| [2022] FWC 355 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy
Peter Bateson
v
Ventura Transit Pty Ltd
(U2021/8049)
DEPUTY PRESIDENT ANDERSON |
ADELAIDE, 28 FEBRUARY 2022 |
Application for an unfair dismissal remedy – bus driver – failure to be vaccinated against COVID-19 or produce medical exemption – Victorian government direction – whether valid reason – procedural fairness – dismissal not unfair despite procedural deficiencies – application dismissed
[1] On 15 November 2021 Peter Bateson (the applicant or Mr Bateson) applied to the Commission under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy. He was dismissed on 26 October 2021 by Ventura Transit Pty Ltd (Ventura or the respondent). At the date of dismissal Mr Bateson was employed as a bus driver.
[2] Mr Bateson claims his dismissal was harsh, unjust or unreasonable. He does not seek reinstatement. He seeks compensation.
[3] Ventura oppose the application. It contends Mr Bateson’s dismissal was not unfair and no issue of remedy arises.
[4] Conciliation was conducted on 22 December 2021. The matter did not resolve.
[5] The matter was initially allocated to another Member but re-allocated to me. I issued directions on 13 January 2022.
[6] In advance of the hearing, I received materials from Mr Bateson and Ventura.
[7] I heard the matter by video conference on 17 February 2022.
[8] Both parties were self-represented; Mr Bateson with the assistance of a lay representative Mr Gregory; and Ventura via its Chief Operations Officer (Mr Wood) assisted by Human Resources Manager (Ms Caldow).
[9] Mr Bateson gave oral evidence on two statements and two affidavits filed in his name 1 and on thirty-five documents accompanying his materials.2
[10] An Operations Supervisor Venkat Koneru gave evidence for Ventura on a statement filed in his name 3 and on thirteen documents accompanying the employer’s materials.4
[11] Some limited factual disputes emerge from the evidence. In those respects only, issues of credit arise.
[12] Mr Bateson was a conscientious witness who gave evidence in an open and honest fashion. To his credit, shortly in advance of the hearing he corrected an affidavit in a manner that was a concession to Ventura’s case. 5 His evidence was largely unembellished and (except in respect of an SMS message he claims not to have received) broadly aligned with the documentary record.
[13] Mr Koneru also gave evidence conscientiously. His recall was reliable and plausible. However, it was limited. Mr Koneru was not the officer who made the decision to dismiss. He had no dealings with Mr Bateson once Mr Bateson had been stood down.
[14] Ventura did not call Ms Caldow who sent the letter of termination to Mr Bateson and communicated with him following dismissal. The failure to call Ms Caldow exposed a gap in Ventura’s evidence, though relevant findings can be made from Mr Bateson’s evidence and inferences properly drawn from the documentary material. That notwithstanding, I take into account the failure to call Ms Caldow in assessing the employer’s oral and written evidence.
[15] I make the following findings.
[16] Ventura is a bus company operating in and around Melbourne and regional Victoria.
[17] Mr Bateson was a full-time bus driver working from the Moorabbin depot in suburban Melbourne. He regularly worked around 45 hours per week, inclusive of ordinary hours and overtime. Until dismissed, he served almost fourteen years; starting with Moorabbin Transit Pty Ltd until that company was acquired by Ventura.
[18] Ventura operate an on-line employee human resource system, called Connx. An employee, such as Mr Bateson, could log-in to Connx and access their employment details. Connx was routinely used by employees and the company to apply for leave and record leave taken. Mr Bateson had used Connx for that purpose. When logging-in to one’s record on Connx, that employee’s name and contact information (including email) are displayed.
[19] In Mr Bateson’s case 6, his name and address on Connx correctly appeared when it was accessed. However, at relevant times an email address on his page [redacted] was not correct. His correct email address was [redacted]. Neither Mr Bateson nor Ventura had noticed this error. Thus, neither had advised the other or corrected the entry (it could be corrected by either the employer or the employee, as Connx is a self-service portal). There is no evidence before the Commission as to how the incorrect email address came to be first recorded on Connx. Mr Bateson believes the incorrect email address is that of an unrelated person by the same name living overseas.
[20] Not all email communication by Ventura to Mr Bateson was sent to the wrong address. Mr Koneru had at least once (some months earlier) sent Mr Bateson a roster by email. However, Mr Koneru had not accessed Connx for that purpose. He had sent that roster by email whilst in the presence of Mr Bateson and after Mr Bateson had verbally given his (correct) email address.
