Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Joshua Piggott
v
Qantas Airways Limited
(U2022/2896)

Application for an unfair dismissal remedy

[1] Mr Joshua Piggott (the Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy (the Application) in relation to his dismissal from employment with Qantas Airways Limited (the Respondent/Qantas). The Application was lodged with the Commission on 7 March 2022.

[2] I conducted a Directions Hearing in this matter on 27 April 2022. At the Directions Hearing, directions were issued for the filing of materials by the parties (the Directions), and the matter was listed for hearing on 23 June 2022.

[3] The parties complied with the Directions. In particular:

•  On 12 May 2022, the Applicant filed an Outline of Submissions, and a statement of the Applicant;

•  On 26 May 2022, the Respondent filed an Outline of Submissions, and witness statements of Dr Peter Prasad, Head of Occupational Health, Qantas Medical, Ms Elen Burt, Head of Industrial Relations, Group Policy and Planning of the Respondent, Ms Jessica Farah, Head of Industrial Relations – Group Litigation the Respondent, Mr Matthew Franzi, Executive Manager Group Safety & Security of the Respondent, and Mr Peter Litsakos, Manager Operations Planning and importantly the Applicant’s direct Manager; and

•  On 7 June 2022, the Applicant filed an Outline of Submissions in Reply, and a statement of the Applicant.

[4] At the hearing on 23 June 2022, the Applicant was represented by Mr J Shaw of the Australian Workers’ Union, and the Respondent was represented, with permission, by Mr N Burmeister of Counsel. The conduct of the proceedings was greatly assisted by the presence of such experienced representatives, and only actual issues requiring determination were agitated and tested. Only the Applicant, Dr Prasad and Mr Litsakos were cross-examined. In relation to the balance of the Respondent’s evidence, the statements of Ms Burt, Ms Farah and Mr Franzi were all read without any objections and without any of those deponents being required for cross-examination.

Background Facts

[5] The Respondent is an Australian airline that conducts international and domestic airline operations through a number of business divisions and other associated businesses. It employs around 20,000 employees.

[6] The Applicant was a Senior Planner Allocations, based at the Integrated Operations Centre (the IOC) at the Qantas Campus in Mascot, New South Wales. The Applicant was one of only two persons employed as Senior Planner Allocations. The Applicant had been employed by the Respondent since 5 February 2003. His most recent letter of appointment provided:

“16. QANTAS GROUP POLICIES AND PROCEDURES

You are required to comply with applicable Company and/or Qantas Group Policies and procedures as determined or varied from time to time. These policies and procedures do not form part of this agreement and are not intended to be contractually binding on the Company and/or the Qantas Group. Any breach of these policies and procedures may result in you being disciplined and, where appropriate, dismissed. A copy of applicable policies including the Standards of Conduct Policy is available from your manager/supervisor or can be accessed through the Qantas Group Intranet site. It is your responsibility to keep up to date and seek information regarding relevant policies and procedures including completing any appropriate training.”

[7] The Applicant was part of the Operations Planning team, a critical operation support function of Qantas’ flying programme. That team operates seven days a week and is structured into two teams, with approximately six people in each team. The teams are generally made up of one Senior Planner Allocations and four Event Planners who all report to the Production Interface Controller. The Operations Planning team is co-located within the IOC and works closely with a number of other teams. They are all physically co-located in the IOC.

[8] Working from home arrangements in Operations Planning were in place for a total of eighteen months over a two-year period. The arrangements did not involve everyone in planning. However, in 2021 between April and October most of the Operations Planning team worked from home. The Applicant worked from home for a period of six months, and was encouraged to take home relevant hardware to do so.

[9] Dr Prasad’s witness statement dealt with the health risks associated with the COVID-19 virus. While Dr Prasad was cross-examined, that examination was brief and dealt only with the reduced chance of exposure to COVID 19 by working from home, and relaxations of various restrictions by the Respondent in the first half of 2022. His evidence was not otherwise put in issue, and addressed:

(a) The transmissibility, health risks, and the profound impacts of the COVID pandemic on the community since early 2020;

(b) The transmissibility of COVID-19;

(c) The risk to any person infected with COVID-19 developing serious illness, which may lead to death; and

(d) That by 9 April 2022, the COVID-19 pandemic had caused more than 497 million known infections and 6.17 million known deaths.

