Unfair dismissal and covid vaccination mandates

In this extract from an unfair dismissal case decision (heard in Perth) the Fair Work Commission has dismissed an application for an unfair dismissal remedy based upon a dismissal of an employee who was prohibited from entering the workplace because of a State government covid 19 vaccination mandate.

“Unfair dismissal

[27] For a dismissal to be unfair, the Commission must be satisfied that the dismissal was harsh, unjust, or unreasonable (s 385(b)). The conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd; Frew v Australian Airlines Ltd by McHugh and Gummow JJ as follows:

…. It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.30

[28] In considering whether a dismissal is unfair, the Commission must take into account the matters specified in s 387, this includes determining whether there was a valid reason for dismissal and taking into account any other matters the Commission considers relevant.

[29] Section 387 of the Act contemplates that the Commission will undertake an overall assessment as to the nature of the dismissal and in so doing, the criteria in s 387 must, where relevant, be weighed up in totality.

[30] For the reasons that follow, the Applicant’s case turns on whether there was a valid reason for his dismissal, and whether there were other matters of such relevancy that they render the Applicant’s dismissal as harsh, unjust or reasonable.

[31] Regarding notification of a reason for dismissal, it is accepted that before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matter that places her or his job at risk. 31

[32] An opportunity to respond is an opportunity proffered before the decision to dismiss an employee is made. 32 At a general level, the case law makes it plain that when it comes to providing an opportunity to respond, the process does not require any degree of formality and that the requirement is to be applied in a common sense practical way in order to ensure that the employee is treated fairly.33 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.34

[33] The Applicant conceded in a very matter of fact manner, and appropriately in my view, that he had been notified of the reason for dismissal and whilst provided with an opportunity to respond both in writing and in person, he considered a face to face meeting futile. On this point, the Applicant explained in his written and oral evidence that whilst he was appreciative of the opportunity to respond in person, he considered that he and the Respondent would be simply traversing verbally what had already come to pass in the correspondence between the two.

[34] Having considered the evidence, I have found the Applicant was placed on notice that a failure to provide evidence of COVID-19 vaccination or for that matter an exemption, would result in the termination of his employment and that he had received ample opportunity to respond to the same. As to whether the Respondent denied the Applicant the attendance of a support person to assist in any discussions relating to dismissal, as would be evident from the facts, the factor is a moot point.

[35] If a dismissal relates to unsatisfactory performance, s 387(e) of the Act requires the Commission to consider whether the person has been warned about that unsatisfactory performance prior to dismissal. There is no suggestion that the Respondent took issue with the Applicant’s performance. This factor is therefore irrelevant to the determination required.

[36] 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 likely impact on the procedures followed in effecting the dismissal. The Respondent is a large employer, has a dedicated human resources team and legal counsel cognisant of workplace relations law. The procedures followed by the Respondent were appropriate having regard to the size of the Respondent’s enterprise. I attribute little weight to these factors given the specialist staff the Respondent has on hand.

[37] Returning to whether there was a valid reason for the Applicant’s dismissal, the following principles are apposite.

[38] In considering whether the dismissal of the Applicant was harsh, unjust, or unreasonable, I am required to take into account whether there was a valid reason for the dismissal related to his capacity or conduct (including its effect on the safety and welfare of other employees). To explain further, ‘valid’ in this context generally refers to whether there was a sound, defensible or well-founded reason for the dismissal.35 Such a reason is one that is valid in the sense that it was both sound and substantiated. Provisions such as s 387(a) must be applied in a practical, common-sense way, to ensure that the employer and employee are treated fairly.36

[39] Whilst the Applicant referred to a decision handed down by the High Court of New Zealand regarding the COVID-19 vaccine mandate, and Counsel for the Respondent responded at length concerning the same, the submissions of both were an unnecessary distraction.

[40] The Directions have at no stage been declared invalid by a court. They have been in effect at all material times. Further, they applied to the Respondent as an employer within the commercial transport industry of Western Australia. In effect, they constituted a new regulatory requirement that attached to the Applicant’s role. 37 The Commission is an administrative tribunal and will carry out its functions according to law, proceeding on the basis that legislation and delegated legislation is valid until a court says otherwise.

