Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Ryan Archer
v
Australian Ceramics Engineering Pty Ltd
(U2022/3719)

Application for an unfair dismissal remedy

[1] This decision concerns an application made by Mr Ryan Archer (the applicant) under section 394 of the Fair Work Act 2009 for an unfair dismissal remedy. The respondent is Australian Ceramics Engineering Pty Ltd.

[2] The application was made on 29 March 2022.

[3] On 5 May 2022, the respondent filed a Form F3 – Employer Response to Unfair Dismissal Application. Therein, the respondent asserted a jurisdictional objection that the applicant earned more than the high-income threshold and was not able to make the application.

[4] The matter was listed for a telephone conciliation conference with a Commission staff member.

[5] On 18 May 2022, the Commission records show that the respondent confirmed they were willing to participate in that conciliation despite the jurisdictional objection they had raised.

[6] Subsequently on 20 May 2022, the respondent emailed the Commission and advised that as a result of their assertion that the applicant exceeded the high-income threshold, they object to the conciliation meeting and requested that it be cancelled.

[7] Consequently, the conciliation conference did not proceed, and the matter was in due course allocated to me for hearing and determination.

[8] The parties were issued a Notice of Listing with directions for the filing of materials. Those directions firstly required the respondent to file with the Commission and serve its materials on the applicant in support of their jurisdictional objection.

[9] Those directions expressly states that they must be complied with and that,

“If the respondent does not comply the matter may be decided on the basis of the applicant’s materials only.”

[10] Nothing had been received from the respondent by the due date on 15 July 2022 and so the Commission emailed a letter to the respondent noting its failure to comply with the Commission’s directions to file its materials and directing it to urgently file and serve its materials on the applicant’s and repeating that a failure to do so may result in the matter being determined on the applicant’s materials only.

[11] The Commission received no response to this letter and the respondent has not filed any materials with the Commission in support of its jurisdictional objection, or at all.

[12] On 28 October 2022, there was no appearance by the respondent or by anyone on their behalf on the day of hearing. There has been no contact from the respondent up to the date of this decision.

[13] Consequently, the Commission proceeded with the hearing and this matter will be determined on the basis of the materials filed by the applicant. The Commission will also have regard for the Form F3 response filed by the respondent.

Evidence and factual findings

[14] The applicant’s witness statement dated 11 August 2022 is set out below.

[15] The respondent is a manufacturing company providing ceramic wear products to the mining industry.

[16] I worked for the respondent from 19 February 2018 and was dismissed by the conduct of the respondent on the 15th of March 2022 effective the following day.

[17] I had a written contract with the employer. It did not have any term or condition which required me to have any vaccinations to work for the company. It did not have any term or condition which required me to have a COVID-19 vaccination.

[18] I was employed as a senior mine site Supervisor to oversee the installation of the company’s products and supervise work crews carrying out inspections on plant equipment. This required me to travel to mine sites in Port Hedland Western Australia.

[19] During the period when the Government issued Directions regarding mine site attendees being required to be vaccinated, I discussed my concerns with taking the vaccine with ACE Management.

[20] Specifically, I discussed this with the Operations Manager of the company Tane Smiler. Mr Smiler stated on multiple occasions around October 2021 that if I was not vaccinated, I would be transferred to the workshop in Wangara so that my valuable skills would not be lost due to me not being vaccinated and unable to access site.

[21] I have 15 years’ experience in the mining industry with valuable client contacts and excellent working relationships at BHP.

[22] During late October 2021, the Operations Manager asked me to access a BHP computer on site to obtain confidential information and essentially steal a competitor’s product from a BHP mine site. I considered this to be very unethical and would not carry out the requests.

[23] I was very stressed about the unethical requests and positions I was placed in while onsite and was having ongoing sleep issues, after discussing this with my GP when I returned to Perth, I was placed on 3 weeks sick leave.

