7 April 2022 Volume 13/22 with selected Decision Summaries for the week ending Friday, 1 April 2022.
Common vaccination related issues we deal with
Decisions of the Fair Work Commission
Other Fair Work Commission decisions of note
Fair Work Commission Addresses
We perform functions under the Fair Work Act. In performing our role, we may need to consider vaccination related issues. We do not have the power to deal with all vaccination disputes at work.
We have prepared summaries of some decisions, statements and recommendations made by Members of the Fair Work Commission. These will help you understand the common vaccination-related issues we have dealt with. These summaries are for guidance only. You should read the full cases using the link in the summaries.
See Vaccination related matters for more information.
The summaries of decisions contained in this Bulletin are not a substitute for the published reasons for the Commission's decisions nor are they to be used in any later consideration of the Commission's reasons.
Summaries of selected decisions signed and filed during the week ending Friday, 1 April 2022.
1 |
TERMINATION OF EMPLOYMENT – incapacity – inherent requirements – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant worked as hospital services attendant – Victorian government introduced public health direction which prohibited respondent from allowing workers who had not provided evidence they were vaccinated against COVID-19 or covered by a medical exemption to attend work – respondent could face substantial penalty for non-compliance – applicant refused to provide proof of vaccination or medical exemption – Commission found applicant's role could not be done from home because she had to attend the hospital to do her job – rejected suggestion that because certain training tasks could have been performed online, applicant's job could be done remotely – the fact that some minor tasks could be done remotely is irrelevant – applicant was required to be vaccinated to perform role – applicant was entitled to refuse vaccination but consequences flowed from that decision – Commission found 3 valid reasons for applicant's dismissal – first, applicant's inability to perform role because respondent was prohibited by law from allowing her to attend its premises for work – secondly, there was an implied obligation for an employee to follow an employer's lawful and reasonable directions [Bayley v Osborne] – direction must be lawful and must be within scope of contract of employment [R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan] – respondent's direction required applicant to provide evidence of vaccination or medical exemption and was lawful and reasonable – applicant's failure to follow lawful and reasonable direction was serious misconduct and a second valid reason for dismissal – thirdly, applicant's secret recording of 2 December 2021 meeting with respondent constituted serious misconduct which was contrary to duty of good faith to respondent and a third valid reason for dismissal – held dismissal was not harsh, unjust or unreasonable – application dismissed. | |||
Roman v Mercy Hospitals Victoria Ltd | ||||
U2021/11846 |
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Colman DP |
Melbourne |
31 March 2022 | ||
2 |
TERMINATION OF EMPLOYMENT – incapacity – inherent requirements – mandatory vaccination – s.394 Fair Work Act 2009 – application to deal with unfair dismissal – applicant worked as a teacher – NSW Government issued a public health order which came into effect on 8 November 2021 – public health order prohibited education and care workers from working at a school unless they were vaccinated against COVID-19 or had a certificate showing a medical contraindication – applicant took long service leave at half pay when the public health order came into effect – when period of leave expired applicant remained non-compliant with the public health order – respondent determined not viable for applicant to work from home in 2022 – applicant invited to show cause to why she should not be terminated – respondent viewed applicant's response as not providing a clear indication that she intended to comply with the public health order – applicant was dismissed in December 2021 – applicant argued that the respondent could have or should have devised its own alternative method to determine if applicant had contracted COVID-19, such as by using regular rapid antigen tests (RATs) – Commission noted that regular RATs were not an option that would result in compliance with the public health order [Stevens v Epworth Foundation] – applicant submitted it would have been sensible and appropriate for her to take paid or unpaid leave until the public health order ceased rather than be dismissed – Commission found that respondent required applicant to return to work onsite in early 2022, having already granted the applicant a period of long service leave on half pay in 2021 – the evidence does not disclose that the respondent was in a position to reasonably allow for applicant to 'wait out' the public health order requirements by taking leave – subsequent public health orders have issued in the same terms as the initial public health order – the current public health order has effect until at least May 2022 – Commission found reason for the applicant's dismissal, being non-compliance with public health order, was a valid reason on 2 separate grounds – firstly failure to comply made the applicant unable to satisfy the inherent requirements of her job – secondly the respondent gave reasonable and lawful directions to the applicant to comply with the public health order, which the applicant did not follow – Commission found applicant given adequate opportunity to respond (and she did respond) and was notified of consequences of providing an unsatisfactory response – dismissal not unfair – application dismissed. | |||
