Yu-Chung Cheng v Iveco Trucks Australia Limited
[2022] FWC 1664
•28 JUNE 2022
| [2022] FWC 1664 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Yu-Chung Cheng
v
Iveco Trucks Australia Limited
(U2022/2488)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 28 JUNE 2022 |
Application for an unfair dismissal remedy – employment subject to Order under the Public Health and Wellbeing Act 2008 (Vic) – Respondent required to comply with the Order to collect, record and hold vaccination information and to not permit unvaccinated workers to work outside the worker’s ordinary place of residence – Applicant required to attend Respondent’s site – termination on the basis that he was unable to meet inherent requirements of his contracted position a valid reason for termination of employment – refusal to follow a lawful and reasonable direction to provide vaccination information misconduct also a valid reason for dismissal – Dismissal not otherwise unfair.
Mr Yu-Chung (Jerry) Cheng has made an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to this application is IVECO Trucks Australia Limited (IVECO). I considered the issues in ss.397-399 of the Act and having sought the views of the parties determined that a hearing should be conducted. The hearing was conducted via Microsoft Teams on 23 June 2022 and IVECO sought permission to be legally represented. Noting there was no objection from Mr Cheng, I weighed the circumstances, the written submissions of IVECO and the considerations in s.596 of the Act and granted permission for IVECO to be represented by Mr Peter Vitale. Mr Cheng gave evidence and IVECO called evidence from Mr Anthony O’Brien, Head of Human Resources for Australian and New Zealand, and Mr Ammar Mithaiwala, Supply Chain Manager.
Mr Cheng had commenced employment with IVECO on 4 June 2018 and was employed on a full-time basis at IVECO’s manufacturing plant in Dandenong in the role of Material Planner until his dismissal took effect on 4 February 2022. IVECO’s Dandenong plant operates as an assembly line for a range of commercial vehicles including large trucks designed to tow semitrailers and medium-size trucks used as cement mixers or garbage trucks.
Initial matters to be considered – s.396 of the Act
Mr Cheng’s application was made within the 21-day period after the dismissal took effect, as required by s.394(2) of the Act (s.396(a)) and there is no dispute that he is a person protected from unfair dismissal because he had completed the minimum employment period, the Manufacturing & Associated Industries & Occupations Award 2010[1] applied to him and his annual rate of earnings was less than the high income threshold (s.396(b)). Further, it is not disputed, and I am satisfied that IVECO was not a small business employer. As such, the matter does not require consideration of whether the dismissal was consistent with the Small Business Fair Dismissal Code (s.396(c)). Finally, it was not claimed by IVECO and nor does the material before me suggest the dismissal was a case of genuine redundancy (s.396(d)).
Section 385 of the Act – was the dismissal unfair?
As to the circumstances set out at s.385 of the Act, there is no question or dispute that Mr Cheng was dismissed (s.385(a)). Further, as outlined above, this is not a matter that involves a small business, such that consideration of whether Mr Cheng’s dismissal was consistent with the Small Business Fair Dismissal Code (s.385(c)) is required or one where it is claimed by the employer that the dismissal was a case of genuine redundancy (s.385(d)).
This leaves s.385(b) and in determining whether the dismissal was harsh, unjust or unreasonable, I must have regard to s.387 of the Act:
“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.”
Consideration
Having outlined the criteria in s.387 of the Act, I am under a duty to consider each of these criteria in reaching my conclusion and will do so below.
