| FWC 186 [Note: An appeal pursuant to s.604 (C2022/1056) was lodged against this decision – refer to Full Bench decision dated 10 May 2022 [ FWCFB 37] for result of appeal.]|
|FAIR WORK COMMISSION|
Fair Work Act 2009
COG Regional Team Pty Ltd
DEPUTY PRESIDENT COLMAN
MELBOURNE, 28 JANUARY 2022
Application under s 365 – casual employee refused to provide proof of vaccination to employer – employer ceased to roster applicant for work – employer ready to roster applicant if he becomes eligible to attend work – no dismissal – application dismissed
 The following is an edited version of a decision delivered ex tempore earlier today.
 Mr Shane Varichak has made an application under s 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving an alleged dismissal under Part 3-1 of the Act. He contends that COG Regional Team Pty Ltd (company) contravened various provisions of Part 3-1 of the Act by dismissing him from his casual employment as a forklift driver wholly or partly for proscribed reasons. Mr Varichak seeks reinstatement and compensation.
 The Commission generally does not have a determinative function in relation to applications brought under s 365 unless the parties agree to the Commission arbitrating the matter. Rather, the Commission’s role is to convene a conference and to issue a certificate to the applicant, if it is satisfied that all reasonable efforts to resolve the dispute have been or are likely to be unsuccessful. However, where the respondent denies that it dismissed the applicant and objects to the application on this basis, the Commission is required to determine whether the applicant was dismissed (see Coles Supply Chain Pty Ltd v Milford  FCAFC 152 and Ahmad v MPA Engineering Pty Ltd  FWCFB 5365).
 The company contends that it has not dismissed Mr Varichak, and that it has simply obeyed the law by refusing to allow him to attend the workplace because he has not provided evidence of his COVID-19 vaccination status. In this regard, the Victorian government’s COVID-19 Mandatory Vaccination (Workers) Directions (No 5) (Directions) have relevantly required that certain employers not permit employees to work outside their home unless they have provided to the employer evidence of vaccination or a medical exemption. The company submits that Mr Varichak remains a casual on its books, and that it will offer him shifts if he becomes eligible to attend the workplace. Mr Varichak contends that the company terminated his casual employment, or constructively did so, because it prevented him from attending the workplace and refused to roster him for work.
 The following facts are uncontroversial. At the time of the alleged dismissal, Mr Varichak was employed as a casual forklift driver at the company’s Avalon distribution centre. On 14 October 2021, Mr Varichak was advised by the company that he must provide proof to the company that he had received his first dose of the COVID-19 vaccine, proof of a vaccination booking, or evidence of a medical exemption. Mr Varichak was told that if he did not provide this information, he could not be rostered to work. Mr Varichak did not provide such evidence to the company. On 21 October 2021, the company wrote to Mr Varichak, stating that he could not be rostered for work at the distribution centre because he had not provided proof of his vaccination status.
 Mr Varichak gave evidence that his beliefs prevented him from receiving the COVID-19 vaccine, and that his vaccination status had no bearing on his ability to do his job. He said that he was not advised of any vaccination requirement when he commenced employment, and that because of his beliefs the public health orders did not apply to him. He also said that other employees who had not received the vaccine were permitted to continue working.
 Mr Nicholas Greig, a manager, gave evidence that the company was subject to the Directions and was required to ensure that unvaccinated workers did not work outside their home from 22 October 2021, unless they had provided the required vaccination evidence. Mr Greig said that because Mr Varichak did not provide this information the company was prohibited from offering him shifts, but that Mr Varichak remained part of the company’s pool of casuals who are offered shifts based on operational requirements. Mr Greig produced a current extract from the company’s human resources management system which records Mr Varichak’s employment status as ‘active’. He tendered an extract of another casual employee whose employment had ended, which records a status of ‘terminated’. Mr Greig said that if Mr Varichak became eligible to work on site, the company would roster him for work. I accept Mr Greig’s evidence. It was clear and convincing and consistent with the documentary evidence.
 In my opinion, the company did not dismiss Mr Varichak.
 The company was subject to the Directions and required to prevent any employees who had not provided evidence of having received the COVID-19 vaccination, or evidence of a medical exemption, from attending the work site. Mr Varichak did not provide this information to the company. It was therefore required by law not to allow him to enter the work site. By choosing not to become vaccinated, Mr Varichak rendered himself unable to perform an inherent requirement of his role as a casual forklift driver, namely to be lawfully able to attend the workplace. However, the company did not dismiss Mr Varichak. Instead, it told him that it was subject to a legal requirement not to allow him to attend the workplace unless he provided proof of vaccination.
 Mr Varichak remains a casual on the company’s books. His employment is recorded as active in the company’s human resources management system. Proceeding on the basis that the definition of ‘dismissed’ in s 386 of the Act applies to applications under s 365, it is clear that Mr Varichak’s employment relationship with the company has not been ‘terminated on the employer’s initiative’ (see Khayam v Navitas English Pty Ltd  FWCFB 5162). The company remains ready to deploy Mr Varichak on shifts. He is currently unable to perform his duties, because he has decided not to get vaccinated. If Mr Varichak becomes vaccinated, or if government requirements otherwise allow, the company will roster him for work.
 The jurisdictional objection is upheld. The application is dismissed.
S. Varichak for himself
T. Popowicz for COG Regional Team Pty Ltd
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