[10] Dr Prasad noted that since the start of the pandemic, the Respondent had progressively implemented a broad range of control measures designed to reduce the likelihood of its workforce and customers becoming infected with the virus. Those control measures help reduce the likelihood that someone may become infected with the virus, however, they did not provide any protection from the serious health consequences (including death) associated with infection. Vaccination was and is the only practicable control available that ameliorates the consequences of infection.

[11] Dr Prasad agreed in cross-examination that reducing the number of employees in the workplace, including employees working from home, would also be an effective way of reducing the spread of the virus. 1

[12] On 19 September 2021, the Qantas Group COVID-19 Vaccination Policy (the Policy) was finalised, and implemented on 20 September 2021. A copy was distributed by email to all

Employees, and that email summarised the various changes that had been made to the Policy as a result of matters arising out of consultation before the Policy was finalised.

[13] As set out in clause 2.2 of the Policy, its core rationale is to provide employees and customers with consistency of protection against COVID-19 in the workplace, and to be a reasonable additional control for employees against exposure to COVID-19 and limiting transmission from employees to others. The Policy is based on the recognition in clause 2.2 that:

“Vaccination is our best possible protection against the adverse impacts of COVID-19, including:

(a) the potentially serious health impacts;

(b) on operational continuity and our business;

(c) disruptions to the essential service we provide to the community; and

(d) its spread in circumstances where:

(i) our Employees have contact and interact with each other and/or large

volumes of people, some of them vulnerable, on a regular basis; and

(ii) our Employees, customers and aircraft constantly travel across interstate

and international borders.”

[14] The Policy required that employees be fully vaccinated with an ‘Approved COVID-19 Vaccine’, and to provide evidence of having done so by a particular date specified in the Policy. Relevantly, that compliance date for ‘Category A’ employees (which included the Applicant) was generally 15 November 2021. All employees (including the Applicant) were directed to comply with the requirements in the Policy by the relevant compliance date (the Direction). Clause 3.13(c) of the Policy made clear the potential disciplinary consequences of failure to comply with the Direction.

[15] In October 2021, the Applicant applied for a temporary exemption under the Policy. The non-medical reason for the exemption was based on the Applicant being a single father and primary carer of his children. The exemption application, which was declined on 27 October 2021, was as follows:

“I am single father hp (sic) is the prime (sic) carer of his children. I am currently working from home as per NSW Health orders. I have been advised these health orders still are mandatory where applicable and able to do so. I do not work in front line and believe I am only being put into the November criteria based of that I am a holder of a red ASIC card. I do not require to go airside at this present time so am happy to hand back my red ASIC and receive a blue access card.”

[16] At that time the Respondent offered the Applicant a temporary exemption from compliance with the Policy (until 24 November 2021), subject to the Applicant signing and returning a copy of the exemption outcome letter. As the Applicant never signed and returned the exemption outcome letter his compliance date remained 15 November 2021.

[17] On 27 October 2021, a meeting was held between the Applicant, Mr Litsakos and other representatives of the Respondent regarding the above exemption application. The Applicant expressed his disagreement with various aspects of the Policy, and that he did not want to become vaccinated. The Applicant did not attend work again thereafter.

[18] On 28 October 2021, the Applicant sent Qantas a letter from his doctor, Dr Anthony Nigro, stating that Applicant “is/was unfit for normal work” until 25 November 2021 because

he had been diagnosed with a “Medical Condition”.

[19] On 16 November 2021 Mr Litsakos telephoned the Applicant as the compliance date for the Policy had expired the day before. A conversation in the following terms occurred:

[20] On 17 November 2021, Mr Litsakos sent the Applicant a welfare check email. In response, the Applicant applied for a flexible working arrangement allowing to him working exclusively from home.

[21] On 23 November 2021, the Respondent sent the Applicant a “review of employment” letter asking that he show cause as to why his employment should not be terminated for his failure to comply with the Policy, and the vaccination direction.

[22] On 24 November 2021, the Applicant sent the Respondent another letter from Dr Nigro stating that the Applicant “is/was unfit for normal work” until 23 December 2021 because he had been diagnosed with “Medical Condition.”