Was there a valid reason for dismissal relating to Mr Cheng’s capacity or conduct? – s.387(a)
In considering whether the dismissal of Mr Cheng was harsh, unjust or unreasonable, I am required to take into account whether there was a valid reason for the dismissal related to his capacity or conduct (including its effect on the safety and welfare of other employees). The reason or reasons should be “sound, defensible and well founded”[2] and should not be “capricious, fanciful, spiteful or prejudiced”.[3]
By way of background, the Victorian Minister for Health issued a declaration pursuant to s.198(1) of the Public Health and Wellbeing Act 2008 (Vic) (PHWA) on 16 March 2020 that Victoria had entered a state of emergency as a consequence of the COVID-19 pandemic. The declaration was extended numerous times until approximately 7 weeks before Mr Cheng’s dismissal took place. When the state of emergency existed, the Chief Health Officer of Victoria had the power to authorise the issuing of emergency powers, which included the issuing of directions pursuant to the PHWA.[4]
On 7 October 2021, the Acting Victorian Chief Health Officer issued the COVID-19 Mandatory Vaccination (Workers) Directions. These Directions imposed obligations on employers of certain identified workers (including manufacturing workers) to collect, record and hold “vaccination information” about their workers scheduled to work outside the worker’s ordinary place of residence on or after 15 October 2021. Further, under these Directions:
a)A “manufacturing worker” was defined to mean a person who worked at or in connection with a premises used for the production or processing of goods, including but not limited to production or processing of metal and plastics,[5] machinery and equipment manufacturing including parts[6] and whole or partial products;[7]
b)Employers of manufacturing workers were to ensure that “unvaccinated” workers did not work for them outside their ordinary place of residence on or after 15 October 2021 unless they had a booking to receive a first dose of a COVID-19 vaccine by 22 October 2021.
c)Exceptions applied if a worker held a certification from a medical practitioner that they were unable to receive a COVID-19 vaccine due to a medical contraindication or an acute medical illness.
These COVID-19 Mandatory Vaccination (Workers) Directions were updated from time to time, with the last version of them to operate being the COVID-19 Mandatory Vaccination (Workers) Directions (No 8), which expired at 11.59pm on 15 December 2021.
In December 2021, the Victorian Parliament amended the PHWA. This saw the introduction of a framework specific to pandemics[8] whereby the Premier of Victoria can make a pandemic declaration after considering the advice of the Chief Health Officer and the Minister for Health, if the Premier is satisfied on reasonable grounds that there is a serious risk to public health resulting from a disease that is or has potential to be a pandemic disease.[9] If a pandemic declaration has been made, the Victorian Minister for Health can make ‘pandemic orders’ for the purposes of protecting public health.[10]
On 10 December 2021, a pandemic declaration was made.[11] It came into force at 11.59pm on 15 December 2021. On 15 December 2021, the Victorian Minister for Health made the Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 1), which commenced at 11:59pm on 15 December 2021. This Order was replaced by the Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 2) (Specified Workers Order), which commenced at 11:59pm on 12 January 2022. The Specified Workers Order provided that:
a) If a worker (which, as identified in Column 1 of Schedule 1 of the Specified Workers Order, included manufacturing workers) was or might be scheduled to work outside of their ordinary place of residence after 11:59pm on 12 January 2022, their employer was required to collect, record and hold “vaccination information” about them;
b) A “manufacturing worker” was defined as persons who worked at or in connection with a premises used for the distribution, production or processing of goods, including but not limited to production or processing of metal and plastics,[12] machinery and equipment manufacturing including parts[13] and whole or partial products;[14] and
c) Employers of such workers, including manufacturing workers, were not to permit their workers to work for them outside of their ordinary place of residence if they were “unvaccinated” or “partially vaccinated”.
The Specified Workers Order was in operation when Mr Cheng’s dismissal took effect on 4 February 2022.
Mr Cheng was notified in writing that his employment was terminated via the letter from IVECO dated 2 February 2022 (the Termination Letter). The Termination Letter stated:
“Dear Jerry,
Re: Termination of employment
Further to our letters dated 15th December 2021, 20th January 2022 and our subsequent e-mail correspondences since October 2021, I am writing to confirm as per your continued inability and refusal to comply with the Pandemic Declaration framework and/or supply a medical exemption, your employment will be terminated on 4th February 2022.
We are unable to accept any further requests for leave without pay to cover ongoing non work-related absences and it is with regret that we have made a decision to terminate your employment.
Our decision has been based on the following, due to:
· You have been absent for a period of three months from the workplace.
· Are unable to conduct your inherent duties in the position of Material Planner (on-site); and
· Inability and refusal to comply with the Pandemic Declaration framework or supply a medical exemption.
You will receive all contractual and statutory payments due to you, which will finalize all matters between you and Iveco Trucks Australia Limited.
