| [2022] FWC 792 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Christine Inwood
v
Baxter & Co. Pty. Ltd.
(U2021/9536)
DEPUTY PRESIDENT EASTON |
SYDNEY, 7 APRIL 2022 |
Application for an unfair dismissal remedy – refusal to be vaccinated against COVID-19 – public health orders – valid reason found – no reasonable opportunity to respond – dismissal was unfair – no loss of income – no remedy ordered.
[1] The Applicant, Ms Christine Inwood, is not vaccinated against the coronavirus. Ms Inwood worked for Baxter & Co Pty Ltd as the manager of the ‘Baxter Boots & Shoes’ store in Tamworth in New South Wales. In August and September 2021 Tamworth, like much of New South Wales, went into lockdown because of the spread of the Delta strain of the coronavirus. While Baxter & Co was preparing to come out of lockdown it made a polite inquiry to Ms Inwood of her vaccination status, because the public health orders would only allow Ms Inwood to return if she was vaccinated. Ms Inwood indicated in clear terms that she was not prepared to be vaccinated and was dismissed by return email.
[2] On 19 October 2021 Ms Inwood 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 she had been unfairly dismissed from her employment with Baxter & Co Pty Ltd (Baxter & Co).
[3] Prior to her dismissal Ms Inwood and Baxter & Co exchanged messages via email and SMS. In the course of this exchange Ms Inwood sent a letter that she had downloaded from a website. The letter was offensive in tone, incorrect, made ridiculous demands of the employer, and imposed conditions upon any agreement to be vaccinated that bore no semblance to the reality of the employment situation.
[4] A number of factors led to Ms Inwood’s dismissal: the letter of 3 October 2021, the fact that public health orders prevented Ms Inwood from entering Baxter & Co’s premises unless she was vaccinated, and the fact that Ms Inwood had unambiguously declared that she would not be vaccinated.
[5] For the reasons that follow I find that the dismissal of Ms Inwood was procedurally unfair and that she was unfairly dismissed. In the circumstances however, I am not prepared to make any orders for reinstatement or compensation.
[6] By September 2021 Ms Inwood believed that the Public Health Orders were illegal and that proceedings in the Supreme Court of NSW would establish their unlawfulness. Ms Inwood did not try to attend work in contravention of any public health order, did not advocate for any kind of civic disobedience, but made it clear that whilst ever Baxter & Co required her to be vaccinated to enter the store, she was not prepared to do so.
[7] Ms Inwood did her own research about the approved vaccines, the risks of vaccination and about what she thought were her legal rights. In her research, Ms Inwood came across a website of an organisation that opposed vaccination and that provided free, downloadable letters for likeminded workers to use in their employment.
[8] As community vaccination levels rose, which in turn allowed for restrictions to be progressively eased, Baxter & Co began planning to re-open its shop. The first stage of the easing of restrictions allowed non-essential shops, such as shoe shops, to trade. One key initial trading restriction, however, was that only vaccinated people could enter the shop - staff and customers alike.
[9] Ms Inwood had been opposed to covid-19 vaccination from some time prior to September 2021. Her vaccination status, as opposed to her views on vaccination, became more important as lockdown restrictions began to ease. Her availability to work, or more precisely Baxter & Co’s authority to allow Ms Inwood to enter its premises, was legally tied to Mis Inwood’s vaccination status.
[10] Unfortunately, as the time for re-opening drew close, Ms Inwood’s communication with her employer became more antagonistic.
[11] Eventually Ms Inwood sent to her employer a letter based on a template she received from the Internet asking a series of questions about Covid-19 vaccines such as “can you please confirm that I will not be under any duress from yourselves as my employers, in compliance with the Nuremberg code?” and insisting upon certain conditions before she would agree to be vaccinated such as “[Baxter & Co] confirm that I will suffer no harm” and that the employer document “be signed by a fully qualified doctor who will take full legal and financial responsibility for any injuries occurring to myself.”
