Fair Work Act 2009
s.394—Unfair dismissal

Ashleigh Curnow
v
Goodstart Early Learning
(U2022/180)

Application for an unfair dismissal remedy.

[1] This decision concerns an application for an unfair dismissal remedy made by Ms Ashleigh Curnow under s.394 of the Fair Work Act 2009 (the Act). From 21 September 2020 until 17 December 2021, Ms Curnow worked on a full-time basis as an Assistant Director at Goodstart Early Learning (Goodstart). Ms Curnow was dismissed for both being unable to meet the inherent requirements of her job and for refusing to follow lawful and reasonable directions.

[2] Ms Curnow had refused to provide Goodstart with proof that she had been vaccinated against COVID-19 or, alternatively, proof of any medical exemption. Pursuant to the Covid-19 Mandatory Vaccination Directions (No 5), Goodstart was prohibited from allowing workers to attend for work from 18 October 2021 unless they had provided Goodstart with evidence by 18 October 2021 that they had been vaccinated against COVID-19 or had made an appointment to receive a vaccination by 25 October 2021. Ms Curnow contends that her dismissal was unfair and seeks compensation.

Initial matters to be considered – s.396 of the Act

[3] Section 396 requires that I decide four matters before considering the merits of Ms Curnow’s application. I am satisfied of the following. First, the application was made within the 21-day period required by s.394(2). Secondly, there is no dispute that Ms Curnow was a person protected from unfair dismissal. Thirdly, the dismissal was not a genuine redundancy. Fourthly, Goodstart is not a small business employer, and the Small Business Fair Dismissal Code is, therefore, inapplicable.

Was the dismissal unfair? – s.385 of the Act

[4] A dismissal is unfair if I am satisfied on the evidence before me that all of the circumstances set out in s.385 of the Act existed. Section 385 of the Act provides the following:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[5] There is no reason to dispute that Ms Curnow was dismissed (s.385(a)) and, as outlined above, that this case was not a case of genuine redundancy (s.385(d)), or a matter that involves a small business such that consideration needs to be given to the question of whether Ms Curnow’s dismissal was consistent with the Small Business Fair Dismissal Code (s.385(c)).

[6] The remaining factor of which I need to be satisfied is whether the dismissal was harsh, unjust or unreasonable (s.385(b)). In doing so, I must give consideration to s.387 of the Act:

“387 Criteria for considering harshness etc

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Background

[7] The matters below are not in dispute except where indicated.

[8] Goodstart is a not-for-profit childcare provider operating 674 centres nationally.

[9] Ms Curnow started working as an Assistant Director for Goodstart on 21 September 2020 at Goodstart’s Dandenong Princess Highway Centre. She was sent and accepted an offer of employment (the OE) on or around 3 September 2020. The OE includes the following clause regarding immunisation:

“Immunisation - It is a condition of any employment in a Goodstart centre that you remain fully immunised against whooping cough, measles, mumps and rubella. Goodstart will require you to provide evidence of such immunisation before commencing employment. In the event that you cannot be immunised for a medical reason, we will require from you a letter from your Medical Doctor stating that you are unable to be immunised for medical reasons. You will not be able to work in a Goodstart nursery room or with immunocompromised staff or children. Should you cease to remain fully immunised at any stage, your engagement will be terminated immediately, unless you have provided the necessary medical evidence stating that you are unable to be immunised for medical reasons. It is your responsibility for the cost of acquiring and maintaining the immunisations.”

[10] It specified that the Goodstart Early Learning Enterprise Agreement 2016 (the 2016 Goodstart Agreement) would govern her employment. The Goodstart Early Learning Enterprise Agreement 2021 (the 2021 Goodstart Agreement), which covered Ms Curnow’s employment from August 2021, includes a vaccination clause as follows:

“Immunisation – This clause applies where there is a legislative or Employer requirement for an Employee to be immunized against certain infectious diseases because of the nature of the Employee duties, the Employee must comply with that requirement”

[11] The OE also included the following:

“Operation of Goodstart Early Learning Policies

You agree to comply with Goodstart Early Learning policies and procedures that may be implemented and varied from time to time. You agree that these policies and procedures do not vest enforceable rights in you.”

