Tomasz Jonatan Jadczuk v Metro Trains Melbourne Pty Ltd
[2022] FWC 2288
•1 SEPTEMBER 2022
| [2022] FWC 2288 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Tomasz Jonatan Jadczuk
v
Metro Trains Melbourne Pty Ltd
(U2022/1837)
| COMMISSIONER BISSETT | MELBOURNE, 1 SEPTEMBER 2022 |
Application for an unfair dismissal remedy – failure to meet requirements of public health
order – failure to comply with lawful and reasonable direction – valid reason for dismissal –
dismissal not harsh, unjust or unreasonable – application dismissed.
On 11 February 2022 Mr Tomasz Jadczuk made an application seeking relief from unfair dismissal. Mr Jadczuk was employed by Metro Trains and his employment was terminated on 31 January 2022. In the letter of dismissal Metro Trains advised Mr Jadczuk that his employment was terminated because of his inability to lawfully attend work and his failure to take steps required by Metro Trains for him to be able to lawfully attend work.
Prior to the hearing of the application I gave permission to Metro Trains to be represented by a lawyer pursuant to s.596 of the Fair Work Act 2009 (FW Act).
Submissions and a witness statement were filed for Mr Jadczuk, including 6 documents on which Mr Jadczuk relied.
Metro Trains filed submissions and a witness statement of Mr Robert Duvel, Executive Director, Metro Trains
PRELIMINARY MATTERS
It is not in dispute and I am satisfied that:
the respondent dismissed the applicant within the meaning of s.386(1)(b) of the FW Act on 31 January 2021;
the Applicant was protected from unfair dismissal within the meaning of s.382 of the FW Act at the time of dismissal;
the dismissal was not consistent with the small business fair dismissal code within the meaning of s.388 of the FW Act (because the Respondent is not a small business employer), or a case of genuine redundancy within the meaning of s.389 of the FW Act; and
the Application was filed within 21 days of the dismissal to which it relates.
FACTUAL BACKGROUND
The following factual matters in relation to the application before me are not disputed, either being agreed or not subject to any contradiction.
Metro Trains operates the Melbourne metropolitan train network. Mr Jadczuk was employed as a Suburban Train Maintainer – Electrical within Metro’s Rolling Stock Division. Mr Jadczuk’s role included rolling stock repair and attendance and rectification of in-service disabled trains. Mr Jadczuk’s employment was covered by the Metro Trains Melbourne Rolling Stock Enterprise Agreement 2019 (Rolling Stock Agreement).
On 1 October 2021 the Victorian Premier issued a media statement in which he outlined expanded requirements for workers to be vaccinated against COVID-19. The press release detailed that all specified authorised workers would be required to be vaccinated by 15 October 2021 in order to continue working onsite and would need to be fully vaccinated by 26 November 2021. Metro Trains’ employees were identified as “authorised workers”. The content of this press release was sent to all employees of Metro Trains with a request that they upload their vaccination status to MetroMe by 11 October 2021 with an explanation as to how to do this.[1] On 5 October 2021 a further update was provided to Metro Trains employees advising that a requirement would exist that they be vaccinated and that they would need to upload this information to MetroMe.[2]
On 7 October 2021 the Victorian Acting Chief Health Officer (CHO) signed the COVID-19 Mandatory Vaccination (Workers) Directions (Directions).[3] The Directions imposed various obligations on Metro Trains including:
a requirement for Metro Trains to collect, record and hold vaccination information in relation to employees who were or may be scheduled to work outside their ordinary place of residence; and
that Metro Trains not allow its employees to work for it outside their normal place of residence after 15 October 2021 unless they had provided Metro Trains with vaccination information including that they had received one dose of an approved COVID-19 vaccine or met one of the exemptions. (My emphasis)
The Directions applied to Metro Trains as the employer of workers specified in the Directions.
From 8 October 2021 until the date Mr Jadczuk was dismissed there were further iterations of the Directions but none altered the essential fact that Metro Trains could not permit employees to attend work unless they were vaccinated or held a valid exemption.
