[2022] FWC 1566

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Victor Tey
v
Winc Australia Pty Ltd
(U2022/232)

DEPUTY PRESIDENT CROSS

SYDNEY, 2 AUGUST 2022

Application for an unfair dismissal remedy – non-compliance with employer COVID-19 policy - not harsh unjust or unreasonable – application dismissed.

[1] Mr Victor Tey (the Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy (the Application) in relation to his dismissal from employment with Winc Australia Pty Ltd (the Respondent). The Application was lodged with the Commission on 3 January 2022.

[2] I conducted a Directions Hearing in this matter on 28 April 2022. At the Directions Hearing, directions were issued for the filing of materials by the parties (the Directions), and the matter was set down for hearing on 17 June 2022.

[3] The Respondent filed a Form F52 Application for an order to produce documents to the Commission on 3 June 2022. The Applicant agreed to the proposed order, and I issued the Order (the F52 Order) on 7 Jun 2022.

[4] The parties complied with the Directions and the Order. In particular:

• On 12 May 2022, the Applicant filed a statement of the Applicant with three annexures,

• On 26 May 2022, the Respondent filed an outline of submissions, and witness statements of Ms Julie Kent, Back to School Services Manager, Ms Natalie Mason, Head of Customer Experience, and Mr Tony Zogalis, People Services Manager.

• On 1 June 2022, the Applicant filed an outline of submissions in reply,

• On 1 June 2022, the Applicant filed additional submissions, which I accepted,

• On 13 June 2022, the Applicant produced materials pursuant to the F52 Order, and

[5] On 15 June 2022, the Respondent filed additional submissions in reply to those filed by the Applicant on 8 June 2022, together with a statement of Mr Daniel Eder, NSW State Logistics Manager.

[6] At the hearing on 17 June 2022, the Applicant, Mr Zogalis, Ms Kent, and Mr Eder were cross-examined.

Background Facts

[7] The Applicant commenced employment with the Respondent as a Customer Service Representative on 1 February 2012. It was apparent from the evidence and the case of the Respondent that the Applicant was a valued employee of the Respondent. There were approximately 1000 employees of the Respondent.

[8] On 13 February 2013, the Applicant moved into an Internal Account Manager role. From 11 June 2015, he worked as a Sales Operations Coordinator for the Back to School Services Team of the Respondent. The Applicant’s employment contract provided:

“6. Your responsibilities

During your employment you must:

1. diligently perform the duties and responsibilities that the Company assigns to you (the Company may vary these duties and responsibilities at any time);

2. devote your whole lime, attention and ability to the business of the Company;

3. as required by the Company, perform work for any other member of the Group;

4. comply with all lawful orders and instructions given by the Company:

5. comply with all of the, Company's policies as varied from time to time (although such policies operate independently of this contract and are not incorporated into this contract); and

6. complete and pass, within the flrst 3 months of your employment and every 12 months thereafter, those modules of the Company's "Law of the Jungle Better Business Programme" which are allocated to you.

A failure to comply with the obligations set out above may result in termination of your employment.”

[9] Ms Kent was the Back to School Services Manager, and was the immediate manager of the Applicant. Ms Kent was based in Adelaide, but the Applicant performed his role from the Erskine Park Distribution Centre in New South Wales (the Erskine Park DC), and his role required him to work closely with the warehouse operations team at the Erskine Park DC.

[10] The Respondent introduced temporary changes to employee access to the worksites of the Respondent to respond to various Government restrictions during the COVID-19 pandemic. The Back to School Team, like many other managerial and sales functions within the Respondent, were permitted to provide services from home at various stages during the pandemic. As a person engaged at the Erskine Park DC who was not involved directly in distribution, the Applicant was temporarily permitted to work from home, however there was a general return to the office environment at the Erskine Park DC that started as early as August 2021.

