| [2022] FWC 1013 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Joanna Hadjipavli
v
Dnata Airport Services Pty Ltd
(U2021/11062)
DEPUTY PRESIDENT CROSS |
SYDNEY, 5 MAY 2022 |
Application for relief from unfair dismissal – public health order requiring vaccination against COVID-19 – valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed.
[1] Ms Joanna Hadjipavli (the Applicant) was employed by dnata Airport Services Pty Limited (the Respondent) at Sydney International Airport Precinct (Sydney Airport) prior to her dismissal on 11 November 2021. The Applicant was employed in the position of Service Desk Supervisor – Passenger Services (the Supervisor Role) which involved performance of duties of a Passenger Services Delivery Agent (the PSA Role).
[2] The Applicant was dismissed because she did not comply with the requirement imposed by the Respondent to provide them with proof of vaccination against the COVID-19 virus. On 1 December 2021, the Applicant lodged an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant contends that her dismissal was harsh, unjust and unreasonable according to the criteria in s 387 of the Act. The Respondent denies that allegation.
[3] Two of the Applicant’s co-workers, Ms Mariam Gharib and Ms Wafica Mourtada, were dismissed at the same time and in the same general circumstances as the Applicant. Ms Gharib and Ms Mourtada also made applications for unfair dismissal remedies, and I heard the Applicant’s, Ms Gharib’s and Ms Mourtada’s unfair dismissal claims against the Respondent in the course of the hearing on 10 and 11 February 2022. Each of the Applicants gave evidence in their own case and, where relevant, evidence in the case of each other Applicant. The Respondent adduced evidence from Mr Samuel Maybury, National Human Resources Manager of the Respondent.
Public Health Orders
[4] In the period leading up to the dismissals there were several public health orders gazetted by the NSW Minister for Health pursuant to s 7 of the Public Health Act 2010 (NSW) (the PH Act) in response to a COVID-19 outbreak in Sydney, including:
(i) The Public Health (COVID-19 Air Transportation Quarantine) Order (No 2) 2021 (the Public Health Order), which operated from 28 June 2021 at midday until the beginning of 1September 2021; and
(ii) The Public Health (COVID-19 Air Transportation Quarantine) Order (No 3) 2021 (the Updated Public Health Order), which operated from 1 September 2021 until the beginning of 27 November 2021
(together referred to as the Public Health Orders).
[5] The Public Health Orders included a series of vaccination requirements for nominated workers to:
(i) receive their first dose of a COVID-19 vaccine by 28 June 2021 (the first dose Vaccination Requirements); and
(ii) receive their second dose of a COVID-19 vaccine:
(a) within 3 months of having received the first dose; or
(b) by 29 September 2021.
(together referred to as the Vaccination Requirements).
[6] The Chief Health Officer granted an exemption to the first dose Vaccination Requirements in the Public Health Order until 6 July 2021 for certain employees.
[7] The Public Health Orders also provided an exemption to the Vaccination Requirements where a person had a medical contraindication to the COVID-19 vaccines certified by a medical practitioner and the Chief Health Offer.
[8] The Public Health Orders each referred to the NSW Airport and Quarantine Workers Vaccination Program (the Vaccination Program), a document approved by the Chief Health Officer and published on the website of NSW Health, which listed the classes of nominated workers subject to the Vaccination Requirements, as varied from time to time.
[9] The Vaccination Program identified customer service agents, including those performing the PSA Role, in a class of nominated workers subject to the Vaccination Requirements if they:
(i) provided services to relevant persons (excluding international flight crew members who were not ordinarily an Australian resident), from 28 June 2021 until 6 July 2021;
(ii) provided services in the environment where international arrivals and flight crew members were, or had been, which included boarding an aircraft, from 6 July 2021 until 1 November 2021; and
(iii) provided services at Sydney International Airport Terminal 1 in the environment where international arrivals and flight crew members were, or had been, which included boarding an aircraft, from 1 November 2021.
[10] The Public Health Orders define a relevant person to be:
(a) a person who –
(i) arrives in New South Wales by aircraft, whether the flight originates interstate or overseas, and
(ii) has, within 14 days immediately before the person’s arrival, been in a country other than Australia or New Zealand, or
(b) a person who arrives in New South Wales by aircraft from New Zealand and a second person on the aircraft, whether a crew member or passenger, has, within 14 days immediately before the first person’s arrival, been in a country other than Australia, New Zealand, the Cook Islands or Niue, or
(c) a relevant flight crew member.
