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

Matthew Colwell
v
Wellways Australia
(U2022/1556)

Application for an unfair dismissal remedy – failure to be vaccinated against COVID-19 or produce medical exemption – policy requirement – failure to comply with a reasonable and lawful direction – valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed

[1] Mr Matthew Colwell (Applicant) has made an application seeking a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). The Applicant was employed by Wellways Australia (Respondent) until his employment was terminated on 18 December 2022. The Applicant’s employment was terminated for serious misconduct as he failed to comply with a lawful and reasonable direction in that he failed to comply with a policy requirement of the Respondent that he be vaccinated for COVID-19.

[2] The Applicant was employed by the Respondent commencing in early 2020, most recently as a Carer Gateway Confirmation Officer. The Respondent is a provider of disability services and the Applicant’s role was to match service providers with the requirements of clients of the Respondent. The Applicant was not classified as a “front line” health worker.

[3] In accordance with directions issued by me the Applicant and Respondent both filed submissions and evidence in relation to the application.

[4] Prior to hearing the application I granted the Respondent permission to be represented by a lawyer.

[5] The Applicant gave evidence on his own behalf.

[6] The Respondent called evidence from the following employees:

•  Ms Amanda Derrick, People and Culture Business Partner

•  Ms Catherine Keiti, Programme Coordinator

•  Mr David Stott, General Counsel

•  Ms Karyn Mackew Senior Manager People and Culture Services

•  Ms Laura Croix, People and Culture Business Partner

•  Ms Nicole Konodogiannis, Director People and Culture

•  Ms Nicole Traynor, National Manager Service Systems

[7] Only Ms Keiti and Ms Konogiannis were required for cross examination. The remaining statements were admitted without objection.

BACKGROUND

[8] Much of the background to this matter is undisputed and is set out below.

[9] The Applicant commenced in his current role in October 2021. He performed this role from home subject to the Victorian Government preference that employees who could work from home, should work from home. He had previously occupied a different position with the Respondent but that position was subject to redundancy, notified to the Applicant in September 2021.

[10] The Applicant’s contract of employment specified his place of work as “Geelong”. Further, his contract of employment specified that “[w]hile working for the Company you will be required to comply with company policies and procedures.” 1

[11] On or around 21 October 2021 the Respondent introduced a COVID-19 Vaccination Policy (Policy). 2 The extent to which the Policy was subject to consultation with employees prior to its introduction is subject to some debate and is dealt with below. The Policy required that employees who were not otherwise subject to a direction from a relevant State Government were to receive their first dose of a COVID-19 vaccine by 31 December 2021 and a second dose by 11 February 2022 and have a booster shot in accordance with any government orders.

[12] Employees covered by the Policy and not otherwise covered by a State Government direction were also required by the Policy to provide evidence of their vaccination. A refusal to provide evidence of vaccination status would be deemed to be a breach of the Policy “which may result in Wellways standing the staff member down from duties and subject to disciplinary action.” The Policy indicated that managers would work with staff who had not provided the vaccination status information as required to understand the rationale of the employee and to ensure the employee was aware of the implications of non-compliance with the Policy.

[13] The Applicant received advice of the Policy on 22 October 2022. 3 On 4 November 2022 the Applicant received an email regarding his vaccination status. He replied that his “role is not impacted by the current Victorian mandate directive” and that he had “no intention of sharing his personal medical information” regardless of his vaccination status. He acknowledged that he has read the Respondent’s email regarding the requirement that all staff be vaccinated with a first dose by 31 December 2021.4

[14] Between 6 and 15 December 2021 the Applicant contacted People & Culture (P&C) highlighting his concerns with the Policy and querying the blanket Policy which required vaccination by a “still provisionally approved product.” 5 As part of that correspondence Mr David Stott, General Counsel for Wellways, replied to questions asked by the Applicant. Mr Stott advised the Applicant that:

•  The Respondent required non-participant-facing staff to be vaccinated as they would be in contact with participant-facing staff in the office

•  There was a wealth of information available upon which the Respondent could rely in coming to its decision in the Policy.

