| [2022] FWC 96 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Thomas Tew
v
The Bethanie Group Inc. T/A Bethanie Aged Care
(U2021/6794)
COMMISSIONER WILLIAMS |
PERTH, 20 JANUARY 2022 |
Application for an unfair dismissal remedy
[1] This decision concerns an application made by Mr Thomas Tew (Mr Tew or the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The respondent is The Bethany Group Inc T/A Bethanie Aged Care (Bethanie Aged Care or the Respondent).
[2] The hearing was held on 29 October 2021. Mr Tew and Mr Kemp gave evidence on behalf of the Applicant and Mr Myhill, Mr Lorimer and Ms Goodall gave evidence on behalf of the Respondent.
[3] Relevantly, the Applicant’s evidence is that he began working with Bethanie Aged Care in 2018 as an electrician.
[4] Mr Tew’s evidence in chief is that he undertook his work at various sites including aged care facilities, residential independent living villages, social centres and Bethanie housing locations.
[5] Mr Tew had been assigned the northern suburbs of Perth as a work region and usually worked in that region. He says that he would travel to other regions in various sites in those regions to work on jobs.
[6] Mr Tew has never received any negative comments about his work and has never received any written warnings.
[7] Mr Tew says that in May 2020 he was told by Bethanie Aged Care supervisors and managers that he was required to get a flu vaccine to continue with his work.
[8] Mr Tew was not given any alternative options by Bethanie Aged Care and believed if he did not receive the vaccination, he would lose his job. He had concerns about being vaccinated but didn’t have a choice. Consequently, Mr Tew says that he complied with the orders out of fear and coercion.
[9] Mr Tew says that at the time, he did not believe this would be an ongoing annual procedure to retain employment.
[10] Mr Tew’s evidence is that in May 2021 he was again instructed to receive another flu vaccination. He says that he was not given any alternative options and believed if you did not receive the vaccination, he would lose his job.
[11] Mr Tew’s evidence was that he didn’t want to take the vaccine but felt forced into complying.
[12] He says he attended the doctor’s office at Bethany Aged Care’s Joondalup location to get the flu vaccine. When he asked for information about the vaccine, he was told that they had none to give him. They offered to give him the flu vaccine, but Mr Tew had a panic attack and walked out.
[13] Mr Tew says that he did some research and decided to use a template of a Notice of Conditional Acceptance (the First Notice) to send to his employer to ask questions.
[14] Mr Tew’s evidence in chief is that he did not refuse to have the vaccine but wanted Bethanie Aged Care to answer his questions and eccept liability if he suffered any reactions.
[15] The First Notice dated 27 May 2021 in part reads as follows,
“Pursuant to the above statement, I will decline the offer for flu vaccination product or offer to wear a mask unless the following conditions are met in entirety, please provide evidence of the following by duly witnessed affidavit of facts;
1. Your right under the Fair Work Act 2009 to force, coerce or use undue influence to demand I wear a mask and or be vaccinated to attend my workplace and carry out my duties, and
2. Your right Und er the Commonwealth of Australia Constitution, section 51 (xxiii)(a) to force civil conscription on me, and
3. Your right under the Public Health Act WA to force, coerce, under undue influence to demand I wear a mask or be vaccinated to attend my workplace and carry out my duties, and
4. Your right under the Fair Work Act 2009 section 336(a) to protect my workplace rights which ensure all my rights, and
5. Your right under the Fair Work Act 2009 section 336(b) to provide protection from workplace discrimination if I do not wear a mask and do not receive a vaccination, and
6. Your right under the Fair Work Act 2009 section 343 not to use coercion to force me to wear a mask or to be vaccinated, and
7. Your right under the Fair Work Act 2009 section 344 not to apply undue influence to force me to wear a mask or to be vaccinated, and
8. Your right under the Fair Work Act 2009 section 351 not to discriminate against me for my private decision not to wear a mask and not to receive a vaccination, and
9. Your right under the Fair Work Act 2009 section 382 to dismiss me from my employment for my private decision not to wear a mask and not to receive a vaccination, and