[11] An airport worker listed in the Vaccination Program was not able to enter , or provide services in, relevant areas of Sydney Airport, in the course of their employment if they did not comply with the Vaccination Requirements or have an exemption. The Vaccination Program as at 25 June 2021 included the following class of airport workers:
“Airport staff, airline/freight staff, ground handlers, caterers, cleaners, customer service agents, ramp workers, baggage handlers, engineers, security and other private contractors providing services to relevant persons (excluding international flight crew members who are not ordinarily an Australian resident.”
[12] The Vaccination Program updated as at 6 July 2021 included the following class of airport workers:
“Freight staff, ground handlers, caterers, cleaners, customer service agents, ramp workers, baggage handlers, engineers and security staff providing services in the environment where relevant persons are, or have been, which includes boarding an aircraft.”
[13] Following the above change, the “Red Zone” at Sydney Airport referred to all areas after the passport control and security screening areas (which included relevant persons undertaking international transfers), all arrivals areas, and the Level 3 Administration area (which included persons who entered other Red Zone areas).
[14] On 6 July 2021, NSW Health provided guidance by email regarding who was covered by the Vaccination Requirements. That email stated:
“Staff must be vaccinated if they answer ‘Yes’ to any of the following:
1) The employees are listed in the NSW Airport and Quarantine Workers Vaccination Program in the NSW Testing Program (page 3)
2) The employees enter the designated Red Zones within Sydney Airport
3) The employees come in contact with international flight crew
4) The employees come in contact with arriving international passengers
5) The employees board an aircraft (where relevant persons* are or have been)
…
In the event staff do not meet the above criteria, NSW Health would still strongly recommend vaccination.”
[15] The Respondent was required to ensure that its employees covered by the Vaccination Program complied with the Vaccination Requirements. An employee listed in the Vaccination Program was required to produce evidence of vaccination for inspection if required to do so by the Respondent (Proof of Vaccination Requirement).
[16] It is an offence, punishable by monetary penalties and/or imprisonment, to fail to comply with the Public Health Orders without reasonable excuse.
Facts relating to the Applicant
[17] The Applicant commenced employment with the Respondent on 25 October 2010 in the PSA Role. Her last working shift for the Respondent was on 4 July 2021.
[18] On 1 July 2021, Mr Albert Bollard, Airport Services Manager of the Respondent, issued a memorandum dated 30 June 2021 to all employees of the Respondent in NSW, including the Applicant, regarding the Vaccination Requirements. The memorandum included the following:
“… we have no choice but to inform you that having your COVID-19 vaccination has now become an inherent requirement of an employee holding a role on airport [sic].
The minimum requirement to continue working in the role is to have at least one dose of a COVID-19 vaccination or a confirmed date for vaccination prior to 6 July 2021.”
[19] On 5 July 2021, the Applicant emailed the Passenger Services Manager of the Respondent, Ms Dennaoui, and advised:
“I am not in a position to discuss my situation with Clarice just yet. As I mentioned, the matter in [sic] personal and in direct relation with my health which comes under medical reasons.
However once I have seen my doctor and have an update I will contact Clarice to have a discussion.”
[20] On 4 August 2021, Ms Dennaoui sent an email to the Applicant (the August Email) that included the following:
“As per the public health order we require anyone who is working within the red zone as of 6th July 2021 to have at least one dose of the COVID-19 vaccination.
We are reaching out to you as we are yet to hear from you regarding your intention to be vaccinated. As entering the red zone is an adhered [sic] requirement of your role and we would like to further understand what your intentions are moving forward.
If you could please update us with your intentions to be vaccinated by Sunday 08th August 2021.”
[21] On 4 August 2021, the Applicant responded to the above email as follows:
“Before I advise Dnata of my intentions and situation, I would like to refer to Alberts email “port update resource segregation” sent on the 24th July.
As you would be aware, Albert mentioned that due to a covid case at the terminal, he would now segregate departments and staff will stick to performing one duty only so that they are based in one section of the terminal.
Given that information, I would be happy to be rostered on as service desk as the role does not require entry into a red zone. I am aware that a few staff members have already been moved around and accommodated so that they can still work if they have yet to receive the vaccine.
As there is meaningful work for me given the shortage of service desk supervisors and check in agents, I would appreciate being offered the opportunity to work as have several others.
Please let me know your thoughts.”
[22] Also on 4 August 2021, Ms Dennaoui responded to the above email of the Applicant at follows:
“Please note that the segregation is as follows:
• T2 (Matraville) is resourced on a stand alone basis. No cross utilization from T1 or GS (Ground Services includes Pax/ramp).
• T1 (Link Rd) is resourced on a stand alone basis. No cross utilization from T2 or GS.
• GS is resourced on a stand alone basis, no cross utilization from either cargo site.
