Fair Work Act 2009
s.394—Unfair dismissal

Nnamdi Elege
v
Barwon Health
(U2021/10287)

Application for an unfair dismissal remedy; vaccination for COVID-19; direction to provide evidence of vaccination status; inherent requirements of the position; whether valid reason for dismissal; whether dismissal unfair; application dismissed

[1] Barwon Health is a public sector entity established under the Health Services Act 1988 (Vic). It operates public health services ranging from emergency and acute services to mental health, primary care, community services, aged care, subacute and rehabilitation services. These health services are delivered across multiple regional locations in Geelong and Southwest Victoria. Barwon Health employs in the order of 9000 staff engaged in various clinical and non-clinical roles.¹

[2] Mr Nnamdi Elege was, until his dismissal on 12 November 2021, employed by Barwon Health as a maintenance planner. Mr Elege has applied for an unfair dismissal remedy under the Fair Work Act 2009 (Act) alleging that his dismissal was unfair. He began his employment with Barwon Health as a casual employee in November 2016 and later was appointed to his position as a full-time maintenance planner on 2 July 2018.²

[3] At the time of his dismissal, Barwon Health advised Mr Elege that he was dismissed because he had failed to follow a reasonable and lawful direction which constituted serious misconduct.³ The reasonable and lawful direction with which Mr Elege was said not to have complied, related to his status as a person not vaccinated for COVID-19. Barwon Health submits that in addition to the reason for dismissal communicated to Mr Elege at the time of his dismissal, there was a further valid reason for the dismissal related to his capacity – that it was an inherent requirement of Mr Elege’s position that he be able to attend Barwon Health’s premises and perform work; he was unable to perform his work adequately from home; and because of his unvaccinated status, Barwon Health could not permit him to attend the workplace to perform work - so his inability to perform the inherent requirements of his role was a valid reason for dismissal.

[4] I have concluded that Mr Elege’s dismissal by Barwon Health was not unfair and that his application for an unfair dismissal remedy should be dismissed. My reasons for that conclusion follow.

[5] Except as indicated below, the relevant factual matters are not in dispute. At all material times following the declaration of a state of emergency in Victoria pursuant to s 198 of the Public Health and Wellbeing Act 2008 (Vic) (PH&W Act), the Chief Health Officer (CHO) in and for the State of Victoria was empowered to issue any directions that he or she “considered reasonably necessary to protect public health” in accordance with s 200(1)(d) of the PH&W Act. Several directions were made by the CHO requiring that particular classes of operators and employers in identified settings obtain information about their workers’ vaccination against COVID-19 status. The operative directions also prohibited these operators and employers from permitting unvaccinated workers to work on their premises on or after 15 October 2021, save for limited medical and other exceptions noted in the operative directions. For a limited period, operators and employers were permitted to allow an unvaccinated worker who had a booking to receive a dose of COVID-19 vaccine that would cause the worker to become partially vaccinated, to attend its premises to perform work.

[6] At all material times the following directions operated:

From 11:59 pm on 29 September 2021, the COVID-19 Mandatory Vaccination Directions (No 4);

From 11:59 pm on 7 October 2021, the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 6); and

From 6:00 pm on 5 November 2021, the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 12).

[7] On 21 September 2021, Barwon Health commenced providing its employees with information about the operative direction and the requirements imposed on Barwon Health.⁴ It continued to provide information to its employees throughout the remainder of September and October 2021.⁵ The information alerted employees to Barwon Health’s obligations under the operative directive vis-à-vis unvaccinated workers and the likely impact of its obligations on the continuing employment of employees who remained unvaccinated and were not covered by an exemption.

[8] On 6 October 2021, Barwon Health issued a revised version of its Staff Immunisation Policy and Procedure. The policy was uploaded to Barwon Health's intranet and was available to employees. That policy relevantly provided that:

•  Barwon Health will require employees to adhere to any State or Federal legislation or orders that may mandate employees to be vaccinated;

•  Barwon Health may, for staff and patient safety reasons, make a decision to mandate specific vaccinations for specified work areas or work groups;

•  Barwon Health will require all affected employees to adhere to these management directions; and

•  Employees who refuse immunisation will be informed that "failing to comply with a reasonable direction may result in disciplinary action being taken up to and including termination of employment."⁶

[9] On 8 October 2021 Barwon Health uploaded to its intranet site, a Frequently Asked Questions document answering several questions about the vaccination of its employees. Relevantly the document set out the following questions and answers:

. . .

Who at Barwon Health is required to be vaccinated?

Full vaccination (two doses of COVID-19 vaccine) is required for all healthcare workers, working onsite or remotely, including:

•  Employees in clinical and non-clinical roles

•  Casual employees

•  Volunteers

•  Students undertaking a placement at Barwon Health

•  Contractors and their employees

. . .

Do I need to be vaccinated if I work from home?

Yes. While you may not be currently working on site, it is an expectation that you are ready and able to do so as required. Working from home is a workplace flexibility that is granted to some roles and in some circumstances, but is not a contractual right. Exclusively working from home will not be considered as an alternative for being vaccinated.

. . .

What if I choose not to be vaccinated?

If you choose not to be vaccinated by the required dates, you will not be able to continue working at Barwon Health. You will be required to stand down from your current role with pay whilst a formal process is commenced. If you decide not to get vaccinated, you will be required to meet with your manager and a People & Culture representative to review your continuing employment at Barwon Health on the basis that you have failed to follow a lawful and reasonable direction of Barwon Health. This process may result in termination of employment.⁷

[10] Mr Elege was, as already noted, employed as a Maintenance Planner. Before commencing full time employment, he was given a letter of appointment attaching an employment contract and position description which he was asked to read and sign before commencing the position.⁸ Mr Elege signed the contract after varying the hours provision from 76 hours to 80 hours per fortnight.⁹ By clause 3.1 of the contract Mr Elege was required to carry out such duties as directed from time to time, including those set out in the position description, which is attached to the contract. By clause 3.1, Mr Elege was required to:

•  conform to, observe and comply with the directions, restrictions and policies of the Employer, made or given from time to time in discharging his duties;

•  comply with all legal requirements, statutory or otherwise, pertaining to his position and responsibilities;

•  comply with all lawful orders and instructions given to him by Barwon Health.

