[2022] FWC 1440

The attached document replaces the document previously issued with the above code on 10 June 2022.

Paragraph [25] amended to correct the Applicant’s name

Associate to Commissioner Johns

Dated 15 June 2022.

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

Ms Karen Lee Cook
v
St Vincent De Paul Society Victoria
(U2021/11038)

Application for an unfair dismissal remedy

[1] This decision concerns an application for an unfair dismissal remedy made by Ms Karen Lee Cook (Applicant) under s 394 of the Fair Work Act 2009 (FW Act) in respect of her dismissal by St Vincent De Paul Society Victoria (SVDP/Respondent).

[2] In short,

a) Ms Cook was employed by the Respondent from January 2020 to 12 November 2021. Ms Cook has also previously volunteered for the Respondent.

b) At the time of her dismissal Ms Cook was employed in the role of Duty Manager at the ‘Vinnies’ retail stores in Mont Albert and Port Melbourne (Vinnies).

c) As a Duty Manager Ms Cook was required to perform her role from the Respondent’s Vinnies stores.

d) Ms Cook was dismissed on the grounds that she was unable to meet the inherent requirements of her job.

e) Ms Cook failed to provide the Respondent with proof that she had been vaccinated against COVID-19.

f) Consequently, pursuant to Victorian government directions, the Respondent was required not to allow Ms Cook to attend the workplace on or after 15 October 2021.

g) At the date of the hearing before me, Ms Cook remained prevented from attending for work at Vinnies by reason of her continuing unvaccinated status.

[3] Ms Cook contends that the Respondent did not have a valid reason to dismiss her, and that she was dismissed on the discriminatory ground of being an ‘anti-vaxxer’, which Ms Cook contends is a social origin group. Ms Cook contends that her dismissal was unfair and seeks financial compensation.

[4] Section 396 requires that I decide four matters before considering the merits of Ms Cook’s application. I am satisfied of the following:

a) First, the application was made within the 21-day period required by s 394(2).

b) Secondly, Ms Cook was a person protected from unfair dismissal.

c) Thirdly, the dismissal was not a genuine redundancy.

d) Fourthly, SVDP is not a small business employer, and the Small Business Fair Dismissal Code is therefore inapplicable.

Background

[5] The facts in this matter were largely uncontested. Consequently, I make the following findings of fact:

a) On 5 October 2021 SVDP sent an email 1 to all employees and volunteers advising, amongst other things:

i. That Victorian Premier Daniel Andrews’ statement 2 of 1 October 2021, that that all workers on the Authorised Worker list would require their first COVID-19 vaccine dose by 15 October and second dose by 26 November in order to continue working onsite, would apply to SVDP employees and volunteers.

ii. That all SVDP workers were required to have their first dose of the COVID-19 vaccine by 15 October 2021, and be fully vaccinated by 26 November 2021, unless they were medically exempt, in order to work outside their home; and

iii. That SVDP workers who had not provided SVDP with proof of vaccination (or proof of medical exemption) would not be issued with a work permit or allowed to work outside their home from 15 October 2021.

b) On 7 October 2021, the acting Chief Health Officer of Victoria issued the COVID-19 Mandatory Vaccination (Workers) Directions 3 (Workers Directions) under s 200(1)(d) of the Public Health and Wellbeing Act 2008 (Vic). These imposed obligations on the employers of specified workers, including retail workers, not to allow workers to attend for work on or after 15 October 2021 unless they had provided evidence to the employer of having been vaccinated against COVID-19, or of a booking to receive a vaccination by 22 October 2021. An exception applied for workers who provided a certificate that they were unable to receive a vaccination due to a medical contraindication. The Workers Directions were succeeded by other directions in similar terms (Directions).

c) On 7 October 2021 SVDP sent an SMS 4 to all SVDP workers reminding them to submit their COVID-19 vaccination records and that the changes relating to the Directions would come into effect on 15 October 2021.

d) On 11 October 2021 SVDP sent an email 5 to all employees and volunteers reminding them to upload a copy of their COVID-19 vaccination certificate so that they can continue as an authorised worker from 15 October 2021. The email set out the requirements of the Directions and provided support to workers to upload their vaccination records. The email also stated that if SVDP did not hold a person’s vaccination evidence or evidence that they had a vaccination appointment before 22 October 2021, then they would not be able to leave home to undertake work at SVDP from 15 October 2021.

