[2022] FWC 1593
The attached document replaces the document previously issued with the above code on 22 June 2022.
The reference to “Ms Spelman” in paragraph [51] is replaced with “Ms Scale”.
Associate to Deputy President Clancy
28 June 2022
| [2022] FWC 1593 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Jemimah Scale
v
Coles Supermarkets Australia Pty Ltd
(U2022/3993)
DEPUTY PRESIDENT CLANCY |
MELBOURNE, 28 JUNE 2022 |
Application for an unfair dismissal remedy – employment subject to Orders made under the Public Health and Wellbeing Act 2008 (Vic) – Applicant required to work on Respondent’s premises – Respondent required to comply and collect, record and hold vaccination information and to not permit unvaccinated workers to work outside the worker’s ordinary place of residence – Applicant did not provide vaccination information – Valid reasons for termination related to both capacity and conduct – Applicant secretly recording termination meeting also a valid reason – Dismissal not otherwise unfair.
[1] Ms Jemimah Scale has made an unfair dismissal application to the Fair Work Commission pursuant to s.394 of the Fair Work Act 2009 (the Act). In her Form F2 – Unfair Dismissal Application form (Form F2), Ms Scale named Coles Supermarkets Pty Ltd as the Respondent. The matter proceeded to a determinative conference conducted via Microsoft Teams on 20 June 2022 at which it was confirmed that the correct name of Ms Scale’s former employer was Coles Supermarkets Australia Pty Ltd. I therefore amended the application without objection to record Coles Supermarket Australia Pty Ltd (Coles) as the Respondent and I consider my doing so comes within the circumstances in which it has been held this is possible pursuant to s.586 of the Act. 1
[2] At the determinative conference, Mr Goyal appeared for Coles and Mr Alex Smith assisted Ms Scale. Ms Scale gave evidence, as did Mr Conrad Taylor for Coles. Ms Scale worked for Coles at its Morwell store as a Customer Service Agent from 25 May 2020 until the termination of her employment on 24 March 2022. Mr Taylor has been the Morwell Store Manager for Coles since 14 November 2021.
[3] The application was made within the 21-day period after the dismissal took effect, as required by s.394(2) of the Act (s.396(a)) and there is no dispute that Ms Scale is a person protected from unfair dismissal because she had completed the minimum employment period, the Coles Supermarkets Enterprise Agreement 2017 2 applied to her and her annual rate of earnings was less than the high income threshold (s.396(b)). Further, it is not disputed, and I am satisfied that Coles was not a small business employer. As such, the matter does not require consideration of whether the dismissal was consistent with the Small Business Fair Dismissal Code (s.396(c)). Finally, it was not claimed and nor does the material before me suggest the dismissal was a case of genuine redundancy (s.396(d)).
[4] As to the circumstances set out at s.385 of the Act, there is no question or dispute that Ms Scale was dismissed (s.385(a)). Further, as outlined above, this is not a matter that involves a small business, such that consideration of whether Ms Scale’s dismissal was consistent with the Small Business Fair Dismissal Code (s.385(c)) is required or one where it is claimed the dismissal was a case of genuine redundancy (s.385(d)).
[5] This leaves s.385(b) and in determining whether the dismissal was harsh, unjust or unreasonable, I must have regard to s.387 of the Act:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[6] Having outlined the criteria in s.387 of the Act, I am under a duty to consider each of these criteria in reaching my conclusion and will do so below.
