| [2022] FWC 952 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Rebekah Jane Spelman
v
Australian Laboratory Services Pty Ltd T/A ALS
(U2021/11865)
DEPUTY PRESIDENT CLANCY |
MELBOURNE, 26 APRIL 2022 |
Application for an unfair dismissal remedy.
[1] On 20 December 2021, Ms Rebekah Spelman made an application to the Fair Work Commission for an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Ms Spelman’s unfair dismissal application is Australian Laboratory Services Pty Ltd T/A ALS (ALS). The matter proceeded to a Determinative Conference conducted via Microsoft Teams on 6 April 2022. Ms Spelman appeared and gave evidence, while both Ms Kristina Ung (Senior Human Resources Advisor) and Mr Doug Van de Hoef (Corporate Employee Relations Manager & Counsel - Employment Law) gave evidence on behalf of ALS, with Mr Van de Hoef outlining the submissions for ALS.
[2] Ms Spelman’s application was made within the 21-day period after the dismissal took effect, as required by s.394(2) of the Act (s.396(a)) and there is no dispute that she is a person protected from unfair dismissal because she had completed the minimum employment period, the Australian Laboratory Services Pty. Ltd. Enterprise Agreement 2021 1 (the Agreement) applied to her and her annual rate of earnings was less than the high income threshold (s.396(b)). Further, it is not disputed, and I am satisfied that ALS was not a small business employer. As such, the matter does not require consideration of whether the dismissal was consistent with the Small Business Fair Dismissal Code (s.396(c)). Finally, it was not claimed and nor does the material before me suggest the dismissal was a case of genuine redundancy (s.396(d)).
[3] As to the circumstances set out at s.385 of the Act, there is no question or dispute that Ms Spelman was dismissed (s.385(a)). Further, as outlined above, this is not a matter that involves a small business, such that consideration of whether Ms Spelman’s dismissal was consistent with the Small Business Fair Dismissal Code (s.385(c)) is required or one where it is claimed the dismissal was a case of genuine redundancy (s.385(d)).
[4] This leaves s.385(b) and in determining whether the dismissal was harsh, unjust or unreasonable, I must have regard 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.”
[5] ALS provides laboratory and analytical testing services to pharmaceutical and food manufacturers and Ms Spelman commenced her employment with ALS on 8 May 2017. At the time of her dismissal on 6 December 2021, Ms Spelman was employed full time in the role of Sampler/Courier and her primary responsibilities involved driving a company vehicle to various client sites in and around Melbourne for the purpose of collecting samples and delivering them to ALS’ laboratory. Although the collection point would vary from site to site, Ms Spelman was required to enter ALS clients’ properties to collect the samples.
[6] On 16 March 2020, the Victorian Minister for Health issued a declaration pursuant to s 198(1) of the Public Health and Wellbeing Act 2008 (Vic) that Victoria had entered a state of emergency as a consequence of the COVID-19 pandemic. The declaration has been extended numerous times over the ensuing months, and it covered the relevant period during which Ms Spelman’s dismissal took place. Where a state of emergency exists, the Chief Health Officer of Victoria may authorise the exercising of emergency powers, which include the issuing of directions. 2 In early October 2021, the Victorian Government announced that certain identified workers were required to receive their first dose of a COVID-19 vaccine by 15 October 2021. The Acting Chief Health Officer of Victoria issued the COVID-19 Mandatory Vaccination (Workers) Directions. These directions commenced at 11.59pm on 7 October 2021 and were to end at 11.59pm on 21 October 2021. They were replaced by updated versions subsequently issued but in similar terms. I will refer to the various versions of the directions collectively as the Vaccination Directions.