[11] Clause 2 of the contract stipulates that Mr Elege was based at the University Hospital Geelong. Mr Elege accepted that this was his ordinary place of work.¹⁰

[12] He was required to undertake a variety of duties, including scheduling, organising and inspecting maintenance works and ensuring maintenance tasks were undertaken in accordance with Barwon Health's legal, contractual and prudential obligations.¹¹ The Maintenance Planner position description contains various duties and responsibilities including:

•  Monitoring and performance management of Barwon Health maintenance staff and contractors;

•  Assigning and inspecting work for completeness and validating issues for resolution;

•  Carrying out maintenance inspections and repairs of services, plant and equipment associated with Hospital Buildings, grounds, car parks, residences and flats to ensure function, safety and appearance of equipment and plant are maintained to the required standards;

•  Verifying and validating claims for services made by provider;

•  Supervising, mentoring and training maintenance personnel for maximum productivity and development;

•  Being responsible for the co-ordination and supervision of all preventative maintenance of all engineering plant, services and equipment across Barwon Health’s Acute and Offsites;

•  Organising and supervising the work of employees in the maintenance of buildings, grounds, and equipment.

•  Being responsible for the full life cycle management of infrastructure assets, inclusive of buildings, plant, equipment, appliances, roads, pathways and drainage and grounds and all engineering services related systems and equipment;

•  Maintaining the Computerised Maintenance Management System (BEIMS), ensuring the operation and utilisation of functionality is at its maximum potential;

•  Coordinating all day-to-day preventative maintenance works through BEIMS maintenance management system, ensuring all maintenance works of operational services are efficiently undertaken;

•  Managing cut-ins, change overs, services impairments and isolations to enable maintenance and project work completion without disruption to Barwon Health service delivery;

•  Performing other duties as required and delegated;

•  In consultation with the Asset Manager, developing maintenance improvements for all Barwon Health facilities, services, plant and equipment to ensure function, safety and appearance are maintained to agreed standards;

•  Ensuring all annual essential safety measures reports are completed and that all regulatory and compliance maintenance is completed within required timeframes; and

•  Participating in and leading essential safety measure audits where required.¹²

[13] Mr Cobus Lotheringen is the Chief Financial Officer at Barwon Health. He has responsibility for, inter alia, facility management and capital works, including having broad oversight of the maintenance of facilities and capital works programs.¹³ He gave evidence that in order for the responsibilities listed above to be carried out effectively, an on-site presence was required.¹⁴ Mr Lotheringen also said that the following tasks for which Mr Elege had responsibility should also be carried out on site:

•  Black Start tests which are tests carried out to determine if back up power supplies work in the event of an external power supply shut down;

•  On-call coverage for emergencies;

•  Maintenance jobs which require the Maintenance Planner to physically attend the job and inspect the works;

•  Maintenance jobs which require co-ordination with a site contact or nurse unit manager.¹⁵

[14] Mr Elege contends and has given evidence, in essence, that the whole or at least the preponderance of the duties that formed part of his job could be undertaken remotely and he could efficiently and effectively undertake them from home.¹⁶ It is unnecessary for me to make findings about whether the duties of Mr Elege’s position or some of them could be undertaken remotely for reasons to which I will shortly come. However, Mr Elege’s contention that he could carry out all of his duties remotely, belies the actual performance of his duties during the period he was working from home pursuant to the CHO’s work from home directions. During the period 4 January 2021 to 12 October 2021 Mr Elege physically attended at site on approximately 150 separate days and on the vast majority of these days he started work at or shortly after 7:30 am and stopped work at or after 4:00pm.¹⁷ For the preponderance of this period, directions to the effect that persons who can work from home should do so, were in effect. In any event it is self-evidently the case that the duties earlier specified involving undertaking inspections, testing, audits, supervision of works undertaken by employees, supervision of all preventative maintenance works of all engineering plant, services and equipment across Barwon Health’s sites to name a few, required on site attendance. This is consistent with the evidence given by Mr Lotheringen, and which I accept.

[15] Once the CHO’s work from home directions ceased operating, Barwon Health was entitled to insist that Mr Elege’s duties be carried out on site in accordance with the employment contact. That some or even all of the duties could be carried out remotely is beside the point. Mr Elege agreed when he made the contract that his ordinary place of work would be at the University Hospital Geelong. This is the default or normal position. Barwon Health was empowered by the contract to give directions to Mr Elege from time to time that work should be undertaken at or from other locations. It did this during the onset of the COVID-19 pandemic and in response to CHO work from home directions. But the remote working arrangement put into place by Barwon Health for some employees including Mr Elege was always only a temporary measure.

[16] On 8 October 2021 Barwon Health contacted Mr Elege to inform him that it was not in possession of any evidence about his vaccination status and provided him with information about how to obtain and provide such evidence.¹⁸ Mr Elege sent an email to Ms Lee Jeffery, Barwon Health’s Chief of People and Culture, on 13 October 2021¹⁹ attaching a letter dated 12 October 2021 setting out various reasons why he was not vaccinated.²⁰ The reasons need not be recited here.

