Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Alexander James Marriott
v
Baptcare Limited
(U2021/10991)

Application for an unfair dismissal remedy

Introduction

[1] On 30 November 2021 Alexander James Marriott (Applicant) made an application to the Fair Work Commission (Commission) pursuant to section 394 of the Fair Work FW Act 2009 (FW Act) for a remedy in respect of his dismissal by Baptcare Limited (Baptcare/Employer/Respondent).

[2] At the time of his dismissal the Applicant was employed by the Respondent in the role of Customer Service Support. The Applicant was dismissed because he failed to comply with Baptcare’s directions relating to the COVID-19 vaccination which resulted in him being unable to attend Baptcare’s physical locations if he were required to do so.

[3] On 14 December 2021 Baptcare filed a response to the unfair dismissal application. No Jurisdictional objections were raised.

[4] Attempts at conciliation were attempted, but the matter remained unresolved.

[5] Consequently, the matter was listed for a determinative conference.

Permission to be represented

[6] At the mention/directions hearing on 22 December 2021, the Respondent made an application for permission to be represented by a lawyer. A determination of this issue is necessary to ensure that the manner in which any conference is conducted is fair and just, Warrell v FWC [2013] FCA 291.

[7] In Warrell v FWC the Federal Court held that,

A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission…”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.[at para 24]

[8] Section 596 of the FW Act provides as follows:

Representation by lawyers and paid agents


(1)    Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.


(2)    The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:


(a)    it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or


(b)    it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or


(c)    it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

[9] Having heard from the parties, on 22 December 2021 I determined that allowing the Respondent to be represented by a lawyer would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter and the novel nature of the dismissal arising in the context of the COVID-19 Public Health Orders.

Conference or Hearing

[10] On 22 December 2021 I also sought submissions from the parties about whether the Commission should conduct either a determinative conference (section 398) or a hearing (section 399) in relation to the matter.

[11] Taking account:

a) any differences in the circumstances; and
b) the wishes;

of the parties and considering whether a hearing would be the most effective and efficient way to resolve to the matter, I decided to conduct a Determinative Conference. The matter was programmed for a Determinative Conference on 8 February 2022.

The Determinative Conference

[12] At the Determinative Conference on 17 March 2021:

a) the Applicant represented himself, gave evidence on his own behalf and called Ms Rita Lancaster, a Customer Service Support worker with the Respondent to also give evidence. Both the Applicant and Ms Lancaster were cross-examined.


b) the Respondent was represented by Mr Joel Zyngier, Principal at Gilchrist Connel. Mr Zyngier called four witnesses (all of whom were required for cross-examination) as follows:


i. Michael Wilson, General Manager of Services and Operations;

ii. Katiana Velcek, People and Culture Business Partner;

iii. Melanie Fisher, People and Operations Manager; and


iv. Nicholas Claringbold, Divisional Manager of In-Home Care.

[13] In advance of the hearing the parties filed witness statements, submissions and documents. During the hearing an additional document was tendered as an exhibit. Consequently, in coming to this decision I have had regard to the following materials:

Background

[14] The following matters were either agreed between the parties or not otherwise substantially contested. Consequently, I make the following findings of fact:

a) On 13 May 2019 the Applicant commenced employment with the Respondent in the role of Customer Service Support (CSS) on a full-time basis. 1
b) From January 2020 to the time of his dismissal, the Applicant was engaged on a part-time basis performing 22.8 hours of work per week. 2
c) The Applicant worked in the North/West CCS team and was remunerated at a rate of $29.55 per hour exclusive of superannuation. 3
d) In or around 2016-2017 Baptcare introduced the ‘Project Flex’ initiative which provided employees with flexibility around where they work and organised roles by reference to the onsite attendance requirement of each role. 4
e) Prior to the COVID-19 pandemic the Applicant’s role was designated as a ‘Level One’ role meaning the Applicant was at all times required to work out of a physical Baptcare office located in Bundoora. 5
f) On 17 March 2020 the Applicant was directed to work from home due to the COVID-19 lockdown measures. 6
g) In or around September 2020 Baptcare decided to enlarge its commitment to remote working and further reduce its office footprint. 7
h) On 3 February 2021 Mr Claringbold sent an email to all In-Home Care staff enclosing a document entitled ‘Flex Ways of Working – In Home Care’ advising staff that they were to continue to work remotely but would be required to come into the office/shared workspaces on an as needs basis, which was to be at least once a month for team meetings and training as required. 8
i) In March and April 2021 the In-Home Care Team returned to in-person meetings and the Applicant attended the North-West team’s monthly meetings in person. 9
j) In the second half of 2021, Baptcare’s Bundoora Office was closed down. 10
k) In or around mid-September 2021, the Victorian Chief Health Officer issued directions requiring certain workers to be vaccinated against COVID-19. 11
l) On 22 September 2021 Baptcare’s Executive Leadership Team advised Ms Fisher of their determination to introduce an organisational wide COVID-19 vaccination policy. 12
m) On 1 October 2021 Mr Claringbold sent an email to all In-Home Care employees, including the Applicant, advising them that all Baptcare workers would be required to have received their first dose of the COVID-19 vaccination by 15 October 2021 and a second dose by 26 November 2021 to continue to work. 13
n) On 4 October 2021 the Applicant sent a reply email to Mr Caringbold with a list of questions regarding the safety of the approved COVID-19 vaccines. 14
o) The questions were a template downloaded by the Applicant from the internet. 15
p) The Applicant did not receive a response to the questions raised. 16
q) On 4 October 2021 a meeting was held with a working group established by Ms Fisher where the integration of the mandatory COVID-19 requirements into Baptcare’s current Vaccination Policy against influenza was discussed. 17
r) On 6 October 2021 Ms Fisher sent an update to the Divisional Managers stating that:

i. an internal email had been drafted for distribution to staff at Baptcare;
ii. a media release had been drafted to be published on 8 October 2021; and
iii. the draft COVID-19 Vaccination Policy had been escalated for approval. 18

