Virginia Neil v Luxottica Retail Australia Pty Ltd
[2022] FWC 1951
•22 JULY 2022
| [2022] FWC 1951 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Virginia Neil
v
Luxottica Retail Australia Pty Ltd
(U2022/2553)
| DEPUTY PRESIDENT LAKE | BRISBANE, 22 JULY 2022 |
Application for an unfair dismissal remedy – where the Applicant was not unfairly dismissed.
Mrs Virginia Neil (the Applicant) contends she was unfairly dismissed by Luxottica Retail Pty Ltd (the Respondent), for whom she had worked since 14 January 2013. She seeks an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). In short, the Applicant was terminated from her position in the Respondent’s optometrist after failing to comply with the Respondent’s direction to be fully vaccinated by 15 December 2021. The events leading to the Applicant’s termination are not in dispute. Rather, the Applicant contends that the unlawfulness of the Respondent’s conduct gives rise to her unfair dismissal claim.
As the matter could not be resolved by conciliation, directions were issued for the filing of material and a hearing was listed for 10.00am on 12 July 2022. At which the parties sought to be represented. This was not opposed by either party. Even so, I am still required to consider whether permission ought to be granted under s.596 of the Act.[1] The first pre-requisite: the presence of one of the criteria under s.596(2), does not immediately invoke the right to representation but rather “involves an evaluative judgment akin to the exercise of discretion.”[2] Once that first step is satisfied, the second step “involves consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.”[3] Given the volume of evidence and submissions provided by the parties and the nuanced legal arguments involved in considering whether the Applicant’s dismissal was unfair, I was satisfied that it would be of use to the Commission – and would not unduly prejudice the opposing party – to have the assistance of the legal representatives. I was also satisfied that the presence of the representatives would also enable the matter to be dealt with more efficiently. Accordingly, I allowed Mr John Shepley of Counsel to appear for the Applicant and I allowed Mr Rod Marshall to appear on behalf of the Respondent. The Respondent was represented by Ms Laura Rankin.
Section 396 of the Act requires that I am satisfied of four matters before considering the merits of the Applicant’s application. Neither party disputed and I am satisfied, that the Applicant made her application within the 21-day period required by s.394(2) of the Act, that she was a person protected from unfair dismissal (as she earned less than the high-income threshold), that her dismissal was not a case of genuine redundancy and that the Respondent is not a small business to whom the Small Business Dismissal Code applies.
Chronology
The Applicant was employed in the Respondent’s optometry line of business, operated under the OPSM brand. At the time of termination, the Applicant was employed as a part-time Leading Dispenser at OPSM Loganholme in Queensland.
In late 2021 and early 2022, the Queensland Government introduced a series of Health Directions which mandated that persons working in healthcare settings were required to be fully vaccinated against COVID-19 by 15 December 2021, which included amongst other types of healthcare providers, optometrists.
The Applicant was employed at the Respondent’s OPSM store at Loganholme in Queensland. The Applicant was employed in the classification of Leading Dispenser under the Luxottica Retail Enterprise Agreement 2015.
The Applicant reported to the Store Manager of OPSM Loganholme, which from July 2020 to the time of termination was Ainslie Williams. Ms Williams reports to the Regional Manager (Queensland East and Northern New South Wales), Ken Wilkinson.
The Applicant’s terms and conditions of employment were set out in a contract of employment dated 3 November 2020 (Contract). The Contract sets out, amongst other things, an express duty on the part of the Applicant to “obey all reasonable Company directions
The Queensland Government introduced a series of Directions mandating COVID-19 vaccination for healthcare workers, which for the present matter remained unchanged between the versions. They are as follows:
Health Direction
Commencement Date
Workers IN A HEALTHCARE SETTING (COVID-19 VACCINATION REQUIREMENTS) DIRECTION3
10 November 2021
Workers in a Healthcare Setting (COVID-19 Vaccination Requirements) (No.2) Direction4
16 December 2021
Workers in a Healthcare Setting (COVID-19 Vaccination Requirements) (No.3) Direction5
4 February 2022
The Applicant declined to be vaccinated against COVID–19 and did not provide any further information regarding a possible medical condition or exemption. The Applicant was stood down without pay and she was invited to a show cause meeting which eventuated on 8 February 2022 after some rescheduling. The Applicant attended with her husband and did not provide the Respondent with any medical information or what steps she was taking to get medical advice.
