Fair Work Act 2009
s.394—Unfair dismissal

Alvin Ceccoli
v
Fire and Safety Australia
(U2022/2319)

Application for an unfair dismissal remedy – no valid reason – dismissal harsh, unjust and unreasonable – compensation awarded.

[1] On 23 February 2022, Mr Alvin Ceccoli (Applicant) made an application to the Fair Work Commission (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 Fire and Safety Australia (Respondent). The Applicant seeks financial compensation.

When can the Commission order a remedy for unfair dismissal?

[2] Section 390 of the FW Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

(b) the Applicant has been unfairly dismissed.

[3] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.

When is a person protected from unfair dismissal?

[4] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

When has a person been unfairly dismissed?

[5] Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Background

[6] The factual background to the matter is as follows:

•  The Applicant commenced employment with the Respondent on 20 March 2017.

•  On 22 September 2021, the Respondent emailed its employees advising them that it was considering its policy in relation to vaccination:

•  noting that more clients were requesting that only vaccinated employees work at or visit their workplaces;

•  requesting that employees volunteer their vaccination status to help the Respondent in determining its policy; and

•  welcoming any input to the request.

•  On 10 November 2021, the Respondent emailed its employees, advising that it had consulted with its national team over the past seven weeks and attaching its COVID-19 Vaccination Policy (Vaccination Policy) that was to take effect from that date. The email indicated that the Respondent’s CEO, Mr Steve McLeod, or the HSEC Manager, Ms Tracey McKay, would make themselves available for a confidential discussion with any employee who is affected by the policy if they chose not to be vaccinated and that Mr McLeod remained open to discussing their personal situation should they wish to speak to him about the Vaccination Policy.

•  The Vaccination Policy:

•  required all eligible employees to have received at least one immunisation against COVID-19 by 1 December 2021, with a documented appointment for their second immunisation (where the immunisation schedules a two dose vaccination) unless they held an approved vaccination exemption as per the requirements of a public health order;

•  required employees to provide to the Respondent by 1 December 2021 their COVID-19 vaccination status, COVID-19 vaccination record and/or digital certificate and consent to release this information if required by the Respondent’s clients;

•  required that employees eligible for exemption communicate this to the HSEC Manager prior to 30 November 2021, with supporting evidence, and required supporting evidence be consistent with the relevant public health order or as determined by the Respondent;

•  provided that, if an employee fails to comply with a public health order requiring the employee to be vaccinated, and they are not otherwise exempt from the requirement, the employee would be unable to attend work and would not be paid during their absence from work, although may be able to access leave entitlements;

•  provided that, where an employee failed to meet the requirements of the Vaccination Policy, the CEO and/or HSEC Manager would contact them to discuss the requirements and reasons for non-compliance;

•  provided that an employee who refuses to comply with the Vaccination Policy, without a legitimate medical exemption or other reason that is acceptable to the Respondent, may face disciplinary action up to and including termination of employment; and

•  the Respondent’s Disciplinary Policy would apply in circumstances of performance management and/or disciplinary action arising from non-compliance with the Vaccination Policy.

•  On 15 November 2021, the Applicant emailed Mr McLeod informing him that he had his first vaccination that day (being the AstraZeneca vaccination), that it was suggested that he have his next vaccination in 10-12 weeks and seeking Mr McLeod’s thoughts about this.

•  On 15 November 2021, Mr McLeod responded to the Applicant’s earlier email stating that:

•  the Respondent required proof of his first vaccination which is normally downloadable from the myGov site 24 hours later as a PDF;

•  the Respondent also required proof of his second vaccination booking;

•  questioning the advice in relation to having 10-12 weeks between vaccinations and suggested that this appeared “inconsistent with the federal government information which is normally 3-6 weeks between doses”; and

•  the Respondent required medical evidence of the advice for consideration.

•  On 15 November 2021, the Applicant responded to Mr McLeod providing a link to an ‘ATAGI Statement – Response to NSW COVID-19 outbreak – 24^th July 2021’, published on the Department of Health and Aged Care’s website on 24 July 2021, which stated the Australian Technical Advisory Group on Immunisation (ATAGI):

“has previously issued advice recommending a shorter interval between the first and second doses of COVID-19 Vaccine AstraZeneca of 4-8 weeks in an outbreak (versus the routine 12 week interval) so that maximal protection against COVID-19 can be achieved earlier”.

•  On 16 November 2021, Mr McLeod emailed the Applicant:

•  asking the Applicant to provide evidence of vaccination and that he had a booking for his second vaccination; and

•  raising a concern that, if the Applicant was not double vaccinated, he would be unable to complete his role for 10-12 weeks and asking him how he planned to address that.

•  On 17 November 2021, the Applicant emailed Mr McLeod attaching a document in relation to his first vaccination and stating that he was booked in for his second vaccination on 10 January 2022. The document attached was titled “Immunisation Administration Statement”, was issued by Campus Pharmacy Wollongong and included details of the Applicant, vaccination and authorised immuniser who also appeared to have signed the document on 15 November 2021.

•  On 24 November 2021, Mr McLeod emailed the Applicant stating that what he had provided was not sufficient evidence and that the Respondent required official government records “from myGov or similar with the official certificate”. The Respondent did not press this requirement.

•  The Applicant commenced a period of planned leave from 7 January 2022.

•  On 17 January 2022, Ms McKay sent the Applicant an email noting that he had indicated he was scheduled to obtain his second vaccination on 10 January 2022 and requesting updated vaccination evidence at his earliest convenience but prior to his return to work following his period of leave.

•  On 17 January 2022, the Applicant replied to this request, informing Ms McKay he had to cancel his second vaccination as he had contracted COVID-19 and was exempt from vaccination for a certain period of time.

•  On 18 January 2022, Ms McKay responded to the Applicant’s email and:

•  advised that the Respondent’s Vaccination Policy did not differentiate between employees who had contracted COVID-19 and those who hadn’t;

•  stated, “In regards to having had the virus therefore not needing to be vaccinated; there is no requirement to delay vaccination as per the Australian Government Health Department, so long as you are recovered”; and

•  advised that a temporary exemption may be possible based on a PCR confirmed COVID-19 infection but that this is only obtained through a medical provider and must be registered through the Australian Immunisation Register.

•  On 18 January 2022, Mr McLeod emailed the Applicant and stated:

“I am open to considering FSA’s position after we receive the evidence related to covid from you. I’ll await your response.”

•  On 19 January 2022, the Applicant sent Mr McLeod a copy of a text message from NSW Health indicating that his test on 4 January 2022 returned a positive result for COVID-19.

•  On 19 January 2022, Mr McLeod responded via email stating:

“What do you propose? Currently you cannot visit clients or our venue, what are you proposing for me to consider?

PS: If you are on leave, all of this can wait until you return”.

•  On 19 January 2022, the Applicant responded via email stating:

“I was visiting clients and venues based on their entry requirements. A lot are working from home therefore Zoom.”

•  On 31 January 2022, the Applicant returned from leave and, due to his vaccination status, commenced working from home.

•  On 31 January 2022, the Applicant and Mr McLeod had a conversation via telephone about the requirement for a second vaccination and, following that call, Mr McLeod emailed the Applicant a letter which stated:

“I refer to our discussion via phone at approximately 12:11-12:21pm on 31/1/2022 in relation to your refusal to be provide [sic] evidence of double dose vaccination for COVID-19.

