Pilot wins job back after having Novavax after dismissal

In an interesting decision an airline pilot has won his job back with an order for reinstatement by the Fair Work Commission in an unfair dismissal case which centred around the employee’s termination of employment held to be a valid reason for dismissal because he was unvaccinated against covid19 but what the Commission regarded as “substantive procedural unfairness” and that the applicant did submit to a Novavax vaccination at the earliest chance of doing so.

“Nothing in the preceding paragraph is to be construed as involving any criticism of Ms Tran or her evaluation of what was before her concerning Mr Dean, particularly given she referred in her cross-examination to the “heavy workload” around this time. Ms Tran explained that: (a) many employees were supportive of the mandate, conveyed support for vaccinations, and advised that they had already been vaccinated; (b) many employees advised that they had concerns about working with unvaccinated staff or who said they would refuse to work with unvaccinated colleagues; and (c) other employees were very negative about vaccines and the mandate. Here, in connection with the Board-determined operation of the Policy, the HR employees, among other matters, had to coordinate the consultation about the proposed introduction of the Policy, and collate and analyse the responses of all the approximately 1,486 employees. The HR employees were dealing with the effectively simultaneously processes involving no fewer than the initial 32 employees who, each for his or her own individual reason or set of reasons, had refused or failed to be vaccinated in accordance with the specifications in the Policy; and, ultimately, the dismissal of 17 employees including nine pilots. All this in a time that was perilously difficult for Rex given all that went with COVID-19, the emergence of new variants in connection with its impact on the airline industry and the associated financial losses.

[148] I am sympathetic to Ms Tran (and the other no doubt beleaguered HR staff who were trying to deal as best they could with the employee-related matters concerning the introduction and, then, the implementation of the Policy notwithstanding Mr Dean’s expressions of disappointment about his interactions with the HR team) – in circumstances where the first line of interaction concerning what I might describe as “ordinary” disciplinary-type matters would otherwise have been an employee’s own responsible manager. Mr Fisher explained that matters concerning HR’s handling of matters of the unvaccinated employees was because of, broadly speaking, the commonality of the employment issues. While this is understandable, Mr Dean’s conviction is that he and Mr Fisher would have been able to achieve something mutually workable and suitable if only there had been discussions directly between themselves. Whether Mr Dean’s assessment is right or wrong remains an unknown because there was no conferring/discussions.

[149] I should note for completeness that the FAQs in the Policy confirmed that Rex would not provide for staff to delay vaccination until they were able to obtain their preferred vaccination type. The answer to the FAQs read: “There are three vaccines being used in the Australian roll out that have been approved by the Therapeutic Goods Association (TGA), these are Moderna, Pfizer and AstraZeneca. Individuals would be responsible for discussing the options with their medical practitioner if they have concerns.”. There was no suggestion in the evidence that Mr Dean ever proposed to Rex that he should be granted leave to 20 February/1 March 2022 in connection with what may, or may not, have been the approval of Novavax by the Therapeutic Goods Administration (albeit it transpired that is the vaccination he eventually had). Ms Tran’s evidence was that Mr Dean did not make any such proposal. Similarly, Mr Dean’s evidence did not suggest he was seeking leave specifically pending what may, or may not, have been the approval of the Novavax vaccine for use in Australia. Rather, the evidence indicated Mr Dean was actively engaging in appointments with his doctor/DAME to overcome or manage his anxiety about COVID-19 vaccination generally that had arisen principally against the background of the death of his close friend. Mr Dean said he “desperately wanted to comply” with the Policy by being vaccinated. This desperation is eminently understandable because Mr Dean’s job, a job he plainly loved, was on the line for failure to be vaccinated.

