| [2023] FWC 2 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
David Hill
v
Boeing Defence Australia Ltd
(U2022/4056)
COMMISSIONER P RYAN |
SYDNEY, 3 JANUARY 2023 |
Application for an unfair dismissal remedy
[1] Mr David Hill (Applicant) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Boeing Defence Australia Ltd (Respondent).
[2] The matter was heard before me on 9 August 2022.
[3] I exercised my discretion to grant permission to the Respondent to be represented by a lawyer, as I was satisfied as to the matters set out in s.596 (2)(a) and (b) of the FW Act. The Applicant represented himself. The Respondent was represented by Mr A Denton of counsel.
[4] Witness statements were tendered from the following persons:
• The Applicant (Exhibits A1 and A2);
• Mr Michael Prior, employed by the Respondent as Director – Product Support, Training and Maintenance (Exhibit R3); and
• Ms Anita Tichelaar, employed by the Respondent as a Human Resources Business Partner (Exhibit R4).
[5] The Applicant, Mr Prior and Ms Tichelaar also gave evidence at the hearing.
[6] Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
[7] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed. If I am satisfied that the Applicant was so protected, I must then consider whether the Applicant has been unfairly dismissed.
[8] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
[9] Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
[10] The Respondent is one of several entities with the Boeing Australia Holdings Pty Ltd group of companies (Boeing Group). 1
[11] On 18 August 2014, the Applicant commenced employment with the Respondent on a full-time basis as a Qualified Aircrewman Instructor. 2 The Applicant’s role was part of the Respondent’s Helicopter Aircrew Training System (HATS).3
[12] The terms and conditions of the Applicant’s employment were set out in a contract of employment dated 29 July 2014 which included a requirement for the Applicant to comply with the Respondent’s standards, policies, and procedures. 4
[13] In response to the easing of COVID-19 restrictions in Australia in mid-2021, the resultant increase in community transmission of COVID-19 and having regard to its work health and safety obligations, the Boeing Group began to consider the implementation of a COVID-19 vaccination policy. 5
[14] As part of its consideration, the Boeing Group took a number of steps to consult with employees and stakeholders regarding the implementation of a COVID-19 vaccination policy.
[15] On 30 August 2021, all employees within the Boeing Group were invited to participate in a survey to inform the Boeing Group of employee sentiment towards COVID-19 vaccination and seek input into the development of a possible mandatory vaccination policy for certain entities within the Boeing Group. The survey opened on 30 August 2021 and closed at 5:00pm on 6 September 2021. 6
[16] On 30 and 31 August 2021, representatives from the Boeing Group consulted with representatives from relevant employee organisations and the Respondent’s Trades Reference Group (TRG), a group of employee representatives. 7
[17] At 5:00pm on 6 September 2021, the survey closed. The survey received 2,565 responses and 1,129 comments. The survey results indicated that:
• 88% of employees surveyed were fully vaccinated, had had one dose, or intended to get vaccinated;
• 4% of employees surveyed preferred not to disclose their vaccination status;
• 8% of employees surveyed said that they were averse to becoming vaccinated or unable to do so due to a medical or other reason;
• 60% of employees surveyed agree that mandating vaccinations would create a safer workplace, and 58% of employees surveyed were supportive of the Boeing Group mandating vaccinations in the workplace; and
• 18% of employees surveyed disagree that mandating vaccinations would create a safer workplace and 24% employees surveyed were not supportive of the Boeing Group mandating vaccinations in the workplace. 8
[18] From 6 September 2021 to 20 September 2021, senior management personnel within the Boeing Group reviewed and considered the results of the survey, the employee comments, and responded to various questions and concerns raised by employees. Furthermore, as the results of the survey indicated that a majority of employees supported a mandatory vaccination requirement in their workplace, the Boeing Group commenced drafting a proposed vaccination policy. 9
[19] On 20 September 2021, an email summarising the survey findings and next steps was sent to employees of various entities within the Boeing Group, including employees of the Respondent. This correspondence included information about the importance of vaccination, encouraged employees to get vaccinated, and informed employees how to get more detailed information about the survey. The correspondence also stated that the Boeing Group had not made vaccination a requirement for employment at that time. 10
[20] On 22 September 2021, the Respondent sent correspondence to the Australian Workers’ Union (AWU) in reply to concerns it had raised about the proposed vaccination policy. 11
[21] On 5 and 8 October 2021, representatives from the Boeing Group met with the representatives from relevant employee organisations to discuss the results of the survey and the proposed vaccination policy. 12
[22] On 11 October 2021, representatives from the Boeing Group had a further meeting with representatives from relevant employee organisations and the TRG and provided a draft version of the proposed vaccination policy for the purpose of seeking comments and feedback. 13
[23] On 12 October 2021, the Boeing Group facilitated a webinar with Professor Graeme Stewart, a clinical immunologist from the Westmead Institute for Clinical Research, in relation to the efficacy and safety of COVID-19 vaccines. The webinar was accessible to all employees of the Boeing Group. 14
[24] From 12 to 14 October 2021, representatives from the Boeing Group attended meetings with representatives and members of the AWU and the TRG. During these meetings, the AWU and TRG were provided with a copy of the draft proposed vaccination policy and provided feedback to the Boeing Group. 15