[21] On 1 October 2021 the Victorian government announced a vaccination mandate with respect to certain employment.
[22] On 7 October 2021, exercising emergency powers under the Public Health and Wellbeing Act 2008 (Vic), the Acting Victorian Chief Health Officer issued the COVID-19 Mandatory Vaccination (Workers) Directions (the Directions). 7 The Directions required that, unless a valid medical exemption applied, an employer was prohibited from allowing prescribed categories of persons to work outside their private residence unless (in the case of transport workers) the person had received a first dose of the COVID-19 vaccine by 15 October 2021 (or had a booking to do so by 22 October 2021) and had been fully vaccinated by 26 November 2021.8 The Directions exempted persons certified by an approved medical practitioner as having a medical contraindication or acute medical illness.
[23] Ventura determined, and I accept, that the Directions applied to Mr Bateson’s employment. Clause 9(31)(a)(i) provided that a “transport worker” means a person who performs work in connection with a “bus company”.
[24] The Directions have been updated from time to time; however, at all relevant times bus drivers have been required to be vaccinated against COVID-19 to perform work at depots or on buses, unless exempt. The refusal or failure by an employer to comply with the Directions is an offence carrying a significant penalty.
[25] In the month leading to dismissal, a dispute arose between Mr Bateson and Ventura over the COVID-19 vaccination mandate.
[26] Mr Bateson was not the sole employee in dispute. Some forty-two Ventura employees (variously located) were in dispute with the vaccination mandate. Those persons, including Mr Bateson, shared views in a private on-line messaging service known as ‘Telegram’.
[27] On 1 October 2021, by memorandum posted on the staff notice board at the Moorabbin depot, Ventura advised employees of the “mandatory vaccination directive”. 9 The notice advised staff of the Victorian government vaccine mandate for “all authorised workers”. It advised employees that to comply they were required to have a first dose by 15 October 2021 “in order to continue working onsite”. It further advised that employees “would need to be fully vaccinated by 26 November 2021”.
[28] On that day, or in the days that immediately followed, Mr Bateson read the notice on the board. He photographed it (via his phone) for his records. 10
[29] A letter dated 4 October 2021 addressed to Mr Bateson was sent to the email address recorded on the Connx system. The letter said as follows: 11
“Dear Peter,
Re: State Government Mandatory Vaccination Direction for Authorised Workers
The Victorian Government announced on Friday mandatory vaccinations for all authorised workers, which includes all Ventura employees.
To comply with the Government mandate:
• All Ventura employees will require their first COVID-19 vaccine dose by Friday 15 October 2021 in order to continue working onsite.
• All Ventura employees will need to be fully vaccinated by 26 November 2021 .
Our records show that you have not provided evidence of having a first or second dose of the COVID-19 vaccination. You must provide evidence of your first and second dose of the COVID- 19 vaccine by the 15th October and 26th November 2021 respectively.
Evidence can be downloaded from your MyGov or Medicare account and needs to be sent to vaccinations@venturabus.com.au
If you need to book in your vaccination, bookings can be made through https://www.coronavirus.vic.qov.au/vaccine
Should you have any concerns, please speak to your Supervisor/Manager, Stacey Warren [phone number] or Kim Caldow [phone number].
Regards
Andrew Cornwall
Managing Director” (emphasis in original)
[30] Being sent to an incorrect email address, the letter was not received by Mr Bateson. Mr Bateson was unaware the letter had been sent. Ventura was unaware the letter had not been received by Mr Bateson.
[31] On 6 October 2021, Mr Bateson walked past Mr Koneru’s office at the depot. One of Mr Koneru’s tasks that afternoon was to give each driver an envelope containing a hard copy of the 4 October 2021 letter. Mr Koneru called Mr Bateson over. He handed Mr Bateson the envelope. A short conversation ensued in which Mr Koneru asked whether Mr Bateson planned to be vaccinated. Mr Bateson said words to the effect that he did not intend to do so.
[32] On 8 October 2021 Ventura sent individual SMS texts to remind employees (including Mr Bateson) of the vaccine mandate and first dose deadline. 12 Mr Bateson says he did not receive an SMS to that effect. In evidence, he could not explain why that would be so. Though this aspect of Mr Bateson’s evidence lacked plausibility, I do not make a finding that the SMS text was sent and received as I have no direct evidence from the author (Senior Supervisor Mr Mate) and need not do so given I have found Mr Bateson received the earlier letter of 4 October 2021.
