[2022] FWCFB 115
The attached document replaces the document previously issued with the above code on 30 June 2022.
Paragraph numbering amended.
Associate to Vice President Catanzariti
Dated 30 June 2022.
| [2022] FWCFB 115 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Ian William Johnson
v
Flinders Adelaide Container Terminal Pty Ltd
(C2022/1829)
VICE PRESIDENT CATANZARITI |
SYDNEY, 30 JUNE 2022 |
Appeal against decision [2022] FWC 371 of Deputy President Anderson at Adelaide on 25 February 2022 in matter number U2021/10280 – permission to appeal refused.
[1] Ian William Johnson (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) against a decision 1 (the Decision) of Deputy President Anderson (Deputy President) issued on 25 February 2022, for which permission to appeal is required. The Decision concerned an application, brought by the Appellant, for an unfair dismissal remedy again Flinders Adelaide Container Terminal Pty Ltd (the Respondent), pursuant to s.394 of the Act.
[2] The background to the Appellant’s dismissal was that the Appellant was advised by the Respondent that he needed to provide proof that he had received his first dose of a COVID-19 vaccine or evidence of a medical exemption by 11 October 2021, per the Emergency Management Act 2004 (SA) (the Direction). In the months prior to dismissal, a dispute arose between the Appellant and Respondent about the vaccination mandate. The Appellant refused to comply with the Direction and accordingly, he was dismissed on 26 October 2021.
[3] This matter was listed for permission to appeal only. Directions were issued for the filing of material by the Appellant. The Appellant filed written submissions and later consented to the appeal being determined on the papers, without the need for oral submissions at a formal hearing. Consequently, the hearing in relation the appeal originally scheduled for 10 May 2022 was vacated. The Respondent sought to file brief written submissions on the issue of permission to appeal and the Vice President agreed to this request. Accordingly, the appeal was conducted on the basis of written submissions only, pursuant to s.607(1) of the Act.
[4] For the reasons that follow, permission to appeal is refused.
[5] The Appellant worked as a stevedore for the Respondent and served for almost twelve years until dismissed.
[6] On 29 September 2021, a Direction was issued whereby a person was prohibited from embarking on a commercial vessel in South Australia unless they had, by 11 October 2021, a first dose of an approved COVID-19 vaccine and a second dose fourteen days thereafter. An effect of the Direction was that a stevedore was unable to work on a commercial ship berthed at Adelaide unless they had received the first dose of a COVID-19 vaccine or evidence of a medical exemption by 11 October 2021. Refusal or failure by an employer to comply with the Direction was an offence carrying a significant penalty. The Deputy President accepted that the Direction applied to the Appellant’s employment.
[7] In the month prior to dismissal, a dispute arose between the Appellant and Respondent over the vaccination mandate. A summary of the dispute and correspondence leading to the Appellant’s dismissal is as follows:
• The Appellant was informed of the Direction via emails from the Respondent on 9, 21, 24 and 30 September 2021.
• On 21 September 2021, the Appellant emailed the Respondent indicating his disagreement with the Direction.
• On 6 October 2021, the Respondent’s General Manager, Mr Sleath, telephoned stevedores, including the Appellant, who had not produced evidence of a first dose vaccination or an exemption. The Appellant declined to advise Mr Sleath of his vaccination status.
• On 8 October 2021, the Respondent wrote to the Appellant affirming the requirements of the Direction and advising that if the Appellant did not comply, the company would be entitled to terminate his employment on the grounds that he would be unable to perform the inherent requirements of his position. The Appellant was asked to provide proof of vaccination or exemption by 18 October 2021 and to meet with the Respondent on 11 October 2021 to discuss the issue.
• On 11 October 2021, the Direction’s mandate came into operation. The Respondent allowed stevedores objecting to vaccination, including the Appellant, a week to consider their options and meet with the Respondent. The Respondent agreed to temporarily roster those employees on land and thus not breach the Direction. This temporary arrangement existed for about ten days. The Appellant declined to meet the Respondent on 11 October 2021.
• The Appellant took sick leave from 12 to 18 October 2021.
• On 15 October 2021, the Respondent wrote to the Appellant advising it would grant him annual leave once his personal leave expired but would not do so beyond 15 November 2021. The Respondent directed the Appellant to attend a rescheduled meeting on 19 October 2021.
• On 16 and 18 October 2021, the Appellant emailed the Respondent indicating his disagreement with the mandate. On both occasions the Respondent replied seeking clarification of the Appellant’s intention and indicating they would like to discuss the matter with him. The meeting scheduled for 19 October 2021 did not go ahead.
• There was further correspondence between the Appellant and Respondent on 19 and 20 October 2021. On 21 October 2021, the Respondent wrote to the Appellant advising that it considered his two emails of 20 October 2021 a retraction of his resignation but gave notice of the likely termination of his employment.
• On 24 October 2021, the Appellant indicated that he regarded the mandate as an “unlawful workplace direction”, and that he sought to be advised when he could “report back to work… with immediate effect”.
• On 26 October 2021, the Respondent dismissed the Appellant as he was unable to be employed on vessels and it was not operationally viable for the Respondent to offer on-going land-based work to unvaccinated stevedores.
[8] At first instance, the Appellant submitted that his dismissal was harsh, unjust and unreasonable and sought compensation. He claimed there was no valid reason for the dismissal and that the dismissal was procedurally unfair. The Respondent asserted that the fact the Appellant remained unvaccinated and had not produced a medical exemption, was a valid reason for dismissal according to the Direction. Further, the Respondent submitted that the dismissal was not procedurally unfair because the Appellant was provided with multiple notices of the vaccination requirement imposed by the Direction and was given ample time to consider his position.
