| [2022] FWC 979 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mark Lucas
v
Alcoa of Australia Limited
(U2022/848)
DEPUTY PRESIDENT BEAUMONT |
PERTH, 25 MAY 2022 |
Application for an unfair dismissal remedy
[1] Mr Mark Lucas (the Applicant), a former employee of Alcoa of Australia Limited (the Respondent), lodged an unfair dismissal application on 18 January 2022. 1 He had worked for the Respondent as an electrician since 22 November 2004 on the Alcoa Bauxite Mine referred to by those in the business, as the Willowdale mine (Willowdale). On 2 November 2021, the Western Australian government introduced the Resources Industry Workers (Restrictions on Access) Directions (Directions). As a result of the Directions, the Applicant was required to be partially vaccinated with a first dose of an approved COVID-19 vaccine by 1 December 2021 and fully vaccinated with two doses of an approved COVID-19 vaccine by 1 January 2022. The Applicant did not comply with the requirement, hence rendering him unable to access Willowdale. On 29 December 2021, the Applicant’s employment was terminated on the basis that he could not meet the inherent requirements of his role. The Applicant now makes this application seeking reinstatement at Willowdale or if not possible, an equivalent position with the Respondent.
[2] In short, I have concluded that the Applicant’s dismissal was not harsh, unjust, or unreasonable, and as such, have dismissed his application on the basis that he was not unfairly dismissed. In doing so, I am satisfied that this outcome has ensured a ‘fair go all round’ is accorded to both Applicant and Respondent. My reasons follow.
[3] Detailed versions of events were provided, and there were several witnesses. The broader context and events leading to the conclusion of the employment were as follows.
[4] The Respondent undertakes bauxite mining and alumina refining operations in the Southwest of Western Australia and operates three alumina refineries, which are located at Wagerup, Kwinana and Pinjarra. It also operates mines at two locations, namely the Huntly mine site and Willowdale.
[5] The Respondent employed the Applicant to work at Willowdale between 22 November 2004 and 29 December 2021.
[6] At the time of the Applicant’s dismissal, he was employed as a shift electrician responsible for the maintenance and repair of electrical systems at Willowdale. He was one of five electricians working a five panel continuous shift work roster 2 to undertake predominately unplanned maintenance work and at times planned maintenance work.3
[7] It was uncontroversial that the Applicant was required to perform his work activities at Willowdale. According to the Respondent, there were only limited circumstances in which work activities would not be performed by the Applicant on-site, namely when training occurred, which was said to be rare.
[8] There were four other shift electricians who worked the five panel continuous shift roster. They were: (a) Mr Bradley Taylor; (b) Mr Jordan Baker; (c) Mr Jye Cormack; and (d)Mr Michael Grainger. In addition, there were three full time electrician day work positions at the site, one of which was filled by two part-time employees working in a job share arrangement. Those day work electricians were: (a) Mr Matt Shaw; (b) Mr Richard Shaw; (c) Mr Craig Dixon and Ms Christina Kenward (who shared the one full time position).
[9] On 5 October 2021, the Western Australian Government announced that fly-in fly-out and local workers on Western Australian mining and resource sites would be required to receive a first dose of COVID-19 vaccine by 12:01am on 1 December 2021 and be fully vaccinated by 1 January 2022.
[10] On 5 October 2021, the Respondent emailed all of its Western Australian employees to advise them of the Western Australian government’s announcement. The email included a frequently asked questions document (FAQ). The following question and answer was included in the FAQ:
Question: Is my job in jeopardy if I refuse to get vaccinated?
Answer: Everyone must comply with the law, regulations or any other instrument made under the Public Health Act 2016 (WA) – including public health orders and directions. If such directions impact on your capacity to complete your job (if you are not vaccinated and/or have not medical exemption), then you will not be provided with alternative work.
[11] On 21 October 2021, an email was sent to all Australian employees of the Respondent confirming vaccination requirements.
[12] On 2 November 2021, the Western Australian government issued the Directions.
[13] It is uncontroversial that the Applicant was covered by the Directions as a result of the Applicant falling within the definition of resources industry worker and being employed to work at a rural or remote resources industry site (which includes a mining operation as defined by s 4 of the Mines Safety and Inspection Act 1994 (WA)).
[14] As a result of being covered by the Directions, the Applicant was required to be partially vaccinated with a first dose of an approved COVID-19 vaccine by 1 December 2021 and fully vaccinated with two doses of an approved COVID-19 vaccine by 1 January 2022, if he was to attend Willowdale.
[15] On 2 November 2021, the Respondent emailed and gave toolbox presentations to all its Western Australian employees to advise that the Western Australian government had released the Directions and would be providing an update on what that meant for Western Australian employees in the near future.
[16] On 4 November 2021, the Respondent emailed all its Western Australian employees to advise which of its workplaces the Directions applied to, the timeframes for vaccination, details of how to submit proof of vaccination and to confirm that the Directions were legally binding under the Public Health Act 2016 (WA).
[17] On 17 November 2021, the Western Australian government issued the Resource Industry Worker (Restrictions on Access) Directions (No 2) (Updated Directions).
[18] On 18 November 2021, the Respondent emailed all Western Australian employees to remind them that there was only two weeks until the first vaccination deadline of 1 December 2021, and that proof of vaccination against COVID-19 should be submitted as soon as practicable.
[19] On 1 December 2021, the requirement that the Applicant be partially vaccinated with a first dose of an approved COVID-19 vaccine to attend Willowdale came into effect.
