Fair Work Act 2009
s.394—Unfair dismissal

Steven Symbonis
v
Telstra Corporation Ltd
(U2021/10843)

Application for an unfair dismissal remedy – dismissal not harsh, unjust or unreasonable – application dismissed.

Introduction

[1] On 26 November 2021, Mr Steven Symbonis made an application to the Fair Work Commission (Commission) under section 394 of the Fair Work Act 2009 (Cth) (Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Telstra Corporation Ltd (Telstra/the Respondent). Mr Symbonis seeks among other things, compensation and reinstatement.

[2] The Respondent denies that Mr Symbonis was unfairly dismissed.

Hearing and Witnesses

[3] Mr Symbonis’ application was the subject of a hearing before me on 24 March 2022.

[4] Mr Symbonis appeared on his own behalf. The Respondent sought permission to be represented by Mr Michael Tamvakologos of Seyfarth Shaw. Mr Symbonis had no objection to the Respondent being represented. I considered that representation of Telstra would enable the matter to be deal with more efficiently, taking into account the complexity of the matter. Accordingly, I granted permission for Mr Tamvakologos to appear for the Respondent pursuant to section 596(2)(a) of the Act.

[5] Mr Symbonis gave evidence on his own behalf.

[6] Mr Ian Wilson gave evidence on behalf of the Respondent.

[7] Mr Symbonis filed his outline of submissions and supporting material on 22 February 2022. The Respondent filed its outline of submissions, witness statement of Mr Ian Wilson and supporting material on 8 March 2022. Mr Symbonis did not file a witness statement and it was agreed at the commencement of the hearing that his Form F2 1 and his outline of submissions would comprise his evidence in this matter.

Initial matters

[8] Turning first to the initial matters which must be decided before the merits of the application are considered, it is not in dispute and I find that:

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

•  Telstra is not a small business employer, having 15 or more employees at the relevant time and the Small Business Fair Dismissal Code therefore does not apply;

•  Mr Symbonis was an employee who had completed a period of employment with Telstra of at least the minimum employment period;

•  at the time of dismissal Mr Symbonis was a person protected from unfair dismissal; and

•  the dismissal was not effected for reasons of redundancy, and so it was not a case of genuine redundancy.

Conclusion

[9] I have concluded that Mr Symbonis’ dismissal was not harsh, unjust or unreasonable. These are my reasons for that conclusion.

Background and findings of fact

Employment

[10] Mr Symbonis commenced employment with Telstra in the role of Constructor Operative, 3ii (Role) in April 2018 pursuant to a written contact of employment dated 29 March 2018 (Contract). 2 The Contact, relevantly, provides as follows:

“Many of the benefits, rules and procedures that apply at Telstra are set out in Telstra Policy. You can review Telstra Policy on the Telstra intranet at any time (including before you sign this agreement) or request a copy from your manager.

It is important that you comply with, review and ensure you are familiar with Telstra Policy that may apply to you, although Telstra Policy does not form part of this agreement.”

[11] I therefore find that Mr Symbonis was required under his contract of employment to comply with Telstra policies.

[12] In the Role Mr Symbonis is responsible for the completion of the end-to-end installation, testing, commissioning and maintenance of Telstra’s network sites and associated infrastructure. 3 It is uncontested that in the Role Mr Symbonis was required to attend a range of sites including hospitals and retail shopping centres.4 It is also uncontested that Mr Symbonis could not perform the Role from home.

Telstra Vaccination Policy

[13] On 6 September 2021 Mr Andy Penn, Chief Executive Officer of Telstra sent an email to all employees announcing that Telstra was going to begin a one week consultation period with all staff, unions and some partners on a proposed COVID-19 vaccination policy (Policy). 5 On 13 September 2021 the consultation period was extended by one week6 and ultimately closed on 20 September 2021.7

[14] The Policy was published on 30 September 2021. 8 The Policy, in summary, required certain employees (Relevant Employees) to be vaccinated with a COVID-19 vaccination by a specified date. Relevant Employees located in Victoria covered by the Policy were required to have received a first dose vaccination by 15 October 2021 and a second dose by 15 November 2021.

[15] The Policy provided that Relevant Employees included employees:

•  in roles that frequently interacted with customers and other members of the public;

•  in roles that were required to work in high risk locations with vulnerable persons or in locations that might lead to COVID-19 outbreaks if infected people come into contact with members of the public, such as medical facilities, aged care centres, schools and shopping centres; and

•  who were required by government or health regulations to be vaccinated to enter a location or premises.