[24] After I refused to carry out the requests, the company’s attitude to me hardened and they used the COVID directions to set me up for dismissal. The promise of working from the workshop, which was not a mine site, was refused.

[25] I consider that my employment is covered by a Modern Award namely Manufacturing and Associated Industries and Occupations Award 2020.

[26] In any event, my base salary worked out on the rate of $75 per hour for a 38-hour week is less than the high-income threshold.

[27] The documents the applicant provided to the Commission include an employment agreement dated 19 September 2018.

[28] Relevantly, Schedule 1, of the agreement identifies the position as “Senior Site Services Supervisor” the location to be “Regional (Port Hedland)”.

[29] The schedule also specifies that the position is a fly in fly out from Perth arrangement. The hourly rate stated is $60 per hour on nightshift and $69 per hour when working night shift hours.

[30] Schedule 2 relevantly reads as follows,

‘Job Objective

The Senior Site Services Supervisor is responsible for running their job sites, coordinating site crews, coordinating subcontractors, purchasing/coordinating the purchase of required materials, tracking where their job is timewise and management relations.”

[31] The applicant provided an employee payslip for the payday 15 March 2022 from which the Commission is satisfied the applicant’s hourly rate of pay was $75. The applicant’s evidence orally was that this was the rate for day shift and night shift was paid at a an additional 15%.

[32] The applicant also provided a series of letters the respondent sent to him.

[33] The first letter is dated 17 January 2022 from Sara Harris, Human Resource Manager. The letter refers to prior correspondence a week earlier, confirms arrangements for the applicant to remain on leave, then details the requirements of the Western Australian government’s Resources Industry Workers (Restrictions on Access) Directions that to enter the workplace on-site he must satisfy the vaccination requirements. The letter states he had been on notice about the requirements to be vaccinated to work on mine sites since early November. The letter touches on the previous concerns raised by the applicant about vaccinations and responds to these.

[34] The letter then states is required to provide by 21 January 2022, either evidence of at least a first dose of COVID-19 vaccine or evidence of a vaccination exemption or his advice that he has not received at least a first dose of the COVID-19 vaccine.

[35] The letter then says this,

“In the event you are unable to comply with the above direction we will then invite you to a meeting to discuss the future of your employment. This may include possible redeployment within the organisation which we can discuss at the time.

In the event you fail to comply with the above and we cannot agree on a workable solution, the business will have very little choice but to terminate your employment with the business. ….”

[36] The applicant responded to Ms Harris in writing the same day detailing his views against mandatory vaccinations and the respondent’s requirement for him to provide evidence that he had been vaccinated. The letter clearly indicated that the applicant was not willing to receive a COVID-19 vaccination.

[37] The respondent replied with another letter dated 28 January 2022 again from Mrs Harris. The letter says that his response to them on Friday, 21 January 2022 made it apparent that he has still not received any vaccination doses. The letter goes on to say it is an inherent requirement of his role to physically attend mine sites and given he is not vaccinated they consider he no longer is able to meet the inherent requirements of his role and so are considering terminating his employment.

[38] The letter refers to attending a meeting on Tuesday, 1 February 2022 for him to provide reasons why his employment should not be terminated. The letter states,

“We will also consider and discuss any suitable redeployment options available based on our operational requirements and business interests.”

[39] Next the applicant provided a medical certificate stating he was unfit to work from 7 February 2022 to 6 March 2022.

[40] The respondent wrote to the applicant on 22 February 2022 referring to the medical certificate and unfortunate family circumstances he had been experiencing as to why they had let some time pass since their last correspondence regarding his employment.

[41] The letter states they assume he remains not vaccinated and repeats they are therefore considering terminating his employment.

[42] The letter explains the meeting previously set for 1 February 2022 could not take place on account of his family circumstances. The letter says that given he does not feel comfortable attending such a meeting at this time they’ve decided to instead give him the opportunity to respond to the respondent’s concerns in writing.

[43] The letter directs him to provide his written response by Friday, 25 February 2022.