[7] The Vaccination Directions applied to employers of defined categories of workers. ALS formed the view that the Vaccination Directions were applicable to Ms Spelman’s employment because she was a worker that fell within the definitions of both ‘manufacturing worker’ and ‘science and technology worker’. The Vaccination Directions imposed obligations on employers of such workers to collect, record and hold ‘vaccination information’ about them. Further, the Vaccination Directions provided that:
a) An unvaccinated worker was defined as a person who had not received a dose of COVID-19 vaccine and who was not an ‘excepted person’; and
b) Employers were obligated to ensure that unvaccinated workers did not work outside the worker’s ordinary place of residence on or after 15 October 2021.
[8] There was an exception to this requirement, in that an unvaccinated worker who had a booking to receive a first dose of COVID-19 vaccine by 22 October 2021 was still permitted to work outside the worker’s ordinary place of residence on and after 15 October 2021.
[9] On 5 October, Ms Ung sent an email to ALS staff in Victoria, including Ms Spelman, informing them of the Victorian Government’s announcement regarding mandatory vaccination requirements and attaching a memorandum from the ALS Victorian Management Team. The memorandum notified staff of the following:
“Dear ALS team members,
As most of you are aware, the Victorian Government has announced the mandatory vaccination requirements for authorised providers and authorised workers.
On the advice of our public health team, all workers – in Melbourne and regional Victoria – on the Authorised Worker list will require their first COVID-19 vaccine dose by Friday, 15 October in order to continue working onsite. They will need to be fully vaccinated by 26 November 2021.
All ALS employees will need to comply to those time frames or provide a medical exemption.
Employees working from home due to current COVID restrictions must also adhere to the vaccination requirements before coming onsite. Once vaccinated, employees working from home will be allowed on site at any time as required.
Evidence of your vaccination status in the form of the Immunisation History Statement, MyGov Digital Certificate, or a letter from your Medical Practitioner will need to be sighted by a Senior Manager or HR when requested…” 3
[10] In reply to an email enquiry Ms Spelman made on 6 October 2021, Ms Courtney Smith (ALS Client Services Coordinator, Food & Pharmaceutical) sent an email in reply to Ms Spelman on 7 October 2021 advising her that she must have had a first COVID-19 vaccination dose by 15 October 2021 to be permitted to continue working and outlining that should Ms Spelman choose not to comply, ALS would, in the short term, approve an application for annual leave however if she failed to comply beyond the short term, her employment with ALS may be at risk. 4
[11] On 12 October 2021, Ms Spelman sent an email to Ms Smith and Ms Marina Palumbo (ALS Sales and Marketing Manager) advising she had booked a “covid vaccine appointment for Thursday 21 Oct 21 at 4.20pm” and indicating that she would be attempting to obtain further information about the COVID-19 vaccines. Ms Spelman advised that in the event she was unable to “gain enough information to be able to give free and informed consent” she would take leave in the short term. 5
[12] Version 3 of the Vaccination Directions commenced at 11.59pm on 15 October 2021. They defined a ‘‘manufacturing worker’ as a person who works at or in connection with a premises used for the distribution, production or processing of goods, including but not limited to production or processing of:
(i) food (excluding meat, seafood or poultry);
(ii) beverages including brewed and bottled drinks;
(iii) textiles, leather, clothing, footwear and accessories;
(iv) wood products;
(v) pulp and paper products;
(vi) printing including small and large production runs;
(vii) chemicals, including fertilisers, pesticides, pharmaceutical, medicinal, cleaning products, toiletries, cosmetics, photographic and explosives;
(viii) metal and plastics;
(ix) machinery and equipment manufacturing including parts;
(x) furniture;
(xi) household goods;
(xii) whole or partial products; or
(xiii) software, essential marketing or product installation. (my emphasis)
[13] A ‘science and technology worker’ was defined in Version 3 of the Directions as a person who works in connection with scientific and technical research or activities, but only in relation to:
(i) COVID-19 (e.g. MedTech research regarding vaccines);
(ii) hazard monitoring and resilience;
(iii) biosecurity and public health;
(iv) medical or other research, which is ongoing and requires on site attendance; or
(v) critical scientific experiments, labs, and collections.
