[2022] FWC 3060

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kevin McIlwain
v
Woolworths Group Limited
(U2022/3957)

COMMISSIONER SCHNEIDER

PERTH, 28 NOVEMBER 2022

Application for an unfair dismissal remedy

[1] On 4 April 2022, Mr Kevin McIlwain (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Woolworths Group Limited (the Respondent).

Background

[2] The uncontested factual background to the matter is as follows:

• The Applicant commented employment with the Respondent on 28 November 2007.

• The Applicant was employed as a Fill Team Member. The Applicant worked at the Respondent’s BIG W Karrinyup site (work site).

• The Western Australian Government issues the Critical Business Worker (Restrictions on Access) Directions effective 12.01am 1 January 2022 and Critical Business Worker (Restrictions on Access) Directions (No 2) (both referred to as the Directions) effective 12.01am on 1 February 2022.

• The nature of the Respondent’s business and the Applicant’s role meant that he was subject to the Directions and was required to provide evidence regarding his vaccination or exemption status to be allowed access to the work site.

• The Applicant did not provide the vaccination or exemption information as requested by the Respondent.

• The Applicant’s employment was terminated by the Respondent on 13 March 2022.

[3] The matter was subject to a conciliation before a staff conciliator but was unsuccessful. The matter was then allocated to my Chambers and was subject to a Member assisted conciliation and again remain unresolved.

[4] After considering the circumstances of the matter alongside the views of the Applicant and the Respondent, I considered it appropriate to hold a hearing for the matter.

[5] The Applicant filed submissions in the Commission on 26 July 2022. The Respondent filed submissions in the Commission on 15 August 2022. The Applicant did not file any submissions in reply.

[6] At the hearing, the Applicant gave evidence on his own behalf. Mr Kris Mooney (Mr Mooney), State Manager, Central for BIG W, gave evidence for the Respondent.

Relevant Law

[7] Under section 396 of the Act, the Commission is required to determine several matters, most of which are not in dispute in the current matter, prior to the making a determination on the merits. One of those initial considerations is whether the application has been made within the relevant statutory time limit.

[8] Section 394(2) of the Act details the requirement for an unfair dismissal remedy to be made within the 21-day time limit:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

…

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3)…”

[9] Section 394(3) of the Act allows for the Commission to exercise discretion in granting a further period for an application to be made. The Commission must be satisfied there are exceptional circumstances permitting such discretion to be exercised.

[10] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, 1 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.

[11] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 2 In considering whether a dismissal is unfair, the Commission must take into account the matters specified in section 387 of the Act, this includes determining whether there was a valid reason for dismissal and taking into account any other matters the Commission considers relevant. Section 387 of the Act contemplates that the Commission will undertake an overall assessment as to the nature of the dismissal and in so doing, the criteria in section 387 of the Act must, where relevant, be weighed up in totality

[12] The evidence and submissions of the parties regarding the above, alongside my consideration, follows.

Consideration

Initial matters

[13] Section 394(2) of the Act requires an application to be made within 21 days after the dismissal took effect. The Respondent objected to the application on the grounds that it was filed out of the statutory time frame.

[14] The Applicant was dismissed from his employment on 13 March 2022 and made the application on Monday 4 April 2022. On first glance, it would appear that the Applicant had filed his application for unfair dismissal out of time, as final day of the 21-day period was Sunday 3 April 2022.

[15] However, as endorsed by the Full Bench of the Commission, “if the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day”. 3 I am therefore satisfied that the application was made within the period required in subsection 394(2) of the Act.

[16] This issue and the fact that the matter was incorrectly highlighted as out of time was raised with the parties upon allocation of the matter to my Chambers and the matter progressed to determine the merits.

Valid reason for the dismissal

[17] In order to be valid, the reason for the dismissal should be “sound, defensible or well founded” 4 and should not be “capricious, fanciful, spiteful or prejudiced.”5 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.6

[18] The Respondent submitted that there was a valid reason for the dismissal related to the Applicant’s capacity, specifically that he did not have the ability to perform the inherent requirements of his position.

[19] The Directions were issued by the Chief Health Officer, Dr Andrew Robertson, pursuant to sections 157(1)(e), 157(1)(k), 190 and 190(1)(p) of the Public Health Act 2016 (WA). The Directions took effect at 12.01am on 1 January 2022 and a revised version of the Directions came into effect at 12.01am 1 February 2022.

[20] The Respondent submits that it was required to comply with the terms and conditions of the Directions. This compliance extended to the work site and role of the Applicant. The work site was considered a “critical business site” and the Applicant was a “critical business worker” for the purposes of the Directions. The Applicant’s position required him to be in person at the store to manually move stock and fill shelves. His work, and the work of the other members of the store’s Fill and Recovery Team, could not be carried out from home.

