Fair Work Act 2009
s.394—Unfair dismissal

Barbara Roman
v
Mercy Hospitals Victoria Ltd
(U2021/11846)

Application for an unfair dismissal remedy – refusal of hospital worker to provide evidence of vaccination status – government directions – incapacity to perform role – whether serious misconduct in failing to follow lawful and reasonable direction – valid reasons for dismissal – dismissal not unfair – application dismissed

[1] This decision concerns an application for an unfair dismissal remedy made by Ms Barbara Roman under s 394 of the Fair Work Act 2009 (FW Act). From 1999 until 2 December 2021, Ms Roman worked as a hospital services attendant for Mercy Hospitals Victoria Ltd (Mercy) at its Werribee hospital. Pursuant to Victorian government directions, Mercy was prohibited from allowing workers to attend for work from 15 October 2021 unless they had provided it with evidence that they had been vaccinated against COVID-19, had made an appointment to receive a vaccination, or had a medical exemption. Mercy directed its employees to provide such evidence. Ms Roman was dismissed on the ground that she had refused to follow Mercy’s direction. Ms Roman contends that the direction was unlawful or unfair, that Mercy did not have a valid reason to dismiss her, and that in any event her dismissal was harsh, unjust or unreasonable. She seeks reinstatement or compensation.

[2] Section 396 requires that I decide four matters before considering the merits of Ms Roman’s application. I am satisfied of the following. First, the application was made within the 21-day period required by s 394(2). Secondly, Ms Roman was a person protected from unfair dismissal. Thirdly, the dismissal was not a genuine redundancy. Fourthly, Mercy is not a small business employer, and the Small Business Fair Dismissal Code is therefore inapplicable.

Background

[3] On 29 September 2021, the Acting Chief Health Officer of Victoria issued the COVID-19 Mandatory Vaccination Directions (No 4) (No 4 Directions) under s 200(1)(d) of the Public Health and Wellbeing Act 2008 (Vic) (PHW Act). The No 4 Directions imposed obligations on the operators of specified facilities, including healthcare facilities such as Mercy, not to allow workers to attend for work on or after 15 October 2021 unless they had provided evidence to the employer of having been vaccinated against COVID-19, or of a booking to receive a vaccination by 29 October 2021. An exception applied for workers who provided a certificate that they were unable to receive a vaccination due to a medical contraindication. The No 4 Directions commenced on 29 September 2021. They were succeeded by other directions in very similar terms. The directions that applied on 2 December 2021 were the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 13) (No 13 Directions). I refer to the various directions collectively as ‘the Directions’. Failure to comply with the Directions exposed an employer to substantial penalties.

[4] Ms Roman’s role as a hospital services attendant required her to assist with the delivery of patient meals to wards and to carry out general cleaning duties. She also provided transport assistance for patients to locations within the hospital and removed linen for external collection.

[5] Ms Linda Townsend was Ms Roman’s ‘skip line’ manager, meaning that she was the supervisor of Ms Roman’s immediate manager. Ms Townsend gave evidence of correspondence that passed between Mercy and Ms Roman between late September 2021 and 2 December 2021. The correspondence was attached to Ms Townsend’s witness statement. It was also referred to in Ms Roman’s materials. The correspondence speaks for itself.

[6] On 21 September 2021, Mr Jason Payne, Mercy’s chief executive of health services, sent an email to staff stating that they would need to have received at least one dose of a COVID-19 vaccine by 15 October 2021, or provide evidence of an appointment to receive a vaccination. The message asked staff to send their first or second dose vaccination data to Mercy as soon as possible. Two further messages to the same effect were sent to all staff on 28 September and 5 October 2021.

[7] On 8 October 2021, Mr Payne sent a further email to staff stating that vaccinations were ‘an essential part of our defence against COVID-19’. Under a heading of ‘What you need to do’, the message told staff that as soon as possible before 15 October 2021, they ‘must provide evidence’ showing that they had received at least a first dose of a COVID-19 vaccine or had an appointment to receive the first dose by 29 October 2021. The message further stated that if a worker was not intending to get vaccinated, they must make an appointment with their manager as soon as possible, and that they would not be able to undertake any on-site work from midnight on 14 October 2021.

[8] On 12 October 2021, Mr Payne sent another email to staff stating that they ‘must submit’ evidence of having received their first dose of vaccine, an appointment to receive it, or a medical exemption, by 15 October 2021.