The Respondent advised the Applicant that if she refused to confirm her vaccination
status, provide information concerning her health, or steps taken to seek medical advice the Respondent would assume that she was not vaccinated, and that if there were no applicable valid exemptions which prevented her from being vaccinated, it would likely result in the termination of her employment.
A further show cause meeting was held on 16 February 2022. The Applicant provided no further information on her vaccination status but confirmed that she was not able to gain a medical exemption. During the meeting, the Applicant was informed that her employment was terminated with immediate effect and on 17 February 2022, the Respondent emailed a copy of the termination letter.
Applicant’s Material
The Applicant accepts that she was informed on multiple occasions that if she was not vaccinated by 15 December 2021, her employment may be terminated. She does however question the lawfulness of that directive.
The Applicant raised the matter that her hours of work had been recorded incorrectly and the Store Manager had not been helpful in fixing the issue. She further raised matters regarding that she felt harassed or bullied however she made no formal complaint regarding these issues and were not relevant to the termination decision by the employer.
On 28 September 2021, the Applicant received a company-wide email advising that the Respondent will be introducing a new COVID-19 Vaccination Policy. The email requested that employees must advise their vaccination status by 1 October 2021.
On 6 October 2021, the Applicant sent an email to the Store Manager stating, “I will not be providing any information regarding my current vaccination status, or intensions as there are no Public Health Orders or Mandates in Qld compelling me to do so”.
On 16 November 2021, the Applicant received a company-wide email advising of a Queensland Health Direction coming into force and that all employees would be required to be vaccinated by 15 December 2021. Further, employees were requested to update their vaccination status by the 18 November 2021.
The Applicant updated her status on 29 November 2021 and received a confirmation on 30 November stating that her update had need successful. On 6 December 2021, the Applicant received an email from the Respondent advising that she will be contacted by no later than 10 December 2021 to further discuss her ongoing employment in line with the Directions.
On the Applicant’s final working day prior to the Directions coming into effect, she had not been informed of the next steps regarding her non-vaccination status and working. On 14 December the Area Manager, Ken Wilkinson, contacted the Applicant at home and advised her that she would be stood down from 15 December 2021. The Applicant states that Mr Wilkinson made threatening statements along the lines of, “others have lost their Entitlements, have been Fired, and no longer work for the Company, as they indicated they had no intention of being vaccinated, but as I had ticked ‘yes’ on the form, my entitlements are retained for the time being”.
On the 15 December 2021, the Applicant received an email from the Human Resources Department confirming that she was stood down without pay. Further, the email went on to say that if the Applicant were not fully vaccinated that she would be required to attend a show cause meeting in early January 2022 to discuss her employment.
On 1 February 2022, the Applicant sent an email to the Applicant advising that her vaccination status was unchanged and that she would like to engage in a meaningful consultation process around the action taken to stand her down without pay.
Later that day the Applicant received a telephone call from Mr Wilkinson to arrange a time to speak about her vaccination status with him and the HR Business Partner, Chantel Fanaian. On 2 February 2022 at 9.00a.m. The Applicant asserts that she was told by the Respondent that it was for a conversation and not a disciplinary meeting.
On 2 February 2022, in the meeting with Mr Wilkinson and the HR Team member, the Applicant advised that her vaccination status had not changed, and she was still seeking medical advice. Upon the Applicant asking the purpose of the meeting and whether it was the show cause meeting referred to in the previous correspondence there was a short break and then the meeting was adjourned. The Applicant was informed that the show cause meeting would be scheduled later via telephone and at the Applicant’s request was changed to be a face-to-face meeting.
The Applicant shortly after the meeting on 2 February 2022 requested a risk assessment for her workplace to assist in consultation. The Applicant followed up on 6 February 2022 requesting again that she receive a risk assessment for her workplace.
In the meeting on 8 February 2022 the Applicant was advised by Mr Wilkinson that the Respondent could not hold onto her position indefinitely and stated that unless she were vaccinated that her employment would come to an end. The Respondent offered more time (another 3 days) to show either proof of vaccination or a medical exemption or face termination of employment. The Applicant requested what would be her entitlements if she were terminated and she asserted again that she was seeking the risk assessments.