In late 2021, after consultation with FSA employees and the opportunity for feedback, FSA introduced a vaccination policy. In late 2021, you confirmed to us in writing that had [sic] obtained your first dose, and that you would obtain your second vaccine dose in early January 2022, so that you would comply with our vaccination policy. In early 2022, you stated that you had not obtained a second vaccination, as you have had reportedly had COVID-19 in early January 2022.

During our discussion today on 31/1/2022, you were informed that:

•  You are required to comply with FSA’s COVID-19 Vaccination Policy, which requires you to be fully vaccinated against COVID-19, unless exempt; and

•  A refusal to comply with this lawful and reasonable direction to be vaccinated, without a legitimate medical exemption or other acceptable reason, may result in the termination of your employment.

To provide further context to your emails to me, and as a follow-up of our conversation on 31/1/2022, today I also informed you verbally that-

•  In regards to your email and conversation whereby you stated that you have had the virus, therefore in your opinion you are not required to be vaccinated; there is no requirement to delay vaccination as per the Australian Government Health Department, so long as you are recovered. I welcome you to seek your own medical advice in this regard unique to your personal situation.

•  A temporary exemption, may be possible based on a confirmed COVID19 infection, however this is only obtained through your medical provider and must be registered through the Australian Immunisation Register, and evidence provided to FSA within 7 days if this occurs.

•  Should FSA not receive confirmation of your second vaccination, or evidence registered through the Australian Immunisation Register that you have a medical exemption within 7 days from the date of this letter (by close of business on Monday 7th February 2022), FSA may terminate your employment due to your refusal to be vaccinated as per our vaccination policy, which may constitute a failure to comply with a lawful and reasonable direction of FSA.

Please contact me with any queries regarding this letter. Should you wish to consult with me about this letter, or FSA’s proposed ways forward, feel free to respond to me in writing and I will give consideration to any feedback or ideas that you have.”

•  At around 4:30pm on 7 February 2022, Mr McLeod called the Applicant and asked whether he was able to provide evidence that he had an exemption from his second vaccination.

•  At 4:37pm on 7 February 2022, Mr McLeod emailed the Applicant a termination letter which stated:

“As of today, Monday 7th February 2022 (7 days since my last conversation and letter to you on Monday 31^st January 2022), you still have not complied with our vaccination policy released in 2021.

You have not provided evidence of your second COVID-19 vaccination dose, or evidence of an approved lawful exemption to FSA as required in our letter to you.

You have failed to comply with FSA’s vaccination policy, and you have failed to comply with a lawful and reasonable direction of your employer (FSA), due to your refusal to receive confirmation of your second vaccination, or evidence registered through the Australian Immunisation Register that you have a medical exemption.

FSA has given you multiple opportunities to comply with our policy, FSA even in good faith extended the date whereby you were required to be fully vaccinated for several weeks until 7/2/2022, however you have not complied with our policy, and you have not complied with our lawful and reasonable workplace direction.

This letter as of today 4:30pm AEST on Monday 7th February 2022, is to inform you that your employment with FSA is terminated for you not complying with FSA’s vaccination policy.

FSA regards this as a summary dismissal, due to your failure to follow our WH&S Policy and procedures to ensure a safe place of work (of which we regard our vaccination policy as a health and safety policy). Normally this would mean that we would terminate your employment with no notice period.

However, based on your length of service to FSA, and as a measure of good faith to avoid any hardship to you, FSA will pay you your full termination notice period of 4 weeks based on your length of service with FSA…”

•  The Respondent communicated to the Applicant’s colleagues and manager that the Applicant was no longer with the business and the Applicant’s email and IT access were disabled.

•  Approximately one hour after this, on 7 February 2022, the Applicant provided to the Respondent, via his personal email, medical documentation regarding his medical exemption.

•  The Applicant was paid four weeks in lieu of notice of termination.

[7] There are discrepancies regarding the Respondent’s and Applicant’s version of events regarding the conversation between Mr McLeod and the Applicant at 4:30pm on 7 February 2022, as well as whether the documentation provided by the Applicant at around 5:30pm on 7 February 2022, following his termination, would have satisfied the Respondent’s evidentiary requirements regarding vaccination exemption.

The hearing

[8] There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.

[9] After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing for the matter (s.399 of the FW Act).

Representation

[10] At the hearing, the Applicant sought to be represented before the Commission by a lawyer.

[11] Relevantly, s.596(1) of the FW Act provides that a party may be represented in a matter before the Commission by a lawyer or paid agent only with the permission of the Commission.

[12] Section 596(2) of the FW Act provides that the Commission may grant permission for a person to be represented by a lawyer or paid agent in a matter before the Commission only if:

(a) it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

[13] The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with s.596 of the FW Act. 1 The decision to grant permission is a two-step process. First it must be determined if one of the requirements in s.596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted.2

[14] On the question of representation, the Applicant submitted that:

•  The matter centres around a COVID-19 vaccination issue that involves a level of complexity and with circumstances that are novel.

•  The Applicant is a sole employee whereas the Respondent is a national company of a significant size with over 100 employees.

•  The matter would be dealt with more efficiently given the complexity involved and considering fairness between the parties.

[15] The Respondent did not object to the Applicant being represented by a lawyer.

[16] Having considered those matters, I determined that allowing the Applicant to be represented by a lawyer would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

[17] I therefore decided to exercise my discretion to grant permission for the Applicant to be represented.

[18] Accordingly, at the hearing on 16 June 2022, the Applicant was represented by Mandicos, initial M, and the Respondent was self-represented by Mr McLeod, CEO for the Respondent.

Witnesses

[19] At the hearing, the Applicant gave evidence on his own behalf and Mr McLeod gave evidence on behalf of the Respondent.

Submissions

[20] The Applicant filed submissions in the Commission on 5 May 2022. The Respondent filed submissions in the Commission on 22 May 2022.

Has the Applicant been dismissed?

[21] A threshold issue to determine is whether the Applicant has been dismissed from his employment.

[22] Section 386(1) of the FW Act provides that the Applicant has been dismissed if:

(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or

(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.

[23] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

[24] There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.

[25] I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the FW Act.

Initial matters

[26] Under s.396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:

(a) whether the application was made within the period required in s.394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

Section 396(a) - Was the application made within the period required?

[27] Section 394(2) of the FW Act requires an application to be made within 21 days after the dismissal took effect.

[28] It is not disputed and I find that the Applicant was dismissed from his employment on 7 February 2022 and made the application on 23 February 2022. I am therefore satisfied that the application was made within the period required in s.394(2) of the FW Act.

Section 396(b) - Was the Applicant protected from unfair dismissal at the time of dismissal?

[29] I have set out above when a person is protected from unfair dismissal.

Minimum employment period

[30] It was not in dispute and I find that the Respondent is not a small business employer, having 15 or more employees at the relevant time.

[31] It was not in dispute and I find that the Applicant was an employee, who commenced his employment with the Respondent on 20 March 2017 and was dismissed on 7 February 2022, a period in excess of six months.

[32] I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.

Annual rate of earnings

[33] It was not in dispute and I find that, at the time of dismissal, the sum of the Applicant’s annual rate of earnings (being $104,500.00), together with such other amounts worked out in accordance with regulation 3.05 of the Fair Work Regulations 2009, was less than the high income threshold, which, for a dismissal taking effect on or after 1 July 2021, is $158,500.00.

[34] I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.

