Stephen Brunec v Department of Justice and Community Safety
[2022] FWC 1262
•23 MAY 2022
| [2022] FWC 1262 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Stephen Brunec
v
Department of Justice and Community Safety
(U2022/1753)
| COMMISSIONER CIRKOVIC | MELBOURNE, 23 MAY 2022 |
Application for an unfair dismissal remedy – employment subject to Directions of Victorian Acting Chief Health Officer – Applicant elected not to receive a COVID-19 vaccine – dismissal not unfair – application dismissed.
Mr Stephen Brunec (the Applicant) was employed by the Department of Justice and Community Safety (Victoria) (the Respondent) as a Case Officer. After being employed by the Respondent for nearly 12 years, his employment was terminated effective 20 January 2022, on the ground that he was unable to meet the inherent requirements of his position. The Applicant had refused to provide the Respondent with proof that he had been vaccinated against COVID-19.
The matter proceeded to a hearing conducted by Microsoft Teams on 19 May 2022 and the Respondent sought permission, under s.596 of the Act to be legally represented. Having weighed the circumstances and considerations in s.596 of the Act, I granted permission to the Respondent to be represented by Dr Laura Hilly of Counsel.
During the course of the hearing, the Applicant gave evidence in support of his case. Ms Susana de Pedro gave evidence for the Respondent.
For the reasons below, I have found that the Applicant’s dismissal was not harsh, unjust or unreasonable, and that it was therefore not unfair.
Background
The Applicant began working for the Respondent on 15 February 2010. At the time of the dismissal on 20 January 2022, the Applicant was employed as a Case Officer.
Pursuant to the Victorian Government’s Chief Health Officer (CHO) COVID-19 Mandatory Vaccination (Workers) Directions (the CHO vaccination directions) commencing 11:59:00pm on 7 October 2021,[1] “authorised workers” were required to receive their first dose of the COVID-19 vaccine by 15 October 2021. There is no contest that the Applicant was an authorised worker for the purposes of the CHO vaccination directions. The Respondent sent an email to all workers, including the Applicant on 8 October 2021 stating:
·“all public sector employees, must be vaccinated against COVID-19 in order to attend the workplace.”
·“all DJCS employees who need to leave their home to work must have:
· at least one vaccine dose by 15 October 2021, or provide evidence of an appointment before 22 October
· both vaccine doses by 26 November 2021.
·“Staff working from home are advised 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.” [2]
The CHO vaccination directions have been updated from time to time, however at all relevant times Victorian public sector employees have been required to be vaccinated against COVID-19 to perform work on site.[3] The refusal or failure by an employer to comply with the Directions is an offence which carries a significant penalty.
For convenience I have set out below the relevant communications between the Applicant and the Respondent that followed the CHO vaccination directions and I note that there is no serious contest between the parties as to the substance of the communications between them.
In the period following the 1 October 2021 Victorian Government announcement, the Respondent provided its employees with considerable information about the CHO vaccination directions, including that from 15 October 2021, non-exempted unvaccinated employees would not be allowed to attend the workplace, that they may be unable to meet the inherent requirements of their role and their employment may be terminated.[4] The Respondent further provided advice to employees “currently working from home” that they “must also be vaccinated to ensure that they are ready to be deployed.”[5] On 15 October 2021, the Respondent sent an email to all workers, including the Applicant, stating, inter alia, that all staff working from home are “strongly encouraged to get vaccinated now” as to do so would “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.”[6]
The Applicant responded to the Respondent’s 15 October 2021 email at 3:39PM on 15 October 2021 stating that he had not advised the Respondent of his vaccination status and “noting that if I haven’t, I will be treated as unvaccinated.”[7]
On 29 October 2021, the Respondent sent a letter to the Applicant stating that his failure to provide evidence that he had received his first dose of the COVID-19 vaccine was in breach of a lawful and reasonable direction and “the department is proposing to terminate your employment because you cannot fulfil the inherent requirements of your role.” Further, the Applicant was given 14 days from the date of that correspondence to respond to the proposed termination of employment and to provide any evidence of vaccination or a valid medical exemption. The correspondence also confirmed that the Applicant was entitled to access the department’s employee wellbeing support service.[8]