[14] On 19 October 2021, Mr Peter Ogier (former ALS General Manager, Australia) sent an email to Ms Spelman attaching a letter advising Ms Spelman of the following:
• As an authorised worker in Melbourne who could not work from home, Ms Spelman was to either have had a first COVID-19 vaccine dose by 15 October 2021 or an appointment for a vaccination by 22 October 2021, to be permitted to work;
• If Ms Spelman proceeded with her first dose vaccine on 21 October 2021 and provided ALS with such evidence, she would be permitted to work at least until 26 November 2021;
• If Ms Spelman failed to receive her first dose, her application to take accrued annual leave would be approved to allow her further time to consider her position; and
• Ms Spelman’s application for personal leave was not going to be approved as she had made it clear over several months that her reason for not attending work was not going to be due to a personal illness or injury.
[15] Ms Spelman was urged by Mr Ogier to reconsider her position and advised that should she continue to not comply with the Vaccination Directions, her continued employment with ALS would be at risk. 6 On 20 October 2021, Ms Spelman sent an email to Mr Ogier in reply outlining her position as follows:
“I have never stated that I will not comply with any directions; to the contrary, as you have noted, I have an upcoming appointment to consult for the vaccine. I have been doing my utmost to get the information that will put my mind at ease in the time that I have been given, and I have one further phone consultation with a medical professional tomorrow (Thursday) at lunch time.
I understand that ALS has directions to follow and legal obligations to meet and I have no desire or intention to disrupt that.
It is important to note that I requested personal leave because stress leave falls under the title of personal leave. I am suffering from an immense amount of stress, due to facing the potential of losing my job - which I highly value, or alternatively taking a treatment where potential serious unknown side effects may occur in relation to my particular medical circumstances. The weight of each of these two options is heavy.
I also feel that incorrect assumptions of my intentions may have been made with the comment that I can’t know in advance that I will be too unwell to attend work. It is precisely because I value my job as well as my health that I am experiencing such anxiety, and I sought to use that time to improve my health in consultation with my doctor and counsellor.
I accept that ALS has stated its position in regard to approving personal leave, and I gratefully accept your offer of approval of annual leave in order to properly consider my position as you have suggested.” 7
[16] Ms Spelman then took annual leave from 22 October 2021 to 6 December 2021. Approximately four weeks into this period of leave, Ms Spelman sent an email to Ms Smith on 19 November 2021 to query whether circumstances facing ALS were ‘exceptional’ within the meaning outlined in Clause 7 of the COVID-19 Mandatory Vaccination (Workers) Directions (No 8), 8 which were by then in force. Mr Ogier sent an email in response on 22 November 2021 asserting that the exceptional circumstances exception did not apply to Ms Spelman. Mr Ogier also restated the requirements of the Vaccination Directions and reiterated that a failure to meet the requirements would place Ms Spelman’s future employment at risk.9
[17] On 26 November 2021, Ms Spelman sent an email to Ms Smith and Ms Palumbo requesting an in-person meeting 10 and Mr Ogier sent Ms Spelman an email in reply attaching a letter which outlined the consequences if Ms Spelman elected not to comply with the Vaccination Directions. The letter relevantly stated as follows:
“I refer to the letter to you dated 19 October 2021 in which we suggested that you take your accrued annual leave to give you more time to re-consider your decision not to comply with the Victorian Government’s vaccination directions.
The letter referred to those directions which require that from today, all authorised workers in Victoria must be fully vaccinated to be permitted by law to attend their place of work.
Your period of leave period expires next Friday, 3 December 2021. You have no other paid leave owing; unpaid leave will not be granted.