• Based on existing skills [sic] sets, some members of the GS team (including ramp) have been allocated to either T1 or T2 only.
• As our passenger services team are in regular contact with relevant persons (as defined in the legislation) and in areas where relevant persons have been (as defined by the legislation) then anyone rostered to work in that department must have had at least one dose of a Covid-19 vaccination in order to be able to work.”
[23] On 4, 5 and 20 August 2021, the Applicant raised issues regarding the interpretation and application of the Public Health Orders. That exchange of emails concluded with an email from Mr Bollard to the Applicant as follows:
“Again I think you are confusing the health orders and our implementation of those requirements in our business. In a number of updates following the change effective the 28th of June I provided guidance as to whom within our business needed to comply with the requirement to have one dose of the vaccine.
In short, we have deemed everyone in passenger services as falling under that requirement as access to and working in, what Health defines as the Red zone, is an inherent requirement of your role.
I hope this clarifies.”
[24] On 14 September 2021, the Respondent sent a letter (the September Letter) to all Red Zone employees at Sydney Airport, including the Applicant, who had not yet complied with the Proof of Vaccination Requirement over the previous 12 week period. That letter relevantly provided as follows:
“Your role as a Passenger Services Delivery Agent at Sydney Airport is one of the categories of workers where there is a legal obligation on you under the Public Health Order and the Chief Health Officer’s directive to obtain the first dose of the COVID-19 vaccine in order for you to continue to work. To date we have not received an update from you whether or not you have decided to receive the COVID-19 vaccine.
As a result of the Order, until you provide proof of vaccination to dnata you cannot be rostered for work and you are unable to perform an inherent requirement of your role to enter the airport.
We now require you to confirm in writing by no later than 21 September 2021 whether you:
(a) have obtained the first dose of the COVID-19 vaccine and/or have an exemption approved by the Chief Health Officer and intend to return to work; or
(b) do not intend to get vaccinated.”
[25] Shortly after the above correspondence numerous emails flowed from and to the Applicant regarding Public Health Orders and vaccination requirements. The Applicant did not directly respond to the letter of 14 September until 21 September 2021, when she advised as follows (before then raising issues not directly related to the Vaccination Requirements or the direction given to her to comply with the Proof of Vaccination Requirement):
“In reply to your email and letter dated 14 September 2021, I wish to advise that I am uncomfortable discussing personal medical information with you as I feel intimidated and pressured by Dnata, not to mention it goes against the Privacy Act 1988.
As discussed several times, I will advise Dnata when I am ready and comfortable and have further information regarding medical advise [sic] and consultation with my Doctor.
Your letter is not a simple yes and no scenario. As stated by Dnata to other employees queries, the reason for this letter is because of predicted increase in flight activity toward the end of the year and the companies [sic] need to arrange staff training.”
[26] On 6 October 2021, the Respondent sent a letter (the October Letter) to all Red Zone employees at Sydney Airport, including the Applicant, who had not yet complied with the Proof of Vaccination Requirement over the previous 15 week period. That letter relevantly provided as follows:
“Your role as Passenger Service Delivery Agent at Sydney Airport is one [of] the categories of workers where there is a legal obligation on you under the Public Health Order and the Chief Health Officer’s directive to obtain the first dose of the COVID-19 vaccine in order for you to continue to work. To date, we have not received proof of vaccination or an exemption for you. dnata is required under the Public Health Order to ensure that employees comply with the vaccination requirement, and non-compliance would put dnata at risk of fines for breaching the Order.
As a result of the Order, until you provide proof of vaccination to dnata you cannot be rostered for work and you are unable to perform an inherent requirement of your role to enter the airport.
You are directed to confirm by no later than 1700 AEDT on Wednesday 13 October 2021 whether you:
(a) have obtained the first dose of the COVID-19 vaccine and/or have an exemption approved by the Chief Health Officer and intend to return to work; or
(b) do not intend to get vaccinated and any reasons why dnata should not terminate your employment based on your incapacity to perform the inherent requirement of your role to enter the Sydney Airport and/or refusal to comply with a lawful and reasonable direction of dnata.”
[27] On 13 October 2021, the Applicant responded to the above letter as follows:
“In response to your letter titled ‘letter to employee re vaccination issues’ and as discussed with HR during our meeting last week, I fully intend to get vaccinated. The letter has provided two options- neither [of] which apply to my situation.
As mentioned to HR, I currently have personal matters which need to be addressed before I feel comfortable receiving the vaccination. Therefore I can say that I am not yet vaccinated, however I do intend on being vaccinated in the near future.”
