Fair Work Act 2009
s.365—General protections

Chantal Cordiano
v
Love and Co Real Estate
(C2021/8318)

Application to deal with contraventions involving dismissal – jurisdictional objection – whether Applicant was dismissed – whether Applicant repudiated her contract of employment - jurisdictional objection dismissed – certificate issued.

[1] On 7 December 2021, the Independent Workers Union of Australia (IWUA) lodged a general protections application against Love and Co Real Estate (Love and Co or the Respondent) under s.365 of the Fair Work Act 2009 (the Act) alleging that on 16 November 2021, Ms Chantal Cordiano was dismissed in contravention of the general protections provisions of the Act.

[2] On 21 January 2022, the Respondent filed a Form F8A Employer Response and raised a jurisdictional objection that Ms Cordiano had not been dismissed.

[3] As a result of the decision in Coles Supply Chain Pty Ltd v Milford, 1 I am required to determine the jurisdictional objection before the matter can proceed.

[4] On 21 January 2022, the matter was allocated to me and on 3 February 2022, a conference was held, and directions were issued for the filing of material. Ms Prior and Ms Ikonomou were granted permission pursuant to s.596(2)(a) on the basis of complexity and efficiency.

[5] The original application was made in the name of the IWUA. Mr Heffernan represented that ‘Union’ at the Directions conference. I raised issues about the standing of the Applicant at this conference. Mr Heffernan advised that the IWUA was not an association of employees that was registered or recognised by a Workplace Law as per subclause (a) of the definition of ‘industrial association’ in s.12 of the Act, but was an association of employees, a purpose of which is the protection and promotion of their interests in matters concerning employment, as per subclause (b) of that definition. Mr Heffernan undertook to provide material in order to satisfy me that the IWUA had the standing to make the application (including a copy of the Constitution).

[6] On 11 February 2022, the IWUA provided my Chambers with a copy of an association’s Constitution which they claimed gave the IWUA standing to make the application. The Constitution provided was not that of the association making the application.

[7] On 11 February and 16 February 2022, my Chambers communicated with IWUA noting that they had not yet satisfied me of their standing to make an application under s.365.

[8] On 17 February 2022, I received and application to vary the name of the Applicant to that of the employee concerned, Ms Chantal Cordiano. The Respondent opposed this course. I have exercised my discretion under s.586 of the Act to amend the Applicant’s name to the person aggrieved on the basis that the original applicant appeared to lack standing, and this may have been unknown to Ms Cordiano.

[9] A Hearing was conducted on 2 March 2022 by telephone. The Applicant was represented by Ms Prior and the Respondent was represented by Ms Ikonomou. Permission had previously been granted pursuant to s.596 of the Act based on complexity and efficiency. A recording of the Hearing was made, and an audio file retained.

Evidence

[10] The material filed by the parties was contained in a Digital Court Book which was distributed to the parties prior to the Hearing.

[11] The Applicant provided a statement 2 and gave evidence. The Applicant’s relevant evidence is summarised as follows:

•  Between 1 March 2021 and 9 November 2021, the Applicant was employed by the Respondent as a Real Estate Sales Agent in Victoria.

•  In the period between 11 October 2021 and 14 October 2021 she had a number of conversations with Mr Jim Kalakias concerning the COVID-19 Victorian Health Directive(s).

•  The Applicant contended on 11 October 2021 that it was agreed with Mr Kalakias that she could attend open homes and do face-to-face appraisals and work from home for her other duties. The following day, Mr Kalakias advised her that he had made an error and that she could not do open homes or face-to-face appraisals.

•  It appears that the Applicant was unvaccinated against COVID-19 at this time and was considering her options as to vaccination.

•  On 22 October 2021, the Applicant tested positive to COVID-19. She contends that she went on personal leave at this time.

•  Mr Kalakias and the Applicant remained in contact. On 3 November 2021, the Applicant completed her isolation period. The Applicant then advised Mr Kalakias that she had a vaccination exemption.

•  On 8 November 2021, Mr Kalakias requested that the Applicant provide her exemption. The Applicant declined to provide any further evidence of her exemption.