•  The Respondent would not directly accept liability for adverse reactions to the vaccination but, indirectly, employees could make a Workcover claim in the event of an adverse reaction

•  Employees were not, at the time, required to have booster shots but this might be reviewed in the light of developments

•  If the Applicant did not provide evidence of vaccination he might be stood down without pay (subject to any leave).

•  It was not necessary to make any changes to the Applicant’s employment contract as it already required he comply with the Respondent’s policies and procedures and any lawful and reasonable directions given to him. 6

[15] On 13 December 2021, in response to a further email from the Applicant of 10 December 2021, Mr Stott advised the Applicant: that the Applicant had only been working from home because of the pandemic; that he (and other staff) would be directed to return to the office; and that he could not unilaterally vary his work location. Further, the Applicant was advised that the information in Mr Stott’s earlier email in relation being stood down would be best clarified by P&C. 7 P&C subsequently advised that if an employee failed to comply with the Policy the Respondent would commence a disciplinary process to determine appropriate action which may result in termination of employment.8

[16] On 15 December the Applicant sent an email to various employees of the Respondent with whom he had been communicating on the matter. That email, as is relevant to these proceedings, said:

I have no intention of receiving a covid vaccine before 31 December regardless of what policies Wellways feels they have the right to impose on people.

You don’t have to wait till after that date start whatever procedure you need to, as this decision is final. 9

[17] On 11 January 2022 the Applicant received a “show cause” letter. That letter indicated that, as the Applicant had failed to provide evidence of compliance with the Policy, the Respondent had formed a preliminary view that his employment should be terminated as he was unable to fulfil the inherent requirements of his job. The letter invited the Applicant to a meeting on 13 January 2022 to show cause as to why his employment should not be terminated. 10 At the show cause meeting the Applicant said he had already said everything in his earlier correspondence. He reiterated that he had no contact with others, could easily work from home and that was “an absurd position to have to defend.”

[18] On 18 January 2022 the Applicant received a letter terminating his employment effective immediately.

WAS THE POLICY SUBJECT TO CONSULTATION?

[19] The Applicant suggests that the Policy in relation to vaccines for all staff of the Respondent was not subject to consultation with staff.

[20] Ms Nicole Kondogiannis is the Director of People and Culture with the Respondent. She gave evidence that:

•  On 7 October 2021 she presented a paper to the Board of the Respondent that set out the reasoning behind the need for a policy. That paper recommended that an organisation wide position to mandate vaccines be adopted. This was in response to differing specific requirements of State Governments. The Board endorsed the position put forward.

•  Following the Board endorsement she developed a draft policy paper in consultation with the Respondent’s General Counsel, WHS Advisor and Senior Manager P&C. The draft was approved by the Executive Leadership Team on 19 October 2021

•  During October she was involved in briefing sessions with various managers across the business to enable managers to disseminate information to staff and to answer questions from staff.

•  In November 2021 she directed the National WHS Advisor to have consultation session with Health and Safety Representatives to provide them with an opportunity to give feedback on the Policy for consideration by the Respondent. 11

[21] Ms Kondogiannis also gave oral evidence that the Policy was subject to consultation with the relevant unions (HACSU and ASU) and, as part of its rollout, staff feedback was sought.

[22] The Applicant says that seeking staff feedback following dissemination of the Policy is too late and is not consistent with the principles set out in the decision in Mt Arthur Coal.

[23] It is evident that the Respondent has developed its Policy within a very short period of time. The pressures on the Respondent to do so was clearly driven by a desire to implement an organisation-wide framework with respect to COVID-19 vaccinations.

[24] I am satisfied however that there was an opportunity for employees to comment on the policy and that the views of managers, staff and WHS representatives would be considered by management and the policy adjusted accordingly. I do note that there is no evidence that the views of employees were not taken into account.

