Unfair dismissal and waiting for Novavax

Here are some interesting passages in an unfair dismissal case which turned upon whether an employer had a valid reason to dismiss an employee who had elected not to be vaccinated against covid19 waiting for the Novavax vaccination to become publicly available.

“Section 387(a) – whether there was a valid reason for the dismissal related to Ms Pskiet’s capacity or conduct (including its effect on the safety and welfare of other employees)

[112] Valid in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly.73

[113] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees). 74

[114] It is also clear from the authorities that the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts before the Commission. That is, it is not enough for an employer to rely upon its reasonable belief that the termination was for a valid reason.75 The employer bears the evidentiary onus of proving that the conduct or incapacity on which it relies took place. 76

[115] I have found that the vaccination policy in this case was capable of providing the basis for a lawful and reasonable direction to comply for employees of Nocelle Foods at the relevant time. However, the Commission must also assess whether this was so in the context of Ms Pskiet.

[116] Ms Pskiet’s role required her to, generally, be in the workplace and to access the warehouse and production facilities from time to time. Although some elements of her work could be performed from home, this was not a viable or productive medium or longer-term option. Ms Pskiet had concerns about the vaccines and was sceptical about their effectiveness, but there is no evidence of a medical or other objective basis to suggest that the policy itself was unreasonable in her circumstances.

[117] Ms Pskiet had not complied with the policy by confirming her vaccination status or providing a relevant medial exemption by the due date.

[118] In terms of the timing and manner of the application of the policy to Ms Pskiet. I have earlier found that Ms Pskiet, in effect, flagged the desire to wait for the Novavax vaccine and had raised the notion of taking some leave and/or performing some of her work from home. This could have been expressed more clearly in the lead up to the termination, however Mr Capobianco should have been aware of the import of Ms Pskiet’s position, and he was aware of the impending approval of the Novavax vaccine. Ms Pskiet was a long serving reasonably senior employee who had communicated a desire to discuss the issues with Mr Capobianco. Although both of these individuals could have taken that initiative, it was the Respondent that was considering the dismissal of Ms Pskiet. Although I also accept that Mr Capobianco was operating on advice that email communication was to be preferred, the absence of a proper discussion about Ms Pskiet’s intentions meant that the uncertainty about her intentions were not clarified and this prevented an informed decision being made about this aspect prior to the dismissal.

[119] I have also earlier found on balance, that whilst I cannot be confident that Ms Pskiet would have ultimately agreed to become vaccinated in order to keep her job when Novavax became available, this was more than a distinct possibility. In the end result, this remains speculation as ultimately, the dismissal occurred shortly before the reality of Novavax as an option.

[120] I do not consider that Mr Capobianco gave any fulsome consideration to the notion that Ms Pskiet could take some leave and await the Novavax development. Although I can appreciate that the tone of Ms Pskiet’s responses in the immediate lead up to the dismissal was unhelpful, contrasted with that adopted by CB and probably influenced his consideration, this occurred only after the prospect of her dismissal was threatened and imminent. Given Ms Pskiet’s service and position, she deserved proper consideration of her circumstances and for reasons outlined above, this may well have led to options that could have avoided, or at least delayed, the need for the dismissal.

[121] I also accept that it would not have been reasonable for Ms Pskiet to have been granted extended indefinite leave, including because of the nature of her position. However, the prospect of the Novavax vaccine was real at the point of the dismissal and the fact of dismissing the Applicant had the effect of completely removing Ms Pskiet as a resource for the business.

[122] Having objectively considered all of the relevant circumstances related to Ms Pskiet’s capacity and conduct based upon the findings of the Commission, I am on balance persuaded that the combination of her conduct was capable of constituted a valid reason for dismissal. However, the timing and related application of the policy to Ms Pskiet, means that I cannot be satisfied that, at the point of termination, a valid reason existed.

[123] I emphasise that this finding arises in the specific context of Ms Pskiet’s circumstances and those of the Respondent, based upon the evidence in this matter. Such a focus is, of course, required given the terms of s.387 of the FW Act.

Section 387(b) – whether Ms Pskiet was notified of the reasons for dismissal

[124] This consideration requires the Commission to assess whether the applicant concerned was relevantly notified of the reasons leading to the dismissal before that decision was taken.77

[125] Ms Pskiet was notified of the reasons for her dismissal prior to that decision being made.

Section 387(c) – whether Ms Pskiet was given an opportunity to respond to any reason related to his capacity or conduct

[126] The process contemplated by the FW Act does not require any formality and is to be applied in a common sense way to ensure the employee has been treated fairly. This question becomes whether Ms Pskiet was aware of the precise nature of the employer’s concern about her capacity and had a reasonable opportunity to respond to these concerns.78

[127] Given my earlier findings about the events surrounding the dismissal I am satisfied that a reasonable opportunity was provided to Ms Pskiet as contemplated by this consideration.

Section 387(d) – any unreasonable refusal by the respondent to allow Ms Pskiet a support person

[128] There was no meeting conducted and no request was made by Ms Pskiet for a support person. This consideration does not arise in this matter.

Section 387(e) – if the dismissal is related to unsatisfactory performance by Ms Pskiet – whether he has been warned about that unsatisfactory performance before the dismissal.

[129] This consideration relates to performance of the job. Performance in this context includes the employee’s capacity to do the work, and the diligence and care taken with that work.79

[130] The dismissal was not related to Ms Pskiet’s performance, and this consideration does not arise.

Section 387(f) – the degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.

Section 387(g) – the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal.

[131] I deal with these two considerations together.

[132] Nocelle Foods is a not a small business and had access to external advice. Although this expertise is not within the business, given the size and resources of the Respondent, I do not consider that this absence materially impacted upon the overall procedures that it followed. However, the absence of a human resources resource on the ground may have impacted upon the manner of engagement with Ms Pskiet.

Section 387(h) – other matters considered to be relevant

[133] Amongst other considerations, the Commission should consider the impact of the dismissal upon the applicant given all of the circumstances. This dismissal meant that Ms Pskiet lost her long-standing employment with the normal consequences of that event including the loss of her personal leave balance. This is a relevant consideration.

[134] The broader context for the vaccination policy and the circumstances of the business at the time as outlined earlier is also relevant to the overall assessment of the dismissal.

Conclusion on nature of dismissal

[135] The FW Act requires a global assessment having regard to the various relevant statutory considerations. In that context, procedural unfairness is an important consideration given the provisions of the FW Act but does not necessarily mean that the dismissal was unfair. This is reinforced by the objects relating to Part 3-2 Unfair Dismissal of the FW Act in s.381 which relevantly provides as follows:

“381 Object of the Part

… …

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”

[136] This would be little doubt that both parties could have handled the exchanges leading the dismissal differently. I have found that whilst the vaccination policy provided the basis of a lawful and reasonable direction it did not provide a valid reason for dismissal in the specific context of Ms Pskiet’s circumstances at the time that the dismissal took place. I have also taken into account and weighed the other considerations of s.387 of the FW Act.

[137] Given the facts of the matter and the statutory considerations, I am satisfied on balance that the dismissal of Ms Pskiet was harsh, and unreasonable. It was therefore unfair within the meaning of the FW Act.”

Pskiet v Maicap Unit Trust T/A Nocelle Foods (2022) FWC 1534 delivered 29 July 2022 per Hampton C