Unfair dismissal, covid mandates and covert recordings

These passages are from an unfair dismissal decision in the context of a claim by an employee dismissed because she declined to be vaccinated against covid 19 who worked in an establishment which was prohibited by legislative mandates from permitting her to enter the premises unless vaccinated.

I have no difficulty with the Deputy President concluding that there was a valid reason for the applicant’s dismissal on the basis that she was unable to meet the inherent requirements of the job (by not being permitted to enter the workplace) inter alia because there have already been many unfair dismissal cases disposed of in this way by the Commission during the pandemic. There is precedent.

However I am not so sure about the Deputy President also concluding that the applicant’s conduct constituted a refusal to comply with a lawful and reasonable instruction and thus misconduct. I will be intrigued to see whether this is a proposition with which a Full Bench agrees if that question finds its way to a Full Bench in the future.

There is one further finding made the Deputy President which is controversial. The Deputy President holds in this case that the applicant’s conduct in covertly recording a disciplinary meeting was highly inappropriate irrespective of whether it constitutes an offence in the relevant jurisdiction”; see para 34.

In the Deputy President’s words “Secondly, I consider that, unless there is a justification, the secret recording of conversations in the workplace is highly inappropriate, irrespective of whether it constitutes an offence in the relevant jurisdiction. In this regard, I adopt the observations I made in Gadzikwa v Australian Government Department of Human Services [2018] FWC 4878 at [83]:…………..’

In other words the Deputy President appears to rely upon his own previously stated “observations” to justify this view. Well fair enough I suppose.

However with the greatest respect to His Honour, I disagree with this reasoning. In my view, there are many circumstances in which the covert recording of a meeting by an employee on an occasion in which there is the very real likelihood that words uttered at the meeting may have the capacity to profoundly affect an employee’s life which render the recording of them entirely reasonable, which is the very reason such recordings are permitted by the laws of several States. I have personally conducted many legal cases where the identification of the precise words used at a meeting can the difference between justice and justice falling short; for employers and employees.

Having said that, I acknowledge that it is legitimate for reasonable persons of good faith and intent to disagree as to this issue and I know many practitioners who look forward to the matter being resolved once and for all by a Full Bench on an appeal. I am a little prejudiced about the utility of these State laws because I used them often to the benefit of my media clients when I was a lawyer.

Here are several passages from the reason for decision.

“Consideration

“[25] For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable (s 385(b)). Section 387 requires the Commission to take into account particular matters in considering whether it is so satisfied.

[26] The Commission must 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. In my view, Mercy clearly had a valid reason to dismiss Ms Roman, because she was unable to do her job. Ms Roman had not provided Mercy with evidence that she had been vaccinated against COVID-19, or that she had an appointment to receive such a vaccination by the required date, or that she had a medical exemption. Mercy was therefore prohibited by law from allowing her to attend its premises for work. I reject Ms Roman’s contentions that the exceptions in the Directions applied to her. These exceptions applied in limited and exceptional circumstances. Contrary to Ms Roman’s submission, she was not a worker who was ‘required to fill a vacancy to provide urgent care, to maintain quality of care and / or continue essential operations at the facility due to an emergency situation or a critical unforeseen circumstance’ (see s 7(2)(b) of the No 13 Direction). Ms Roman was not filling a vacancy, and she was not required for any of the specified purposes. Nor was Ms Roman a worker ‘required to perform urgent and essential work at the facility to protect the health and safety of workers or members of the public’. Ms Roman delivered meals, cleaned, and provided general support. This was important work. But it was not urgent and essential. If Ms Roman fell within the exceptions, so too would most other hospital workers. This would defeat the purpose of the Directions. Each of the exceptions concern exceptional circumstances. They did not apply to Ms Roman.

[27] To do her job, Ms Roman had to be able to attend the hospital. But from 15 October 2021, the hospital was required by law to prevent her from attending its premises for work. Ms Roman was within her rights to decline to become vaccinated or to provide Mercy with proof of vaccination. But her choice in this regard had the consequence that she rendered herself unable to perform her job. If Mercy had allowed Ms Roman to attend the workplace from 15 October 2021, it would have broken the law, and exposed itself to financial penalties.

[28] Ms Roman contended that the Directions were invalid. But as I observed in Stevens v Epworth Foundation [2022] FWC 593 at [26], the Directions have not been declared by a court to be invalid, and the Commission, which is an administrative tribunal, must carry out its functions according to law. It proceeds on the basis that legislation and delegated legislation is valid until a court says otherwise.