[9] On 13 October 2021, Ms Roman wrote to Mercy, stating her opinion that exceptions in the Directions relating to essential workers applied to her, such that she was not required to be vaccinated in order to attend the workplace. She also raised various concerns about the lawfulness of the Directions and Mercy’s observance of them, including that they were in her view invalid because they were inconsistent with federal privacy legislation. Ms Townsend’s evidence was that on 14 October 2021 she telephoned Ms Roman, but that Ms Roman did not answer. Ms Roman did not give evidence. Her daughter Ms Daniela Roman, who represented Ms Roman at the hearing and was involved in her mother’s dealings with Mercy in the last months of her employment, gave evidence that she and her mother did in fact speak to Ms Townsend on this day.

[10] On 14 October 2021, Ms Sandra Cinar, Mercy’s general manager of human resources, sent Ms Roman a letter stating that Mercy was providing all employees with a lawful and reasonable direction that, by 15 October 2021, they must provide to Mercy evidence that they had received their first dose of COVID-19 vaccine or had scheduled an appointment to receive one by 29 October 2021, unless they had a medical exemption. The letter stated that if Ms Roman decided not to meet these requirements, she would not be able to continue working at Mercy from 15 October 2021, because the Directions prohibited Mercy from allowing her to enter its premises for work.

[11] Ms Roman did not provide Mercy with the required evidence. On 15 October 2021 she was suspended on full pay. By a letter dated 26 October 2021, Ms Townsend advised Ms Roman that Mercy was investigating allegations that she had failed to comply with a lawful and reasonable direction, and that the hospital was also concerned that this failure meant that Ms Roman did not have the capacity to perform the inherent requirements of her job.

[12] On 28 October 2021, Ms Roman’s daughter wrote to Ms Townsend, reiterating and elaborating on the concerns that Ms Roman had raised with Mercy in her correspondence of 13 October 2021, including in particular that the exceptions in the Directions applied to her. That day, a zoom meeting took place to allow Ms Roman to respond to the matters raised in Mercy’s letter of 26 October 2021. Ms Townsend attended this meeting. Ms Roman reiterated what had been stated in the written response and contended that Mercy’s requirements of her were not lawful or reasonable.

[13] From 28 October to 29 November 2021 Ms Roman remained suspended on full pay. On 29 November 2021, following a certain delay that Ms Townsend said was associated with Mercy’s need to address a number of different cases where employees had not provided evidence of vaccination status, Mr Rob Goller, Mercy’s group employee relations manager, sent Ms Roman a letter in which he stated that Mercy had concluded that she had failed to follow a lawful and reasonable direction by failing to provide Mercy with the required vaccination evidence by 15 October 2021. Mr Goller also stated that the hospital was concerned that Ms Roman was unable to perform her job because she could not be permitted to enter the hospital premises.

[14] On 1 December 2022, Ms Daniela Roman sent to Mercy a letter restating Ms Roman’s view that the hospital’s requirements were not lawful or reasonable, and that Mercy was obliged to consider her response to the allegations and concerns that had been raised against her. In this regard she stated that Mercy was required by clause 8.3 of the Victorian Public Health Sector (Health and Allied Services, Managers and Administrative Workers) Single Interest Enterprise Agreement 2016-2020) (Agreement) to take reasonable steps to investigate an employee’s response to allegations about performance or conduct.

[15] On 2 December 2021, Ms Roman attended a zoom meeting with Mr Goller and Ms Townsend. Mr Goller asked Ms Roman whether she had received a COVID-19 vaccination or had a medical exemption. Ms Roman did not answer Mr Goller’s question (I address below a minor factual contest on this point). After a brief adjournment, Mr Goller told Ms Roman that Mercy had decided to terminate her employment immediately because she had failed to follow a lawful and reasonable direction. Later that day, Mr Goller sent to Ms Roman a letter to the same effect. The letter also stated that Mercy had made no finding as to its concern that Ms Roman had no capacity to perform the inherent requirements of her position. Ms Townsend’s evidence was that Mr Goller prepared the termination letter based on a template that he had used for other employees, and that she understood that Mr Goller had included the last mentioned statement because the question of Ms Roman’s capacity had not been discussed at the meeting that day. Ms Townsend also said that Ms Roman could not carry out her duties remotely and that she could not work from home.

