letter. It is apparent, we consider, that if he had taken any step towards being vaccinated during this period (or to obtain a medical exemption), notwithstanding that the deadlines in the Directions had already passed, he would not have been dismissed.
Mr Brunec’s third contention of error is directly contrary to the evidence which he gave before the Commissioner about the way in which offender induction, filing and client contact work was normally conducted. It is sufficient in this respect to refer to the following transcript extracts from Mr Brunec’s cross-examination:
“… would it be a correct summary of your job to say that you perform an induction with an offender and then follow up with them to ensure that they're meeting the terms of their order? - Yes, an induction is part of the role, yes.
Yes and then you have follow-up obligations to make sure they're meeting the terms of that order? - I have follow-up obligations if they're known to be non-compliant.
If they're known to be non-compliant. Before the pandemic you performed your role in the office, didn't you? - That is correct, yes.
Yes and but the pandemic, you performed most of your role at home? - During the pandemic I performed everything from home, all of my role from home, yes.
Mr Brunec, you've said in your statement that you did attend the office a few times during the pandemic, didn't you? - That is correct.
Did you perform work when you were attending the office during the pandemic? - Yes, I did.
Yes, so some of your work was performed in the office during the pandemic? - Yes, some of it was, yes.
Yes and you were allowed to do that because you were a class of workers that had an exemption and were allowed to attend and leave your home for work? - Well, yes, I was categorised as an essential worker.[25]
. . .
…We have here a flow chart about the tasks that are required at pre-induction, during induction, at the offender interview and at the post-offender interview. That's a yes? - Yes. - A lot of this is administrative work, would you accept that? - Yes.
So it's gathering personal information from the offender, like signatures, you need to take a photo of the offender? - Yes.
At the end of this, this all needs to be filed, doesn't it? - Yes.
Yes and you'd accept that it's a hard copy filing system, isn't it? - Yes, it is.
Yes and there's a lot of personal stuff in this so you'd accept that those files can't be kept at your home? - That is correct.
That is correct. They need to be kept in the office? – Yes, no personal information or files were ever kept at home.[26]
. . .
Yes, thank you. I'll ask you now just to turn to page 770 of this booklet or these guidelines and we can see at the top of this 3.2 is talking about case officer contact? - Sorry, yes.
Yes and we can see here that it says that, you know, contact is limited to phone, email or text message unless a face-to-face meeting is required due to responsivity issues. Sorry, Mr Brunec, you're on mute? - Sorry, I'm just scrolling down, sorry.
Yes, that's okay. - Sorry, was that page 770 you were referring to? - Yes, page 770 at the top of it, under the heading, '3.2 Case Officer Contact'? - Yes, I have that there and then it says, 'The case officer determines the method of contact based on the seriousness of the non-compliance.'[27]
. . .
… you would accept that it is contemplated that there would be face-to-face meetings as part of the role of a case officer and that is contemplated by the guidelines? - Yes, correct.
You would also accept that not everybody who might need a face-to-face contact would be able to do so over an electronic means such as Zoom or Teams because not everyone would have a computer that they would be able to do that by, wouldn't they? - There's a possibility that could occur.[28]
. . .
Would you accept that if you couldn't go into the office, the parts of your job that needed to be done in person and we've accepted that filing and administrative stuff needs to be done in person and you've accepted that there might be circumstances where a face-to-face meeting might need to be done. That would need to be done, then, by somebody else who could attend the office, wouldn't it? - Yes.”[29]
The above evidence given by Mr Brunec demonstrates that, although there might be questions of degree, the offender induction, filing and client contact functions of his job required his attendance at the Wodonga office. Consistent with this, Mr Brunec also gave evidence that, at some time before the Directions were made, he entered into a flexible working arrangement under which he would work two days per week in the office and three days per week at home. As the Commissioner noted, this evidence (which was contested by the Department as to the existence of the arrangement) was demonstrative of a requirement to work in the office which would not be able to occur if Mr Brunec was not vaccinated.