[29] I am satisfied that Mercy had a good and substantiated and therefore valid reason to dismiss Ms Roman: she was unable to do her job, because her employer was prohibited from allowing her to attend the workplace. This was a consequence of the personal choices she made. It is irrelevant that the employer did not rely on this at the time of dismissal. The Commission must decide for itself whether there was a valid reason for dismissal, not merely whether the reason invoked by the employer at the time was a valid reason. Incapacity to work was an obvious valid reason for dismissal. But it was not the only valid reason.

[30] Implied into the contract of employment is an obligation of an employee to obey the employer’s lawful and reasonable directions (Bayley v Osborne (1984) 4 FCR 141 at 145). The requirement that the direction be lawful has two dimensions. One is that the employer cannot demand that an employee act unlawfully. The other is that the direction must be within the scope of the contract of employment (see R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621-2 per, Dixon J). The latter reflects the ‘general rule … that a contract by which a person is employed in a specific character is to be construed as obliging him to render, not indeed all service that may be thought reasonable to render, but such service only as properly appertains to that character’ (see Commissioner for Government Transport v Royall (1966) 116 CLR 314 at 322, per Kitto J).

[31] Mercy’s direction did not require Ms Roman to act unlawfully. The question is whether it was within the scope of the contract of employment. In the present case, Mercy was required by law to ensure that Ms Roman did not attend its premises for work unless she had provided it with relevant vaccination-related evidence. Mercy directed Ms Roman to provide this evidence. This direction clearly appertained to her particular job; unless she followed the direction, she would not be able to do her job at all. In my opinion, a direction to an employee to do something that is a necessary condition for a state of capacity to do his or her job is a lawful direction. Whether it is also a reasonable one will depend on all the circumstances. For example, it might be the case that the employee has large amounts of accrued leave and requests to take such leave, and that work is quiet and the employer has no reasonable business grounds to decline the request, such that an insistence by the employer that the employee comply immediately with a direction related to a new ‘capacity requirement’ would be unreasonable. But that is not the case here. In my view, in the circumstances of this case, Mercy’s direction was reasonable. The Directions were akin to a new regulatory requirement or statutory qualification for a particular role. The employer directed Ms Roman to obtain the requirement or qualification so that she could continue to do the job that she was hired to do. It was reasonably within Ms Roman’s power to comply with it. She did not propose any reasonable alternatives. The proposition that she fell within the exceptions to the Directions was completely without merit, as was the notion that Mercy should make inquiries of government or facilitate some kind of complaint from Ms Roman. In her final oral submissions, Ms Roman suggested that she could have taken long service leave. But she did not apply to take leave at the time. Ms Roman did not comply with a direction that was lawful and reasonable in the circumstances.

[32] Accordingly, I conclude that Mercy had a second valid reason to dismiss Ms Roman, one which involved misconduct constituted by a refusal to follow a lawful and reasonable direction. I return to the question of the seriousness of the conduct below in connection with my consideration of s 387(h), ‘any other matters that the FWC considers relevant’.

[33] At the hearing, Mercy contended that it had a third valid reason for dismissing Ms Roman. In cross-examination, Ms Daniela Roman conceded that, with her mother’s agreement, she had recorded the meeting on 2 December 2021 on her telephone without the approval of the other participants. Mercy learned of the recording only later when references to a purported transcript of the meeting appeared in Ms Roman’s F2 application. Ms Daniela Roman said that it was her understanding that in Victoria it was not illegal to record a discussion to which one is party without the knowledge of the other party, and that her mother had agreed to this course in order to protect her interests.

[34] I agree with Mercy that Ms Roman’s secret recording of the meeting of 2 December 2021 was another valid reason for dismissal, and that it entailed misconduct. First, it is well-established that evidence of an employee’s misconduct that emerges after dismissal may be relied upon by an employer as a valid reason for dismissal in an unfair dismissal proceeding (see Lane v Arrowcrest Group Ltd (1990) 27 FCR 427 at 456); and Byrne and Frew v Australian Airlines Limited [1995] 185 CLR 410 at 467)). This is consistent with the principle that it is for the Commission to determine for itself whether there was a valid reason for dismissal, rather than confining itself to a narrower question of whether the reason relied on by the employer at the time of dismissal was valid. Secondly, I consider that, unless there is a justification, the secret recording of conversations in the workplace is highly inappropriate, irrespective of whether it constitutes an offence in the relevant jurisdiction. In this regard, I adopt the observations I made in Gadzikwa v Australian Government Department of Human Services [2018] FWC 4878 at [83]:

“The reason it is inappropriate is because it is unfair to those who are secretly recorded. They are unaware that a record of their exact words is being made. They have no opportunity to choose their words carefully, be guarded about revealing confidences or sensitive information concerning themselves or others, or to put their best foot forward in presenting an argument or a point of view. The surreptitious recorder, however, can do all of these things, and unfairly put himself at an advantage. Moreover, once it is known that a person has secretly recorded a conversation, this is apt to produce a sense of foreboding in others, an apprehension that they must be cautious and vigilant. This is potentially corrosive of a healthy and productive workplace environment. Generally speaking, the secret recording of conversations with colleagues in the workplace is to be deprecated.”

[35] Ultimately therefore Mercy had three valid reasons to dismiss Ms Roman.

[36] The FW Act requires the Commission to take into account whether an employee has been notified of a valid reason for dismissal and whether he or she was afforded an opportunity to respond to any reason related to capacity or conduct (ss 387(b) and (c)). Mercy’s correspondence with Ms Roman notified her of the proposed reason for dismissal related to her failure to follow a lawful and reasonable direction and gave her an adequate opportunity to respond. It also noted that the hospital had concerns that she had rendered herself unable to do her job. The latter was not a reason on which the employer ultimately relied. However I have concluded that incapacity was one of the valid reasons for dismissal. Ms Roman was, in substance, notified of this reason even though the employer did not rely on it at the time of dismissal. Ms Roman also had an opportunity to respond to this reason. In any event, whether Ms Roman should be regarded as having been notified of this reason and given a chance to respond to it does not affect my overall assessment of this matter. Ms Roman was of course not notified or warned of the third valid reason for dismissal because Mercy was not aware of it until after the dismissal had occurred.

[37] The Commission is required to consider whether an employer unreasonably refused to allow the employee to have a support person present to assist in discussions relating to the dismissal (s 387(d)). In this case, Mercy allowed Ms Daniela Roman to participate in relevant meetings. 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 Roman’s employment was not terminated for unsatisfactory performance. 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) and (g)). These matters carry no weight in the present case.

[38] The Commission is required to take into account any other matters that it considers relevant (s 387(h)). I take into consideration the fact that Ms Roman had concerns about the COVID-19 vaccinations and that these concerns were genuinely held. Ms Roman was entitled to her opinions. Equally, Mercy had to comply with the law. I also take into account the fact that Ms Roman had worked for Mercy for over twenty years and had a good employment record. She was ready and willing to work. But she was unable to work, because she could not attend the hospital for work, as a consequence of the decisions she had made.

[39] I also note that Ms Roman had been put on notice that she would need to provide vaccination evidence to do her job. When she did not provide the evidence by the required deadline, she became unable to work, but despite this Mercy did not act hastily. It suspended her on full pay for over a month. This allowed her further time to reflect on her options. Had Mercy taken a different course by deciding to dismiss Ms Roman earlier and on notice (as it might have done), Ms Roman would have been in much the same position.

[40] An important consideration is whether Ms Roman committed serious misconduct, such as to relieve Mercy from its obligation to pay notice to Ms Roman under s 117 of the FW Act (see s 123(1)(b), and the definition of serious misconduct in regulation 1.07). In my assessment, Ms Roman committed serious misconduct in two respects. First, her failure to follow a lawful and reasonable direction falls squarely within the definition of serious misconduct in regulation 1.07(3)(c) (which is mirrored in clause 8.2(d) of the Agreement). More specifically, it also falls within the definition in regulation 1.07(2)(a), because her conduct was ‘wilful or deliberate’ (the direction was given to Ms Roman several times, she understood it, and refused to follow it) and ‘inconsistent with the continuation of the contract of employment’. It was clear that Ms Roman could not continue to work for Mercy if she did not comply with the direction. Ms Roman refused to take the step required of her by her employer that would allow her to do her job. She exercised her private right to make particular personal choices. But her choices had inevitable implications for her employment. They were inconsistent with the continuation of her contract of employment, which required her to work as a hospital services attendant, at the hospital.