On 8 October 2021 Metro Trains issued an email to its employees including specific information about the Directions and the requirements placed on Metro Trains and its employees in accordance with those Directions. The email also provided links to relevant Government websites and a video by Metro Trains’ Chief Medical Officer. It also provided a link to which employees could send any questions and encouraged employees to contact their GP for “reliable medical advice.”[4]
A Frequently Asked Questions (FAQ) document was sent to employees on 11 October 2021.[5] It provided information in relation to the requirements of the Directions, the need to provide vaccination status on MetroMe by 13 October 2021 and how to do this and what would happen if an employee chose not to be vaccinated or provide their vaccination status including that:
· They could apply for annual or long service leave which Metro Trains would assess in light of operational requirements.
· Employees who were required to attend Metro Trains’ worksites to do their job in the ordinary course but who were absent from work would not be able to fulfil the inherent requirements of their role and this would likely cause operational difficulties.
· Information was available on Government websites including information on privacy matters.
A reminder was sent to employees by email on 13 October 2021.[6]
On 14 October 2021 an email was sent to Mr Jadczuk[7] that said, in part:
You are receiving this email because you are employed in a role that is incapable of being performed from home, and our records indicate that you have not provided evidence in the approved form that you:
·have received one dose of an approved COVID-19 vaccination;
·have a booking to receive, by 22 October 2021, a dose of a COIVD-19 vaccination; or
·fall into one of a limited number of exceptions (for example, because of a specified medical contraindication).
For that reason, Metro is prohibited under the Directions from allowing you to attend for work from tomorrow, 15 October 2021, until such time as you meet the requirements of the Directions that enable you to attend for work. More information about the Directions can be found in the “Frequently Asked Questions” document sent to employees on 11 October 2021 (FAQ).
As was set out in the FAQ, because your work is of a nature that cannot be performed from home, you will not be paid from 15 October 2021 for so long as you are unable to attend for work, unless you are on paid leave.
Finally, and again as referred to in the FAQ, your ability to lawfully attend for work is inherent in the requirements of your position. Should you remain unable to attend for work into the future it is likely that your employment with Metro will be unable to continue. We therefore encourage you in the strongest terms possible to take steps to receive your vaccination or obtain satisfactory evidence of your inability to do so, over the coming week. We will be in touch about this further in due course.
If you need further information about what is required of you, please refer to the FAQ in the first instance, and otherwise contact your manager if necessary. Further, if you think that you have received this correspondence by mistake, you are required to let me know immediately.
(Underlining added)
Mr Jadczuk proceeded on an approved period of bonus days and long service leave on 15 October 2021 until 20 January 2022.
On 29 October 2021 a further email was sent to Mr Jadczuk[8] which said, in part:
Unfortunately, the number of Fleet Maintenance Staff who are unable to attend for work under the Government directions remains at a level we cannot sustain into the future.
As such, to continue serving the Victorian travelling public, we must take steps to have our employees return to work, or welcome new team members who can perform work across the network.
I am therefore writing to you today to let you know that you are now required to be able to return to on‐site work by Monday, 8 November 2021. In order for Metro to be able to roster you for shifts from this date, we require you to upload your vaccination information confirming your vaccination status to MetroMe by 5pm, Friday, 5 November 2021.
We expect that this will require you to have at least one dose of an approved COVID‐19 vaccine, or have an approved exemption, and so we encourage you to immediately take whatever steps as are necessary to facilitate your return.
It is important that you be aware that if, at this time, you are unable to return to work, it is unlikely that we will be able to maintain your employment. In those circumstances we will have further discussions with you prior to making any final decisions.
(Underlining added)
Mr Jadczuk’s leave ended on 20 January 2022 and he was due to return to work at that time. Mr Jadczuk had an email exchange with his Depot Manager, Mr Danny Walsh, on 12 January 2022 in which Mr Jadczuk requested he be granted further leave. He was advised on that day that further leave would not be approved.[9]
On 25 January 2022 Metro Trains sent a letter to Mr Jadczuk[10] regarding his failure to upload his vaccination status to MetroMe. The letter advised Mr Jadczuk that Metro Trains was considering terminating his employment and inviting him to provide any information he considered Metro Trains should take into account before reaching its final decision.