[16] The Policy provided for an exemption from compliance on the ground of medical exemption and also provided as follows:

“In Australia, in the absence of an exemption on medical grounds, where Telstra has formed the view that there is a safety requirement to be vaccinated, you must comply with a direction to be vaccinated. If you do not comply with this direction, then it will be managed under Telstra’s Code of Conduct.

Whilst we expect our people will comply with what is a reasonable health and safety requirement, we cannot ‘force’ an employee to be vaccinated. However an on-going refusal to comply may lead to termination of employment.”

[17] Finally, I note that the Policy makes reference to “anticipated Public Health orders” being made in Victoria and New South Wales pursuant to which workers not able to work from home must be fully vaccinated before returning to work.

[18] It is uncontested that Mr Symbonis is a Relevant Employee. Accordingly, under the terms of the Policy Mr Symbonis was required to have received the first dose of a COVID-19 vaccination by 15 October 2021.

Public Health Directions

[19] On 7 October 2021 the Acting Chief Health Officer issued the following directions pursuant to section 200(1)(d) of the Public Health and Wellbeing Act 2008 (Vic):

•  COVID-19 Mandatory Vaccination (Workers) Directions (Workers Direction); 9 and

•  COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 6) (Facilities Direction) 10.

[20] The Workers Direction required Telstra to:

•  collect, record and hold vaccination information about a worker, where the worker was, or may have been scheduled to work outside of home on or after 15 October 2021; 11

•  not permit an unvaccinated worker to attend for work outside their home on or after 15 October 2021, unless the worker had a booking to receive their first dose of a COVID-19 vaccine by 22 October 2021 (unless exceptional circumstances existed); 12

•  treat any worker who did not provide vaccination information as being unvaccinated; 13 and

•  communicate the public health requirements to workers. 14

[21] A ‘worker’ included a person who:

•  works in connection with specialist services at telecommunications stores to support telecommunications as a critical service during the COVID-19 pandemic; 15

•  works in connection with a major event (that has received an exemption to proceed) including any worker and public broadcast personnel that support the safe running of the major event; 16

•  works at, or in connection with a retail facility (including a retail shopping centre) or wholesale or distribution facility; 17 and

•  works at, or in connection with a custodial facility that is used for the detention of persons, including a prison. 18

[22] The Facilities Direction required operators of residential aged care, healthcare and education facilities to:

•  collect, record and hold information about workers, if the worker was, or may have been scheduled to work at a specified facility on or after the relevant date; 19

•  take all reasonable steps to ensure that, on or after the relevant date, an unvaccinated worker did not attend their premises for work (unless exceptional circumstances existed, or the worker had a booking to receive a first dose of a COVID-19 vaccine by the first dose deadline); 20

•  treat any worker who did not provide vaccination information as being unvaccinated; 21 and

•  communicate the public health requirements to workers. 22

[23] The Facilities Direction defined ‘residential aged care facility worker’, ‘healthcare worker’ and ‘education worker’ as follows:

•  Residential aged care facility worker: a person that is engaged as a contractor by an operator that operates a residential aged care facility to perform work at that facility, including ancillary staff including general maintenance staff. 23

•  Healthcare worker: a person who is engaged as a contractor by a healthcare operator to perform at a healthcare facility such as a hospital, administrative or ancillary roles, including maintenance and repair and information technology. 24

•  Education worker: a person contracted to work at an education facility who will or may be in close proximity to children, students or staff whether or not engaged by the education operator. 25

[24] It appears uncontested, and I find, that the Workers Direction and the Facilities Direction applied to Telstra and operators of relevant facilities in respect of the work undertaken by Mr Symbonis in the Role.

[25] Accordingly, under the terms of the Policy Mr Symbonis was a Relevant Employee and was required to be vaccinated. Further, from 7 October 2021 the provisions of the Policy that required employees subject to health directions to, inter alia, be vaccinated, also applied to Mr Symbonis. Finally, from 7 October 2021 the Workers Direction and the Facilities Direction also, inter alia, required Mr Symbonis to be vaccinated, irrespective of any obligation arising under the Policy.