[44] On Wednesday, 16 March 2022, the respondent wrote to the applicant advising that his employment was terminated effective that day as follows.

“Following on from your last correspondence we have taken some time to fully consider matters and all issues raised before coming to a final decision regarding your employment.

As you are aware you have failed to follow a reasonable and lawful direction to provide evidence of your vaccination status in the timeframe required. Accordingly, you are currently restricted from accessing any mine sites in WA under the Resources Industry Worker (Restrictions on Access} Directions and have been so since 1 December 2021.

Based on this, Australian Ceramics Engineering has been considering whether to terminate your employment in the understanding that you can no longer meet the inherent requirements of your role in compliance with the Resources Industry Worker (Restrictions on Access) Directions.

In response to these concerns, you provided written reasons to us outlining why you consider your employment should not be terminated. Broadly speaking these include that you are uncomfortable with receiving a vaccination, are of the view vaccination provides no immunity nor prevents transmission of a virus, have concerns about the amount of adverse reactions and deaths occurring as a result of vaccination and would rather wait until a traditional vaccine was approved.

Furthermore, you believe the business is pursuing termination of your role because you were forced to carry out a number of unethical requests and that these requests were designed to jeopardise your employment subsequent to raising concerns about vaccination. We take such allegations very seriously and have investigated your concerns around purported unethical requests to the extent possible, noting you have refused to provide evidence to us in relation to these matters. Regardless, such behaviour has not been put to you by the business as a reason for considering your dismissal at this time. We have been very clear in our communications to date your inability to attend site is the primary issue of concern.

Much of the remainder of information provided in relation to your concerns have been raised in your communications to us already. We understand that decisions regarding vaccination are an individual choice and that you hold a number of concerns with receiving such treatment. However, there are natural consequences under the Public Health Orders for individuals who decide to remain unvaccinated which mean we cannot lawfully allow you to enter any mine sites at this time.

Your responses provided to date and matters raised have all been carefully considered as part of our decision. As it stands you have not been able to attend the workplace and perform the role you are employed to undertake for 14 weeks since 1 December 2021. Taking into account your individual circumstances, we consider that the extended period of time we have allowed you to seek advice and consider your options has been more than adequate in the circumstances.

Given all of this, on the basis you remain unvaccinated and cannot lawfully resume your role in compliance with the Resources Industry Worker (Restrictions on Access) Directions which are likely to remain in place for the foreseeable future, we have decided to terminate your employment, effective today, on the basis you can no longer carry out your role as required. While these circumstances are regrettable, we would like to take this opportunity to thank you for your service and wish you all the best.”

[45] The applicant also stated that on his termination he was not paid in lieu of notice.

[46] As to efforts to mitigate his loss, the applicant explained that he has being studying towards a different career and has been working on establishing a small business.

[47] In response to questions asked by the Commission, the applicant’s evidence was that his fly in fly out roster to Port Hedland was eight days on six days off.

[48] The hours he worked each week on site varied and some days was as much is 12 or 13 hours.

[49] The applicant would sometimes work nightshift but did not do it a lot. When working shift work, he received an additional 15% on top of the $75 per hour which was the day shift rate.

[50] The discussion he had about what would happen if he decided not to be vaccinated for COVID-19 was with Mr Smiler.

[51] The applicant’s evidence was that Mr Smiler said they did not want to lose him and if he did not want to go ahead with the vaccination, they would just put him in the workshop and someone else would do his role. His evidence was a lot of his work was office-based and so there was no reason why he couldn’t have just worked out of the Wangara workshop.

[52] The applicant explained that when he was on site, he as the Senior Site Supervisor had two supervisors below him and if he was only able to work in the Wangara workshop one of those supervisors could have stepped up to supervise on site.

[53] In the discussions with Mr Smiler, he did not mention what rate of pay the applicant would receive if he was only working in the workshop.

