Wafica Mourtada v Dnata Airport Services Pty Ltd
[2022] FWC 1014
•5 MAY 2022
| [2022] FWC 1014 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Wafica Mourtada
v
Dnata Airport Services Pty Ltd
(U2021/11068)
| DEPUTY PRESIDENT CROSS | SYDNEY, 5 MAY 2022 |
Application for relief from unfair dismissal – public health order requiring vaccination against COVID-19 – valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed.
Introduction
Ms Wafica Mourtada (the Applicant) was employed by dnata Airport Services Pty Limited (the Respondent), at Sydney International Airport Precinct (Sydney Airport) prior to her dismissal on 11 November 2021. The Applicant was employed in the position of Service Desk Supervisor – Passenger Services (the Supervisor Role), which involved performance of duties of a Passenger Services Delivery Agent (the PSA Role).
The Applicant was dismissed because she did not comply with the Respondent’s requirement that she provide them with proof of vaccination against the COVID-19 virus. On 2 December 2021, the Applicant lodged an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant contends that her dismissal was harsh, unjust and unreasonable according to the criteria in s 387 of the Act. The Respondent denies that allegation.
Two of the Applicant’s co-workers, Ms Mariam Gharib and Ms Joanna Hadjipavli, were dismissed at the same time and in the same general circumstances as the Applicant. Ms Gharib and Ms Hadjipavli also made applications for unfair dismissal remedies, and I heard the Applicant’s, Ms Gharib’s and Ms Hadjipavli’s unfair dismissal claims against the Respondent in the course of the hearing on 10 and 11 February 2022. Each of the Applicants gave evidence in their own case, and where relevant, evidence in the case of each other Applicant. The Respondent adduced evidence from Mr Samuel Maybury, National Human Resources Manager of the Respondent.
Relevant facts
Public Health Orders
In the period leading up to the dismissals there were several public health orders made by the NSW Minister for Health pursuant to s 7 of the Public Health Act 2010 (NSW) (the PH Act) in response to a COVID-19 outbreak in Sydney, including:
(i) The Public Health (COVID-19 Air Transportation Quarantine) Order (No 2) 2021 (the Public Health Order), which operated from 28 June 2021 at midday until the beginning of 1 September 2021; and
(ii) The Public Health (COVID-19 Air Transportation Quarantine) Order (No 3) 2021 (the Updated Public Health Order), which operated from 1 September 2021 until the beginning of 27 November 2021,
(together referred to as the Public Health Orders).
The Public Health Orders included a series of vaccination requirement for nominated workers to:
(i) receive their first dose of a COVID-19 vaccine by 28 June 2021; and
(ii) receive their second dose of a COVID-19 vaccine:
(a) within 3 months of having received the first dose; or
(b) by 29 September 2021,
(together referred to as the Vaccination Requirements).
The Chief Health Officer granted an exemption to the first dose Vaccination Requirements in the Public Health Order until 6 July 2021 for certain employees.
The Public Health Orders also provided an exemption to the Vaccination Requirements where a person had a medical contraindication to the COVID-19 vaccines certified by a medical
practitioner and the Chief Health Offer.
The Public Health Orders each referred to the NSW Airport and Quarantine Workers
Vaccination Program (the Vaccination Program), a document approved by the Chief Health
Officer and published on the website of NSW Health, which listed the classes of nominated
workers subject to the Vaccination Requirements, as varied from time to time.
The Vaccination Program identified customer service agents, including those performing the PSA Role, as a class of nominated workers subject to the Vaccination Requirements if they:
(i)provided services to relevant persons (excluding international flight crew members who were not ordinarily an Australian resident), from 28 June 2021 until 6 July 2021;
(ii)provided services in the environment where international arrivals and flight crew members were, or had been, which included boarding an aircraft, from 6 July 2021 until 1 November 2021; and
(iii)provided services at Sydney International Airport Terminal 1 in the environment where international arrivals and flight crew members were, or had been, which included boarding an aircraft, from 1 November 2021.
The Public Health Orders define a relevant person to be:
(a) a person who –
(i)arrives in New South Wales by aircraft, whether the flight originates interstate or overseas, and
(ii)has, within 14 days immediately before the person’s arrival, been in a country other than Australia or New Zealand, or
(b) a person who arrives in New South Wales by aircraft from New Zealand and a second person on the aircraft, whether a crew member or passenger, has, within 14 days immediately before the first person’s arrival, been in a country other than Australia, New Zealand, the Cook Islands or Niue, or
(c) a relevant flight crew member.