[12] Ms Inwood’s letter was the final straw for Baxter & Co. By reply email Baxter & Co referred to Ms Inwood’s letter as a “load of rubbish” and dismissed her from her employment.
[13] There is very little disagreement between the parties as to what occurred. All of the relevant communication was either by SMS or email. The disagreement between the parties arises in relation to the consequences of Ms Inwood’s decision not to be vaccinated and Baxter & Co’s decision to dismiss her. There is no disagreement that under various Public Health Orders Ms Inwood could not attend work for a long period of time. Neither Ms Inwood nor Baxter & Co had any choice about that, noting of course that Ms Inwood very much had the choice to be vaccinated or not.
[14] On 2 September 2021, when Tamworth and much of NSW was in lockdown, Mr Marshall Baxter made the following enquiry of Ms Inwood via SMS:
“Hi Chris just a short note to say hi and see how you and the staff are going with covid vaccinations for when we come out of lockdown.
Hope you are well and coping with the lockdown.
Kind regards Marshall”
[15] Ms Inwood replied in the same day by SMS as follows:
“Hi Marshall. I am waiting on the outcome of the Supreme Court hearing tomorrow regarding mandatory vaccination. I personally am still sitting on the fence just watching and waiting for more long term affects and research. As the vaccine is still experimental, are you aware should people suffer injuries or death following vaccination, your life or disability cover will not be paid due to the experiment. I am sending you a letter prepared apparently by a firm of Solicitors that is circulating in public service and private workplaces. I believe from what I am told, employees may sue their employer if the letter is submitted and people are forced to be vaccinated or lose their jobs. Perhaps more research needs to be done to protect yourself. Also check the Bill before Parliament by Craig Kelly “no mandatory vaccination”. At this stage, I feel it is premature and risky to mandate staff vaccination. Of course, it is up to you. I will send a copy of this to Harry. I hope you and all the family are keeping well.
Kindest regards, Chris”
[16] As foreshadowed in her SMS, Ms Inwood sent a letter to Baxter & Co on 2 September 2021 in the following terms:
“Vax letter
This if your employer insists on jab:
Nicole Collins
Letter to Employer
‘I write with regard to the matter of potential covid vaccine and my desire to be fully informed and appraised of ALL facts before going ahead.
I’d be most grateful if you could please provide the following information, in accordance with statutory legal requirements:
1. Can you please advise me of the approved legal status of any vaccine and if it is experimental?
2. Can you please provide details and assurances that the vaccine has been fully, independently and rigorously tested against control groups and the subsequent outcomes of those tests?
3. Can you please advise of the full list of contents of the vaccine I am to receive and if any are toxic to the body?
4. Can you please fully advise of all the adverse reactions associated with this vaccine since it’s introduction?
5. Can you please confirm that the vaccine you are advocating is NOT ‘experimental mRNA gene altering therapy’?
6. Can you please confirm that I will not be under any duress from yourselves as my employers, in compliance with the Nuremberg Code?
7. Can you please advise me of the likely risk of fatality, should I be unfortunate to contract Covid 19 and the likelihood of recovery?
Once I have received the above information in full and I am satisfied that there is NO threat to my health, I will be happy to accept your offer to receive the treatment, but with certain conditions – namely that:
1. You confirm that I will suffer no harm.
2. Following acceptance of this, the offer must be signed by a fully qualified doctor who will take full legal and financial responsibility for any injuries occurring to myself, and/or from any interactions by authorized personnel regarding these procedures.
3. In the event that I should have to decline the offer of vaccination, please confirm that it will not compromise my position and that I will not suffer prejudice and discrimination as a result?
I would also advise that my inalienable rights are reserved.’”