[25] On 14 October 2021, the Boeing Group made a definite decision to introduce a vaccination policy (Vaccination Policy). The purpose of the Vaccination Policy was to ensure, to the extent reasonably practicable, the health and safety of all Boeing Group workers and all other individuals affected by its operations, including to reduce the risk of:
• transmission of COVID-19 in the workplace;
• a worker falling seriously ill or dying as a result of contracting COVID-19; and
• a worker transmitting the disease in the community. 16
[26] In drafting the Vaccination Policy, the Boeing Group had regard to guidance from Australian and international sources including:
• advice from the Australian Vaccine Task Force;
• guidance from the Australian Technical Advisory Group on Immunisation;
• guidance from international bodies, such as the United States Centre for Diseases Control and the World Health Organisation;
• advice from its parent entity based in the United States of America;
• seminars and presentations from industry bodies, including the Business Council of Australia and the Australian Industry Group;
• guidance from Sonic Health Plus and ISOS; and
• Professor Stewart. 17
[27] The Vaccination Policy which applied to all entities in the Boeing Group, including the Respondent, established a requirement that by 3 December 2021:
• “Group 1” roles must be fully vaccinated and register their approved COVID-19 vaccination evidence or have a valid medical exemption; and
• “Group 2” roles must be fully vaccinated or comply with alternative safety controls, such as rapid antigen testing, wearing of masks and travel or movement restrictions. 18
[28] The Vaccination Policy states that any breach of the policy by an employee may result in disciplinary action, including termination of employment. 19
[29] On 15 October 2021, the Boeing Group published and distributed the Vaccination Policy to all employees, including employees of the Respondent. As part of the distribution and implementation of the Vaccination Policy, employees received:
• an email confirming the launch of the Vaccination Policy, a link to the Vaccination Policy and a link to frequently asked questions;
• an invitation to attend a webinar on 19 October 2021 to receive an explanation of the policy and the opportunity to ask any questions; and
• a link to the webinar held on 12 October 2021 with Professor Stewart. 20
[30] Ms Tichelaar also met with representatives from the AWU and members of the TRG to discuss the implementation of the Vaccination Policy. 21
[31] Following the issuing of the Vaccination Policy, the Boeing Group developed a risk assessment tool in consultation with its human resource and employee health and safety teams, representatives from the AWU and members of the TRG, before assessing and classifying each role as Group 1 or Group 2. 22
[32] As part of its risk assessment process, the Boeing Group determined that a role would be classified as a Group 1 role if the role was within the scope of a government vaccination mandate, within the scope of a client’s vaccination policy, the role required travel, or the role was assessed on its tasks and duties as requiring vaccination. 23
[33] On 3 November 2021, the Applicant sent an email to Mr Jeff Weber, the Applicant’s line manager, asking questions about the risks and liability associated with an adverse reaction to the COVID-19 Vaccination. 24
[34] At 1:07pm on 5 November 2021, Mr Weber sent a response to the Applicant’s questions with reference to workers compensation and salary continuance matters and provided further information about the Vaccination Policy. 25
[35] At 3:38pm on 5 November 2021, all employees, including the Applicant, received correspondence advising that they would be notified of whether their role was a Group 1 role or Group 2 role by 12 November 2021. 26
[36] All roles working within HATS, including the Applicant’s role of Qualified Aircrewman Instructor, were assessed as Group 1 roles on the basis that they involved work in confined spaces, including on board helicopters, whilst wearing communication gear. As such the Respondent considered the wearing of face masks or the use of alternative control measures for HATS roles was not feasible. 27
[37] On 8 November 2021, and following further consultation with the AWU and members of the TRG, the Applicant received correspondence:
• Informing him that following a risk assessment, his role had been assessed as a Group 1 role;
• Confirming the vaccination requirement unless a medical exemption is obtained; and
• Advising that a failure to comply with the Vaccination Policy may result in termination of employment. 28
[38] On or about 24 November 2021, the Respondent identified employees who had not yet registered their vaccination status and took steps to offer those employees assistance to meet the requirements of the Vaccination Policy by 3 December 2021. The Applicant was identified on the list of employees. 29
[39] On 26 November 2021, Mr Weber advised Ms Tichelaar that he discussed the issue of vaccination with the Applicant and that the Applicant informed him that his decision to get vaccinated depended upon the outcome of an appointment with an immunologist on 16 February 2022. Mr Weber advised Ms Tichelaar that he had informed the Applicant to book an appointment to receive the COVID-19 vaccination after 16 February 2022 so that there was a ‘road map ahead’ and he could demonstrate an intention to comply with the Vaccination Policy. 30
[40] On 2 December 2021, Mr Weber sent an email to the Applicant stating that he was required to register his vaccination status by 3 December 2021 and that after 31 December 2021 he will not be able to attend the workplace unless he was fully vaccinated or held a medical exemption. The Applicant was also advised that as his primary role was to provide instruction within aircraft, working from home would be at the discretion of management. 31