[33] After finishing his shift on 11 October 2021 Mr Bateson was anxious about the decision he faced: to be vaccinated against his wish in order to comply with the mandate’s 15 October deadline, or not be vaccinated and risk losing his employment. He went to his doctor the next day (12 October) and was certified unfit to work from 12 to 18 October 2021. 13
[34] On around 11 October 2021 Mr Bateson also had a brief discussion with Mr Mate. Mr Bateson asked what was to happen from 15 October. He was advised by Mr Mate that he would not be able to work from that date and did not need to attend the depot.
[35] Two further letters dated 11 and 13 October 2021 addressed to Mr Bateson were sent by email reminding of the vaccination deadline and of a stand down from the close of business 14 October 2021 if Mr Bateson remained unvaccinated. 14
[36] However, being sent to the email address that was recorded on the Connx system (and not Mr Bateson’s actual email address), the letters of 11 and 13 October 2021 were not received by Mr Bateson.
[37] Ventura was unaware the letters had not been received. Though Mr Bateson had not received those letters, he was aware of the deadline from the earlier notice of 1 October and the letter of 4 October 2021, which he had received. Mr Bateson was also aware, from his participation in the private on-line messaging service with like-minded employees, that a stand down for unvaccinated staff commenced from 15 October 2021.
[38] On 14 October 2021 (the day before the stand down took effect) Mr Bateson drove to the Dandenong depot and hand delivered a three page letter responding to Ventura’s notice of 1 October 2021. 15 In this letter Mr Bateson set out his views on the mandate including claims that the vaccine was experimental, was not safely tested, was produced by companies with a history of criminal conduct, was a breach of human rights and was being imposed as a term of his employment to which he had not agreed. Mr Bateson attached what he claimed was a decision of the Commission (it was a dissent in a full bench decision).16
[39] Mr Bateson was not rostered to work after 15 October 2021 when the mandate deadline came into effect. On 19 October 2021 (his sick certificate no longer applying) he did not attend the Moorabbin depot as he understood that he was amongst a group of drivers who had been stood down without pay.
[40] Between 15 October 2021 and the date of termination (26 October) Mr Bateson awaited contact from Ventura to see what the employer would next do. In this period, he remained in contact with like-minded unvaccinated drivers via the private on-line messaging service. He became aware that other drivers were progressively being asked by Ventura to attend meetings and that a number of drivers were dismissed on 26 October 2021. He was aware that one at least had decided to be vaccinated to retain their job.
[41] As the days passed, Mr Bateson heard nothing from Ventura.
[42] Unknown to Mr Bateson:
• by email dated 20 October 2021 (attaching a letter of that date) Mr Bateson had been called to a meeting on 21 October; 17
• by email dated 21 October 2021 (attaching a letter of that date) Mr Bateson had been advised that he had failed to attend the meeting and that the meeting had been rescheduled to 26 October, and that non-participation may lead to termination; 18 and
• by email dated 26 October 2021 (attaching a letter of that date) Mr Bateson was advised that his employment had been terminated effective that day. 19 The termination letter said, in part:
“As you are aware, this direction was a requirement for Ventura to comply with the State COVID-19 Vaccination Mandate for Authorised Workers.
It was further communicated in our letter dated 21 October 2021 that should you not attend the rescheduled meeting and provide your response, we would make a decision on the outcome of your employment based on the information we had available at that time. As we have not received any evidence from you to confirm you have complied with the State Government COVID-19 Vaccination Mandate for Authorised Workers, I write to confirm your employment is terminated effective from today's date, 26 October 2021.”
[43] Each of these three emails (including the termination letter email) were sent by Ms Caldow to the email address recorded on Ventura’s Connx system. Not being Mr Bateson’s actual email address, none of the emails or attached letters of 20, 21 or 26 October 2021 had been received by Mr Bateson.
[44] At the time, Ventura was unaware the letters had not been received by Mr Bateson.
[45] On 29 October 2021 Mr Bateson noticed that a lump sum had been deposited by Ventura into his bank account. He tried to log-in to Connx. He was unable to sign in.