[17] It is not clear to me whether Ms Inwood was expecting a reply to this letter. The SMS sent prior to the letter refers to “a letter prepared apparently by a firm of Solicitors that is circulating in public service and private workplaces”, and Ms Inwood also suggested to Mr Baxter that “perhaps more research needs to be done to protect yourself”. The letter itself is obviously a template and Ms Inwood did not seem to have changed any of the text, leaving in references such as “this if your employer insists on a jab” and “Letter to Employer”. Baxter & Co did not reply to the letter and Ms Inwood did not press for a reply. The most likely interpretation is that Ms Inwood sent this letter to Baxter & Co ‘for your information’ rather than expecting a response.
[18] On 6 September 2021 Marshall Baxter replied via SMS as follows:
“Hi Chris thanks for your reply. My family and I are well. We have taken the advise of expert doctors and now are fully vaccinated. This makes us secure in the knowledge that we will not end up in hospital if we contract covid and the odds of us spreading covid is far less, not to mention helping Nsw reach the target so we can resume business and get out of lockdown. I took it from your in message that you are somewhat against vaccination for covid. Could you please advise if you are willing to be vaccinated before the end of lockdown as I have a duty of care to you, the other staff who have been vaccinated and to our customers. Customers will not be allowed in the shop if they have not been vaccinated as we have a duty of care. I would appreciate it if you would call me if you wish to discuss this important matter. Regards Marshall.”
[19] The next day Ms Inwood sent an email to Marshall Baxter that included the following:
“With respect, I am not against vaccination. I am more concerned about personal choice.
I am presently seeking advice concerning the vaccination, and whether or not it is a medically appropriate treatment for me.
Please be advised that currently there are multiple cases before the High Court and the Supreme Court of NSW, and in which the Court is being asked to consider whether the current Public Health Orders are valid, or whether they are invalid; and because of inconsistencies with the Australian Immunisation Register Act 2015 (Cth), and the Biosecurity Act 2015 (Cth).
Orders are being made in the proceedings for the purposes of bringing them on for hearing.
I request that you permit the Courts to determine the issues as to whether or not it is lawful for me to be subjected to a mandatory vaccination, before you seek to impose this outcome on me.
I look forward to revising this issue with you when the outcome of the Court process is known.
As matters stand, it is illegal to seek to impose a medical outcome upon me, without my consent.
Accordingly, and for present purposes, please respect my decision whilst we await an answer from the Court.”
[20] Two days later Ms Inwood sent the following request to Marshall Baxter by SMS:
“Good morning Marshall and Harry. It seems we are coming out of lockdown. Could you please let me know what hours we will be trading? As you have indicate, you are enforcing mandatory vaccination for staff and shoppers, could you please email that direction in writing on Company letterhead signed by a current Company Director. Kind regards, Chris.”
[21] Ms Inwood’s message seems to have prompted Baxter & Co to then remove Ms Inwood’s security administrator rights on Baxter & Co’s Facebook page.
[22] Marshall Baxter then sent an email to Ms Inwood in the following terms:
“Hi Chris,
I am not making vaccination mandatory for staff and please note I have never stated that and neither has the NSW Govt.
The NSW Govt has made health orders today, stating people who enter businesses ie retail, gyms, hairdressers pubs etc have to be vaccinated to enjoy these freedoms.
They have also stated employees in these businesses also need to be vaccinated to prevent the spread and contraction of covid.
Until the Govt states the contrary which is most unlikely, unfortunately we can not take the risk of our staff and customers who have not been vaccinated entering the business as we have a duty of care under said orders.
So due to this I can not allow you to enter the business premises until you have been vaccinated.
It is a matter entirely for yourself whether you are vaccinated or not vaccinated and it is not a decision I can make or mandate nor the Govt.
Under the new health orders people who have not been vaccinated are only allowed to attend critical retail premises such as a supermarket.
Due to the health orders, if you do not believe vaccination is for you, due to whatever reasons, I see under these new health orders, the only option available is for you to resign from Baxter and Co.”
[23] Mr Baxter’s actions drew a provocative response from Ms Inwood. Ms Inwood sent an email in reply in the following terms:
“hi Marshall,
Thank you for your email.