[41] Secondly, Ms Roman’s collusion in the secret recording of the meeting of 2 December 2021 amounted to serious misconduct. It was contrary to her duty of good faith to Mercy. No persuasive reason was offered to justify the recording. It was unfair to the other participants in the meeting. It was not reasonably necessary to protect any valid interest. This conduct warranted dismissal without notice. In this regard, I note the decision of the Full Bench in Schwenke v Silcar Pty Ltd [2013] FWCFB 9842, in which it was concluded that it was open to the member at first instance to determine that a secret recording made by an employee was contrary to his duty of good faith and fidelity to the employer and undermined the trust and confidence required in the employment relationship, and that this action had been grounds for summary dismissal (at [33]).

[42] I will briefly address some of the remaining contentions that were advanced by Ms Roman. First, I reject the submission that Mercy failed to comply with its consultation obligations under the Agreement. Clause 6 provides that where the employer ‘proposes a major workplace change that may have a significant effect on an employee or employees’, it will consult with the affected employees in the manner prescribed in the clause. It is questionable whether the change in this case fell within the definition of ‘major change’ in clause 6.2, but if it did, it was not one proposed by the employer, but imposed by the government. Mercy had no say in the matter. Its obligation was simply to comply with the law. Further, the consultation contemplated by clause 6 concerns cases where there is some possibility for employees and their representatives to influence the employer’s decision about the proposed outcome. In this case, the only lawful outcome was the employer’s compliance with the Directions.

[43] Secondly, I reject the contention that Mercy failed to comply with clause 8.3 of the Agreement by failing to take reasonable steps to ‘investigate’ Ms Roman’s response to its concerns about her conduct. Mercy did investigate and consider her response. It did not find Ms Roman’s arguments to have merit.

[44] Thirdly, I see no cogent basis for a contention that Mercy breached Ms Roman’s workplace rights. Although dismissal is a form of adverse action, Ms Roman was not dismissed because of any of the matters protected by Part 3-1. She was dismissed because she failed to follow a lawful and reasonable direction. And although the reason was not invoked at the time, it is clear that Ms Roman was also dismissed because she was unable to perform her job.

[45] Fourthly, I reject Ms Roman’s submission that Mercy did not allow her to make a complaint to the relevant secretary or council under s 185 of the PHW Act. Such a complaint is one that concerns the exercise of power by an authorised officer under that Act or its regulations. Ms Roman was not prevented from making a complaint. She was and is free to do so. Mercy was under no obligation to facilitate a complaint by Ms Roman to government, nor was it reasonable to expect Mercy to do so. I find illogical Ms Roman’s related contention, that somehow Mercy’s failure to facilitate her complaint to government meant that she was deprived of a real choice as to whether to get vaccinated. She was not deprived of anything. She chose not to get vaccinated.

[46] Fifthly, Ms Roman submitted that it was unfair that she received no response from Mercy to her contention that she fell within the exceptions to the Directions. I disagree. It was a submission devoid of merit. It was obvious that Ms Roman did not fall within the exceptions. It is not surprising, and not unreasonable, that Mercy did not respond to it.

[47] Finally, if I had concluded that the dismissal was unfair, I would have found reinstatement to be inappropriate, because Ms Roman remains unvaccinated. There is no evidence that she has a medical exemption. The Directions remain in force. Mercy would remain prohibited from allowing Ms Roman to attend the hospital to do her job. In addition, I would have declined to award any compensation to Ms Roman. To my mind, the only potential dimension of unfairness at issue in this case was whether it might have been harsh for Mercy to dismiss Ms Roman without notice. It was not. But had I reached a different conclusion, the logical outer limit of compensation would have been the five weeks’ wages that Ms Roman might have been paid in lieu of notice. In this regard however, it would have been relevant for the Commission to take account of the fact that Ms Roman would not have been able to work during any notice period. An employer is not required to provide payment in lieu of notice where the employee is unable to work during the notice period. More generally, a further problem confronting a claim for compensation would have been that Ms Roman produced no evidence that she took any steps to mitigate her loss (see s 392(2)(d)). In fact, according to Ms Daniela Roman, Ms Roman has not applied for any jobs at all. An order for compensation would have been inappropriate, and I would not have made one.

Conclusion

[48] Having regard to s 387 of the FW Act, I consider that Ms Roman’s dismissal was not harsh, nor was it unjust or unreasonable. It was not unfair. The application is dismissed.”

Roman v Mercy Hospitals Victoria Ltd (2022) FWC 711 31 March 2022 per Colman DP