[46] The next day, 30 October 2021 (a Saturday), Mr Bateson sent an email from his (correct) email address to Ms Caldow as follows: 20
“Dear Kim,
Good Afternoon, Hope you are keeping well and having a good day at it.
Kim, since being handed from my Supervisor, (Moorabbin Depot), a Ventura Company Letter dated the 4th of October 2021, referencing" Authorized Workers Requirements to be Vaccinated' and a Verbal Instruction/ Notification advising me that after the close of work on the Thursday 14th of October 2021, I can no longer work at the Bus Depot, and will not be allowed on company property, come the following day, Friday 15th of October 2021. due to the State Government, Mandate.
Kim, I would like to advise you that I have not received any other communication from Ventura.
I have been waiting for some communication, some form of contact from Ventura, to keep me in the loop, to be informed, after the Stand down Situation of Friday, 15th of October 2021, but I have received nothing.
I would have thought, that I would have at least been Emailed, Telephoned or sent by Post, some update or relevant pertinent information regarding my Status with the Company.
I know my Email Address, is up to date, because I have received Emails from my Supervisors, about Shift and Roster changes, also my Phone Number and Address are all current with the Company as well, Kim, can you please tell me why I have not received any communications from Ventura, and why on Friday the 29th of October 2021, a payment of $22,183.89 was deposited into my bank account?
I tried logging into 'Connx', only to find I am no longer listed and have been logged out of the system, leaving me with no access to the records of my Entitlements, to be viewed and calculated.
Kim, would you please provide to me, all my payslips from the Financial year of 2021 up to today's date, and an itemized list, to show me what the money deposited into my Bank Account, represents and is for?
Thanking you Kim,
Please let me know regarding the above.
Best Wishes,
Peter Bateson, 20177.”
[47] By 5 November 2021, Mr Bateson had not received a response. He sent a further email to Ms Caldow at 2.13pm on 5 November 2021 requesting a response.
[48] Ms Caldow responded (by reply email to Mr Bateson’s correct email address) at 5.42pm on 5 November 2021: 21
“Good Afternoon Peter,
Thank you for your email and my apologies for the delay in coming back to you.
The email address we have for you in our Connx system is peterbatesonl@gmail.com. This is an employee self service system which can be updated by our employees at any time.
Following the issue of your stand down letter dated 14 October 2021 we have sent you:
1. A formal meeting request;
2. A rescheduled formal meting request; and
3. A non attendance outcome letter.
All sent letters are attached to this email and none of them were returned to us as undeliverable
I have also included payroll into this email so they can send you your payslip.
Kim Caldow
HR Manager”
[49] Upon receipt of Ms Caldow’s email of 5 November 2021, Mr Bateson read (for the first time) the letters attached, including the termination letter of 26 October 2021 and the earlier letters which had directed him to meetings on 21 and 26 October.
[50] On 9 November 2021 Mr Bateson requested an employment separation certificate and repeated a request for the final payment details he had first requested on 5 November.
[51] On 10 November 2021 Mr Bateson, needing pay details to include in his unfair dismissal application, telephoned Ms Caldow twice seeking the requested final payment details. His phone calls rang out.
[52] On 11 November 2021 Mr Bateson posted his unfair dismissal application to the Commission. It was received on 15 November 2021.
[53] On 15 November 2021 Mr Bateson again followed up (by email) his final payment details. He was advised by Ms Caldow (by email) they had been sent by the payroll officer on 5 November. After investigation by Ventura, it was identified they and the employment separation certificate had been sent to the wrong email address. Ms Caldow re-sent the documents to the correct email address. They were then received by Mr Bateson. 22
[54] Since dismissal, Mr Bateson has been unemployed. He has not applied for work due to his preparation for this case but says he has been actively looking. He also says that he has a heavy vehicle licence and industry contacts through whom he could obtain work.
Mr Bateson
[55] Mr Bateson claims his dismissal was harsh, unjust or unreasonable. He seeks compensation.
[56] He claims dismissal was unfair on two primary grounds:
• there was no valid reason for dismissal because the Victorian government direction was unlawful. He says Ventura’s requirement that he be vaccinated and its stand down and termination was also unlawful and contrary to his employment rights; and
• the dismissal was procedurally unfair. He submits that he did not receive, through no fault of his own, some of the letters, emails and text messages that Ventura says it sent him including in particular the stand down letter, the letters directing him to attend meetings on 21 and 26 October 2021 and the termination letter of 26 October 2021. He also submits that the dismissal was procedurally unfair because Ventura did not reply to his letter of 14 October 2021. Further, he submits that the dismissal was procedurally unfair because he was not notified until ten days after dismissal and was not promptly provided a response to his 30 October request to be informed of his employment status and his post dismissal requests for final payment details.