On 11 November 2021, the Applicant responded to the proposed termination of employment letter canvassing a range of matters including that the circumstances surrounding his vaccination status had caused him stress and anxiety and had taken a toll on his family, that his substantive role is a case officer and that in that role he is required to engage in “very minimal client facing contact.” To that end he points to the period that he worked from home over the course of the COVID-19 stay at home orders as demonstrative of that fact. He also disputes the validity of the introduction of the Respondent’s vaccination policy and the safety of the COVID-19 vaccination.[9]
The Applicant also states in that correspondence that he had a flexible working arrangement approved by the Respondent whereby he was only going to work in the office two days per week and requested that the Respondent consider Rapid Antigen Testing on the days he was required to attend the workplace or consider redeploying him to another role.[10]
On 19 November 2021, the Respondent emailed the Applicant stating that his response of 11 November 2021 did not materially alter the Department’s view that the Applicant was unable to fulfil the inherent requirements of his role and repeated its request for the Applicant to provide proof of vaccination (or proof of an appointment to be vaccinated) or provide medical evidence of a valid exemption from the vaccination requirements.[11]
Further, correspondence was exchanged between the Applicant and Respondent, from 26 November 2021 to 21 December 2021, the substance of which was essentially in similar terms to the correspondence referred to above at paragraphs 10 through to 15. It is worth noting that the Applicant sent an email to the Respondent at 4:50PM on 21 December 2021 stating:
“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.”[12]
Following this chain of correspondence, on Friday 24 December 2021 the Respondent sent the Applicant an email stating that it understood the Applicant was not currently vaccinated and did not intend to get vaccinated. As such, the Respondent stated that the Secretary of the Department would be advised to consider terminating the Applicant’s employment.[13]
On 13 January 2022, the Applicant was advised by email correspondence that his employment was terminated effective 20 January 2022, given that he was unable to perform the inherent requirements of his role, which required an employee to work outside their ordinary place of residence, including attending the Wodonga Justice Service Centre.
Initial matters to be considered
There is no dispute between the parties, and I am satisfied, in relation to the four matters referred to in ss.396(a)-(d) of the Act, as follows.
Firstly, the Applicant’s application was made within the 21-day period after the dismissal took effect, as required by s.394(2) of the Act (s.396(a) of the Act).
Secondly, there is no dispute that the Applicant is a person protected from unfair dismissal as defined by s.382 of the Act in that he is an employee who has completed a period of employment of at least the minimum employment period, and the sum of his annual rate of earnings and such other amounts is less than the high income threshold (s.396(b) of the Act).
Thirdly, as to whether this matter involves a dismissal that was consistent with the Small Business Fair Dismissal Code (s.396(c) of the Act), it was not in dispute, and I am satisfied that the Department is not a small business employer within the meaning of s.23 of the Act. As such, I am satisfied that the Small Business Fair Dismissal Code does not apply.
Fourthly, neither party suggested this case involves a dispute as to whether or not the circumstances involved a genuine redundancy and I find this to be the case (s.396(d)) of the Act).
Section 385 – Was the dismissal unfair?
A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 of the Act provides the following:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c)the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Section 385(a) – Was the Applicant dismissed?
There was no dispute, and I am satisfied, that the Applicant was dismissed within the meaning of s.386(1) of the Act.
Section 385(c) – Small Business Fair Dismissal Code
As outlined in paragraph [21] above, s.385(c) of the Act does not apply.
Section 385(d) – Genuine redundancy
As outlined in paragraph [22] above, s.385(d) of the Act does not apply.
Section 385(b) – Harsh, unjust or unreasonable
In determining whether the dismissal was harsh, unjust or unreasonable (s.385(d) of the Act), I must have regard to s.387 of the Act:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 consider below each of these criteria in reaching my conclusion.