Consideration
Was there a valid reason for dismissal relating to Ms Scale’s capacity or conduct? – s.387(a)
[7] In considering whether the dismissal of Ms Scale was harsh, unjust or unreasonable, I am required to take into account whether there was a valid reason for the dismissal related to her capacity or conduct (including its effect on the safety and welfare of other employees). The reason or reasons should be “sound, defensible and well founded” 3 and should not be “capricious, fanciful, spiteful or prejudiced”.4
[8] By way of background, the Victorian Minister for Health issued a declaration pursuant to s.198(1) of the Public Health and Wellbeing Act 2008 (Vic) (PHWA) on 16 March 2020 that Victoria had entered a state of emergency as a consequence of the COVID-19 pandemic. The declaration was extended numerous times and covered relevant periods during Ms Scale’s employment. Where a state of emergency exists, the Chief Health Officer of Victoria may authorise the issuing of emergency powers, which include the issuing of directions pursuant to the PHWA. 5
[9] On 7 October 2021, the Acting Victorian Chief Health Officer issued the COVID-19 Mandatory Vaccination (Workers) Directions. These Directions imposed obligations on employers of certain identified workers (including retail workers) to collect, record and hold vaccination information about their workers scheduled to work outside the worker’s ordinary place of residence on or after 15 October 2021. Further, under these Directions:
a) A retail worker was defined to mean a person who works at or in connection with a retail facility; 6
b) A retail facility included a supermarket; 7
c) Employers of retail workers were to ensure that unvaccinated workers did not work for them outside their ordinary place of residence on or after 15 October 2021 unless they had a booking to receive a first dose of a COVID-19 vaccine by 22 October 2021. 8
d) Exceptions applied if a worker held a certification from a medical practitioner that they were unable to receive a COVID-19 vaccine due to a medical contraindication or an acute medical illness.
[10] The COVID-19 Mandatory Vaccination (Workers) Directions were updated from time to time, with the last version of them to operate being the COVID-19 Mandatory Vaccination (Workers) Directions (No 8). These were in turn replaced by the Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 1) (Specified Workers Order), which commenced at 11:59pm on 15 December 2021, and provided that:
a) If a worker (which, as identified in Row 29 of Column 1 of Schedule 1 of the Specified Workers Order, included retail workers) was or might be scheduled to work outside of their ordinary place of residence after 11:59pm on 15 December 2021, their employer was required to collect, record and hold vaccination information about them;
b) Retail workers were defined as persons who worked at or in connection with a retail facility, which in turn was defined as a premises at which a business operated to provide for the sale of goods by retail, including a supermarket; 9 and
c) Employers of retail workers were not to permit their workers to work for them outside of their ordinary place of residence if they were unvaccinated or partially vaccinated and if they did not hold vaccination information about a worker, the employer was to treat the worker as if the worker was unvaccinated.
[11] The Specified Workers Order was replaced by subsequent versions. Version 5 of the Specified Workers Order commenced at 11:59:00pm on 25 February 2022, was of the same effect and was in operation until 11:59:00pm on 12 April 2022.
[12] On 10 March 2022, a meeting via Zoom was held between Mr Taylor and Ms Jessica Cochran, the Officer in Charge at the Coles Morwell Store, and Ms Scale and her support person, Mr Smith. At the start of the meeting, Mr Taylor reminded Ms Scale that the meeting was to be a private and confidential discussion amongst the participants to the phone call and while Ms Scale was permitted to take notes of the conversation, he did not consent to her or Mr Smith recording the meeting by any means. When Mr Taylor sought confirmation from Ms Scale as to whether she understood this, she responded in the affirmative. Mr Taylor proceeded to put to Ms Scale that she had failed to comply with the vaccination requirements set out in the Coles COVID-19 Vaccination Policy. He suggested that the vaccination requirements in the Coles COVID-19 Vaccination Policy were consistent with the Victorian Government’s COVID-19 vaccination public health orders and that the effect of those orders was that Coles was prohibited from allowing her to undertake on-site work unless she was vaccinated. Mr Taylor asserted that because Ms Scale was unvaccinated and had not provided a medical exemption, she had been unable to perform her role. Further, he said that Ms Scale’s ongoing refusal to comply with the vaccination requirements was sufficiently serious to warrant the termination of her employment. Mr Taylor explained that the reason for the meeting was to provide Ms Scale with a final opportunity to show cause as to why her employment should not be terminated and he asked her to take the opportunity to provide any further/new information that she had not already provided for his consideration before he made a decision as to whether or not to terminate her employment.
[13] In reply, Ms Scale said Mr Taylor and Coles had failed to provide a response to her concerns regarding the vaccinations or to provide her with the information she required in order to be able to make an informed decision. In particular, Ms Scale asked why Mr Taylor had not answered her questionnaire and why Coles had not replied to her ‘notices’. Ms Scale sought a response to an email she had sent on 9 March 2022 and asserted that Mr Taylor was breaking the law and failing to follow due process. She variously argued there was nothing in her contract of employment that required her to receive a vaccination, that forcing anyone to undergo a medical procedure was illegal and that she was being coerced contrary to law.
