Fair Work Act 2009
s.394—Unfair dismissal

Zaki Benamar
v
Moreland City Council
(U2021/11538)

Application for an unfair dismissal remedy – employment subject to Directions of Acting Victorian Chief Health Officer – Respondent required to comply with the Directions to collect, record and hold vaccination information and to not permit unvaccinated workers to work outside the worker’s ordinary place of residence – Applicant required to attend construction sites – termination on the basis that he was unable to meet requirements of his contracted position a valid reason for termination of employment – refusal to follow a lawful and reasonable direction to provide vaccination information misconduct also a valid reason for dismissal – Dismissal not otherwise unfair.

[1] Mr Zaki Benamar has made an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to this application is Moreland City Council (the Respondent). The matter proceeded to a hearing conducted via Microsoft Teams on 19 May 2022 and the Respondent sought permission to be legally represented. Noting there was no objection from Mr Benamar, I weighed the circumstances, the submissions of the Respondent and the considerations in s.596 of the Act and granted permission for the Respondent to be represented by Mr Gary Katz. Mr Benamar gave evidence and the Respondent submitted an unsworn statement of Mr Lee Dowler, Unit Manager Transport. The statement of Mr Dowler largely refers to correspondence that passed between the parties and was not the subject of objection from Mr Benamar.

[2] Mr Benamar’s application was made within the 21-day period after the dismissal took effect, as required by s.394(2) of the Act (s.396(a)) and there is no dispute that he is a person protected from unfair dismissal because he had completed the minimum employment period, the Moreland City Council Enterprise Bargaining Agreement 2018 1 applied to him and his annual rate of earnings was less than the high income threshold (s.396(b)). Further, it is not disputed, and I am satisfied that the Respondent was not a small business employer. As such, the matter does not require consideration of whether the dismissal was consistent with the Small Business Fair Dismissal Code (s.396(c)). Finally, it was not claimed and nor does the material before me suggest the dismissal was a case of genuine redundancy (s.396(d)).

Section 385 of the Act – was the dismissal unfair?

[3] As to the circumstances set out at s.385 of the Act, there is no question or dispute that Mr Benamar was dismissed (s.385(a)). Further, as outlined above, this is not a matter that involves a small business, such that consideration of whether Mr Benamar’s dismissal was consistent with the Small Business Fair Dismissal Code (s.385(c)) is required or one where it is claimed the dismissal was a case of genuine redundancy (s.385(d)).

[4] This leaves s.385(b) and in determining whether the dismissal was harsh, unjust or unreasonable, I must have regard to s.387 of the Act:

“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.”

Factual Background

[5] Mr Benamar commenced employment with the Respondent on 18 February 2019 and was employed on a full-time basis as a Team Leader Transport Engineer at the time of his dismissal. His responsibilities involved overseeing the supervision of construction projects and undertaking inspections regarding road safety and traffic issues and they required him to attend construction sites from time to time. Mr Benamar led a team of seven engineers.

[6] 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) (PHWA) that Victoria had entered a state of emergency as a consequence of the COVID-19 pandemic. The declaration was extended numerous times over the past two years, and it covered the relevant period during which Mr Benamar’s dismissal took place. Where a state of emergency exists, the Chief Health Officer of Victoria may authorise the exercising of emergency powers, which include the issuing of directions pursuant to the PHWA. 2

Construction Directions

[7] On 17 September 2021, the Acting Chief Health Officer made the COVID-19 Mandatory Vaccination Directions (No 2), 3 which commenced at 11.59pm on 17 September 2021. These Directions made provision for the introduction of mandatory vaccination for specified workplace industries, including construction, and applied to construction site operators and any persons performing work at a construction site. These Directions were updated with versions 3 – 5. Version 5 was revoked at 11.59pm on 7 October 2021, at which time the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 6)4 commenced. These were then subsequently updated by versions 7-12. When Mr Benamar was dismissed with immediate effect on 6 December 2021, the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 13), which had been made by the Chief Health Officer and had commenced at 11.59pm on 18 November 2021, were in force. They too covered any person performing work at a construction site. I shall hereafter refer to these various versions collectively as “the Construction Directions” and where necessary, will specifically distinguish them by their version number.

