| FWC 257|
|FAIR WORK COMMISSION|
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Ross Barry Edwards
Regal Cream Products Pty Ltd
MELBOURNE, 9 FEBRUARY 2022
Application for an unfair dismissal remedy - public health order requiring vaccination against COVID-19 – valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed.
 Mr Ross Edwards was employed by Regal Cream Products Pty Ltd, trading as Bulla Dairy Foods (Bulla) as a Mixed Plant Operator. After being employed by Bulla for 17 years, his employment was terminated effective 25 October 2021, because he had chosen not to be vaccinated against the COVID-19 virus which was a requirement under Victorian Government public health orders. Mr Edwards contends, and Bulla denies, that his dismissal was harsh, unjust and unreasonable. Bulla otherwise considered Mr Edwards to be a good employee, who performed his work well, and was highly regarded. 1
 After hearing from the parties, I determined that conducting a hearing was the most effective and efficient way to resolve the matter and granted permission for Bulla to be legally represented.
 At the hearing on 4 February 2022, Mr Edwards gave evidence in support of his case. Ms Munro (General Manager – People and Culture) and Mr Pickering (Site Lead Frozen) gave evidence for Bulla.
 For the reasons below, I have found that the Applicant’s dismissal was not harsh, unjust or unreasonable.
 The Applicant was employed as a Mixed Plant Operator and given the physical nature of his role, he was required to perform his work on site at the company’s facility in Colac. 2
 On 7 October 2021, the Victorian Chief Health Officer issued the COVID-19 Mandatory Vaccination (Workers) Directions. The Directions required that, unless a valid medical exemption applied, in order to work on site ‘manufacturing workers’ must receive a first dose of the COVID-19 vaccine by 15 October 2021 (or have a booking to do so) and must be fully vaccinated against COVID-19 by 26 November 2021. 3
 The Directions have been updated from time to time, however at all relevant times ‘manufacturing workers’ have been required to be vaccinated against COVID-19 to perform work on site. 4 The refusal or failure by an employer to comply with the Directions is an offence which carries a significant penalty.
 Bulla determined, and I accept, that the Directions applied to Mr Edwards’ employment at all relevant times.
 Following the Victorian Government’s announcement of the vaccination mandate on 1 October 2021, Bulla provided its employees with considerable information about the Directions, including that from 15 October 2021, non-exempted unvaccinated employees would not be allowed to attend work at any site, that they may be unable to meet the inherent requirements of their role and their employment may be terminated. To encourage and support staff to be vaccinated, Bulla offered a cash incentive and offered to arrange and pay for a medical consultation with a doctor if any staff were concerned about the vaccination and required further information to assist in their decision-making. The company’s Employee Assistance Program was also available. 5
 The Directions provide for an exemption from the vaccination mandate to a person who has certification from an approved medical practitioner that they are unable to receive a vaccine due to a medical contraindication or an acute medical illness. 6
 Mr Edwards had major health concerns about being vaccinated, he consulted a doctor and on 13 October 2021 provided Bulla with a medical certificate from a Dr Denes Borsos 7, a registered medical practitioner at the time.
 After reviewing the certificate, Ms Munro determined that it did not meet the requirements of the Directions in two respects. Firstly, it did not certify that Mr Edwards was unable to receive a dose, or a further dose, of a COVID-19 vaccine due to a medical contraindication or acute medical illness and secondly, it was not clear that Dr Borsos was a medical practitioner as defined in the Directions. Mr Edwards acknowledged in cross-examination that the exemption did not comply with the Directions, although he was unaware of that when he provided it. (Dr Borsos also provided an exemption in relation to four other employees of Bulla and Ms Munro subsequently learnt that Dr Borsos has been suspended by the Australian Health Practitioner Regulation Agency and can no longer practice in Australia 8).
