Fair Work Act 2009
s.394—Unfair dismissal

Application for an unfair dismissal remedy – dismissal not harsh unjust or unreasonable – application dismissed.

[1] On 4 January 2022, Mr Webber (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging he had been unfairly dismissed from his employment with Yarra Ranges Council (the Respondent) on 14 December 2021. The Applicant seeks an order for compensation and reinstatement.

[2] Conciliation of the matter before the Commission failed to achieve a resolution and consequently the matter was listed for hearing on 13 May 2022. At the hearing, the Applicant was self-represented and gave evidence himself. The Respondent was granted permission to be legally represented pursuant to s.596(2) of the Act and was represented by Mr Gary Katz of Meerkin & Apel Lawyers, who called the following witnesses to give evidence:

● Mr Hugh Thomas Atkinson – Senior P&C Business Partner

● Mr Craig William Sutherland – Coordinator, Property and Facilities Management

● Mr David Anthony Harper – Manager, Sustainable Environment and Facilities.

[3] Ms Jo Colley, who is the Respondent’s Executive Officer Property & Facilities, also appeared and gave evidence in the proceedings having been ordered to appear pursuant to s.590(2) of the Act following an application by the Applicant.

Background and evidence

The Applicant’s employment

[4] The Applicant commenced employment with the Respondent on 26 January 2014 in the role of Senior Gardener. He was covered in his employment by the Yarra Ranges Council Consolidated Agreement 2021¹(the Agreement) and was working full time at the time of his dismissal. Due to a shoulder injury previously sustained, the Applicant was reallocated to the role of Facilities Quality Assurance Officer in August 2019 2. At the time of his dismissal, the Applicant reported to Mr Sutherland who in turn reported to Ms Colley. Ms Colley reported to Mr Harper.

[5] According to Mr Sutherland the role held by the Applicant at the time of his dismissal was sometimes referred to as the “Property Officer” however the role was substantively the same and the correct title was that of Facilities Quality Assurance Officer 3 (the Role). Mr Sutherland states that the Role required the Applicant to attend the Respondent’s offices and various other external sites prior to the Covid pandemic. The key duties and responsibilities are set out in a Position Description4 and were summarised as follows by Mr Sutherland;

(a) Undertake site audit inspections of maintenance and cleaning contractors and operational and capital works according to job scopes and customer requests and ensuring OH&S compliance and work quality;

(b) Undertake routine inspections of leased Council facilities, ensuring that the facilities are safe, functional, fully maintained and being used largely in adherence with lessee’s contractual arrangements;

(c) Provide on-the-ground operational and administrative facility inspection support across the Property and Facilities Management team, where needed. This includes seasonal sporting ground on-site inspections;

(d) Prepare Emergency Procedures and plans for community facilities;

(e) Assist in supervising and monitoring the performance of maintenance and service delivery contracts;

(f) Work as a self-managed member of Council’s Facility Management team in applying sound, facility/asset management principles and techniques in accordance with Council policies;

(g) Facilitate access for customers and support customer queries on-site. In particular, have the capacity to go on-site with access or provide answers to queries on short notice, when required. 5

[6] Ms Sutherland further states that the Applicant supported the Halls and Venues team and was required to undertake inspections of venues both before and after events. This required him to visit nineteen facilities which are regularly hired out to the community 6. The purpose of these site inspections was to report on the standards and cleanliness of the facilities and over the course of 2021 this element represented approximately 30% of the Role7.

[7] Following the onset of the Covid pandemic and the imposition of ongoing lockdowns and restrictions between March 2020 and October/November 2021 the Applicant received a “permitted worker” permit which enabled him to undertake work outside his normal residence, as required by the Role 8. According to Mr Sutherland, in late 2021 the Halls and Venues team responsibilities conducted by the Applicant became the major focus for the Applicant and comprised 80-90% of the Role9. The Applicant agreed that he undertook site inspection visits during lockdown periods.

[8] Mr Sutherland states that in April 2021, an Internal Services Review (the Review) was undertaken by Ms Colley, the purpose of which was to review the organisational position of the service, including resource levels, skills dependence, outsourcing oversight, investment settings for assets and customer and stakeholder engagement. One of the recommendations to arise out of the Review was to implement a new organisational structure. The Applicant participated in the consultation process for the Review 10. The Review was approved by Council in April 2021 and was due to be fully implemented by April 202211.

[9] One recommendation to arise from the Review was that the Applicant’s Role be made permanent. As the Applicant had been occupying the Role on a temporary basis Mr Sutherland and Ms Colley encouraged him to apply for the Role on a permanent basis. Mr Sutherland states that the Applicant did not apply for the permanent Role 12. Mr Sutherland further states that following the Review the Applicant was encouraged to apply for other roles with the Respondent, for which he had the required skills and knowledge, including the Building Operations Officer Role13. The Applicant conceded that he did not apply for the roles as he was unvaccinated and the roles, by reason of office/site attendance needs, required Covid vaccination.

[10] The Applicant states that in late September/ early October 2021 his father was diagnosed with a terminal illness. He further states that Ms Colley, in consultation with his Manager Mr Sutherland, told him that he could work from home on a long term basis (from Benalla where his parents live) and that required site inspections could be managed in his absence by other team members. The Applicant claims that Ms Colley’s words were to the effect that “Don’t worry about inspections, we will look after them, you just look after the family.” 14 As a consequence of this conversation, the Applicant states he then set himself up working remotely in Benalla.

