Fair Work Act 2009
s.394—Unfair dismissal

Eileen Owens
v
I-Med Radiology Ltd
(U2022/599)

Application for an unfair dismissal remedy – Applicant dismissed for failing to comply with vaccination requirements imposed by Queensland Government Health Directive – Whether the Applicant lodged her unfair dismissal application within 21 days – Consideration of the date on which the dismissal took effect for the purposes of s.394(2) of the Fair Work Act 2009 – Finding that the application was made within the 21-day requirement – If this finding is incorrect a further period would be granted in any event based on ambiguity of date dismissal took effect – Matter to be listed for merits hearing – Applicant requested to consider cases in Fair Work Commission data base in relation to vaccination – Matters identified for consideration of the Applicant.

Overview

[1] Mrs Eileen Owens (the Applicant) applies to the Fair Work Commission (Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the FW Act) in respect of her dismissal by I-Med Radiology Ltd (the Respondent). Section 394(2) of the FW Act states that an unfair dismissal application must be made “within 21 days after the dismissal took effect”, or within such further period as the Commission allows pursuant to s.394(3). The application was made on 10 January 2022. The Respondent objects to the application on the ground that it was filed outside the time required in s. 394(3) of the FW Act.

[2] The parties are in dispute with respect to the date upon which the dismissal took effect and whether the Applicant made her application within the 21-day period as required by s.394(2) of the FW Act. In her Form F2 Application, the Applicant contends that the dismissal took effect on 20 December 2021. If this contention is accepted, her application was made within 21 days of the dismissal taking effect. In its Form F3 response, the Respondent contends that the Applicant was informed on 17 December 2021 that her employment was terminated effective that day and that she would be paid in lieu of notice and that this was confirmed by a letter sent to the Applicant on 21 December 2021.

[3] If the Respondent’s contention is accepted, the application was made three days outside the time required in s. 394(2) of the FW Act.

[4] On 11 March 2021, correspondence was sent to the Applicant from the Chambers of Vice President Catanzariti requesting her response to the Respondent’s contention about the date the dismissal took effect and requesting the Applicant to provide information to support the grant of a further period, if required. In her response dated 15 March 2021, the Applicant stated that: “despite receiving a verbal dismissal on 17 December 2021 and a written dismissal on 21 December 2021, I had considered the first day to be 21 December 2021”. The Applicant also provided information about her personal circumstances to explain why the application had not been submitted in a “timely manner.”

[5] The application was allocated to me to determine the date on which the dismissal took effect, and if necessary, whether a further period should be granted under s.394(3) of the FW Act for the Applicant to make the application. I issued Directions requiring the parties to file outlines of submissions and evidence in relation to the matters for determination and conducted a hearing by telephone.

[6] Permission was granted for the Respondent to be represented by a lawyer based on my view that it would allow the matter to be dealt with more efficiently taking into account its complexity. In this regard, the Applicant raised a range of arguments in relation to both merit and exceptional circumstances. The Applicant gave evidence in support of her contention that the effective date of dismissal was 20 December 2021.

Evidence and submissions

[7] The background to the application is that the Applicant was employed by the Respondent as a Radiographer for more than 13 years until her dismissal in December 2021. The Respondent operates a network of clinics providing a range of medical imaging and diagnostic services to patients. The Respondent implemented a policy in October 2021 requiring its employees to be vaccinated against the COVID – 19 virus. Subsequently, Queensland Public Health Orders were issued on 10 November and 16 December 2021 relating to workers in healthcare settings. Under the Public Health Orders, workers in healthcare settings were required to have received the prescribed doses of a COVID – 19 vaccine by 15 December 2021. Workers who did not comply with this requirement were prohibited from entering, working in, or providing services in a healthcare setting. The Applicant worked in a health care setting and the Public Health Orders applied to her (albeit that the Applicant disputes the legality of the Orders).

[8] The material filed by the parties indicates that following the implementation of the Respondent’s COVID – 19 vaccination policy, the Applicant had several email exchanges with the Respondent in October and early November 2021 in which the Applicant raised questions about the legality of the Public Health Orders and the Respondent’s vaccination policy and the efficacy of COVID – 19 vaccines as well as concerns about medical freedom and human rights. The Applicant also requested that the Respondent produce data and risk assessments of COVID – 19 vaccines and submitted a Medical Exemption Application / Non-participation Declaration in relation to the Respondent’s policy. The Applicant’s Exemption Application was rejected on 7 December 2021 on the basis that the medical reasons provided by the Applicant did not meet the criteria for an exemption.

[9] On 13 December 2021, the Applicant sent a letter to Ms Jenna Murphy, Human Resources Business Partner of the Respondent, headed “Notice of Employment Particulars: Request for the Law for Mandated Vaccinations in Employment” in which she made assertions which can be summarised as follows:

•  Copies of Public Health Orders had not been provided to the Applicant so that she could inspect them to determine whether they were binding on her;

•  Public Health Orders are inoperable by virtue of s.109 of the Australian Constitution;

•  COVID – 19 vaccinations have not gone through proper testing processes, have adverse effects and contain ingredients that are known toxins; and

•  Vaccines do not provide protection from contracting or spreading the virus and may only be a mechanism to lessen symptoms.

