Fair Work Act 2009
s.394—Unfair dismissal

Ali Fawaz
v
G4S Integrated Services Pty Ltd
(U2021/10424)

Application for an unfair dismissal remedy – refusal of court security officer to provide employer with evidence of vaccination status – employer required to comply with contractual obligations – application dismissed.

[1] This decision concerns an application for an unfair dismissal remedy made by Mr Ali Fawaz under s.394 of the Fair Work Act 2009 (the Act) (the application). From 23 October 2017 until 29 November 2021, Mr Fawaz worked on a part-time basis as a Court Security Officer for G4S Integrated Services Pty Ltd (G4S). Mr Fawaz was dismissed on the ground that he was unable to meet the inherent requirements of his job.

[2] Mr Fawaz had refused to provide G4S with proof that he had been vaccinated against COVID-19 or, alternatively, proof of any medical exemption. Pursuant to their contractual obligations with Court Services Victoria (CSV), G4S was required not to allow Mr Fawaz to attend the workplace on or after 22 October 2021. Mr Fawaz contends that his dismissal was harsh, unjust or unreasonable because he was terminated while on leave. He contends that his dismissal was unfair and seeks reinstatement and compensation.

Initial matters to be considered – s.396 of the Act

[3] Section 396 requires that I decide four matters before considering the merits of Mr Fawaz’s application. I am satisfied of the following. First, the application was made within the 21-day period required by s. 394(2). Secondly, there is no dispute that Mr Fawaz was a person protected from unfair dismissal. Thirdly, the dismissal was not a genuine redundancy. Fourthly, G4S is not a small business employer, and the Small Business Fair Dismissal Code is therefore inapplicable.

Was the dismissal unfair? – s.385 of the Act

[4] A dismissal is unfair if I am satisfied on the evidence before me that all of the circumstances set out in s.385 of the Act existed. Section 385 of the Act provides the following:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC 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.”

[5] There is no reason to dispute that Mr Fawaz was dismissed (s.385(a)) and, as outlined above, that this case was not a case of genuine redundancy (s.385(d)) or a matter that involves a small business such that consideration needs to be given to the question of whether Mr Fawaz’s dismissal was consistent with the Small Business Fair Dismissal Code (s.385(c)).

[6] The remaining factor of which I need to be satisfied is whether the dismissal was harsh, unjust or unreasonable (s.385(b)). In doing so, I must give consideration to s.387 of the Act:

“387 Criteria for considering harshness etc

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

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

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

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

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

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

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

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

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

Background

[7] G4S had and continues to have a contract with CSV to provide security services for Victorian courts and tribunals. It is G4S’s undisputed evidence that they only provide security services to Victorian courts and tribunals.

[8] CSV is an independent statutory authority that has responsibility for, among other things, providing administrative services and facilities to support Victorian courts and tribunals.

[9] In his capacity as a Health and Safety Representative at G4S, Mr Fawaz attended meetings of the G4S Health and Safety Committee. Mr Fawaz says he does not recall, but does not dispute, monthly meetings since July 2021 discussing the implementation of anticipated vaccine requirements.

[10] On 29 September 2021 G4S sent an internal communication to all staff informing them that G4S anticipated the security industry would be included in future state government vaccine mandates. The email also encouraged employees to get vaccinated and to inform G4S of same.

[11] On 1 October 2021 the public health orders that were announced by the Victorian Premier 1 would require that all workers on the Authorised Workers List receive their first vaccination by 15 October 2021 and their second vaccination by 26 November 2021. When this announcement was made, an “Authorised Worker” included “any person who performs work that is essential for the continued operation of Court Services Victoria, including security.”

[12] On 4 October 2021 Ms Rebecca Fraser, Director of HR and Safety at G4S, sent an email to all G4S staff titled “Changes to COVID-19 Restrictions for Authorised Workers in Victoria from 1 October 2021”. The content repeated details of the public health order and stated that “[n]ow that the State government has made vaccination mandatory, you will need to provide that information to us.” 2

[13] When the COVID-19 Mandatory Vaccination (Workers) Directions (MVD) were issued on 7 October 2021, people who “work in connection with court proceedings” were excluded from the MDV.

