FWC Bulletin

28 April 2022 Volume 16/22 with selected Decision Summaries for the week ending Friday, 22 April 2022.

Last issue of weekly FWC Bulletin

Common vaccination related issues we deal with

Decisions of the Fair Work Commission

Other Fair Work Commission decisions of note

Subscription Options

Websites of Interest

Fair Work Commission Addresses

Last issue of weekly FWC Bulletin

This is the final issue of the weekly FWC Bulletin. Going forward, the Fair Work Commission will publish a monthly bulletin with selected Decision Summaries.

The monthly bulletin will replace the weekly FWC Bulletin and will also replace the Fair Work Commission’s Quarterly Practitioner Update.

You can subscribe to a range of updates from the Fair Work Commission. We are currently replacing our Subscriptions service. Until the new system is available, your options for subscriptions may be limited. For more information, visit the Subscriptions page on our website.

Common vaccination related issues we deal with

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.

Decisions of the Fair Work Commission

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, 22 April 2022.

1

TERMINATION OF EMPLOYMENT – incapacity – inherent requirements – mandatory vaccination – s.394 Fair Work Act 2009 – application to deal with unfair dismissal – applicant was Manager and Educational Leader at a daycare and preschool centre – on 23 September 2021 NSW Government issued a Public Health Order which required education and care workers to not work at an early education and care facility on or after 8 November 2021 unless they had received 2 doses of a COVID-19 vaccine or had been issued with a medical contraindication certificate – Public Health Order also required each 'responsible person' take all reasonable steps to ensure that education and care workers comply with the requirements – on 30 September, parties discussed possibility of medical contraindication and applicant said she was going to see a medical practitioner – later on 30 September respondent emailed all staff explaining that workers needed to be double vaccinated or have a medical contraindication certificate by 8 November – on 5 October, respondent followed up about medical contraindication and applicant advised that her medical practitioner would not sign the medical contraindication certificate and had advised her to get vaccinated – applicant said she would be seeking advice from another doctor – on 1 November, respondent told applicant by email that she was being stood down from 8 to 28 November and if after that date she remained unvaccinated with no plans to become vaccinated, respondent would need to terminate her employment – on 11 November respondent terminated applicant's employment via email, effective immediately – Commission found respondent had a valid reason for dismissal because applicant was not able to fulfil requirements of her role from 8 November and there were no alternative duties – applicant had weeks prior to her dismissal to consider whether she would be vaccinated and gave no indication that she intended to be vaccinated in foreseeable future – found applicant was on notice from 1 November that her employment would be terminated if she was not vaccinated and did not have a medical contraindication certificate – while applicant was initially told she would be stood down from 8 to 28 November, respondent changed its position without any prior warning and dismissed applicant on 11 November – this weighed in favour of a finding that dismissal was harsh and unreasonable but applicant accepted in her evidence that even if her employment had continued until 28 November, she would not have had a first vaccine dose by that date – it follows that if dismissal had not taken place on 11 November it would have happened on 28 November and from 11 to 28 November applicant would not have received wages because Public Health Order meant she was not able to work during that time – respondent made repeated invitations for staff to speak with respondent about implementation of Public Health Order and applicant had a number of discussions with respondent – while applicant was not given notice of termination or payment in lieu of notice, she did not have capacity to work at her workplace from 8 November so even if notice had been given, she would not have been entitled to wages during notice period – Commission found dismissal not unfair – application dismissed

Mitchell v Kinda Kapers Holdings P/L

U2021/10745

[2022] FWC 892

Saunders DP

Newcastle

19 April 2022

2

TERMINATION OF EMPLOYMENT – misconduct – employer policies – ss.391, 394 Fair Work Act 2009 – application for unfair dismissal – applicant employed as a Bus Driver – dismissed for alleged serious misconduct namely inappropriate behaviour towards a passenger – applicant asked a young adult male passenger, who did not pay his fare and sat in a space reserved for disabled passengers, to put face mask he was wearing around his chin on properly – passenger used abusive language towards applicant and at next stop applicant directed passenger to get off the bus – when he refused police were called and other passengers disembarked – letter of termination stated 'your decision to disregard company direction and attempt to enforce the wearing of masks was not consistent with the behaviours and standards outlined in the Surfside Employee Code of Conduct, Drivers Handbook, and recent Safety Communications' – applicant had received earlier warning for talking into her Apple smartwatch to contact parent of a child who had missed their stop – respondent submitted there was a pattern in behaviour of non-compliance or non-conformance with instructions provided by respondent – Commission found that the 2 incidents were unfortunate and perhaps could have been dealt with in a more appropriate manner, but they do not identify a trend – found that applicant did not breach respondent's Code of Conduct in using her smartwatch to contact parent of a child who was travelling on bus – held that smartwatch is not a mobile phone or an iPod, which are the 2 devices identified in respondent's Code of Conduct – found that applicant did not engage in any 'enforcement' activity regarding face masks – applicant did not: tell passenger to get off bus for not wearing a mask, stop the bus, seek to argue about mask mandate with passenger, or seek to leave her seat to confront passenger – applicant simply asked passenger to put on his mask, while continuing to drive the bus – applicant did not ask passenger to leave the bus because he refused to wear his mask, but because he verbally abused applicant – applicant did not breach respondent's policy – respondent had no valid reason to terminate applicant – if Commission was wrong and respondent did have a valid reason, then applicant's termination was harsh (because it was disproportionate to the gravity of the misconduct) and unreasonable and as a result unfair – Commission could see no reason why applicant should not be reinstated to her former role – ordered reinstatement, that continuity of service be maintained and lost wages paid.