[17] Mr Elege was sent two emails from Barwon Health on 13 October 2021. The first was sent on behalf of Ms Frances Diver, Barwon Health’s Chief Executive Officer.²¹ The second was sent by Ms Jeffery.²²

[18] Amongst other matters, Ms Diver’s email to Mr Elege (sent to both Mr Elege’s work and private email address at 2:16pm) contained the following direction:

Before 15 October 2021, you must provide evidence that you have:

•  Received at least a first dose of a COVID-19 vaccination; or

•  An appointment to receive at a first dose no later than 29 October 2021.

. . . 

In the event you are unvaccinated by 15 October 2021 but have proof of a COVID-19 vaccination booking by 29 October 2021, you may continue to work but will be required to wear appropriate PPE that includes at a minimum a surgical mask and face shield.

by 29 October 2021 you must be able to provide evidence that you have:

•  Received two doses of a COVID-19 vaccination; or

•  One COVID-19 vaccination and a booking for a second no later than 15 December 2021.

By 15 December 2021 you are required to provide evidence of having received both doses of a COVID-19 vaccination.

[19] The email contained information about vaccination bookings, the verification of claimed medical exemptions and alerted Mr Elege to the consequences of failing to comply with the direction as follows:

Failure to meet any of the requirements of this lawful and reasonable direction may be considered to be misconduct for the purposes of the relevant enterprise agreement and the Barwon Health Managing Unsatisfactory Performance and Misconduct Policy.  This may result in disciplinary action being taken, up to and including termination of employment. If by 14 October 2021 you fail to comply with the above direction to provide evidence of vaccination or a booking to receive a vaccination by 29 October 2021 or if you notify Barwon Health via our declaration form that you do not intend to be vaccinated, you will be suspended with pay from 15 October while Barwon Health commences an investigation as per our disciplinary procedures.

[20] Ms Jeffrey’s email of 13 October 2021, sent only to Mr Elege’s work email address some 40 minutes earlier, was responsive to Mr Elege’s email sent earlier that day. In the email Ms Jeffery acknowledges Mr Elege’s vaccination concerns, she points out that Barwon Health must comply with the CHO’s direction and advises Mr Elege that his request to continue working from home or to undertake rapid antigen testing before commencing work each day is declined. Ms Jeffrey points out that “working from home is not an option to avoid vaccination” and stresses that there are employment consequences for any decision not to be vaccinated.

[21] Mr Elege initially said that he did not receive Ms Jeffrey’s email.²³ He then said he did not check his work emails because he was off work on sick leave.²⁴ There is no dispute that Mr Elege was certified as being unfit for work for the period 13 and 14 October 2021. He says he did not read the email until the day before the hearing. He said that had he read Ms Jeffrey’s email he would have acted differently, by booking a vaccination appointment or perhaps by resigning.²⁵ I find Mr Elege’s explanation difficult to accept.

[22] Firstly, although it is not controversial Mr Elege was on sick leave when Ms Jeffrey sent her email, that email was sent in response to Mr Elege’s email of the same day. Mr Elege’s email was sent from his work address, and he was plainly not too ill to compose and send an email, and so the suggestion that he was too ill to check his work email does not bear scrutiny. This is particularly the case when regard is had to the fact that he checked each private email on the same day because he acknowledged he had received and read Ms Diver’s email.²⁶

[23] Secondly, as already noted, Mr Elege’s email, to which Ms Jeffery responded, was sent from his work email address. Since it plainly required a response from Barwon Health, it stretches credulity to suggest, as Mr Elege does, that he did not check his work email to ascertain whether a response has been sent to him. Mr Elege’s letter which is attached to his email of 13 October 2021 concludes with the following:

While I await your response, I look forward to a positive outcome for all parties.

Please accept the assurance of my highest consideration. [Emphasis added]

[24] The platitudes expressed above, given on 13 October 2021, are hardly consistent with evidence given many months later.

[25] In any event, by 15 October 2021 Mr Elege became aware of the vaccination requirements. As will be evident from his responses thereafter, Mr Elege did not seek to comply with the requirements or to ask for a further reasonable period within which to comply with the requirements. Instead he set out his reasons for not complying. In these circumstances, that Mr Elege may not have read the email correspondence noted above during his period of absence on sick leave is of no moment.

[26] Mr Elege also contends that, although he received and read Ms Diver’s 13 October 2021 email, he thought it was fictitious because it was not sent by the CEO, but another person.²⁷ The email was sent on behalf of the CEO. Whether he thought the email was fictitious is beside the point. It was real, not fictitious and if Mr Elege thought the email was fictitious, he alerted no-one at Barwon Health at that time to the possibility that he had received an email which purported to be from the CEO but was not, nor did he make any enquiry about the authenticity of the email.²⁸ Moreover as Mr Elege was by this stage in dispute or discussions about his vaccination status with Barwon Health, his suggestion that he thought the 13 October 2021 email, which was sent to both his work and personal email addresses, contained his home address and his first and last name, addressed him by his first name and carried the subject matter “mandatory vaccination of health care workers” was fictitious but made no enquiry about its authenticity, is also difficult to accept and I do not accept it.

[27] On 15 October 2021 Barwon Health sent an email to Mr Elege at his personal email address informing him that he was stood down on pay while an allegation that he had failed to follow a lawful and reasonable direction was investigated.²⁹ On 20 October 2021 Mr Elege was given a letter confirming the stand down, and notifying him of the allegation as follows:

That you have failed to comply with a lawful and reasonable direction to meet the directions of the CHO as set out above as well as failing to meet the conditions of your contract of employment to comply with Barwon Health’s policy, procedures and guidelines, inclusive of the requirements set out in Barwon Health Staff Immunisation policy and procedure.