10. A copy of the original employment contract signed by me and you which clearly states that you have the right to force and or coerce me to wear a medical device (mask) and or receive a medic I procedure (vaccine) and also clearly shows that I was given full disclosure and full understanding of any such health requirement for my employment, and if no such contract is in existence provide evidence where I have agreed to be forced to partake in any medical procedure (not including general health checks) since the beginning of my employment up until February 2020, and
11. Your rights under the Universal Declaration of Human Rights (UDHR) to override my rights in this declaration, in particular reference to Articles 2, 3, 4, 5, 7, 8, 18 and 23, and
12. That the WHO (World Health Organisation) has provided you with safety reports that the wearing of masks is safe for me to use in my workplace, and
13. The WHO has provided you with safety reports that vaccination has been proven 100% safe and effective, and
14. The wearing of mask causes no harm and carries no risk of bacterial infection by breathing in one's own expired breath, and
15. The vaccine safety report proving that it has been tested long term (more than 5 years), it contains no harmful ingredients, human material, heavy metals or live virus ingredients, and
16. You agree you will accept full responsibility for any injury caused to me by the wearing of a mask or vaccination, such injury can be confirmed by any member of my family, friends and neighbours if a doctor is not willing to make a claim of injury, and
17. You agree you will pay compensation of ten thousand and dollars ($10,000) for any adverse event which can in anyway be reasonably assumed to be a result of wearing a mask or from any vaccination enforced by you, and
18. You agree you will pay compensation of twenty five million dollars ($25,000,000) for an adverse event from wearing a mask or from any vaccination enforced by you which results in any Health Impact Events* lasting longer than 24 hours, and
19. You agree you will pay compensation of fifty million dollars ($50,000,000) for any adverse event or Health Impact Events resulting in death, payable to my immediate family members.” 1
[16] Mr Tew’s evidence is that on 31 May 2021 he attended a meeting with Mr Myhill, who is the Manager of Bethanie Aged Care Maintenance, and Ms Goodall, an Employee Relations Specialist of Bethanie Aged Care.
[17] During this meeting Mr Tew provided a copy of a document entitled ‘Employer Warrantee to Amend Employment Contract ”. 2
[18] This document in part reads as follows:
“Declaration by company CEO, Directors, Managers and Supervisors named above I/we declare that I/we have read and understand the following:
• Fairwork.gov.au site and Fair Work advises all employers to get legal advice before ordering employees to be vaccinated, and
• I/ we have been given a Public Health or der according to the Public Health Act or Emergency Management Act of our state, given by a medical professional, which is in writing and the name and address of each employee on it, as per the Acts, and
• I/we agree we are not acting in accordance with the laws of the Commonwealth or the State when we are demanding an employee be vaccinated as terms of employment, and
• I/ we agree that we have provided the employee with documented evidence that the vaccine is 100% safe and 100% effective and will cause no harm, and
• I/we agree that we have sought our own legal advice and medical advice and have provided the employee with evidence to support our claims, and
• I/we agree that we are breaching employee rights to privacy, and
• I/we understand that we have read and understand the Nuremberg Codes and in particular "Under the Nuremberg Code, responsibility for violations of informed consent rests upon individual doctors, government officials - and their aiders and abettors - each of who can be prosecuted for crimes against humanity." Justice Benjamin Cardozo
Therefore I/we will continue with these demands, extortion, and will personally accept full legal liability for any injury whatsoever that results directly or indirectly from a vaccination forced by me or us as terms of continuing employment.
By signing this form, we accept full liability personally and on behalf of the company and agree that none of the harm resulting from my/ our decisions will be dealt with by Workcover.”
[19] Mr Tew says that at the meeting on 31 May 2021, Ms Goodall advised that she would not be answering his questions and she refused to sign his Employer Warrantee form.
[20] On 3 June 2020 Mr Tew says that Mr Myhill told him not to return to the workplace unless he could prove he was vaccinated. That day Mr Tew says that he did attempt to work at Bethanie Aged Care but was denied access by Mr Myhill.