[14] When Mr Taylor responded by stating that Coles’ COVID Response Team had already responded to Ms Scale’s letters and ‘notices’, such that he was not required to respond to her queries any further, Ms Scale disputed this and said that her questions and concerns had not been answered. She again claimed that she had not been given information that would enable her to make an informed decision about vaccination. Ms Scale pressed Mr Taylor for answers and information. He responded by saying that Ms Scale had not brought any new information to the meeting and brought it to a close, stating that having considered all the information that Ms Scale had provided, he had decided to terminate her employment based on her failure to comply with the vaccination requirement. Mr Taylor said he would send Ms Scale a letter confirming the termination of her employment.
[15] Ms Scale was notified in writing that her employment was terminated via a letter from Mr Taylor dated 11 March 2022 (the Termination Letter). In the Termination Letter, it was stated that the reasons for Ms Scale’s termination were as “previously explained …in our discussion of 10 March 2022”. Ms Scale was provided with 2 weeks’ notice of termination and advised her employment would cease on 24 March 2022.
[16] Ms Scale submits there was no valid reason for her dismissal related to her capacity or conduct as far as either Version 5 of the Specified Workers Order or the Coles COVID-19 Vaccination Policy are concerned. In broad terms, Ms Scale contends the various versions of both the Directions and the Specified Workers Orders were illegal and that there was no legal basis for Coles to insist that she comply with the Coles COVID-19 Vaccination Policy.
[17] Coles submits it had three valid reasons to dismiss Ms Scale because:
• She was unable to perform the inherent requirements of her role;
• She had engaged in serious misconduct by refusing to obey a lawful and reasonable direction; and
• She had engaged in serious misconduct by secretly recording the meeting the parties had on 10 March 2022 after Mr Taylor had expressly stated he did not consent to it being recorded and Ms Scale had confirmed that she understood this.
[18] Despite the range of submissions made by and on behalf of Ms Scale questioning and disputing the legality of the Directions and Orders and challenging their application to both herself and the Respondent, the Directions and Orders have at no stage been declared invalid by a Court and were in effect at all material times. I therefore proceed on the basis that the Directions and Orders are valid and lawful, and I do not propose to engage with the various propositions advanced in this regard by and on behalf of Ms Scale. The Commission must discharge its functions according to law. Further, I am satisfied Version 5 of the Specified Workers Order applied to Coles and Ms Scale. The supermarket of Coles in Morwell is a “retail facility” and by virtue of her work there, Ms Scale was a “retail worker”.
[19] Version 5 of the Specified Workers Order imposed an obligation on Coles to collect, record and hold vaccination information about Ms Scale in the event she was or might be scheduled to work outside her ordinary place of residence after 11:59:00pm on 25 February 2022. Further, Coles was required to not permit Ms Scale to work for it outside her ordinary place of residence if she was “unvaccinated” or not an “excepted person”. If Coles did not hold “vaccination information” about a worker, it was obliged to treat the worker as if the worker was “unvaccinated”. A refusal or failure by Coles to comply with a pandemic order or with a direction given to it or a requirement in the exercise of a pandemic management power was an offence for which a penalty of 300 penalty units applied. 10
[20] Ms Scale had not provided “vaccination information” to Coles by 24 March 2022. Further, at no time has Ms Scale asserted she was “fully vaccinated” by 24 March 2022. Similarly, she has not asserted she was an “excepted person” at any material time or that she provided information to Coles disclosing this. Regardless, there has never been a mandatory requirement under the Directions or Orders for Ms Scale to receive a COVID-19 vaccine and it was open to Ms Scale to choose not to become vaccinated. Ms Scale’s choice had, however, the inevitable consequence of rendering her unable to perform her job as a Customer Service Agent. Because Ms Scale chose not to become vaccinated and did not hold the certification required to be regarded as an “excepted person” under Version 5 of the Specified Workers Order, she was unable to perform the job she was employed by Coles to do. The parties agreed that there were no roles at the Morwell store that could be performed from home, that Ms Scale’s job could not be performed from home and that it required her to attend the Morwell store and perform other duties outside her ordinary place of residence, with her duties including:
• attending the Morwell store to collect products purchased by online customers, prepare deliveries and load them onto the delivery truck;
• driving the delivery truck to each customer’s address and delivering their products; and
• returning the delivery truck to the Morwell store after all products had been delivered.
