Mandatory workplace vaccinations; working from home

This is an extract from an unfair dismissal case of the Fair Work Commission rejecting a claim which appears to have been based upon the proposition that the employer had dismissed an employee unfairly who it was not permitted to enter the workplace due to State government vaccination mandates with the employee’s argument being that the employer should have allowed the employee to work from home, as it had during the various covid lockdowns.

I do not believe that this case is authority for the proposition that employers do not have an obligation to consider permitting an unvaccinated employee to work from home instead of presenting physically for work and it is still an open issue whether that will be what it holds soon. There is still some prospect it seems to me that an employer which as habitually permitted workers to work from home during the covid pandemic will be required to consider permitting that practice in circumstances in which the employer chose that course when it was not forced to do so by  a lockdown for its own business purposes.

“Consideration

[15] A dismissal cannot be unfair if it was consistent with the SBFDC (see s 385(c)). Section 388(2) defines when a dismissal will be consistent with the SBFDC. Two conditions must be satisfied. First, immediately before the time of dismissal, the employer must have been ‘a small business employer’, as defined in s 23. BMR falls within this definition. Based on the evidence of Mr Shelly, which I accept, I am satisfied that immediately prior to Ms Pope’s dismissal it employed fewer than 15 employees. This was not contested. I also find that BMR does not have any associated entities, and in particular that it is not an associated entity of its franchisor, Stockdale & Leggo.

[16] The second condition in s 388(2) is that the employer must have complied with the SBFDC in relation to the dismissal. In respect of cases not involving summary dismissal, the Code provides:

“Other dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally, or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.”

[17] The deficiency in the second limb of the SBFDC is that instead of relevantly setting a simpler, lower standard for small businesses, it renders mandatory several matters that are only considerations in the setting of s 387. In any event, I consider that BMR complied with the second limb of the SBFDC in relation to the dismissal of Ms Pope.

[18] First, Ms Pope was given a reason as to why she was at risk of dismissal in Mr Shelly’s letter of 20 October 2021. The reason was a valid one related to Ms Pope’s conduct or capacity to do the job. She was told that ‘compliance with the mandate’ was an inherent requirement of her role as a sales consultant. This reason could have been more precisely formulated. In fact, it was the company that had to comply with the ‘mandate’, not Ms Pope. But in my view, it was clear in the context of the correspondence what was meant. Ms Pope’s failure to provide the company with the required information concerning her vaccination status meant that the company was prohibited by law from allowing her to work outside of her usual place of residence. Ms Pope was employed as a sales consultant. She was required to undertake duties that had to be performed outside of her home. If Ms Pope chose not to provide the company with evidence that she had been vaccinated against COVID-19 the company was not allowed to permit her to work outside the home, and she would not be able to do her job.

[19] I reject Ms Pope’s contention that, because she had worked from home during lockdown, and had performed sales work including appraisals at this time, she could have and should have been allowed to work from home again. The lockdown had been an exceptional situation. The lockdown had now been lifted. BMR’s offices were open. So were the offices of other real estate agents, which compete with BMR. In her evidence, Ms Pope recognised that by working from home, she could not work in the same way as she would from the office. In her own words, ‘an interim period’ and a ‘different working situation’ would be required. I accept the evidence of Mr Shelly that the core elements of Ms Pope’s role required her to be able to come to work. It does not matter that there might have been some duties that Ms Pope could have done from home. It was perfectly reasonable of BMR to expect Ms Pope to do all of her job properly, especially her core duties, following the lifting of the lockdown. Ms Pope decided not to provide proof of vaccination against COVID-19 to BMR. She therefore rendered herself unable to do her job. BMR had a valid reason for dismissing Ms Pope that related to her capacity.

[20] Secondly, Ms Pope was warned on several occasions that she was at risk of being dismissed if she did not provide proof that she had been vaccinated against COVID-19.

[21] Thirdly, Ms Pope was provided with an opportunity to respond to the warning and was also given a reasonable chance to rectify the matter: she had ample time to provide the required proof of vaccination status to her employer. She chose not to do this. Ms Pope was under no misapprehension about what the company required of her.

[22] I note that Ms Pope’s written submissions in respect of the SBFDC proceeded on the incorrect assumption that the company was relying on the second limb of the code, which concerns summary dismissal. Ms Pope was not summarily dismissed, even though she was dismissed with immediate effect. Rather, she was terminated on notice, but received payment in lieu of notice. BMR complied with the first limb of the SBFDC in relation to Ms Pope’s dismissal. The application must therefore be dismissed.