[21] Mr Tew’s evidence is that later that day he had a discussion with Mr Myhill in the car park, which he recorded. 3
[22] Mr Myhill did not consent to their conversation being recorded nor was he aware that Mr Tew was doing so. 4
[23] Mr Tew’s evidence says that the transcription of his undisclosed recording of their conversation shows, amongst other things, that Mr Myhill said he had no problem with Mr Tew’s work, and he had been directed to tell him to go home and not attend work but he did not want to stop Mr Tew from working if he conforms with the State Government direction.
[24] Mr Tew says that Mr Myhill said that Mr Tew would not be able to enter aged care facilities but that if he had had the jab none of this would have happened.
[25] Mr Tew says that he asked Mr Myhill if he could find him alternative work and Mr Tew says Mr Myhill replied that he would struggle to find enough.
[26] Mr Tew’s evidence is that he has sent three notices to Bethanie Aged Care asking them to answer his questions and Bethanie Aged Care have refused to answer his questions, refused to accept liability for any damage that may be caused by the vaccination, and threatened to terminate his employment.
[27] Mr Tew says that on 21 June 2020, he was asked to attend a meeting where Bethanie Aged Care stated they intended to discuss termination of his employment if he did not comply with their directions. That meeting occurred on 22 June 2021.
[28] Relevantly, Mr Tew’s evidence was that at this meeting he said he wanted the company to answer the questions in his notices. He says Ms Goodall stated that she believed she had answered all his questions and Bethanie Aged Care had a right to demand employees be vaccinated. She said their direction to him was lawful and reasonable.
[29] Mr Tew said it was unreasonable to expect him to be vaccinated every year he was employed when there was no mention of vaccination in his contract.
[30] Mr Tew told the Respondent that there was enough work for him solely in independent living and it is the Respondent’s responsibility to find him alternative work.
[31] Mr Tew’s evidence was that he did not consent to abide by the vaccination policy.
[32] Ms Goodall said it was not an obligation for Bethanie Aged Care to create work for Mr Tew.
[33] Mr Tew says that Mr Lorimer said that if he did not get vaccinated Bethanie Aged Care would terminate his employment.
[34] Mr Tew said that he replied that Bethanie Aged Care would need the consent of both parties to terminate his employment contract and again said that he did not consent.
[35] He says Ms Goodall said that Mr Tew cannot fulfil his role outlined in his contract.
[36] Mr Tew’s evidence is that his employment was terminated on 22 June 2021 at the meeting. He received a signed termination notice.
[37] Under cross-examination Mr Tew agreed he was aware of the West Australian Government’s public health directions that require persons to have flu vaccines before they are allowed to enter aged care facilities.
[38] Mr Tew agreed that he was made aware of these directions by Bethanie Aged Care.
[39] Mr Tew also agreed that he had been told that the deadline for having the flu vaccination was 31 May 2021.
[40] Mr Tew agrees that after he raised concerns and sent the notice dated 27 May 2021 to Bethanie Aged Care, on 28 May 2021 he was provided with an exemption form.
[41] Mr Kemp was called to give evidence by the Applicant.
[42] Mr Kemp was a maintenance electrician also employed by Bethanie Aged Care, working with Mr Tew. Mr Kemp worked at multiple Bethanie Aged Care sites as did Mr Tew.
[43] Mr Kemp usually worked south of the river and Mr Tew worked north of the river. Jobs are generally, but not always, geographically allocated.
[44] Mr Kemp’s evidence was that when they are on call after hours, which is rotated between the maintenance electricians, they undertake urgent work as needs be at whatever location it is.
[45] The evidence of a Bethanie’s witnesses is that on 23 February 2021, the Chief Health Officer for Western Australia made the Visitors to Residential Aged Care Facilities Directions (No 7) (the Direction) pursuant to sections 157(1)(k) and 190(1)(p) of the Public Health Act 2016 (WA). 5
[46] The Direction relevantly required that a person must not enter, or remain on, the premises of a residential aged care facility unless they had an up to date vaccination against influenza. Exceptions to this requirement were limited to circumstances where:
(a) the employee’s presence at the premises was required for the purposes of emergency management, law enforcement or otherwise responding to an emergency;
(b) the vaccination was not reasonably available to the employee; or
(c) the employee had a documented medical contraindication to the vaccine.