[9] After confirming that the Appellant was protected from unfair dismissal, the Deputy President turned to consider the factors required in s.387 of the Act – whether the Appellant’s dismissal was unfair.
[10] The Deputy President found there was a valid reason for dismissal as the effect of the Direction was that the Respondent was prohibited from allowing the Appellant to undertake work on commercial vessels from 11 October 2021 unless he was vaccinated against COVID-19 or had a valid medical exemption. The Appellant decided not to be vaccinated by that date and did not provide a medical exemption. This meant that he was not able to fulfil a core element of his role as a stevedore, which was to work on commercial vessels. The Deputy President found this weighed against a finding of unfair dismissal.
[11] Having regard to the opportunity to respond, the Deputy President found that the Appellant had multiple opportunities to respond to the Respondent’s advice and that the Appellant declined the opportunity to meet in person, rather preferring to respond via email. The Deputy President rejected the Appellant’s submissions that he was threatened and bullied, and further that the dismissal was procedurally unfair because the notice period given by the Respondent to be vaccinated was unreasonably short. The Deputy President also considered that the Respondent enabled the Appellant to maintain income from 11–26 October 2021 and offered him four weeks pay in lieu of notice. Ultimately finding that this consideration weighed against a finding of unfairness.
[12] The Deputy President found that warnings concerning the Appellant’s performance was not a relevant consideration in these circumstances. Further, the Deputy President found the following factors were neutral considerations:
• the Appellant was clearly informed of the reason for dismissal;
• the Respondent did not unreasonably refuse the Appellant a support person; and
• the Respondent was not a small business within the meaning of the Act.
[13] In conclusion, the Deputy President found that the Appellant’s dismissal was not unfair and ordered that the application be dismissed.
[14] The Appellant’s grounds of appeal as set out in the Notice of Appeal have been distilled to be as follows:
1. The Deputy President did not properly consider the Appellant’s claim or evidence and the Deputy President made incorrect comments or failed to mention important information which would change the meaning of the evidence. Overall, the Deputy President did not judge the matter fairly and highlighted aspects when the Appellant “didn’t do the right thing.” 2
2. The Deputy President favoured the Respondent by finding that they afforded the Appellant procedural fairness in the dismissal process.
[15] The Appellant submits that the appeal is in the public interest because it is complex, effects the greater community and all industries especially in terms of the legality of the Direction and the vaccination mandate.
[16] An appeal against a decision to dismiss an unfair dismissal remedy application under s.587 of the Act is one to which s.400(1) of the FW Act applies. 3 Section 400(1) requires that permission to appeal must not be granted unless the Commission considers it is in the public interest to do so. This test is a stringent one.4 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.5 Some of the considerations that may attract the public interest are where a matter raises issues of importance and general application, or there is a diversity of decisions at first instance so that appellate guidance is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.6 It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.7 However, the fact that the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.8
[17] The first ground of appeal asserts that the Deputy President did not properly consider the Appellant’s claims or evidence, and overall did not judge the matter fairly.
[18] This ground of appeal fails to disclose any specific appealable error or significant error of fact in the Decision. The Appellant’s submissions on this ground are equally vague as they set out much of the transcript from the proceedings at first instance. From what we can distil, this ground appears to be an attempt to reventilate the merits of the Appellant’s case.
[19] The Deputy President’s obligation, pursuant to s.387 of the Act was to consider whether he was satisfied that the Appellant’s dismissal was harsh, unjust or unreasonable, taking into account the eight criteria set out within the section. Plainly the Deputy President’s decision undertook this task as the Act required. Taking this ground at its highest, the Deputy President appropriately set out the Appellant’s submissions at [45] and [46] of the Decision and expressly considered these submissions at [62]–[64] and [73]–[77]. There is no evidence that the Deputy President has failed to consider the Appellant’s evidence at first instance, and further, the weight to be given to various aspects of the evidence was a matter for the Deputy President to decide.
[20] The second appeal ground asserts that Deputy President favoured the Respondent by finding that they afforded the Appellant procedural fairness in the dismissal process. As discussed above, the Deputy President considered the Appellant’s submissions on procedural fairness at paragraphs [73]–[77] of the Decision. The Deputy President’s finding that the Respondent afforded the Appellant procedural fairness in the dismissal process was reasonably open to him on the evidence and is not infected by error. Relatedly, it was open to the Deputy President to reject the Appellant’s submission that he was bullied and threatened by the Respondent and that the notice period given to be vaccinated was unreasonably short.
[21] Accordingly, consideration of appeal Grounds 1 and 2 do not show decision-making by the Deputy President other than in a manner consistent with the material and evidence before him. No error of principle or law arises and there is no significant error of fact.
Public Interest
[22] Having considered the material within the Appellant’s Notice of Appeal and his written submissions, we do not consider it would be in the public interest for permission to appeal to be granted because none of the appeal grounds are reasonably arguable. No injustice or counter intuitive result is manifest. The Deputy President’s findings and conclusion were open to him.
[23] Further, we have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s.604(2) that:
• there is a diversity of decisions at first instance so that guidance from an appellate body is required;
• the appeal raises issues of importance and/or general application;
• the Decision at first instance manifests an injustice, or the result is counter intuitive; or
• the legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
[24] Permission to appeal is refused.
VICE PRESIDENT
Hearing Details:
Matter decided on the papers.
Final written submissions:
Appellant, 20 April 2022.
Respondent, 26 April 2022.
Printed by authority of the Commonwealth Government Printer
<PR743238>
1 [2022] FWC 371 (‘the Decision’).
2 F7 – Notice of Appeal, page 7.
3 Australian Postal Corporation v Gorman [2011] FCA 975, 196 FCR 126 at [37].
4 Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43] per Buchanan J (with whom Marshall and Cowdroy JJ agreed).
5 O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46].
6 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [27].
7 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
8 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].