[20] On 1 January 2022, the requirement that the Applicant be fully vaccinated with a second dose of an approved COVID-19 vaccine to attend Willowdale came into effect.
[21] Mr Justin Nichols, Electrical Maintenance Supervisor, gave evidence that not long after the vaccination announcement in October 2021, the Applicant put in a request for annual leave for the period 4 to 7 December 2021, being his first shifts for December 2021. 4 Mr Nichols approved the annual leave request.5
[22] Mr Nichols then recalled a conversation held with the Applicant at a crew barbeque shortly after the vaccination announcement in early October 2021. 6 Mr Nichols recalled that the Applicant had asked him whether he would be prepared to approve long service leave from December 2021, because he wanted to avoid the requirement to be vaccinated imposed by the mandate.7 Mr Nichols noted that the Applicant had also mentioned that the period would allow him time to consider the Novavax vaccination.8 Mr Nichols stated that he informed the Applicant at the barbeque that he would be prepared to consider any application made, but he did not make a commitment that it would be approved.9
[23] Mr Tony Vergone, Fixed Pant Maintenance Superintendent at Willowdale, gave evidence that following the Western Australian government’s announcement that it would be mandating vaccination for employees in the mining industry, the Applicant made an application for long service leave for the period 13 December 2021 to 13 March 2021. 10 That application was made to Mr Nichols,11 who then forwarded the request to Mr Vergone and Ms Melanie Nash, Senior HR Consultant.12
[24] Having requested additional information about the request, Mr Nichols wrote to Ms Nash on 27 October 2021 to the effect that the Applicant: (a) wanted leave from 6 December 2021 to 13 March 2022; (b) could be covered by a labour hire employee from Curtis Electrical for most of his absence; and (c) had said to me that he did not want the vaccine and wanted to wait until later. 13
[25] Ms Nash was said to have advised Mr Nichols that leave could be accommodated within the usual availability and that leave was not to be accommodated outside of usual allocations. 14
[26] Mr Nichols explained that he considered asking Mr Adam Robinson, a contractor employee who was trained and competent to work as a shift electrician at Willowdale to cover most of the Applicant’s proposed absence. 15 However, he discovered through a discussion with Mr Robinson that he was unlikely to be available during December 2021 and January 2022 because he had been approached regarding a fixed term contract offer at Huntly mine site.16
[27] Concerning the rationale for utilising Mr Robinson, Mr Nichols detailed that Alcoa only allows planned leave for one shift electrician at a time and the absent electrician is backfilled from the day work electrician group. 17 Mr Nichols said he knew it would not be possible for the Applicant to take leave, because of the leave he had already approved for others.18
[28] According to Mr Vergone, Alcoa will, as a rule, allow one shift electrician to take planned leave at any one time. This, said Mr Vergone, was because Alcoa generally backfilled the day work electrician group and therefore needed to maintain a buffer in case of unplanned leave absences. 19 However, Mr Vergone acknowledged that if the need was urgent others would be permitted to take leave, but it would involve an additional cost to Alcoa and therefore it was not encouraged.20 The additional costs arose from having to use paid overtime shifts.21
[29] As part of the consideration of the Applicant’s request for long service leave, the existing approved leave applications for the same period were reviewed by Mr Vergone, Mr Nichols, and Mr Burns. 22 It was identified that five employees had leave approved during the December and January period (up to 25 January 2022 – albeit it appeared that between 7 January 2022 and 20 January 2022 no one was on leave).23
[30] Mr Nichols said that the view was formed that it would not be appropriate to approve the Applicant’s request for leave based on planned leave that had already been approved (in advance of the Applicant’s request), because Mr Robinson had informed him that he was not able to commit to work, and because Alcoa needed to maintain appropriate personnel levels that could meet operational needs in the event of an unplanned absence over the Christmas and New Year period. 24
[31] Mr Nichols said that he contacted the Applicant on 10 November 2021, to advise him that he had decided not to approve his leave, 25 and thereafter formally confirmed this in the Alcoa leave management system on 11 November 2021.26
[32] On 12 November 2021, the Applicant emailed Mr Nichols expressing that he was under extreme pressure and stress and that he had been led to believe that the long service leave application would be accepted. 27 The Applicant expressed that with ‘the prospect of a natural vaccine “Novavax” being available early next year, this would be my preferable option’, in respect of a condition he had.28
[33] By email dated 17 November 2021, Mr Nichols informed the Applicant that he had not indicated that the leave request was approved but said that he would try his best to accommodate it given the time of year and the notice period given. 29 The email continued:
I have taken all things into consideration and even sought help from my superiors/HR to ensure we explored all avenues given the nature of this situation. Unfortunately we can not meet the business requirements and it is a risk to approve this leave over the Christmas/new years period as discussed due to the lack of cover available. The notice period, given its long service leave was quite short. We will always try to accommodate, but at this time we couldn’t meet business needs and regretfully need decline your request.