[54] The applicant’s evidence about unethical requests concerned Mr Smiler asking him to access a client’s computers. He says this was raised by him in his responses to the respondent’s communications with him about his vaccination status. His concern about these unethical requests, which he had refused, was raised by him in emails with the HR manager Ms Harris and with Mr Smiler.

[55] The applicant says he raised this issue on four of five separate occasions in emails. These had been sent to Ms Harris and copied to Mr Smiler. He says he received no response and the respondent never engaged with him about this even when he had followed up and asked why they had not responded to him about this issue.

[56] He says in writing to the respondent he explained the unethical requests followed a competitor of the respondent bringing a new product to site. He says in late October he had been asked by Mr Smiler to access the client’s computer on site to obtain information about the product and also told to take one of the competitor’s new products and post it to the workshop in Wangara. His evidence was that he had refused to do these things.

[57] He says it placed him in a difficult position and he could have been banned from site for improperly accessing the client’s computer. He says he told Mr Smiler he wouldn’t do it.

[58] His evidence was that prior to being terminated in response to the employer’s letters regarding his vaccination status he sent a couple of emails to Ms Harris asking why Mr Smiler’s offer of him transferring to the workshop in Wangara was not being discussed and wasn’t honoured. His evidence was he received no response to these questions and the respondent just ignored this. No explanation was ever provided.

[59] I found Mr Archer to be a credible witness and the Commission accepts his evidence without reservation.

The applicants’ submissions

[60] The applicant was employed by the respondent as a Senior Site Services Supervisor.

[61] The applicant was employed on 3 September 2018 and dismissed on 16 March 2022.

[62] He was dismissed by the respondent for not receiving a COVID-19 vaccination.

[63] Although his role involved going to mine sites to carry out his role, an agreement was reached with the Operations Manager Tane Smiler that if the applicant was not vaccinated, he would be deployed in the workshop in Wangara.

[64] The applicant submits that with that agreement his employment contract was varied to enable him to continue his employment without having to access a mine site.

[65] The applicant was at all material times not vaccinated against COVID-19.

[66] The respondent's building and workshop is not a mine site.

[67] On 29 November 2021 the Western Australian Government issued the Resources Industry (Restrictions on Access) Directions (The Directions).

[68] The respondent had no Policy in place regarding the Directions or COVID-19 more generally.

[69] The respondent had not consulted with its workforce regarding the respondent's views on the mandate. It was required to so consult under s47 of the Work Health and Safety Act 2011 (Cth), if it maintains that its letters to the applicant constituted or relied upon a policy with respect to health at work.

[70] The applicant's employment is covered by a Modern Award namely the Manufacturing and Associated Industries and Occupations Award 2020 and this is contemplated by the employment contract.

[71] The applicant falls into classification C2(a) which provides as follows: Principal Technical Officer

(a) A Principal Technical Officer works above and beyond an employee at the C2(a) level and has successfully completed sufficient additional training to enable the employee to perform work within the scope of this level in addition to a national advanced diploma or equivalent. Within organisational policy guidelines and objectives, a principal technical officer:

(i)

•  performs work requiring mature technical knowledge involving a high degree of autonomy, originality and independent judgment;

•  looks after and is responsible for projects and coordinating such projects with other areas of the organisation as required by the operation of the organisation;

•  is responsible for the coordination of general and specialist employees engaged in projects requiring complex and specialised knowledge;

•  plans and implements those programs necessary to achieve the objectives of a particular project;

•  in the performance of the above functions, applies knowledge and/or guidance relevant in any or all of the fields of designing, planning and technical work as required by the operation.

operates within broad statements of objectives without requiring detailed instructions; or

(ii)

•  performs work at the above level of skill in a particular technical field.

•  has as the overriding feature of their employment the ability to perform creative, original work of a highly complex and sophisticated nature.

•  provides specialised technical guidance to other employees performing work within the same technical field.

[72] Given that the applicant is covered by a modern award, the respondent's jurisdictional objection must fail.