“Particulars:

Specifically, that you have failed to:

•  provide evidence that you have received at least one dose of a COVID19 vaccination by 15 October 2021; OR

•  booked in an appointment to have your first dose by 12.01am 15 October 2021; OR

•  provide a medical exemption and have it reviewed by StaffCare by 15 October 2021.”³⁰

[28] In the same correspondence Mr Elege was told that the allegation would be investigated and that he could respond to the allegation at a meeting (to be conducted by telephone) scheduled for 22 October 2021. The correspondence also advised Mr Elege that he could also, or as an alternative, respond in writing by 21 October 2021, that if the allegation was substantiated this may result in dismissal and that he could have a support person at the meeting.³¹

[29] Subsequently, Barwon Health accommodated a request from Mr Elege to reschedule the meeting to enable him to organise a support person and afford him more time to prepare a response. The meeting was rescheduled for 27 October 2021.³² Mr Elege also engaged in correspondence with Barwon Health about the mode of the meeting, but the meeting was ultimately conducted by telephone.³³

[30] Mr Elege responded to the allegation by way of letter dated 25 October 2021 as follows:

“. . .

Response

I ask that you consider Barwon Health’s values of respect, compassion, commitment, accountability and innovation in your considerations and conclusions on this matter as I herein respond to the above allegation.

Firstly, I am aware that on 29 September 2021 the Acting Chief Health Officer Professor Benjamin Cowie issued Directions through a Public Health Order requiring that all healthcare operators must take all reasonable steps to ensure that its workers are vaccinated. Consequently, Lee Jeffery the Chief of People and Culture, Barwon Health on 30 September 2021 sent a correspondence email directing all Staff to comply with the dates listed above.

I thereby proceeded in responding to Lee’s correspondence email to advise her on the impact of this direction to the wellbeing of my family and I. Furthermore, I proffered multiple reasonable solutions that could benefit Barwon Health and myself. For your reference, kindly find attached to this letter a copy of my letter to Lee Jeffery. In arriving at my response to the above allegation, I will refer you to the following points below.

1. Fair Work Commission’s website on Lawful and reasonable directions by Employers Employees to get https vaccinated.

. . .

There are four broad tiers of work that are considered by the FWC in arriving at a lawful and reasonable direction. I believe that amongst the 4 broad tiers of work listed, my role at Barwon Health will fall into Tier4 work. In light of the limited risk of transmission of Coronavirus, the FWC have stated that employers are unlikely to be reasonable in their direction to employees performing Tier 4 work.

2. Department of Health & Human Services Vaccination Program. Please find attached the Healthcare Worker 7th edition -August 2014-V02 document retrieved from the Department of Health and Human Services website. This provides a risk assessment categorising health workers. I believe my job role as Maintenance Planner fits into Category C - Minimal patient contact, found on page two. Employees in this category do not need to be included in vaccination programs. Attached to this letter is a copy of this document for your perusal.

3. Informed Consent as defined by the Australian Commission on Safety and Quality in Health Care. Please find attached a copy of this document for your perusal. The fact sheet for clinicians highlights that for there to be a valid informed consent, the person consenting must:

a. Have the legal capacity to consent,

b. Give their consent voluntarily,

c. Give their consent to the specific treatment, procedure or other intervention being discussed,

d. Have enough information about their condition, treatment options, the benefits and risks relevant to them, and alternative options for them to make an informed decision to consent.

I find in the direction by Lee Jeffery, a strong form of coercion as punitive measures await staff that do not comply. Coercion as acknowledged by acceptable best practices is a form of bullying. Consequently, this does not allow me to consent voluntarily.

The existing vaccines lack long-term side effects data and I will request that comprehensive data be provided on this before I consent to receiving one of them. In the absence of this extensive data on these long-term side effects I am unable to consent at this stage as the information is inadequate (not enough) and unavailable.

4. Provisional registrations of the COVID-19 Vaccines by the Therapeutic Goods Administration (TGA). . . . I have not yet taken the existing vaccines because I am exercising reasonable caution as the TGA mentioned on their website that these vaccines for Covid-19 are only provisionally approved for use in Australia as part of a large-scale clinical trial.

As an alternative, I am willing to consider COVID-19 prophylactic treatment if it becomes available or a COVID-19 vaccination that is unconditionally registered or approved by the TGA. A COVID-19 vaccination such as NOVAVAX (once unconditionally approved), would be preferable due to its seemingly favourable side-effect profile.

To reiterate my proffered solution, I believe the following below might be attainable alternatives to ensure that Barwon Health fulfils the CHO’s directions pending when the Vaccines are unconditionally approved or when a COVID-19 prophylactic treatment is made available.

1. Working from Home where practicably possible. If you recall, Under the Stage 4 restrictions, it was said and established that anyone who can work from home must do so. My job allows me to do this effectively.

2. If the above is unattainable, getting tested prior to resumption of work. Testing staff is arguably a better approach than vaccination in preventing the spread of COVID-19. There is no added risk associated with an unvaccinated person who does not have Covid-19. It is sufficed to say that whatever risk that could be associated to an unvaccinated person is mitigated by the rapid antigen test, as results are available within 30 minutes.

The certificate of recognition I received supports my belief that I am very good at my job and that I am proud to work for Barwon Health (please find attached). Having to lose this employment might be a great setback for myself and Barwon Health. Consequently, I will be happy to come to an understanding that works for both parties

. . .”³⁴ [Bold and underlining in the original]

[31] During the telephone meeting between representatives of Barwon Health and Mr Elege, the purpose and nature of the investigation and the consequences for his ongoing employment should the allegation be substantiated were outlined. A response to the allegation was sought. Mr Elege provided a response to the allegations during the meeting. Mr Elege said amongst other things that he did not consider the direction given to him to have been reasonable, that he had not been provided with information he had earlier requested so that he could give informed consent and he reiterated some of the matters set out in his written response reproduced above. After a short break, Mr Elege was advised that there would be a recommendation made that his employment be terminated, and he was then given an opportunity to show cause why that should not be so. Mr Elege contended that his employment should not be terminated for reasons which included that it would be unjust, that he had sought to come to an understanding with Barwon Health about his vaccination status, that he was on good terms with his managers and that he loved his job.³⁵