An airport worker listed in the Vaccination Program was not able to enter, or provide services in, relevant areas of Sydney Airport, in the course of their employment if they did not comply with the Vaccination Requirements or have an exemption. The Vaccination Program as at 25 June 2021 included the following class of airport workers:
“Airport staff, airline/freight staff, ground handlers, caterers, cleaners, customer service agents, ramp workers, baggage handlers, engineers, security and other private contractors providing services to relevant persons (excluding international flight crew members who are not ordinarily an Australian resident.”
The Vaccination Program updated as at 6 July 2021 included the following class of airport workers:
“Freight staff, ground handlers, caterers, cleaners, customer service agents, ramp workers, baggage handlers, engineers and security staff providing services in the environment where relevant persons are, or have been, which includes boarding an aircraft.”
Following the above change, the “Red Zone” at Sydney Airport referred to all areas after the passport control and security screening areas (which included relevant persons undertaking international transfers), all arrivals areas, and the Level 3 Administration area (which included persons who entered other Red Zone areas).
On 6 July 2021, NSW Health provided guidance by email regarding who was covered by the Vaccination Requirements. That email stated:
“Staff must be vaccinated if they answer ‘Yes’ to any of the following:
1)The employees are listed in the NSW Airport and Quarantine Workers Vaccination Program in the NSW Testing Program (page 3)
2)The employees enter the designated Red Zones within Sydney Airport
3)The employees come in contact with international flight crew
4)The employees come in contact with arriving international passengers
5) The employees board an aircraft (where relevant persons* are or have been)
…
In the event staff do not meet the above criteria, NSW Health would still strongly recommend vaccination.”
The Respondent was required to ensure that its employees covered by the Vaccination Program complied with the Vaccination Requirements. An employee listed in the Vaccination Program was required to produce their vaccination evidence for inspection if required to do so by the Respondent (the Proof of Vaccination Requirement).
It is an offence, punishable by monetary penalties and/or imprisonment, to fail to comply without reasonable excuse with the Public Health Orders.
Facts relating to the Applicant
The Applicant commenced employment with the Respondent on 19 May 2016 in the PSA Role. Her last working shift for the Respondent was on 26 June 2021.
On 1 July 2021, Mr Albert Bollard, Airport Services Manager of the Respondent, issued a memorandum dated 30 June 2021 to all employees of the Respondent in NSW, including the Applicant, regarding the Vaccination Requirement. The memorandum included the following:
“… we have no choice but to inform you that having your COVID-19 vaccination has now become an inherent requirement of an employee holding a role on airport [sic].
The minimum requirement to continue working in the role is to have at least one dose of a COVID-19 vaccination or a confirmed date for vaccination prior to 6 July 2021.”
On 15 July 2021, the Applicant advised the Passenger Services Manager of the Respondent, Ms Dennaoui, by email as follows:
“I just wanted to let you know that I will require some more time off as I have still not made my decision with regards to the vaccination. I have seen one of my gps and done a few tests to make sure everything is ok.
I hope you can understand that this has caused a lot of stress and pressure on me.”
On 15 July 2021, Ms Dennaoui responded approving the leave and advising:
“Regretfully, we are unable to roster you shifts to perform landside duties only as we may require you to proceed to the red zone and should ensure all staff are eligible under the NSW Health Order to do so, this also eliminates a divide in duties and responsibilities due to the frequent change in our business climate.
I am sorry that you have been subjected to such a difficult decision and rest assured we will continue to support you through these times.”
On 4 August 2021, Ms Dennaoui sent an email to the Applicant (the August Email) that included the following:
“As per the public health order we require anyone who is working within the red zone as of 6th July 2021 to have at least one dose of the COVID-19 vaccination.
We are reaching out to you as we are yet to hear from you regarding your intention to be vaccinated. As entering the red zone is an adhered [sic] requirement of your role and we would like to further understand what your intentions are moving forward.
If you could please update us with your intentions to be vaccinated by Sunday 08th August 2021.”