…”[15]
IVECO submits that Mr Cheng was dismissed for the following two reasons:
· his ongoing failure to follow a lawful and reasonable direction of IVECO to provide it with information about his COVID-19 vaccination status; and
· he was no longer able to meet the inherent requirements of his role.
Mr Cheng submits there was no valid reason for his dismissal related to his capacity or conduct because the various versions of both the Directions and the Specified Workers Orders were illegal.
The following submissions were made by Mr Cheng questioning and disputing the legality of the Directions and Orders:
a) His contract of employment falls under federal law and cannot be overridden by a pandemic declaration;
b) Former Prime Minister Morrison declared the Australian Government would not mandate “no-jab- no-job”;
c) The vaccination mandate is unconstitutional;
d) Under the Nuremberg Code, it is a criminal act to pressure or coerce someone into having a vaccination; and
e) His vaccination status is protected by the Privacy Act 1988 (Cth)
I do not consider that any of these submissions can be sustained. Regardless, I observe that the various Directions and Orders have at no stage been declared invalid by a court and were in effect at all material times and I proceed on the basis that the Commission, not being a court, cannot make any binding declaration about the validity of State or federal legislation.[16] The Directions and Orders are valid and lawful and the Commission must discharge its functions according to law.[17] To the extent Mr Cheng raised privacy concerns as a basis for objection to the Directions and Orders, I am unconvinced that his vaccination status is protected by the Privacy Act 1988 (Cth). As was proffered by Deputy President Colman in Isabella Stevens v Epworth Foundation,[18] there is no reason to think that the Directions and Orders were inconsistent with the Privacy Act 1988 (Cth) or that evidence of vaccination status cannot be collected, recorded and stored in accordance with the privacy principles.
I am satisfied that the Specified Workers Order applied to IVECO and Mr Cheng on the basis that IVECO was an employer of a “manufacturing worker” (because Mr Cheng was a person who worked at a premises used for the distribution, production or processing of goods, which were defined under the Specified Workers Order as including and not being limited to a range of items, including “metal and plastics”,[19] “machinery and equipment manufacturing including parts”[20] and “whole or partial products”[21]) and that the commercial motor vehicles manufactured and assembled by IVECO, such as the large and medium-sized trucks, fall within the meaning of ‘goods’ as it applies in the definition of “manufacturing worker” in the Specified Workers Order.
It therefore follows that the Specified Workers Order imposed an obligation on IVECO to collect, record and hold “vaccination information” about Mr Cheng in the event he was or might be scheduled to work outside his ordinary place of residence after 11.59pm on 12 January 2022. Further, if IVECO did not hold “vaccination information” about Mr Cheng, it was obliged to treat him as if he was “unvaccinated” and IVECO was also required to not permit Mr Cheng to work for it outside his ordinary place of residence if he was “unvaccinated”. A refusal or failure by IVECO to comply with a pandemic order or with a direction given to it or a requirement in the exercise of a pandemic management power was an offence for which a penalty of 300 penalty units applied.[22]
The contention of IVECO that there was a valid reason for Mr Cheng’s dismissal related to his conduct is based on the proposition that his ongoing failure to provide it with information about his COVID-19 vaccination status constituted a failure to follow a lawful and reasonable direction. Through a letter dated 15 December 2021, IVECO requested that Mr Cheng share his vaccination status, and provide evidence of being vaccinated or having a medical exemption.[23] At this time the COVID-19 Mandatory Vaccination (Workers) Directions (No 8) were in operation. This request was confirmed in a letter to Mr Cheng dated 20 January 2022, at which time the Specified Workers Order was in operation.
Mr Cheng did not provide “vaccination information” to IVECO disclosing he was a “fully vaccinated” person. Regardless, there is no dispute that Mr Cheng was “unvaccinated” at the time of his dismissal, and at the hearing he confirmed this remains the case. In addition, Mr Cheng has at no stage claimed to have been an “excepted person”, as defined in any of the Directions or Orders. At the hearing, Mr Cheng advised he does not hold and has not held a COVID-19 digital certificate.