[41] On 9 December 2021, Ms Tichelaar sent correspondence to the Applicant directing the Applicant to provide medical evidence in support of any medical condition or reason that has prevented the Applicant from being fully vaccinated by 3 December 2021. Furthermore, the Applicant was directed to provide confirmation that his appointment with the immunologist on 16 February 2022 was for the purpose of assessing the Applicant’s medical suitability to receive the COVID-19 vaccination. Attached to this correspondence was a form titled Request for Accommodation: Medical Exemption from COVID-19 Vaccination. 32
[42] On 14 December 2021, the Applicant sent correspondence and documentation to Ms Tichelaar in which he stated:
• He has a medical condition for which he is seeking further advice prior to receiving the COVID-19 vaccination;
• He is not requesting an exemption, nor is he eligible for an exemption;
• He has an appointment with an immunologist on 16 February 2022 and that he was not able to obtain an earlier appointment; and
• He has his first COVID-19 vaccination booked for 19 February 2022. 33
[43] The documentation comprised:
• a letter of referral from his general practitioner to the immunologist in which the general practitioner recommended the Applicant receive the vaccination;
• a medical certificate stating that the Applicant does not meet the requirements for a medical exemption from the COVID-19 vaccination;
• a letter from New South Wales Health confirming his appointment with an immunologist at Westmead Hospital on 16 February 2022; and
• confirmation of his COVID-19 vaccination appointments for 19 February 2022 (first dose) and 19 March 2022 (second dose). 34
[44] Although the Applicant provided these documents, the Applicant redacted the parts of the letter of referral relating to the Applicant’s medical condition and his previous medical history. 35
[45] From 20 December 2021 to 18 January 2022, the Applicant took a period of leave. From 18 January 2022, the Respondent implemented arrangements for the Applicant to work from home on tasks that were not part of his ordinary duties. The Respondent agreed to these arrangements until the Applicant attended his appointment with the immunologist on 16 February 2022 and had made a decision regarding the COVID-19 Vaccination. 36
[46] On 18 February 2022, Mr Weber and the Applicant had a discussion in which the Applicant stated that he did not intend to get vaccinated against COVID-19 and discussed whether there were any Group 2 roles available. On 21 February 2022, Mr Weber sent correspondence to the Applicant requesting that he confirm in writing his decision regarding vaccination. 37
[47] On 24 February 2022 and following Mr Weber sending a list of available Group 2 roles to the Applicant, the Applicant expressed interest in the role of Performance Excellence Manager. 38
[48] At 2:27pm on 25 February 2022, the Applicant sent correspondence to Mr Scott Carpendale, the Respondent’s Managing Director, in which he stated he had a hereditary gene deficiency which exposes him to cancers and after consulting with an immunologist, a decision was made not to vaccinate ‘at this point’. The Applicant also asked a number of questions about the need for mandatory vaccination and whether there was scope for individual circumstances to implement alternative safety controls. 39
[49] At 3:18pm on 25 February 2022, the Applicant sent correspondence to Mr Weber confirming that after consultation and discussion with an immunologist, he will not be receiving a COVID-19 vaccine ‘at this point in time’. The Applicant stated that as more data becomes available his position may change but he cannot provide any timeframe. 40
[50] At 4:31pm on 25 February 2022, Ms Tichelaar sent an email to Mr Scott Stewart, a Talent Acquisition Specialist within the Boeing Group, informing him of the Applicant’s interest in the role of Performance Excellence Manager. This correspondence was copied to the Applicant. 41
[51] At 5:37pm on 25 February 2022, Mr Stewart ‘replied all’ confirming the position remained vacant and inviting the Applicant to submit a resume which he would forward to the hiring manager. 42
[52] At 9:17pm on 25 February 2022, the Applicant sent an email to Mr Stewart summarising his relevant experience for the role of Performance Excellence Manager and attaching his resume. 43
[53] On 1 March 2022, Mr Carpendale sent a response to the Applicant’s correspondence dated 25 February 2022 which stated:
“I know you have raised a number of specific questions but I don’t intend to address each of them in this note as HR and your Managers have spent some time talking through these issues with you to date. However, I can assure you that looking after our workforce whilst meeting our customer’s requirements and expectations during these unique times of the COVID-19 pandemic and its associated challenges is of paramount importance to me and our leaders. Our COVID-19 Vaccination Policy has been drafted as a reasonably practicable step to eliminate and/or minimise the risk of COVID-19 transmission in our workplaces and to assist with that goal in our customers’ workplaces.
As you work in HATS and the given role you perform is a Group 1 role requiring to be performed by a vaccinated person, the risks for COVID-19 transmission to our employees and those of our customers mean you are required to be fully vaccinated to perform your role. That is Boeing’s risk assessed expectation and also our customer’s expectation at HMAS Albatross.
Accordingly, if you wish to continue to work and to support our customer, you need to get vaccinated in compliance with our COVID-19 Policy. There are now four safe and effective vaccines currently available to Australians as part of our National Vaccination Program. In this regard, I am advised that the immunologist with whom you met on or about 16 February 2022 advised you that it was safe for you to get vaccinated.
Despite that advice, you have made it clear to me in your email below that “the decision was made not to vaccinate at this point”.
This is obviously a decision for you to make, however Boeing’s position and safety goals and objectives and our obligations to take reasonably practicable steps to keep our workers safe, is clear.
