| [2022] FWC 1550 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Daniel Frank Nielsen
v
Reynella Mazda Pty Ltd
(U2022/2112)
DEPUTY PRESIDENT ANDERSON |
ADELAIDE, 22 JUNE 2022 |
Application for an unfair dismissal remedy – service technician – stand down following employer vaccination requirement – jurisdiction – whether dismissed – no dismissal – application dismissed
[1] On 17 February 2022 Daniel Nielsen (the applicant or Mr Nielsen) applied to the Commission under s 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy. Mr Nielsen says that the dismissal took effect on 7 February 2022. At the date of alleged dismissal, Mr Nielsen was employed as a service technician.
[2] Mr Nielsen claims his dismissal was harsh, unjust or unreasonable. His application sought reinstatement though at the hearing he sought compensation only.
[3] The respondent is Reynella Mazda (Reynella Mazda, the employer or the respondent).
[4] Reynella Mazda oppose the application. It raises a jurisdictional issue. It contends that Mr Nielsen was stood down but not dismissed. It says that Mr Nielsen is a continuing employee. In the alternative, the employer contends that that there was no unfair dismissal and no issue of remedy arises.
[5] Conciliation was conducted by a staff conciliator on 26 April 2022. The matter did not resolve.
[6] I issued directions on 18 May 2022.
[7] I directed the matter into a second conciliation before a member of the Commission. Conciliation before Hampton C was conducted on 26 May 2022. The matter remained unresolved.
[8] In advance of the hearing, I received materials from Mr Nielsen and Reynella Mazda.
[9] I heard the matter (jurisdiction, merits and remedy) by video conference on 16 June 2022.
[10] Both parties were self-represented; Mr Nielsen with the assistance of his father (Mark Nielsen) and Reynella Mazda by its General Manager, Ms Goldsack, assisted by its Service Manager, Mr Williams.
[11] I heard evidence from three persons:
• Daniel Nielsen (applicant);
• Chelsea Goldsack (nee Altman 1) (General Manager); and
• Ryan Williams (Service Manager).
[12] Each witness gave evidence conscientiously. Each had some difficulty recalling precise details of conversations and dates of events of some six months ago.
[13] There are some disputed facts. Where it is necessary to make findings on disputed facts I place considerable weight on the documentary record.
[14] That said, the critical facts are not in dispute. The matter largely involves differences of opinion as to effect of the stand down on Mr Nielsen’s employment, and on the fairness of a vaccination requirement by the employer.
[15] I make the following findings.
[16] The respondent operates a motor vehicle dealership in suburban Adelaide forming part of the Southgate Automotive Group. It is not a small business employer within the meaning of the FW Act.
[17] Mr Nielsen is a qualified mechanic. In July 2021 he was employed as a full time service technician, on a six month probationary period. His work performance was good and having taken into account labour shortages, in December 2021 Reynella Mazda made his position permanent and increased his salary.
[18] These arrangements were formalised between Mr Nielsen and Reynella Mazda via contracts of employment in July 2021 and December 2021. 2 Mr Nielsen’s employment was also governed by the Vehicle Manufacturing, Repair, Service and Retail Award 2010 and the FW Act’s National Employment Standards.
[19] Having closed its borders as a result of the COVID-19 pandemic, the South Australian government announced that it would open its borders from 23 November 2021.
[20] In the lead up to border re-opening, management of Reynella Mazda considered what approach the business should take to employee vaccination as part of its risk mitigation. In mid-October 2021 management decided to encourage but not mandate vaccination.
[21] Generic emails were sent to staff on 19 October 2021 and 4 November 2021. 3 It is in dispute whether Mr Nielsen received these emails.
[22] In December 2021, in further consideration of risk management, Reynella Mazda decided that employees would be required, not simply encouraged, to be vaccinated.
[23] This was communicated to staff in two ways; by managers meeting with their staff, and by generic email.
[24] Mr Williams managed service operations. This included the workshop where Mr Nielsen worked. In mid-December 2021 Mr Williams called together the workshop staff (including Mr Nielsen) and told them that they should get vaccinated because it was being made a requirement.
[25] On 21 December 2021 Reynella Mazda sent a general email to staff in the following terms: 4
“From: Chelsea Altman
Date: 21 December 2021 at 11:43:19 am ACDT
To: Staff <Staff@southgate.com.au>
Cc: Peter Altman
Subject: Covid
Good Morning,
After much deliberation and discussion, we have made the decision that all employees at Southgate Automotive Group will need to be vaccinated in order to continue their employment.