[57] Mr Bateson believes he would have been employed for another six years (to age 72) had he not been unfairly dismissed, and seeks to be compensated.
Ventura
[58] Ventura submit that the dismissal was not harsh, unjust or unreasonable and no issue of remedy arises. It submits:
• there was a valid reason for dismissal having regard to the fact that Mr Bateson remained unvaccinated and had not produced evidence of a medical contraindication. It says that, having regard to the Directions imposing a vaccine mandate, Mr Bateson could not perform an inherent requirement of the job after 15 October 2021, and that its position was lawful and reasonable (given that failure to comply with the Directions would have been an offence by the company);
• the dismissal was not procedurally unfair because Mr Bateson was provided notice of the vaccination requirement and was (despite an incorrect email address being used to send letters) otherwise aware of the stand down and of dismissal being a potential consequence of remaining unvaccinated. In respect to the incorrect email address, Ventura submit that it was Mr Bateson’s responsibility as an employee to inform his employer of his correct email and check that his details on the Connx system were up to date; and
• Ventura submit that even had Mr Bateson received notification of the 21 and 26 October meetings, the dismissal outcome would have been no different as Mr Bateson did not wish to be vaccinated, was unvaccinated at the time of the scheduled meetings, remained unvaccinated at the date of dismissal, was unvaccinated post dismissal (including on 5 November 2021 when he read the dismissal letter) and continues to be unvaccinated.
[59] There are no jurisdictional or preliminary issues arising.
[60] I am satisfied that Mr Bateson was a person protected from unfair dismissal within the meaning of section 382 of the FW Act. He served the required minimum employment period (section 382(a)). His annual rate of earnings did not exceed the high-income threshold (section 382(b)(iii)). His employer was a “national system employer” within the meaning of section 14 of the FW Act. His application was filed within the required 21-days after dismissal.
[61] Ventura is not a “small business” for the purposes of the unfair dismissal provisions of the FW Act.
[62] I now consider whether Mr Bateson’s dismissal was unfair.
[63] Section 387 of the FW Act provides:
“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 Ventura 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 Ventura’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.”
Valid reason
[64] Valid in this context is generally considered to be whether there is a “sound, defensible or well-founded” reason for dismissal and one that is not “capricious, fanciful, spiteful or prejudiced. 23 In considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations.
[65] The Commission will not stand in the shoes of Ventura and determine what the Commission would have done if it was in Ventura’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).
[66] A valid reason is not assessed simply by reference to a legal right to terminate a contract of employment.24
[67] In this matter, the reason for dismissal advanced by Ventura is that Mr Bateson was unable to work as a bus driver given his failure to comply with the requirement imposed by the Victorian government direction that bus drivers be vaccinated (first dose) by 15 October 2021 (or have a booking by then and do so by 22 October) or produce evidence of a medical contraindication.
[68] The effect of the Directions was that Ventura was prohibited from allowing Mr Bateson to undertake work at the depot or drive its buses from 15 October 2021 unless he had been vaccinated or had a booking by then and had done so by 22 October. Mr Bateson decided not to be vaccinated by either date and did not produce a medical exemption. This meant that he was not able to fulfil his role as a bus driver, which could only be performed from the depot and on buses. Nor were there suitable alternative duties reasonably able to be provided.
[69] I also take into consideration that, at the time of dismissal, there was no indication from the Victorian government that the mandate would be of short duration only or in place for other than a reasonable period to meet relevant public health policy objectives.
[70] At the time of dismissal, Mr Bateson had not complied with the requirement in the Directions, either by being vaccinated (first dose) or producing a medical exemption. Nor had Mr Bateson given Ventura any indication of an intent to comply. Indeed, his correspondence of 14 October 2021, twelve days prior to dismissal, was a clear statement of opposition to vaccination. Being largely an assertion of position, the employer did not act unreasonably in not specifically responding beyond its earlier communication.