Shah v Catholic Education Office Parramatta Diocese (Cedp) | ||||
U2022/680 |
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Boyce DP |
Sydney |
29 March 2022 | ||
3 |
TERMINATION OF EMPLOYMENT – misconduct – ss.385, 387, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed by respondent as a bookbinding operator – on 7 October 2021 applicant dismissed following absences from work – respondent submitted dismissal was not unfair because it was critical for it to manage absences effectively, and absences had to be reported at least 8 hours before the shift – on the evening of 7 September 2021, applicant received a call at work from his wife who informed him that she had been told she was a close contact of a confirmed COVID-19 case – applicant told his supervisor that as his wife was a close contact, and the applicant had a sore throat himself, he would leave work to attend a testing facility – at the testing facility, staff told the applicant he could not be tested that day and he should return the next day – applicant returned on the morning of 8 September and was tested, and told his manager he could not attend work that day because he was awaiting receipt of the test results – on 9 September applicant again told his manager he could not attend work that day as he had still not received test results – on Friday 10 September, applicant received negative test results and immediately notified his manager that he would attend work on the following Monday 13 September – when he returned to work on 13 September, applicant was called into a meeting – on 1 October, applicant told his supervisor he would be absent on 5 October because he would be receiving his second COVID-19 vaccination – applicant experienced a severe adverse reaction to the vaccination and obtained a medical certificate for 5 and 6 October – on 6 October, applicant told his manager that he could not attend work that day – on 7 October, applicant returned to work and was called into a meeting and was then advised that he was dismissed – Commission held that applicant's absences from 7 to 10 September whilst awaiting a COVID-19 PCR test result could not represent a sound, well-founded and defensible reason for dismissal – accepted that applicant not provided with first warning letter at 13 September meeting and respondent's reliance upon the first warning letter could not represent valid reason for the dismissal – considered that even if first warning letter had been provided to applicant on 13 September it would not represent a proper or defensible basis for respondent's concerns about applicant's conduct between 7 and 10 September because applicant was following COVID-19 protocols – considered respondent's 8 hour notification of absence requirement in circumstances where applicant was isolating whilst awaiting a COVID-19 PCR test result was unreasonable – Commission considered applicant's further absence on 21 September was notified and taken in accordance with the practice used on past occasions when he attended regular medical specialist appointments – Commission considered applicant's departure from established procedures in respect to his absence on 5 October was only a technical and trivial transgression of advising his supervisor rather than his manager and in the absence of any repeated conduct attracted no more than a verbal warning – considered it relevant that absences on 5 and 6 October were covered by a medical certificate – considered notification of absence on 6 October at 9.40am prior to 2pm shift was reasonable and made to the correct manager – Commission concluded the alleged 'inability to follow established company procedures' on the part of the applicant arising in connection with notification of his absence on 5 October was caused by an adverse reaction to his second COVID-19 vaccination – Commission found applicant summoned to meetings on 13 September and 7 October and not provided with proper opportunity to arrange assistance from a support person or given advance warning that meetings were disciplinary in nature – found respondent dismissed applicant without providing applicant proper opportunity to show cause as to why his employment should not be terminated – found dismissal was harsh, unjust, and unreasonable – ordered $32,656.00 gross compensation. | |||
Jayasinghe v Pegasus Print Group P/L a wholly owned subsidiary of AAB Holdings P/L | ||||
U2021/8987 |
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Cambridge C |
Sydney |
29 March 2022 | ||
4 |