[23] On 25 November 2021, Mr Litsakos emailed the Applicant to enquire whether, in addition to being unfit for his normal work, he was unfit to participate in the review of employment process. The Applicant responded the next day by telephoning Mr Litsakos. During that call, the following conversation occurred:

[24] On 28 November 2021, the Applicant sent Mr Litsakos an email regarding his request to take stress leave and advising that he would "not be accessing [his] work emails any further". At 6.31pm that evening, the Applicant sent Mr Litsakos and email in the following terms:

“Hi Peter,

In regards too (sic) Friday mornings phone call regarding the statement in your previous email “participate in this process”.

During the phone call you were unable to give further in-depth information regarding this statement.

I am notifying you that as per my medical document submitted to you on 24 November 2021 that has given clear direction that I am unfit and require stress leave for the period of the medical certificate.

My entitled/accrued leave balances will be used to support this time period required.

I am happy to discuss what type of “accrued leave” should be utilized (sic) by phone call, however all of these distressing emails & text messages telling me to access my work emails are causing me further undue stress to what I am currently working through. I will not be accessing my work emails any further as the extra stress and pressure is mounting and hindering my progress.”

[25] On 2 December 2021, Mr Litsakos sent an email to the Applicant in which he attached a letter addressed to Dr Nigro, seeking his medical opinion regarding the Applicant’s ability to participate in the review of employment process and whether any reasonable adjustment could be made to the process to accommodate the Applicant. Various emails followed that request but no medical opinion was received from Dr Nigro.

[26] On 22 December 2021, Mr Litsakos wrote to the Applicant regarding his request for a flexible working arrangements. That email was as follows:

“Hi Josh

Thank you for your email seeking a flexible working arrangement (FWA). At this stage, we are unable to review your FWA request as you are currently non-compliant with the Group’s COVID-19 Vaccination Policy and therefore stood aside from work on full pay whilst we review your employment.

I understand this can be a difficult process and a difficult time for you, so you might find it helpful to access the confidential counselling service that is available, free of charge, through our EAP provider – the contact number is [phone number].

Please do not hesitate to contact me if you have any questions.”

[27] On 23 December 2021, the Applicant sent the Respondent another letter from Dr Nigro, advising that Applicant “is/was unfit for normal work” until 23 January 2022, because he had been diagnosed with “Medical Condition.”

[28] On 24 December 2021, Mr Litsakos emailed the Applicant and explained that the purpose of Qantas’ request of Dr Nigro was to confirm whether the Applicant’s unfitness for “normal work” extended to the employment review process. Mr Litsakos requested a response by 5 January 2022. The Applicant did not respond.

[29] On 21 January 2022, the Applicant sent the Respondent a further letter from Dr Nigro which again opined that the Applicant “is/was unfit for normal work” until 23 February 2022 because he had been diagnosed with “Medical Condition.”

[30] Later on 21 January 2022, Mr Litsakos wrote to the Applicant and provided him with a “final” opportunity to, by 27 January 2022, either:

(a) provide medical confirmation that he was not fit to participate in the

employment review process; or

(b) respond to the “review of employment” letter.

[31] On 24 January 2022, the Applicant responded by email to Mr Litsakos in the following terms:

“Peter,

I have informed you that I am on stress leave as per my medical certificate that was submitted to you 21 Jan 2022. I am feeling absolutely victimised and bullied by you through this whole period of me requiring stress leave dating back to late October 2021.

Being you are my manager you have a liability to ensure the welfare of your staff, you have not displayed this.

Instead you continue to traumatize me with your threatening emails.

I have submitted to you a medical certificate, just like any other staff member has when they require medical time off.

Now unless you are questioning the legitimacy of my medical certificate (which if you are I would like that in writing), you have no right to question me or my doctor & you have no right to think you can over ride my medical certificate and force me into your so called “employment review”.

This behaviour being displayed by my manager is causing further undie stress to me in my life in a time where I have stated numerous times that I am on stress leave.”

[32] On 9 February 2022, Mr Litsakos emailed the Applicant with an overview of the correspondence regarding the review of employment process, and provided one final opportunity for him to provide the information by no later than 14 February 2022.

