Theo Pehlivanidis v Health Purchasing Victoria
[2022] FWC 1952
•26 JULY 2022
| [2022] FWC 1952 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Theo Pehlivanidis
v
Health Purchasing Victoria
(U2021/11497)
| COMMISSIONER LEE | MELBOURNE, 26 JULY 2022 |
Application for an unfair dismissal remedy – government directions – employer required to comply with directions – applicant claims medical condition will be aggravated by vaccination – applicant unable to perform primary role as no evidence of vaccination or valid exemption – valid reason for dismissal – dismissal was procedurally fair – dismissal not unfair taking into account all the circumstances – application dismissed.
This decision concerns an application for an unfair dismissal remedy made by Mr Theo Pehlivanidis (the Applicant) under s.394 of the Fair Work Act 2009 (FW Act). Mr Pehlivanidis worked as a Category Manager (Indirect Products and Services Sourcing) from 1 March 2021 to 23 November 2021, a period of approximately 9 months. His employer was Health Purchasing Victoria (HPV) (the Respondent). Mr Pehlivanidis was dismissed on the grounds that he was unable to carry out the inherent requirements of his role due to his unvaccinated status.[1]
Mr Pehlivanidis failed to provide evidence to HPV that he had been vaccinated against COVID-19, or a medical exemption in line with the directions issued by the Victorian Chief Health Officer. Therefore, in order to comply with the directions, HPV could not allow Mr Pehlivanidis to attend the workplace after 15 October 2021.
Mr Pehlivanidis makes a number of contentions, including that he was able to keep working from home and should have been allowed to do so. He also contends that he had advised HPV that he intended to become vaccinated prior to his dismissal. He contends that his dismissal was unfair and seeks compensation for remuneration lost.[2]
Section 396 requires that I decide four matters before considering the merits of Mr Pehlivanidis’ application. I am satisfied of the following. First, the application was made within the 21-day period required by s.394(2). Secondly, Mr Pehlivanidis was a person protected from unfair dismissal. Thirdly, the dismissal was not a genuine redundancy. Fourthly, HPV is not a small business employer, and the Small Business Fair Dismissal Code is therefore inapplicable.
Background and Evidence
Mr Pehlivanidis gave evidence on his own behalf. Ms Angela Malone (Director People, Culture and Safety) gave evidence for HPV.
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 employers not to allow particular 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.
Mr Pehlivanidis was a “worker” for the purposes of clause 5 of the Directions. Here, “worker” meant a worker as identified in Schedule 1 to the Directions. Mr Pehlivanidis was a “worker” because he was a public sector employee within the meaning of the Public Administration Act 2004 (Vic), namely the employee of a public entity, being HPV.[3]
It is not in dispute that Mr Pehlivanidis was not vaccinated against COVID-19 at the relevant time. He remained unvaccinated at the time of the hearing. Mr Pehlivanidis’ contract of employment specified his place of work as HPV’s offices in Melbourne and any other place permitted or reasonably required by HPV.[4]
As was the case in many workplaces in Victoria during much of 2021, HPV’s employees primarily worked from home in line with the Direction from the Victorian Government to work from home if possible. As a result of these Directions, HPV suspended work from its Melbourne-based office, as well as site visits to public health services (except where operationally necessary).[5]
In October 2021, HPV issued memorandums to its employees, including Mr Pehlivanidis, regarding the requirement to be vaccinated consistent with the Directions to be able to work outside their ordinary place of residence. The first was issued on 4 October 2021. On 8 October 2021 an article was posted on the intranet reinforcing the message of 4 October. On 11 October 2021 employees were further reminded of the obligation and told to contact Ms Rachel Heath (HR Manager) with any issues or questions. On 15 October 2021, all staff were sent an email from the HPV’s CEO, Mr Neil Rodaway, which stated:
“If you are currently working at home please be aware that remote working is not a long-term arrangement. Staff working from home may be required to be onsite at any time. As such, we all still need to be vaccinated.”[6]
(emphasis added)
Mr Joe Neill, Director of Procurement, also separately advised staff in similar terms.[7] Mr Pehlivanidis responded to Mr Neill’s message in the following terms:
“Hi Joe,
I have previously discussed vaccinations with James, and we have agreed I can work from home for the foreseeable future. As such, I will not be vaccinated by the dates stipulated. below.
Have a good weekend.
Theo”[8]
Mr Neill responded shortly after stating:
“Dear Theo,
Thank you for this.
I am afraid that unless you can provide an exemption in line with the Chief Health Officer directive then you are required to be vaccinated within the required timeframe.
If you are not able to comply with this direction then you must book a meeting with Rachel without any delay to discuss your situation.
Please make contact with Rachel first thing Monday morning.
Cheers”[9]
I note that at this point Mr Pehlivanidis did not raise any concerns about any alleged medical condition/s that he suffered.