[28] On 5 November 2021, the Respondent requested the Applicant attend a formal meeting on 9 November 2021. The meeting invitation confirmed:
“We are requesting a formal meeting with yourself, regarding the public health order and your inability to comply with the public health order and receive at least the first dose of the covid-19 vaccine.”
[29] Later, on 5 November 2021, the Applicant advised the Respondent that she would not attend the meeting as directed due to “…serious personal matters”. Numerous attempts were made on the following days to arrange alternate meeting times or conference calls. Those attempts were rebuffed by the Applicant for “personal reasons”, and concerns of the Applicant that Mr Bollard had allegedly previously bullied her.
[30] On 11 November 2021, the Respondent issued a letter to the Applicant terminating her employment (the Termination Letter). The Termination Letter provided that the reasons for dismissal were:
1.ou have failed to comply with the Order and consequently you are prohibited by law from performing the inherent requirements of your role to enter Sydney Airport and work in the “Red Zone”. As a result, as a business we are unable to engage with you as a Passenger Services Delivery Agent and are unable to provide you with meaningful work; and
2. You have failed to comply with dnata’s lawful and reasonable direction to comply with the requirements in the Order. Despite being provided with a reasonable opportunity over five (5) months to comply with the direction you have failed to do so and have provided no reason for your refusal to comply with the Direction. This amounts to misconduct.”
[31] The Applicant submitted that her termination on 11 November 2021, by email, came without warning as all previous and related communication focused on her intentions regarding the COVID-19 vaccination.
[32] The Applicant raised what she described as privacy issues. She submitted that the Privacy Act 1988 (Cth) (the Privacy Act) protects her rights against illegal collection and storage of personal information such as medical records. The Applicant submitted that during a meeting on 5 October 2021, with Mr Maybury and Ms Clarice Gillies, Human Resources Coordinator, it was admitted that the medical information supplied by employees to the Respondent was accessible to people other than HR including members of management and administrative staff.
[33] Regarding the Public Health Orders, the Applicant made clear in her submissions that she was “not arguing against the Public Health Orders”, but rather asking for an outline of job roles and positions and how they are impacted by the Public Health Orders. In addition, as it was a business decision to segregate specific job areas, the Applicant asked how these job areas were determined and why it only applied to certain staff members. Further, it was submitted that the Public Health Orders have never stated a deadline by which to be vaccinated. They simply state employees cannot work in certain areas if they are not vaccinated.
[34] The Applicant submitted an unfairness arose from the fact that, although the Respondent separated the workplace into a Red Zone and a Green Zone, the Applicant claimed certain Red Zone areas still rostered unvaccinated employees to work.
[35] The Applicant noted that she requested to work in the Green Zone where she would not be required to be vaccinated, however this was denied by the Respondent as they argued that she would have contact with Red Zone staff. The Applicant submitted that during the period in which she was stood down, she made enquiries, both in person and written, about alternative jobs and/or roles in one of the various sites of the company but, she submits, was refused any such opportunity even though these sites were listed as Green Zones and were understaffed.
[36] The Applicant noted it was her intention to be vaccinated, and that this was also made clear to the Respondent. The Applicant submitted that she was never given a deadline by which to comply, nor was she warned that by not complying by a certain date she would be terminated. The Applicant submitted she was only given a deadline to respond to the Respondent’s questions which she did every time.
[37] The Applicant submitted further that she never rejected the Respondent’s requests for meetings, and she attended meetings until she realised that information given to her during the meetings was later denied. She subsequently requested for the meetings to be recorded, which was denied, and then requested for all meeting requests and communications to be in writing, via email. Once communication was again established, the Respondent requested she attend a meeting with Human Resources and Mr Bollard, whom she had previously claimed she felt bullied and harassed by.
[38] The Applicant noted that the last communication she had with the Respondent prior to receiving the Termination Letter of 11 November 2021 involved the Respondent again asking for her intentions regarding being vaccinated, to which she had replied that she did intend to be vaccinated.
[39] The Applicant submitted the Respondent had failed to consult about significant changes as required by the Enterprise Agreement. It was submitted that the Respondent failed to consult with employees, opting instead to simply send links to government websites and regurgitate Public Health Order requirements.
[40] The Respondent submitted that the matters in dispute were:
(a) Whether the PSA Role was required to work in the Red Zone, which was subject to the Vaccination Requirements; and
(b) Whether the Applicant’s dismissal was harsh, unjust or unreasonable under s 387 of the Act.
[41] The Respondent noted that at the core of the Applicant’s submissions is the inference that the Applicant did not understand her ongoing employment with the Respondent was at risk if she did not meet the Vaccination Requirements because no ‘particular date’ was set for when the Respondent would make a decision about her ongoing employment. The Respondent submitted that an objective analysis of the events leading to the dismissal over a 4.5 month period does not provide a rational basis for this belief.
