Unvaccinated workers and working from home

These passages are from an unfair dismissal decision of the Fair Work Commission to the effect that the employer had a right to decline to exercise a discretion to permit an unvaccinated employer to work from home in circumstances in which the employer was not permitted by State government mandate to allow the employee to enter the workplace.

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

[32] To be a valid reason the reason must be “… sound, defensible or well-founded.” A reason which is “… capricious, fanciful, spiteful or prejudiced …” cannot be a valid reason.  35 The reason for termination must be defensible or justifiable on an objective analysis of the relevant facts.36 The valid reason for termination is not to be judged by legal entitlement to terminate an employee, “… but [by] the existence of a reason for the exercise of that right” related to the facts of the matter.37 Ascertainment of a valid reason involves a consideration of the overall context of the “practical sphere” of the employment relationship.38

[33] It is not the Commission’s role to “stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court.”39 However, the Commission “must consider the entire factual matrix in determining whether an employee’s termination was for a valid reason.”40

[34] There were no notable issues associated with Ms Gee’s employment before the commencement of the pandemic.

[35] Ms Gee contends that Eastern Health’s decision in March 2020 regarding working from home amounts to a change to the terms of her employment contract. Mr Loos argues that what actually occurred is that Eastern Health staff;

“… were offered the option to work from home if they could. This invitation was issued because in Eastern Health was keen to ensure its workforce was safe and, as best as we could, free from infection. This was a temporary arrangement caused by the COVID-19 pandemic and the fear of a mass infection in the community. The invitation to work from home was never intended as an enduring or irreversible change/variation to her contract.” 41

[36] The precise notification to staff or to Ms Gee about this subject is not before me.

[37] In the absence of specific evidence that Ms Gee’s contract had been changed to allow permanent working from home at her election, I do not accept her contract of employment was changed in the way she contends. The proposition would be counter-intuitive at several levels, including for a major public health authority which is always going to be dependent on in-person interactions with patients and staff for the great majority of its work. Despite the community and professional commentary about potentially profound changes to work that have been or will be wrought from the pandemic a decision to allow an employee to permanently choose where they work will require proof of actual conduct that reasonably allows a finding of this nature. There is none in Ms Gee’s case.

[38] Despite Ms Gee questioning the legal basis of the Directions to Eastern Health before being dismissed, she specifically did not do so in these proceedings. 42

[39] Eastern Health note the purpose of the Directions as being to impose obligations on specified facilities “in relation to the vaccination of workers, in order to limit the spread of severe acute respiratory syndrome coronavirus (SARS-CoV-2) within the population in these settings” and that it in turn was required to issue the relevant instructions.

[40] The relevant text of Direction No 4 requires a specified facilities operator to collect, record and hold vaccination information about workers who are or may be scheduled to work at the facility, and then to prevent entry of an unvaccinated worker after a relevant date. An unvaccinated person is defined as a person “who has not received a dose of a COVID-19 vaccine and is not an excepted person”, with an excepted person being one who has received a medical practitioner’s certificate that they are unable, due to a medical contraindication to receive a dose, or a further dose, of a COVID-19 vaccine.

[41] Ms Gee agrees she made a conscious decision in October 2021 and has not received any COVID-19 vaccinations and is not an excepted person. 43

[42] Aside from the matter of whether her contract of employment had changed Ms Gee argued she could perform her work from home and that Eastern Health could allow that to occur. It exceeded the Directions by not allowing her to work from home when it could. 44 This was a unilateral extension of the Directions.45 It held a discretion to allow her to work from home, a discretion which continues to be afforded to vaccinated employees of Turning Point.”46

[43] Ms Gee worked exclusively at the Turning Point office in Richmond, other than the period she worked from home and argued that her “position at Turning Point is in an office facing a computer, I have no face-to-face patient nor client contact and barely any phone contact with clients”. 47

[44] It will be recalled that the Victorian Government Directions associated with vaccination and other matters developed over a short time, responding to rapidly changing medical and community needs.

[45] Eastern Health referred in its primary case to two instruments as particularly applicable in this case, each being a legislative instrument made pursuant to the PHW Act, the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 4) (Direction No 4) and the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 10) (Direction No 10) (CHO Directions).

[46] After the hearing, and at my request, Eastern Health clarified that the Directions in operation at the date of the dismissal were the Victorian Chief Health Officer Directions – Covid-19 Mandatory Vaccination (Specified Facilities) Directions (No 12) (Direction No 12). Direction No 12 commenced operation at 6:00 PM on 5 November 2021 and revoked the Victorian Chief Health Officer Directions – Covid-19 Mandatory Vaccination (Specified Facilities) Directions (No 11) (Direction No 11).

