Fair Work Act 2009
s.394—Unfair dismissal

Karen O’Toole
v
Australian Community Support Organisation Ltd
(U2021/10018)

Application for an unfair dismissal remedy – Victorian state government mandatory vaccination directions – inherent requirements of role – termination not harsh, unjust or unreasonable – application dismissed.  

[1] On 10 November 2021, Ms Karen O’Toole (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in which she asserts that the termination of her employment with the Australian Community Support Organisation (the Respondent) on 28 October 2021 was unfair.

[2] Conciliation of the matter before the Commission was unsuccessful and the matter was listed for Hearing/Conference before me in respect of the merits on 1 March 2022. Both parties filed material in advance of the hearing in accordance with the directions issued.

[3] After hearing from the parties, it was determined that the matter would be conducted by way of a hearing pursuant to s.399 of the Act.

[4] At the hearing, the Applicant was self-represented, gave evidence herself and called Ms Rebecca La Frenz, Therapeutic Support Worker with the Respondent, as a witness. The Respondent was represented by Mr Matthew Minucci of Counsel who was granted permission to appear on behalf of the Respondent pursuant to s.596 of the Act. The following witnesses were called by the Respondent:

• Chantelle Miller – ACSO General Manager
• Jenny Svoboda – ACSO Program Manager

Background and evidence

The Applicant’s employment

[5] The Respondent is a not-for-profit organisation that partners with government and community groups to provide community health services, including drug and alcohol counselling, from its hubs in Gippsland Victoria and other locations across Australia.

[6] The Applicant commenced employment with the Respondent on 27 August 2018 on a fixed term basis as a Family and Carer Program Worker¹. Her initial fixed term contract was subsequently extended on a number of occasions, the most recent extension being from 26 May 2021 until 30 June 2022 2. The Applicant was based in the Gippsland region where the majority of the Respondent’s Family and Carer Program was delivered from the Traralgon hub, although there is a secondary office in Bairnsdale. Her contract of employment identified her place of work as the Respondent’s Traralgon premises and other places as may be reasonably required.

[7] Family and Carer Program Workers are responsible for delivering support services to family, friends and carers of people misusing substances through both individual and group education. This includes structured based brief interviews, structured groups and community education programs 3.

[8] According to Ms Svoboda, most of the Respondent’s clients in the Family and Carer Program are based in the Latrobe valley, due to the large population and the prevalence of drug and alcohol use in the region. Ms Svoboda goes on to state that a key aspect of the Family and Carer Program is that of providing outreach support to clients across Wellington, South Gippsland, Latrobe Valley, East Gippsland, and Baw Baw areas 4.

[9] Prior to the onset of the COVID-19 pandemic and the accompanying lockdown restrictions, the Applicant between August 2018 and March 2020 attended the Traralgon office Monday to Friday from 8.30am. In a typical day Ms Svoboda says that the Applicant would call clients, meet clients in the office or attend scheduled outreach appointments.

[10] The Applicant states that her job description 5 does not mandate that the conduct of her duties be face to face and claims that the majority of her role involved telephone-based work. She further states that in the period from August 2018 until March 2020, while she attended the Traralgon office, room bookings were made to make confidential calls with clients. The Applicant concedes that some outreach and office-based meetings with clients were conducted but states that she has been able to establish necessary rapport with clients over the phone and that she could continue to do her job successfully over the phone for a temporary period.

[11] Ms Svoboda rejected the Applicant’s evidence that the majority of her work was phone based and estimates that 25-30% of work was phone based while the balance of the Applicant’s time was spent in face-to-face meetings with clients either in the office or in outreach appointments 6. In support of her evidence Ms Svoboda furnished a spreadsheet recording the Applicant’s appointments for the period 6 May 2021 – 27 October 20217. The Applicant disagreed that the spreadsheet produced revealed a necessity to conduct face to face meetings. Rather she says most of the outreach meetings recorded were conducted in coffee shops which was not ideal.

[12] Ms Svoboda states that in 2018 the Respondent entered into a Memorandum of Understanding (MOU) to join the Headspace Wonthaggi Consortium, resulting in co-location with Headspace to deliver services. The agreement provided for the Respondent to receive a private space in the Headspace Wonthaggi office to see clients and in return provide a suitably qualified worker to provide support and education to Headspace staff. The Applicant was the worker designated to service the Headspace agreement given she lived closest to Wonthaggi and was suitably qualified. She provided services at Headspace Wonthaggi one day per week prior to the onset of the COVID-19 pandemic 8.

[13] During the period of COVID-19 lockdowns, the Applicant along with other staff of the Respondent were allowed to work from home and mainly did so. However, according to Ms Svoboda, there was still outreach required for some clients across the Gippsland region which the Applicant undertook as required 9. This can be seen in an email exchange between Ms Svoboda and the Applicant on 19 August 2021 in relation to vehicle arrangements for attending client meetings10. The Applicant did not attend Headspace Wonthaggi during lockdowns although it was Headspace’s expectation that on the lifting of lockdown restrictions, office-based attendance would be restored in respect of the Respondent’s services to Headspace Wonthaggi11.

[14] The Applicant challenged the accuracy of the evidence as to her being required to attend the Wonthaggi Headspace office one day per week. She concedes that she did work there one day per week for a period of time however was not allowed to see clients on the premises due it being a youth service. While COVID-19 had impacted attendance at the facility over the past 20 months she states that her cessation of attendance was under discussion prior to her dismissal.