I note I have been deleted as an Administrator of the Baxter Boots & Shoes Tamworth Facebook page which leads me to believe I have been fired.
It is not my intention to resign.”
[24] The final email that day, 9 September 2021, was from Harry Baxter to Ms Inwood in the following terms:
“Hi Chris,
You have not been fired.
However Due to the health orders regarding people who have not been vaccinated and Marshall’s previous emails. We are not in a position to give you any employment hours in the shop.
However if the government changes its health orders policy we will be in contact.
In regards to the Facebook. We have removed you as an administrator, as in these circumstances it makes business sense to administer it ourselves.
Regarding Debbie resigning please advise if you had a conversation with her after you received the letter this afternoon regarding health orders and vaccination.”
[25] True to its word Baxter & Co then waited almost one month before contacting Ms Inwood again. On 3 October 2021 Harry Baxter sent an email about Ms Inwood’s vaccination status:
“Hi Chris,
With the new public Health orders coming out stating employees have to have at least 1 vaccination and at least a booking for a second one.
Can you please advise whether you will be vaccinated by October 11?”
[26] Baxter & Co’s request, that Ms Inwood advise whether she will be vaccinated by 11 October, was a very reasonable request. Three weeks beforehand Ms Inwood had indicated in fairly strong terms that she was opposed to vaccination. If Ms Inwood had not received at least one dose by 11 October 2021 then Baxter & Co could not allow her to enter its premises. Unfortunately Ms Inwood chose to send the following email in response:
“Hi Harry,
I write in response to your email today with regard to the matter of potential covid vaccine and my desire to be fully-informed and appraised of ALL facts before going ahead.
I’d be most grateful if you could please provide the following information, in accordance with statutory legal requirements:
1. Can you please advise me of the approved legal status of any vaccine and if it is experimental?
2. Can you please provide details and assurances that the vaccine has been fully, independently and rigorously tested against control groups and the subsequent outcomes of those tests?
3. Can you please advise of the full list of contents of the vaccine I am to receive and if any are toxic to the body?
4. Can you please fully advise of all the adverse reactions associated with this vaccine since it’s introduction?
5. Can you please confirm that the vaccine you are advocating is NOT ‘experimental mRNA gene altering therapy’?
6. Can you please confirm that I will not be under any duress from yourselves as my employers, in compliance with the Nuremberg Code?
7. Can you please advise me of the likely risk of fatality, should I be unfortunate to contract Covid 19 and the likelihood of recovery?
Once I have received the above information in full and I am satisfied that there is NO threat to my health, I will be happy to accept your offer to receive the treatment, but with certain conditions – namely that:
1. You confirm that I will suffer no harm.
2. Following acceptance of this, the offer must be signed by a fully qualified doctor who will take full legal and financial responsibility for any injuries occurring to myself, and/or from any interactions by authorized personnel regarding these procedures.
3. In the event that I should have to decline the offer of vaccination, please confirm that it will not compromise my position and that I will not suffer prejudice and discrimination as a result?
I would also advise that my inalienable rights are reserved.
In addition, I am attaching information from the Fair Work Australia dated 27th September 2021.
As I have been stood down for not being vaccinated and not allowed back to work since the end of lockdown in Tamworth at 12:01 pm Saturday, 11th September 2021, it appears that it is a condition of
…
Fair Work Australia that I receive full payment for my normal fixed 24 hours on a permanent part time basis together with all normal accumulative entitlements, ie; superannuation, leave and sick days. I have not received any payment from you.
I am and have always been ready willing and able to attend my normal duties as Manager of Baxter Boots & Shoes Tamworth.”
[27] Ms Inwood’s letter prompted Baxter & Co to terminate her employment. Baxter & Co sent Ms Inwood the following by email on 3 October 2021:
“Without prejudice.
Hi Chris.
We are not, as stated previously forcing you to be vaccinated The decision is purely yours whether you are vaccinated or not.
I have read your reply email re new health orders posted today by the minister of health.