[16] I make the following factual findings on disputed points of evidence. First, I find that Ms Roman’s job could not be done from home. Ms Daniela Roman suggested that because certain training tasks could have been performed online, her mother’s job could be done remotely. I reject this. The fact that some minor tasks could be done remotely is irrelevant. Ms Roman was a hospital attendant. She had to attend the hospital to do her job. In my view, this is obvious.

[17] Secondly, I find that Ms Roman received Mercy’s email messages dated 21 and 28 September 2021, and 5 and 8 October 2021. Ms Daniela Roman said that her mother did not receive them, but Ms Townsend produced the emails that were sent to a Mercy group email address and gave evidence that the address included the Mercy work email addresses of all relevant employees including Ms Roman. I accept Ms Townsend’s evidence. As to the message of 21 September 2021, I find, contrary to Ms Roman’s contention, that the statement ‘vaccinations are now mandatory’, read in context, was accurate. The next sentence went on to say that workers would need to receive a first dose of vaccine by 15 October 2021. No one reading this entire message would think that vaccinations were mandatory as of that day.

[18] Thirdly, I find that on 14 October 2021, Ms Daniela Roman and her mother did speak to Ms Townsend. I consider that Ms Daniela Roman’s clear recollection of this discussion supports a conclusion that it did take place, whereas Ms Townsend said in her evidence that she had no recollection of it. In my view, it is likely that she simply forgot this detail. But nothing of any significance turns on this finding.

[19] Fourthly, I find that in the meeting of 2 December 2021, Ms Roman refused to say whether she was vaccinated. This accords with the witness statement of Ms Townsend and the evidence of Ms Daniela Roman. In my view, Ms Townsend was mistaken in her oral evidence when she said that Ms Roman had confirmed at the meeting that she was not vaccinated. This confusion may have been associated with the fact that, under cross-examination, Ms Daniela Roman had first refused to answer a question about whether her mother was now vaccinated against COVID-19, but then later confirmed that her mother was not in fact vaccinated. In any event, again, nothing of substance turns on this point. Either way, it is clear that by 2 December 2021, Ms Roman had not provided Mercy with the required vaccination evidence.

[20] Fifthly, I accept Ms Townsend’s evidence that the position description attached to her witness statement was the correct document, and that the description of Ms Roman’s actual duties in her witness statement was accurate. I do not accept Ms Daniela Roman’s hearsay evidence that, according to her mother, she did not assist patients to open containers or take their meal orders. But in any event, these are minor matters. Even if I had accepted Ms Daniela Roman’s evidence, it would not have affected my finding that Ms Roman’s job had to be done at the hospital. Finally, I found Ms Townsend to be an entirely credible witness. I reject the suggestion of Ms Roman that some of Ms Townsend’s evidence was untruthful.

Submissions of the parties

[21] Ms Roman contended that her dismissal was unfair because she had not committed misconduct. She submitted that the direction given to her by Mercy was not lawful or reasonable, and that nothing in her contract of employment or the Agreement required her to comply with the direction. Ms Roman also contended that the Directions were unlawful or unreasonable and that they could not form any proper basis upon which Mercy could issue its own requirements that Ms Roman become vaccinated against COVID-19. In this regard Ms Roman contended that the Directions were inconsistent with the federal Privacy Act 1988 and Biosecurity Act 2015, and that the COVID-19 vaccines were not fully authorised by the Therapeutic Goods Administration. Ms Roman submitted that in any event, the exceptions in the Directions applied to her, such that she was allowed to attend the workplace and do her job without meeting the vaccination requirements. She contended that Mercy had failed to respond to her various arguments and concerns, including her contention that she fell within exceptions to the Directions, and that Mercy had also failed to allow her to make a complaint under the PHW Act or to facilitate such a complaint.

[22] Ms Roman further contended that Mercy had failed to meet its consultation obligations under clause 6 of the Agreement in respect of the major change constituted by the introduction of the vaccine requirements, and that it did not properly consider her responses to the concerns that had been raised, contrary to clause 8 of the Agreement. She also contended that Mercy had taken adverse action against her for a proscribed reason, in contravention of her workplace rights in Part 3-1 of the FW Act. She said that in all the circumstances, the decision of Mercy to dismiss her, and in particular to do so without notice, was harsh, unjust or unreasonable, and therefore unfair. She submitted that the Commission should order her reinstatement or alternatively order that compensation be paid to her.