e) On 1 November Ms Sarah Edwards, HR Partner for the Respondent, sent a letter 6 to Ms Cook advising, amongst other things:

i. That the Victorian Chief Health Officer had issued the Directions in accordance with emergency powers arising from declared state of emergency, under the Public Health and Wellbeing Act 2008 (Vic);

ii. That SVDP was required to comply with those directions and that it must ensure that only staff vaccinated against COVID 19 can perform work as an authorised worker;

iii. That SVDP was not directing or requiring Ms Cook to receive the COVID-19 vaccine, and that it was a voluntary decision that only she could make.

iv. That Ms Edwards was aware of Ms Cooks conversation with Mr Peter Kalogeropoulos, Area Support Manager, where she advised Mr Kalogeropoulos that she does not intend to get vaccinated;

v. That it was SVDP’s assessment of Ms Cooks role as Mont Albert Duty Manager, that she would not be able to perform this role unless she was present at the Mont Albert Vinnies shop and that the consequence of a decision not be vaccinated is that she could not continue to work in any capacity outside of her home; and

vi. That Ms Cook was invited to a Teams meeting on 3 November 2021 with Mr Kalogeropoulos to discuss the requirement for her to obtain a COVID vaccination before she could return to work.

Ms Cook accepted the meeting invitation and informed Ms Edwards that she would be recording the meeting. Ms Edwards declined to be recorded and stated that the communication would continue in writing.

f) On 3 November 2021 Ms Cook sent a letter 7 in response to Ms Edwards in which she, amongst other things:

i. Requested that Ms Edwards provide her with the relevant legislation, orders and specific paragraphs of the Directions that SVDP were referring to and relying on,

ii. Disputed the lawfulness of the Directions and stated that SVDPS’s actions were contrary to her employment contract and constituted coercion,

iii. Stated that SVDP had an obligation to operate under various state and federal laws, the Universal Declaration of Human Rights, and the Nuremberg code, and

iv. Outlined that she was not in a position to consent to receiving a COVID-19 vaccine due to the lack of transparency surrounding the newly developed mRNA technology and the lack of data on its long-term safety and efficacy.

g) On 5 November 2021 Ms Edwards responded to Ms Cook by letter 8, explaining that she does not wish to debate with her about the points raised in her letter dated 3 November 2021, as they were not relevant to SVDP’s obligations under the Directions. The letter reiterated the requirements of the Directions and stated that Ms Cook had until 5pm on 11 November 2021 to advise SVDP if she was able to provide evidence of her vaccination status or her plans to receive the COVID-19 vaccine, in order to continue working in her capacity as Duty Manager at Vinnies. The letter advised Ms Cook that she would remain stood down without pay until such a time that the matter is resolved.

a) On 11 November 2021 Ms Cook responded to Ms Edwards by letter. 9 In the letter Ms Cook again requested Ms Edwards to provide her with the specific paragraph and sections of the Directions that SVDP were relying on and asked that SVDP await the outcome of the Victorian Supreme Court matter of Simon Harding & Ors v Brett Sutton & Ors before any action was taken against her for being unvaccinated. Ms Cook also raised the possibility of taking the COVAX-19 vaccine when it became available and asked if there was a suitable alternate role that she could fill until the matters were resolved. The letter also contained attachments relating to the efficacy and safety of COVID-19 vaccines.

h) On or around 12 November 2021 Ms Edwards concluded that Ms Cook could not perform the inherent requirements of her role as Duty Manager as she had not provided any information about her COVID-19 vaccination status or any exemption to the Directions. Ms Edwards recommended to Ms Sue Cattermole, Chief Executive Officer of the Respondent, that she terminate the Applicant’s employment on that basis.

i) On the same day of 12 November 2021, Ms Cattermole accepted Ms Edwards’ recommendation and terminated Ms Cook’s employment by letter 10 on the basis that due to her failure to provide evidence of vaccination or a medical exemption, she was unable to return to work and fulfil the inherent requirements of her role as a Duty Manager. It was stated that Ms Cooks employment would end on that day and that she would be paid 2 weeks’ pay in lieu of notice.

