Dismissal not unfair for employee dismissed for being unvaccinated

Here is the reasoning of a senior member of the Fair Work Commission when rejecting an application for an unfair dismissal remedy by an employee whose employment was terminated for being unvaccinated in the face of State government mandates which affect that workplace.

“Consideration

[59] There are no jurisdictional or preliminary issues arising.

[60] I am satisfied that Mr Bateson was a person protected from unfair dismissal within the meaning of section 382 of the FW Act. He served the required minimum employment period (section 382(a)). His annual rate of earnings did not exceed the high-income threshold (section 382(b)(iii)). His employer was a “national system employer” within the meaning of section 14 of the FW Act. His application was filed within the required 21-days after dismissal.

[61] Ventura is not a “small business” for the purposes of the unfair dismissal provisions of the FW Act.

[62] I now consider whether Mr Bateson’s dismissal was unfair.

[63] Section 387 of the FW Act provides:

“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 Ventura 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 Ventura’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.”

Valid reason

[64] Valid in this context is generally considered to be whether there is a “sound, defensible or well-founded” reason for dismissal and one that is not “capricious, fanciful, spiteful or prejudiced. 23 In considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations.

[65] The Commission will not stand in the shoes of Ventura and determine what the Commission would have done if it was in Ventura’s position. The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).

[66] A valid reason is not assessed simply by reference to a legal right to terminate a contract of employment.24

[67] In this matter, the reason for dismissal advanced by Ventura is that Mr Bateson was unable to work as a bus driver given his failure to comply with the requirement imposed by the Victorian government direction that bus drivers be vaccinated (first dose) by 15 October 2021 (or have a booking by then and do so by 22 October) or produce evidence of a medical contraindication.

[68] The effect of the Directions was that Ventura was prohibited from allowing Mr Bateson to undertake work at the depot or drive its buses from 15 October 2021 unless he had been vaccinated or had a booking by then and had done so by 22 October. Mr Bateson decided not to be vaccinated by either date and did not produce a medical exemption. This meant that he was not able to fulfil his role as a bus driver, which could only be performed from the depot and on buses. Nor were there suitable alternative duties reasonably able to be provided.

[69] I also take into consideration that, at the time of dismissal, there was no indication from the Victorian government that the mandate would be of short duration only or in place for other than a reasonable period to meet relevant public health policy objectives.

[70] At the time of dismissal, Mr Bateson had not complied with the requirement in the Directions, either by being vaccinated (first dose) or producing a medical exemption. Nor had Mr Bateson given Ventura any indication of an intent to comply. Indeed, his correspondence of 14 October 2021, twelve days prior to dismissal, was a clear statement of opposition to vaccination. Being largely an assertion of position, the employer did not act unreasonably in not specifically responding beyond its earlier communication.

[71] Whilst Mr Bateson was wrestling with the dilemma he faced, it was not a reasonable option for Ventura to simply maintain his suspension without pay. It was not unreasonable for Ventura to conclude that it could not maintain Mr Bateson’s employment given that he had allowed the first dose deadline to pass without being vaccinated and had not produced a valid exemption.

[72] To have permitted Mr Bateson to drive its buses after 15 October 2021 would have constituted an offence and rendered Ventura liable to a substantial financial penalty.

[73] That Mr Bateson believed the Directions to be unlawful or vaccines against COVID-19 to be unsafe or experimental does not alter this position. There is no evidence before me of unlawfulness. It was a Direction made by a statutory officer under State legislation that the employer was entitled to regard as lawful. If Mr Bateson considers the instrument unlawful, he is entitled to press that view before a court of competent jurisdiction such as the Supreme Court of Victoria. The Commission has no jurisdiction to rule on such matters. Ventura did not have the liberty to pick or choose whether to comply with the Directions. They had been mandated. As observed by a full bench of the Commission in DA v Baptist Care SA: 25

“Unfair dismissal proceedings under Pt 3-2 of the FW Act do not provide an avenue to revisit that policy choice or to assign responsibility for the inevitable consequences of the legislative scheme to employers who are bound by it.”

[74] Ventura had a sound, defensible and well-founded reason to terminate Mr Bateson’s employment. There was a valid reason for dismissal.

[75] This weighs against a finding of unfair dismissal. 26

Notification of reason for dismissal

[76] Notification of a valid reason for dismissal should be given to an employee protected from unfair dismissal before a decision is made to terminate their employment27 and in plain and clear terms.28

[77] When it was eventually received, the termination letter dated 26 October 2021 clearly notified Mr Bateson of the reason for dismissal. The termination letter provided: 29

“As we have not received any evidence from you to confirm you have complied with the State Government COVID-19 Vaccination Mandate for Authorised Workers, I write to confirm your employment is terminated effective from today’s date, 26 October 2021.”