[23] Mercy contended that there were three valid reasons for Ms Roman’s dismissal. First, she had failed to follow its lawful and reasonable direction to provide it with the required evidence of vaccination status. Secondly, she had placed herself in a position where she was unable to do her job, because she was prohibited from entering Mercy’s premises for the purposes of work. The fact that the termination letter did not place reliance on this second valid reason did not alter the fact that it existed; Ms Roman could not have continued to do her job, and therefore there was nothing unfair about her dismissal. Thirdly, Ms Roman had committed serious misconduct by secretly recording the meeting on 2 December 2021. Mercy submitted that Ms Roman had been given an opportunity to respond to the allegation associated with the first valid reason. The second reason had been flagged with Ms Roman. The misconduct constituting the third valid reason had not been raised with her, because it was not discovered until after the dismissal. Mercy contended that in all the circumstances its decision to dismiss Ms Roman was not unfair.

[24] In the alternative, Mercy contended that reinstatement was not appropriate because Ms Daniela Roman had said in her evidence that Ms Roman remained unvaccinated against COVID-19, and she would therefore still be unable to do her job because the Directions remain in place. Mercy also said that compensation should not be ordered, or be assessed at nil, because during any compensable period Ms Roman would have been unable to work, and she had failed to take any steps to mitigate her loss.

Consideration

[25] For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable (s 385(b)). Section 387 requires the Commission to take into account particular matters in considering whether it is so satisfied.

[26] The Commission must consider whether there was a valid reason for the dismissal related to the person’s capacity or conduct (s 387(a)). Such a reason is one that is valid in the sense both that it was a good or sufficient reason, and also a substantiated reason. In my view, Mercy clearly had a valid reason to dismiss Ms Roman, because she was unable to do her job. Ms Roman had not provided Mercy with evidence that she had been vaccinated against COVID-19, or that she had an appointment to receive such a vaccination by the required date, or that she had a medical exemption. Mercy was therefore prohibited by law from allowing her to attend its premises for work. I reject Ms Roman’s contentions that the exceptions in the Directions applied to her. These exceptions applied in limited and exceptional circumstances. Contrary to Ms Roman’s submission, she was not a worker who was ‘required to fill a vacancy to provide urgent care, to maintain quality of care and / or continue essential operations at the facility due to an emergency situation or a critical unforeseen circumstance’ (see s 7(2)(b) of the No 13 Direction). Ms Roman was not filling a vacancy, and she was not required for any of the specified purposes. Nor was Ms Roman a worker ‘required to perform urgent and essential work at the facility to protect the health and safety of workers or members of the public’. Ms Roman delivered meals, cleaned, and provided general support. This was important work. But it was not urgent and essential. If Ms Roman fell within the exceptions, so too would most other hospital workers. This would defeat the purpose of the Directions. Each of the exceptions concern exceptional circumstances. They did not apply to Ms Roman.

[27] To do her job, Ms Roman had to be able to attend the hospital. But from 15 October 2021, the hospital was required by law to prevent her from attending its premises for work. Ms Roman was within her rights to decline to become vaccinated or to provide Mercy with proof of vaccination. But her choice in this regard had the consequence that she rendered herself unable to perform her job. If Mercy had allowed Ms Roman to attend the workplace from 15 October 2021, it would have broken the law, and exposed itself to financial penalties.

[28] Ms Roman contended that the Directions were invalid. But as I observed in Stevens v Epworth Foundation [2022] FWC 593 at [26], the Directions have not been declared by a court to be invalid, and the Commission, which is an administrative tribunal, must carry out its functions according to law. It proceeds on the basis that legislation and delegated legislation is valid until a court says otherwise.

[29] I am satisfied that Mercy had a good and substantiated and therefore valid reason to dismiss Ms Roman: she was unable to do her job, because her employer was prohibited from allowing her to attend the workplace. This was a consequence of the personal choices she made. It is irrelevant that the employer did not rely on this at the time of dismissal. The Commission must decide for itself whether there was a valid reason for dismissal, not merely whether the reason invoked by the employer at the time was a valid reason. Incapacity to work was an obvious valid reason for dismissal. But it was not the only valid reason.