[25] While the Applicant submits that he was not consulted on the Policy when it was being formulated, I note he raised multiple issues in relation to the Policy in his email to the Respondent on 6 December 2021 12 and that the Respondent considered these and provided a detailed response. The Applicant did not consider the Policy fair or reasonable – this much is clear. His views were considered by the Respondent and the Applicant advised accordingly in reply by Mr Stott. That the Applicant’s views were not reflected in the Policy does not mean he was not consulted or given an opportunity to provide input. I also note the advice of the Applicant that he had “no intention” of receiving a COVID-19 vaccine “regardless of what policies Wellways feels they have the right to impose on people.”13 In these circumstances it would appear he would never be satisfied with the Policy for as long as it required vaccination.

[26] In the circumstances confronting the Respondent and where States were setting differing mandated requirements for vaccination of workers in the sector and where a return to the workplace was thought to be reasonably imminent, I consider it reasonable for the Respondent to have developed a policy for application across the workforce that recognised those employees subject to State Government directions and those who were not who would be required to comply with the dates set in the Policy for vaccination. Further, I am satisfied the Respondent had sound reasons at the time, based on its legal obligations in relation to the health and safety of its staff and clients, to introduce such a Policy. The Respondent may be criticised for the very quick timeframe in which it developed and introduced the Policy but they were uncertain times. In reaching my conclusion I have taken into account that the Respondent was willing to amend the Policy based on feedback. I do note however that there was no obligation on the Respondent to accept any variation to the Policy put forward. Rather, its obligation was to give consideration to any proposed changes to the Policy. The material before me leads me to conclude that the Policy was subject to consultation and hence properly made. Whilst improvements to the process utilised might be suggested I am not convinced such procedural changes would have resulted in any substantively different Policy or in satisfaction of the Applicant.

[27] Further, I am specifically satisfied that the Applicant had the opportunity to express his views and that these were considered and he was provided with the Respondent’s considered position on the issues he raised. That the Respondent did not agree with the Applicant’s views is not evidence of a Policy improperly made.

PRELIMINARY MATTERS

[28] I am satisfied that the Applicant is protected from unfair dismissal. Further the dismissal was not a redundancy and the Respondent is not a small business such that the Small Business Fair Dismissal Code does not apply. Further, the application was made within the time limits prescribed by the FW Act.

[29] I am also satisfied that the Applicant was dismissed from his employment.

[30] In determining if the Applicant was unfairly dismissed it is necessary to determine if his dismissal was harsh, unjust or unreasonable. Section 387 of the FW Act sets out those matters to be considered by the Commission.

[31] Section 387 of the FW Act states:

387 Criteria for considering harshness etc.

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

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

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

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

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

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

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

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

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

(a) was there a valid reason for the dismissal

[32] For a reason for dismissal to constitute a valid reason, as used in the FW Act, the reason must be “sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason”. 14

[33] The Applicant submits that there was no valid reason for his dismissal as, at the time of dismissal, while he accepts he was not vaccinated, he was working from home with no specific return to office date having been set.

[34] Further, the Applicant submits that the office he would be expected to attend at the time of a return to the office was not a care facility and it was not a location where members of the public would attend. Those employees of the Respondent who may have contact with clients work from a different location to that he would be required to attend.

[35] The Applicant also said that his immediate team members and colleagues all work in New South Wales and Queensland, he had no face to face contact with them and nor was he required to have face to face contact with anyone else. All of his work was done over the phone. Even on return to the office he says he would not be required to interact with others.

[36] The Applicant submits that his job was not subject to the Victorian Government Direction with respect to vaccinations.

[37] The Applicant does not accept the Respondent’s Policy as being reasonable. Further, he says that it is his choice as to whether he becomes vaccinated.

[38] The Respondent submits that the direction to the Applicant to be vaccinated was a lawful and reasonable direction, that the Applicant refused to comply with this direction and that failure constitutes serious misconduct and provides a valid reason for dismissal. Further, it submits that the Applicant had made clear it was his decision not to comply with the Policy and there was nothing the Respondent could do to change his mind.

