Fair work laws; what is a dismissal?

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:

  1. 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.

  1. 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

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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.

  1. 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.

  1. 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.

  1. 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)).

  1. 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

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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.

  1. 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).

  1. 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:

  1. 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

  1. 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

  1. 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.

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  1. 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

  1. 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:

  1. a) But for what the Respondent did or said, would the Applicant’s employment have

ended?

  1. 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:

  1. 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

  1. 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

  1. 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”.

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[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:

  1. 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?

  1. 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).

  1. c) In the facts and circumstances of this case:
  2. i) Is reinstatement possible, or of any practical utility whatsoever where the

Applicant remains unvaccinated (and unaccredited)? and/or

  1. 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)

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[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:

  1. 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

  1. 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:

  1. 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

  1. 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).

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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