[8] The Constructions Directions imposed an obligation on the principal contractor for a construction site to collect, record and hold ‘vaccination information’ about workers scheduled to perform work on a construction site. Further, these Directions provided that:

a) A worker on a construction site was any person (paid or unpaid) performing work at a construction site, including an employee of the principal contractor and any contractor engaged by the principal contractor or by a third party;

b) An unvaccinated worker was a person who had not received a dose of COVID-19 vaccine and who was not an ‘excepted person’;

c) A partially vaccinated worker was a person who had received one dose of a two dose COVID-19 vaccine and who was not an ‘excepted person’;

d) Principal contractors for construction sites were to collect, record and hold information about whether partially vaccinated workers had a booking to receive a dose of a COVID-19 vaccine by 13 November 2021 that would cause them to become fully vaccinated; and

e) Principal contractors for construction sites were also to take all reasonable steps to ensure that on and from 13 November 2021, ‘unvaccinated’ and ‘partially vaccinated’ workers did not enter, or remain on, the premises of a construction site for the purposes of working there.

[9] At all material times, a person would not be regarded as unvaccinated if they were an ‘excepted person’. From Version 6 of the Directions onwards, an ‘excepted person’ was defined to also include a person unable to receive a dose or further dose of a COVID-19 vaccine due to an acute medical illness (including where the person had been diagnosed with SARS-CoV-2). The Directions outlined the certification requirements a person had to satisfy in order for the requisite medical contraindication or acute medical illness categories to apply.

Local Government Worker Directions

[10] The COVID-19 Mandatory Vaccination (Workers) Directions (No 2) commenced at 11.59pm on 14 October 2021. They imposed obligations on employers of public sector workers, which included local government workers. When revoked at 11.59pm on 15 October 2021, these Directions were replaced the COVID-19 Mandatory Vaccination (Workers) Directions (No 3). These Directions were replaced by updated versions subsequently issued but in similar terms. When Mr Benamar was dismissed with immediate effect on 6 December 2021, the COVID-19 Mandatory Vaccination (Workers) Directions (No 8), which had been made by the Chief Health Officer and had commenced at 11.59pm on 18 November 2021, were in force. I shall hereafter refer to these various versions collectively as “the Local Government Worker Directions” and where necessary, will specifically distinguish them by their version number.

[11] The Local Government Worker Directions imposed an obligation on employers of local government workers to collect, record and hold ‘vaccination information’ about workers who were scheduled or who might be scheduled to perform work outside their ordinary place of residence after 11.59pm on 18 November 2021. Further, these Directions provided that:

a) An unvaccinated worker was a person who had not received a dose of COVID-19 vaccine and who was not an ‘excepted person’;

b) A partially vaccinated worker was a person who had received one dose of a two dose COVID-19 vaccine and who was not an ‘excepted person’;

c) Employers of local government workers were to collect, record and hold information about whether partially vaccinated workers had a booking to receive a dose of a COVID-19 vaccine by 26 November 2021 that would cause them to become fully vaccinated; and

d) Employers of local government workers were also to not permit ‘unvaccinated’ workers or ‘partially vaccinated’ workers to work for them outside of the local government worker’s ordinary place of residence on and from 26 November 2021.

Response to the Directions

[12] It is apparent that dialogue between Mr Benamar and the Respondent regarding the Construction Directions commenced in late September 2021. Some of this dialogue included email correspondence from the Respondent to Mr Benamar sent at 11.20am on 30 September 2021 in which a request was made that he confirm:

•  he was not vaccinated; or

•  he was refusing to be vaccinated; or

•  he was refusing to make a booking to be vaccinated; or

•  he was refusing to manage the safety and wellbeing of his team members, by not entering their vaccination medical records into Elumina.