First direction to obtain a vaccination against COVID-19

[26] Mr Wilson’s uncontested evidence is that on 11 October 2021 he telephoned Mr Symbonis and confirmed that under the Policy Mr Symbonis was required to have his first vaccination by 15 October 2021 and enquired as to whether Mr Symbonis intended to be vaccinated. 26 Mr Symbonis said that he had concerns about receiving a COVID-19 vaccination. Mr Wilson’s further evidence is that he told Mr Symbonis that all employees in his role were required to have received a first vaccination by 15 October 2021 and explained the process by which a medical exemption may be sought.27

[27] Later that day Mr Wilson sent Mr Symbonis a letter by email. 28 That letter is headed “Lawful and Reasonable Direction” and directs Mr Symbonis to comply with the Policy and have a first dose COVID -19 vaccination by 15 October 2021 and second dose vaccination by 15 November 2021 (Direction). The letter also provides as follows:

“This is a reasonable and lawful direction. Failure to comply with this direction by the 15th October 2021 (NSW & VIC) or 29th October 2021 (outside NSW/VIC) may result in disciplinary action under Telstra's Code of Conduct, which may include termination of your employment. You may be suspended from work whilst an investigation into your failure to comply with this direction is conducted.”

[28] Mr Symbonis’ evidence at hearing was that he had not been vaccinated against COVID-19 and he did not have a medical exemption. 29

Meetings

[29] Mr Wilson’s uncontested evidence is that on 18 October 2021 he held a meeting with Mr Symbonis via Microsoft teams. At that meeting Mr Symbonis told Mr Wilson that he had not had a first dose of a COVID-19 vaccination and that he had “ethical concerns” about the vaccine. 30

[30] On 19 October 2021 Mr Wilson sent Mr Symbonis a further letter by email, suspending him on full pay while Telstra “investigate[s] alleged unacceptable conduct by you; in particular, failing to comply with a reasonable and lawful direction to comply with Telstra policy” (Suspension Letter). 31 The Suspension Letter requested that Mr Symbonis provide his written response to the alleged unacceptable conduct, that is, the failure to comply with a reasonable and lawful direction, by 4 pm 20 October 2021.

[31] Mr Wilson’s uncontested evidence is that later that day Mr Symbonis called him and requested a face-to-face meeting to discuss the Suspension Letter. Mr Symbonis also said that he would respond in writing to the Suspension Letter. 32

[32] On 20 October 2022 Mr Symbonis responded to the Suspension Letter. 33 That response is headed “My response to the mandatory vaccination policy” and commences as follows:

“The mandatory vaccination policy is a direct violation against my GOD given and basis human rights of fundamental freedoms as a human being.”

[33] In the response, Mr Symbonis objects to the mandatory vaccination policy and raises a range of matters related to the restrictions imposed on Victorians during the lockdowns implemented by the Victorian Government. He also identifies the safety measures he uses in his work, such as wearing gloves, sanitising and washing his hands and states that the available COVID-19 vaccines are only provisionally approved. The response does not however directly address the allegation that he failed to comply with a reasonable and lawful direction.

[34] On 21 October 2021 a meeting via Microsoft teams was held. Mr Wilson, Mr Higgins and Mr Symbonis attended the meeting. Mr Higgins took notes of the meeting which were subsequently provided to Mr Symbonis 34 and which he reviewed and returned.35 Mr Symbonis was invited to bring a support person but chose not to do so.36 At the meeting Mr Symbonis confirmed that he did not intend to be vaccinated because he was not confident in the vaccine and that under the Policy he was required to have had the first dose of a COVID-19 vaccine by 15 October 2021. As to why he had not complied with the Policy Mr Symbois said that the Policy was not “the right path”, it was unethical in the way in which it was made, his ability to keep himself safe without vaccination was “second to none”, and the Policy went “against my own humanity”. He also referred to the matters contained in his written response of 20 October 2021. In response to whether Mr Symbonis intended to book an appointment to be vaccinated he said that he did not have a booking at that time but may in the future. Mr Symbonis considered there was insufficient information on the long term effects of vaccination to allow him to agree to vaccination.37 Mr Wilson advised Mr Symbonis that Telstra would review his responses and arrangement a further meeting to advise on the investigation findings and the outcome.38 Mr Symbonis confirmed that he understood that one of the outcomes was that his employment may be terminated.39 Following the meeting, Mr Symbonis emailed Mr Wilson an updated more fulsome response based on that which he provided on 20 October 2021.40 In that response Mr Symbonis says, in addition to the matters set out above, that being forced to participate in an experimental medical procedure is violating his human rights of freedom of choice and freedom to choose what enters his body and what medical treatment to take.41