Logsdon v Surfside Buslines P/L

U2021/9103

[2022] FWC 392

Riordan C

Sydney

22 April 2022

3

GENERAL PROTECTIONS – dismissal dispute – certificate – s.365 Fair Work Act 2009 – general protections dismissal dispute involving 9 applicants and one respondent – applicants alleged they were dismissed for reasons including their decision not to be vaccinated against COVID-19 or not to disclose their vaccination status to respondent – applicants requested that Commission issue a statement of 'material facts' (Material Facts Request) – respondent requested that Commission issue a certificate under s.368(3)(b) of the Fair Work Act to the effect that arbitration under s.369 or a general protections court application would not have a reasonable prospect of success (Certificate Request) – Commission noted in relation to Material Facts Request that what applicants seek 'appears to go well beyond matters of an obvious or uncontentious nature' and were 'highly contentious matters' – applicants' submissions asked, inter alia, whether it was a 'fact' that: the CEOs of Virgin Australia and Jetstar Australia issued employees a 'non-negotiable demand to be covid-injected'; any employment termination demand automatically obliterates mandatory lawfully obligated valid consent to injections; and the CEOs knew or ought to have known of existing binding law on injecting practitioners of the 'Federal Immunisation Guidelines Criterion 2' – Commission found it was not possible to determine the matters raised by applicants other than through arbitration in the Commission or in court – noted that each applicant previously sought that certain 'questions of law and fact' be referred by President of Commission to the Full Bench and President rejected that application in the context of Le v Virgin Australia Airlines P/L – the President in Le v Virgin Australia Airlines P/L noted that the Fair Work Act limits how the Commission can deal with general protections applications involving dismissal – under s.368(1), the Commission must deal with the dispute other than by arbitration – Commission only has jurisdiction to arbitrate if the preconditions in s.369(1) are satisfied, namely that Commission has issued a certificate under s.368(3)(a) and the parties have notified Commission within the relevant timeframe that they consent to Commission arbitrating the dispute – a s.368(3)(a) certificate has not been issued to applicants and the conditions in s.369(1) have not been satisfied, therefore the Commission's jurisdiction is presently limited to dealing with the 9 applications in a non-determinative way, such as by conference – Commission found that it had no jurisdiction to grant applicants' Material Facts Request – in relation to the Certificate Request, Commission noted that forming a view that arbitration or a court application would not have a reasonable prospect of success 'should only be reached with extreme caution…where the application is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable' [Salva Resources P/L] – Commission noted that at this stage, it had not seen detailed evidence or made findings of fact on the merits of the applications as that may only be done after Commission has issued a s.368(3)(a) certificate – Commission not satisfied that the applications would not have a reasonable prospect of success if they proceeded to arbitration in the Commission or to a court and declined to issue s.368(3)(b) certificate – respondent's Certificate Request was refused – in relation to finalising the 9 applications, Commission noted that applicants submitted that they did not want a s.368(3)(a) certificate issued and wanted conciliation to continue in good faith – Commission held it did not see a purpose in continuing conciliation where the applicants chose not to put forward a proposal for resolution of the dispute – observed that the conciliation that took place before the Commission 'was notable because of the complete unwillingness of the applicants to put forward proposals for resolution, with it being maintained through their representative that they instead sought the Commission to issue an opinion on the matters they saw as being relevant to the applications' – Commission satisfied that all reasonable attempts to resolve the disputes (other than by arbitration) have been or are likely to be unsuccessful – s.368(3)(a) certificate to be issued.