On 10 August 2021, the Applicant responded to the above email advising:
“I have consulted with my gp who recommended I follow up with some other doctors before making such decision, I am yet to consult with a few other doctors therefore I am not in a position to make my decision just yet.”
On 18 August 2021, the Applicant attended a meeting with Ms Dennaoui and Ms Clarice Gillies, HR Coordinator, and was asked to confirm within two weeks if she intended to comply with the Public Health Orders.
On 14 September 2021, the Respondent sent a letter (the September Letter) to all Red Zone employees at Sydney Airport, including the Applicant, who had not yet complied with the Proof of Vaccination Requirement over the previous 12 week period. That letter relevantly provided as follows:
“Your role as a Passenger Services Delivery Agent at Sydney Airport is one of the categories of workers where there is a legal obligation on you under the Public Health Order and the Chief Health Officer’s directive to obtain the first dose of the COVID-19 vaccine in order for you to continue to work. To date we have not received an update from you whether or not you have decided to receive the COVID-19 vaccine.
As a result of the Order, until you provide proof of vaccination to dnata you cannot be rostered for work and you are unable to perform an inherent requirement of your role to enter the airport.
We now require you to confirm in writing by no later than 21 September 2021 whether you:
(a) have obtained the first dose of the COVID-19 vaccine and/or have an exemption approved by the Chief Health Officer and intend to return to work; or
(b) do not intend to get vaccinated.”
On 21 September 2021, the Applicant sent an email to Ms Dennaoui that included the following:
“I have not been able to book a date for my vaccination as of yet as I am still in discussions with my GP regarding my personal health and what’s best for me”.
On 22 September 2021, Mr Bollard sent an email to the Applicant setting out more information as to why communicating her decision regarding the Vaccination Requirements was necessary for the safe operation of the Respondent’s business. That email was as follows:
“Good afternoon Wafica
Thank you for taking the time to respond. I want to provide you some context for the request to inform us of your intent in relation to vaccination.
You may have seen from a recent port update that a large number of our client carriers will recommence or increase significantly flying passenger services to and from SYD in November and December of this year. This leaves us a very short period of time to recruit, train/cross train in order to be ready for this increase to somewhere in the region of 260 fights per week.
Added to this business imperative is the Public Health Orders governing airport and quarantine workers and the requirement to be vaccinated. What this means is that compliance with the relevant legislation, specifically the Public Health (COVID-19 Air Transportation Quarantine) Order (No 3) 2021 has become an inherent requirement of your role as a passenger services agent.
It is vital therefore that we look to stand up our team members to prepare for this return to flying and ensure they are able to return to work in full compliance with the relevant legislation. Secondly we need to understand based on the legislative requirement in relation to vaccination, what our people’s intentions are so we can provide them with guidance and based on their intentions, plan accordingly in the very short time left to us.
We are truly sympathetic to your health concerns and appreciate your desire to reach an informed decision in relation to vaccination. I would encourage you to seek further medical advice in relation to the health matters raised and in order to provide some additional time, will extend the date by which you will be required to inform us of your intent until Thursday 30th September. Unfortunately we will not be able to extend beyond that date.
…”
On 30 September 2021, in compliance with the timetable set out in the above email, the Applicant sent an email to the Respondent stating that she did intend to be vaccinated but was awaiting medical advice on the best option for her, based on her medical history. In her email, the Applicant stated:
“I do not feel safe or comfortable being rushed, although this was told to us in July, it has caused stress and anxiety”.
On 6 October 2021, the Respondent sent a letter (the October Letter) to all Red Zone employees at Sydney Airport, including the Applicant, who had not yet complied with the Proof of Vaccination Requirement over the previous 15 week period. That letter relevantly provided as follows:
“Your role as Passenger Service Delivery Agent at Sydney Airport is one [of] the categories of workers where there is a legal obligation on you under the Public Health Order and the Chief Health Officer’s directive to obtain the first dose of the COVID-19 vaccine in order for you to continue to work. To date, we have not received proof of vaccination or an exemption for you. dnata is required under the Public Health Order to ensure that employees comply with the vaccination requirement, and non-compliance would put dnata at risk of fines for breaching the Order.
As a result of the Order, until you provide proof of vaccination to dnata you cannot be rostered for work and you are unable to perform an inherent requirement of your role to enter the airport.