There was some confusion over the Applicant’s entitlements which the Respondent stated they would clarify. The Applicant also requested when she could reapply for positions which the Respondent informed that until she could comply with the Health Direction, she would not be able to be reemployed.
On 10 February 2022, the Respondent advised her that the summary of entitlements would be sent to the Applicant the following day and that there was no requirement to provide a Risk Assessment. The Respondent also reminded her to either provide in writing a medical exemption or her vaccination status the following day by 10.00 am.
On 11 February 2022, the Applicant received an email advising of a meeting on 15 February 2022 for a final show cause meeting. The meeting was not held due to confusion on the Respondent’s side and was rescheduled for the following day.
On 16 February 2022, the Respondent confirmed with the Applicant that her vaccination status had not changed, and she did not have a medical exemption. The Applicant confirmed to the Respondent that she was not objecting to being vaccinated, rather she was considering medical advice provided to her and that currently she was unable to receive a medical exemption.
There were a number of short breaks during the meeting. Mr Wilkinson stated that the Applicant cannot perform the inherent requirements of her role and that she would be terminated effectively immediately. The Applicant received the termination of employment letter the following day.
The Applicant notes that she was not offered to take leave during the stand down period nor provided any opportunities to transfer to another store that did not have the same requirements. Furthermore, the Applicant states that there was no urgency to terminate her as her job had been filled and that the Health Directive was due to expire the following month.
The Applicant maintains that she was a hardworking employee and after 9 years of service was looking forward to enjoying long service leave shortly and had planned to be working with the Respondent till her planned retirement in 4 years’ time. The Applicant claims that after her 9 years of dedicated service to the Respondent it was devastating to be dismissed because she refused to have a COVID-19 vaccination.
Nevertheless, it was accepted that the Applicant, as at 15 December 2021, had made it clear that she was not vaccinated and did not have a medical exemption.
For the reasons set out above, the Applicant submits that she was unfairly dismissed.
Respondent’s Material
The Respondent asserts that this case is not about whether the government mandate that all healthcare workers be vaccinated is lawful. That question falls outside the scope of this jurisdiction. Rather, the sole question before me is whether the Applicant was unfairly dismissed considering s.387 of the Act.
The Respondent states that it had a valid reason to dismiss the Applicant: namely, her non-compliance with a lawful and reasonable direction issued by the Respondent. Further the Respondent asserts that the Applicant was notified of that reason well in advance of the termination occurring, had ample opportunity to respond (and did so), that her response was considered by the Respondent, but ultimately a decision was made to terminate her employment because she could not fulfil the inherent requirements of her role. She was not unreasonably refused to support person. The Respondent further asserts that the consultation process undertaken was comprehensive and that given the extensive communications leading up to the implementation of the Healthcare Direction, all staff – including the Applicant – were very aware of what would happen if they were not vaccinated by 15 December 2021.
The Respondent denies that its staff were coerced into having the vaccine. The Respondent always accepted that it was their choice. However, given the public health order which mandated that workers in healthcare settings be vaccinated, the Respondent had no choice but to terminate the Applicant’s employment because she did not meet that criterion. The Respondent maintains that the Applicant was not unfairly dismissed.
The Respondent operates the OPSM branded stores which have Optometry services and retail services provided for in the one location. The Queensland Government introduced a series of Health Directions which properly defined the Respondent’s stores as healthcare settings and required all employees in these locations to be fully vaccinated by the 15 December 2021.
The Respondent had introduced its own vaccination policy prior to the Health Directions which was consistent with the Health Directions in requiring employees to be fully vaccinated.
On 28 September 2021, the Respondent issued to all employees, including the Applicant, an email regarding the introduction of the Respondent’s Vaccination Policy and requested that employees confirm their vaccination status by 1 October.
On 16 November 2021, the Respondent issued to the Applicant and all employees in the Optical businesses a communication informing employees of the requirements under the Workers in a Healthcare settling (COVID-19 Vaccination Requirements) Direction and the need for optical employees to be fully vaccinated, or hold an exemption, from 15 December 2021 as a condition of work. Further, the Respondent on 23 November 2021 required all employees to update their vaccination status online by 29 November 2021.
The Applicant on the 30 November 2021 updated her status to indicate that she was not vaccinated yet intended to become vaccinated but had no appointment to do so. A further communication was sent from the Respondent on 6 December 2021 to remind employees of the requirements under the Health Direction. If employees did not provide the information that the Respondent would make contact to discuss “…ongoing employment in line with the Directions”.