[13] That correspondence concluded with advice to Mr Benamar that, depending on his response and the need for him to supervise construction-related work, the Respondent may no longer be able to engage him in his role and it may result in the termination of his employment.

[14] Mr Benamar initially queried whether the Construction Directions applied to his team. He also requested the Respondent give him a direction to have a vaccination and collect vaccination information from members of staff. 5 Mr Dowler sent an email in reply at 3.26pm on 30 September 2021, 6 outlining the following:

•  the Respondent was unable to direct him to make an appointment to receive the COVID-19 vaccination;

•  the Respondent was required to follow the Directions issued by the Chief Health Officer;

•  as the Team Leader Transport Engineer Mr Benamar was expected to collect and record evidence of the vaccination status of his direct reports; and

•  should he choose not to be vaccinated, the Respondent would be unable to permit him to attend a construction site which in turn may mean he would be unable to adequately perform the inherent requirements of his role.

[15] The email concluded with a request for Mr Benamar to confirm his intentions with respect to the COVID-19 vaccine, and provided that depending on his response, the Respondent would not be able to allow him to continue to work beyond 4 October 2021 and as such, would need to consider standing him down without pay.

[16] Mr Benamar characterised the Respondent’s various interactions with him regarding the Construction Directions and the issue of privacy in relation to the collection of vaccination information as bullying behaviour and did not respond to the final piece of correspondence the Respondent sent on 30 September 2021. On 1 October 2021, he sent an email to Jyotsna Mantrala (Occupational Rehabilitation and Wellbeing Advisor) attaching a certificate of capacity certifying Mr Benamar as having no capacity to work from 1 October 2021 to 14 October 2021 and diagnosing “work related stress, anxiety and insomnia due to forcing him to have the vaccine at work”, together with a Worker’s Injury Claim form. Mr Benamar also produced further certificates of capacity declaring he had no capacity to work on the following dates:

•  15 October 2021;

•  18 October 2021 – 15 November 2021; and

•  15 November 2021 – 15 December 2021.

[17] Contemporaneously, emails were sent by the Respondent to all staff on both 1 October 2021 and 6 October 2021. On 1 October 2021, the email made reference to the requirements imposed by both the Local Government Worker Directions and the Construction Directions. On 6 October 2021, the contents of this email included:

“…if anyone chooses not to be vaccinated, and if the State Government requires vaccination for their job, it’s a serious thing. It means you won’t legally be able to do your job. So it could result in serious steps and consequences, including proposed termination.

…

There’s information below if you’d like to review and comment on the revised draft [Vaccination] policy. Of course, our policy cannot override or make exceptions to the State Government vaccine requirements.”

[18] Mr Dowler sent a text message to Mr Benamar at 11.40am on 6 October 2021, enquiring whether he was available to discuss the next steps, options and available support and stating that such discussion would not be a disciplinary discussion. At 1.41pm, Mr Dowler sent a further text message to Mr Benamar advising that despite it not being a disciplinary meeting, Mr Benamar was welcome to have a support person in attendance and nominate a different time. When Mr Benamar sent a text message in reply declining the invitation for a discussion, Mr Dowling replied by acknowledging receipt, while also leaving the offer to meet open and alerting Mr Benamar to the Respondent’s EAP service. There was a later text message sent to Mr Benamar by Ms Olivia Wright (Branch Manager of the Respondent) on 13 October 2021 confirming that she was also available to meet with Mr Benamar and alerting him to the abovementioned email sent to staff on 6 October 2021.

[19] It is not in dispute that Mr Benamar was telephoned by the Respondent on 3 November 2021 and a voicemail was left advising him that he would be asked to show cause why his employment should not be terminated. This was followed up with a show cause letter sent to Mr Benamar via email and in hard copy form (First Show Cause Letter). 7 The First Show Cause Letter outlined requirements under the Construction Directions and also referenced the requirement in the Local Government Worker Directions for local government workers working outside the home to be vaccinated.