[71] Whilst Mr Bateson was wrestling with the dilemma he faced, it was not a reasonable option for Ventura to simply maintain his suspension without pay. It was not unreasonable for Ventura to conclude that it could not maintain Mr Bateson’s employment given that he had allowed the first dose deadline to pass without being vaccinated and had not produced a valid exemption.
[72] To have permitted Mr Bateson to drive its buses after 15 October 2021 would have constituted an offence and rendered Ventura liable to a substantial financial penalty.
[73] That Mr Bateson believed the Directions to be unlawful or vaccines against COVID-19 to be unsafe or experimental does not alter this position. There is no evidence before me of unlawfulness. It was a Direction made by a statutory officer under State legislation that the employer was entitled to regard as lawful. If Mr Bateson considers the instrument unlawful, he is entitled to press that view before a court of competent jurisdiction such as the Supreme Court of Victoria. The Commission has no jurisdiction to rule on such matters. Ventura did not have the liberty to pick or choose whether to comply with the Directions. They had been mandated. As observed by a full bench of the Commission in DA v Baptist Care SA: 25
“Unfair dismissal proceedings under Pt 3-2 of the FW Act do not provide an avenue to revisit that policy choice or to assign responsibility for the inevitable consequences of the legislative scheme to employers who are bound by it.”
[74] Ventura had a sound, defensible and well-founded reason to terminate Mr Bateson’s employment. There was a valid reason for dismissal.
[75] This weighs against a finding of unfair dismissal. 26
Notification of reason for dismissal
[76] Notification of a valid reason for dismissal should be given to an employee protected from unfair dismissal before a decision is made to terminate their employment27 and in plain and clear terms.28
[77] When it was eventually received, the termination letter dated 26 October 2021 clearly notified Mr Bateson of the reason for dismissal. The termination letter provided: 29
“As we have not received any evidence from you to confirm you have complied with the State Government COVID-19 Vaccination Mandate for Authorised Workers, I write to confirm your employment is terminated effective from today’s date, 26 October 2021.”
[78] The termination letter had been emailed to Mr Bateson on the day of dismissal but (like the earlier correspondence sent during the stand down period), the termination letter had not been received as it had been sent to an incorrect email address on the Connx system that was not Mr Bateson’s.
[79] As a consequence, the termination letter was not received until 5 November 2021 when re-sent some ten days later, once Ventura had deduced from Mr Bateson’s email of 30 October 2021 that it had used an incorrect email address.
[80] Responsibility for the incorrect email address was shared. I do not accept Ventura’s submission that it was simply caused by Mr Bateson’s failure to update the Connx record.
[81] Whilst Connx was a self-service system and the error could have been corrected by Mr Bateson had he noticed it when logging-in (for example, when applying for leave), he was not using Connx to send himself emails and thus had no particular reason to closely observe the address displayed. Likewise, the incorrect address on display would not have appeared odd to Ventura given it referred to ‘[redacted]’. Ventura could only have updated its records if advised of a changed email address (which Mr Bateson had not done). However, Connx was Ventura’s system, and Ventura elected (not unreasonably) to use details on that system to send employee communications.
[82] In any event, the error was inadvertent, and a consequence of an incorrect entry made well prior to relevant events.
[83] Less ambiguously, there is fault properly laid at the feet of Ventura for the extent of the ten-day delay in notification of dismissal. In this period, Mr Bateson was awaiting an indication from the employer as to his status and circumstances. He did not sit on his hands. He acted promptly after noticing (on 29 October) a lump sum had been deposited into his bank account. He sent Ventura the 30 October 2021 email. In contrast, Ventura did not promptly reply. It took six days to do so. Had it acted on the next business day, the delay in notification would have been five and not ten days. Ventura’s explanation, by way of submission (not evidence), was that this was regrettable but due to a short (Melbourne Cup) week. That explanation, untested as it is, is unconvincing. The Melbourne Cup public holiday is one day of a working week.
[84] I find that whilst Mr Bateson was notified of the reason for dismissal, it was a delayed notification which in part was due to failure on Ventura’s part.
[85] This delay in notification weighs somewhat in favour of a finding of unfairness.