[21] Coles did not hold “vaccination information” about Ms Scale on 10 March 2022 and was therefore required under Version 5 of the Specified Workers Order to treat her as if she was ‘“unvaccinated”. The consequence of this was that Coles was prohibited under this Order from permitting Ms Scale to work outside of her ordinary place of residence. Although Ms Scale said she was ready, willing and able to perform her duties, the Order provided no scope for Coles to allow Ms Scale to work on its premises, notwithstanding her claim that she had only minimal contact with other people. Had Coles permitted Ms Scale to work outside of her ordinary place of residence, it would have been guilty of an offence and exposed to a substantial financial penalty. Having regard to these circumstances, I am satisfied that Coles had a valid reason for dismissing Ms Scale that was related to her capacity.
[22] Coles says the Coles COVID-19 Vaccination Policy 11 was implemented in November 2021 and provides that all Coles team members based in Victoria were required to be vaccinated in line with Victorian Government public health orders or directions by receiving two doses of a COVID-19 vaccination by 26 November 2021, unless they were medically exempt. The Coles Vaccination Policy also required Coles team members to update their vaccination status in myhub, the Respondents’ online employee portal.
[23] The Coles COVID-19 Vaccination Policy also provides:
• “If you are unable or unwilling to adhere to the requirements set out above, you will not have satisfied Coles that you are ready, willing and able to work at Coles from the relevant dates specified above”; and
• “It is an inherent requirement of all roles at Coles to attend your place of work, or another Coles site, regularly or from time to time. Team members who refuse to comply with these requirements may be subject to disciplinary action (up to and including dismissal) in accordance with clause 6 of this policy”.
[24] Coles submits Ms Scale engaged in serious misconduct by refusing to obey its lawful and reasonable direction that she comply with the vaccination requirements in the COVID-19 Vaccination Policy.
[25] Deputy President Colman discussed the concept of lawful and reasonable directions in the recent decision in Roman v Mercy Hospitals Victoria Ltd 12 (Roman), as follows:
“Implied into the contract of employment is an obligation of an employee to obey the employer’s lawful and reasonable directions (Bayley v Osborne (1984) 4 FCR 141 at 145). The requirement that the direction be lawful has two dimensions. One is that the employer cannot demand that an employee act unlawfully. The other is that the direction must be within the scope of the contract of employment (see R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621-2 per, Dixon J). The latter reflects the ‘general rule ... that a contract by which a person is employed in a specific character is to be construed as obliging him to render, not indeed all service that may be thought reasonable to render, but such service only as properly appertains to that character’ (see Commissioner for Government Transport v Royall (1966) 116 CLR 314 at 322, per Kitto J).” 13 (my underlining)
[26] In Roman, the Deputy President identified two dimensions required in order for a direction to be lawful. As to them, I am firstly satisfied that the direction given by Coles did not require Ms Scale to act unlawfully. The Coles Vaccination Policy was consistent with the Directions and Specified Workers Orders. Secondly, I am satisfied Coles issued a direction to Ms Scale that was within the scope of her contract of employment. Version 5 of the Specified Workers Order imposed an obligation on Coles to not permit Ms Scale to work for it outside of her ordinary place of residence unless she had provided vaccination information establishing that she was not “unvaccinated”. Coles made a direction related to Ms Scale’s job because her compliance or non-compliance with the direction bore upon her capacity to perform it. I agree with the view the Deputy President expressed in Roman that a direction to an employee to do something that is a necessary condition for a state of capacity to do their job is a lawful direction. 14
[27] As to whether the direction given by Coles in either form (in writing or through its managers) was reasonable, I am satisfied it was. The various versions of the Directions and Specified Workers Orders imposed new regulatory requirements for Ms Scale’s role and the directions given by Coles in response to them were directed towards Ms Scale being able to continue to do the job she was hired to do. Ms Scale was within her rights to decline to become vaccinated and not provide Coles with the information it requested from her but, having regard to the test enunciated by the Full Bench in CFMMEU and Anor v Mt Arthur Coal Pty Ltd 15 as to whether a direction is reasonable, I am satisfied there was a “logical and understandable basis”16 for the direction made by Coles. I am therefore satisfied that Coles also had a valid reason for dismissing Ms Scale which involved misconduct constituted by her refusal to follow a lawful and reasonable direction.