While Mr Cheng claimed an exemption from the COVID-19 vaccine requirements on religious grounds in an email sent to Ms Katy Easton (IVECO HR Business Manager) on 11 October 2021, [24] this did not have the effect of making him an “excepted person” under the COVID-19 Mandatory Vaccination (Workers) Directions[25] in force at that time, or under any subsequent version of the Directions or Orders. Regardless of Mr Cheng’s religious beliefs, his vaccination status was “unvaccinated”, and it remained so.
I observe that in the recent decision in Roman v Mercy Hospitals Victoria Ltd[26] (Roman), Deputy President Colman discussed the concept of lawful and reasonable directions, as follows:
“Implied into the contract of employment is an obligation of an employee to obey the employer’s lawful and reasonable directions (Bayley v Osborne (1984) 4 FCR 141 at 145). The requirement that the direction be lawful has two dimensions. One is that the employer cannot demand that an employee act unlawfully. The other is that the direction must be within the scope of the contract of employment (see R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621-2 per, Dixon J). The latter reflects the ‘general rule ... that a contract by which a person is employed in a specific character is to be construed as obliging him to render, not indeed all service that may be thought reasonable to render, but such service only as properly appertains to that character’ (see Commissioner for Government Transport v Royall (1966) 116 CLR 314 at 322, per Kitto J).”[27]
In Roman, the Deputy President identified two dimensions required in order for a direction to be lawful. As to them, I am satisfied that the direction IVECO gave to Mr Cheng that he provide it with information about his COVID-19 vaccination status did not require Mr Cheng to act unlawfully. Secondly, while Mr Cheng says there was no contractual obligation requiring him to become vaccinated, I am satisfied IVECO issued a direction that was within the scope of Mr Cheng’s contract of employment. The Directions and Specified Workers Order imposed an obligation on IVECO to not permit Mr Cheng to work for it outside of his ordinary place of residence unless he had provided “vaccination information” that established he was not “unvaccinated”. IVECO made a direction related to Mr Cheng’s job because his compliance or non-compliance with the direction bore upon his capacity to perform it. I agree with the view the Deputy President expressed in Roman that a direction to an employee to do something that is a necessary condition for a state of capacity to do their job is a lawful direction.[28]
Turning then to the question of whether the direction given by IVECO in either form (in writing or through its managers) was reasonable, I am satisfied it was. The Directions and the Specified Workers Order imposed new regulatory requirements for Mr Cheng’s role and the direction given by IVECO in response to them was directed towards Mr Cheng being able to continue to do the job he was hired to do. Mr Cheng was within his rights to decline to become vaccinated and he could elect to not provide IVECO with the information it requested from him but, having regard to the test enunciated by the Full Bench in CFMMEU and Anor v Mt Arthur Coal Pty Ltd[29] as to whether a direction is reasonable, I am satisfied there was a “logical and understandable basis”[30] for the direction made by IVECO. I am therefore satisfied that IVECO had a valid reason for dismissing Mr Cheng for failure to follow a lawful and reasonable direction.
IVECO submits Mr Cheng was rendered unable to perform the inherent requirements of his position because it would have been unlawful for IVECO to permit him to do so. As outlined above, Mr Cheng had chosen not to become “partially vaccinated” or “fully vaccinated” and did not provide “vaccination information”, such that IVECO did not hold “vaccination information” about him on 4 February 2022. Further, Mr Cheng did not hold the certification required to be regarded as an “excepted person” under either the Directions or the Specified Workers Order. IVECO was therefore required (under the Specified Workers Order) to treat Mr Cheng as if he was “unvaccinated” and was prohibited under the Specified Workers Order from permitting Mr Cheng to work outside of his ordinary place of residence, which obviously included its premises. Had IVECO permitted Mr Cheng to work outside of his ordinary place of residence, it would have been guilty of an offence and exposed to a substantial financial penalty.