[14] On 15 October 2021 CSV informed its stakeholders that it would implement its own COVID-19 mandatory policy and invited feedback. As part of its risk assessment which took into consideration CSV’s obligations as an employer under the Occupational Health and Safety Act 2004 (Vic), CSV issued a COVID-19 Vaccination Policy and a Direction (CSV Policy and Direction) requiring vaccination of persons who would be required to work at a CSV workplace. On 19 October 2021, CSV implemented such a policy. 3

[15] It was not disputed that G4S’s contractual arrangements with CSV required it to comply with CSV’s policies, including its COVID-19 policy. This was communicated in correspondence from CSV to G4S on 21 October 2021 4 and acknowledged and accepted by G4S on 22 October 2021.5

[16] The effect of this was that anyone working at a CSV workplace after 19 October 2021 would be required to be:

“•  vaccinated with the first dose of a COVID-19 vaccine by 22 October 2021, or has provided proof of a medical exemption; and

•  vaccinated with the second dose of a COVID-19 vaccine by 26 November 2021.” 6

[17] Mr Patrick Marcinkowski is employed by G4S as General Manager. On 21 October 2021 he sent Mr Fawaz a letter informing him of the consequential requirements regarding vaccination arising out of the CSV Policy and Direction. The letter also stated that:

“To date, you have failed to provide us with information of your vaccination status or proof of a medical exemption as required under the Policy and Direction, and we must therefore assume that you are unvaccinated. As a result, you will not be able to attend work from the 23rd of October and until you are able to provide evidence of vaccination or proof of a medical exemption.

You will be placed on unpaid leave from Monday 25th October 2021, however you may request, through your normal leave request process, to utilise your accrued annual leave or long service leave (if eligible) entitlements for a maximum period of 2 weeks/10 days during this time.

If you are unable to provide evidence of having received a COVID-19 vaccination by 5th November 2021 and you continue to be unable to attend work due to ongoing vaccination requirements, your employment with G4S will be brought to an end…”

[18] Mr Fawaz gave evidence that around this time he had not had a COVID-19 vaccination because he had concerns for his health and safety and a possible adverse reaction. 7 He says that this caused him stress and while he could not attend the workplace he had valid medical certificates and that he had been informed via text messages and on the telephone with Ms Samantha Kapetanovic, G4S Hub Co-ordinator, that he did not have to rush in to getting vaccinated and that he could claim his sick leave and then his annual leave (presumably because he would not be allowed to attend work premises whilst unvaccinated). He provided screenshots of a text conversation on 15 October 2021 with Ms Kapetanovic.

[19] The wording of the screenshot is:

Mr Fawaz: Hi Sam

Any news?

Ms Kapetanovic: Hey, Just sick leave on the timesheet first and then annual leave.

Mr Fawaz: Thanks

Do I need to send it in advance for fortnightly?

Ms Kapetanovic: Weekly still please just so I can do the pays weekly so I don’t miss anything g (sic).

[20] Mr Fawaz submitted a screenshot dated 12 October 2021 indicating an outgoing telephone call to Mr Benjamin Fisher, Learning and Development Officer at G4S. He says that he had a similar conversation with Mr Fisher that he had with Ms Kapetanovic and that Mr Fisher informed him that he could be on sick leave and annual leave and then leave without pay as per the email from Ms Fraser, presumably the email sent to all staff on 4 October 2021. 8

[21] It was not disputed that Mr Fawaz provided G4S with a medical certificate on 22 October 2021. It was dated 14 October 2021 and certified that he was receiving medical treatment for the period of 15 October to 29 October 2021 and that he would continue to be unfit for work. Two further medical certificates with wording to the same effect were issued for the periods of 30 October to 13 November 2021 and 15 November to 29 November 2021.

[22] Up until 25 October 2021, Mr Fawaz was paid his personal leave entitlements. Subsequently, he was on leave without pay as detailed in the 21 October 2021 letter in paragraph 17 above.

[23] Over the course of 5 November 2021 there was a series of email exchanges between Mr Fawaz and Mr Marcinkowski. Mr Fawaz claimed he was entitled to and was seeking payment for sick leave/personal leave. Mr Marcinkowski was disputing his entitlement to sick leave/personal leave and referred to the 21 October 2021 letter which stated that Mr Fawaz would be placed on unpaid leave from 25 October 2021.

[24] G4S sent Mr Fawaz a letter on 8 November 2021 giving him notice of termination, stating that as a Court Security Officer he was required to comply with the CSV Policy and Direction to be vaccinated. It further states:

“This letter provides you with notice that your employment with G4S will come to an end effective 29th Of November due to the frustration of your employment contract. As a result of your failure to comply with the Policy and inability to attend work, you will remain on unpaid leave for the remainder of your employment, and you are reminded that you must not enter any G4S sites without express permission. Unless your circumstances change and you provide the required evidence to meet the Policy, you will receive confirmation of your termination on this date.”

[25] As foreshadowed in the 8 November 2021 letter, Mr Fawaz was sent a letter on 29 November 2021 confirming his termination as he had not provided evidence of his COVID-19 vaccination or a valid medical exemption and was, accordingly, unable to attend work and perform the inherent requirements of his role.

Submissions by the parties

[26] Mr Fawaz did not provide extensive submissions. His contentions are that his dismissal was unfair because he was terminated whilst on sick leave for which he had provided medical certificates.