[33] Thereafter, Mr Litsakos decided that the appropriate course was to terminate the Applicant’s employment for his failure to comply with Policy and the Direction. On 16 February 2022, he invited the Applicant to a meeting on 18 February 2022, at which he would communicate his decision. The Applicant “tentatively” accepted the invitation to attend the meeting, but eventually did not attend. Later that day, Mr Litsakos sent the Applicant an email attaching a termination letter. The Respondent terminated the Applicant's employment due to the fact that he had not adhered to a direction to be vaccinated for COVID 19 and as a consequence had not supplied a vaccination certificate The Respondent paid the Applicant $10,116.62 in lieu of 4 weeks notice.

[34] At the time of the termination of the Applicant’s employment he had 171 accrued days Long Service Leave, and 387 hours accrued Annual Leave.

[35] On 30 April 2022, the NSW Government relaxed the vaccination requirements for Airport quarantine and transport workers. The Respondent has also relaxed certain requirements, such as the requirement to wear masks on planes from June 2022, and vaccinations not being required for domestic travel. 2

Applicant’s Submissions

[36] The Applicant noted that he made a personal decision not to obtain the COVID vaccine.

He described himself as not anti-vaccinations, but he had concerns about the degree of testing that has occurred regarding all of the Covid vaccines.

[37] The Applicant submitted that there were alternatives to terminating his employment and that it was unnecessary to do so. His situation could have been managed without the need to risk exposure to COVID.

[38] The Applicant's employment relationship with the Respondent was a long term. His nineteen-year employment record was good, and his performance was strong. This was demonstrated by his promotions, his positive feedback and the rewards granted to him.

[39] The Applicant submitted his evidence demonstrated that, unlike other roles in the Respondent's business, his work could be done from home. That was happening during the lockdown in 2021. Despite the complexities working from home, the Applicant did so for six months continuously. Other members of his team worked from home at different times over an eighteen-month period. There was no reason as to why such an arrangement could not continue.

[40] The Applicant's evidence was that even when he worked at Sydney Airport, many of his interactions were electronic. He dealt with people across Australia and necessarily had to use phone and email. The Applicant contended that allowing him to work from home was an alternative to dismissal. It would have also meet the Respondents' concerns regarding COVID exposure.

[41] Any responsibility that the Respondent claimed to have regarding vaccination would only be short term, and changes in the NSW Government's Health directions were foreseeable.

[42] The Applicant's evidence gave details of his ill health. His physical health caused him

mental health problems. The direction to be vaccinated caused his mental health problems to be exacerbated. It was for these reasons that the Applicant obtained medical evidence of his illness and sought to take leave, specifically Long Service Leave (LSL).

[43] The Applicant noted that his application for an exemption was declined on the basis that it was unnecessary. However, the Applicant had provided medical certificates, and should have

been allowed to take leave. He was entitled to decline to have his doctor fill out the Respondent’s questionnaire as he was entitled to privacy regarding his personal medical matters.

[44] As the Applicant applied for LSL he need not have supplied a medical certificate. He has a right to take such leave under the Long Service Leave Act (NSW) (the LSL Act). 3 The Applicant had a significant amount of annual leave and LSL that could be taken at no prejudice to the Respondent. This was clearly an alternative open to the Respondent rather than terminating the employment relationship.

[45] The fact that the Applicant chose to apply for LSL rather than personal leave was to the Respondent's benefit. It meant that personal leave would not be taken, and their LSL leave liability reduced.

[46] The Applicant made further attempts to resolve the matter by submitting an Individual Flexibility Arrangement (IFA) application and seeking an exemption from the requirement to be vaccinated. Both of these options were declined. In fact, all reasonable attempts to look at alternatives to resolving this matter were declined by the Respondent.

[47] In light ofthe Applicant’s good employment record, the decision to terminate his employment was harsh. It is noteworthy that the vaccination requirement no longer exists and the fact that it was for a limited period of time was foreseeable.

Respondent’s Submissions

[48] The Respondent summarised the Applicant’s contentions as being that his dismissal was unfair because:

(a) Qantas should have, instead of requiring him to comply with the Policy, allowed the Applicant to take indefinite leave;

(b) Qantas should have, instead of requiring him to comply with the Policy, allowed the Applicant to work from home indefinitely; and

(c) The Applicant’s apparent ill health, which coincided with his being informed that he would not be exempt from the requirements of the Policy, precluded Qantas from acting on his non-compliance.