[23] Had I reached a different conclusion in relation to the company’s compliance with the SBFDC, I would nevertheless have found that the dismissal of Ms Pope was not unfair. My consideration of those matters is as follows. For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable (s 385(b)). In considering whether it is so satisfied, the Commission must take into account the matters specified in s 387. The Commission is required to consider whether there was a valid reason for the dismissal related to the person’s capacity or conduct (s 387(a)). Such a reason is one that is valid in the sense both that it was a good or sufficient reason, and also a substantiated reason.

[24] As noted above, BMR had a valid reason for dismissal related to Ms Pope’s capacity. By choosing not to provide the company with evidence that she had been vaccinated against COVID-19, she had rendered herself unable to perform the full range of duties, including her core duties, required under her contract of employment. The duties referred to in the evidence of Mr Shelly concern matters of obvious importance to a person whose role is a sales consultant in a real estate business. They could not reasonably be performed from home. The fact that during lockdown, real estate businesses were forced to make the best of a difficult situation whereby salespersons may have worked from home, as Ms Pope did, is irrelevant. That was due to an extraordinary circumstance which had ceased to exist, i.e. the lockdown.

[25] Ms Pope contended that BMR could not rely on the Directions to justify its decision to dismiss her because the Directions were invalid or unfair. But the Commission proceeds on the basis that laws and delegated legislation are valid, until such time as a court says otherwise. The Directions have not been declared to be invalid. I would add that in any event I do not consider that any of the arguments advanced by Ms Pope that seek to impugn the validity of the Directions have merit.

[26] The company contended that it had a second valid reason to dismiss Ms Pope, one related to her conduct in refusing to follow the company’s reasonable direction that she comply with the Directions. However, it is not necessary for me to decide whether this was a lawful and reasonable direction, because one valid reason has already been established. I note that, to the extent that BMR’s direction required Ms Pope to take action to enable it to be compliant with the Directions, it would have been misconceived, because the company’s compliance with the Directions was not dependent on Ms Pope’s conduct. Despite Ms Pope’s refusal to provide proof of her vaccination status, the company remained in compliance with the Directions at all times. BMR quite properly refused to allow her to work outside her usual place of residence.

[27] In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether an employee has been notified of the reasons for dismissal and whether the person was afforded an opportunity to respond to any reason related to their capacity or conduct (ss 387(b) and (c)). Mr Shelly’s letter of 20 October 2021 told Ms Pope that failure to comply with the vaccination mandate would result in her dismissal. Again, although the Directions did not place any requirements on Ms Pope, I consider that the letter made plain what Ms Pope had to do if she wanted to be able to continue to attend the workplace and remain employed. Ms Pope had an adequate opportunity to respond to the reason for dismissal.

[28] The company did not refuse, unreasonably or otherwise, to allow Ms Pope to have a support person present to assist in discussions relating to the dismissal (s 387(d)). Ms Pope had a support person with her at the meeting on 21 October 2021.

[29] If a dismissal relates to unsatisfactory performance, s 387(e) requires the Commission to consider whether the person has been warned about that unsatisfactory performance prior to dismissal. However Ms Pope’s employment was not terminated for unsatisfactory performance, but for issues relating to her conduct and capacity.

[30] The Commission is required to consider the degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal (ss 387(f), (g)). BMR is a small employer and does not have dedicated human resources staff. However I attribute this little weight. It does not affect my overall assessment.

[31] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account any other matters that it considers relevant (s 387(h)). Ms Pope contended that she was treated differently from another employee, Ms Emily Hickey, who remained unvaccinated but was not dismissed and was allowed instead to work from home. I reject the contention that this involved any unfairness. Mr Shelly’s evidence, which I accept, was that Ms Hickey was employed in 2020 to be his personal assistant, and that she has since entered into a traineeship to undertake her licenced estate agent course. Her role is to assist Mr Shelly in the administration of day to day affairs. She is able to perform her duties from home. As Mr Shelly explained, any involvement of Ms Hickey in selling properties occurred in her capacity as a trainee. She was not able to perform the same duties as Ms Pope. Ms Pope produced photographs of whiteboard notes appearing to show earnings attributed to Ms Hickey. However I accept Mr Shelly’s evidence that these notes were for training purposes. Irrespective of this, Ms Hickey’s circumstances are very different from those of Ms Pope. Contrary to Ms Pope’s contention, the fact that she and Ms Hickey were both covered by the same award does not mean that they should both have been able to work from home. They performed different roles. In my opinion, taking into account the matters referred to in s 387, Ms Pope’s dismissal was not harsh, unjust or unreasonable. It was entirely understandable. It was not unfair.