Unless you provide us with acceptable proof by 5 December 2021 that you are fully vaccinated and are therefore capable of performing your role, your employment will be terminated the next business day, i.e. Monday 6 December 2021.” 11
[18] Ms Spelman appears to have responded by email later on 26 November 2021, repeating a request for a meeting in order “to begin open and fair communication.” Ms Spelman sent a further email to Ms Ung on 1 December 2021, in which she alleged she had been bullied and denied the opportunity to express her concerns regarding the mandatory vaccination requirements. 12 At this point, Mr Van de Hoef sent an email to Ms Spelman in reply in which he asserted the Vaccination Directions applied to her and as they had been issued by the Victorian Government, ALS could neither set aside nor change their terms.13 Further, Mr Van de Hoef confirmed that the matters that had been raised in the letter emailed to her by Mr Ogier on 26 November 2021 stood.
[19] On 6 December 2021 at 2:54pm, Mr David Havard (General Manager, Food and Pharmaceutical) sent an email to Ms Spelman attaching a letter of termination dated 6 December 2021 (Termination Letter). The Termination Letter outlined that Ms Spelman’s employment was terminated with immediate effect. The reason given in the Termination Letter was that because she had not provided proof of full vaccination or an approved medical exemption, Ms Spelman was not permitted to attend her workplace and was incapable of meeting the inherent requirements of her role. It was asserted in the Termination Letter that Ms Spelman had not given ALS any indication her situation would change in the foreseeable future. 14
[20] On the same day, Ms Spelman sent an email to Mr Havard in reply stating:
“I would have given indication that this situation would not be ongoing had the company given me the opportunity. Instead, when I asked for a meeting I was met with refusal and dismissal, and informed that (not verbatim) the company knew what I was going to say, so there was no point in meeting.
I find that outrageous.” 15
[21] I have outlined the criteria set out in s.387 of the Act above. I am under a duty to consider each of these criteria and will now do so below.
Was there a valid reason for dismissal relating to Ms Spelman’s capacity or conduct? (s.387(a))
[22] In considering whether the dismissal of Ms Spelman was harsh, unjust or unreasonable, I am required to take into account whether there was a valid reason for the dismissal related to her capacity or conduct (including its effect on the safety and welfare of other employees). The reason or reasons should be “sound, defensible and well founded” 16 and should not be “capricious, fanciful, spiteful or prejudiced”.17
[23] In its letter dated 6 December 2021, ALS outlined it was terminating Ms Spelman’s employment because she was incapable of meeting the inherent requirements of the role for which she had been employed, having neither provided proof of full vaccination nor a valid medical exemption.
[24] It is not contended that the obligations imposed on ALS by the Vaccination Directions were altered in any material effect in any subsequent version of the Directions given after the COVID-19 Mandatory Vaccination (Workers) Directions. In Version 8 of the Vaccination Directions, which commenced at 11.59pm on 18 November 2021 and were to end at 11.59pm on 15 December 2021, manufacturing workers and science and technology workers were defined in clauses 10(15) and 10(29) respectively as persons:
• who worked at or in connection with a premises used for the distribution, production or processing of food, beverages and pharmaceutical chemicals; and
• who worked in connection with scientific and technical research or activities involving critical scientific experiment, labs and collections.
[25] It is not in dispute, and I am satisfied, the Vaccination Directions covered the employment of Ms Spelman because her employment came within the definitions of either a ‘manufacturing worker’ or ‘science and technology worker’, or both.
