Fair Work Act 2009
s.394—Unfair dismissal

Alannah Maree Little
v
Aldi Stores
(U2022/3385)

Application for an unfair dismissal remedy

[1] On 21 March 2022, Ms Alannah Maree Little (Ms Little/the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against Aldi Stores (Aldi /the Respondent).

[2] In the Form F3 Employer Response submitted on 11 May 2022, the Respondent raised the jurisdictional objection that the Applicant was not dismissed.

[3] A conciliation before a Commission Conciliator did not take place and the matter was then allocated to me. I listed the matter for a Directions Hearing on 26 May 2022 and issued directions for the filing of material in relation to the jurisdictional objection and the merits.

[4] The matter was listed for hearing on 14 July 2022. The Applicant appeared on her own behalf, and Ms Philippa Noakes, Senior Associate at Seyfarth Shaw, was granted permission to appear for the Respondent.

EVIDENCE AND SUBMISSIONS

[5] Ms Little relied on her written submissions and attachments filed on 13 June 2022, 1 her reply submissions on 7 July 2022,2 and documents filed on 13 July 2022 which included further responses to material filed by the Respondent. The Respondent did not object to Ms Little adopting this material as her evidence in chief to the extent that it went to facts in issue and the material was admitted into evidence on that basis.

[6] The third bundle of documents included a without prejudice “Deed of Release” document which was excluded from the evidence. Ms Little advised she only relied on the existence of the document for the purpose of supporting her case that it was understood she was not returning to work.

[7] The Respondent relied on its written submissions of 23 June 2022, a witness statement of Saffron Newton 3 of 23 June 2022 and a witness statement of Steven Bristow4 of 23 June 2022. Mr Bristow corrected his statement at the commencement of his evidence such that paragraph 31 was amended, and a section of his evidence should sit at paragraph 45. The effect of this change was that a conversation which he had initially thought had occurred on 10 January, occurred on 22 January 2022. Mr Bristow also amended his statement at paragraph 34 for the same reason.

[8] Ms Little confirmed in her closing submissions that consistent with her earlier material, she did not seek reinstatement, but sought a remedy of compensation in the amount of six weeks’ pay.

[9] Ms Little in her oral evidence accepted that groceries are critical to modern Australian life and the nature of her work included her interacting closely with members of the public and other employees of the Respondent. Ms Little said she agreed with the Respondent’s Covid 19 policy. Ms Little said she was vaccinated before the Respondent’s policy was implemented.

November 2021

[10] In November 2021, Aldi informed all employees that they would be required to have two doses of a COVID-19 vaccine by 1 March 2022 to continue performing work. The relevant requirements on employees (including the Applicant) were set out in the Vaccination Policy, which Aldi notified to employees.

[11] Under the Vaccination Policy, all Aldi employees were required to confirm their vaccination status and provide a copy of their proof of vaccination (or, if applicable evidence of a valid medical contraindication) by 11:59 pm on 10 January 2022.

[12] Aldi employees who failed to comply with the 10 January 2022 deadline were sent an email on 11 January 2022 notifying them that they had failed to comply with the deadline and requesting that they submit the required information by 17 January 2022, or provide proof of a future vaccination appointment.

[13] Ms Little agreed that the Policy was introduced on 30 November 2021, and that proof of vaccination was required by 10 January 2022.

[14] Ms Little agreed that she was sent a reminder email to provide proof of vaccination by 1 December 2021, and then another reminder on 22 December 2021.

1 December 2021

[15] Ms Little was taken to a document sent by the Respondent to its staff on 1 December 2021 advising staff how to confirm their vaccination status by completing a form and providing an email address to send the evidence to. This document included the following statement:

“If you choose not to complete the form, we’ll need to assume you’re unvaccinated”.

22 December 2021

[16] Ms Little was taken to another email sent to all employees on 22 December where it is said that employees were receiving the email because they had not completed the Covid status questionnaire. Ms Little could not confirm whether she recalled receiving the email.

[17] Ms Little was taken to a separate document of the same date stating that the Respondent records indicated Ms Little had not completed the questionnaire and asking her to do so by clicking on the link in that email.