[73] In any event, his base rate of pay does not exceed the high-income threshold as asserted by the respondent.

[74] The applicant notes that section 332 which defines the meaning of “earnings’ provides that earnings do not include payments the amount of which cannot be determined in advance. The applicant submits in this instance overtime, which is not guaranteed, which is the case here, is not to be counted as part of the applicant earnings.

[75] For the applicant, it is submitted that his earnings were 38 hours per week at $75 per hour being $2850 per week and so was $148,200 per annum which is below the high-income threshold applicable of $158,500.

[76] The applicant attacks the dismissal on 3 grounds:

[77] There was no valid reason for the dismissal as the Directions did not apply to him once his contract was varied and he could attend his place of work to perform his role in Wangara as a Senior Site Supervisor without being vaccinated against COVID-19.

[78] There was no valid reason for the dismissal based on a lawful and reasonable direction being made by the employer for the applicant to be vaccinated against COVID-19 as it was not necessary for him to be so vaccinated to enter his workplace and there had been no consultation regarding the employer's directive as is required under WHS laws as submitted above.

[79] There was no opportunity for the applicant to respond to the reasons for dismissal, as he was dismissed while absent from the workplace on approved leave and had communicated by email and co-operated with the employer but was still denied procedural fairness and the fundamental opportunity to respond.

[80] He was not given any opportunity to meet with the respondent before the decision was made to dismiss.

[81] It was harsh and unreasonable to try and engage with the applicant while he was taking his approved leave. His leave was an entitlement he had under the FW Act, and he ought to have been able to take that leave in peace.

[82] Not only was his leave interrupted it, followed by the method used to dismiss him while absent from the workplace, that he did not have the opportunity to respond to the allegations being made against him.

[83] The applicant identified unethical behaviour of the respondent in asking him to access a BHP computer and effectively steal information.

[84] This formed the background and context of the respondent's attitude to his on-going employment and his concerns about the COVID-19 vaccination.

[85] It also punctuated the respondent's neglect of procedural fairness in the dismissal process.

[86] These matters can be considered and weighed in the process of deciding if the dismissal of the applicant was harsh and unreasonable.

The legislation

[87] The meaning of ‘earnings’ which is relevant in this matter is prescribed in section 332 which are set out below.

“332 Earnings

(1) An employee's earnings include:

(a) the employee's wages; and

(b) amounts applied or dealt with in any way on the employee's behalf or as

the employee directs; and

(c) the agreed money value of non-monetary benefits; and

(d) amounts or benefits prescribed by the regulations.

(2)  However, an employee's earnings do not include the following:

(a) payments the amount of which cannot be determined in advance;

(b) reimbursements;

(c) contributions to a superannuation fund to the extent that they are contributions to which subsection (4) applies;

(d) amounts prescribed by the regulations.

Note:          Some examples of payments covered by paragraph (a) are commissions, incentive-based payments and bonuses, and overtime (unless the overtime is guaranteed).

(3)  Non-monetary benefits are benefits other than an entitlement to a payment of money:

(a) to which the employee is entitled in return for the performance of work; and

(b)  for which a reasonable money value has been agreed by the employee and the employer;

but does not include a benefit prescribed by the regulations.

(4)  This subsection applies to contributions that the employer makes to a superannuation fund to the extent that one or more of the following applies:

(a) the employer would have been liable to pay superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 in relation to the person if the amounts had not been so contributed;

(b) the employer is required to contribute to the fund for the employee's benefit in relation to a defined benefit interest (within the meaning of section 291- 175 of the Income Tax Assessment Act 1997) of the employee;

(c) the employer is required to contribute to the fund for the employee's benefit under a law of the Commonwealth, a State or a Territory.

[88] Section 387 prescribes matters the Commission must have regard for when determining whether the applicant’s dismissal was harsh, unjust or unreasonable. This is set out below.