s) On 6 October 2021 Graham Dangerfield, Chief Executive Officer at Baptcare, sent an email to all Baptcare Employees stating that 100% of Baptcare employees will be required to be fully vaccinated against COVID-19. 19
t) On 11 October 2021 the Executive Leadership Team approved the updated Vaccination Policy. 20
u) On 14 October 2021 the updated Vaccination Policy was uploaded to Baptcare’s SharePoint intranet site. 21
v) On 15 October 2021 Eveline Beaumont, Operations Manager, informed the Applicant that he would no longer be able to work for Baptcare until he provided proof of his vaccination status. 22
w) On 15 October 2021 the Applicant replied to Ms Beaumont seeking answers to his previous questions regarding the safety of the vaccines. 23
x) On 15 October 2021 Ms Beaumont sent a request to Ms Velcek seeking advice as to how to appropriately deal with the Applicant’s communications. Ms Velcek then sought advice from Workplace Relations. 24
y) On 16 October 2021 Ms Beaumont instructed the Applicant to not log in from 18 October 2021 as he was unable to work. 25
z) On 18 October 2021 the Applicant logged in and continued to work as normal. 26
aa) On 18 October 2021 the Applicant sent an email to Ms Beaumont attaching a letter titled ‘Your economic duress is negative my ability to decline a Covid-19 vaccine’. 27
bb) The letter was a template downloaded by the Applicant from the internet. 28
cc) On or around 19 October 2021 Ms Beaumont commenced a period of leave and in her absence the conduct of the matter was handed to Mr Claingbold. 29
dd) On 19 October 2021 the Applicant’s IT access was blocked by Baptcare. 30
ee) On 20 October 2021 the Applicant was advised by Mr Claingbold that he would be stood down and was invited to attend a consultation meeting on 21 October 2021 to discuss his position on Baptcare’s direction to be vaccinated. 31
ff) On 20 October 2021 the Applicant accepted the invitation by reply email and enclosed his position regarding the COVID-19 vaccine. 32
gg) On 21 October 2021 the Applicant attended a Microsoft Teams meeting with Jennifer Haydock, Workplace Relations Business Partner, Mr Claringbold and Ms Velcek where it became clear that the Applicant had no intention of being vaccinated. 33
hh) After the meeting it was agreed that Baptcare would move to the show cause process with the Applicant. 34
ii) On 27 October 2021 Ms Velcek sent an email to Mr Claringbold seeking to terminate the Applicant’s and two other employees’ employment, subject to the outcome of a show cause process. 35
jj) On 27 October 2021 Mr Claringbold forwarded Ms Velcek’s email to Mr Wilson confirming that he was supportive of the terminations and seeking Mr Wilson’s approval to move forward with the terminations. 36
kk) On 27 October 2021 Mr Wilson emailed Mr Claringbold seeking confirmation as to the value of any termination related payments to be made to the affected employees and his view as to whether any of the affected employees were likely to bring claims against Baptcare. 37
ll) On 27 October 2021 Mr Claringbold replied to Mr Wilson stating that 4 weeks’ pay in lieu of notice would need to be paid out in respect of each employee’s dismissal and that he suspected one of the affected employees might make a claim against Baptcare. 38
mm) On 28 October 2021 Mr Wilson approved Mr Claringbold’s recommendation to dismiss the Applicant in anticipation that the Applicant would not provide evidence of being vaccinated in response to a show cause letter. 39
nn) On 28 October 2021 Mr Claringbold sent the Applicant an email enclosing a show cause letter. 40
oo) On 4 November 2021 the Applicant sent a response to Mr Claringbold refusing to provide his vaccination status. 41
pp) On or around 4 November 2021 Ms Haydock recommended the Applicant’s employment be terminated on the basis that the Applicant had not:

i. provided the required evidence that he had received a COVID-19 vaccination;
ii. expressed an intention to receive the COVID-19 vaccination with currently available vaccines within a reasonable period of time; or
iii. provided evidence of a valid medical exemption to the COVID-19 vaccine. 42

qq) On 10 November 2021 Mr Claringbold sent an email to the Applicant attaching a letter of termination. 43
rr) The Applicant was paid 4 weeks in lieu of notice and all of his unpaid entitlements. 44
ss) From 10 November 2021 to 24 February 2022 there were no requirements for north/west CSS employees to attend in-person. 45

[15] The Applicant submits that he was unfairly dismissed and seeks an order that he be reinstated.

Protection from Unfair Dismissal

[16] An order for reinstatement or compensation may only be issued where the Commission is satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.

[17] Section 382 sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

[18] There is no dispute, and the Commission, as presently constituted, is satisfied, the Applicant has completed the minimum employment period, and earned less than the high-income threshold. Consequently, the Commission, as presently constituted, is satisfied the Applicant was protected from unfair dismissal.

[19] I will now consider if the dismissal of the Applicant by the Respondent was unfair within the meaning of the FW Act.

Was the dismissal unfair?

[20] A dismissal is unfair if the Commission is satisfied, on the evidence before it, that all of the circumstances set out at s.385 of the FW Act existed. Section 385 provides the following:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

Was the Applicant dismissed?

[21] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for purposes of Part 3–2 of the FW Act.

[22] In the present matter it is common ground that the Respondent dismissed the Applicant.

[23] Consequently, the Commission, as presently constituted, finds that the Applicant was dismissed from his employment with the Respondent within the meaning of s.386 of the FW Act.

Was the dismissal consistent with the Small Business Fair Dismissal Code?

[24] A person has not been unfairly dismissed where the dismissal is consistent with the Small Business Fair Dismissal Code (the Code).

[25] In the present matter the Respondent was not, at the time of the dismissal, a small business. At the time of the dismissal the Respondent employed over 15 people.

[26] Consequently, the Commission as presently constituted, finds the Respondent was not a small business employer within the meaning of s.23 of the FW Act.

Was the dismissal a genuine redundancy?

[27] The Respondent did not submit I should dismiss the application because the dismissal was a case of genuine redundancy. Genuine redundancy is not relevant in the present matter.

Harsh, unjust or unreasonable

[28] Having been satisfied of each of s.385(a),(c)-(d) of the FW Act, the Commission must consider whether it is satisfied the dismissal was harsh, unjust or unreasonable. The criteria the Commission must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the FW Act:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(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); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(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; and

(h) any other matters that the FWC considers relevant.”