[18] Ms Little confirmed in her oral evidence that by December 2021 she was fully vaccinated. Ms Little said she was pretty sure she did send an email to the Respondent in December, but the Respondent could not open the link to this email.

10 January 2022

[19] Ms Little agreed that she had still not provided proof of vaccination by 10 January 2022 but said she was annual leave at this time.

11 January 2022

[20] Ms Little agreed that she was provided a letter by the Respondent on 11 January 2022 giving her an extension until 17 January 2022 to provide proof of vaccination. Ms Little said that she was still on leave at this time.

17 January 2022

[21] It was put to Ms Little that Mr Bristow’s evidence will state that by 17 January 2022 Ms Little had still not provided the Respondent with proof of vaccination. Ms Little accepted this may be correct.

18 January 2022

[22] Ms Little accepted that on 18 January 2022 the Respondent sent her a show cause letter asking her to provide any additional information by 21 January 2022 before the Respondent made any decision about her ongoing employment.

[23] Ms Little also accepted that she received a text message from Mr Bristow on 18 January 2022 asking her to provide proof of vaccination.

19 January 2022

[24] Ms Little sent a text message in response on 19 January 2022 stating she had been double vaccinated at the Respondent’s head office. Mr Bristow responded asking Ms Little to provide her My Gov certificate, and Ms Little responded that she felt that as she had been vaccinated at head office and had to show identification, the Respondent would know she was vaccinated.

[25] Mr Bristow responded that the Respondent required the proof for its records, and government issues the certificates, not the Respondent. Ms Little responded to the effect that she didn’t know why the Respondent needed it; however said the Respondent could see it and questioned that the Respondent needed a copy.

[26] Ms Little indicated that she would seek advice from a lawyer and the union before handing over the certificate. Mr Bristow suggested that the parties meet the following Saturday 22 January 2022 when Ms Little was back at work.

[27] It was put to Ms Little that she was refusing to provide the proof at that time. Ms Little said she did not have the relevant certificate at that time.

[28] Mr Bristow gave oral evidence that it was his view that Ms Little did not want to provide the evidence of her vaccination, and it was not that she was unable to.

22 January 2022

[29] Ms Little agreed that on 22 January 2022 she told Mr Bristow that she would try and download her proof of vaccination however she did not provide it at that time.

[30] It was Ms Little’s evidence that she showed Mr Bristow a digital certificate on 22 January 2022. Ms Little claimed that she was told by Mr Bristow at the meeting that the digital certificate may not be authentic and he did not ask her to send it. It was put to Ms Little that she could have sent this digital certificate to the relevant vaccination email address of the Respondent at any time after this date. Ms Little maintained that she was given the wrong information. Ms Little agreed she could have (sent the digital certificate) but that was not what she was told that she needed to do. Ms Little accepted that the policy said that the proof was to be sent to the relevant email address.

[31] Ms Little said she thought from the meeting with Mr Bristow that she was told that the green tick she had shown Mr Bristow was not sufficient. Ms Little accepted she did not contact the Respondent’s vaccination team.

[32] Ms Little accepted that she did not at any time contact the vaccination team at the Respondent for assistance, however she said she was under the impression that she could talk to Mr Bristow. It was put to Ms Little that she did not take up an offer from Mr Bristow to assist her. Ms Little said she did.

[33] Ms Little asked Mr Bristow if she showed him her “green tick” and he said he could not be sure. It was Mr Bristow’s evidence that Ms Little flashed something to him in a meeting.

28 January 2022

[34] Ms Little agreed that on 28 January 2022 Ms Dervan sat down with Ms Little and attempted to help her access her proof of vaccination. Ms Little said she suggested Ms Dervan give it a go because Ms Little couldn’t get it to work.

Friday 18 February 2022

[35] Ms Little agreed that on 18 February 2022, Mr Bristow sent a show cause letter to her. In that letter, Aldi informed Ms Little that due to her failure to provide proof of vaccination, Aldi was considering terminating her employment. Ms Little was invited to provide a response by 22 February 2022.