All I’ve got to say is, what a load of rubbish your response is in relation to the new health orders. Please take time to read them.
You attitude to the welfare of your fellow workers and the general public by not being vaccinated is something that is not in line with the Govt’s policy regarding working in retail and conquering covid.
Therefore because of the risk of you not being vaccinated we are no longer in a positon to continue your employment with Baxter and co Pty Ltd. The ramifications of you contracting covid and passing it on to fellow staff members and customers not to mention the most vulnerable are too greater odds as per Govt policy for the company to feel comfortable employing you.
Please feel free to take this matter up with fair work.
We will be paying you your accrued entitlements on Tuesday.
Please post the keys to the shop back to PO Box [redacted].”
[28] Baxter & Co refers to the Small Business Fair Dismissal Code (“the Code”) in its F3 Response document filed in the Commission. In the F3 document Baxter & Co indicated that had eight employees at the time Ms Inwood was dismissed. Baxter & Co did not file or rely on any evidence as to whether or not it was a small business employer, and in fact made no submissions at all about the application of the Code.
[29] Ms Inwood’s dismissal was not consistent with the Code.
[30] There are two categories of dismissal within the code: “summary dismissal” and “other dismissal”.
[31] In the second category of dismissal in the Code a small business employer must give the employee a reason why he or she is at risk of being dismissed and must provide the employee with an opportunity to respond to the warning as well as a reasonable chance to rectify the problem prior to dismissal. None of these things occurred and therefore Ms Inwood’s dismissal was not consistent with a dismissal in the second category within the Code.
[32] Whilst Ms Inwood did not receive any warning prior to her dismissal, the only conduct that could conceivably be the cause of her summary dismissal was the sending of the template-based letter that Baxter & Co describes as “a load of rubbish”. By this time Baxter & Co had known for several weeks that Ms Inwood was not vaccinated and was not likely to get vaccinated. Whilst the sending of the template letter was not wise or even logical, it was not “sufficiently serious to justify immediate dismissal.”
[33] Ms Inwood’s application therefore falls to be considered under s.385 and s.387 of the FW Act.
[34] Section 387 of the FW Act requires me to take into account the following matters in determining whether Ms Inwood’s dismissal was harsh, unjust or unreasonable:
“(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[35] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 1 I set out my consideration of each below.
[36] To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 2 and should not be “capricious, fanciful, spiteful or prejudiced.”3 However, the Commission will not stand in the shoes of Baxter & Co and determine what the Commission would do if it was in the position of Baxter & Co.4
[37] The test is whether, on the evidence before the Commission, there was a valid reason for dismissal connected to the employee’s capacity or conduct.
[38] In this case the reason for dismissal was a mixture of Ms Inwood’s capacity to attend for work in light of her vaccination status and the public health orders in force at the time, and of Ms Inwood’s conduct in how she communicated with Baxter & Co about her capacity.
[39] In the period that Ms Inwood was dealing with her employer about her vaccination status and about the operation of the public health orders, she believed that the public health orders were unlawful and would be overturned in proceedings in the Supreme Court of NSW. Ms Inwood was concerned about the “chemicals that make up the vaccines” and remains unvaccinated despite the Supreme Court and the Court of Appeal comprehensively determining that the public health orders are lawful.
[40] Ms Inwood has posted several items on Facebook about vaccination between July 2021 and November 2021 that unambiguously oppose mandatory vaccination and question the safety of the approved Covid-19 vaccines. For example, on 27 August 2021 Ms Inwood posted the following:
“If it worked and was safe, you wouldn’t need to run huge ad campaigns, mandate it or offer incentives.
If it worked and was safe, you wouldn’t need to block, censor, and threaten those who question it.”
[41] Ms Inwood does not have a regular doctor and does not appear to have sought any advice about vaccination from a qualified medical practitioner. She has no medical contraindication and has not applied for any exemption.