[10] The Applicant’s letter concluded with the following statements and requests:

“Take Note:

1. I protest the interference of a medical service upon me of unknown consequences, and I protest the inspection that violates my medical privacy.

2. I request production of the written law that requires of me to undergo a forced vaccination as a prerequisite of my employment.

3. I request the production of the written data that proves the vaccine has undergone the clinical trials required of vaccines to prove its safety.

4. I request that the law for mandated vaccinations be made pursuant to the constitutional guarantee.

5. I request that the health directions and mandates be proved, for enforcement, that it has been made in the fulfilment of the law that governs this Commonwealth, for which unites and protects us.

Failure to produce the written law mandating this forced vaccination, within three days of this notice, shall be taken to be unwarranted coercion and workplace harassment for which substantial compensation may be due. Undertaking the vaccine as a condition to avoid work termination will not release, or absolve, you of the above numbered points and may be deemed a trespass without a written coram judice warrant. (See George v Rockett {1990} HCA 26-170 CLR 106)

I expressly reserve all my rights.”

[11] On 14 December 2021, the Respondent requested by email that the Applicant attend a show cause meeting on 15 December 2021 and attached a letter dated 15 December 2021. In that letter, Ms Peters noted that it was the Applicant’s choice as to whether she would receive a vaccination or disclose her vaccination status; provided the Applicant with a link to the Public Health Orders published on the Queensland Health website; reiterated the requirements of vaccination pursuant to those Orders; and that both the Respondent and the Applicant could be liable for a fine or imprisonment for a failure to comply with the Orders. Ms Peters also stated that:

“If you do not meet the vaccination requirements under the Direction, you will not be able to attend for and perform work, and you will therefore be unable to perform the inherent requirements of your role. It is for that reason that I-MED is considering the termination of your employment.

…

As a reminder, you are required to attend a meeting [via Microsoft Teams with myself and Jenna Murphy (HR Business Partner) today (Wednesday 15th December 2021)] at 1pm to discuss the matter further. This meeting will be your final opportunity to show cause as to why I-MED should not proceed with the termination of your employment before any final decision regarding disciplinary action is made. You may have a support person present at the meeting.”

[12] On 14 December 2021, the Applicant responded to Ms Peters’ email stating, among other things, her views that she was being coerced into receiving a vaccination. The Applicant also asked whether I-Med had considered allowing her to take various forms of leave, including leave without pay, to keep her employed until a safer vaccine was available. The Applicant also stated that she was most upset for her pending termination, and concluded by stating:

“I would imagine that my leave and long service leave and my 5 weeks termination leave has been calculated accordingly unless the decision is to allocate my leave until I make a different choice.”

[13] The Applicant had previously proposed to go on leave to delay receiving a vaccination. The request for leave was declined by the Respondent on 7 December 2021, for operational reasons.

[14] A show cause meeting was held on 15 December 2021 between the Applicant, her support person, Ms Peters and Ms Murphy. The Applicant has not provided evidence about what was said at that meeting. The Respondent however asserts that during the meeting:

“…the Applicant and her support person confirmed that all of her questions and concerns had already been submitted to the Respondent. Despite again raising concerns of the Applicant’s previous history of deep vein thrombosis in her leg, the Applicant did not have an approved medical exemption. The meeting was later brought to a close, and the Respondent’s representatives considered the matters raised by the Applicant prior to and during the meeting.”

[15] On 16 December 2021 Ms Murphy sent an email to the Applicant requesting that the Applicant attend another meeting on 17 December 2021 “to discuss the outcome” from the meeting on 15 December 2021. The Applicant contends that it was her understanding that no final decision was made at the meeting on 15 December as reference was made by the Respondent to another meeting on 17 December 2021. The Applicant submits that she was “optimistic about the pending outcome” as she felt she had finally been able to articulate some of her concerns at the meeting on 15 December 2021.

[16] On 17 December 2021, the Applicant attended the meeting with Ms Peters and Ms Murphy via Microsoft Teams. The Applicant recorded part of the conversation during that meeting without the knowledge of Ms Peters and Ms Murphy. The Applicant provided the audio recording and the Respondent prepared a transcript which was tendered in the hearing. Both parties relied on the transcript and the Applicant did not take issue with its accuracy. Given the significance of this meeting, I set out below the transcript, in full.

“Beth Peters: Okay. So I’m just going to cut to the chase that this is going to be a pretty difficult conversion today. Jenna and I have reviewed everything that we discussed the other day, the emails that you’ve sent and unfortunately, Eileen, we’re not going to be able to continue with your employment.

Applicant: Yeah.

Beth Peters: Are you there?

Applicant: Yeah, I’m here.

Beth Peters Okay. Are you … how are you feeling?

Applicant: Well how would you feel?

Beth Peters Not very good, I would feel not very good. That’s why I’m a little bit worried that you’re home today without Ashley there and that you don’t have your support person with you. Is there anything that we can do for you today?

Applicant: No.

