| [2023] FWC 36 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
John Jamil Ibrahim
v
Alfred Health
(U2022/8480)
DEPUTY PRESIDENT O’NEILL |
MELBOURNE, 6 JANUARY 2023 |
Application for an unfair dismissal remedy
[1] This decision concerns an application for an unfair dismissal remedy made by Mr John Ibrahim against Alfred Health on 18 August 2022. Mr Ibrahim’s employment was terminated on 8 August 2022. The Applicant contends, and Alfred Health denies, that the dismissal was harsh, unjust and unreasonable.
[2] The matter was the subject of a conciliation conference conducted by a staff conciliator of the Commission on 4 October 2022, and by a Member of the Commission on 21 November 2022, however the matter could not be resolved. Accordingly, the matter proceeded to hearing on 19 December 2022.
[3] The parties filed materials in relation to the Respondent’s request to be legally represented at the hearing. The Applicant objected to this request. A brief hearing was conducted on 7 November 2022, during which I determined to grant permission for the Respondent to be legally represented under s.596(2) of the Fair Work Act 2009 (Cth) (Act).
[4] At the hearing of 19 December 2022, the Respondent was represented by Mr Minucci of counsel, and the Applicant was represented by his wife, Ms Nina Khoury Ibrahim. The Applicant and Mr Adrian Cox, Human Resources Business Partner of Alfred Health, provided witness statements and were cross-examined at the hearing.
[5] The Applicant commenced employment with the Respondent on 9 April 1984. 1 He was employed as a fulltime medical scientist working in the microbiology laboratory at Alfred Health. The role required the Applicant to be on-site and his duties could not be performed remotely.2
[6] Pursuant to Directions of the Chief Health Officer of Victoria (CHO Directions) issued on 29 September 2021, the Respondent could not allow unvaccinated employees to work on-site on or after 15 October 2021 unless a relevant exemption applied to the employee. 3
[7] On 1 October 2021, Mr Andrew Way, Chief Executive Officer of Alfred Health, sent an email to all employees stating that anyone who works for Alfred Health, including clinical and non-clinical staff, must be vaccinated against COVID-19, and that by 15 October 2021, all staff were required to have received at least one dose of a COVID-19 vaccine, or to have made a booking to receive a first dose of a COVID-19 vaccine by 29 October 2021. 4 A ‘Frequently Asked Questions’ information page was also added to the website at this time.5
[8] On 7 October 2021, Alfred Health distributed to all employees a Guideline on Mandatory COVID Vaccination of Alfred Health Employees (the Guideline). 6 The Guideline set out a process for the management of unvaccinated employees and contained a link to the CHO Directions.
[9] On 14 October 2021, an email was sent to Mr Ibrahim, advising that he would be unable to work while unvaccinated, would be placed on “special leave” until Alfred Health was able to meet with him to discuss his intentions regarding vaccination, and that if he was not vaccinated his employment may be terminated on the basis that he was unable to perform the inherent requirements of his position. 7
[10] The Applicant did not provide evidence that he had received a COVID-19 vaccine by 28 October 2021. On 28 October 2021, the Applicant was advised that he was not to attend the workplace from 29 October 2021 and would be placed on special leave. 8
[11] On the afternoon of 28 October 2021, the Applicant took personal leave. 9 Between 29 October 2021 and the termination of the Applicant’s employment on 8 August 2022, the Applicant was absent from work on authorised paid leave including rostered accrued days off, long service leave, special leave, and personal leave. The disciplinary process was held in abeyance until the end of the Applicant’s pre-approved long service leave on 30 January 2022.
[12] Between 7 January 2022 and 22 February 2022, Alfred Health was subject to various iterations of the COVID-19 Mandatory Vaccination (Specified Facilities) Order (PHOs). 10 The PHOs required that Alfred Health prevent persons (other than excepted persons) who did not meet the vaccination requirements from entering the facility. This prohibition also applied to a person who ceased to be an excepted person in the previous 14 days.11
On or about 7 January 2022, the Applicant advised Alfred Health that as he had contracted COVID-19 in December 2021, he had a medical contraindication to the COVID-19 vaccine and had obtained a temporary medical exemption until 4 July 2022. 12 The Applicant was provided with special leave between 31 January 2022 and 22 February 2022 while Alfred Health considered whether the medical exemption was legitimate.13
[13] On 21 February 2022, Alfred Health determined that the Applicant was an excepted person and that he was not required by Alfred Health to be vaccinated until 7 May 2022. 14
[14] Between 23 February 2022 and 22 March 2022, the Applicant took personal leave to undergo and recover from medical treatment. On 22 March 2022, in anticipation of the Applicant’s return to work, the Applicant was reminded that Alfred Health required all staff who were excepted persons and were working unvaccinated to wear an N95 mask. 15
[15] The Applicant objected to wearing an N95 mask as he considered it would aggravate his breathing difficulties, 16 although he was unable to obtain an exemption for this.17 Mr Ibrahim considered that the requirement for him to wear an N95 mask was unfair, as he understood that it was not uniformly required in all areas. He made multiple enquiries about the issue, including how to apply for an exemption, and sought other information including risk assessments. Whilst he made enquiries about how to do so, he does not recall and produced no evidence, that he had applied for an exemption from wearing the N95 mask, and his doctor declined to grant him an exemption from mask wearing.