[35] Mr Wilson’s evidence is that he considered all of Mr Symbonis’ responses against the Policy and the Direction but did not consider they provided a reasonable excuse for failing to comply with the Direction. 42

[36] On 26 October a further meeting was held, via Microsoft Teams, with Mr Symbonis and Mr Wilson. Mr Higgins again also attended. Mr Symbonis chose not to bring a support person. At the meeting Mr Wilson informed Mr Symbonis that he had found that Mr Symbonis had failed to comply with a lawful and reasonable direction. Mr Wilson informed Mr Symbonis that he proposed to issue him with a final warning for unacceptable conduct and also a further direction requiring him to book and obtain his first COVID -19 vaccination within the next 48 hours and provide evidence to support this. Mr Wilson’s evidence was that the did not issue the warning or the further direction at that time as he wanted to give Mr Symbonis a further chance to consider his position. 43

Final warning and further direction

[37] On 27 October 2021 Mr Wilson again met with Mr Symbonis via Microsoft Teams. He asked Mr Symbonis whether he had reconsidered his position. Mr Symbonis said he had not. 44 Shortly thereafter Mr Wilson sent Mr Symbonis, via email, a final warning for failing to comply with a lawful and reasonable direction issued to him on 11 October 2022 and directing him to obtain a first COVID-19 vaccination within 48 hours and a second vaccination by 1 December 2021 (Further Direction). The email provided as follows:

“…Failure to comply with this direction may result in disciplinary action under Telstra’s Code of Conduct, which may include termination of your employment….” 45

[38] Mr Wilson’s uncontested evidence is that Mr Symbonis advised him that he had not booked an appointment nor obtained a first dose vaccination as directed. 46

[39] On 4 November 2021 Mr Wilson met with Mr Symbonis via Microsoft teams. Mr Higgins was again present to take notes. Mr Symbonis chose not to bring a support person. 47 At the meeting Mr Wilson’s evidence is that he informed Mr Symbonis that he had determined that Mr Symbonis had failed to comply with the Further Direction, had failed to comply with the Policy and was unable to undertake the inherent requirements of the Role. 48 Mr Symbonis said that “he had not failed” and that the Policy was “wrong”.49 Mr Wilson told Mr Symbonis that he proposed to terminate his employment. However, Mr Wilson said he was prepared to offer Mr Symbonis a further week, either as annual leave or leave without pay, to obtain his first vaccination.50 When asked for his response Mr Symbonis said that he couldn’t think of anything, did not have a response and that his “ability to process things at the moment has stalled”.51 Mr Wilson’s evidence is that he adjourned the meeting until the following day to allow Mr Symbonis time to consider his response.52

[40] On 5 November 2021 Mr Wilson held a further meeting with Mr Symbonis via Microsoft Teams. Mr Higgins was again present to take notes. Mr Wilson reiterated the offer of a further period for Mr Symbonis to obtain a vaccination. Mr Symbonis responded saying that he was “still not sure about the vaccination”. 53

Dismissal

[41] By letter dated 5 November 2021 (Termination Letter) Mr Symbonis’ employment with Telstra was terminated. The Termination Letter provides that Mr Symbonis’ employment is terminated, effective immediately, for unacceptable conduct being the failure to comply with “a lawful and reasonable direction issued to you on 27^th Oct 2021, which directed you to obtain a COVID vaccination by 29^th Oct 2021”. 54

[42] Mr Symbonis was paid three weeks’ pay in lieu of notice.

Consideration

Was the dismissal harsh, unjust or unreasonable?

[43] 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.

[44] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 55

[45] I set out my consideration of each below.

Was there a valid reason for Mr Symbonis’ dismissal? – Section 387(a)

[46] The principles that are relevant to the consideration of whether there was a valid reason for the dismissal related to the employee’s capacity or conduct are well established. A valid reason is one that is “sound, defensible or well founded” 56 and should not be “capricious, fanciful, spiteful or prejudiced.”57

[47] The Commission does not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 58 The question the Commission must address is whether there is a valid reason, in the sense both that it was a good reason and a substantiated reason.

[48] The Act requires consideration of whether there was “a” valid reason for dismissal. Where several reasons for termination are invoked, it is not necessarily the case that all must be substantiated.  59 It is also well established that a valid reason need not necessarily be the one relied upon by the employer.60

Was there a valid reason for Mr Symbonis’ dismissal related to his capacity or conduct?