[12] The work performed by Assistant Directors includes covering staff absences, supervising and mentoring educators, conducting tours and completing administrative tasks.

[13] Against the background of COVID-19, Goodstart wanted to mandate COVID-19 vaccination for all its staff. In August 2021, Goodstart consulted with the relevant unions which gave their support for same. Goodstart’s Infectious Disease and Immunisation Requirement (the Policy) was amended accordingly.

[14] As part of the plan for the re-opening of schools and early childhood centres, on 22 September 2021, the Victorian Government announced that:

“In order to work, all staff in schools and early childhood services will be required to have a first dose by 18 October or have a booking within one week, with full vaccination required by 29 November unless a medical exemption applies – including in government and non-government schools and all types of early childhood and care settings.” 1

[15] Goodstart was required to comply with the Victorian Government’s mandatory vaccination requirements. At the time of Ms Curnow’s dismissal, the operating order was the Pandemic COVID-19 Mandatory Vaccination (Specified Facilities) Order 2021 (No. 1) (No 1 Order). The   relevant directions, in very similar terms, came into effect on 1 October 2021 under the Covid-19 Mandatory Vaccination Directions (No 5) (No 5 Directions). I refer to the various directions collectively as “the Directions”. The No 5 Directions required Goodstart to:

•  Collect, record and hold vaccination information in relation to their workers (see clause 4); and

•  Take all reasonable steps to ensure that, on or after 18 October 2021, a worker who is unvaccinated does not enter, or remain on, the premises of a specified facility for the purposes of working at the facility (see clause 5(1)).

[16] On 27 September 2021, Goodstart:

•  Wrote to all employees informing them that they needed to receive a COVID-19 vaccination as per the Policy; 2 and

•  Was required to close the Dandenong Princess Highway Centre due to a positive COVID-19 case onsite to allow for a deep clean of the centre.

[17] Ms Curnow was identified as a close contact and was required to isolate and work from home until 11 October 2021. During this time Goodstart paid Ms Curnow “special infectious disease leave”.  By way of an email on 28 September 2021, Ms Curnow informed Goodstart that she was unwilling to undergo the Day 13 PCR test and that she would not be vaccinated. As a result of not having the PCR test, Ms Curnow was required to isolate until 21 October 2021.

[18] In correspondence unrelated to the PCR test and Ms Curnow’s subsequent home isolation, Goodstart wrote to Ms Curnow on 5 October 2021 to inform her that they had not received evidence of a first or second dose of the COVID-19 vaccination, re-stating the requirements of the No 5 Directions regarding mandatory vaccination for those working in early childhood centres and stating that:

“Any staff members who have not received mandated COVID-19 vaccinations by the above dates or whom are unable to obtain a medical contraindication certificate from their doctor will not be able to attend early childhood educational settings.”

[19] On the same day, Ms Curnow requested an exemption from COVID-19 vaccination from Goodstart.

[20] On 11 October 2021, Ms Curnow was stood down during this second isolation period and was allowed to take accrued leave. Ms Curnow’s correspondence in reply on 15 October 2021 included a cover note that stated, “I have attached another letter that details further questions given no response was provided and the relevant legislation and high court cases as evidence of such legislation. I have also included vaccination warranty form.” Ms Curnow raised several issues including the application of the Privacy Act  1988 (Cth), confidentiality between  a doctor and their patient, the Commonwealth Constitution (specifically in reference to s.51(xxiiiA)), evidence that every other Goodstart member does not carry HIV, hepatitis A or B, tuberculosis, influenza, STD, measles, mumps, the common cold and any other communicable diseases and whether Goodstart could remove any COVID-19 vaccination from her body when she stopped working for them.

[21] As per the No 5 Directions, the deadline for first dose vaccination was 18 October 2021. Ms Curnow was not permitted to return to work as she had not complied with the Directions; that is, she had not received her first dose of a COVID-19 vaccination, nor had she made an appointment to do so. There was a series of email exchanges on the issue between Ms Curnow and Goodstart which included challenges to the legality of vaccination mandates.