[20] The First Show Cause letter advised that given his “indicated refusal to comply with the Public Health Directions” Mr Benamar was being stood down with pay effective from 3 November 2021 and invited Mr Benamar to explain why his employment with the Respondent should not be terminated on the basis he was unable to meet the inherent requirements of his role. It was further outlined that if Mr Benamar received and provided proof of a COVID-19 vaccination by 10 November 2021, the First Show Cause letter would be withdrawn. On 10 November 2021, the date by which Mr Benamar was to respond, Version 12 of the Construction Directions was in force and required workers on a construction site to have already had a first dose of a COVID vaccine and a booking for a second dose by 13 November 2021. As for the Local Government Worker Directions, Version 7 was in force at that time and required local government workers to have already had a first dose of a COVID vaccine, plus a booking for a second dose by 26 November 2021.

[21] While he had until close of business on 10 November 2021 to do so, Mr Benamar did not respond to the First Show Cause Letter. This is despite it having cautioning “if you do not provide a response and evidence of compliance with the Public Health Directions within seven days, a decision about your employment will be made based on the information available. This may result in the termination of your employment without further notice.”

[22] Nonetheless, Mr Dowler sent Mr Benamar an email attaching a second show cause letter signed by Mr Brian Harris (Manager People and Safety) (Second Show Cause Letter) on 26 November 2021. The Second Show Cause Letter stated as follows:

“Dear Zaki,

FURTHER AND FINAL OPPORTUNITY TO SHOW CAUSE WHY YOUR EMPLOYMENT SHOULD NOT BE TERMINATED

I refer to the letter sent to you by Cathy Henderson (Chief Executive Officer), dated 3 November 2021.

As you will recall, Ms. Henderson’s letter informed you that you were being afforded the opportunity to provide a response to the Council with reasons as to why your employment should not be terminated on the basis that you were unable to perform the inherent requirements of your role as Team Leader Transport Engineer.

I confirm that you have not availed yourself of the opportunity to provide any response to the Council. In light of the above, the Council is affording you one final opportunity to provide it with written reasons as to why you believe your employment should not be terminated on the basis that you cannot perform the inherent requirements of your role. Such written response should be addressed and emailed to me at BHarris@moreland.vic.gov.au by no later than 4:00 p.m. on 3 December 2021. After such time, I shall then provide all relevant information to hand to Ms. Henderson, for her consideration in making her decision on the outcome of this process.

…”

[23] On 3 December 2021, the date by which Mr Benamar was to respond, Version 13 of the Construction Directions was in force and required workers on a construction site to have already had a first dose of a COVID vaccine by 2 October 2021 and a booking for a second dose by 13 November 2021 that would cause them to become fully vaccinated. As for the Local Government Worker Directions, Version 8 was in force and required local government workers to have already had a first dose of a COVID vaccine and a booking for a second dose by 26 November 2021 that would cause them to become fully vaccinated. Mr Benamar did not respond to the Second Show Cause Letter.

[24] At 6.59pm on 6 December 2021, Mr Priest sent Mr Benamar an email attaching a letter of termination of the same date, signed by Ms Henderson and entitled “Termination of Employment” (Termination Letter). It was stated in the Termination Letter that Mr Benamar had failed to respond to both the First Show Cause Letter and the Second Show Cause Letter and further, that his employment with the Respondent was terminated effective 5pm that day on the basis of Mr Benamar’s failing to meet the inherent requirements of his role as Team Leader Transport Engineer. The Termination Letter notified Mr Benamar that he would receive one week’s pay, said to be in lieu of notice. 8

Consideration

[25] I have outlined the criteria set out in s.387 of the Act above. I am under a duty to consider each of these criteria in reaching my conclusion and will do so below.