You are directed to confirm by no later than 1700 AEDT on Wednesday 13 October 2021 whether you:
(a) have obtained the first dose of the COVID-19 vaccine and/or have an exemption approved by the Chief Health Officer and intend to return to work; or
(b) do not intend to get vaccinated and any reasons why dnata should not terminate your employment based on your incapacity to perform the inherent requirement of your role to enter the Sydney Airport and/or refusal to comply with a lawful and reasonable direction of dnata.”
On 21 October 2021, the Applicant responded by email stating:
“As I have previously advised Dnata I have some personal matters which need to be addressed before I feel comfortable receiving the vaccination. The two options in the letter do not describe my situation as I do intended [sic] to fully get vaccinated [sic] and hope to have it booked after my personal issues are resolved. I can advise you of my vaccination date once everything is resolved, hopefully as soon as I can.”
On 5 November 2021, the Respondent requested the Applicant attend a formal meeting on 9 November 2021.
On 8 November 2021, the Applicant advised the Respondent that she would not attend the meeting on 9 November due to personal reasons.
On 8 November 2021, the Respondent sent an email to the Applicant requesting that she identify a time and date within the next 72 hours for the meeting could be held. In response, on 8 November 2021, the Applicant sent an email advising she would not attend a ‘verbal meeting’ and would only be continuing the conversation in writing.
On 11 November 2021, the Respondent issued a letter to the Applicant terminating her employment (the Termination Letter). The Termination Letter provided that the reasons for dismissal were:
“You have failed to comply with the Order and consequently you are prohibited by law from performing the inherent requirements of your role to enter Sydney Airport and work in the “Red Zone”. As a result, as a business we are unable to engage with you as a Passenger Services Delivery Agent and are unable to provide you with meaningful work; and
You have failed to comply with dnata’s lawful and reasonable direction to comply with the requirements in the Order. Despite being provided with a reasonable opportunity over five (5) months to comply with the direction you have failed to do so and have provided no reason for your refusal to comply with the Direction. This amounts to misconduct.”
Applicant’s Submissions
The Applicant submitted the following:
“In relation to the contentions above [the Respondent’s Form F3 Employer Response], firstly should be noted that as at the date of termination of the applicant’s employment the order apply [sic] to workers in red zone and not green zones. The contention stated in 1(ii) above [that there was no ability on the Applicant’s part to be unvaccinated against COVID-19 and work in a ‘green zone’, as vaccination was required for all areas of the Sydney Airport precinct] is not relevant to the determination of the issues in this matter as it postdates the date of termination.
Secondly, it should be noted that the applicant did not fail to comply with the Order in the sense that the Order did not compel the applicant to receive the vaccine by a particular date, or at all. The Order made it a precondition for persons wanting to engage in lawful employment in a red zone to have received a single shot of the vaccine on and from 1 November 2021. The fact that the applicant had not received a single shot of the vaccine by 1 November 2021 did not mean that the respondent was unable to engage the applicant (as the applicant was already engaged as a passenger service delivery agent), it simply meant that the applicant could not return to work as a passenger service delivery agent in a red zone but could return to work for the respondent in a green zone.
Thirdly, it should be noted that the respondent never directed the applicant to receive a single shot of the vaccine. The correspondence from the respondent to the applicant was directed at enquiring of the applicant what her intention was in relation to receiving the vaccine. At no point in time did the respondent provide the applicant with a deadline in which the applicant was required to provide evidence of vaccination, or evidence of exemption from the requirements to be vaccinated in order to work in a red zone. Each time the respondent did enquire about the applicant’s intention with respect to the applicant receiving the vaccination, the applicant responded in writing and on 2 occasions advise [sic] the respondent that she did intend to receive a vaccination.”
Respondent’s Submissions
The Respondent submitted that the matters in dispute were:
(a) Whether the PSA Role was required to work in the Red Zone, which was subject to the Vaccination Requirements; and
(b) Whether the Applicant’s dismissal was harsh, unjust or unreasonable under s 387 of the Act.
The Respondent noted that at the core of the Applicant’s submissions is the inference that the Applicant did not understand her ongoing employment with the Respondent was at risk if she did not meet the Vaccination Requirements because no ‘particular date’ was set for when the Respondent would make a decision about her ongoing employment. The Respondent submitted that an objective analysis of the events leading to the dismissal over a 4.5 month period does not provide a rational basis for this belief.
