Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Ian William Johnson
v
Flinders Adelaide Container Terminal Pty Ltd
(U2021/10280)

Application for an unfair dismissal remedy – stevedore – failure to be vaccinated against COVID-19 or produce medical exemption – South Australian government direction – whether valid reason – procedural fairness – dismissal not harsh, unjust or unreasonable – application dismissed

[1] On 15 November 2021 Ian Johnson (the applicant or Mr Johnson) 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 Flinders Adelaide Container Terminal Pty Ltd (Flinders or the respondent). At the date of dismissal Mr Johnson was employed as a stevedore.

[2] Mr Johnson claims his dismissal was harsh, unjust or unreasonable. He does not seek reinstatement. He seeks compensation.

[3] Flinders oppose the application. It contends Mr Johnson’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] I issued directions on 6 January 2022.

[6] In advance of the hearing, I received materials from Mr Johnson and Flinders.

[7] I heard the matter by video conference on 21 February 2022.

[8] Mr Johnson was self-represented. Flinders were legally represented following a contested grant of permission on 2 February 2022. 1 Consistent with my responsibility as an independent decision-maker, I provided a measure of assistance to Mr Johnson at the hearing to ensure his case was presented and that of Flinders tested.

Evidence

[9] Mr Johnson gave oral evidence on three statements 2 and twenty-four documents accompanying his materials.3

[10] For Flinders, David Sleath General Manager gave evidence 4 as did Julie Lawson, Group Industrial Relations/Employee Relations Manager5.

[11] The disputed facts are few. All witnesses gave evidence conscientiously and to the best of their recall. The matter largely involves differences of opinion as to a vaccine mandate, not disputed facts.

Facts

[12] I make the following findings.

[13] Flinders conducts stevedoring operations on the South Australian waterfront including in Adelaide.

[14] Mr Johnson was a stevedore. Until dismissed, he served almost twelve years; starting with DP World Adelaide until that business was purchased by Flinders. 6

[15] Mr Johnson was an active member of the maritime division of the CFMMEU (MUA SA).

[16] On 29 September 2021 the Commissioner of Police and State Co-ordinator for South Australia under the Emergency Management Act 2004 (SA) issued a direction whereby a person was prohibited from embarking on a commercial vessel in South Australia unless they had, by 11 October 2021, a first dose of an approved vaccine against COVID-19 and a second dose fourteen days thereafter (the Direction). Provisions existed for persons presenting with an appropriate medical exemption. 7 The 29 September 2021 instrument replaced a similar direction made some weeks earlier.

[17] An effect of the Direction was that a stevedore was unable to work on a commercial ship berthed at Adelaide unless they had been (first dose) vaccinated by the 11 October 2021 deadline or were exempt. Refusal or failure by an employer to comply with the Direction was an offence carrying a significant penalty.

[18] Flinders determined, and I accept, that the Direction applied to Mr Johnson’s employment at all relevant times.

[19] In the month prior to dismissal, a dispute arose between Mr Johnson and Flinders over the vaccination mandate.

[20] Mr Johnson first became aware of a direction requiring vaccination via a notice from his union concerning an earlier direction in September 2021. 8 He then became aware of the requirement by emails from his employer on 9, 21, 24 and 30 September 2021.9

[21] Mr Johnson disagreed with the mandate. On 21 September 2021 he emailed Flinders: 10

“Hi I am informing you that I will not be getting the covid vaccine at the present time. My health hasn't been to good of late, there is also alot of controversy over the vaccine and the effects it has on people. I reserve my right to wait until I know it is 100% safe for humans.