[22] Ms Curnow accepted an offer from Goodstart to pay for a medical doctor to consult with her.  That doctor, Dr Mattsson, did consult with Ms Curnow and subsequently advised Goodstart that he did not believe Ms Curnow had a medical condition that would place her at an increased risk of an adverse reaction if she received a COVID-19 vaccination. Accordingly, Goodstart informed Ms Curnow that she was not exempted from the COVID-19 vaccination requirement.

[23] From 4 November to 12 November 2021, Ms Curnow sent a series of emails raising concerns about the medical consultation with Dr Mattsson, requesting another medical appointment and raising additional questions regarding the Directions and Goodstart’s policy. Goodstart responded, including by arranging a second medical consultation with Resile, but this clinic was not able to make contact with Ms Curnow.

[24] Over the months of October, November and December in 2021, Ms Curnow did not provide any evidence to Goodstart that she had been vaccinated and, accordingly, was not permitted to attend at work.

[25] Goodstart sent a “show cause” letter on 2 December 2021. The letter repeated the need for childcare workers to be vaccinated, as per the Directions and as per the Policy, and informed Ms Curnow that by failing to have the COVID-19 vaccination, and remaining unwilling to do so, she was unable to satisfy an ongoing condition of her employment because vaccination would allow her to perform her duties safely and without risk to herself or anyone else. Goodstart also offered a meeting with the relevant Area Manager or a member of People and Culture to discuss the COVID-19 vaccination requirement.

[26] The next day, Ms Curnow responded that it was a personal choice to not have the vaccination and maintained her position that she would not be vaccinated.

[27] A termination letter was sent to Ms Curnow on 17 December 2021, which included the following:

“We have taken the time to consider all of the information supplied by you, your exemption request, and all responses (both written and verbal) regarding this matter. We consider that by not being vaccinated against COVID-19, you fail to satisfy an ongoing condition of your employment, and that your employment should end as a result.”

[28] In her job as Assistant Director, Ms Curnow could not work from home on a permanent basis. 3  Although there are positions within Goodstart that do not require employees to enter a childcare centre, there were no relevant vacancies at the time of Ms Curnow’s dismissal and, in any case, all Goodstart employees are required to be vaccinated against COVID-19 as per the Policy.

[29] On 17 December 2021, Paul Wetherall, Goodstart Operations Manager, had a conversation with Ms Curnow during which she hung up and told him that “Goodstart can go f… themselves.” 4 

[30] Ms Curnow is now vaccinated and is employed on an annual salary of $94,000.00. Her annual salary at Goodstart was approximately $64,000.00.

Submissions of the parties

Ms Curnow

[31] Ms Curnow’s primary submission as to why her dismissal was unfair is that she was not consulted with regarding the change in the Goodstart vaccination Policy that was amended to include vaccination against COVID-19, and she relied on Construction, Forestry, Maritime, Mining and Energy Union (105N) & Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059 (Mt Arthur Coal). She says that if she were asked, she would not have agreed to the change in her contract to include COVID-19 vaccinations. Ms Curnow says that her employment contract was unlawfully changed when it was amended to include a COVID-19 vaccination in the list of vaccinations that she was required to take as a condition of her employment.

[32] She also contends that her agreement to comply with the 2016 Goodstart Agreement is conditional upon her assessment as to whether a policy is reasonable. She contends that “[r]equiring me to undergo a clinical trial to keep my employment is not a reasonable condition of employment.”

[33] Other submissions from Ms Curnow, that were not pressed at the determinative conference, included that having the vaccination would put her at risk of “a possible unnatural reaction”, and that, once vaccinated, she could not be unvaccinated. She also questioned the legality and efficacy of the vaccination.

[34] Ms Curnow says that she did not feel supported through the process of discussing the COVID-19 vaccination mandate. She says, “I was told I couldn’t attend my place of work, even to collect my belongings. Pre generated emails offering support are not support.” Ms Curnow says that while she was on unpaid leave from 18 October 2021, she relied on her personal savings and borrowed funds. She was dismissed on 17 December 2021 and Ms Curnow says she suffered further because she was not paid until after Christmas.

[35] Ms Curnow does not dispute the contention by Goodstart that she was unable to work at a childcare centre without being vaccinated.

[36] At the determinative conference, Ms Curnow said words to the effect of “[t]he being able to work and not work is irrelevant to my point. They brought in policy that I didn’t agree with.”