[28] Finally, Coles submits it had a third valid reason for dismissing Ms Scale being that Ms Scale engaged in serious misconduct by secretly video recording the meeting on 10 March 2022, after Mr Taylor had expressly stated that he did not consent to the meeting being recorded and Ms Scale had confirmed that she understood this. Coles says it did not become aware that Ms Scale had recorded the meeting until it saw the video recording Ms Scale filed and served as part of her documents for this proceeding. Coles relies therefore on the established principle that evidence of an employee's misconduct that emerges after dismissal may be relied upon by an employer as a valid reason for dismissal in an unfair dismissal proceeding. 17 Ms Scale does not dispute that Mr Taylor told her that he did not consent to the 10 March 2022 meeting being recorded or that she had confirmed that she understood this. However, Ms Scale says she consented to the meeting being recorded and submits that making the recording was “completely lawful and legal.”18
[29] Putting the legality of having made the recording to one side, I consider Ms Scale’s actions in secretly recording the 10 March 2022 meeting constitutes serious misconduct and can be relied upon by Coles as a valid reason for dismissal. I endorse the view expressed by Deputy President Colman in Roman that, unless there is a justification, the secret recording of conversations in the workplace is highly inappropriate, irrespective of whether it constitutes an offence in the relevant jurisdiction because of the reasons outlined by the Deputy President in Gadzikwa v Australian Government Department of Human Services:
“The reason it is inappropriate is because it is unfair to those who are secretly recorded. They are unaware that a record of their exact words is being made. They have no opportunity to choose their words carefully, be guarded about revealing confidences or sensitive information concerning themselves or others, or to put their best foot forward in presenting an argument or a point of view. The surreptitious recorder, however, can do all of these things, and unfairly put himself at an advantage. Moreover, once it is known that a person has secretly recorded a conversation, this is apt to produce a sense of foreboding in others, an apprehension that they must be cautious and vigilant. This is potentially corrosive of a healthy and productive workplace environment. Generally speaking, the secret recording of conversations with colleagues in the workplace is to be deprecated.” 19
[30] I do not consider that Ms Scale had justification to secretly record the 10 March 2022 meeting. This is because Ms Scale had a support person present for the meeting and was invited to take notes of the discussion. Further, the meeting had been preceded by the show cause letter dated 25 February 2022 which had provided background information regarding the purpose of the meeting. I consider Ms Scale’s actions went beyond being inappropriate. They were reprehensible because she continued to record the discussion at the meeting on 10 March 2022 after confirming that she understood Mr Taylor did not consent to this. This action demonstrated a complete lack of integrity and it is difficult to see how any line manager at Coles would have been able to take Ms Scale at her word in any similar scenario going forward.
Notification of the valid reason – Opportunity to respond to any reason related to capacity or conduct – s.387 (b) and (c)
[31] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made, 20 in explicit terms,21 and in plain and clear terms.22 In Crozier v Palazzo Corporation Pty Ltd23 a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following:
“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
[32] On 1 October 2021, David Brewster (Coles’ Chief Legal and Safety Officer) sent an email to all Coles employees in Victoria 24. In that email, Mr Brewster advised that:
“The Victorian Government has announced that from Friday 15 October 2021, all authorised workers in Victoria must have received at least one COVID-19 vaccine in order to continue working onsite”; and
“So that Coles can comply with this Victorian Government Order, all team members must enter their vaccination status into myhub as soon as possible”.
[33] Ms Scale replied with a letter dated 11 October 2021, 25 in which she accused Mr Brewster of having issued a threat which was exerting economic duress upon her by forcing her to choose between participating in a COVID-19 vaccination clinical trial or losing her job and in those circumstances, she was unable to provide consent to be injected with a COVID-19 vaccine. Coles replied with an email to Ms Scale sent by Ms Katrina Davis, Regional Manager, on 12 October 2021. Ms Davis outlined:
“…Coles is obliged to ensure that team members meet the mandated vaccination requirements in order to allow them to work.