The mandatory vaccination directions

[15] On 16 March 2020, the Victorian Minister for Health issued a declaration pursuant to s.198(1) of the Public Health and Wellbeing Act 2008 (Vic) (the PHW Act) that Victoria had entered a state of emergency as a consequence of the COVID-19 pandemic. The declaration has been extended a number of times in the period since including on 18 November 2021 and remained in force until 11.59pm on 15 December 2021. The Public Health and Wellbeing Amendment (Pandemic Management) Act 2021 came into operation on 8 December 2021 and now regulates matters pertaining to the COVID-19 pandemic.

[16] Where a state of emergency has been declared, the Chief Health Officer of Victoria may authorise the exercise of emergency powers, which includes the issuing of directions. At 11.59 pm on 29 September 2021, directions issued by the Acting Chief Health Officer pursuant to the PHW Act, which were titled the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 4), commenced operation (the CHO Directions). The CHO Directions contained several directions that were binding on the Respondent.

[17] Because of the CHO Directions the Respondent was required, as soon as was reasonably practicable after 1 October 2021, to collect, record and hold vaccination information about workers scheduled to work on the premises of the Respondent on or after 15 October 2021. The Respondent was also required to collect, record, and hold information as to when partially vaccinated and unvaccinated workers would, respectively, receive their first and second doses of the vaccine (as defined in the CHO Directions).

[18] The Respondent was also required to take all reasonable steps to ensure that, on or after 15 October 2021, a worker who was unvaccinated did not enter, or remain on, the Respondent’s premises for the purpose of working there. If the Respondent did not hold vaccination information about a worker, it was required to treat the worker as if the worker were unvaccinated. The CHO Directions then provided an exception to this where an unvaccinated healthcare worker had a booking to receive a first dose of a COVID-19 vaccine by 29 October 2021 and a second dose by 15 December 2021.

[19] The CHO Directions allowed for exemptions for an “excepted person”, that being a person who had a medical certification from a medical practitioner that he or she was unable to receive the vaccine due to a medical contraindication or an acute medical illness (as defined in the CHO Directions).

[20] Shortly after the CHO Directions were issued, the Acting Chief Health officer also issued on 7 October 2021 the COVID-19 Mandatory Vaccination (Workers) Directions (the CHO Workers Directions) pursuant to s.198(1) of the PHW Act. The key effect of the CHO Workers Directions was that employers were compelled to not permit defined workers to work outside their normal place of residence unless they were vaccinated within specified time frames or had an exemption for a medical contraindication. Similar obligations applied to employers in respect of collection of vaccination details from employees who fell within any of the defined category of workers. The vaccination dose deadline dates, while varying according to particular occupations, relevantly for the present matter were 22 October and 26 November 2021 for “social and community workers”.

[21] The CHO Directions and CHO Workers Directions were replaced by successive iterations which have now been replaced by pandemic orders and are substantially the same as the CHO Directions and CHO Workers Directions.

The Applicant’s dismissal

[22] On 1 October 2021, the Respondent’s CEO sent a message to all staff advising them of mandatory vaccination requirements and the need for staff to provide details of their vaccination status by 8 October 2021 12.

[23] On 4 October 2021, the Applicant emailed the Pandemic Coordinator and the Respondent’s CEO. The Applicant stated in her email that she had been working successfully from home throughout the pandemic and saw no reason why she could not continue to do so. She also challenged the requirement communicated by the CEO that all employees were required to be vaccinated. 13

[24] On 7 October 2021, the Respondent’s Pandemic Coordinator sent a further email to staff stating that all Victorian employees were required to advise of their vaccination status by no later than 5pm 8 October 2021 14.

[25] On 8 October 2021, The Applicant replied to the communicated requirement to advise of her vaccination status in the following relevant terms;

“…

I’m writing to inform that my vaccination status is that I am UNVACCINATED. And as stated in a letter written to the CEO as well as Pandemic Co-ordinator, I have successfully worked from home for 19months, it is not essential that I work from the ‘facility’ as stated in the: Directions from Acting Chief Health Officer in accordance with emergency powers arising from declared state of emergency COVID-19 Mandatory Vaccination Directions (No 5).

I do have a booking at my GPs for 15^th November for the first ‘jab’ however that will depend on certain guarantees that my employer can make to me about the adverse effects and compensations should I need it if I am forced to have the vaccination to keep my job.

…” 15

[26] Ms Miller stated that the Respondent’s procedure in dealing with employees who had advised that they were unvaccinated was a three step process as follows;

(a) A first meeting was to consult with the employee about the Directions and the requirement to obtain the COVID-19 vaccination within the time frame set out.

(b) The second meeting was to discuss with the individual whether they would receive the COVID-19 vaccination after having some time to think about it.

(c) The third meeting was to discuss the potential for termination of employment if the individual had said they were not going to get vaccinated, or if they did not disclose their vaccination status. 16

[27] On 14 October 2021, Ms Svoboda wrote to the Applicant reaffirming that the CHO Directions required all the Respondent’s Victorian staff to receive their first vaccination dose by 15 October 2021 and their second vaccination dose by 26 November 2021 (the 14 October 2021 Vaccination Status Letter). The letter went on to state that in the absence of the Applicant providing evidence of her vaccination status she would be deemed to be unvaccinated. The letter advised the Applicant that she was required to attend a meeting on 18 October 2021 and was precluded from performing any work duties outside of her home from 15 October 2021 17.

[28] On 18 October 2021, an on-line meeting via Microsoft Teams was conducted at which the Applicant, Ms Svoboda and the General Manager Chantelle Miller attended. The Applicant declined the offer to be accompanied by a support person. Ms Svoboda states that during the meeting the Applicant made various statements to the following effect;

• she was uncertain as to whether she intended to receive a vaccination for personal reasons;

• she had an appointment with her GP on 15 November 2021 to discuss her options;

• when advised by Ms Svoboda that the GP appointment date fell outside the mandated timeframes, the Applicant declined Ms Svoboda’s request to bring forward the GP appointment date; and

• sought guarantees from the Respondent regarding potential health consequences of the vaccine, which the Respondent declined to provide 18.