Beth Peters Okay. Okay. So after this meeting we’ll send out an outcome letter just detailing all of that information. We’ll also get payroll to calculate your payout for your accrued leave – all your entitlements and that gets paid out within a week, Jenna, is that correct?

Jenna Murphy: Yeah, it’ll likely be on Tuesday, Eileen, so definitely within a week and on track for Tuesday and you should receive – I’m not sure what they refer to it as, but like a final payslip with a summary of everything by the Wednesday. So that’ll come direct to you from payroll. I think that’s about it.

Applicant: Is that’s termination payment out as well? That’s five weeks …

Jenna Murphy: Payment in lieu of notice, correct. So that will be …

Applicant: Five weeks.

Jenna Murphy: … combined in the payment, yes.

Applicant: Can I ask why this … I’m being terminated, what is the reason?

Beth Peters Because you do not comply with the COVID-19 vaccination policy. That will be detailed in the letter to you as well.

Applicant: Mm hm.

Jenna Murphy: And in terms of like the Queensland Public Health Order which we discussed yesterday. So, Eileen, we did consider the option of allowing you to go on leave but at this stage there’s no sort of definitive date and we don’t know when Novavax is being rolled out or a particular vaccine that you would be comfortable with getting. So we’ve had to take the approach of if we don’t know if Novavax is being rolled out today, two weeks, three months, four months, it’s sort of a position where operationally it’s better if we, more feasible and … if we part ways and then when the times comes and you are compliant with the public health order, we just hope …

Applicant: Or that the public health order has actually fallen away.

Jenna Murphy: Yeah. So if there’s no restrictions in place for you to be able to work and fulfil your role, we ask that you reach out. And I think the biggest thing that I know myself but definitely Beth as well, we really want this to kind of part ways on good terms, Eileen, because we definitely get zero enjoyment out of this and we hate that we are having to part ways and we do want to get you back.

Beth Peters: Well I want Eileen to come, yeah, I want Eileen to come back and work for us so.

Jenna Murphy: Yeah. And I say also Beth more so because we haven’t actually even met in person before Eileen, so I feel like it means more hearing that from Beth than from me. So, yeah, I guess it’s just wanting … hoping that you don’t see us in a bad light so to speak and that you would consider coming back one day but I’m not sure that you would be in that headspace at the moment.

Beth Peters: Yeah. I mean that’s a tough thing to say when you’ve just been told that your employment’s not going to be continued. But, Eileen, as I’ve said to you previously on many, many occasions, you can contact me any time. As soon as you either comply with the policy or the policy doesn’t exist, get in contact with me and as soon as I have a position for you here, we’d definitely offer you a job. Also I just … I’m sorry I haven’t gotten back to you with the reference letter. I’m not able to give you a written reference but I can be a verbal reference for you and I’ll send you a text after this as well and let you know what I can do for you there.

Applicant: What has I-MED done, (Like I actually req you know -asked on Wednesday to actually advocate for us) I can’t actually ... you know, I was asked on Wednesday to actually advocate for us? How did you actually fight for us, how did you come to this conclusion that termination is the only solution over here? I mean the fact a lot of us – I don’t know about the others, I can certainly just speak for myself – but have got a fair amount of leave and it wouldn’t be a matter of it’s a long term scenario and then obviously after that period of time a decision to be made. It’s not like I’m going on leave without pay. How did I-MED actually fight for us? Did you guys just come to the conclusion or HR just come to the conclusion that, yeah, that’s it. This is too much of a hard box, let’s just stick it in there and it’s too much to deal with every single person’s situation, it’s easier just to make a blanket statement and then this is the way it’s actually been conducted. I, just for own piece of mind, I would like to know what was done to actually fight for us?

Beth Peters: We definitely, Eileen, considered people’s request for leave and different people have requested different allowances but I guess the position was taken that because there is no end date at the moment and no one can give us an end date and we’re at the mercy of both Federal and State Governments here as well, it just isn’t feasible operationally when you’re running a business to have that unknown element in your workforce. It just – if we had dates, it would have been a different story but we did expect to have a bit more information by now about Novavax and the other one.

Applicant: Covax.

Beth Peters: Yeah, but we just don’t have it and we – as a business, we can’t operationally support having people on indefinite amounts of leave for a policy, like when they don’t comply with a policy. Is that correct, Jenna? Is there anything?

Jenna Murphy That’s essentially the crux of it. And that would be the situation is that you’re on leave for an unknown period of time; Novavax could roll out the first week of January. If we’ve organised cover operationally that would impact it and vice versa with it not being rolled out in January. And the advice we’re being given is that we don’t know if it’s going to be rolled out in Australia at all. So, as Beth said, we can’t continue to run a business efficiently if we’ve got people on leave for an unknown amount of time.

Applicant: Mm.

Beth Peters: It was definitely considered though Eileen. Do you have any other questions that have been unanswered?

Applicant: No.

Beth Peters No.

Applicant: Nothing else for me to say actually. I mean it’s very disappointing how this has actually all come about and that I was really hoping that I-MED would take more of a stand for its employees. I mean as much as you say we are valued, I certainly don’t feel like that at the moment. I mean I hope you understand my feelings.

Beth Peters: Yeah.