On 18 October 2021, Mr Pehlivanidis met with Ms Heath to discuss his concerns about receiving a COVID-19 vaccination. Following this meeting, Ms Heath sent an email to the Applicant in the following terms:
“The purpose of my email is to confirm that you will see your doctor this week to discuss the vaccination options and book in to get the vaccination so that you are meeting the requirements for authorised workers to have had their vaccination by this Friday October 22.”[10]
Mr Pehlivanidis agreed that was what he told Ms Heath.[11] I deal later with the evidence as to when Mr Pehlivanidis consulted general practitioners (GP), the result of the consultations and his subsequent actions.
On 21 October 2021, HPV sent a letter to the Applicant outlining the effect of the Directions and stating that he must provide evidence of a first dose of the COVID-19 vaccine, a booking to receive his first vaccine by 22 October 2021, or a medical exemption. HPV stated that employees will need to provide this evidence, or they will not be able to attend work.[12] The Applicant did not respond at all to this letter.
On 29 October 2021, HPV sent a show cause letter to Mr Pehlivanidis, advising they were reviewing his employment and considering disciplinary action including termination for not complying with the vaccination mandate.[13]
On 3 November 2021, Mr Pehlivanidis responded to the show cause letter. Amongst other things, Mr Pehlivanidis stated that he does not see an urgency for COVID-19 vaccination as he has been working from home and should be able to continue to do so. The letter also includes the following:
“…As explained to HR, I have not been in a hurry to get vaccinated because I have a medical condition that may be aggravated by getting vaccinated and believe it is possible for me to continue working from home unvaccinated. I do not want to take any unnecessary risks simply for the reopening of pubs, offices, restaurants, etc. (and capacity limits across these various settings) and to facilitate travel freedoms, things that are not as important to me as my health and well-being. I did not believe it was ‘reasonably necessary’ or ‘reasonably practicable’ to get vaccinated by the mandated timelines and think the measures HSV is now taking i.e. disciplinary action/termination are draconian and would constitute unfair dismissal, especially since this was not raised during previous discussions.
Even though the vaccines currently available have been used by millions of people around the world, there is still a lot we don’t know about the virus and the vaccines. The evidence emerging is you can still catch and transmit Covid-19 even after being vaccinated (and in fact efficacy has been seen to wane with a booster shot now required). While the CHO mandate aims to have as many people as possible vaccinated, I have been holding off, not wishing to take any risks and jeopardise my health. For your information, while not meeting exemption criteria set out in the CHO directive, my doctor has listened to my concerns and referred me to a specialist for a consultation, with the earliest appointment available being Thursday 11 November. I feel enormous pressure from HSV to ignore my health issues and get the vaccine, which has stressed me and upset me so much that I have not been sleeping or eating well (contacting our EAP service has helped little). I need some time to fully understand the implications to my health and make an informed decision. I will not be forced into a decision when I have an underlying medical condition. I will get tests done and once results are reviewed, should be able to give informed consent, as well as have an established baseline for any health issues that may eventuate when I do get vaccinated (for the Covid-19 vaccine claim scheme).
So in summary, I saw no urgency for Covid-19 vaccination compliance by the stipulated dates because (i) I have been working from home and there was no current need for me to work onsite at a work premise (ii) I was very anxious about getting a vaccine that has only been provisionally registered by the TGA on emergency grounds (iii) vaccines currently in use have resulted in multiple adverse effects and deaths (iv) I have a medical condition that may be aggravated by these vaccines and (v) the CHO directive was originally only valid for a certain time. I am more than willing to work together to find a solution that suits both our needs. Can I also ask that I be allowed to continue working from home until the New Year and continue to be granted flexible working arrangements as agreed in the informal conversations with my Manager. While I acknowledge the potential burden unvaccinated people who get Covid-19 could place on our Health Services, I am working safely from home and taking all the necessary precautions against contracting or transmitting the virus (such as wearing masks when leaving the house, using click and collect services for shopping, checking in at stores, hand sanitizing, social distancing, etc., and will get tested if I ever feel unwell, which you can even do at home now).”[14]
(emphasis added)
I note that there is no evidence that Mr Pehlivanidis ever saw or made an appointment with a medical specialist, such as a cardiologist. I deal with the evidence on that point later in this decision.