[29] The Applicant rejects Ms Svoboda and Ms Miller’s evidence that she stated during the meeting on 18 October 2021 that the GP meeting was only for the purpose of discussing vaccination options. She states that she did in fact have an appointment on 15 November 2021 to receive her first vaccination and provided evidence of that during the meeting by showing a copy of the appointment 19. She further states that she did not say during that or subsequent meetings that she didn’t intend to get vaccinated or that she was waiting for Novavax. She also states that she did not recall asking for guarantees regarding adverse effects of vaccination during the meeting nor did she recall Ms Svoboda’s response.

[30] On 18 October 2021, following the above-referred meeting, Ms Svoboda sent a further letter to the Applicant (the 18 October Vaccination Status Letter) in the following terms

“

…

Dear Karen

Vaccination Status - summary and next steps

ACSO cares about the safety and wellbeing of our people, residents, clients, and the broader community and is committed to keeping our workplace and community safe. Throughout the Covid19 pandemic, the health and safety of all ACSO/McCormack Housing employees and clients has been our priority.

Thank you for meeting with me and Chantelle Miller on Monday 18 October to discuss your current vaccination status against Covid19. The purpose of this letter is to provide you with a summary of our discussion and the next steps.

During the formal meeting held Monday 18 October you were provided with an opportunity to share all relevant information regarding your vaccination status.

You shared that you were still uncertain on whether you intend to receive the vaccination against Covid19 for personal reasons. You also stated that you have an appointment with your General Practitioner on 15th November 2021, however, as explained to you this potential vaccination date is still outside of the Public Health Orders.

ACSO are concerned by this information as we care about the safety and wellbeing of our people, residents, clients, and the broader community. Furthermore, we are obliged to follow the Public Health Orders number 6 & 7 which mandate vaccinations for Authorised Workers or those who attend Healthcare facilities.

We understand this is a challenging time and we want to support you in making an informed decision. ACSO will provide you with a further week to consider your vaccination status. During this time, we strongly encourage you to discuss this with your medical practitioner and/or the Employee Assistance Program (EAP) on 1300 687 327.

Receiving the vaccination against Covid 19 will enable you to continue fulfilling the inherent requirement of your role as a Family and Carer Support Worker from 15 October 2021.

If you choose not to receive the vaccination for reasons other than a medical contraindication or you do not provide evidence of your vaccination status, ACSO will review your ongoing employment. An outcome of this review could be the end of your employment with ACSO based on you being unable to perform the inherent requirements of your role.

Considering the impact not being vaccinated against Covid19 may have on your health, wellbeing, and future employment with ACSO, we ask you to thoroughly consider your vaccination status.

I will schedule a second formal meeting with you on Thursday 21st October to give you a final opportunity to provide any updated information regarding your vaccination status plus any additional information you feel ACSO should consider when reviewing your ongoing employment.

As outlined in your formal meeting invitation dated 18 October, as an inherent requirement of your role includes performing duties outside of your home, from 15 October, until such time that we meet and/or receive confirmation of evidence of your vaccination against Covid19 or a booking to receive the vaccination (in line with the Public Health Orders), you are not permitted to perform any work-related duties outside on your home residence.

This temporary adjustment to your role will enable you additional time to consider your vaccination status and access the support and resources you need to make an informed decision.

In addition to accessing the previous communication and resources provided through the Pandemic Coordinator, we encourage you to discuss this matter with your medical practitioner and/or EAP. Should you wish to access the EAP service for free and confidential counselling, please contact them on 1300 687 327.

In the interim, should your vaccination status change, please immediately communicate this to the Pandemic Coordinator via covidvaccinations@acso.org.au and include me in the communication.

Please contact me should you have any questions.

Yours sincerely

Jenny Svoboda

Program Manager Intake” 20

[31] While claiming that aspects of the evidence of Ms Miller and Ms Svoboda regarding the meeting of 18 October 2021 were not correct, the Applicant agreed that she did not challenge or seek to correct the record of the meeting as recorded in the 18 October Vaccination Status Letter. She explained this inaction on the basis that she did not understand that a response to the letter was required.

[32] On 26 October 2021, a further meeting was held at which the Applicant, Ms Svoboda and Ms Miller attended. According to Ms Svoboda, the following matters were discussed;

• the Applicant confirmed that nothing had changed since the previous meeting and declined to bring forward her GP appointment scheduled for 15 November 2021;

• the Applicant again expressed concern regarding getting the Covid-19 vaccination but did raise the possibility of getting the Novavax vaccination which she said was due to be available in January 2022;

• Ms Svoboda advised the Applicant that waiting until January 2022 was well outside the CHO Directions timeframe and that there was no certainty that Novavax would be approved for use in Australia;

• Ms Svoboda confirmed that the Applicant could not see clients face to face and the CHO Directions precluded her working outside her home unless she had a first vaccination dose by 29 October 2021; and

• Ms Svoboda also raised during the meeting the handover of clients from the Applicant to other staff 21.

[33] On 28 October 2021, a further meeting was conducted at which the Applicant, Ms Svoboda and Ms Miller attended. Ms Svoboda states that she advised the Applicant that having considered all of the relevant information including the Applicant’s decision not to be vaccinated within the required timeframe, the Respondent had determined that she was unable to meet the inherent requirements of her role. As a consequence, the decision had been made to terminate her employment and to provide her with the required notice period 22. A letter confirming the termination of the Applicant’s employment was subsequently sent to her on 28 October 2021 (the Termination Letter). The Termination Letter stated as follows;

“Dear Karen

Employment with ACSO

Thank you for meeting with myself and Chantelle Miller on 18 October and 26 October.

