| [2022] FWC 1632 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Dany Nekho
v
Rentokil Initial Pty Ltd
(U2022/458)
DEPUTY PRESIDENT EASTON |
SYDNEY, 24 JUNE 2022 |
Application for an unfair dismissal remedy – mandatory vaccination policy – refusal to be vaccinated against COVID-19 – lawful and reasonable direction – consultation – Policy not invalid because of deficiencies in consultation – consultation deficiencies curable and cured prior to direction given under Policy – lawful and reasonable direction given – valid reason for dismissal related to capacity or conduct – alternatives to dismissal – request to permanently work from home not reasonable – unreasonable to dismiss at a time when employees were required to work from home – remedy – no loss because employment would not have lasted beyond the period of notice paid (in lieu) by the employer – application otherwise dismissed.
[1] Mr Dany Nekho was employed by Rentokil Initial Pty Ltd from November 2016 until December 2021. At the time he was dismissed he was employed as an IT Product Manager based at the Lidcombe Corporate Head Office. Mr Nekho worked from home from the outbreak of the COVID-19 pandemic in March 2020. In October 2021 Rentokil introduced a national policy requiring all staff to be double vaccinated by 31 December 2021. Mr Nekho was not vaccinated and argued strongly that he should be allowed to continue working from home.
[2] Despite delayed office refurbishments that required all staff to work from home for several more weeks, Mr Nekho was dismissed on 17 December 2021.
[3] On 6 January 2022 Mr Nekho made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Rentokil Initial Pty Ltd (Rentokil). Mr Nekho seeks compensation from his former employer.
[4] For the reasons set out below I find that Mr Nekho was unfairly dismissed, but only in respect of Rentokil’s decision to dismiss Mr Nekho at a time when all comparable employees were working from home because of office refurbishments. In the circumstances I have declined to make an order for compensation because Mr Nekho did not suffer any loss arising from this unfairness.
[5] Mr Nekho did not attend the workplace from March 2020 onwards. When COVID-19 broke he wrote to his supervisor asking to work from home. Mr Nekho has a child who is immunosuppressant and his request in March 2020 referred to working from home to avoid the possibility that he might contract COVID-19 and then bring the virus into his home.
[6] Later in 2020 Mr Nekho had been involved in the development of a work from home policy, referred to as the “Hybrid Working Policy”. Mr Nekho’s involvement in the development of this policy was limited to advising on the paperless office aspects of policy, and his involvement ceased prior to the finalisation of the policy itself.
[7] Mr Nekho nonetheless complains that the Hybrid Working Policy was implemented by Rentokil in 2020 without further reference to him. This complaint is not an essential part of Mr Nekho’s case but it seems to me that his involvement in the development of the policy was only peripheral and that Rentokil did not owe Mr Nekho any duty or even courtesy to discuss the final form of the policy with him before implementing it.
[8] Rentokil operates nationally, has in excess of 1650 employees and provides a range of commercial goods and services for both household and commercial use. The main business for Rentokil in Australia is based around its pest control products and services, washroom hygiene products and indoor Plant hire.
[9] Over the course of the pandemic parts of Rentokil’s workforce have been subject to different public health orders including differing regimes relating to vaccination. Further, Rentokil’s customers have differing requirements in relation to vaccination and some clients, such as aged care, hospitality and meat works, only allow vaccinated people onto their premises.
[10] In 2021 Rentokil decided to unify its policy to deal with safety risks associated with COVID-19 and introduced a uniform national policy requiring all employees to be vaccinated, subject to certain limited exceptions.
[11] Rentokil published information about COVID-19 and about vaccinations, including a very detailed “Q&A” document, and invited questions from employees.
[12] There was no evidence of consultation between Rentokil and its employees in any collective sense prior to the proclamation of the Policy.
[13] Mr Nekho was aggrieved that he was not consulted prior to the commencement of the Policy, and also aggrieved that Rentokil did not, in his view, properly consult with the workforce generally prior to introducing the policy.
[14] However, after the policy was announced Mr Nekho was given several opportunities to express his views regarding the policy, opportunities to raise concerns about how the Policy should or should not apply to him, and also the opportunity to raise any particular questions he had about the operation of the Policy.
[15] Mr Nekho took up the opportunity of providing feedback and seeking further information. He did so via email because, he says, the introduction of the policy caused him significant stress and distress, which meant that he was unfit for work from 27 October 2021 onwards, and which also meant that he did not think he had the strength to discuss his concerns by telephone.