[21] In compliance with the Directions, the Respondent required the Applicant to provide evidence in support of his ability to lawfully, in accordance with the Directions, attend the work site.

[22] The Applicant did not provide the required evidence to the Respondent by 1 January 2022. Further, the Applicant did not provide the required evidence to the Respondent as of 1 February 2022.

[23] As the Applicant had failed to provide the required evidence, that he had been vaccinated or had received a medical exemption, the Respondent believed he could no longer meet the inherent requirements of his position as he was prevented from entering the work site.

[24] The Applicant submitted that the Respondent did not preform a risk assessment in his presence, nor did they inform him about any risk assessments undertaken. The Applicant also submits that the Respondent did not properly engage with employees who questioned or objected to the vaccination policy.

[25] The Applicant contends that the Respondent’s vaccination policy contains flaws, highlighting that employees had been working unvaccinated up until its implementation. In summary, the Applicant submits that the vaccination requirements were poorly implemented and the Respondent’s engagement with him and his objections were impersonal and limited.

[26] The Applicant, in his show cause response, raised several issues regarding the nature of the Directions and efficacy of vaccinations. The Applicant scrutinised the ethical issues arising out of the Respondent’s policy and requests.

[27] On an objective assessment of the evidence, circumstances, and relevant facts, I find that:

• The Respondent had a valid reason for terminating the Applicant employment as he could no longer meet the inherent requirements of his position as he could no longer access the work site.

• The Applicant did not provide the Respondent with proof of vaccination as required under the Directions. The Applicant in his responses made clear that he held objections to request. The Respondent was unable to be satisfied that the Applicant had complied with the Directions and would therefore face sanctions if it allowed him to enter the workplace.

• As the Applicant could not preform work at the site, he was unable to meet the inherent requirements of his substantive position. The nature of the substantive position of the Applicant and the coverage of the Directions was such that there was no reasonable scope for this to be altered or for him to be redeployed into another role.

[28] The arguments raised by the Applicant regarding the legitimacy and risk of vaccines, public health orders, and workplace vaccination policies are not original and have been advanced by many before the Commission. The Commission has made clear that arguments of this nature are inconsistent with the findings of the Courts, are outside the scope of the Commission, or are simply without merit. 7 I cannot identify any circumstances or distinction in the arguments advanced by the Applicant to warrant further engagement with those subjects, apart from highlighting previous Decisions of the Commission. I also note that the failure to meet the requirements of a public health order, resulting in the inability to perform the inherent requirements of a role, has consistently been confirmed as a valid reason for dismissal.8 I see nothing in the circumstances before me to depart from a similar finding.

[29] Having regard to the matters I have referred to above, I find that there was a valid reason for the dismissal related to the Applicant’s capacity to meet the inherent requirements of his position.

Notification of the reason

[30] Proper consideration of section 387(b) of the Act requires a finding to be made as to whether the applicant was notified of the reason. Contextually, the reference to the reason is the valid reason found to exist under section 387(a) of the Act. 9 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,10 and in explicit11 and plain and clear terms.12

[31] The Respondent submitted that the Applicant was notified of the valid reason on the basis that the Respondent had communicated with the Applicant regarding the reason, the risk, and the information required.

[32] The Respondent began discussing the issue of COVID-19 and vaccination with employees via a newsletter style communication sent to BIG W team members in early 2021. Over the course of 2021, the newsletters discuss the topic, invite feedback, encourage vaccination, and notify employees of the future requirement to be vaccinated. On 12 November 2021, the Respondent issued communication regarding its internal Vaccination Roadmap and Policy which stated that employees would have to be vaccinated by the end of January 2022 to work with the Respondent. This communication requested employees to provide proof of vaccination by 12 December 2021. Reminder communications regarding that requirement were sent on 15 November 2021 and 6 December 2021.

[33] After the initial deadline for compliance has passed, the Respondent issued further communication regarding the impending deadline on 6 January 2021, which stated that non-compliance could result in termination.

[34] The Applicant was sent communication directly, by email, on 16 February 2022, prompting him to provide his vaccination status. A similar reminder was sent to the Applicant directly, by email, on 21 February 2022 which stated that ongoing non-compliance could result in termination.

[35] On 21 February 2022, the Respondent sent a letter, by email, to the Applicant and advised that it was inherent requirement of his position to be able to lawfully perform his duties at the work site. The Respondent advised the Applicant that, as he had not provided evidence of his vaccination status or a valid medical exemption, his on-going employment was at risk.

[36] The Applicant was sent further communication by the Respondent on 28 February 2022, which again explained to the Applicant that the Respondent was considering terminating his employment because the Applicant was unable to meet the inherent requirements of his position.

[37] The Applicant was provided until 7 March 2022 to respond in writing. The Applicant provided a written respondent on 7 March 2022.