Tuesday 22 February 2022

[36] On 22 February 2022 at 8:20am, the Applicant sent an email to Mr Bristow in which she confirmed that she had been vaccinated at Aldi’s Stapylton head office, and that she was trying to get proof to demonstrate her vaccinated status. The email read as follows:

“Hi Steve , as I have said I’m vaccinated I got vaccinated by Aldi at head office at Stapleton , I have the dates I got vaccinated, I have txt messages from my manager in charge about being on the spreadsheet, I have a photo of me getting vaccinated at head office as I was encouraging others to get the vax , I have showed u my digital certificate on my Queensland check in app the green tick ✅ And it has my name and date from vaccinated, I have asked my manager for the company that vaccinated me for a vaccination history , but ALDIs reply was it got sent to Medicare , so that’s how I gathered I got the green tick , Aldi payed me for both vaccinations and I received 2 gift cards from Aldi for getting vaccinated, at this stage I’m trying to get enough proof for Aldi .”

[37] That morning at 9:08am, Mr Bristow sent an email to Ms Little and requested a copy of her vaccination certificate from MyGov or Medicare for Aldi’s records. Mr Bristow requested this proof of vaccination by close of business that day.

[38] At 9:17am that morning, Ms Little sent an email to Mr Bristow stating that she could not provide the proof of vaccination at that time, as she had requested the information from Medicare. At 9:18am, Mr Bristow sent an email to the Applicant which stated “No worries. Please keep me informed. I will give you a call tomorrow with next steps if you can’t send that through today”.

[39] It was put to Ms Little during cross examination that she thought a different process should apply to her. Ms Little said that she was just having difficulty getting the certificate to prove she had been vaccinated.

[40] It was put to Ms Little that she did not want to provide the required proof to the Respondent, and she disagreed saying she just did not have time to get it. It was put to her that she did not agree with the policy, and she referenced in her reply material to there being lots of different ways for the Respondent to help her prove her case.

Wednesday 23 February 2022

[41] On 23 February 2022, Mr Bristow called the Applicant to discuss next steps.

[42] On 23 February 2022 at 10:15am, an email was sent to Ms Little enclosing a letter which informed the Applicant that due to her failure to provide proof of vaccination, Aldi was giving notice that the Applicant’s employment would come to an end at the end of her notice period; and that the Applicant would not be rostered to perform work after 28 February 2022 on the basis that she had not complied with Aldi’s Vaccination Policy.

[43] Later that day at 2:42pm, Ms Little sent an email to Mr Bristow in which she stated, “will a history statement of my vaccinations be enough?”

[44] At 2:54 pm, Mr Bristow sent an email to the Applicant and confirmed that “yes an immunization history statement or COVID-19 Digital Certificate is all we require as proof of vaccination”.

Thursday 24 February 2022

[45] On 24 February 2022, at 8:41am, Ms Little sent an email to Mr Bristow enclosing a screenshot of her COVID-19 digital certificate. Ms Little accepted that this was not provided until after she had received the termination letter.

Friday 25 February 2022

[46] On 25 February 2022, at 10:33am, Mr Bristow sent an email to the Applicant confirming that the Digital Certificate would be accepted as proof of vaccination, but that Mr Bristow needed to physically sight the Applicant accessing the certificate through MyGov. The email read as follows:

“Hi Alanna,

After some back and forth Vaxxed have confirmed for me that the below Digital Certificate can be accepted as proof of vaccination however you will need to physically show me accessing it through your My Gov account. Are you able to come into the store today?

Steve..”

[47] Mr Bristow asked the Applicant if she could come into the store that day. A copy of text sent two minutes later to Ms Little is also set out below:

“Just sent you an email. Good news is we can accept the digital certificate. I just need to see it in person on your phone.”

[48] At 2:48pm that day, the Applicant sent an email to Mr Bristow in which she stated that she could not go into the store. At 3:16pm, Mr Bristow sent an email to the Applicant and confirmed that “you will be ok to return to work and continue to work after 28th February based on the certificate you sent me. I will view it when I see you next. Can you confirm when you will be back at work?”.

[49] Ms Little sent a text message to Mr Bristow with a screenshot of an earlier email which stated:

“This is what I got from you , and now your saying the one I emailed you is fine ?”

[50] Mr Bristow replied:

“Yes. Since that email. We have reviewed the lesser evidence you provided yesterday and are happy to accept that as proof of vaccination. You will continue to be rostered past the 28th February. I’ll confirm it in email for you.”