As you’re aware, the purpose of the two meetings was to provide you with an opportunity to:

• provide ACSO with all relevant information regarding your vaccination status against Covid19 (in line with the applicable Public Health Orders as previously shared with you);

• enable you time to consider your vaccination status. You were encouraged to seek advice from your medical practitioner and/or discuss with the Employee Assistance Program (EAP) and;

• respond to ACSO’s communication that your employment would be reviewed on the basis that due to your current vaccination status, from 15 October 2021, you are unable to fulfil the inherent requirements on your role as a Family and Carer Program Worker.

The purpose of this letter is to provide you with the final outcome, as verbally delivered to you during today’s meeting on 28 October.

Response to vaccination status

On the 18 and 26 October, you informed ACSO of the following:

You were still uncertain as to whether you would receive the COVID-19 vaccination due to personal reasons, and that you would not be bringing forward your appointment with your GP from 15 November 2021.

On 26 October, we met to discuss your final decision and give you the opportunity to provide any additional information you thought ACSO should consider in determining your ongoing employment aligned to the directions as stated in the applicable Public Health Orders. In summary, during this meeting, you confirmed your intention to not receive the vaccination against Covid19 within the timeframes set out in the Public Health Orders, had not changed and you did not provide any additional information for us to consider at this time.

ACSO were concerned by this information as we care about the safety and wellbeing of our people, residents, clients, and the broader community. Furthermore, we are obliged to follow the Public Health Orders which mandate vaccinations for Authorised Workers or those who attend Healthcare facilities.

As explained to you, in line with these orders, being vaccinated against Covid19 will enable you to continue to fulfil the inherent requirements of your role as a Family and Carer Program Worker.

Considering the impact not being vaccinated may have on your health, wellbeing, and future employment with ACSO, you were provided with additional time to thoroughly consider your vaccination status. During this time, we encouraged you to discuss this with your medical practitioner and/or the Employee Assistance Program (EAP).

Final outcome

After careful consideration of all relevant information, including your advice that you do not intend to be vaccinated against Covid 19 within the timeframes set to enable ACSO to meet the requirements of the Public Health Orders, it has been determined that you are unable to fulfil the inherent requirements of your role as a Family and Carer Program Support Worker. On these grounds, the decision has been made to end your employment, effective 28 October 2021.

In addition to any leave entitlement you have owing, ACSO will provide you three weeks’ pay in lieu of the required notice period under your contract of employment. You will be paid your notice and all applicable employee entitlements in your final pay in the upcoming pay cycle.

To provide you with further support, you will continue to have access to the Employee Assistance Program for a period of three months. This confidential and free counselling service can be accessed by calling 1300 687 327.

Should you have any questions, please contact me on 0417 101 536 or jsvoboda@acso.org.au

Thank you for your contributions to ACSO.

Yours sincerely

Jenny Svoboda

Program Manager Intake Services” 23

[34] The Applicant rejects that there was a reasonable basis for dismissing her given that she had been able to perform her role effectively from home for some 20 months. She further states that she could have been allowed to continue working from home on a temporary basis until she was vaccinated or been redeployed to deal with the 60 clients she states were waitlisted for phone counselling. The Applicant specifically refers to the 6 October 2021 communication 24 from the Respondent’s Pandemic Coordinator to staff which stated that “Hubs are closed” in regional Victoria.

[35] The Applicant also relies on the evidence of Rebecca La Frenz who variously states as follows;

• she has been able to continue working from home since receiving her vaccination;

• has provided outreach services on occasions;

• has only been in the office 4 times since 25 March 2021;

• has not yet been directed to return to office based work; and

• concedes that her role involves a mix of in-person and phone based work.

[36] Ms Miller rejects the Applicant’s claim that she could have continued to undertake her role remotely. Ms Miller states that notwithstanding the pandemic-imposed work from home requirements over the past 2 years, Family and Carer Program Workers cannot work entirely from home. She says the work is client facing, community-based work which is delivered in part through outreach and group work. Chantelle Miller further states that the original service model is based on providing face to face support to families and carers and that the Respondent is returning the service to being run on a face-to-face basis 25. As to the claim that the Applicant could have been redeployed onto the telephone counselling waitlist, Ms Svoboda rejected that claim stating that there was no one available to backfill the Applicant’s role to allow such redeployment.

[37] As regards Ms La Frenz’s evidence, Ms Svoboda distinguished her circumstances from the Applicant. She states that Ms La Frenz had actually made appointments to receive first and second vaccination doses within the specified timeframes and that she works in a different program to that of the Applicant. Ms Svoboda also states Ms La Frenz’s has attended the Traralgon office from time to time for meetings since receiving her vaccination, with which evidence Ms La Frenz agreed. 26

[38] Following communication of her dismissal, the Applicant sent emails to various staff on 28 October 2021. In communicating with her direct supervisor Charlotte Anderson, the Applicant detailed some handover activities and went on to state in the email “Thanks for the lack of leadership and lack of support during this time Charlotte – noticed and documented.” 27 In a separate email addressed to a large number of staff on the same day, the Applicant stated as follows;

“Hi Everyone,

Just sending an email to say goodbye to those that I have met and connected with or delivered training for. I have been terminated effective as of 28/10, because I have been hesitant; wanting more time for such a huge health decision, and not got an appointment for the vaccine in the dates that ACSO state ( I do have one though). Even though I have successfully been working from home for 19mths, ACSO cannot seem to allow that to be anymore.