[38] Mr Mooney considered the Applicant’s response and made the decision to terminate the Applicant’s employment on 10 March 2022.

[39] The Applicant submits that, as he was not contacted directly by anyone at work, he was not effectively notified of the reason and threat to his ongoing employment. The Applicant takes issue with the fact that the Respondent did not consult him more thoroughly in person or before he was stood down. The Applicant states that he was informed by his line manager that if he was not vaccinated, by the start of January 2022, he would be stood down.

[40] The Applicant concedes that the Respondent did send information regarding the vaccination policy prior to 2022 but he did not see the emails as he receives many emails each week. The Applicant states that the first email correspondence he saw from the Respondent regarding the reason was the one on 21 January 2022 and therefore he only had three weeks’ notice of the reason prior to his termination.

[41] I find that:

• The Respondent provided clear communication to the Applicant that his employment was at risk on 21 February 2022.

• The Respondent confirmed to the Applicant that his employment could be terminated in communication on 28 February and provided him an opportunity to respond as to why his employment should not be terminated.

• The Applicant provided a written response on 7 March 2022, which the Respondent consider prior to terminating the Applicant’s employment.

[42] I do not accept the Applicant’s submission that the Respondent did not adequately notify him of the reason for dismissal. The Applicant has made clear that he indeed received several communications from the Respondent regarding the vaccination requirements and threat of termination but that he did not read these until later. As the Applicant submits, he was provided with, at least, three weeks’ notice of the reason and the risk to his ongoing employment. The notification provided by the Respondent was adequate and issued prior to any determination to terminate being made. I note that the Commission has previously found that notification of the reason made to an incorrect email address, in good faith, did amount to procedural error, however, did not outweigh the valid reason. 13 The matter currently before me involves no such procedural error.

[43] Having regard to the matters referred to above, I find that the Applicant was notified of the reason for his dismissal prior to the decision to dismiss being made, and in explicit and plain and clear terms.

Opportunity to respond

[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. 14 The opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly.15 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.16

[45] The Respondent submitted that the Applicant did have an opportunity to respond to the reason for his impending termination as the Respondent had consulted and communicated with the Applicant about the requirements under the Directions. The Respondent made the Applicant aware that his employment was at risk if he could not comply with the Directions.

[46] The Respondent sent the Applicant a letter on 28 February 2022, which again put the Applicant on notice that should he fail to respond to the communication or provide adequate evidence or explanation in relation to his COVID-19 vaccination status the Respondent may terminate his employment.

[47] Mr Mooney, in his evidence, confirmed the below:

• The Respondent sent updates to employees encouraging employees to get vaccinated, the importance of vaccinations, and provided information from the relevant Government bodies.

• The Respondent provided confirmation that information was sent to employees on 2 March 2021, 21 June 2021, 4 August 2021, 11 October 2021, 12 November 2021, 6 December 2021, 5 January 2022, and 6 January 2022.

[48] As discussed above, the Applicant submits that the notification he received was not satisfactory and that, due to him not seeing previous correspondence, he only had three weeks’ notice of the threat to his ongoing employment. It is clear from the Applicant’s submissions that he was provided adequate time to consider his options and formulate a response to the notifications from the Respondent prior to the termination.

[49] I find that:

• The Applicant was provided with clear, concise, and easy to understand notice that his employment with the Respondent was at risk.

• That the Respondent’s letter to the Applicant on 28 February 2022, clearly stated that if the Applicant was unable to provide evidence of his COVID-19 vaccination status or a medical exception that his employment with the Respondent may be terminated.

• The Respondent provided the Applicant with over one week to respond to this communication and the Applicant was provided with a fair opportunity to respond to the show cause letter.

[50] I do not accept the Applicant’s submission that the Respondent did not adequately consult with him directly. Understandably, in a large enterprise such as the Respondent, employees may feel like such a process is impersonal and find that hurtful. However, even if somewhat faceless, the Respondent did in fact communicate with employees and the Applicant directly throughout the implementation of their policy and the Directions.

[51] In all the circumstances, 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.

Refusal of support person

[52] 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. There is no positive obligation on an employer to offer an employee the opportunity to have a support person.¹⁷

[53] The Applicant did not make any submissions or raise any concerns that the Respondent had unreasonably refused to allow a support person present. The Respondent submitted that it did not unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal.

[54] In all the circumstances, I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal.

Warnings regarding unsatisfactory performance

[55] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant in the present circumstances.

Size of the Respondent’s enterprise and any absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise

[56] The Respondent is a large and well-resourced enterprise with dedicated human resources management specialists and expertise. Accordingly, the procedure followed was satisfactory.

Other relevant matters

[57] Section 387(h) of the Act requires the Commission to take into account any other matters that the Commission considers relevant.