Dolevski and Ors v Virgin Australia Airlines P/L

C2021/8930 and Ors

[2022] FWC 903

Wilson C

Melbourne

19 April 2022

4

TERMINATION OF EMPLOYMENT – incapacity – inherent requirements – mandatory vaccination – s.394 Fair Work Act 2009 – application for an unfair dismissal remedy – applicant employed for 6 years as a project officer for respondent, a health provider – in September 2021, Victorian Government issued public health directions which required respondent to ensure staff were vaccinated against COVID-19 unless they had a medical contraindication before respondent allowed staff to enter healthcare facility – on 6 October applicant informed respondent that she did not intend to be vaccinated and asked to work from home indefinitely – on 12 October respondent notified applicant it had not been informed of her vaccination status and that it held the view that a failure to be demonstrate vaccination or exemption meant applicant would be unable to meet inherent requirements of her job – in further discussions applicant maintained that she did not intend to be vaccinated and it would be reasonable for respondent to permit her to work from home – on 25 October, respondent issued a show cause letter which stated that working from home was unsustainable on a permanent basis, vaccination was an inherent requirement of employment for all staff unless they were exempt, and respondent was considering terminating applicant's employment – on 15 November respondent dismissed applicant because she could not legally attend the workplace due to public health directions – Commission considered Titan Plant Hire P/L v Shaun Van Malsen – Commission considered applicant's contract, public health directions, inherent requirements of applicant's job – satisfied respondent had a valid reason for dismissal related to capacity, because applicant could not fulfil the inherent requirements of her job without providing respondent her vaccination information – Commission considered whether dismissal was harsh, unjust or unreasonable – found applicant was on notice by 25 October that her dismissal was being contemplated – found no procedural defects in the manner in which applicant was dismissed – found applicant's dismissal not unfair – application dismissed.

Gee v Eastern Health

U2021/11219

[2022] FWC 932

Wilson C

Melbourne

22 April 2022

5

CONDITIONS OF EMPLOYMENT – stand down – ss.524, 526 Fair Work Act 2009 – application to deal with a dispute involving stand down – applicant was manager of a gym – from August 2021, NSW Government public health orders required that respondent close the gym – on 29 September 2021, respondent notified applicant that she had been stood down without pay until further notice under s.524 Fair Work Act – respondent submitted that it explored whether applicant would like to teach online exercise classes – applicant submitted the offer was not appropriate given her role as a manager rather than a class instructor and that she refused this offer for various reasons including that she was not trained to do online classes, had no equipment to record and present the classes, and had no separate room in her home to film the classes – applicant submitted that during lockdown, a staff member was promoted to new role of Marketing Manager and this role was not offered to applicant – respondent submitted that the only other work available during stand down period was occupational health work which only qualified health professionals could carry out – applicant resigned on 22 November 2021 – applicant seeks to be paid for period between 30 September 2021 and 31 January 2022 or alternatively a redundancy payment – Commission considered whether applicant could usefully be employed during stand down period, under s.524(1) – applicant submitted she could have done online wellness coaching, accounts, business development, outdoor classes or newsletters – respondent submitted that no positions were available that matched applicant's skill set – the person promoted to Marketing Manager was head of graphic design and had a degree in marketing – Commission accepted that applicant was unlikely to have been able to carry out online classes if she was not appropriately trained as an instructor – accepted there was no other suitable work available from 29 September – Commission considered whether there had been a stoppage of work that respondent could not reasonably be held responsible for, under s.524(1)(c) – noted that the absence of useful work created by a stoppage of work must be the cause of any stand down [Bristow Helicopters Australia P/L] – found that respondent was subject to public health orders that required it to cease operation of the gym and the entity that contracted respondent to operate the gym had directed that the respondent not operate the gym during the relevant period – Commission found that the gym ceased operation and this amounted to a stoppage of work which was caused by the public health orders and the direction not to operate – held that applicant could not usefully be employed because of a stoppage of work for causes for which respondent could not reasonably be held responsible – Commission found that considerations of fairness weighed against the orders sought by the applicant being made – noted that applicant had accrued a significant annual leave balance and was given the option to request to use those entitlements during stand down period, which would have mitigated the negative financial impact of the stand down, but applicant declined to access her leave – found that stand down was in accordance with s.524 – declined to make orders sought by applicant – application dismissed

McDonald v Corporate Health Management

C2021/7830

[2022] FWC 921

Matheson C

Sydney

21 April 2022

Other Fair Work Commission decisions of note

Application by Hampson

ANTI-BULLYING – reasonable management action – working from home application – s.789FC Fair Work Act 2009 – application for order to stop bullying – applicant worked at a university – person named in application was applicant's supervisor – applicant alleged supervisor told applicant to adopt her students' work as her own – Commission concluded that supervisor was not proposing that applicant plagiarise students' work or publish students' work without the relevant student being a co-author – found that it appeared from the evidence to be common for students to work with their supervisors to jointly publish papers, which may involve the academic using their knowledge and experience to develop a student's work to a quality that can be published – found that what the supervisor was proposing was consistent with university policy – appeared that supervisor was giving advice to applicant about achieving research targets – applicant alleged supervisor gave her a gift card as incentive to take his advice – Commission did not accept that offering a gift card amounted to bullying – in January 2021, applicant submitted to supervisor a request to work from home for 5 years because of health issues – supervisor declined work from home request for 5 years – Commission found applicant made 7 requests to work from home and all were approved except the request to work from home for 5 years – Commission found that the advice that supervisor received was that applicant was fit to attend work – Commission did not find supervisor's email regarding work from home request amounted to bullying – Commission did not find supervisor bullied applicant – application dismissed.