Where team members do not meet these requirements, it will be deemed that they are not ready, willing and able to work and will not be paid. Leave entitlements may be accessible upon request and approval by Coles.
Team members should direct questions relating to the vaccine itself to a suitably qualified health practitioner.
Coles will not be filling in or signing the form you have provided us in relation to the COVID-19 vaccine requirements.
Should you have further questions about COVID-19 vaccination requirements, please direct them to your line manager.”
[34] On 14 October 2021, Mr Brewster sent a further email 26 to all Coles employees in Victoria, which outlined:
“Tomorrow Victorian Government vaccination regulations commence for all our team members. This note sets out the requirements of those regulations for team members in relation to their work for Coles.
…
If you do not disclose your vaccination status through myhub, you cannot leave home for work from Friday 15 October. This means you cannot attend stores, DCs, the Tooronga SSC, or visit other people like suppliers from tomorrow.”
“If you choose not to be vaccinated and have not provided a certification of a medical contraindication, you cannot leave home for work from Friday 15 October. This means you cannot attend stores or the Tooronga SSC for work from tomorrow.”
[35] Ms Scale sent letters dated 15 December 2021 to each of Mr Taylor, Mr Steven Cain, Mr Matt Swindells and Mr Brewster in which she requested “valid proof of claim with physical material evidence within 72 hours” that the Coles COVID-19 Vaccination Policy and the Coles/ request/demand were lawful and reasonable based on “Constitutional guarantees” she outlined. 27 These were followed up with further letters of a similar nature to Mr Brewster, Ms Davis and Mr Cain, dated 21 December 2021. Coles provided a response to the letter sent to Mr Swindells on 23 December 2021, in which its position in relation to the Directions was outlined and a suggestion that she discuss her concerns about the safety or efficacy of the COVID-19 vaccines with her doctor or a suitably qualified medical expert. Ms Scale wrote again, sending letters dated 29 December 2021 to Mr Cain, Mr Swindells and Mr Brewster. The three sets of letters sent by Ms Scale were templates documents said to have been prepared by “De Cline”, whatever or whomever that is.
[36] Coles responded to the correspondence that had been sent to Mr Brewster in an email sent to Ms Scale on 5 January 2022 and to the letters that had been sent to Ms Jackson and Mr Cain (noting they were duplicates of her correspondence to Mr Swindells and Mr Brewster) in an email sent on 10 January 2022. In responding, Coles outlined:
• Reasons why it did not agree with the assertion that the Directions were unlawful;
• That it was required to comply with any applicable Public Health Orders and Directions;
• It was an offence under the Directions for it to allow team members to work at Coles sites if they were unvaccinated and did not have a valid exemption and it could be liable for significant penalties if this occurred;
• It was unable to allow its team members to work if they had neither met the vaccination requirements nor provided evidence of a valid medical exemption; and
• Ms Scale should discuss any concerns about the safety or efficacy of the COVID-19 vaccines with her doctor or other suitably qualified medical expert.
[37] While Coles says the Coles COVID-19 Vaccination Policy was introduced to employees in November 2021 via a series of emails, Ms Scale does not acknowledge this. She did however acknowledge receiving an email dated 22 December 2021 from the Coles People & Culture team, 28 It was outlined in this email that all Coles employees in Victoria were required to be fully vaccinated to work on site, unless they were medically exempt. Further, Ms Scale was advised that as she was not compliant with the Coles COVID-19 Vaccination Policy, she was at that time unable to attend work and perform the inherent requirements of her role. Ms Scale was also advised that the Coles COVID-19 Vaccination Policy required her to confirm her compliance by entering her vaccination status into myhub and it was confirmed that it was an inherent requirement for Coles team members to attend their place of work, or another Coles site, regularly or from time to time.
[38] Mr Taylor sent a letter to Ms Scale dated 3 February 2022, 29 in which he outlined:
“…
On 22 December 2021, we sent you an email reminding you of the policy requirements.
