Fair Work Act 2009
s.394—Unfair dismissal

Margarita Smith
v
Compass Group Defence Hospitality Services Pty Ltd
(U2021/12163)

Application for an unfair dismissal remedy – where the Applicant was not unfairly dismissed

[1] Ms Margarita Smith (the Applicant) contends she was unfairly dismissed by Compass Group Defence Services Pty Ltd (the Respondent), for whom she had worked since 25 May 2009. She seeks an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). In short, the Applicant was terminated from her position in the Respondent’s Contract Catering and Hospitality service at the Respondent’s operations at the RAAF Defense Base after failing to comply the Respondent’s direction to receive at least one COVID-19 Vaccination dose by 30 November 2021. The events leading to the Applicant’s termination are not in dispute. Rather, the Applicant contends that the unlawfulness of the Respondent’s conduct which gives rise to her unfair dismissal claim.

[2] As the matter could not be resolved by conciliation, directions were issued for the filing of material and a hearing was listed for 24 April 2022, at which the Respondent sought to be represented. This was opposed by the Applicant on the grounds that the Applicant was at ‘financial disadvantage’ and could not afford representation. The Respondent made submissions to ss596 (2)(a) & (c). I am required to consider whether permission ought to be granted under s.596 of the Act. Given the volume of evidence and submissions provided by the parties and the nuanced legal arguments involved in considering whether the Applicant’s dismissal was unfair, I was satisfied that it would be of use to the Commission – and would not unduly prejudice the Applicant – to have the assistance of the Respondent’s legal representative. I was also satisfied that the presence of the Respondent’s representative would also enable the matter to be dealt with more efficiently. Accordingly, I allowed Mr James Parkinson from Kingston Reid to appear for the Respondent. The Applicant was represented by her son, Joshua Smith, and an acquaintance Aaron Smith (no relation), neither of whom acted as paid agent or lawyer.

[3] Section 396 of the Act requires that I am satisfied of four matters before considering the merits of the Applicant’s application. Neither party disputed and I am satisfied, that the Applicant made her application within the 21-day period required by s.394(2) of the Act, that she was a person protected from unfair dismissal (as she earned less than the high-income threshold), that her dismissal was not a case of genuine redundancy and that the Respondent is not a small business to whom the Small Business Dismissal Code applies.

Chronology

[4] I have only summarised the key communications between the Respondent and its staff, including the Applicant.

[5] On 13 October 2021, the Respondent commenced consulting with its employees on the proposed introduction of a mandatory COVID-19 vaccination requirement for employees at sites and support offices of the Respondent. [p 215; PN112]

[6] Following the conclusion of the consultation process, the Respondent implemented a COVID-19 vaccination policy (the Policy) on 18 November 2021. The email circulating the Policy to staff contained an attached “Mandatory COVID-19 Vaccination FAQs” document (FAQ Document). [p 207, 211]

[7] The Policy, in summary, required all eligible employees to be fully vaccinated against COVID-19 by a certain date. The Policy provided for an exemption from compliance on the ground of medical contraindication. [p 209]

[8] In a letter sent to Jen Hyland, ESS Site Manager, and Rosie McArdle, Executive Director People & Safety, on 18 November 2021, the Applicant raised questions regarding COVID-19 vaccines and the lawfulness of the Respondent’s decision to implement the Policy. In this letter, the Applicant also requested, in essence, that the Respondent: [p 31, 43]

a) confirm that the Applicant would suffer no harm as a result of receiving the COVID-19 vaccine;

b) procure a fully qualified doctor take full legal and financial responsibility for any injuries occurring to the Applicant as a result of COVID-19 vaccination; and

c) confirm that, should the Applicant decline the offer of vaccination, the Applicant’s decision will not compromise her position and that she will not suffer prejudice and discrimination as a result.

[9] Ms Hyland responded to the Applicant’s letter by informing her that Tim Sheather, Manager – People Operations, sought to meet with her on 23 November 2021. The Applicant declined the meeting on the basis that her support person for the meeting was unavailable. That afternoon, the Applicant’s son made attempts to contact the Respondent on the Applicant’s behalf, leaving voicemail messages requesting to reschedule the meeting on a day the Applicant could attend the meeting with her support person. [p 243, PN 148]

[10] In a letter sent to the Applicant on 22 November 2021 [p 225], Ms McArdle informed the Applicant that there was a public health order applicable to the jurisdiction in which the Applicant was based which required employees of the Respondent to have received at least one vaccination by 11 October 2021 and be fully vaccinated against COVID-19 by 1 November 2021 in order to attend work. The letter provided that the Applicant was required to comply with the obligations contain therein by 1 December 2021 and provide evidence of her compliance in a form acceptable to the Respondent. The letter stated that this was a lawful and reasonable direction which may result in the Applicant being subject to disciplinary action up to and including termination of her employment should she fail to comply. The letter also invited the Applicant to inform the Respondent if she possessed a recognised medical condition that prevented her from complying with the direction.