Was there a valid reason for dismissal relating the Applicant’s capacity or conduct? s.387(a)
In considering whether the dismissal of the Applicant was harsh, unjust or unreasonable, I am required to take into account whether there was a valid reason for the dismissal related to the Applicant’s capacity or conduct (including its effect on the safety and welfare of other employees). The reason or reasons should be “sound, defensible and well founded”[14] and should not be “capricious, fanciful, spiteful or prejudiced”.[15]
The Respondent proffers two valid reasons for termination. First, that the Applicant failed to comply with lawful directions and second, that the Applicant was unable to meet the inherent requirements of his contracted position, having chosen not to be vaccinated and having failed to provide a valid medical exemption.
Consideration - valid reason
The effect of the CHO vaccination directions was that the Respondent was prohibited from allowing the Applicant to undertake work from its Wodonga location from 15 October 2021, unless he was at least partially vaccinated or had a valid medical exemption. The Applicant chose not to become vaccinated, at least in part because of concerns relating to the safety of the vaccine.[16] Further, the Applicant did not provide a valid medical exemption. This meant that he was not able to fulfil his role, which at least in part, could only be performed on site. The Applicant makes various submissions regarding the validity of the CHO vaccination directions and the Respondent’s policy introduced to ensure compliance with the directions. I do not accept the Applicant’s submissions. The Respondent would have been in breach of its legal obligations and exposed itself to significant financial penalties if it had allowed the Applicant to attend the workplace from 15 October 2021.
A key grievance in the Applicant’s case is that his request for a flexible work arrangement, the evidence of which neither party could produce at hearing, should have been granted and that the Respondent’s reasons for refusing it were not legitimate.
I note that the Respondent disputes the existence of the flexible work arrangement. Whilst there is a contest between the parties as to the existence of the flexible work arrangement, I note that even if I were to accept the Applicant’s evidence as to the existence and validity of the flexible work arrangement, the Applicant concedes that he would nevertheless be required to perform some of his functions at the Respondent’s Wodonga workplace. Indeed on his own evidence, the Applicant submits that the flexible work arrangement required him to perform at least two days per week from the Wodonga worksite. In this regards, the Applicant makes the following concessions during cross examination:
·He accepts that 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.
·That the position description attached to the supplementary statement of Ms Susana de Pedro applied to his position and that it states that the Applicant may need to “attend call outs as required” which would require him to leave home and attend the workplace.
·That the Flexible working policy and related guideline[17]applicable to him contemplates face-to-face meetings as part of the role as a case officer.
·That not everyone who needed to access the Respondent’s services would be able to have a meeting remotely given potential issues accessing technology.
Further, the Applicant suggests the Respondent had no valid reason to terminate his employment as the Respondent ought to have permitted him to continue to work from home as he had done so during the Victorian stay-at-home COVID-19 restrictions. I do not accept the Applicant’s assertion that the Respondent’s refusal to allow him to continue to work from home indefinitely was unreasonable.
I accept Ms Susana de Pedro’s evidence that the Department could not operationally accommodate the Applicant’s requests and that this decision was made on reasonable business grounds. I also consider it reasonable to take into consideration the indications from the Victorian Government that the vaccination requirements would be in place for a considerable period. Further, I note Ms de Pedro’s evidence that the Respondent is currently in consultation regarding enforcing the requirement for employees to receive a third dose of the COVID-19 vaccination.
The Applicant was of course within his rights to decline to be vaccinated or provide the Respondent with evidence that he had a valid medical exemption. He did neither. For these reasons, the Respondent had a sound, defensible and well-founded reason to terminate the Applicant’s employment.
For the reasons given, I am satisfied that the Respondent had a valid reason to terminate the Applicant’s employment.
Notification of reason (s.387(b))
The reasons for the Applicant’s dismissal were conveyed to him in the termination letter of 13 January 2022.[18] The Applicant was notified of the reasons for his dismissal.
Opportunity to respond (s.387(c))
The Respondent took all reasonable steps to ensure procedural fairness and the Applicant was given ample opportunity to respond to the Respondent’s concerns regarding his vaccination status. The Applicant took up this opportunity and responded, including expressing his concerns about the Directions and the vaccine requirements in a number of emails referred to above.