[42] The Respondent submitted that s 387(a) of the Act requires that there is a valid reason for the dismissal related to the Applicant’s capacity or conduct. There were two reasons for dismissal set out in the Termination Letter sent to the Applicant that are relevant to the criteria in s 387(a) of the Act:
(a) Reason 1 – The Applicant did not have capacity to lawfully perform the inherent requirements of the PSA Role to enter Sydney Airport because she had not complied with the Vaccination Requirements; and
(b) Reason 2 – The Applicant failed to comply with the Respondent’s lawful and reasonable direction to comply with the Proof of Vaccination Requirement during the period from 28 June 2021 to 11 November 2021.
[43] With regard to Reason 1, the Respondent submitted that the concept of “capacity” in s 387(a) of the Act goes beyond the physical or skill capacity of the employee, and encompasses situations where employees do not have, or maintain, the necessary licence, certification, qualification, approval or accreditation to lawfully perform the inherent requirements of their job. 1 The PSA Role required the Applicant to enter Sydney Airport and work in the Red Zone areas, being the environment where international arrivals and flight crew members are or have been. The Applicant could not reasonably perform the inherent requirements of the PSA Role to provide passenger services at Sydney Airport by only performing limited duties outside the Red Zone areas. Accordingly, the Respondent submitted that the Public Health Orders applied to the Applicant in relation to her employment with the Respondent.
[44] The Respondent further submitted that the Applicant did not comply with the Proof of Vaccination Requirement prior to her dismissal on 11 November 2021.
[45] The Respondent submitted that the Applicant misconstrues the impact of her non-compliance with the Vaccination Requirements and Proof of Vaccination Requirement in the Public Health Orders. The Respondent notes that the Applicant alleges she was never in breach, and that the Public Health Orders “simply states we cannot work in certain areas if we are not [vaccinated]”. Working in the ‘certain areas’ of Sydney Airport covered by the Vaccination Requirements was an inherent requirement of the PSA Role. The effect of her non-compliance with the Vaccination Requirements meant she was unable to lawfully work in the PSA Role after the deadline stated in the Public Health Orders.
[46] The Respondent submitted that it would not have been reasonable for the Applicant to continue on unpaid leave for an indefinite period because, operationally, it needed to take steps to ‘stand up’ its workforce to meet increased customer demand for passenger services in November and December 2021.
[47] Regarding failure to comply with a lawful and reasonable direction, the Respondent submitted that the following directions given to the Applicant during meetings and correspondence in August, September and October were lawful and reasonable:
(a) a direction to confirm her intention to comply with the Vaccination Requirements and Proof of Vaccination Requirements within the 7 day timeframe for the response (or as extended by dnata); and
(b) a direction to provide any reasons why her employment should not be terminated for not complying with the Vaccination Requirements and Proof of Vaccination Requirement, including any relevant medical information, within the 7 day timeframe for the response.
[48] The Respondents submitted that the Public Health Orders provided that the employer of a nominated person must ensure they comply with the Vaccination Requirements, and that a nominated person must produce the nominated person’s vaccination evidence for inspection by their employer if requested to do so.
[49] The Respondent noted that an employee not complying with a mandatory vaccination requirement in a Public Health Order has been found by the Commission to be a valid reason for dismissal. 2 The Respondent submitted that it provided the Applicant with approximately 4.5 months to comply with the Public Health Orders and that this timeframe was more than a reasonable period for the Applicant to make an informed decision regarding getting vaccinated against COVID-19.
[50] The Respondent submitted that where the employee is aware of the precise nature of the employer’s concerns and has a full opportunity to respond to those concerns, this would ordinarily be enough to satisfy the requirements of s 387(b) and (c) of the Act. The Respondent submitted that it notified the Applicant on numerous occasions of concerns it held regarding the Applicant’s non-compliance with the Vaccination Requirements before the decision to terminate her employment was made on 11 November 2021. The Applicant was made aware in writing in the October Letter that the Respondent would be considering terminating her employment if she did not provide proof of vaccination. Further, the letters set out in plain and clear terms that such a dismissal would be based on her incapacity to perform the inherent requirements of the PSA Role, being to enter Sydney Airport, and/or refusal to comply with a lawful and reasonable direction of the Respondent.
[51] The Respondent noted that the Applicant did not request a support person to participate in any part of the process adopted by the Respondent regarding the Vaccination Requirements in the Public Health Orders.