[32] On 5 November 2021, Barwon Health sent Mr Elege a letter confirming that the allegation of failing to follow a lawful and reasonable direction was substantiated and invited him to a meeting to be held on 12 November 2021 by telephone, at which there would be a discussion about the final outcome of the investigation and the disciplinary action that would be taken.³⁶

[33] At the telephone meeting on 12 November 2021, the investigation outcome was communicated to Mr Elege and he was advised that a decision had been made to terminate his employment effective immediately but that he would nonetheless be paid four weeks’ pay in lieu of notice. He was also advised that he could access, for a period, Barwon Health’s employee assistance program.³⁷ A letter substantially to the same effect was sent to Mr Elege on 12 November 2021.³⁸

[34] Mr Elege has given evidence that he had refused seasonal influenza vaccines in the past without any consequence for his employment.³⁹ This takes the matter no further. Influenza vaccinations were not mandated by Barwon Health nor were employers of health care workers required by any CHO direction or otherwise to prevent such workers from attending at the workplace unless the workers had received an influenza vaccination.

[35] In the context of this factual background, I turn to consider whether Mr Elege’s dismissal was unfair.

Whether dismissal was unfair

Protection from unfair dismissal

[36] An order for reinstatement or compensation may only be made if I am satisfied Mr Elege was, at the date of the dismissal, protected from unfair dismissal under the Act and that the dismissal was unfair. Section 382 of the Act sets out the circumstances that must exist for Mr Elege to be protected from unfair dismissal and there is no dispute, and I am satisfied, that Mr Elege was, on 12 November 2021, protected from unfair dismissal within the meaning of s 382.

[37] Mr Elege’s dismissal will have been unfair if, on the evidence, I am satisfied that all of the circumstances set out in s 385 of the Act existed. There is also no dispute that Mr Elege was dismissed at the initiative of Barwon Health within the meaning of s 386(1)(a). Barwon Health is not a Small Business employer, so the Small Business Fair Dismissal Code is not engaged, and Mr Elege’s dismissal was not a case of genuine redundancy within the meaning of s 389.

[38] The question whether the Applicant’s dismissal was harsh, unjust or unreasonable is considered below.

Harsh, unjust or unreasonable

[39] A consideration of whether a dismissal was harsh, unjust or unreasonable, requires the following matters in s 387 of the Act be taken 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.”

[40] A statutory requirement that a matter be taken into account means that the matter is a ‘relevant consideration’ and is a matter which the decision maker is bound to take into account.⁴⁰ To take into account the matters set out in s 387 means that each of the matters must be treated as a matter of significance in the decision-making process⁴¹ and requires the decision maker to evaluate it and give it due weight, having regard to all other relevant factors.⁴² In weighing relevant matters, the weight given to a particular matter is ultimately a matter for the Commission subject to some qualifications, which for example might lead a court to set aside a decision if the decision maker has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance.⁴³

[41] The phrase “harsh, unjust or unreasonable”, finds no definition in the Act, but a dismissal may be harsh but not unjust or unreasonable; it may be unjust but not harsh or unreasonable; or may be unreasonable but not harsh or unjust. There will be cases where these concepts will overlap. In any given case all the concepts may be present, or only some, or none. A dismissal may be unjust because the employee was not guilty of the misconduct on which the employer acted. It 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.⁴⁴ But the assessment of whether any or all of these concepts is present in a given case of dismissal is undertaken in a statutory context and it is the matters set out in s 387 of the Act to which regard must be had in assessing whether a particular dismissal was harsh, unjust or unreasonable.

Valid reason – s 387(a)

[42] The essence of a valid reason is that the reason is a sound, defensible or a well-founded reason – one that is not capricious, fanciful, spiteful or prejudiced.⁴⁵ The issue is whether there was such a valid reason related to Mr Elege’s capacity or conduct. Whether conduct which is said to found a valid reason occurred is to be determined based on the evidence in the proceedings assessed on the balance of probabilities taking into account the gravity or seriousness of the allegations.⁴⁶ The existence of a valid reason is not ascertained by asking whether the employer, after a sufficient investigation, had a reasonably held belief that the conduct occurred.⁴⁷ A reason would be valid because the conduct occurred, and it justified termination. There would not be a valid reason for termination because the conduct did not occur or it did occur but did not justify termination.⁴⁸ It is not necessary to show the misconduct as sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).⁴⁹ An assessment of the degree of seriousness of misconduct which is found to constitute a valid reason for dismissal for the purposes of s 387(a) may also be a relevant matter under s 387(h). In that context the issue is whether dismissal was a proportionate response to the conduct in question.⁵⁰

[43] Barwon Health contends that its vaccination direction to Mr Elege was a lawful and reasonable direction, Mr Elege failed to follow it and dismissal for the failure is a valid reason for dismissal. The particulars of the direction with which Mr Elege is said not to have complied or followed were that he did not provide evidence that he had received the requisite vaccination dose or had an appointment or had an applicable medical exemption.

[44] Barwon Health also contends that as the effect of the CHO Directions was that Mr Elege was unable to attend Barwon Health’s premises and perform work as required, he was, as at the date of his termination, unable to perform the inherent requirements of his role. It says that the only reason Mr Elege was unable to fulfil the inherent requirements of his role was because he chose not to be vaccinated. A dismissal on the ground that an employee is unable to perform the inherent requirements of the role in which he was employed is also a valid reason for dismissal.