[11] The Respondent used a method of written communications with staff titled “Executive Insights” from the Chief Executive Officer, Mr Kelly, encouraging vaccinations for COVID 19, and seeking all employees who were vaccinated to return to the work environment. Such Executive Insights were sent on 18 and 29 July, 9 August, 17 and 24 September, 1 October, 1 November and 3 December 2021. The 1 November 2021 communication advised of the death of a warehouse employee of the Respondent due to COVID 19.

[12] On and from July 2021, the Respondent implemented, on a national basis, a number of initiatives to promote both vaccinations of its workforce for COVID-19 and encourage the progressive return of employees to the workplace.

[13] Up to 14 October 2021, the Respondent’s business in NSW had been restricted in its full operation as a result of various local area lockdowns and concerns about the spread of COVID-19. On 14 October 2021, Mr Kelly announced what he referred to as the Winc Road Map to Returning to the Office.

[14] The Respondent formulated policies on a national basis with respect to COVID-19, and attempts by the Respondent to prevent the spread of COVID-19. These policies were discussed with employees and formulated by the Respondent from approximately August 2021, which coincided with the time at which vaccinations were becoming available to the workforce of the Respondent. On 27 October 2021, the Respondent issued, on a national basis, its COVID-19 Company Policy (the COVID Policy), which stated as follows:

“As of 15 December 2021, all Winc employees must be Fully Vaccinated against COVID-19, unless they have been granted a Medical Exemption. These details must be recorded on the Australian Government Digital COVID-19 Certificate and provided to Winc as and when requested.”

[15] After the release of the COVID Policy, Mr Zogalis was responsible for addressing any questions or concerns of employees with respect to the vaccination requirement and the COVID Policy. At all relevant times, the Applicant indicated to the Respondent that he did not intend to be vaccinated for COVID-19.

[16] On 15 November 2021, the Applicant was advised in writing that the records of the Respondent showed that he had not demonstrated the fact of his vaccination for COVID-19. The Applicant was provided with four weeks’ notice of termination of his employment, with a last day of employment of 15 December 202l. In that correspondence, the Applicant was advised:

“Importantly, if you have had a change of mind regarding vaccination, urgently contact the Winc People Services Team to let them know of your circumstances. Winc will do whatever we reasonably can to assist you including making accommodations for your situation on a case-by -case basis, with the aim of retaining you as a fully vaccinated employee.”

[17] The Applicant made use of the opportunity to discuss with the Respondent his personal circumstances and preference not to be vaccinated in the period 15 November 202l to 9 December 2021. On 17 November 2021, the Applicant wrote to the Respondent as follows:

“Hi HR,

It’s my understanding that any outstanding long service leave I have accumulated will be paid out to me when I leave the business on 15/12.

Is there a way I can see what is the accumulated amount in hours and dollars? Thanks.

Victor Tey”

[18] On 19 November 2021, the Applicant wrote to Mr Zogalis as follows:

Hi Tony,

I have some questions regarding the new covid policy that I would like a response to from the comp any.

1. Why is rapid antigen testing not made an option for unvaccinated employees that needed to visit a work site? Either provided by the company or the employee.

2. Will Winc accept the liability of any vaccine injuries that may be incurred by Winc employees?

3. Why are religious exemptions to vaccines not afforded to Winc employees? I am aware of government agencies that allow this exemption but Winc does not.

4. Can you please provide me with the information or studies that were used by the company to determine that unvaccinated employees transmit the covid virus to a higher degree in comparison to vaccinated employees and what that determined figure is?

5. Covid is still able to be transmitted by vaccinated employees. What steps are in place to identify infected vaccinated employees and why does the company think those same precautions are insufficient to protect our staff from unvaccinated employees that may be infected?”

[19] On 23 November 2021, Mr Zogalis responded to the above correspondence from the Applicant as follows:

“It is not clear from your email as to whether you have had or may be in the process of changing your mind regarding vaccination, I hope that is the case. If you are genuine in your consideration of the possibility of being vaccinated, we are happy to answer your questions as follows:

1. Winc remains of the view that vaccination against COVID-19 is the most effective and reliable method of reducing the risk to health and safety in the workplace associated with COVID-19. This is based on government advice. Unfortunately, Rapid Antigen Testing in its current form does not meet the needs of the business with respect to ensuring the health and safety of the workplace.