[29] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 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] I am under a duty to consider each of these criteria in reaching my conclusion. 46

[31] The Applicant submits the dismissal was harsh, unjust or unreasonable because:

“According to the Fair Work website (https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace/covid-19-vaccinations-workplace-rights-and-obligations#requiring-employees-to-be-vaccinated), which recommends dividing workplaces into ‘4 tiers’, my work for Baptcare Limited would quite clearly fall under ‘Tier 4’: ‘Tier 4 work, where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).’ As such, the requirement for me to be vaccinated and consequent termination of my employment was altogether harsh, unjust and unreasonable. Baptcare have attempted to argue that they pursue a ‘hybrid mode of work where no employee works exclusively from home, rather they must be able to attend in-person to perform their roles as required’ (Troy Gread’s F3 response form), however I had been working almost exclusively from home since the start of the pandemic (March 2020), with the exception of the odd monthly team meeting. However, there was always the facility at these monthly team meetings for people to attend remotely via web conference, and this often happened for other employees. There was nothing inherent to my role that required me to attend face to face meetings. Training could also be undertaken remotely, and in fact did.” 47

[32] The Respondent submits the dismissal was not harsh, unjust or unreasonable because:

1. “… it had two valid reasons for dismissing the Applicant. One of those reasons went to matters of conduct, the other to capacity. The Respondent relies upon each and alternatively both in justifying the Applicant’s dismissal.
2. In Selvachandran v Peterson Plastics Pty Ltd [1995] IRCA 333 [at 373] Northrop J held that any reason for dismissal must be “sound, defensible and well founded” and cannot be “capricious, fanciful, spiteful or prejudiced.”
3. Having regard to the following paragraphs of the letter of termination issued to the Applicant on 10 November 2021:

After careful consideration of the information provided to Baptcare by you during this process, and in accordance with Baptcare obligations to comply with the Victorian Government COVID-19 Mandatory Vaccinations (Workers) Directions (No 5) and the Baptcare Vaccination Policy to evidence COVID-19 vaccination, we advise that your employment with Baptcare has been terminated as of 10 November 2021.

As you failed to provide Baptcare with evidence that you have received at least your first dose of a COVID-19 vaccine, or evidence you qualify for one of the recognised exceptions in the Victorian Government Public Health Order Directions, and based on your instructions provided in the consultation meeting of 21 October 2021 that you refuse to be vaccinated, Baptcare are unable to lawfully permit you to perform your duties as a Customer Service Support – IHC.

it is plain to see that the reasons for the Applicant’s dismissal involved his:

i. refusal to obey the Direction (being a valid reason relating to conduct); and

ii. inability to perform the inherent requirements of his role (being a valid reason relating to capacity).

4. Each of these reasons was “sound, defensible and well founded” and not “capricious, fanciful, spiteful or prejudiced.”
5. These submissions deal separately with each of these reasons.

Refusal to obey lawful and reasonable directions

6. Each aspect of the Direction issued by the Respondent was both lawful and reasonable and the Applicant’s refusal to comply with such Directions amounted to misconduct warranting dismissal.
7. By reason of the application of Public Health Orders, each aspect of the Direction was both lawful and reasonable (and further, necessary) in order for the Respondent to comply with its obligations under the Public Health Orders.
8. By operation of section 8(8), the Public Health Orders applied to employers of social and community service worker(s). Meanwhile, pursuant to section 9(30)(a)(viii) of the Public Health Orders “social and community service worker means a person who works in connection with: aged care services”.
9. By reason of nature of the Applicant’s CSS (IHC) role and the operations conducted by the In Home Care Division in which he worked, the Applicant was performing work in connection with the delivery of aged care services.
10. The term ‘in connection with’ has been given broad meaning. In Harnischfeger of Australia Pty Ltd v Construction, Forestry, Mining and Energy Union (C2005/3254) [at 87], the Full Bench of the Fair Work Commission observed, when considering the proper construction to be given to the words “in connection with” in the context of the phrases use in the respondent union’s rules:

“…these are words of expansion and allow a finding of eligibility even if the employees in question are not “in” the relevant industry. As Wilson J (with whom Deane and Dawson JJ agreed) said in the Argyle Diamond case:

“The cases establish that one may be employed in connexion with the mining industry notwithstanding that one is merely developing the infrastructure which will be necessary to support the actual mining when it commences and notwithstanding that one is engaged, not in the process of extracting the ore from the mine, but in its subsequent treatment. A sufficient connexion may therefore be found in an occupation which takes place either before or after the actual work which itself identifies the industry in question.”

11. The Respondent submits that the Applicant, by reason of the nature of his duties and responsibilities he performed (which included the provision of customer and administrative support to recipients of in home aged care) was working in connection with aged care services delivered by the Respondent to aged persons receiving in-home care - and indeed, delivering those services himself.
12. The Respondent therefore further submits that the Applicant was a Social and Community Service Worker within the meaning of the Public Health Orders.
13. Meanwhile, insofar as it was an employer of the Applicant, the Respondent was an employer within the meaning of the Public Health Orders.
14. The Public Health Orders imposed upon the Respondent certain “obligations … in relation to the vaccination of [its] workers, in order to limit the spread of … [COVID-19]… within the population of those workers”. Those obligations were as follows:

PART 2 — EMPLOYER OBLIGATIONS

4 Employer must collect, record and hold vaccination information

Vaccination information

(1) If a worker is, or may be, scheduled to work outside the worker’s ordinary place of residence on or after the relevant date, the employer of the worker must collect, record and hold vaccination information about the worker.

Booking information — partially vaccinated and unvaccinated workers

(2) If the employer collects information that a worker is partially vaccinated, the employer must also collect, record and hold information about whether that worker has a booking to receive, by the second dose deadline, a dose of a COVID-19 vaccine that will cause the worker to become fully vaccinated.

(3) If the employer collects information that a worker is unvaccinated, the employer must also collect, record and hold information about whether that worker has a booking to receive, by the first dose deadline, a dose of a COVID-19 vaccine that will cause the worker to become partially vaccinated.

Timing

(4) An employer must comply with the obligations in subclauses (1) to (3) as soon as reasonably practicable after the commencement of these directions.

Exception

(5) Subclauses (1) to (4) do not apply if the employer already holds vaccination information about a worker who is, or may be, scheduled to work outside the worker’s ordinary place of residence on or after the relevant date.

and…

5 Employer must ensure unvaccinated workers do not work outside ordinary place of residence

No work outside ordinary place of residence

(1) On or after the relevant date, an employer of a worker must not permit a worker who is unvaccinated to work for that employer outside the worker’s ordinary place of residence.

(2) For the purposes of subclause (1), if an employer does not hold vaccination information about a worker, the employer must treat the worker as if the worker is unvaccinated.

(3) Despite subclause (1), an employer of a worker may, between the relevant date and the first dose deadline, permit a worker who: (a) is unvaccinated; and (b) has a booking to receive, by the first dose deadline, a dose of a COVID-19 vaccine that will cause the worker to become partially vaccinated, to work for that employer outside the worker’s ordinary place of residence.

where, Relevant Date, was defined to mean 15 October 2021, first dose deadline was defined to mean 22 October 2021, and second dose deadline was defined to mean 26 November 2021.