[11] By email on 23 November 2021, Mr Sheather responded to the Applicant’s letter dated 18 November 2021 by requesting her to direct her queries in relation to the safety and efficacy of COVID-19 vaccines to a qualified medical practitioner. In his email, Mr Sheather reiterated that the Respondent required all eligible employees to be fully vaccinated against COVID-19 unless a medical contraindication exemption applied. On this basis, Mr Sheather requested that the Applicant provide medical evidence from her medical practitioner if she possessed a valid medical reason for not complying with the Policy. [p 227]

[12] By letter sent to Mr Sheather on 25 November 2021, the Applicant outlined a number of reasons for declining COVID-19 vaccination. In summary, the Applicant’s reasons included that: [p 49]

a) the mRNA vaccine was contrary to her religious views as a Roman Catholic. The Applicant stated that mRNA vaccines were “gene sequencing therapy… altering her genetic make up that was created by God”. The Applicant stated that she wished to request receiving a protein-based vaccine, when such vaccines become available.

b) COVID-19 vaccines have not undergone sufficient testing, are still in clinical trials and do not have sufficient safety data.

c) manufacturers are not held liable in Australia for any adverse reactions, nor are the Government, doctors or employers “that are mandating this experimental injection”.

[13] In this letter, the Applicant referred to the Respondent’s FAQ Document as being misleading on the basis that “it stated that the vaccines are approved by the TGA. The vaccines are only provisionally approved as they are still in clinical trials”. The Applicant also invoked her rights and variously referred to obligations and/or alleged breaches the Australian Immunisation Handbook, sections 51 and 23A of the Commonwealth Constitution, the Nuremberg Code and schedule 7 of the Human Rights Act. In addition, she asserted that the Policy was unreasonable on the basis that:

a) COVID-19 vaccines do not prevent the contraction of COVID-19 or the transmission of the virus;

b) she may come into contact with unvaccinated client and site personnel as there has been no COVID-19 vaccination mandate on a Federal level;

c) she exercises a high level of personal hygiene and is able to follow other procedures implemented by the workplace in managing the risk of COVID-19;

d) the Policy infringes on her “inalienable rights to freely choose [her] bodily autonomy and is coercion”.

[14] By email on 30 November 2021, Mr Sheather informed the Applicant that the Respondent had considered the information provided by the Applicant and had determined that the Applicant’s reasons for not being vaccinated were insufficient. Mr Sheather informed the Applicant that she would be unable to attend her workplace from 30 November 2021 given the mandatory COVID-19 vaccination requirement contained in the Policy. In addition, Mr Sheather invited the Applicant to show cause as to why her employment should not be terminated and to provide any further information. [p 52]

[15] Mr Sheather’s email contained an attached letter to the Applicant from Ms McArdle dated the same day. The letter, amongst other things, informed the Applicant that she may be subject to disciplinary action up to and including the termination of her employment should she fail to comply with the Respondent’s direction. Ms McArdle again invited the Applicant to provide further information if she possessed a recognised medical exemption that prevented her from complying with the requirement to be vaccinated.

[16] By email to Mr Sheather on 1 December 2021, the Applicant disputed the safety of COVID-19 vaccines and application of public health orders, requesting the Respondent to produce both written data proving the safety of vaccines and “written law that requires [the Applicant] to undergo a forced vaccination as a prerequisite of her employment”. In her email, the Applicant stated that she would not speak to any representative of the Respondent “other than the director themselves that is to be held accountable for this policy or mandate (with [her] sons as support persons)”. In her email, the Applicant also made references to various principles and alleged obligations of the Respondent under Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Ors V Queensland Rail And Anor [2015] HCA 11 and George v Rockett (1990) HCA 26-170 CLR 106). [p 56,57]

[17] By email to the Applicant on 3 December 2021, Mr Sheather responded that he would pass on the Applicant’s correspondence to Ms McArdle for discussion. [p 55]

[18] By email on 8 December 2021, Mr Sheather informed the Applicant that Ms McArdle was not willing to meet with the Applicant on the basis that the Applicant’s request for exemption was not based on medical evidence. In this email, Mr Sheather requested the Applicant show cause as to why her employment should not be terminated by close of business on 10 December 2021. [p 58]

[19] On 10 December 2021, the Applicant responded to Mr Sheather’s show cause request. In her correspondence, the Applicant reiterated her previous concerns relating to the safety and efficacy of COVID-19 vaccines and stated, in summary, that she had always been a reliable, honest, dedicated and loyal employee. [p 60; PN 176]

[20] By letter dated 14 December 2021, the Applicant’s employment with the Respondent was terminated with immediate effect and payment in lieu of notice. The letter provided that the Applicant was terminated as a result of her failure to comply with the Respondent’s lawful and reasonable direction, public health orders and client requirements in relation to the receipt of a COVID-19 vaccine, and that this decision was based on the exchanges between the Applicant and Respondent that had taken place up until that time. [p 65; PN 178]

Applicant’s Material

[21] The Applicant accepts that she was informed on multiple occasions that if she was not vaccinated, her employment may be terminated. She does, however, question the lawfulness of that directive.