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Consideration

Jurisdictional objection

[89] The Commission notes the respondent’s jurisdictional objection detailed in their Form F3 being the assertion that the applicant’s annual rate of earnings was more than the high-income threshold per section 382(b)(iii) of the Act. If that is the case, the applicant would not be a person protected from unfair dismissal and so would not be able to make this application.

[90] The Form F3 filed in the Commission states that the applicant’s wage at the time of dismissal was $75 per hour.

[91] The respondent’s assertion was that based on the earnings for the financial year to 13 March 2022 the applicant’s projected income for the full financial year would be $179,901.34.

[92] Clause 10 of the Employment Agreement in the applicant’s materials identifies that the ordinary hours of work will be 38 hours per week.

[93] As was submitted on behalf the applicant, section 332 prescribes the meaning of ‘earnings’ and expressly excludes payments the amount which cannot be determined in advance.

[94] There is no evidence that any overtime the applicant worked and was paid for was guaranteed overtime that could be determined in advance. Consequently, the calculations in the respondent’s Form F3 incorrectly include payments for overtime that was not guaranteed. The respondent’s calculations are a projection of total earnings for a year including payment for overtime rather than the applicant’s earnings as is defined in section 332.

[95] The proper calculation of the sum of the applicant’s annual rate of earnings for the purposes of section 382 is 38 hours per week at $75 per hour being $2850 per week which amounts to $148,200 per annum.

[96] The sum of the applicant’s annual rate of earnings was $148,200 which is below the high-income threshold of the $158,500.

[97] Consequently, the Commission finds that the applicant at the time of his dismissal was a person protected from unfair dismissal and so the respondent’s jurisdictional objection is dismissed.

[98] Next, the Commission will consider the merits of the application.

[99] The application expressly asserted that there was no valid reason for the applicant’s dismissal as he did not need to attend site and was promised that if he did not get vaccinated, he would transfer to the workshop. The application continues to state that he was asked by the respondent to gain access to client computers and information and when he objected to this the attitude of the company changed considerably.

[100] The Form F3 that was filed by the respondent with respect to the reasons for the dismissal stated that the applicant took the decision not to be vaccinated for COVID-19 and this was respected and seen as his free choice.

[101] However, the health advice from the Western Australia Chief Health Officer through the Resources Industry Workers Direction was that any resource industry worker must be vaccinated in order to enter a resources industry site. This direction was issued on 2 November 2021.

[102] The respondent’s response explains that they received the directive from the Western Australian government and therefore a responsible employer they followed and implemented the Direction accordingly.

[103] The Commission notes the response filed by the respondent in May 2022 did not respond to the assertion in the application that the applicant was promised that if he did not get vaccinated, he would transfer to the workshop nor did the employer respond to the assertion that the applicant had been asked by the respondent to access client computers and information and when he objected to this the employer’s attitude changed considerably.

[104] The applicant’s evidence both in the witness statement filed on his behalf and his oral evidence at hearing was consistent with what was stated in his application regarding the promise that it if he did not get vaccinated, he could transfer to the workshop and that the respondent had asked him to access client computers and information and when he refused to do this the respondent’s attitudes towards him changed considerably.

Valid reason

[105] There is no dispute that at the date of the applicant’s dismissal he had not received any vaccination for COVID-19, nor had he obtained a medical exemption.

[106] With respect to the applicant working on site at Port Hedland, at the time of his dismissal, the Commission is satisfied that the Western Australian Government’s Resources Industry Workers (Restrictions on Access) Directions prevented him working on site because he was not vaccinated and did not have a medical exemption.

[107] When considering alleged incapacity to undertake the inherent requirements of the job the Commission’s role is to consider the substantive position of the employee not some modified, or temporary alternative position that might be considered. 1.

[108] Consequently, the Commission is satisfied that the applicant did not have the capacity to meet one of the inherent requirements of his position as the Senior Site Services Supervisor, which was to attend the site in person which his evidence was where he worked for the majority of his time.