15. Save for variances in the dates by which vaccination was required, the Direction mirrored the requirements imposed on the Respondent by the Public Health Orders.
16. In order for the Public Health Orders to provide a lawful and reasonable basis for the Direction, the Applicant must have been “scheduled to work outside [his] ordinary place of residence on or after [15 October 2021]”.

The Applicant was required to attend work at the Respondent’s physical locations

17. The Applicant was required to be able to attend work at the Respondent’s physical locations
18. The Applicant submits that he was performing his role remotely from home and had been for some time. He further submits that by reason of this fact, the Public Health Orders did not apply to him.
19. Although the Applicant performed many aspects of his role remotely from home, the Applicant did not do so exclusively. So much is already admitted by the Applicant himself at paragraph 6D of his Outline of Argument: Merits, where he states:

“I had been working almost exclusively from home since the start of the pandemic (March 2020), with the exception of the odd monthly team meeting.”

20. The available evidence demonstrates that Applicant’s CSS (IHC) role was flexible as to location of work. Such flexibility was by reason of an initiative by the Respondent, introduced in late 2016, known as Project Flex. The purpose of project flex was to provide greater flexibility to employees as to when and how they work, and to reduce the Respondent’s overall office footprint.
21. Notwithstanding such flexibility, the Applicant’s role inherently required him to maintain a constant readiness, willingness and ability, to attend for work outside his primary residence as directed.
22. The Respondent submits that the source of the inherent requirement was contractual, finding its underpinnings in the wording of clause 1.6 of the Employment Agreement which defines the Applicant’s location of work not by reference to any single physical location, but rather to a division and region: “In Home Care – Northern Metropolitan”.
23. The Respondent therefore posits that the proper construction to be given to the clause is that it defines the location of work as northern metropolitan Melbourne, allowing the Respondent to exercise a managerial prerogative as to precisely where within that region the Applicant is required to work.
24. Policies and procedures developed by the Respondent and in place at the time of the dismissal (and issuing of the Direction), further develop the inherent requirement. Such documents include:

a) the ‘Flex Ways of Working – In Home Care: Principles, Practices & FAQ’s’ document, which unequivocally stated:

“Where instructed to attend an office or meeting location, it is expected that you will.”

b) the ‘Project Flex: Flexible Working Handbook’, which identifies key principles of Project Flex as being:

“Everyone [will be] assigned a base hub/office”;

“[Everyone will be expected to] visit other hubs when needed”

25. Pursuant to clause 7 of his Employment Agreement, such policies constituted lawful and reasonable directions by the Respondent and the Applicant was expected to familiarise himself with them, as and when they may be added to the Respondent’s intranet.
26. Consistent with the inherent requirement, the Applicant has been expected to perform his role from a variety of locations during the course of his employment. Specifically:

a) from the commencement of his employment in May 2019 to March 2020, the Applicant’s base hub/office was designated as the Respondent’s Bundoora offices and he was required to work from that location for the majority of his time;
b) from March 2020, due to restrictions arising from the pandemic, the Applicant was asked to work remotely from home and predominantly did so until his dismissal.
c) In around March 2021, due to an easing of restrictions, the Applicant was required to start attend regular in person meetings with his team. Such meetings were conducted monthly at the Respondent’s offices or other Respondent sites including Rosanna Baptist Church and then Baptcare Wattle Grove.

27. Although the Respondent submits that the Applicant’s location of work was a general area, to be defined by the Respondent at its sole discretion from time to time, should the Fair Work Commission disagree with this submission and instead accept, as the Applicant contends, that his location of work was his primary place of residence (which the Respondent denies), then the Respondent refers to and relies upon the balance of clause 1.6 of Employment Agreement which confers upon the Respondent a discretion to change the Applicant’s location of employment as and when it requires.
28. While the Respondent accepts that such a discretion was not infinite, and was subject to certain limitations including by reference to reasonableness, the Respondent submits that it was reasonable and appropriate that it expect the Applicant (and its other staff) to maintain a readiness, willingness and ability to attend for work at a location other than their primary place of residence.
29. In order to advance this submission, it is unnecessary for the Respondent to articulate what the outer boundaries of the discretion were. Instead, it is only necessary that the Respondent demonstrate that the expectation was reasonable in all the circumstances.
30. The requirement that the Applicant (and other employees) be ready, willing and able to attend for work outside of his ordinary place of residence as and when required was vital to ensuring high levels of staff morale, wellbeing, cooperation, communication, training and development. It was further necessary to ensuring that, should the demands of the role dictate, the Applicant was able to attend on a customer or other stakeholder in person if required.
31. The Respondent refers to and repeats the evidence given by its following witnesses on the point:

Nick Claringbold:

“no role within Baptcare (even a ‘Level Three’ role) is seen as exclusively capable of remote working, that is, working entirely away from Baptcare’s premises (e.g. at an employee’s home). There remains an expectation that at some time or another, all employees will be required to attend a Baptcare physical location, even if it is just for training or education.”

“It is important for in person meetings to occur because of the importance of human connection and its significant relevance to building strong teams, which we value as a division. We had identified that purely remote work did not suit Baptcare’s operational needs and led to social isolation of staff. We received feedback anecdotally from our staff that while they enjoyed remote working they also desired an opportunity to spend time together face to face.”

“Teams within the In-Home Care Division are required to meet in person on a monthly basis (when not prevented by lockdowns/COVID restrictions). Such meetings will typically occur at a team’s nearest Baptcare Office location. Since the closure of the Bundoora office, the North West teams nearest office is Camberwell.”

“Prior to COVID-19 lockdowns, these meetings occurred in person at least on a month to month basis. Further, as managers had a local ability to lead their teams and hold meetings at their discretion, it is likely there were in person meetings more frequently just monthly. Around the time of the applicant’s dismissal the North West team were unable to conduct such planned meetings due to the unavailability of the applicant’s line manager but otherwise would have done so.”

“Staff are also required to attend mandatory training sessions in person. Baptcare attempted to do it remotely, but from feedback from the training sessions, in particular for the Occupational Violence and Manual Handling modules, we concluded remote training sessions they were not adding value and our staff required face to face interaction to deliver the best outcomes.”

“It is important that staff receive the best possible training outcomes, in order for Baptcare to meet its organisational needs and also, in respect of training relating to health and safety, its statutory duties.”

“For the above reasons, I consider it critical that all staff (including staff working in CSS roles) are able to attend for work at Baptcare’s premises.”

Michael Wilson:

“in-person meetings with team members were to be conducted at regular intervals.”

“Accordingly, notwithstanding the flexibility afforded to the Applicant, he and all other Baptcare employees are expected to maintain a readiness, willingness and ability to attend Baptcare’s physical locations as and when required.”