Section 396(c) - Was the dismissal consistent with the Small Business Fair Dismissal Code?

[35] Section 388 of the FW Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.

[36] As mentioned above, I find that the Respondent was not a small business employer within the meaning of s.23 of the FW Act at the relevant time, having in excess of 14 employees (including casual employees employed on a regular and systematic basis).

[37] I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as the Respondent is not a small business employer within the meaning of the FW Act.

Section 396(d) - Was the dismissal a case of genuine redundancy?

[38] Under s.389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:

(a) the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

[39] It was not in dispute and I find that the Applicant’s dismissal was not due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise.

[40] I am therefore satisfied that the dismissal was not a case of genuine redundancy.

[41] Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.

Was the dismissal harsh, unjust or unreasonable?

[42] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.

[43] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 3

[44] I set out my consideration of each below.

Section 387(a) - Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?

[45] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 4 and should not be “capricious, fanciful, spiteful or prejudiced.”5 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.6

[46] The Respondent submitted that there was a valid reason for the dismissal related to the Applicant’s conduct because the Applicant had refused to comply with the Respondent’s Vaccination Policy.

[47] As the Full Bench has said, “[a] failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. A substantial and wilful breach of a policy will often, if not usually, constitute a valid reason for dismissal.”⁷

[48] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.⁸ “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 9

[49] The Respondent submitted that there was a valid reason for the dismissal related to the Applicant’s conduct in failing to abide by a lawful and reasonable direction of the Respondent. It is necessary to consider whether the direction was lawful and reasonable and whether the Applicant’s conduct in failing to abide by the direction gave rise to a valid reason for the dismissal of the Applicant.

[50] In Sharp v BCS Infrastructure Support Pty Limited, 10 the Full Bench found:

“[25] The correct approach to the assessment, pursuant to s.387(a) of the Act, as to whether there is a valid reason for an employee’s dismissal relating to the employee’s capacity or conduct where the employee is alleged to have committed misconduct was that stated by the Full Bench (Lawler VP and Cribb C) B, C and D v Australian Postal Corporation T/A Australia Post as follows:

“[34] In considering whether there was a valid reason for a dismissal under s.387(a), the reason(s) being considered are the employer’s reason(s). In a misconduct case, the Commission \ is concerned with whether the misconduct in fact occurred, not with whether the employer has reasonable grounds to believe that it occurred (eg. Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1).

[35] Subject to that, as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer, that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a valid reason “should not impose a severe barrier to the right of an employer to dismiss an employee”.

[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.””

[51] A Full Bench of the Australian Industrial Relations Commission found that “[a] failure to comply with a direction to do or refrain from doing something in compliance with an employer’s policy will not provide a valid reason for termination of employment where:

(a) the policy, or a direction to comply with the policy, is illegal;

(b) the policy does not relate to the subject matter of the employment or matters affecting the work of the employee; or

(c) the policy, or a direction to comply with the policy, is unreasonable.”¹¹

[52] However in order to establish if a direction was reasonable, it is not necessary for the Respondent to demonstrate that the direction issued was the preferable or most appropriate course of action, or in accordance with “best practice”, or in the best interests of the parties. 12 Rather, what is required is a consideration of whether the direction was reasonable, having regard to “[t]he nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument…[which] govern[s] the relationship.” 13

[53] In determining whether a refusal to carry out the lawful and reasonable directions of an employer constitutes a valid reason for termination, it is also “necessary to have regard to all the circumstances, including the nature and degree of the employee’s conduct.” 14

[54] I have considered the facts in this matter. The Respondent’s Vaccination Policy involved no illegality, falls within the scope of employment, was concerned with mitigating risks to work health and safety and meeting client site requirements. It was also introduced following a period of consultation with employees and the requirement to comply with it would ordinarily constitute a lawful and reasonable direction.

[55] The Vaccination Policy had the effect that the Respondent’s employees would be required to:

•  “have received at least one immunisation against COVID-19 by 1 December, with documented appointment for their second immunisation (where the immunisation schedule dictates a two dose vaccination), unless they hold an approved vaccination exemption as per the requirements of the public health order”; and

•  “provide, to [the Respondent], their COVID-19 vaccination status, their COVID-19 vaccination record and/or digital certificate along with their consent to release this information if required by [the Respondent’s] clients to meet operational requirements”.

[56] On 17 November 2021, the Applicant emailed Mr McLeod attaching a document in relation to his first vaccination and stating that he was booked in for his second vaccination on 10 January 2022. The document attached was titled “Immunisation Administration Statement”, was issued by Campus Pharmacy Wollongong and included details of the Applicant, vaccination and authorised immuniser who also appeared to have signed the document on 15 November 2021.

[57] On 24 November 2021, Mr McLeod emailed the Applicant stating that what he had provided was not sufficient evidence and that the Respondent required official government records “from myGov or similar with the official certificate”. However, the Respondent did not press this requirement. The Applicant stated in his evidence:

“Prior to my leave commencing 5pm on 7 January 2022 I was fully compliant with [the Respondent’s] vaccination policy and had every intention to comply with the policy going forward. In fact, at no time did I have any intention to not comply with the policy and at no time did I express to [the Respondent’s] management or work colleagues that I did not intend to comply with the policy.” 15

[58] When the Applicant went on leave on 7 January 2022, which was to extend until 31 January 2022, it was reasonable for him to have held the belief that he had complied with the Respondent’s requirements.

[59] However, a complication arises in the context of this matter. In particular, the Applicant’s evidence was that he received a positive diagnosis for COVID-19 following a PCR test undertaken on 4 January 2022. The Applicant’s evidence was that, on 7 January 2022, he became aware that members of his residence had contracted COVID-19 and he concluded that he was also likely to be infected with COVID-19 due to the symptoms he was suffering from and was required to isolate. 16 This meant that the Applicant was unable to attend for his appointment to get his second COVID-19 vaccination on 10 January 2022 as he had planned and communicated to the Respondent. The Applicant ultimately received his positive test result on 14 January 2022 and provided evidence of text messages supporting this. The events that followed are of importance to my consideration of whether there was a valid reason for the dismissal.

[60] Although the Applicant was on leave at the time, on 17 January 2022, Ms McKay sent the Applicant an email following up on his vaccination status, noting that he had been scheduled to receive his second vaccination on 10 January 2022. On 17 January 2022, the Applicant responded via email indicating that he had to cancel his appointment as he had contracted COVID-19 and stated, “I’m actually exempt now for a certain period of time?”.

[61] On 18 January 2022, Ms McKay replied via email and:

•  advised that the Respondent’s Vaccination Policy did not differentiate between employees who had contracted COVID-19 and those who hadn’t;

•  stated, “In regards to having had the virus therefore not needing to be vaccinated; there is no requirement to delay vaccination as per the Australian Government Health Department, so long as you are recovered”; and

•  advised that a temporary exemption may be possible based on a PCR confirmed COVID-19 infection but that this is only obtained through a medical provider and must be registered through the Australian Immunisation Register.

[62] On 18 January 2022, Mr McLeod also emailed the Applicant and stated:

“I am open to considering FSA’s position after we receive the evidence related to covid from you. I’ll await your response.”

[63] On 19 January 2022, the Applicant sent Mr McLeod a copy of a text message from NSW Health indicating that his test on 4 January 2022 returned a positive result for COVID-19. On 19 January 2022, Mr McLeod responded via email stating:

“What do you propose? Currently you cannot visit clients or our venue, what are you proposing for me to consider?