…
As at the date of this letter, you have not demonstrated compliance with the Policy. You are required, by no later than 10/02/2022 to take steps to comply with the Policy. Specifically, this means that:
• if you are unvaccinated, you are required to have your first dose of COVID-19 vaccine and have made a booking for your second dose of a COVID-19 vaccine; and
• you are required to update your vaccination status in myhub. You may also be required to show evidence of your vaccination status to your line manager.
If you are unable to comply with this direction by 10/02/2022 please provide us with further information or documents for our consideration.
Failure to comply with this direction may result in disciplinary action being taken against you, up to and including termination of your employment.
…
There is support available if you are finding it difficult to comply with the Policy requirements. We encourage you to seek medical advice if you have any concerns or queries about COVID-19 vaccines.
…”
[39] Mr Smith took it upon himself to send emails to Mr Taylor on 3 February 2022 and 4 February 2022 in which he appeared to accuse Mr Taylor of criminal activity and threatened his arrest.
[40] It is not disputed that Mr Taylor sent a further letter to Ms Scale dated 25 February 2022. 30 In this letter Mr Taylor referred to the 3 February 2022 letter and the direction that Ms Scale comply with the requirements of the Coles COVID-19 Vaccination Policy by no later than 10 February 2022 and outlined:
“Our records indicate that despite this direction, you have still not demonstrated compliance with the Policy and as a result, you have not demonstrated that you are ready, willing and able to perform work for Coles.
…
Coles considers that your ongoing refusal to comply with the Policy and your failure to comply with the lawful and reasonable direction issued to you on 03/02/2022 is sufficiently serious to warrant the termination of employment.
We require you to attend a virtual meeting on Webex/ Teams on 03/03/22 at 1pm to provide you with a final opportunity to show cause as to why your employment should not be terminated.”
A link to this meeting will be sent to you separately. You are of course welcome to bring a support person to this meeting if you would like.
Prior to the meeting, you are encouraged to provide any further information or documents for our consideration by emailing me at … by no later than close of business on 01/03/2022…”
[41] In response to a request from Ms Scale, the meeting scheduled for 3 March 2022 was postponed until 10 March 2022. On 9 March 2022, Ms Scale sent Mr Taylor a document that purported to be a statutory declaration but was in essence a questionnaire for him to complete about COVID-19 vaccination. 31 Mr Taylor did not complete the questionnaire. On 10 March 2022, the meeting between Mr Taylor, Ms Scale, Ms Cochran and Mr Smith, referred to at paragraphs [12]-[14] above, took place. Ms Scale was informed by Mr Taylor that her ongoing refusal to comply with the vaccination requirements was sufficiently serious to warrant the termination of her employment and she was provided with an opportunity to provide any further/new information that she had not already provided for Mr Taylor’s consideration before he made a decision as to whether or not to terminate her employment.
[42] Having regard to the circumstances and correspondence I have outlined above, I am satisfied Ms Scale was notified of the reason Coles relied on for her dismissal and the possibility of dismissal and that she had been given opportunities to respond prior to the decision to terminate her employment having been made. Further, I am not persuaded the document Ms Scale sent to Mr Taylor on 9 March 2022 in response to the 25 February 2022 show cause letter provided any new information. Nor did Ms Scale raise matters not previously raised during the meeting on 10 March 2022. In the circumstances of this case, I do not consider it was unreasonable for Mr Taylor to proceed to make the decision to dismiss Ms Scale during the meeting on 10 March 2022.
Unreasonable refusal by the employer to allow a support person – s.387(d)
[43] This consideration is not relevant. There was no unreasonable refusal by Coles to allow Ms Scale a support person at discussions relating to her dismissal and no refusal was alleged.
Warnings regarding unsatisfactory performance – s.387(e)
[44] This consideration is not a factor in this matter. It was not asserted that the termination related to issues of performance.
Impact of the size of the employer on procedures followed - s.387(f) and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
[45] Coles is a large employer and has a commensurate human resources function. Although Ms Scale asserted that the size of Coles impacted on the procedures followed in effecting her dismissal, she did not advance any submissions as to how this was so. Regardless, I do not consider the material before me suggests the size of Coles was a relevant factor in this matter (s.387(f)), and nor is s.387(g) applicable.
Other relevant matters – s.387(h)
[46] Section 387(h) of the Act requires the Commission to take into account any other matters it considers relevant.