“In relation to remote-working staff, in my view, no person is an island; employees of Baptcare cannot work remotely all the time and should have some in person contact with their colleagues. Even if they do not have in person contact with customers, they will interact in person with other staff members, who, in turn, may go out to residential aged care homes or interact in person with our customers.”

Katiana Velcek

“All staff were to be vaccinated as there are no staff that exclusively work from home at Baptcare, as staff are still required to attend in person meetings and on-site training.”

“Based on my experience as a HR professional, on-site meetings and training are more preferable to ‘virtual’ delivery as the in-person/on-site setting:

(A) Offers opportunity for greater participant interaction;

(B) Better caters for diverse learning styles;

(C) Offers ability to focus without competing demands and interruptions (emails, phone calls, huddles) and therefore better learning outcomes;

(D) Offers opportunity for social interaction with team members;

(E) Offers opportunity for time away from technology; and

(F) Offers opportunity for ‘corridor’ conversations including information sharing and problem solving.”

32. While the Applicant submits in his Outline of Argument: Merits, that the Respondent “could” have permitted the Applicant to work exclusively from home, such a submission is misguided. The Respondent was under no legal compulsion to make such adjustments to the inherent requirements of the Applicant’s role. He did not claim a medical exemption nor otherwise identify any impediment which might have warranted such a special accommodation in the circumstances.
33. In the circumstances set out above, whilst the Respondent could in theory have permitted the Applicant to work exclusively remotely, this would have been inconsistent with its organisational and operational needs particularly with respect to training and regular team meetings.
34. By reason of the inherent requirement that the Applicant maintain a constant readiness, willingness and ability to attend for work outside his ordinary place of residence, the Public Health Orders provided a lawful and reasonable basis for the Direction.
35. In Aleisha Jean Shepherd v Calvary Health Care T/A Little Company of Mary Health Care Limited [2022] FWC 92, while considering the effect of New South Wales’ Public Health (COVID-19 Aged Care Facilities) Order 2021, Deputy President Saunders held [at 33]:

“Once a public health order is in force and applies to a particular workplace, the employer of employees who work in the workplace is obliged to comply with the order unless or until it is declared invalid or unlawful by a court of competent jurisdiction. The Commission does not have jurisdiction to determine whether a public health order is invalid.”

36. It is not in dispute that the Applicant failed to comply with the Direction by refusing to provide the Respondent with information and/or evidence relating to his current vaccination status, by 15 October 2021 as required, or at all. The failure to do so was misconduct warranting the termination of the Applicant’s employment.
37. Further and in addition, as the Applicant was not (fully or otherwise) vaccinated against COVID-19 and had told the Respondent he had no intention of being vaccinated, his failure to comply with the direction to obtain at least a first dose of a COVID-19 vaccination by 15 October 2021 constituted a further instance of misconduct warranting of the termination of his employment.

Inherent requirements

38. Further and in the alternative, the Applicant’s failure to comply with the Direction rendered him unable to perform one or more of the inherent requirements of his role.
39. As set out above, it was an inherent requirement for the Applicant’s role that he maintain a readiness, willingness and ability to attend for work outside his ordinary place of residence. As noted above, the Respondent’s evidence will show that this was in fact an important requirement, so the Applicant could fully participate in and benefit from training and team meetings.
40. By reason of the operation of the Public Health Orders which meant he

a) had to provide information and evidence about his vaccination status; and
b) had to be vaccinated to work outside his home,

41. the Applicant’s failure to comply with the Direction meant that he lacked the necessary capacity to continue performing his role. This was because the Respondent was no longer able to permit the Applicant to attend its physical locations of work, which it required him to be able to do for the reasons set out above. The Respondent submits it was and is the Respondent’s prerogative to require its employees to attend work at its physical locations – even just simply for its convenience, although in this case for good reason.
42. Even if such requirement was of infrequent application, it was still an important requirement which the Respondent was lawfully entitled to impose on its employees and with which it could reasonably expect employees be able to comply.

Health and Safety Obligations

43. Further and in the alternative, the Direction was lawful and reasonable having regard to the requirements imposed on the Respondent by workplace health and safety law.
44. Under section 21(1) of the Occupational Health and Safety Act 2004 (Vic), the Respondent “must, so far as is reasonably practicable, provide and maintain for [its] employees… a working environment that is safe and without risks to health”.
45. It is generally accepted that COVID-19 represents a major and serious risk to health and safety in the workplace. It is also generally accepted that being fully vaccinated against COVID-19 is a reasonable and effective measure to reduce the spread of the virus in physical workplace settings and the severity of the disease if contracted.
46. Given that it was an inherent requirement of the Applicant’s role that he maintain a readiness, willingness and ability to attend for work outside his ordinary place of residence, it was reasonable for the Respondent to require his compliance with the Direction.
47. Had the Applicant been permitted to attend the Respondent’s physical locations of work without being vaccinated against COVID-19, the Applicant would have exposed himself (and/or others) to an unjustifiably higher risk of infection and serious effects of COVID-19.
48. The Direction was accordingly reasonable, as it was in furtherance of the Respondent’s obligation to provide and maintain a health and safe working environment for its employees.

Conclusions

49. In summary, the Direction was lawful and reasonable and the Applicant’s failure to comply with it was misconduct, warranting the termination of his employment. Further and in the alternative, his failure to comply with the Direction also meant he lacked the capacity to perform an inherent requirement of his role.
50. The Respondent therefore had valid reasons for dismissing the Applicant within the meaning of section 387(a) of the FW Act.

Was the Applicant notified of the reasons for dismissal?

51. The Respondent submits that the Applicant was clearly put on notice of the reasons for his dismissal in the ‘show cause’ letter issued to him on 28 October 2021.

Was the Applicant given an opportunity to respond to the reasons for dismissal?

52. The Respondent submits that the Applicant was given an opportunity to respond to the reasons for his proposed dismissal. Such opportunity was articulated within the 28 October 2021’show cause’ letter, which provided the Applicant with a period of 7 days to give any response before a decision regarding his employment would be made. The evidence shows the Applicant did respond to the reasons for dismissal.

Was there an unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal?

53. The Respondent submits that as there was no discussion held relating to his dismissal, there could have been no refusal by the Respondent to allow the Applicant to have a support person present to assist at any discussions relating to dismissal.
54. Further and in the alternative, the Respondent submits the Applicant did not request any support person at any stage and he had ample notice of all disciplinary meetings during the process leading to his dismissal.

If the dismissal related to unsatisfactory performance —was the Applicant warned about that unsatisfactory performance before the dismissal?

