Reinstatement for being dismissed for not being vaccinated

Here is an extract from a very interesting unfair dismissal case in which the Fair Work Commission ordered the reinstatement of an employee who was dismissed for not being vaccinated against Covid19.

“Conclusion

[110] Every employer and employee is entitled to a “fair go all round” in compliance with s.381 of the FW Act. I am of the view and find that the Applicant did not receive her statutory entitlement to this fair go. No employee should be terminated for following their doctors’ advice to get a specialist medical opinion – particularly when there is no chance of breaching the CHO Direction No. 55.

[111] I support the view of the CEO that it was unfair to the Applicant for the Respondent not to accept the Applicant’s excuse not to be vaccinated until after she had consulted with her cardiologist. Due to the time of year and the shortage of medical specialists in the Northern Territory, the delay in the Applicant’s specialist appointment was understandable.

[112] The Applicant’s termination also occurred without appropriate consultation between the Department and the management at Dripstone Middle School. Had any consultation occurred, then the Department would have been aware that the Applicant was on approved leave for the duration of the term and there was absolutely zero chance of the Applicant, or the School, breaching CHO Direction No. 55.

[113] On the basis that the Applicant was on approved leave until the end of the school term, and that even the CEO now concedes that it would have been fair for the Applicant to see her cardiologist before receiving a COVID-19 vaccine, I find that the Respondent did not have a valid reason to terminate the Applicant. The decision to terminate was indefensible and lacked common sense.

[114] I am satisfied that there are no issues that have been raised by the parties in relation to s.387(b)-(h) of the FW Act of such significance which could overturn my finding that the Respondent did not have a valid reason to terminate the Applicant.

[115] For the reasons stated above, I am satisfied that the Applicant’s termination was harsh and unfair.

Remedy

[116] Having found that the Applicant has been unfairly dismissed, I now turn to the issue of an appropriate remedy.

[117] I have taken into account the submissions from the parties in relation to what is an appropriate remedy.

[118] The relevant provisions of the FW Act in relation to a remedy for an unfair dismissal are:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

“391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[119] In Perkins v Grace Worldwide (Aust) Pty Ltd (Perkins), 9 the Full Court of the Industrial Court said:

“Trust and confidence is a necessary ingredient in any employment relationship. … So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee’s employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court’s finding on that question in the resolution of an application under Di 3 of Pt VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee.

… It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.

It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee’s employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer’s own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.” 10

(My emphasis)

[120] In Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter (Nguyen), 11 a Full Bench of the Commission conveniently summarised this issue:

“The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:

  • Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.
  • Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.
  • An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.
  • The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.
  • The fact that it may be difficult or embarrassing for an employer to be required to reemploy an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate. Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.” 12

Consideration

[121] The Applicant seeks the primary remedy under the FW Act of reinstatement.

[122] It is not in dispute that there were no performance issues associated with the Applicant’s employment with the Respondent. The only issue appears to be a lack of appropriate communication. The Applicant is an experienced and respected maths teacher. The Applicant seeks to continue her career in the Department. I can see no reason why reinstatement is not the appropriate remedy in this situation. Quality maths teachers are a scarce resource throughout Australia. It would be unfair to penalise the Applicant from working for the major employer in the education sector in the Northern Territory simply because she followed her doctor’s advice.

[123] The Applicant has modified her position since the Hearing and has now agreed to accept the role at Palmerston College for Term 3 in 2022. A role will need to be found for the Applicant for Term 4.

[124] The Applicant’s claim for backpay and continuity of service is a difficult matter. As a result of a conscious, yet quite understandable decision of the Applicant to wait for the Novavax vaccine, the Applicant was not able to comply with CHO Direction No. 55 until 1 April 2022. As a result, that is the only date that the Commission can realistically award backpay to in relation to this application. Had the Applicant taken immediate steps following her cardiologist’s advice to be vaccinated with AstraZeneca or Pfizer, the backpay would have been awarded to that date.

[125] The Applicant is also entitled to be paid until the expiration of her previous contract, ie 27 January 2022. The Applicant was on approved leave up until the end of term. Approved leave counts as time worked. I am of the understanding that this quantum may only be 5 days, but I have not been advised by the Respondent of the precise amount. A further Hearing can be conducted to clarify the amount if an agreement between the parties cannot be reached.

[126] For the sake of calculating the Applicant’s long service leave entitlements, I am satisfied that the Applicant would have received a new contract for 2022 at Dripstone. As a result, the Applicant’s service should continue for the calculation of long service leave accrual as if such a contract was in place.

Conclusion

[127] Based on the evidence of Ms Pikoulos, I am satisfied that the Applicant would have received a 12-month contract at Dripstone for 2022 had she complied with CHO Direction No. 55 in November 2021. The Applicant had good and cogent medical reasons for not doing so, a fact now accepted by the CEO. As a result, the primary remedy under the FW Act is appropriate in this circumstance.

[128] In accordance with s.391(1) of the FW Act, I Order that the Applicant be reinstated. Obviously, it is still a requirement on the Applicant to comply with the mandated third dose of an approved COVID-19 vaccine, which is required by 21 July 2022.

[129] At the time of the hearing there was an identified vacancy at Palmerston College, which the Applicant has since indicated she would accept. If this identified vacancy still exists, I Order the Applicant to be appointed to that role. If that identified vacancy is no longer available, then the parties should advise the Commission and alternate orders will be made.

[130] In relation to backpay, in accordance with s.391(3) of the FW Act, I Order:

  1. a) that the Applicant be paid up until the expiry of her contract on 27 January 2022; and
  2. b) that the Applicant backpaid to the date of her second vaccination, 1 April 2022. This payment should be made by the Department and continue until the Applicant’s new placement.

[131] In accordance with s.391(2) of the FW Act, I Order continuity for the purpose of long service leave from 28 January 2022 and from 1 April 2022 for all other purposes.

[132] I so Order.”

 

Gikas v The Commissioner For Public Employment [2022] FWC 1133  8 June 2022 per Riordan C