[11] Ms Colley agreed that she had a telephone conversation with the Applicant and although she could not recall the exact date, she believed it was in late September or early October 2021. She agreed that the Applicant advised her of his father’s terminal illness and that she discussed with the Applicant his working more flexibly so that he could provide care and support to his father who lived in Benalla. Ms Colley also agreed that she would have been supportive of the Applicant in the conversation and that it was likely she said words to the effect that the Applicant should look after his family and that other staff would cover the site inspections. She clarified under cross-examination that this was not said on the basis of it being an indefinite arrangement but rather on a short term basis. She rejected that she had told the Applicant that he could work remotely on a long term basis as she was aware of conversations occurring between the Applicant and his supervisor Mr Sutherland regarding his working arrangements.

[12] The Applicant also states that the Respondent has a Flexible Future policy which encourages staff to work from home and adopt other innovative ways of working 15. He further states that he worked from home for approximately 20 months during pandemic lockdowns in 2020 and 2021 and that tasks were regularly shared across the whole team which enabled team members to cross-skill and assist each other. He also states that during the Review referred to by Mr Sutherland in his evidence, Mr Sutherland encouraged him to apply for the Property and Facilities Contract Manager position and advised him that the role could be done remotely.16

[13] In response to the matters raised by the Applicant, evidence was adduced from the Respondent’s witnesses as follows;

● Mr Sutherland agreed that the Applicant performed some of his duties from home during 2020 and 2021 but as a “permitted worker” he was able and was in fact required to perform work outside of his ordinary residence during lockdowns in that period 17.

● The Respondent agreed to cover the Applicant’s site inspections on a temporary basis while he was caring for his father, but not on the basis of it being permanent or on a semi-permanent basis. Both Mr Sutherland and Ms Colley strongly resisted the Applicant’s claim that they had agreed to his remote working arrangements being on an indefinite or semi-permanent basis.

● Mr Atkinson stated that the Respondent’s flexible work policy is no longer in place. It is now set out in the Agreement and relevantly precludes an employee working from home 100% of the time. Clause 5.9(c) of the Agreement makes clear that all staff are required to spend some time in the office and clause 5.9(d) makes clear that employees working remotely 100% of the time will not be allowed 18.

● Mr Atkinson agreed that working from home on a temporary basis was not precluded by the terms of the Agreement, subject to line manager agreement being secured.

● Mr Sutherland agreed that he had encouraged the Applicant to apply for the Property and Facilities Contract Manager role but rejected that he had told the Applicant it could be worked remotely as he states he was aware of the Agreement terms that precluded an employee from working from home 100% of the time 19.

● The Respondent’s Covid-19 Vaccination Policy came into operation in December 2021 which made it a condition of employment for employees to be vaccinated to fill any role with the Respondent 20.

The mandatory vaccination directions

[14]  On 16 March 2020, the Victorian Minister for Health issued a declaration pursuant to s.198(1) of the Public Health and Wellbeing Act 2008 (Vic) (the PHW Act) that Victoria had entered a state of emergency as a consequence of the COVID-19 pandemic. The declaration has been extended several times in the period since, including on 18 November 2021 and remained in force until 11.59pm on 15 December 2021. The Public Health and Wellbeing Amendment (Pandemic Management) Act 2021 came into operation on 8 December 2021 and now regulates matters pertaining to the COVID-19 pandemic.

[15] On 14 October 2021, the COVID-19 Mandatory Vaccination (Workers) Directions (No. 2) (the CHO Directions) were issued by Victoria’s Acting Chief Health Officer pursuant to s.198(1) of the PHW Act and replaced earlier issued directions. The key effect of the CHO Directions in respect of the Respondent was that it was compelled to not permit defined workers to work outside their normal place of residence unless they were vaccinated within specified time frames or had an exemption for a medical contraindication. The COVID-19 vaccination dose deadline dates, while varying according to particular occupations, relevantly for the present matter were 22 October 2021 for a first dose and 26 November 2021 for a second dose. The Applicant as a ‘public sector worker’ 21 was a ‘defined worker’ for purposes of the CHO Directions.

[16] The CHO Directions were revoked and replaced by successive iterations which have now been replaced by pandemic orders that are in substantially the same form as the CHO Directions. 

The Applicant’s dismissal 

[17] On 23 September 2021, the Respondent’s Chief Executive Officer, Ms Tammi Rose, sent an email to all staff in which she provided a Covid Update 22. A focus of the email was on the announcements made by the Victorian government in respect of the closure of the construction industry for a two week period from 20 September 2021, the requirement that construction workers be vaccinated by specified dates and how that impacted some employees of the Respondent. The email also highlighted announcements by the Victorian government that indicated vaccination mandates would be broadened beyond the construction sector shortly. Employees were invited to provide their vaccination status information to the Respondent in anticipation of the broadening of the vaccination mandates.

[18] On 5 October 2021, the Respondent’s Director of Corporate Services, Mr Andrew Hilson, emailed all staff with an update on the directions issued by the Chief Health Officer and the implications for employees. Directions in place at the time required ‘permitted workers’ (permit holders) to receive their first vaccination dose by 15 October 2021 and their second dose by 26 November 2021. At the time of this email the Applicant was a ‘permitted worker’ 23.

[19] On 14 October 2021, the Applicant held a “catch up” with Mr Sutherland during which Mr Sutherland states the Applicant requested to be permitted to work from home in Benalla on a temporary basis to care for his father who was unwell. Mr Sutherland states that he informed the Applicant that he would need to discuss the request with the People and Culture team 24. For his part, the Applicant denies that the issue of his temporarily working remotely from Benalla was discussed in the meeting with Sutherland as he was already working remotely from there following his conversation with Ms Colley. Rather, he says the focus of the conversation was on why he could not continue to work remotely given his personal circumstances and why he was being threatened with dismissal.