On 14 December 2021, Mr Wilkinson called the Applicant to enquire as to whether the
Applicant had been vaccinated or made a booking to be vaccinated. The Applicant did not disclose her vaccination status. On 15 December 2021, the Respondent’s HR Department issued an email confirming that she could no longer working in accordance with the Directive and if there was no change in her vaccination status then there would be a show cause meeting in January 2022.
On 1 February 2022, the Applicant confirmed via email that she was not vaccinated and was considering medical advice regarding the vaccine and her situation. No health condition was disclosed by the Applicant that may have indicated difficulty with complying with the Directive.
On 2 February 2022, the Respondent sent an email to the Applicant directing that she
attend a show cause meeting on 4 February 2022 to discuss her vaccination status and ongoing employment. The show cause meeting was rescheduled, at the Applicant’s request, to 8 February 2022. The Applicant attended the show cause meeting on 8 February 2022 accompanied by her husband as her support person. During the meeting, Mr Wilkinson asked the Applicant to confirm her vaccination status, relevant medical information, and what steps (if any) she was taking to seek medical advice. The Applicant refused to answer any questions and simply responded by saying words to the effect that she did not have to provide Mr Wilkinson with any information. Mr Wilkinson informed the Applicant that if she refused to confirm her vaccination status, provide information concerning her health, or steps taken to seek medical advice the Respondent would assume that she was not vaccinated, and that if there were no applicable valid exemptions which prevented her from being vaccinated, it would likely result in the termination of her employment.
The Respondent afforded the Applicant a further 3 days (to 11 February 2022) to provide
any further material confirming her vaccination status, or any valid exemption.
The Applicant did not provide Mr Wilkinson or any other management representative
of the Respondent with any additional material on or by 11 February 2022 in relation to her vaccination status. On 11 February 2022, Mr Wilkinson sent the Applicant an email inviting her to a further show cause meeting on 15 February 2022 to discuss the mandatory vaccination requirement imposed by the Direction and whether the Applicant was able to comply with the requirements of the Direction. That correspondence clearly indicated that if the Applicant remained unvaccinated, had no valid medical contraindication or other exemption, and there were no other factors which the Respondent should take into consideration, the Applicant’s employment would be terminated.
On 15 February 2022, the Applicant emailed Mr Wilkinson disputing the need for her
to attend the further show cause meeting. As a result of a misunderstanding of management representatives, the meeting was rescheduled and held on 16 February 2022. At the further show cause meeting on 16 February 2022, the Applicant again refused to confirm her vaccination status, provide details of any possible exemption or steps she had taken (if any) to seek medical advice. Although the Applicant did confirm that she was unable to obtain a medical exemption.
During that meeting the Applicant was informed that her employment was terminated with immediate effect due to her failure to comply with the Direction and on 17 February 2022, the Respondent emailed a copy of the termination letter to the Applicant.
The termination letter read:
“Dear Virginia,
Termination of employment with Luxottica Retail Pty Ltd
Further to our meeting on Wednesday 16 February 2022, I am writing to confirm that your employment with Luxottica Retail Pty Ltd has been terminated effective immediately. As discussed with you in that meeting, the reasons for our decision are as follows:
·Currently the Public Health Directions in QLD requires all workers in healthcare settings to be fully vaccinated.
·You have been on unpaid leave since Wednesday 15 December 2021 as you have not received the COVID 19 vaccine and therefore unable to comply with the Public Health Direction in your State.
·We met with you on Tuesday 2 February, Tuesday 8 February and Wednesday 16 February 2022 to discuss your ongoing employment with Luxottica.
·In our meeting on Wednesday 16 February 2022, you confirmed you have did not qualify for a medical exemption and to date we have not received evidence your COVID 19 vaccination and therefore are unable to comply with the Public Health Directions in QLD.
Given the above, it is the company’s position that you are unable to fulfil the inherent requirements of the role and as such, your employment with Luxottica will end on Tuesday 16 February 2022. You will be paid your notice period in lieu and paid any outstanding accrued entitlements up to and including today.
You will be required to return any company property or assets that may be in your possession to your Regional Manager….”
