Often the Fair Work Commission will deal with an unfair dismissal case which from a jurisdictional perspective centres upon whether a termination at the employee’s initiative was nonetheless a dismissal because it was what is known as a constructive dismissal, by which is meant that the employment came to an end by a resignation which was said to have been “forced” upon the employee by the actions of the employer and was not truly voluntary.
On other occasions, as in what follows, the legal issue is whether the actions of the employer actually constituted the dismissal of the employee for example whether the oral or written words of the employer can reasonably be regarded as a dismissal.
“Consideration
[23] On the basis of the evidence and submissions of the parties, I make the following
findings:
- a) The Applicant was employed by the Respondent as a Hospital Chaplain. This role
required her, in short summary, and subject to her holding relevant accreditation, to
physically attend upon patients in public hospitals for the purposes of providing nonsecular or non-denominational spiritual support to patients, families and staff.
- b) In order to attend upon a public hospital as a Chaplain, the individual must be
accredited by the relevant Area Health Service. To be clear, such accreditation does
not reposit with the Respondent. The Applicant’s accreditation to work in the
Nepean Blue Mountains Local Health District (essentially at the Nepean Hospital,
NSW) expired in August 2021, and was not thereafter renewed. It is apparent that
the Applicant could not obtain further or renewed accreditation post August 2021
unless she was vaccinated for COVID-19. It was an essential requirement of the
Applicant’s role with the Respondent that she be accredited by the relevant Area
Health Service. If she was not so accredited, she had no entitlement to request or
[2023] FWC 797
19
otherwise receive any payments from the Respondent in that she was not ready or
able to perform any work. The fact that the Applicant holds or held a
contraindication exemption is essentially irrelevant in circumstances where the
Applicant holds no accreditation.
- c) In her Form F2, the Applicant asserts that despite her accreditation expiring and not
being renewed, and/or because she was not informed of this expiration and nonrenewal, the Applicant’s contractual arrangements with Nepean Hospital and/or the
Respondent continued (including by implication) to the extent that such contractual
arrangements required the Applicant to be paid by the Respondent when she did not
perform any work.
29
On the evidence before me, I do not accept that there is any
basis at law for this assertion. The foundation of the Applicant’s circumstances (and
the events that have happened) is directly attributable to the Applicant’s on-going
failure or refusal to be vaccinated. In other words, individuals are free to choose
whether or not to be vaccinated, but what flows from that choice, in terms of
consequences and outcomes to their employment and related contractual
arrangements, is an inherent part of the choice that they have made.
- d) Due to mandatory vaccination requirements applying to hospitals (which are not in
dispute between the parties as applying to the Applicant), the Applicant has not
performed any work for the Respondent since late September 2021 (as she has been
unvaccinated and unable to enter public hospital premises).
30 She has also not been
accredited since August 2021 to perform work as a contingency worker in a public
hospital. Prior to the Applicant’s accrued annual leave being paid to her on 17
September 2022, she had not received any payments from the Respondent (for work
performed) since September 2021, and nor has she held any entitlement to receive
such payments.
- e) Since September 2021, the Applicant claims she has been investigating becoming
vaccinated. It appears that the Applicant may have hoped to wait out the mandatory
vaccination requirements applying to hospitals, on the basis that such mandatory
vaccination requirements, with the passage of time, may be removed, repealed,
watered down, or allow for a contraindication medical exemption.
31
It is apparent
that this is unlikely to occur, given the obligations of public health institutions to
ensure as far as reasonably practicable the non-transmission of COVID-19 between
hospital service providers or staff and patients whilst COVID-19 (and its multiple
variants) remain present in the community (i.e. whether or not COVID-19 is at
pandemic levels or not, and whether or not vaccination actually stops or otherwise
limits transmission is not to the point, public health institution risk management
analysis will always consider vaccination to create a lower risk profile for infection
and/or transmission than non-vaccination (or majority vaccination with
contraindication exemptions)).
- f) On 8 October 2021, the Applicant (in her email to Mr Bartlett) asks Mr Bartlett to
ensure that her annual leave is not paid to her, as she wishes to keep any annual
leave in her accrual bank and request such annual leave “at a later date”. In my
view, the import of this request is that the Applicant (as at 8 October 2021) does not
[2023] FWC 797
20
wish to take paid annual leave, or be paid out her accrued entitlements as to annual
leave, until she makes a further request to access same.
- g) After requests from the Respondent (via Mr Menzies) to clarify her intentions
regarding her on-going employment with the Respondent as Hospital Chaplain, on
7 March 2022 the Applicant advises Mr Menzies that her intentions are to continue
to be employed by the Respondent despite her unvaccinated status.