[22] The Applicant disputes the efficacy and safety of the COVID-19 vaccines and contends that, by requiring her to be vaccinated, the Respondent attempted to coerce her into taking an “unproven injection” brought about by “an experimental injection campaign rollout with no longitudinal studies” and breached the various obligations referred to in [13] and [16] above. In addition, the Applicant’s submissions and evidence reference a number of other reports, authorities, articles and statements said to cast doubt on the efficacy or safety of COVID-19 vaccines. The Applicant did not lead expert evidence to support her assertions. [see p 9]

[23] The Applicant asserts that the Respondent failed to give the Applicant procedural fairness as it did not provide answers to her questions regarding the lawfulness of the directive and the safety and efficacy of COVID-19 vaccines, did not give fair consideration to information provided by the Applicant and made no effort to communicate with her regarding her concerns relating to the safety and efficacy of COVID-19 vaccines. [see p 9]

[24] The Applicant asserts that the Respondent hindered her ability to give informed consent by providing misleading and incorrect information in the FAQ Document. [see p 9]

[25] The Applicant further asserts that mRNA vaccines are contrary to her religious views as a Roman Catholic on the basis that mRNA vaccines are “gene sequencing therapy” and contain “liquid nano particles which enter the cell hosts” … “altering her genetic make up created by God” and that “she would like to retain her body in God’s image”. The Applicant also refers to historical vaccines being “derived from aborted foetus cells” as being contrary to her religion. [p 49, PN 24, PN 319]

[26] The Applicant asserts that other individuals on the site at which the Applicant worked (i.e. employees of clients of the Respondent) were not subject to a mandatory vaccination requirement, rendering the risk the Applicant posed by not being vaccinated as minimal in comparison. [PN 469]

[27] The Applicant accepts that through her 1 December 2021 letter to the Respondent, she expressed an intention not to receive a COVID-19 vaccine at that time. [PN173]

[28] Nevertheless, it was accepted that the Applicant, as at 1 December 2021, had made it clear that she was not vaccinated and did not have a medical exemption.

[29] For the reasons set out above, the Applicant submits that she was unfairly dismissed.

Respondent’s Material

[30] The Respondent asserts that this case is not about the efficacy of vaccines, nor whether or not there is a violation of religious freedoms or a violation of the Applicant’s own personal integrity. [PN 352] Rather, that this case is about whether the direction issued by the Respondent to the Applicant to comply with the Policy was lawful and reasonable. [PN 352]

[31] The Respondent states that it had a valid reason to dismiss the Applicant: namely, her non-compliance with a lawful and reasonable direction issued by the Respondent. Further the Respondent asserts that the Applicant was notified of that reason well in advance of the termination occurring, had ample opportunity to respond (and did so), that her response was considered by the Respondent, but ultimately a decision was made to terminate her employment because she did not comply with the lawful and reasonable direction. She was not unreasonably refused to support person. The Respondent further asserts that the consultation process undertaken was comprehensive and that the Applicant was very aware of what would happen if she was not vaccinated by the timeframe required.

[32] The Respondent asserts that the steps taken by it to implement the decision to terminate the Applicant’s employment were sound, defensible, well-founded and not affected by any procedural irregularity or unfairness. The Respondent states that it provided the Applicant an opportunity to be heard and considered the matters raised by the Applicant. Only after considering all of the circumstances and the overriding demonstration by the Applicant of an intention not to receive the vaccine, did the Respondent make the decision to dismiss the Applicant. [PN 363]

[33] The Respondent asserts that it remained willing at all times to meet with the Applicant to discuss her concerns, and it formed a view based on the information it received that the Applicant sought to communicate by written communication. Respecting that wish, the Respondent communicated via written communications. [PN 570]

[34] The Respondent denies that the Applicant was coerced into having the vaccine. The Respondent accepts that this was the Applicant’s choice. However, given the implementation of the Policy, and subsequent public health order and requirement of clients of the Respondent (including at the RAAF base in Amberley in which the Applicant was based), which mandated that its employees be vaccinated, the Respondent had no choice but to terminate the Applicant’s employment because she did not meet that criterion. The Respondent maintains that the Applicant was not unfairly dismissed. [PN 354, PN 362]

Consideration

[35] 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.