Applicant: I certainly don’t come out as being a rude person but I am not very happy about the situation and whatever really, that’s just how I feel at the moment because I mean I’ve just – I mean I knew this was coming, it was inevitable, I mean that’s what I was told right from the beginning that it wasn’t even going to be something that was even going to be considered. So I mean a really long, drawn out, very stressful situation on Wednesday turns into oh well, you know. I was … had a little bit of hope in me but I did actually say that it’s probably false hope and I must just get over it and just carry on with my life and that’s just the way it is. I mean, yes it’s done.

Beth Peters: I hope … I mean the outcome is what it is, Eileen and it’s … I really … I do feel personally very bad but I do hope that this isn’t the end. As we’ve both said we want you to come back and work for us so please stay in contact with me and if anything changes, we’ll try and get you back on as quickly as we can.

[17] On 21 December 2021, Ms Peters sent an email to the Applicant attaching a letter that was dated 20 December 2021 and headed ‘Formal Meeting Outcome’. In the email, Ms Peters said:

“Hi Eileen

Please find the meeting outcome letter attached as discussed last Friday.

I have a list of all the documents and information you requested and Jenna is working on getting that to you:

•  Super fund and number

•  Radiation Licence

•  CPR Cert

•  MRI Level 1 Cert

If there is anything else you can think of let me know and I will try to get it for you.

Also, we need you to drop back your uniforms and keys when you get a chance.

You are able to drop them at any clinic just ask the front desk staff to let either Ash or I know when you have returned them.

Hope you are doing okay, please stay in touch.

Regards
Beth”

[18] The attached letter under the signature of Ms Peters, was in the following terms:

“Dear Eileen,

Formal Meeting Outcome

I refer to my letter dated 6 December 2021 regarding the vaccination requirements which apply to your role, and in particular the Queensland Government Direction requiring workers in healthcare settings to be vaccinated against COVID-19 (Direction).

Under the Direction, all persons working in healthcare settings in Queensland must not enter, work in, or provide services in, a healthcare setting (which includes all of our Queensland clinics) after Wednesday, 15 December 2021 unless they:

•  are fully vaccinated; and

•  have provided evidence of vaccination to I-MED (and if required, the hospital that they work

•  in) as soon as reasonably practicable after receiving the vaccination, or

•  have an approved medical exemption confirming a medical contraindication.

In my previous letter, I also confirmed that you were required to comply with:

•  I-MED’s COVID-19 Vaccination Policy (Staff), which required all I-MED staff to be vaccinated against COVID-19 unless they hold an exemption approved by I-MED.

We confirmed to you that because you would not be able to meet the requirements of the Direction, you would be unable to attend for work, and therefore unable to perform the inherent requirements of your role from 15 December 2021. You were informed that I-MED was considering the termination of your employment.

We then met with you on 15 December 2021, to provide you with a final opportunity to show cause as to why I-MED should not proceed with the termination of your employment. I-MED has considered the information you provided during that meeting.

You confirmed that you do not meet the requirements of the Direction.

You are now unable to attend for and perform work because you are unable to meet the vaccination requirements under the Direction. You are therefore unable to perform the inherent requirements of your role. We note that, even if these requirements did not apply, you would be required to be vaccinated in order to comply with I-MED’s COVID-19 Vaccination Policy (Staff).

Accordingly, I-MED has determined to terminate your employment.

Your final day of employment was 17 December 2021 and you will be paid in lieu of your notice period. You will also be paid in lieu of your accrued untaken annual leave entitlements.

We remind you that you continue to be bound by the obligations in your contract of employment that survive its termination, in particular those obligations you have to I-MED in respect of confidentiality and intellectual property.

You must return all property belonging to I-MED which is in your possession or control. We will be in contact with you to arrange for the return of these items.

I appreciate that the information contained in this letter may be difficult for you. I remind you that you have access to I-MED’s Employee Assistance Program if you need additional support – this is a free and confidential counselling service, which is also available to immediate family of I-MED staff. You can access this by calling [1300 number] at any time to arrange an appointment with the service.

If you have any questions or concerns or would like to discuss any of the above further, please do not hesitate to contact me or your HR Business Partner, Jenna Murphy.”

[19] On 4 January 2022, the Applicant emailed Ms Peters and Ms Murphy stating that her employment ended on 15 December 2021 and requesting that she be provided with an end of employment pay advice, separation certificate and certificate of service. Ms Murphy replied indicating that she would follow up with their payroll department and provide the Applicant with those documents as soon as possible.

[20] The Applicant states that she was genuinely confused as to the date upon which her dismissal took effect. During cross-examination, the Applicant was questioned about her understanding of the purpose of the show cause meeting on 15 December and of the meeting held on 17 December to discuss the outcome. The Applicant conceded that she understood the purpose of the show cause meeting was for her to put forward her response to why her employment should not be terminated. The Applicant also said that after the show cause meeting she felt that she had been able to articulate her concerns fully, that Ms Peters and Ms Murphy would agree to her proposal of taking leave to consider her options and that she felt optimistic about the pending outcome. When it was put to the Applicant that the two possible outcomes of the meeting on 17 December were her continuing in employment while taking leave or the termination of her employment, the Applicant answered, “I didn’t know that on the 17^th that would actually be the date. I knew that my employment, if they didn’t follow through, that my employment would be terminated at some stage.”