•  On 8 November 2021 Mr Kalakias sent the Applicant an “Invitation to a show cause meeting”. In the letter, it was alleged that the Applicant was “refusing to get vaccinated without a valid exception.” The letter advised that the Applicant was being given an opportunity to show cause in relation to the Respondent’s concerns and advised that a decision would be made about her employment.

•  The Applicant responded that evening and advised that she had not refused to be vaccinated but that she had already contracted COVID-19 and had been given instructions from her medical practitioner not to proceed with any vaccination as it was not medically safe. The Applicant objected to providing her medical information to the Respondent and advised that she did not wish to attend the meeting.

•  The Applicant had a telephone discussion with Mr Kalakias on 9 November 2021 about evidence of her exemption.

•  At 6.25 pm on 9 November 2021, Mr Kalakias advised the Applicant that she was being terminated. A letter sent that day confirmed (inter alia) that:

“…in the circumstances and for the reasons outlined above the company maintains the view that it is appropriate that your employment should be terminated due to your inability to perform the inherent requirements of the role to work in Company premises in compliance with the Victorian Public Health Order and that there is no other position the Company can offer you in the business or ability to provide you with useful work to perform from home.

We therefore advise you that your employment will be terminated effective 16 November 2021.”

[12] The Applicant’s evidence was largely unchallenged.

[13] Mr Dimitrios (Jim) Kalakias provided a witness statement 3 and a supplementary statement4. His relevant evidence is summarised as follows:

•  The Applicant was employed as a full-time Real Estate Sales Assistant.

•  In October 2021, the Victorian Government introduced Directions about mandatory vaccination for authorised workers. The Respondent is a real estate agency and is subject to those Directions.

•  On 11 October 2021, he discussed with the Applicant and others their obligations under the Directions including the need to have their first dose by 22 October, and either their second dose by 26 November, or proof of an upcoming COVID-19 vaccination. Further, Mr Kalakias noted that if they could not comply with this they would have to work from home. The Applicant asserted that she would not be getting a COVID-19 vaccine.

•  Between 12-14 October 2021, Mr Kalakias and the Applicant exchanged correspondence in relation to the Directions.

•  In November 2021, it was apparent to Mr Kalakias that the Applicant was not vaccinated, and he determined to invite her to a show cause meeting. A letter dated 8 November 2021 was sent detailing the Respondent’s concerns and identifying the risk of termination (as summarised on the Applicant’s evidence above).

•  On 9 November 2021, the show cause meeting was conducted via Zoom. The Applicant did not attend. At this stage, Mr Kalakias “felt that there was no other option that to accept that Ms Cordiano no longer intended to be bound by her employment contract because she refused to get the COVID-19 vaccine.”

•  Mr Kalakias did not dispute that the Applicant advised him that she was exempt from the vaccine.

•  On 9 November 2021, Mr Kalakais sent a letter of dismissal (as summarised on the Applicant’s evidence above).

[14] There was no dispute that the work performed by the Applicant was in the real estate industry and that the Victorian COVID-19 Directions applied to her employment.

[15] No issues of credit arise.

[16] The Respondent claims that the Applicant repudiated her contract of employment, and that the Respondent accepted that repudiation on 9 November 2021, and as such, there was no dismissal at the initiative of the employer.

Law

[17] The test for determining whether a contract has been repudiated by a party to the contract is whether the conduct of the party, when assessed objectively, displayed an intention to no longer be bound by the contract. 5

[18] In Earney v Australian Property Investment Strategic Pty Ltd 6, Hargrave J summarises the legal principles which are to be considered when assessing whether there has been repudiation of an employment contract, as determined by Ross J in Whittaker v Unisys Australia Pty Ltd7:

“(1) The term repudiation is used in a number of senses. Relevantly, the High Court has recently stated that repudiation:

“…may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party’s obligations. It be may termed renunciation. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it.”

(2) It is not necessary to prove a subjective intention to repudiate. The test is an objective one.

(3) Whether there has been repudiation is a question of fact.

(4) Repudiation is not to be inferred lightly. It is a serious matter.

(5) Repudiation may be evidenced by a single act or by an accumulation of conduct in circumstances where no individual act on its own constitutes a repudiation.

(6) Repudiation does not bring an end to a contract. It is necessary for the innocent party to elect to accept the repudiation.