The Respondent acknowledged that the vaccination mandate was a “difficult process” for people but reiterated that the Respondent was legally required to comply with the Directions.[19]
Having regard to all the circumstances, I am satisfied that the Applicant was given an opportunity to respond to the reason for dismissal related to his capacity.
Unreasonable refusal to allow a support person (s.387(d))
There was no unreasonable refusal to allow the Applicant a support person during any discussions relating to dismissal. This consideration is not relevant in this case.
Warnings of unsatisfactory performance (s.387(e))
The Applicant was not dismissed for unsatisfactory performance. This criterion is not relevant to the present case.
Size of enterprise and absence of human resource specialists or expertise (ss.387(f) and (g))
The Respondent is a substantial body. It has human resource management specialists and expertise. In all the circumstances, I am satisfied that neither the size of its enterprise nor any absence of human resource management specialists or expertise had any impact on the procedures followed in effecting the Applicant’s dismissal.
Other relevant matters
Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
The Applicant had no capacity to work in his job with the Department from 15 October 2021. That situation was not likely to change in the foreseeable future. Indeed the Applicant gave evidence that as at the date of the hearing, he was yet to receive the COVID-19 vaccine. The Applicant points to the arrangements put in place by the Respondent to deal with employees who have provided the Respondent with a valid medical exemption as evidence of the fact that the Respondent could and should have accommodated his working from home request. In my view this submission is misguided, as it ignores the fact the Applicant had, at no stage, produced a valid medical exemption in line with the CHO vaccination directions.
I take into account that the Applicant’s concerns about the COVID-19 vaccine were genuinely held and that the circumstances surrounding his dismissal have caused him great distress. That said, the Respondent is obliged to comply with the Law. The Applicant submits that in the event the Respondent required him to attend the Wodonga site, it could have required the Applicant take a COVID-19 rapid antigen test. Again, this submission is misguided as the CHO vaccination directions did not provide for exceptions in respect for employees who returned negative COVID-19 test results.
I have taken into account the Applicant’s submission that the reason for the termination was the Applicant’s conduct because the Respondent “disapproved” of his choice to remain unvaccinated and that this was the “driver” in the Respondent’s decision to terminate his employment. On the material before me there is no basis for this submission and I have given it little weight when coming to my decision.
The Applicant relied on the decision of the Full Bench of the Commission in Jeremy Lee v Superior Wood.[20] I do not find that decision to be of any assistance to the Applicant in the matter before me.
I have also taken into account the Applicant has worked for the Respondent for nearly 12 years and on the material before me, has an unblemished record. I note that the Applicant states that he has both the capacity and capability to return to the workplace. That said, he remains unvaccinated and as a consequence, the Respondent is prevented from allowing him to attend the workplace.
I have made findings above as to the Applicant’s submissions that the Respondent has acted unreasonably by not allowing his temporary arrangements to work from home to continue short to medium term. For reasons discussed at paragraphs 35 and 46, I do not accept that the Respondent acted unreasonably in refusing the Applicant’s request.
Conclusion
After considering each of the matters specified in section 387 of the Act, my assessment is that the Respondent’s dismissal of the Applicant was not harsh, unjust or unreasonable. The Respondent had a valid reason for the dismissal, and it afforded procedural fairness to the Applicant prior to terminating his employment.
The Applicant was provided with ample opportunity to provide evidence of having been vaccinated or provide a valid medical exemption but did not do so.
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.
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.
COMMISSIONER
Appearances:
Mr S Brunec on his own behalf.
Dr Laura Hilly of Counsel for the Respondent.
Hearing details:
10:00AM, Thursday, 19 May 2022.
Melbourne (via Microsoft Teams).
[1] Digital Court Book page 873.
[2] DCB 873.
[3] DCB 861.
[4] DCB 898.
[5] DCB 913.
[6] DCB 920.
[7] DCB 921.
[8] DCB 924.
[9] DCB 928.
[10] DCB 929.
[11] DCB 926.
[12] DCB 931 – 932.
[13] DCB 931.
[14] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[15] Ibid.
[16] DCB 10.
[17] See DCB 734.
[18] DCB 939.
[19] DCB 924.
[20] [2019] FWCFB 2946.
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