[51] Ms Little accepted she received this text and said she stated she needed an email to prove she had a job and Mr Bristow asked Mr Nick Conway to send her an email and he did. Ms Little said it was a phone call with Mr Bristow and she needed proof.

[52] I asked Ms Little to confirm that it was her evidence that she had a telephone conversation and she wanted an email to confirm she was still employed and she agreed this was correct, and said that she said to Mr Bristow if she was being reinstated, she needed proof and a phone call was not acceptable. Ms Little stated during her oral evidence that she didn’t know how the Respondent could turn around a termination notice 72 hours before it took effect and it was Friday afternoon after 4pm and then her last day was to be Monday 28 February.

[53] Ms Little agreed she was told in the telephone conversation with Mr Bristow it was okay, but her evidence was that she wanted proof.

[54] At 4:33pm, Ms Little sent an email to Mr Bristow in which she confirmed that she would be at work on Saturday morning at 6am. She also raised an issue that Mr Bristow had already sighted that certificate on 22 January 2022.

[55] At 5:23pm, Mr Bristow sent an email to the Applicant and confirmed that in the meeting on 22 January 2022, the Applicant was asked to provide a copy of her proof of vaccination and that she had agreed to do so. However, the Applicant refused to provide the required proof until 24 February at 8:41am. In his email, Mr Bristow confirmed that Aldi was not proceeding with the termination of the Applicant’s employment.

[56] The Respondent submitted that following receipt of the Applicant’s proof of vaccination and confirmation to the Applicant that her employment was not terminated, the Applicant continued to be rostered for work.

[57] Ms Little was referred to an email sent to her from Mr Bristow at 5.33pm on Friday 25 February set out below:

“From: Steven.Bristow [email address redacted]

Sent: Friday, 25 February 2022 5:33 PM

To: alittle [email address redacted]

Cc: vaxxed [email address redacted]

Subject: RE: Notice of Termination

Hi Alannah,

As per our phone conversation and below email, we have reviewed the vaccination proof you sent me on Thursday 24^th February (08:41am) and are happy to accept that as proof of vaccination. As a result this will enable you to be rostered past 28^th February 2022.

Please call your direct leader to obtain your roster for the 28^th onwards.

Warmest regards,

Steve”

[58] Ms Little was referred to this email and she accepted that it was an email from Mr Bristow. Ms Little did not suggest she had never received the email. Ms Little gave further evidence that she said she was not informed she needed to forward on her ‘green tick’ as she was informed by Mr Bristow (on 22 January) it was not acceptable. Ms Little said she thought that the Respondent changed its mind on the Friday 25 February because she had said to one of the managers that she must be getting terminated, and this will be unfair as the ‘green tick’ was her only proof and she assumed this was passed on to Mr Bristow and Mr Bristow had “jumped to it”.

[59] Ms Little later confirmed in a question from me that she did receive the email of 5:33pm on 25 February, and she accepted that Mr Bristow gave her the written document she asked for. There was no evidence that Ms Little had indicated to the Respondent at any time from 25 to 28 February that the written confirmation of the Respondent’s decision that she requested in the course of the telephone conversation with Mr Bristow was not an acceptable resolution of the issue to her.

[60] It was put to Ms Little that she was asked to provide proof of vaccination by the Respondent on at least eight occasions prior to her doing so on 24 February and she said that could be correct. Ms Little agreed she was told on 25 February that since she had complied with the policy she would not be terminated.

[61] It was put to Ms Little that she had a meeting with Mr Calliss on Friday 25 February, and she said yes, that could be correct, however she could not remember whether he was on shift or not. It was put to her that at that meeting it was explained to her that she had not been rostered to work the next week commencing on 28 February because she had been late in providing her proof of vaccination.

[62] Ms Little then said she believed this meeting happened on Monday 28 February 2022. Ms Little said Mr Calliss called her into the office and asked her what hours she wanted to work next week, and she said as far as she was concerned today was her last day, and she said Mr Calliss said he would ring Mr Bristow and get back to her. Ms Little said Mr Calliss came back to her and said according to the enterprise bargaining agreement they were required to give seven days’ notice to roster her on and Ms Little claimed she said, “do what you have to do”. Ms Little accepted that Mr Calliss reiterated in the meeting that she had not been terminated and that she would be rostered to work the following week.