If you have a medical condition that would make you exempt from the vaccine then you should see your doctor as soon as possible to obtain an exemption. As per the company guidelines you can supply the exemption in lieu of a vaccine certificate. 30
[34] It is apparent that the Applicant raised a dispute under the Alcoa of Australia, WA Operation, Electrical Trades Enterprise Agreement 2021 (the Agreement). 31 According to the Applicant’s email dated 18 November 2021, the dispute had proceeded through Stage 1 and 2 of the dispute procedure and the Applicant had raised it with the Willowdale Mine Manager under Stage 3.32
[35] On 19 November 2021, Mr Vergone responded to the Applicant, noting that he was unaware that the Applicant had put the issue regarding long service leave into dispute, but nevertheless was content to progress to Stage 3 of the dispute process under the Agreement. 33
[36] It appears that discussions were held between the Applicant, his union representative, and representatives of Alcoa, including Mr Vergone. Following the meeting, Mr Woodage, ETU Organiser, wrote to Mr Vergone and others asking if Alcoa’s position had changed, whilst highlighting employment policies that spoke to Alcoa long service leave and to long service leave legislation in Western Australia. 34
[37] In response, Ms Fran Shipp, Human Resources Manager, informed Mr Woodage, and others copied to the email dated 22 November 2021, that the Applicant was covered by the Agreement and not the staff Long Service Leave Policy. Ms Shipp further noted that the Agreement referred to the ‘1980 Award’ – which provided that long service leave would be approved having regard to the company and employee circumstances, and by agreement by both parties. 35
[38] Further, correspondence passed between Mr Woodage and Alcoa regarding the source of the long service leave entitlement, 36 with Ms Hollie Crittall, on behalf of Ms Shipp – who was on leave, emailing Mr Woodage on 24 November 2021, reiterating that the Long Service Leave Policy did not apply to the Applicant but that the Agreement provisions did.37
[39] Ms Shipp gave evidence that on 26 November 2021, both she and Ms Crittall, Senior Employee Relations Business Partner, received a letter from Mr Armen Aghazarian, an ETU Industrial Officer, that again asserted that the Applicant had a right to take long service leave. 38
[40] On 7 December 2021, Ms Crittall responded to Mr Aghazarian, to confirm that the Applicant’s long service leave request had been declined based on a number of other persons being absent on approved leave over the Christmas period, that the Respondent had approved other leave applied for by the Applicant and that the Alcoa LSL Award applied to the Applicant. Ms Shipp’s evidence was that she did not believe that any further action was taken by the Applicant in respect to the Agreement dispute over long service leave.
[41] On 1 December 2021, the Applicant was issued with a direction not to attend Willowdale effective immediately, unless the Applicant was able to provide adequate proof of COVID-19 vaccination or a valid medical exemption. 39 The direction referred to the Directions and advised that the Applicant was to be placed on unpaid leave whilst Alcoa reviewed his ongoing employment.40 The direction further advised that the company would be in contact with the Applicant to discuss his vaccination status and to provide him with an opportunity to provide it with any further information it should consider, before making a decision regarding his employment.41
[42] On 2 December 2021, the Applicant emailed Mr Vergone seeking clarification on whether he was to be placed on leave without pay as of 8 December 2021, and whether the Respondent was still declining his long service leave application because Willowdale had lost the services of Mr Robinson. 42
[43] By email dated 6 December 2021, Mr Vergone confirmed that from 8 December 2021, the Applicant would be place on unpaid leave, that there had been no change to the long service leave request and that a meeting would take place on 13 December 2021 to discuss his vaccination status and ongoing employment. 43 The Applicant was informed he was welcome to bring a support person to the meeting on 13 December 2021.44
[44] Mr Vergone gave evidence that the meeting on 13 December 2021 did not take place, because, as he understood it, the Applicant was stressed. 45
[45] On 9 December 2021, the Applicant emailed Ms Shipp and Mr Hodges expressing his dismay that ‘the exact same person had been rostered to fill in his role over the exact same period’ covered by his long service leave application (which had been rejected) and questioned why his long service leave request was continuing to be rejected, given the coverage issue had been resolved. 46 After having traversed in his email his safety concerns about COVID-19 vaccination and a purported deviation from his Safety Risk Management Plan, the Applicant stated:
…[C]an you please confirm the following so I can make an informed decision.
1. Can you provide details and assurances that the required drug has been fully, independently and rigorously tested against control groups and the subsequent outcomes of these tests?
2. These vaccines have completed their trial period.
3. You can confirm that I will suffer no harm.
Following acceptance of this, please ensure a fully qualified doctor of Alcoa’s choice will sign and take full legal and financial responsibility for any injuries occurring to myself, and/or from any interactions by authorised personnel regarding these procedures.
1. In the event that I should have to decline the offer of vaccination, please confirm that it will not compromise my position and that I will not suffer unmerited prejudice and discrimination as a result?
I await your reply and are wanting to resolve this to return to work safely.
[46] On 10 December 2021, the Applicant emailed Mr Michael Gollschewski, Vice President Operations Australia, and Mr Matthew Gleeson, HR/ER Director, observing that he had received no response to his email dated 9 December 2021. 47
[47] On 10 December 2021, Mr Gleeson replied to the Applicant noting, in short, that others were following his advice regarding leave being approved and not approved in the normal manner with a view to ensuring the business had a safe and efficient level of people to operate, and that in respect of the public health orders:
Unfortunately people who are not vaccinated and do not have an exemption cannot be provided with work, and eventually will have to exit Alcoa. Questions about vaccinations and their trials and testing are best made to your GP. 48
[48] According to the Applicant he sent correspondence to Mr Gleeson on 14 December 2021, which, amongst other matters, traversed the following:
…Again Alcoa, are being harsh and unreasonable for putting me on unpaid leave, when I have adequate leave to cover the same period and I allege that Alcoa is doing this deliberately in order to terminate my employment unfairly. All leave should be exhausted before placing me on unpaid leave.
I hope and believe that there will be a shift in Government mandates, due to public outrage, in the coming months, and ask that you provide me with what is reasonably practicable to keep me employed and to avoid going into financial hardship. I believe that my request to use my accrued leave is justified and am experiencing massive depression caused by Alcoa being so inflexible, during this unparalleled time…
Please respond to the following by close of business Friday, some questions have been asked in previous letters, but have not been responded to:
1. Will the Company will be honouring the written agreement to permit me to at least take long service leave in mid-January onwards?
