Fair Work Act 2009
s.394—Unfair dismissal

Martin Lord
v
Amywood Pty Ltd trading as Central Kitchens
(U2021/9870)

Application for an unfair dismissal remedy

[1] Mr Martin Lord lodged an application for an unfair dismissal remedy under 394 of the Fair Work Act 2009 (the Act) in the Fair Work Commission (the Commission) on 3 November 2021 (the Application). The application concerns his alleged dismissal by Amywood Pty Ltd trading as Central Kitchens on 15 October 2021. An Order correcting the name of the Respondent to Amywood Pty Ltd trading as Central Kitchens was issued by me with the consent of the parties at the same time as this decision. The Respondent is referred to as Central Kitchens throughout this decision.

[2] Central Kitchens raised a jurisdictional objection to the Application, being that Mr Lord was not dismissed. Mr Lord in turn argues both that he was dismissed and that it was an unfair dismissal.

[3] For the reasons that follow I am not satisfied Mr Lord was dismissed within the meaning of the Act.

PRELIMINARIES

[4] The matter was listed before me on 1 February 2021 and proceeded by way of a determinative conference in order to address both the jurisdictional objection and the merits of the Application. Mr Lord appeared on his own behalf. Steven Hoiles and Dion Kearns appeared on behalf of Central Kitchens. Mr Hoiles conducted the majority of the proceedings for Central Kitchens, with Mr Kearns assisting in responding to certain questions.

[5] Section 396 of the Act requires the determination of four initial matters before consideration of the merits of the application. Those matters are whether the application was made within the period required in s.394(2), whether the person was protected from unfair dismissal, whether the dismissal was consistent with the Small Business Fair Dismissal Code, and whether the dismissal was a case of genuine redundancy. Neither party put forward that any of the initial matters required consideration. In relation to the elements within s.396, I find that Mr Lord’s application was lodged with the Commission within the 21 day period for making applications required by s.394(2) and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

[6] I am also satisfied Mr Lord was a person protected from unfair dismissal (s.382). Despite being a casual employee, it is also found that he had served the minimum employment period (s.383) and, relatedly, that no discount is required to be made from Mr Lord’s period of employment in the manner provided for in s.384(2). Mr Lord’s evidence, which was accepted by Central Kitchens, is that since resuming employment with the company in 2017 he had worked a standard 40 hour week, albeit taking off time as required for leave.

BACKGROUND

[7] Central Kitchens is a cabinet-making business based in Bendigo East designing, manufacturing and installing kitchens, laundries and the like. It appears to be a relatively successful business, having been in operation for over 32 years and employing 34 people at the relevant time. About 6 of the employees work on-site; 10 to 12 including Mr Lord work in the company’s factory, and about a further 15 work in its office including employees performing design duties.

[8] Mr Lord originally worked for Central Kitchens between 2012 and 2015. He left for a period and then returned to work for Central Kitchens in 2017. I note that while Mr Lord recollected his starting date as being in August 2017 and Central Kitchens’ records suggest it was on 4 October 2017. Nothing turns on the minor discrepancy and Mr Lord accepts Central Kitchens’ record is accurate. Mr Lord was employed as a casual at the time he ceased work. 1

[9] Mr Lord was hired as a Cabinetmaker and remained in that position until this dispute arose. His duties were to manufacture and assemble various cabinetry items using a variety of power equipment to do so. Mr Lord was one of about 6 tradespeople undertaking the same duties. Mr Lord was, and still is, highly regarded by Central Kitchens, being described by the employer as “one of our best tradesmen and he [sic] wouldn't want to lose him” 2 and that it “would love to have him back in the Workplace”.3

[10] The dispute that has led to this application arose after the Victorian Government published its mandatory COVID-19 vaccination directions in October 2021 (the Directions) which brought into effect certain requirements in relation to the vaccination status of workers. Neither party produced the Directions in the documents they filed, although the Respondent filed an extract of an FAQ document explaining their operation. It is appropriate in the circumstances given the subject matter that the Commission takes notice of the general fact of the Directions as well relying upon what is before the Commission from the parties themselves as to how each responded.

[11] Central Kitchens understanding was that the Directions meant that employees could not enter a construction site after 23 September 2021 unless they had a first vaccination, a booking for the same or a medical exemption. 4 By 15 October 2021 it understood this obligation had shifted to its factory and office.

[12] Central Kitchens wrote in an undated piece of correspondence to employees, which appears to have been received by Mr Lord on 17 September 2021, 5 the following:

“To All Staff Members.

The Victorian Government has announced that from 23^rd September all employees attending building sites must have at least one dose of a Covid vaccine or at least a booking. If you don't have this, you will not be able to attend building sites unless you have a medical exemption.

…

I encourage all staff to become vaccinated as it seems that it will only be a matter of time before this will become mandatory for all who work in the building industry whether onsite or in the factory.” 6

[13] The correspondence was focussed on people working on building sites, with it being uncontested that Mr Lord rarely went onsite. In this regard Mr Lord estimated he spent 99% of his time working inside the factory. I understand from Mr Hoiles that the requirement to have factory workers vaccinated came later, being operative on and after 15 October 2021.