[20] On 14 October 2021, Mr Atkinson who is the Respondents Senior People and Culture Business Partner, also spoke with the Applicant to discuss the Applicant’s reported vaccine hesitancy. Mr Atkinson states that during the phone conversation a number of matters were discussed including;

● the Applicant’s concern at the long term effects of the vaccine;

● the Applicant’s belief that Covid was no worse than the flu;

● the Applicant’s belief that vaccines were unsafe;

● the Applicant denounced the Victorian government for introducing vaccine mandates;

● claims by the Applicant that he was being coerced by the Respondent to receive a Covid vaccination which was denied by Mr Atkinson; and

● Mr Atkinson encouraged the Applicant to speak with a medical practitioner. 25

[21] The Applicant claims that Mr Atkinson also told him during their telephone conversation on 14 October 2021 that he was to be stood down effective immediately. He says he then contacted Mr Sutherland that evening who told him not to worry, he should continue to perform his work on the following Monday and that he (Mr Sutherland) would sort it out and reverse the stand down. The Applicant conceded that he did not receive a letter confirming his stand down at that point although he later received one on 24 November 2021. He also agreed that no reference to the claimed stand down was made in Mr Sutherland’s email to him the following day which is set out below at [24].

[22] Mr Atkinson rejected that he advised the Applicant during their conversation on 14 October 2021 that he was to be stood down immediately. He stated under cross-examination that he did not have the authority to do so as such authority lay with Mr Harper. He further stated that he explained to the Applicant during their conversation the process that would be followed that may result in the Applicant being stood down, which ultimately took place on 24 November 2021. Mr Harper also confirmed that the Applicant was not stood down until 24 November 2021 and that up until that point, the Respondent had been seeking to manage employees’ vaccination status having regard to role requirements in the period before the Respondent’s return to the office in late November 2021.

[23] Mr Sutherland appeared to give evidence supportive of the Applicant’s version of events in that he recalled the Applicant contacting him following the Applicant’s conversation with Mr Atkinson on 14 October 2021. He says that he told the Applicant to continue to perform his duties given the need for completion of certain tasks which could be undertaken remotely. He conceded that while he understood that the Applicant had been stood down, he did not have the authority to reverse a stand down despite the Applicant’s belief he had done so. Nothing turns on the conflict in evidence over whether the Applicant was or was not stood down by Mr Atkinson during their conversation on 14 October 2021. That is so because of the subsequent email sent to the Applicant by Mr Sutherland on 15 October 2021 which is set out below which clarified that he could continue to work remotely for a brief period of time

[24] On 15 October 2021, Mr Sutherland later sent an email 26 to the Applicant advising him that People and Culture had confirmed that he would be permitted to work from home in his current position for the next few weeks or until such time as the Property and Facilities team resumed on-site operations. The email relevantly stated as follows;

“Hi Lincoln,

Further to our discussion yesterday, P&C has confirmed that you will be permitted to work from home in your current position for the next few weeks, or until such time as the Property and Facilities Team resumes on-site operations – whichever is sooner.

Given you have not received a COVID vaccine at the time of writing and have advised that you are not intending to receive one, you be unable to fulfil the requirements to:

● Be a permitted worker per current health directives.

● The face-to-face/on-site component of your role as a Property Auditing Officer – an inherent requirement of your current position.

To reiterate some key points from Andrew Hilson’s email to all staff today regarding work changes:

If you do not meet the vaccine requirements, then to be clear:

● Effective immediately, any permitted worker permit you hold is invalid, and hereby rescinded;

● You are not permitted to leave home for the purpose of attending work until further notice;

● YRC will not permit you to attend or remain on Council premises until further notice;

● Whether you are able to temporarily work in a modified way from home, or will be stood down onto your accrued leave next week, will depend on your role and the conversations you are having with your leaders and P&C representatives. If this is you, we will write to you directly in the coming days with further information.

Lincoln, your current stance on the vaccine will undoubtedly begin to affect your role at Council in the very near future. As your leader, I encourage you to speak to your GP, obtain the facts about the vaccine and to consider how your current stance will affect your employment at Yarra Ranges Council.

Please reach out to me if you have any questions. I’d be happy to chat to you about this further.

…”

[25] While claiming that Ms Colley had previously told him he could work from home on a semi-permanent basis in Benalla to care for his father, the Applicant concedes that he did not raise that earlier conversation (with Ms Colley) with Mr Sutherland when he received the above email from Mr Sutherland on 15 October 2021. The email made clear that the remote working arrangement was only temporary which was at odds with the claimed conversation the Applicant held with Ms Colley. The Applicant was unable to explain why he had not raised his earlier conversation (with Ms Colley) following his receipt of the email on 15 October 2021 from Mr Sutherland which directly contradicted the earlier claimed assurance from Ms Colley. The Applicant also conceded that at no stage prior to his dismissal did he raise in any meetings or correspondence the assurance he claimed to have received from Ms Colley regarding his working remotely from Benalla.

[26] Between 18 October and 29 October 2021, Mr Sutherland states that the Applicant was on personal leave and that during this period, the Respondent’s halls and venues were re-opening on-site which required many tasks to be undertaken to ready the halls and venues for re-opening 27.

[27] On 24 October 2021 Mr Sutherland called the Applicant to check on him in response to which the Applicant advised that he was ‘unfit for work’ due to stress until 1 November 2021. The Applicant was reminded that he needed to provide a medical certificate in support of the absence 28.