2. Can you provide details and assurances that the required drug has been fully, independently and rigorously tested against control groups and the subsequent outcomes of these tests?
3. Have these vaccines completed the trial period and if so, where is the evidence of the trial and the adverse reaction data?
4. Can you confirm that I will suffer no harm?
5. If I have the vaccine and suffer harm, does Alcoa’s workers compensation insurance cover any illness linked to the vaccine and/or Covid?
6. Confirm that you do in fact want me to deviate from my Safety Risk Management Plan
I expected all questions from my last email in regards to safety, efficacy, and legal matters answered in full with factual references, which I have now repeated. As this is a legal requirement, under Duty of Care provisions I trust that my serious concerns regarding safety, efficacy, and legal matters are addressed with the respect deserved.
Following acceptance of this, please ensure a fully qualified doctor of Alcoa’s choice will sign and take full legal and financial responsibility for any injuries occurring to myself, and/or from any interactions by authorised personnel regarding these procedures.
In the event that I should have to decline the offer of vaccination, please confirm that it will not compromise my position and that I will not suffer unwarranted prejudice and discrimination as a result?... 49
[49] In his evidence, the Applicant expressed that he struggled to understand why he was denied access to his long service leave from 13 December 2021. 50 The Applicant pointed out that he was placed on unpaid leave on 13 December 2021 until at least 29 December 2021 when he was dismissed.51 The Applicant stated that the Respondent made it clear, both in writing and through discussions, that it could accommodate leave from 11 January 2021 – meaning that the only period that the Respondent thought would be an issue to cover was late December and early January.52
[50] The Applicant stated that around the time of his dismissal, he received a roster for December and January 2022. He continued that in his discussions with the Respondent he had been told that he was fine to take long service leave after 11 January 2022, but it could not cover his shifts up until then. 53 The Applicant stated that had he not been on leave, the roster clearly showed that by late December and before he was dismissed, all his shifts up to 11 January 2022 had already been covered by Mr Robinson, who is contracted through Chandler Macleod.54
[51] On 22 December 2021, the Applicant was issued with a letter which confirmed that a meeting was held with the Applicant in the presence of Ms Nash and Mr Vergone on 22 December 2021. The letter outlined the Directions and the obligation to comply with the law, regulations and any other instrument made under the Public Health Act 2016 (WA), and also provided that if the Applicant was unwilling to comply with the Directions to be vaccinated against COVID-19 and he did not have a valid exemption, he would be unable to perform the inherent requirements of his role and his employment would be terminated. 55
[52] On 24 December 2021, the Applicant provided a written response to the letter of 22 December 2021. In his correspondence the Applicant noted, amongst other matters:
…I am disappointed and find it unjust that after providing 21 years of dedicated service to Alcoa, the Company has opted to move directly to terminate my employment, without genuine consideration of alternative options. I have never stated that I would not get vaccinated, you will recall my email to yourself on 12 November 2021, which stated that I was willing to consider receiving an alternative vaccination for COVID 19, potentially the Novavax. This email also contained my extenuating circumstances and compromised health.
I would seek a formal medical exemption; however, my doctor advises that they are too afraid to provide exemption out of fear of losing their certification. There are many reports, widely publicised, backing this claim.
I ask Alcoa to permit me to take my long service leave, that I previously applied for and given the extenuating circumstances I ask for the leave to be granted at half pay. This will ensure that I and Alcoa are not in breach of the Public Health Order, as I will not be entering the site for that period. Alcoa stated that the reason for declining my long service leave application previously was due to concerns about manning levels. I note from our meeting on Wednesday, you confirmed that this was no longer a concern as coverage had been rapidly secured.
I believe that this is a more reasonable and just alternative than terminating my employment after 21 years. This will provide me with ample opportunity to consider the vaccination options available to me, considering my medical concerns and return to Alcoa to continue being a valued member of the electrical team.
Having the ability to have access to this leave option will then allow time for the TGA to approve the Novavax Vaccine, I understand Australia has ordered 51 million doses of the vaccine. I am willing to consider this vaccine as soon as it becomes available, which is reported to be as early as January 2022.
If the above is not possible, I understand that Kwinana Alcoa is not currently covered by any public health order, and I believe they are currently recruiting for the site. I would be in line with the current Enterprise Agreement, have the skill set and be willing to volunteer for a transfer to that site for an agreed period whilst considering my vaccine options.
Another option for the interim too, is I’ve noticed Willowdale electrical is behind in SWI’s (Safe Work Instructions) for routine work orders compared to other Alcoa sites I’ve worked at. I could complete these, other document writing and computer work remotely from site.