Applicant’s submissions

[49] Mr Symbonis submits that he did not engage in any misconduct justifying his dismissal. He submits that the “policy to mandate a medical intervention/injection does not fall in line with a free and democratic society that I/we live in and is in breach of my human right to choose what enters my body.” 61 He submits that the Respondent has failed to consider the adverse reactions to vaccinations and also failed to recognise that there “is a 99% recovery rate for all individuals except for the vulnerable and the elderly.”62

Respondent’s submissions

[50] The Respondent submits that it had a valid reason for dismissing Mr Symbonis, being his failure to comply with the Further Direction in compliance with the Policy. The Respondent submits Mr Symbonis was required to comply with the Respondent’s policies pursuant to his contract of employment, required to comply with the law pursuant to the Respondent’s Code of Conduct and was precluded by the Workers’ Direction and Facilities Direction from undertaking his duties whilst unvaccinated after 7 October 2021. 63

[51] I consider it clear that there was a valid reason for Mr Symbonis’ dismissal. I have earlier found that the Workers Direction and the Facilities Direction applied to Telstra and operators of relevant facilities in respect of the work undertaken by Mr Symbonis in the Role. Accordingly, after 15 October 2021, unless Mr Symbonis had a booking to receive a COVID-19 vaccination by 22 October 2021, Telstra was prohibited by law from allowing Mr Symbonis to work outside his ordinary place of residence if he was unvaccinated. Further, operators of various facilities, including aged care residential facilities, healthcare facilities and education facilities were required, after various dates in October 2021, to take reasonable steps to prevent an unvaccinated worker from attending their site. It is entirely uncontentious that Mr Symbonis could not perform the Role from home. From 15 October 2021 Mr Symbonis was therefore unable to perform his job. Mr Symbonis was entitled to choose not to be vaccinated, and indeed, did exercise that choice. The consequence of that choice though was that he rendered himself unable to perform his role of Constructor Operative. This is a valid reason for his dismissal. The fact that this was not relied upon by Telstra at the time of dismissal does not render it any less valid. It is for the Commission to determine whether there was a valid reason for an employee’s dismissal. Incapacity to work is a clear valid reason for dismissal. It is no answer to this to say, as Mr Symbonis does, that he had been performing the Role adequately during the pandemic using other protective mechanisms, such as masks, hand sanitiser, gloves and hand washing. 64 Telstra was required to comply with the Workers Direction and a failure to do so exposed it to a significant financial penalty.

[52] As to whether there was a further valid reason based on a failure to comply with a lawful and reasonable direction, it is well established that a refusal to obey a lawful and reasonable direction can constitute a valid reason for termination. 65 The obligation on an employee to comply with the lawful and reasonable directions of an employer is a fundamental term of the contract of employment. The requirement that the direction be lawful has two dimensions. One is that the employer cannot demand that an employee act unlawfully. The other is that the direction must be within the scope of the contract of employment.66 The latter reflects the ‘general rule … that a contract by which a person is employed in a specific character is to be construed as obliging him to render, not indeed all service that may be thought reasonable to render, but such service only as properly appertains to that character’.67

[53] Telstra’s direction did not require Mr Symbonis to act unlawfully. The question is whether it was within the scope of his contract of employment. In the present case, Telstra was prohibited by law from allowing Mr Symbonis to work outside his ordinary place of residence if he was unvaccinated. Telstra directed Mr Symbonis to be vaccinated. This direction clearly appertained to Mr Symbonis’ Role; unless he followed the direction, he could not do his job at all. I consider that a direction to an employee to do something that is a necessary condition for a state of capacity to do his or her job is a lawful direction. Whether it is also a reasonable one will depend on all the circumstances. In my view, in the circumstances of this case, Telstra’s direction was reasonable. The Role required Mr Symbonis to move from location to location. He performed his duties at a range of high risk facilities such as health care facilities, shopping centres and sporting stadiums, coming into contact with customers, members of the community and other workers. Further, it was consistent with the terms of the Policy regarding health regulations. Mr Symbonis did not propose any reasonable alternatives. Accordingly, I consider that Telstra had a further valid reason to dismiss Mr Symbonis, one which involved misconduct constituted by a refusal to follow a lawful and reasonable direction.