[45] As I have earlier explained, Barwon Health required, and it was entitled under the employment contract to require Mr Elege to perform his work at the premises operated by Barwon Heath. The operative CHO Directions required Barwon Health to only permit Mr Elege to attend at work if he was relevantly vaccinated, had an appointment to be vaccinated or had a valid medical exemption. These were thus inherent requirements of the role – to attend physically at the workplace to perform his role and to meet any precondition required by law to enable that to occur. To undertake his work as Barwon Health required, Mr Elege had to be able to attend its premises. If Barwon Health had permitted Mr Elege to attend its workplace from 15 October 2021, it would have breached the operative CHO Direction, which would have exposed it to financial penalties.

[46] As earlier noted, from 15 October 2021, Barwon Health was required to prevent Mr Elege from attending its premises for work because he was not vaccinated, did not have a vaccination appointment nor a medical exemption. Mr Elege was entitled to refuse or decline to become vaccinated. But that choice had consequences. It meant that Mr Elege was unable to perform the inherent requirements of his role.

[47] In these circumstances, I am satisfied that at the time of his dismissal Mr Elege was unable to perform the inherent requirements of his role. Consequently this provides a valid reason for dismissal.

[48] Barwon Health also contends there was a valid reason for the dismissal because Mr Elege failed to follow a reasonable and lawful direction issued to him by Barwon Health. Mr Elege says the direction was unlawful because he believed or had reason to believe that complying with it would endanger his life. Mr Elege’s submission is rejected. A term that is implied into a contract of employment is the obligation that employee will obey the employer’s lawful and reasonable directions. Mr Elege’s employment contract also contains an express term to that effect.⁵¹ The requirement that the direction be lawful means that an employer cannot insist an employee act unlawfully and the direction given must be within the scope of the employment contract. Barwon Health’s direction to Mr Elege required him to provide evidence about his vaccination status, any appointment to be vaccinated or the existence of a medical exemption by particular dates. Barwon Health required this information to determine whether Mr Elege could be permitted to attend for work. The direction was lawful and entirely consistent with the terms of the CHO Direction in force at the relevant time, with which Barwon Health was required to comply. The direction was also entirely consistent with Mr Elege’s employment. As I noted earlier, Barwon Health required Mr Elege to attend at the workplace to perform his work, and it could not permit him to do so without Mr Elege first providing Barwon Health with the information required by its direction to him.

[49] Whether a direction is a reasonable one depends on all the circumstances. Mr Elege did not contend the direction was unreasonable. As noted above he contended the direction was unlawful. For largely the same reasons given above Barwon Health’s direction to Mr Elege was also reasonable. As Deputy President Colman observed in Roman v Mercy Hospitals Victoria Ltd⁵², a CHO Direction of the kind under consideration here was “akin to a new regulatory requirement or statutory qualification for a particular role”.⁵³ Barwon Health directed Mr Elege to provide evidence that he met the new regulatory requirement so that it could determine whether Mr Elege could to do the job into which he was employed in accordance with the terms of the employment contract, which as I have earlier noted required the performance of work to be carried out at the workplace operated by Barwon Health.

[50] It is uncontroversial that Mr Elege did not comply with Barwon Health’s direction. In the circumstances I am satisfied that Mr Elege’s failure to comply with the direction given to him by Barwon Health, which I have determined was a lawful and reasonable direction, was also a valid reason for the dismissal.

[51] I should for completeness note that Mr Elege also contended that there was a failure to consult in accordance with clause 6 of the Victorian Public Health Sector (Health and Allied Services, Managers and Administrative Workers) Single Interest Enterprise Agreement 2016 – 2020 (Agreement) about the direction. This submission is misconceived. Clause 6 is simply not engaged in the circumstances. It is concerned with the proposed introduction by the employer of major workplace change. Here, even if it could be said that the requirement imposed on Barwon Health by the CHO Directions which caused it to issue the direction to Mr Elege constituted major workplace change, it is not change proposed by the employer. Barwon Health did not propose the requirements, they were imposed on it by the CHO Directions. The only proposal made by Barwon Health was to comply with the CHO Directions, about which it had no choice.

[52] That there was a valid reason, and in this case more than one valid reason, for Mr Elege’s dismissal weighs against a conclusion that his dismissal was unfair.

Notification of the reason for dismissal and opportunity to respond – s 387(b) – (c)

[53] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made,⁵⁴ in explicit terms,⁵⁵ and in plain and clear terms.⁵⁶ This is an element which may be described as procedural fairness in order that an employee may respond to the reason. Procedural fairness requires that an employee be notified of the reason for the dismissal before any decision is taken to terminate employment in order to provide them with an opportunity to respond to the reason identified. Section 387(b) and (c) would have little practical effect if it were sufficient to notify an employee and give them an opportunity to respond after a decision had been taken to terminate employment.⁵⁷ An employee protected from unfair dismissal should also be given an opportunity to respond to any reason for dismissal relating to the employee’s conduct or capacity.

[54] As the evidence discloses Mr Elege received a letter setting out Barwon Health’s direction in relation to the provision of evidence about his vaccination status. As noted earlier, Mr Elege contends he was on sick leave at the relevant time and did not read the direction. Even if accepted, which for reasons earlier given, I do not, it is of little consequence because the direction was also communicated subsequently during the investigation process. At that time Mr Elege could have sought to comply or sought more time to comply, but he did not. Mr Elege received written notice of Barwon Health’s concerns about his failure to comply with the direction, which I have found to be lawful and reasonable, he was given an opportunity to respond to those concerns and he provided both written and verbal responses to the concerns. The evidence shows that these concerns were considered by Barwon Health in determining whether to terminate Mr Elege’s employment.