I would also be willing to assist in any function in the Bindjareb office including the Human Resources recruitment team in their search for potential talent. I believe my longevity with Alcoa, electrical skillset, and vast knowledge on the job could significantly benefit the recruitment process, even if only short term… 56
[53] Mr Vergone stated that on 24 December 2021, he sent a text message to the Applicant to confirm arrangements for a meeting on 29 December 2021. 57 Mr Vergone detailed that the Applicant texted him to ask whether the meeting was to show cause in person or to deliver Alcoa’s outcomes.58 Mr Vergone confirmed that the Applicant was required to send his show cause response by 4pm on 24 December 2021 and that the outcome would be determined at the meeting on 29 December 2021.59
[54] The Applicant attended the meeting on 29 December 2021 with his support person present. 60 At the meeting, Mr Vergone informed the Applicant that he had not received a response to the show cause letter that had been issued to the Applicant.61 The Applicant thereafter provided to Ms Nash, who was also present at the meeting, and to Mr Vergone, a hard copy of his response to the show cause letter (notwithstanding having emailed it to a stipulated email address previously).62
[55] As the Applicant had provided a response to the show cause letter, which included alternatives to the termination of his employment, Mr Vergone and Ms Nash called for a break to consider the Applicant’s responses. 63
[56] Regarding the Applicant’s alternatives to dismissal, the following views were formed and thereafter conveyed to the Applicant:
a) reviewal of SWIs was not acceptable because a document writer had recently been engaged at Willowdale to undertake that work, meaning there was little review work to be performed – and it was also considered that a person performing the reviews would need to be on site to do the work properly;
b) the Applicant did not possess the skill set to undertake recruiting work and in any event there was limited recruitment in January; and
c) a transfer to Kwinana was not a suitable option. 64
[57] Expanding upon the reasons as to why a transfer to Kwinana was not suitable, Ms Shipp explained that there were no vacancies at the Kwinana Alumina Refinery for electricians at that time. 65 Whilst vacancies had been posted in October and November 2021, offers had been made for both positions on 15 December 2021 and 8 December 2021.66 Ms Shipp noted that the only other vacancy since that time was posted on 25 January 2022 and was filled on 8 March 2022.
[58] The Applicant submitted that he believed his dismissal to have been harsh because at all times he was ready to get vaccinated and would have been vaccinated, if his application for long service leave had been granted.
[59] Having applied for long service leave on 22 October 2021, the Applicant considered that the Respondent had plenty of notice. Further, the Respondent asserted that it could not cover his shifts for the period of 13 December 2021 to 11 January 2021, but it was clear to him that the Respondent had managed to cover this period when the Applicant was not working.
[60] The Applicant argued that there was another employee, Mr Dixon, who was scheduled for time off due to a job share arrangement until mid-January, but Mr Dixon had been willing to cover the Applicant’s shifts until mid-January and had told the Respondent this. However, the Respondent did not even consider this, pressed the Applicant.
[61] The Applicant argued that there had been others willing to cover his roster over the Christmas and New Year period.
[62] Section 396 of the Fair Work Act 2009 (Cth) (the Act) requires that I decide four matters before considering the merits of the Applicant’s application. There is no dispute between the parties concerning these matters, and I am satisfied of the following. First, the application was made within the 21-day period required by s 394(2) of the Act. Second, the Applicant was a person protected from unfair dismissal, as he was covered by the Agreement. 67. Third, the Applicant’s dismissal was not a case of genuine redundancy. Fourth, no question of compliance with the Small Business Fair Dismissal Code arose.
[63] For a dismissal to be unfair, the Commission must be satisfied that the dismissal was harsh, unjust, or unreasonable (s 385(b)). The conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd; Frew v Australian Airlines Ltd by McHugh and Gummow JJ as follows:
.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.68
[64] In considering whether a dismissal is unfair, the Commission must take into account the matters specified in s 387, this includes determining whether there was a valid reason for dismissal and taking into account any other matters the Commission considers relevant.
[65] Section 387 of the Act contemplates that the Commission will undertake an overall assessment as to the nature of the dismissal and in so doing, the criteria in s 387 must, where relevant, be weighed up in totality.
[66] For the reasons that follow, the Applicant’s case turns on whether there was a valid reason for his dismissal, and whether there were other matters of such relevancy that they render the Applicant’s dismissal as harsh, unjust or reasonable.
[67] Regarding notification of a reason for dismissal, it is accepted that before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matter that places her or his job at risk. 69 The Applicant chose to make no submissions regarding notification of the reason, with the exception of pressing that if the Commission was satisfied there was, the dismissal remained unfair when regard was had to the other matters under s 387.
[68] I have found the Applicant was placed on notice that a failure to provide evidence of COVID-19 vaccination or for that matter an exemption, would result in the termination of his employment. This was evident in the show cause letter sent to the Applicant on 22 December 2021 and during the show cause meeting held on 22 December 2021.
[69] The Applicant identified, correctly in my view, that an opportunity to respond is an opportunity proffered before the decision to dismiss an employee is made. 70 At a general level, the case law makes it plain that when it comes providing an opportunity to respond, the process does not require any degree of formality and that the requirement is to be applied in a common sense practical way in order to ensure that the employee is treated fairly.71 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.72
[70] The Applicant submits that he was purportedly given an opportunity to respond to the reason for dismissal in the show cause letter of 22 December 2021 and he had until 24 December 2021 to do so. He however points to the relevant decision maker not checking the email address he was directed to send his response to, and on that basis argues it was impossible for him to have been provided with an opportunity to respond in such circumstances. The Applicant reiterated he was directed to respond in writing, he was directed to respond to a specific email address and the decision maker had no intention of checking that email address.
[71] According to the Applicant, to the extent he was given an opportunity to respond to the reason at the meeting on 29 December 2021, the Respondent had already made a decision regarding his employment, given the meeting was an ‘outcome’ meeting.
[72] The Respondent argued that the Applicant had been provided an opportunity to respond to the reasons being considered for his dismissal, being his inability to meet the inherent requirements of his role, at the show cause meeting held on 22 December 2021 and in the response to the show cause letter issued on 22 December 2021.