[36] I am required to consider each of these criteria to the extent they are relevant to the factual circumstances before me. 1

(a) whether there was a valid reason for the dismissal

[37] To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 2 and should not be “capricious, fanciful, spiteful or prejudiced.”3 Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.

[38] The Respondent asserts that its direction was lawful and reasonable. As to what is “reasonable” in the context of employer directions, the Full Bench provided in CFMMEU v Mt Arthur Coal that:

“The reasonableness of a direction is a question of fact having regard to all the circumstances, which may include whether or not the employer has complied with any relevant consultation obligations; the nature of the particular employment; the established usages affecting the employment; the common practices that exist; and the general provisions of any instrument governing the relationship.” 4

[39] In the current case, the Respondent underwent a consultation process with their employees prior to the implementation, the Respondent operates in the business of hospitality and the role of the Applicant was a kitchenhand which is heavily regulated and required to operate with high standards for hygiene and free from infection.. The Respondent provided their reasoning and justification for the implementation of the policy. Further the employment contract governing the relationship between the Respondent and the Applicant required the Applicant to comply with the Respondent’s policies.

[40] For those reasons, I am satisfied that the Respondent’s direction that the Applicant be vaccinated or provide a valid medical exemption by 31 January 2022 was a lawful and reasonable direction with which the Applicant was required to comply.

[41] It is uncontentious that as at 1 December 2021, the Applicant had indicated that she was not vaccinated, nor did she have a medical exemption. In her letter of 10 December 2022 as response to the Respondent’s Show Cause letter, the Applicant again confirmed that she was not vaccinated and did not intend to become vaccinated against COVID-19 at that time. In other words, she indicated that she would not be complying with the Respondent’s direction.

[42] The Applicants contract of employment at clause 13 has a requirement to comply with all company policies and procedures. The Respondent has clear directions under its COVID-19 Vaccination policy which under the contract of employment the Applicant was required to follow. The Applicant failed to comply with the policy and procedures, which was in breach of her contractual provisions and may constitute a valid reason for dismissal.

[43] In light of those intimations by the Applicant, the Respondent could not provide her with further work. I am satisfied that the Applicant’s failure to comply with the Respondent’’s direction constituted a valid reason for dismissal.

[44] Consequently, I am satisfied that the Respondent had a valid reason to terminate the Applicant’s employment.

(b) and (c) whether the person was notified of that reason and had an opportunity to respond

[45] Based on the evidence provided and submissions made, I am satisfied that the Applicant was made aware in the months leading up to the implementation of the mandate, that if she was not vaccinated by 31 January 2022, her employment may be terminated.

[46] She had – and took – the opportunity to respond on a couple of occasions to indicate her opposition to the introduction of the policy and enforcement of the vaccination policy. This was done prior to 31 January 2022, and again after being issued with the show cause notice and prior to her termination on 14 December 2021. Accordingly, I am satisfied that the Applicant was notified of the reason for her termination and had a sufficient opportunity to respond.

(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

[47] The Applicant has not claimed that she was unreasonably refused a support person.

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

[48] Given the reasons for the Applicant’s termination, this factor is not relevant however I note that the Applicant had provided many years of dedicated service to the Respondent.

(f) and (g) the degree to which the size of the employer’s enterprise and the absence of dedicated human resource management expertise would be likely to impact on the procedures followed

[49] The Respondent is a large employer with a well-resourced human resources function. It undertook an extensive process to provide its staff with information about the policy introduction which was to apply to its operations. It consulted with the Applicant in respect of the policy. The Applicant choose not to be vaccinated or provide an exemption.

(h) any other matters that the FWC considers relevant

[50] I have regard to the fact that the Applicant had worked for the Respondent for an extended period, and there were no allegations that she had been anything other than a dedicated employee. It must have been very upsetting to be told that her employment would end if she chose not to have a COVID-19 vaccination. However, the Respondent made an informed decision to introduce a vaccination policy given that they operated in a food handling business. Providing service to a large group of client employees and therefore a possible high transmission location for any infection particularly COVID-19. Having regard to all the factors and made an evaluative judgement I on balance do not consider the dismissal to have been harsh, unjust or unreasonable.

Conclusion

[51] Accordingly, I am satisfied based on the evidence provided that the Respondent had a valid reason for terminating the Applicant’s employment and that it did so in accordance with a fair process. I find that the Applicant was not unfairly dismissed in accordance with the Act.

[52] I therefore order that the Applicant’s application be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR742412>

 1   Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) [69].

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

 3   Ibid.

 4   CFMMEU v Mt Arthur Coal [2021] FWCFB 6059 [259].