2. The decision to be vaccinated is a personal medical decision. If you require any advice with respect to the vaccine, including any risks and/or benefits, that is a matter between you and your health professional. We therefore suggest you raise any concerns with your doctor who is better placed to advise you on these issues.

3. To my knowledge you have not put forward any perceived religious exemption. This question therefore has no relevance to your personal situation from my understanding.

4. In terms of the information that Winc has regard to with respect to the benefits of vaccination, we draw to your attention the following observations of the Fair Work Commission in the case of Construction, Forestry, Maritime, Mining and Energy Union, Matthew Howard v Mt Arthur Coal Pty Ltd TIA Mt Arthur Coal which, late last week, which was adopted by the Federal Court. The observations made by the Commission were as follows:

(a) All COVID -19 vaccines currently available in Australia substantially reduce the risk that the vaccinated person will be infected with COVID-19.

(b) All COVID-19 vaccines currently available in Australia substantially reduce the risk that, if the vaccinated person is infected with COVID-19, they will become seriously ill or die.

(c) All COVID-19 vaccines currently available in Australia substantially reduce the risk that, if the vaccinated person is infected with COVID--I9, they will infect someone else.

(d) A single dose (i.e. the first dose) of any of the COVID-19 vaccines currently available in Australia significantly reduces the risk that, if the vaccinated person is infected with COVID-'I9, they will become seriously ill or die.

(e) COVID-19 poses substantial risks to health and safety, and will continue to do so even after it becomes endemic and vaccination rates are high.

(f) Vaccination against COVID-19 is a practicable measure to reduce the risks to health and safety associated with COVID-19 .

5. You are correct that COVID-19 is still able to be transmitted via vaccinated employees, however, as we understand the available medical evidence, potential impact of COVID-19 infection of a fully vaccinated employee are and remain of substantially lesser severity and therefore risk. For those employees who are fully vaccinated and who are working in our workplaces, we have put in place a range of ongoing work health and safety initiatives to address our non-delegable statutory obligation to ensure the health and safety of all participants in our workplace, as we are required to do.

If the above information convinces you to be vaccinated, please let us know prior to the anticipated final date of employment. If you would like any assistance arranging a vaccination appointment please let us know and we will do whatever we can to help so that you can stay with the company and help us ensure the health and safety of our workplaces and safety of our teams and their families.

Victor, if it is the case that you have made a personal decision not to be vaccinated, then this personal decision on your part will be respected by us. It will, unfortunately however, have consequences for your ongoing employment with Winc which would be disappointing for us.

I hope this is helpful and if there is any other information that we can provide to you, please let us know.”

[20] Additional to the above answers, Mr Troy Swan, the Group Counsel of the Respondent who had been copied into correspondence including an enquiry from the Applicant regarding the use of rapid antigen tests, also provided answers to the Applicant as follows:

Dear Victor,

Thank you for your email of 24 November 2021. In terms of your questions:

l. We do not see rapid antigen testing to be sufficient for Winc to meet its non delegable statutory obligations to ensure health and safety. Like the Fair Work Commission and the Federal Court, we regard vaccination against COVID-19 as a practicable measure to reduce the risks to health and safety associated with COVID- 19.

2. We are not aware of any particular or overarching religious exemption. If an individual was unwilling or reluctant to be vaccinated for any reason (religious or medical), we would always discuss with that individual his or her concerns and a decision would be made based upon the available evidence.

3. We are not able to verify the science behind the comments of the Fair Work Commission. Based upon all that we do know, however, we fully support the observations and intend to apply these observations to our workforce.

4. We are not able to make any comment about your own individual health status and/or your own personal risk assessment.

Victor, we would hope that you would change your mind, but we respect any decision you make. If your employment with us is to come to an end, we appreciate your preparedness to discuss these matters.”