On 8 November 2021, Mr Pehlivanidis attended a meeting with Mr Neill, Ms Heath and an external human resources consultant, Ms Michele Salmon. Mr Pehlivanidis’ wife also attended as his support person. At the meeting, Mr Pehlivanidis reiterated the points which he had previously made in his correspondence. He also advised he would seek further advice from his medical practitioners. It was agreed that HPV would defer taking any further steps in relation to Mr Pehlivanidis’ employment so that he could seek this further advice.[15] Mr Pehlivanidis’ evidence is that at the meeting held on 8 November 2021, the following occurred:
“At the meeting I asked that if I got vaccinated to carry on my employment before my health checks were performed, and died or experienced an adverse reaction, if HSV would be liable. Even if the vaccination requirement arose from a government mandate, an employer should still be liable for willingly implementing it as it violates OH&S legal obligations regarding the right to life (I recall having this conversation with Neil Rodaway in September around compliance with the Nuremberg Code). Michele advised that HSV would not compensate me/my family, which worried me even further. Michele claimed HSV was responsible for my welfare if I did not get vaccinated and contracted COVID while at work. For healthcare workers (authorized workers) who couldn’t get vaccinated by the time vaccination requirements came in, I recall reading “you will not be allowed to work on site until you fulfil the requirement”. I explained I would not enter work premises until I was fully vaccinated in the New Year and would pose no risk to the safety or welfare of others in the environment I was working in (at home). When I suggested other ways HSV could protect their employees, for example, temperature checks, mask wearing, RAT/PCR testing, Michele said none of this was workable and all staff needed to be vaccinated by the stipulated dates.”[16]
There is then some conflicting evidence as to what occurred between that meeting on 8 November 2021 and when Mr Pehlivanidis was terminated, which is dealt with in more detail below. Mr Pehlivanidis contends that he told Mr Neill during a phone call on 17 November 2021 that:
“I was now comfortable with being vaccinated after consultation with doctors and that I would book something in the following week. He commented that it was most likely too late and that he would be in touch next week.”[17]
Mr Neill was not called to give evidence at the hearing. There is however an email exchange between Mr Neill and Ms Heath on the 18 November 2021, the day after, in the following terms:
“Hi Rachel,
Was not able to speak directly to Theo, have left him a message to maske (sic) him aware that CEO is reviewing where we are at and consideration to his ongoing employment will be made. Asked him to get back to me if he wanted to discuss further and reiterated that he had been made aware of this process previously.
Cheers”[18]
On 18 November, Mr Pehlivanidis applied for personal leave until 2 December 2021. On 22 November 2021, having considered the information provided to it, HPV decided to terminate Mr Pehlivanidis’ employment, effective from 23 November 2021. This was confirmed in a letter sent to Mr Pehlivanidis dated 22 November 2021.[19]
In summary, when first told of the requirement to vaccinate, Mr Pehlivanidis simply indicated that based on an agreement with his supervisor he would work from home for the foreseeable future and that he would not be vaccinated by the required dates. The evidence shows that his reasons for not getting vaccinated became more varied in subsequent correspondence with the Respondent. At the hearing, Mr Pehlivanidis focused largely on his alleged “medical condition” and his need to obtain advice in relation to his medical condition and vaccination against COVID-19. Ultimately, the evidence of Mr Pehlivanidis is that he told Mr Neill he was willing to be vaccinated and that HPV failed to consider his willingness to obtain the vaccination.[20]
HPV submits that they dismissed Mr Pehlivanidis because he could no longer attend the office, which was a requirement of his employment. Furthermore, that Mr Pehlivanidis was given multiple opportunities to respond in writing and in person regarding the vaccination mandate. HPV submits that Mr Pehlivanidis was required to perform “in person” work which was necessary for the business and operational requirements which the Respondent was preparing to resume.[21] As such, he was unable to be perform the inherent requirements of his role, that he failed to abide by a lawful and reasonable direction and that the dismissal is not unfair.
Factual determinations
While much of the evidence in this matter is not in contest, there are a number of issues where a determination of fact is required. Before considering these issues, it is necessary to consider the demeanour of the witnesses and to make some findings as to their credit.
Dealing with Mr Pehlivanidis, I found him to be a most unsatisfactory witness. From the outset, Mr Pehlivanidis was argumentative, would speak over others, including myself at times, and would swear in court.[22] His evidence was often inconsistent on key matters as will become evident later in the consideration. Further, despite being warned by both myself and the representative of HPV, Mr Pehlivanidis interacted with his wife while giving evidence. Mr Pehlivanidis’ wife was observed passing Mr Pehlivanidis a note prompting him to refer to “informed consent” as part of his evidence.[23] This interaction was fortunately noticed by HPV’s representative. Given the clear directions given to not engage in such behaviour, this conduct was appalling. HPV submits that this conduct was damning as to credit and that:
“It was an attempt to exploit the vulnerabilities of a trial by remote technology and to game the system by providing coaching to the witness in the middle of his cross-examination. It was thoroughly unacceptable because of the capacity for such conduct to undermine the reliability of the Applicant’s evidence; to taint it because he was being assisted/prompted. It is a lens through which the Applicant’s honesty might be viewed by the Commission.”[24]
I agree with that submission. In the circumstances, I have treated Mr Pehlivanidis’ evidence with a significant degree of caution. He was not a credible witness. In contrast, the evidence of Ms Malone was direct and clear, and I see no reason to not accept her evidence as truthful.
Mr Pehlivanidis’ claimed “medical condition”
During his evidence, Mr Pehlivanidis made various claims that he had a medical condition.[25] At one stage this was described as a “heart condition”[26] and on another occasion it was described as something to do with his “prostate issues”.[27] Whether or not Mr Pehlivanidis has a medical condition at all is relevant because he claims that the key reason for his delay in vaccinating against COVID-19 was because of his safety/health concerns.[28]
The first point to make about this claim is that even if it is the case that Mr Pehlivanidis has a medical condition, it was not a medical condition that led to him being given an exemption from being vaccinated on medical grounds. As such, if there is a medical condition of some sort that affects Mr Pehlivanidis, it is not one that provides the basis for a medical exemption.