When this state of affairs became apparent, Mr Cheng sought to work from home full time. He proffered that he could complete most of the materials planning tasks remotely and that a colleague working on-site could then take on those parts of his role for which an on-site presence was required. Mr Cheng relied on the fact that he had performed some of his duties from home for two or three days per week during the periods of lockdowns and restrictions imposed by the Victorian Government. Mr Cheng’s proposal was rejected by IVECO and at the hearing, it maintained its objection. IVECO submitted the work from home arrangements relied on by Mr Cheng had been associated with it reducing its production days, which was a measure implemented as a response to Victorian Government suggestions at the time for people to avoid going to work at their workplaces where possible. IVECO said that in addition to working from home for two or three days per week at that time, Mr Cheng was otherwise required to attend site. IVECO’s position was that as part of his role, Mr Cheng had to be able to attend its Dandenong plant to provide ‘hands on’ assistance to the production manager and the logistics manager and that it was not possible to effectively complete all the required tasks of a Material Planner offsite, by computer. IVECO advised Mr Cheng on 7 October 2021 that required its entire logistics team onsite “working together, coming up with solutions and resolving issues as a collective to keep the plant and lines operational.”[31] This remained its position.
Mr Mithaiwala explained part of Mr Cheng’s duties as a Material Planner as follows:
“Mr Cheng had an important role to make sure that enough parts were ordered to keep production going. It was important for him to be able to physically check the warehouse for parts. For example, the production team might ask for a part and not be able to locate it in the warehouse. The Material Planners would then have to check the possible locations for that part. If there was not sufficient stock, then the Material Planners would have to place an order with the supplier for that part. Fully assembled engines and transmissions were easier to monitor via the SAP system, but other parts would have to be checked physically.”[32]
I have noted Mr Cheng’s role required him to manage the availability of IVECO’s production materials through a combination of tasks that required either the use of the SAP software system or physical checks, or both, and to be the interface between external suppliers and the business. He was required to liaise with multiple functions within IVECO. Mr Cheng’s proposal to work full time at home was based on a temporary set of arrangements borne out of external COVID-19 pandemic restrictions and predicated on either another colleague located onsite being able to undertake certain tasks for him, in addition to completing their own work or some other form of re-organisation of duties amongst himself and other colleagues. I am not persuaded that Mr Cheng’s proposal to spend 100% of his working week at home was reasonable or realistic having regard to his responsibilities and duties. I am satisfied that in order to perform the job he was employed by IVECO to do, Mr Cheng had to be able to fulfil the requirement to attend site. Therefore, Mr Cheng’s decision to decline to become “fully vaccinated” had the inevitable consequence of rendering him unable to perform the job he was employed by IVECO to do. Having regard to these circumstances, I am satisfied that IVECO had a further valid reason for dismissing Mr Cheng on 4 February 2022 that was related to his capacity.
Notification of the valid reason – Opportunity to respond to any reason related to capacity or conduct – s.387 (b) and (c)
Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made,[33] in explicit terms,[34] and in plain and clear terms.[35] In Crozier v Palazzo Corporation Pty Ltd[36] a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following:
“[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 170(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.”
In early October 2021, IVECO posted the Victorian Government’s media release of 1 October 2021, entitled “Vaccination Required to Protect Workers and Victoria”, [37] on its notice boards around the Dandenong plant.
On 5 October 2021, IVECO held a toolbox meeting with all employees, including Mr Cheng, to advise them verbally about the effect of the Victorian Government announcement. IVECO distributed a form to all plant employees, requesting that they indicate their vaccination status. When Mr Cheng returned the form, he indicated he was exempt from being vaccinated.[38] Also on 5 October 2021, Mr Cheng sent an email to Ms Easton in which he inquired about the implications of not receiving a COVID-19 vaccine and requested a Material Safety Data Sheet (MSDS) so as to be able to assess the risks of the COVID-19 vaccine. At this time, Mr Cheng also proposed that he work from home 2 to 3 days a week and stated:
“…I do not see the point of taking the vaccination to risk and possibly damage of my existing health condition.”[39]
On 7 October 2021, Ms Easton sent an email to Mr Cheng in reply,[40] advising that he consult his general practitioner regarding the MSDS and the effects of the COVID-19 vaccine. Ms Easton confirmed that should Mr Cheng choose not to comply with the Directions he would be unable to attend the workplace and would be placed on leave without pay (LWOP), or could apply for the COVID-19 disaster payment if eligible. The email also informed Mr Cheng that his proposal to work from home was not supported given the status of shortages, logistics issues and the more recent requirement for the logistics team to work onsite in the plant 5 days a week to ensure the plant remained operational.[41]
On 11 October 2021, Mr Cheng sent an email to Ms Easton to advise that he held a religious objection to receiving a vaccine.