One thing I have always advocated in delivering training and working with clients is personal boundaries and empowerment – I am good at what I do because I live and breathe it – I choose to be empowered to make informed decisions rather than be coerced or pressured.

So, I wish everyone the best, and also want to take this opportunity to say to those who attended the recent VAOD training given by Charlotte Anderson, please DO NOT and I repeat DO NOT, tell a family member who has phoned intake to confine their substance using family member into a small space such as the car and lecture them while they have no escape then drop them off at something like their corrections appt (all fired up and ready to lose their sh*t) – OMG!

…” 28

[39] The Applicant attached a picture with the following quote to the above-referred email to staff;

“A wise woman once packed all her stuff and said

‘This fucked up shit will not be my story,’ then she left and lived happily ever after.

Unbreakable and Uplifting” 29

[40] Chantelle Miller also states that she has reviewed the Applicant’s notes that recorded her discussions with clients prior to her termination. She states that in those notes the Applicant referenced the Respondent’s position on vaccination in a negative manner which she regards as inappropriate clinical practice 30.

[41] Ms Svoboda also points to social media posts made by the Applicant, some of which were made in the period prior to her dismissal, which are said to indicate a strong intention of the Applicant to not get vaccinated 31.

[42] The Applicant confirmed that she remained unvaccinated at the date of hearing but states she has an appointment to receive the Novavax vaccination shortly. When pressed as to why she did not proceed to get the vaccination she states she was booked in to receive on 15 November 2021, she states that following her dismissal on 28 October 2021 there was no driver to get vaccinated.

Has the Applicant been dismissed?

[43] A threshold issue to determine is whether the Applicant has been dismissed from her employment. Section 386(1) of the Act provides that the Applicant has been dismissed if:

(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or

(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.

[44] Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.

Initial matters

[45] Under section 396 of the Act, the Commission is obliged to decide the following matters before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; and

(d) whether the dismissal was a case of genuine redundancy.

Was the application made within the period required?

[46] Section 394(2) requires an application to be made within 21 days after the dismissal took effect. It is not contested that the Applicant was dismissed on 28 October 2021 following which she filed an application for an unfair dismissal remedy on 10 November 2021. I am therefore satisfied that the application was made within the period required under subsection 394(2) of the Act.

Was the Applicant protected from unfair dismissal at the time of dismissal?

Minimum employment period

[47] It was not in dispute, and I find that the Respondent is not a small business employer, having stated in its Form F3 that at the time of the Applicant’s dismissal it employed approximately 450 employees. The Applicant commenced her employment with the Respondent on 27 August 2018 and was dismissed on 28 October 2021, that being a period of employment of 3 years and 2 months. I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period of six months.

Modern award or enterprise coverage, annual rate of earnings

[48] It was not in dispute, and I find that, at the time of dismissal, the Applicant was covered by the Social, Community, Home Care and Disability Services Industry Award 2010 (the Award)³².

[49] It follows from the above and I am satisfied that as the Applicant has met the minimum period and was covered by a modern award, she is a person protected from unfair dismissal.

Did the Respondent comply with the Small Business Fair Dismissal Code in relation to the dismissal?

[50] Section 388 of the Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.

[51] As stated above, I find that the Respondent was not a small business employer within the meaning of s.23 of the Act at the relevant time, having more than 14 employees (including casual employees employed on a regular and systematic basis). I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as the Respondent is not a small business employer within the meaning of the Act.

Was the dismissal a case of genuine redundancy?

[52] Under s.389 of the Act, a person’s dismissal was a case of genuine redundancy if:

(a) the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

[53] It was not in dispute, and I find that the Applicant’s dismissal was not due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise. I am therefore satisfied that the dismissal was not a case of genuine redundancy.

[54] Having considered each of the initial matters, I am satisfied that the application was made within the required period in subsection 394(2), the Applicant was a person protected from unfair dismissal, the small business fair dismissal code does not apply, and the dismissal was not a genuine redundancy. I am now required to consider the merits of the application.

Was the dismissal harsh, unjust, or unreasonable?

[55] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust, or unreasonable, the Commission 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.

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct – s 387(a)?

[56] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”³³ and should not be “capricious, fanciful, spiteful or prejudiced³⁴.” However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it were in the position of the employer³⁵.

[57] As set out above in the background, the CHO Directions were issued by the Acting Chief Health Officer on 29 September 2021 pursuant to s.198(1) of the PHW Act. The power of the Chief Health Officer to issue such directions derived from Victoria having entered a state of emergency as declared (and regularly renewed) by the Minister for Health on and since March 2020 in response to the COVID-19 pandemic. The CHO Workers Directions were subsequently issued on 7 October 2021.

[58] In accordance with the CHO Directions, the Respondent was required to ensure that on and from 15 October 2021, unvaccinated ‘workers’ that it employed were not permitted to attend its facilities. An extension of the required date of a first vaccination dose to 29 October 2021 was permitted in circumstances where a ‘worker’ had a booking to obtain their first vaccination dose by the first dose deadline of 29 October 2021.

[59] The CHO Directions provided for certain prescribed exceptions, which are not relevant in the present case, and also carried penalties for non-compliance for both individuals (120 penalty units) and body corporates (600 penalty units). The effect of the CHO Directions and CHO Workers Directions were not materially impacted by their revocation and replacement with subsequent directions issued. It is not contested, and I am satisfied, that the CHO Directions and CHO Workers Directions covered the employment of the Applicant.

[60] The Applicant advised the Respondent on 8 October 2021 that she was unvaccinated but had a booking to receive her “first jab” on 15 November 2021 subject to receiving assurances from the Respondent regarding potential adverse effects of vaccination. The Respondent declined to provide the assurances sought by the Applicant. The Applicant subsequently confirmed her vaccine hesitancy in meetings on 18 and 26 October 2021 and stated that she was considering the Novavax vaccine which she believed would be available in early 2022. The consequence of not being vaccinated, that of a review of her employment, was confirmed in the 18 October Vaccination Status Letter.