Opportunity to respond
[86] An employee protected from unfair dismissal should be provided an opportunity to respond to a reason for dismissal relating to their conduct or capacity. An opportunity to respond should be provided before a decision is taken to terminate an employee’s employment.30
[87] The opportunity to respond is an element of procedural fairness but does not require formality. This consideration is to be applied in a common-sense way to ensure the employee is treated fairly.31 Where an employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, that is enough to satisfy this consideration.32
[88] There is no doubt that Mr Bateson did not receive (due to an incorrect email address being used) notification of the meeting of 21 October 2021 nor the rescheduled meeting of 26 October 2021. Those meetings would have provided Mr Bateson an opportunity to explain his position face-to-face and be confronted with the blunt reality that his non-compliance with the mandate provided Ventura a valid reason for dismissal, and that the company was minded to proceed with that course.
[89] However, whilst those specific opportunities to respond were denied Mr Bateson he was not denied a more general opportunity to respond. He was aware from the notice of 1 October 2021 (which he had read and photographed) and the letter of 4 October (which he had been handed) of the vaccination mandate for bus drivers and that compliance was required by Ventura “in order to continue working onsite”. That sense of awareness, heightened once he was stood down, is what led Mr Bateson to write his letter of 14 October 2021. That letter was a written response to Mr Bateson’s concerns about the vaccination requirement and (in his words) “that you [Ventura] consider this mandatory for my employment”. 33 In his evidence, Mr Bateson accepted that he was aware that he would not likely keep his job if he remained unvaccinated.34
[90] Considered overall, Mr Bateson had an opportunity to respond to the risk that remaining unvaccinated presented to his job security, and he did so in writing twelve days prior to dismissal. However, the fact he was unaware (due to an incorrect email address in Ventura’s records) of the further opportunity to meet face-to-face and confront the blunt realities of his position, weighs somewhat, but only somewhat, in favour of a finding of unfairness.
Opportunity for support person
[91] Where an employee protected from unfair dismissal has requested a support person to assist in discussions relating to dismissal, an employer should not unreasonably refuse that person being present.
[92] No requests were made given that Mr Bateson did not meet on the two occasions scheduled by the employer.
[93] Ventura did not unreasonably refuse Mr Bateson a support person. This is a neutral consideration.
Warnings concerning performance
[94] This matter does not concern Mr Bateson’s performance or competency as a bus driver. This consideration is not relevant.
Size of enterprise and human resource capability
[95] The employer is not a small business within the meaning of the FW Act.
[96] There is no sense in which the size of the employer or its internal human resources capacity mitigated managing workplace or disciplinary matters in a fair manner.
[97] This is a neutral consideration.
Other matters
[98] There are no other matters arising.
[99] In considering whether Mr Bateson’s dismissal was “harsh, unjust or unreasonable” the Commission is required to consider each of the matters in section 387 of the FW Act to the extent relevant.35 Those matters must be considered as part of an overall assessment. Each assessment must be made on its merits. That assessment is to be based on the ordinary meaning of the words, in their statutory context. Context includes the object stated in section 381(2) of the FW Act that:
“…the manner of deciding on and working out such remedies are intended to ensure that a “fair go all round” is accorded to both the employer and the employee concerned.”
[100] In arriving at an overall assessment, the statutory considerations must be applied in a practical, common-sense way to ensure that Ventura and the employee are each treated fairly.36
[101] This fairness principle applies to all matters under Part 3-2 of the FW Act including where an employee is dismissed for being unable to perform an inherent requirement of a job due to the action of a third party (in this case, the Acting Chief Health Officer making the Directions of 7 October 2021). As observed by a full bench of the Commission: 37
“[I]n a situation where an employee’s capacity to perform the inherent requirements of their job is affected by the actions of a third party, the employer still has an obligation to treat the employee fairly.”
[102] I have found a valid reason for dismissal (s 387(a) FW Act) given that to have permitted Mr Bateson to drive its buses after 15 October 2021, which was an inherent requirement of his job, would have constituted an offence and rendered Ventura liable to a substantial financial penalty.
[103] However, I have found two elements of procedural unfairness in the dismissal process relevant to ss 387(b) and (c) of the FW Act. One (Mr Bateson being unaware of the pre-dismissal meetings and thus denied a face-to-face opportunity to explain his position) was the product of a communication failure for which the employer was somewhat but not wholly responsible; the other (a post-dismissal delay in notification) in material part the result of failure by Ventura.
[104] Unfair dismissal matters are multifactorial.38
[105] I take into account the observations of a Full Bench of the Commission in Parmalat Food Products Pty Ltd v Wililo: 39
“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.”