[30] Implied into the contract of employment is an obligation of an employee to obey the employer’s lawful and reasonable directions (Bayley v Osborne (1984) 4 FCR 141 at 145). The requirement that the direction be lawful has two dimensions. One is that the employer cannot demand that an employee act unlawfully. The other is that the direction must be within the scope of the contract of employment (see R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621-2 per, Dixon J). The latter reflects the ‘general rule … that a contract by which a person is employed in a specific character is to be construed as obliging him to render, not indeed all service that may be thought reasonable to render, but such service only as properly appertains to that character’ (see Commissioner for Government Transport v Royall (1966) 116 CLR 314 at 322, per Kitto J).

[31] Mercy’s direction did not require Ms Roman to act unlawfully. The question is whether it was within the scope of the contract of employment. In the present case, Mercy was required by law to ensure that Ms Roman did not attend its premises for work unless she had provided it with relevant vaccination-related evidence. Mercy directed Ms Roman to provide this evidence. This direction clearly appertained to her particular job; unless she followed the direction, she would not be able to do her job at all. In my opinion, a direction to an employee to do something that is a necessary condition for a state of capacity to do his or her job is a lawful direction. Whether it is also a reasonable one will depend on all the circumstances. For example, it might be the case that the employee has large amounts of accrued leave and requests to take such leave, and that work is quiet and the employer has no reasonable business grounds to decline the request, such that an insistence by the employer that the employee comply immediately with a direction related to a new ‘capacity requirement’ would be unreasonable. But that is not the case here. In my view, in the circumstances of this case, Mercy’s direction was reasonable. The Directions were akin to a new regulatory requirement or statutory qualification for a particular role. The employer directed Ms Roman to obtain the requirement or qualification so that she could continue to do the job that she was hired to do. It was reasonably within Ms Roman’s power to comply with it. She did not propose any reasonable alternatives. The proposition that she fell within the exceptions to the Directions was completely without merit, as was the notion that Mercy should make inquiries of government or facilitate some kind of complaint from Ms Roman. In her final oral submissions, Ms Roman suggested that she could have taken long service leave. But she did not apply to take leave at the time. Ms Roman did not comply with a direction that was lawful and reasonable in the circumstances.

[32] Accordingly, I conclude that Mercy had a second valid reason to dismiss Ms Roman, one which involved misconduct constituted by a refusal to follow a lawful and reasonable direction. I return to the question of the seriousness of the conduct below in connection with my consideration of s 387(h), ‘any other matters that the FWC considers relevant’.

[33] At the hearing, Mercy contended that it had a third valid reason for dismissing Ms Roman. In cross-examination, Ms Daniela Roman conceded that, with her mother’s agreement, she had recorded the meeting on 2 December 2021 on her telephone without the approval of the other participants. Mercy learned of the recording only later when references to a purported transcript of the meeting appeared in Ms Roman’s F2 application. Ms Daniela Roman said that it was her understanding that in Victoria it was not illegal to record a discussion to which one is party without the knowledge of the other party, and that her mother had agreed to this course in order to protect her interests.

[34] I agree with Mercy that Ms Roman’s secret recording of the meeting of 2 December 2021 was another valid reason for dismissal, and that it entailed misconduct. First, it is well-established that evidence of an employee’s misconduct that emerges after dismissal may be relied upon by an employer as a valid reason for dismissal in an unfair dismissal proceeding (see Lane v Arrowcrest Group Ltd (1990) 27 FCR 427 at 456); and Byrne and Frew v Australian Airlines Limited [1995] 185 CLR 410 at 467)). This is consistent with the principle that it is for the Commission to determine for itself whether there was a valid reason for dismissal, rather than confining itself to a narrower question of whether the reason relied on by the employer at the time of dismissal was valid. Secondly, I consider that, unless there is a justification, the secret recording of conversations in the workplace is highly inappropriate, irrespective of whether it constitutes an offence in the relevant jurisdiction. In this regard, I adopt the observations I made in Gadzikwa v Australian Government Department of Human Services [2018] FWC 4878 at [83]:

“The reason it is inappropriate is because it is unfair to those who are secretly recorded. They are unaware that a record of their exact words is being made. They have no opportunity to choose their words carefully, be guarded about revealing confidences or sensitive information concerning themselves or others, or to put their best foot forward in presenting an argument or a point of view. The surreptitious recorder, however, can do all of these things, and unfairly put himself at an advantage. Moreover, once it is known that a person has secretly recorded a conversation, this is apt to produce a sense of foreboding in others, an apprehension that they must be cautious and vigilant. This is potentially corrosive of a healthy and productive workplace environment. Generally speaking, the secret recording of conversations with colleagues in the workplace is to be deprecated.”