[150] While I am satisfied there was a valid reason for the dismissal for reasons of non-compliance with the Policy by the initial or extended date, the dismissal was characterised by substantive procedural unfairness arising from the failure of Rex to discuss alternative options with Mr Dean. The options Mr Dean proposed were not discussed with him, including as to why Rex considered his reconfiguration-style options as put to Mr Lim were rejected. Continued employment with Rex in the non-frontline casual simulator position simply was not discussed with Mr Dean as to the terms and conditions that Rex’s case now indicates were proposed to be involved – particularly in relation to the all-pervading employment importance of the seniority system at Rex under the Pilot’s EA.

[151] The further substantive procedural unfairness is the fact that there were no discussions relating to the dismissal, or discussion of other potential options short of immediate dismissal (albeit with a payment in lieu of dismissal) – relevantly, such as accessing paid leave entitlements or leave without pay consonantly with the approach in the Policy. That is, the FAQs section of the Policy document explained the operation of the Policy in terms that included: “If no suitable role can be found the staff member will be required to meet the requirements of the policy to continue working in the frontline. If this results in a delay in getting fully vaccinated, the staff member will be required to take leave (including Leave Without Pay) from 1 November 2021 until the fully vaccinated date. If vaccination is not an option for the staff member then the staff member may be terminated due to not meeting a work requirement.” Furthermore, there were other options around work/leave that could (at least potentially fruitfully) have been discussed and/or at least considered before the dismissal was effected in circumstances where Rex’s case was that there was insufficient work for full-time redeployment into the simulator work. As to the foregoing matters, I reiterate that Mr Dean said in the proceedings:

“If a combination of simulator and accrued leave was offered to me, I would have taken it.

If accrued leave up to Leave Without Pay was offered to me, I would have taken it.”

[152] Instead, Mr Dean was informed at the start of the meeting on 1 December 2021 that he was dismissed. Even though there was discussion after the advice concerning the dismissal had been relayed by Mr Tan to Mr Dean, I find that Mr Dean’s proposal concerning accessing paid leave entitlements until 20 February 2022 (or, to allow some flexibility, 1 March 2022) was in the nature of a post-dismissal discussion seeking to have the dismissal decision reversed. Rex submitted that Mr Dean’s “last minute” request concerning accessing leave in the 1 December 2021 dismissal meeting. It is the case that Mr Dean had not, prior to the dismissal, flagged leave options. As to this, Mr Dean said in the proceedings:

“I was trying to work with REX to remain productive, so the taking of leave wasn’t my first preference, as keeping the Company’s productivity first and foremost is how I have always worked. In fact, I thought the termination meeting was going to be about coming to an agreement on how we could implement a mutually beneficial arrangement.”

[153] Even though Mr Tan’s brief was to convey the dismissal decision (which he did), Mr Tan in a very fair way volunteered to discuss the leave matter with no less than the Executive Chairman. It simply is not known what was then discussed between Mr Tan and Mr Lim, or what led Mr Lim to the decision not to reverse the dismissal. It may be that, as with Ms Tran, there was a lack of confidence that Mr Dean would become vaccinated if leave was approved; or concern that Mr Dean was using this leave request as a ploy (as was the case with some trenchantly anti-vaccination employees in seeking delays, in the hope of legal outcomes that would vindicate their stance); or because of concerns about being even-handed in connection with the dismissal of unvaccinated employees. It may be that the decision was made against the background of what was set out in Rex’s submissions that the “last minute request to take leave was not practicable”, where Rex required all pilots to be ready, willing and able to conduct flight duties throughout the Christmas/New Year period due to the forecasted uptick in demand and the need to meet flight schedules. As I say, these matters are just unknown in such respects for the reasons that neither Mr Tan nor Mr Lim gave evidence in the proceedings.

[154] It remains a matter of speculation what might have been the subject of discussion and/or negotiation with the proviso, of course, of Board/managerial approval – had any discussions actually occurred – but, for his part, Mr Dean expressed confidence that something workable for both parties would likely have resulted through discussions with Mr Fisher. Stepping back from what happened in the dismissal meeting, one thing is clear – if the terms and conditions described in the evidence of Mr Fisher and Ms Tran had been discussed with him, Mr Dean indicated that he would have accepted the casual simulator proposal. Instead, the only information that Mr Dean had was as set out in Mr Tan’s letter, that is: “Please note this would be a permanent change, not a temporary placement and under different terms and conditions of employment to the Pilots Agreement.”