Was there a valid reason for dismissal relating to Mr Benamar’s capacity or conduct? – s.387(a)

[26] In considering whether the dismissal of Mr Benamar was harsh, unjust or unreasonable, I am required to take into account whether there was a valid reason for the dismissal related to his capacity or conduct (including its effect on the safety and welfare of other employees). The reason or reasons should be “sound, defensible and well founded” 9 and should not be “capricious, fanciful, spiteful or prejudiced”.10

[27] In the Termination Letter dated 6 December 2021, the Respondent outlined it was terminating Mr Benamar’s employment because he was incapable of meeting the inherent requirements of the role for which he had been employed. The Termination Letter also included reference to the Respondent having given a lawful and reasonable direction for employees to provide evidence of vaccination in order for it to comply with “Victorian Legislation”. In the Form F3 – Employer response to unfair dismissal application and at the hearing, the Respondent asserted Mr Benamar failed to comply with a lawful and reasonable direction to produce evidence of COVID-19 vaccination information.

[28] At the hearing, Mr Benamar did not appear to question or challenge the legality of either the Construction Directions or the Local Government Worker Directions, nor their applicability to his employment. I observe that neither of the two sets of Directions have at any stage been declared invalid by a Court and versions of them were in effect at all material times. I therefore proceed on the basis that the Directions are valid and lawful and note the Commission must discharge its functions according to law.

[29] I am satisfied both sets of Directions, and specifically the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 13) and COVID-19 Mandatory Vaccination (Workers) Directions (No 8) in force at the time of Mr Benamar’s dismissal, had application to the employment of Mr Benamar because he was a public sector worker under the Local Government Worker Directions and he was required from time to time to perform work at construction sites, as defined in the Construction Directions, such that he was subject to their application too.

[30] I have noted that Mr Benamar said that he had received the first dose of the COVID-19 vaccination on 2 December 2021, four days prior to his dismissal but that he was unable to inform the Respondent due to his stress and anxiety. However, Mr Benamar produced no evidence of having received this vaccination (or any subsequent vaccination) and nor am I satisfied he has produced medical evidence suggesting he was incapable of informing the Respondent. Regardless, even if I accept that Mr Benamar had received a first dose of a COVID-19 vaccination by 6 December 2021, he still would not have been considered even ‘partially vaccinated’ under either the Construction Directions or the Local Government Worker Directions. Further, both the Construction Directions and the Local Government Worker Directions required him to have been ‘fully vaccinated’ (i.e. to have received two doses of COVID-19 vaccination) by 26 November 2021. As things stood on the date of the dismissal, the Respondent did not “hold” vaccination information about Mr Benamar and was therefore required under the Directions to treat him as if he was ‘unvaccinated’.

[31] Version 8 of the Local Government Worker Directions required the Respondent to take all reasonable steps to ensure that its ‘unvaccinated’ workers did not work outside their ordinary place of residence and, relevantly, did not enter a construction site for the purposes of work. Further, Version 8 imposed an obligation on the Respondent to collect, record and hold vaccination information about workers who were or might be scheduled to work outside the worker’s ordinary place of residence. If the Respondent did not hold vaccination information about a worker, it was obliged to treat the worker as if the worker was ‘unvaccinated’. A refusal or failure by the Respondent to comply with a direction given to it or a requirement made of it under the Directions was an offence for which a penalty of 600 penalty units applied. 11

[32] As for Version 13 of the Construction Directions, they required the operator of a construction site at which Mr Benamar was required to attend as part of his employment to collect, record and hold vaccination information about him and to take reasonable steps to ensure he did not enter, or remain on their construction site for the purposes working there if he was unvaccinated. Again, a refusal or failure by the operator of a construction site to comply with a direction given to it or a requirement made of it under the Directions was an offence for which a penalty of 600 penalty units applied.

[33] Mr Benamar says he worked from home for a lengthy period during the periods of lockdowns and restrictions imposed by the Victorian Government, making only “very brief” visits of 10-minutes duration to site every second day which comprised only 5% of his total time working. While this may have been the case, Mr Benamar nevertheless had to be able to attend construction sites as part of his role. The duration of time Mr Benamar may have had to spend on a particular construction site is irrelevant. This is because:

•  the Local Government Worker Directions required the Respondent to take all reasonable steps to ensure that its ‘unvaccinated’ workers did not work outside their ordinary place of residence; and

•  the Construction Worker Directions required the operator of any construction site at which Mr Benamar was required to attend as part of his employment to collect, record and hold vaccination information about him and to take reasonable steps to ensure he did not enter, or remain on their construction site for the purposes of work if he was unvaccinated.