PS: If you are on leave, all of this can wait until you return”

[64] On 19 January 2022, the Applicant responded via email stating:

“I was visiting clients and venues based on their entry requirements. A lot are working from home therefore Zoom”.

[65] Given Mr McLeod’s email of 19 January 2022 stating that “all of this can wait until your return”, it would have been reasonable for the Applicant to conclude that he could go about his planned annual leave and deal with the issue of his second vaccination upon his return from leave.

[66] On 31 January 2022, the Applicant returned from leave and commenced working from home. On the morning of 31 January 2022, the Applicant and Mr McLeod had a telephone conversation about his vaccination status. The Applicant’s account of that conversation was as follows: 17

Mr McLeod: “Can you confirm your vaccination status Alvin.”

Applicant: “I couldn’t get the second dose as booked on 10 January 2022 as I had to isolate at the time. I had a booking for today but I remain concerned that I cannot get the second dose because of my recent COVID.”

Mr McLeod: “Well, you have seven days to get a vaccination or an acceptable exemption or we may terminate you.”

Applicant: “I don’t think that time frame is reasonable Steve. In any case, I have a lot of work to get through today as its my first day back so I’ll make a doctors appointment in the next 1-2 days.”

Mr McLeod: “Ok. The business is a priority so that’s fine.”

[67] Mr McLeod’s evidence was that: 18

•  he telephoned the Applicant on 31 January 2022 and requested that the Applicant provide medical exemption evidence;

•  the Applicant “could not produce medical evidence that meant he was unable to be vaccinated, or evidence of a second dose, or other ATAGI registered exemption”; and

•  he stated that the Applicant had seven days to produce this, otherwise his employment would be terminated.

[68] Having considered the correspondence that followed the conversation between the Applicant and Mr McLeod on 31 January 2022, I am satisfied that Mr McLeod directed the Applicant to show evidence of either second vaccination or a medical exemption or he would be dismissed. In particular, the letter emailed to the Applicant on 31 January 2022 following the phone call stated that, during the discussion, the Applicant was informed that:

•  he was required to comply with the Vaccination Policy, which required him to be fully vaccinated against COVID-19, unless exempt; and

•  a refusal to comply, without a legitimate medical exemption or other acceptable reason, may result in the termination of his employment.

[69] The letter also addressed the Applicant’s concern about getting the second vaccination when he had recently contracted COVID-19, as confirmed by his positive diagnosis following his PCR test on 4 January 2022, and stated:

“•  In regards to your email and conversation whereby you stated that you have had the virus, therefore in your opinion you are not required to be vaccinated; there is no requirement to delay vaccination as per the Australian Government Health Department, so long as you are recovered. I welcome you to seek your own medical advice in this regard unique to your personal situation.

•  A temporary exemption, may be possible based on a confirmed COVID19 infection, however this is only obtained through your medical provider and must be registered through the Australian Immunisation Register, and evidence provided to FSA within 7 days if this occurs.

•  Should FSA not receive confirmation of your second vaccination, or evidence registered through the Australian Immunisation Register that you have a medical exemption within 7 days from the date of this letter (by close of business on Monday 7th February 2022), FSA may terminate your employment due to your refusal to be vaccinated as per our vaccination policy, which may constitute a failure to comply with a lawful and reasonable direction of FSA.

Please contact me with any queries regarding this letter. Should you wish to consult with me about this letter, or FSA’s proposed ways forward, feel free to respond to me in writing and I will give consideration to any feedback or ideas that you have.”

[70] The Applicant’s evidence was that he then made an appointment to see his doctor on 1 February 2022 to get advice as to whether a second vaccination was appropriate in his circumstances and attended the surgery of Dr Shah on that same day. 19 The Applicant filed a copy of a medical certificate from Dr Shah, dated 1 February 2022, which states that Dr Shah had consulted the Applicant on that date, that the Applicant had a positive PCR test for COVID-19 on 4 January 2022 and that:

“He can be exempt from COVID vaccine for 4 months from 4/1/22.”

[71] The Applicant’s evidence was that: 20

•  he indicated to Dr Shah that he didn’t think the certificate would be sufficient but that Dr Shah insisted that it was and that he left Dr Shah’s surgery with the medical certificate only;

•  he did his own research between 2 and 3 February 2022 regarding the issue of medical exemptions for prior contraction of COVID-19 and “discovered there was an official form that was required” rather than a medical certificate;

•  on 4 February 2022, he called Doctor Shah’s surgery multiple times seeking the exemption form and was told by the practice nurse that “Dr Shah had completed the incorrect form being an Australian Immunisation Register immunisation medical exemption (IM011) form and that Dr Shah will need to complete the correct form”. The Applicant said he stressed the importance of obtaining the form by 7 February 2022; and

•  by the morning of 7 February 2022, he had still not received the correct exemption form from Dr Shah and called his office three times that day as he was becoming increasingly alarmed at not having the exemption form to provide to the Respondent. Screen shots of these calls were filed by the Applicant which appear to indicate that calls were made at:

•  11:04am, which lasted for 15 minutes;

•  2:41pm, which lasted for five minutes; and

•  4:38pm, which lasted for 16 minutes, this last call being made after a call between the Applicant and Mr McLeod at 4:33pm that lasted for three minutes.

[72] The Applicant also filed copy of what he says are file notes from the medical practice, including an email dated 4 February 2022 from a Mrs Marsala to Miss Jowanie identifying the Applicant as a patient and stating:

“Thanks for checking with Medicare/Proda about his Vaccination excemption [sic].

Please call Alvin to let him know the outcome.”

[73] The Applicant stated in his evidence that, at or around 4:30pm on 7 February 2022, Mr McLeod called him. 21 The Applicant provided the following account of that conversation:22

Mr McLeod: “Have you got proof of your vaccination status Alvin?”

Applicant: “My doctor has confirmed I should not get the second dose Steve. I am waiting on a form from him to provide to you confirming I am exempt from the second dose for a period of time.”

Mr McLeod: “Do you have the form to send me now?”

Applicant: “No I don’t Steve. As I said, I’ve been chasing my doctor and I’ll provide you the form as soon as I have it.”

Mr McLeod: “Well, in those circumstances you have failed to comply with our policy and I am terminating your employment.”

Applicant: “What? That’s not reasonable. Can’t you give me some more time to get the form. I’m waiting on my doctor and I can’t control how long it takes him to respond.”

Mr McLeod: “I’ve made my decision Alvin.”

[74] Mr McLeod also gave evidence about the conversation had with the Applicant and the termination of his employment, giving evidence that: 23

•  the Applicant’s employment was terminated over the phone and by follow up email on 7 February 2022, at around 4:40pm-4:55pm, just before close of business;

•  the Applicant was “abusive” toward him;

•  he asked the Applicant to “provide evidence, yet he said he had not received it”;

•  the Applicant said he had an exemption to which Mr McLeod replied, “read it to me, or show it to me”. The Applicant replied “I haven’t been sent it yet”;

•  Mr McLeod stated the Applicant had already had seven days and had not provided it so his employment was terminated; and

•  the Applicant hung up the phone.

[75] Having considered the evidence, I am satisfied that McLeod called the Applicant at 4:33pm and, during a phone call that lasted for three minutes:

•  Mr McLeod asked for proof of the Applicant’s vaccination status;

•  the Applicant advised he had an exemption but was still awaiting documentation from his doctor; and

•  Mr McLeod then advised the Applicant of the termination of his employment by the end of the phone call.