[14] Mr Lord believes the COVID-19 vaccination to be experimental, untested and otherwise detrimental to his health. Further, he considers the direction to be vaccinated to be unlawful as well as a denial of his civil and human rights. He argues he was never informed he had been suspended with or without pay and that as an alternative to the provision of proof of vaccination Central Kitchens could have considered other steps to allow him to keep working, including by employing temperature checks, social distancing, rapid antigen testing and hygiene protocols.

[15] On 28 September 2021, Mr Lord wrote to Mr Hoiles as follows:

“I refer to your correspondence dated 17 September 2021.

I write with regard to the matter of potential covid vaccine and my desire to be fully informed and appraised of all the facts before going ahead.

I would be most grateful if you could please provide the following information. in accordance with statutory legal requirements:

1. Can you advise me of the approved legal status of any vaccine and if it is experimental?

2. Can you please provide details and assurances that the vaccine has been fully, independently and rigorously tested against control groups and the subsequent outcomes of those tests?

3. Can you please advise of the full list of contents of the vaccine I am to receive and if any are toxic to the body?

4. Can you fully advise of all the adverse reactions associated with this vaccine since its introduction?

5. Can you please confirm that the vaccine you are advocating Is NOT ’experimental mRNA gene altering therapy?

6. Can you please confirm that I will not be under any duress from yourselves as my employers, in compliance with the Nuremberg Code?

7. Can you please advise me of the likely risk of fatality should I be unfortunate to contract Covid 19 and the likelihood of recovery?

Once I have received the above information in full and I am satisfied that there is NO threat to my health, I will be happy to accept your offer to receive the treatment, but with certain conditions – namely that:

1. You confirm that I will suffer no harm.

2. Following acceptance of this, the offer must be signed by fully qualified doctor who will take full legal and financial responsibility for any injuries occurring to myself and/or from any interaction by authorised personnel regarding these procedures.

3. In the event that I should have to decline the offer of vaccination, please confirm that it will not compromise my position and that I will not suffer prejudice and discrimination as a result?” 7

[16] It appears that from this point no further correspondence was sent between the parties. Mr Lord stopped coming to work on 14 October 2021, the day before the Directions mandated that all workers must be vaccinated to enter Central Kitchens’ factory and office.

[17] Mr Lord considered the correspondence he received on 17 September 2021 as notification of his dismissal. 8 He considered that his dismissal took effect on 15 October 2021.9 Central Kitchens considers that Mr Lord remains employed with them, having instead being “suspended without pay until further notice”.10

[18] There was no evidence of any contact between the parties until after Mr Lord commenced proceedings in the Commission on 3 November 2021 and this contact has been only for the purposes of the dispute.

CONSIDERATION – WHETHER A DISMISSAL

[19] Section 395(a) of the Act requires the Commission to be satisfied that a person has been dismissed before considering whether that person had been unfairly dismissed. The Act defines the term “dismissed” as follows:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[(2) and (3) omitted]

[20] The definition within s.386 provides two relevant limbs for consideration. Firstly, whether Mr Lord’s employment has been terminated on the employer’s initiative and secondly, whether, if he resigned, it was because he was forced to do so because of conduct, or a course of conduct engaged in by his employer.

[21] A termination on the employer’s initiative refers to a termination that is brought about by an employer and which is not agreed to by the employee. 11 When analysing whether there has been a “termination at the initiative of the employer” for the purpose of s.386(1)(a) of the Act, it is necessary for the analysis to be conducted by reference to termination of the employment relationship. It is not conducted by reference to the termination of the contract of employment in operation immediately before the cessation of the employment.12

[22] A “termination on the initiative of the employer” is when two criteria are satisfied:

•  the employer's action “directly and consequentially” results in the termination of employment, and

•  had the employer not taken this action, the employee would have remained employed. 13

[23] For there to be a “termination at the initiative of the employer” there must be action by the employer that either intends to bring the relationship to an end or has that probable result. 14 Whilst the question of whether the action of an employer results “directly or consequentially” in the termination of employment is an important consideration it is not the only consideration.15 All of the circumstances must be examined including the conduct of the employer and the employee.16

[24] In relation to the first limb of the limbs within s.386, there is no evidence before me which would suggest a form of words communicated by anyone to Mr Lord that Central Kitchens intended to bring their relationship to an end. Indeed, Central Kitchens have left the door open for Mr Lord to return to work if he is able to do so. I accept that Central Kitchens have not intended to end the employment relationship.

[25] It remains to consider, however, whether the acts taken by Central Kitchens in following the Directions amount to a dismissal, albeit one not communicated in those terms to Mr Lord. I am not satisfied that this is the case.