 Bulla gave Mr Edwards a letter on 14 October, advising that the certificate of Dr Borsos did not meet the requirements of the Directions. It provided him with a copy of the Directions and a letter to Dr Borsos setting out the information that was required for a valid medical exemption, together with a consent form for the disclosure of Mr Edwards’ medical information to Bulla. 9 However, Mr Edwards was not prepared to sign the consent form as he considered this to be privileged information.10 Bulla also offered to arrange and pay for an appointment with an independent medical specialist who is eligible to provide advice regarding exemptions, for the Applicant.11
 Also on 14 October, Mr Edwards was advised in writing that he was suspended without pay from 15 October and asked to provide a valid medical exemption by 22 October 2021. 12 No further medical exemption information was provided on behalf of Mr Edwards.13
 Late in the evening of 14 October, Mr Edwards emailed his department manager, requesting to take long service leave. 14 He wanted to take long service leave so that he had more time for either a more appropriate drug to became available or for the vaccine mandate to end.15
 Bulla refused Mr Edwards’ request to take long service leave. Ms Munro’s evidence was that Bulla was unable to accommodate this request given he was suspended without pay and therefore not entitled to it. Additional reasons were provided including that it was uncertain whether the Applicant could meet the requirements of the Directions and therefore be able to perform his role, and that long service leave was not a viable option to avoid the Directions given the Victorian Government indicated the vaccination requirements would be long-term. Further, at that time the company was short-staffed and operationally could not accommodate any further leave requests or absences. Bulla did not accept any other requests for leave from other employees who had been suspended as a result of the Directions. 16
 Mr Edwards points out that under the Long Service Leave Act 2018 (Vic), there is no provision to the effect that leave cannot be taken or approved whilst an employee is suspended. In any event, he says he made his request before his employment was suspended. Whilst he acknowledges that under the Long Service Leave Act 2018 (Vic), an employer can refuse a request for long service leave, under the legislation it can only do so if it has reasonable business grounds. Mr Edwards contends there were no reasonable business grounds for refusing his request given that his role would need to be replaced if he was not at work (and was, in fact, replaced when he was dismissed), and that a company of Bulla’s size should be able to accommodate the absence or leave of a small number of employees. Further, that the company’s reliance on the Government’s indications that the vaccination requirements would be long-term, was unjustifiable.
 On 22 October 2021, the Applicant was informed that if he did not provide evidence that he had received the first dose of the vaccine or had a valid medical exemption, Bulla would make an assessment regarding his ongoing employment. 17
 On 25 October 2021, the Applicant confirmed that he did not intend to be vaccinated and had not otherwise provided a valid medical exemption. 18 Bulla therefore concluded that the Applicant could not legally perform any work on site by virtue of the Directions, there were no alternative suitable duties, and terminated Mr Edwards’ employment.19 The decision was made by Ms Munro to terminate his employment given he was legally unable to perform his duties on site which was a requirement of his role.20
 Bulla took a consistent approach with all employees who chose not to be vaccinated and did not have a valid medical exemption. In addition to Mr Edwards, there were more than a dozen other employees whose employment was terminated. 21
 Section 396 of the Fair Work Act 2009 (Cth) (Act) sets out four matters which I am required to decide before I consider the merits of the application.
 There is no dispute between the parties and I am satisfied on the evidence that Mr Edwards was a person protected from unfair dismissal, that the Small Business Fair Dismissal Code did not apply, this was not a genuine redundancy and the application was made within the period required.
 In considering whether Mr Edwards’ dismissal was harsh, unjust and/or unreasonable, I am required to take into account the matters specified in section 387(a) to (h) of the Act.
 The employer must have had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded” and should not be “capricious, fanciful, spiteful or prejudiced.” 22
 The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the employer’s position. The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).
 In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred. It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. The employer bears the evidentiary onus of proving that the conduct on which it relies took place.
 The effect of the Directions was that Bulla was prohibited from allowing Mr Edwards to undertake work on site from 15 October 2021, unless he was at least partially vaccinated or had a valid medical exemption. Mr Edwards chose not to become vaccinated because he held serious health concerns, however he did not provide a valid medical exemption. This meant that he was not able to fulfil his role, which could only be performed on site and there were no suitable alternative duties available for him to undertake. For these reasons, Bulla had a sound, defensible and well-founded reason to terminate Mr Edwards’ employment.
 Mr Edwards’ principal complaint is that his request for long service leave should have been granted and that Bulla’s reasons for refusing it were not legitimate. However, I am satisfied that Bulla’s refusal was made on reasonable business grounds. Whilst the basis upon which Bulla considered itself unable to approve the request because Mr Edwards’ employment was suspended is unclear, I accept Ms Munro’s evidence that the company could not operationally accommodate any further leave requests or absences. I also consider it reasonable to take into consideration the indications from the Victorian Government that the vaccination requirements would be in place for a considerable period. Whilst Mr Edwards is correct in pointing out that there was some uncertainty about this, and no-one could know for sure what would happen, every indication at the time the leave was refused was that the vaccination mandate would remain in place for an extended period. As it has transpired, the mandate remains in place, and even if Mr Edwards had been granted leave, it is unlikely to have led to a different outcome to his employment with Bulla.
 To have permitted the Applicant to work for it outside of his ordinary place of residence after 15 October would have constituted an offence and rendered Bulla liable for a substantial financial penalty.