[26] The Vaccination Directions in force when the dismissal took effect required ALS to take all reasonable steps to ensure that on or after 26 November 2021, its ‘unvaccinated’ workers did not work outside their ordinary place of residence. Further, the Vaccination Directions imposed an obligation on ALS to collect, record and hold vaccination information about workers who were or might be scheduled to work outside the worker’s ordinary place of residence. If ALS did not hold vaccination information about a worker, it was obliged to treat the worker as if the worker was ‘unvaccinated’. A refusal or failure by ALS to comply with a direction given to it or a requirement made of it under the Vaccination Directions was an offence for which a penalty of 600 penalty units applied. 18
[27] In the correspondence passing between Ms Spelman and ALS prior to her dismissal, Ms Spelman suggested that ALS may not have been required to comply with these obligations on the basis that ‘exceptional circumstances’ provided for in the Vaccination Directions applied. Ms Spelman advocated that she might be required to “continue essential operations due to an emergency situation or critical unforeseen circumstance”, 19 proffering that she could help continue essential operations if there were unforeseen circumstances, such as an excessively heavy workload, increased traffic, roadworks or understaffing. I am not persuaded by this submission. While Ms Spelman advanced a proposition that she could be on call should these various vicissitudes have arisen, I do not consider they would have come within definitions of either ‘emergency situation’ or ‘critical unforeseen circumstance’ in the Vaccination Directions.20
[28] Additional submissions Ms Spelman made as to why her dismissal was unfair were:
• The Agreement does not state that her employment was conditional upon her undergoing any medical procedures or that not undergoing a medical procedure is a valid reason for termination.
• The Government directives did not state that employers are given legal grounds to terminate employees based on vaccination status.
• The Government directions only allowed employers to collect and store employee’s medical information in relation to COVID-19 vaccinations, with no other allowances outside the law given.
[29] As to these, Ms Spelman’s assertions regarding the Agreement proceeds on the incorrect premise that parties to an enterprise agreement can agree not to be bound by requirements validly imposed by law and any accompanying obligations that may flow. The Vaccination Directions have at no stage been declared invalid by a Court and were in effect at all material times. It should also be stated that there was no mandatory requirement for Ms Spelman to receive a COVID-19 vaccination and that one’s vaccination status is not a protected attribute under discrimination laws.
[30] Further, while Ms Spelman has previously asserted she did not explicitly refuse to be vaccinated and was instead seeking further information so as to be able to make an informed decision regarding vaccination, these assertions do not advance things for her. This is because Ms Spelman agrees she was ‘unvaccinated’ on 6 December 2021 within the meaning of that term in the Vaccination Directions. Further, her advice at the Determinative Conference was that her vaccination status remained unchanged. It is also not asserted by Ms Spelman, and nor has she ever asserted, that she was an ‘excepted person’ under the Vaccination Directions and therefore eligible to not be regarded as ‘unvaccinated’. As ALS did not “hold” vaccination information about Ms Spelman on 6 December 2021, it was required under the Vaccination Directions to treat her as if she was unvaccinated. The consequence of this was that ALS was prohibited under the Directions from allowing Ms Spelman to work outside of her ordinary place of residence. Had it done so, it would have been guilty of an offence and exposed to a substantial financial penalty.
[31] While Ms Spelman was within her rights to decline to become vaccinated and provide ALS with the information it requested from her, her choices had the inevitable consequence of rendering herself unable to perform her job. As Ms Spelman chose to not become vaccinated and did not hold the certification required to be regarded as an “excepted person” under the Directions, she was unable to perform the job she was employed by ALS to do. Having regard to these circumstances, I am satisfied that ALS had a valid reason for dismissing Ms Spelman on 6 December 2021 that was related to her capacity.
Was Ms Spelman notified of “that reason” (s.387(b))?
[32] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made, 21 in explicit terms,22 and in plain and clear terms.23 In Crozier v Palazzo Corporation Pty Ltd24 a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following:
“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
[33] It was flagged with Ms Spelman as early as 7 October 2021 25 that as a worker who could not work from home, her employment may be at risk if she did not comply with requirements under the Vaccination Directions. This message was reiterated on 19 October 202126 and 22 November 2021.27 Ms Spelman was then notified of the valid reason for her dismissal through the letter from Mr Ogier dated 26 November 2021. 28 The valid reason was confirmed in the termination letter dated 6 December 2021.
Was Ms Spelman given an opportunity to respond? (s.387(c))
[34] Ms Spelman firstly submits she was not given any opportunity to have her concerns heard or her questions answered. While she contends that if such an opportunity was provided, she could have made a concrete decision on her position regarding the COVID-19 vaccination, 29 I am not persuaded this would have been the case. As outlined above, Ms Spelman’s vaccination status has not changed since her dismissal and at the Determinative Conference, she expressed her opposition to mandated vaccinations that have not undergone fulsome testing and requirements that remove freedom of choice.