[47] The Direction also requires an operator of a residential aged care facility to take all reasonable steps to ensure that a person does not enter or remain on the premises in contravention of this requirement.
[48] Consequently, in March 2021 Bethanie Aged Care issued a communication to all employees confirming that the vaccination was mandatory and that employees would not be able to enter any of Bethanie Aged Care’s facilities after 31 May 2021, unless they provided evidence of their vaccination.
[49] This stated that failure to meet the 31 May 2021 deadline may impact an employee’s ability to work at site.
[50] Between 31 March 2021 and 25 May 2021, Bethanie Aged Care sent multiple directions to employees regarding mandatory flu vaccinations. 6
[51] The communications made clear that failure to have the influenza vaccination by 31 May 2021 may impact ongoing employment with Bethanie Aged Care.
[52] On 28 May 2021, the Applicant was given a copy of Bethanie Aged Care’s vaccination exemption form, so that the Applicant’s medical practitioner could fill this out if the Applicant had a medical exemption.
[53] The Applicant did not return this exemption form to Bethanie Aged Care.
[54] At the 31 May 2021 meeting with the Applicant, Ms Goodall explained that Bethanie Aged Care’s position was that the employer’s direction to get the flu vaccine was lawful and reasonable according to the Government’s public health directions, and that without vaccination Mr Tew would not be able to complete his duties.
[55] The Applicant was also told that Bethanie Aged Care would not agree to the conditions he set out in the First Notice. 7
[56] Following this meeting Ms Goodall and Mr Myhill reviewed whether it is possible to retain Mr Tew in employment if he was not vaccinated.
[57] Mr Myhill’s evidence was that he had no vacant roles Mr Tew could be redeployed into. There was no administrative role that Mr Tew could have filled. Mr Myhill would have to either create a role or terminate somebody else, which did not seem reasonable.
[58] Mr Myhill considered whether Mr Tew could perform his role at facilities other than residential aged care facilities however he estimated 75% of the electrical work was performed at residential aged care facilities.
[59] A more detailed analysis of this was subsequently done by Mr Myhill, which shows that 66% of the hours worked by all the electricians were at residential aged care facilities.
[60] For the period 1 January 2021 to 31 May 2021, 77% of Mr Tew’s hours were at residential aged care facilities.
[61] Mr Myhills evidence was that it was not viable for the Applicant to work only at facilities, which were not residential aged care facilities. There simply would not be enough work there to fulfil his full-time contract. It would also not be practical due to the locations of Bethanie Aged Care’s facilities and would involve driving long distances between different site locations which would be inefficient, costly and difficult to manage.
[62] Mr Tew would not be able to perform on-call work, which is a requirement of his role, because he would not be able to attend an emergency at a residential aged care facility. 8
[63] The evidence is that on 2 June 2021, Mr Tew issued Bethanie Aged Care a second notice which demanded his employer meet his conditions for him to be vaccinated and added a number of other conditions.
[64] On 4 June 2021, Bethanie Aged Care responded in writing in detail to the Applicant’s second notice. 9
[65] Mr Tew responded with a document entitled Final Notice dated 7 June 2021. 10
[66] On 11 June 2021 Ms Goodall replied again highlighting that the application of the State Government directions concerning visitors to residential aged care facilities. She repeated the previous explanation being that there are no alternative duties that are suitable in the circumstance and confirmed that Bethanie Aged Care does not agree to the terms of Mr Tew’s various notices or proposed financial remedies. Further that Bethany Aged Care will proceed with meeting with Mr Tew to discuss the proposal to terminate his employment because he has chosen not to receive the influenza vaccination and is non-compliant with the Government’s directions, and so unable to perform the inherent requirements of his role. 11
[67] A meeting was proposed for 14 June 2021 and the Applicant was invited to bring a support person. However, the Applicant was on personal leave for a period and ultimately, at the Applicant’s request, a meeting was held on 22 June 2021.
[68] At the meeting on 22 June 2021, the Applicant attended without a support person. Ms Goodall was present, as was Mr Lorimer and an administrative assistant taking notes.