32
This
communication is made at the same time that Mr Peter Hinrichsen (Director,
Corporate Services, Nepean Hospital [not the Applicant’s employer]) confirms with
the Applicant that her accreditation as a contingency worker expired on 1 August
2021, has not been renewed due to her unvaccinated status, but that she can reapply
to have her accreditation renewed (if she becomes vaccinated). I note that there is
no evidence of the Applicant reapplying to have her accreditation renewed with the
Area Health Service, or otherwise being in a position to have even qualified to apply
to have her accreditation renewed (because of her on-going unvaccinated status).
- h) In relation to the statement in the 25 August 2022 letter from Ms McGarity (of the
Respondent) clarifying that the Applicant’s employment will come to an end as a
result of her request for her final pay and because of her on-going inability to work
in a public hospital (due to her unvaccinated status), the Applicant was unable to
explain (in any meaningful way) why she failed to respond to, engage with, or raise
any concerns (at all) about this statement:
- i) with anyone at the Respondent (e.g. Ms McGarity who sent the letter, or Mr
Menzies, the President of the Respondent, with whom the Applicant had been
dealing with in relation to her return to work across the previous 12 months);
33
and
- ii) despite her being subsequently followed up about her bank account details by
Ms McGarity (i.e. being the bank account details that were initially sought from
her in the 25 August 2022 letter).
34
- i) The Applicant says that the use of the words “final pay” (in her 23 August 2022
email) did not reflect an intention or understanding on her part as to resignation.35
Rather, the Applicant says she was simply asking to be paid her full holiday pay.36
The most unusual aspect of this evidence is the contrast with the Applicant’s
evidence about her being requested to supply or reconfirm her bank account details
in the 25 August 2022 letter from Ms McGarity. In other words, the 25 August 2022
letter essentially says two things. Firstly, that the Applicant’s employment will be
at an end, and secondly, that the Applicant needs to confirm her bank details in
respect of where her final pay is to be deposited. Rather than taking issue with her
employment purportedly coming to an end, the Applicant’s evidence is that it was
extraordinary that she was being asked to her reconfirm her bank details and that
she was “[like] wow”, “quite surprised”, and “bewildered” by the request.37
Yet,
the Applicant says no such thing about being notified that her employment will be
at an end.
[2023] FWC 797
21
- j) In her Form F2, the Applicant says that during the period 13 June 2022 to 11 August
2022, the Applicant, the Applicant’s representative (Red Union), the Respondent,
and Nepean Hospital held discussions about the Applicant’s absence of
accreditation as a contingency worker.38
It appears that there was no resolution to
the Applicant’s continued inability to return to work (i.e. due to her unvaccinated
status and absence of accreditation, and irrespective of any contraindication
certificate she may possess). But the Applicant has provided no evidence
(documentary or otherwise) as to these interactions, or the substance or content of
same.39
- k) The words used in the Applicant’s 23 August 2022 email, in terms of her request
that she receive her “final pay” are ambiguous in terms of whether or not such words
reflect a resignation by the Applicant. The Applicant also provides no notice of her
purported resignation to the Respondent.
[24] The case law40 requires an ultimate finding to be made as to what was the principal
contributing factor (directly or consequentially) that caused the Applicant’s employment with
the Respondent to come to an end. Put another way:
- a) But for what the Respondent did or said, would the Applicant’s employment have
ended?
- b) Did the Respondent’s conduct or actions have the probable result of ending the
Applicant’s employment?
[25] The foregoing questions necessitate regard being had to all of the circumstances,
specifically in the context of:
- a) information available to the Respondent prior to its receipt of the Applicant’s
request for her “final pay (holiday pay)” on 23 August 2022;41
- b) information available to the Respondent at the time it sent its letter to the Applicant
on 25 August 2022, “clarify[ing] that this will be the end to [the Applicant’s]
employment”;42 and
- c) the Applicant’s actions after she received the 25 August 2022 letter from the
Respondent.
[26] In my view, notwithstanding some of the findings set out in paragraph [23] of this
decision (in respect of the Applicant’s unexplained conduct and actions post 25 August 2022),
and despite the ambiguity contained in the Applicant’s 23 August 2022 email, the “critical
action” in bringing the Applicant’s employment to an end with the Respondent were the
following words in the 25 August 2022 letter:
“As you have requested your final pay, we wish to clarify that this will be an end to your
employment with [the Respondent] because we cannot place you in a public hospital
due to your vaccination status”.
[2023] FWC 797
22
[27] The foregoing words do not seek to clarify the Applicant’s 23 August 2022 email, nor
do they seek to seek any clarification from the Applicant as to her position or intentions in
respect of her continued employment with the Respondent. Rather, these words clarify the
Respondent’s position that, by 25 August 2022, it wanted the Applicant’s employment to be at
an end in that it had had enough of the futile, untenable and indefinite stance of the Applicant
in respect of her on-going attempts to hold-out against the COVID-19 vaccination (under the
guise of endlessly consulting medical professionals and/or immunologists), and the Applicant’s
continued inability (for over 12 months) to obtain further accreditation by the Area Health
Service to work in a public hospital.