[39] The matter to determine is if the Applicant’s refusal to comply with the Policy and be vaccinated as required by the Policy constitutes a valid reason for dismissal. Whether such a refusal constitutes serious misconduct is not the relevant question at this stage (but has been considered below). The statutory question is if there existed a valid reason for dismissal at the time of the dismissal.

[40] In this I am satisfied that the terms of the Applicant’s contract with the Respondent are clear and unambiguous. It states that:

While working with the Company you will be required to comply with company policies and procedures

[41] The Applicant accepted those terms of employment. The contract did not enable him to pick and choose the policies he would comply with or pick and choose the circumstances under which he would comply.

[42] As I found above, I am satisfied that the Policy was properly made.

[43] In Construction, Forestry, Maritime, Mining and Energy Union & Ors v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal (Mt Arthur Coal) 15 the Full Bench of the Commission said:

[68] It is uncontentious that a lawful direction is one which falls within the scope of the employee’s employment. There is no obligation to obey a direction which goes beyond the nature of the work the employee has contracted to perform, 16 though an employee is expected to obey instructions which are incidental to that work.17

[44] The Full Bench observed that reasonableness “‘is a question of fact having regard to all the circumstances’  18 and that which is reasonable in any given circumstance may depend on, among other things, the nature of the particular employment.”19 The Full Bench went on to find:

[77] It appears uncontroversial that in order to establish that a direction is reasonable, it is not necessary to show that the direction in contention is the preferable or most appropriate course of action or in accordance with ‘best practice’ or in the best interest of the parties. It is also uncontentious that in any particular context, there may be a range of options open to an employer within the bounds of reasonableness. As the Respondent submits:

‘In assessing whether any direction is reasonable, it is necessary to bear in mind that within the boundaries of an employer’s power of direction there is an area of ‘decisional freedom’ within which the employer has a genuinely free discretion. That area is co-extensive with what was once more commonly called ‘managerial prerogative’. Within that area, reasonable minds might differ as to what decision is best or most desirable, but any decision or outcome within that area is within the bounds of reasonableness.’ 20

[78] The availability of a range of reasonable directions in response to a particular set of circumstances sits conformably with the following observation of the plurality in Li, 21 albeit the point arose in different context:

‘… there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker.’ (Footnotes omitted)

[45] I have carefully considered the Respondent’s reasons for introducing the Policy. I am satisfied that its obligation to staff and clients means that the Policy response was reasonable. In accordance with the Applicant’s employment contract, he was required to comply with that Policy and that he do so constituted a lawful direction. A failure to comply with the Policy would constitute a failure to comply with a lawful and reasonable direction and may constitute a valid reason for dismissal.

[46] The Applicant did fail to comply with the Policy in that he failed to provide proof that he had received at least a first dose of the COVID-19 vaccination by 31 December 2021. Further, he made it abundantly clear that regardless of any policy prescription he had no intention of having a vaccine prior to 31 December 2021.

[47] In these circumstances I am satisfied that there was a valid reason for the dismissal of the Applicant.

(b) & (c) whether he was advised of that reason and given a reasonable opportunity to respond

[48] On 11 January 2022 the Applicant was given a “show cause” letter. 22 It was sent to him by Ms Catherine Kieti, Program Coordinator. The Applicant worked in her team. That letter said, in part:

… you have failed to provide evidence that confirms you are compliant with the COVID19 vaccination requirements of the Policy. Wellways believes we have provided you with reasonable and sufficient time to comply and that you do not intend to meet what has become an inherent requirement of your role, despite this being a reasonable direction from us as your employer.

As such, Wellways has formed a preliminary view that your employment with Wellways should be terminated on the grounds of being unable to fulfil the inherent requirements of your role. Before we make a final decision regarding this, you are invited to show cause as to why we should not terminate your employment. This opportunity will be provided at the following meeting.