SO2021/15

[2022] FWC 935

Simpson C

Brisbane

22 April 2022

James v Alconbury P/L atf The Woodfield Trust

TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – unfair dismissal application stated that applicant's dismissal took effect on 23 December 2021 – application was lodged on 13 January 2022 – respondent raised jurisdictional objection that applicant last worked on 12 November 2021, dismissal occurred on that date, and thus the application was not lodged within 21-day period after the dismissal took effect – applicant submitted inter alia that: his last day of work was 21 November; applicant asked to be put back on work roster on 23 November but manager advised by text message that 'the best thing is for us to part ways and you start at a fresh work place'; applicant contacted respondent's accounts department on 24 November to enquire as to status of his employment; on 20 December applicant again emailed accounts department; and on 23 December applicant called head office who told him he no longer had a job – at hearing, respondent submitted that applicant's employment ceased on 23 November when manager sent the text message – Commission noted dismissal does not take effect until employee is aware that they have been dismissed or at least had a reasonable opportunity to become so aware [Ayub v NSW Trains] – Commission held that manager's statement that 'the best thing is for us to part ways and you start at a fresh work place' does not amount to cessation of employment – it was not until applicant contacted head office on 23 December that he was clearly told he was no longer employed – Commission found applicant did not have a reasonable opportunity to become aware that he was dismissed until 23 December – found that applicant's employment ceased on 23 December – application was lodged 21 days after dismissal took effect – no extension of time required – if application had not been made in time, Commission would have extended time on basis that applicant was not aware of dismissal until 23 December

U2022/721

[2022] FWC 923

Platt C

Adelaide

22 April 2022

Subscription Options

You can subscribe to a range of updates about decisions, award modernisation, the annual wage review, events and engagement and other Fair Work Commission work and activities on the Fair Work Commission’s website. These include:

Significant decisions – This service contains details of recently issued full bench decisions and other significant decisions. Each email contains links to the complete decisions and the Find Commission decisions web page. It is emailed when decisions are published.

All decisions – This service contains details of all recently issued Commission decisions with links to the complete decisions. Each email contains links to the complete decisions and the Find Commission decisions web page. It is emailed up to twice daily.

Websites of Interest

Attorney-General’s Department - www.ag.gov.au/industrial-relations - provides general information about the Department and its Ministers, including their media releases.

AUSTLII - www.austlii.edu.au/ - a legal site including legislation, treaties and decisions of courts and tribunals.

Australian Building and Construction Commission – www.abcc.gov.au/ - regulates workplace relations laws in the building and construction industry through education, advice and compliance activities.

Australian Government - enables search of all federal government websites - www.australia.gov.au/.

Federal Register of Legislation - www.legislation.gov.au/ - legislative repository containing Commonwealth primary legislation as well as other ancillary documents and information, and the Federal Register of Legislative Instruments (formerly ComLaw).

Fair Work Act 2009 - www.legislation.gov.au/Series/C2009A00028.

Fair Work (Registered Organisations) Act 2009 - www.legislation.gov.au/Series/C2004A03679.

Fair Work Commission - www.fwc.gov.au/ - includes hearing lists, rules, forms, major decisions, termination of employment information and student information.

Fair Work Ombudsman - www.fairwork.gov.au/ - provides information and advice to help you understand your workplace rights and responsibilities (including pay and conditions) in the national workplace relations system.

Federal Circuit Court of Australia - www.federalcircuitcourt.gov.au/.

Federal Court of Australia - www.fedcourt.gov.au/.

High Court of Australia - www.hcourt.gov.au/.

Industrial Relations Commission of New South Wales - www.irc.justice.nsw.gov.au/.

Industrial Relations Victoria - www.vic.gov.au/industrial-relations-victoria.

International Labour Organization - www.ilo.org/global/lang--en/index.htm - provides technical assistance primarily in the fields of vocational training and vocational rehabilitation, employment policy, labour administration, labour law and industrial relations, working conditions, management development, co-operatives, social security, labour statistics and occupational health and safety.

Queensland Industrial Relations Commission - www.qirc.qld.gov.au/index.htm.

South Australian Employment Tribunal - www.saet.sa.gov.au/.

Tasmanian Industrial Commission - www.tic.tas.gov.au/.

Western Australian Industrial Relations Commission - www.wairc.wa.gov.au/.