If you continue to determine you do not wish to be vaccinated in compliance with the Policy, HR and your Manager will be in touch with you regarding next steps.”
[54] On 3 March 2022, Ms Tichelaar sent the Applicant an updated list of vacant Group 2 roles.
[55] At 11:08am on 7 March 2022, the Applicant responded to Ms Tichelaar advising that he had submitted his ‘CV’ to Mr Stewart on 25 February 2022 for one of the roles but did not receive a response. The Applicant stated that he has sent follow-up correspondence to Mr Stewart. 44
[56] On 7 March 2022, the Respondent sent correspondence to the Applicant which was titled “Show cause – failure to follow reasonable and lawful directions”. 45 The correspondence set out the relevant background and then stated:
“BDA has provided you multiple opportunities to discuss your vaccination plans and concerns and made you aware that as your primary role as a Qualified Aircrewman Instructor is to provide instruction in Aircraft at 723 Sqn HATS program on-site, it is not practicable for you to work 100% remotely. We have given clear reasonable and lawful directions in our publications and our communications on the Policy, in our discussions with you and in our correspondence to you. We have also provided information through Boeing Australia communications in FAQs on vaccines and various issues associated with them and convened an all employee webcast hosted by Professor Graeme Stewart, a clinical immunologist from Westmead Institute to discuss the issues and answer employee questions. We understand vaccine hesitancy and have tried to educate and inform our employees.
However, it is an inherent requirement that you perform your role onsite at 723 Sqn HATS program onsite and an inherent requirement that you perform your role safely which means being vaccinated or complying with an ICCP in compliance with our Policy and the Procedure. You have advised BDA that you have no intent to be vaccinated at this stage, and as a result you will not be in a position to perform the inherent requirements of your role.
BDA has explored alternative options including the opportunity to apply for any suitable Group 2 roles, the approval of paid or unpaid leave while you obtain your vaccination and whether it is reasonably practical for you to work remotely for an extended period of time. Jeff Weber, with advice from HR, has determined these alternative options are not suitable, because of your current role as a Qualified Aircrewman Instructor, BDA requires you to attend work at 723 Sqn HATS program to complete your duties and tasks and be able to travel for work as required. These tasks cannot be performed remotely on an ongoing and permanent basis.
Next Steps
You must provide by 4.00 pm (AEDT) on Friday, 11 March 2022:
[1] Evidence of your compliance or intent to comply with BDA’s reasonable and lawful direction to be vaccinated in accordance with the Policy; and/or
[2] Your response as to why BDA should not terminate your employment as a result of your failure to comply with our reasonable and lawful directions and your consequent inability to meet the inherent requirements of your role as Qualified Aircrewman Instructor at 723 Sqn HATS program.”
[57] On 11 March 2022, the Applicant sent a response to the ‘show cause’ letter as follows 46:
“Hi Anita,
In response to a letter from Mike Prior; RE: Show cause dated 7th March 2022.
The Immunologist that I attended on 16th Feb 2022 informed me that regarding my hereditary genetic issue there is no current safety data vs any of the COVID-19 vaccines.
As a result of the information provided by the immunologist I will be waiting for further safety data prior to COVID-19 vaccination. For this medical reason I am unable to comply with the current Boeing Australia COVID-19 policy at this time.
My decision is based on the doctor’s information, and is a valid and reasonable personal risk mitigation in my circumstances.
I am in all regards fit, healthy, qualified and willing to do my job. I would gladly continue to attend my workplace commencing Monday if the Boeing Australia policy allowed it.
My best outcome is for Boeing Australia to implement a ‘Grandfather Clause’ or similar to our COVID-19 policy to allow me to continue work.
As a courtesy; I will be raising the following questions during the meeting which has been organised for Mike Prior, Anita, Jeff and I for Tuesday 15th March 2022:
1. In my (heredity genetic) circumstances is there scope that Boeing Australia consider a one off ‘grandfather clause’ to the COVID-19 policy – given the continuing relaxing of government and community policies surrounding COVID-19, and ongoing dissolving of mandates globally and nationally, including those by our parent company?
2. Scott Carpendale, in an email, made a statement about my immunologist appointment. He stated “I am advised that the immunologist with whom you met on or about 16 February 2022 advised you that it was safe for you to get vaccinated”.
a. This information is, at best, incomplete and a misleading partial component of my appointment.
b. Due to concerns about my medical-in-confidence information and misinformation – please advise the source of Scott Carpendale’s information about my immunologist appointment?
3. What is the periodicity of review for the Boeing Australia COVID-19 Vaccination policy?
4. I have been advised that ADF has an expectation that ADF Contractors mandate COVID-19 vaccinations. Where can I view the documentation stating that requirement or expectation please?
5. Why is it necessary for Boeing Australia to mandate vaccination, when the customer that I work for (ADF) does not mandate vaccination?
For your consideration – Dave.”