Submissions of the parties

[6] Ms Cook contended that her dismissal was harsh, unjust or unreasonable and that the Respondent did not have a valid reason to dismiss her. Ms Cook contended that she was dismissed because she belongs to the social origin group known as ‘anti-vaxxers’, and that it was discriminatory for the Respondent to do so. Ms Cook disputes the legality of the Directions and contended that it was not reasonable for them to be imposed on her. She submitted that her dismissal was a result of the Respondent’s choice not to challenge the Directions, which she says, are discriminatory. Ms Cook further contended that the reason for her dismissal was not made clear, that she was not given a fair opportunity to respond to the specific section of the Directions that SVDP were relying on, and that there was no opportunity for her to meet with SVDP before her employment was terminated. Ms Cook says that this amounts to a failure of the Respondent to provide procedural fairness.

[7] SVDP contended that Ms Cook’s dismissal was not harsh, unjust or unreasonable and that it dismissed Ms Cook for a valid reason, namely that she had failed to provide the required vaccination information and therefore she had rendered herself unable to perform the inherent requirements of her role. Ms Cook’s decision not to get vaccinated meant that SVDP, bound by the Directions that applied to the Applicant as a ‘retail worker’, were required to ensure Ms Cook did not attend the workplace. SVDP contended that it was an inherent requirement of Ms Cook’s position that she be able to physically attend the Vinnies store to perform work and that she was unable to perform her work from home. SVDP contended that Ms Cook was given every opportunity to respond to its assertion that she may be unable to fulfil the inherent requirements of her role and that it did not fail to provide her procedural fairness before terminating her employment.

Consideration

[8] For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable (s 385(b)). In considering whether it is so satisfied, the Commission must take into account the various matters specified in s 387.

[9] The Commission must consider whether there was a valid reason for the dismissal related to the person’s capacity or conduct (s 387(a)). Such a reason is one that is valid in the sense both that it was a good or sufficient reason, and also a substantiated reason.

[10] The essence of a valid reason is a reason that is sound, defensible or a well-founded reason – one that is not capricious, fanciful, spiteful or prejudiced. 11

[11] I am satisfied that SVDP had a valid reason to terminate Ms Cook’s employment. Ms Cook was entitled to make the decision she made not to get vaccinated. This case is not about vaccine mandates. There was no vaccine mandate. There was, however, a direction to employers not to allow employees to attend for work on site unless they were vaccinated.

[12] As a Duty Manager attending on site (as and when required) was an inherent requirement of Ms Cook’s position. The evidence did not support a finding that Ms Cook could have undertaken her work from home. By deciding (as she was freely able to do and did) not to get vaccinated the Applicant made herself unable to perform the inherent requirements of her role. It was her choice. It is simply the case that Ms Cook does not like the consequence that flowed from the voluntary choice that she made. By reason of that choice Ms Cook was not able to attend work on site. Ms Cook’s decision not to get vaccinated meant that SVDP, bound by the terms of the Directions, were required to ensure that Ms Cook did not attend the workplace. SVDP was in no position not to comply with the Directions. It acted as it was lawfully required to do.

[13] Ms Cook contended that the Respondent had a choice in the matter and that the dismissal of the Applicant was a consequence of the choice made by the Respondent not to challenge the Directions. It is obvious that the Respondent could have made such a choice, but it would have been unlawful for it not to comply with the Directions. I do not accept the contention that the Respondent should have challenged the Directions and/or breached them. It is unrealistic for the Applicant to expect that her employer ought to have engaged in such conduct.

[14] Ms Cook also contended that she had been discriminated against unlawfully. If unlawful discrimination occurred, then the dismissal would be prejudiced and the reason would not be a valid reason. Ms Cook advanced a submission that the unlawful ground of discrimination was her social origin as an “anti-vaxxer”. It was a novel argument.

[15] The prevention of discrimination on the basis of "social origin" appears in two sections of the FW Act (s..351 and s. 772). Social origin is an ambiguous term. In enacting protection against social origin discrimination, first in 1993, the Commonwealth Parliament relied on Convention (No 111) concerning Discrimination in respect of Employment and Occupation. Consequently, the term social origin in the FW Act should have the same meaning as the term social origin in the relevant ILO Convention and some useful guidance can be found in the ILO Convention.