This isn't a decision that we have taken lightly, but with the imminent influx of Covid cases across South Australia, we believe that this is the most responsible course of action to protect our Staff, their families, our customers, suppliers and all of our livelihoods.
Being is vaccinated is proven to reduce the spread of covid and the symptoms suffered by those who contract covid, I think we can all appreciate that chances are we will be exposed to Covid in some way in the very near future and we need to do everything possible to protect ourselves and our peers.
We will need proof of at least the first vaccination by Monday 10th January 2022, with the second vaccination as per the schedule. We also encourage those who are eligible to get a booster to do so asap.
While we appreciate that this may be an unpopular decision with some people, we need to do everything we can to protect the majority.
Could Managers please ensure that all staff are made aware of this as some may not have access to email.
Any questions, please let me know.
Thanks,
Chelsea Altman”
[26] There is a dispute about whether Mr Nielsen received this email via the generic source ‘staff@southgate.com.au’.
[27] Mr Williams also posted the email on the workshop window. Mr Nielsen says that he did not see the email posted on the workshop window.
[28] Mr Nielsen held concerns over vaccination against COVID-19. He was one of a handful of employees who held such concerns.
[29] With the employer’s vaccination requirement having come into effect, Mr Williams made it his business to speak to workshop staff about their position or intention.
[30] In a discussion on 29 December 2021, Mr Nielsen told Mr Williams that he was unsure about the vaccination and that he required details of any requirement to be put in writing. Mr Williams referred to the earlier all-staff email. Mr Nielsen, not recalling it, asked for it to be re-sent to his personal email address. That afternoon (2.26pm) Mr Williams on-forwarded the 21 December 2021 email to Mr Nielsen.
[31] Mr Nielsen read the email that evening.
[32] Further informal discussion occurred in the weeks following between Mr Williams and Mr Nielsen, as Mr Williams sought to ascertain Mr Nielsen’s position.
[33] Reynella Mazda extended the deadline for first vaccination from 10 January 2022 to 4 February 2022. It did so to provide further time to staff (such as Mr Nielsen) that were unsure, and in response to those staff who preferred a different vaccine that was becoming available in late January 2022.
[34] On or around 4 February 2022 Mr Williams approached Mr Nielsen asking if Mr Nielsen had made a decision on vaccination, given the looming deadline. Mr Nielsen said he had not decided. Mr Williams explained that Mr Nielsen would be stood down if he was unvaccinated. Mr Nielsen asked for that to be put in writing so he could consider his position further. Mr Williams agreed to do so.
[35] Over the weekend of 5 and 6 February 2022 Mr Nielsen received no information from Reynella Mazda. As a result, he attended for work on 7 February 2022.
[36] Mr Nielsen was permitted by the workshop manager and Mr Williams to work on 7 February 2022 (despite the deadline having passed) until he received written confirmation of the stand down.
[37] By email sent at 4.36pm on 7 February 2022 (under the hand of Ms Altman but forwarded by Mr Williams) Mr Nielsen was advised: 5
“From: Ryan Williams
Date: 7 Feb 2022 4:36 pm
Subject: Vaccination Employment
To: daniel[email address redacted]
Cc:
Dear Daniel,
As you are aware, the Southgate Automotive Group has made vaccination a condition of employment. This was outlined firstly in an email on 19th October 2021, further communication on the 4th November and lastly on 21st December.
We then further extended the deadline in order to allow staff members who wanted to get the vaccines which were not yet TGA approved.
We have chosen to mandate the Covid -19 vaccination in order to protect our staff, their families, customers and suppliers - we believe that in a customer facing industry this is necessary.
As such we have no choice but to stand you down, effective immediately from your employment at Reynella Mazda, until such time that you are vaccinated. You may choose to use your annual leave during this period, if not we will assume you would like to take leave without pay.
Regards,
Chelsea Altman”
[38] After being prompted by a text message from Mr Williams, the following morning 8 February 2022 Mr Nielsen sent Mr Williams a text reply as follows: 6
“Just found the email you sent yesterday. I’ll be in touch as what I want to do.”
[39] That evening (9.09pm 8 February 2022) Mr Nielsen sent Reynella Mazda the following response: 7
“Date ..... 8/2/2022
Time ..... 9.00pm
To:
Chelsea Altman
Reynella Mazda Pty Ltd & Southgate Automotive Group Pty Ltd & Southgate Automotive Pty Ltd
45 Main South Road
Reynella SA 5161
Dear Sir,
re: “Official NOTICE” of INDUSTRIAL DISPUTE
I hereby refer to your correspondence - relating to my employment, dated 10th January 2022.