[28] On 15 November 2021, the Applicant sent an email to Mr Sutherland, copying in Mr Atkinson, in which he declined to participate in a proposed meeting involving Mr Atkinson on the basis that during his earlier phone conversation with Mr Atkinson on 14 October 2021, he felt that Mr Atkinson’s behaviour had been bullying, insensitive and condescending. The Applicant indicated he would be open to a meeting with Mr Sutherland and another People and Culture staff member 29. Mr Atkinson responded to the Applicant’s email and in doing so denied the Applicant’s claims regarding his behaviour but agreed to not to attend the proposed meeting lest his attendance disrupt the “important next steps conversation”30. The Applicant subsequently replied to Mr Atkinson that “we can agree to disagree” but thanked Mr Atkinson for arranging for a colleague to attend in his place at the proposed meeting31.

[29] On 17 November 2021, Mr Hilson sent a further email to all staff of the Respondent providing a Covid update 32. The email relevantly stated as follows in respect of staff vaccination requirements;

“…

Vaccinations required for all employees

As I have mentioned previously, Council is formalising a COVID vaccination policy that states that all Yarra Ranges Council employees, councillors and volunteers are to be fully vaccinated (or have a medical exemption) as a condition of employment (or engagement). This position comes with the requirement that all employees will be required to spend a portion of your working week in the office (or with your team in your normal work locations) – once restrictions allow (expected from next week). The reason for this position is that we strongly believe there is enormous value in working together in the same space, with our own teams and with other colleagues. It is really important for all of us to collaborate with one another, get to know our colleagues, and contribute to the culture of this great organisation. This is achieved much more effectively in-person.

For clarity, for employees who have not been double vaccinated by the 26 November deadline – as soon as they are required by their leader to attend the office or an in-person team environment (meetings, events, field work) they will not be able to fulfil the inherent requirements of their role. If this is you, then specific arrangements will urgently need to be discussed with your Manager. Unfortunately, this may include being stood down on leave or without pay until confirmation of double vaccination or valid medical exemption is provided. You can update your status on The Zoo and please remember to fill out the form again if your status has since changed.

I want to remind anyone who hopes to ‘wait it out’ and continue to work from home and remain unvaccinated – this won’t be supported by our organisation. The State Government’s health advice on this point is clear – these requirements will be in place for some time to come. The only reason employees can return to the office without a vaccination is if they provide proof of a medical exemption in line with the Australian Technical Advisory Group on Immunisation (ATAGI) via the Medical Exemption Form. I acknowledge again that this is a very difficult and challenging issue for some employees, and our CEO and ELT are sympathetic. But we have made these decisions in the best interests of all of our employees and our wider community.

…”

[30] On 18 November 2021, an on-line meeting was held at which Mr Sutherland, Ms Janine Ahles (People and Culture Business Partner) and the Applicant attended. An email confirming the matters discussed in the meeting was subsequently sent to the Applicant by Ms Ahles on 19 November 2021 33 and relevantly stated as follows;

“…

It was reconfirmed to you that it is at the Directions of the Chief Health Officer and Organisational policy that requirements regarding the COVID 19 vaccination are met by all Council employees by 24 November 2021 – the day our offices and work sites officially re-open.

You reconfirmed that it is your position not to receive the COVID 19 Vaccination and that your position has not changed. It was explained to you that by 24 November, you will be required to demonstrate either:

● Full vaccination with a currently available covid-19 vaccine and provide proof of vaccination.

● A formal medical exemption as per the Australian Immunisation Register Immunisation Medical Exemption form.

You were advised that should you not meet the above requirements by 24 November 2021, you will be stood down on your accrued Annual leave and receive a letter confirming this outcome on the same day. If you have exhausted your Annual Leave, you will be stood down on Leave without Pay. The stand down will last approximately 2 weeks. On or around 8 December 2021, you will be requested to attend a meeting with your leader and a HR representative, whereby you will be asked for an update on your COVID 19 vaccination status. Should your position regarding vaccination remained unchanged, and you continue not to have a valid medical exemption, it is likely the outcome of this meeting will lead to the termination of your employment.

During the meeting you asked a question regarding access to any accrued Long service leave upon termination. I confirm that as you have been employed at Yarra Ranges Council for over 7 years, that you would be entitled to be paid out any long service leave accruals upon termination with Yarra Ranges Council.

…”

[31] On 24 November 2021, the Respondent’s Manager, Mr David Harper, sent an email to the Applicant to which he attached a letter from Mr Jarrod Reid (Manager People and Culture) 34 (the Stand Down Letter). The Stand Down Letter advised the Applicant that he was being stood down effective immediately for failing to provide his vaccination information to the Respondent, which meant he was not capable of fulfilling the inherent requirements of his Role. The letter acknowledged that despite various discussions with the Applicant during October and November 2021, he remained unwilling to be vaccinated. The letter set out the next steps as follows;

“…

Next Steps:

We will be in touch within the course of the next week to outline the next steps. Due to the seriousness of the impacts of COVID and the CHO directions, I need to foreshadow that one possibility which we will need to talk about is the termination of your employment.

This is on the basis that a failure to comply with the CHO direction means you are not legally capable of performing the inherent requirements of the role you're employed by Council to do and Council is not legally allowed to let you perform your role.

If at any time you reconsider your position regarding the vaccine, and wish to provide evidence of:

1. Your vaccination status; and/or

2. A booking in your name to receive a vaccination;

you should contact your leader, or Mac March (People & Culture Administrator) on 92946890.

…”

[32] On 10 December 2021, a further letter 35 (the Show Cause Letter) was sent to the Applicant by Mr Harper setting out the relevant history and the current status of the Applicant’s circumstances. The letter also extended an invitation to the Applicant to attend a meeting on 13 December 2021 to respond to the contents of the letter and provide input to the Respondent’s decision on his ongoing employment.