[42] In several of her communications she directly accused Baxter & Co of forcing or coercing her to be vaccinated, which is completely wrong. Baxter & Co, like many employers in this pandemic, has diligently tried to comply with public health orders.
[43] Baxter & Co was patient with Ms Inwood about her allegations and about her decision not to be vaccinated, at least for a time. For example, in the flurry of communication in early September 2021 Harry Baxter to Ms Inwood on 9 September 2021 that included the following:
“You have not been fired.
However due to the health orders regarding people who have not been vaccinated and Marshall [Baxter’s] previous emails. We are not in a position to give you any employment hours in the shop.
However if the government changes its health orders policy we will be in contact…”
[44] Baxter & Co’s patience was not reciprocated. Ms Inwood put in evidence an SMS she sent to one of her subordinates on 27 September 2021 that included the following:
“… I am devastated and so gutted by the way I have been treated by the Baxters … I cannot believe that they have taken the high road and treated me so badly after everything I have done for them and treated their business like my own. It is not Law that people be vaccinated and I have no bias against anyone. Everyone just should be allowed to make their own choice. There is a lot of change going on behind the Media that people are not being told …”
[45] There was no communication between Baxter & Co and Ms Inwood between 9 September 2021 and 3 October 2021. On 3 October 2021 Baxter & Co sent a polite enquiry that prompted Ms Inwood’s template-based response, which in turn was the catalyst for her dismissal.
[46] The letter from Ms Inwood to Baxter & Co on 3 October 2021 was unsatisfactory in many ways. It is not necessary to provide a précis of the letter suffice to say that:
a) many of the underpinning legal assumptions are completely wrong;
b) many of the underpinning factual assumptions are completely wrong;
c) most of the questions are beyond the knowledge of the employer to answer (such as the “full list of contents of the vaccine”, the “details and assurances that the vaccine has been fully, independently and rigorously tested against control groups and the subsequent outcomes of those tests”, and “all the adverse reactions associated with this vaccine since its introduction” and so on);
d) almost all of the letter is inappropriately provocative and confrontational;
e) although the letter was sent to the employer, almost none of issues targeted in the letter are within the control of the employer; and
f) there is very little in the letter that the employer could properly answer.
[47] Many extraordinary things have happened during this global pandemic and many changes have occurred in the way in which work is performed in the Australian workforce. Looking at the content of this letter in a vacuum, if one could possibly do so, one could only see that the letter is an extraordinary letter for an employee to send to their employer. It is hostile and only the most naïve employee would think that the sending of such a letter would not significantly damage the employment relationship. It is however an extraordinary time, and Ms Inwood’s template letter, and others just like it, have appeared in the many unfair dismissal applications lodged in the Commission. That is, many unvaccinated ex-employees have relied upon these template letters to their demise.
[48] By her letter of 3 October 2021 and her earlier messages Ms Inwood unambiguously conveyed to Baxter & Co that she was not prepared to be vaccinated. Even though her letter of 3 October 2021 asked questions about the consequences of being vaccinated (thereby superficially implying that she was open to the possibility of being vaccinated) and, by its words indicated that she would be prepared to be vaccinated if certain conditions were satisfied, Baxter & Co was entitled to interpret her letter as a refusal to be vaccinated.
[49] The loaded questions in the letter require the employer to provide certain information and “assurances” to Ms Inwood so that she can be “satisfied that there is NO threat to [her] health”. Many of the questions asked of the employer are ridiculous. It is ridiculous, for example, to ask the employer for “details and assurances that the vaccine has been fully, independently and rigorously tested against control groups and the subsequent outcomes of those tests”. Quite obviously Baxter & Co, the operator of a shoe shop in rural NSW, cannot provide any such “details”, let alone give “assurances” about the independence and rigour of vaccine testing protocols. It is similarly ridiculous to ask the respondent to “fully advise of all the adverse reactions associated with this vaccine since its introduction”, and so on.