In reply Mr Jadczuk sent an email to Metro Trains on 30 January 2022[11] in which he set out a number of matters he considered relevant. These included, in summary:
· The Prime Minister had said in July 2021 that it was each individual’s decision what to do with their body and there were no mandatory vaccinations
· He was being coerced to be vaccinated without true consent
· Economic duress was being exerted which “vitiates consent”
· The “threat” in the letter is causing him an apprehension of battery
· The COVID-19 vaccines were a trial and did not provide immunity
· COVID-19 was not a proven threat to health on a “nationally significant scale”
· Vaccine approval was given without safety and efficacy data being available
· He had a right to “informed consent” in receiving a medical procedure (with reference to the Australian Constitution, the Biosecurity Act 2015 (Cth), Art. 6 of the UNESCO statement on Bioethics and Human Rights, Nuremberg Code and the Criminal Code Act 1995 (Cth))
· He did not receive any documentation addressed to himself until provided by Danny Walsh on 15 October 2021
· Regular RATs would provide a safer workplace
· Vaccination is a privacy matter
· There was no guarantee Metro would take full responsibility for injury/death arising from the vaccine
· He should be provided with the “law” that underpins the lawful direction
On 31 January 2022 Mr Jadczuk was advised by letter that his response of 30 January 2022 had been reviewed and considered, “however there are no matters raised that alter Metro’s preliminary view, previously communicated to you, that it is necessary to terminate your employment.”[12]
Mr Jadczuk’s employment was terminated by letter on 31 January 2022.[13] He was paid 4 weeks’ pay in lieu of notice in addition to his accrued entitlements.
CONTESTED MATTERS
Whether Metro Trains properly considered Mr Jadczuk’s response of 30 January 2022
Mr Jadczuk says that Metro Trains did not properly consider his response of 30 January 2022 and did not provide any reply to the matters he raised.
Metro Trains submits that it was not required to respond in detail to many of the matters raised by Mr Jadczuk and that, in any event, it had provided employees with information that might assist them
I am satisfied that Metro Trains was not required to respond line by line to the issues raised by Mr Jadczuk. In reaching this conclusion I note that Metro Trains did provide employees with extensive information through the FAQ, links to various government websites, encouragement to obtain advice from their own doctor and “Vax facts” videos.[14] Mr Walsh, the Depot Manager, also provided written information to Mr Jadczuk. Much of this information would have addressed the concerns of Mr Jadczuk if he was truly looking for information to ally his concerns.
Further, I accept the evidence of Mr Duvel that, prior to making a final decision with respect to Mr Jadczuk’s employment, he and Ms Dobson (of Metro Trains) considered Mr Jadczuk’s response but did not consider it altered the preliminary view as to the appropriateness of termination of Mr Jadczuk’s employment.
Metro Trains required Mr Jadczuk to be vaccinated
Mr Jadczuk says that Metro Trains required him to be vaccinated and that this breached his human rights. When questioned from the Bench with respect to this Mr Jadczuk said that he had read that it was a breach of human rights and had seen that on the news. Following the hearing Mr Jadczuk sent to the Commission and to Metro Trains a link to a report of the Victorian Ombudsman that found that the Tower lockdowns breached human rights. Mr Jadczuk suggested that such a lockdown is the same as “locking people out from work”. I have not had regard to this information provided by Mr Jadczuk for two reasons. Firstly, it does not go to the issue of whether Metro trains required Mr Jadczuk to be vaccinated. Second, it is a report of the Victorian Ombudsman in relation to the lockdown of certain residential towers at a particular point in time and does not relate to whether a requirement to be vaccinated is a breach of human rights such that its relevance to the matter raised by Mr Jadczuk is not apparent.
Metro Trains submits that it complied with the law at the time which was that it could not lawfully permit workers who did not provide evidence of their vaccination status to attend the workplace. Its actions in requiring employees to upload their vaccination status were to enable it to continue to operate.
I do not equate Metro train’s compliance with the Directions issued, on the evidence before me, to be a breach of “human rights”.
I accept the evidence of Mr Duvel that Metro Trains did not, in its material provided to employees, require its employees to be vaccinated. Rather it advised employees of the requirements of the Victorian Government as set out in the Directions that it could not allow unvaccinated workers in the workplace after 15 November 2021 and did encourage its employees to take action to ensure they could attend work lawfully.