[33] On 13 December 2021, a meeting was held involving Mr Harper, Deb Hamilton (Senior People and Culture Business Partner), the Applicant and his support person during which meeting the Applicant was given an opportunity to respond to the contents of the Show Cause Letter. A file note record of the meeting 36 was made by Ms Harper which relevantly stated as follows;

“…

● Meeting commenced at 3pm

● David opened the meeting by thanking all for attending and induced me by name and title, as Lincoln and I had not met before.

● Lincoln was asked to respond to David’s letter dated Friday 10 December 2021.

● Lincoln said he was surprised last week when Hugh Atkinson (Senior People & Culture Business Partner) told him that termination could be potential outcome. I responded that prior to the two letters sent to Lincoln, there had been multiple emails from council regarding the vaccination mandate and requirements to comply

● Lincoln said that he requested, but Council had not provided him with the MSDS (Material Safety Data Sheet) for the vaccinations. I responded that Council was unable, and not required, to provide this information and suggested this may be sourced from either the Chief Health Officer or Department of Health websites.

● Lincoln advised that he had not changed his position on COVID vaccinations - that he would not be vaccinated for personal reasons and understood the consequences. I said I respected his views and understood his difficult decision, however council would need to make a decision about his employment -that next step would be for David and me to seek Director and CEO approval on the decision, which would take a day or two, and then a letter would be sent to Lincoln to confirm the outcome. I noted that the termination would be effective immediately and he’d be paid out his notice period of five weeks’ in lieu of notice.

● Lincoln wanted to give feedback on the previous letters provided to him - he didn’t like the letter stating, “serious misconduct.” I responded that I could understand reading that could be confronting and the wording can be reviewed, however the fact that he is unable to leave his home to conduct council duties (as all staff are required to do) he was unable to meet the inherent requirements of the job; and refusing to follow a lawful and reasonable direction amounted to serious misconduct.

● David thanked Lincoln for his service and pointed out that it was not related to his performance and that it was a shame about the consequences of being unvaccinated but was a government mandate council was to comply with.

● Meeting concluded at 3:25pm”

[34] On 14 December 2021, the Applicant was sent a letter from Mr Harper confirming the termination of his employment with immediate effect 37 (the Termination Letter). After recounting the history of the matter, including the various correspondence and meetings with the Applicant, the letter confirmed the Respondent’s decision in the following terms;

“…

Final Decision

The directions from the CHO are clear and unfortunately are not discretionary. Because your position requires onsite attendance and you are incapable of performing your job as a Property Auditing Officer as you are employed to perform, and insofar as Council has directed you to comply with the CHO direction, you have failed to comply with a reasonable and lawful direction.

This letter regrettably confirms Council’s decision that your employment with Yarra Ranges will cease on the basis that you are incapable of performing the inherent requirements of your Property Auditing Officer position; and for failing to comply with a reasonable and lawful direction. Your employment will terminate effective today, 14 December 2021.

You will be paid five (5) weeks’ payment in lieu of notice and any outstanding annual leave and long service leave accrual and entitlements. A summary of your final pay will be mailed to you shortly afterwards.

…”

[35] Witnesses for the Respondent each agreed that they were not aware of any discussions held on whether there were alternate duties that could have been undertaken by the Applicant that would have allowed him to work remotely for an indefinite period as an alternative to his dismissal. While conceding that it was theoretically possible to construct a role that could be performed remotely 100% of the time, Mr Sutherland confirmed that all roles of the Respondent required some office or site attendance and that no role could be worked remotely for 100% of the time for an indeterminate period.

Has the Applicant been dismissed?

[36] A threshold issue to determine is whether the Applicant has been dismissed from his employment. Section 386(1) of the Act provides that the Applicant has been dismissed if:

(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or

(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.

[37] Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.

Initial matters

[38] Under section 396 of the Act, the Commission is obliged to decide the following matters before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; and

(d) whether the dismissal was a case of genuine redundancy.

[39] Relevant to the determination of the preliminary matters I am satisfied that; 
 

● the Applicant was dismissed on 14 December 2021 and filed his unfair dismissal application on 4 January 2021, that latter date being within 21 days of the date of his dismissal; 
 
● at the time of the Applicant’s dismissal the Respondent employed 890 employees and is therefore not a small business employer within the meaning of s.23 of the Act; 
 
● the Applicant commenced employment with the Respondent in January 2014 and at the time of his dismissal had been employed for a period of over 7 years, that period being in excess of the minimum employment period of 6 months; 

● the Applicant was covered in his employment by the Agreement and was on an annual salary of approximately $74,499 per annum; and 

● the Applicant was not dismissed due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise. 

[40] Having considered each of the initial matters, I am satisfied that the application was made within the required period in subsection 394(2), the Applicant was a person protected from unfair dismissal, the small business fair dismissal code does not apply, and the dismissal was not a genuine redundancy. I am now required to consider the merits of the application. 

Was the dismissal harsh, unjust, or unreasonable?

[41] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust, or unreasonable, the Commission must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct – s 387(a)?

[42] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”³⁸ and should not be “capricious, fanciful, spiteful or prejudiced³⁹.” However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it were in the position of the employer⁴⁰.

[43] The Respondent was required to ensure that on and from 15 October 2021, unvaccinated ‘workers’ as defined under the CHO Directions that it employed, were not permitted to perform work outside their normal place of residence. The first dose deadline date was extended to 22 October 2021 in circumstances where an employee had a vaccination booking prior to 22 October 2021. The second dose deadline was 26 November 2021. Compliance of the Respondent with the CHO Directions was a statutory requirement imposed on the Respondent and other employers in Victoria, of which there was no discretion available to the Respondent to ignore. A breach of the CHO Directions exposes an employer to fines in excess of $100,000. 