Conclusions

[155] On weighing the various matters, I am satisfied the dismissal was harsh, given the procedural fairness considerations arising in this case and, thereby, was an unfair dismissal.

[156] As I am satisfied Mr Dean was unfairly dismissed, I am also satisfied Mr Dean should have an unfair dismissal remedy. Rex submitted that if the application was not dismissed, it wished to be heard on the question of remedy. I find that a surprising submission given that the directions I issued concerning the filing and service of relevant evidence and submissions in specified terms – and Rex was represented by a major law firm and counsel. Here, the applicant plainly identified that a remedy he was seeking was reinstatement. Rex should have advanced complete evidence, materials and/or submissions pursuant to the directions I made, e.g., If the Commission is against us on the primary submission that the application should be dismissed, then our alternative submissions are: First …; Second, …; Third … . I do not propose to now re-open the case, notwithstanding that is the effect of what Rex proposed should occur if its primary submission concerning dismissal of the application did not succeed. This is particularly so given the following three matters.

[157] First, reinstatement is the primary remedy in the Act. Here, there are no issues concerning loss of trust and confidence of the type that might ordinarily be advanced in relation to reinstatement as a remedy and there are no performance-type concerns. Specifically, Mr Dean was respectful in his written communication to Mr Tan and Mr Lim; there was no evidence of any disrespectful or otherwise untoward conduct by Mr Dean to any other employee with whom Mr Dean had dealings, such as Ms Tran; Rex’s evidence indicated there was disappointment all round when Mr Dean did not accept the casual simulator position; and the evidence of Ms Tran was that if Dean re-applied to work with Rex he would have priority:

“94. As mentioned, the Termination Letter encouraged Mr Dean to apply for positions at REX if he did in fact decide to obtain a COVID-19 vaccination.

  1. REX maintains this position. Whilst it is not REX’s choice to have to defend itself against Mr Dean in this proceeding, it remains the case that Mr Dean was a competent pilot.
  2. Rex stands ready to reemploy Mr Dean if he submits an application for such and if he satisfies all the conditions for pilot employment. Mr Dean would be given priority over all other applicants of equal qualification and, if accepted, would be put on the path as a direct entry Captain.”

[158] Second, the only reason for the dismissal was the COVID-19 vaccination issue. Mr Dean made no challenge to the Policy in the hearing and Mr Dean is (now) fully vaccinated. In that regard, I note certain findings and comments made by Hatcher VP in Michael Rowe v Commissioner for Public Employment (Northern Territory) [2022] FWC 1405. Although the case was not on all fours with the matter before me, including by the fact that Mr Dean never suggested to Rex that he should not be dismissed because he was awaiting Novavax, the decision involved a case where the Vice President stated (italics in original):

“[57] Mr Rowe has not received any COVID-19 vaccine since he was dismissed, notwithstanding that the Novavax vaccine was provisionally approved for use in Australia on 20 January 2022 and became available for use in mid-February 2022. His evidence was that because of the way he was treated by the PWC [the Power and Water Corporation] and the Northern Territory Government, he now has “a completely different perspective on life”, and his current lifestyle does not require him to be vaccinated. …

[81] As to the second matter, it might be said that, having suspended Mr Rowe without pay for a period of three months in response to his failure to comply with the CHO Directions, there was no need or purpose to dismiss him prior to the expiration of the period of suspension.

[82] These matters are of potential relevance to the fairness or otherwise of the dismissal because Mr Rowe submits that he had not made a positive decision to refuse to be vaccinated, that he had legitimate concerns about risks associated with taking the mRNA vaccines that had been approved at the relevant time, and that he wished to reflect upon his position and work through his concerns away from the pressures of work and, perhaps, to wait for the approval and availability of the Novavax vaccine.