[16] As a result, there was a series of emails between Mr Nekho and Rentokil about the application of the Policy and Mr Nekho’s vaccination status. I observe that generally Mr Nekho’s emails were courteous, respectful, eloquent and strongly worded to advance his case. For example, on 3 December 2021 he sent an email to Rentokil that included the following:
“I refer to your previous correspondence on Thursday 11 November in relation to my decision regarding my vaccination status.
I hold genuine concerns about the vaccine and its impact on my health and, as such, I have made the decision that I do not wish to be vaccinated at this time.
I have waited to respond until I received legal advice on this issue through a referral from the Fair Work Ombudsman. I have now received this advice, which I believe supports my decision not to be vaccinated against COVID-19, on the basis that the direction I be vaccinated is not reasonable in my circumstances.
I understand that you want to ensure that Rentokil meets its work health and safety obligations and protects all employees against COVID-19. In your emails you have referred to a risk assessment concerning vaccination which you say concluded within the COVID-19 policy that vaccinations were necessary. However, in the circumstances of my employment, where I am able to work exclusively from home and not engage with other employees or customers, I cannot see how there is any risk arising from my employment that warrants the requirement that I be vaccinated. Throughout the recent lockdown, I have met all my obligations and was able to perform my role with no impact on efficiency or accuracy and I am able to continue to do so. I request that you consider allowing me to continue to work at home, in which I will be able to perform my duties as I have done so prior to the easing of restrictions.
While I don't believe this is necessary having regard to the issues raised in the previous paragraph, I also note your response regarding my religious exemption and the document provided by Tom Mourani, Chairman, Evangel Church Sydney Committee. I request that you explain the level of detail you require concerning a religious tenet in order to accept a religious exemption. Once provided, I will request further documentation from my church to adequately explain the religious tenet relied upon.
As previously mentioned, my request to continue working from home does not relate solely to Rentokil's mandatory COVID-19 vaccination policy. I hold significant health and safety concerns for my child who is immunocompromised. Whilst COVID-19 vaccinations are a strong safety measure in reducing hospitalisations and transmissions, it does not prevent transmissions entirely. Returning to the office, even whilst vaccinated still carries significant health and safety concerns for my child. Due to this reason I do not wish to return to the office regardless of Rentokil's mandatory COVID-19 vaccination policy. I request that in reconsidering my work from request and position that you take this into consideration.
I value my job and my colleagues and it is my sincere wish to continue to work at Rentokil. I am willing to discuss with you any and all options to continue working from home.
I look forward to speaking with you about how we can move forward.”
[17] I also observe that Rentokil’s responses were similarly respectful, properly engaged with the matters at hand and appropriately strong in stating Rentokil’s own position. For example on 6 December 2021 Rentokil wrote to Mr Nekho in the following terms:
“To this end, we have made it clear to our workforce that our flexible workplace arrangements will be enhanced and are available and we will facilitate working from home arrangements, on a case by case basis but the employee must always meet the work requirement to be able to attend the office and/or team meetings when required. This is aligned with our Hybrid Working Policy (April 2021). However, it is not a proper request for a flexible workplace arrangement that an individual simply sees that their existing position be in effect converted into a home-based role.
Any decision on your part to be vaccinated (or not vaccinated) is a personal decision. Any decision that you make will be respected, however, not being vaccinated will impact upon your ongoing employment. In the circumstances, we do not regard you as having either a right or a basis for what you describe as a 'religious exemption'.
Please be assured that we have carefully considered your personal situation and that you will have the benefit of the hybrid working policy upon your return. That said, it remains an inherent requirement that you be fully vaccinated though. I believe that your circumstances have been reviewed in consultation with you on a few occasions during discussions with your manager, Harman Singh and we have made the position of Rentokil Initial clear in conversations, written correspondence and Rentokil Initial's numerous company communications. We are not prepared to redefine your role in a manner that would permit you to perform the role in a way that avoided the necessity of you to attend our work premises.”
[18] Unfortunately reasonable minds did not ultimately agree: Mr Nekho was not vaccinated and Rentokil did not relent in its insistence that his employment could only continue if Mr Nekho was vaccinated.
[19] At first in cross-examination Mr Nekho said he did not understand from the communications with Rentokil what their specific position was in relation to vaccination, although he eventually agreed that he understood the meaning of the particular words used in Rentokil’s unambiguous communication.
