Ursula Bernadette Gee v Eastern Health - [2022] FWC 932

[2022] FWC 932

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ursula Bernadette Gee
v

Eastern Health

(U2021/11219)

COMMISSIONER WILSON

MELBOURNE, 22 APRIL 2022

Application for an unfair dismissal remedy. Refusal or failure to provide vaccination information; whether work could be performed entirely from home. Section 387 considered. No unfair dismissal.

This decision concerns an application for an unfair dismissal remedy made by Mr Ursula Gee pursuant to s.394 of the Fair Work Act 2009 (the Act). The application was filed in the Fair Work Commission (the Commission) on 31 January 2022 (the Application) after Ms Gee was dismissed by the Respondent, Eastern Health, with effect from 15 November 2021.

For the reasons set out below I find Ms Gee was not unfairly dismissed.

PRELIMINARIES

The merits of the Application were the subject of a hearing convened by me on 4 March 2022. Ms Gee appeared on her own behalf. Permission was sought by Eastern Health to be represented by Mr Nicholas Harrington of Counsel, instructed by Mr David Hartnett of K & L Gates, solicitors. I determined that the requirements under s.596(2) of the Act were met, and permission was duly granted. After consulting with the parties on the subject, as required by s.399, I determined the matter would best proceed by way of a hearing, with that course being the most effective and efficient way to resolve the matter.

Section 396 of the Act requires the determination of four initial matters before consideration of the merits of the application. Those matters are whether the application was made within the period required in s.394(2), whether the person was protected from unfair dismissal, whether the dismissal was consistent with the Small Business Fair Dismissal Code, and whether the dismissal was a case of genuine redundancy. Neither party put forward that any of the initial matters required consideration. In relation to the elements within s.396, I find that Ms Gee’s application was lodged with the Commission within the 21-day period for making applications required by s.394(2) and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

BACKGROUND

Ms Gee started work for Eastern Health on 19 October 2015 and by the time of her dismissal had worked for the respondent for 6 years. Eastern Health is a Victorian public entity and Ms Gee’s employment was covered by the Administrative Officers (Victorian Public Health Sector Health and Allied Services, Managers and Administrative Workers) Single Interest Enterprise Agreement 2016 – 2020. Ms Gee was employed as a project officer in the field of stakeholder relations, working for Eastern Health Telephone and Online Services Unit (TOLS). TOLS is part of a business unit known as “Turning Point”, which provides telephone and online services for those seeking help for clients with addiction issues. The services are offered to the community on behalf of the Victorian Government, and also the NSW, SA, Tasmanian and Australian Governments.[1]

Ms Gee performed her work from a site in…

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.

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Details

Case: [2022] FWC 932
Decision Date: 22 APRIL 2022

CaseChat Overview and Summary

Ursula Bernadette Gee, an employee of Eastern Health, sought an unfair dismissal remedy from the Fair Work Commission (FWC) under s.394 of the Fair Work Act 2009 (Cth). Ms Gee was dismissed on 15 November 2021 due to her refusal to provide evidence of her COVID-19 vaccination status and her inability to meet the inherent requirements of her job. The primary issues for the FWC to decide were whether Eastern Health had a valid reason to dismiss Ms Gee and whether there were any procedural defects in the manner in which she was dismissed.

The FWC found that Eastern Health had a valid reason to dismiss Ms Gee, which was related to her capacity to fulfil the inherent requirements of her job. The inherent requirements included the ability to attend the workplace when required. The FWC noted that Eastern Health had a statutory obligation to comply with the COVID-19 Mandatory Vaccination Directions, which prohibited unvaccinated employees from attending its facilities unless medically exempt. Ms Gee was unable to provide evidence of her vaccination status, and therefore, could not fulfil the inherent requirements of her job.

The FWC also found that there were no procedural defects in the manner in which Ms Gee was dismissed. Ms Gee was notified of her dismissal and given an opportunity to respond to the reason for her dismissal. The FWC concluded that Ms Gee's dismissal was not an unfair dismissal and dismissed her application.

In summary, the FWC found that Eastern Health had a valid reason to dismiss Ms Gee due to her inability to meet the inherent requirements of her job, and there were no procedural defects in the manner in which she was dismissed. The FWC dismissed Ms Gee's application for an unfair dismissal remedy.

Orders