[76] At 4:37pm, immediately after the Applicant was advised of the termination of his employment over the phone, Mr McLeod emailed the Applicant a termination letter stating that the Applicant had failed to comply with the Vaccination Policy and a lawful and reasonable direction of the Respondent as a result of his “refusal to receive confirmation of [the Applicant’s] second vaccination, or evidence through the Australian Immunisation Register that [the Applicant had] a medical exemption”.

[77] The Applicant’s evidence was that, at approximately 4:50pm on 7 February 2022, Dr Shah’s surgery commenced sending him emails including vaccination documents. 24 Attached to the Applicant’s witness statement were emails from “Bettercare Medical Centre” to the Applicant dated 7 February 2022 and titled ‘Alvin Ceccoli – Immunisation info NSW Health – 07.02.22’, with the time stamp of 4:45pm and ‘Covid-19 Vaccine Medical Contraindication’, with the time stamp of 4:48pm. The Applicant also filed a copy of two documents:

•  a document entitled “Australian Immunisation Register immunisation medical exemption (IM011)”, which includes the branding of the Australian Government and Services Australia and:

•  is dated 3 February 2022 and is signed by Dr Shah;

•  includes the Applicant’s details;

•  identifies that the Applicant has a temporary vaccine exemption until 3 May 2022 due to a non-permanent contraindication; and

•  sets out a list of possible reasons for the contraindication that the doctor can select from including “acute major medical illness”, “significant immunocompromise of short duration” and “the individual is pregnant”, none of which were applicable to the Applicant. As a consequence, Dr Shah has written “N/A” next to these options;

•  a document entitled “COVID-19 Vaccine Medical Contraindication” with the branding of the NSW Government and which:

•  is dated 1 February 2022 and is signed by Dr Shah;

•  includes the Applicant’s details;

•  identifies that the Applicant has a temporary medical contraindication until 3 May 2022; and

•  sets out a list of possible reasons for the contraindication that the doctor can select from, including “past confirmed infection with SARS-CoV-2 within the last 6 months”, which Dr Shah has selected.

[78] The Applicant also filed a copy of a document entitled “Consultation notes for Mr Alvin Ceccoli” which was recorded on 7 February 2022, includes a “visit date” of 7 February 2022 and time of 2:20pm and states:

“talke dto pt [sic] on phone, about covid vaccine exemption certificates, pt needs it for work, advised i have done 2 forms and certificates, the one specific for covid vaccine by nsw health good enough for work, the other for AIR does not allow me to put a definite diagnosis of covid infection and I can not [sic] tick acute medical condition as per another paper from ATAGI showing what included under that diagnosis, pt understands it and happy for me to e-mail all these info to him.”

[79] I am satisfied, based on the evidence before me, that when the Applicant was directed to provide confirmation of his second vaccination, or “evidence registered through the Australian Immunisation Register that [he had] a medical exemption within 7 days”, he quickly took steps to attain this evidence and followed up with his doctor about this. It is likely that a reason that he was not able to get this immediately was due to confusion around the form that this evidence needed to take. The Applicant was initially provided with a medical certificate by Dr Shah, however identified that this is not what the Respondent had asked for. A complication then arose in that the Australian Immunisation Register’s form regarding contraindication did not include the option of recent COVID-19 infection as a stated reason for the exemption and so the consulting doctor was unable to select this option using this form. However, the NSW Government contraindication form did include an option for an exemption of up to six months based on COVID-19 infection and so the consulting doctor was able to complete this form in full. It seems that, out of caution and in the context of what the Respondent had asked for, the consulting doctor provided both forms to the Applicant on the afternoon of 7 February 2022 between 4:45pm and 4:48pm. Unfortunately, by this time, the Respondent had made the decision to terminate the employment of the Applicant and had communicated this to him.

[80] The Applicant’s evidence was that, on 7 February 2022: 25

•  immediately after receiving the correspondence from Dr Shah’s office, including the contraindication documents, he attempted to send them to Mr McLeod, however discovered his access to the Respondent’s email system had been revoked;

•  he called Mr McLeod at approximately 5:01pm and had a conversation to the following effect:

Applicant: “Steve, I’ve got the documentation from the doctor. I’ll get it through to you but you have taken me off the system.”

Mr McLeod: “It doesn’t matter Alvin, I’ve terminated your employment. I am not changing my mind.”

•  he then ended the call, accessed his personal email account and sent the contraindication forms to Mr McLeod at approximately 5:24pm. The Applicant filed a copy of an email from the Applicant to Mr McLeod with the time and date of 5:24pm on 7 February 2022 which states:

“Hi Steve

1. Close of business means 5pm not 4.37pm

2. You deleted me off the cloud so that I cannot even see what your emails are?

3. You sent me emails and deleted me at 4.37pm?

4. You would not listen to me when I told you I was waiting for the doctor to email me back (as usual, your way only)

5. You said last week, when I told you that I had just come back from leave that I was working through 157 emails and you said do work first

6. You make out as though you are consulting yet you have pre written termination letters?

7. 2 more emails to follow from the doctor

I would have had this sent prior to your 5pm deadline although you made it really difficult for me to not log in and had to find your email.”

[81] Mr McLeod’s evidence was that: 26

“Unusually an hour or so after [the Applicant’s] termination, [the Applicant] sent an unauthenticated medical exemption. This was shocking, however he had been terminated, and the supposed evidence produced was an average documented [sic] and no further evidence was presented. It also was dated a few days prior to his termination and ‘stunk’ of suspicious behaviour. By this time, [the Applicant’s] colleagues, manager and other FSA staff were informed that [the Applicant] was no longer with the business. FSA terminated his email and IT access.”

[82] I have considered the circumstances around the termination of the Applicant’s employment. This is not a case where an employee has simply decided not to comply with the Respondent’s policy regarding vaccination. The Applicant did not say he was never going to get vaccinated or plainly ignore the requests of the Respondent. The Applicant received his first vaccination and was concerned about the proximity of his second dose to his recent contraction of COVID-19.

[83] In particular, when the Respondent implemented its Vaccination Policy, the Applicant had had his first dose of a COVID-19 vaccine. Prior to the Applicant going on leave on 7 January 2022, he had made an appointment for his second dose and formed the reasonable belief that he had met the Respondent’s requirements at that time. The Applicant says he contracted COVID-19 and took a PCR test on 4 January 2022. During cross-examination, the Respondent challenged why the Applicant did not tell anyone he was sick prior going on leave and until contacted and suggested this was “unusual”. However, the fact that he didn’t do so does not mean that he did not have COVID-19. The Applicant’s evidence was that, in early January, members of his household contracted COVID-19 and his diagnosis was then confirmed by a PCR test during his period of annual leave. The Applicant produced text messages of his diagnosis and date of test. I am satisfied that he had contracted COVID-19 and this prevented him from attending for his second COVID-19 vaccination on 10 January 2022 as planned.

[84] While the Respondent followed up on the status of the Applicant’s second vaccination while he was on leave, the Applicant informed the Respondent that he was unable to have his second vaccination due to his COVID-19 diagnosis and Mr McLeod ultimately informed the Applicant on 19 January 2022 “all of this can wait until you return”. It was therefore reasonable for the Applicant to assume that there was no pressing urgency while he was on leave and the discussion about the impact of his COVID-19 diagnosis could wait until his return.