[35] Ultimately therefore Mercy had three valid reasons to dismiss Ms Roman.

[36] The FW Act requires the Commission to take into account whether an employee has been notified of a valid reason for dismissal and whether he or she was afforded an opportunity to respond to any reason related to capacity or conduct (ss 387(b) and (c)). Mercy’s correspondence with Ms Roman notified her of the proposed reason for dismissal related to her failure to follow a lawful and reasonable direction and gave her an adequate opportunity to respond. It also noted that the hospital had concerns that she had rendered herself unable to do her job. The latter was not a reason on which the employer ultimately relied. However I have concluded that incapacity was one of the valid reasons for dismissal. Ms Roman was, in substance, notified of this reason even though the employer did not rely on it at the time of dismissal. Ms Roman also had an opportunity to respond to this reason. In any event, whether Ms Roman should be regarded as having been notified of this reason and given a chance to respond to it does not affect my overall assessment of this matter. Ms Roman was of course not notified or warned of the third valid reason for dismissal because Mercy was not aware of it until after the dismissal had occurred.

[37] The Commission is required to consider whether an employer unreasonably refused to allow the employee to have a support person present to assist in discussions relating to the dismissal (s 387(d)). In this case, Mercy allowed Ms Daniela Roman to participate in relevant meetings. If a dismissal relates to unsatisfactory performance, s 387(e) requires the Commission to consider whether the person has been warned about that unsatisfactory performance prior to dismissal. However Ms Roman’s employment was not terminated for unsatisfactory performance. The Commission is required to consider the degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal (ss 387(f) and (g)). These matters carry no weight in the present case.

[38] The Commission is required to take into account any other matters that it considers relevant (s 387(h)). I take into consideration the fact that Ms Roman had concerns about the COVID-19 vaccinations and that these concerns were genuinely held. Ms Roman was entitled to her opinions. Equally, Mercy had to comply with the law. I also take into account the fact that Ms Roman had worked for Mercy for over twenty years and had a good employment record. She was ready and willing to work. But she was unable to work, because she could not attend the hospital for work, as a consequence of the decisions she had made.

[39] I also note that Ms Roman had been put on notice that she would need to provide vaccination evidence to do her job. When she did not provide the evidence by the required deadline, she became unable to work, but despite this Mercy did not act hastily. It suspended her on full pay for over a month. This allowed her further time to reflect on her options. Had Mercy taken a different course by deciding to dismiss Ms Roman earlier and on notice (as it might have done), Ms Roman would have been in much the same position.

[40] An important consideration is whether Ms Roman committed serious misconduct, such as to relieve Mercy from its obligation to pay notice to Ms Roman under s 117 of the FW Act (see s 123(1)(b), and the definition of serious misconduct in regulation 1.07). In my assessment, Ms Roman committed serious misconduct in two respects. First, her failure to follow a lawful and reasonable direction falls squarely within the definition of serious misconduct in regulation 1.07(3)(c) (which is mirrored in clause 8.2(d) of the Agreement). More specifically, it also falls within the definition in regulation 1.07(2)(a), because her conduct was ‘wilful or deliberate’ (the direction was given to Ms Roman several times, she understood it, and refused to follow it) and ‘inconsistent with the continuation of the contract of employment’. It was clear that Ms Roman could not continue to work for Mercy if she did not comply with the direction. Ms Roman refused to take the step required of her by her employer that would allow her to do her job. She exercised her private right to make particular personal choices. But her choices had inevitable implications for her employment. They were inconsistent with the continuation of her contract of employment, which required her to work as a hospital services attendant, at the hospital.