Mr Pehlivanidis made claims to HPV that he had a medical condition which could be “aggravated” by the vaccination.[29] However, beyond the rather vague claims of Mr Pehlivanidis that he has a medical condition, no supporting evidence was provided in support of those claims.
Despite referring to visits to numerous doctors and reporting what he claims was said to him, no medical evidence was provided at all, except for a doctor’s certificate indicating that Mr Pehlivanidis had a “medical condition” and was unfit for duty from 18 November 2021 until 2 December 2021. There was no further evidence from Mr Pehlivanidis as to what particular medical condition he was suffering from at that time, other than he felt dizzy.[30]
As to whether Mr Pehlivanidis was suffering from any particular on-going medical condition, including a cardiac condition, there is no evidence to support that proposition beyond Mr Pehlivanidis’ vague claims.[31] Mr Pehlivanidis’ reason for not providing any evidence was that it was an oversight.[32] Having regard to the lack of evidence to support Mr Pehlivanidis’ claim that he has a “medical condition”, I am not satisfied that Mr Pehlivanidis has any particular medical condition, or at least he did not have one at the relevant time. As such, there was no particular basis for him to need any particular medical advice that it was safe for him to be vaccinated.
Nevertheless, on the basis of the claims made by Mr Pehlivanidis as to his alleged medical condition, the evidence shows that HPV did provide him an extended period of time to seek medical advice. Mr Pehlivanidis consulted three doctors in the relevant period. One was not named, and I will refer to them as the first doctor. The others were Dr Ingram and Dr Frangos.[33]
According to Mr Pehlivanidis, the first doctor told him that he should get vaccinated, or he would die from COVID-19.[34] Mr Pehlivanidis clearly did not accept that advice and sought advice from another doctor, Dr Ingram. He consulted Dr Ingram in October 2021.[35] His evidence as to what that doctor told him was inconsistent. At first, his evidence was that Dr Ingram told him that he recommended him getting the vaccine. He then claims that Dr Ingram told him there was a risk of an adverse reaction.[36] This is then said to have been referrable to his “heart condition”.[37] As set out earlier, I am not satisfied that Mr Pehlivanidis has any medical condition and I do not think his evidence on this point is credible. There is no evidence he was referred to a cardiac specialist or any other medical specialist after seeing Dr Ingram. Indeed, Dr Ingram recommended to the Applicant to get vaccinated. Mr Pehlivanidis also consulted Dr Frangos as early as October 2021,[38] who also advised him to get vaccinated. Despite this, he made misrepresentations to HPV that he had been referred to a specialist and the earliest appointment he could get was 11 November 2021. However, his evidence was that he saw Dr Frangos at that time because Dr Ingram was not available.[39]
In any event, despite seeing a number of doctors, not one of them advised Mr Pehlivanidis that he should not get the vaccine. Not one of them said that he had a medical condition that may be aggravated by getting vaccinated.[40] Mr Pehlivanidis was misleading when he said to HPV and to this Commission that he has a “medical condition” that may be aggravated by getting vaccinated. There is simply no evidence of this. I accept that the doctors would have said there is a risk as it is a matter of public record that there is some risk of getting a vaccine, albeit a low risk. However, Mr Pehlivanidis’ claim that his “medical condition” may be aggravated is misleading in circumstances where I am not satisfied on the evidence that the Mr Pehlivanidis has any particular “medical condition” at all. He also misled HPV when he said to them that he was going to see a specialist about his condition and could not get in to see one until 11 November 2021.[41] The doctor he saw on 11 November was Dr Frangos.[42] There is no evidence that Dr Frangos is a specialist in the sense he is an expert in a particular area of medicine such as cardiology. Mr Pehlivanidis was not given a referral to see him. It is apparent that he was another GP that Mr Pehlivanidis says that he went to see because he could not get an appointment with Dr Ingram, and he did not like the other doctors at that clinic.[43]
This background is important because it shows that despite Dr Ingram recommending he get vaccinated as early as October, Mr Pehlivanidis continued to look for alternative medical advice. This is despite advising Ms Heath on 18 October 2021 that he would go and see a doctor to explore his vaccination options, and that he would then book in to get a vaccination.[44] Instead of advising HPV that he had consulted a GP and they had recommended vaccination, he falsely claimed he had been referred to a specialist.