[83] If I were satisfied that there was a serious possibility that Mr Rowe may have reconsidered his position and ultimately agreed to be vaccinated if he had been allowed to take his pre-approved leave without being required to be vaccinated beforehand, I would be inclined to the view that his dismissal effective from 6 December 2021 was premature and harsh. I would similarly be inclined to this view if I considered that there was a serious possibility that Mr Rowe might have taken the Novavax vaccine (which was approved and available by mid-February 2022, as earlier stated) had PWC had stayed its hand whilst Mr Rowe was on suspension without pay. Matters that would support a conclusion of that nature include that the CHO [Chief Health Officer] Directions were introduced at relatively short notice, and that it is understandable that some persons may be hesitant to take the vaccine in the face of the significant amount of disinformation about vaccination being peddled in social media and elsewhere in the public sphere.

[84] However, ultimately, I do not consider that there was ever a real possibility that Mr Rowe would agree to vaccination, and I do not accept his evidence to the contrary. All the evidence suggests to me that he had made up his mind on the topic by late October 2021 (if not earlier), and Mr Rowe never identified anything which might reasonably cause him to change his position. …

[85] Accordingly, the two matters I have identified as relevant do not cause me to conclude that the dismissal was harsh, nor do they weigh in favour of such a conclusion. I do not consider, in light of the known facts, that Mr Rowe’s evidence that he might have been prepared to reconsider the question of vaccination had he taken his leave or remained on suspension without pay is credible, and I do not accept it.”

[159] Thus, there was discussion by the Vice President about whether there was ever a real possibility that the applicant before him would agree to COVID-19 vaccination in considering whether the dismissal was harsh. In Mr Dean’s case, in seeking a reconsideration of the dismissal decision that had already been conveyed to him in the meeting on 1 December 2021, he asked to access leave until 20 February 2022 (or to around 1 March 2022 to allow some flexibility) advising, among other matters, that it was his “intention” to be fully vaccinated – being evidence I accept, even if hesitantly given.

[160] As it transpired, Mr Dean was not fully vaccinated by 20 February 2022 or 1 March 2022, but he did receive his first vaccination on 17 February 2022 (and then had his second on 10 March 2022). This date of double vaccination was about a week-and-a-half later than the latest 1 March 2021 date that he had sought for flexibility, but this was due to delays outside his hands because the vaccine in question given was not available until mid-February 2022. I consider that, if access to his leave accruals had been granted and Mr Dean showed Rex evidence of his first vaccination within the leave period he had sought, it seems likely that Rex would not have proceeded to dismiss him. As noted earlier, the fact of Mr Dean’s first COVID-19 vaccination on 17 February 2022 would have (or, more accurately, should have) dispelled Rex’s concerns that his period of leave was just a delaying tactic and he would not actually become vaccinated in connection with accessing paid leave accruals. Once again borrowing from what was said by the Full Bench in Bartlett, I find Mr Dean “was deprived of the possibility of a different outcome in terms of avoiding his … dismissal” in circumstances where the dismissal was effected before there was any possibility of a different outcome in terms of discussion about leave-related proposals – and where, as I have found, that what followed in relation to involved Mr Dean unsuccessfully seeking a reversal of the dismissal decision that had already been advised (and for reasons that are, on the evidence, unknown).

[161] Third, while I consider it is appropriate, as is invariably the case in relation to reinstatement orders, to make an order to maintain continuity of employment/service, I do not consider that it is appropriate to make any order with respect to lost pay. Continuity of employment/service has particular significance in this case, given the concomitant matter of seniority. Moreover, at least as Rex put matters in its case concerning the offer of the casual simulator position, it was prepared to maintain Mr Dean’s continuity of service for the seniority list.