[73] The evidence does not support a finding that the Applicant was provided with an opportunity to respond, as understood by reference to s 387(c) of the Act, at the meeting on 22 December 2022. Ms Nash gave evidence that she attended the meeting with Mr Vergone, the Applicant, his support person, and Mr Woodage. She stated that at the meeting, which she observed was quite short, Mr Vergone read out, and provided the Applicant with, the show cause letter, which set out that the Applicant’s response was to be provided to Mr Vergone by email by 4pm on 24 December 2021. 73 Mr Vergone provided evidence to the same effect. There was no reason before me to disbelieve the pair. No mention was made about proffering the Applicant an opportunity to respond then and there at the meeting on 22 December 2022.
[74] The Applicant recalls that at the meeting on 29 December 2021, neither Mr Vergone nor Ms Nash had viewed his email in response to the show cause letter. However, the Applicant, Ms Nash, and Mr Vergone, all confirmed that there was a break in the meeting on that day. Furthermore, the Applicant admits that both Mr Vergone and Ms Nash were provided with a copy of the email he had sent on 24 December 2021, and that thereafter Mr Vergone and Ms Nash called for an adjournment. 74
[75] Whilst the Applicant recollects that Mr Vergone and Ms Nash returned from the meeting and said words to the effect, ‘[Y]our alternative arrangements have been thoroughly considered and they are not workable’, the evidence does not support a finding that the explanation provided by Mr Vergone and Ms Nash was so limited. In cross examination the Applicant acknowledged as much, his recollection extending to an acknowledgement that the communication was longer than that conveyed in his witness statement about the proposed alternative arrangements. The Applicant further conceded that the reasons as to why the alternative arrangements were not available were also explained, with the exception of the long service leave suggestion.
[76] While the Applicant accepted that the discussion on 29 December 2021 covered the proposition of long service leave at half pay (after he had brought it up), the Applicant pressed that Mr Vergone had never advised him why this was not suitable, only that it was not suitable.
[77] Mr Vergone gave evidence that he briefly touched on the proposition of long service leave, but essentially thought that the long service leave issue was finished because the union and the Applicant did not take the dispute (presumedly under the Agreement) any further.
[78] Having heard from Ms Nash, Mr Vergone, Ms Shipp, and the Applicant, I am satisfied that the Respondent gave the Applicant and adequate opportunity to respond to the reason related to his capacity and, in addition, genuinely considered the propositions he had broached as alternatives to his dismissal. This included the taking of long service leave, which had been considered by both Mr Nichols at length and Mr Vergone, subsequent to the Applicant making the request for such leave. I do not consider that the suggestion of taking long service leave at half pay would have altered the circumstances, and as it is, the suggestion was addressed in the meeting.
[79] The Applicant proposed that the outcome of the disciplinary process had been predetermined. At this juncture, it warrants noting that the Respondent had in its communications plainly outlined what was required of the Applicant if he wanted to continue to attend the workplace and remain employed. It would have been remiss of the Respondent if it had not provided such direction on the changed inherent requirements of the Applicant’s position. This does not however mean that the disciplinary outcome had been predetermined before the meeting on 29 December 2021. In light of the abovementioned finding regarding an opportunity to respond, a contention that the outcome was pre-determined is unable to be sustained on the evidence.
[80] The Applicant also pointed to the Respondent referring to the meeting on 29 December 2021 as an outcomes meeting. However, as duly observed by the Respondent, describing the meeting as an ‘outcome’ meeting did not predicate the nature of the outcome, simply that an outcome would be arrived at.
[81] As observed in the background to this matter, the Respondent did not refuse, unreasonably or otherwise, to allow the Applicant to have a support person present to assist in discussions relating to the dismissal – and in fact, the Applicant was accompanied by both a representative from the union and a support person.
[82] If a dismissal relates to unsatisfactory performance, s 387(e) requires the Commission to consider whether the person has been warned about that unsatisfactory performance prior to dismissal. However, the Applicant’s employment was not terminated for unsatisfactory performance, but for issues relating to his capacity (or conduct).
[83] The Commission is required to consider the degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal. The Respondent is a large employer and has a dedicated human resources team. The procedures followed by the Respondent were appropriate having regard for the size of the Respondent’s enterprise. I attribute little weight to these factors, given the specialist staff the Respondent has on hand. It does not affect my overall assessment.
[84] Returning to whether there was a valid reason for the Applicant’s dismissal, the following principles are apposite.
[85] In considering whether the dismissal of the Applicant was harsh, unjust, or unreasonable, I am required to take into account whether there was a valid reason for the dismissal related to his capacity or conduct (including its effect on the safety and welfare of other employees). To explain further, ‘valid’ in this context generally refers to whether there was a sound, defensible or well-founded reason for the dismissal.75 Such a reason is one that is valid in the sense that it was both sound and substantiated. Provisions such as s 387(a) must be applied in a practical, common-sense way, to ensure that the employer and employee are treated fairly.76
[86] The Directions and Updated Directions have at no stage been declared invalid by a Court. They have been in effect at all material times. Further, they applied to the Respondent as an employer within the mining industry of Western Australia. In effect, they constituted a new regulatory requirement that attached to the Applicant’s role. 77
[87] In light of this, the Respondent had a valid reason to dismiss the Applicant. It was one that was related to his capacity, not his conduct nor his performance. It was his inability to meet the inherent requirements of his role. The Respondent was prohibited by law from allowing the Applicant to attend the workplace unless he provided the required evidence in the aforementioned timeframes. The Respondent would have contravened the law and exposed itself to penalty if it had acted otherwise.
