| [2022] FWC 829 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jazilah Tuhaka
v
Southern Restaurants (Vic) Pty Ltd
(U2021/11146)
COMMISSIONER BISSETT |
MELBOURNE, 14 APRIL 2022 |
Application for an unfair dismissal remedy – failure to be vaccinated against COVID-19 or produce medical exemption – public health order requiring vaccination against COVID-19 – valid reason for dismissal – dismissal not harsh, unjust or unreasonable - application dismissed.
[1] Ms Jazilah Tuhaka (Applicant) has made an application seeking remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). The Applicant worked for Southern Restaurants (Vic) Pty Ltd (Respondent). The Respondent operates KFC restaurants.
[2] The Applicant’s employment was terminated on 4 January 2022 on the grounds that she had failed to demonstrate to the Respondent that she had received her COVID-19 vaccines or that she had a valid exemption. The Applicant says that her dismissal was unfair as she was dismissed for abandonment of employment by letter of 22 November 2021.
[3] The Applicant gave evidence in support of her case. Mr Duy Tran, Chief People Officer, gave evidence for the Respondent.
[4] Prior to considering the merits of the application there are some preliminary matters that I must consider.
[5] I am satisfied that the Applicant has been dismissed from her employment. At the time the Applicant made her application seeking a remedy from unfair dismissal the Respondent disputed that she had, at that time, been dismissed. This matter was discussed at a case management conference where it became apparent that the Applicant considered she had been dismissed for abandonment of employment. Ultimately, given her failure to provide evidence to the Respondent that she had received her vaccination for COVID-19 or provide evidence of an acceptable medical exemption, the Respondent sent the Applicant a letter on 4 January 2022 in which it made clear that the Applicant’s employment was terminated from that date.
[6] Ultimately the Respondent accepted that, while the Applicant’s application was made prior to the termination of employment, that application should proceed. It did not seek to raise any further jurisdictional objection.
[7] To the extent it is necessary and pursuant to s.586 of the FW Act, I waive any irregularity in the way in which the application was made and accept the application of the Applicant.
[8] I am satisfied that the application was made within time, the Small Business Fair Dismissal Code does not apply and the dismissal is not a redundancy.
[9] I accepted the witness statement filed by the Applicant and by Mr Tran, the documents attached thereto and documents provided by the Applicant in conjunction with her application. This material is held collectively in the Court Book distributed to both parties prior to hearing.
[10] Mr Tran was not challenged in his evidence and I accept his evidence.
[11] The Applicant was questioned with respect to the various pieces of correspondence that were sent to her by the Respondent and an exchange of correspondence between her and the Respondent in relation to COVID-19 vaccines. While I accept that the Applicant truly believes those matters on which she claims her dismissal was unfair, for the reasons given below I have not accepted her evidence in relation to the reasons for, and the timing of, her dismissal.
[12] During the hearing I requested the Applicant to provide to the Commission, by close of business on 8 April 2021 a copy of the email to which was attached the first “Abandonment of Employment” letter she received on 22 November 2021, details of when she commenced new employment and her earnings from that new employment.
[13] After the hearing the Applicant advised she could not access the original email of 22 November 2021. The Applicant advised she commenced her new employment on 18 December 2021 and provided her hourly rate of pay.
[14] I also requested that the Respondent produce to the Commission the script of the conversation had with the Applicant on 22 November 2021 and the email sent to the Applicant to which was attached the first “Abandonment of Employment” letter. The Respondent produced both documents as sought.
[15] The Applicant was a casual employee with the Respondent and her employment was covered by the KFC National Enterprise Agreement 2020 1 (Agreement). Clause 30 of the Agreement deals with abandonment of employment and states:
30.1 The parties recognise that the onus is on the employee to advise the employer when the employee is unable to work and to ensure contact details are up to date.
30.2 The absence of an employee from work for a continuous period of three (3) consecutive rostered days without just cause and without notification to their supervisor will be evidence that the employee has abandoned the employment.