[35] ALS submits that Ms Spelman had expressed her concerns regarding the vaccination mandate several times by email and doing so at a meeting would not only have breached the Vaccination Directions but would also have served no purpose. 30 Ms Spelman disputes this proposition and contends that:
• in refusing to arrange a meeting, ALS breached Clause 2.12.2 of the Agreement, which requires it to give prompt consideration to matters raised by employees in the context of the introduction of changes to the workplace;
• requesting a meeting would not have breached the Vaccination Directions as the meeting could have been held outside of her place of work, such as via an online platform; and
• a meeting between herself and ALS would have served a purpose in that she could have offered an alternative proposal to the termination of her employment; specifically, that ALS assign her temporary duties in operating the daily run sheet so as to have enabled her to work from home. 31
[36] As to the first of these matters, I do not accept that the duties to notify and discuss change outlined in Clause 12.2 of the Agreement arose in this case. The Vaccination Directions did not arise from a decision of ALS to “introduce major changes” and as such, I am not persuaded the question of whether there has been a breach of Clause 12.2 of the Agreement arises.
[37] As to the second matter, ALS submits that as Ms Spelman had not provided any proof of vaccination, she was not permitted to enter the workplace. 32 Ms Spelman argues that ALS did not notify her of the reason for their refusal to arrange an in-person meeting and had it done so, she would have requested an online meeting.33
[38] As to the third matter, I observe that Ms Spelman had asserted in her email to Ms Ung on 1 December 2021 that she had been denied an opportunity to add anything she may have wanted to offer in response to the letter from Mr Ogier dated 26 November 2021 and further, that alternatives to termination had not been offered or considered. The position of ALS in response was expressed in the letter from Mr Van de Hoef dated 1 December 2021, where he outlined that Ms Spelman expressing concerns about the Vaccinations Directions would have served no purpose because they had come from the State Government and not ALS. There was no direct response to Ms Spelman’s charge that alternatives to termination had not been offered or considered.
[39] In this case, the letter to Ms Spelman from Mr Ogier dated 26 November 2021 included notification of the valid reason for her dismissal and while the letter contained no specific invitation to Ms Spelman to provide alternatives to termination in the event she remained ‘unvaccinated’, she was nonetheless provided with an opportunity to respond until 5 December 2021. This had followed:
• the first indication from ALS seven weeks earlier that Ms Spelman’s employment may be at risk if she did not comply with requirements under the Vaccination Directions;
• the ensuing exchange of multiple pieces of correspondence; and
• the approval of approximately seven weeks’ annual leave so that Ms Spelman could consider her position and options.
[40] Ms Spelman proceeded to outline a response in her email dated 1 December 2021, which included her grievance that alternatives to termination had not been offered or considered. However, she did not proceed to outline any in the email. Ms Spelman instead signed off by stating “I expressly reserve my rights.” She also stated at the Determinative Conference that by this stage she had become reluctant to engage in email correspondence and had grown frustrated with the responses from ALS. Noting that Ms Spelman’s email response to the letter of termination commenced with the words “I would have given indication that this situation would not be ongoing had the company given me the opportunity”, I asked Ms Spelman what she meant by these words. Her answer was that she was still seeking information at the time of her dismissal.
[41] I acknowledge Ms Spelman may have felt pressured by the circumstances given her uncertainty about COVID-19 vaccines, but I have noted above that her position is ultimately one of opposition to mandatory vaccination regimes. I also observe that ALS encouraged Ms Spelman to take more time to consider her position, even after the Vaccination Directions had commenced, and that it had facilitated this through its approval of the annual leave. I am satisfied ALS communicated openly with Ms Spelman and repeatedly advised her that her employment was at risk should she choose to remain ‘unvaccinated’ before eventually raising the outcome of termination in the event vaccination information was not provided by 5 December 2021.