[88] The Applicant has raised other factors which he says rendered the reason for his dismissal spiteful and prejudiced. Amongst those sits the issue of his plan to be vaccinated with the Novavax vaccination and the Respondent holding no reasonable basis for its refusal to grant long service leave. While in my view such contentions sit squarely under s 387(h) as matters relevant for consideration, it is a timely to address them now.
[89] The Applicant asserts that no issue of incapacity would have arisen if he had been granted his long service leave. The Applicant continues that he did not inform Respondent that he refused to be vaccinated and that he had explained to the Respondent his plan to get vaccinated with Novavax. Further, he disputes having communicated to Mr Nichols that he was just ‘considering’ Novavax, and that he had repeatedly communicated to the Respondent his willingness to have the Novavax vaccination.
[90] First, I am not necessarily persuaded that such points advance the Applicant’s case in circumstances where he does not dispute that he was neither fully vaccinated nor partially vaccinated at all material times. Further, the Applicant accepted that the Directions applied to both himself and the Respondent and that Respondent was required to ensure that prior to him entering the workplace he was vaccinated.
[91] Second, the evidence does not support a finding that the Applicant unequivocally communicated that he was willing, or was going to be, vaccinated with Novavax (or for that matter another alternative protein based vaccine). As was identified by the Respondent, the Applicant:
a) stated in his email dated 12 November 2021 that Novavax would be his preferred option for vaccination; 78
b) stated in his email dated 9 December 2021 that he had concluded that Novavax was the safest option for him; 79
c) observed in his email to Mr Gleeson and Mr Gollschewski that he hoped and believed that there would be a shift in government mandates due to public outrage in coming months; 80
d) expressed in his response to the show cause letter that in relation to being vaccinated with Novavax:
i. ‘…you will recall my email to yourself of 12 November 2021, which stated that I was willing to consider receiving an alternative vaccination for COVID 19, potentially the Novavax’;
ii. ‘[T]his will provide me with ample opportunity to consider the vaccination options available to me, considering my medical concerns…’;
iii. ‘I am willing to consider this vaccine as soon as it become available…’. 81
[92] The Applicant attempted to reconcile what he had communicated in his response to the show cause letter by contending that his use of the word ‘consider’ meant that if his preferred vaccination was available, then he would have it. However, the Applicant agreed that the wording he had used was different to actually communicating to the Respondent that he was willing to have the vaccination.
[93] In my opinion, the Applicant’s interpretation of the word ‘consider’ was at best strained. His adoption of the word ‘consider’ demonstrated that rather than him being committed to being vaccinated, he was instead, non-committal and was wishing to retain discretion about his future course.
[94] The Applicant is entitled to keep his options open regarding vaccination and clearly he held concerns about the safety of the COVID-19 vaccination, premised in part, upon his underlying purported health conditions. The Applicant was within his rights to decline to become vaccinated or to provide the Respondent with the information it requested from him. But, as identified by the Deputy President in Stevens v Epworth Foundation T/A Epworth Freemasons, 82 his choices had the inevitable consequence that he had rendered himself unable to perform his job.
[95] The Applicant’s letter of 15 December 2021, indicated this very approach of retaining or otherwise reserving his rights or exercise of discretion, broaching the possibility of declining to be vaccinated, noting:
In the event that I should have to decline the offer of vaccination, please confirm that it will not compromise my position and that I will not suffer unwarranted prejudice and discrimination as a result?
[96] Much time was spent at hearing about the vexed issue of the refusal to grant long service leave. However, I consider that Mr Nichols provided an earnest account regarding his refusal to grant the long service leave requested by the Applicant. Mr Nichols noted that he had already approved the teams’ leave over the Christmas and New Year period, and as the team was small, one individual was permitted to take leave at a time. Mr Nichols acknowledged that Mr Robinson from Curtis Electrical often stepped in when electricians were absent. However, having approached Mr Robinson to cover the period of leave requested by the Applicant, Mr Nichols noted that Mr Robinson could not commit to the period because he had applied for several jobs. Mr Nichols gave evidence that he was already nervous that he could not cover the period over Christmas and New Year prior to the Applicant making his application.
[97] Mr Nichols also detailed that usually, if one applied for long service leave, there would be a greater period of notice to allow for a replacement to be trained up to back fill. While there appeared to be disparity in the evidence between Mr Vergone and Mr Nichols about the period required to train an electrician up to work on the crew, I accept Mr Nichols’ evidence that the period was approximately six months. It struck me that Mr Nichols had greater familiarity with workings on the floor, the machinations of the daily operations, and as a consequence was well positioned to judge the staffing requirements for the shifts he supervised.
[98] In cross examination, Mr Nichols was asked whether it was normal for him to seek advice from Mr Vergone and Ms Nash about granting long service leave. Mr Nichols conceded, appropriately in my view, that it was not normal outside of a mandate circumstance. When asked if there had not been a mandate would he have sought advice, Mr Nichols replied to the effect, ‘no I probably would have declined it straight away’ (referring to the Applicant’s long service leave application).
[99] In his submissions, the Applicant did not cavil with the Respondent’s contention that the Applicant’s entitlement to long service leave arose under the Alcoa Long Service Leave Conditions Award, 1980. The Applicant further acknowledged, that the entitlement was to three months of long service, at a time agreed with by the company. 83
[100] In my opinion, the Respondent had reasonable business grounds to refuse the Applicant’s request to take long service leave. While Mr Nichols was questioned in cross examination about Mr Robinson covering the Applicant’s proposed leave, and in addition, was questioned about the availability of other crew members, such as Mr McCormack, Mr Baker, Mr Dixon and Mr Shaw, Mr Nichols cogently provided prompt explanation as to why the Applicant’s request for long service had been declined and continued to be declined.