[78] The termination letter had been emailed to Mr Bateson on the day of dismissal but (like the earlier correspondence sent during the stand down period), the termination letter had not been received as it had been sent to an incorrect email address on the Connx system that was not Mr Bateson’s.

[79] As a consequence, the termination letter was not received until 5 November 2021 when re-sent some ten days later, once Ventura had deduced from Mr Bateson’s email of 30 October 2021 that it had used an incorrect email address.

[80] Responsibility for the incorrect email address was shared. I do not accept Ventura’s submission that it was simply caused by Mr Bateson’s failure to update the Connx record.

[81] Whilst Connx was a self-service system and the error could have been corrected by Mr Bateson had he noticed it when logging-in (for example, when applying for leave), he was not using Connx to send himself emails and thus had no particular reason to closely observe the address displayed. Likewise, the incorrect address on display would not have appeared odd to Ventura given it referred to ‘[redacted]’. Ventura could only have updated its records if advised of a changed email address (which Mr Bateson had not done). However, Connx was Ventura’s system, and Ventura elected (not unreasonably) to use details on that system to send employee communications.

[82] In any event, the error was inadvertent, and a consequence of an incorrect entry made well prior to relevant events.

[83] Less ambiguously, there is fault properly laid at the feet of Ventura for the extent of the ten-day delay in notification of dismissal. In this period, Mr Bateson was awaiting an indication from the employer as to his status and circumstances. He did not sit on his hands. He acted promptly after noticing (on 29 October) a lump sum had been deposited into his bank account. He sent Ventura the 30 October 2021 email. In contrast, Ventura did not promptly reply. It took six days to do so. Had it acted on the next business day, the delay in notification would have been five and not ten days. Ventura’s explanation, by way of submission (not evidence), was that this was regrettable but due to a short (Melbourne Cup) week. That explanation, untested as it is, is unconvincing. The Melbourne Cup public holiday is one day of a working week.

[84] I find that whilst Mr Bateson was notified of the reason for dismissal, it was a delayed notification which in part was due to failure on Ventura’s part.

[85] This delay in notification weighs somewhat in favour of a finding of unfairness.

Opportunity to respond

[86] An employee protected from unfair dismissal should be provided an opportunity to respond to a reason for dismissal relating to their conduct or capacity. An opportunity to respond should be provided before a decision is taken to terminate an employee’s employment.30

[87] The opportunity to respond is an element of procedural fairness but does not require formality. This consideration is to be applied in a common-sense way to ensure the employee is treated fairly.31 Where an employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, that is enough to satisfy this consideration.32

[88] There is no doubt that Mr Bateson did not receive (due to an incorrect email address being used) notification of the meeting of 21 October 2021 nor the rescheduled meeting of 26 October 2021. Those meetings would have provided Mr Bateson an opportunity to explain his position face-to-face and be confronted with the blunt reality that his non-compliance with the mandate provided Ventura a valid reason for dismissal, and that the company was minded to proceed with that course.

[89] However, whilst those specific opportunities to respond were denied Mr Bateson he was not denied a more general opportunity to respond. He was aware from the notice of 1 October 2021 (which he had read and photographed) and the letter of 4 October (which he had been handed) of the vaccination mandate for bus drivers and that compliance was required by Ventura “in order to continue working onsite”. That sense of awareness, heightened once he was stood down, is what led Mr Bateson to write his letter of 14 October 2021. That letter was a written response to Mr Bateson’s concerns about the vaccination requirement and (in his words) “that you [Ventura] consider this mandatory for my employment”. 33 In his evidence, Mr Bateson accepted that he was aware that he would not likely keep his job if he remained unvaccinated.34

[90] Considered overall, Mr Bateson had an opportunity to respond to the risk that remaining unvaccinated presented to his job security, and he did so in writing twelve days prior to dismissal. However, the fact he was unaware (due to an incorrect email address in Ventura’s records) of the further opportunity to meet face-to-face and confront the blunt realities of his position, weighs somewhat, but only somewhat, in favour of a finding of unfairness.

Opportunity for support person

[91] Where an employee protected from unfair dismissal has requested a support person to assist in discussions relating to dismissal, an employer should not unreasonably refuse that person being present.

[92] No requests were made given that Mr Bateson did not meet on the two occasions scheduled by the employer.

[93] Ventura did not unreasonably refuse Mr Bateson a support person. This is a neutral consideration.

Warnings concerning performance

[94] This matter does not concern Mr Bateson’s performance or competency as a bus driver. This consideration is not relevant.