[61] As stated above, the Applicant and the Respondent were covered by the CHO Directions and CHO Workers Directions. This meant that for the Applicant to be permitted to attend the Respondent’s workplace and/or perform her duties outside of her normal place of residence, she was required to be vaccinated in accordance with those directions by the dates referred to above at [18].

[62] The Respondent contends that an essential element of the Applicant’s role was that of conducting face to face meetings both at the Traralgon hub and on an outreach basis. The Applicant disagrees and states that having successfully undertaken her work from home over the previous 20 months, she ought to have been allowed to continue to do so, at least for a temporary period while she resolved her vaccination concerns. At issue in this matter is whether the requirement to attend the Respondent’s facility or engage in outreach work were inherent requirements of the Applicant’s role. My conclusion is that they were for the reasons set out below.

[63] The Applicant’s role as a Family and Carer Program Workers required her to deliver support services to family, friends and carers of people misusing substances through both individual and group education. This includes structured based brief interviews, structured groups and community education programs. As to how the Applicant conducted these services, the evidence of Ms Svoboda was that phone-based service delivery comprised 25-30% of the Applicant’s workload prior to the pandemic with the balance delivered face to face. The Applicant disputed Ms Svoboda’s estimate, claiming it understated the amount of time actually spent on the phone to clients.

[64] It is neither possible nor necessary for me to resolve with forensic accuracy the percentage of time spent by the Applicant in phone-based work. It is sufficient for me to conclude that prior to the onset of the pandemic, a significant proportion of the Applicant’s time was required to be spent in face-to-face meetings, either at the Traralgon hub or in outreach meetings. The Applicant herself concedes that such a requirement existed although playing down its significance. Critically, her place of work was specifically stated in her letter of employment to be the Traralgon office to which she attended Monday to Friday prior to the pandemic.

[65] Turning to the period since March 2020, I accept the Applicant’s evidence that she undertook much of her work from home following the onset of the Covid pandemic. It is however not the case that all of her work was undertaken in that manner since March 2020. Records of meetings conducted by the Applicant with clients held between May and October 2021 reveal that a substantial portion of her work continued to be undertaken on a face-to-face basis following the onset of the pandemic. Further evidence of that ongoing requirement for face-to-face meetings during the pandemic can also be seen in the exchange between the Applicant and Ms Svoboda in August 2021 36 regarding the Applicant’s use of her own vehicle for outreach meetings, the use of which she apparently felt aggrieved. I accept that while the incidence of face-to-face meetings declined as a matter of necessity during the pandemic, the requirement for face-to-face service delivery remained a feature of the Applicant’s role during the pandemic.

[66] As to the Applicant’s claim that the job description did not specifically mandate face to face meetings as a requirement of her role, that submission has no merit. That is because of the specific requirement in her letter of employment that her place of work was at the Traralgon facility and that she was required to have a driver’s license. That in itself makes it clear enough that she was not engaged on the basis of working from home. Rather, she was required as part of her role to attend both the Traralgon facility and to undertake outreach work as core requirements of her role. The fact that pandemic restrictions may have necessitated an expansion of service delivery via telephone and video meetings is neither unique nor surprising. Such a change has been demanded of many employers and their employees across many industries over the past 24 months.

[67] Notwithstanding the evidence as to the Applicant’s work from home arrangements during the pandemic, I am satisfied that the Applicant’s role required her to be able to attend the Respondent’s Traralgon facility to conduct both telephone and face to face meetings and to attend outreach meetings. That she may believe she could continue to successfully perform her role for an indeterminate period on a remote basis is beside the point. With the relaxation of pandemic restrictions, the Respondent was entitled to require the Applicant to carry out the full requirements of her role which included attending the Respondent’s facility at Traralgon (or any other location that might be reasonably required) and delivering outreach services. In order to do so, it was necessary for the Applicant to be vaccinated in accordance with the CHO Directions. The Applicant declined to be vaccinated within the specified timeframes and as such was unable to fulfill the inherent requirements of her role.

[68] The Applicant also claims that while she had not received her first vaccination dose by the required date, that of 29 October 2021, she says she was booked in to receive it on 15 November 2021. On that basis, she submits that it would have been reasonable for the employer to allow her some flexibility in the interim period by letting her work from home, as she had for some 20 months, until she received her “first jab”. In these circumstances it is contended by the Applicant there was no valid reason for her dismissal.

[69] The witnesses for the Respondent strongly contest the Applicant’s evidence on this point and both state that at no stage were they told during their meetings with the Applicant on 18 and 26 October 2021 that the Applicant’s appointment on the 15 November 2021 was for the purpose of receiving a first vaccination dose. Rather, the purpose of the appointment was stated to be for the purpose of the Applicant discussing vaccination options with her GP.

[70] I prefer the evidence of Ms Svoboda and Ms Miller on this issue and am satisfied that during the course of their meetings with the Applicant on 18 and 26 October 2021, the Applicant advised that the purpose of the 15 November 2021 was for the Applicant to discuss her vaccination options with her GP, not to actually receive her first vaccination dose. My reasons for preferring the evidence of Ms Miller and Ms Svoboda over the Applicant are as follows.

[71] Firstly, while the Applicant wrote to the Respondent’s Pandemic Coordinator on 8 October 2021 stating she had an appointment with her GP for a “first jab” on 15 November 2021, that was said to be subject to receiving guarantees from the Respondent regarding any adverse effects of vaccination. No such guarantees were provided to her by the Respondent.