Goodstart

[37] Goodstart submits that the two valid reasons for dismissal relate to capacity and to conduct and that Ms Curnow’s application ought to be dismissed.

[38] In relation to valid reason relating to capacity, Goodstart says that an inherent requirement of Ms Curnow’s role as Assistant Director necessitated that she attend a childcare centre because some of her role cannot be performed at home. Ms Curnow does not dispute this.

[39] Goodstart says that, in accordance with the No 5 Directions, it was required to:

“(a) collect, record and hold vaccination information in relation to their workers and

(b) take all reasonable steps to ensure that, on or after the relevant date, a worker who is unvaccinated does not enter, or remain on, the premises of a specified facility for the purposes of working at the facility.”

[40] Goodstart says that in complying with the Directions, and as a consequence of her refusal to provide any evidence that she had been vaccinated or that she had a relevant exemption, Ms Curnow could not attend work at its premises to perform her job and, accordingly, they had a valid reason to dismiss Ms Curnow based on capacity.

[41] Goodstart says that Ms Curnow’s failure to follow a lawful and reasonable direction is a second valid reason for dismissal relating to her conduct.

[42] Goodstart says it was lawful and reasonable to require Ms Curnow to provide evidence of her vaccination. In contending that this requirement was reasonable, Goodstart relies on Ms Curnow’s employment contract, specifically Ms Curnow’s acceptance of the OE which included Goodstart’s policies and procedures as amended from time to time and clause 17.6 of the 2021 Goodstart Agreement.

[43] Goodstart says the decision in Mt Arthur Coal does not apply because it did consult with the relevant unions and that it was not required to consult with Ms Curnow and relied on the terms of the OE and the 2021 Goodstart Agreement.

[44] Goodstart says that it was required by law to enforce the requirement that Ms Curnow provide evidence of her vaccination status before a decision could be made to allow her on Goodstart’s premises. In relying on Barbara Roman v Mercy Hospitals Victoria [2022] FWC 711, Goodstart says:

“A direction to an employee to do something that is a necessary condition for a state of capacity to do his or her job is a lawful direction.”

[45] With regards to notification of the reason for the dismissal and the opportunity to respond, Goodstart says that there was a three-month period of encouraging Ms Curnow’s compliance with the Directions.

[46] As to other matters as per s.387(h), Goodstart submits that the Commission should take into account that they arranged and paid for medical costs relating to COVID-19 assessments for Ms Curnow and paid her “infectious diseases leave” when she was initially forced into isolation. It further contends that a payment in lieu of notice mitigates financial distress that may have arisen from the dismissal.

Consideration

[47] I will now consider whether Ms Curnow’s dismissal was unfair. That is, whether the dismissal was harsh, unjust or unreasonable. In doing so, I must consider each of the criteria set out in s.387 as reproduced above.

Was there a valid reason for dismissal relating to Ms Curnow’s capacity or conduct (s.387(a))?

[48] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” and should not be “capricious, fanciful, spiteful or prejudiced.” 5 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.6

[49] In Crozier v AIRC 7 it was found that:

“A reason will be “related to the capacity” of the employee where the reason is associated or connected with the ability of the employee to do his or her job.”

[50] In my view, Goodstart had a valid reason to dismiss Ms Curnow because she was unable to do her job. To do her job, Ms Curnow had to physically attend the childcare premises of Goodstart. Ms Curnow had not provided Goodstart with evidence that she had been vaccinated against COVID-19, or that she had a medical exemption. Goodstart was legally prohibited from allowing Ms Curnow to enter her workplace, which was Goodstart’s Dandenong Princess Highway Centre.

[51] The Directions applied to Ms Curnow, the result of which was that from 18 October 2021, Goodstart was legally required to ensure that any of its employees attending its premises complied with the Directions. The effect of this was that, as at this date, employees needed to provide proof of vaccination or proof of a medical exemption.

[52] Over the months of October to December 2021, Ms Curnow had not provided proof of her vaccination status. As at 2 December 2021, when Goodstart sent a show cause letter, Ms Curnow had still not provided the required information.