[85] On 31 January 2022, being his first day back at work, the Applicant was asked to provide confirmation of his second vaccination, or evidence registered through the Australian Immunisation Register that he had a medical exemption by “close of business on Monday 7th February 2022”, and was put on notice that the Respondent may otherwise terminate his employment. The reasonable person would understand this deadline to mean 5:00pm on 7 February 2022. The consequence of non-compliance with this request was serious and the timeframe provided to the Applicant to comply upon his return to work was a short one. However, the Applicant took action the next day on 1 February 2022 by seeing his doctor to get medical advice and the evidence required by the Respondent.

[86] The evidence of exemption requested by the Respondent, being evidence “registered through the Australian Immunisation Register” was very specific and this appeared to create some complications for the Applicant and his consulting doctor about the form in which evidence should be produced. Notably, the Australian Immunisation Register form did not enable the doctor to select as a reason for the contraindication recent contraction of COVID-19. This was in contrast to the NSW Government form which clearly identified recent contraction of COVID-19 as a reason for a temporary exemption. The Applicant, likely conscious of the looming deadline of close of business on 7 February 2022, followed up with his doctor to get the type of evidence he thought would be acceptable to the Respondent. The Applicant was able to obtain two contraindication forms from his doctor by close of business on 7 February 2022, being an adapted Australian Immunisation Register form and the NSW Government contraindication form.

[87] However, by this time, the Respondent had already terminated his employment. As acknowledged by Mr McLeod in his own witness statement, this occurred just before close of business on Monday 7 February 2022. The Applicant’s employment was terminated over the phone in a three minute phone call between 4:33pm and 4:36pm and the Applicant was then emailed a letter at 4:37pm, which had clearly been written prior to the call. Despite the Applicant’s protestation that the evidence was coming, the Respondent terminated his employment anyway. I find that the Applicant would have been able to send the Respondent the documentation he had received from his doctor by close of business had he not been disconnected from the Respondent’s email system and the Applicant ultimately did provide the documentation from his personal account shortly after close of business.

[88] The Vaccination Policy does not deal with the specific circumstances that arose in this matter and does not prescribe the form of evidence for exemptions. However, the request for a particular form of evidence came from Mr McLeod in his email 31 January 2022. I have considered whether it was reasonable to request the evidence in this specific form to the exclusion of other forms of evidence. The Australian Immunisation Register form did not enable the doctor to select recent contraction of COVID-19 as the reason for the contraindication and therefore did not seem to cater well for the circumstances that the Applicant confronted and it is apparent that the doctor tried to adapt the form to deal with this. The NSW Government form, while not requested by the Respondent, did enable the doctor to select this option. In these circumstances, it does not seem reasonable for the Respondent to impose an evidentiary requirement that the Applicant could not meet despite his medical advice that the second dose should be deferred. I am satisfied that the evidence produced by the Applicant would have been acceptable to the reasonable employer in the context of his circumstances. I also observe that, as at the current time, the ATAGI guidance states that all people are recommended to defer COVID-19 vaccination for three months after a confirmed SARS-CoV-2 infection. 27 While the parties did not provide evidence of the ATAGI guidance at the date of the Applicant’s termination of employment regarding vaccination deferral after COVID-19 contraction, it would have been appropriate for the Respondent to consider the Applicant’s medical advice and information, which he would have been able to produce evidence of by close of business on 7 February 2022 if he had not been disconnected from the Respondent’s email system.

[89] While the Applicant was dismissed for reasons related to conduct, it is apparent that the Respondent had concerns about the Applicant’s performance prior to the events leading up to his dismissal. In its submissions, the Respondent stated that the Applicant had received two prior written warnings and, during the 12 months prior to the termination of his employment, had a history of not complying with the Respondent’s policies, procedures, directions, sales targets and requirements regarding appropriate behaviour. 28 It seems likely that the Respondent was eager to bring the Applicant’s employment to an end and I find that it did so prematurely. Had the dismissal been affected after close of business on 7 February 2022 and had the Applicant not provided evidence by that time, I would likely have found there was a valid reason for the dismissal, provided the Respondent was acting on the information known to it at that time. However, this is not what happened. But for the Respondent terminating the Applicant’s employment before the close of business deadline, the Applicant would have been able to produce evidence of his temporary exemption and, in bringing the Applicant’s employment to an end in circumstances where the Applicant told the Respondent the evidence was forthcoming, the Respondent did not act reasonably. In all of the circumstances, I do not consider that the Applicant’s inability to comply with the direction justified dismissal.

[90] In all the circumstances, I find that there was no valid reason related to the Applicant’s conduct.

Section 387(b) - Was the Applicant notified of the valid reason?

[91] Proper consideration of s.387(b) of the FW Act requires a finding to be made as to whether the Applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a) of the FW Act. 29

[92] As I am not satisfied that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances. 30

Section 387(c) - Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

[93] As I have not found that there was a valid reason related to dismissal, this factor is also not relevant to the present circumstances. 31

[94] However, I make the observation that, if the telephone conversation between the Applicant and Mr McLeod at 4:33pm was intended to provide such an opportunity, it seems to have had limited utility. It is apparent that the Applicant’s letter of termination had already been drafted as it was sent at 4:37pm immediately after the call and, despite the Applicant stating that the evidence would be forthcoming, the Respondent did not give him until close of business to comply with its request as foreshadowed in its letter of 31 January 2022.

Section 387(d) - Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

[95] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

[96] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”32

[97] The Applicant submitted that he did not ask to have a support person at any discussion related to his dismissal. 33

[98] I consider this to be a neutral factor.

Section 387(e) - Was the Applicant warned about unsatisfactory performance before the dismissal?

[99] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.

Section 387(f) and (g) - To what degree would the size of the Respondent’s enterprise or 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?

[100] The Respondent employed approximately 110 employees at the time of the Applicant’s dismissal. 34 The Respondent did not consider that the size of the business had an impact on the procedures it followed in dismissing the Applicant.35 It also submitted that all human resources is performed by the CEO, Mr McLeod, and that it had received advice from AI Group in relation to its Vaccination Policy, consultations and emails.36

[101] I do not consider that either the size of the Respondent’s enterprise or absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal.

Section 387(h) - What other matters are relevant?

[102] Section 387(h) of the FW Act requires the Commission to take into account any other matters that the Commission considers relevant.

[103] Procedural fairness is one factor that the Commission may take into consideration when deciding if a dismissal has been harsh, unjust or unreasonable. It concerns the decision-making process followed or steps taken by a decision maker, rather than the actual decision itself.

[104] In the context of administrative decision-making, the rules of natural justice are flexible and require fairness in all the circumstances, including the nature of the power exercised and the statutory provisions governing its exercise. 37 Ordinarily, procedural fairness requires that an allegation be put to a person and they be given an opportunity to answer it before a decision is made.38

[105] I find the manner in which the termination was effected to be relevant. The Applicant did not ignore the directive given to him by the Respondent and was scrambling to meet the tight close of business deadline that was given to him by the Respondent by seeking out medical evidence that he thought would be acceptable to it. The Applicant told Mr McLeod that the evidence would be forthcoming during his telephone conversation with Mr McLeod at 4:33pm on 7 February 2022. However, the Respondent proceeded to terminate his employment anyway. Termination of a person’s employment is a serious consequence and, had the Applicant been permitted until close of business on 7 February 2022 to provide his evidence, this consequence may not have materialised.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

[106] I have made findings in relation to each matter specified in s.387 of the FW Act as relevant.