On 12 October 2021, Ms Jeanette Andrade, former Head of Human Resources, Australia and New Zealand for IVECO’s parent company, CNH, sent an email to Mr Cheng:
· advising him that a Victorian Equal Opportunity and Human Right Commission document he had forwarded was irrelevant as IVECO was not mandating vaccinations, but rather following the directives of the Chief Health Officer;
· advising him that his religious objection did not meet the requirements of the Directions for an exemption from vaccination;
· requesting he provide evidence of vaccination or a booking to receive a vaccine; and
· advising him that should be choose not to be vaccinated he would be unable to attend the workplace and would be placed on LWOP, or could apply for the COVID-19 disaster payment if eligible.[42]
On 13 October 2021, Mr Cheng sent an email to Ms Meaghan Boencke providing a copy of an email from “Medi7 Bentleigh” indicating that he had an appointment to receive the first dose of the COVID-19 vaccine on 21 October 2021.[43] However, Mr Cheng subsequently advised that he would not receive the vaccine and sent an email to Ms Easton on 19 October 2021 in which he stated his continued objection to receiving the vaccination. As a result, Mr Cheng was advised he would be stood down from his employment unless he had accrued annual or long service leave that he wished to apply for. Mr Cheng was absent thereafter until 27 January 2022 on a combination of accrued annual leave and LWOP.
Ms Easton sent a letter dated 15 December 2021 to Mr Cheng advising him of the following:
· the Victorian Government directives in force required all authorised workers to be fully vaccinated in order to attend the workplace;
· on 20 January 2022, Mr Cheng would have been absent from workplace for a period of 3 months and should he decide to not to be vaccinated by this time, and the Government directives extended past 12 January 2022, his status as an unauthorised worker would remain; and
· Mr Cheng would be placed on unauthorised LWOP upon exhausting his leave entitlements.[44]
Significantly, this letter also notified Mr Cheng of IVECO’s intention to terminate his employment should he remain unable to return to his position by 4 February 2022. The letter concluded by requesting Mr Cheng to share his vaccination status, proof of vaccination or a valid medical exemption.
On 13 January 2022, Mr Cheng sent an email to Ms Easton advising that he wished to keep his vaccination status private. [45] Mr Cheng claimed his employment should not be directly influenced by the outcome of his decision regarding his vaccination status and again expressed his concerns regarding the safety of the COVID-19 vaccines. Mr Cheng also suggested IVECO reconsider his proposal to work from home and requested a copy of the MSDS in respect of vaccination.
On 20 January 2022, Ms Easton sent an email to Mr Cheng attaching a letter advising him that it was not mandating vaccination but rather, the requirement that authorised workers be fully vaccinated to attend the workplace or another workplace outside their ordinary place of residence was being enforced by the Victorian Government. This letter continued:
“IVECO has provided all reasonable steps and shown due diligence by affording you an opportunity and time to make your decision should you have opted to comply with the above. Our communications have been open, and we have had several discussions and correspondences since the beginning of October 2021.
In your latest e-mail you have reiterated similar questions or statements, which I would like to note have been answered via our previous communications.
I would like to reiterate, due to the nature of your role of a Material Planner, and the current supply chain and parts issues, it is not viable for the business for a person in this role or a member of the Logistics team, to work from home ongoing or for a long term duration.
IVECO is not trying to influence you it is solely your decision to take the steps to comply to be validated as an authorized worker, including taking the vaccination or not. Our letter dated 15th December, was to give you notice of our intention to terminate your employment, should you fail and be unable to comply with the framework or supply a medical exemption by 4th February 2022. For clarity if you are unable to return to your position, attending the workplace by this date, your employment will be terminated.”[46]
On 27 January 2022, Mr Cheng sent an email to Mr Shah attaching a medical certificate indicating that he would be unfit for work between 27 January and 4 February 2022. Personal leave was approved on a “good faith” basis only and not because IVECO considered Mr Cheng was entitled to it. [47]
Ms Easton sent the Termination Letter dated 2 February 2022, reproduced above at [14]. Mr Cheng was given written notice that his employment would be terminated with effect from 4 February 2022.