[72] Secondly, Ms Miller and Ms Svoboda’s contemporaneous notes of the 18 October 2021 meeting with the Applicant both record that the purpose of the 15 November 2021 GP appointment was to discuss vaccination options, not for the Applicant to receive a first dose vaccination.

[73] Thirdly, the 18 October Vaccination Status Letter recorded that the Applicant remained uncertain as to whether she would receive vaccination against COVID-19 for personal reasons. The Applicant did not subsequently challenge or seek to correct that account of the meeting.

[74] Fourthly, the potential for the Applicant to wait until Novavax was available in 2022 was raised by the Applicant in the meeting of the 26 October 2021 according to Ms Miller and Ms Svoboda’s evidence. That evidence was not seriously challenged by the Applicant. The contemporaneous notes of both Ms Miller and Ms Svoboda also both record that the Applicant raised the potential of waiting for Novavax if/when it became available in early 2022. It is inherently unlikely that the Applicant would have canvassed waiting for Novavax if she were committed to proceeding with her “first jab” on 15 November 2021.

[75] Finally, the Applicant in her evidence states that in the meetings with Ms Miller and Ms Svoboda on 18 and 26 October 2021, she was seeking more time to resolve her concerns about vaccination. A request for more time to consider her options is inconsistent with her having made a definite decision to obtain a vaccination she now claims she was booked in to receive on 15 November 2021.

[76] For all the above reasons I do not accept that the Applicant was booked in to receive her first vaccination dose on 15 November 2021. Rather it is apparent that throughout October 2021 she was uncertain and still exploring her options, confirmation of which may be seen in her admission during cross examination that she remains unvaccinated, although stating she is now booked in to receive a Novavax vaccination.

[77] Having regard to the above circumstances I do not accept that it would have been reasonable for the Respondent to waive, for an indefinite period, the requirement that the Applicant be ready, willing and able to carry out the full range of her duties. Having declined to be vaccinated by 29 October 2021 and having made no concrete plans to obtain a vaccination so as to comply with the CHO Directions, there was simply no certainty as to when the Applicant would have been capable of fulfilling the inherent requirements of her role.

[78] The Applicant may feel aggrieved at the consequence of the Respondent’s compliance with the CHO Directions and CHO Workers Directions, resulting in her dismissal on 28 October 2021. However, by her own decision to decline to receive a vaccination within the required timeframe, the Applicant was unable to fulfil the inherent requirements of the role that she had been employed for. I am consequently satisfied in the circumstances that the Applicant’s inability to fulfill the inherent requirements of the role for which she was employed founds a valid reason for her dismissal related to her capacity. This weighs in favour of a finding that the dismissal was not unfair.

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

[79] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,³⁷ and in explicit³⁸ and plain and clear terms³⁹.

[80] The Applicant received various correspondence from the Respondent on 1, 7, 14 and 18 October 2021 and participated in meetings with the Respondent on 18, 26 and 28 October 2021 regarding the CHO Directions and the requirement that she produce evidence of her vaccination status by the required dates to enable her to continue performing her normal duties outside of her place of residence. She also received specific notice in the 18 October Vaccination Status Letter that should she fail to receive the vaccination by the required dates, her ongoing employment would be reviewed.

[81] I am satisfied based on the above-referred correspondence and meetings held with the Applicant that she was notified of the reason for her dismissal prior to the decision being made. This factor weighs in favour of a finding that the dismissal was not unfair.

Opportunity to respond to any reason related to capacity or conduct - s.387(c)

[82] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment⁴⁰.

[83] The opportunity to respond does not require formality and the factor is to be applied in a common-sense way to ensure the employee is treated fairly⁴¹. Where the employee is aware of the precise nature of the employer’s concern about her or her conduct or performance and has a full opportunity to respond to the concern, this is enough to satisfy the requirements⁴².

[84] The Applicant claims that the Respondent had failed to follow its own three step process for dealing with an unvaccinated employee. That process she claims required that the potential for termination of employment be discussed at the third meeting whereas she says she was actually terminated at the third meeting. In my view the process followed by the Respondent disclosed neither avoidable haste nor unfairness despite the Applicant’s complaint.

[85] The Applicant was put on notice on 1 October 2021 by the Respondent’s CEO regarding the mandatory vaccination requirements imposed by the Victorian government. This notice immediately followed the issuing of the CHO Directions. The CEO message to all staff was then followed up by communication from the Respondent’s Pandemic Coordinator on 7 October 2021. The Applicant was subsequently afforded an opportunity to respond to the concerns of the Respondent regarding her unvaccinated status in meetings conducted on 18, 26 and 28 October 2021.

[86] In each of the above-referred meetings the Applicant confirmed that she was undecided and would not be getting vaccinated within the required timeframes. I am satisfied that the Applicant was provided with an opportunity to respond to the reason relied on by the Respondent for her dismissal. This weighs in favour of a finding that the dismissal was not unfair.

Support person – s.387(d)

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

[88] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“The factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”43

[89] The Applicant was offered and declined to be accompanied by a support person in the discussions related to her dismissal. In the circumstances, I regard this factor as a neutral consideration.

Warnings regarding unsatisfactory performance - s.387(e)

[90] The dismissal did not relate to unsatisfactory performance. This factor is therefore not relevant in the circumstances.

Impact of the size of the Respondent on procedures followed - s.387(f)

[91] The Respondent’s Form F3 - Employer Response indicates that at the time of the Applicant’s dismissal it employed approximately 450 employees. There is no evidence before me, and nor did either party contend, that the Respondent organisation’s size impacted on the procedures followed by it in dismissing the Applicant. This factor weighs neutrally in my consideration.