Consideration
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
I am required to consider each of these criteria to the extent they are relevant to the factual circumstances before me.[4]
(a) whether there was a valid reason for the dismissal
To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[5] and should not be “capricious, fanciful, spiteful or prejudiced.”[6] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.
In light of government mandates, the Respondent was required to ensure that all its employees were vaccinated against COVID-19 by 15 December 2021. It had no choice but to enforce that requirement and did so by directing its employees to provide proof of vaccination (or a medical exemption) by that date.
Further, the Respondent asserts that its direction was lawful and reasonable. As to what is “reasonable” in the context of employer directions, the Full Bench provided in CFMMEU v Mt Arthur Coal that:
“The reasonableness of a direction is a question of fact having regard to all the circumstances, which may include whether or not the employer has complied with any relevant consultation obligations; the nature of the particular employment; the established usages affecting the employment; the common practices that exist; and the general provisions of any instrument governing the relationship.”[7]
The Government had provided a Direction and it was entirely reasonable and lawful for the Respondent to insist that the Applicant comply. The Respondent faced penalties if they did not comply with the Direction. For those reasons, I am satisfied that the Respondent’s direction that the Applicant be vaccinated or provide a valid medical exemption by 15 December 2021 was a lawful and reasonable direction with which the Applicant was required to comply.
It is uncontentious that as at 15 December 2021, the Applicant had indicated that she was not vaccinated, nor did she have a medical exemption. In her conversation on 8 February 2022, the Applicant again confirmed that she was not vaccinated and did not intend to become vaccinated against COVID-19 at that time. In other words, she indicated that she would not be complying with the Respondent’s direction.
Considering those responses by the Applicant, the Respondent could not provide her with further work. I am satisfied that the Applicant’s failure to comply with the Respondent’s direction – the consequence being that the Respondent could not provide her with any further shifts or else be in contravention of the government mandate – constituted a valid reason for dismissal.
(b) and (c) whether the person was notified of that reason and had an opportunity to respond
Based on the evidence provided and submissions made, I am satisfied that the Applicant was made aware in the months leading up to the implementation of the mandate, that if she was not vaccinated by 15 December 2021 her employment may be terminated.
The Applicant took the opportunity to respond on a couple of occasions to indicate her concerns about having the vaccination and the implications of the Healthcare Directive upon herself. This was done prior to 15 December 2021, and again after being stood down and prior to her termination on 16 February 2022. Accordingly, I am satisfied that the Applicant was notified of the reason for her termination and had a sufficient opportunity to respond.
(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
The Applicant has not claimed that she was unreasonably refused a support person.
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal
Given the reasons for the Applicant’s termination, this factor is irrelevant.
(f) and (g) the degree to which the size of the employer’s enterprise and the absence of dedicated human resource management expertise would be likely to impact on the procedures followed
The Respondent is a large employer with a well-resourced human resources department. it undertook an extensive process to provide its staff with information about the government mandate which was to apply to its operations. It consulted with the Applicant in respect of the mandate, but it ultimately had very little control over what it could do if she chose not to be vaccinated.
(h) any other matters that the FWC considers relevant
I have regard to the fact that the Applicant had worked for the Respondent for a lengthy period, and there were no allegations that she had been anything other than a dedicated and hardworking employee. It must have been very upsetting to be told that her employment would end if she chose not to have a COVID-19 vaccination. However, it must also be noted that the Respondent also had very little choice in the matter. If it wanted to continue operating its business, it had to comply with the government mandate. This meant that it could not allow someone who was not vaccinated against COVID-19 to continue working on its premises.
Conclusion
Accordingly, I am satisfied based on the evidence provided that the Respondent had a valid reason for terminating the Applicant’s employment and that it did so in accordance with as fair a process as it could. I find that the Applicant was not unfairly dismissed in accordance with the Act.
I therefore order that the Applicant’s application be dismissed.
DEPUTY PRESIDENT
[1] Wellpacks Holdings Pty Ltd t/a ERGT Australia v Mr Kevin Grovender [2021] FWCFB 268.
[2] Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618, [19], (3).
[3] Wellpacks Holdings Pty Ltd t/a ERGT Australia v Mr Kevin Grovender [2021] FWCFB 268, [48].
[4] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[5] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[6] Ibid.
[7] CFMMEU v Mt Arthur Coal [2021] FWCFB 6059, [259].
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