[47] Direction No 12 continues many of the obligations of the earlier instruments and those referred to in the various correspondence. In particular, Direction No 12 maintained an obligation on the operator of a specified facility to collect, record and hold vaccination information about workers and to “take all reasonable steps to ensure that a worker who is unvaccinated does not enter, or remain on, the premises of a specified facility for the purposes of working at the facility”. It continued to be the case that a person is unvaccinated if they have not received a dose of a COVID-19 vaccine and are not an excepted person.

[48] Mr Harrington urged a purposive construction be given to the Directions with them being for a socially beneficial purpose. With reference to the PHW Act he urged account be taken that one of its purposes is to foster and advance public health and wellbeing in the State of Victoria. The entirety of Eastern Health should be regarded as a healthcare facility and to not do so may lead to a “relatively perverse outcome” in which different physical spaces in the overall facility were treated differently. Such would “undermine fundamentally the very object or purpose of the direction which is to apply to healthcare facilities as defined”. 48

[49] When the Eastern Health CEO wrote to all staff on 1 October 2021 Direction No 4 was operative. By the time of the show cause letter on 25 October 2021, Direction No 10 was operative. Shortly after the show cause letter Direction No 11 commenced operation, and by the time of Ms Gee’s dismissal on 15 November 2021, Direction No 12 was operative.

[50] The importance of these version changes is that Directions No 11 and 12 differed materially to the earlier versions with each including the following term dealing with work from home which had not featured in the earlier versions;

“6 Limits on work outside ordinary place of residence

(1) If:

(a) a person is a worker; and

(b) it is reasonably practicable for the person to work at the person’s ordinary place of residence,

an operator of a specified facility must take all reasonable steps to ensure that the person does not enter, or remain on, the premises of a specified facility for the purposes of working at the facility, unless:

(c) the operator collects, records and holds vaccination information about the person; and

(d) the person is:

(i) fully vaccinated; or

(ii) an excepted person.

Note: this obligation does not apply in relation to a person who is a worker, if it is not reasonably practicable for the person to work at the person’s ordinary place of residence.

(2) For the purposes of complying with this clause, an employer is authorised to use any information about a worker that it holds under subclause (1)(c).”

[51] Directions No 10, 11 and 12 each provide that an operator of a specified facility, being Eastern Health, must collect, record and hold vaccination information about a worker if they are or may be scheduled to work at the facility (Clause 4) and must take reasonable steps to prevent entry of “unvaccinated workers” as defined (Clause 5). If no vaccination information is held about a particular worker, the worker must be treated as an unvaccinated worker (Clause 5(3)). An unvaccinated worker must be prevented from entering or remaining upon Eastern Health’s premises for the purposes of work. There are exceptions to that rule pertaining either to the need to provide urgent specialist clinical or medical care, to respond to an emergency or to perform urgent and essential works to protect health and safety or assets and infrastructure. Ms Gee is in none of the categories of exceptional circumstance.

[52] Without the new clause 6 set out above, the construction of Directions No 10, 11 and 12 provide limited benefit to Ms Gee since without the provision by her of vaccination information as defined, she must be treated by Eastern Health as an unvaccinated worker. Eastern Health could if it wished allow Ms Gee to work from home, however that would be entirely a matter of its own discretion in the absence of any contractual, statutory or industrial instrument entitlement on the subject.

[53] That situation however potentially changed with the commencement of Direction No 11 which for the first time included a recognition there may be some circumstances in which it is reasonably practicable for an unvaccinated worker to work at their ordinary place of residence but with the limitation the person may not enter or remain on specified operator’s premises for the purposes of work.

[54] Construction of a statutory instrument proceeds on the basis that its provisions are intended to give effect to harmonious goals; where conflict appears it must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions; and construction must strive to give meaning to every word of the provision. 49

[55] Consideration of the Directions No 11 and 12 as a whole leads directly to the proposition that while no “unvaccinated worker” may attend or remain on the premises of a specified facility such as Eastern Health for the purposes of work, other than in the limited cases of an exceptional circumstance, there may be circumstances in which it is reasonable for an “unvaccinated worker” to perform work from their place of residence.

[56] In considering this matter I note the scale of Eastern Health’s operations. Mr Loos’ letterhead refers to six general Eastern Health sites and two state-wide services, including Turning Point. 50 The Employer Response Form (the Form F3) states the entity employed 10,960 employees at the time Ms Gee was dismissed.

[57] There is no evidence that Eastern Health considered at any time the content of Directions 11 and 12. In fact, its case to the Commission centred on the content of Direction No 10 when that was plainly not the instrument applying at the time Ms Gee was dismissed. Directions 11 and 12 at the least implied there may be circumstances in which it would be reasonably practicable for an employee to work at their ordinary place of residence and that this may reasonably be a basis not to demand evidence of their vaccination status.