[49] A meeting was arranged with the Applicant on 13 January 2022 to enable him to respond to the letter.

[50] On receipt of the letter the Applicant immediately contacted Ms Kieti and advised that a sentence in the letter that read “The current arrangements which mean that you are not engaged for work remain in place and you are not required to undertake any duties or attend any Wellways sites” was incorrect as he was currently working from home. An amended show cause letter was emailed to the Applicant. 23

[51] Ms Kieti gave evidence that a meeting was held with the Applicant on 13 January 2022 by Microsoft Teams. The meeting was attended by the Applicant, Ms Kieti and Ms Amanda Derrick from P&C. Ms Kieti’s evidence – again not disputed by the Applicant – is that she asked the Applicant if he had any comments he wished to make in relation to his non-compliance with the Policy. She said that the Applicant “said that he had already explained in his emails…why [the Respondent’s] position was unreasonable.” The Applicant also said there had been no consultation with him with respect to the Policy and “he had to raise his issues with the Policy” with the P&C team.

[52] The meeting lasted about 10 minutes. Minutes of the meeting were taken by Ms Derrick 24 and are not disputed by the Applicant as accurate.

[53] The Applicant contacted Ms Kieti on Friday 14 January 2022 and said “Just wondering if there has been a decision made on my termination yet?” 25 Ms Kieti forwarded this email to Ms Derrick who advised the Applicant that the decision was with the executive leadership team and she would provide an update as soon as possible. The Applicant replied that he would “appreciate this not running in to the weekend. There was no new information provided by me yesterday for anyone to consider so I’d assumed a decision could be easily reached.” Ms Derrick advised that, given it was 4.30pm, she did not foresee an outcome that day. The Applicant replied that this was not a way to treat people and that the delay in a decision was causing him and his family anxiety.26

[54] Given the email exchange the Respondent took steps to ensure the welfare of the Applicant.

[55] The Applicant was absent on leave on Monday 17 January 2022 and subsequently advised on 18 January 2022 in a meeting and via letter that the Respondent had decided to terminate his employment.

[56] I am satisfied that the Applicant was advised of the reason for his dismissal and was given an opportunity to respond to that reason prior to a final decision being made.

(d) unreasonable refusal to have a support person present

[57] The show cause letter sent to the Applicant on 11 January 2022 advised the Applicant he was “invited to bring a support person” with him to the show cause meeting. It does not appear that the Applicant did so.

[58] I am satisfied that there was no unreasonable refusal by the Respondent for the Applicant to have a support person present.

(f) & (g) the degree to which the size of the Respondent’s business and access to dedicated human resources management was likely to impact the procedures in relation to the dismissal

[59] No submissions were made in relation to either of these matters.

[60] I am satisfied that the size of the business did not affect the procedures in relation to the dismissal.

[61] It is readily apparent from the witness evidence that the Respondent’s business has human resources expertise. I therefore do not consider s.387(g) a relevant consideration.

(h) other matters

[62] The Applicant says that he could have continued to perform his role at home unvaccinated and, as such, there was no real requirement for him to be vaccinated. The Applicant relies in support of him continuing to work from home once return to office is required by the Respondent on the provision in his contract that his place of work is Geelong. He says that the failure to specify where in Geelong means that he could continue to work from home within the terms of his contract.

[63] I am not convinced of this. The Applicant was aware that the Respondent had offices in Geelong – both in the City centre and the surrounding suburbs. To suggest the office located in Newton where he apparently would be required to work is not “in Geelong” is fanciful (it being an inner suburb of Geelong). Further, it is not the Applicant’s decision as to where he will work from. To the extent it is a reasonable direction, the Applicant can be directed to return to the office or to work in a particular office location in the Geelong area. The working from home arrangements in place for the Applicant was a response to the pandemic. There is nothing in the Applicant’s contract or in any actions or comments of the Respondent to suggest that “home” was intended to be the on-going place of employment for the Applicant.