[58] At 11:00am on 15 March 2022, the Applicant attended a meeting, via Webex, with Ms Tichelaar, Mr Prior and Mr Weber. The Applicant was given the opportunity to bring a support person to this meeting. During the meeting 47:
• The Applicant was advised that the purpose of the meeting was to discuss the Applicant’s response to the show cause letter and provide him with an opportunity to provide any further information to the Respondent;
• The Applicant was provided with an overview of the steps taken by the Respondent and the Applicant’s responses to date;
• The Applicant confirmed his intention to not receive a COVID-19 vaccine and that he fully understood that failing to comply with the Respondent’s Vaccination Policy may lead to the termination of his employment;
• The Applicant stated that he had a hereditary genetic condition and asked whether the Respondent would consider a one-off “grandfather clause” (or special exemption) to the Vaccination Policy. In response, the Applicant was advised that the Respondent did not consider there was a sufficient basis to do so in circumstances where the Applicant does not meet the criteria for a medical exemption, has not provided sufficient medical evidence supporting an exemption, and has decided not to comply with the policy;
• In relation to the questions set out in the Applicant’s reply to the show cause letter, the Applicant was advised that:
• The Respondent has not contacted his immunologist and that Mr Carpendale inferred from the Applicant’s email sent to Mr Weber on 25 February 2022, and the lack of a medical exemption provided by the immunologist, that it was safe for the Applicant to receive a COVID-19 vaccine;
• There was no review date at that stage;
• There was an expectation that Australian Defence Force contractors would be vaccinated and that as the Applicant worked in HATS in a “Group 1” role, he was required to be fully vaccinated given the risk of transmission of COVID-19 to the Respondent’s employees and customers;
• Irrespective of whether a client of the Respondent mandates vaccination, the Respondent makes decisions for its employees based on the best safety controls for our workforce and was not required to align with its clients;
• The Applicant submitted that he was very careful around others and that he would be more likely to know if he contracted COVID-19 before others in the workplace. In response, Mr Prior acknowledged those matters but informed the Applicant they did not change the Respondent’s position.
[59] At 12:24pm on 15 March 2022, Ms Tichelaar sent an email to Mr Stewart asking whether the Applicant had applied for the role of Performance Excellence Manager. At 2:45pm on 15 March 2022, Mr Stewart replied “I passed over his CV and the hiring manager is still shortlisting”. 48
[60] After giving consideration to the matters put forward by the Applicant in his response to the show cause letter and during the meeting on 15 March 2022, the Respondent decided to terminate the Applicant’s employment. 49
[61] On 17 March 2022, the Respondent terminated the Applicant’s employment because of his repeated failure to follow a lawful and reasonable direction to comply with the Vaccination Policy. The Applicant received five weeks’ pay in lieu of notice. 50
[62] The Applicant accepted that his medical condition was not eligible for a medical exemption and that the immunologist advised him that it would be safe for him to receive a COVID-19 vaccine. 51 However, the Applicant submitted that there was an absence of available safety data regarding the impact of COVID-19 vaccines on his medical condition.
[63] The Applicant submitted that he completed his own risk assessment and determined that he was at low risk of serious illness if he did contract the COVID-19 virus.
[64] The Applicant accepted the Respondent’s direction to comply with the Vaccination Policy was lawful 52 but challenged the reasonableness of the policy on the basis that there were no public health orders requiring vaccination in relation to his employment and the Respondent’s clients did not require vaccination.
[65] The Applicant submitted that the Respondent’s decision to terminate his employment was harsh due to:
• the economic and personal consequences resulting from his dismissal, noting he had relocated from Queensland to Nowra to take up his role with the Respondent;
• the refusal by the Respondent to allow the Applicant to adopt alternative safety measures to vaccination; and
• the decision by the Respondent to terminate his employment while he was being actively considered for a Group 2 role.
[66] The Applicant submitted that the decision to terminate his employment was unfair because the Respondent had not ‘evolved’ or reviewed its policy and that it was disproportionate to the regulatory response to COVID-19.
[67] With reference to relevant authorities 53, the Respondent submitted that the Applicant’s failure to comply with the Vaccination Policy constituted a valid reason for the termination of his employment.
[68] The Respondent submitted the Vaccination Policy was implemented for the protection, safety and wellbeing of anyone coming onto the Respondent’s site. The Respondent submitted the Vaccination Policy was designed in consultation with the workforce, employee organisations and the TRG, and guided by medical and scientific advice.
[69] Furthermore, the Respondent submitted that the risk assessment and classification of each role as Group 1 or Group 2 following the announcement of the Vaccination Policy supports the rational and logical basis of the policy and that it was not introduced in a spurious or arbitrary manner.
[70] The Respondent submitted that the Applicant’s submission that an employer should not be implementing policies for its workforce because their customers do not have the same policies has no basis in law or practicality.
[71] The Respondent submitted that the Applicant’s submission that the Vaccination Policy should have evolved in just a ‘handful of months’ and evolved so rapidly as to excuse the Applicant from compliance altogether, is fanciful.
[72] The Respondent submitted that the Applicant has not produced any evidence that he has a medical condition, noting that the Applicant redacted relevant parts of the letter of referral from his general practitioner. Rather, the Respondent submits the medical evidence filed by the Applicant confirms that he did not fit within the guidelines for a medical exemption.
[73] The Respondent submitted the termination process was procedurally fair and the Applicant has not challenged the procedural fairness requirements under s.387 of the FW Act.