The Respondent submitted that s 387(a) of the Act requires that there is a valid reason for the dismissal related to the Applicant’s capacity or conduct. There were two reasons for dismissal set out in the Termination Letter sent to the Applicant that are relevant to the criteria in s 387(a) of the Act:
(a) Reason 1 – The Applicant did not have capacity to lawfully perform the inherent requirements of the PSA Role to enter Sydney Airport because she had not complied with the Vaccination Requirements; and
(b) Reason 2 – The Applicant failed to comply with the Respondent’s lawful and reasonable direction to comply with the Proof of Vaccination Requirement during the period from 28 June 2021 to 11 November 2021.
With regard to Reason 1, the Respondent submitted that the concept of “capacity” in s 387(a) of the Act goes beyond the physical or skill capacity of the employee, and encompasses situations where employees do not have or maintain the necessary licence, certification, qualification, approval or accreditation to lawfully perform the inherent requirements of their job.[1] The PSA Role required the Applicant to enter Sydney Airport and work in the Red Zone areas, being the environment where international arrivals and flight crew members are or have been. The Applicant could not reasonably perform the inherent requirements of the PSA Role to provide passenger services at Sydney Airport by only performing limited duties outside the Red Zone areas. Accordingly, the Respondent submitted that the Public Health Orders applied to the Applicant in relation to her employment with the Respondent.
The Respondent further submitted that the Applicant did not comply with the Proof of Vaccination Requirement prior to her dismissal on 11 November 2021.
The Respondent submitted the Applicant misconstrues the impact of her non-compliance with the Vaccination Requirements and Proof of Vaccination Requirement in the Public Health Orders. Working in the ‘certain areas’ of Sydney Airport covered by the Vaccination Requirement was an inherent requirements of the PSA Role. The effect of her non-compliance with the Vaccination Requirement meant she was unable to lawfully work in the PSA Role after the deadline stated in the Public Health Orders passed.
The Respondent submitted that it would not have been reasonable for the Applicant to continue on unpaid leave for an indefinite period because, operationally, it needed to take steps to ‘stand up’ its workforce to meet increased customer demand for passenger services in November and December 2021.
Regarding failure to comply with lawful and reasonable direction, the Respondent submitted that the following directions given to the Applicant during meetings and correspondence in August, September and October were lawful and reasonable:
(a) a direction to confirm their intention to comply with the Vaccination Requirement and Proof of Vaccination Requirements within the 7 day timeframe for the response (or as extended by dnata); and
(b) a direction to provide any reasons why their employment should not be terminated for not complying with the Vaccination Requirements and Proof of Vaccination Requirement, including any relevant medical information, within the 7 day timeframe for the response.
The Respondent noted that the Public Health Orders provided that the employer of a nominated person must ensure they comply with the Vaccination Requirements and that a nominated person must produce the nominated person’s vaccination evidence for inspection by their employer if requested to do so.
The Respondent noted that an employee not complying with a mandatory vaccination requirement in a Public Health Order has been found by the Commission to be a valid reason for dismissal.[2] The Respondent submitted that it provided the Applicant with approximately 4.5 months to comply with the Public Health Orders this timeframe was more than a reasonable period for the Applicant to make an informed decision regarding getting vaccinated against COVID-19.
The Respondent submitted that where the employee is aware of the precise nature of the employer’s concerns and has a full opportunity to respond to those concerns, this would ordinarily be enough to satisfy the requirements of s 387(b) and (c) of the Act. The Respondent submitted that it notified the Applicant on numerous occasions of concerns it held regarding the Applicant’s non-compliance with the Vaccination Requirements before the decision to terminate her employment was made on 11 November 2021. The Applicant was made aware in writing in the October Letter that the Respondent would be considering terminating her employment if she did not provide proof of vaccination. Further, the letters set out in plain and clear terms that such a dismissal would be based on her incapacity to perform the inherent requirements of the PSA Role, being to enter Sydney Airport, and/or refusal to comply with a lawful and reasonable direction of the Respondent.
The Respondent noted that the Applicant did not request a support person to participate in any part of the process adopted by the Respondent regarding the Vaccination Requirements in the Public Health Orders.
