Application for an unfair dismissal remedy – refusal of dietician to provide hospital with evidence of vaccination status – government directions – hospital required to comply with directions and not allow applicant to attend the workplace – role of the Commission is to apply law, not a party’s alternative policy preferences – application dismissed

This decision concerns an application for an unfair dismissal remedy made by Ms Isabella Stevens under s 394 of the Fair Work Act 2009 (FW Act). From July 2011 until 3 December 2021, Ms Stevens worked as a dietician for the Epworth Foundation, which trades as Epworth HealthCare (Epworth). Ms Stevens was dismissed on the ground that she was unable to meet the inherent requirements of her job. Ms Stevens had refused to provide Epworth with proof that she had been vaccinated against COVID-19. Pursuant to Victorian government directions, Epworth was therefore required not to allow Ms Stevens to attend the workplace on or after 15 October 2021. Ms Stevens contends that the directions were unlawful or unfair and that Epworth did not have a valid reason to dismiss her, and that Epworth should in any event have allowed her to take long service leave instead of dismissing her. She contends that her dismissal was unfair and seeks reinstatement.

Section 396 requires that I decide four matters before considering the merits of Ms Stevens’ application. I am satisfied of the following. First, the application was made within the 21-day period required by s 394(2). Secondly, Ms Stevens was a person protected from unfair dismissal. Thirdly, the dismissal was not a genuine redundancy. Fourthly, Epworth is not a small business employer, and the Small Business Fair Dismissal Code is therefore inapplicable.

Background

On 1 October 2021, the Acting Chief Health Officer of Victoria issued the COVID-19 Mandatory Vaccination Directions (No 5) (No 5 Direction) under s 200(1)(d) of the Public Health and Wellbeing Act 2008 (Vic). These imposed obligations on the operators of specified facilities, including healthcare facilities such as Epworth, not to allow workers to attend for work on or after 15 October 2021 unless they had provided evidence to the employer of having been vaccinated against COVID-19, or of a booking to receive a vaccination by 29 October 2021. An exception applied for workers who provided a certificate that they were unable to receive a vaccination due to a medical contraindication. The No 5 Direction commenced on 1 October 2021 and ended on 21 October 2021. It was succeeded by other directions in similar terms. I will refer to them collectively as the Directions.

On 20 September 2021, an email was sent by the management of Epworth to all employees informing them that mandatory vaccination directions required healthcare workers to have received specified doses of the COVID-19 vaccine by particular dates.

In late September 2021, Ms Stevens commenced a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stevens v Epworth Foundation

Details

AGLC: Stevens v Epworth Foundation [2022] FWC 593
Case: [2022] FWC 593
Decision Date

CaseChat Overview and Summary

Ms Isabella Stevens brought an application for an unfair dismissal remedy against Epworth Foundation, which trades as Epworth HealthCare. Ms Stevens, a dietician, was dismissed on the ground that she was unable to meet the inherent requirements of her job, which was to attend the workplace. Pursuant to Victorian government directions, Epworth was required not to allow Ms Stevens to attend the workplace on or after 15 October 2021 because she had not provided proof that she had been vaccinated against COVID-19. Ms Stevens contends that the directions were unlawful or unfair and that Epworth did not have a valid reason to dismiss her, and that Epworth should in any event have allowed her to take long service leave instead of dismissing her. She contends that her dismissal was unfair and seeks reinstatement.

The Deputy President of the Fair Work Commission rejected Ms Stevens’ application. The Deputy President held that the dismissal was not harsh, unjust or unreasonable. The dismissal was related to Ms Stevens’ capacity to perform her role. Ms Stevens was entitled to her opinions about the efficacy and safety of the COVID-19 vaccines. Ms Stevens was also within her rights to decline to become vaccinated or to provide Epworth with the information it requested from her. But her choices had the inevitable consequence that Ms Stevens rendered herself unable to perform her job. Epworth was prohibited by law from allowing her to attend the workplace unless she provided the required evidence. There was in effect a new regulatory requirement that attached to Ms Stevens’ job. She could have decided to take the necessary steps to meet the requirement. She decided not to do so. Ms Stevens had an alternative. It was the alternative that she decided to choose, even though, for Ms Stevens, it was a very difficult choice. It was the alternative that involved her legal exclusion from Epworth’s workplace.

The Deputy President further held that even if Ms Stevens had been allowed to take the rest of her long service leave, it would have made no difference, because her leave would have concluded at the end of February 2022, at which time the Directions remained in force in relation to healthcare workers. Indeed they remain in force to the present day. Further, Ms Stevens said in her evidence that it remains her view that she should not be required to provide Epworth with sensitive medical information such as her vaccination status. From this the Deputy President inferred that, had Ms Stevens returned from leave in February 2022, she would have continued to refuse to provide the relevant vaccination information to Epworth, with the consequence that Epworth would still have been prohibited from allowing her to attend its premises for work.

The Deputy President dismissed the application.

Orders