I hereby serve your office with an “Official Notice” of impending Industrial Dispute.
Notwithstanding your provision to and on me, of certain COVID-19 requirements, and your correspondence being “WITHOUT NOTICE”, I hereby serve your office with my Official Notice of impending “Industrial Dispute” – directly related to the below-mentioned communique, which your office has served on myself, which DEMANDS that – in brief – I am required to undertake a medical procedure called a “vaccination/s” and I have been required by verbal instruction to follow the recent company practice of wearing a “mask/s”.
Your office served me with the following: - 12.01am on Monday 10th January 2022 I will require the following to work at Reynella Mazda Pty Ltd:
• Provide proof of at least the first covid vaccination.
• Provide proof of the second covid vaccination as per the schedule.
• I was also encouraged to get a booster(s) asap.
Your office furthermore served me a notice at 4.36pm on Tuesday 7th February 2022 after you “... further extended the deadline in order to allow staff members who wanted to get the vaccines which were not yet TGA approved.” This notice reaffirmed the contents of the notice of Monday 10th January 2022 and came to me after doing a full day's work on 6th February 2022.
GIVEN these (abovementioned) NOTICES, I draw your attention to Section 4(2) of the Emergency Management Act, 2004 (SA) [ Act 30 of 2004] whereby the Application of the immediately abovementioned Act - the Emergency Management Act, 2004 – would no longer be applicable to me or my workplace, given that this matter is now potentially an Industrial Dispute.
I trust that your office will honour the lawful requirements of the Parliament as set out in the extract at the end of this Notice on Page 2, should it become necessary to invoke a full blown Industrial Dispute.
I also refer to the Terms and Conditions of my current employment – and the status of my employment, whereby I am NOT required to - under any Term, Condition or Clause of my employment agreement - to undertake ANY Medical Procedure, or endure any Medical Restriction, as a specific Term of my Employment.
I am NOT REFUSING to consider your Direction or Request, nor adhere to any LAWFUL command (if such Command or Instruction is Lawful), however before I consider any “requirement/s” set out in your letter, to undertake a “Medical Procedure” - I require your office to provide me with an ‘acceptable’ and ‘unconditional’ “Whole of Life” Assurance &/or Insurance Policy – with MY NAME on, which not only covers me for my premature death and/or disability, but also covers me for my lifetime Sickness and Accident protection against early death psychological harm, mental harm, emotional harm, physical illness, and including my future funeral expenses, pre-paid for the next 60yrs and with a lifetime benefit to me of no less than $60 million (including with monthly income benefits of no less than indexed to current wages at 2.5x (the additional amounts related to my potential illness). This Policy ought to also protect me and my family for Loss of Consortium. Once this agreed policy is in place I will be able to further consider your request to vaccinate.
Should your office be reliant on current government legislation, as your Authority for your demand/s that I be vaccinated, your Policy also needs to cover me – by way of full indemnification – should such legislation later tum out or be deemed unlawful – from inception or at a later date, including any possible defence you might raise including your obligations under my employment, any applicable Awards or workplace employment laws AND the “Nuremberg Code”.
I hereby require your office to provide me with a legally considered response no later than 7 (seven) days from today, failing which I will – without further Notice – consider all and any lawful position, including the commencement of legal proceedings, including then invoking an Industrial Dispute – which would take my employment outside the provisions of the Emergency Management Act, 2004(SA) & your Direction will NOT be applicable to my employment.
Yours faithfully,
Daniel Nielsen” (emphasis in original)
[40] A week later, 15 February 2022, Ms Altman sent the following reply to Mr Nielsen: 8
“From: Chelsea Altman
Date: 15 Feb 2022 11:21 am
Subject: Re: URGENT: Notice of lndustrial Dispute
To: Daniel Nielsen
Cc: Ryan Williams, Peter Altman
To Daniel,
After reviewing your correspondence, we have agreed that we're unable to provide you with such an insurance policy.
As per last correspondence if you can provide proof of vaccination we would welcome you back.
Any further questions, please don't hesitate to contact us.
Kind Regards
Chelsea Altman”
[41] Mr Nielsen did not provide evidence of vaccination against COVID-19 to Reynella Mazda either before 7 February 2022 or subsequently.