[16] The Applicant took accrued days off on 23 March to 25 March 2022, followed by personal leave from 28 March to 1 August 2022 and was then placed on special leave from 2 August to 8 August 2022. The Applicant provided a series of medical certificates for the period between 28 March and 29 August 2022 stating that he was unfit to work.
[17] On 8 April 2022, Alfred Health wrote to the Applicant reminding him that his temporary medical exemption would expire on 4 July 2022, 18 an extension from the previously granted temporary exemption, and that evidence of vaccination was required at this time.
[18] On 8 June 2022, Alfred Health wrote to the Applicant seeking an update on his vaccination status. 19
[19] On 23 June 2022, the Applicant was invited to attend a meeting on 29 June 2022 to discuss his ability to fulfil the inherent requirements of his role. 20 The Applicant did not attend the meeting, and on 30 June 2022 wrote to Ms Amanda Dennison, Principal Scientist – Microbiology, and Ms Inga Teague, HR Business Partner, of Alfred Health stating that he was not fit to attend any meetings or to communicate via email, and all work-related obligations could be attended to when he was in better health.21
[20] On 4 July 2022, the Applicant’s temporary medical exemption expired. The Applicant did not communicate with the Respondent after this date, apart from providing a number of medical certificates.
[21] On 14 July 2022, the Applicant was sent a letter inviting him to attend a Show Cause meeting to be held on 21 July 2022. 22 The Applicant did not respond to the invitation. The letter also advised the Applicant that Alfred Health would pay his personal leave entitlements until 1 August 2022, although he was not entitled to payment for personal leave beyond the expiry of his exemption on 4 July 2022, as he was not able to work after this time without proof of vaccination. The Applicant was also advised that if he did not attend the meeting or respond in writing, Alfred Health would make a decision about the future of his employment based on the information available.23
[22] On 8 August 2022, the Applicant’s employment was terminated on the basis that he was unable to perform the inherent requirements of his role, as he had not provided any evidence of vaccination. The Applicant was on special leave at this time, notwithstanding that he had a large amount of personal leave and had previously submitted medical certificates.
[23] The Applicant submits that there was no valid reason for his dismissal. Mr Ibrahim submits that he was not, in truth, dismissed for his vaccination status, but rather as a means of preventing the use of the significant amount of personal leave that he had accrued at the time of his termination.
[24] The Applicant also submits that the dismissal was unfair because he was terminated whilst on personal leave. In addition, the Applicant contends that he was not required to provide evidence of vaccination while he was on personal leave and that the Fair Work Ombudsman gave him advice to this effect. In support, the Applicant submitted audio recordings of 3 telephone calls to the FWO. 24
[25] The Applicant submits that until the date of termination he believed he was “fully compliant” and met the inherent requirements of his role, however he could not recall the basis for this belief. The Applicant submits that he is not opposed to vaccination, but rather he’s a very risk averse person and was undertaking due diligence in considering the issues.
[26] The Applicant submits that his experience in dealing with the requirement to wear the restrictive N95 mask, and his unsuccessful attempts to obtain the information he sought from Alfred Health, impacted his health and resulted in him not being well enough to deal with the disciplinary process 25 and in his words, “it all went downhill from there.”
[27] The Applicant submits that he should have been stood down, rather than have his employment terminated considering his exceptionally long and loyal service with the Respondent.
[28] The Applicant also relied on the decision in Necovski v Department of Justice and Community Safety. 26 The Applicant submitted that the case involved very similar circumstances to his, where the employer’s decision to dismiss the employee rather than consider and take some other action such as redeployment, was found to be unfair.
[29] The Respondent contends that the Applicant was dismissed for a valid reason, being that that he was unable to perform the inherent requirements of his role. The Respondent says that it is an inherent requirement of the Applicant’s role that he attend Alfred Health’s premises and perform work, and that the Applicant is unable to perform his work adequately from home.