Having regard to the correspondence I have outlined above, I am satisfied:
· IVECO advised Mr Cheng on multiple occasions between 5 October 2021 and 27 January 2022, that it could not lawfully permit him to work unless he provided evidence of his vaccination status;
· On 15 December 2021 and 20 January 2022, Mr Cheng was notified in writing that his employment would be terminated if he was not able to return to work by 4 February 2022 due to a failure to provide evidence of either vaccination against COVID-19 or a medical exemption; and
· IVECO gave Mr Cheng multiple opportunities to respond and provide evidence of his vaccination status or evidence of a valid exemption over the course of four months.
Having regard to the circumstances, I am satisfied Mr Cheng was on notice of the reasons for his dismissal and the possibility of his dismissal and was provided with opportunities to respond, which he took up, prior to the decision to terminate his employment being made.
Unreasonable refusal by the employer to allow a support person – s.387(d)
This factor is not relevant in this case. There was no evidence before me of an unreasonable refusal by IVECO to allow Mr Cheng a support person at any material time. The parties communicated almost exclusively by written correspondence.
Warnings regarding unsatisfactory performance – s.387(e)
Mr Cheng’s dismissal was not related to unsatisfactory performance and therefore this factor is not a relevant consideration in this case.
Impact of the size of the employer on procedures followed - s.387(f) and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
IVECO is an employer with over 200 employees. I do not consider the size of IVECO to have been a relevant factor in this case (s.387(f)). IVECO had a human resources team and as such, s.387(g) of the Act is not a relevant factor in this case.
Other relevant matters – s.387(h)
Section 387(h) of the Act requires the Commission to take into account any other matters it considers relevant.
Mr Cheng worked for IVECO for three years and eight months. There do not appear to have been issues with his performance during that time. Mr Cheng said he had lost income as a result of his dismissal which had been a source of worry and concern.
I have considered the medical certificate dated 27 January 2022 submitted by Mr Cheng. It did not have the effect of making Mr Cheng an “excepted person”. Nor do I consider Mr Cheng had an entitlement to be paid for personal/carer’s leave at that time. Mr Cheng was unable to work between 27 January 2022 – 4 February 2022 (inclusive) because of the operation of the Specified Workers Order and as Mr Cheng had no “ordinary hours of work” during that period, he had no entitlement under s.99 of the Act to be paid for personal/carer’s leave. Regardless, IVECO paid Mr Cheng seven days of personal leave to cover that period.
I have also noted the broader circumstances at IVECO regarding the cessation of production at its manufacturing plant in Dandenong on 30 June 2022 and the suggestion by Mr Cheng that his termination on 4 February 2022 took place so IVECO could avoid making him a redundancy payment. I reject this and am satisfied that as at 4 February 2022, IVECO still required Mr Cheng’s job to be performed and the job required him to attend the manufacturing plant in Dandenong.
I have taken into account Mr Cheng’s objection to becoming vaccinated and the fact that he expressed a range of views about the COVID-19 vaccination mandates and the efficacy of the COVID-19 vaccinations but note that the COVID-19 vaccines applicable at the material times had been approved for use by Australia’s national regulator, the Therapeutic Goods Administration. More broadly, I consider that while Mr Cheng appears to have sincerely held his views about the COVID-19 vaccination mandates and the efficacy of the COVID-19 vaccinations, it is not for the Commission to engage in commentary about them, other than to observe they motivated his choice to decline vaccination and his failure to provide “vaccination information”, as required by the Specified Workers Order applicable at the time of his dismissal.
I have noted Mr Cheng’s complaint that IVECO did not provide him with a MSDS or COVID-19 Risk Assessment but also note that the introduction of the Directions and Specified Workers Orders was not a decision of IVECO. Further, these instruments were law and IVECO had to comply. IVECO was required to collect vaccination information in relation to Mr Cheng if he was to perform his job, and it was unable to permit Mr Cheng to attend the manufacturing plant in Dandenong if he was unvaccinated. To do his job, Mr Cheng had to work outside of his ordinary place of residence. Ultimately, Mr Cheng was unable to work for IVECO as a consequence of the decision he made.