[55] The concerns raised by Barwon Health specifically refer to the second valid reason I have found as justifying the dismissal. In the circumstances I am satisfied that Mr Elege had notice of the valid reason on which Barwon Health relied before it effected dismissal and that he was given an opportunity to respond to that reason, which he took up. Implicit in the direction if not explicit was the fact that if Mr Elege did not comply, he would be unable to perform work at Barwon Health’s premises by reason of the CHO Direction and so could not meet the inherent requirements of his role. Mr Elege acknowledges as much in his written submissions in which he says that the “investigator that recommended the termination of my appointment advised me on the day . . . her reason for the recommendation was that I was unable to fulfil inherent requirements of my job as I was unable to enter the workplace”. 58 As the “inherent requirements” reason was not given as a reason, Mr Elege was not given an opportunity to respond to it, although he did propose working from home and as noted in his submissions, he was alive to that issue. But in the circumstances, the absence of notice of this reason and its concomitant opportunity to respond is of no significance as there is no indication that Mr Elege would have complied with Barwon Health’s direction or that he would have advanced any response other than the one given in writing and orally before the decision to dismiss was made.

[56] Consequently these considerations weigh against a conclusion that the dismissal was unfair.

Any unreasonable refusal by the employer to allow the person to have a support person – s 387(d)

[57] As is evident from the correspondence in evidence, Mr Elege was advised that he could bring a support person to both the investigation meeting and the meeting to discuss the outcome of the investigation. The meeting scheduled for the purposes of the investigation was rescheduled in part to allow Mr Elege more time to organise a support person to attend. There is no evidence of any refusal by Barwon Health to allow Mr Elege to have a support person present nor does Mr Elege make such an allegation. In the circumstances this consideration also weighs against a conclusion that the dismissal was unfair.

Warnings regarding unsatisfactory performance – s 387(e)

[58] Mr Elege’s dismissal was not related to any unsatisfactory performance and so this consideration does not arise.

Impact of the size of the Respondent on the procedure followed – s 387(f)

[59] The consideration in s 387(f) of the Act is not concerned with standards but with the likely impact on the procedures followed of the size of the employer’s enterprise. Barwon Health is a large and well-resourced employer. Its size and available resources meant that it had available to it the capacity to obtain advice about the procedure that it adopted. But there is no evidence that its size negatively impacted the procedure it adopted to effect Mr Elege’s dismissal. This consideration weighs neutrally.

Absence of dedicated human resources management specialist/expertise on procedures followed – s 387(g)

[60] This consideration is concerned with “the degree to which the absence of dedicated human resources management specialists or expertise” would be likely to have impacted on the procedure it adopted to effect the dismissal. Barwon Health has dedicated human resources management specialists or expertise available to it, and as the evidence discloses it made use of those resources. The consideration does not arise.

Any other matters that the Commission considers relevant – s 387(h)

[61] It is necessary to briefly deal with some of the other matters raised by Mr Elege and on which he relies to contend that his dismissal was unfair.

[62] Mr Elege contends that his dismissal was unfair because he was denied the opportunity to keep accurate records of his meetings with Barwon Health during the investigation because he was not permitted to record the telephone conversations. Putting to one side the valid use (in the sense of whether such material would have been admitted as evidence) to which such recording could have been put, there was nothing to prevent Mr Elege from making notes during the conversation or from making contemporaneous notes immediately after the telephone conversation had concluded. There is nothing inherently unfair about the refusal by Barwon Health to allow Mr Elege to record the conversation. The refusal was wholly unremarkable.

[63] Mr Elege also contends that the short period between his response during the investigation and the return of the investigator to announce the outcome was inadequate. This contention is rejected. Mr Elege’s written response to the allegations was received by Barwon Health the day prior to the investigation meeting which was held on 27 October 2021 and his oral response given during the meeting largely reiterated that which was set out in writing. The adequacy of the period between him providing a response and the investigator announcing the outcome must be assessed in that context and not simply the shortness of the period. In any event Mr Elege contended in his response that the direction given to him was unlawful and/or unreasonable, and for the reasons I have given earlier that contention is without merit. Moreover that which was announced was only a recommendation. On 5 November 2021 Mr Elege was invited to a meeting to discuss the outcome of the investigation and to discuss any disciplinary action will be taken. The meeting occurred on 12 November 2021 during which he had the opportunity to make representations about why his employment should not be terminated. There was nothing hasty in taking the ultimate decision Barwon Health took to dismiss.

[64] Mr Elege also contends that his dismissal was unfair because Barwon Health could have complied with the CHO’s direction by allowing him to work from home as he had done for periods during which work from home directions were operative. Though Barwon Health could have allowed Mr Elege to work from home for a further period, it was under no obligation to do so and moreover it required him to perform his functions and duties from the workplace it operated. As I have earlier mentioned the work from home arrangements were temporary in nature. There was nothing unfair in Barwon Health’s requirement that he attend physically at the workplace to carry out his role after the temporary measures were no longer required nor mandated in circumstances where it had a contractual right to expect that this would occur. As Barwon Health told Mr Elege at the time, work from home arrangements would not be allowed as a shield for employees against becoming vaccinated. Given that Barwon Health is a provider of health services, this position was wholly reasonable.

[65] Mr Elege contends that his dismissal was not proportionate and harsh and because his hesitancy to be vaccinated should not have been regarded as a blatant disregard of the directions, that he had an unblemished work record and that he had previously declined to be vaccinated against influenza but was not subject to disciplinary action. As I have earlier explained, his contention as to the influenza vaccination is not a relevant comparison since at the time there was no obligation imposed on Barwon Health to not allow persons who are not vaccinated against influenza to attend the workplace. His vaccination hesitancy was a matter of personal choice but as I have also explained, that choice had consequences. One of which was that he was unable to meet the inherent requirements of his role. The other was that he was unable or unwilling to comply with the direction given to him by Barwon Health. Ultimately, Mr Elege made a choice which rendered him unable to perform work in his role in the manner required by Barwon Health. Furthermore whilst his unblemished work record is not disputed, it does not in the circumstances point to unfairness in the dismissal. The particular requirements to enable the performance of work were not met and Mr Elege would not meet them and in those circumstances the fairness of the dismissal is not affected by his otherwise unblemished work record. Although I consider that summary dismissal would, in the circumstances have weighed towards a conclusion that the dismissal was unfair – dismissal on notice would have been appropriate - Mr Elege was nonetheless paid an amount in lieu of notice, notwithstanding the summary nature of the dismissal thereby negating such unfairness as might otherwise have arisen.