CASE PROCEDURES – representation – ss.394, 596 Fair Work Act 2009 – applicant made unfair dismissal application – conciliation conference has been scheduled before a staff conciliator (staff conciliation) – respondent said it intends to be represented by a lawyer at staff conciliation – applicant raised objection – matter referred to Commission's National Practice Leader for Unfair Dismissals – s.596 of the Fair Work Act states that except as provided under s.596(3) or 'the procedural rules', a person can only be represented by a lawyer or paid agent in Commission proceedings if the Commission grants permission – r.12(2)(b)(i) of the Fair Work Commission Rules 2013 allow a party to be represented by a lawyer or paid agent without needing permission in a staff conciliation held in an unfair dismissal matter – but the Commission retains the power under r.12(3) to direct that a person is not to be represented by a lawyer or paid agent in a particular matter before the Commission – applicant applied for direction under r.12(3) that respondent not be represented in the staff conciliation – Commission noted that nothing in its decision was determinative of whether permission to be represented should be granted if the matter proceeds to any substantive merits hearing before a Member of the Commission, as that would be a matter for the Member presiding at that stage – noted there is nothing in r.12(2) which sets out matters which must be taken into account in determining if a direction that a party not be represented should be issued – the considerations are not limited to those which must be considered in deciding if permission to be represented should be granted under s.596(2) – Commission has a broad discretion [Kennedy v Qantas Ground Services P/L] – Commission noted that both parties had provided submissions that go to representation in a hearing before a Commission Member – those submissions 'have some relevance but…are not necessary considerations or conditions as they may be if the application was being made pursuant to s.596(2)' – the staff conciliation 'is not a hearing or determinative conference and evidence will not be required to be given or cross examination undertaken' – staff conciliation 'will not be held in open court, is by its nature an informal process (although may result in an agreed outcome) and is a confidential process only attended by the parties and their permitted representatives/support people' – applicant submitted that respondent has past experience in unfair dismissal matters and so has a better knowledge base than applicant and has access to a substantial amount of legal advice – Commission did not have regard to these statements and observed that 'one party not being represented is not determinative as to whether the other party should or should not be permitted representation' – applicant submitted that the matter was not particularly complex and the Commission had experience in more substantial matters – Commission concluded that while it has dealt with 'larger cases in the past, including the matter in Kimber identified by the Applicant, and with matters involving vaccination status, each case needs to be considered on its merits and given the individual consideration necessary' – Commission noted that the applicant filed extensive materials in which she claimed equitable estoppel and so 'introduced a range of complexities to what appears otherwise a relatively straightforward matter' – there was no satisfactory reason why Commission should issue a direction which had the effect of prohibiting respondent from being represented by a lawyer at the staff conciliation – applicant has raised some complex legal arguments that Commission was not satisfied respondent has capacity to deal with – Commission declined to issue a direction preventing representation at staff conciliation. | |||
Taylor v Bunbury Baptist College INC | ||||
U2022/817 |
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Bissett C |
Melbourne |
1 April 2022 | ||
5 |
CASE PROCEDURES – confidentiality – application for release from implied undertaking – ss.394, 594, 601 Fair Work Act 2009 – in September 2020, applicant made an unfair dismissal application to the Commission (Commission proceedings) and discontinued his application in December 2020 – in August 2021, applicant lodged a statement of claim in the Federal Circuit and Family Court pertaining to alleged sham contracting and underpayment (Court proceedings) – the respondent in the Commission proceedings was named as first respondent in the Court proceedings – in December 2021, applicant lodged an application with the Commission for certain documents filed by respondent in the Commission proceedings to be released from the implied Harman undertaking (being an implied undertaking not to use documents or information obtained in a proceeding for an unrelated purpose without leave of the Commission) – an 'implied Harman undertaking' or 'Hearne v Street obligation' provides that, where a party is compelled to produce a document or disclose information in court proceedings, the party receiving the document cannot use it for any purpose other than that for which it was disclosed, except with leave of the court – while the Commission is not a court, the Commission has in previous cases considered the implied undertaking to attach to documents produced in proceedings in the Commission [Brian Klippert]; [Craig Patterson] – Federal Court has stated that the basis of the implied undertaking lies in the fact that the documents are produced under compulsion, not from the inherent power of the court, and found that it applied to proceedings of the Administrative Appeals Tribunal [Otter Gold Mines Ltd] – Commission concluded that the implied undertaking applied in this matter – special circumstances must be established to justify release from the obligation [Otter Gold Mines Ltd]; [Holpitt P/L]; [Springfield Nominees P/L] – noted 'does not require extraordinary factors…rather, it is sufficient that a good reason be evinced for departing from the ordinary course and allowing the use of the documents for the benefit of a party in other litigation' [Liberty Funding P/L] – special circumstances have been said to be found 'fairly readily' where it is established that the use of the documents is reasonably required for the purpose of doing justice between the parties in other