If Mr Pehlivanidis’ only reason for not getting vaccinated was his concerns about his medical condition, he was in a position to be vaccinated after consulting the first doctor and Dr Ingram in October 2021. He was not advised by any of the doctors not to get the vaccine, in fact, they recommended it
As set out earlier, Mr Pehlivanidis’ evidence is that he told Mr Neill on 17 November 2021 that he now intended to get vaccinated, and that Mr Neill said that it may be too late but that he would get back to him. An email exchange evidences that Mr Neill did get back to him the next day and left a voice mail message that:
“…the CEO is reviewing where we are at and consideration to his ongoing employment will be made. Asked him to get back to me if he wanted to discuss further and reiterated that he had been made aware of this process previously.”[45]
Mr Pehlivanidis claims that he does not recall receiving the message.[46]
Proceeding on the basis that the exchange on 17 November 2021 with Mr Neill happened as alleged, I am nevertheless not satisfied that Mr Pehlivanidis had any intent of actually becoming vaccinated. The reality is that he remained unvaccinated up until sometime in January 2022, at which time, on his evidence, he caught COVID-19.[47] Accepting that the current medical advice is that one should refrain from vaccination for a number of months after contracting COVID-19, if it is true he had intended to vaccinate, a question arises as to why Mr Pehlivanidis did not get vaccinated after he was dismissed and January 2022, when he caught COVID-19.
As such, I do not accept that the Applicant was genuine in his intent to then vaccinate as he claims to have told Mr Neill on 17 November 2021. If he was genuine, would have done so between that time and when he caught COVID-19 in January 2022. I accept there was an explanation for the Applicant not vaccinating for the period from the dismissal until 2 December 2021, as evidenced by the medical certificate. However, it is not apparent why the Applicant took no action to give effect to his stated intent to Mr Neill in the period thereafter, at least up until he was infected with COVID-19 in January 2022.
The Applicant’s explanations for this were inconsistent and self-serving. During the hearing the Applicant offered the following explanation:
“Because I was terminated, and the reason I was getting the jab was to keep my job, not because I felt, you know, like I was going to die from catching COVID, which I didn't, but to keep my job, and when they did not get back to me to say, 'It's fine, go get the jab, you'll keep your job', I was sick, I didn't bother.”[48]
His evidence was at one point that he was in bed for the entire period from late November to mid-January, because he was “very dizzy”.[49] However, when asked about why he had not applied for jobs in the same period, he said that he was looking at starting businesses on his own because he was unvaccinated,[50] and he was dealing with Christmas and family celebrations.[51]
So, on the Applicant’s evidence, he was sick and dizzy in bed from 17 November 2021 to 15 January 2022. The medical evidence supports his claim that he was ill until 2 December 2021. I do not believe the Applicant was confined to bed or was otherwise ill after that time. This finding is supported by the Applicant’s own evidence that in December 2021 he was applying for jobs, looking at starting his business and engaging in Christmas family celebrations. Mr Pehlivanidis also stated that:
“Christmas was coming, I didn't want to get sick before Christmas if I had any adverse effect. I didn't rush out and do anything with that.”[52]
The Applicant’s evidence as to why he did not vaccinate after his dismissal and prior to January 2022 is like much of his evidence, inconsistent and lacking in credibility. I am not satisfied that the Applicant had any actual intent to vaccinate. He may well have told Mr Neill that he would vaccinate on 17 November 2021, but he then did nothing to give effect to that assurance because he had no intent to do so.
His efforts to book a vaccination in July 2022, after attending a doctor the day before the Hearing in April, are significantly beyond the period surrounding the dismissal and does not assist the Applicant’s case. He describes his choice of the Pfizer COVID-19 vaccine being like “Russian roulette”.[53] This is hardly a comment from a person who had formed the view on 17 November 2021 that the vaccines were safe and intended to get one.
In all the circumstances, I am not satisfied having examined the totality of the conduct of the Applicant that he had any intention to give effect to his indication to Mr Neill that he would get vaccinated. He had already failed to do what he told Ms Heath he would do in October. He then falsely claimed he had been referred to a specialist. I am not satisfied given the conduct of the Applicant that he had any intention of being vaccinated.
In the event I am wrong as to my conclusion on that point, and Mr Pehlivanidis had a genuine intent to become vaccinated but did not do so for the reasons he claims and would have vaccinated had Mr Neill come back to him and had he remain employed, I am of the view that HPV had afforded a significant period of time for Mr Pehlivanidis to become vaccinated. Even if the Applicant did have a particular medical condition, the Applicant agreed that he had told Ms Heath that he would see his doctor to discuss the vaccination options and book in to get the vaccination so that he meets the requirements for authorised workers to have had their vaccination by 22 October 2022.[54] He was told to vaccinate by Dr Ingram in October 2021. He had already been told by the first doctor that he should vaccinate, or he might die from COVID-19. At that point he should have vaccinated consistent with his representations to Ms Heath. He was not referred to a medical specialist. He simply went to see another doctor and misrepresented that as a need to see a specialist. He had no reason to continue with any further medical consultations, beyond searching for another opinion that suited his desire to not vaccinate. I agree with HPV’s submission that Mr Pehlivanidis was engaging in a game of cat and mouse with his employer. The Applicant was afforded sufficient time to consult no less than three doctors and become vaccinated before he was dismissed, whether he had a medical condition or did not.[55]
Should Mr Pehlivanidis have been able to continue working from home?
Mr Pehlivanidis contended that it was not fair to terminate his employment in circumstances where he had been working from home successfully,[56] and that he had an agreement with his manager, Mr James Lee, that he would continue to do so until January 2022.[57] Secondly, that the effect of the Directions at the time was that workers were still required to work from home if they can.