[44] The Applicant readily and properly concedes that the Respondent was required to comply with the CHO Directions, that the Role that he held prior to his dismissal required him to attend sites and perform work outside his normal residence, which he was unable to do because of his decision to not receive a Covid vaccination. He also conceded in his evidence during cross examination that he did not apply for any other roles following the Review because he understood those roles also required him to be vaccinated.

[45] Notwithstanding the Applicant’s concession that he was unable to perform the full scope of the Role because of his vaccination status, he nonetheless contends that the Respondent lacked a valid reason to dismiss him because of the assurance he had received from Ms Colley in late September or early October 2021 that he would be able to work remotely from Benalla on a long term basis. He further contends that the Respondent ought to have provided alternate duties that would have allowed him to work remotely for an indefinite and indeterminate period, that being until the CHO Directions no longer applied.

[46] Turning firstly to the Applicant’s claim that he was advised by Ms Colley that he would be able to work remotely from Benalla on a long term basis. I accept that there was a telephone conversation between the Applicant and Ms Colley in late September or early October 2021, although neither Ms Colley nor the Applicant could recall the exact date the telephone conversation occurred. Ms Colley conceded that the Applicant advised her in their conversation of his father’s illness, that she agreed that he should focus on his family and that colleagues could perform his site inspection duties. It is in respect of the time period that the remote working arrangements would apply that the evidence of the Applicant and Ms Colley diverges. The Applicant states that Ms Colley agreed to it being on a semi-permanent basis which Ms Colley rejects. While no specific period appears to have been agreed, I prefer Ms Colley’s evidence that it was a short term arrangement for the following reasons.

[47] Firstly, the discussion between Ms Colley and the Applicant occurred against a background of the CHO Directions coming into operation and discussions occurring more generally with staff of the Respondent regarding working arrangements as the Respondent planed a return to the office in November 2021. Ms Colley, who I found to be a witness of credit having regard to the concessions she readily made, was aware of these discussions and specifically referenced discussions between the Applicant and his supervisor Mr Sutherland.

[48] The Applicant spoke with Mr Sutherland on 14 October 2021 and claims that the issue of his seeking to work remotely was not raised in that discussion as he claimed to have already obtained the approval of Ms Colley. That evidence is directly contradicted by Mr Sutherland who confirmed the detail of their discussion of 14 October 2021 in an email sent on the 15 October 2021 41. That email specifically referenced their discussion of 14 October 2021 and that “P & C has confirmed that you will be permitted to work from home in your current position for the next few weeks, or until such time as the Property and Facilities Team resumes on-site operations – whichever is sooner”. I prefer Mr Sutherland’s recollection of the conversation as it is supported by the content of the 15 October 2021 email which the Applicant did not subsequently challenge.

[49] The Applicant could not explain, having received an email from Mr Sutherland on 15 October 2021 which placed a short term time frame on his approved remote working arrangement, why he did not object to that short term time frame condition in circumstances where it was contradicted by the agreement he claimed to have reached with Ms Colley that the remote working arrangement would be semi-permanent. Nor could the Applicant explain why in all subsequent communication with the Respondent, both written and in meetings, at no stage did he raise the alleged content of the phone conversation held with Ms Colley in late September or early October 2021. If the Applicant believed he had been provided with approval to work remotely for an indefinite period by Ms Colley, it seems implausible that he would not have raised that with Mr Sutherland when Mr Sutherland subsequently confirmed on 15 October 2021 that the remote working arrangement would only apply for a brief period, that being a matter of a few weeks. Nor did the Applicant go back to Ms Colley after receiving Mr Sutherland’s email on 15 October 2021 and raise with her that the claimed remote working arrangement agreement he had reached with her had been superseded by a much shorter time frame.

[50] The fact that the Applicant did not revert back to Ms Colley after the 15 October 2021 email from Mr Sutherland, or challenge Mr Sutherland’s email of the 15 October 2021 or at any subsequent point raise the claimed content of his conversation with Ms Colley, leads me to conclude that Ms Colley did not agree to the Applicant’s request (if made) to work remotely over the long term. I am satisfied that the evidence discloses that she agreed to a temporary arrangement, the details of which were subsequently confirmed by Mr Sutherland on 15 October 2021.

[51] I am satisfied that there was no agreement reached between the Applicant and Ms Colley for the Applicant to work remotely on a semi-permanent basis. The email of 15 October 2021 from Mr Sutherland and all subsequent communication from the Respondent to the Applicant made that abundantly clear. Also made abundantly clear in all communication from the Respondent to the Applicant on and after 15 October 2021 was the requirement for the Applicant to be vaccinated by the second dose deadline of 26 November 2021, that date aligning with the Respondent’s return to office date of 24 November 2021.

[52] Turning now to the further contention of the Applicant that the Respondent ought to have provided him with alternate duties that would have allowed him to work remotely for an indefinite period. The following may be said of that submission, which I reject.

[53] Firstly, the Respondent bore no legal obligation to find the Applicant alternate duties simply because he had elected not be vaccinated and as such could not perform the full range of duties required in the Role. This was not a case where the Applicant was unable to fulfil the inherent requirements of the Role by reason of an injury or illness, in which circumstances it would have been appropriate for the Applicant to consider whether he could continue to perform the Role with reasonable modifications. The Applicant had elected not to be vaccinated in circumstances where he understood it was a requirement in order to perform any role at the Respondent. This was made clear by his admission that he did not apply for any other roles because he knew he needed to be vaccinated to do such roles.