[21] On 29 November 2021, the Applicant sought a religious exemption, however that exemption was from himself, but contained another person’s redacted exemption application, and in the following terms:

“Hi Troy,

Thanks for your reply. I would like to request a religious exemption.

I pastor a Christian church and have had to provide a reference letter for religious exemptions to members who have required them.

Please see the attached example which has had the member's name omitted.

Victor Tey”

[22] On 3 December 2021, there was an email exchange between the Applicant and Mr Swan relating to a decision of the Commission in CFMMEU v Mt Arthur Coal. 1 The email also stated that the Respondent was not prepared to grant the Applicant a religious exemption and that the terms of the termination notice that had been issued on 15 November 2021, would remain unless the Applicant was able to comply with the COVID Policy.

[23] At no time did the Applicant depart from his stated position that he would not be vaccinated for COVID-19.

[24] On 9 December 2021, the Respondent confirmed in writing that the Applicant's last day of employment would be 15 December 2021.

[25] The Applicant did not make any employment applications until 8 June 2022. 2 After his dismissal he was preselected as a candidate for the Liberal Democrat party in the May 2022 Federal Election, and devoted his efforts to his possible election.3

The Applicant’s Submission

[26] The Applicant succinctly summarized his objections to his dismissal in the various submissions he filed. In summary, the Applicant submitted that it was unreasonable for the Respondent to:

(a) Mandate vaccinations for all its employees in the absence of a government mandate, even for those with minimal face-to-face interactions as part of their normal employment duties. The Applicant stated his role as a Sales Operations Coordinator fitted the definition of “Tier 4 work” as defined in the article “COVID-19 vaccinations: workplace rights and obligations” on the Fair Work Ombudsman website.

(b) Not accommodate Rapid Antigen Tests (RATs) as an alternative to vaccination.

(d) Mandate vaccinations for all its employees without proper consultation as required by the Work Health and Safety Act 2011 (the WHS Act) Division 2, Consultation with Workers.

The Respondent’s Submission

[27] The Respondent submitted that there was a valid reason for the dismissal that related to the Applicant's capacity to perform his role, and submitted that any consideration as to capacity must be assessed with reference to the position of the Applicant at the time of the termination of the employment. That position had an inherent requirement that he be vaccinated for COVID-19. The requirement to be vaccinated was (and remains) a safety direction.

[28] The Respondent, on multiple occasions, raised directly with the Applicant its ongoing concerns with respect to the Applicant's capacity to perform his role and the consequences for the Applicant's failure to meet the inherent requirements of the role. The Applicant was therefore notified of the reason for dismissal.

[29] The Applicant was repeatedly urged and encouraged by the Respondent to change his stated position with respect to being vaccinated for COVID-19 in order to retain his employment. As the Applicant was not vaccinated, he was not permitted to attend the offices of the Respondent, including the Erskine Park Distribution Centre. The Applicant chose to communicate directly with the Respondent by email communication. In the circumstances, it is submitted that section 387(d) of the Fair Work Act was met.

Consideration

Initial matters to be considered

[30] Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of the unfair dismissal application lodged by the Applicant (the Application). There is no dispute between the parties, and I am satisfied on the evidence, that:

(a) The Application was made within the period required in s 394(2) of the Act;

(b) The Applicant was a person protected from unfair dismissal;

(d) The Applicant’s dismissal was not a genuine redundancy.

Was the dismissal harsh, unjust or unreasonable?

[31] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of that section in considering whether the Applicant’s dismissal was harsh, unjust or unreasonable. I will address each of these matters in turn below.

Valid reason (s 387(a))

General principles

[32] It is necessary to consider whether the Respondent had a valid reason for the dismissal of the Applicant, although it need not be the reason given to the Applicant at the time of the dismissal. In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded” 4 and should not be “capricious, fanciful, spiteful or prejudiced.”5

[33] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 6 The question the Commission must address is whether there was a valid reason for the dismissal related to the Applicant’s capacity or conduct (including its effect on the safety and welfare of other employees).7

Consideration as to whether there was a valid reason

[34] The Applicant was dismissed for failing to comply with the COVID Policy that provided that employees were required to get fully vaccinated.