[64] I have taken into account that the Respondent, at the time it dismissed the Applicant from his employment, had not yet issued directions requiring its employees to return to the office. It would seem unlikely that the Respondent would do so prior to employees receiving the second dose of the vaccine by 11 February 2022. In this respect it maybe that the Respondent’s action in terminating the Applicant’s employment was premature.

[65] However, I have balanced this against the very clear indication given by the Applicant on at least two occasions that he had no intention of being vaccinated. In the email to Ms Mackew and Mr Stott on 15 December 2021 the Applicant said he had “no intention of receiving a covid vaccine”. On the same day the Applicant also sent a “COVID-19 Vaccine Declination Form” 27 in which he said “I hereby decline and refuse the COVID-19 vaccine.”

[66] I have also taken into account the Applicant’s push to have a decision on his employment future made quickly in circumstances where he knew he was, and would continue to be, in breach of the Respondent’s Policy which may result in his dismissal. In an email of 15 December 2021 the Applicant said of the 31 December 2021 date for the first vaccination does “You don’t have to wait till after that date start whatever procedure you need to, as this decision is final.” The “this decision” the Applicant was referring to was his decision not be vaccinated. Following the show cause meeting the Applicant, by his emails, indicated that he wanted a decision in relation to his employment made as soon as possible, citing anxiety by having to wait until after the weekend for an answer. Despite this the Applicant was not at work on Monday 17 January 2022 and was advised of the outcome on Tuesday 18 January 2022.

[67] The Applicant was dismissed for serious misconduct. This meant that his employment was terminated without notice.

[68] Serious misconduct is defined in the Fair Work Regulations 2009:

1.07 Meaning of “serious misconduct”

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer's business.

…

[69] It may be considered that the termination of the Applicant’s employment without notice was harsh in circumstances where the conduct he engaged in, whilst certainly misconduct in that he failed to comply with a lawful and reasonable direction, may not be seen as serious misconduct in circumstances where the Applicant continued to work from home and where a direction had yet been issued to return to work. In determining if there is some exception that should be considered in relation to the conduct of the Applicant it needs to be determined if his conduct in refusing to be vaccinated was conduct that was “wilful or deliberate behaviour” inconsistent with the continuation of the contract of employment or if was conduct that caused a “serious and imminent risk” to the health and safety of others.

[70] In circumstances where the Applicant was not yet required to attend the workplace I am not satisfied that, at the time of his dismissal, the conduct of the Applicant endangered or would endanger the health of others. Should the direction to return to the workplace have been issued this assessment would change.

[71] I am satisfied that the decision of the Applicant to refuse to comply with the Policy “regardless of the policies” of the Respondent is a wilful act of the Applicant in the requisite sense where “wilful” misconduct involves “the doing of acts in fact amounting to misconduct intentionally, with knowledge that those acts will amount to misconduct.”  28 The Applicant was aware that a continued failure to comply with the Policy of the Respondent would result in disciplinary action that could include dismissal yet he continued to refuse compliance.

[72] The Respondent claimed that the Applicant behaved in an inappropriate manner following the meeting where he was advised of his dismissal in that he left the meeting, telephoned Ms Kieti and yelled at her, upset that she had not stood up for him. Ms Derrick, who also attended the meeting where the Applicant was advised of the termination of his employment said she could hear the Applicant yelling at Ms Kieti because he was still connected to the meeting via Microsoft teams.

[73] On this matter I prefer the evidence of Ms Kieti and Ms Derrick, particularly as the Applicant “could not recall” his actions but did agree that he was upset. The Applicant’s conduct in this regard was unacceptable. The Applicant knew, through the show cause letter of 11 January 2022 that the Respondent had formed a preliminary view that his employment should be terminated. At the show cause meeting on 13 January 2022 the Applicant did not provide any reason as to why the Respondent should not proceed with that course of action except that he did not agree with the Policy and indicated he was “not going to argue it” at the meeting.