[53] As an Assistant Director of a childcare centre, she could not attend work premises. She could not perform her job from elsewhere.

[54] In these circumstances, Goodstart was entitled to conclude Ms Curnow would remain unvaccinated.

[55] In oral evidence, even Ms Curnow conceded that point when she said:

“I accept that I would not have been able to work once the Victorian mandates had been applied. That’s not what I’m challenging. I’m challenging the Goodstart changing the terms of my employment contract. I understand that I wouldn’t have been able to have worked from the 25th onwards.”

[56] From 18 October 2021, Ms Curnow was unable to do her job because her employer was legally prohibited from allowing her to attend the workplace. I am satisfied that Goodstart had a good and substantial reason and, therefore, a valid reason, relating to Ms Curnow’s capacity, to dismiss her.

[57] The second reason Goodstart relies upon in their contention that Ms Curnow’s dismissal was not unfair is that she refused to follow a lawful and reasonable direction.

[58] I adopt Deputy President Colman’s summary of the law relating to lawful directions: 8

“Implied into the contract of employment is an obligation of an employee to obey the employer’s lawful and reasonable directions (Bayley v Osborne (1984) 4 FCR 141 at 145). The requirement that the direction be lawful has two dimensions. One is that the employer cannot demand that an employee act unlawfully. The other is that the direction must be within the scope of the contract of employment (see R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621-2 per, Dixon J). The latter reflects the ‘general rule … that a contract by which a person is employed in a specific character is to be construed as obliging him to render, not indeed all service that may be thought reasonable to render, but such service only as properly appertains to that character’ (see Commissioner for Government Transport v Royall (1966) 116 CLR 314 at 322, per Kitto J).”

[59] I do not accept Ms Curnow’s contention that the change to Goodstart’s policy to include a mandate for COVID-19 vaccination is unlawful and unreasonable.

[60] Goodstart’s direction to Ms Curnow to provide information regarding her vaccination status did not require Ms Curnow to act unlawfully. Goodstart was required by the No 5 Directions to seek that information from Ms Curnow and to not allow her to enter their premises for work unless she had provided them with the relevant information regarding her vaccination status. As per Barbara Roman v Mercy Hospitals Victoria Ltd 9 “… a direction to an employee to do something that is a necessary condition for a state of capacity to do his or her job is a lawful direction.”

[61] The scope of Ms Curnow’s employment contract included requirements for vaccination. That the policy and requirements for vaccination which formed part of Ms Curnow’s employment contract were amended to mandate a COVID-19 vaccination is not, as Ms Curnow contends, a change of her employment contract. In the OE, there was scope for a change in policy and a statement that the policies relevant to Ms Curnow’s employment “varied from time to time”. Ms Curnow accepted the OE and necessarily accepted the terms of employment contained and referred to within it. I accept Goodstart’s submissions that they consulted with relevant unions and that they were not required to consult with Ms Curnow individually.

[62] In all the circumstances, I am of the view that Goodstart’s direction was a reasonable one. I do not accept Ms Curnow’s submission that the direction was unreasonable because in order to keep her job she was required to “undergo a clinical trial.” 10 Ms Curnow worked in a childcare centre. A government health order added additional legal prohibitions on its operations, the consequence of which required them to obtain information regarding the vaccination status of its employees and to prevent employees who had not complied with the Directions from attending work on site. Goodstart faced penalties if they did not comply. In these circumstances, it was a reasonable direction to Ms Curnow to provide information of her vaccination status.

[63] Goodstart, therefore, had a second valid reason to dismiss Ms Curnow; that is, misconduct for refusing to follow a lawful and reasonable direction.

Was Ms Curnow notified of that reason (s.387(b)) and given an opportunity to respond (s.387(c))?

[64] I am satisfied that Ms Curnow was notified of the reason for her dismissal and given ample opportunity to respond.

[65] On 20 October 2021, when Ms Curnow was advised that if she could not provide confirmation that she had received a COVID-19 vaccination or had an appointment within the week to have one, a failure to follow reasonable management direction may result in formal consequences. It was a reasonable and lawful direction to Ms Curnow to comply with same. Goodstart informed Ms Curnow that she was not able to work if she could not comply with the Directions and the Policy.