[20] In cross examination Mr Nekho sought to differentiate between what he thought Rentokil required in relation to vaccination, and what he thought Rentokil required in relation to his attendance at the workplace. He says that it was not clear to him whether he would be required to attend Rentokil’s office because, firstly, he had raised concerns in March 2020 in relation to attending work and, secondly, Rentokil had not specifically said to him that he was required to attend the office premises.
[21] I do not find this to be a satisfactory distinction or explanation. Rentokil’s communication unambiguously advised that it required all staff to be vaccinated. Through a series of emails Mr Nekho challenged the application of this requirement to his circumstances.
[22] Mr Nekho’s challenges were put in words that assumed that he would otherwise be required to attend Rentokil’s premises from time to time, as evidenced by his request that Rentokil specifically exclude him from the requirement to attend the office. Rentokil’s correspondence insisted that Mr Nekho provide proof of vaccination by a certain date, which was unrelated to any specific date or time at which Mr Nekho was required to attend its offices.
Religious Exemption
[23] Rentokil’s vaccination policy allowed employees to apply for a ‘religious exemption’.
[24] Mr Nekho applied for a religious exemption from the requirement to be vaccinated. Mr Nekho’s application for a religious exemption was supported by a letter from the Chairman of the Evangel Church Sydney Committee asserting that “the imposed ultimatum for Dany to receive the COVID-19 vaccination against the conviction of his conscience” is contrary to the tenants of his Christian faith.
[25] Mr Nekho’s claim does not stand or fall upon this asserted religious exemption and it is not necessary to closely examine Mr Nekho’s claim in this regard.
[26] In my view there is only a tenuous link between Mr Nekho’s decision not to be vaccinated and his religion. It is said by the Committee Chairman that Mr Nekho’s religion supports his “individual freedom of conscience”. If this proposition is accepted then Mr Nekho’s personal opinions, be it the opinions he holds as a ‘matter of conscience’, would have some higher religious status. It was not unfair of Rentokil to reject Mr Nekho’s application for a religious exemption.
[27] In 2021 Rentokil started refurbishing its Lidcombe Corporate Head Office. Regardless of the different public health order requirements, all staff based at this head office worked from home while the refurbishment took place.
[28] Unfortunately there were delays in the completion of the refurbishment. On 22 November 2021 Rentokil wrote to head office staff advising that it hoped to have the office ready for occupation on 10 January 2022. This is relevant because the renovations were occurring at the same time that Mr Nekho was working from home and corresponding with Rentokil about vaccination requirements and the requirement for Mr Nekho to attend the head office premises in the course of his duties.
[29] Rentokil maintained a jurisdictional objection, asserting that there was no dismissal because Mr Nekho either repudiated his contract of employment or abandoned his employment by failing to be vaccinated. In my view neither proposition is correct or helpful.
[30] The long and the short of it is that the employer issued a direction to the employee: to be vaccinated or face the likely consequence of dismissal. When the employee did not comply with the employer’s direction, the termination of employment was at the initiative of the employer. Moreover, statements such as the following do not reflect the legal realities of the situation:
“Should you not provide us with evidence of your first vaccination taken by 12 November 2021 and agreed to get fully vaccinated, Rentokil could consider this as you having brought the employment to an end.”
[31] Rentokil decided to issue a direction, enforceable by dismissal, because it thought that compliance with the direction was important enough that it was prepared to bring about the end of the employment of those who did not follow the direction. In this regard, to issue something less than a direction would be to merely issue a request, or to encourage but not require particular conduct, and employees would have the option of accepting or rejecting the request. That is not to say that every time an employer issues a direction it potentially initiates the termination of an employment.
[32] While each employee subject to the direction has some control over the outcome (by getting vaccinated or not), it is not the employee in the sequence who has brought the employment to an end.
[33] I am required by s.387 of the FW Act to take into account the following matters in determining whether Mr Nekho’s dismissal was harsh, unjust or unreasonable:
(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.
[34] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. I set out my consideration of each below.
[35] To be a valid reason, the reason for the dismissal should be sound, defensible or well founded, and should not be capricious, fanciful, spiteful or prejudiced. In assessing the validity of any reason(s) for dismissal the Commission will not stand in the shoes of the employer and determine what the Commission would do in the same position.
[36] The reason for dismissal was Mr Nekho’s failure to be vaccinated by the deadline set by Rentokil in its Vaccination Policy. The direction within the Policy is said to be a lawful and reasonable direction to Mr Nekho.