The Respondent noted that the airline industry was one of the first industries where the NSW Minister for Health issued Vaccination Requirements for workers under s 7 of the PH Act. This reflected the higher risk to public health of COVID-19 being introduced and transmitted from overseas arrivals at airports, including Sydney Airport. As an employer of airport workers covered by the Vaccination Requirements in Public Health Orders, the Respondent submitted it had to adapt to, and comply with, those requirements.
The Respondent denied any differential unfair treatment of the Applicant compared to other employees. There were 19 employees in total in NSW who did not comply with the Vaccination Requirements and each subsequently had their employment terminated.
The Respondent submitted that there were no alternative duties in the passenger services area for the Applicant to perform while she was not vaccinated because these roles required employees to enter the Red Zone of Sydney Airport to perform their duties. While the majority of the cargo services area of the Respondent’s business was not subject to the Vaccination Requirements and not considered part of the Red Zone, the Respondent had issued several Internal Expressions of Interest (EOI) for positions in its Cargo business since July 2021. The Applicant did not respond to the EOI or confirm that she wanted to be permanently transferred.
The Respondent submitted it is permitted under Australia Privacy Principle (APP) 3.4(a) in the Privacy Act 1988 (Cth) (the Privacy Act) to collect sensitive information if the collection is required or authorised by or under an Australian law. The collection of the proof of vaccination information from the Applicant was required or authorised by the Public Health Orders. Further, as the proof of vaccination information would have been directly related to the Applicant’s employment, the information would be part of the Applicant’s employee records, which are exempt from the APPs.
The Respondent disputed that it was required to consult with employees under cl 7.4 of the dnata Passenger Services NSW Enterprise Agreement 2017. The Vaccination Requirements were a decision of the NSW Minister for Health under s 7 of the PH Act, and not a definite decision of the Respondent to make a major workplace change.
Consideration
Initial matters to be considered
Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of the application.
There is no dispute between the parties and I am satisfied on the evidence that:
(a)The Applicant’s application for unfair dismissal was made within the period required in s 394(2) of the Act;
(b)The Applicant was a person protected from unfair dismissal;
(c)The Small Business Fair Dismissal Code did not apply to The Applicant’s dismissal; and
(d)The Applicant’s dismissal was not a genuine redundancy.
Assessment of witnesses
Principally relating to the existence of Red and Green Zones within the Airport precinct, differing evidence was provided by the Applicant and Mr Maybury. Where any contested evidence occurred, I have preferred the evidence of Mr Maybury because:
(a) Mr Maybury gave considered and balanced evidence, that was supported by contemporaneous documentation;
(b) The Applicant appeared to tailor her evidence to conform with submissions she thought would best advance her claim regardless of its veracity; and
(c) The Applicant and Ms Gharib gave certain relevant evidence consistent with that of Mr Maybury.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of that section in considering whether the Applicant’s dismissal was harsh, unjust and/or unreasonable. I will address each of these matters in turn below.
Valid reason (s 387(a))
General principles
It is necessary to consider whether the Respondent had a valid reason for the dismissal of the Applicant, although it need not be the reason given to the Applicant at the time of the dismissal.[3] In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded”[4] and should not be “capricious, fanciful, spiteful or prejudiced.”[5]
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.[6] The question the Commission must address is whether there was a valid reason for the dismissal related to the Applicant’s capacity or conduct (including its effect on the safety and welfare of other employees).[7]
[8]
Consideration as to whether there was a valid reason
I note that there were two reasons for dismissal set out in the Termination Letter sent to the Applicant that are relevant to the criteria in s 387(a) of the Act. They were:
(a) The Applicant did not have capacity to lawfully perform the inherent requirements of the PSA Role to enter Sydney Airport because she had not complied with the Vaccination Requirements; and
(b) The Applicant had failed to comply with the Respondent’s lawful and reasonable direction to comply with the Proof of Vaccination Requirement during the period from 28 June 2021 to 11 November 2021.
Inherent Requirements
Regarding the issue of inherent requirements, there is no dispute that the Respondent was subject to the Public Health Orders. The Applicant did, however, dispute that the Public Health Orders applied to her in relation to her employment with the Respondent if she worked in the Green Zone only.