[16] Social origin includes social class, socio-occupational category and caste. Social origin includes factors other than country of birth. It refers to elements that a person adopts from the surrounding culture. These include, but are not limited to, language or native tongue/s, life cycle customs such as initiation into a religious community, affirmation of adulthood, and such things as diverse as dress and diet.
Social origin includes notions of class. 12 Working-class stereotypes such as "bogan" or "cashed up bogan" or other terms that are held up to middle-class ridicule is a way of defining the notion of class.13 Such stereotypes would likely fall into the notion of social origin. Access to economic, social and cultural capital can define a person's class position. Cultural capital is a complex idea. It includes "dispositions of the mind and body" and ways of thinking. Embodied cultural capital might “capture the properties of one's self which a person requires or cultivates during one's life”. I consider it plausible that being an "anti-vaxxer" is a disposition of the mind and a form of cultural capital resulting in a class of people that can be considered to fall within the concept of social origin.

[17] I also consider it arguable that the Applicant was discriminated against on the basis of the prohibited ground of social origin. However, that discrimination was not direct discrimination. The Applicant was not dismissed because she is an anti-vaxxer.

[18] The only form of discrimination that could have occurred was indirect discrimination. This was conceded by the Applicant's unpaid representative/advocate, Daniel Marriner. 14 Indirect discrimination occurs when there is an unreasonable rule or policy that is the same for everyone that has an unfair effect on people who share a particular attribute. In the present matter the Directions, and compliance with them by the Respondent, had an adverse effect on the Applicant because of her social origin status as an anti-vaxxer. However, the Directions, and compliance with them by the Respondent, was not unreasonable. Consequently, the Applicant was not subject to unlawful discrimination. There remained a valid reason for her dismissal.

[19] In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether an employee has been notified of the reasons for dismissal and whether the person was afforded an opportunity to respond to any reason related to their capacity or conduct (ss 387(b) and (c)). The Respondent’s Letter of 5 November 2021 notified Ms Cook that it would proceed to determine whether she could continue to perform the inherent requirements of her role and gave her an adequate opportunity to respond.

[20] SVDP did not refuse, unreasonably or otherwise, to allow Ms Cook to have a support person present to assist in discussions relating to the dismissal (s 387(d)).

[21] If a dismissal relates to unsatisfactory performance, s 387(e) requires the Commission to consider whether the person has been warned about that unsatisfactory performance prior to dismissal. However, Ms Cook’s employment was not terminated for unsatisfactory performance, but for issues relating to her capacity.

[22] The Commission is required to consider the degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal (ss 387(f), (g)). The purpose of these provisions is not to raise the bar for larger employers such as SVDP, but to require the Commission to take into account these common features of smaller employers. In any event, there was no procedural deficiency in respect of which mitigation might be sought in connection with these provisions. Sections 387(f) and (g) carry no weight in the present matter.

[23] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account any other matters that it considers relevant (s 387(h)). In the present matter I have taken into account the Applicant’s service, unblemished record, the economic impact on her of the loss of her employment and Ms Cook’s genuinely held concerns about the safety of COVID-19 vaccines.

[24] However, I do not consider that any of these additional factors render the dismissal harsh or otherwise unfair. SVDP had no choice in the matter. It had to comply with the Directions. Ms Cook did have a choice – to either get vaccinated or not. She freely exercised that choice. The consequences of exercising that choice were made clear to her, and, nonetheless, she made her choice not to be vaccinated or not to disclose her vaccine status.

[25] Having regard to s 387 of the FW Act, I consider that Ms Cook’s dismissal was not harsh, unjust or unreasonable, and that it was therefore not unfair. The application is dismissed.

COMMISSIONER

Appearances:

Mr D. Marriner for the Applicant
Mr M Jackson for the Respondent

Hearing details:

2022
Melbourne
31 March

Printed by authority of the Commonwealth Government Printer

<PR742424>

 1   SE-6

 2   SE-5.

 3   SE-7.

 4   SE-8.

 5   SE-9.

 6   SE-10.

 7   SE-11.

 8   SE-12.

 9   SE-13.

 10   Court Book p 21.

 11  n

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

 12   Capuano, Angelo: “Giving Meaning to “Social Origin” in International Labour Organisation (ILO) Conventions, the Fair Work Act 2009 and the Australian Human Rights Act 1986 (Clth): ‘Class’ Discrimination and its Relevance in the Australian Context” [2016] UNSWLawJl 3; (2016) 39(1) UNSW Law Journal 84.

 13   By referring to “bogans” and “anti-vaxxers” in the above discussion about “social origin”, I am not suggesting that anti-vaxxers are necessarily bogans (cashed up or otherwise); nor that there is anything wrong with being a bogan.

 14   Transcript PN118.