[37] Mr Nekho argued that the consultation prior to the implementation of the Vaccination Policy was deficient, relying upon the Full Bench decision in In CFMMEU v Mt Arthur Coal Pty Ltd 1 (“Mt Arthur Coal”). Mr Nekho says that Rentokil is obliged to retract the policy, because of deficiencies in its consultation with the wider workforce and, if Rentokil wants to introduce a mandate, conduct different (and inferentially better) consultation.
[38] In Mt Arthur Coal the Full Bench found that the site access requirement/vaccine mandate was prima facie lawful because it was a requirement to protect the health and safety at work and fell within the scope of the employment and there is nothing ‘illegal’ or unlawful about becoming vaccinated. 2
[39] The Full Bench found that the direction within the site access policy was not reasonable because of deficiencies in Mt Arthur’s consultation. This finding needs to be understood in the following context. In that matter a direction had been given to the workforce at the site, but consultation had not been adequate prior to when the direction was issued. The direction was challenged and Mt Arthur provided an undertaking not to implement the outcome of any disciplinary process associated with any employee’s refusal to comply with the Site Access Requirement pending the resolution of the proceedings in the Commission. 3
[40] The Full Bench found that the original direction was not reasonable, solely because of the deficiencies in the consultation process, and identified the way forward to be further consultation in a short period of time before the site access requirements could be imposed. That is, the earlier deficiencies were not incurable and did not render the vaccination direction forever unenforceable. The Full Bench contemplated and effectively endorsed the possibility that exactly the same direction could be issued/enforced once adequate consultation had occurred.
[41] After the Full Bench decision, Mt Arthur did undertake further consultation in a short period of time and then announced to all employees that it had made the decision to introduce the site access requirements. On the same day the decision was announced Mt Arthur gave stood down employees a further seven days to consider whether they would comply with the new site access requirement. 4
[42] By the time Mr Nekho’s employment ended Rentokil had consulted extensively with him. As Mr Nekho conceded in cross-examination, he was given the opportunity to make any submissions he wanted to make, to request information and to receive answers to his questions. Whatever deficiencies there might have been in Rentokil’s consultation with its wider workforce, those deficiencies were cured for Mr Nekho by the time Rentokil moved on its direction.
[43] The vaccine policy was otherwise reasonable in light of Rentokil’s national operation, the variability of the vaccination requirements across its national operation, and the specific needs of some of Rentokil’s customers such as aged care facilities, hospitality venues and the like.
[44] I find that the direction contained within Rentokil’s Policy was lawful and reasonable.
[45] Mr Nekho says that his daughter is immunocompromised and therefore the risk of Mr Nekho attending the office, contracting COVID-19 and bringing a virus back to his house means that he should be allowed to work exclusively from home. Mr Nekho provided no medical evidence to support this risk and in his communications in 2020 and 2021 he refers to his daughter being under 12 and unable to be vaccinated. It is not clear whether the daughter could not be vaccinated because of age restrictions at the time, or because of her condition. In any event, Mr Nekho’s argument only works for him if he never leaves home for any purpose at all. Otherwise it seems incontrovertible that the risk of Mr Nekho bringing the COVID-19 virus into his home was significantly greater in 2021 if he was not vaccinated.
[46] Overall I find that there was a valid reason to terminate Mr Nekho’s employment connected to Mr Nekho’s capacity or conduct.
Was the Applicant notified of the valid reason?
[47] Section 387(b) requires me to take into account whether Mr Nekho “was notified of that reason.” Sections 387(b) and (c) direct the FWC’s inquiry to matters of procedural fairness. In general terms a person should not exercise legal power over another, to that person’s disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case. 5
[48] In context, the inquiry to be made under s.387(b) is whether the employee was “notified” of that reason before the employer made the decision to terminate. The reference to “that reason” is a reference to the valid reason(s) found to exist under s.387(a) and the reference to being “notified” is a reference to explicitly putting the reasons to the employee in plain and clear terms.
[49] Rentokil notified Mr Nekho of the valid reason for his dismissal on 17 December 2021.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
[50] Mr Nekho was given a proper opportunity to respond to the allegations against him.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
[51] This factor is not a relevant consideration in this matter. Mr Nekho insisted that the communication between himself and Rentokil was by email.
Was the Applicant warned about unsatisfactory performance before the dismissal?
[52] As the dismissal did not relate to unsatisfactory performance, strictly speaking this factor is not relevant to the present circumstances.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[53] Neither party submitted that the size of Rentokil’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of Rentokil’s enterprise had no such impact.
To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[54] Rentokil enterprise does not lack dedicated human resource management specialists.
What other matters are relevant?