[54] Secondly, a key requirement of the role was to undertake site inspections, which the Applicant conceded he performed during lockdown periods in 2020/2021. For the Applicant to have been spared that aspect of the Role would have required a colleague or colleagues, who had been vaccinated, to perform those duties. To have accommodated the Applicant’s vaccination decision by constructing an alternate role that allowed him to work remotely for 100% of the time for an indefinite period would have required a reallocation of other employee’s duties and imposed on those employees tasks that ought to have been properly performed by the Applicant. While Ms Colley was content for this to occur on a short term basis, the Respondent regarded it as unreasonable in the longer term. I agree, particularly in circumstances where at the time of the Applicant’s dismissal there was no certainty as to how long the CHO Directions or the replacement pandemic orders would remain in place. Significantly, as at the date of the hearing those orders remain in place.

[55] Thirdly, putting aside the site inspection tasks, the Respondent had communicated to all employees that a return to the office would occur in late November 2021 and that working remotely 100% of the time would not be allowed when lockdown restrictions were lifted. It was a requirement of the Respondent that all roles required some office attendance following easing of lockdown restrictions in late 2021. That is notwithstanding that the Covid lockdown periods in 2020 and 2021 had prevented that occurring over an extended period. The fact that lockdowns compelled remote working arrangements during 2020 and 2021 does not mean such remote working arrangements can be expected or demanded by employees on an ongoing basis once there was an easing of pandemic restrictions.

[56] While greater ongoing workplace flexibility may be one product of the Covid pandemic, that is not to say an employer is prevented from requiring some workplace attendance with the relaxation of lockdown and other pandemic restrictions. I am satisfied there are sound operational reasons why office and/or site attendance was essential in the case of the Applicant’s performance of the Role. I also accept there are also sound reasons relating to maintaining engagement with staff, which in the Respondent’s view is best done in person rather than by video link.

[57] In the present case, the Applicant’s Role required site attendance, thereby requiring him to work outside his normal place of residence. Moreover, the Respondent’s return to the office in November 2021 required all employees to spend some time in the office. Such a requirement was both reasonable in my view and also lawful having regard to the terms of the Agreement. In fact, the Agreement did not allow for working remotely 100% of the time for an indeterminate period, which was what the Applicant was seeking.

[58] As earlier stated, the Applicant and the Respondent were covered by the CHO Directions. This meant that for the Applicant to be permitted to attend the Respondent’s workplace and/or perform his duties outside of his normal place of residence, he was required to be vaccinated in accordance with those directions by the dates referred to above at [15]. He was not vaccinated and had communicated clearly to the Respondent that he would not be getting vaccinated.

[59] Having regard to the above circumstances, I do not accept that it would have been reasonable for the Respondent to have waived for an indefinite period, the requirement that the Applicant be ready, willing and able to carry out the full range of his duties. Having declined to be vaccinated by the second dose deadline of 26 November 2021 and having made clear that he intended not to be vaccinated at all, there was simply no certainty as to when the Applicant would have been capable of fulfilling the inherent requirements of his Role or any other role with the Respondent. This was so given the uncertainty as to how long the CHO Directions and replacement pandemic orders would remain in place.

[60] By the Applicant’s decision to decline to receive a vaccination within the required timeframe, he was unable to fulfil the inherent requirements of the Role he had been engaged in at the time of his dismissal. I am consequently satisfied in the circumstances that the Applicant’s inability to fulfil the inherent requirements of the role for which he was employed founds a valid reason for his dismissal related to his capacity. This weighs in favour of a finding that the dismissal was not unfair.

Notification of the valid reason – s.387(b)

[57] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,⁴² and in explicit⁴³,plain and clear terms⁴⁴.

[61] The Applicant was notified in various correspondence from the Respondent regarding Covid vaccination requirements including; an email from Mr Sutherland on 15 October 2021, an email from the CEO on 17 November 2021, the Stand Down Letter of 24 November 2021 and the Show Cause Letter of 10 December 2021. He also attended meetings with the Respondent on 18 November 2021 and 13 December 2021 at which the vaccination requirements were reinforced along with the potential consequences of not being vaccinated by the required dates. The ground for the proposed termination of the Applicant’s employment was set out in the Stand Down Letter and Show Cause Letter, that being he was unable to fulfill the inherent requirements of the Role due to his vaccination status. 

[62] I am satisfied that the Applicant was notified of a valid reason for his dismissal before the decision was made to terminate his employment. This weighs in favour of a finding that the dismissal was not unfair. 

Opportunity to respond to any reason related to capacity or conduct – s.387(c)

[63] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment⁴⁵.

[64] The opportunity to respond does not require formality and the factor is to be applied in a common-sense way to ensure the employee is treated fairly⁴⁶. Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to the concern, this is enough to satisfy the requirements.⁴⁷

[65] Following on from earlier correspondence from the Respondent to the Applicant and meetings held with him, the Show Cause Letter sent to the Applicant on 10 December 2021 stated that the Respondent was considering the termination of the Applicant’s employment due to the CHO Directions and his inability to perform the inherent requirements of the Role because of his vaccination status. The Applicant attended and was able to provide his views to the Respondent on the proposed termination of his employment at a meeting held on 13 December 2021.

[66] I am satisfied that the Applicant was afforded an opportunity to respond to the reasons relied on for his dismissal. This weighs in favour of a finding that the dismissal was not unfair.

Support person – s.387(d)

[65] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

[66] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”48

[67] The Applicant was provided with the opportunity to be accompanied by a support person in the discussions held with the Respondent regarding his dismissal. In the circumstances, I regard this factor as a neutral consideration. 

Warnings regarding unsatisfactory performance – s.387(e)

[68] The dismissal did not relate to unsatisfactory performance. This factor is therefore not relevant in the circumstances.