[58] The Applicant has been employed at the Respondent since 2007. The parties did not adduce significant evidence or submissions regarding this factor. On the limited material before me, based on the length of service alone, it seems apparent that the Applicant was a satisfactory employee over a significant period of time. I have duly considered this in my determination.

[59] The Applicant submitted that the following matters are relevant to the Commission’s consideration of whether the dismissal was harsh, unjust, or unreasonable:

• The Respondent’s vaccine policy is “questionable” and “illogical” given the Applicant had worked for the Respondent during 2020 and 2021 without being vaccinated.

• The Applicant contends that he never explicitly refused to comply with the Respondent’s vaccination policy but had concerns and questions about the vaccine policy which were not answered.

• The Applicant also made several statements regarding not being afforded time during work hours to open and read the Respondent’s communication, undertake research on the choices, make enquiries, and generally engage with the material.

[60] The Respondent submitted the following in response:

• The concerns the Applicant had about the Respondent’s COVID-19 policy were not relevant as the Applicant was not dismissed for failing to comply with the Respondent’s policy. Rather the Applicant was terminated for failing to meet the inherent requirements of his position and comply with the Directions.

• The Applicant had a choice to become vaccinated against COVID-19 and provide evidence of his vaccination status or provide evidence of a medical exemption, that choice remained, at all times, the Applicant’s own.

• The Respondent provided information about COVID-19 vaccines to the Applicant throughout 2021.

• The Applicant had a personal responsibility to do his own research and make his own decision in relation to complying with the Directions or not.

• The Directions were not in place in 2020 and 2021 that required the Applicant to be vaccinated.

[61] I note the following in consideration of the above submissions:

• I accept the Respondent’s submission that the Applicant’s issues with the Respondent’s workplace policy in relation to COVID-19 vaccination requirements are not a relevant consideration, the Applicant conceded to this in cross examination. The reminder letters, show cause letter, and termination letter sent to the Applicant all make clear that his employment was at risk due to the Directions which were separate to the Respondent’s policy.

• As noted previously, arguments regarding the efficacy and legitimacy of vaccines and public health orders have been frequently rejected by the Commission. I see no reason to depart from a similar sentiment in this matter.

• Regarding the Applicant’s assertion that he had questions regarding the policy which went unanswered, I note that the Applicant had ample opportunity to do his own research and make an educated decision about his choice to not comply with the Directions. As highlighted in the Hearing, the communication from the Respondent included links and contact details for the Respondent’s medical team who could answer questions regarding COVID-19 and vaccination. In cross examination, the Applicant confirmed he did not opt to contact the medical team to answer any questions. The Applicant also had ample time prior to his termination, and prior to his show cause response, to raise any queries with the Respondent directly.

• I note the Applicant’s statements regarding the lack of time afforded to him during work hours to engage with the material sent by the Respondent. I do not accept that any procedural unfairness occurred as a result of the Applicant having to read the letters regarding his non-compliance and engage with the process in his private time. As noted by Mr Mooney, employees regularly access work related content in their own time for a variety of reasons. As a result of the Directions, the Applicant was presented with a personal decision, the outcome of which could result in his termination, it was incumbent on him to inform himself of his options and make whatever choice was best for him.

• The Applicant decided to not provide evidence of his vaccination status or a valid medical exemption and as a result the Respondent, at risk of penalty for non-compliance with the Directions, terminated his employment as he could not attend the workplace and fulfil the inherent requirements of his position.

Harsh, Unjust, or Unreasonable?

[62] I have made findings in relation to each matter specified in section 387 of the Act as relevant. I must consider and give due weight to each as a fundamental element, as well as the doctrine of fairness, in determining whether the termination was harsh, unjust, or unreasonable. 18 Having considered each of the matters specified in section 387 of the Act, and fairness in the circumstances, I am satisfied that the dismissal of the Applicant was not harsh, unjust, or unreasonable.

[63] The Respondent had a valid reason for termination as the Applicant could no longer perform the inherent requirement of his position as he was no longer able to lawfully attend the work site.

[64] The Applicant was aware of the choices available to him and exercised his choice to not become vaccinated or provide evidence of his vaccination, the Commission notes that choice was open to him to make and passes no judgement in that regard. However, the Applicant’s choice put the Respondent in the position where they could not lawfully allow him to attend the work site.

[65] At the time of making the decision to terminate the Applicant’s employment, the Respondent had no time frame as to when (or if) the Directions would be lifted. Therefore, it was not unreasonable for the Respondent terminate the Applicant as opposed to have the Applicant on some form of paid or unpaid leave for an indefinite period. A valid reason for dismissal arose, the Applicant was afforded procedural fairness, and the Respondent determined it would terminate the Applicant.

Conclusion

[66] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the Act. The Applicant’s application is therefore dismissed, an Order has been issued. 19

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