[66] Mr Elege also contends that his dismissal was unfair because communication to staff by Barwon Health on or about 30 September 2021 suggested that employees could take an exhaust leave entitlements if they remained unvaccinated following the dates set out in the CHO directions. He suggests that the taking of leave was an alternative to dismissal. Plainly the leave to which Mr Elege refers must be annual leave. Given his period of service no entitlement to long service leave would have been engaged and personal leave entitlements can only be accessed in particular circumstances, none of which appear to be present and there is no suggestion in the evidence that they were present. The relevant annual leave provisions which pertained to Mr Elege are set out in Part G of the Agreement. These provisions are in all relevant respects the same as those that are considered in Hannah Jane Wilkinson v Eastern Health.⁵⁹ For the reasons given therein, in this case no paid annual leave entitlement would have arisen under the Agreement, or under the National Employment Standards. The issue then would be whether unpaid leave was available. There is no suggestion that unpaid leave was requested, much less if requested, whether it would have been reasonable in the circumstances to a permitted Mr Elege to take such leave. No unfairness arises. In any event, any request to proceed on an indeterminate period of leave – because he was unvaccinated – to await in effect the dust to settle, would in my opinion have been an unreasonable request.

[67] Mr Elege also contended had he seen the email from Barwon Health (authored by Ms Jeffery) sent on 13 October 2021 containing the direction, he would have acted differently by either making an appointment to be vaccinated or by resigning.⁶⁰ I have earlier made findings about the veracity of Mr Elege’s evidence that he did not see the relevant email. However even if I were to accept that evidence, he knew about the substance of the direction once the investigation process had commenced and the possible consequences of not complying. Plainly he took no step to make an appointment to be vaccinated and he did not resign. The suggestion that he would have done so viewed against what he actually did (or more accurately did not do) rings hollow.

Conclusion

[68] For the reasons given above I do not consider that Mr Elege’s dismissal was either harsh, unjust or unreasonable. It follows that I am not satisfied that his dismissal was unfair. The application should therefore be dismissed.

Order

[69] I order that the application in U2021/10287 be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR741380>

Appearances:

Mr N Elege appeared in person

Mr M Minucci of Counsel for the Respondent

Hearing details:

2022

Melbourne (via video)

13 April

1 Exhibit 3 at [5]-[6]

2 Exhibit 2

3 Exhibit 4 at annexure MC-22

4 Exhibit 4 at [11] and annexure MC-4

5 Exhibit 4 at [11], [12], [15] and [16]; Exhibit 3 at [17], [18], [20]

6 Exhibit 4 at [12]-[13] and annexure MC-5

7 Exhibit 4 at [15] and annexure MC-6

8 Exhibit 4 at [6] and annexure MC-1

9 Transcript PN143-PN149

10 Transcript PN151-PN153

11 Exhibit 5 at [7]

12 Ibid at [9] and annexure CL-1

13 Ibid at [4]

14 Ibid at [9]

15 Ibid at [10]

16 Transcript PN156-PN204; Applicant’s submissions at [4d]

17 Exhibit 5, annexure CL-2

18 Exhibit 3 at [21] and annexure LJ-5

19 Transcript PN1337-PN1339 and Exhibit 2, document 4 of the bundle of documents.

20 Exhibit 3 at [26] and annexure LJ-7

21 Exhibit 3 at [22] and annexure LJ-6

22 Exhibit 3 at [27] and annexure LJ-8

23 Transcript PN264

24 Transcript PN265

25 Transcript PN834, PN1552

26 Transcript PN797 – PN800

27 Transcript PN800

28 Transcript PN810-820

29 Exhibit 4 at [19], annexure MC-8

30 Ibid at [21], annexure MC-10

31 Ibid at [22] and annexure MC-10

32 Ibid at [23] – [25], annexures MC–11 to MC–13

33 Ibid at [27]-[30], annexures MC-14 and MC-15

34 Exhibit 4, annexure MC-16

35 Exhibit 4 at [30]-[31], annexure MC-17

36 Ibid at [32], annexure MC–18

37 Ibid at [35], annexure MC-21

38 Ibid at [36], annexure MC-22

39 Transcript PN1270

40 Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24; see also Griffiths v The Queen (1989) 167 CLR 372 at 379; Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] and cited in Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]

41 Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836 and National Retail Association v Fair Work Commission [2014] FCAFC 118

42 Nestle Australia Ltd v Federal Commissioner of Taxation (1987) 16 FCR 167 at 184

43 Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24 at [15]

44 Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410 at 465

45 Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333, (1995) 62 IR 371 at 373

46 Briginshaw v Briginshaw [1938] 60 CLR 336

47 King v Freshmore (Vic) Pty Ltd Print S4213 at [23]-[24]

48 Sydney Trains v Gary Hilder [2020] FWCFB 1373 at [26]

49 Ibid

50 Ibid

51 Exhibit 4, Annexure MC-1, clause 3.2.5

52 [2022] FWC 711

53 Ibid at [31]

54 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

55 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [150]–[151]

56 Previsic v Australian Quarantine Inspection Services Print Q3730

57 See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151 which was dealing with the corresponding provisions in s 170CG(3)(b) and (c) of the Workplace Relations Act 199

 58   Applicant’s submissions at 4d

59 [2022] FWC 260

60 Transcript PN834