| [2022] FWC 1568 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Joshua James Sampson
v
BHP Olympic Dam Corporation Pty Ltd
(U2022/4058)
COMMISSIONER PLATT |
ADELAIDE, 28 JUNE 2022 |
Application for an unfair dismissal remedy
[1] On 6 April 2022, Mr Joshua Sampson (the Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with BHP Olympic Dam Corporation Pty Ltd (BHP or the Respondent).
[2] On 11 April 2022, BHP filed a Form F3 Employer Response and did not raise any jurisdictional objection.
[3] On 12 May 2022, the matter was allocated to my Chambers and on 19 May 2022, a Directions Conference was held, and directions were issued for the filing of material.
[4] A Hearing was held, by videoconference, on 21 June 2022. The Applicant was represented by Ms Nicola Kuth of Reignite Democracy Australia and the Respondent was represented by Mr Andrew Pollock (of Counsel). Permission was granted to both parties pursuant to s.596 (2)(a) on the basis of complexity and efficiency
[5] At the conclusion of the Hearing, I delivered my decision that Mr Sampson’s dismissal had not been unfair and as such, his application for a remedy was dismissed. The detailed reasons for my decision follow.
When can the Commission order a remedy for unfair dismissal?
[6] Section 390 of the Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
[7] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
[8] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
[9] There was no submission that the Applicant was not protected from unfair dismissal.
[10] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
[11] There was no dispute that the Applicant had been dismissed, and it was not contended that the dismissal was a case of genuine redundancy, or that the Small Business Fair Dismissal Code had application. The remaining issue was whether the dismissal was harsh, unjust or unreasonable within the meaning of s.387 of the Act.
[12] The Applicant filed a witness statement from Mr Sampson. 1
[13] The Respondent filed witness statements, with attachments, from Mr Ewan Stewart (Superintendent of Control Operations Surface) 2, Ms Sharen Chen (Supervisor – Control Operations)3 and Mr Tony McCreanor (Pandemic Response Lead).4 None of the witnesses were required for cross-examination.
[14] The Applicant’s and Respondent’s materials were collated into a Digital Court Book and distributed prior to the Hearing. This Digital Court Book was received into evidence. Appropriate weight was given to the received material after an assessment of its character (e.g. hearsay and/or opinion evidence), its relevance and its nature.
[15] The Applicant’s suggested in written submissions that I should not regard previous COVID-19-related decisions of the Commission as precedents. I advised the parties that such an approach would not be taken.
[16] The Commission’s relationship with the principle of stare decisis is relevantly summarised in the Decision of Cetin v Ripon Pty Ltd (T/A Parkview Hotel) 5:
“Although the Commission is not, as a non-judicial body, bound by principles of stare decisis, as a matter of policy and sound administration it has generally followed previous Full Bench decisions relating to the issue to be determined, in the absence of cogent reasons for not doing so. In another context three members of the High Court observed in Nguyen v Nguyen:
‘When a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law’” (references omitted)
[17] The relevant evidence is summarised as follows:
• The Applicant was engaged as a Control Room Specialist (in the HydroMet area) in the Respondent’s Surface Control Room. Control Room Specialists are highly skilled and not readily replaced.
• The Control Room is a critical component of the management of production processes on site. The role required monitoring of production and responding to incidents to ensure the safety of personnel, plant and equipment.
• The production processes are dependent on the 24/7 operation of the Control Room. The Control Room is unable to operate entirely on a remote basis.
• BHP was concerned that a COVID-19 outbreak in its Control Room Specialists would prevent the safe operation of the plant.
• BHP took steps to mitigate the risk posed by the COVID-19 pandemic by implementing a Site Access Requirement (SAR). The SAR made it a condition of site entry to have received at least two doses of an approved COVID-19 vaccination by a certain date. The steps taken at Olympic Dam mirrored those taken at other BHP Operations including Mt Arthur. After the decision in CFMMEU and Anor v Mt Arthur Coal 6 (Mt Arthur), BHP engaged in additional consultation with its employees (including those at Olympic Dam and the Applicant).
• On 8 November 2021, the Applicant applied for a six-month period of long service leave, commencing immediately upon the implementation of the SAR, and a subsequent period of annual leave to be taken at half pay. The Respondent was unable to approve such a lengthy leave period given business needs and the limited availability of the Control Room Specialist skillset but offered to approve a one-month period of leave. The Applicant then took sick leave and did not return to work until 30 December 2021.
• On 9 December 2021, the Respondent directed Mr Sampson to provide evidence of his vaccination status. It repeated that direction on 5 January 2022. The Applicant did not comply with either direction.
• The Respondent accommodated as much of the Applicant’s leave request as its operational requirements would allow (being a one-month period of leave commencing from the imposition of the SAR on 31 January 2022).