[69] After approximately 30 minutes of discussion regarding Mr Tew’s concerns and previous demands, Ms Goodall’s evidence was that it was apparent that he was not presenting any new information. 12
[70] Mr Lorimer told Mr Tew that Bethanie Aged Care was considering terminating his employment and asked if he had anything further to add. Mr Tew replied that he did not consent to his contract being terminated.
[71] Ms Goodall then explained that Bethanie Aged Care was terminating him in accordance with the terms of his employment contract and Mr Lorimer advised Mr Tew that his employment was terminated.
[72] Mr Tew was then provided with a termination letter and the meeting concluded.
[73] Ms Goodall’s evidence is that Mr Tew’s employment was terminated due to his inability to perform the inherent requirements of his role, and because he refused to comply with Bethanie Aged Care’s lawful and reasonable direction to have the influenza vaccination.
[74] Ms Goodall’s evidence was that Bethanie Aged Care direction to Mr Tew was lawful because it aligned with the State Government’s directions for visitors to aged care facilities. And separately was reasonable because Bethanie Aged Care staff and Mr Tew would normally interact with one or more residents in the aged care facilities.
[75] Ms Goodall’s evidence was that there was no reasonable or sustainable alternative solution that would allow Mr Tew’s employment to continue. 13
[76] Mr Lorimer’s evidence confirmed the events of the 22 June 2021 meeting. His evidence was that Mr Tew was told he was required to get the influenza vaccine because it is needed to attend residential aged care facilities. Mr Tew was told the outcome of the meeting would be to terminate his employment if he did not provide any new information.
[77] Mr Tew did not provide them with any new information and repeatedly said that Bethanie Aged Care did not have the right to terminate his employment because there was nothing in his contract that would allow termination to occur in the circumstances. Eventually Mr Tew categorically advised that he refused to get the vaccine.
[78] Mr Lorimer says that he then informed Mr Tew that on the basis of this refusal to get the influenza vaccination Bethanie Aged Care would be terminating his employment.
[79] Mr Lorimer says that they then provided Mr Tew with a letter outlining his notice of termination. 14
[80] Mr Lorimer’s evidence was that Mr Tew was unable to perform the role he was employed to do without getting the influenza vaccination. Without the vaccination Mr Tew could not attend any of Bethanie Aged Care’s residential aged care facilities, which was a major part of his role.
[81] Mr Tew was paid in lieu of notice on termination.
[82] The Commission finds that it was an inherent requirement of Mr Tew’s employment that he enter the premises of residential aged care facilities.
[83] The Commission finds that Mr Tew and Bethanie Aged Care, as an operator of residential aged care facilities, were both subject to the Visitors to Residential Aged Care Facilities Directions (No 7) from 23 February 2021 and the predecessor direction No 4.
[84] None of the exceptions prescribed in section 8 of the Direction applied to Mr Tew.
[85] Consequently, Mr Tew could not lawfully enter or remain on the premises of a residential aged care facility if he had not had an up to date vaccination against influenza.
[86] Mr Tew, as at 31 May 2021, had not had an up to date vaccination against influenza, nor had he at any time up to the date he was dismissed from his employment.
[87] Because Mr Tew had not had an up to date vaccination against influenza, Bethanie Aged Care was obliged, by the Direction, to take all reasonable steps to ensure he did not enter the premises of a residential aged care facility.
[88] A failure by Mr Tew or Bethanie Aged Care to comply with the Direction, without reasonable excuse, was punishable by a fine of up to $20,000 for an individual or $100,000 for a body corporate.
[89] Mr Tew submits that his contract and standard conditions of employment were breached in multiple ways by Bethanie Aged Care.
[90] The Notice of Conditional Acceptance is not a notice of refusal to be vaccinated.
[91] Mr Tew made it plain at the meeting on 31 May 2021 that he did not consent to changes to the contract. Bethanie Aged Care refused to sign the Employer Warranty to Amend Employment Contract.
[92] Mr Tew says that he repeatedly said he would get the vaccination if Bethanie Aged Care could confirm its position was lawful and answered all of the questions in the Notice of Conditional Acceptance.
[93] Failure by Bethanie Aged Care to answer all his questions means what Bethanie Aged Care is requesting of him is illegal.
[94] The coercion and undue influence by Bethanie Aged Care is unlawful.