Size of enterprise and human resource capability

[95] The employer is not a small business within the meaning of the FW Act.

[96] There is no sense in which the size of the employer or its internal human resources capacity mitigated managing workplace or disciplinary matters in a fair manner.

[97] This is a neutral consideration.

Other matters

[98] There are no other matters arising.

Conclusion

[99] In considering whether Mr Bateson’s dismissal was “harsh, unjust or unreasonable” the Commission is required to consider each of the matters in section 387 of the FW Act to the extent relevant.35 Those matters must be considered as part of an overall assessment. Each assessment must be made on its merits. That assessment is to be based on the ordinary meaning of the words, in their statutory context. Context includes the object stated in section 381(2) of the FW Act that:

“…the manner of deciding on and working out such remedies are intended to ensure that a “fair go all round” is accorded to both the employer and the employee concerned.”

[100] In arriving at an overall assessment, the statutory considerations must be applied in a practical, common-sense way to ensure that Ventura and the employee are each treated fairly.36

[101] This fairness principle applies to all matters under Part 3-2 of the FW Act including where an employee is dismissed for being unable to perform an inherent requirement of a job due to the action of a third party (in this case, the Acting Chief Health Officer making the Directions of 7 October 2021). As observed by a full bench of the Commission: 37

“[I]n a situation where an employee’s capacity to perform the inherent requirements of their job is affected by the actions of a third party, the employer still has an obligation to treat the employee fairly.”

[102] I have found a valid reason for dismissal (s 387(a) FW Act) given that to have permitted Mr Bateson to drive its buses after 15 October 2021, which was an inherent requirement of his job, would have constituted an offence and rendered Ventura liable to a substantial financial penalty.

[103] However, I have found two elements of procedural unfairness in the dismissal process relevant to ss 387(b) and (c) of the FW Act. One (Mr Bateson being unaware of the pre-dismissal meetings and thus denied a face-to-face opportunity to explain his position) was the product of a communication failure for which the employer was somewhat but not wholly responsible; the other (a post-dismissal delay in notification) in material part the result of failure by Ventura.

[104] Unfair dismissal matters are multifactorial.38

[105] I take into account the observations of a Full Bench of the Commission in Parmalat Food Products Pty Ltd v Wililo: 39

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.”

[106] In this passage both the importance of a valid reason and procedural fairness are emphasised.

[107] Considered overall, and weighing relevant factors, whilst Mr Bateson has cause to feel aggrieved about elements of the dismissal process, I conclude that the procedural failures when viewed in context do not outweigh what was a valid reason for dismissal. Only if Mr Bateson had been vaccinated by the prescribed deadline could he have reasonably continued to be employed by Ventura driving its buses given the obligation the company had to comply with the Directions. I am not satisfied that a material change in Mr Bateson’s position would have been a likely consequence had he attended a face-to-face pre-dismissal meeting. Further, the delay in notification post-decision, had it not happened or been for a lesser period, would not have altered the employer’s obligation to comply with the Directions and thus its decision to dismiss.

[108] The denials of procedural fairness, in circumstances where dismissal was based on a direction imposed by law precluding Ventura from allowing Mr Bateson to drive buses, do not render his dismissal unfair.

[109] For the sake of completeness, and whilst the submission was not put, I have considered whether Mr Bateson’s dismissal took effect on 5 November 2021 (when he received the re-sent email notification) rather than 26 October 2021 (when notice of dismissal was electronically dispatched). There is authority (Ayub 40) for the proposition that a dismissal notified by email does not take effect until received in an in-box reasonably accessible to an employee. Ayub, however, did not deal with circumstances where an incorrect email address was used in good faith and the error was unknown to the employer. Nor did Ayub deal with the circumstance where termination monies had been deposited into the employee’s account (and identified as such) prior to the correctly addressed termination letter being re-sent days later. I need not deal with this question to finality as, in the circumstances of this matter, I have taken the ten-day post 26 October 2021 delay into account in considering procedural fairness. Further, Mr Bateson incurred (leave accruals aside) no direct income loss during this period as he had been stood down without pay two weeks earlier. My conclusion that Mr Bateson’s dismissal was not, considered overall, unfair would not differ if the date his dismissal took effect was 5 November 2021 rather than 26 October 2021.

Conclusion

[110] Having not found the dismissal to be harsh, unjust or unreasonable, no issue of remedy arises.

[111] Mr Bateson’s application is dismissed. An order 41 giving effect to this decision is issued in conjunction with its publication.”

 

Bateson v Ventura Transit Pty Ltd (2022) FWC 355 delivered 1 March 2022 per Anderson DP