I do not accept that Metro Trains sought to coerce Mr Jadczuk. Mr Jadczuk had a choice as to whether or not to be vaccinated. He made his choice. To the extent Mr Jadczuk has not disclosed his vaccination status (and it can be reasonably inferred he is, therefore, not vaccinated) it would appear that this decision was made freely by Mr Jadczuk before he knew that his employment may be terminated if he could not satisfy Metro Trains’ requirements. That he made his decision not knowing it may lead to termination of his employment (but noting he could have changed his mind at any time) cannot amount to coercion.
Rapid antigen tests should have been allowed
Mr Jadczuk argued that rapid antigen tests (RATs) provide a safer and more confident alternative to vaccination, and he should have been allowed to take RATs. He says he would have paid for these himself if money was an issue.
While I appreciate the offer of Mr Jadczuk, the Directions with which Metro Trains was required to comply did not allow RATs as an alternative to the requirement on an employee to provide vaccination status to be able to lawfully attend work. Mr Jadczuk may consider this alternative feasible but his wishes in this regard do not displace the requirements placed on Metro Trains by the Directions.
There is no material put before the Commission that would allow this to be accepted as a reasonable alternative, given the Directions and the legal obligation imposed on Metro trains.
WAS MR JADCZUK UNFAIRLY DISMISSED
Section 385 of the FW Act states that:
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.
Note:For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
I have found above in relation to ss.385(a), (c) and (d). It is therefore necessary for me to decide if the dismissals were harsh, unjust or unreasonable.
Whether a dismissal is harsh, unjust or unreasonable requires a consideration of those matters set out in s.387 of the FW Act. Section 387 of the FW Act states as follows:
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.
Note: For the purposes of paragraph (a), the following conduct can amount to a valid reason for the dismissal:
(a) the person sexually harasses another person; and
(b) the person does so in connection with the person’s employment.
Before considering each of these matters I would observe that the hearing of this application was difficult. While Mr Jadczuk is clearly aggrieved at losing his job he paid little attention to those matters the Commission must consider in determining if a dismissal is harsh, unjust or unreasonable and therefore unfair. Instead, Mr Jadczuk kept directing attention to the “bigger picture” which he considered important but which did not go to the matters the Commission must consider.
Mr Jadczuk did say that he relied on the written submissions he provided to the Commission in accordance with the directions issued. I have taken this material into account. To the extent he made oral submissions that went to matters to be considered I have considered those as well.
Section 387(a) – whether there was a valid reason related to the person’s capacity or conduct
In order for a reason for dismissal to be a valid reason it must be “sound, defensible or well founded”[15] and should not be “capricious, fanciful, spiteful or prejudiced.”[16] The reason for termination must be defensible or justified on an objective analysis of the facts in the case.[17] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[18]
Mr Jadczuk was dismissed from his employment for two reasons. Firstly, Metro Trains says it dismissed Mr Jadczuk because, not having been vaccinated, he could not lawfully attend work and therefore could not fulfil the inherent requirements of his job. That is, he lacked the capacity to do his job.
The Full Bench of Fair Work Australia considered the operation of the incapacity provisions in s.387(a) of the FW Act in J Boag and Son Brewing Pty Ltd v Allan Button[19] (Boag and Son) and concluded as follows:
[22] When an employer relies upon an employee’s incapacity to perform the inherent requirements of his position or role, it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must be considered.
[23] In X v Commonwealth the High Court was concerned with an allegation of discrimination on the grounds of disability contrary to the Disability Discrimination Act 1992 (Cth) by a solider who had been dismissed from the army on account of being HIV positive. Section 15(4) of that Act contains an exemption from liability if the person “would be unable to carry out the inherent requirements of the particular employment”. Gummow and Haynes JJ addressed the notion of “inherent” requirements:
“[102] The reference to “inherent” requirements invites attention to what are the characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral. …[T]he requirements that are to be considered are the requirements of the particular employment, not the requirements of employment of some identified type or some different employment modified to meet the needs of a disabled employee or applicant for work.”
[24] Although the High Court was concerned with the meaning of the expression “inherent requirements” in a statute, this analysis is equally applicable to a consideration of what constitutes the “inherent requirements” of a position as a valid reason for dismissal…
[25] In Qantas Airways Ltd v Christie Gaudron J, with whom Brennan CJ agreed, noted that the expression “inherent requirements”, in its natural and ordinary meaning “directs attention to the essential features or defining characteristics of the position in question.”… [Footnotes omitted]
Mr Jadczuk does not put any argument that there was not a valid reason for his dismissal related to capacity. I am therefore satisfied that he could not lawfully attend the workplace, his job could not be performed at home and that therefore was a valid reason for his dismissal at the time he was dismissed related to capacity.