[95] Bethanie Aged Care failed in their duty to relocate Mr Tew to other available locations or to provide alternative work.
[96] Bethanie Aged Care has failed to understand the Commonwealth of Australia Constitution Act.
[97] Bethanie Aged Care have failed to prove that they have given the Applicant a lawful direction and have not proved to have a compelling reason to justify mandatory vaccination is a requirement to carry out Mr Tew’s duties in the workplace.
[98] Bethanie Aged Care dismissed the Applicant because he could no longer perform the inherent requirements of his role and failed to comply with Bethanie Aged Care’s lawful and reasonable direction.
[99] Bethanie Aged Care submits that having regard to the considerations set out in s 387 of the Act, the Applicant was not unfairly dismissed in the circumstances, because:
(a) the Applicant refused to receive his 2021 influenza vaccination;
(b) the Directions of the Chief Health Officer required a person to have an up to date influenza vaccination to enter or remain on residential aged care facilities, unless the person had a medical exemption;
(c) by not having an up to date influenza vaccination, the Applicant was unable to enter or remain on residential aged care facilities where he performed the majority of his work;
(d) the Applicant’s refusal was contrary to Bethanie’s direction that all employees have the influenza vaccination;
(e) the Applicant presented no legitimate exemptions or a medical exemption which would prevent him from getting the vaccination;
(f) in these circumstances, dismissal for failure to follow Bethanie’s lawful and reasonable direction and because of his inability to perform the inherent requirements of the role was a valid reason for the termination of the Applicant’s employment; and
(g) there are no other factors that support a finding that the termination of the Applicant’s employment was harsh, unjust or unreasonable.
[100] Therefore, Bethanie Aged Care submit that the Application should be dismissed.
The Legislation
Section 387 of the Act prescribes the factors the Commission must take account of when determining whether Mr Tew’s dismissal was harsh unjust or unreasonable.
“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.”
[101] In February 2021 the Western Australian Government Chief Health Officer issued the Visitors to Residential Aged Care Facilities Directions (No 7) (the Direction).
[102] For employees working in aged care facilities this was not a new development given this Direction was the latest iteration of a series of directions that have been issued since early 2020.
[103] The Direction required Bethanie Aged Care to take all reasonable steps to ensure their employees did not enter a residential age care facility without an up to date influenza vaccination.
[104] The Direction also provides, at section 8, a number of exceptions for persons who have not had an up to date influenza vaccination. These are that,
(a) the person’s presence at the age care facility is required for the purposes of emergency management, law enforcement or otherwise responding to an emergency.
(b) a vaccination against influenza is not readily available to the person.
(c) the person has a documented medical contraindication to the influenza vaccine.
[105] Consequently, Bethanie Aged Care issued a direction to affected employees, including Mr Tew, advising that a current influenza vaccine remained mandatory and required them to provide proof to Bethanie Aged Care of their having received an up to date vaccination by 31 May 2021. Bethanie Aged Care advised that failure to do so may impact on their ability to work.
[106] In circumstances where Bethanie Aged Care was simply complying with the Direction, which was legally binding upon them, this direction to employees including Mr Tew, was self-evidently lawful and reasonable.
[107] Mr Tew, notwithstanding that he had received the influenza vaccination in 2020, on this occasion chose not to receive an up to date influenza vaccination.
[108] Mr Tew did not, and did not purport to, fall within any of the three exceptions for persons to not have an up to date influenza vaccination which are provided for in section 8 of the Direction.
[109] It was obviously the Western Australia Government that had mandated that visitors to residential aged care facilities had to have an up-to-date influenza vaccine. Consequently, the answer to the many questions Mr Tew asked of Bethanie Aged Care in his Notices of Conditional Acceptance and his Employer Warranty to Amend Employment Contract was simply that Bethanie had no option other than to comply with the Chief Health Officers Direction, and both he and Bethanie Aged Care were subject to significant financial penalties if they did not comply.
[110] Bethanie Aged Care had no control over the requirement that Mr Tew be vaccinated to work in aged care facilities.
[111] In the circumstances, Mr Tew’s failure to comply with Bethanie Aged Care’s direction to provide proof of receiving an up to date influenza vaccination by 31 May 2021 was a valid reason for his dismissal, related to his conduct.