[58] The evidence does not support a finding that Eastern Health gave regard to that provision.

[59] While so, Eastern Health’s case is that Ms Gee both did not comply with its directive to provide evidence of her vaccination status, which it was entitled to give, and that, ultimately, she could not perform the inherent requirements of her job since she was required, on occasion at least, to attend its premises.

[60] When it gave its directive to staff generally, and Ms Gee specifically, Eastern Health was obliged to follow Direction No 4 which did not include the clause 6 referred to above. There is no question that Eastern Health was at that time obliged to issue a direction for the provision of vaccination information if it apprehended a worker was or might be scheduled to work at one of its sites. Ms Gee initially demurred and eventually refused as well as stating that she did not intend to be vaccinated. She put forward arguments that she did not intend to attend her work premises which were rejected by Eastern Health as being contrary to its requirements. The show cause letter, given at a time when Direction No 10 was operative, laid plain that Eastern Health considered working from home was not sustainable on a permanent basis.

[61] Despite Eastern Health’s failure to take into account the content of Directions No 11 or 12 when it decided to dismiss Ms Gee, that omission does not lead to a finding there was no valid reason for her dismissal.

[62] Ms Gee’s evidence was that in 2021 she had begun returning to work on Eastern Health’s premises. Whereas in 2021 she had initially attended the premises one day a month, her attendance was greater in the time before she was terminated, giving this evidence in cross-examination by Mr Harrington, Counsel for Eastern Health.

“You said ‘mainly working from home’ because the Commissioner asked you a couple of questions before in your evidence-in-chief about your attendance at the work premises after March 2020. Do you remember being asked about that? Yes, I said something like initially one day a month I came in.

That’s right? Yes.

Then, in 2021, you came in a bit more than that, didn’t you? Yes, towards – before I was terminated, it would’ve been Monday and Friday.

When you were coming in to work in that fashion, that was entirely consistent with the way that you had worked prior to 30 March 2020, wasn’t it? I was doing the same work, yes.” 51

[63] Eastern Health argued it could not give an assurance Ms Gee would never be required to attend her workplace. A practical example arose in March and April 2021 when Eastern Health’s operations were impeded by a cyber-attack. A consequence of the attack included significant disruption, as described by Mr Loos, in which;

“all systems and remote access to staff was interrupted for a 5-week period. All staff were required on site to access systems and perform tasks until remote access was restored some 5 weeks after the initial incident”. 52

[64] I accept that at the time Eastern Health issued the show cause letter it required Ms Gee to be able to attend the workplace from time to time, even if that was infrequently. A consequence of the Directions applicable at that time, 25 October 2021, was that Ms Gee must have provided her vaccination or excepted person status and that not to do so meant she would potentially be unable to fulfil the inherent requirements of their job. One of those requirements was that she be ready, willing and available to attend their place of work as and when required.

[65] The termination letter sent to Ms Gee sets out that she was dismissed because Eastern Health had a statutory obligation “to comply with the COVID-19 Mandatory Vaccination Directions (which prohibit unvaccinated employees from attending Eastern Health facilities to work, unless medically exempt), and the fact that we have no discretion to waive these requirements” and that;

“Despite ongoing opportunities for you to provide evidence that you have complied with the directions, unfortunately you have failed to do so. Under these circumstances you cannot lawfully fulfil the requirements of your employment contract with us”. 53

[66] The statement that “we have no discretion to waive these requirements” is plainly wrong given the provisions of the Directions applicable at the time and should have been expressed as a statement that Eastern Health had decided not to exercise its discretion to allow Ms Gee to entirely work from home since it was an inherent requirement for her to be ready, willing and available to attend their place of work as and when required. Despite that error, the entire factual matrix of this matter allows a finding Eastern Health held a valid reason for Ms Gee’s dismissal. Eastern Health’s failure to have regard to the content of the Directions applicable on the date of dismissal and the error contained in the letter of termination are not sufficient to unseat such finding.

[67] On an unrelated matter I note that Ms Gee sought and obtained an Order from the Commission of the production of office entry records for other employees working from Richmond. She sought to show that other employees were making rare or no trips into the office at about the same time she was working exclusively from home. At best the material is ambiguous and incomplete, with it being unclear whether the relevant employees were vaccinated or not, as well as it being likely that swipe cards may not have been used for all entries and exits. I draw no conclusions about this material.

[68] It follows from the matters set out above that I accept Eastern Health had at the time of Ms Gee’s dismissal a valid reason for such related to her capacity. The valid reason was that without provision to Eastern Health of her vaccination information Ms Gee could not fulfil the requirements of her job.”

Gee v Eastern Health (2022) FWC 932 delivered 22 April 2022 per Wilson C