[21] The Applicant further submits that the multiple dates in the correspondence communicating her dismissal further confused the situation. In this regard, the Applicant points to the fact that she received the Formal Meeting Outcome letter via email on 21 December 2021, four days after the meeting on 17 December. The letter itself was dated 20 December 2021 but notified the Applicant that her final day of employment was 17 December 2021. The Applicant submits that there is no logical reason why, if the Applicant had been terminated on 17 December, the letter would not have been dated 17 December 2021 and provided to the Applicant on that date. The Applicant submits that the Respondent HR representatives were themselves unsure, presumably, about the exact date the termination took effect.

[22] Further, the Applicant said that the period between 22 December 2021 and 2 January 2022, “revolved around numerous family and social commitments that were pre-planned” and that she was advised by close friends and family to enjoy this time and not to think about work-related issues until after New Year. The Applicant claims that she only became aware of the 21-day time limit from 2 January 2022, and in that period was preoccupied with caring for her son after her son’s health suffered a further setback in the week beginning 3 January 2022.

[23] In relation to the basis upon which a further period should be granted, if necessary, the Applicant said that exceptional circumstances exist because her son suffered a relapse of an addiction in December 2021 and a further setback from 3 January 2022. Two invoices for drug tests dated 12 and 15 December 2021 and a Medical Certificate dated 30 March 2022 were provided by the Applicant in support of this contention. The medical certificate states that Mr Owens was seen at the clinic on 13 December 2021. No further details were provided in the medical certificate. The Applicant states that the circumstances surrounding her son’s condition were highly personal and she was reluctant to share this information in detail. In summary, the Applicant submits her son’s condition required her full emotional and psychological attention for the entirety of the week beginning 3 January 2022 which resulted in her not filing her application until 10 January 2022.

[24] The Respondent submits the Applicant has failed to provide a sufficient reason for the delay in making her application. With respect to the condition of the Applicant’s son, the Respondent stated that at no point did the Applicant raise this issue with the Respondent in the week leading up to 17 December 2021. Had the Respondent been made aware of her circumstances, the Respondent contends that the Respondent would have encouraged the Applicant to take carer’s leave and would have deferred the show cause and subsequent meetings. Further, the Respondent contends that the Applicant has not suggested that the delay was affected by her son’s condition in mid-December 2021.

[25] The Respondent also submits the Christmas and New Year periods do not constitute exceptional circumstances and the Applicant could have used this time to prepare and file her application. The Respondent also submits that a lack of awareness of the time limit does not constitute an exceptional circumstance and in relation to the Applicant’s son, there is a general lack of detail with respect to what occurred, when it occurred or how it affected the Applicant’s ability to file the application or otherwise contributed to the delay.

[26] Further, the Respondent submits that the Applicant was notified via a Microsoft Teams meeting on 17 December 2021 that her employment was terminated effective that day and the Applicant would be paid in lieu of notice. The letter sent to the Applicant on the morning of 21 December 2021confirmed this outcome and the date of the termination being 17 December 2021. During the hearing, the Respondent submits that while s.117 of the FW Act requires the notice of termination to be provided in writing, a failure to provide such written notices on the date of the termination does not alter the date of the dismissal. The Respondent further submits that the provision of a letter at a date after the date of the termination for the purpose of confirming the termination would not change the date of the termination to a later date. These propositions were said to find support in Raven v Bank Australia Limited T/a Bank Australia 1 and Jandrek v Tactical Training Group Pty Ltd2.

The date on which the dismissal took effect

[27] The FW Act does not define when a dismissal takes effect. Section 117(1) of the FW Act provides as follows:

“117 Requirement for notice of termination or payment in lieu

Notice specifying day of termination

(1) An employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given).

Note 1: Section 123 describes situations in which this section does not apply.

Note 2: Sections 28A and 29 of the Acts Interpretation Act 1901 provide how a notice may be given. In particular, the notice may be given to an employee by:

(a) delivering it personally; or

(b) leaving it at the employee’s last known address; or

(c) sending it by pre‑paid post to the employee’s last known address.

[28] In Ayub v NSW Trains 3 a Full Bench of the Commission considered the proper meaning and application of the expression “within 21 days after the dismissal took effect” in s.394(2)(a) of the FW Act. In particular, the Full Bench considered whether in any circumstances a dismissal could be said to have taken effect before it was communicated to the relevant employee.

[29] The facts in that case were that the dismissed employee had been informed in a letter dated 23 November 2015, that a decision to dismiss him had been made but that he had a right to seek an internal review of the decision within 14 days. The letter further advised that if no request for a review was made within the 14-day time period, the dismissal would take effect on 7 December 2015, but if a review was requested and the outcome of the review was that the decision to dismiss was confirmed, the dismissal would be “effective from 7 December 2015 or from the date of the outcome letter whichever one is of the latter date”. The employee sought a review which was unsuccessful. The employee was informed of the outcome on 14 January 2016. The Full Bench described various steps taken by the employer to inform the employee (Mr Ayub) of the outcome, as follows:

“(1) A letter dated 14 January 2016 and signed by Ms Alison Condon, from the Secretariat of the Panel (Outcome Letter), advised Mr Ayub that the disciplinary outcome of dismissal was affirmed, but did not in terms advise the date of the dismissal. The Outcome Letter, underneath the date, contained the words “Delivered by Hand”. However this letter was never personally served on Mr Ayub.