[74] In relation to s.387(h) of the FW Act, the Respondent submitted that it effectively granted the Applicant an extension until February 2022 to comply with the policy and made arrangements for the Applicant to work from home. The Respondent submitted that there was no obligation to redeploy the Applicant to a Group 2 role, but it nonetheless took the initiative to identify Group 2 roles that the Applicant might apply for and that there was no evidence that the Applicant took any initiative to follow-up on a Group 2 role beyond sending his CV. The Respondent submitted that these matters weigh in favour of a finding that the dismissal was not harsh, unjust or unreasonable.
[75] In conclusion, the Respondent submitted the termination of the Applicant’s employment was not harsh, unjust or unreasonable, and the application should be dismissed.
[76] A threshold issue to determine is whether the Applicant has been dismissed from their employment.
[77] Section 386(1) of the FW Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
[78] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
[79] There was no dispute, and I find that the Applicant’s employment with the Respondent was terminated at the initiative of the Respondent.
[80] I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the FW Act.
[81] Section 396 of the FW Act requires the Commission to decide four initial matters before considering the merits of the application.
[82] There is no dispute between the parties, and I am satisfied on the evidence that:
(a) the application was made within the period required in s.394(2);
(b) the Applicant is a person protected from unfair dismissal;
(c) the Small Business Fair Dismissal Code did not apply to the Applicant’s dismissal; and
(d) the Applicant’s dismissal was not a case of genuine redundancy.
[83] Section 387 of the FW Act provides that in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[84] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 54
[85] In considering whether a dismissal was harsh, unjust or unreasonable, the oft-quoted joint judgement of McHugh and Gummow JJ in Byrne v Australian Airlines (Byrne) 55 is relevant:
It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.
[86] I set out my consideration of each below.
[87] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 56 and should not be “capricious, fanciful, spiteful or prejudiced.”57 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.58
[88] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.59 “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 60
[89] There can be no dispute, and I so find, that the Applicant did not provide evidence that he was vaccinated or provide a valid medical exemption, which he was required to do under the Vaccination Policy.
[90] As noted above, the Applicant’s contract of employment required him to comply with the Respondent’s standards, policies and procedures. However, any contractual requirement or direction to comply with a policy must nonetheless be lawful and reasonable.
[91] In Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal 61 (Mt Arthur Coal) a Full Bench of the Commission considered the duty to obey lawful and reasonable directions. A helpful summary of this analysis was set out by Deputy President Saunders in Gregory John Casper v New Horizons62, as follows:
[28] In the absence of a contrary intention, there is a term implied into all contracts of employment to the effect that employees must follow the lawful and reasonable directions of their employer.
[29] A lawful direction is one which falls within the scope of the employee’s employment. An employee is not obliged to obey a direction which goes beyond the nature of the work the employee has contracted to perform, although an employee is expected to obey instructions which are incidental to that work.
[30] A direction which endangers an employee’s life or health, or which the employee reasonably believes endangers his or her life, will not be a lawful order, unless the nature of the work is itself inherently dangerous, in which case the employee has contracted to undertake the risk. Further, the direction must be lawful in the sense that it must not direct the employee to do something that would be unlawful, such as driving an unregistered or unroadworthy vehicle.
[31] The reasonableness of a direction given to an employee is a question of fact and must be judged objectively having regard to all the circumstances, including the nature of the particular employment, the established usages affecting the employment, the common practices that exist, the general provisions of any instrument governing the relationship, and whether the employer has complied with any relevant consultation obligations. It is not necessary to show that the direction in question is the preferable or most appropriate course of action or in accordance with ‘best practice’ or in the best interests of the parties. There may be a range of options open to an employer within the bounds of reasonableness.
[32] A direction lacking an evident or intelligible justification will not be reasonable, but that is not the only basis on which unreasonableness can be established. All the circumstances must be considered. 63
(footnotes omitted)
[92] The Applicant’s role involves working in confined spaces whilst wearing communication equipment and, where he is working on a client’s site, potentially with persons who are unvaccinated.
[93] As set out earlier, the purpose of the Vaccination Policy was to ensure, to the extent reasonably practicable, the health and safety of all Boeing Group workers and all other individuals affected by its operations, by reducing the risk of transmission of COVID-19 in the workplace and the risk of a worker falling seriously ill or dying as a result of contracting COVID-19.
[94] There is nothing illegal or unlawful regarding vaccination and I am satisfied that the Vaccination Policy and direction to comply with it fell within the scope of the Applicant’s employment and was therefore lawful. 64
[95] Turning to the question of reasonableness, the introduction of the Vaccination Policy coincided with the easing of COVID-19 restrictions in Australia in mid-2021 and the resultant increase in community transmission of COVID-19 through the highly transmissible Omicron variant. That, along with the Respondent’s work health and safety obligations, was an objectively sound basis for the introduction of the Vaccination Policy and the direction to comply with it.