[162] In no circumstances would Mr Dean ever have had an order from me for lost pay for the time before he became double-vaccinated. As to the balance of the period of unemployment after becoming double-vaccinated, the dismissal was the result of Mr Dean’s fear about being vaccinated within the specified timeline. Regardless of my conclusion that Mr Dean’s fears were honestly held by him and that he was vaccine hesitant, Mr Dean self-determined not to be vaccinated and, in consequence, put himself into non-compliance with the requirements of the Policy’s timeline and the extension that was later given. The dismissal thereby resulted from the personal choice made by Mr Dean not to be vaccinated, as of course was his prerogative. In my discretionary assessment of matters, no lost pay should be ordered as a result of the procedural fairness issues in this case, in circumstances where there was otherwise a valid reason for the dismissal brought about by the exercise of Mr Dean’s personal prerogative not to be vaccinated by the initial or the extended compliance date.

[163] Against that background, I do not consider there is any cause to make an order to restore any lost pay and, therefore, no need to consider the amount of any remuneration earned by Mr Dean from employment or other work during the period between the dismissal and the making of the order for reinstatement or the amount of any remuneration reasonably likely to be so earned by Mr Dean during the period between the making of the order for reinstatement and the actual reinstatement. Had I been minded to make an order for lost pay or partial lost pay, I certainly would have relisted the matter to hear evidence and submissions on those matters which I am required by the Act to consider. However, the matters in s.391(4)(a)-(b) of the Act do not arise for consideration because I do not consider it is appropriate to cause Rex to pay any amount of remuneration with respect to lost pay. Indeed, I consider it would not result in a fair go all round to make any such order.

[164] Last, I separately note that, on one view of it at least, the practical outcome as to remedy that I have determined as appropriate is as Rex had encouraged Mr Dean to do, namely, to return to work once vaccinated (though, admittedly, with the continuity of employment/service that would have been lost through a procedure involving re-applying following the dismissal). To the extent that there was criticism of the fact that Mr Dean has not reapplied for a position with Rex since the dismissal, Mr Dean explained: “For a pilot there is a massive detrimental difference between reapplying and reinstatement in relation to our Seniority. … To reapply after 27 years of loyal service, my seniority number would reset from No.9 to 298. This would mean I lose my Wagga basing (where I have resided for the last 19 years), with practically no chance of ever regaining it.” Seniority was thereby relevant not only to a range of employment rights and obligations – it was also relevant to where Mr Dean/his family would reside.

Orders

[165] Reinstatement is the remedy that has been sought by Mr Dean and that is the primary remedy under the Act. In view of the foregoing, the disposition of the application as to remedy is as follows.

Reinstatement

[166] Rex shall reappoint Mr Dean to the position in which he was employed immediately before the dismissal (that is, at the same grade and at the same location Mr Dean previously worked) by no later than 21 days after the date of this decision.

Order to maintain continuity

[167] In connection with the reappointment, I consider it is appropriate that the reappointment should be effected with continuity of Mr Dean’s employment/service.

Order to restore lost pay

[168] I do not consider that an order to restore lost pay/superannuation is appropriate in this case.

Next steps

[169] Having regard to the foregoing, the parties are to confer on the settlement of a draft order to give effect to these conclusions, and lodge the draft order by no later than 14 days after the date of this decision. If there are any issues that arise or may arise in relation to time to obtain, for example, security clearances, re-accreditation, or anything similar, such as to delay the actual resumption of work by Mr Dean, that should be addressed in the draft order.

[170] Separately, the parties will need to confer about administrative or other repayment arrangements to be implemented to take into account the payments made by Rex to Mr Dean in connection with the termination of employment.

[171] The matter is stood over pending the receipt of the draft order. If the parties are unable to agree on the wording of the draft order giving effect to my conclusion, the matter will be relisted on the application of either party.”

Passages from Dean v Regional Express Holdings Ltd (2022) FWC 1448 delivered 11 July 2022 per McKenna C