As noted above, on 6 July 2021, NSW Health provided guidance regarding which employees were covered by the Vaccination Requirement. The Vaccination Program updated as at 6 July 2021 included the following class of airport workers:
“Freight staff, ground handlers, caterers, cleaners, customer service agents, ramp workers, baggage handlers, engineers and security staff providing services in the environment where relevant persons are, or have been, which includes boarding an aircraft.”
Following that change, the “Red Zone” area of the Sydney Airport referred to all areas after the passport control and security screening area (which included relevant persons undertaking international transfers), all arrivals areas, and the Level 3 Administration area (which includes persons who enter other Red Zone areas).
In cross-examination of Mr Maybury, the Applicant sought to suggest that all of the duties of the Supervisor Role were performed in the Green Zone. In particular, the following exchange occurred:[9]
“MS MOURTADA: You define an employee's position as something that is not modified or restricted. I am assuming you mean from their normal duties. So my normal duty is working at a service desk supervisor on the public side of the terminal, which is again outlined by Dnata a green zone. Do you agree?‑‑‑I disagree. Dnata does not define - there is no green zone. The Order very clearly depicts that customer service agents must be vaccinated.
So you're saying that I couldn't have performed my regular non-modified role as per normal without being vaccinated?‑‑‑Correct.
So why was cargo not red, if there's no green or red?‑‑‑Cargo is a different building and department and would answer the questions differently to the red zone worker questions. So it would be - - -
So I have to (indistinct) the building to perform my duties such as document - like, doc running?‑‑‑Pardon? I'm sorry, could you repeat that?
Don't they have to enter the building to perform their duties such as doc runs, which involves them to enter the -- - - ?‑‑‑Correct, doc runners were required - confirming doc runners were required to be vaccinated.
So they were required to be vaccinated?‑‑‑Correct.
Just one more question. Do the cargo people - do they work alongside unvaxxed cargo people?‑‑‑In Terminal 1 on the airport precinct everybody is vaccinated, more so recently due to the change in isolation requirements and the ability for current employees who are unvaccinated to work in T2. We have a small - or at least one staff member working unvaccinated in T2.
Just give me a minute please. So can you confirm that at the time?‑‑‑Sorry, could you - - - ?
Because when we were stood down all of cargo was asked to be vaccinated?
THE DEPUTY PRESIDENT: On 11 November 2021 were all cargo needing to be vaccinated?‑‑‑Confirmed.”
I accept that the PSA Role and the Supervisor Role were required to work in the Red Zone. The PSA Role required employees to go past the passport screening area to the gates to perform the role as required. During a shift, the duties of a PSA may include checking in passengers for a component of a shift, then heading through to the departure gates to assist with loading of aircraft and with wheelchair support for arriving international passengers. The Supervisor Role is encompassed by the nomination of customer service agents in the Vaccination Program as part of the mandatory vaccination category of workers.
The PSA Role and the Supervisor Role required the Applicant to enter Sydney Airport and work in the Red Zone areas, being the environment where international arrivals and flight crew members were or had been. The Applicant could not reasonably perform the inherent requirements of the PSA Role or the Supervisor Role to provide passenger services at Sydney Airport by only performing limited duties outside the Red Zone areas.
Further, the Applicant did not comply with the Proof of Vaccination Requirement prior to her dismissal on 11 November 2021. The Applicant was not able to fulfil the inherent requirements of the PSA Role or the Supervisor Role between midday on 28 June 2021 and 11 November 2021 because she was prohibited under the Public Health Orders from lawfully entering relevant areas of Sydney Airport for work.
It would not be reasonable for the Applicant to remain on unpaid leave indefinitely, because the Respondent faced operational pressures to increase its workforce to meet increased customer demand for passenger services in November and December 2021.
Lawful and Reasonable Directions
I consider that the directions given to the Applicant during meetings and in the August Email, September Letter and October Letter were lawful and reasonable. The Public Health Orders provided that the Respondent must ensure compliance with the Vaccination Requirement and that a nominated person must produce the nominated person’s vaccination evidence for inspection by their employer if requested to do so.
I consider that those directions were:
(a) lawful, because they related to the subject matter of the Applicant’s ability to lawfully attend work in circumstances where the Vaccination Requirements under the Public Health Orders applied to her employment; and
(b) reasonable, because the Respondent had an obligation under the Public Health Orders to ensure employees complied with the Vaccination Requirements and could be fined if an employee did not comply.