Saturday 26 to Monday 28 February 2022

[63] There is no dispute that on Saturday 26 February 2022 and Monday 28 February, the Applicant attended for work at the Helensvale store. However, since 28 February 2022, the Applicant has not attended for work. Aldi submitted it had made several enquiries with the Applicant, and she has indicated that despite providing proof of vaccination and being informed that she continues to be rostered for work, she has “assumed that the 28 th [February] is my last day”.

[64] Ms Little accepted that she had been rostered to work from 7 March however said she had not been provided with the rosters at the time.

[65] Ms Little was taken to rosters provided in her own evidence and it was put to her that the rosters were rosters she had printed prior to her meeting with Mr Calliss when he was talking about rostering her for work and she agreed. These rostered indicated that Ms Little would be on unpaid leave for the relevant dates. Ms Little said the rosters were put up in February saying she had no shifts and she said to a work colleague, “You think they would talk to me” and Ms Little said she had the meeting with Mr Calliss on her last day being 28 February 2022. It was put to Ms Little that she understood the Respondent was not rostering staff after 28 February when they had not provided proof of vaccination and she agreed she understood that.

[66] It was put to Ms Little that as she was fully vaccinated by December 2021 if she had simply provided the Respondent with the evidence of that there was no reason for her to believe her job was in jeopardy. Ms Little said she didn’t think her job was in jeopardy until the meeting in January 2022.

[67] It was put to Ms Little that her role with the Respondent continues to exist and she replied that as far as she was concerned, she was being terminated on 28 February 2022 because she hadn’t shown the Respondent, and they hadn’t looked at her certificate and she just thought termination ‘was just happening’.

[68] Ms Little stated that Aldi said they would view her certificate and she was at work on Friday 25 February, Saturday 26 February and Monday 28 February 2022. Ms Little’s evidence was that on none of those shifts did anyone ask her to prove she had the certificate and they said they were going to sight it to prove that she had her job.

8 March 2022

[69] Ms Little agreed she was rostered to work from 7 March. It was put to Ms Little that she called in sick for her rostered shift on 8 March 2022 and she did not accept that, saying in her oral evidence that “I would not be attending, I had a meeting”.

[70] Ms Little was referred to a text message from Ms Bec Dervan to Mr Bristow sent at 6.53am on Tuesday 8 March, 2022 which read as follows:

“No surprises….she called in sick”.

[71] Ms Little said she was surprised by this text as they don’t start until 7am. Ms Little said she did not call in sick and said she was not going to work and it was about the meeting at head office the next day.

[72] Another text message was sent at 8.32am on 9 March 2022 that read as follows:

“So Alannah didn’t show up and didn’t call…did something happen yesterday that should know”.

[73] Ms Little accepted that it was her understanding that she was still on the roster at the Helensvale store.

Closing Oral submissions

[74] In summarising her case Ms Little said if the dismissal was to happen the Respondent did not follow up and have anyone sight her app on her phone and therefore, she believed that the dismissal went ahead on Monday 28 February 2022 as unless someone sighted the app the dismissal was going ahead.

[75] Ms Little said her argument as to why her termination was unfair is that Mr Bristow did not initially accept her evidence in January 2022 however later said they would accept the same evidence. Ms Little said she did intend to comply and did comply.

[76] The Respondent relied on its written submissions, however added in oral submissions that following the termination letter of 23 February with notice with effect from 28 February, the Applicant took immediate steps to provide proof of vaccination to the Respondent and within two days the Respondent advised the Applicant evidence was accepted and the Applicant could be rostered again. The Respondent submitted that the email of 5.33pm has no qualification.

[77] The Respondent also submitted that the Applicant calling in sick on 8 March was evidence that she was conducting herself as if the employment relationship was ongoing.

Jurisdiction – was the Applicant dismissed

[78] Aldi submits that the Applicant was not dismissed. This is in circumstances where the Applicant was issued with a notice of termination, but:

(a) on 24 February 2022, the Applicant took immediate steps to provide Aldi with proof of her vaccination and exchanged a number of emails with Mr Bristow that day to facilitate this;

(b) Aldi advised the Applicant that, since she had provided proof of vaccination, the termination would not proceed;

(c) on 26 February 2022, the Applicant attended her rostered shift;

(d) on 26 February 2022, the Applicant attended a meeting with the Assistant Store Manager of the Helensvale store where she was informed that she would be rostered to work from 8 March 2022; and

(e) on 8 March 2022, the Applicant called in sick for her rostered shift.