[32] I will address some of Ms Pope’s remaining submissions.

[33] Ms Pope contended that during the meeting on 14 October 2021, she had asked to be provided with a ‘materials safety data sheet’ and occupational health and safety information relevant to managing COVID-19 in the workplace, but that she was not provided with these documents, and that the company thereby breached it duty of care to her. Mr Shelly said that BMR did not possess such documents. In my view, the company had no obligation either to have documents of this kind or to provide them to Ms Pope.

[34] Ms Pope submitted that the dismissal was unfair because she had been told in the letter of 20 October 2021 that she had until 22 October 2021 to obtain her first dose of vaccine, yet she was dismissed on the afternoon of that same day. Ms Pope contended that the company should not have dismissed her before the close of business, and that its decision to dismiss her that afternoon ‘pre-empted any decision … to obtain the first dose of a vaccine’. I reject this contention. During her discussion with Mr Shelly on 21 October 2021, Ms Pope stated very clearly that she would not divulge her private medical information to the company, including whether she had received a vaccination. I do not accept the suggestion by Ms Pope that she might have changed her mind about this matter later that afternoon. If she had been reconsidering her position, she should have told Mr Shelly about this, instead of leaving him with precisely the opposite understanding the previous day.

[35] Ms Pope submitted that neither her contract of employment nor the Award required her to obtain vaccinations. But the Directions effectively established new regulatory requirements that attached to her ability to attend for work. She did not meet these requirements. Ms Pope contended that employers do not have power to demand that employees become vaccinated. BMR did not make such a demand. It advised her of the legal preconditions of her attendance at the workplace. She chose not to meet them.

[36] Ms Pope submitted that her dismissal was unfair because she was dismissed during a period of unpaid leave, and that the Act prohibits dismissal in such circumstances. This is wrong. The Act does no such thing.

[37] Ms Pope also said that her dismissal was unfair because BMR did not provide her with any alternative to dismissal, such as working on reduced hours. I do not consider this to have been unfair. Ms Pope was not employed to do other duties. She was employed to be a sales consultant. She was employed to work full-time not part-time. I do not accept Ms Pope’s evidence that other options were promised to her. It is inherently implausible, and contrary to the documentary evidence that clearly explained the implications of the Directions and the company’s expectations of Ms Pope. The lockdowns were over. Real estate businesses were open and competing for work. Mr Shelly needed his senior salesperson at work and in the field, not at home on restricted duties. And after all, there was of course an alternative that would have allowed Ms Pope to work as normal. She could have become vaccinated and provided BMR with the appropriate evidence. She did not want to do so, for her own personal reasons. That was her choice. But it had a logical consequence, because her job required her to attend the workplace.

[38] Finally, I note that Ms Pope said during the hearing that she did not seek reinstatement, but compensation. Had it been necessary to consider the question of remedy, I would not have found reinstatement to be appropriate, given that Ms Pope did not seek it, and because there was nothing to suggest that Ms Pope had changed her position that she would not provide proof of vaccination status, such that BMR would remain prohibited by the Directions (which remain in force) from allowing her to attend the workplace. Further, I would not have awarded any compensation, because there is no evidence before me that Ms Pope took any steps to mitigate any loss, a circumstance that s 392(2)(d) requires the Commission to take into account. Ms Pope said during the proceeding that since her dismissal she had not applied for any jobs. She said that the reason for this was because she had been upset by her dismissal. But she did not present any medical evidence to show that she was unable to apply for jobs because of mental unwellness or any other reason. I do not accept that this was the case.

Conclusion

[39] Ms Pope’s dismissal was consistent with the second limb of the SBFDC. In any event, having regard to s 387 of the Act and all of the circumstances of the present matter, I do not consider that Ms Pope’s dismissal was harsh, unjust or unreasonable. It was therefore not unfair.

[40] Ms Pope’s unfair dismissal application is dismissed.”

Pope v Bacchus Marsh Realty Pty Ltd (2022) FWC 619 delivered 21 March 2022 per Colman DP