Compliance with the Public Health Orders was not an optional matter for the employer of a nominated person, such as the Respondent. Compliance with the Public Health Orders was not an optional matter for a nominated person if they wanted to undertake the prescribed work, such as the Applicant. An employee not complying with a mandatory vaccination requirement in a Public Health Order has been found by the Commission to be a valid reason for dismissal.[10]
The Respondent provided the Applicant with approximately 4.5 months to comply with the Public Health Orders. This timeframe was more than a reasonable period for the Applicant to make an informed decision regarding being vaccinated against COVID-19. Unfortunately, the approach adopted by the Applicant in response to the clear requests of the Respondent was one of obfuscation.
Notification of reason (s 387(b))
The Applicant was notified of the reasons for her dismissal in the Termination Letter.
Opportunity to respond (s 387(c))
The Applicant was given opportunities to respond, and did in fact respond, to the reason for her dismissal in her written communications to the Respondent in the period leading up to her dismissal.
Having regard to all the circumstances, I am satisfied that the Applicant was given an opportunity to respond to the reason for dismissal related to her capacity.
Unreasonable refusal to allow a support person (s 387(d))
The Applicant was offered a support person for the meeting to be held on 9 November 2021. The Applicant advised she would not attend the meeting as directed due to personal reasons. The Applicant resisted a ‘verbal meeting’ and requested any conversation continue in writing.
Warnings of unsatisfactory performance (s 387(e))
The Applicant was not dismissed for unsatisfactory performance. This criterion is not relevant to the present case.
Size of enterprise and absence of human resource specialists or expertise (s 387(f) and (g))
The Respondent is a substantial enterprise. It has human resource management specialists and expertise. In all the circumstances, I am satisfied that neither the size of the Respondent’s enterprise nor any absence of human resource management specialists or expertise had any impact on the procedures followed in effecting the Applicant’s dismissal.
Other relevant matters (s 387(h))
Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
I do not consider that there was any unfair treatment of the Applicant compared to other employees. I accept Mr Maybury’s evidence that there were 19 employees in total in NSW who did not comply with the Vaccination Requirements and each subsequently had their employment terminated. While Ms Hadjipavli presented evidence of an apparently unvaccinated employee obtaining a position in the T2 Cargo Warehouse, situated some 20 minutes from the Airport Precinct, it is clear that position was obtained two months after the Applicant’s employment ceased, and after the Public Health Orders had changed.
The Applicant’s focus on other roles she could have performed in an unvaccinated status was misguided because, unlike the apparently unvaccinated employee who obtained a position in the T2 Cargo Warehouse after expressing an EOI, the Applicant did not submit an EOI, despite the Respondent issuing several EOI’s for positions in its Cargo business.
Conclusion
After considering each of the matters specified in s 387 of the Act, my evaluative assessment is that the Respondent’s dismissal of the Applicant was not harsh, unjust or unreasonable. The Respondent had a valid reason for the dismissal, and it afforded procedural fairness to the Applicant prior to making the decision to bring her employment to an end.
The Respondent was required to comply with the Public Health Orders. The effect of the Public Health Orders was that the Applicant was unable to undertake work at the Respondent from 4 July 2021. There were no alternative duties available for the Applicant.
I am satisfied that the Respondent’s dismissal of the Applicant was not unfair. The Application is dismissed.
DEPUTY PRESIDENT
Appearances:
W Mourtada, Applicant.
S Burke for the Respondent.
Hearing details:
2022.
Sydney (by video):
February 10 and 11.
[1] Reseigh v Stegbar Pty Ltd[2020] FWCFB 533 at [42].
[2] Shepheard v Calvary Health Care T/A Little Company Of Mary Health Care Limited[2022] FWC 92 at [31]; Kimber v Sapphire Coast Community Aged Care Ltd[2021] FWC 1818 at [63].
[3] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at [373, 377-8].
[4] Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at [373].
[5] Ibid.
[6] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at [685]
[7] Ibid
[9] Transcript PN 1002 to 1011.
[10] Shepheard v Calvary Health Care T/A Little Company Of Mary Health Care Limited [2022] FWC 92 at [31].
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