30.3 The employer will provide in writing (email where provided, otherwise by post) notification that failure to contact the employer within seven working days with a satisfactory explanation for the absence will result in the employer regarding the employee as having abandoned their employment.
30.4 Termination of employment by abandonment in accordance with this clause will operate from the date of the last attendance at work.
30.5 Where it is established that the absence was for a reasonable cause, within four (4) weeks of the termination date, the employer will reinstate the employee to their former position.
[16] On 7 October 2021 the Victorian Acting Chief Health Officer issued the COVID-19 Mandatory Vaccination (Workers) Directions (Directions). Those Direction required, in part, that a “retail worker” have received their first vaccination does on or after 15 October 2021 or have evidence of an appointment to receive that vaccination by 22 October 2021 (or proof of an exemption) and have received a second vaccination by 26 November 2021. Absent meeting the requirements of the Direction a worker is not permitted on site.
[17] I am satisfied that the Applicant was a “retail worker” for the purpose of the Directions.
[18] I accept that the Directions have been updated from time to time but, as is relevant to this matter, have not changed in substance.
[19] The Respondent was, and remains, required to comply with the Directions as amended or re-issued.
[20] On 12 October 2021 the Applicant, along with all other employees, received communication from the Respondent that she was required to be vaccinated to attend work. 2 That letter summarised the requirements of the Directions and advised that “team members must be able to produce evidence of their vaccination/s in line with the above dates to attend work at any KFC store”. The dates were 15 October 2021 for evidence of first dose of the COVID-19 vaccine or appointment to receive the first dose by 22 October 2021 with full vaccination required by 26 November 2021.
[21] The Applicant did not provide the evidence required by 15 October 2021. This is not disputed by the Applicant. It would seem that, from this time, the Applicant was not rostered on for any more shifts.
[22] On 18 October 2021 the Applicant sent to Mr Tran a series of questions in relation to her concerns about the COVID-19 vaccine and the Directions. Mr Tran provided a response to the Applicant on 21 October 2021. The exchange of correspondence continued until 6 November 2021. The content of that correspondence is not germane to the matter before me.
[23] On 22 November 2021, as part of a program in which employees of the Respondent who had not provided the information required in the correspondence to staff of 12 October 2021, the Applicant was contacted by her manager with respect to her vaccination status and capacity to return to work. I accept that the content of that conversation was to the effect that, given her vaccination status and the existence of the Directions, the Applicant could not work or attend for work and, for this reason, her employment would be terminated unless she was fully vaccinated.
[24] The Applicant said she told her manager that she wanted a letter of termination.
[25] At 4.06pm on 22 November Ms Rebecca Ledwidge, Acting Area Manager, for the Respondent sent an email to Mr Tran 3 in which she said:
Hi Duy,
We have a team member from Chelsea Heights – Jazilah Tuhaka who is unvaccinated. We called her today with the Unvax script asking her if she planned on being vaccinated to continue working and she said no. They stated that means that we can’t let you continue working and that your employment will end and she said she would like a letter regarding her termination.
Would you be able to help me out here please?
Her number is [redacted] and her email is [redacted]
Thank you.
Kind Regards,
Rebecca Ledwidge
[26] At 3.38pm on 22 November 2021 a letter 4 was sent by email to the Applicant as follows:
To whom it may concern
Abandonment of Employment
I am writing to in [sic] relation to your recent absence from work.
Unfortunately, you have failed to attend your rostered shifts and have not notified the restaurant of your absence in accordance with establish restaurant absence notification procedures. Additionally, you have not answered any telephone calls made by the restaurant or returned any messages that have been left for you. As such, your absence from work is not authorised.
Under the KFC National Enterprise Agreement (NEA) clause 30.1, the onus is on the employee to advise the employer when the employee is unable to work and to ensure contact details are up to date.