Workplace Relations Act 1996 - www.legislation.gov.au/Details/C2009C00075

Fair Work Commission Addresses

Australian Capital Territory
Level 3, 14 Moore Street
Canberra 2600
GPO Box 539
Canberra City 2601
Tel: 1300 799 675
Fax: (02) 6247 9774
Email: canberra@fwc.gov.au

New South Wales

Sydney
Level 10, Terrace Tower
80 William Street
East Sydney 2011
Tel: 1300 799 675
Fax: (02) 9380 6990
Email: sydney@fwc.gov.au

Newcastle
Level 3, 237 Wharf Road,
Newcastle, 2300
PO Box 805,
Newcastle, 2300

Northern Territory
10th Floor, Northern Territory House
22 Mitchell Street
Darwin 0800
GPO Box 969
Darwin 0801
Tel: 1300 799 675
Fax: (08) 8936 2820
Email: darwin@fwc.gov.au

Queensland
Level 14, Central Plaza Two
66 Eagle Street
Brisbane 4000
GPO Box 5713
Brisbane 4001
Tel: 1300 799 675
Fax: (07) 3000 0388
Email: brisbane@fwc.gov.au

South Australia
Level 6, Riverside Centre
North Terrace
Adelaide 5000
PO Box 8072
Station Arcade 5000
Tel: 1300 799 675
Fax: (08) 8308 9864
Email: adelaide@fwc.gov.au

Tasmania
1st Floor, Commonwealth Law Courts
39-41 Davey Street
Hobart 7000
GPO Box 1232
Hobart 7001
Tel: 1300 799 675
Fax: (03) 6214 0202
Email: hobart@fwc.gov.au

Victoria
Level 4, 11 Exhibition Street
Melbourne 3000
PO Box 1994
Melbourne 3001
Tel: 1300 799 675
Fax: (03) 9655 0401
Email: melbourne@fwc.gov.au

Western Australia
Floor 16,
111 St Georges Terrace
Perth 6000
GPO Box X2206
Perth 6001
Tel: 1300 799 675
Fax: (08) 9481 0904
Email: perth@fwc.gov.au

Out of hours applications

For urgent industrial action applications outside business hours, please refer to our Commission offices page for emergency contact details.

The address of the Fair Work Commission home page is: www.fwc.gov.au/

The FWC Bulletin is a weekly publication that includes information on the following topics:

information concerning notice of matters before the Fair Work Commission
Practice Directions concerning the practice and procedure of the Fair Work Commission
weekly decisions summaries
details of procedural changes and developments within the Fair Work Commission, and
advice regarding the rights and obligations of organisations registered under the Fair Work (Registered Organisations) Act 2009.

For inquiries regarding publication of the FWC Bulletin please contact the Fair Work Commission by email: subscriptions@fwc.gov.au.


	1	TERMINATION OF EMPLOYMENT – incapacity – inherent requirements – mandatory vaccination – s.394 Fair Work Act 2009 – application to deal with unfair dismissal – applicant was Manager and Educational Leader at a daycare and preschool centre – on 23 September 2021 NSW Government issued a Public Health Order which required education and care workers to not work at an early education and care facility on or after 8 November 2021 unless they had received 2 doses of a COVID-19 vaccine or had been issued with a medical contraindication certificate – Public Health Order also required each 'responsible person' take all reasonable steps to ensure that education and care workers comply with the requirements – on 30 September, parties discussed possibility of medical contraindication and applicant said she was going to see a medical practitioner – later on 30 September respondent emailed all staff explaining that workers needed to be double vaccinated or have a medical contraindication certificate by 8 November – on 5 October, respondent followed up about medical contraindication and applicant advised that her medical practitioner would not sign the medical contraindication certificate and had advised her to get vaccinated – applicant said she would be seeking advice from another doctor – on 1 November, respondent told applicant by email that she was being stood down from 8 to 28 November and if after that date she remained unvaccinated with no plans to become vaccinated, respondent would need to terminate her employment – on 11 November respondent terminated applicant's employment via email, effective immediately – Commission found respondent had a valid reason for dismissal because applicant was not able to fulfil requirements of her role from 8 November and there were no alternative duties – applicant had weeks prior to her dismissal to consider whether she would be vaccinated and gave no indication that she intended to be vaccinated in foreseeable future – found applicant was on notice from 1 November that her employment would be terminated if she was not vaccinated and did not have a medical contraindication certificate – while applicant was initially told she would be stood down from 8 to 28 November, respondent changed its position without any prior warning and dismissed applicant on 11 November – this weighed in favour of a finding that dismissal was harsh and unreasonable but applicant accepted in her evidence that even if her employment had continued until 28 November, she would not have had a first vaccine dose by that date – it follows that if dismissal had not taken place on 11 November it would have happened on 28 November and from 11 to 28 November applicant would not have received wages because Public Health Order meant she was not able to work during that time – respondent made repeated invitations for staff to speak with respondent about implementation of Public Health Order and applicant had a number of discussions with respondent – while applicant was not given notice of termination or payment in lieu of notice, she did not have capacity to work at her workplace from 8 November so even if notice had been given, she would not have been entitled to wages during notice period – Commission found dismissal not unfair – application dismissed
Mitchell v Kinda Kapers Holdings P/L
U2021/10745				[2022] FWC 892
Saunders DP			Newcastle	19 April 2022