[49] The Respondent submitted that, as set out in clause 2.2 of the Policy, its core rationale is to provide employees and customers with consistency of protection against COVID-19 in the workplace, and to be a reasonable additional control for employees against exposure to COVID-19, by directing vaccinations. The Policy is based on the recognition in clause 2.2 that:

“Vaccination is our best possible protection against the adverse impacts of COVID-19, including:

(a) the potentially serious health impacts;

(b) on operational continuity and our business;

(c) disruptions to the essential service we provide to the community; and

(d) its spread in circumstances where:

(i) our Employees have contact and interact with each other and/or large

volumes of people, some of them vulnerable, on a regular basis; and

(ii) our Employees, customers and aircraft constantly travel across interstate

and international borders.”

[50] The Applicant was a ‘Category A’ employee for the purposes of the Policy. The Category A compliance date was 15 November 2021, and the Applicant did not comply with the Policy. Directing compliance with the Policy was within the scope of the employment contract between the Respondent and the Applicant. The vaccination direction in the Policy was lawful and reasonable.

[51] The Respondent submitted that it was not obliged to allow the Applicant to take indefinite leave. The Respondent submitted that the request for LSL was never raised by the Applicant during the review of employment process, nor was it put forward by the Applicant as a reason why his employment should not be terminated for failure to comply with the Policy.

[52] In any event, the Applicant was one of only two Senior Allocation Planners. It was not reasonably practical for him to have been allowed to take leave indefinitely. The Applicant was effectively requesting an indefinite period of leave, and he was doing so without any assurance that the leave would not become permanent.

[53] The Respondent submitted that it was not obliged to allow the Applicant to work from home indefinitely. When a Senior Planner Allocations employee is working from home (or otherwise away from the IOC) it may be the case that critical issues that arise from time to time cannot be resolved as effectively in a timely manner. While a temporary working-from-home arrangement was in place during the height of the pandemic, it was only manageable at that time because there was almost no international flying, and the domestic network was scaled back substantially (which is no longer the case).

[54] The Respondent further submitted that this reason was not put forward by the Applicant as a reason why his employment should not be terminated for failure to comply with the Policy. Further, the request for a flexible working arrangement by the Applicant would have had the effect that he worked from home exclusively and indefinitely.

Applicant’s Reply Submission

[55] While the Applicant accepted the Respondent may have had concern arising from the Applicant failing to follow the Policy, in light of the history of his employment it could not found a loss of trust and confidence in the Applicant.

[56] It was open to the Respondent to allow the Applicant to take leave. This would not have prejudiced them in any way. In fact, it would have relieved the Respondent of some of their leave liability. The Applicant was not stood down for an act of misconduct. He made a personal health choice, and if he sought to take leave as opposed to being stood down, there is no operational reason as to why an application should be declined. It is an entitlement he should be able to take, and the Respondents evidence gives no satisfactory reason as to why the application for leave was declined.

[57] Clauses 25.1.11(b) and 29.1.6 of the Qantas Airways Limited (AWU, AMWU, CEPU) Enterprise Agreement outline the requirement for evidence requirements for Sick Leave. Particulars of the illness in medical certificates are not required, merely that medical evidence be supplied.

[58] The Applicant submitted that it was no significant barrier to working from home. Tasks identified by the Respondent were small tasks that the Applicant could have received assistance in. The Respondent pointed to the need for collaboration for operational reasons. However, the Applicant made it clear that he dealt with personnel at multiple airports throughout Australia as well as Auckland airport in New Zealand. These interactions are not face to face. They are done over the phone, email or via team meetings, and many of the interactions between Sydney airport employees are not face to face.

Consideration

(a) Preliminary Matters

[59] I am satisfied that the Applicant is protected from unfair dismissal. Further the dismissal

was not a redundancy and the Respondent is not a small business such that the Small Business

Fair Dismissal Code does not apply. Further, the application was made within the time limits

prescribed by the Act.

[60] I am also satisfied that the Applicant was dismissed from his employment.

[61] In determining if the Applicant was unfairly dismissed it is necessary to determine if his

dismissal was harsh, unjust or unreasonable. Section 387 of the Act sets out those matters

to be considered by the Commission.

[62] Section 387 of the Act states:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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.”