Furthermore, under clause 30.2, The absence of an employee from work for a continuous period of three (3) consecutive days without just cause and without notification to their supervisor will be evidence that the employee has abandoned the employment.
I am concerned about your intentions in relation to your employment. Please contact your Restaurant General Manager (RGM) immediately within 5 business days of receiving this letter to discuss your absence from work.
In the event that you do not contact your RGM as required, we will deem that you have abandoned your employment with Southern Restaurants.
Should you have any queries, please do not hesitate to contact your KFC Restaurant and speak to your RGM.
Regards,
People & Culture
Southern Restaurants
[27] Mr Tran’s evidence is that this letter was automatically generated by the Respondent’s system to ensure continued compliance with clause 30.3 of the Agreement (set out above).
[28] On 30 November 2021 the Applicant was sent a “show cause” letter. That letter advised the Applicant that, if she failed to provide evidence of vaccination or medical exemption by 4.00pm 17 December 2021 her employment would be terminated.
[29] On 30 December 2020 the Applicant was sent a further “Abandonment of Employment” letter in the same terms as that sent on 22 November 2021 and set out above. Mr Tran said, again, that the letter was system generated and was sent in error to the Applicant.
[30] On 4 January 2022 the Respondent sent a letter to the Applicant terminating her employment as she had failed to provide evidence of vaccination as required.
[31] The Applicant does not dispute the receipt of any of these letters.
[32] Following receipt of the requested documents from the parties I sought submissions from the Applicant as to the timing of the sending of the “Abandonment of Employment” letter (3.38pm on 22 November 2021) and the request of Ms Ledwidge to Mr Tran for assistance in providing a letter of termination of employment to the Applicant as she had requested in her call with her manager (at 4.06pm on 22 November 2021). I also asked if the ”script” of the vaccine conversation provided by the Responded accorded with her recollection of the conversation her manager had with her.
[33] The Applicant said that when her Manger called and told her that her employment was terminated she asked for a letter of termination. The Applicant says she was then sent an “Abandonment of Employment” letter which she takes as being the letter terminating her employment. The Applicant made no comment as to the timing of the email from Ms Ledwidge to Mr Tran and the sending of the “Abandonment of Employment” letter.
[34] In reply the Respondent said that the wording of the vaccination script makes clear that employment will end on 14 December 2021 if the employee concerned is not vaccinated. The Respondent also says that there is nothing in the script that would suggest an employee was to be immediately terminated. The Respondent says that this is supported by Ms Ledwidege’s email to Mr Tran in which she says the Applicant was advised that her employment will end if she is not vaccinated at which the Applicant requested that she be provided with a termination of employment letter. The Respondent says that its position that the Applicant’s employment was not terminated on 22 November 2021 is supported by the letter to the Applicant on 30 November 2021 5 which provided her with additional time to comply with the Directions.
[35] In determining if the Applicant was unfairly dismissed it is necessary that I determine if the dismissal was harsh, unjust or unreasonable. In doing so I am required to have regard to the matters set out in s.387 of the FW 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.
Note: For the purposes of paragraph (a), the following conduct can amount to a valid reason for the dismissal:
(a) the person sexually harasses another person; and
(b) the person does so in connection with the person’s employment.
[36] It is well accepted that the Commission is required to consider each of these matters to the extent they are relevant and that a failure to consider each relevant matter would be in error.
(a) Was there a valid reason for dismissal
[37] For a reason for dismissal to be valid the reason must be “sound, defensible or well founded.” A reason which is “capricious, fanciful, spiteful or prejudiced” cannot be a valid reason. 6
[38] In order to determine if there was a valid reason for dismissal it is necessary, in the first instance, to determine the reason for dismissal.
Did the “Abandonment of Employment” letter of 22 November 2021 terminate the Applicant’s employment?
[39] The Applicant maintains that the “Abandonment of Employment” letter of 22 November 2021 raised issues as to her integrity and was the termination of employment letter she had requested from the Respondent on 22 November 2021 when her manager advised her that if she was not vaccinated her employment would be terminated. She therefore considers it to set out the reasons for the termination of her employment.