(2) In a letter addressed to Mr Ayub dated 15 January 2016 but signed by Ms Samantha Hudson, the Regional General Manager Central West, on 18 January 2016, NSW Trains confirmed that Mr Ayub was dismissed and that his last day on the payroll would be 14 January 2016 (Dismissal Letter). The Dismissal Letter enclosed a copy of the Outcome Letter. An email attaching the Dismissal Letter and the Outcome Letter was sent to Mr Ayub’s email contact address (which was his wife’s email address). NSW Trains contends that this occurred on 18 January 2016. Mr Ayub did not see and open the email until 19 January 2016.

(3) In the proceedings before the Senior Deputy President, NSW Trains filed a submission which attached a witness statement of Ms Vicki Wong dated 29 April 2016, who was employed as its Acting Workplace Relations Manager - Projects. In her statement Ms Wong averred that on 14 January 2016 she rang Ms Helen Bellette an organiser employed by the RTBU which represented Mr Ayub and informed her of the Panel’s decision. Ms Wong did not say that she identified the effective date of the dismissal. At the hearing before the Senior Deputy President, a witness statement from Ms Bellette dated 9 May 2016 was admitted into evidence. In that statement, Ms Bellette said that she did not recall receiving any phone call from Ms Wong, nor was there any record of such a call having been made. Ms Bellette further stated that on 18 January 2016 she received an email from Ms Wong which attached the Outcome Letter and the Dismissal Letter. Neither Ms Wong nor Ms Bellette was cross-examined at the hearing before the Senior Deputy President.”

[30] At first instance, the Deputy President determined that the dismissal took effect on 14 January 2016 and proceeded on the basis that the application was lodged four days beyond the required period. On appeal, Mr Ayub submitted his application was not in fact lodged outside the 21-day period because a dismissal takes effect only when it is communicated to the employee, which occurred on 19 January 2016 when Mr Ayub opened and read the email attaching the Outcome Letter and the Dismissal Letter. Mr Ayub also submitted that any communication with his Union did not constitute notification of the dismissal, and the Outcome Letter was never delivered directly to Mr Ayub (except insofar as it was sent together with the Dismissal Letter as an attachment to the 18 January 2016 email).

[31] NSW Trains submitted that its letter of 23 November 2016 constituted notice of the dismissal. Its effect was to give notice to Mr Ayub that if he applied for a review of the decision to dismiss him and the review was unsuccessful, the date of effect of his dismissal would be the 7 December 2015 or the date of the letter notifying him of the outcome of the review. The Outcome Letter was dated 14 January 2016, so in accordance with the letter of 23 November 2015 his dismissal became effective from that date. Mr Ayub and his Union knew of the review outcome and received the Outcome Letter within a reasonable period after it was dated and the dismissal took effect.

[32] The Full Bench made the following observations:

“[17] At common law, a contract of employment may unilaterally be terminated by the employer with notice or by way of a summary dismissal. The general principle is that to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated. Where the communication is in writing, the communication must at least have been received by the employee in order for the termination to be effective. Where notice is given of the termination of the employment contract, then the contract will terminate at the end of the period of notice specified in the communication to the employee. The principles in this respect were summarised by the Supreme Court of NSW (White J) in Fardell v Coates Hire Operations Pty Ltd as follows:

‘[82] To be effective, a notice of termination of a contract of employment must specify a time when termination is to take effect, or that time must be ascertainable (G J McCarry, Termination of Employment Contracts by Notice (1986) 60 ALJ 78 at 79; Burton Group Ltd v Smith [1977] IRLR 351 at 354). The notice is to be construed according to how it would be understood by a reasonable person in the position of the recipient who had knowledge of the background of the dealings between the parties (Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19; [1997] AC 749 at 767-768; Carter v Hyde [1923] HCA 36; (1923) 33 CLR 115 at 126; Prudential Assurance Co Ltd v Health Minders Pty Ltd (1987) 9 NSWLR 673 at 677; Fightvision Pty Ltd v Onisforou [1999] NSWCA 323; (1999) 47 NSWLR 473 at [99]).’

[18] A notice of termination may validly operate notwithstanding that it is stated to take effect subject to a condition, provided that the notice is expressed with sufficient certainty so that conditional date of termination is ascertainable, the condition upon which the termination becomes operative has been fulfilled and the employee is in a position to know that the condition has been satisfied.

[19] When the termination occurs without notice on the basis that a sum of money is paid in lieu of the notice that would otherwise be required, then the termination would take effect when communicated to the employee subject perhaps to the additional requirement that the amount in lieu of notice has actually been paid to the employee.”