[52] The Respondent noted that the airline industry was one of the first industries where the NSW Minister for Health issued Vaccination Requirements for workers under s 7 of the PH Act. This reflected the higher risk to public health of COVID-19 being introduced and transmitted from overseas arrivals at airports, including Sydney Airport. As an employer of airport workers covered by the Vaccination Requirements in Public Health Orders, the Respondent submitted it had to adapt to, and comply with, those requirements.
[53] The Respondent denied any differential unfair treatment of the Applicant compared to other employees. There were 19 employees in total in NSW who did not comply with the Vaccination Requirements and each subsequently had their employment terminated.
[54] The Respondent submitted that there were no alternative duties in the passenger services area for the Applicant to perform while she was not vaccinated because these roles required the employees to enter the Red Zone of Sydney Airport to perform their duties. While the majority of the cargo services area of the Respondent’s business was not subject to the Vaccination Requirements and not considered part of the Red Zone, the Respondent had issued several Internal Expressions of Interest (EOI) for positions in its Cargo business since July 2021. The Applicant did not respond to the EOI or confirm that she wanted to be permanently transferred.
[55] The Respondent submitted it is permitted, under Australia Privacy Principle (APP) 3.4(a) of the Privacy Act, to collect sensitive information if the collection is required or authorised by or under an Australian law. The collection of the proof of vaccination information from the Applicants was required or authorised by the Public Health Orders. Further, as the proof of vaccination information would have been directly related to the Applicant’s employment, the information would be part of the Applicant’s employee records, which are exempt from the APPs.
[56] The Respondent disputed that it was required to consult with employees under cl 7.4 of the dnata Passenger Services NSW Enterprise Agreement 2017. The Vaccination Requirement was a decision of the NSW Minister for Health under s 7 of the PH Act, and not a definite decision of the Respondent to make a major workplace change.
[57] Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of the application.
[58] There is no dispute between the parties, and I am satisfied on the evidence, that:
(a) The Applicant’s application for unfair dismissal was made within the period required in s 394(2) of the Act;
(b) The Applicant was a person protected from unfair dismissal;
(c) The Small Business Fair Dismissal Code did not apply to the Applicant’s dismissal; and
(d) The Applicant’s dismissal was not a genuine redundancy.
[59] Principally relating to the existence of Red and Green Zones within the Airport precinct, differing evidence was provided by the Applicant and Mr Maybury. Where any contested evidence occurred, I have preferred the evidence of Mr Maybury because:
(a) Mr Maybury gave considered and balanced evidence, that was supported by contemporaneous documentation;
(b) The Applicant appeared to tailor her evidence to conform with submissions she thought would best advance her claim regardless of its veracity; and
(c) Ms Gharib and Ms Mourtada gave certain relevant evidence consistent with that of Mr Maybury.
[60] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of that section in considering whether the Applicant’s dismissal was harsh, unjust or unreasonable. I will address each of these matters in turn below.
General principles
[61] It is necessary to consider whether the Respondent had 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. 3 In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded”4 and should not be “capricious, fanciful, spiteful or prejudiced.”5
[62] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 6 The question the Commission must address is whether there was a valid reason for the dismissal related to the Applicant’s capacity or conduct (including its effect on the safety and welfare of other employees).7
Consideration as to whether there was a valid reason
[63] I note that there were two reasons for dismissal set out in the Termination Letter sent to the Applicant that are relevant to the criteria in s 387(a) of the Act. They were:
(a) The Applicant did not have capacity to lawfully perform the inherent requirements of the PSA Role to enter Sydney Airport because she had not complied with the Vaccination Requirements; and
(b) The Applicant had failed to comply with the Respondent’s lawful and reasonable direction to comply with the Proof of Vaccination Requirement during the period from 28 June 2021 to 11 November 2021.
Inherent Requirements
[64] Regarding the issue of inherent requirements, there is no dispute that the Respondent was subject to the Public Health Orders. The Applicant did, however, dispute that the Public Health Orders applied to her in relation to her employment with the Respondent.
[65] As noted above, on 6 July 2021, NSW Health provided guidance regarding which employees were covered by the Vaccination Requirements. The Vaccination Program, updated as at 6 July 2021, included the following class of airport workers:
“Freight staff, ground handlers, caterers, cleaners, customer service agents, ramp workers, baggage handlers, engineers and security staff providing services in the environment where relevant persons are, or have been, which includes boarding an aircraft.”
[66] Following that change, the “Red Zone” area of the Sydney Airport referred to all areas after the passport control and security screening area (which included relevant persons undertaking international transfers), all arrivals areas, and the Level 3 Administration area (which includes persons who enter other Red Zone areas).