[40] The Respondent maintains that this letter was automatically generated to ensure compliance with the Agreement and that the provision of the “show cause” letter to the Applicant on 30 November 2021 is evidence that the Applicant’s employment had not been terminated prior to that date.
[41] The sending of the “Abandonment of Employment” letter to the Applicant has caused the Applicant considerable grief and it is regrettable that it occurred. It is unfortunate this letter was sent on the same day the Applicant was advised that a failure to be vaccinated (or provide a valid medical exemption) would warrant dismissal. The Respondent, however, should not be rebuked for putting in place systems to ensure compliance with the Agreement. A failure to be aware that there was a group of employees who could not attend for shifts for vaccination related reasons however should not have been overlooked and is a failing of the Respondent’s part.
[42] I have concluded that the Applicant’s employment was not terminated on 22 November 2021 and was not terminated because she had abandoned her employment. I have reached this conclusion for a number of reasons.
[43] Firstly the “Abandonment of Employment” letter does not tell the Applicant that her employment was terminated. Rather, it says “…I am concerned about your intentions in relation to your employment. Please contact your Restaurant General Manager (RGM) immediately within 5 business days of receiving this letter to discuss your absence from work.” That is, the Applicant was invited to contact her manager within 5 days. It was only if she did not comply with this that she would have been taken to abandon her employment. In addition, the content of the letter does not accord in any description with the conversation she had with her manager that day who told her why her employment may be terminated in the future. If it was the letter to confirm termination of employment (which I do not accept it was) it could reasonably be expected to reflect that conversation the Applicant agrees she had in relation to the vaccination matters with her manager that day.
[44] A plain reading of the “Abandonment of Employment” letter indicates that it is not notification of termination of employment of the Applicant.
[45] That the Applicant requested a termination letter be sent to her on 22 November 2021 and that she received a letter in relation to abandonment of employment on that day does not mean the letter received is the termination of employment letter she requested, although it is understandable why she reached this conclusion. In this respect the Applicant confuses two matters that occurred on the one day as necessarily being related. There are times when two things happen coincidentally and I am satisfied, in this case, that this is what happened.
[46] Second, had it been the intention of the Respondent that the “Abandonment of Employment” letter terminated the Applicant’s employment it makes no sense that it would send the “show cause” letter to the Applicant 8 days later and give her a further opportunity to remain in employment (by meeting the requirements of the Direction).
[47] Third, the timing of the “Abandonment of Employment” letter suggests that it was sent to the Applicant before any action was taken by Ms Ledwidge to have a termination of employment letter sent to the Applicant as she requested.
[48] Last, I am not satisfied that the Applicant was advised on 22 November 2021 that her employment was terminated on that day. Having received the “Abandonment of Employment” letter however I am satisfied that a number of matters became confused because of the timing. There is nothing in the Respondent’s conduct, including the email from Ms Ledwidge to Mr Tran, the letter of 30 November 2021 and the Respondent’s initial objection to the application for unfair dismissal to suggest otherwise.
[49] I would also note that, prior to 4 January 2022 when it did terminate the Applicant’s employment, the Respondent maintained in dealings with the Commission that it had not terminated the Applicant’s employment. Once it had formally terminated the Applicant’s employment by letter of 4 January 2022 it no longer pursued this opposition to her unfair dismissal claim. On this I would note that, had the Applicant’s employment ended due to abandonment of employment, I would expect the Respondent to maintain that it had not dismissed the Applicant as abandonment of employment is an action of an employee, not an employer such that the “dismissal” would not have been at the initiative of the employer.
Did the reason given in the termination letter constitute a valid reason for dismissal?
[50] As I have said, I am satisfied that the termination of employment occurred on 4 January 2022 and was for the reasons set out in the letter of that date.