[42] Section 387(c) of the Act requires the Commission take into account whether the person alleging unfair dismissal was given an opportunity to respond to any reason relating to their capacity. While I accept there existed the options for the parties in this case to conduct a meeting via an online platform or a telephone conference call, s.387(c) does not mandate the form or forms the ‘opportunity’ must take. Weighing up all the circumstances of this case, I am satisfied that Ms Spelman was provided with an opportunity to respond to the reason relied on by ALS for her dismissal. This weighs in favour of a finding that the dismissal was not unfair.
Was there an unreasonable refusal by the employer to allow a support person – s.387(d)
[43] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
[44] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.” 34
[45] This factor is not relevant in this case. There was no evidence before me of an unreasonable refusal by ALS to allow Ms Spelman a support person. As I have noted, there were no discussions held relating to the dismissal.
Warnings regarding unsatisfactory performance – s.387(e)
[46] There is no suggestion, and I am satisfied that the evidence establishes ALS had not formed the view that Ms Spelman was performing in an unsatisfactory manner. Therefore, this factor is not a relevant consideration in this case.
Impact of the size of the employer on procedures followed - s.387(f) and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
[47] I do not consider the size of ALS is a relevant factor in this case (s.387(f)) and I have noted ALS did not lack dedicated human resource management specialists and expertise (s.387(g)). Neither s.387(f) nor s.387(g) are determinative either way in this case.
Other matters – s.387(h)
[48] Ms Spelman submits her dismissal was unfair because ALS breached the following provisions of the Agreement:
• Clause 1.7 Joint Consultation Committee (JCC) – Ms Spelman says she was neither informed of, nor directed to, a JCC member to assist her, whereas ALS submitted it was obliged to comply with the law and the Vaccination Directions were not a matter for the parties to discuss. Ultimately, I am not persuaded the question of whether there has been a breach of Clause 1.7 of the Agreement arises because the JCC is stated to be a forum for discussion on matters affecting efficiency and productivity;
• Clause 2.6.3 – Grievance or dispute resolution procedure – Ms Spelman submits that ALS did not attempt to resolve her complaints at the workplace level, but this submission fails to engage with the fact that the Grievance/Dispute resolution procedure relates only to disputes about matters arising under the Agreement and the National Employment Standards;
• Clause 2.12.2 – Introduction of change to the workplace – Ms Spelman says ALS did not consider nor address her concerns and did not discuss the “expected effects” of the vaccination requirements. As outlined above, I am not persuaded the question of whether there has been a breach of Clause 12.2 of the Agreement arises because the Vaccination Directions did not arise from a decision of ALS to “introduce major changes”; and
• Clause 6.4 – Workplace Health and Safety – whereas Ms Spelman is critical of the approach of ALS to dialogue and its effect on her wellbeing, ALS asserts that it was acting in accordance with this clause. Ultimately, I am not persuaded the question of whether there has been a breach of Clause 6.4 of the Agreement arises in circumstances where ALS was simply seeking to comply with the Vaccination Directions.
[49] In more general terms, Ms Spelman contrasted the absence of discussion regarding her dismissal with obligations in the Agreement to discuss redundancy circumstances and hold formal discussions in response to performance and conduct issues. As to these, I have outlined above my position regarding the requirement for discussion in my consideration of s.387(c).
[50] Ms Spelman also submits she could have been temporarily assigned alternate duties as an alternative to termination. She submits that by virtue of her experience as a Sampler/Courier, she was in a position to identify efficiencies for the daily run-sheet and this was work she could have performed from home. Ms Spelman asserted that if such a position had identified improvements, it could have been a position for the long term. In response, ALS submitted it is a laboratory-based business, with limited capacity for work from home. ALS submitted the vast majority of its workers perform work in or in connection with laboratories and stated it had been negatively impacted by the COVID-19 pandemic, such that it was not in a position to create new roles or re-allocate duties which were being performed by others, to Ms Spelman.