Dealing with the alleged agreement that he continue working from home until January 2022, this is not supported on the evidence. The Applicant’s evidence is that he had a discussion with Mr Lee regarding “not being required to work in the office for the remainder of the year”.[58] However, he was clearly given a direction, in writing, that he was to vaccinate in order to return to work as needed. He was clearly on notice, even if he had been like many others working from home, that a return to office was to occur and that:
“…to be permitted to work on-site, we all need to have had our first vaccination by 15 October 2021 and our second vaccination by 26 November 2021.”[59]
The Applicant tested his understanding of the claimed agreement with Mr Lee with Mr Neill and was clearly told that he was to vaccinate as it was expected that he would return to work in the office at least for some of the time.[60] In the circumstances, the direction to the Applicant as to his obligation to vaccinate in order to perform the inherent requirement of his role was crystal clear. His contract of employment made it clear that he was engaged to work at HPV’s offices in Melbourne and any other place that HPV permits or reasonably requires. The direction made clear that even those that had been regularly working from home may be expected to come into the workplace from time to time. Further, the Applicant agreed that he was required to come into the workplace as an exempted worker, even during the work from home period.[61] The Applicant had no right to work from home. It was a term of his contract of employment that perform his duties at HPV’s offices in Melbourne and it had been made clear to him, irrespective of any conversations he had with his immediate manager, that he was expected to return to the workplace when required.
Secondly, as to the status of the Directions at the time, it is clear from the terms of the Victorian Government document that refers to State-wide Settings at Phase D that the requirement to “work from home if you can” was removed from 18 November 2021,[62] five days before the Applicant’s employment was terminated.
I do not accept the Applicant’s interpretation of the Directions to the effect that “work from home if you can” was still required on 18 November 2021. In simple terms:
(a)as at 18 November 2021, there was no direction directing that:
(i)an employer must permit an employee to work from home if it were simply reasonably practicable to do so; or
(ii)an employer must not direct an employee to attend for work if he or she could work from home; and
(b)as at 18 November 2021, there was a Direction contemplating an employer permitting or requiring a worker to perform work at a ‘Work Premises’.[63]
The Directions in place at the time did not impose a prohibition on an employee returning to the workplace.[64]
Moreover, it was clear in the lead up to that time the Victorian Government had indicated that the requirement to work from home would be removed once vaccination targets in the community had been reached. In that context, HPV was preparing for its employees to return to the office.[65] Employees began to return to HPV’s offices in Melbourne in November and December 2021.[66] The Applicant’s contract of employment made clear his place of employment was HPV’s offices in Melbourne and any other place that HPV Employer permits or reasonably requires.
I accept that, given the Applicant was only employed by HPV for 9 months, nearly all of which time lockdowns or work from home if you can directions were a feature in Melbourne, he had spent little time at HPV’s offices in Melbourne. However, he was expected to work there once the restrictions were eased. That is what was happening, the restrictions were easing. The evidence of Ms Malone was to the effect that employees were gradually returning to the office at that time.[67] However, the Applicant did not vaccinate, did not have an exemption and could not work at the location he was contracted to work at, being HPV’s offices in Melbourne.
Consideration
For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable (s.385(b)). In considering whether it is so satisfied, the Commission must take into account the various matters specified in s.387.
The Commission is required to consider whether there was a valid reason for the dismissal related to the person’s capacity or conduct (s.387(a)). It is a well-established principle that the reason for dismissing the Applicant must be sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced cannot be a valid reason.[68]
I consider that HPV had a valid reason to dismiss Mr Pehlivanidis. Mr Pehlivanidis was required to be vaccinated and provide evidence of such, or alternatively, provide evidence of an exemption by 15 October 2021 in order to work outside of his home/attend the workplace. He did neither. The Applicant failed to follow a lawful and reasonable direction. Even though some of the work could be done from home, the position he held required him to attend the workplace. Mr Pehlivanidis was therefore at the time of his dismissal, unable to perform the inherent requirements of his role.
The Directions meant there was a regulatory requirement that Mr Pehlivanidis was required to meet in order to continue to perform his role. He did not meet the requirement. Mr Pehlivanidis fell within the definitions of a worker covered by the Directions. Mr Pehlivanidis agreed as he was not vaccinated that he was unable to attend the workplace to perform his main role as Category Manager.[69] Mr Pehlivanidis did not demonstrate an exemption from COVID-19 vaccination to HPV even though additional time was granted to seek further advice on the vaccination.
In summary, HPV was compelled to implement the Directions and they have done exactly that in respect to Mr Pehlivanidis. Mr Pehlivanidis was given a lawful and reasonable direction that he did not comply with. By virtue of the Directions, HPV could not allow Mr Pehlivanidis to attend the workplace because of his decision not to vaccinate against COVID-19. Mr Pehlivanidis did not provide a valid exemption from the requirement to do so. This failure to follow a lawful and reasonable direction was a sound and defensible, and thus valid reason to dismiss Mr Pehlivanidis.