[26] There is little evidence, and nothing of note, as to what occurred after the notice of the vaccination requirements was sent to all employees, being received by Mr Lord on 17 September 2021. In the week prior to 15 October 2021, when Mr Lord stopped going to work, there were a few conversations between Mr Lord and Central Kitchens. These conversations were not specifically recalled or recalled in any great detail by either party, however both parties accepted that the following was discussed. Mr Lord was told that he was not allowed on the premises after 15 October 2021 unless he met the vaccination requirements established by the Directions; and, Mr Lord was not told he had been suspended. It may be that there were more details in these conversations, or more conversations, between Mr Lord and Central Kitchens where he was told not to come in on 15 October 2021 until he complied with the Directions. Regardless of any conversations, and contrary to the letter sent by Mr Lord to Mr Hoiles on 18 September 2021, any act taken by Central Kitchens to comply with the Directions was not an act done of its own accord.

[27] The Directions establish rules enforced by penalty, with the FAQ Document stating that the penalty for a corporation is 600 units. 17 While a copy of the Directions are not before me, and while no evidence was led as to the specific category of worker Mr Lord was under the Directions, I am satisfied that the Directions applied such that Mr Lord was required by 15 October 2021 to have received a first dose or to have made an appointment to receive a first dose by 21 October 2021, or failing those steps to have a medical exemption.

[28] The 17 September 2021 correspondence is on its face not a direction of Central Kitchens but an announcement to staff of things that were no doubt already well known publicly at the time; that after 23 September 2021 entry to a building site would require at least one vaccination dose or a booking to obtain one or, in the alternative, a medical exemption. The letter finished on a note of encouragement, not direction from Mr Hoiles; “I encourage all staff to become vaccinated as it seems that it will only be a matter of time before this will become mandatory for all who work in the building industry whether onsite or in the factory”. (underlining added)

[29] And so of course that prediction came to pass, indubitably affecting Mr Lord.

[30] Mr Lord argues the Directions are unconstitutional and otherwise invalid, however he has not provided the substance of his arguments on those matters and because of my finding that he has not been dismissed it is unnecessary to further consider those arguments.

[31] Central Kitchens’ evidence is clearly that it understood the effect of the Directions to be that unvaccinated workers could not enter construction sites after 23 September 2021 and that unvaccinated workers could not enter factory sites after 15 October 2021.

[32] There is no evidence before me that would satisfy the second limb of s 396(1), namely that there was a constructive dismissal consequential to a resignation. First, there was no resignation; second, the actions of Central Kitchens are not to be construed as Mr Lord being forced to resign “because of conduct, or a course of conduct, engaged in by his or her employer”. Central Kitchens were merely complying with the Directions. Central Kitchens sent a letter to all its staff setting out the vaccination requirements. Mr Lord took this as the notification time for his dismissal and the date after which he could not attend his workplace unvaccinated as the date his dismissal took effect.

[33] In actuality the evidence leads to the finding that Mr Lord simply heeded the term of the Directions and chose not to attend a workplace he was by then not permitted to enter for reason of the Directions.

[34] The product of these matters is a finding that Mr Lord has not been dismissed. That work is no longer being offered to him by Central Kitchens is consistent with his status as a casual employee as is the fact he is unable to hold himself out as being available for work.

[35] The observations made by Central Kitchens that Mr Lord is one of their best tradespeople and that they would love to have him back is a marvellous testimony to his abilities. I would strongly encourage the two parties to consider whether and how a return to work of any kind may be offered to Mr Lord, either in conformity with the Directions for so long as they last or at a later point if they change or if they are removed.

[36] An Order 18 dismissing Mr Lord’s application for unfair dismissal remedy is issued at the same time as this decision.

COMMISSIONER

Appearances:

Mr Martin Lord for himself.
Mr Steven Hoiles and Mr Dion Kearns for the Respondent

Hearing details:

Melbourne (via video conference);
1 February 2022.

Final written submissions:

25 January 2022

Printed by authority of the Commonwealth Government Printer

<PR738099>

 1   Respondent email to the Commission dated 25 January 2022 containing Submissions (Respondent Submissions); Hearing Book, pp.31-32.

 2   Ibid.

 3   F3, 3.1.

 4   Respondent Submissions; Hearing Book, pp.31-32.

 5   Applicant letter to Respondent dated 28 September 2021 regarding vaccination concerns (Applicant’s Vaccination Concerns Letter); Hearing Book, pp.15-16.

 6   Letter from the Respondent to all its staff (undated); Hearing Book, p.14.

 7   Applicant’s Vaccination Concerns Letter; Hearing Book, pp.15-16.

 8   F2, 1.3.

 9   F2, 1.4.

 10   F3, 2.2.

 11   Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 at [75], see also Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645.

 12   Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 at [75].

 13   Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200.

 14   Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769 at [24]; citing O'Meara v Stanley Works Pty Ltd, PR973462 at [23].

 15   Pawel v Advanced Precast Pty Ltd (unreported, AIRCFB, Polites SDP, Watson SDP and Gay C, 12 May 2000) Print S5904.

 16   O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 [23]; citing Pawel v Advanced Precast Pty Ltd (unreported, AIRCFB, Polites SDP, Watson SDP and Gay C, 12 May 2000) Print S5904; Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200; ABB Engineering Construction Pty Ltd v Doumit, (unreported, AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996) Print N6999.

 17   Attachment A to Respondent Submissions, Government Vaccination FAQ (FAQ); Hearing Book p.34-35.

 18   PR738100.