[51] I am not persuaded the alternate position Ms Spelman says she would have raised in the discussions she desired represented a viable proposition. Firstly, I have not been persuaded there was not an obvious business need for such a role. Secondly, I accept the evidence from ALS that the creation of the role proposed by Ms Spelman would have required removing duties performed by other ALS employees and re-allocating them to her. Thirdly, the evidence established the role would not have been a temporary measure. As outlined above, the ‘vaccination status’ of Ms Spelman has not changed since her dismissal and she has made it clear that it will not be changing. I therefore do not consider the new role Ms Spelman suggested was reasonable in all the circumstances of this case and nor do I consider the failure of ALS to have arranged a discussion where it may have been discussed sufficient to render Ms Spelman’s dismissal unfair.
[52] Ms Spelman was not denied her entitlement to notice of termination, receiving three weeks’ pay in lieu of notice. I have also noted there was no suggestion that Ms Spelman was a poor performer in her role and that ALS expressed the view that she was a good employee. However, the Vaccination Directions have not been declared invalid and ALS was required to comply with them. For her part, Ms Spelman expressed a range of views about the COVID-19 pandemic and vaccination mandates. It is not for the Commission to engage in commentary about Ms Spelman’s views, other than to observe they motivated her choice to decline vaccination. However, the consequence of Ms Spelman exercising this choice was that ALS could no longer lawfully permit her to work for it outside her ordinary place of residence. So, while Ms Spelman was within her rights to make the choice she did, doing so rendered her unable to perform the job she was employed to do.
[53] Having considered and weighed the matters raised in relation to s.387(h) of the Act, I do not find that they are sufficient to render Ms Spelman’s dismissal harsh, unjust or unreasonable.
[54] I have made findings in relation to each matter specified in s.387 of the Act as relevant and given each due weight in determining whether the termination was harsh, unjust or unreasonable. 35 I am satisfied the dismissal of Ms Spelman was not harsh, unjust or unreasonable. Accordingly, I find that Ms Spelman’s dismissal was not unfair.
[55] As I have found that Ms Spelman’s dismissal was not unfair, her application for unfair dismissal remedy is dismissed. Given this conclusion, I will not issue an Order.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR740645>
Appearances:
Ms R Spelman on her own behalf.
Mr D Van de Hoef for Australian Laboratory Services Pty Ltd T/A ALS.
Hearing details:
2022.
Melbourne (via Microsoft Teams):
April 6.
1 [2021] FWCA 6655 (AE513848 PR735718)
2 Public Health and Wellbeing Act 2008 (Vic), s.200(1)(d).
3 DCB at p.200.
4 DCB at p.129.
5 DCB at p.131.
6 DCB at p.132.
7 DCB at p.133.
8 DCB at p.134.
9 DCB at p.135.
10 DCB at p.212.
11 DCB at p.136.
12 DCB at p.138.
13 DCB at p.139.
14 DCB at p.140.
15 DCB at p.141.
16 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
17 Ibid.
18 DCB at p.153.
19 Clause 7 of the COVID-19 Mandatory Vaccination (Workers) Directions (No 8) – DCB at p. 158-159.
20 See Definitions at Clause 11(5) and Clause 11(8) of the COVID-19 Mandatory Vaccination (Workers) Directions(No 8) – DCB at 175 and 176.
21 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
22 Previsic v Australian Quarantine Inspection Services (AIRC, Holmes C, 6 October 1998), Dec 907/98 M Print Q3730.
23 Ibid.
24 (2000) 98 IR 137, 151.
25 DCB at p.129.
26 DCB at p.132.
27 DCB at p.135.
28 DCB at p.136.
29 DCB at p.21.
30 DCB at p.194.
31 DCB at p.182.
32 DCB at p.194, paragraph (24).
33 DCB at p.182.
34 Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542].
35 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].