Was Mr Symbonis notified of the valid reason? – Section 387(b)

[54] Section 387(b) requires the Commission to take into account whether an employee has been notified of the reasons for dismissal. Notification of a valid reason for termination must be given before the decision is made to terminate the employee’s employment, 68 and in explicit69 and plain and clear terms.70 In Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport)71 a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 observed:

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 72

[55] On 27 October 2021Mr Symbonis was issued with a final warning for failing to comply with the Direction. At the meeting on 4 November 2021 Mr Wilson informed Mr Symbonis that he had determined that Mr Symbonis had failed to comply with the Further Direction and had failed to comply with the Policy. At this meeting Mr Wilson told Mr Symbonis that he proposed to terminate his employment. Mr Symbonis was therefore notified of the proposed reason for dismissal related to his failure to comply with a reasonable and lawful direction. I have, however, also found that incapacity was one of the valid reasons for dismissal. Although I accept that Mr Symbonis was not expressly notified of this reason, I consider that he was notified in substance even though Telstra did not rely upon it at the time of dismissal.

Was Mr Symbonis given an opportunity to respond to any valid reason related to his capacity or conduct? - Section 387(c)

[56] Section 387(c) requires the Commission to take into account whether an employee was provided an opportunity to respond to any reason for their dismissal relating to their conduct or performance. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 73

[57] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 74 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.75

[58] In Wadey v YMCA Canberra 76 Moore J stated the following principle about the right of an employee to appropriately defend allegations made by the employer:

“[T]he opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.”

[59] As set out above, Mr Wilson met with Mr Symbonis on 4 November 2021. At that meeting Mr Symbonis was given an opportunity to respond to the allegation that he had failed to comply with the Further Direction and indeed, did respond, saying that “he had not failed” and that the Policy was “wrong”. 77 Further, throughout the course of October there was numerous correspondence sent to, and meetings held with, Mr Symbonis regarding Telstra’s direction regarding vaccination. I am satisfied that Mr Symbonis was given an opportunity to respond to this reason for his dismissal and that opportunity was reasonable. As to whether Mr Symbonis was provided with an opportunity to respond to the reason for his dismissal relating to his incapacity to perform the Role, as set out above this was not expressly relied upon by Telstra as a ground for Mr Symbonis’ dismissal. However, Mr Symbonis was aware that he would not be able to perform his role if he refused to be vaccinated and that his failure to be vaccinated was the reason for the meeting on 4 November 2021. Accordingly, I consider no unfairness arises from this.

Did Telstra unreasonably refuse to allow Mr Symbonis to have a support person present to assist at discussions relating to the dismissal? - Section 387(d)

[60] Section 387(d) requires the Commission to take into account whether there was an unreasonable refusal by the employer to allow an employee to have a support person present to assist in discussions relating to dismissal.

[61] Mr Symbonis did not request a support person. 78 Further, it is clear that at each meeting held with Mr Symbonis he was informed of the ability to have a support person present. This factor is therefore not presently relevant.

Was Mr Symbonis warned about unsatisfactory performance before the dismissal - Section 387(e)

[62] If a dismissal relates to unsatisfactory performance, section 387(e) requires the Commission to consider whether the employee has been warned about the unsatisfactory performance prior to dismissal.

[63] It is uncontested that Mr Symbonis’ dismissal was not related to his performance. This factor is therefore not presently relevant.

To what degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resource management specialists or expertise in Telstra’s enterprise would be likely to impact on the procedures followed in effecting the dismissal? - Section 387(f) and (g)

[64] Section 387(f) and (g) requires the Commission to take into account the degree to which the size of the employer’s enterprise and the absence of dedicated human resources management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal.

[65] The Respondent is a large corporation and employs approximately 22,500 employees.  79 The size of the employer’s enterprise would have no impact on the procedures followed in effecting dismissal. There was no absence of dedicated human resource management specialist or expertise in Telstra’s enterprise. Mr Wilson was supported and guided by human resources in his discussions with Mr Symbonis. Accordingly, section 387(g) has no application.

What other matters are relevant? - Section 387(h)

[66] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is to take into account any other matters that it considers relevant.

[67] It is well accepted that a dismissal may be harsh, unjust or unreasonable despite the existence of a valid reason for the dismissal. In B v Australian Postal Corporation 80 the Full Bench stated that:

“That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be ‘relevant matters’ that do not bear upon whether there was a ‘valid reason’ for the dismissal but do bear upon whether the dismissal was ‘harsh, unjust or unreasonable.” 81

[68] I have taken into account that Mr Symbonis has strongly held views as to the safety, efficacy and ethics of COVID-19 vaccinations and that those views are genuinely held. He is entitled to those views and also to choose not to be vaccinated. Equally, however, Telstra is required to comply with the law. Unfortunately, therefore one of the consequences of that choice was that although Mr Symbonis was ready and willing to work, he was unable to do so.