55. The Respondent submits that the reasons for dismissal were not related to unsatisfactory performance.

The degree to which the size of the Respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal?

56. The Respondent is a large employer and submits that its procedures reflected what might be expected of an employer of such a size. It followed a fair and reasonable procedure in effecting the Applicant’s dismissal. Such a consideration ought be given a neutral weighting.

The degree to which the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal?

57. The Respondent has a dedicated human resources department. Such a consideration ought be given a neutral weighting.

Are there any other matters relevant?

58. Similar to Ms Shepheard in the Calvary decision, the Applicant in this case has advanced arguments pertaining to the lawfulness of the Direction in the context of privacy legislation. To these questions, Deputy President Saunders found as follows [at 34]:

“…in my opinion [such arguments] are not relevant to the question of whether there was a valid reason for Ms Shepheard’s dismissal related to her capacity or conduct. My reasoning for this conclusion is as follows. Th Public Health Order required that Ms Shepheard be vaccinated against COVID-19 in order for her to enter her place of work from 9am on 17 September 2021. If Ms Shepheard wanted to be exempt from that requirement, the Public Health Order required that she present “to the operator of the residential aged care facility a certificate, in the form approved by the Chief Health Office, issued by a medical practitioner, specifying the medical contraindication that makes the person unable to be vaccinated”. Accordingly, the disclosure of medical information to Calvary was required by the Public Health Order, in circumstances where an exemption was sought. Calvary had no option but to comply with the Public Health Order. It follows that when Calvary invited Ms Shepheard to provide relevant information to support her claim and Ms Shepheard elected not to provide any such information, Ms Shepheard had no capacity to undertake her role as a Care Support Employee in an aged care facility because she was prohibited from entering such a facility…”

59. The Public Health Orders in the present case go further than those applicable in the Calvary decision. Insofar as they require the Applicant to have provided information and evidence relating to his vaccination status by 15 October 2021, they provided a lawful and reasonable basis for the Respondent’s Direction (insofar as it pertained to such matters).
60. Even if the Public Health Orders did not apply (which is denied), the Respondent submits that it was not otherwise required to obtain the Applicant’s consent to providing information relating to his vaccination status under the Privacy and Data Protection Act 2014 (Vic) and the Australian Privacy Principles given that the Direction (insofar as it related to his obligation to do so) was necessary to lessen or prevent a serious threat to the life, health or safety of its staff and customers.
61. The Applicant has further raised arguments pertaining to the Direction’s interference with his bodily integrity. Although distinguishable on its facts (primarily given the applicability of the Public Health Order to the Applicant’s employment), the decision of the Full Bench of the Fair Work Commission in Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059, is relevant to the this point. At [223] the Full Bench held that such a factor “is not determinative of the question of reasonableness; it is a consideration to be weighed in the balance with the other relevant considerations.”
62. Finally, the Respondent submits that it did more than what was minimally required of it in the circumstances and notes that it met with the Applicant on 21 October 2021 in order to provide him with an opportunity to explain and elaborate upon his position in order for it to better understand that position before any disciplinary process was commenced. Such activity demonstrated a genuine interest by the Respondent for the Applicant’s questions, concerns and ultimately, reasons for failing to comply with the Direction. Although such matters were ultimately unable to provide the Applicant with a reasonable excuse for not complying with the Direction, the Respondent did everything it could to properly take them into account.
63. In all the circumstances, the Respondent’s decision to dismiss the Applicant was an appropriate and proportionate sanction and not harsh. Assuming the validity of the reasons for the dismissal, there was no other practicable alternative available to the Respondent but to dismiss the Applicant.
64. The issuing of a written warning instead, for example, would have been patently insufficient in circumstances where the Applicant was likely to have an ongoing incapacity for work by reason of his conduct. Similarly, there would have been little utility in the Respondent continuing to stand the Applicant down without pay for an indefinite period of time, whether to the Applicant, or the Respondent.”

[33] I will now consider each of the criteria at s.387 of the FW Act separately.

Valid reason - s.387(a)

[34] The Respondent must have a valid reason for the dismissal of the Applicant, although it need not be the reason given to the Applicant at the time of the dismissal. 48 The reasons should be “sound, defensible and well founded”49 and should not be “capricious, fanciful, spiteful or prejudiced.”50

[35] There are now ample decisions of the Commission that support the proposition that the failure of an employee to meet the requirements of a public health order support a valid reason for dismissal.

[36] Had that been the entirety of the circumstances in the present matter I too would have found that the Respondent had a valid reason for dismissing the Applicant.

[37] However, that is not what occurred in the present matter. The relevant public health order, the Victorian Government Covid-19 Mandatory Vaccinations (Workers) Directions (No. 5), applied to an employer where “a worker is, or may be, scheduled to work outside the worker’s ordinary place of residence on or after the relevant date.”

[38] The very clear evidence in this matter is that Baptcare did not require or schedule any north/west CSS employee to attend in person for work until 24 February 2022.

[39] That is to say, as between when the Applicant had his employment terminated on 10 November 2021 and when CSS employees were required to attend in person for work on 24 February 2022 the Applicant remained ready, willing and able to perform the inherent requirements of his job.

[40] There is no criticism of Baptcare that it, ultimately, required CSS employees to return to the office. That was its managerial prerogative. But until such time as they actually required in person attendance, nothing prevented the Applicant from performing the job that, for the better part of two years, he had been performing from home in any case.

[41] The termination of the Applicant’s employment on 10 November 2021 was premature. There is no reason why Baptcare could not have allowed the Applicant to continue in his employment until such time as it actually required him to return to the office. Had that been on 11 November 2021 I would have dismissed the Applicant’s application for an unfair dismissal remedy. Had it been reasonably within the contemplation of Baptcare that the return to the office was likely to occur at some point close to 10 November 2021, the Respondent would have been able to successfully argue that the Applicant could not perform the inherent requirements of his job. Had Baptcare terminated the employment of the Applicant on 24 February 2022 I would have dismissed the Applicant’s unfair dismissal application.

[42] But that is not what occurred. For three months and 14 days after the employment of the Applicant was terminated he could have continued to perform his work at home just like every other CSS employee.

[43] The same was confirmed by Mr Wilson in the following exchange 51:

Commissioner: “All right.  Let me ask the question again, Mr Wilson.  Since 10 November how many times have Baptcare CSS employees been required to attend a Baptcare premises?”

Mr Wilson: “Well, in that specific instance, I'm not aware of any occasions.”

Commissioner: “Is the answer, 'Zero, Commissioner'?”

Mr Wilson: “Well, I am aware of zero cases, Commissioner.”