[107] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 39

[108] Having considered each of the matters specified in s.387 of the FW Act, I am satisfied that the dismissal of the Applicant was harsh, unjust and unreasonable. There was no valid reason for the Applicant’s dismissal based on his capacity or conduct, and the manner in which he was dismissed was particularly harsh.

Conclusion

[109] I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the FW Act.

Remedy

[110] Being satisfied that the Applicant:

•  made an application for an order granting a remedy under s.394 of the FW Act;

•  was a person protected from unfair dismissal; and

•  was unfairly dismissed within the meaning of s.385 of the FW Act,

I may, subject to the FW Act, order the Applicant’s reinstatement, or the payment of compensation to the Applicant.

[111] Under s.390(3) of the FW Act, I must not order the payment of compensation to the Applicant unless:

(a) I am satisfied that reinstatement of the Applicant is inappropriate; and

(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.

Is reinstatement of the Applicant inappropriate?

[112] The Applicant has found alternative employment and does not seek reinstatement. “The Applicant’s disposition is a sure guide to the Commission as to whether or not it would be appropriate to reinstate or re-employ the Applicant. To act contrary to the Applicant’s desired position in this respect would be to give effect to an order that may not yield a productive or cooperative workplace.”⁴⁰

[113] I do not consider that reinstatement is an appropriate remedy.

Is an order for payment of compensation appropriate in all the circumstances of the case?

[114] Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…”. 41

[115] I must therefore consider whether it is appropriate in all the circumstances to make an order for payment of compensation (s.390(3)(b) of the FW Act).

[116] 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. 42 I am satisfied that the Applicant has suffered some loss as a result of the termination of his employment, including during the period where he was without earnings and considering his new role is paid less than his role prior to his dismissal.

[117] Section 392 of the FW Act sets out the circumstances that must be taken into consideration when determining an amount of compensation, the effect of any findings of misconduct on that compensation amount and the upper limit of compensation that may be ordered.

[118] In considering each of the criteria in s.392 of the FW Act, it is useful to refer to the helpful restatement of principles to be applied in the assessment of compensation in Johnson
v North West Supermarkets T/A Castlemaine IGA: 43

“[9] The well-established approach to the assessment of compensation under s 392 is to apply the ‘Sprigg formula’, derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul Licensed Festival Supermarket. This approach was articulated in the context of the current legislative framework in Bowden v Ottrey Homes Cobram and District Retirement Villages. Under that approach, the first step to be taken in assessing compensation is to consider s.392(2)(c), that is, to determine what the applicant would have received, or would have been likely to receive, if the person had not been dismissed. In Bowden this was described in the following way:

“[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:

‘... we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law.’

[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the ‘anticipated period of employment’...”

[10] The identification of this starting point amount ‘necessarily involves assessments as to future events that will often be problematic,’ but, as the Full Bench observed in McCulloch v Calvary Health Care Adelaide, ‘while the task of determining an anticipated period of employment can be difficult, it must be done.’

[11] Once this first step has been undertaken, various adjustments are made in accordance with s.392 and the formula for matters including monies earned since dismissal, contingencies, any reduction on account of the employee’s misconduct and the application of the cap of six months’ pay. This approach is however subject to the overarching requirement to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case.” (references omitted)

[119] The Sprigg formula was discussed and refined in Ellawala v Australian Postal Corporation 44 as follows:

“[31] The principles applicable to determining an amount to be ordered in lieu of reinstatement are dealt with in Sprigg. In that case the Full Bench endorsed the following approach:

Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).

Step 2: Deduct monies earned since termination.

Step 3: Discount the remaining amount for contingencies.

Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.

[32] Any amount provisionally arrived at by application of these steps is subject to whether offsetting weight is given to other circumstances, including those that need now to be taken into account under paragraphs 170CH(7)(a), (b) and (c). The legislative cap on the amount able to be ordered is then applied pursuant to ss.170CH(8) and (9).

[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:

“...we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law.”

[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the "anticipated period of employment". This amount is then reduced by deducting monies earned since termination. Only monies earned during the period from termination until the end of the "anticipated period of employment" are deducted. An example may assist to illustrate the approach to be taken.

[35] In a particular case the Commission estimates that if the applicant had not been terminated then he or she would have remained in employment for a further 12 months. The applicant has earned $3,000 a month for the 18 months since termination, that is $54,000. Only the money earned in the first twelve months after termination - that is $36,000 - is deducted from the Commission's estimate of the applicant's lost remuneration. Monies earned after the end of the "anticipated period of employment", 12 months after termination in this example, are not deducted. This is because the calculation is intended to put the applicant in the financial position he or she would have been in but for the termination of their employment.

[36] The next step is to discount the remaining amount for "contingencies". This step is a means of taking into account the possibility that the occurrence of contingencies to which the applicant was subject might have brought about some change in earning capacity or earnings.

…

[45] In relation to the fourth step set out in Sprigg we note that the usual practice is to settle a gross amount and leave taxation for determination.” (my emphasis, references omitted)

[120] In Balaclava Pastoral Co Pty Ltd t/a Australian Hotel Cowra v Darren Nurcombe, 45 the Full Bench stated that, in quantifying compensation, it is necessary to set out with some precision the way in which the various matters required to be taken into account under s.392(2) of the FW Act (and s.392(3) if relevant), and the steps in the Sprigg formula, have been assessed and quantified. The Full Bench also proffered that the way in which a final compensation amount has been arrived at should be readily apparent and explicable from the reasons of the decision-maker.

[121] I will assess compensation having regard to these matters.

Remuneration that would have been received if the dismissal had not occurred – s.392(2)(c)

[122] As stated by a majority of the Full Court of the Federal Court, “[i]n determining the remuneration that the Applicant would have received, or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.” 46

[123] While the reasons for the Applicant’s dismissal were not performance related, it is likely that they contributed to the haste at which the Respondent moved to dismiss him upon his return from annual leave and I do accept that the Respondent had concerns about the Applicant’s performance which, while not immediately, would likely have an impact on the Applicant’s tenure with the Respondent. I find that, had the Applicant not been dismissed, he would have likely remained employed for a period of 12 weeks.

[124] I have calculated the Applicant’s weekly earnings prior to the dismissal as being $2,009.62 per week, and 12 weeks at this amount is $24,115.44.

Remuneration earned – s.392(2)(e) and income reasonably likely to be earned – ss.392(2)(f) and (g)

[125] Remuneration earned from the date of dismissal to the date of any compensation order is required to be taken into account under s.392(2)(e) of the FW Act. Remuneration reasonably likely to be earned from the date of any compensation order to the date the compensation is paid is to be taken into account under s.392(2)(f). Any remuneration likely to be earned after that date to the end of the period of anticipated employment determined for the purpose of s.392(2)(c) is a relevant amount to be taken into account under s.392(2)(g) in accordance with the Sprigg formula. 47

[126] I have earlier found that, had the Applicant remained in employment, he would have likely done so for a period of 12 weeks and earned $24,115.44. The Applicant had not secured alternative employment until 2 May 2022 and I am satisfied that the Applicant did not earn any income in the 12 weeks post his dismissal.

[127] The Applicant was however paid four weeks in lieu of notice, reducing the amount by $8,038.48, leaving $16,076.96 gross in compensation.