Was the dismissal harsh, unjust or unreasonable?

[74] In Byrne v Australian Airlines it was said that:

It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 29

[75] This is not a case where the Applicant objected to vaccination but indicated he would comply at the time of a return to the office. Rather, the Applicant made it clear that he would not comply with a policy that required vaccination regardless of the terms of that policy.

[76] The Respondent established its Policy and sought its implementation anticipating that workers could start returning to the workplace in the early part of 2022. Whilst this did not eventuate because of the emergence of new strains of the virus, that the Respondent wished to be able to return staff to the office safely in the context of its business was reasonable.

[77] I have also taken into account that the Applicant pushed the Respondent for a quick decision on his future employment. The show cause meeting took place on a Thursday. The following day the Applicant was seeking a decision even though he had been told at the show cause meeting that an answer may be 5-7 days away, although could be faster. 30

[78] As was set out as a “general factual proposition” not contested in Mt Arthur Coal:

•  Vaccination is the most effective and efficient control available to combat the risks posed by COVID-19

•  Even with high vaccination rates in the community, COVID-19 will remain a significant hazard in any workplace in which there is the possibility that people will interact or use the common spaces (even at separate times)… 31

[79] In this case I am mindful that the Respondent provides services to vulnerable members of the community. It is reasonable that it has taken all steps to minimise any risk to its clients.

[80] I acknowledge that the Applicant has particular views in relation to the COVID-19 vaccines. This does not however give him a right to work where he wishes to. The Respondent has obligations to its staff and to its clients. It cannot be criticised for taking those obligations seriously and doing what it can to minimise risk.

[81] I accept that it is the Applicant’s choice as to whether or not he is vaccinated but that choice comes with consequences, as does every choice we make. The Applicant, in making the choice he did, was aware of the consequences of the choice on his employment. He knew this in December 2021 and possibly earlier.

[82] I have considered if the dismissal was harsh in circumstances where the Applicant was not given notice of his dismissal and either be required to work out that notice (working from home) or be paid in lieu of notice. I have found not. I have balanced this consideration against the Applicant’s wilful disregard of the Policy, his urging of the Respondent in December 2021 to “start whatever procedure you need to” as his decision to not be vaccinated was final and of his pleading to the Respondent to advise him of the outcome to his show cause meeting the day after it occurred and not to wait until after the weekend. I have also taken into account that the Respondent had a process that would allow employees who were not vaccinated but had dates for vaccination to remain employed. 32

[83] The Applicant was given every opportunity to indicate that, while he was unvaccinated at the time of the show cause meeting, he would be compliant on a requirement to return to the office. As the Applicant said however, he had no intention of receiving the vaccination and, as such, could not be compliant with the Policy. For this reason, once the return to office was initiated he would also not have been able to fulfil an inherent requirement of his job.

[84] In all of the circumstances and in balancing all of the issues I am required to consider I have concluded that the dismissal of the Applicant was not harsh, unjust or unreasonable.

CONCLUSION

[85] For the reasons given I am not satisfied that the dismissal of the Applicant was unfair.

[86] The application is therefore dismissed. An order 33 to this effect will be issued with this decision.

COMMISSIONER

Appearances:

M. Colwell on his own behalf.
M. Minucci of counsel and J. Anaf of MinterEllison for the Respondent.

Hearing details:

21 April 2022.
Melbourne, by video.

Printed by authority of the Commonwealth Government Printer

<PR741390>

 1   Witness statement of Nicole Kondogiannis, annexure NK-1, court book (CB) page 332

 2   See Witness statement of David Stott, annexure DS-1 CB 221 for a copy of the Policy

 3   Witness statement of Matthew Colwell, CB page 44

 4   Witness statement of Matthew Colwell and document 7 CB 70

 5   Witness statement of Matthew Colwell and document 8 CB 72. See also Witness statement of David Stott, annexure DS-2, CB page 223