[67] I accept that the PSA Role and the Supervisor Role were required to work in the Red Zone. The PSA Role required employees to go past the passport screening area to the gates to perform the role as required. During a shift, the duties of a PSA may include checking in passengers for a component of a shift then heading through to the departure gates to assist with loading of aircraft and with wheelchair support for arriving international passengers.
[68] In cross-examination of Mr Maybury, the Applicant sought to suggest that all of the duties of the Supervisor Role were performed in the Green Zone, also referred to as the “land side”. In particular, the following exchange occurred: 8
“MS HADJIPAVLI: Okay. So I'll break it up. To the best of your knowledge as a service desk supervisor are duties performed on the landside area of the terminus?---Yes, that's correct, a portion of the duties are performed on land side. Correct.
So you're stating that a service desk supervisor, some of their duties are not performed land side?---That's correct.”
[69] And: 9
“MS HADJIPAVLI: Yes. You mentioned a variety of roles, because of the complexity of the airport and it's different for a variety of roles, which is why I specifically pointed to the service desk role. And your lawyer previously mentioned something regarding international crew and us having contact with international crew and that was my point. To your understanding, does the service desk at this time, during COVID, does the service desk have contact with international crew?---I would say that there is a chance that they have contact while being on the international airport precinct they could share facilities, or be in close contact with international crew, yes.
Right. Are you aware of the process for international crew, as they check in at the airport?---I'm not aware of individual's movements within the airport and what might arose when they were in the international terminal - no. And I wouldn't be able to comment on that.
So it's fair to say that your previous comment is void then. Because you can't really say the movement of international crew through the terminal?---To clarify - the response to that question being when an individual enters international terminal they have a choice as to which direction they walk, who they speak to, where they grab a coffee, where they go to the toilet and which lift they use. In the course of being a service desk supervisor at any given moment, in any given times, based on the Public Health Order, definitions of close contact - to my understanding there is a chance that a service desk supervisor could come into contact with international crew.”
[70] The above evidence regarding possible contact with international crew was corroborated by Ms Gharib 10 and Ms Mourtada11, and clarified by Mr Maybury in re-examination where he explained:12
“Mr Maybury, you were asked some questions about the service desk supervisor performing duties on landside and your answer was, 'yes a portion'. Can you tell the Commission what portion that would be?---So in relation to remaining in the check in area sitting at the desk processing such things as cash payments, any sort of challenges, customers facing challenges and obviously overseeing the check in thing would be the portion of which were, again, not being able to fully control where relevant persons may or may not be but that's the one area in which a portion may be considered to not come into contact with those people.
In any particular shift of the service desk supervisor that could have occurred?---Yes.”
[71] The PSA Role and the Supervisor Role required the Applicant to enter Sydney Airport and work in the Red Zone areas, being the environment where international arrivals and flight crew members were or had been. The Applicant could not reasonably perform the inherent requirements of the PSA Role or the Supervisor Role to provide passenger services at Sydney Airport by only performing limited duties outside the Red Zone areas.
[72] Further, the Applicant did not comply with the Proof of Vaccination Requirement prior to her dismissal on 11 November 2021. The Applicant was not able to fulfil the inherent requirements of the PSA Role or the Supervisor Role between midday on 28 June 2021 and 11 November 2021 because she was prohibited under the Public Health Orders from lawfully entering relevant areas of Sydney Airport for work.
[73] It would not be reasonable for the Applicant to remain on unpaid leave indefinitely, because the Respondent faced operational pressures to increase its workforce to meet increased customer demand for passenger services in November and December 2021.
Lawful and Reasonable Directions
[74] I consider that the directions given to the Applicant during meetings and in the August Email, September Letter and October Letter were lawful and reasonable. The Public Health Orders provided that the Respondent must ensure compliance with the Vaccination Requirements and that a nominated person must produce the nominated person’s vaccination evidence for inspection by their employer if requested to do so.
[75] I consider that those directions were:
(a) lawful, because they related to the subject matter of the Applicant’s ability to lawfully attend work in circumstances where the Vaccination Requirements under the Public Health Orders applied to her employment; and
(b) reasonable, because the Respondent had an obligation under the Public Health Orders to ensure employees complied with the Vaccination Requirements and could be fined if an employee did not comply.
[76] Compliance with the Public Health Orders was not an optional matter for the employer of a nominated person, such as the Respondent. Compliance with the Public Health Orders was not an optional matter for a nominated person wanting to undertake the prescribed work, such as the Applicant. An employee not complying with a mandatory vaccination requirement in a Public Health Order has been found by the Commission to be a valid reason for dismissal. 13
[77] The Respondent provided the Applicant with approximately 4.5 months to comply with the Public Health Orders. This timeframe was more than a reasonable period for the Applicant to make an informed decision regarding getting vaccinated against COVID-19. Unfortunately, the approach adopted by the Applicant in response to the clear requests of the Respondent was one of obfuscation.