The import of Mr Brunec’s fourth contention of error is unclear to us. The reason given for Mr Brunec’s dismissal in the Department’s termination letter of 13 January 2022 concerned his incapacity to perform the inherent requirements of his role. It was this capacity-related reason which the Commissioner found to be valid for the purpose of s 387(a). Accordingly, no issue arises as to whether Mr Brunec was afforded procedural fairness in respect of any conduct-related reason for his dismissal.
Mr Brunec’s additional contention of error raised at the hearing, namely that the Commissioner erred by not taking into account that he had indicated a willingness to be vaccinated in his 21 December 2021 email, is completely without merit for the following reasons:
(1)In his communications with the Department up until 21 December 2021, Mr Brunec had consistently made clear his position that he refused to be vaccinated.
(2)Mr Brunec’s statement in the 21 December 2021 email to the effect that he would attend for a vaccination, but make clear to the doctor or nurse his refusal of consent to be vaccinated, cannot be regarded as a serious proposition. We consider that this statement must be regarded as performative rather than a statement of intent, since Mr Brunec would have well known that a vaccine would not be administered if he indicated a refusal of consent in the terms described in the email. This is confirmed by the fact that there is no evidence that Mr Brunec ever did what he said he would do in the email.
(3)On 24 December 2021, an email from the Department to Mr Brunec stated its understanding that Mr Brunec did not intend to be vaccinated. Mr Brunec had ample opportunity prior to his dismissal to contradict this if he considered it to be untrue, but did not do so.
(4)Even if Mr Brunec had obtained a first vaccination dose during his annual leave, he could not have been fully vaccinated prior to his return to work (because of the necessary time gap between the first and second doses), and thus would still not have been permitted to work outside his residence.
(5)Mr Brunec never contended before the Commissioner that his dismissal was unfair because he had indicated an intention to undergo vaccination before being dismissed.
We do not consider that Mr Brunec’s appeal raises any issue of law, principle or general application which would render the grant of permission to appeal to be in the public interest. His contention that there needs to be transparency and accountability on the part of the Department does not attract the public interest, since his dismissal has already been the subject of a comprehensive and well-reasoned public decision by the Commissioner and found not to be unfair for reasons which are not attended by any appealable error. We have already rejected Mr Brunec’s allegations concerning false and misleading evidence. If Mr Brunec has not been provided pay slips as alleged, that is regrettable but is of no relevance to the fairness of his dismissal.
For the reasons stated above, we are not satisfied for the purpose of s 400(1) of the FW Act that it would be in the public interest to grant permission to appeal to Mr Brunec.
Conclusion
Because we do not consider that the grant of permission to appeal would be in the public interest, s 400(1) prohibits such permission being granted. Accordingly, permission to appeal is refused.
VICE PRESIDENT
Appearances:
S Brunec, the appellant, in person.
Dr L Hilly of counsel for the respondent.
Hearing details:
2022.
Sydney and Melbourne by video link:
8 July.
[1] [2022] FWC 1262
[2] Ibid at [31]
[3] Ibid at [32]-[33]
[4] Ibid at [33]
[5] Ibid at [34]-[35]
[6] Ibid at [35]
[7] Ibid at [37]
[8] Ibid at [38]-[41]
[9] Ibid at [46]
[10] Ibid at [46]
[11] Ibid at [47]
[12] Ibid at [47]
[13] Ibid at [48]
[14] [2019] FWCFB 2946
[15] [2022] FWC 1262 at [49]
[16] Ibid at [50]
[17] Ibid at [51]
[18] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43] per Buchanan J (with whom Marshall and Cowdroy JJ agreed)
[19] O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
[20] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [27]
[21] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
[22] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
[23] Transcript, 19 May 2022, PNs 138-140
[24] Nilsen (SA) Pty Ltd v CEPU[2016] FWCFB 3119 at [13]- [15]; Romic v Blacktown City Council[2020] FWCFB 6098 at [16]
[25] Transcript, 19 May 2022, PNs 98-105
[26] Ibid, PNs 115-120
[27] Ibid, PNs 121-123
[28] Ibid, PNs 133-134
[29] Ibid, PN 137
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