[42] Mr Nielsen did not attend for work or perform work after 7 February 2022.
[43] Mr Nielsen did not take up the offer of using any accrued annual leave following his stand down. He was stood down without pay.
[44] Since the stand down, Mr Nielsen has remained identified on the company books as an employee. Mr Williams continues to administer internal paperwork that references Mr Nielsen as one of his workshop employees.
[45] Reynella Mazda have not made a final payment to Mr Nielsen. His final payment would include payment of any outstanding leave accrual.
[46] Ms Altman’s email of 15 February 2022 was the last communication between the parties before proceedings were filed.
[47] Two days later on 17 February 2022 Mr Nielsen filed an application in the Commission claiming that he had been unfairly dismissed on 7 February 2022.
[48] On or about 20 April 2022 Reynella Mazda reviewed its COVID-19 policy and decided, having regard to changing circumstances, to ease its vaccination requirements. Reynella Mazda reverted to a position where employees were encouraged but not required to be vaccinated against COVID-19.
[49] In light of that change, on 20 April 2022 Mr Williams sent the following text message to Mr Nielsen: 9
“Hi Daniel, Reynella Mazda have lifted the requirements of being double vaccinated to perform normal working duties. Are you looking at resuming your current role at Reynella Mazda? Regards”
[50] Mr Nielsen did not respond other than through the litigation process in the Commission.
Mr Nielsen
[51] On jurisdiction, Mr Nielsen submits that his stand down on 7 February 2022 was a “constructive dismissal”. He refers to s 386(1) of the FW Act and says that his employment ended due to conduct of the employer, and fits that definition of dismissal.
[52] Mr Nielsen says that the stand down was not lawful as there was no contractual right to stand him down for not being vaccinated.
[53] On merit, Mr Nielsen says that his dismissal was unfair because:
• the decision to require vaccination was not based on any government requirement or direction;
• the decision to require vaccination was made unilaterally by Reynella Mazda and had not been the subject of consultation;
• the decision to require vaccination was a new condition of employment, was not a term of his contract of employment or was not one introduced by mutual consent; and
• the decision to require vaccination was not necessary because he did not deal directly with customers.
[54] On remedy, Mr Nielsen says that he no longer seeks reinstatement because he secured new employment approximately two weeks after the stand down. He says that his new employment is comparable in remuneration, but it is with a smaller business where his capacity for career development is more limited, and his employment is less secure because he is again on a probationary period.
[55] Mr Nielsen seeks compensation for the two or three weeks of lost income plus a sum for the lesser job security of his new role, fewer career prospects and loss of opportunity to service the newer fleets of vehicles at Reynella Mazda.
Reynella Mazda
[56] On jurisdiction, the employer submits that Mr Nielsen was not dismissed on 7 February 2022 or at all. It submits that Mr Nielsen was stood down until he was able to comply with the employer’s vaccination requirement, and when the vaccination requirement was lifted he was asked to resume his former role.
[57] Not having dismissed Mr Nielson and not having paid out his entitlements, the employer says that Mr Nielsen remains its employee.
[58] In the alternative, on merit, the employer submits that the alleged dismissal was not unfair because:
• the vaccination requirement was a reasonable response to risk mitigation following the opening of borders and the risk of transmission of the virus;
• the requirement to be vaccinated was a lawful and reasonable direction;
• a contract of employment does not need to include all directions that an employer can lawfully or reasonably give to employees;
• the vaccination requirement was the subject of informal discussion with staff including with Mr Nielsen, as well as formal written communication;
• the employer acted with empathy to the circumstances of employees unsure about vaccination by extending the deadline for vaccination from 10 January 2022 to 4 February 2022;
• Mr Nielsen was in no doubt about the deadline and that he would be stood down if he was not vaccinated by the deadline;
• Mr Nielsen did not respond to the employer following the stand down other than by making an unreasonable demand for an insurance guarantee and commencing litigation.
[59] On remedy, the employer opposes an order for compensation as it does not consider it acted unfairly. It submits that as it considers Mr Nielsen to be its continuing employee, and as it lifted its vaccination requirement on 20 April 2022, there is no barrier to Mr Nielsen returning to his job in the same workshop or, if it suited him better, one of its other workshops.
[60] I am satisfied that Mr Nielsen was a person protected from unfair dismissal within the meaning of s 382 of the FW Act. He served the required minimum employment period (s 382(a)). His annual rate of earnings did not exceed the high-income threshold (s 382(b)(iii)). His employer was a “national system employer” within the meaning of s 14 of the FW Act. His application was filed within the required 21-days after the alleged dismissal.