Length of service – s.392(2)(b) and any other matters – s.392(2)(g)

[128] The Applicant’s length of service was almost five years. I have not made any adjustments to the amount of compensation taking into account length of service.

[129] I do not consider there is any basis for any deduction for contingencies in this matter and it will be left to the Respondent to deduct taxation required by law.

Viability – s.392(2)(a)

[130] Neither the Applicant nor Respondent submitted that an order for compensation would have an effect on the viability of the Respondent’s enterprise. On the basis of the materials before the Commission, I am satisfied that an order for compensation would not have an effect on the viability of the employer’s enterprise.

Mitigation efforts – s.392(2)(d)

[131] The Applicant must provide evidence that he has taken reasonable steps to minimise the impact of the dismissal. 48 What is reasonable depends on the circumstances of the case.49

[132] The Applicant’s evidence was that he had applied for 14 roles and undertook additional training courses to assist in his efforts secure alternative employment, including a heavy vehicle driving course and mine safety training course. 50 On 2 May 2022, the Applicant obtained employment as a heavy vehicle driver.

[133] I am satisfied that the Applicant mitigated his loss by actively seeking alternative employment.

Misconduct – s.392(3)

[134] I am not satisfied that the Applicant engaged in misconduct so no deduction is required under s.392(3) of the FW Act.

Compensation cap – s.392(5) and (6)

[135] Section 392(5) of the FW Act provides that the amount of compensation ordered by the Commission must not exceed the lesser of:

(a) the amount worked out under s.392(6); and

(b) half the amount of the high income threshold immediately before the dismissal.

[136] The amount worked out under s.392(6) of the FW Act is the total of the following amounts:

(a) the total amount of the remuneration:

(i) received by the Applicant; or

(ii) to which the Applicant was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the Applicant was on leave without pay or without full pay while so employed during any part of that period – the amount of remuneration taken to have been received by the Applicant for the period of leave in accordance with the regulations.

[137] The Applicant submitted that his earnings did not vary throughout the year and his annual income was $104,500 per annum. 51 The Respondent’s submissions indicate that the Applicant was only paid $73,015.46 across the past 12 months.52 However, this conflicts with its Form F3 – Employer response to unfair dismissal application, in which it states that the Applicant earned a base salary of $104,500.00.53

[138] The Applicant, seeking to understand the reasons for the difference, submitted that the difference is not explained by the period of time that he and all other sales and business development staff in were stood down for approximately 12 weeks as this was in 2020, not in the 12 months prior to the dismissal. 54

[139] I find that the total amount of the remuneration received by the Applicant during the 26 weeks immediately before the dismissal was $52,250.00.

[140] I find that the total amount of the remuneration to which the Applicant was entitled during the 26 weeks immediately before the dismissal was $52,250.00.

[141] The high income threshold immediately before the dismissal was $158,500.00. Half of that amount is $79,250.00.

[142] The amount of compensation ordered by the Commission must therefore not exceed $52,250.00.

Instalments – s.393

[143] I do not consider that there is any reason for compensation to be made by way of instalments. The conduct of the Respondent most certainly weighs against this.

Shock, Distress – s.392(4)

[144] The amount of compensation calculated must not and will not include a component for shock, distress, humiliation or other analogous hurt caused to the Applicant by the manner of his dismissal.

Conclusion

[145] I am satisfied that the Applicant was protected from unfair dismissal, that the dismissal was unfair and that an order for compensation equating to $16,076.96, less taxation to be deducted as required by law, is appropriate having regard to all the circumstances of the case.

[146] An order requiring the payment of this amount within 14 days will be issued with this decision.

COMMISSIONER

Appearances:

Mr M Mandicos of Culleton Lawyers on behalf of the Applicant.
Mr S McLeod on behalf of the Respondent.

Hearing details:

2022.
Sydney (by Video using Microsoft Teams).
June 16.

Printed by authority of the Commonwealth Government Printer

<PR746032>

 1   Warrell v Fair Work Australia [2013] FCA 291.

 2   Ibid.

 3   Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

 4   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

 5   Ibid.

 6   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

7 B, C and D v Australian Postal Corporation t/a Australia Post [2013] FWCFB 6191, [36].

8 Edwards v Justice Giudice [1999] FCA 1836, [7].

 9   King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

 10   [2015] FWCFB 1033.

11 Woolworths Ltd (t/as Safeway) v Brown PR963023 (AIRCFB, Lawler VP, Lloyd SDP, Bacon C, 26 September 2005), [34].

 12   Briggs v AWH Pty Ltd [2013] FWCFB 3316, [8].

 13   The King v Darling Island Stevedoring and Lighterage Company Limited; Ex parte Halliday and Sullivan (1938) 60 CLR 601, 622 (per Dixon J).

 14   Izdes v L.G. Bennett & Co Pty Ltd t/as Alba Industries [1995] IRCA 499.

 15   Applicant, ‘Witness Statement of Alvin Ceccoli’, dated 4 May 2022, 4.

 16   Ibid.

 17   Ibid, 5.

 18   Respondent, ‘Witness Statement of Steve McLeod’, dated 22 May 2022, 2.

 19   Applicant, ‘Witness Statement of Alvin Ceccoli’, dated 4 May 2022, 6.

 20   Ibid.

 21   Ibid.

 22   Ibid.

 23   Respondent, ‘Witness Statement of Steve McLeod’, dated 22 May 2022, 2-3.

 24   Applicant, ‘Witness Statement of Alvin Ceccoli’, dated 4 May 2022, 6.

 25   Ibid, 7.

 26   Respondent, ‘Witness Statement of Steve McLeod’, dated 22 May 2022, 2-3.

 27   Department of Health and Aged Care, Australian Government, Clinical recommendations for COVID-19 vaccines (2 September 2022) <https://www.health.gov.au/initiatives-and-programs/covid-19-vaccines/advice-for-providers/clinical-guidance/clinical-recommendations>.

 28   Respondent, ‘Outline of Argument’, filed 22 May 2022, 5c.

 29   Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].

 30   Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].

 31   Ibid.

32 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].

 33   Applicant, ‘Outline of argument: merits’, filed 5 May 2022, 6b.

 34   Respondent, ‘Form F3 – Employer response to unfair dismissal application’, filed 4 April 2022, 1.7; Respondent, ‘Outline of Argument’, filed 22 May 2022, 3i.

 35   Respondent, ‘Outline of Argument’, filed 22 May 2022, 3j.

 36   Ibid, 3l.

 37   Kioa v West [1985] HCA 81, [11] (per Gibbs CJ).

 38   Ibid, [22] (per Wilson J).

 39   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].

40 Taylor v C-Tech Laser Pty Ltd [2013] FWC 8732, [58].

 41   Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198, [9].

 42   Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171, [5]-[7].

 43   [2018] FWC 679.

 44   Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000)

 45   [2017] FWCFB 429, [43].

 46   He v Lewin [2004] FCAFC 161, [58].

 47   Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [31].

 48   Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].

 49   Ibid, [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.

 50   Applicant, ‘Outline of argument: merits’, filed 5 May 2022, 7d.

 51   Ibid, 2b.

 52   Respondent, ‘Outline of Argument’, filed 22 May 2022, 2b.

 53   Respondent, ‘Form F3 – Employer response to unfair dismissal application’, filed 4 April 2022, 1.7.

 54   Applicant, ‘Further Witness Statement of Alvin Ceccoli’, filed 30 May 2022, 3.