[69] I have also had regard to the fact that Mr Symbonis was provided with three weeks’ pay in lieu of notice.

[70] In his materials Mr Symbonis makes reference to the “fair work commission website information of the tier process guidelines for employers who can mandate the injections have not been considered or followed by Telstra” and submits that his role is identified as “Tier 3.” I consider this ought be a reference to information provided by the Fair Work Ombudsman (FWO) rather than the Commission. Whatever might be provided in the FWO guidelines, I consider that the direction given to Mr Symbonis on 27 October 2021 to be vaccinated, being a requirement without which he could not perform his role, was in all the circumstances both lawful and reasonable and was a direction Telstra was able to give to Mr Symbonis and with which he was required to comply.

[71] In oral submissions, Mr Symbonis submitted, in summary, 82 that Telstra had “strung me along”83 and had engaged in a box ticking process. As I understand that submission, it is premised on the fact that under the Policy only a medical exemption would be accepted as a reason for a failure to comply and that his responses during the investigation and subsequently were therefore futile, the process designed to “trick me into believing I was being listened to”84 and he was “deliberately misled”.85 I reject those submissions. It is the case that under both the Policy and the relevant public health directions a medical exemption is the only basis upon which a person is exempt from complying with the direction to obtain a vaccination or provide the necessary vaccination information. However, I do not consider that Mr Symbonis was in any way misled or that the process adopted by Telstra was a box ticking exercise. It was clearly articulated to Mr Symbonis by Mr Wilson on numerous occasions that Telstra required him to be vaccinated and the consequences should he choose not to be so vaccinated. Further, Mr Symbonis agreed under cross examination that by 18 October 2021 it was clear to him that his “job was on the line”86 and he also confirmed in his meeting with Mr Wilson on 21 October 2021 that he understood that his continued failure to comply with the Policy would lead to termination of his employment. Additionally, at the meeting on 4 November 2021 Mr Wilson provided Mr Symbonis with further time to consider his position before issuing the final warning, offered Mr Symbonis the opportunity to take additional leave to obtain a vaccination and adjourned that meeting to allow Mr Symbonis further time to consider his position. Accordingly, contrary to Mr Symbonis’ submissions I consider the process adopted by Telstra to be not only appropriate but also fair.

[72] Mr Symbonis also takes issue with the manner in which Telstra’s human resources personnel were involved in the investigation and his dismissal. 87 For my part, I am unable to see that any unfairness arises in this regard.

[73] Finally, Mr Symbonis submits that his dismissal was harsh. 88 He says that he has suffered extreme financial hardship.89 He submits that he has been evicted from his rental property as he is unable to pay the rent and says that he is unable to pay his bills or afford to buy food.90 He also submits that it is harsh because he did not engage in any misconduct.91 I accept that the loss of his employment has resulted in Mr Symbonis suffering extreme financial hardship. However, in the present circumstances I do not consider it renders Mr Symbonis’ dismissal harsh. Telstra was required to comply with the law. That precluded Telstra from allowing Mr Symbonis to attend for work if he was unvaccinated. Mr Symbonis chose not to be vaccinated. That decision rendered him unable perform his role. Further, Mr Symbonis’ decision not to be unvaccinated was a conscious, deliberate decision, made in full knowledge of the consequences. In those circumstances, although the financial consequences for Mr Symbonis of the termination his employment are most unfortunate, they do not render it harsh. As to whether Mr Symbonis engaged in misconduct, I have earlier addressed this. It is well established that a failure to obey a lawful and reasonable direction of one’s employer constitutes misconduct.

Conclusion

[74] I have made findings in relation to each matter specified in section 387 as relevant.

[75] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 92

[76] Having considered each of the matters specified in section 387 of the Act, taking into account all of the evidence and based on my factual findings, I am satisfied that the dismissal of Mr Symbonis was not harsh, unjust or unreasonable.

[77] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that Mr Symbonis was unfairly dismissed within the meaning of section 385 of the Act.

[78] The application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

S Symbonis on his own behalf.