[61] As noted, Reynella Mazda is not a “small business” for the purposes of the unfair dismissal provisions of the FW Act.
[62] Three issues require determination:
1. Was Mr Nielsen dismissed within the meaning of the FW Act?
2. If Mr Nielsen was dismissed (but only if he was dismissed) was the dismissal harsh, unjust or unreasonable with the meaning of the FW Act? and
3. If Mr Nielsen was dismissed and if the dismissal was unfair (but only if so) what remedy, if any, should be ordered?
Jurisdiction
[63] I now consider whether Mr Nielsen was dismissed.
[64] Section 386 of the FW provides:
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
[65] Whether Mr Nielsen was dismissed requires an objective finding of fact. The test is not whether the employer believed Mr Nielsen not to have been dismissed nor whether Mr Nielsen believed that he had been dismissed. Whilst the belief of the parties (stated or unstated) is a relevant evidentiary consideration, it is not determinative.
[66] Objectively considered, the evidence establishes that Mr Nielsen was not dismissed by the respondent on 7 February 2022, as alleged. I make this finding for the following reasons.
[67] Firstly, there was nothing said by the employer orally or in writing on or prior to 7 February 2022 that could directly or indirectly be interpreted as dismissing Mr Nielsen or bringing the employment relationship to an end. Mr Williams told Mr Nielsen on or about 4 February 2022 that if he remained unvaccinated he would be stood down until he was vaccinated. Ms Altman’s email of 7 February 2022 advised Mr Nielsen that he had been “stood down”. The statement by Ms Altman that the stand down applied “until such time that you are vaccinated” and her further statement that “you may choose to use your annual leave during this period” is evidence supporting a conclusion that Mr Nielsen was a continuing employee.
[68] Secondly, Mr Nielsen’s text message the following day (8 February 2022) is consistent with the conclusion that he was still employed that day. Mr Nielsen advised Mr Williams that “he will be in touch as to what I want to do”. Mr Nielsen understood that a reply was required to Ms Altman’s email as to whether he would be vaccinated (and thus permitted to return to the work site) and whether he agreed to use annual leave accruals during the stand down period or be stood down without pay.
[69] Thirdly, the terms of Mr Nielsen’s letter on 8 February 2022 notifying an industrial dispute is consistent with the conclusion that he was employed that day. Aside from the fact that the letter referred to employer correspondence of 10 January 2022 (of which there is none in evidence), it referred to “Terms and Conditions of my current employment” and sought a whole of life insurance policy in Mr Nielsen’s favour (to a value of sixty million dollars) to enable him to “further consider your request for vaccination”. 10 Mr Nielsen’s reference to “current” employment and “further consideration” of the employer’s vaccination requirement is language consistent with his employment being in existence.
[70] Fourthly, the terms of the employer’s text message to Mr Nielsen once it eased its vaccination requirement is consistent with this conclusion. Mr Williams asked Mr Nielsen whether he was “looking at resuming your current role”. The reference was to a “current” role; not re-employment to a former role.
[71] Fifthly, at no stage following 7 February 2022 did the employer finalise a termination payment for Mr Nielsen.
[72] Sixthly, the employer considered Mr Nielsen to be a good worker and had only six weeks prior appointed him to an ongoing role (after his period of probation) and considered his skills to be valued, in short supply and not easily replaced. I accept the evidence of both Ms Altman and Mr Williams that the business did not want to lose the services of Mr Nielsen.
[73] Mr Nielsen correctly submits that an employment relationship may come to an end by the conduct of an employer or the effluxion of time in circumstances where an employee is indefinitely stood down without pay or for an indeterminate period. Further, a stand down in those circumstances may be unreasonable 11.
[74] However, being stood down does not necessarily equate to being dismissed. In this matter, on 7 February 2022 Reynella Mazda confirmed in writing that Mr Nielsen was being stood down. Mr Nielsen had worked that day and then stood down at 4.36pm. The written confirmation occurred because Mr Nielsen, quite reasonably and consistent with his previous conduct, had wanted the employer to put in writing its requirements of him, and the employer agreed to do so. I find that Mr Nielsen was employed that day and continued to be employed at least on the day immediately following. He was not dismissed on 7 February 2022 as claimed.