(b) Valid Reason for the Dismissal

[63] To be a valid reason, the reason for the dismissal should be sound, defensible or well

founded and should not be capricious, fanciful, spiteful or prejudiced. However, the

Commission will not stand in the shoes of the employer and determine what the Commission

would do in the same position.

[64] In Sydney Trains v Gary Hilder 4 (“Hilder”) the Full Bench summarised the well-established principles for determining such matters5:

“The principles applicable to the consideration required under s 387(a) are well

established, but they require reiteration here:

(1) A valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced.

(2) When the reason for termination is based on the misconduct of the employee the Commission must, if it is in issue in the proceedings, determine whether the conduct occurred and what it involved.

(3) 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 (because, for example, it involved a trivial misdemeanour).

(4) For the purposes of s 387(a) it is not necessary to demonstrate misconduct 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).

(5) Whether an employee’s conduct amounted to misconduct serious enough to give rise to the right to summary dismissal under the terms of the employee’s contract of employment is not relevant to the determination of whether there was a valid reason for dismissal pursuant to s 387(a).

(6) The existence of a valid reason to dismiss is not assessed by reference to a legal right to terminate a contract of employment.

(7) The criterion for a valid reason is not whether serious misconduct as defined in reg 1.07 has occurred, since reg 1.07 has no application to s 387(a).

(8) 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) will 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.

(9) Matters raised in mitigation of misconduct which has been found to have occurred are not to be brought into account in relation to the specific consideration of valid reason under s 387(a) but rather under s 387(h) as part of the overall consideration of whether the dismissal is harsh, unjust or unreasonable.”

[65] The Respondent submitted that the Applicant’s refusal to be vaccinated as required by the Policy constituted non-compliance with the policy and the Respondent’s Standards of Conduct Policy. Nonetheless, the Applicant received a payment in lieu of notice.

[66] The Applicant did not question the validity of the Policy. The Applicant’s position was expressed final submissions as follows: 6

“This is a clear situation where he [the Applicant] has, you know, made a personal health decision.  We don't question that Qantas has undertaken, and your Honour may have noted, Qantas has undertaken a risk assessment process and they've done so based on scientific methods and they have their rationale for that.  But what we do say is that there were alternatives open to Qantas, consistent with the conclusions that they found that could have allowed them to continue the employment relationship.”

[67] As noted above, the Respondent summarised the Applicant’s contentions as being that his dismissal was unfair because:

(a) The Respondent should have, instead of requiring him to comply with the Policy, allowed the Applicant to take indefinite leave;

(b) The Respondent should have, instead of requiring him to comply with the Policy, allowed the Applicant to work from home indefinitely; and

(c) The Applicant’s apparent ill health, which coincided with his being informed that he would not be exempt from the requirements of the Policy, precluded the Respondent from acting on his non-compliance.

[68] The contentions raised by the Applicant go to matters to be considered under s.387(h) regarding harshness, rather than the issue of valid reason. A substantial and wilful breach of an employer’s policy will usually constitute a valid reason for dismissal, 7 and I find such breach occurred in this matter establishing valid reason.

(c) Procedural Fairness

[69] While no issues of procedural fairness were raised by the Applicant, I formally note that the Respondent:

(a) Notified the Applicant of the reason for dismissal (s.387(b)); and

(b) Gave him the opportunity to respond to any allegations (s.387(c)), and allowed him to have a support person present at relevant times (s.387(d)).

[70] The matter did not involve any concerns about the Applicant’s performance and no warnings had been issued in this regard (s.387(e)), and neither party submitted that the size of the Respondent’s enterprise or its access to human resource management specialists or expertise was likely to impact on the procedures followed in effecting the dismissal.

(d) Other Relevant Matters

[71] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant. Having found that there was a valid reason for dismissal, there are several other matters to be taken into account in making an overall assessment of the fairness of the dismissal.

(i) Leave in Lieu of Dismissal

[72] As noted above, at the time of the termination of the Applicant’s employment he had 171 accrued days of Long Service Leave, and 387 hours accrued Annual Leave. Quite simply, had the Applicant been allowed to take all the leave owing to him he would still be on leave, and employed.