Second, Metro Trains says it dismissed Mr Jadczuk for conduct in that he failed to comply with the direction in the correspondence to him of 29 October 2021 that he be vaccinated by the time he was due to return to work following his long service leave.
Whether a direction given to an employee will be lawful and reasonable was considered most recently by the Full Bench of the Commission in Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal[20] (Mt Arthur Coal) where the Full Bench made the following observations:
[68] It is uncontentious that a lawful direction is one which falls within the scope of the employee’s employment. There is no obligation to obey a direction which goes beyond the nature of the work the employee has contracted to perform, though an employee is expected to obey instructions which are incidental to that work.
[69] Further, employer directions which endanger the employee’s life or health, or which the employee reasonably believes endanger his or her life or health, are not lawful orders; unless the nature of the work itself is inherently dangerous, in which case the employee has contracted to undertake the risk.
[70] The order or direction must also be ‘lawful’ in the sense that an employee cannot be instructed to do something that would be unlawful; such as a direction to drive an unregistered and unroadworthy vehicle.
[71] Employees are only obliged to comply with employer directions which are lawful and reasonable.
[72] Reasonableness is ‘a question of fact having regard to all the circumstances’ and that which is reasonable in any given circumstance may depend on, among other things, the nature of the particular employment… [Footnotes omitted]
Mr Jadczuk makes no submission on any of the reasons for dismissal given in the letter of termination of employment. He does not claim to have not received the correspondence.
To the extent Mr Jadczuk suggests that the Directions issued by the Acting Victorian Health Officer (and subsequently reissued in the form of “Orders”) were not lawful or were in breach of various laws that he cites, I note that the Directions have not been declared invalid or unlawful and the Commission, as an administrative tribunal, must carry out its functions according to law.[21] The Commission will treat the Directions as lawful until such time as a Court determines otherwise. Metro Trains was entitled to do the same. Mr Jadczuk’s arguments and evidence in relation to the “illegality” or lack of lawfulness of the Directions are not matters to be determined by me.
I am therefore satisfied that there was a valid reason for the dismissal of Mr Jadczuk being that he no longer had the capacity to fulfil the inherent requirements of his job because he could no longer lawfully attend the workplace and that he engaged in misconduct in that he did not comply with a lawful and reasonable direction given to him by Metro Trains.
Section 387(b) & (c) – if the employees were advised of the reason for the dismissal and given an opportunity to respond
That a person has been notified of the reasons for dismissal and is given an opportunity to respond to those reasons before a final decision is made goes to the need for procedural fairness in the process undertaken. As was said in Crozier v Palazzo Corporation Pty Ltd[22]:
[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG (3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.
I accept that Mr Jadczuk was on long service leave from 15 October 2021 until 20 January 2022. However, he does not say that the was not aware of the requirement to provide his vaccination status to enable him to lawfully return to work. I am satisfied that Mr Jadczuk did receive the letter of 25 January 2022. This is evidenced by his reply email of 30 January 2022 in which he raises matters he considered Metro Trains should take into account.
As I have found above, I am satisfied that Metro Trains did consider the matters raised by Mr Jadczuk. Metro Trains was not obliged to respond to each of the matters raised in Mr Jadczuk’s email but was required to consider these matters.
I am therefore satisfied that Metro Trains did advise Mr Jadczuk of the reasons for dismissal and did give him an opportunity to respond to those reasons prior to making its decision to dismiss Mr Jadczuk from his employment.
Section 387(d) – access to a support person
There was no denial by Metro Trains of Mr Jadczuk having access to a support person. This is not an issue in the matter before me.
Section 387(e) – dismissal related to performance
This was not a dismissal for performance related reasons. This is therefore not a relevant consideration.
Sections 387(f) & (g) – was the size of the employer’s business and access to human resources expertise likely to impact on the procedures in relation to the dismissal
I am satisfied that Metro Trains is a large organisation with a well-equipped human resources team. Its procedures in relation to these matters before me appear sound and it approached the issues in a structured and professional manner as is to be expected.