Further, the Applicant was unable to perform the inherent requirements of his role. HPV provided notice to Mr Pehlivanidis that if he did not act, that he would not be able to work on-site as part of his role. This was also a valid reason for dismissal.
I have considered whether Mr Pehlivanidis should have been given more time by HPV to vaccinate, given his indication to Mr Neill that he would do so. For the reasons set out above, I do not believe that the totality of the evidence supports a finding that Mr Pehlivanidis was about to vaccinate. In any event, even if that is not correct, the Applicant had sufficient time to vaccinate, having consulted doctors in October and them recommending that he does so. He misled his employer as to having a claimed medical condition and having been referred to a specialist. Further, the direction to work from home if possible was lifted on 18 November 2021 and HPV was in the process of having employees return to the workplace. They were entitled to expect that Mr Pehlivanidis return to work at HPV’s offices in Melbourne consistent with his contract of employment. My consideration of these matters does not alter my view there are valid reasons for dismissal.
The valid reasons for dismissal weigh against a finding the dismissal was unfair.
In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether an employee has been notified of the reasons for dismissal and whether the person was afforded an opportunity to respond to any reason related to their capacity or conduct (ss.387(b) and (c)). As is evident from the exchange of correspondence set out in the background earlier, Mr Pehlivanidis was clearly put on notice of the reason for dismissal and given an opportunity to respond, which he exercised.[70] The Applicant was notified of the reason (and alternate reason) for dismissal by letters sent by Mr Neill on:
· 21 October 2021; and
· 29 October 2021.
Further, the reason for dismissal was discussed with the Applicant at the meeting held on 8 November 2021 and during telephone calls with Mr Neill on 12 and 18 November 2021. Prior to that, the Applicant had also been informed that all employees of the Respondent were “authorised workers” who were required to receive vaccinations in order to work onsite at various points, including on:
· 4 October 2021;
· 8 October 2021; and
· 15 October 2021.[71]
He was allowed further time to consult medical practitioners. The extensive procedural fairness afforded Mr Pehlivanidis weighs against a finding the dismissal was unfair.
HPV did not refuse, unreasonably or otherwise, to allow Mr Pehlivanidis to have a support person present to assist in discussions relating to the dismissal (s.387(d)). Mr Pehlivanidis acknowledges that he was allowed to have a support person and this request was granted.[72] This is a neutral consideration.
If a dismissal relates to unsatisfactory performance, s.387(e) requires the Commission to consider whether the person has been warned about that unsatisfactory performance prior to dismissal. However, Mr Pehlivanidis’ employment was not terminated for unsatisfactory performance, but for issues relating to his capacity This is not relevant in the circumstances.
The Commission is required to consider the degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal (ss.387(f), (g)). There was no procedural deficiency in the manner of effecting the dismissal such that these provisions are relevant. Sections 387(f) and (g) are neutral considerations.
Other matters
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account any other matters that it considers relevant (s.387(h)).
Mr Pehlivanidis had a certificate indicating that he was examined on 18 November 2021, and that he was unfit for duty up to and including 2 December 2021. As Mr Pehlivanidis was on sick leave at the time his employment was terminated, this weighs in favour of a finding the dismissal was unfair. However, at that time, he was unable to perform the inherent requirements of his role as he was unvaccinated.
Mr Pehlivanidis claims he contracted COVID-19 in January 2022 and saw a doctor on 1 April 2022 who then, on the basis of the information provided by the Applicant that he had COVID-19 in January, provided him with an exemption based on a medical contraindication stating that he could not receive two brands of the vaccine until 1 July 2022 and two others until 1 July 2023.[73] These dates are reflected in the immunisation history statement provided by the Applicant. This seems a rather bizarre document. I am unaware of any medical advice that a person could have a medical contraindication to a vaccine based on a past COVID-19 infection for such a significant period of time. For two of the vaccines the period is more than one year. The Applicant was confused as to why the dates were different for the different vaccines and provided some vague speculation as to why that might be.[74] In any event, the evidence does not assist the Applicant’s case. He was dismissed in November 2021 after fair warning that he needed to vaccinate or provide an exemption in order to remain in employment. He was given ample opportunity to vaccinate but chose to use that time making spurious claims as to why he could not or would not vaccinate as set out above.
Despite the fact that the Applicant was employed for only 9 months, he was paid 5 weeks in lieu of notice at the time of his dismissal. His short period of employment does not weigh in favour of a finding of unfairness. The significant payment in lieu of notice despite the short period of employment does not weigh in favour of a finding of unfairness.
Conclusion
Having taken into account the other matters above I am satisfied that the fact that the Applicant was, according to the medical certificate provided, unwell with an undefined medical condition at the time he was dismissed and that weighs in favour of unfairness. However, all of the factors have to be taken into account.