[28] Taking into account all of the circumstances and the totality of the evidence, I find that
the Respondent’s 25 August 2022 letter was the principal contributing factor that gave rise to
the Applicant’s employment with the Respondent coming to an end. It follows that I find that
the Applicant was “dismissed” by the Respondent within the meaning of s.386(1)(a) of the Act
on 25 August 2022.
Going forward
[29] Putting the (now answered) question as to the Applicant’s dismissal to one side,
significant issues in relation to the Applicant’s Application, as to both liability and remedy,
remain to be resolved. For example:
- a) Do the Respondent’s reasons for the Applicant’s dismissal, in all of the
circumstances, constitute a valid (or sound, defensible, well-founded) reason for her
dismissal?
- b) Given the findings set out in paragraph [23] of this decision, has the Applicant made
her Application absent reasonable cause? (especially in circumstances where the
Applicant has failed to explain why she did not object to the contents of the 25
August 2022 letter prior to filing her Application).
- c) In the facts and circumstances of this case:
- i) Is reinstatement possible, or of any practical utility whatsoever where the
Applicant remains unvaccinated (and unaccredited)? and/or
- ii) What compensation (if any) might be awarded to the Applicant in an unfair
dismissal proceeding in circumstances where the Applicant:
- raised no specific objection or concern in relation to the Respondent’s 25
August 2022 letter prior to filing her Application in these proceedings on 13
September 2022; and/or
- has not held accreditation to work in a public hospital in the 12 months prior
to her dismissal, and remains unable to obtain such accreditation due to her
unvaccinated status?
Other matters (Form F1 filed by Respondent)
[2023] FWC 797
23
[30] As previously foreshadowed by Mr Mossman,
43 on 9 February 2023 the Respondent
filed a Form F1 seeking dismissal of the Application under s.587 of the Act on the basis that it
has no reasonable prospects of success. In this regard, the Respondent points to:
- a) the relief claimed by the Applicant being limited (in her Form F2) to a claim for
unpaid wages or entitlements, which is beyond the jurisdiction of the Commission
to award (including in an unfair dismissal proceeding)
44; and
- b) this being a matter where, even if the Applicant’s dismissal is found to be harsh,
unjust or unreasonable, there can be no award of reinstatement or compensation
because:
- as at the time of the Applicant’s dismissal, she was not accredited with the
Area Health Service, and was unable to obtain such accreditation due to her
unvaccinated status (a contraindication certificate/s being irrelevant as a
contraindication certificate is not recognised as an exception to vaccination
by the Area Health Service). It is noted that the question of ‘reinstatement’
focuses in large part upon the time that the Applicant was dismissed.
Further, even if one were to consider circumstances post the Applicant’s time
of dismissal (on the issue of reinstatement), the Applicant remains
unvaccinated and unable to be accredited, and the requirement for a
contingent worker to be vaccinated to work at a public hospital has not
changed; and
- since September 2021, being nearly 12 months prior to her dismissal, the
Applicant has been unable to work, has not been paid any wages, and has
not been entitled to be paid any wages, because she has not been accredited,
and has not been able to obtain such accreditation due to her unvaccinated
status. In other words, whether it be by reference to wages the Applicant did
earn in the six months prior to her dismissal, or would have earned in the six
months post her dismissal, or any combination of either, the figure is always
going to be zero.
[31] The power to dismiss a matter under s.587 of the Act is discretionary. A party is not
bound by the relief claimed in their application at the time it is filed. Indeed, a party may amend
the relief they seek all the way up to the end of closing submissions.45 In some cases, the relief
sought by an Applicant might be confirmation that they have been unfairly dismissed
notwithstanding that no relief is able to be awarded (albeit this approach raises the real potential
for costs to be awarded).46 Putting aside the readily apparent merit in the Respondent’s
contentions (at this stage of proceedings) that any relief available to the Applicant arising from
these unfair dismissal proceedings is unlikely (on the current state of the evidence) to be
available, I am yet to hear full argument and receive all of the evidence on the point. I have
therefore determined that it is not appropriate, and indeed would be premature, for me to
exercise my discretion to dismiss the Application on the grounds that it evinces no reasonable
prospects of success. I thus reject the Respondent’s request to dismiss the Application on the
grounds set out in the Form F1 filed 9 February 2023 (and the supporting submissions filed
with same).
[2023] FWC 797
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Conclusion
[32] Given that I have found that the Applicant was “dismissed” by the Respondent within
the meaning of s.386(1)(a) of the Act, an Order dismissing the Respondent’s jurisdictional (no dismissal) objection will be published contemporaneously with this decision. The matter will
be relisted in due course for mention and directions to program the matter to resolve the
Applicant’s substantive Application.”
Pitt v Wentworth Area Chaplaincy Association Incorporated [2023] FWC 797 delivered 12 April 2023 per Boyce DP