[101] Even if the Applicant had been permitted to take the long service leave, I am not persuaded that it would have made any difference given the Directions remained in force in relation to mining industry workers and the Applicant had not, at all material times, committed to being vaccinated against COVID-19. Further, any request to proceed on an indeterminate period of leave, or for that matter to take a period of long service leave on half pay – because the Applicant was unvaccinated – and he was in effect waiting for the dust to settle (or the mandate to conclude), would in my view have been an unreasonable request.
[102] The Applicant had proffered to the Respondent alternative options rather than proceeding down the course of dismissal. I am of the view that the Respondent engaged with those options, genuinely giving thought to each in light of its operational context and movement of staff – such as the option to work at the Kwinana site. On this point, Ms Shipp provided ample explanation as to the unfeasibility of the option. Further, given the circumstances presented, I do not consider that there was an obligation upon the Respondent to transfer the Applicant to other roles within its business on the basis of the Applicant not meeting the inherent requirements of his substantive position. This is notwithstanding the Applicant’s significant longevity with the business, sound employment record and his personal circumstances - such as the purported economic impact the dismissal had on both him and his family.
[103] Understandably, this was a stressful time for the Applicant which arose from the abovementioned events. It is not inconceivable that this would have been a highly emotional and difficult time for the Applicant, yet, at all times, he demonstrated resilience and conducted himself appropriately.
[104] However, having taken into account each of the matters specified in s 387 of the Act, I am satisfied that the Respondent had a valid reason for dismissing the Applicant based on his inability to meet the inherent requirements of his role. Further, I am unable to conclude that the Applicant’s dismissal was harsh, unjust, or unreasonable and am satisfied that the outcome I have determined ensures a ‘fair go all round’ has been accorded to the parties. It therefore follows the Applicant’s dismissal was not unfair. Accordingly, I am obliged to dismiss the application. An Order 84 to that effect is issued in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
Mr A. Aghazarian of the ETU on behalf of the Applicant;
Mr M. Vallence of Heelan & Co Industrial Relations and Management on behalf of the Respondent.
Hearing details:
Tuesday, 3 May 2022 (video hearing)
Printed by authority of the Commonwealth Government Printer
<PR741065>
1 Fair Work Act 2009 (Cth) s 394 (the Act).
2 Witness Statement of Mr Tony Vergone [8] (Vergone Statement).
3 Ibid [10].
4 Witness Statement of Mr Justin Colin Nichols [8] (Nichols Statement).
5 Ibid.
6 Ibid [13].
7 Ibid.
8 Ibid.
9 Ibid [15].
10 Vergone Statement (n 2) [14].
11 Nichols Statement (n 4) [16].
12 Ibid [17].
13 Ibid [19].
14 Ibid [20].
15 Ibid [21].
16 Ibid [24].
17 Ibid [25].
18 Ibid.
19 Vergone Statement (n 2) [15].
20 Ibid [16].
21 Ibid.
22 Nichols Statement (n 4) [29].
23 Ibid [29] (a)-(e).
24 Ibid [30].
25 Ibid [33].
26 Ibid [34].
27 Witness Statement of Mr Mark Lucas ML-4 (Lucas Statement).
28 Ibid.
29 Ibid ML-5.
30 Ibid.
31 [2021] FWCA; AE514140; PR736414 (the Agreement).
32 Lucas Statement (n 27) ML-6.
33 Ibid ML-7.
34 Ibid ML10.
35 Ibid ML-11
36 Ibid ML-12 – 13.
37 Ibid ML-13.
38 Witness Statement of Ms Fran Shipp [37(i)] (Shipp Statement).
39 Lucas Statement (n 27) ML-14.
40 Ibid.
41 Ibid.
42 Ibid.
43 Ibid.
44 Ibid.
45 Vergone Statement (n 2) [43].
46 Lucas Statement (n 27) ML-17.
47 Ibid ML-18.
48 Ibid ML-19.
49 Ibid ML-21B.
50 Ibid [51].
51 Ibid.
52 Ibid.
53 Ibid [52].
54 Ibid.
55 Ibid ML-22.
56 Ibid ML-23.
57 Vergone Statement (n 2) [47].
58 Ibid.
59 Ibid.
60 Ibid [49].
61 Ibid [50].
62 Ibid.
63 Ibid.
64 Ibid [52]-[53].
65 Shipp Statement (n 38)[43].
66 Ibid.
67 The Agreement (n 31).
68 (1995) 185 CLR 411, 465.
69 Royal Melbourne Institute of Technology v Asher [2010] FWAFB 1200, [26] (Asher); Osman v Toyota Motor Corporation Australia Ltd PR948009; Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7, cited in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373 (Selvachandran).
70 Crozier v Palazzo Corporation Pty Ltd 98 IR 137, [73].
71 Asher (n 69) [26].
72 Ibid.
73 Witness Statement of Ms Melanie Ash [22]-[23] (Ash Statement).
74 Lucas Statement (n 27) [43].
75 Selvachandran (n 69) 373.
76 Potter v WorkCover Corporation (2004) 133 IR 458, cited in Industrial Automation Group Pty Ltd T/A Industrial Automation (2010) 202 IR 17, [36].
77 Roman v Mercy Hospitals Victoria [2022] FWC 711.
78 Lucas Statement (n 27) ML-4.
79 Ibid ML-17.
80 Ibid ML-21.
81 Ibid ML-23.
82 [2022] FWC 593, [24].
83 Lucas Statement (n 27) ML-2.