[73] The initial attractiveness of such a course was dispelled by the evidence of Mr Litsakos, which I accept. The Applicant was part of the Operations Planning team, that operates seven days a week and is structured into two teams, with approximately six people in each team. The teams are generally made up of one Senior Planner Allocations (of which the Applicant was one) and four Event Planners who all report to the Production Interface Controller. Due to those staffing arrangements, it was not feasible for the Applicant to go on such an extended period of leave.

[74] Indeed, the practical effect of the Applicant’s absence was able to be assessed due to the Applicant’s period of leave prior to dismissal. As Mr Litsakos noted:

“Since the beginning of Mr Piggott’s absences from work following the direction that he be vaccinated his Senior Planner Allocations rule has been backfilled by a combination of roster variations and support from the Operations Scheduling team and the Event Planning team. There are some members of the Operations Scheduling team and the Event Planning team who have been cross-skilled in order to be abel to provide leave coverage for the Senior Planners Allocations. This has driven a high volume of overtime, which has impacted the team. This additional workload has had a significant impact on my team and has put more stress on the business.”

[75] I also note that it is not correct to say that the Applicant unequivocally applied for such leave. In his Submission in Reply, the Applicant stated:

“Whilst we understand that the email sent by the Applicant was ambiguous, his evidence demonstrates that he intended to take Long Service Leave. In any case the Respondent could have clarified the request.”

[76] The possible use of leave to delay the necessity to comply with the Policy was not a significant consideration prior to the Applicant’s dismissal, and nonetheless did not present a feasible alternative to compliance with the Policy.

(ii) Work from Home in Lieu of Dismissal

[77] As with the issue of leave, the nature of the Operations Planning team, and the way in which it operated, precluded the exclusive use of work from home arrangements to delay the need to comply with the Policy.

[78] The Operations Planning team is located within the IOC and works closely with a number of other teams. All of the Operations Planning team is physically located in the IOC by design to be able to collaborate, communicate and make effective and collective in person decisions on operational issues in a timely manner. I accept that the best way informed decisions can be achieved in a time critical manner is by being involved with other stakeholders. The Applicant’s role was critical to that process.

[79] While the Applicant did work from home for a period of around five to six months, that was at a time when there was no international flying, except for repatriation flights, and the Respondent was operating a greatly reduced domestic network. With the resumption of services, I find that it would never be operationally feasible for the Applicant to work from home in lieu of complying with the Policy.

(iii) The Applicant’s Ill Health

[80] The Respondent specifically submitted that it did not dispute the validity of the medical certificates relied upon by the Applicant. 8 Rather, it focussed on the Applicant’s failure to engage with the process of asking the Applicant’s Doctor whether the Applicant was able to participate in the review of employment process.

[81] I consider that it was unreasonable for the Applicant, and his Doctor, to fail to respond to the request for information regarding participation in the review of employment process. None of the information requested required the disclosure of confidential medical information, and I note that the time for compliance with that request was extended four times. It is abundantly clear that the Respondent was simply seeking information regarding the Applicant’s ability to participate in the review of employment process.

[82] The Applicant chose to take a non-responsive approach to communications from the Respondent regarding his employment. He avoided contact, and eventually failed to attend the meeting on 18 February 2022, at which he would be advised of the Respondent’s decision regarding his employment, despite having tentatively accepted the invitation to attend that meeting. By that conduct, the Applicant was the architect of his own demise.

Conclusion

[83] I have made findings in relation to all matters 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 and therefore an unfair dismissal.

[84] Overall, I do not find that the dismissal of the Applicant was harsh, unjust or unreasonable. While I note the Applicant had significant, blemish free, service with the Respondent, and he had recently received effective sole custody of his children, I do not consider those factors weigh to any extent against the valid reason for his dismissal, and the objectively and medically sound rationale that underpins the Policy.

[85] The Application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr J Shaw, for the Applicant.
Mr N Burmeister of counsel for the Respondent.

Hearing details:

2022.
June 23
Sydney (via videoconference)

Printed by authority of the Commonwealth Government Printer

<PR741628>

 1   Transcript PN 491 to 501.

 2   Transcript PN 518 to 528.

 3   Section 4(1).

 4   [2020] FWCFB 1373.

 5   Ibid at [26]

 6   Transcript PN 770.

 7   B, C and D v Australian Postal Corporation t/a Australia Post (2013) 238 IR 1, at [36].

 8   Transcript PN 860.