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

[69] The Respondent’s Form F3 - Employer Response indicates that at the time of the Applicant’s dismissal it employed approximately 890 employees. There is no evidence before me, and nor did either party contend, that the Respondent organisation’s size impacted on the procedures followed by it in dismissing the Applicant. This factor weighs neutrally in my consideration.

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

[68] The evidence in this matter indicates that the Respondent had access to the services of an in-house human resources specialist. This factor weighs neutrally in my consideration.

Other relevant matters – s.387(h)

[69] At the time of the Applicant’s dismissal, he was providing care and support for his terminally ill father in Benalla. That in my view is a relevant consideration in circumstances where the Applicant had sought to work remotely for a period of time, in part to provide that care and support. Sadly, the Applicant’s father has now passed away.

[70] The Applicant’s personal circumstances leading up to and at the time of his dismissal were undoubtedly difficult. That was acknowledged by Ms Colley when she discussed those personal circumstances with the Applicant in late September or early October 2021. Consideration was extended to the Applicant by allowing him to work remotely for a brief period of time during which period the Applicant’s site inspection duties were undertaken by colleagues. That flexibility was an appropriate response in the circumstances as it enabled the Applicant to work remotely up until he was stood down on 24 November 2021, that date coinciding with the Respondents’ staff return to the office and the second dose deadline of 26 November 2021.

[71] For the reasons previously outlined above, I do not accept it would have been reasonable for the Respondent to allow an open ended remote working arrangement given the Applicant had made a conscious decision not to receive the vaccination and the impact it would have had on colleagues of the Applicant who would have been required pick up the duties the Applicant was unable to perform.

[72] I am satisfied that the Respondent provided appropriate support to the Applicant in the period between early October 2021 and 24 November 2022 in that he was able to work remotely while other staff covered the site inspection requirements of the Role. That flexibility provided to the Applicant also assisted him deal with his personal circumstances. While the Applicant may believe that his personal circumstances warranted greater consideration, that would have placed the Applicant in a favourable position relative to other staff who had elected to be vaccinated and in circumstances where there was no certainty when the CHO directions and pandemic orders would cease to apply.

[73] I am not persuaded that the Applicant’s personal circumstances weigh in favour of a finding that the dismissal was harsh and thereby unfair.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust, or unreasonable?

[74] I have made findings in relation to each matter specified in s.387 of the Act as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust, or unreasonable²⁹.   

[75] As set out above, I am satisfied that a valid reason for the Applicant’s dismissal, related to his capacity, has been established and that the dismissal process followed by the Respondent was procedurally fair. The dismissal was not related to the Applicant’s performance and the size and capacity of the Respondent did not impact on the procedures that it followed and as such these matters weigh neutrally in my consideration of whether the dismissal was unfair. No other matters raised by the Applicant weigh in favour of a finding that the dismissal was unfair. 
 
[76] It follows from the above, having considered each of the matters specified in s.387 of the Act, that I am satisfied that the dismissal of the Applicant was not harsh, unjust, or unreasonable because there was a valid reason for the dismissal and no other factors weigh in favour of a finding that the dismissal was unfair. 

Conclusion

[77] Not being satisfied that the dismissal was harsh, unjust, or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the Act.

[78] The application is dismissed. An Order will be separately issued giving effect to my decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR741685>

Appearances:

L Webber, Applicant.

G Katz for the Respondent.

Hearing details:

2022.

Melbourne (by Microsoft Teams):

May 13.

1 AE514112.

 2   Exhibit R1, Witness Statement of Mr Craig Sutherland, dated 6 May 2022, at [4].

 3   Ibid.

 4   Ibid, Annexure CS-1, Position Description Quality Assurance Officer.

 5   Exhibit R1 at [8].

 6   Ibid at [9].

 7   Ibid at [10].

 8   Ibid at [12].

 9   Ibid at [13].

 10   Ibid at [15]-[16].

 11   Ibid at [17].

 12   Ibid at [18].

 13   Ibid at [19].

 14   Exhibit A1, Witness Statement of Mr Lincoln Webber at [1].

 15   Ibid at [2].

 16   Ibid at [2]-[6].

 17   Exhibit R1 at [28(a)].

 18   Exhibit R2, Witness Statement of Mr Hugh Atkinson, dated 6 May 2022 at [14].

 19   Exhibit R1 at [28].

 20   Ibid.

 21   Clause 9(24) of CHO Directions – Worker-specific definitions.

 22   Exhibit R2, Annexure HA-1.

 23   Ibid.

 24   Exhibit R1 at [20]-[21].

 25   Exhibit R2 at [7].

 26   Exhibit R1, Annexure CS-2.

 27   Exhibit R1 at [24].

 28   Ibid at [25]

 29   Exhibit R2, Annexure HA-2

 30   Exhibit R2, Annexure HA-3

 31   Exhibit R2, Annexure HA-4

 32   Exhibit R2, Annexure HA-5

 33   Exhibit R1, Annexure CS-4

 34   Exhibit R3, Witness Statement of Mr David Harper, Dated 6 May 2022 at [7], Annexure DH-1, Stand Down Letter dated 24 November 2021.

 35   Exhibit R3, Annexure DH-2, Show Cause Letter, dated 10 December 2021.

 36   Exhibit R3, Annexure DH-3, File note of meeting held 13 December 2021

 37   Exhibit R3 at [10], Annexure DH-4, Termination Letter dated 14 December 2021.

38 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

39 Ibid.

40 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

 41   Exhibit R1, Annexure CS-2.

42 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

43 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

44 Ibid.

45 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

46 RMIT v Asher (2010) 194 IR 1, 14-15.

47 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

48 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].