[75] The definition of dismissal in s 386 of the FW Act does not assist Mr Nielsen. His reliance on s 386(1)(b) is misplaced. That subsection does not relate to any or all conduct by an employer. It relates only to conduct by an employer that forced an employee’s resignation. In this matter, there is no evidence to support a finding that Mr Nielsen resigned on 7 February 2022, nor is that proposition advanced.
[76] In order to determine whether Mr Nielsen was dismissed, I need not determine whether the stand down by Reynella Mazda was lawful in the sense of it being authorised by statute, contract or common law, or whether the length of time he was (or has been) stood down was reasonable. For current purposes, I am simply required to determine whether Mr Nielsen was dismissed on 7 February 2022, as alleged.
[77] As it is apparent from my finding that Mr Nielsen continued to be employed on and immediately following 7 February 2022, the lawful status of the stand down and whether Mr Nielsen was rightly excluded from the work site without pay until vaccinated, does not impact my conclusion that he was not dismissed that day. Those matters may be relevant to merit but are not relevant to jurisdiction. Further, whilst the Commission can make orders in settlement of stand down disputes under s 526 of the FW Act (which this application is not), it cannot declare a purported stand down to be null and void. Only a court can do that. 12
[78] For this same reason, I need not determine whether the direction to Mr Nielsen that he be vaccinated by 4 February 2022 was a lawful and reasonable direction or, as he contends, unlawful on the basis that it was not a term of his contract of employment and was unilaterally imposed without mutual consent or consultation. Those matters may also be relevant to merit but are not relevant to jurisdiction.
[79] I make no finding as to the current status of Mr Nielsen’s employment or whether the employment relationship has ended or is continuing. The application alleges dismissal on 7 February 2022 and a finding on that question alone is what is required to determine the jurisdictional issue.
Merits and remedy
[80] In light of the finding that there was no dismissal on 7 February 2022 it is not open to consider the merits of Mr Nielsen’s application (whether the alleged dismissal was unfair) or remedy.
[81] As Mr Nielsen was not dismissed on 7 February 2022, the jurisdictional challenge by the employer is upheld.
[82] As the Commission does not have jurisdiction to further determine the matter, the application must be dismissed.
[83] An order 13 dismissing the application is issued in conjunction with publication of this decision.
[84] An unusual feature of this matter was that Reynella Mazda openly indicated at the hearing that as it considered Mr Nielsen to be its continuing employee, and as it had lifted its vaccination requirement on 20 April 2022, there was no barrier to Mr Nielsen returning to his employment in the same position at the same workshop or, if it suited him better, one of its other workshops. Mr Nielsen’s position at the hearing was that he had and continued to decline this option on the ground that he had secured alternative employment and that he feared a similar unilateral vaccination requirement being re-introduced in the future and the situation repeated. He did so notwithstanding his submission to the Commission that his new employment was less secure and that he sought to be compensated by the Commission for that lesser security.
[85] It is regrettable that this matter did not settle on that or some other basis prior to the hearing.
[86] Although this litigation has put strain on the relationship, I observed the applicant and the officers of the employer to be professional and each displayed a level of residual respect for the other. If Mr Nielsen does in fact consider his employment at Reynella Mazda to have been superior and if Reynella Mazda do in fact continue to hold to the view that his former role remains open and that persons with his skills are in short supply, it may be that enough residual goodwill exists to salvage the employment relationship.
[87] In light of this decision, that is now a matter for the parties and, in the first instance, Reynella Mazda who (at the date of hearing at least) still considered Mr Nielsen to be its employee.
DEPUTY PRESIDENT
Appearances:
M Neilson, with and on behalf of D Neilson
C Goldsack with R Williams, of and on behalf of Reynella Mazda Pty Ltd
Hearing details:
2022
Adelaide (by video)
16 June
Printed by authority of the Commonwealth Government Printer
<PR742805>
1 Ms Goldsack is the same person referred to in the evidence as Ms Altman. Altman is her maiden name and the name she uses in her professional capacity
2 A6 and A7
3 R2 and R3
4 A2
5 A3
6 R5
7 A4
8 A5
9 R5
10 A4
11 TCFUA v Tuftmaster Carpets Pty Ltd [2011] FWA 1891 at [69]; Ball v Thomas Foods International Murray Bridge Pty Ltd [2018] FWC 2483 at [122] to [125]
12 Carter v Auto Parts Group Pty Ltd [2021] FWCFB 1015 at [27] applying Re Cram [1987] HCA 29