(7) Repudiatory conduct may be ‘cured’ by the party in breach, but only prior to the acceptance of the repudiation. Accordingly, once the innocent party has elected to terminate the contract for breach, it cannot thereafter be cured.”

Consideration

[19] The issue for determination is whether the employer dismissed the Applicant. If the Applicant was not dismissed the s.365 application must fail. The Respondent contends that the Applicant, by her conduct, repudiated her contract of employment and that the Respondent accepted the repudiation on 9 November 2021.

[20] The facts in this matter indicate that the suggestion that the Applicant repudiated her contract of employment was not raised prior to the cessation of employment. The communications between the Applicant and Respondent on 8 and 9 November 2021 are consistent with the Respondent being dismissed as a result of her not being able to meet the inherent requirements of her contract of employment (in that she was unable to work outside her home and no alternative work was available).

[21] In order for the Applicant to have repudiated her conduct, there must be some act (or omission) that is inconsistent with the contract of employment, and an acceptance of the repudiation. The Respondent contends that that conduct relied upon was the Applicant failing to get vaccinated and/or failing to provide proof of being exempt from the need to vaccinate. It is submitted the Respondent’s letter of 9 October 2021 is the acceptance of that repudiation.

[22] On 19 October 2021, the COVID-19 Mandatory Vaccination (Workers) Directions (No 4) (Vic) (the Directions) came into force. The Directions imposed restrictions of the performance of work outside the ordinary place of residence for workers who were not an ‘excepted person’ and who did not have their first vaccination by (in the case of real estate workers) 22 October 2021, followed by a second vaccination by 26 November 2021.

[23] Despite the use of the term ‘Mandatory Vaccination’ in the name of the Directions, the Directions do not require employees to be vaccinated. The Directions simply restrict the place that unvaccinated (and non-excepted) persons can perform work.

[24] On 21 October 2021, the Applicant undertook a PCR test. On 22 October 2021, the Applicant was advised that she had contracted COVID-19 and was required to isolate until 3 November 2021. On or about 4 November 2021, the Applicant informed the Respondent that she had a medical exemption, as she had been advised by her doctor that it was dangerous to receive the vaccine so soon after she had contracted COVID-19. Whilst I too was not provided with the supporting evidence, if this contention is factual, it appears that under the current Directions the Applicant would not have been required to be vaccinated in order to work outside of her place of residence prior to the cessation of employment.

[25] There does not appear to be any foundation to the argument that the Applicant, by not being vaccinated, repudiated the contract of employment through her conduct. It should be noted that this ignores the Applicant’s contention that the Respondent agreed to allow her to work from home for a period.

[26] Even if there was some requirement for the Applicant to vaccinate, by the time the Respondent’s acceptance of the repudiation occurred (which is not supported by the evidence) the Applicant appears to have become a ‘excepted person’ and thus any repudiatory conduct had been cured.

[27] The second action of the Applicant relied upon appears to be the refusal to provide the medical evidence to support the claimed ‘excepted person’ status.

[28] Whilst Section 4 of the Directions requires the employer to collect certain information, there does not appear to be any obligation on the employee to provide medical evidence to support an assertion that they are an ‘excepted person’. Whilst it may have been open to the Respondent to give a direction to provide the supporting information, this did not occur. In my view, the actions of the Applicant concerning her ‘excepted person’ status do not amount to a repudiation.

Conclusion

[29] On the basis of the material before me I am not persuaded that the Applicant repudiated her contract of employment and I find that the employment ceased by way of a dismissal at the initiative of the Respondent. The jurisdictional objection is dismissed.

[30] At the conclusion of the Hearing, I conducted a conciliation which did not resolve the matter and a Certificate was issued.

COMMISSIONER

Appearances:

K Prior for the Applicant

E Ikonomou for the Respondent

Hearing details:

2022.

Adelaide, by telephone

2 March.

Printed by authority of the Commonwealth Government Printer

<PR738938>

 1   [2020] FCAFC 152 at [51].

 2   Exhibit A1

 3   Exhibit R1

 4   Exhibit R2

 5   Marwa Elgammal v BlackRange Wealth Management Pty Ltd CAN 092 380 348 T/A Commonwealth Financial Planning [2011] FWAFC 4038 at [13].

 6   [2010] VSC 621 at [77].

 7   (2010) 192 IR 311.