Commissioner: “Yes.  And isn't it the case since 10 November last year at no time has a CSS employee been required to attend a Baptcare premises or training?”

Mr Wilson: “I am not aware of any occasion.”

Commissioner: “Yes.  And so the applicant could have continued to work from home after 10 November and that wouldn't have been any different to any other CSS employee, isn't that correct?”

Mr Wilson: “That would be correct.”

[44] Consequently, I find that, as at 10 November 2021, there was not a valid reason for the dismissal.

Notification of the valid reason - s.387(b)

[45] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, 52 in explicit terms53 and in plain and clear terms.54 In Crozier v Palazzo Corporation Pty Ltd55 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations FW Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 56

[46] Technically, having found that there was no valid reason for the dismissal it necessarily follows that the Applicant could not have been notified of the valid reason. However, if I am wrong about the validity of the reason, then it is clear from the evidence that the Applicant was notified about why Baptcare was dismissing him.
[47] Consequently, the better view is that, and I so find that, the Applicant was notified of the reason for the dismissal.

Opportunity to respond - s.387(c)

[48] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 57

[49] The evidence in this matter clearly demonstrates that the process gone through by Baptcare was procedurally fair. To the extent that the Applicant made requests for information from the Respondent those requests were disingenuous. The Applicant had no intention of ever getting vaccinated. At the date of the hearing, the Applicant remained unvaccinated. Before me the Applicant said he did not trust the medical profession or the Government. 58 There is nothing more that Baptcare could have done from a procedural fairness perspective.
[50] I find the Applicant was given an opportunity to respond to the reason for the dismissal.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[51] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

[52] The Applicant was a strong advocate on his own behalf. He did not seek to have a support person. Consequently, I find the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal.

Warnings regarding unsatisfactory performance - s.387(e)

[53] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employer about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct. 59

[54] The dismissal of the Applicant was not related to his performance. The dismissal related to the Applicant’s capacity to perform his job when Baptcare determined that he could not satisfy the requirements of the relevant public health order. Consequently, warnings about unsatisfactory performance are not a relevant consideration.

Impact of the size of the Respondent on procedures followed - s.387(f) and absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[55] The size of the Respondent’s enterprise may have impacted on the procedures followed by the Respondent in effecting the dismissal.

[56] The absence of dedicated human resource management or expertise in the Respondent’s enterprise may have impacted on the procedures followed by the Respondent in effecting the dismissal.

[57] The purpose of ss.387(f) and (g) is,

“not to raise the bar larger employers like [Baptcare], but require the Commission to take into account these common features the small employers. In any event, there was no procedural deficiency in respect of which mitigation might be sought in connection with these provisions. Sections 387(f) and (g) carry no weight in the present matter.” 60

Other relevant matters - s.387(h)

[58] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant.

[59] If I am wrong about the fact that the Respondent’s failure to require the Applicant to return to the office prior to 24 February 2022 makes invalid the purported reason for the dismissal, then, in any case, I would have found it relevant to the overall assessment of fairness, under this heading of “other relevant matters”, that, like his vaccinated CSS colleagues, the Applicant could have continued to work through until 24 February 2022.

Conclusion

[60] Having considered each of the matters specified in s.387, the Commission, as presently constituted, is satisfied the dismissal of the Applicant was unreasonable because the evidence before the Respondent on 10 November 2021 did not support a finding that the Applicant could not perform the inherent requirements of his position (because he was not actually being required to attend the office).

[61] Accordingly, I find the Applicant’s dismissal was unfair.

Remedy

[62] Section 390 of the FW Act sets out the circumstances in which I may make an order for reinstatement or compensation:

“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 Commission may make the order only if the person has made an application under section 394.

(3) The Commission 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.”

[63] I have already dealt with the issues at s.390(1)(a)–(b) above. The Commission, as presently constituted, is satisfied the Applicant was protected from unfair dismissal pursuant to s.382 of the FW Act and the Applicant was dismissed unfairly. Accordingly, the Commission is required to determine whether to order the reinstatement of the Applicant or, in circumstances where reinstatement is inappropriate, an order for compensation if it is satisfied such an order is appropriate in all the circumstances.

Reinstatement

[64] The Applicant seeks reinstatement as the primary remedy. Regardless of the remedy sought by the Applicant, s.390 of the FW Act requires I first determine whether reinstatement is appropriate before I may consider an order for compensation.

[65] The Respondent submits reinstatement would be inappropriate because:

1. “the Applicant presumably remains unvaccinated and accordingly unable to perform the inherent requirements of his job in respect of attending physical training and meetings;
2. further and in the alternative, the manner in which the Applicant conducted himself towards his managers between the issuing of the Direction and the Dismissal (which at times was highly aggressive, disrespectful and insubordinate), means the Respondent has lost all trust and confidence in the Applicant.

[66] The Applicant remains unvaccinated. The Respondent has, since 24 February 2022, required CSS employees to attend the office. Because the Applicant is unvaccinated he cannot attend the office. Consequently, the Applicant cannot perform the inherent requirements of his position.

[67] The further consequence of his decision to remain unvaccinated (as is his right) is that, in the circumstances the Commission, as presently constituted, is satisfied that I should order reinstatement is inappropriate.

Compensation

[68] Section 390(3)(b) provides the Commission may only issue an order for compensation to the Applicant if it is appropriate in all the circumstances.

[69] Noting the unfairness in the premature dismissal of the Applicant, the Commission, as presently constituted, is satisfied that an order for compensation may be appropriate in all the circumstances of this case after the application of the usual steps used to calculate the same.

[70] Section 392 of the FW Act sets out the circumstances that must be taken into consideration when determining an amount of compensation, the effect of any findings of misconduct on that compensation amount and the upper limit of compensation that may be ordered:

“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.

Note: subsection 392(5) indexed to $61,650 from 1 July 2012

(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.”

[71] The method for calculating compensation under s.392 of the FW Act was dealt with by a Full Bench of the Commission in Bowden, G v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge 61 (Bowden). In that decision the Full Bench set out the order in which the criteria and other factors should be applied, taking into account authority under the Workplace Relations FW Act 1996 in Sprigg v Paul’s Licensed Festival Supermarket62 and Ellawala v Australian Postal Corporation63. I have adopted the methodology utilised in Bowden in determining the amount of a payment of compensation.

[72] I will now consider each of the criteria in s.392 of the FW Act.

Remuneration that would have been received: s.392(2)(c)

[73] The Applicant’s remuneration with the Respondent was $673.74 per week.