[35] The Applicant’s challenge to the validity of the reason relied upon by the Respondent was on three grounds. They were:

(1) There was no Public Health Order requiring vaccination;

(2) RAT tests were an adequate alternative;

(3) The Applicant should have received a religious exemption;

(4) The Respondent failed to consult with employees before the introduction of the COVID Plan and the Addendum; and

(5) It was reasonably practicable for the Applicant to work from home.

(1) Absence of Public Health Order

[36] I do not consider the fact that the Respondent’s industry has not been the subject of NSW Public Health Orders mandating vaccinations has any weight in assessing the reasonableness of the the COVID Policy. Whilst the existence of a government mandate requiring vaccination to enter a high-risk setting may weigh in favour of a complementary policy at that setting being reasonable, the converse is not true. The reasonableness of an employer’s policy proposing a vaccination requirement is to be objectively considered on its merits, and not be burdened by a presumption of unreasonableness simply because government authorities have not declared that worksite to be a high-risk setting.

[37] I give significant weight to the fact that a vaccination policy such as that included in the COVID Policy intrudes on one’s right to bodily integrity if it is complied with. The practical effect of the COVID Policy is to place pressure on an employee to give up this fundamental right, given that non-compliance is accompanied by potential disciplinary consequences that include termination of employment. This weighs against the COVID Policy being assessed as reasonable.

[38] However, I also give weight to the fact that the COVID Policy has a logical and understandable basis in that it deals with the management of a real and present risk to health and safety. I give significant weight to this consideration given the collective rights and obligations the Respondent and employees have to the management of workplace health and safety (including the mitigation of risk). That is particularly so where:

(a) Persons employed by the Respondent physically interact with other employees. The risk of virus transmission is real, not abstract or peripheral;

(b) While at the time of implementation of the COVID Policy there was the commencement of the prevalence of the Omicron variant of COVID-19 which was less severe in impacts than previous variants, it was highly transmissible and the rates of transmission were material; and

[39] Considered overall, the factors in favour of the COVID Policy being assessed as reasonable outweigh the factor against such a conclusion, being that the policy places pressure on an employee to give up a fundamental right to bodily integrity. I do not conclude that the COVID Policy is unreasonable, or disproportionate, as a workplace health and safety response to the risks presented by COVID 19. That being so, I conclude that a direction to comply with the Policy would be reasonable.

(2) RAT Tests

[40] The Applicant did not lead any evidence to support to efficacy or otherwise of RAT tests. However, considering generally available knowledge regarding the accuracy of RAT tests, it was understandable that, at the time of the imposition of the COVID Policy, Mr Zogalis and Mr Swan advised the Applicant that RAT tests “do not meet the needs of the business” and were not “sufficient for Winc to meet its non delegable statutory obligations to ensure health and safety”.

(3) Religious Exemption

[41] The Applicant does not detail why it was unreasonable that he was not granted a religious exemption. On any view of the application for an exemption made, it did not provide any basis for an exemption to apply to the Applicant. Rather, it provided a draft reference letter for religious exemptions that the Applicant had provided to members of his Church who had required them. In the absence of any substance particularly referrable to the Applicant it was unremarkable that the application for an exemption was rejected.

(4) Consultation

[42] The issue of consultation was a key basis of the Applicant’s challenge to his dismissal, though he never specified what he considered would have been adequate consultation. The Applicant simply stated that there had been inadequate consultation.

[43] In Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal, 9 the Full Bench stated:

“[98] It is uncontentious that the introduction of the Site Access Requirement and its implementation enlivened the consultation obligations in the WHS Act. Sections 47 to 49 of the WHS Act are set out below:

47 Duty to consult workers

(1) The person conducting a business or undertaking must, so far as is reasonably practicable, consult, in accordance with this Division and the regulations, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety.