	2	TERMINATION OF EMPLOYMENT – misconduct – employer policies – ss.391, 394 Fair Work Act 2009 – application for unfair dismissal – applicant employed as a Bus Driver – dismissed for alleged serious misconduct namely inappropriate behaviour towards a passenger – applicant asked a young adult male passenger, who did not pay his fare and sat in a space reserved for disabled passengers, to put face mask he was wearing around his chin on properly – passenger used abusive language towards applicant and at next stop applicant directed passenger to get off the bus – when he refused police were called and other passengers disembarked – letter of termination stated 'your decision to disregard company direction and attempt to enforce the wearing of masks was not consistent with the behaviours and standards outlined in the Surfside Employee Code of Conduct, Drivers Handbook, and recent Safety Communications' – applicant had received earlier warning for talking into her Apple smartwatch to contact parent of a child who had missed their stop – respondent submitted there was a pattern in behaviour of non-compliance or non-conformance with instructions provided by respondent – Commission found that the 2 incidents were unfortunate and perhaps could have been dealt with in a more appropriate manner, but they do not identify a trend – found that applicant did not breach respondent's Code of Conduct in using her smartwatch to contact parent of a child who was travelling on bus – held that smartwatch is not a mobile phone or an iPod, which are the 2 devices identified in respondent's Code of Conduct – found that applicant did not engage in any 'enforcement' activity regarding face masks – applicant did not: tell passenger to get off bus for not wearing a mask, stop the bus, seek to argue about mask mandate with passenger, or seek to leave her seat to confront passenger – applicant simply asked passenger to put on his mask, while continuing to drive the bus – applicant did not ask passenger to leave the bus because he refused to wear his mask, but because he verbally abused applicant – applicant did not breach respondent's policy – respondent had no valid reason to terminate applicant – if Commission was wrong and respondent did have a valid reason, then applicant's termination was harsh (because it was disproportionate to the gravity of the misconduct) and unreasonable and as a result unfair – Commission could see no reason why applicant should not be reinstated to her former role – ordered reinstatement, that continuity of service be maintained and lost wages paid.
Logsdon v Surfside Buslines P/L
U2021/9103				[2022] FWC 392
Riordan C			Sydney	22 April 2022


	3	GENERAL PROTECTIONS – dismissal dispute – certificate – s.365 Fair Work Act 2009 – general protections dismissal dispute involving 9 applicants and one respondent – applicants alleged they were dismissed for reasons including their decision not to be vaccinated against COVID-19 or not to disclose their vaccination status to respondent – applicants requested that Commission issue a statement of 'material facts' (Material Facts Request) – respondent requested that Commission issue a certificate under s.368(3)(b) of the Fair Work Act to the effect that arbitration under s.369 or a general protections court application would not have a reasonable prospect of success (Certificate Request) – Commission noted in relation to Material Facts Request that what applicants seek 'appears to go well beyond matters of an obvious or uncontentious nature' and were 'highly contentious matters' – applicants' submissions asked, inter alia, whether it was a 'fact' that: the CEOs of Virgin Australia and Jetstar Australia issued employees a 'non-negotiable demand to be covid-injected'; any employment termination demand automatically obliterates mandatory lawfully obligated valid consent to injections; and the CEOs knew or ought to have known of existing binding law on injecting practitioners of the 'Federal Immunisation Guidelines Criterion 2' – Commission found it was not possible to determine the matters raised by applicants other than through arbitration in the Commission or in court – noted that each applicant previously sought that certain 'questions of law and fact' be referred by President of Commission to the Full Bench and President rejected that application in the context of Le v Virgin Australia Airlines P/L – the President in Le v Virgin Australia Airlines P/L noted that the Fair Work Act limits how the Commission can deal with general protections applications involving dismissal – under s.368(1), the Commission must deal with the dispute other than by arbitration – Commission only has jurisdiction to arbitrate if the preconditions in s.369(1) are satisfied, namely that Commission has issued a certificate under s.368(3)(a) and the parties have notified Commission within the relevant timeframe that they consent to Commission arbitrating the dispute – a s.368(3)(a) certificate has not been issued to applicants and the conditions in s.369(1) have not been satisfied, therefore the Commission's jurisdiction is presently limited to dealing with the 9 applications in a non-determinative way, such as by conference – Commission found that it had no jurisdiction to grant applicants' Material Facts Request – in relation to the Certificate Request, Commission noted that forming a view that arbitration or a court application would not have a reasonable prospect of success 'should only be reached with extreme caution…where the application is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable' [Salva Resources P/L] – Commission noted that at this stage, it had not seen detailed evidence or made findings of fact on the merits of the applications as that may only be done after Commission has issued a s.368(3)(a) certificate – Commission not satisfied that the applications would not have a reasonable prospect of success if they proceeded to arbitration in the Commission or to a court and declined to issue s.368(3)(b) certificate – respondent's Certificate Request was refused – in relation to finalising the 9 applications, Commission noted that applicants submitted that they did not want a s.368(3)(a) certificate issued and wanted conciliation to continue in good faith – Commission held it did not see a purpose in continuing conciliation where the applicants chose not to put forward a proposal for resolution of the dispute – observed that the conciliation that took place before the Commission 'was notable because of the complete unwillingness of the applicants to put forward proposals for resolution, with it being maintained through their representative that they instead sought the Commission to issue an opinion on the matters they saw as being relevant to the applications' – Commission satisfied that all reasonable attempts to resolve the disputes (other than by arbitration) have been or are likely to be unsuccessful – s.368(3)(a) certificate to be issued.
Dolevski and Ors v Virgin Australia Airlines P/L
C2021/8930 and Ors				[2022] FWC 903
Wilson C			Melbourne	19 April 2022