[30] The Respondent submits that, at the time of the Applicant’s dismissal on 8 August 2022, Alfred Health was required to comply with the Pandemic (Workplace) Order 2022 (No 10) (Workplace Order). The Workplace Order required the Respondent to prevent any worker that was not fully vaccinated from working outside of their ordinary place of residence. The Respondent submits that the effect of the Workplace Order was that the Applicant could not be permitted to attend the premises of Alfred Health in order to work, and accordingly the Applicant was unable to perform the inherent requirements of his role. The Respondent further submits that the only reason the Applicant was unable to fulfil the inherent requirements of his role was because he chose not to be vaccinated.
[31] The Respondent submits that the Applicant was afforded procedural fairness throughout the dismissal process. The Respondent notes that the Applicant was notified of the reason for his dismissal, given an opportunity to respond to it and allowed to have a support person present at any meeting the Applicant attended, although the Applicant chose not to attend any meetings with the Respondent.
[32] The Respondent notes that the Applicant does not allege any procedural fairness deficits in relation to warnings as to unsatisfactory performance, the size of the enterprise, and any lack of dedicated human resources expertise, and the Respondent made no submissions in relation to these factors.
[33] The Respondent submits that Alfred Health was required to comply with the Workplace Order and that, on the other hand, the Applicant freely chose not to be vaccinated.
[34] The Respondent also submits that the fact the Applicant was on leave at the time of his termination does not render the dismissal harsh.
[35] Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of the application.
[36] There is no dispute between the parties and I am satisfied that Mr Ibrahim was a person protected from unfair dismissal, that the Small Business Fair Dismissal Code did not apply, this was not a genuine redundancy and the application was made within the period required.
[37] In considering whether Mr Ibrahim’s dismissal was harsh, unjust and/or unreasonable, I am required to take into account the matters specified in s.387(a) to (h) of the Act.
[38] The employer must have had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded” and should not be “capricious, fanciful, spiteful or prejudiced.” 27
[39] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the employer’s position. The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).
[40] In my view, Alfred Health had a valid reason to dismiss Mr Ibrahim, because he was unable to do his job. To do his job, the Applicant had to be able to attend the hospital. This was an inherent requirement of his role as a medical scientist. As of 8 August 2022, Alfred Health was required by law to prevent any worker that was not fully vaccinated from attending its premises for work. Mr Ibrahim was within his rights to decide not to be vaccinated or to provide the Respondent with proof of vaccination. But the consequence of this choice was that he rendered himself unable to perform his job. Alfred Health would have broken the law and been subject to substantial penalties if it allowed him to do so.
[41] I accept Mr Ibrahim’s evidence about the significant stress and health challenges he experienced during 2022, including his unsuccessful efforts to obtain a risk assessment and challenge the requirement to wear the N95 mask, and that this impacted his mental health. However, there is no evidence that he sought an exemption from the mask requirement, and his doctor had not provided him with an exemption from wearing one. More critically, he decided to not respond to the Respondent’s attempt in June 2022 to discuss his ability to fulfil the inherent requirements of his role, and then to not communicate with Alfred Health (other than provision of medical certificates) from the expiry of his temporary medical exemption on 4 July 2022 until his dismissal on 8 August 2022. He decided to not respond to the requests for updates on his status or to the Show Cause letter. These were regrettable decisions in circumstances where the medical certificates Mr Ibrahim provided indicated that he was unfit to perform his duties but not that he was unable to communicate or participate in the disciplinary process. I am not satisfied that Mr Ibrahim was rendered incapable of engaging with the process.
[42] In relation to the submission that he was dismissed whilst on sick leave, he was in fact, on special leave and not personal leave at the time. In any event, as I explained to Mr Ibrahim during the hearing, it is not necessarily unlawful to dismiss an employee while they are on sick leave.
[43] The Applicant’s recollection of the advice provided by the FWO is not borne out by listening to the recordings of the telephone call, and the information he and his wife were provided does not assist him. In the second recording they were informed that if a medical exemption had run out and the person was required to be vaccinated to attend the workplace under public health orders, there is no entitlement to sick leave from that point because the person can be stood down without pay. In the third recording, the response given to Ms Ibrahim’s question about whether an employer can demand information about a person’s vaccination status while they are at home and sick, was that yes, the employer may still be able to ask, if it’s a requirement under a public health order.
[44] I am required to determine Mr Ibrahim’s case on its own particular facts and circumstances, and other cases have limited applicability. I do not consider that the decision in Necovski assists the Applicant. In that decision, the Deputy President found there was a valid reason for the dismissal, but that it was nonetheless harsh because the employer did not comply with express obligations under its COVID Vaccination Policy to consider reasonable adjustments or alternative duties in certain circumstances. It was not suggested in Mr Ibrahim’s case that any such express obligation existed.