proceedings [Australian Trade Commission v McMahon] – on the basis of applicant's submissions, and in the absence of any opposition from respondent, Commission decided that special circumstances had been established – next step is to determine whether to exercise the discretion to grant leave to applicant to use the documents sought – non-exhaustive list of factors to be considered are: nature of document; circumstances under which it came into existence; attitude of the author and any prejudice the author may sustain; whether the document existed prior to litigation or was created for the purpose of litigation and was therefore expected to enter the public domain; nature of information in the document, particularly whether it contains personal or commercially sensitive information; circumstances in which the document came into the hands of the person applying for leave; likely contribution of the document to achieving justice in the second proceeding [Springfield Nominees Ltd] – Commission found the following factors weighed in favour of granting leave: maintaining confidentiality in the documents is of less concern because they were created for the purpose of Commission proceedings and were therefore expected to enter the public domain; there was no prejudice that could be suffered by respondent as a result of granting leave and the respondent has not objected to the release of the documents but has rather sought a non-publication order to restrict publication of the Commission's decision in this matter; the documents do not contain personal or commercially sensitive information; the applicant lawfully obtained the documents through the Commission's processes; and the documents sought are important to achieving justice in the Court proceedings – noting that respondent had not provided submissions on the above factors, Commission decided that an order granting leave from the implied undertaking should be granted – Commission refused respondent's application for a non-publication order – applicant granted leave to use certain documents filed by respondent in Commission proceedings in the conduct of his Court proceedings | |||
Johnson v Samarkan Pastoral Co P/L t/a Coombe Yarra Valley | ||||
U2020/12401 |
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Harper-Greenwell C |
Melbourne |
29 March 2022 | ||
Appeal by Scurr against decision of Spencer C of 20 December 2021 [[2021] FWC 6638] Re: Commissioner for Public Employment (Northern Territory) | ||
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.40, 604, 739 Fair Work Act 2009 – appeal – Full Bench – appeal against first instance decision to dismiss application to deal with a dispute – appellant covered by Northern Territory Public Sector 2017-2021 Enterprise Agreement – clause 10.3 of Schedule 10 of the Agreement obligates employer to endeavour to redeploy employee in other suitable employment in the event their substantive position was made redundant – appellant contended that employer did not comply with obligations under clause 10.3 of Schedule 10 – clause 12 provides a dispute resolution procedure which included referral to Commission for conciliation and arbitration where dispute not settled following completion of internal resolution – Agreement also refers to Public Sector Employment and Management Act 1993 (NT) (PSEM Act) – clause 10 defines surplus employees and suitable employment according to PSEM Act – on 14 February 2016, employer declared that the appellant was potentially surplus to agency requirements, which triggered employer's obligations under clause 10.3 of Schedule 10 of Agreement – appellant was placed into various successive positions on a temporary or fixed-term basis and also applied for multiple ongoing positions but she was not successful in any of her applications – on 15 January 2019, employer gave appellant a notice of redundancy which stated that employer would continue to make all reasonable efforts to assist appellant to gain ongoing employment, failing which her employment would be terminated – on 9 July 2019, after appellant was found to be unsuitable for a particular role for which she had applied, she lodged a grievance with the Office of the Commissioner for Public Sector Employment under s.59 of PSEM Act seeking that the finding be overturned – on 22 October 2019, appellant contended that she should never have been issued a notice of redundancy because she was easily redeployable, and appellant requested that notice of redundancy be rescinded – Office of the Commissioner for Public Sector Employment declined appellant's request to rescind the notice of redundancy, on basis that obligations in PSEM Act and Schedule 10 of the Agreement had been met – on 3 January 2020, appellant lodged application under s.739(6) of FW Act for the Commission to deal with a dispute pursuant to clause 12 of the Agreement – at first instance, Commission concluded it had no jurisdiction to arbitrate the dispute because s.59 of PSEM Act barred Commission from having jurisdiction – on appeal, Full Bench observed clause 12 of the Agreement provided the Commission authority to arbitrate a dispute in relation to 'a matter arising under this Agreement' where the dispute has not settled following the completion of the internal resolution procedure and conciliation by Commission – observing the subject matter of the dispute as being alleged non-compliance with clause 10 of Schedule 10 to the Agreement, Full Bench found the dispute was a clearly 'a matter arising under this Agreement' – further, 'Where the employee party to such a dispute seeks arbitration, the