[34] Mr Benamar had to be able to attend construction sites from time to time in order to do his job. Having regard to these circumstances, I am satisfied that the Respondent had a valid reason for dismissing the ‘unvaccinated’ Mr Benamar on 6 December 2021 that was related to his capacity.

[35] As outlined above, the Respondent argued at the hearing that it had also given Mr Benamar a lawful and reasonable direction to produce ‘vaccination information’ in response to obligations imposed by the Local Government Worker Directions. In the First Show Cause Letter, the following direction was made to Mr Benamar:

“if you do not provide a response and evidence of compliance with the Public Health Directions within seven days, a decision about your employment will be made based on the information available. This may result in the termination of your employment without further notice.” 12

[36] In the recent decision in Roman v Mercy Hospitals Victoria Ltd 13 (Roman), Deputy President Colman discussed the concept of lawful and reasonable directions, as follows:

“Implied into the contract of employment is an obligation of an employee to obey the employer’s lawful and reasonable directions (Bayley v Osborne (1984) 4 FCR 141 at 145). The requirement that the direction be lawful has two dimensions. One is that the employer cannot demand that an employee act unlawfully. The other is that the direction must be within the scope of the contract of employment (see R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621-2 per, Dixon J). The latter reflects the ‘general rule ... that a contract by which a person is employed in a specific character is to be construed as obliging him to render, not indeed all service that may be thought reasonable to render, but such service only as properly appertains to that character’ (see Commissioner for Government Transport v Royall (1966) 116 CLR 314 at 322, per Kitto J).” 14

[37] In Roman, the Deputy President identified two dimensions required in order for a direction to be lawful. As to them, I am firstly satisfied, for the reasons given above, that the direction given by the Respondent in the First Show Cause Letter did not require Mr Benamar to act unlawfully. Secondly, I am satisfied the direction was within the scope of Mr Benamar’s contract of employment. The Local Government Worker Directions imposed an obligation on the Respondent to take reasonable steps to ensure Mr Benamar did not work outside of his ordinary place of residence unless he had provided ‘vaccination information’ that established he was not ‘unvaccinated’. In seeking to comply, the Respondent made a direction related to Mr Benamar’s job because his compliance or non-compliance with the direction to provide ‘vaccination information’ bore upon his capacity to perform it. I agree with the view the Deputy President expressed in Roman that a direction to an employee to do something that is a necessary condition for a state of capacity to do their job is a lawful direction. 15

[38] As to whether this direction was reasonable, I am satisfied it was. The Local Government Worker Directions imposed new regulatory requirements for Mr Benamar’s role, and the direction given by the Respondent in light of them was directed towards Mr Benamar being able to continue to do the job he was hired to do. Mr Benamar was within his rights to decline to become vaccinated and he could elect to not provide the Respondent or a given principal contractor with the information they requested from him but having regard to the test enunciated by the Full Bench in CFMMEU and Anor v Mt Arthur Coal Pty Ltd 16 as to whether a direction is reasonable, I am satisfied there was a “logical and understandable basis”17 for the direction made by the Respondent.18 I also note Mr Benamar did not fall within any of the exceptions in either the Construction Directions or the Local Government Worker Directions.

[39] I am therefore satisfied that the Respondent also had a valid reason for dismissing Mr Benamar on 6 December 2021 which involved misconduct constituted by his refusal to follow a lawful and reasonable direction to provide vaccination information.