[109] Therefore this was a valid reason for the applicant’s dismissal.

Notification of the reason

[110] In letters to the applicant before the final decision to dismiss him was made, the respondent had explained the requirements of the Resources Industry Workers (Restrictions on Access) Directions and that if he was not vaccinated and did not have a medical exemption he may be dismissed because he did not have the capacity to meet an inherent requirement of his position.

Opportunity to respond

[111] The applicant was invited to respond to the reason the employer was considering dismissing him and he did so in writing.

Refusal to allow a support person

[112] There was no refusal by the respondent to allow a support person present at any discussions.

Unsatisfactory performance warnings

[113] The reasons for the applicant’s dismissal were not related at all to his performance.

Size of the enterprise and absence of dedicated HR management specialists

[114] The respondent’s enterprise is a medium-sized business, and the respondent had an HR manager who was communicating with the applicant prior to his dismissal. The procedures followed in affecting the dismissal were consistent with the size of the business and the presence of a HR management specialist.

Other relevant matters

[115] In DA v Baptists Care SA [2020] FWCFB 6046, a Full Bench of the Commission explained what an employer’s obligation are where for reasons of the actions of a third party an employee no longer has the capacity to meet the inherent requirements of their job,

“[27] Before we deal specifically with DA’s grounds of appeal, two general conclusions may be stated about DA’s case, the decision and DA’s appeal.

[28] The first is that we agree with the Deputy President that the situation that led to DA’s dismissal is not novel, and reflects circumstances sometimes found in other unfair dismissal cases. The concept of “capacity” in s 387(a) as a basis for a valid reason for dismissal goes beyond the physical or skill capacity of the employee and encompasses situations where employees do not have or maintain the necessary licence, certification, qualification, approval or accreditation to lawfully perform the inherent requirements of their job. 2 Where an employee cannot perform the inherent requirements of their job and there is no reasonable scope for the employee to be redeployed into another role, it is likely that there will be a valid reason for dismissal based on the employee’s capacity.3

…….

[32] Second, in a situation where an employee’s capacity to perform the inherent requirements of their job is affected by the actions of a third party, the employer still has an obligation to treat the employee fairly. The principle in this respect was stated by Deputy President Asbury in Stevens v ISS Property Services Pty Ltd, 4  in the context of a situation where the work capacity of an employee of a labour hire business is affected by the actions of the host employer, as follows:

“[12] A number of cases have considered the manner in which the matters in s. 387 of the Act are considered in circumstances where an employer provides labour to a client and the client directs the employer to remove the employee from a site. As a Full Bench of the Commission observed … in Donald Pettifer v MODEC Management Services Pty Ltd (Pettifer) labour hire arrangements in which a host employer has the right to exclude a labour hire employee from its workplace, are becoming a common part of the employment landscape in Australia. The reality for companies in the business of supplying labour is that they frequently have little if any control over the workplaces at which their employees are placed and the rights of such companies in circumstances where a client seeks the removal of an employee are limited. However, this is not a basis upon which companies in the business of supplying labour to clients can abrogate responsibility for treating employees fairly when dismissal is the result of removal from a particular site and the fairness of the dismissal is considered with reference to the matters in s. 387 of the Act.”

[33] The above is founded upon a similar formulation of the principle stated in Deputy President Asbury’s decision in Kool v Adecco Industrial Pty Ltd, 5  which was expressly approved by Full Benches in Pettifer v MODEC Management Services Pty Ltd6 and Tasmanian Ports Corporation Pty Ltd t/a Tasports v Gee.7 Considerations which may arise in an assessment of whether the employer has acted fairly towards the employee in the type of situation described may include the extent to which the employer has the power to alter, modify or challenge the outcome determined by the third party, the extent to which the employer has exercised that power, and the capacity of the employer to redeploy the employee to a position where the employee’s capacity is not affected by the third party’s conduct. In Pettifer, the dismissal was found not to be unfair in circumstances where it was demonstrated that the labour hire employer was bound by its contract with the host employer to remove an employee from the worksite where instructed to do so by the host employer, and where the employer actively explored opportunities for redeployment but was unable to identify any suitable alternative position.8 By contrast, in Tasports, the dismissal was found to be unfair in circumstances where the employer did not place its contract with the host employer into evidence and thus did not demonstrate that it had no recourse to preserve the employee’s employment at the host employer’s worksite, nor did it adequately investigate options for the employee’s redeployment.9”