	4	TERMINATION OF EMPLOYMENT – incapacity – inherent requirements – mandatory vaccination – s.394 Fair Work Act 2009 – application for an unfair dismissal remedy – applicant employed for 6 years as a project officer for respondent, a health provider – in September 2021, Victorian Government issued public health directions which required respondent to ensure staff were vaccinated against COVID-19 unless they had a medical contraindication before respondent allowed staff to enter healthcare facility – on 6 October applicant informed respondent that she did not intend to be vaccinated and asked to work from home indefinitely – on 12 October respondent notified applicant it had not been informed of her vaccination status and that it held the view that a failure to be demonstrate vaccination or exemption meant applicant would be unable to meet inherent requirements of her job – in further discussions applicant maintained that she did not intend to be vaccinated and it would be reasonable for respondent to permit her to work from home – on 25 October, respondent issued a show cause letter which stated that working from home was unsustainable on a permanent basis, vaccination was an inherent requirement of employment for all staff unless they were exempt, and respondent was considering terminating applicant's employment – on 15 November respondent dismissed applicant because she could not legally attend the workplace due to public health directions – Commission considered Titan Plant Hire P/L v Shaun Van Malsen – Commission considered applicant's contract, public health directions, inherent requirements of applicant's job – satisfied respondent had a valid reason for dismissal related to capacity, because applicant could not fulfil the inherent requirements of her job without providing respondent her vaccination information – Commission considered whether dismissal was harsh, unjust or unreasonable – found applicant was on notice by 25 October that her dismissal was being contemplated – found no procedural defects in the manner in which applicant was dismissed – found applicant's dismissal not unfair – application dismissed.
Gee v Eastern Health
U2021/11219				[2022] FWC 932
Wilson C			Melbourne	22 April 2022


	5	CONDITIONS OF EMPLOYMENT – stand down – ss.524, 526 Fair Work Act 2009 – application to deal with a dispute involving stand down – applicant was manager of a gym – from August 2021, NSW Government public health orders required that respondent close the gym – on 29 September 2021, respondent notified applicant that she had been stood down without pay until further notice under s.524 Fair Work Act – respondent submitted that it explored whether applicant would like to teach online exercise classes – applicant submitted the offer was not appropriate given her role as a manager rather than a class instructor and that she refused this offer for various reasons including that she was not trained to do online classes, had no equipment to record and present the classes, and had no separate room in her home to film the classes – applicant submitted that during lockdown, a staff member was promoted to new role of Marketing Manager and this role was not offered to applicant – respondent submitted that the only other work available during stand down period was occupational health work which only qualified health professionals could carry out – applicant resigned on 22 November 2021 – applicant seeks to be paid for period between 30 September 2021 and 31 January 2022 or alternatively a redundancy payment – Commission considered whether applicant could usefully be employed during stand down period, under s.524(1) – applicant submitted she could have done online wellness coaching, accounts, business development, outdoor classes or newsletters – respondent submitted that no positions were available that matched applicant's skill set – the person promoted to Marketing Manager was head of graphic design and had a degree in marketing – Commission accepted that applicant was unlikely to have been able to carry out online classes if she was not appropriately trained as an instructor – accepted there was no other suitable work available from 29 September – Commission considered whether there had been a stoppage of work that respondent could not reasonably be held responsible for, under s.524(1)(c) – noted that the absence of useful work created by a stoppage of work must be the cause of any stand down [Bristow Helicopters Australia P/L] – found that respondent was subject to public health orders that required it to cease operation of the gym and the entity that contracted respondent to operate the gym had directed that the respondent not operate the gym during the relevant period – Commission found that the gym ceased operation and this amounted to a stoppage of work which was caused by the public health orders and the direction not to operate – held that applicant could not usefully be employed because of a stoppage of work for causes for which respondent could not reasonably be held responsible – Commission found that considerations of fairness weighed against the orders sought by the applicant being made – noted that applicant had accrued a significant annual leave balance and was given the option to request to use those entitlements during stand down period, which would have mitigated the negative financial impact of the stand down, but applicant declined to access her leave – found that stand down was in accordance with s.524 – declined to make orders sought by applicant – application dismissed
McDonald v Corporate Health Management
C2021/7830				[2022] FWC 921
Matheson C			Sydney	21 April 2022