Notification of the valid reason – Opportunity to respond to any reason related to capacity or conduct – s.387 (b) and (c)

[40] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made, 19 in explicit terms,20 and in plain and clear terms.21 In Crozier v Palazzo Corporation Pty Ltd22 a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

[41] It was flagged with Mr Benamar as early as 30 September 2021 23 that, as a worker who was required to attend construction sites and supervise construction-related work, his employment may be at risk if he did not comply with requirements under the Directions. Mr Benamar was then notified in writing of the reason for his dismissal related to him being unable to meet the inherent requirements of his role in the two “show cause” letters from the Respondent dated 3 and 26 November 2021. The direction to Mr Benamar that he provide evidence of compliance with the Directions was made in the First Show Cause Letter dated 3 November 2021. Both “show cause” letters invited Mr Benamar to respond, however he did not take the opportunity to do so.

Unreasonable refusal by the employer to allow a support person – s.387(d)

[42] This factor is not relevant in this case. There was no evidence before me of an unreasonable refusal by the Respondent to allow Mr Benamar a support person at any material time.

Warnings regarding unsatisfactory performance – s.387(e)

[43] Mr Benamar’s dismissal was not related to unsatisfactory performance and therefore this factor is not a relevant consideration in this case.

Impact of the size of the employer on procedures followed - s.387(f) and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[44] The Respondent is a large employer that did not lack dedicated human resource management specialists and expertise. Therefore, I do not consider sections.387(f)) and (g) of the Act are relevant factors in this case.

Other relevant matters – s.387(h)

[45] Section 387(h) of the Act requires the Commission to take into account any other matters it considers relevant.

[46] Mr Benamar had worked for the Respondent for nearly three years and had a good employment record. The Respondent contends Mr Benamar was not entitled to notice of termination or payment in lieu of notice because he was precluded from working out a notice period due to his own deliberate acts or omissions. It nonetheless paid Mr Benamar a one-week payment, said to have been in lieu of notice. The obligation to pay notice is outlined in s.117 of the Act. Section 123(1)(b) of the Act provides that an employer is not required to pay notice to an employee whose employment is terminated because of serious misconduct. The term serious misconduct is defined in regulation 1.07 of the Fair Work Regulations 2009. Of particular relevance are regulations 1.07(2)(a) and 1.07(3)(c) which provide that serious misconduct includes:

•  The employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment (regulation 1.07(3)(c)); and

•  Wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment (regulation 1.07(2)(a)).

[47] I have found that Mr Benamar was required to comply with the direction to provide vaccination information in order to do his job. I am also satisfied that Mr Benamar was given this direction a number of times. That he had not done so in the terms required by both the Construction Directions and Local Government Worker Directions by 6 December 2021 was a personal choice, but it had serious implications for his employment. This is because Mr Benamar’s choice was inconsistent with his contract of employment, which required him to work outside of his ordinary place of residence in order to fulfil the responsibilities of his position. It was also the case that he was given the direction a number of times and his refusal to comply was inconsistent with the continuation of his contract of employment because Mr Benamar could not perform his role as a result. Mr Benamar committed serious misconduct.

[48] Mr Benamar asserts his dismissal was unfair because the disciplinary process, and his ultimate dismissal, was carried out by the Respondent whilst he was on sick (personal/carer’s) leave and covered by a medical certificate. Mr Benamar’s contentions are that while he was on sick (personal/carer’s) leave, there was no requirement for him to perform any form of work and further, that he was not in a position to engage with the Respondent. I do not however consider Mr Benamar was on personal/carer’s leave from 3 November 2021 until his dismissal on 6 December 2021. Mr Benamar was suspended from work with pay. Further, the medical report provided by Mr Benamar 24 does not persuade me that Mr Benamar could not have communicated with the Respondent during that period and I am not persuaded that Mr Benamar lacked the capacity to send even a text message advising that he had booked a first dose of a COVID-19 vaccine and then that he had received it. I also observe that the finding of the Respondent’s WorkCover insurer, Xchanging, that Mr Benamar did not sustain an injury within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) was based on a contemporaneous independent medical report25 and that despite claiming he was unable to engage with his employer at all during his 9 week absence from work, Mr Benamar was nevertheless able to complete a comprehensive Form F2 – Unfair Dismissal application form which outlined a great deal of detail within 3 days of being notified of his dismissal.