Section 387(h) – any other matters
Mr Jadczuk says that his dismissal was unfair because he was not given an opportunity to give informed consent, that Metro Trains requested his personal medical history and Metro Trains pushed a medical procedure as a condition of employment.
I would observe that Mr Jadczuk had a substantial opportunity to make an informed decision. No action was taken in relation to his employment until late January 2022 although he was aware from early October 2021 that he would be required to be vaccinated (or have a valid exemption) to be able to lawfully attend work. He knew on 29 October 2021 that if he could not provide the information required by Metro Trains his job may be in jeopardy. Mr Jadczuk was given access to information on vaccine safety, “myth” busting and testing,[23] he was provided with a FAQ and links to government information and was encouraged to get his own medical advice. Further, Mr Jadczuk’s manager sent information to him including a copy of advice prepared for the RTBU about the vaccine requirements. That advice said in part that the “current Mandatory Vaccination Directions do not require the worker to get vaccinated. They require the employer to not allow unvaccinated workers attend work.” To the extent that Mr Jadczuk took in or accepted this advice is a matter for him, but it is difficult to find, in light of the information available to him, that he did not have an opportunity to make an informed decision. Ultimately Mr Jadczuk made a choice not to disclose his vaccination status knowing the consequences of that choice.
I am not satisfied that Metro Trains sought Mr Jadczuk’s personal medical history. They did no more than request that he upload his vaccination status to MetroMe.
I do not accept that Metro Trains “pushed” a medical procedure as a condition of Mr Jadczuk’s employment. Metro Trains sought to comply with the Victorian Government Directions in that it could not lawfully permit a person into the workplace unless that person produced evidence of vaccination or a valid exemption. As I have said above Mr Jadczuk made a choice about the request of Metro Trains in full knowledge of the consequences of the choice he made.
Conclusion as to whether the dismissal was harsh, unjust or unreasonable
I have found above that there was a valid reason for the dismissal of Mr Jadczuk. I do not consider that any of the matters raised by Mr Jadczuk amount to reasons as to why the dismissal could be found to be harsh, unjust or unreasonable.
For these reasons I am satisfied that the dismissal of Mr Jadczuk was not harsh, unjust or unreasonable.
CONCLUSION
Having found that the dismissal of Mr Jadczuk was not harsh, unjust or unreasonable I am satisfied that he was not unfairly dismissed.
Mr Jadczuk’s application is therefore dismissed. An order[24] to this effect will be issued.
COMMISSIONER
Appearances:
T. Jadczuk on his own behalf.
M. Popple of Herbert Smith Freehills for the respondent.
Hearing details:
23 August 2022.
Melbourne, by video.
[1] Witness statement of Robert Duvel, Annexure RD-2
[2] Witness statement of Robert Duvel, Annexure RD-3
[3] Witness statement of Robert Duvel, Annexure RD-4. Note that Mr Duvel says the Directions were issued on 8 October 2021 but the Directions are dated 7 October 2021
[4] Witness statement of Robert Duvel, Annexure RD-6
[5] Witness statement of Robert Duvel, Annexure RD-7
[6] Witness statement of Robert Duvel, Annexure RD-8
[7] Witness statement of Robert Duvel, Annexure RD-10
[8] Witness statement of Robert Duvel, Annexure RD-11
[9] Witness statement of Robert Duvel, Annexure RD-13
[10] Witness statement of Robert Duvel, Annexure RD-14
[11] Mr Jadczuk’s document list, attachment 4 and witness statement of Robert Duvel, Annexure RD-15
[12] Witness statement of Robert Duvel, Annexure RD-16
[13] Mr Jadczuk’s document list, attachment 6 and witness statement of Robert Duvel, Annexure RD-16
[14] Witness statement of Robert Duvel, paragraph 33 and Annexure RD-9
[15] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373
[16] Ibid
[17] Rode v Burwood Mitsubishi Print R447
[18] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685
[19] [2010] FWAFB 4022
[20] [2021] FWCFB 6059
[21] Kathryn Marguerite Roy-Chowdhury v Ivanhoe Girls’ Grammar School [2022] FWCFB 1614
[22] Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print S5897
[23] Witness statement of Robert Duvel, paragraph 33
[24] PR745256.
Printed by authority of the Commonwealth Government Printer
<PR745255>
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