[27] Mr Fawaz further contends that the termination was unfair because he says that he had been informed by Mr Fisher and Ms Kapetanovic that he would be able to use his sick leave and annual leave.

[28] In support of his contention that his termination was harsh he says that his contract with G4S provides for a minimum of 24 hours per week but that he was only working two days per week at the Victorian Civil and Administrative Tribunal until March 2020 and then he was redeployed to the Magistrates’ Court for one day per week until termination. 9

[29] Mr Fawaz says that he has recently been vaccinated after his return from overseas. He departed Australia on 27 February 2022 and his itinerary indicated that he was to return on 23 March 2022. He did not provide any evidence either prior to or at the determinative conference that he had received a COVID-19 vaccination.

[30] G4S submits that Mr Fawaz’s application should be dismissed.

[31] They submit that, by virtue of the CSV Policy and Direction, from 22 October 2021, they were contractually bound and had no choice other than to provide vaccinated persons or those with a medical exemption to work on CSV premises. Further, that the CSV Policy and Direction applied to Mr Fawaz.

[32] G4S says that because Mr Fawaz did not provide any evidence of vaccination or proof of a medical exemption as per the CSV Policy and Direction, that it had a valid reason to dismiss him because he could not perform his role as a Court Security Officer.

[33] G4S submits that Mr Fawaz was notified of the reasons for his dismissal in the letters of 8 November 2021 and 29 November 2021. G4S further submits that Mr Fawaz knew as early as 21 October 2021 that if he did not comply with CSV’s requirement, his employment with G4S would end and that Mr Fawaz had opportunity to respond to G4S’s proposal to terminate his employment.

[34] G4S submits that due to the continued requirement that Court Security Officers be vaccinated, reinstatement would not be appropriate. In light of Mr Fawaz’s subsequent vaccination, G4S says that it does not currently have any relevant vacancies.

[35] G4S denies that they underpaid Mr Fawaz and submits that the Commission does not have jurisdiction regarding Mr Fawaz’s claim for the payment of personal leave entitlements but addresses this issue as it may relate to “harshness”.

[36] G4S says that during 25 October to 29 November 2021, when Mr Fawaz was on leave without pay, he:

“[W]as not permitted to attend for work at the workplace because G4S was required to comply with CSV's requirements, and the Applicant was not ready, willing or able to perform work in accordance with this externally imposed condition.” 10

[37] Relying on Hannah Jane Wilkinson v Eastern Health [2022] FWC 260 at [24], they say that Mr Fawaz did not have any ordinary hours of work during this period because G4S could not allow him to work due to his failure to comply with CSV’s requirements. They submit that Mr Fawaz was not ready, willing or able to work.

Consideration

[38] I will now consider whether Mr Fawaz’s dismissal was unfair. That is, whether the dismissal was harsh, unjust or unreasonable. In doing so, I must consider each of the criteria set out in s.387 as reproduced above.

Was there a valid reason for dismissal relating to Mr Fawaz’s capacity or conduct (s.387(a))?

[39] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” and should not be “capricious, fanciful, spiteful or prejudiced.” 11 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.12

[40] In Crozier v AIRC 13 it was found that:

“A reason will be “related to the capacity” of the employee where the reason is associated or connected with the ability of the employee to do his or her job.”

[41] In my view, G4S had a valid reason to dismiss Mr Fawaz because he was unable to do his job. Mr Fawaz had not provided G4S with evidence that he had been vaccinated against COVID-19, or that he had a medical exemption. G4S was contractually prohibited from allowing Mr Fawaz to enter his workplace, most recently being the Sunshine Magistrates’ Court.

[42] To do his job, Mr Fawaz had to physically attend whichever court or tribunal he had been assigned. From 22 October 2021, G4S was contractually bound to ensure that any of its employees attending CSV premises complied with the CSV Policy and Direction. The effect of this was that, as at this date, employees needed to provide proof of vaccination or proof of a medical exemption.

[43] As at 21 October 2021, Mr Fawaz had not provided proof of his vaccination status. As at 8 November 2021 and by 29 November 2021, Mr Fawaz had still not provided the required information.

[44] In these circumstances, G4S was entitled to conclude Mr Fawaz would remain unvaccinated.

[45] As a Court Security Officer, he could not attend work premises. He could not perform his job from elsewhere, nor was such a notion canvassed. G4S gave undisputed evidence that it does not provide employees outside its contract with CSV. As such, G4S could not redeploy Mr Fawaz to a site that was not subject to COVID-19 vaccination requirements.

[46] I am satisfied that G4S had a good and substantial reason and, therefore, a valid reason to dismiss Mr Fawaz. From 22 October 2021 he was unable to do his job because his employer was contractually prohibited from allowing him to attend the workplace.

Was Mr Fawaz notified of that reason (s.387(b)) and given an opportunity to respond (s.387(c))?