[96] In assessing the reasonableness of the Vaccination Policy, I have taken into account that the effect of the direction to comply with the policy was to apply pressure to the Applicant to surrender his bodily integrity (by undergoing medical treatment) in circumstances where he did not wish to, and where non-compliance would likely be accompanied by disciplinary consequences that included, and ultimately resulted in, termination of employment. 65
[97] In relation to the Applicant’s submissions regarding the absence of any public health order requiring vaccination against COVID-19, I do not accept that leads to a conclusion that the Vaccination Policy is unreasonable. In this respect, I agree with the observations of Deputy President Cross in Yang Yan v Nu Skin Enterprises Australia, Inc 66, where the Deputy President stated that “[t]he reasonableness of an employer’s policy proposing a vaccination requirement is to be objectively considered on its merits, and not be burdened by a presumption of unreasonableness simply because government authorities have not declared that worksite to be a high-risk setting.”
[98] While the Applicant did not contend otherwise, I am satisfied that the Respondent complied with its consultation obligations 67 in developing and implementing the Vaccination Policy.
[99] Taking all of these matters into consideration, I am satisfied that the direction to comply with the Vaccination Policy was lawful and reasonable.
[100] In relation to the Applicant’s submission that there was an absence of available safety data regarding the impact of COVID-19 vaccines on his medical condition, the Applicant accepted that he was not eligible for a medical exemption and the only medical evidence before me is that it was safe for the Applicant to receive a COVID-19 vaccine.
[101] I do not accept the Applicant’s contention that he could have applied or implemented alternative safety measures. It was the unchallenged evidence of Mr Prior that the Applicant worked in confined spaces whilst wearing communication equipment which prevented the wearing of face masks and/or social distancing.
[102] I also do not accept the Applicant’s submission that the decision to terminate his employment was unfair because the Respondent had not ‘evolved’ or reviewed its policy. The policy was in place for approximately three months at the time the Applicant’s employment was terminated.
[103] Having regard to all the circumstances, I am satisfied, and so find, that there was a valid reason for the Applicant’s dismissal.
[104] It is not in dispute, and I find that the Applicant was notified of the reason for the termination of his employment prior to the decision to dismiss being made, and in explicit and plain and clear terms in the show cause letter on 7 March 2022.
[105] It is not in dispute and I find that the Applicant was given an opportunity to respond to the reason for the dismissal.
[106] It is not in dispute and I find that there was not any unreasonable refusal by the Respondent to allow the Applicant to have a support person present to assist in discussions relating to his dismissal.
[107] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
[108] The Respondent submitted that it is a large employer with a dedicated employee relations team and that it conducted itself in a manner expected of such an organisation. Having regard to the process adopted, I find the size of the Respondent’s enterprise had no impact on the procedures followed in effecting the dismissal. This factor weights neutrally in my consideration.
[109] I find that the Respondent’s enterprise did not lack dedicated human resource management specialists and expertise. This factor weights neutrally in my consideration.
[110] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
Potential Relocation to Queensland
[111] The Applicant submitted that the Respondent’s decision to terminate his employment was harsh due to the economic and personal consequences resulting from his dismissal, noting he had relocated from Queensland to Nowra to take up his role with the Respondent.
[112] The Applicant submitted that although he has obtained new employment in the Nowra area earning less income, he intends to relocate his family to Queensland and submitted the termination was harsh due to the disruption and impact upon his family associated with relocating.
[113] While I have taken these matters into account, in all the circumstances, I do not consider they support a finding that the Applicant’s dismissal was harsh, unjust or unreasonable.
Extension to comply with policy and working from home arrangements
[114] The Respondent submitted that it effectively granted the Applicant an extension until February 2022 to comply with the Vaccination Policy and made arrangements for the Applicant to work from home, and that these are relevant matters weighing in favour that the termination of the Applicant’s employment was not harsh, unjust or unreasonable. 68
[115] I have taken these matters into account in the overall context of the matter and have made findings that the procedural aspects of the Applicant’s dismissal were not in dispute. I have also taken into account the Respondent’s submission that it conducted itself in a manner expected of such an organisation in terms of the procedures followed as part of my consideration under s.387(f).
Consideration for Group 2 Role
[116] The Applicant submitted that the Respondent’s decision to terminate his employment while he was being actively considered for a Group 2 role rendered the decision harsh.
[117] It is not in dispute that the Applicant applied for the role of Performance Excellence Manager, a Group 2 role which did not require the incumbent to be vaccinated against COVID-19.
[118] It was the evidence of Ms Tichelaar that as of 15 March 2022, a short list for the role of Performance Excellence Manager was being compiled by the hiring manager and that the Applicant was being considered for inclusion on that shortlist.
[119] The Applicant’s employment was terminated on 17 March 2022. It was Ms Tichelaar’s evidence that the Applicant did not make the shortlist. There is no evidence before me as to when that decision was made, but it is apparent that no decision had been made at the time of the Applicant’s dismissal. 69
[120] I do not accept the Respondent’s submission that the Applicant took no steps beyond sending his CV and that it was the Respondent chasing up the progress of potential applications. It was the Applicant’s evidence that he followed-up with Mr Stewart on 7 March 2022. In any event, whether the Applicant followed-up on the role of Performance Excellence Manager on his own initiative or after prompting by Ms Tichelaar is immaterial. The Respondent provided an opportunity for the Applicant to express interest in available Group 2 roles. The Applicant submitted his CV and relevant information for the role of Performance Excellence Manager and was being considered for inclusion on a short list of candidates at the time he was dismissed.