[116] The evidence is that it was possible to redeploy the applicant into the workshop. I also accept he had been told that this would occur if he decided not to be vaccinated. I accept he raised this commitment given by his manager with the respondent in the lead up to his dismissal, but they did not engage with him about this at all.

[117] The respondent had created the expectation that the applicant could choose not to be vaccinated and he would then be redeployed to the workshop in Wangaratta and not have to attend site in Port Hedland. There is nothing before the Commission that explains why this previously given commitment was not honoured or that indicates some change circumstances meant it was no longer possible.

[118] It is entirely speculative why the respondent did not do what it said it would do and redeploy the applicant to the workshop. The applicant believes this was the consequence of him refusing to follow directions to take unethical actions. The Commission is not able to assess whether his belief about this is correct or not

[119] What the evidence does demonstrate is that the applicant could have been redeployed into the workshop but was not. Instead for reasons unknown the respondent opted to dismiss him.

[120] In all the circumstances of this matter the respondent’s dismissal of the applicant was unreasonable. The applicant was unfairly dismissed.

Remedy

[121] Whilst the applicant does not seek reinstatement, the Commission is obliged to consider whether this is appropriate or not. In circumstances where there is no evidence before the Commission as to the current circumstances within the business, I have decided that it would not be appropriate to reinstate the applicant.

[122] However, I do consider it appropriate that an order for compensation be made.

[123] There is no evidence before the Commission that an order of compensation would affect the viability of the employer’s enterprise.

[124] The applicant had been employed for approximately four years.

[125] In considering how long the applicant would have remained in employment had he not been dismissed when he was, I am conscious that the applicant not long before he was dismissed had been asked by the respondent to take what he viewed as unethical actions and that he had refused to do so

[126] It is apparent that this unsurprisingly caused the applicant to have doubts about the integrity of his employer. It may be inferred that his employer was dissatisfied with the applicant because of his refusal to act unethically.

[127] Given this background, my assessment is that if the applicant had not been dismissed his employment would have ended either through resignation or dismissal after no longer than another 16 weeks.

[128] Consequently, the remuneration he would have received if he had not been dismissed is 16 weeks at the rate of $2850 gross being a total of $45,600 gross.

[129] The applicant as is his right has chosen a different path having been dismissed and has been studying and establishing a small business. He has earned no remuneration since his dismissal. The applicant however has an obligation to mitigate his economic loss and he has not attempted to do so by applying for other employment. It is appropriate then for there to be some deduction from the compensation to be paid which will be the amount of four weeks at his previous rate of remuneration amounting to $11,400 gross.

[130] Consequently, the compensation calculation is $45,600 minus $11,400 equals $34,200 gross.

[131] An order to that effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

<PR747941>

 1   J Boag and Son Brewing Pty Ltd v Allan John Button [2010] FWAFB 4022 at [22].

 2   Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at [42].

 3   Pettifer v MODEC Management Services Pty Ltd [2016] FWCFB 5243, 261 IR 439 at [37].

 4   [2020] FWC 1340.

 5   [2016] FWC 2278.

 6   [2016] FWCFB 5243, 261 IR 439 at [18], [38]-[41].

 7   [2017] FWCFB 1714, 266 IR 253 at [33]-[34].

 8   [2016] FWCFB 5243, 261 IR 439 at [37], [40]-[41]

 9   [2017] FWCFB 1714, 266 IR 253 at [41].