[79] Accordingly, the Respondent submitted that given the matters set out above, the Applicant’s conduct was consistent with her consenting to Aldi’s withdrawal of her termination and/or engaging with Aldi in a manner that indicated that she intended to continue in her role. Aldi submitted they were entitled to rely on the Applicant’s conduct as evidence that she wished to continue in her employment with Aldi.

[80] The Respondent submitted that if the Applicant truly believed she had been dismissed, effective 28 February 2022, she would not have called in sick for her shift on 8 March 2022.

[81] The Respondent added in its closing submissions that the oral evidence pointed out that Ms Little said she simply needed an email to confirm she still had a position and this email was subsequently provided by Mr Bristow at 5.33pm on Friday 25 February 2022.

[82] Given the above factors, the Respondent submits that no dismissal event occurred, and that the employment relationship between Aldi and the Applicant was not severed. The Applicant continues to be rostered for work at the Helensvale store.

[83] The Applicant submitted that for Aldi to turn around four days out from termination and say she had a job, ‘messed with her financial, mental and family wellbeing’. The Applicant submitted that she had to plan her life because she was going to be terminated from 28 February 2022. Further, the Applicant said that she didn’t consent to the termination being withdrawn.

CONCLUSION ON JURISDICTION

[84] It is generally accepted that withdrawal of a notice of termination of a contract of employment can only be effected by consent of both parties. 5

[85] On 25 February Ms Little received written confirmation that the employer had decided to accept the evidence of proof of vaccination that she had provided the previous day. After receiving this advice, Ms Little confirmed in her evidence that she had a subsequent telephone conversation with Mr Bristow and in the course of that telephone conversation on the afternoon of 25 February she made it clear that she wanted an email to confirm she was still employed. Ms Little said in her oral evidence that she said to Mr Bristow that if she was being reinstated, she needed proof and a phone call was not acceptable. Ms Little said that she wasn’t sure how the Respondent could turn around a termination notice 72 hours before it took effect and it was Friday afternoon after 4pm and then her last day was to be Monday 28 February.

[86] Ms Little confirmed in her oral evidence that she received the subsequent written confirmation sent at 5.33pm that she had requested in the course of the conversation to confirm that her position was ongoing.

[87] In the course of these proceedings, Ms Little has argued that she never consented to the Respondent’s attempts to withdraw its decision to terminate her employment with notice, however the evidence supports a conclusion that the effect of the phone call between Ms Little and Mr Bristow on the afternoon of Friday 25 February was that she had communicated to the Respondent that she would accept the Respondent’s offer to rescind its earlier decision to terminate her employment on the condition that the Respondent confirmed this decision in writing. The Respondent subsequently fulfilled Ms Little’s condition to accept the offer to rescind.

[88] Ms Little reported for work on Saturday 26 February and Monday 28 February and took no steps to notify the Respondent that its fulfilment of her condition of acceptance of the withdrawal of the termination was not sufficient, or was no longer acceptable to her. It needs to be borne in mind that this was a termination with notice, and the termination was not to have effect until several days after the discussions that occurred between Mr Bristow and Ms Little on 25 February. It would be expected that had the Respondent’s fulfilment of Ms Little’ request to confirm the withdrawal in writing was still not insufficient for Ms Little to confirm the employment relationship was ongoing, she would have said so on either 25 February or 28 February. On that basis, I am satisfied the offer to withdraw the termination was accepted when the Respondent met Ms Little’s request that the withdrawal be confirmed in writing, and by her continuing to report for work on the ensuing days and raising no issue about the matter.

[89] I reject Ms Little’s submission that as no one from the Respondent had sighted her ‘green tick’ over the final weekend in February or on the following Monday that this meant that she was dismissed. The earlier communications exchanged on 25 February and the email provided at 5.33pm on 25 February provided in response to her request for written confirmation that her employment was ongoing, do not state that her continued employment was contingent on the Respondent having to sight the evidence by 28 February 2022.