[74] I should now determine the period of time the Applicant would have remained employed by the Respondent, or would have likely remained employed with the Respondent, had they not been dismissed.

[75] I find that, but for the dismissal on 10 November 2022, the Applicant would have continued to be employed until CSS employees were actually required to attend the office (i.e. until 24 February 2022).

[76] Therefore, the Applicant would have continued to be employed by the Respondent for 14 weeks and 6 days had he not been dismissed. The amount the Applicant would have received is therefore $10,000.85

Remuneration earned: s.392(2)(e)

[77] It is necessary to assess the remuneration earned by Applicant since the dismissal. It is as follows:

a) The Applicant was paid 4 weeks’ notice. This reduces his economic loss by $2,694.96.
b) Since 15 November 2021 (i.e. very soon after the dismissal) the Applicant commenced employment with Christianity Enterprises 64 earning $600 per week.65 This reduces his economic loss by $8,657.14.

[78] I find the Applicant has earned $11,352.10 in remuneration for employment during the period since the dismissal. That amount, when compared to what the Applicant would have earned, means that the Applicant has incurred no economic loss. In fact, the Applicant is $1,351.25 better off as a result of the dismissal.

[79] Noting that the Applicant has incurred no economic loss, no further application of the principles in Bowden and Sprigg will assist him in bettering the calculation of compensation to be paid. No compensation is payable. He has had a pyrrhic victory.

[80] I will not order the Respondent to pay any compensation to the Applicant.

Conclusion

[81] The Commission, as presently constituted, is satisfied that the Applicant was protected from unfair dismissal, that the dismissal was unfair, but that no remedy is appropriate.

[82] An order will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR738349>

Appearances:

Mr Marriot for himself.

Mr Joel Zyngier for the Respondent.

Hearing details:

2022

8 February

By video

 1   Applicant’s Statement of Evidence dated 13 January 2022 (Exhibit 5), at Court Book p 27.

 2   Respondent’s Outline of Submissions dated 28 January 2022 (Exhibit 18), at Court Book p 87.

 3   Ibid.

 4   Witness Statement of Nick Claringbold dated 28 January 2022 (Exhibit 20), at court Book p 106.

 5   Ibid.

 6   Ibid, p 107.

 7   Ibid.

 8   See attachments NC-3 to Witness Statement of Nick Claringbold (Exhibit 20).

 9   Witness Statement of Nick Claringbold dated 28 January 2022 (Exhibit 20), at Court Book p 107.

 10   Ibid.

 11   Witness Statement of Melanie Fisher dated 28 January 2022 (Exhibit 48), at Court Book p 387.

 12   Ibid.

 13   See attachments NC-5 to Witness Statement of Nick Claringbold (Exhibit 20).

 14   See attachments NC-6 to Witness Statement of Nick Claringbold (Exhibit 20).

 15   Transcript PN347.

 16   Applicant’s Statement of Evidence dated 13 January 2022 (Exhibit 5), at Court Book p 27.

 17   Witness Statement of Melanie Fisher dated 28 January 2022 (Exhibit 48), at Court Book p 388

 18   Ibid.

 19   See attachments MF-2 to Witness Statement of Melanie Fisher (Exhibit 48).

 20   Witness Statement of Melanie Fisher dated 28 January 2022 (Exhibit 48), at Court Book p 388.

 21   Ibid.

 22   Applicant’s Statement of Evidence dated 13 January 2022 (Exhibit 5), at Court Book p 27.

 23   Ibid.

 24   Witness Statement of Katiana Velcek dated 28 January 2022 (Exhibit 38), at Court Book p 219.

 25   Applicant’s Statement of Evidence dated 13 January 2022 (Exhibit 5), at Court Book p 27.

 26   Ibid.

 27   Letter Outlining Applicant’s Position on Vaccines dated 18 October 2021 (Exhibit 10, at Court Book p 60.

 28   Transcript PN90.

 29   Witness Statement of Katiana Velcek dated 28 January 2022 (Exhibit 38), at Court Book p 220.

 30   Applicant’s Statement of Evidence dated 13 January 2022 (Exhibit 5), at Court Book p 27.

 31   Witness Statement of Nick Claringbold dated 28 January 2022 (Exhibit 20), at Court Book p 109.

 32   Ibid.

 33   Applicant’s Statement of Evidence dated 13 January 2022 (Exhibit 5), at Court Book p 28.

 34   Witness Statement of Nick Claringbold dated 28 January 2022 (Exhibit 20), at Court Book p 109.

 35   See attachments KV-7 to Witness Statement of Katiana Velcek (Exhibit 38G).

 36   See attachments NC-11 to Witness Statement of Nick Claringbold (Exhibit 31).

 37   See attachments MW-5 to Witness Statement of Michael Wilson (Exhibit 45).

 38   See attachments NC-13 to Witness Statement of Nick Claringbold (Exhibit 33).

 39   See attachments MW-7 to Witness Statement of Michael Wilson (Exhibit 47).

 40   See attachments NC-15 to Witness Statement of Nick Claringbold (Exhibit 35).

 41   See attachments NC-16 to Witness Statement of Nick Claringbold (Exhibit 36).

 42   Witness Statement of Katiana Velcek dated 28 January 2022 (Exhibit 38), at Court Book p 220.

 43   See attachments NC-17 to Witness Statement of Nick Claringbold (Exhibit 37).

 44   See attachments KV-11 to Witness Statement of Katiana Velcek (Exhibit 38K).

 45   Transcript PN851 and PN858.

 46   Sayer v Melsteel [2011] FWAFB 7498.

 47   Applicant’s Outline of Arguments dated 13 January 2022 (Exhibit 4), at Court Book p 23.

 48   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

 49   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

 50   Id.

 51   Transcript PN647-650.

 52   Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

 53   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

 54   Previsic v Australian Quarantine Inspection Services Print Q3730.

 55   (2000) 98 IR 137.

 56   Ibid at 151.

 57   RMIT v Asher (2010) 194 IR 1, 14-15.

 58   Transcript PN79-79.

 59   Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.

 60   Stevens v Epworth Foundation [2022] FWC 593, [32].

 61   [2013] FWCFB 431.

 62   (1998) 88 IR 21.

 63   Print S5109.

 64   It seems likely from the evidence of the Applicant that his new employer breached the relevant Public Health Order by not satisfying itself that the Applicant was vaccinated before permitting him to work outside his ordinary place of residence. Consequently, I decided to refer the conduct of the Applicant's present employer to the General Manager of the Commission. On 30 March 2022 General Manager advised me that he had decided to refer the suspected breach of the Victorian Public Health Orders to Victoria Police.

 65   Transcript PN57.