requisite agreement for arbitration under s.739(4) of FW Act exists since the employer's agreement to arbitration is demonstrated by employer's entry into the Agreement in which clause 12 is contained' – Full Bench considered operation of s.40(1) of FW Act, that provides a 'public sector employment law' prevails over a 'fair work instrument' (which includes an enterprise agreement) that deals with public sector employment, to extent of any inconsistency – Full Bench found no identified inconsistency – found no reason why any purported overlap in subject matter between Commissioner for Public Sector Employment review conducted pursuant to s.59 of PSEM Act and appellant's dispute application before Commission would render the latter beyond Commission's jurisdiction – found Commission was in error at first instance – Full Bench upheld appeal, quashed first instance decision and remitted matter for rehearing. | ||
C2022/400 |
||
Hatcher VP |
Sydney |
30 March 2022 |
Appeal by Elefantis against decision of Wilson C of 10 November 2021 [[2021] FWC 5305] Re: The Trustee for Timber Ridge Unit Trust | ||
TERMINATION OF EMPLOYMENT – remedy – ss.392, 394, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision not to award compensation where appellant was found to be unfairly dismissed – at first instance Commission found amounts received by appellant from an industry scheme providing for portable redundancy payments (Incolink payments), for which the respondent had made contributions on the appellant's behalf during the course of his employment, should be deducted in determining any compensation – appeal made on grounds that Commission erred in deducting this payment and that Commission made a significant error of fact in finding that if appellant had not been dismissed, his employment with the respondent would only have continued for 6 weeks – in respect of first ground of appeal, appellant submitted that monies deposited into Incolink account were not 'remuneration earned' for the purposes of s.392(2) of the FW Act but earned by him during his employment – appellant submitted that Commission incorrectly equated the circumstances of Govender with his case – respondent submitted that it offset its redundancy obligations by paying into the Incolink Redundancy Fund, from which the appellant was paid, and Govender applies as the Incolink scheme is of the same character as the NES redundancy entitlement in that case – in respect of second ground of appeal, appellant submitted that it was not open to Commission to reach findings of fact that the appellant would not have heeded a final warning as there was no evidentiary basis for the findings – the respondent submitted the there was an evidentiary basis for the findings, and that in any case the Commission was not obliged to accept the appellant's evidence given the earlier finding that he was not 'an especially compelling witness' – Full Bench found Commission was in error at first instance in deducting Incolink payments from appellant's compensation – distinguishing Govender, Full Bench found that as appellant's termination was for misconduct he was not entitled to redundancy payments under the applicable enterprise agreement, so Incolink payments could not be held to be redundancy payments – Full Bench further held that monies paid into Incolink were placed into the 'worker's' account, held for the benefit of the worker and payable upon termination regardless of the reason and it would be an absurdity if an employer could rely on such contributions when faced with an unfair dismissal application – Full Bench also did not consider money drawn from Incolink after termination of employment was money earned within s.392(2)(e) of the FW Act – Full Bench held there was no error in Commission's finding that appellant would only have remained in employment for a further 6 weeks, finding that having had the benefit of observing the evidence first hand, it was a conclusion the Commission at first instance was entitled to draw – Full Bench reconsidered compensation, adopting conclusions reached in first instance decision, save the deduction of Incolink payment – appeal upheld with respect to deduction of Incolink payment – first instance decision quashed to the extent it deals with the treatment of Incolink payment in final determination of compensation – appeal otherwise dismissed – appellant to be paid $9,390 in compensation taxed according to law within 14 days of decision | ||
C2021/8150 |
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Catanzariti VP |
Sydney |
28 March 2022 |
The Applicant v Jemena Electricity Networks (Vic) Ltd | ||
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – applicant filed unfair dismissal application 124 days late – reason for delay is that applicant has been subject to serious domestic violence – applicant produced records of third party intervention and various court proceedings – respondent did not oppose applicant's contention that reason for delay justified a conclusion that there were exceptional circumstances – Commission accepted that applicant was 'significantly impacted in their capacity to file this application due to a traumatic and sustained circumstance and consequential physical and psychological injuries' – Commission satisfied that applicant's circumstances were exceptional and it was appropriate to exercise discretion to extend time – application for extension of time granted. | ||
U2022/1920 |
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Mansini DP |
Melbourne |
31 March 2022 |
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