Maximum penalty—

(a) in the case of an individual—230 penalty units, or

(b) in the case of a body corporate—1,155 penalty units.

(2) If the person conducting the business or undertaking and the workers have agreed to procedures for consultation, the consultation must be in accordance with those procedures.

(3) The agreed procedures must not be inconsistent with section 48.

48 Nature of consultation

(1) Consultation under this Division requires—

(a) that relevant information about the matter is shared with workers, and

(b) that workers be given a reasonable opportunity—

(i) to express their views and to raise work health or safety issues in relation to the matter, and

(ii) to contribute to the decision-making process relating to the matter, and

(d) that the workers consulted are advised of the outcome of the consultation in a timely manner.

(2) If the workers are represented by a health and safety representative, the consultation must involve that representative.

49 When consultation is required

Consultation under this Division is required in relation to the following health and safety matters—

(a) when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking,

(b) when making decisions about ways to eliminate or minimise those risks,

(c) when making decisions about the adequacy of facilities for the welfare of workers,

(d) when proposing changes that may affect the health or safety of workers,

(e) when making decisions about the procedures for—

(i) consulting with workers, or

(ii) resolving work health or safety issues at the workplace, or

(iii) monitoring the health of workers, or

(iv) monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking, or

(v) providing information and training for workers, or

(f) when carrying out any other activity prescribed by the regulations for the purposes of this section.

[99] The WHS Act is based on the work health and safety model laws, which have been enacted in all jurisdictions except Victoria and Western Australia.

[100] The Work Health and Safety Bill 2011 (Cth) Explanatory Memorandum provides some limited guidance on the content of the duty to consult in s.48, as follows:

‘153. Subclause 48(1) establishes the requirements for meaningful consultation. It requires PCBUs to: share relevant information about work health or safety matters (listed in clause 49) with their workers; give workers a reasonable opportunity to express their views; and contribute to the decision processes relating to those matters. It also requires PCBUs to take workers’ views into account and advise workers of relevant outcomes in a timely manner.

154. Subclause 48(2) provides that consultation must involve any HSR that represents the workers.

155. Consulting with HSRs alone may be sufficient to meet the consultation duty, depending on the work health or safety issue in question.’ [Emphasis added]”

[44] After considering the propositions that could be drawn from cases about what constituted consultation, 10 the Full Bench observed:11

“[113] While we accept that the metes and bounds of the Respondent’s obligation to consult is delineated by the terms of the WHS Act, we consider that the propositions outlined above contain contextual material that is relevant to an understanding of ss.48 and 49 of the WHS Act and will have regard to them on that limited basis. Of course, we recognise that the content of any specific requirement to consult is determined by the context, including:

• the precise terms in which such a requirement is expressed in the applicable industrial instrument, contract or legislation, including the circumstances in which the obligation is enlivened,

• the factual context in which the requirement arises, including the size and nature of the business and the nature of the change which is the subject of the consultation and the impact of that change on the persons who are required to be consulted, and

• whether the factual circumstances dictate a quick response.

[114] As to the last point, if there was a surge in COVID-19 cases such that the risk of transmission substantially increased or if a new, more transmissible or virulent, COVID-19 variant became prevalent then such circumstances may warrant a truncated consultation process. This is recognised in the qualification in s.47 of the WHS Act that consultation take place ‘so far as is reasonably practicable’.”

[45] The Applicant pointed to no specific consultation requirement other than the WHS Act. The factual context in which the consultation requirement was applied was to a Company with 1000 employees attempting to emerge from months of lockdown in October 2021, the very time that so many businesses in NSW were struggling to manage the re-emergence of their businesses.

[46] While, as I have observed at [37] above, a vaccination mandate such as that included in the COVID Policy intrudes on one’s right to bodily integrity, and the practical effect is to place pressure on an employee to give up this fundamental right, that mandate did not have immediate effect, and was the subject of voluminous further consultation with the Applicant both before, but particularly after the introduction of the COVID Policy.