[50] Further, the “certain conditions” stipulated in the letter that must be satisfied by the Respondent in order for Ms Inwood to agree to be vaccinated (which would only arise if Baxter & Co provided satisfactory answers to Ms Inwood’s demands for information) have no connection to the reality of Ms Inwood’s employment. In the circumstances the employer was entitled to disregard the conditions set by Ms Inwood and to regard her whole response as confirmation of her decision not to be vaccinated.
[51] Baxter & Co was attempting to comply with a public heath order (being legal requirements set by government) that otherwise prohibited unvaccinated persons from entering their shop and made a polite inquiry into Ms Inwood’s vaccination status. In this context Ms Inwood’s response in her letter was destructive rather than constructive.
[52] I am satisfied that there were valid reasons to dismiss Ms Inwood from her employment, being:
a) the fact that public health orders applicable at the time required that all persons entering the client’s premises be vaccinated; and
b) that Ms Inwood communicated to Baxter & Co (by her letter of 3 October 2021, read in conjunction with her earlier communications) that there was no practical possibility that Ms Inwood would be vaccinated; and
c) the way in which Ms Inwood communicated her position.
Was the Applicant notified of the valid reason?
[53] Section 387(b) requires me to take into account whether Ms Inwood “was notified of that reason.” Sections 387(b) and (c) direct the FWC’s inquiry to matters of procedural fairness. In general terms a person should not exercise legal power over another, to that person’s disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case. 5
[54] In context, the inquiry to be made under s.387(b) is whether the employee was “notified” of that reason before the employer made the decision to terminate. 6 The reference to “that reason” is a reference to the valid reason(s) found to exist under s.387(a)7 and the reference to being “notified” is a reference to explicitly putting the reasons to the employee in plain and clear terms.8
[55] In this matter Ms Inwood was not notified of the reasons for her dismissal prior to the dismissal itself. Whilst she was on notice that the public health order and that Baxter & Co required her to be vaccinated in order to attend the shop, Baxter & Co’s decision to dismiss Ms Inwood by email shortly after receiving Ms Inwood’s letter of 3 October 2021 meant that Ms Inwood was not notified of the reason for dismissal for the purposes of s.387(b) of the FW Act.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
[56] The opportunity to respond to which s.387(c) refers is an opportunity to respond to the reason for which the employee may be about to be dismissed.
[57] Ms Inwood was given ample opportunity to respond to Baxter & Co’s inquiries relating to the public health orders, but she was not given any meaningful opportunity to respond to Baxter & Co’s reasons for dismissal.
[58] Baxter & Co should have invited Ms Inwood to make one further response, in light of her letter of 3 October 2021, as to why her employment should not be terminated.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
[59] This factor is not a relevant consideration in this matter.
Was the Applicant warned about unsatisfactory performance before the dismissal?
[60] As the dismissal did not relate to unsatisfactory performance, strictly speaking this factor is not relevant to the present circumstances.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[61] Neither party submitted that the size of Baxter & Co’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find this factor had no such impact.
To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[62] In this matter the absence of dedicated human resource management specialists or expertise in Baxter & Co’s enterprise did impact on the procedures followed by Baxter & Co in dismissing Ms Inwood. Better access to human resource management specialists or expertise could have brought about a more considered and procedurally fair response to Ms Inwood’s letter of 3 October 2021.
What other matters are relevant?
[63] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
[64] In this matter there are no other relevant matters to take into account.
[65] I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable and therefore an unfair dismissal.
[66] I find that the dismissal of Ms Inwood was, in the circumstances unjust and unreasonable. There were valid reasons to dismiss Ms Inwood from her employment, however Baxter & Co did not afford her procedural fairness when simply dismissing Ms Inwood by reply email.
[67] I understand that Ms Inwood has strongly held views about vaccination, and that Baxter & Co was aggrieved by the way in which Ms Inwood communicated with them about her vaccination status.
[68] In my view it is unfair that Ms Inwood wasn’t given one final opportunity to respond to Baxter & Co’s concerns about the viability of her ongoing employment.