• By letter dated 9 March 2022, the Respondent directed the Applicant to attend a show cause meeting. Prior to that meeting, the Applicant provided the Respondent with a show cause response letter and a PowerPoint presentation, which he presented at the meeting.
• Following a break to further consider the Applicant’s response, the Respondent dismissed the Applicant.
•
[18] The Respondent contends that SAR was an appropriate measure to respond to the risks posed by the COVID-19 pandemic and that it appropriately consulted with its employees generally in the making of the policy. It contends that it consulted with the Applicant concerning the application of the policy to him and afforded procedural fairness as to its decision to dismiss.
[19] The Respondent contends Mr Sampson did not comply with a lawful and reasonable direction.
[20] The Respondent contends that it afforded the Applicant access to personal leave and a one-month period of long service leave which it states was reasonable in the circumstances taking into account the highly skilled and important role occupied by the Applicant and its operational needs.
[21] The Applicant rejects these submissions and contends the vaccination policy was not reasonable and that it did not correspond to the risk posed. Accordingly, the Applicant contends that the SAR was not a lawful and reasonable direction.
[22] The Applicant asserted that the SAR breached the Privacy Act 1998 (Cth) (the Privacy Act) and/or the Australian Privacy Principles (APP).
[23] The Applicant contends that the Respondent should have allowed him to access his leave entitlements rather than dismiss him.
[24] In written submissions, the Applicant contended that I should not follow previous decisions of the Commission in the COVID-19 vaccination field, including most notably, the five-member Full Bench Decision in Mt Arthur and Asbury DP’s Decision in CFMMEU v BHP Coal Pty Ltd T/A BHP Billiton Mitsubishi Alliance / BMA 7 (BMA).
[25] The Applicant was unable to provide any reason as to why I should depart from the reasoning in Mt Arthur and BMA.
[26] In Mt Arthur, the Full Bench heard expert evidence from a variety of witnesses on the risks of COVID-19 and the efficacy of COVID-19 vaccinations available for use in Australia. The Full Bench summarised the following based on the evidence before them:
“1. COVID-19 involves a high burden of disease, greater than influenza.
2. Any infected person is at risk of developing serious illness from the virus, which may lead to death.
3. The risks posed by COVID-19 have changed with the rapid rise of the Delta variant which is more infectious and has more severe health effects than previous variants.
4. All COVID-19 vaccines currently available in Australia are effective at preventing symptomatic infection, including from the Delta variant.
5. All COVID-19 vaccines currently available in Australia substantially reduce the risk of serious illness or death, including from the Delta variant.
6. All COVID-19 vaccines currently available in Australia are safe and any adverse effects are usually mild. There is a much higher risk of developing serious complications and dying from acquiring COVID-19.
7. An unvaccinated person is more likely to acquire COVID-19 from another unvaccinated person, rather than a vaccinated person.
8. While other measures, such as mask wearing, and social distancing, are demonstrated to reduce the transmission of COVID-19, the effectiveness of these measures depends on people applying them consistently or correctly. They do not provide a substitute for the constant protection offered by vaccines, nor do they reduce the risk of developing serious illness once somebody acquires an infection.
9. Vaccination is the most effective and efficient control available to combat the risks posed by COVID-19.
10. Even with high vaccine rates in the community, COVID-19 will remain a significant hazard in any workplace in which there is a possibility that people will interact or use the same common spaces (even at separate times). The Mine is clearly such a workplace.” 8
[27] Whilst the Applicant made some assertions as to the efficacy of COVID-19 vaccinations and the risk of COVID-19 in society, the Applicant provided no relevant expert evidence which persuades me to depart from the findings of the Full Bench as to the risks posed by the COVID-19 pandemic as detailed above.
[28] The Full Bench in Mt Arthur noted the following in relation to the SAR subject to the Decision in Mt Arthur:
“1. It is directed at ensuring the health and safety of workers of the Mine.
2. It has a logical and understandable basis.
3. It is a reasonably proportionate response to the risk created by COVID-19.
4. It was developed having regard to the circumstances at the Mine, including the fact that Mine workers cannot work from home and come into contact with other workers whilst at work.
5. The timing for its commencement was determined by reference to circumstances pertaining to NSW and the local area at the relevant time.
6. It was only implemented after Mt Arthur spent a considerable amount of time encouraging vaccination and setting up a vaccination hub for workers at the Mine.” 9
[29] The SAR in this case mirrors that considered by the Full Bench.