I have had regard to all of the factors under s.387 of the FW Act. There are two valid reasons for Mr Pehlivanidis’ dismissal, and this is a factor that weighs against Mr Pehlivanidis. In respect to the procedural fairness to effect the dismissal considered under s.387(b) and (c), I am satisfied that the dismissal was in all the circumstances procedurally fair and this also weighs against Mr Pehlivanidis. The fact that he was unwell at the time the dismissal took effect weighs in favour of the Applicant. All other factors are neutral. The factors weighing against a finding of unfairness are significant and in my view are of sufficient weight to not render the dismissal unfair despite the fact that the Applicant was unwell at the time of the dismissal.
Having regard to s.387 of the FW Act, I consider that Mr Pehlivanidis’ dismissal was not harsh, unjust or unreasonable, and that it was therefore not unfair. The application is dismissed. An order to that effect will be separately issued.[75]
COMMISSIONER
Appearances:
T Pehlivanidis, Applicant.
N Harrington of Counsel for the Respondent.
Hearing details:
2022.
Melbourne (by video via Microsoft Teams):
April 6;
May 13.
[1] Applicant’s Statement of Evidence, Attachment 11 at Digital Court Book (DCB) page 50.
[2] Applicant’s Closing Submissions at [8].
[3] Respondent’s Outline of Submissions at DCB page 94, [14]; See also clause 9(24) of the Directions as in force until 29 October 2021, and clause 10(24) of the Directions as in force from 29 October 2021.
[4] Respondent’s Outline of Submissions at DCB page 93, [7]; Attachment 1 to Statement of Angela Malone at DCB page 114, cl 4.9.
[5] Respondent’s Outline of Submissions at DCB page 95, [16].
[6] Respondent’s Outline of Submissions at DCB page 96, [22].
[7] Attachment 6 to Statement of Angela Malone at DCB page 137.
[8] Attachment 6 to Statement of Angela Malone at DCB page 136.
[9] Ibid.
[10] Attachment 8 to Statement of Angela Malone at DCB page 139.
[11] Transcript at PN335.
[12] Attachment TP-7 to Statement of Mr Pehlivanidis at DCB page 44.
[13] Attachment TP-9 to Statement of Mr Pehlivanidis at DCB page 47.
[14] Attachment 11 to Statement of Angela Malone at DCB page 144.
[15] Respondent’s Outline of Submissions at DCB page 97, [30].
[16] Applicant’s Outline of Arguments at DCB page 25, [9].
[17] Ibid [12].
[18] Exhibit R2, emails dated 18 November 2022.
[19] Witness Statement of Angela Malone at DCB page 106, [24] and Attachment 12 at DCB page 145.
[20] Transcript at PN4 - PN5.
[21] Respondent’s Outline of Submissions at DCB page 98, [38].
[22] See for example Transcript at PN109 - PN126, PN156, PN182 - PN188 and PN92.
[23] Transcript at PN373 - PN388.
[24] Respondent’s Closing Submissions at [21].
[25] See for example Transcript at PN216 and PN292.
[26] Transcript at PN343.
[27] Transcript at PN328.
[28] Applicant’s Closing Submissions at [2].
[29] Attachment TP-10 at DCB page 48.
[30] Transcript at PN241.
[31] Transcript at PN416 - PN422.
[32] Transcript at PN551 and PN553.
[33] Transcript at PN535 - PN536.
[34] Transcript at PN317.
[35] Transcript at PN364.
[36] Transcript at PN338.
[37] Transcript at PN343.
[38] Transcript at PN364.
[39] Transcript at PN315 - PN318.
[40] Transcript at PN416 - PN419.
[41] Attachment TP-10 at DCB page 48.
[42] Transcript at PN324 - PN325.
[43] Transcript at PN315 - PN317.
[44] Transcript at PN335.
[45] Exhibit R2, emails dated 18 November 2022.
[46] Transcript at PN941 - PN942.
[47] Transcript at PN183.
[48] Transcript at PN246.
[49] Transcript at PN241.
[50] Transcript at PN560.
[51] Transcript at PN561.
[52] Transcript at PN236.
[53] Transcript at PN569.
[54] Transcript at PN335.
[55] Transcript at PN536.
[56] Transcript at PN552.
[57] Transcript at PN700
[58] Ibid.
[59] Attachment 4 to Statement of Angela Malone at DCB page 129.
[60] Attachment 7 to Statement of Angela Malone at DCB page 136.
[61] Transcript at PN130 - PN133.
[62] Exhibit FWC1.
[63] Respondent’s submissions concerning the effect of the various CHO directions over the relevant period, [8].
[64] Ibid [12] - [18].
[65] Transcript at PN663, PN658, PN708 and PN928.
[66] Transcript at PN928.
[67] Transcript at PN663, PN658, PN708 and PN928.
[68] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333.
[69] Transcript at PN369 - PN370.
[70] Attachment TP-11 to Statement of Mr Pehlivanidis at DCB page 50.
[71] Respondent’s Outline of Submissions at DCB page 99, [45], [47] and [48].
[72] Applicant’s Outline of Arguments at DCB page 23, [6].
[73] Documents filed on 6 April 2022 pursuant to Order to Produce, at Annexure 2.
[74] Transcript at PN573 - PN579.
[75] PR744136.
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