[49] Even if Mr Benamar was on personal/carer’s leave at the time of his dismissal, I do not consider this factor prevented him from being dismissed or that it makes his dismissal unfair. As I have outlined above, even though absent from work, I am not persuaded Mr Benamar was incapable of engaging with the Respondent. Mr Benamar had been invited to do so but had given no indication that he intended to become vaccinated and nor had he provided information suggesting his circumstances had changed. As far as the Respondent would have been concerned, Mr Benamar had not provided vaccination information, the Directions therefore operated to prevent him from doing his job and there was nothing to suggest Mr Benamar’s circumstances or choices were going to change. On that basis, the dismissal of Mr Benamar on 6 December 2021 is not rendered unfair simply by virtue of his claimed entitlement to be on personal /carer’s leave at the time.

[50] Mr Benamar also argues that the Respondent breached s.340 of the Act in taking adverse action against him in the form of standing him down and terminating his employment because he exercised a workplace right through taking personal/carer’s leave. Mr Benamar further argues that the Respondent breached s.352 of the Act in dismissing him whilst he was temporarily absent from work due to illness. I am not persuaded by these contentions that the Respondent breached Mr Benamar’s workplace rights. Consistent with the observation of Deputy President Colman in Roman, 26 although dismissal is a form of adverse action, Mr Benamar was not dismissed (or stood down) because of any of the matters protected by Part 3-1 of the Act. He was dismissed because he failed to follow a lawful and reasonable direction and because he was unable to perform his job.

[51] A final observation is that the tenor of the Respondent’s communications with Mr Benamar by text, email and letter was temperate and respectful and provided Mr Benamar with the opportunity to engage in dialogue and obtain information and support. I consider Mr Benamar was given more than a reasonable opportunity to engage with the Respondent during the period from 30 September 2021 until his dismissal.

[52] Having considered and weighed the matters raised in relation to s.387(h) of the Act, I do not find that they are sufficient to render Mr Benamar’s dismissal harsh, unjust or unreasonable.

Conclusion

[53] 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 unreasonable. 27 I am satisfied the dismissal of Mr Benamar was not harsh, unjust or unreasonable. Accordingly, I find that Mr Benamar’s dismissal was not unfair. As I have found that Mr Benamar’s dismissal was not unfair, his application for unfair dismissal remedy is dismissed. Given this conclusion, I will not issue an Order.

DEPUTY PRESIDENT

Appearances:

Mr Z Benamar on his own behalf.
Mr G Katz of Meerkin & Apel for Moreland City Council.

Hearing details:

2022.
Melbourne (via Microsoft Teams).
May 19.

Printed by authority of the Commonwealth Government Printer

<PR741919>

 1   [2019] FWCA 1384 (AE502096 PR705469).

 2   Public Health and Wellbeing Act 2008 (Vic), s.200(1)(d).

 3   Digital Court Book (DCB) at p.173.

 4   DCB at p.138.

 5   DCB at pp. 205-206 and 208-209.

 6   DCB at p.207

 7   DCB at pp. 227-229.

 8   DCB at p.234.

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

 10   Ibid.

 11   DCB at p.153.

 12   DCB at p.229.

 13   [2022] FWC 711.

 14   Ibid at [30].

 15   Ibid at [31].

 16   [2021] FWCFB 6059.

 17   Ibid at [96].

 18   Transcript PN 937-949.

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

 20   Previsic v Australian Quarantine Inspection Services (AIRC, Holmes C, 6 October 1998), Dec 907/98 M Print Q3730.

 21   Ibid.

 22   (2000) 98 IR 137, 151.

 23   DCB at p.209.

 24   DCB at p.106.

 25   DCB at pp. 224 and 225.

 26   [2022] FWC 711 at [44].

 27   ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].