M Tamvakologos of Seyfarth Shaw for the Respondent

Hearing details:

2022
Melbourne
24 March 2022

Final written submissions:

Applicant: 2022

Respondent: 2022

 1   Exhibit A1

 2   Exhibit R1 at [6], Attachment 1 and Attachment 2

 3   Exhibit R1 at [8]

 4   Exhibit A2, q4.d

 5   Exhibit R1 at [21]

 6   Exhibit R1 at [24]

 7   Exhibit R1 at [25]

 8   Exhibit R1 at [25], Attachment 6

 9   Exhibit R1 at [26], Attachment 7

 10   Exhibit R1 at [25], Attachment 8

 11   COVID-19 Mandatory Vaccination (Workers) Directions, clause 4(1)

 12   Ibid, clauses 5(1) and 5(3)

 13   Ibid, clause 5(2)

 14   Ibid, clause 5(6)-(7)

 15   Ibid, clause 9(32)(a)(i)

 16   Ibid, clause 9(4)(a)(i)(B)

 17   Ibid, clause 9(28)(d)-(e)

 18   Ibid, clause 9(9)(a)(i)

 19   COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 6), clause 4(1))

 20   Ibid, clauses 5(1), 5(3) and (6)

 21   Ibid, clause 5(2)

 22   Ibid, clause 5(7) and 5(9)

 23   Ibid, clause 9(1)(c), specifically 9(c)(i)(D)

 24   Ibid, clause 9(3)(c)(ii)

 25   Ibid, clause 9(4)(d)(ii)

 26   Exhibit R1 at [32]

 27   Exhibit R1 at [34]

 28   Exhibit R1 at [35], Attachment 9

 29   Transcript PN 102-103

 30   Exhibit R1 at [37]

 31   Exhibit R1 at [38], Attachment 11

 32   Exhibit R1 at [40]

 33   Exhibit R1 at [41], Attachment 12

 34   Exhibit R1 at [46], Attachment 13

 35   Exhibit R1 at [47], Attachment 14

 36   Exhibit R1 at [42], Transcript PN 88

 37   Exhibit R1 at [46], Attachment 13

 38   Exhibit R1 at [45]

 39   Transcript PN 181

 40   Exhibit R1 at [48], Attachment 15

 41   Exhibit R1, Attachment 15

 42   Exhibit R1 at [49]

 43   Exhibit R1 at [51], Attachment 16

 44   Exhibit R1 at [52]

 45   Exhibit R1 at [53], Attachment 17

 46   Exhibit R1 at [53], Attachment 17

 47   Exhibit R1 at [56], Attachment 19, Transcript PN 88

 48   Exhibit R1 at [57]

 49   Exhibit R1, Attachment 19, Transcript PN 191 - 196

 50   Exhibit R1 at [58], Attachment 19

 51   Exhibit R1 at [59], Attachment 19

 52   Exhibit R1 at [60], Attachment 19

 53   Exhibit R1 at [61], Attachment 19

 54   Exhibit R 1 at [62-63], Attachment 20

 55   Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69]

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

 57   Ibid

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

 59   Hatwell and Another v Esso [2018] FWC 2398 at [76]

 60   Hatwell and Another v Esso [2018] FWC 2]398 at [76]

 61   Exhibit A2, q.4c

 62   Exhibit A2, q.4c

 63   Transcript PN 314 - 318

 64   Exhibit A2, q.4d, q.6d

 65   Grant v BHP Coal Pty Ltd [2014] FWCFB 3027

 66   see R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621-2 per, Dixon J

 67   see Commissioner for Government Transport v Royall (1966) 116 CLR 314 at 322, per Kitto J

 68   Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137, 151

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

 70   Ibid

 71   (2000) 98 IR 137

 72   Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137, 151

 73   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]

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

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

 76   [1996] IRCA 568; cited in Dover-Ray v Real Insurance Pty Ltd [2010] FWA 8544

 77   Exhibit R1, Attachment 19, Transcript PN 191 - 196

 78   Transcript PN 88

 79   Form F 3, q.1.7

 80   (2013) 238 IR 1

 81   Ibid at [41]

 82   Transcript PN 80-87

 83   Transcript PN 81

 84   Transcript PN 87

 85   Transcript PN 86

 86   Transcript PN 181

 87   Transcript PN 82, PN 89

 88   Transcript PN 77

 89   Exhibit A2, q.7c

 90   Transcript PN 77, form F2 at

 91   Transcript PN 78

 92   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]