 For the reasons given, I am satisfied that Bulla had a valid reason to terminate Mr Edwards’ employment.
 The reasons for Mr Edwards’ dismissal were conveyed to him by phone and then set out in the termination letter of 25 October 2021. 23 Mr Edwards’ was notified of the reasons for his dismissal.
 The Respondent took all reasonable steps to ensure procedural fairness and the Applicant was given ample opportunity to respond to Bulla’s concerns regarding his vaccination status. The Applicant took up this opportunity and responded, including expressing his concerns about the Directions and the vaccine mandate on 14 October. 24
 Ms Munro responded acknowledging that the vaccination mandate was a difficult issue for many people but reiterated that Bulla was legally required to comply with the Directions. 25
 Having regard to all the circumstances, I am satisfied that Mr Edwards was given an opportunity to respond to the reason for dismissal related to his capacity.
 There was no unreasonable refusal to allow the Applicant a support person during any discussions relating to dismissal. This consideration is not relevant in this case.
 Mr Edwards was not dismissed for unsatisfactory performance. This criterion is not relevant to the present case.
 Bulla is a substantial enterprise. It has human resource management specialists and expertise. In all the circumstances, I am satisfied that neither the size of its enterprise nor any absence of human resource management specialists or expertise had any impact on the procedures followed in effecting Mr Edwards’ dismissal.
 Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
 Mr Edwards had no capacity to work in his job with Bulla from 15 October 2021. That situation was not likely to change in the foreseeable future. There was no other work available for him to undertake given the nature of his role.
 For the reasons set out above, I am satisfied that the refusal of Mr Edwards’ request to take long service leave was reasonable in all the circumstances.
 After considering each of the matters specified in section 387 of the Act, my assessment is that Bulla’s dismissal of Mr Edwards was not harsh, unjust or unreasonable. Bulla had a valid reason for the dismissal and it afforded procedural fairness to the Applicant prior to terminating his employment.
 Mr Edwards was provided with ample opportunity to provide a valid medical exemption but did not do so. He was offered extensive support and assistance by Bulla to assist him in obtaining expert medical assistance given his real concerns about taking a vaccine. He elected not to take up any of these offers.
 Bulla offered significant assistance and support in circumstances that were very difficult for all involved, and it is difficult to fault its approach. The company acted with empathy and care and was respectful of Mr Edwards’ concerns about being vaccinated. However, ultimately Mr Edwards was unable to meet the inherent requirements of his role, and his employment was terminated as Bulla had no option but to comply with the Directions.
 I appreciate that this is disappointing for Mr Edwards after 17 years at a job that he loved, but I am satisfied that his dismissal by Bulla was not unfair. The application is dismissed. An order to this effect will be separately issued.
R Edwards, Applicant.
N Prestia of HR Legal for the Respondent.
Melbourne (by video)
Printed by authority of the Commonwealth Government Printer
1 Exhibit R2, Witness Statement of Dayne Pickering at .
2 Ibid at .
3 Exhibit R1, Witness Statement of Jacinta Munro at .
4 Ibid at .
5 Ibid at .
6 Covid 19 Mandatory Vaccination (Workers) Directions s.8(5).
7 Exhibit A2, Witness Statement of Ross Edwards.
8 Exhibit R1, Witness Statement Jacinta Munro at -.
9 Exhibit R2, Attachment DP-2 to Witness Statement of Dayne Pickering.
10 Exhibit A2, Witness Statement of Ross Edwards.
11 Exhibit R1, Witness Statement of Jacinta Munro at ; Exhibit R2, Attachment DP-5 to Witness Statement of Dayne Pickering.
12 Exhibit R2, Attachment DP-3 to Witness Statement Dayne Pickering.
13 Exhibit R2, Witness Statement of Dayne Pickering at ; Exhibit R1, Witness Statement of Jacinta Munro at .
14 Exhibit A3, Attachment 1 to Applicant’s reply submissions.
15 Exhibit A2, Witness Statement of Ross Edwards.
16 Exhibit R1, Witness Statement of Jacinta Munro at -.
17 Exhibit R2, Attachment DP-5 to Witness Statement of Dayne Pickering.
18 Exhibit R2, Witness Statement of Dayne Pickering at .
19 Ibid at , Exhibit R1, Witness Statement of Jacinta Munro at .
20 Exhibit R1, Witness Statement of Jacinta Munro at .
21 Ibid at .
22 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
23 Exhibit R2, Witness Statement of Dayne Pickering at .
24 Exhibit R1, Attachment JM-6 to Witness Statement of Jacinta Munro.
25 Exhibit R1, Witness Statement of Jacinta Munro at -.