[51] The Applicant agreed during the hearing of her application that if her employment had been terminated by reason that she was not vaccinated she would not consider that unfair.
[52] I am satisfied that the reason for termination of the Applicant’s employment – that she failed to produce evidence of having been vaccinated or a valid medical exemption and therefore could not meet a legal requirement of her job – is the reason she was terminated and constitutes a valid reason for dismissal.
[53] The prohibition on certain non-vaccinated retail workers attending work is set out in the Directions and subsequent amended Directions and Orders. By those Directions the Respondent was prohibited from allowing the Applicant to attend work and the Applicant could not attend the workplace, having failed to satisfy the requirements to enable her to do so. As was clearly articulated by Deputy President Colman in Isabella Stevens v Epworth Foundation 7 the “Commission is an administrative tribunal and will carry out its functions according to law, proceeding on the basis that legislation and delegated legislation is valid until a court says otherwise.”
[54] I am satisfied that the Applicant could not attend work. That she was not vaccinated (and remains unvaccinated) means she could not, therefore, at the time her employment was terminated, fulfil the inherent requirements of her position.
[55] For this reason there was a valid reason for the dismissal of the Applicant.
(b) Was the Applicant advised of that reason
[56] I am satisfied that the Applicant was advised of the reason for the termination of her employment in the show cause letter sent to her on 30 November 2021.
(c) Was the Applicant given an opportunity to respond
[57] I am satisfied the Applicant was given an opportunity to respond prior to the Respondent terminating her employment on 4 January 2022.
(d) Access to a support person
[58] This is not a relevant consideration.
(e) Was the Applicant warned in relation to poor performance
[59] The Applicant’s employment was not terminated for reasons related to her performance. No issue was raised with her in this regard and I understand the Respondent had no complaints about the Applicant’s attitude to her job, commitment to her job or performance of her job.
(f) & (g) The effect of the size of the Respondent’s business and access to human resources expertise in effecting the dismissal
[60] These matters were not raised during the hearing of the application and do not require further consideration.
(h) Other matters
[61] As stated above the Applicant considers that her employment was terminated on 22 November 2021 because she requested a termination letter and then, that same day, received the “Abandonment of Employment” letter which said she had abandoned her employment and that she had “questionable intentions”. The Applicant takes this as a slight on her good character.
[62] On this matter I think the Applicant reads too much into the letter of 22 November 2021 but it is unfortunate that, having realised the letter was sent in error, the Respondent did not communicate this in writing to the Applicant. It may well have saved angst, nervous energy and the time of all involved. In this respect I note that the “Abandonment of Employment” letter was again sent – in error – to the Applicant on 30 December 2021.
[63] During the hearing of the matter, I indicated to the Applicant that, even if I found her dismissal was unfair and regardless of which reason I found she had been dismissed, it is not evident to me that compensation could be awarded as she was unable to work for the Respondent at that time, and remains unable to work for the Respondent such that the determination of a likely period of employment would not equate to any income actually lost.
Conclusion as to harsh, unjust or unreasonable
[64] For the reasons given above I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable. In reaching this conclusion I have taken into account all of the matters set out above including the existence of the valid reason for dismissal and, while I have considered the issue of the “Abandonment of Employment” letter, I do not consider this makes the dismissal otherwise so.
[65] I therefore find the Applicant was not unfairly dismissed from her employment. The application is therefore dismissed. An order 8 to this effect will be issued with this decision.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR740250>
Appearances:
J. Tuhaka on her own behalf.
N. Ganeson for the Respondent.
Hearing details:
2022.
Melbourne by video using Microsoft Teams:
April 7.
1 AE507798
2 Annexure DT-05 to statement of Mr Tran, CB page 292
3 CB page 41
4 Annexure DT-07 to statement of Mr Tran, CB page 307 and additional document produced by the Respondent
5 Annexure DT-08 to statement of Mr Tran, CB page 308
6 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at p. 373