[47] Ms Scale worked for Coles for just under two years. Ms Scale said she had performed well and received multiple awards. She enjoyed her work, considered herself to be dedicated to her job and says she got on well with her colleagues and enabled Coles to be successful with their online deliveries. Ms Scale said she looked after her own health and claimed she was not a risk.
[48] I have taken into account Ms Scale’s objection to becoming vaccinated and the fact that she expressed a range of views about the COVID-19 vaccination mandates and the efficacy of the COVID-19 vaccinations but note, contrary to Ms Scale’s assertions, that the COVID-19 vaccines applicable at the material times had been approved for use by Australia’s national regulator, the Therapeutic Goods Administration. More broadly, while Ms Scale expressed a range of views about the COVID-19 vaccination mandates and the efficacy of the COVID-19 vaccinations, it is not for the Commission to engage in commentary about Ms Scale’s views, other than to observe they motivated her choice to decline vaccination and her refusal to comply with the Coles COVID-19 Vaccination Policy.
[49] Ms Scale was afforded a four-month period to weigh up her options in the face of the Directions, the Specified Workers Order and the Coles COVID-19 Vaccination Policy. She was sent information by Coles, offered access to the EAP and advised to seek medical advice. She was paid two weeks’ notice upon termination. I have noted the contents of the material sent by Ms Scale to Coles and in particular to Mr Taylor. I am satisfied Mr Taylor was acting in accordance with instructions and information provided to him by Coles and draw no adverse inference from the nature of the responses from Coles. The Coles responses were appropriate in the circumstances of this case.
[50] Further, Coles had to comply with the law and the requirements under the Directions and Specified Workers Orders. Coles was required to collect vaccination information in relation to Ms Scale if she was to perform her job and it was unable to permit Ms Scale to attend the workplace if she was unvaccinated. To do her job, Ms Scale had to work outside of her ordinary place of residence. Ultimately, Ms Scale was unable to work for Coles as a consequence of the decision she made.
[51] Having considered and weighed the matters raised in relation to s.387(h) of the Act, I do not find that they are sufficient to render Ms Scale’s dismissal harsh, unjust or unreasonable.
Conclusion
[52] I have made findings in relation to each matter specified in s.387 of the Act as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 32 I am satisfied the dismissal of Ms Scale was not harsh, unjust or unreasonable. Accordingly, I find that Ms Scale’s dismissal was not unfair. As I have found that Ms Scale’s dismissal was not unfair, her application for unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
Ms J Scale on her own behalf with assistance from Mr A Smith.
Mr J Goyal for Coles Supermarkets Australia Pty Ltd
Hearing details:
2022.
Melbourne (via Microsoft Teams).
June 20.
Printed by authority of the Commonwealth Government Printer
<PR742941>
1 Djula v Centurion Transport Co. Pty Ltd [2015] FWCFB 2371 at [28].
3 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
4 Ibid.
5 Public Health and Wellbeing Act 2008 (Vic), s.200(1)(d).
6 COVID-19 Mandatory Vaccination (Workers) Directions at Clause 9(28)(e).
7 COVID-19 Mandatory Vaccination (Workers) Directions at Clause 9(28)(d(iii).
8 COVID-19 Mandatory Vaccination (Workers) Directions at Clause 5.
9 Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 1) at Schedule 2, Division 2, Clauses 32(13)(e) and 32(14).
10 Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 5) at Part 4, Clause 24.
11 DCB at p.1055.
13 Ibid at [30].
14 Ibid at [31].
16 Ibid at [96].
17 Lane v Arrowcrest Group Ltd (1990) 27 FCR 427 at 456; Byrne and Frew v Australian Airlines Limited [1995] 185 CLR 410 at 467; and Roman at [34].
18 DCB at p.595.
19 [2018] FWC 4878 at [83].
20 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
21 Previsic v Australian Quarantine Inspection Services (AIRC, Holmes C, 6 October 1998), Dec 907/98 M Print Q3730.
22 Ibid.
23 (2000) 98 IR 137, 151.
24 DCB at p.1017.
25 DCB at p.1044.
26 DCB at p.1051.
27 DCB at p.1060-1068.
28 DCB at p.1075.
29 DCB at p.1223.
30 DCB at p.1249.
31 DCB at p.1255.
32 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].