Finally, Mr Cheng was afforded a four-month period to weigh up his options in the face of the Directions and the Specified Workers Order and granted both LWOP and annual leave throughout. He was advised to seek medical advice. Even though the Termination letter was dated two days better the effective date of dismissal, it is apparent based on the material and evidence before me that Mr Cheng’s position would not have altered between 2 February 2022 and 4 February 2022. In any event, Mr Cheng was paid four weeks’ pay, upon the termination of his employment, said to have been in lieu of notice.[48]
Having considered and weighed the matters arising in relation to s.387(h) of the Act, I do not find that they are sufficient to render Mr Cheng’s dismissal harsh, unjust or unreasonable.
Conclusion
I have made findings in relation to each matter specified in s.387 of the Act as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[49] I am satisfied the dismissal of Mr Cheng was not harsh, unjust or unreasonable. Accordingly, I find that Mr Cheng’s dismissal was not unfair. As I have found that Mr Cheng’s dismissal was not unfair, his application for unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr Y Cheng on his own behalf.
Mr P Vitale of Peter G Vitale Pty Ltd for IVECO Trucks Australia Limited.
Hearing details:
2022.
Melbourne (via Microsoft Teams).
June 23.
[1] MA000010.
[2] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[3] Ibid.
[4] Public Health and Wellbeing Act 2008 (Vic), s.200(1)(d).
[5] COVID-19 Mandatory Vaccination (Workers) Directions at Clause 9(15)(a)(viii).
[6] COVID-19 Mandatory Vaccination (Workers) Directions at Clause 9(15)(a)(ix).
[7] COVID-19 Mandatory Vaccination (Workers) Directions at Clause 9(15)(a)(xii).
[8] Part 8A of the Public Health and Wellbeing Act 2008 (Vic).
[9] Public Health and Wellbeing Act 2008 (Vic), s.165AB.
[10] Public Health and Wellbeing Act 2008 (Vic) s.165AI.
[11] Victorian Government Gazette No. S 705, Friday 10 December 2021.
[12] Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 2) at Schedule 2, Division 2, Clause 20(8).
[13] Ibid at Schedule 2, Division 2, Clause 20(9).
[14] Ibid at Schedule 2, Division 2, Clause 20(12).
[15] DCB at p.71.
[16] Barbara Roman v Mercy Hospitals Victoria Ltd [2022] FWCFB 112 at [26].
[17] Kathryn Marguerite Roy-Chowdhury v Ivanhoe Girls’ Grammar School T/A The Ivanhoe Girls’ Grammar School [2022] FWCFB 101 at [16].
[18] [2022] FWC 593 at [26].
[19] Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 2) at Schedule 2, Division 2, Clause 20(8).
[20] Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 2) at Schedule 2, Division 2, Clause 20(9).
[21] Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 2) at Schedule 2, Division 2, Clause 20(12).
[22] Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 2) at Part 4, Clause 20.
[23] DCB at p.167.
[24] DCB at p.46.
[25] COVID-19 Mandatory Vaccination (Workers) Directions at Clause 8(5).
[26] [2022] FWC 711.
[27] Ibid at [30].
[28] Ibid at [31].
[29] [2021] FWCFB 6059.
[30] Ibid at [96].
[31] DCB at p.154.
[32] Exhibit R2 at [6], DCB at p.182.
[33] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[34] Previsic v Australian Quarantine Inspection Services (AIRC, Holmes C, 6 October 1998), Dec 907/98 M Print Q3730.
[35] Ibid.
[36] (2000) 98 IR 137, 151.
[37] DCB at p.135.
[38] DCB at p.147.
[39] DCB at p.44.
[40] DCB at pp.151-154.
[41] DCB at p.44.
[42] DCB at p.150.
[43] DCB at p.164.
[44] DCB at pp.167-168.
[45] DCB at p.167.
[46] DCB at p.170.
[47] DCB at p.178.
[48] DCB at pp.174 and 180.
[49] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
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