[121] While I accept the Respondent’s submission that there was no obligation to redeploy the Applicant to a Group 2 role, I consider the decision to terminate the Applicant’s employment while he was being considered for a Group 2 role was harsh and unreasonable.
[122] I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 70
[123] Although I have found there was a valid reason for the Applicant’s dismissal and that it was procedurally fair, I am satisfied that the dismissal of the Applicant while he was being considered for a Group 2 role was harsh and unreasonable.
[124] In coming to this decision, I have taken into account all of the evidence and submissions of the parties. The fact that an issue is not mentioned in this decision does not mean that it has not been taken into account. I have also had regard to the object stated at s.381(2) of the FW Act to ensure that a “fair go all round” is accorded.
[125] For the reasons set out above, I am satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the FW Act.
[126] There is insufficient material before me addressing the question of remedy. The matter will be listed for mention/directions in relation to remedy.
COMMISSIONER
Appearances:
Mr D Hill, the Applicant
Mr A Denton, of counsel, for the Respondent.
Hearing details:
Sydney (via Microsoft Teams video-link):
2022.
9 August
Printed by authority of the Commonwealth Government Printer
<PR749341>
1 Exhibit R4 at [7].
2 Exhibit A1 (Hearing Book at p.46); Exhibit R1.
3 Exhibit R3 at [11].
4 Exhibit R1 at clause 25.
5 Exhibit R4 at [8].
6 Exhibit R4 at [10], Annexures AT1 and AT2.
7 Exhibit R4 at [10].
8 Exhibit R4 at [12]-[13].
9 Exhibit R4 at [10].
10 Exhibit R4 at [10], Annexure AT3.
11 Exhibit R4 at [10], Annexure AT4.
12 Exhibit R4 at [10].
13 Ibid.
14 Ibid.
15 Ibid.
16 Exhibit R4 at [10], [16] and Annexure AT7.
17 Exhibit R4 at [17].
18 Exhibit R4 at [18], Annexure AT7.
19 Ibid.
20 Ibid at [20].
21 Ibid.
22 Exhibit R4 at [21]-[23], Annexures AT9 and AT10.
23 Exhibit R4 at [25].
24 Exhibit A3 (Hearing Book at p.83-85).
25 Exhibit A3 (Hearing Book at p.82-83).
26 Exhibit R4 at [29], Annexure AT11.
27 Exhibit R3 at [11].
28 Exhibit R4 at [32], Annexure AT12; Exhibit A3 (Hearing book at p.58-59).
29 Exhibit R4 at [34].
30 Exhibit R4 at [35].
31 Exhibit R4 at [36], Annexure AT13.
32 Exhibit R4 at [37], Annexure AT14; Exhibit A3 (Hearing Book p.60-67).
33 Exhibit R4 at [38]-[39], Annexure AT15; Exhibit A3 (Hearing Book p.68-71).
34 Ibid.
35 Exhibit A3 (Hearing Book at p.69); Transcript at PN110-122.
36 Exhibit R4 at [40].
37 Exhibit R4 at [41], Annexure AT16.
38 Exhibit A3 (Hearing Book at p.78); Exhibit R4 at [56]-[57], Annexure AT23.
39 Exhibit R4 at [42], Annexure AT17.
40 Exhibit R4 at [43], Annexure AT18.
41 Exhibit A3 (Hearing Book at p.77); Exhibit R4 at [58], Annexure AT24.
42 Ibid.
43 Exhibit A3 (Hearing Book at p.76).
44 Exhibit R4 at [59], Annexure AT25.
45 Exhibit R3 at [19]-[20], Annexure MP2; Exhibit R4 at [47], Annexure AT-20
46 Exhibit A3 (Hearing Book at p.74-75); Exhibit R3 at [21]-[22], Annexure MP3; Exhibit R4 at [48], Annexure AT21.
47 Exhibit A2 (Hearing Book at p.36); Exhibit R3 at [23]-[30], Annexure MP4; Exhibit R4 at [50], Annexure AT22.
48 Exhibit R4 at [60], Annexure AT26.
49 Exhibit R3 at [31]-[34], Annexure MP5; Exhibit R4 at [51]-[52].
50 Exhibit A1 (Hearing Book at p.46); Exhibit A3 (Hearing Book at p.56-57); Exhibit R3 at [35]-[36], Annexure MP6; Exhibit R4 at [53].
51 Applicant’s Submissions (Hearing Book at p.35); Transcript at PN413.
52 Transcript at PN414.
53 See Respondent’s Outline of Submissions at [8].
54 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [69].
55 (1995) 185 CLR 410.
56 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
57 Ibid.
58 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.
59 Edwards v Justice Giudice [1999] FCA 1836 at [7].
60 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) at [23]-[24].
61 [2021] FWCFB 6059 at [64]-[81].
63 Ibid at [28]-[32].
64 Mt Arthur Coal at [85].
65 Mt Arthur Coal at [223].
67 See ss.47-49 of the Work Health and Safety Act 2011 (NSW).
68 Transcript at PN669-670
69 Exhibit R4 at [61].
70 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357 at [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [92]; Edwards v Justice Giudice [1999] FCA 1836 at [6]-[7].