[30] The Full Bench in Mt Arthur found that had the Respondent consulted the employees in accordance with its consultation obligations, the considerations above would have provided a strong case in favour of a conclusion that the Site Access Requirement was a reasonable direction. 10
[31] In BMA, Asbury DP made the following findings in respect of the arguments put forward in that matter about the SAR breaching relevant provision of the Privacy Act:
• By virtue of s.15 of the Privacy Act, the company must not do an act or engage in a practice that breaches an APP. 11
• The relevant APP is APP 3.3. APP 3.3 provides that an organisation must not collect sensitive information about an individual unless the requirements set out in both APP 3.3(a) and 3.3(a)(ii) are met. 12
• The first limb of APP 3.3 is that the individual consents, expressly or impliedly, to the collection of sensitive information. 13
• The SAR does not force employees to provide sensitive information to any APP entity. When an employee uploads information or provides information to the employer’s staff, they do so on the basis that this action signifies their consent. The SAR does not purport to consent authority on the employer to collect sensitive information of employees if they do not consent to provide that information. 14
• The result of the SAR is that the employee has to choose between providing their consent to the collection of sensitive information, or potentially having their employment terminated. Whilst this decision places economic and social pressure on the employee, this pressure is not coercion in a legal sense which vitiates the consent of the employee. 15 As such, the first limb of APP 3.3 was met in relation to the SAR.16
• The second limb (APP 3.3(a)(ii)) requires that the sensitive information is reasonably necessary for, or directly related to, one or more of the employer’s functions or activities. 17
• The sensitive information required by the SAR was reasonably necessary to fulfil the employer’s statutory and common law functions in respect of the health and safety of the employees. 18
• As both limbs of APP 3.3 were met, the SAR did not contravene the Privacy Act. 19
[32] The SAR in this case mirrors the SAR considered by Asbury DP. As stated above, the Applicant in this matter did not provide any reasons that persuaded me to depart from Asbury DP’s findings in respect of the Privacy Act as outlined above. As such, I find that the SAR did not breach the Privacy Act.
[33] 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.
[34] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 20
[35] I set out my consideration of each below.
[36] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 21 and should not be “capricious, fanciful, spiteful or prejudiced.”22 However, 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.23
[37] I find that the Applicant’s contract of employment required him to follow the Respondent’s policies and lawful directions.
[38] I find that the Respondent’s direction for the Applicant to comply with the SAR was a lawful and reasonable direction.
[39] There is no dispute that this direction was not complied with.
[40] I find that the Applicant did not comply with the Respondent’s SAR and did not comply with a lawful direction. As a consequence, he was unable to attend the Olympic Dam site and thus unable to meet the inherent requirements of his role.
[41] These are valid reasons for dismissal connected to the Applicant’s conduct and capacity.
Was the Applicant notified of the valid reason?
[42] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 24 and in explicit25 and plain and clear terms.26
[43] There is no dispute that applicant informed of the valid reason(s) prior to his dismissal.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
[44] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 27
[45] The applicant was provided with a ‘show cause’ letter on 9 March 2022. The Applicant responded to that communication and attended a show cause meeting.
[46] I find that the Applicant was given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
[47] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
[48] The Applicant had a support person present.
Was the Applicant warned about unsatisfactory performance before the dismissal?
[49] The Applicant was not dismissed as a result of unsatisfactory performance.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[50] The Respondent is a very large business. In all the circumstances, I do not find that the size of the Respondent’s enterprise impacted on the procedures followed in effecting the dismissal.
To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[51] The Respondent is a very large business with in-house human resource management specialists.
What other matters are relevant?
[52] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
[53] The Applicant contends that the entirety of his leave application should have been granted, thus potentially averting the dismissal. I find that the Respondent’s refusal to grant the entirety of the leave was reasonable in the circumstances and that even if more leave had been granted, the outcome would have simply been deferred.
[54] I have made findings in relation to each matter specified in section 387 as relevant.
[55] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 28
[56] Having considered each of the matters specified in section 387 of the Act, I am not satisfied that the dismissal was harsh, unjust or unreasonable.
Conclusion
[57] I am therefore not satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the Act. As such, the application has been dismissed.
COMMISSIONER
Appearances (by videoconference):
N Kuth for the Applicant
A Pollock for the Respondent.
Hearing details:
2022.
Adelaide:
June 21.
Printed by authority of the Commonwealth Government Printer
<PR742852>
1 Exhibit A1
2 Exhibit R1
3 Exhibit R2
4 Exhibit R3
5 (2003) 127 IR 205 at [48].
8 [2021] FWCFB 6059 at [29].
9 Ibid at [252].
10 Ibid at [253].
11 [2022] FWC 81 at [154].
12 Ibid.
13 Ibid at [155].
14 Ibid at [168].
15 Ibid at [170].
16 Ibid at [176].
17 Ibid at [178].
18 Ibid at [184].
19 Ibid at [209].
20 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].
21 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
22 Ibid.
23 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
24 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
25 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
26 Ibid.
27 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].
28 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].