[78] I therefore consider that the reasons for the Applicant’s dismissal provided in the Termination Letter amounted to valid reasons for the dismissal related to the Applicant’s capacity or conduct.
[79] The Applicant was notified of the reasons for her dismissal in the Termination Letter.
[80] The Applicant was given opportunities to respond, and did in fact respond, to the reason for her dismissal in her written communications to the Respondent in the period leading up to her dismissal.
[81] Having regard to all the circumstances, I am satisfied that the Applicant was given an opportunity to respond to the reason for dismissal related to her capacity.
[82] The Applicant was offered a support person for the meeting to be held on 9 November 2021. The Applicant advised she would not attend the meeting as directed due to “…serious personal matters”, however no further details or supporting information regarding such matters was provided, and attendance at a conference call was also resisted. I have no difficulty in finding that, were the Applicant to have ever consented to a meeting as requested by the Respondent, that a support person would again be offered to the Applicant.
[83] The Applicant was not dismissed for unsatisfactory performance. This criterion is not relevant to the present case.
[84] The Respondent is a substantial enterprise. It has human resource management specialists and expertise. In all the circumstances, I am satisfied that neither the size of the Respondent’s enterprise nor any absence of human resource management specialists or expertise had any impact on the procedures followed in effecting the Applicant’s dismissal.
[85] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
[86] Regarding the Applicant’s submission that the Respondent did not consult with employees as required under cl 7.4 of the dnata Passenger Services NSW Enterprise Agreement 2017, I find that the Vaccination Requirements were decisions of the NSW Minister for Health under s 7 of the PH Act, and not a definite decision of the Respondent to make a major workplace change. 14
[87] As to the Applicant’s assertions of breach of the Privacy Act, the Respondent is permitted under APP 3.4(a), to collect sensitive information if the collection is required or authorised by or under an Australian law. The collection of the proof of vaccination information from the Applicant was required or authorised by the Public Health Orders. Further, as the proof of vaccination information would have been directly related to the Applicant’s employment, the information would be part of the Applicant’s employee records, which are exempt from the APPs.
[88] I do not consider that there was any unfair treatment of the Applicant compared to other employees. I accept Mr Maybury’s evidence that there were 19 employees in total in NSW who did not comply with the Vaccination Requirements and each subsequently had their employment terminated. While the Applicant presented evidence of an apparently unvaccinated employee obtaining a position in the T2 Cargo Warehouse, situated some 20 minutes from the Airport Precinct, it is clear that position was obtained two months after the Applicant’s employment ceased, and after the Public Health Orders had changed.
[89] The Applicant’s focus on other roles she could have performed while unvaccinated was misguided because, unlike the apparently unvaccinated employee who obtained a position in the T2 Cargo Warehouse after expressing an EOI, the Applicant did not submit an EOI, despite the Respondent issuing several EOI’s for positions in its Cargo business, the majority of which was not subject to the Vaccination Requirements from July 2021.
[90] After considering each of the matters specified in s 387 of the Act, my evaluative assessment is that the Respondent’s dismissal of the Applicant was not harsh, unjust or unreasonable. The Respondent had a valid reason for the dismissal, and it afforded procedural fairness to the Applicant prior to making the decision to bring her employment to an end.
[91] The Respondent was required to comply with the Public Health Orders. The effect of the Public Health Orders was that the Applicant was unable to undertake work at the Respondent from 4 July 2021. There were no alternative duties available for the Applicant.
[92] I am satisfied that the Respondent’s dismissal of the Applicant was not unfair. The Application is dismissed.
DEPUTY PRESIDENT
Appearances:
J Hadjipavli, Applicant.
S Burke for the Respondent.
Hearing details:
2022.
Sydney (by video):
February 10 to 11.
Printed by authority of the Commonwealth Government Printer
<PR741183>
1 Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at [42].
2 Shepheard v Calvary Health Care T/A Little Company Of Mary Health Care Limited [2022] FWC 92 at [31]; Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818 at [63].
3 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at [373, 377-8]
4 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at [373]
5 Ibid
6 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at [685]
7 Ibid
8 Transcript PN 738 and 739.
9 Transcript PN 751 to 753.
10 Transcript PN 397 and 398.
11 Transcript PN 565, 566
12 Transcript PN 1038 and 1039.
13 Shepheard v Calvary Health Care T/A Little Company Of Mary Health Care Limited [2022] FWC 92 at [31].
14 Taylor v WesTrac Pty Ltd [2021] FWC 6595 at [17]-[19].