[66] Ms Curnow’s dismissal was foreshadowed in correspondence on 16 November 2021.

[67] In a letter sent by Goodstart on 2 December 2021, Ms Curnow was advised, amongst other things, that Goodstart needed to comply with the Victorian Government laws regarding vaccination and, further, that the Policy required Ms Curnow to be vaccinated against COVID-19. Ms Curnow was given an opportunity to respond by 17 December 2021. This “show cause” letter followed months of discussion between Ms Curnow and Goodstart which canvassed a broad range of issues including alternatives to vaccination, the legality and efficacy of vaccination mandates and exemptions to COVID-19 vaccinations.

[68] Ms Curnow responded to the 2 December 2021 letter by stating that she believed Goodstart was breaching its contract with her and that “…directing me to have this vaccination is putting me at risk whereas not having the vaccination has no risk.” 11

[69] On 17 December 2021, Ms Curnow was notified that her employment would be terminated immediately.

Was there a reasonable refusal by Goodstart to allow a support person (s.387(d))?

[70] No submissions were made on the issue of a support person. This consideration is not relevant in this case.

Was Ms Curnow warned about unsatisfactory performance before the dismissal (s.387(e))?

[71] Where dismissal relates to unsatisfactory performance, the Commission is required to consider whether the person has been warned about the unsatisfactory performance prior to dismissal. In this matter, Ms Curnow’s employment was not terminated for unsatisfactory performance and this consideration is not relevant.

Impact of the size of the employer on procedures followed (s.387(f)) and impact of the absence of dedicated human resources management specialists or expertise on procedures followed (s.387(g))

[72] Neither was it contended that Goodstart is a small business or lacked human resources expertise. These factors are not relevant in this case.

What other matters are relevant (s.387(h))?

[73] The Commission is required to take into account other matters it considers relevant. Ms Curnow held concerns about the COVID-19 vaccinations. She did not want to be vaccinated and the choice was hers to make. Her employer had no such choice, as they were required to comply with the law.

[74] Ms Curnow advanced several other matters she says support her contention that her dismissal was unfair.

[75] The evidence does not support Ms Curnow’s contentions that Goodstart treated her like a nuisance and that she was not supported through the discussions regarding her vaccination concerns. Goodstart responded to Ms Curnow over several months. This included their responses to Ms Curnow on the following issues: the efficacy and legality of COVID-19 vaccinations and whether they were part of a clinical trial. Goodstart arranged and paid for a medical examination to ascertain whether Ms Curnow would qualify for a vaccination exemption. At her request, they arranged a second medical assessment. Despite repeated efforts, the clinic was unable to contact Ms Curnow. I find that Goodstart was generous in their consideration of Ms Curnow’s concerns and in responding to same.

[76] Ms Curnow says that when she was dismissed on 17 December 2021, she did not receive her final pay-out until after Christmas and that she suffered financially. I accept Goodstart’s submission that the financial effects of dismissal were mitigated by providing Ms Curnow a payment in lieu of notice while she was on unpaid leave. Goodstart also submits that the Commission should take into consideration the voluntary special payment classified as “infectious diseases leave” they gave to Ms Curnow while she was isolating between 27 September and 11 October 2021.

[77] Having considered and weighed the matters in relation to s.387(h) of the Act, I consider these factors weigh slightly in favour of a finding that the dismissal was not unfair.

Conclusion

[78] Having considered each of the matters specified in s.387 of the Act, I am satisfied that Ms Curnow’s dismissal was not harsh, unjust or unreasonable. I find that Ms Curnow’s dismissal was not unfair, and her application is dismissed.

[79] An order to this effect will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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 1   Witness statement of Juvena Rowe, annexure JR-5.

 2   Ibid, annexure JR-6.

 3   Ibid, paragraph 33.

 4   Ibid, paragraph 58.

 5   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

 6   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

 7   Crozier v AIRC [2001] FCA 1031; (2000) 50 AILR.

 8   Barbara Roman v Mercy Hospitals Victoria Ltd [2022] FWC 711, [30].

 9   [2022] FWC 711, [31].

 10   Witness statement of Ashleigh Curnow, paragraph 16.

 11   Witness statement of Juvena Rowe, annexure JR-29.