[45] It is clear that the Applicant was notified of the reason for his dismissal and was also given multiple opportunities to respond to the Respondent’s concerns that he was unable to fulfil the inherent requirements of his role. This weighs against a finding of unfairness.
[46] There was no unreasonable refusal to allow a support person and this weighs against a finding of unfairness.
[47] If a dismissal relates to unsatisfactory performance, s.387(e) requires the Commission to consider whether the person had been warned about that unsatisfactory performance prior to dismissal. However, Mr Ibrahim’s employment was not terminated for unsatisfactory performance, but for issues relating to his capacity.
[48] 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 (ss.387(f), (g)). There was no procedural deficiency in the manner of effecting the dismissal such that these provisions are relevant. Sections 387(f) and (g) are neutral considerations.
[49] The Commission is required to take into account any other matters that it considers relevant (s.387(h)).
[50] I have taken into consideration that the Applicant has dedicated more than 38 years of service to the Respondent. He was a hard-working and committed employee, and at times prioritised his work over his family. He rarely took sick leave and had more than two years’ personal leave accrued when his employment ended. There is no suggestion that he was anything other than a highly competent medical scientist with an unblemished record who was moving towards retirement.
[51] I also accept the Applicant’s submission that he is not opposed to vaccination but has a risk averse nature. However, by reason of being unvaccinated and not being an excepted person, Mr Ibrahim was unable to work. The Respondent had to comply with the law and was not able to allow him to attend the workplace, which was an inherent requirement of his role. This was a consequence of decisions made by the Applicant.
[52] I am also not satisfied that it was unreasonable, in all the circumstances, for the Respondent to terminate his employment rather than stand-him down on some indefinite basis.
[53] Overall, I am not satisfied that Mr Ibrahim’s long and dedicated service outweighs the countervailing considerations.
[54] I have made findings in relation to each matter specified in s.387 of the Act as relevant. I must consider and give due weight to each in determining whether the dismissal was harsh, unjust or unreasonable.
[55] It is unfortunate for Mr Ibrahim that his extraordinary service with the Respondent has ended in the way that it has. However, having regard to s.387 of the Act, I am satisfied there was a valid reason for the dismissal, and my overall assessment is that Mr Ibrahim’s dismissal was not harsh, nor was it unjust or unreasonable. It was therefore not unfair.
[56] The application is dismissed. An Order to that effect will be separately issued.
DEPUTY PRESIDENT
Appearances:
N Ibrahim for the Applicant.
M Minucci of Counsel for the Respondent.
Hearing details:
2022.
Melbourne (by video):
December 19.
Printed by authority of the Commonwealth Government Printer
<PR749430>
1 Witness Statement of John Ibrahim (Digital Hearing Book (DHB) at p.44).
2 Witness Statement of Adrian Cox at [6].
3 Annexure AC-1 to Witness Statement of Adrian Cox (DHB at p.190).
4 Annexure AC-2 to Witness Statement of Adrian Cox.
5 Annexure AC-3 to Witness Statement of Adrian Cox.
6 Annexure AC-4 to Witness Statement of Adrian Cox.
7 Witness Statement of Adrian Cox at [19].
8 Annexure AC-6 to Witness Statement of Adrian Cox.
9 Annexure AC-5 to Witness Statement of Adrian Cox.
10 Witness Statement of Adrian Cox at [13]; Annexure AC-1 to Witness Statement of Adrian Cox.
11 E.g. cl.30 Pandemic (Workplace) Order 2022 (No. 10) (DHB at p.673).
12 Witness Statement of Adrian Cox at [31].
13 Witness Statement of Adrian Cox at [32].
14 Ibid.
15 Witness Statement of John Ibrahim (DHB at p.44); Annexures to Witness Statement of John Ibrahim (DHB at p.53-54, 101).
16 Annexure to Witness Statement of John Ibrahim (DHB at p.101).
17 Annexure to Witness Statement of John Ibrahim (DHB at p.154).
18 Annexure AC-8 to Witness Statement of Adrian Cox.
19 Form F3 (DHB at p.162).
20 Annexure AC-9 to Witness Statement of Adrian Cox.
21 Annexure AC-10 to Witness Statement of Adrian Cox; Annexure to Witness Statement of John Ibrahim (DHB at p.126).
22 Annexure AC-11 to Witness Statement of Adrian Cox.
23 Ibid.
24 Exhibit A3.
25 Witness Statement of John Ibrahim.
27 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.