[47] I am satisfied that Mr Fawaz was notified of the reason for his dismissal and given ample opportunity to respond.

[48] Mr Fawaz’s termination was foreshadowed in correspondence on 21 October 2021 in which he was advised that if he was unable to provide evidence of a vaccination by 5 November 2021, his employment would come to an end.

[49] On 8 November 2021 Mr Fawaz was notified that his employment would be terminated by 29 November 2021 unless he provided the required evidence of vaccination such that it would satisfy the policy requirements of CSV. Mr Fawaz did not respond. As a consequence, his termination was finalised by way of confirmation in the letter from G4S dated 29 November 2021.

Was there a reasonable refusal by the employer to allow a support person (s.387(d))?

[50] No submissions were made on the issue of a support person. This consideration is not relevant in this case.

Was Mr Fawaz warned about unsatisfactory performance before the dismissal (s.387(e))?

[51] Where dismissal relates to unsatisfactory performance, the Commission is required to consider whether the person has been warned about the unsatisfactory performance prior to dismissal. In this matter, Mr Fawaz’s employment was not terminated for unsatisfactory performance and this consideration is not relevant.

Impact of the size of the employer on procedures followed (s.387(f)) and impact of the absence of dedicated human resources management specialists or expertise on procedures followed (s387(g))

[52] Neither was it contended that G4S was a small business or lacked the human resources expertise nor are these factors relevant in this case.

What other matters are relevant (s.387(h))?

[53] Mr Fawaz advanced several other matters he says support his contention that his dismissal was unfair.

[54] Mr Fawaz acknowledged that G4S was obligated to comply with its contractual obligations to CSV regarding COVID-19 vaccination and its staff. Mr Fawaz’s complaint is that he should not have been dismissed whilst on sick leave and that he should have been granted more time to consider getting vaccinated. He further contends that he has been underpaid because he was not paid sick leave after 25 October 2021 but placed on leave without pay.

[55] It is of interest to note that Mr Fawaz’s first medical certificate, dated 14 October 2021, was received by G4S on 22 October 2021, a day after he was informed of the vaccination reporting requirements in the 21 October 2021 letter. Mr Fawaz contends that he had effectively been advised by Mr Fisher and Ms Kapetanovic to take annual leave but G4S disputes whether they had the authority to advise Mr Fawaz to this effect. Irrespective of the communications Mr Fawaz had with Mr Fisher and Ms Kapetanovic, Mr Fawaz’s application for sick leave was superseded by the 21 October 2021 letter. Furthermore, Mr Fawaz did not take up the offer as per the 21 October 2021 letter to apply for annual leave.

[56] I accept the submissions from G4S that due to the contractual requirements imposed on them by CSV, effective from 22 October 2021, they could not permit Mr Fawaz to work and that during the relevant period Mr Fawaz was not ready, able and willing to work and he, therefore, did not have any ordinary hours of work.

[57] Although Mr Fawaz says that he should have been given more time to make a decision about whether to have the COVID-19 vaccination, he had ample opportunity to consider the issue. He was a member of the Health and Safety Committee and from the middle of 2021, there were monthly discussions around the workplace about COVID-19 vaccinations. He had received a clear letter on 21 October 2021 outlining G4S’s expectations. Mr Fawaz effectively had until late November 2021 to advise G4S of his vaccination status. In light of his failure to do so, I am of the view that it would have been unreasonable to expect G4S to wait indefinitely for Mr Fawaz to make a decision on the matter.

[58] Mr Fawaz submitted that his dismissal was unfair because he had been contracted to work for a minimum of 24 hours per week, but at the time of his dismissal was only working one day per week. I do not find this is a cogent submission.

[59] Having considered and weighed the matters in relation to s.387(h) of the Act, I do not find that they are sufficient to render Mr Fawaz’s dismissal harsh, unjust or unreasonable.

Conclusion

[60] Having considered each of the matters specified in s.387 of the Act, I am satisfied that Mr Fawaz’s dismissal was not harsh, unjust or unreasonable. I find that Mr Fawaz’s dismissal was not unfair and his application is dismissed.

COMMISSIONER

Appearances:

The Applicant on his own behalf

Mr W. Spargo for the Respondent

Hearing details:

2022

Melbourne (video using Microsoft Teams)

6 April

Final written submissions:

27 February 2022, 17 March 2022 (Applicant)

15 March 2022 (Respondent)

Printed by authority of the Commonwealth Government Printer

<PR740110>

 1   Exhibit R4.

 2   Ibid.

 3   Exhibit R1.

 4   Exhibit R4.

 5   Ibid.

 6   Ibid.

 7   Exhibit A3.

 8   Exhibit A2.

 9   Ibid.

 10   Exhibit R4.

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

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

 13   Crozier v AIRC [2001] FCA 1031; (2000) 50 AILR.