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

[92] The evidence in the matter indicates that the Respondent had access to the services of an in-house human resources specialist. This factor weighs neutrally in my consideration.

Other relevant matters – s.387(h)

[93] The Applicant raised the circumstances of Ms La Frenz as pointing to unfairness in the Applicant’s dismissal, specifically, that Ms La Frenz remains employed by the Respondent notwithstanding she has continued to perform her duties remotely rather than face to face. This the Applicant says reveals a harshness in the Respondent’s treatment of her by not allowing her to work from home for a temporary period while she resolved her concerns regarding vaccination.

[94] I am satisfied that Ms La Frenz’s circumstances are not relevant to my consideration of the Applicant’s dismissal. Firstly, Ms La Frenz was vaccinated within the required timeframes and is able to perform the full range of her duties. She is also in a different role to that the Applicant held. I accept that the incidence of face-to-face engagement by Ms La Frenz with her clients both during the period of the pandemic and since the Applicant’s dismissal is unarguably limited.

[95] The fact Ms La Frenz may have had little or no face-to-face contact with her clients due to the pandemic or since the mandatory vaccination requirements were introduced is not probative as to the requirements of the Applicant’s role. As previously found, a core and substantial requirement of the Applicant’s role was that of face-to-face engagement with clients. The clear evidence established that requirement continued during the pandemic, unlike Ms La Frenz’s circumstances. No parallels may be reasonably drawn between the circumstances of the Applicant and Ms La Frenz.

[96] I am satisfied that no other matters raised by the Applicant weigh in favour of a finding that the dismissal was unfair.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust, or unreasonable?  

[97] I have made findings in relation to each matter specified in s.387 of the Act as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust, or unreasonable 44.  

[98] As set out above, I am satisfied that a valid reason for the Applicant’s dismissal related to her capacity has been established and that the dismissal process followed by the Respondent was procedurally fair. The dismissal was not related to the Applicant’s performance and the size and capacity of the Respondent did not impact on the procedures that it followed and as such these matters weigh neutrally in my consideration of whether the dismissal was unfair. No other matters raised by the Applicant weigh in favour of a finding that the dismissal was unfair.

[99] It follows from the above that having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust, or unreasonable because there was a valid reason for the dismissal and no other factors weigh in favour of a finding that the dismissal was unfair.

Conclusion   

[100] Not being satisfied that the dismissal was harsh, unjust, or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the Act.  

[101] The application is dismissed. An Order will be separately issued giving effect to my decision.  

DEPUTY PRESIDENT

Appearances:

K O’Toole, Applicant.

M Minucci of Counsel for the Respondent.

Hearing details:

2022.

Melbourne (by Microsoft Teams):

March 1.

Printed by authority of the Commonwealth Government Printer

<PR738983>

1 Exhibit R2, Witness Statement of Jenny Svoboda dated 31 January 2022, Annexure JS-1, Letter of fixed-term employment dated 20 July 2018.

 2   Exhibit A4, Variation to current ACSO employment contract, dated 26 May 2021.

 3   Ibid at [12].

 4   Ibid at [14].

 5   Exhibit A11, Job Description, Family and Carers Program Worker

 6   Ibid at [18].

 7   Ibid, Annexure JS-4, Spreadsheet of Applicant appointments.

 8   Ibid at [19]-[20].

 9   Ibid at [22]-[23].

 10   Exhibit R2, Annexure JS-6, Email exchange between Ms Svoboda and Applicant dated 13 & 19 August 2021.

 11   Exhibit R2, Annexure JS-7, Email from Carol Chaiyot of Headspace Wonthaggi to Ms Svoboda, dated 22 December 2020.

 12   Exhibit R1, Witness Statement of Chantelle Miller dated 31 January 2021, Annexure CM-1, CEO Mandatory Vaccination message to staff, dated 1 October 2021.

 13   Exhibit R1, Annexure CM-2, Applicant response to mandatory vaccination requirement, dated 4 October 2021.

 14   Exhibit R1, Annexure CM-3, Pandemic Coordinator Update, dated 7 October 2021.

 15   Exhibit R1, Annexure CM-4, Email from Applicant, dated 8 October 2021.

 16   Exhibit R1 at [19].

 17   Ibid, Annexure JS-8. Vaccination Status Letter, dated 14 October 2021.

 18   Exhibit R2 at [29] & Annexure JS-9, Jenny Svoboda’s notes of meeting, Exhibit R1 at [21] & Annexure CM-6, Chantel Miller’s notes of meeting.

 19   Exhibit A9, Screen shot of medical appointment.

 20   Exhibit R2, Annexure JS-10, “Vaccination Status – summary and next steps” letter, dated 18 October 2021.

 21   Exhibit R2 at [32] & Annexure JS-11, Jenny Svoboda’s notes of meeting, Exhibit R1 at [24] & Annexure CM-7, Chantel Miller’s notes of meeting.

 22   Ibid at [34].

 23   Exhibit R2, Annexure JS-13, Letter of termination dated 28 October 2021.

 24   Exhibit R1, Annexure CM-3.

 25   Exhibit R2 at [27]-[29].

 26   Exhibit R1 at [44]-[46].

 27   Exhibit R2, Annexure JS-15, Email from Applicant to Charlotte Anderson, dated 28 October 2021.

 28   Exhibit R1, Annexure CM-8, Email from Applicant to staff, dated 28 October 2021.

 29   Ibid.

 30   Exhibit R1 at [32].

 31   Exhibit R1, Annexure JS-17.

32 MA000100.

33 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

34 Ibid.

35 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

 36   Exhibit R2, Annexure JS-6.

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

38 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

39 Ibid.

40 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

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

42 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

43 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].

 44   ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].