[33] The Full Bench also considered cases where a notice of termination of employment had been purported to operate retrospectively and stated that there is no proper exception to the general proposition established by the authorities under the former Workplace Relations Act and the FW Act, that a dismissal cannot take effect before it is communicated to the employee. The Full Bench went on to conclude that:

“[36] Having regard to the language, purpose and context of s.394(2)(a), we do not consider in relation to either question that the provision should be interpreted or applied so that the 21-day period to lodge an application for an unfair dismissal remedy could begin to run before an employee who has been dismissed at the initiative of the employer became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this. The combination of the very restricted time period to lodge an application under s.394(2)(a), together with the very high bar of “exceptional circumstances” required to be surmounted in order to obtain an extension of time to lodge an application, clearly demonstrates that it was intended that the timeframe to agitate such an application was to be strictly limited. Indeed s.394(2)(a) of the FW Act as originally enacted provided for a 14-day period only; this was extended to 21 days by the Fair Work Amendment Act 2012. On any view, the period allowed by s.394(2)(a) is extremely short having regard for the need for a dismissed person to take stock of his or her situation, seek advice or information about his or her rights, make a decision to seek a remedy, and complete and lodge an application. In that context it would require express language to justify an interpretation of the provision under which the 21-day time period allowed is further shortened because a dismissal is taken to have had effect before the employee has become aware that it has occurred. Were it otherwise, it would be possible for a dismissal with retrospective effect to be constructed which significantly diminished or even entirely eliminated the time allowed for an employee to lodge an unfair dismissal remedy application.”

[34] After considering the objects of the FW Act, the Full Bench also observed that it would not be consistent with a system that addresses the needs of employees as well as employers and is intended to ensure that a “fair go all round” is accorded to employees as well as employers, that the practical opportunity to lodge an application is diminished or eliminated by treating any dismissal as having retrospective effect. Support for this construction was also found in s.117 of the FW Act which provides that an employer shall not terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination, which cannot be before the day the notice is given.

[35] Subject to some exceptions which are not presently relevant, the principles to be extracted from the cases in relation to when a dismissal takes effect, are:

•  A failure on the part of an employer to provide written notice of termination of employment as required by s. 117 of the FW Act will not necessarily result in a finding that a dismissal has not taken effect;

•  To effect a termination of employment requires plain and unambiguous communication by words or conduct;

•  A dismissal does not take effect until it is communicated to the employee and cannot take effect retrospectively; and

•  The 21-day period for an employee to lodge an unfair dismissal application does not commence to run before an employee, who has been dismissed at the initiative of the employer, becomes aware that he or she had been dismissed, or at least has a reasonable opportunity to become aware of it.

[36] It is axiomatic that a plain and unambiguous communication of dismissal includes the date on which the dismissal is to take effect.

[37] Applying these principles in the present case, I do not accept that the Respondent communicated to the Applicant in plain and unambiguous words, on or before 17 December 2021, that her employment ended on 17 December 2021. The Respondent relies on what the Applicant was told at the meeting of 17 December 2021 as communication to the Applicant regarding her dismissal with effect from that date.

[38] I accept that at the meeting on 17 December 2021, the Applicant was informed that she was to be dismissed and that the Applicant could have been in no doubt that the Respondent had decided to dismiss her. However, the transcript of the meeting does not contain a definitive statement that the dismissal would take effect on 17 December 2021. There is no evidence of any representative of the Respondent making a definitive statement to the Applicant in the meeting on 17 December, either in the part of the meeting that was recorded and transcribed, or otherwise, that her employment was to end immediately with effect from that date.

[39] There was no conduct on the part of the Respondent indicating that employment ended on 17 December. The Applicant was not required to return keys or property on that date and there is no evidence that her personal effects were packed or removed immediately upon the conclusion of the meeting.

[40] It was not until 21 December 2021 when the Applicant received an email attaching a letter notifying her of her dismissal (dismissal letter), that the Respondent’s position on the effective date of the dismissal was stated. Even at that point the statement was not entirely clear. The dismissal letter makes no reference to the meeting on 17 December 2021 and does not contain a statement to the effect that it is confirming that the Applicant was dismissed on that date.

[41] The letter uses language in the present tense and contains statements including: “you are now unable to attend for and perform work” and “I-Med has decided to terminate your employment” and that the Applicant “must return all property belonging to I-Med which is in your possession or control.” In this context, the statement that “your final day of employment was 17 December 2021” is confusing. The letter is dated 20 December and was not sent until 21 December 2021. The Applicant’s dismissal could not take effect on 17 December 2021 unless it was plainly and unambiguously communicated to the Applicant on or before that date. There is no evidence of a discussion in which the Applicant was informed with finality that her employment would end, other than the meeting of 17 December 2021. Absent a plain and unambiguous statement at the meeting, that the Applicant’s employment was terminated with immediate effect, the letter of 21 December could not operate retrospectively to confirm her dismissal on 17 December 2021. During the hearing, the Respondent confirmed that a final payment was made to the Applicant on 23 December 2021 and the Applicant was provided with an end of employment pay advice upon request, on 4 January 2022.