[41] As observed, it was somewhat unclear in Mr Floyd’s polemical ramblings whether the Applicant rejected the contention that there was a valid reason for his dismissal, because the Respondent had failed to consult.

[42] It was incontrovertible that the Applicant was covered by the Agreement. 38 Regarding the Agreement, it contains a provision requiring consultation in respect to significant change where the employer has made a definite decision to introduce a change.39 In this matter however, it cannot be concluded that the Respondent made a definite decision to introduce change. The Respondent implemented a requirement mandated by the State Government. Therefore, in my view, there was no requirement to consult under the Agreement. No argument appeared to be pressed that there was a requirement to consult under occupational safety and health legislation.

[43] The Applicant contended at length that the Respondent had positioned him as being unable to be vaccinated, because an ‘Injecting Practitioner’ was prohibited by law from injecting him. This was because, said the Applicant, that he could not provide valid consent for vaccination given the ‘employment termination demand’.

[44] In short, to perform his duties, the Applicant was required to attend work. However, on the commencement of the Directions the Applicant was precluded by law from attending the workplace. The Respondent does not argue that the Applicant was well within his rights to decline to be vaccinated against COVID-19. However, this was ultimately his choice. While he expressed he did not feel that he had been placed under undue pressure, coercion or manipulation, it nonetheless sat with him to make the decision of whether to voluntarily give his consent to be vaccinated against COVID-19. The Applicant exercised his choice not to be vaccinated and this ultimately led to the consequence that he rendered himself unable to meet the inherent requirements of his position.

[45] In light of this, the Respondent had a valid reason to dismiss the Applicant. It was one that was related to his capacity, not his conduct nor his performance. It was his inability to meet the inherent requirements of his role. The Respondent was prohibited by law from allowing the Applicant to attend the workplace unless he provided the required evidence in the aforementioned timeframes. The Respondent would have contravened the law and exposed itself to penalty if it had acted otherwise. Having arrived at this conclusion, it proves unnecessary to consider the other reason relied upon by the Respondent for the Applicant’s dismissal. Namely, whether the Applicant failed to comply with the Respondent’s lawful and reasonable direction to comply with the proof of vaccination requirement from 1 January 2022.

[46] Whilst the Applicant’s service with the Respondent and its predecessors to the Transperth contract was not insignificant and no mention was made of the Applicant having anything other than a sound employment record, these factors are insufficient to dissuade against a conclusion that the Applicant’s dismissal was not unfair.

[47] The Applicant did not complain at hearing that he had not been given notice of termination or a payment in lieu of notice. Having considered the letter of termination 40 and noting that the Respondent had surmised that the Applicant had repudiated his employment contract, it appears factually correct that payment in lieu of notice was not provided.

[48] The fact that an employee has been dismissed without notice when the employee’s conduct did not warrant summary dismissal may be relevant to consider under s 387(h) of the Act. 41 However, in the present case the Applicant did not have the capacity to work at his workplace from 4 January 2022. Accordingly, even if the Respondent had provided the Applicant with actual notice of termination and his employment had continued for a further four or five weeks, he would not have been entitled to any wages during that period. Having regard to all the circumstances, the failure to provide notice of termination or a payment in lieu of notice may support a conclusion that the Applicant’s dismissal was harsh and unreasonable. However, as was the case in Ashlee Mitchell v Kinda Kapers Holdings Pty Ltd,42 the weight to be attributed to this matter is ameliorated by reason of the fact that the Applicant would not have been entitled to the payment of any wages, if he had been given notice of his termination.

6 Conclusion

[49] Having taken into account each of the matters specified in s 387 of the Act, I am satisfied that the Respondent had a valid reason for dismissing the Applicant based on his inability to meet the inherent requirements of his role. Further, I am unable to conclude that the Applicant’s dismissal was harsh, unjust, or unreasonable. Accordingly, I am obliged to dismiss the application. An Order 43 to that effect is issued in conjunction with this decision.”

Girod v Swan Transit (2022) FWC 1489 delivered 21 June 2022 per Beaumont DP