[55] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
[56] There are two matters to consider under this heading. Firstly, Mr Nekho submits that even if the Policy was lawful and reasonable, he says that his job could be performed satisfactorily from home and that it was unfair to insist that he attend the workplace in the circumstances. This argument is distorted by the fact that the circumstances of the pandemic required or permitted Mr Nekho to work from home between March 2020 and when he was dismissed in December 2021.
[57] Like most employers in the country, Rentokil had to adapt to ever-changing circumstances including having employees work from home because there was no alternative. Rentokil did not submit that allowing Mr Nekho to continue working from home was unworkable. Rather, Rentokil maintains that in a post-lockdown world, it is necessary for Mr Nekho to attend the head office from time to time and within Rentokil’s prerogative to require him to do so.
[58] This argument does not support Mr Nekho’s case.
[59] Secondly, Mr Nekho argues that it was otherwise unfair to insist that he was to be vaccinated by December 2021 when in fact all relevant employees were working from home because of delays in the refurbishment of head office. There is merit to this argument. Rentokil required Mr Nekho to be vaccinated because of safety concerns when Mr Nekho, and every other employee, attends the workplace. Mr Nekho was not otherwise required to attend the workplace until the refurbishment was complete.
[60] In my view it was unreasonable to dismiss Mr Nekho on 17 December 2021 because at this stage, Mr Nekho was not required to attend the workplace in any event. I appreciate that Rentokil was overseeing the implementation of a new and significant policy and needed to nominate a specific date by which employees must be vaccinated. However there was no rational basis for insisting that Mr Nekho be vaccinated by a date significantly earlier than the date all staff were due to resume at the refurbished premises.
[61] Employees did not return to the head office premises until 10 January 2022. It was unreasonable to dismiss Mr Nekho before this date.
[62] I have made findings in relation to each matter specified in section 387 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 and therefore an unfair dismissal.
[63] I find that the dismissal of Mr Nekho was, in the circumstances, unreasonable.
[64] Most factors point towards the dismissal not being unfair. The only factor that supports a finding that the dismissal was unfair was the fact that Rentokil insisted upon dismissing Mr Nekho and a time when Mr Nekho was not required to attend the office.
[65] Having considered each of the matters specified in section 387 of the FW Act, and by the smallest of margin, I am satisfied that the dismissal of Mr Nekho was unfair.
[66] Being satisfied that Mr Nekho made an application for an order granting a remedy under s.394, was a person protected from unfair dismissal and was unfairly dismissed within the meaning of s.385 of the FW Act, I may order Mr Nekho’s reinstatement, or the payment of compensation to him, subject to the FW Act.
[67] It is not appropriate to order Rentokil to reinstate Mr Nekho.
[68] Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. The question whether to order a remedy remains a discretionary one. 6
[69] Where an applicant has suffered financial loss as a result of the dismissal, this may be a relevant consideration in the exercise of this discretion. 7
[70] Mr Nekho was given four weeks’ pay in lieu of notice of termination.
[71] At the time Mr Nekho was dismissed Rentokil expected employees to return to the office less than four weeks after the termination date. It was open to Rentokil to give Mr Nekho four weeks’ notice and to allow him to serve out the notice working from home. If Rentokil had done so then Mr Nekho’s employment would have extended until 10 January 2022.
[72] In all the circumstances, I am not satisfied that an order for payment of compensation is appropriate given that even if his employment had continued until 10 January 2022 he would be no better off.
[73] In conclusion I find that the dismissal of Mr Nekho was unfair, but only because Rentokil should have allowed Mr Nekho to continue working from home until the reopening of the head office premises on 10 January 2022.
[74] I do not make any order for a remedy because, in my view, Mr Nekho did not suffer any loss arising from the unfairness identified above.
[75] I will otherwise make an order dismissing Mr Nekho’s application. 8
DEPUTY PRESIDENT
Appearances:
Mr D Nekho, Applicant
Mr P Brown for the Respondent
Hearing details:
2022.
Sydney (By Video using Microsoft Teams)
May 6.
Printed by authority of the Commonwealth Government Printer
<PR743053>
1 (2021) 310 IR 399 at 458, [2021] FWCFB 6059 at [224].
2 Ibid at [85].
3 Ibid at [15].
4 [2021] FWC 6626 at [48]-[49]
5 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151 [70] citing FAI Insurances Ltd v Winneke (1982) 151 CLR 342; Kioa v West (1985) 159 CLR 550; Annetts v McCann and others (1990) 170 CLR 596
6 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198 at [9].
7 Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171 at [5]-[7].