[47] While the COVID Policy was introduced with some haste, I find the factual circumstances dictated a quick response.

[48] The complaint of the Applicant regarding consultation was not, I consider, regarding the absence of consultation. Rather, his complaint was that notwithstanding the consultation that did occur, the COVID Policy continued to apply to him.

[49] I consider that, taking into account the factual circumstances and the need for a quick response, the conduct of the Respondent was consistent with its consultation obligations under the WHS Act.

(5) Work From Home

[50] The Applicant was an employee based at the Erskine Park DC. 12 There is no suggestion that his contract was varied by him apparently working from home during the period of lockdown. From 14 October 2021, the Winc Road Map to Returning to the Office directed a staged return to the workplace. Given the Applicant’s vaccination status, he continued to work from home until her termination.

[51] I accept the evidence of Ms Kent that:

“The role performed by the Applicant required him to have a high degree of involvement with operational employees at the Erskine Park DC and it was for this reason that the Applicant performed his work from the Erskine Park DC prior to COVID-19 restrictions.”

[52] The Applicant directly addressed the above statement in his reply evidence, most pertinently as follows:

“Whilst working on site has its advantages with communication, it is not an inherent requirement to perform the role seeing that the team of three Sales Operations Coordinators in 2019 had a “high degree of involvement with the operational employees” at various distribution centres where they were not located on site and in states they did not reside in.

….

The “high degree of involvement with operational employees” at the distribution centres was not all year round. It was during the peak operational period of Back to School (November to January). In addition, during this period I was not at the distribution centre all 5 working days. I would often work 3 days on site and 2 days from my place of residence as the business accommodated flexible working arrangements.”

[53] That the Respondent sought, after the disruption of the lockdowns, to avail itself of the “advantages of communication” that the Applicant concedes existed was understandable, as was its desire to reinstate the “high degree of involvement with operational employees at the distribution centres”, particularly the Erskine Park DC. While it may have suited the Applicant in his desire to avoid being vaccinated, the Applicant could not adequately perform his duties while not attending the Respondent’s premises.

Conclusion on Valid Reason

[54] It follows from the matters set out above that I accept the Respondent had, at the time of the Applicant’s dismissal, a valid reason for such related to his capacity. The valid reason was that without compliance with the COVID Policy, the Applicant could not fulfil the inherent requirements of his job, to attend the Respondent’s premises at the Erskine Park DC.

Notification of reason (s 387(b))

[55] The Applicant was notified of the reasons for his dismissal in the termination letter of 9 December 2021.

Opportunity to respond (s 387(c))

[56] The Applicant was given opportunities to respond, and did in fact respond, to the reason for his dismissal in communications with the Respondent in the period leading up to his dismissal. Having regard to all the circumstances, I am satisfied that the Applicant was given an opportunity to respond to the reason for dismissal related to his capacity.

Unreasonable refusal to allow a support person (s 387(d))

[57] The Applicant did not seek to have a support person present in any conversations, and so this is not relevant to the present matter.

Warnings of unsatisfactory performance (s 387(e))

[58] The Applicant was not dismissed for unsatisfactory performance. This criterion is not a relevant criterion to the present case.

Size of enterprise and absence of human resource specialists or expertise (s 387(f) and (g))

[59] The Respondent has human resource management expertise. In all the circumstances, I am satisfied that neither the size of the Respondent’s enterprise nor any absence of human resource management specialists or expertise had any impact on the procedures followed in effecting the Applicant’s dismissal.

Other relevant matters (s 387(h))

[60] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment.

Conclusion

[61] After considering each of the matters specified in s.387 of the Act, my evaluative assessment is that the Respondent’s dismissal of the Applicant was not harsh, unjust or unreasonable. The Respondent had a valid reason for the dismissal, and it afforded procedural fairness to the Applicant prior to making the decision to bring his employment to an end. The Application is dismissed.

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