[106] In this passage both the importance of a valid reason and procedural fairness are emphasised.
[107] Considered overall, and weighing relevant factors, whilst Mr Bateson has cause to feel aggrieved about elements of the dismissal process, I conclude that the procedural failures when viewed in context do not outweigh what was a valid reason for dismissal. Only if Mr Bateson had been vaccinated by the prescribed deadline could he have reasonably continued to be employed by Ventura driving its buses given the obligation the company had to comply with the Directions. I am not satisfied that a material change in Mr Bateson’s position would have been a likely consequence had he attended a face-to-face pre-dismissal meeting. Further, the delay in notification post-decision, had it not happened or been for a lesser period, would not have altered the employer’s obligation to comply with the Directions and thus its decision to dismiss.
[108] The denials of procedural fairness, in circumstances where dismissal was based on a direction imposed by law precluding Ventura from allowing Mr Bateson to drive buses, do not render his dismissal unfair.
[109] For the sake of completeness, and whilst the submission was not put, I have considered whether Mr Bateson’s dismissal took effect on 5 November 2021 (when he received the re-sent email notification) rather than 26 October 2021 (when notice of dismissal was electronically dispatched). There is authority (Ayub 40) for the proposition that a dismissal notified by email does not take effect until received in an in-box reasonably accessible to an employee. Ayub, however, did not deal with circumstances where an incorrect email address was used in good faith and the error was unknown to the employer. Nor did Ayub deal with the circumstance where termination monies had been deposited into the employee’s account (and identified as such) prior to the correctly addressed termination letter being re-sent days later. I need not deal with this question to finality as, in the circumstances of this matter, I have taken the ten-day post 26 October 2021 delay into account in considering procedural fairness. Further, Mr Bateson incurred (leave accruals aside) no direct income loss during this period as he had been stood down without pay two weeks earlier. My conclusion that Mr Bateson’s dismissal was not, considered overall, unfair would not differ if the date his dismissal took effect was 5 November 2021 rather than 26 October 2021.
[110] Having not found the dismissal to be harsh, unjust or unreasonable, no issue of remedy arises.
[111] Mr Bateson’s application is dismissed. An order 41 giving effect to this decision is issued in conjunction with its publication.
DEPUTY PRESIDENT
Appearances:
M Gregory, on behalf of, Peter Bateson
M Wood and K Caldow, of and on behalf of, Ventura Transit Pty Ltd
Hearing details:
2022
Adelaide (by video conference)
17 February
Printed by authority of the Commonwealth Government Printer
<PR738518>
1 A1 and A16; A15 and A39
2 A2 to A14, A16 to A38
3 R1
4 R2 to R14
5 A39 paragraph 41
6 R3
7 link at page 197 Digital Court Book (Mr Bateson’s materials)
8 COVID-19 Mandatory Vaccination (Workers) Directions (7 October 2021) clause 5 and Schedule 1
9 R2 and A20
10 A39 paragraph 41 (as amended)
11 R4
12 R5
13 A14
14 R7 and R8
15 A36 and A37
16 Kimber v Sapphire Coast Community Aged Care Limited [2021] FWCFB 6015
17 R10
18 R11
19 R12
20 A5
21 R13
22 A6, A7 and A8
23 Sydney Trains v Hilder [2020] FWCFB 1373 at [26]
24 Sydney Trains v Hilder [2020] FWCFB 1373 at [26] principle (6)
25 [2020] FWCFB 6046 at [31]
26 Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 7498 at 20
27 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 at [73]
28 Previsic v Australian Quarantine Inspection Services Print Q 3730 (AIRC, 6 October 1998)
29 A33
30 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 at [75]
31 RMIT v Asher (2010) 194 IR 1 at 26-30
32 Gibson v Bosmac Pty Ltd (1995) 60 IR 1 at 7
33 A37 paragraph 2
34 Audio transcript 17 February 2022 11.46am
35 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR 915674 at [69] (AIRC, 21 March 2002)
36 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation (2004) 133 IR 458 per Ross VP, Williams SDP, Foggo C and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C at [36]
37 DA v Baptist Care SA [2020] FWCFB 6046 at [32]
38 Jones v Brite Services [2013] FWC 4280 at [24]
39 [2011] FWAFB 1166 at 24
40 Ayub v NSW Trains [2016] FWCFB 5500 at [50]