[90] Ms Little did not contest that after 28 February 2022 the Respondent has continued to roster her for work. There is no other evidence to support a conclusion that the Respondent has taken any other steps to bring the employment to an end at its initiative after 28 February. Whilst it is understandable that Ms Little held the view that the Respondent had acted unreasonably in initially rejecting the evidence she offered back on 22 January 2022, and subsequently decided to accept on 25 February what appears to have been the same evidence, on the basis of the evidence overall I am satisfied that the jurisdictional objection has been made out, and I have decided to dismiss the application for that reason.

[91] For completeness, if I am wrong on the jurisdictional finding and Ms Little’s employment was terminated at the initiative of the Respondent, whilst the issue of any outstanding notice pay would need to be addressed, had I gone on to find that the termination of Ms Little’s employment was unfair in accordance with the considerations in section 387, I would not have been inclined to order any further compensation.

[92] The submissions as to whether the direction to be vaccinated was lawful and reasonable are somewhat of a distraction in this case, as the Applicant did not argue otherwise, and the evidence discloses Ms Little was vaccinated well before the policy was enforced. In any event the evidence supports a conclusion that the direction for Ms Little to be vaccinated was lawful and reasonable.

[93] Ms Little accepted that she never attempted to engage with the Respondent’s vaccination team which she could have done in order to resolve the issue that arose from the apparent rejection by Mr Bristow of the evidence Ms Little said that she showed to him at a meeting on 22 January 2022. There is a dispute between the evidence of Ms Little and Mr Bristow about exactly what was shown to Mr Bristow at the meeting on 22 January however in any event the evidence is that Ms Little was asked to provide written evidence of her vaccination status eight times.

[94] The evidence is that the Respondent offered to show Ms Little how to access and download her immunisation history statement on several occasions and she was offered extensions of time to comply with the policy. I accept that on 15 December 2021, Ms Little emailed the Aldi central email, enclosing a link to the Medicare website and she received a response from the Respondent’s vaccination team informing her that the link did not work, and she did not respond. The digital certificate was eventually provided on 24 February 2022.

[95] After 28 February, from 7 March the Respondent continued to roster the Applicant to perform her role at the Helensvale store and offered for Ms Little to continue in her role which, as was submitted by the Respondent, is akin to the primary remedy available under the unfair dismissal jurisdiction. Ms Little has maintained she was dismissed and declined the offer to continue her employment.

[96] In the course of her evidence Ms Little accepted that she was aware in February of rosters that had been prepared for the period following 28 February and that she had not been included in these projected rosters after 28 February on the basis that she had not provided proof of vaccination.

[97] Following the events of 24 and 25 February and the acceptance by the Respondent of Ms Little’s evidence of vaccination, I am inclined to the view that it is probable that because of the information from Mr Calliss given to Ms Little on either on 25 or 28 February that she could not be included in the roster until after 7 March (because of the late confirmation of her vaccination status), this became a catalyst for Ms Little to ultimately conclude herself that her employment with the Respondent should be brought to an end despite communications between the parties on 24 and 25 February supporting my earlier conclusion that the parties had reached an accord that it was not to end on 28 February. My impression that Ms Little was motivated by her not being on the roster in the first week of March is consistent with the evidence that on being advised by Mr Calliss about this rostering issue Ms Little replied “do what you have to do”.

[98] Even if Ms Little was terminated at the initiative of the Respondent because she had not accepted an offer to withdraw her termination with notice, taking all the circumstances into account the fact of Ms Little not being on the roster for that window of time in early March was an unfortunate consequence of the delay in the Respondent receiving the evidence it required. It is not a proper basis to award compensation to Ms Little when it was otherwise clear that the Respondent was standing ready to continue to employ her and she rejected that offer.

COMMISSIONER

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Appearances:

Ms Alannah Maree Little on her own behalf.

Ms Philippa Noakes of Seyfarth Shaw for the Respondent.

Hearing details:

2022

Brisbane (by Microsoft Teams Video)

July 14.

 1   Exhibit 1.

 2   Exhibit 2.

 3   Exhibit 5.

 4   Exhibit 4.

 5   Re Rodney Birrell v Australian National Airlines Commission [1984] FCA 378.