Application by Hampson
ANTI-BULLYING – reasonable management action – working from home application – s.789FC Fair Work Act 2009 – application for order to stop bullying – applicant worked at a university – person named in application was applicant's supervisor – applicant alleged supervisor told applicant to adopt her students' work as her own – Commission concluded that supervisor was not proposing that applicant plagiarise students' work or publish students' work without the relevant student being a co-author – found that it appeared from the evidence to be common for students to work with their supervisors to jointly publish papers, which may involve the academic using their knowledge and experience to develop a student's work to a quality that can be published – found that what the supervisor was proposing was consistent with university policy – appeared that supervisor was giving advice to applicant about achieving research targets – applicant alleged supervisor gave her a gift card as incentive to take his advice – Commission did not accept that offering a gift card amounted to bullying – in January 2021, applicant submitted to supervisor a request to work from home for 5 years because of health issues – supervisor declined work from home request for 5 years – Commission found applicant made 7 requests to work from home and all were approved except the request to work from home for 5 years – Commission found that the advice that supervisor received was that applicant was fit to attend work – Commission did not find supervisor's email regarding work from home request amounted to bullying – Commission did not find supervisor bullied applicant – application dismissed.
SO2021/15		[2022] FWC 935
Simpson C	Brisbane	22 April 2022


James v Alconbury P/L atf The Woodfield Trust
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – unfair dismissal application stated that applicant's dismissal took effect on 23 December 2021 – application was lodged on 13 January 2022 – respondent raised jurisdictional objection that applicant last worked on 12 November 2021, dismissal occurred on that date, and thus the application was not lodged within 21-day period after the dismissal took effect – applicant submitted inter alia that: his last day of work was 21 November; applicant asked to be put back on work roster on 23 November but manager advised by text message that 'the best thing is for us to part ways and you start at a fresh work place'; applicant contacted respondent's accounts department on 24 November to enquire as to status of his employment; on 20 December applicant again emailed accounts department; and on 23 December applicant called head office who told him he no longer had a job – at hearing, respondent submitted that applicant's employment ceased on 23 November when manager sent the text message – Commission noted dismissal does not take effect until employee is aware that they have been dismissed or at least had a reasonable opportunity to become so aware [Ayub v NSW Trains] – Commission held that manager's statement that 'the best thing is for us to part ways and you start at a fresh work place' does not amount to cessation of employment – it was not until applicant contacted head office on 23 December that he was clearly told he was no longer employed – Commission found applicant did not have a reasonable opportunity to become aware that he was dismissed until 23 December – found that applicant's employment ceased on 23 December – application was lodged 21 days after dismissal took effect – no extension of time required – if application had not been made in time, Commission would have extended time on basis that applicant was not aware of dismissal until 23 December
U2022/721		[2022] FWC 923
Platt C	Adelaide	22 April 2022

Australian Capital Territory Level 3, 14 Moore Street Canberra 2600 GPO Box 539 Canberra City 2601 Tel: 1300 799 675 Fax: (02) 6247 9774 Email: canberra@fwc.gov.au	New South Wales Sydney Level 10, Terrace Tower 80 William Street East Sydney 2011 Tel: 1300 799 675 Fax: (02) 9380 6990 Email: sydney@fwc.gov.au	Newcastle Level 3, 237 Wharf Road, Newcastle, 2300 PO Box 805, Newcastle, 2300

Northern Territory 10th Floor, Northern Territory House 22 Mitchell Street Darwin 0800 GPO Box 969 Darwin 0801 Tel: 1300 799 675 Fax: (08) 8936 2820 Email: darwin@fwc.gov.au	Queensland Level 14, Central Plaza Two 66 Eagle Street Brisbane 4000 GPO Box 5713 Brisbane 4001 Tel: 1300 799 675 Fax: (07) 3000 0388 Email: brisbane@fwc.gov.au	South Australia Level 6, Riverside Centre North Terrace Adelaide 5000 PO Box 8072 Station Arcade 5000 Tel: 1300 799 675 Fax: (08) 8308 9864 Email: adelaide@fwc.gov.au

Tasmania 1st Floor, Commonwealth Law Courts 39-41 Davey Street Hobart 7000 GPO Box 1232 Hobart 7001 Tel: 1300 799 675 Fax: (03) 6214 0202 Email: hobart@fwc.gov.au	Victoria Level 4, 11 Exhibition Street Melbourne 3000 PO Box 1994 Melbourne 3001 Tel: 1300 799 675 Fax: (03) 9655 0401 Email: melbourne@fwc.gov.au	Western Australia Floor 16, 111 St Georges Terrace Perth 6000 GPO Box X2206 Perth 6001 Tel: 1300 799 675 Fax: (08) 9481 0904 Email: perth@fwc.gov.au

FWC Bulletin

Contents

Last issue of weekly FWC Bulletin

Common vaccination related issues we deal with

Decisions of the Fair Work Commission

Other Fair Work Commission decisions of note

Subscription Options

Websites of Interest

Fair Work Commission Addresses