[41] Secondly, Ms Roman’s collusion in the secret recording of the meeting of 2 December 2021 amounted to serious misconduct. It was contrary to her duty of good faith to Mercy. No persuasive reason was offered to justify the recording. It was unfair to the other participants in the meeting. It was not reasonably necessary to protect any valid interest. This conduct warranted dismissal without notice. In this regard, I note the decision of the Full Bench in Schwenke v Silcar Pty Ltd [2013] FWCFB 9842, in which it was concluded that it was open to the member at first instance to determine that a secret recording made by an employee was contrary to his duty of good faith and fidelity to the employer and undermined the trust and confidence required in the employment relationship, and that this action had been grounds for summary dismissal (at [33]).

[42] I will briefly address some of the remaining contentions that were advanced by Ms Roman. First, I reject the submission that Mercy failed to comply with its consultation obligations under the Agreement. Clause 6 provides that where the employer ‘proposes a major workplace change that may have a significant effect on an employee or employees’, it will consult with the affected employees in the manner prescribed in the clause. It is questionable whether the change in this case fell within the definition of ‘major change’ in clause 6.2, but if it did, it was not one proposed by the employer, but imposed by the government. Mercy had no say in the matter. Its obligation was simply to comply with the law. Further, the consultation contemplated by clause 6 concerns cases where there is some possibility for employees and their representatives to influence the employer’s decision about the proposed outcome. In this case, the only lawful outcome was the employer’s compliance with the Directions.

[43] Secondly, I reject the contention that Mercy failed to comply with clause 8.3 of the Agreement by failing to take reasonable steps to ‘investigate’ Ms Roman’s response to its concerns about her conduct. Mercy did investigate and consider her response. It did not find Ms Roman’s arguments to have merit.

[44] Thirdly, I see no cogent basis for a contention that Mercy breached Ms Roman’s workplace rights. Although dismissal is a form of adverse action, Ms Roman was not dismissed because of any of the matters protected by Part 3-1. She was dismissed because she failed to follow a lawful and reasonable direction. And although the reason was not invoked at the time, it is clear that Ms Roman was also dismissed because she was unable to perform her job.

[45] Fourthly, I reject Ms Roman’s submission that Mercy did not allow her to make a complaint to the relevant secretary or council under s 185 of the PHW Act. Such a complaint is one that concerns the exercise of power by an authorised officer under that Act or its regulations. Ms Roman was not prevented from making a complaint. She was and is free to do so. Mercy was under no obligation to facilitate a complaint by Ms Roman to government, nor was it reasonable to expect Mercy to do so. I find illogical Ms Roman’s related contention, that somehow Mercy’s failure to facilitate her complaint to government meant that she was deprived of a real choice as to whether to get vaccinated. She was not deprived of anything. She chose not to get vaccinated.

[46] Fifthly, Ms Roman submitted that it was unfair that she received no response from Mercy to her contention that she fell within the exceptions to the Directions. I disagree. It was a submission devoid of merit. It was obvious that Ms Roman did not fall within the exceptions. It is not surprising, and not unreasonable, that Mercy did not respond to it.

[47] Finally, if I had concluded that the dismissal was unfair, I would have found reinstatement to be inappropriate, because Ms Roman remains unvaccinated. There is no evidence that she has a medical exemption. The Directions remain in force. Mercy would remain prohibited from allowing Ms Roman to attend the hospital to do her job. In addition, I would have declined to award any compensation to Ms Roman. To my mind, the only potential dimension of unfairness at issue in this case was whether it might have been harsh for Mercy to dismiss Ms Roman without notice. It was not. But had I reached a different conclusion, the logical outer limit of compensation would have been the five weeks’ wages that Ms Roman might have been paid in lieu of notice. In this regard however, it would have been relevant for the Commission to take account of the fact that Ms Roman would not have been able to work during any notice period. An employer is not required to provide payment in lieu of notice where the employee is unable to work during the notice period. More generally, a further problem confronting a claim for compensation would have been that Ms Roman produced no evidence that she took any steps to mitigate her loss (see s 392(2)(d)). In fact, according to Ms Daniela Roman, Ms Roman has not applied for any jobs at all. An order for compensation would have been inappropriate, and I would not have made one.

Conclusion

[48] Having regard to s 387 of the FW Act, I consider that Ms Roman’s dismissal was not harsh, nor was it unjust or unreasonable. It was not unfair. The application is dismissed.

DEPUTY PRESIDENT

Appearances:

D. Roman for the applicant
N. Harrington of counsel for the respondent

Hearing details:

2022
Melbourne
29 March

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