[112] Separately the effect of the Chief Health Officers Direction on an employee such as Mr Tew, who had not had an up to date vaccination against influenza, is that he could not lawfully (i.e. without breaching the Direction) enter the premises of a residential aged care facility in the State of Western Australia. See section 8 of the direction.
[113] The evidence is clear that Mr Tew, not having an up to date influenza vaccination, no longer had the capacity to attend aged care facilities and so could not lawfully perform the inherent requirements of his job.
[114] In such circumstances were an employee’s capacity to perform the inherent requirements of their job is affected by the actions of a third party, in this case the Western Australia Chief Health Officer, the employer still has an obligation to treat the employee fairly.
[115] Prior case law in the Commission has determined that considerations which may then arise are, the extent to which the employer has the power to alter or modify or challenge the outcome determined by the third-party and the ability of the employer to redeploy the employee to a position where the employee’s capacity is not affected by the third party’s decision. See DA v Baptist Care SA 2020 FWCFB 6046 [28], [32],[33].
[116] Clearly in this case, Bethanie Aged Care had no power to alter, modify or challenge the Chief Health Officer issuing the Direction.
[117] Bethanie Aged Care quite properly did consider the possibility of redeploying Mr Tew within their operations into some position where he was no longer subject to the Direction of the Chief Health Officer, meaning he would not need to enter aged care facilities.
[118] The evidence, which I accept, is that the majority of electrical maintenance work is undertaken at Bethanie Aged Care’s residential aged care facilities. As a result, it was not possible to retain Mr Tew in employment as an electrician without artificially creating a position which would result in unnecessary inefficiency and expense being incurred by Bethanie Aged Care.
[119] There is no reasonable basis to find that Bethanie Aged Care should have incurred such ongoing inefficiencies and additional costs in order to accommodate Mr Tew’s personal preference.
[120] The combination of the Chief Health Officers Direction and Mr Tew not receiving an up to date influenza vaccination meant that he was not able to perform the inherent requirements of his job which also was a valid reason for his dismissal, related to his capacity.
[121] Bethanie Aged Care notified Mr Tew before he was dismissed of the reasons they were considering terminating his employment.
[122] Through the show cause process Bethanie Aged Care provided Mr Tew with an opportunity to respond and he did so, including at the final meeting.
[123] Bethanie Aged Care at no time refused to allow Mr Tew a support person at discussions relating to dismissal.
[124] Mr Tew was not dismissed because of his performance so the question of warnings is not relevant.
[125] Bethanie Aged Care is a large employer and the procedures followed in effecting the dismissal reflected this.
[126] Bethanie Aged Care has a dedicated Human Resource management and specialists.
[127] The Commission is satisfied that the dismissal of Mr Tew was neither harsh, unjust nor was it unreasonable. His dismissal was not unfair.
[128] Consequently, this application will be dismissed. An Order [PR737625] to that effect will now be issued.
Appearances:
Ms K Selby on behalf of the Applicant
Mr T Tew, the Applicant
Mr N Ellery and Ms L Morris of Corrs Chambers Westgarth on behalf of the Respondent
Hearing details:
2021.
Perth:
October 29
Printed by authority of the Commonwealth Government Printer
<PR737614>
1 Annexure 5 to Mr Tew’s statement.
2 Annexure 6 to Mr Tew’s statement.
3 Paragraph 18 of Mr Tew’s statement.
4 Paragraph 82 of Mr Myhill’s statement.
5 Attachment RG5 to the statement of Ms Goodall.
6 Paragraph 18 to 25 of Ms Goodall’s statement.
7 Paragraph 46 of Mr Myhills statement.
8 Paragraph 52 to 71 of Mr Myhills statement.
9 Attachment RG21 to the statement of Ms Goodall.
10 Attachment RG22 to the statement of Ms Goodall.
11 Attachment RG23 to the statement of Ms Goodall.
12 Paragraph 93 of Ms Goodall statement.
13 Paragraph 94 to 101 of Ms Goodall statement.
14 Attachment DL3 to the statement of Mr Lorimer.