[69] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of Ms Inwood was unfair.
Remedy - reinstatement
[70] Being satisfied that Ms Inwood made an application for an order granting a remedy under section 394, was a person protected from unfair dismissal and was unfairly dismissed within the meaning of section 385 of the FW Act, I may order Ms Inwood’s reinstatement, or the payment of compensation to Ms Inwood, subject to the FW Act.
[71] Being satisfied that Ms Inwood made an application for an order granting a remedy under s.394, was a person protected from unfair dismissal and was unfairly dismissed within the meaning of s.385 of the FW Act, I may order Ms Inwood’s reinstatement, or the payment of compensation to her, subject to the requirements of the FW Act.
[72] Ms Inwood does not seek reinstatement. Reinstatement is therefore not appropriate.
Compensation – what must be taken into account in determining an amount?
[73] Section 392(2) of the FW Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to Ms Inwood in lieu of reinstatement including:
“(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.”
[74] I will consider these factors in sequence:
a) I am satisfied that an order for compensation would not have an effect on the viability of Baxter & Co’s enterprise;
b) Ms Inwood worked for Baxter & Co for more than two years, which is not insubstantial;
c) I do not consider that Ms Inwood’s employment would have lasted any more than a few days if she had not been dismissed by return email on 3 October 2021. Baxter & Co did not afford her procedural fairness and if it had given Ms Inwood an opportunity to respond to the reasons for dismissal the process would only have taken a few days. Given that Ms Inwood could not perform paid work at the time, the few extra days employment would not have resulted in any remuneration paid to her. As such the remuneration that Ms Inwood would have received, or would have been likely to receive, if Ms Inwood had not been dismissed is nil;
d) The elements in s.392(2)(d)-(g) do not arise in this matter.
Compensation – how is the amount to be calculated?
[75] The well-established approach to the assessment of compensation under s.392 of the FW Act is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg). 9
[76] The approach in Sprigg is as follows:
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. Workers’ compensation payments are deducted but not social security payments. The failure of an applicant to mitigate his or her loss may lead to a reduction in the amount of compensation ordered.
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.
[77] By application of the Sprigg formula no compensation should be ordered because the amount calculated in Step 1 is nil.
[78] Having applied the formula in Sprigg, I am nevertheless required to ensure that “the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case.” 10
[79] I am not satisfied that Ms Inwood has suffered a financial loss that supports an order for compensation. Even though the dismissal of Ms Inwood was unfair before of the failure to provide procedural fairness, Ms Inwood did not suffer any loss. In all the circumstances, I do not consider that an order for payment of compensation is appropriate.
[80] Accordingly, for the above reasons, Ms Inwood’s application is dismissed.
[81] An order will be issued separately this effect. 11
DEPUTY PRESIDENT
Appearances:
Ms C Inwood, Applicant
Mr M Baxter and Mr R Baxter for the Respondent
Hearing details:
2022.
Sydney (By Video using Microsoft Teams)
January 13.
Printed by authority of the Commonwealth Government Printer
<PR740157>
1 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].
2 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
3 Ibid.
4 Commonwealth of Australia (Australian Taxation Office) v Shamir [2016] FWCFB 4185 at [46] citing Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.
5 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151 [70] citing FAI Insurances Ltd v Winneke (1982) 151 CLR 342; Kioa v West (1985) 159 CLR 550; Annetts v McCann and others (1990) 170 CLR 596
6 Sydney Trains v Trevor Cahill [2021] FWCFB 1137 at [60], Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 150 [67]-[69].
7 Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429 at [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at [155].
8 Sydney Trains v Trevor Cahill [2021] FWCFB 1137 at [60] citing Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151 and Previsic v Australian Quarantine Inspection Services [1998] AIRC 1371 (Print Q3730).
9 (1998) 88 IR 21. See also Bowden v Ottrey Homes Cobram and District Retirement Villages (2013) 229 IR 6; [2013] FWCFB 431 and Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206 at [16].
10 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206 at [17].