[42] The cases cited by the Respondent in support of its assertion that the dismissal of the Applicant took effect on 17 December 2021, can be distinguished or do not support the Respondent’s submission. In Raven v Bank Australia 4, the employee was invited to a meeting at which the termination of her employment was verbally communicated to her by her manager. Contemporaneous notes were taken of that meeting and the Commission accepted that the Applicant was clearly informed that her employment would not be continuing “effective today” The Commission also accepted that when clarification was sought by the employee, her manager said, “your employment with [the Company] is terminated”. Further, the Commission found that the subsequent conduct of the employee on the day of her termination, including returning keys, collecting her personal belongings before leaving the building and sending a text message to her colleagues stating that she was no longer with the Company, demonstrated unequivocally her understanding that her employment had been terminated with immediate effect. Finally, the Commission noted that a final payment consistent with the termination of her employment, including an amount in lieu of notice was made to the employee, the day after her termination date and the employee did not question why the payment was made.

[43] In Jandrek v Tactical Training Group Pty Ltd 5, it was not in dispute that the employee was notified of the decision to terminate her employment with immediate effect in person, during a meeting the employer on 31 January 2022. While the employee in that case did not receive a termination letter until 8 February 2022 and received an Employment Separation Certificate on 11 February 2022, there was no dispute about the date the dismissal took effect.

[44] For these reasons I find that the Applicant’s dismissal took effect on 21 December 2021. As a result, her application was made within the 21-day period required in s. 394(2) of the FW Act. If I am wrong on this point, the ambiguity of the communication with the Applicant about the effective date of her dismissal, would have weighed in favour of a further period being granted, notwithstanding that I have significant reservations about several aspects of the Applicant’s unfair dismissal case as pleaded in her Form F2 application and elaborated on in her arguments in relation to the date her dismissal took effect and whether, if necessary, she should be granted a further period in which to make her unfair dismissal application.

[45] The Respondent’s objection based on the assertion that the application as made outside the time required in s.394(2) is dismissed and an Order to that effect will issue with this Decision.

The Applicant’s case

[46] The stage that this matter has reached is that the Applicant is now able to proceed to have the merits of her unfair dismissal application determined. The Applicant has not yet put on her full case in relation to why she asserts that her dismissal was unfair. However, my provisional view, is that there are arguments in the Applicant’s Form F2 Application that, if pressed by her at hearing, will be unlikely to succeed, and will likely be irrelevant to the question of whether her dismissal was unfair. To assist the Applicant to make an informed decision about the future conduct of her case, I have provided a link to the Commission’s website in relation to COVID – 19 related cases. In particular, the Applicant should note that, in relation to workplaces which are subject to Government directives:

1. The Fair Work Commission is not a Court and has no power to make a binding declaration about the validity of State or federal legislation including health directives or orders made pursuant to State legislation.

2. At the time of the Applicant’s dismissal and to date, Australian Courts have upheld the validity of directives/mandates and public health orders issued by State Governments in response to the COVID – 19 Pandemic including requirements that workers in particular settings are vaccinated.

3. The argument that directives/mandates and public health orders issued by State Governments are inconsistent with federal law and are invalid because of s.109 of the Constitution has been rejected by Australian Courts.

4. At the point the Applicant was dismissed, she was subject to the requirements of a Public Health Order issued by the Queensland Government and the Respondent was prohibited by law from allowing her to attend the workplace unless she provided evidence of vaccination.

5. A requirement that the Applicant comply with the Public Health Order by receiving a vaccine, to continue to work for an employer, does not involve coercion or forcing the Applicant to participate in a medical trial.

6. Incentives to encourage employees to be vaccinated are not coercion.

7. The Applicant is entitled to her views about vaccination and to refuse to be vaccinated, but that is a choice and to decline to be vaccinated or provide proof of vaccination pursuant to legal requirements for entry to a workplace, will result in the employee being legally excluded from the workplace.

8. While the choice may be difficult, it is nevertheless a choice.

9. COVID – 19 Vaccinations are approved for use in Australia pursuant to Commonwealth legislation and employers are not required to prove their safety or efficacy to employees or to the Fair Work Commission in the event of a dispute with an employee.

10. Employers are not required to lobby Governments to have directives revoked or amended before dismissing employees for non-compliance.

[47] While I do not go so far as to say that the Applicant’s case lacks reasonable prospects of success, arguments canvassed in her application, which I have summarised above, have been emphatically rejected in numerous cases before Courts and the Commission. While the Applicant is entitled to a hearing of her application, any expectation that such arguments will be entertained by the Commission is misconceived and it is improbable that a different decision will be made in respect of those arguments.

Next steps

[48] The application will be listed for Mention/Directions/Case Management and a Notice of Listing will issue with this Decision.

DEPUTY PRESIDENT

Appearances:

T Fairrie for the Applicant.
B Harris of Herbert Smith Freehills for the Respondent

Hearing details:

2022.
Brisbane (by telephone):
April 13.

Printed by authority of the Commonwealth Government Printer

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 1   [2017] FWC 3289.

 2   [2022] FWC 793.

 3   [2016] FWCFB 5500.

 4   [2017] FWC 3289.

 5   [2022] FWC 793.