 6   Witness statement of David Stott, paragraphs 24-29, CB page 216

 7   Witness statement of David Stott, paragraphs 34-35, CB page 217 and Annexure DS-2, CB page 232

 8   Witness statement of David Stott, paragraph 39, CB page 217 and Annexure DS-2

 9   Witness statement of David Stott, annexure DS-2, CB page 229. See also David Colwell documents 8, CB page 81

 10   Witness statement of Matthew Colwell and document 10, CB page 88

 11   Witness statement of Nicole Kondogiannis paragraphs 17-20, 30 and 31, CB 324 and annexures KN-4 and KN-5, CB pages 349 and 352

 12   Witness statement of David Stott, annexure DS-2, CB page 236

 13   Witness statement of David Stott, annexure DS-2, CB page 229

 14   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at p. 373

 15   Construction, Forestry, Maritime, Mining and Energy Union & Ors v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059

 16   Price v Mouat (1862) 11 CBNS 508; 142 ER 895 (employee hired as lace buyer not bound to obey orders to perform work of lace carder); Bampton v Viterra Ltd (2015) 123 SASR 80; 251 IR 261; [2015] SASCFC 87; BC201505246; Mackie v Wienholt (1880) 5 QSCR 211 (cook not bound to obey order to work in dairy); McCarthy v Windeyer (1925) 26 SR (NSW) 29; 42 WN (NSW) 175 (sub-editor not bound to obey orders to do work of a lower grade); Truth & Sportsman Ltd v Moldsworth [1956] AR (NSW) 924 (B-grade journalist not bound to obey order to work at a lower grade); Commissioner for Government Transport v Royall (1966) 116 CLR 314; [1967] ALR 313 (employee incapacitated by injury and entitled to salary during the period of incapacity does not lose the right to receive salary because of his refusal to perform duties within his residual capacity but not within the duties of his pre-injury classification). See also Hackshall’s Ltd v McDowell [1930] AR (NSW) 620 (where the court had to consider whether an order to a bread cart deliverer to work outside the normal area was outside the scope of the contract)

 17   Such as to work reasonable overtime: Anthony v NSW Fresh Food & Ice Co Ltd [1946] AR (NSW) 64 (the determination of ‘reasonable overtime’ was to be made by reference to the particular industry).

 18   Mt Arthur Coal [2021] FWCFB 6059 at [72] citing R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday (1938) 60 CLR 601 at 616 (Starke J), 623-624 (McTiernan J); NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883 at [208], [214] (Flick J) cited in Mt Arthur Coal [2021] FWCFB 6059 at [72]

 19   Mt Arthur Coal [2021] FWCFB 6059 at [72]

 20   Respondent’s Answers to the Background Paper, 23 November 2021, Question 10, p 8. Also see the oral submissions of the ACTU: Transcript, 25 November 2021 at PN1685; and the Union Interveners: Transcript, 24 November 2021 at PN1490-1493.

 21   (2013) 249 CLR 332.

 22   David Colwell document 10, CB page 88

 23   Witness statement of Catherine Kieti, paragraph 21, CB page 129 and annexure CK-5 CB page 198

 25  Witness statement of Catherine Kieti, annexure CK-6, CB page 205

 26  Witness statement of Catherine Kieti, annexure CK-6, CB page 203-204

 27  David Colwell document 9, CB page 84

 28  Boral Resources (Queensland) Pty Ltd v Pyke [1992] 2 Qd R 25 at 51 cited in Doug Drowley v RTL Mining and Earthworks Pty Ltd [2021] FWC 1911

 29  [1995] HCA 24; 185 CLR 410; 69 ALJR 797; 131 ALR 422; (1995) 38 AILR ¶3–194; 61 IR 32 at 128.

 30  Witness statement of Amanda Derrick, annexure AD-3, CB page 121

31  Mt Arthur Coal [2021] FWCFB 6059 at [29] items 9 and 10

32  Witness statement of Ms Kondogiannis, annexure KN-9, CB page 390, in particular pages 401-403

 33  PR741391