Regards Ian Johnson”

[22] Mr Johnson also expressed his view to the MUA SA. After lengthy communication, he came to be dissatisfied with the union’s response. 11

[23] Five days before the deadline, on 6 October 2021 Flinders General Manager Mr Sleath personally telephoned those stevedores, including Mr Johnson, who had not produced evidence of a first dose vaccination or an exemption. Mr Johnson declined to advise Mr Sleath of his vaccination status, considering it a private matter. 12

[24] On 8 October 2021 Flinders wrote to Mr Johnson affirming the vaccination requirement as per the Direction, advising that from 11 October 2021 “the company would not be obliged to allocate you any duties until such time as you are able to comply”, advising that the company would be “entitled to terminate your employment on the grounds that you are unable to perform the inherent requirements of your position”, directing Mr Johnson to provide proof of a vaccine or proof of exemption by 18 October 2021 and requesting to meet on 11 October 2021. 13

[25] On 11 October 2021 the Direction’s mandate came into operation. Mr Johnson did not work shifts after that date.

[26] Mr Johnson declined to meet his employer on 11 October 2021. Prior to the meeting, he advised Mr Sleath that it would be unproductive on both sides given the difference of position. Mr Sleath acknowledged Mr Johnson’s desire not to meet.

[27] Flinders decided to provide a week’s extension (to 18 October) to allow stevedores objecting to vaccination to consider their options and meet the company. From 11 October 2021, Flinders agreed to temporarily roster those employees on land (not on vessels) and thus not breach the Direction. This temporary arrangement existed for about ten days. From 21 October 2021, unvaccinated employees (those without exemptions) were then stood down from the roster, on pay.

[28] Mr Johnson decided to take personal leave and annual leave rather than be stood down. He took sick leave from 12 to 18 October 2021 (supported by a medical certificate).

[29] On 13 October 2021 Mr Johnson wrote to Flinders requesting a risk assessment on the mandate, said that the employer had imposed a “hurried deadline” and advised he was “ready, willing and able to work in my role and remain so into the future”. 14

[30] On 14 October 2021 Flinders replied indicating that the mandate had been imposed by a government Direction with which it was required to comply, and not by the company. 15

[31] On 15 October 2021 Flinders wrote to Mr Johnson advising it would grant him annual leave once his personal leave expired but would not do so beyond one month (to 15 November 2021). Flinders directed Mr Johnson to attend a rescheduled meeting (for 19 October 2021). 16

[32] On 16 October 2021 Mr Johnson emailed Flinders as follows: 17

“I am writing to inform you that 1 am not going to be forced or threatened to have a vaccine that has a lot of information around it that it is harmful to myself and others. There are court cases happening that will prove it is illegal to force people in to having it. I am refusing to have a vaccine because it is my right to say no, you say you are acting on the cross border directions but you have a choice to implement these directions you are choosing to follow them, if you were so concerned about covid-19 you wouldn't be bringing ships in to Port under the quarantine time frame of 14 days and not testing the crew, I DECLINE TO BE FORCED TO HAVE A VACCINE AND AWAIT THE TERMINATION OF MY EMPLOYMENT” (capitals in original)

[33] Flinders (via Ms Lawson) replied on 16 and 18 October 2021 seeking clarification of Mr Johnson’s intention and indicating “we really would like the opportunity to talk to you”. 18

[34] On 18 October 2021 Mr Johnson wrote to Flinders as follows: 19

“Hi I will not be attending the meeting on the 19th, you answered my questions the other day in your letter. My options are get vaccinated, take a redundancy package or have my position terminated but you are offering me a chance to take 4 weeks of my annual leave/ long service. What for? I won’t be guaranteed that 1 will have my job at the end of the leave. I have chosen to have my position terminated because it is in my best interests. I was told on the 18th October 2021 my position would be terminated due to me not being vaccinated. I would appreciate it if you would go through with your threat, the other options I am not interested in. For the record of my first meeting I spoke to david sleath by phone, it was decided then I wouldn't attend the meeting.” (my emphasis)

[35] The scheduled 19 October 2021 meeting did not go ahead.

[36] Mr Johnson and Ms Lawson communicated further by email on 19 and 20 October 2021. 20

[37] On 20 October 2021 Ms Lawson invited Mr Johnson to “consider taking the option of 4 weeks leave or at the very least take a further 7 days from today to think about what you want to do”. Mr Johnson replied that Flinders had been “threatening me” and said, “when I finally make my mind up and ask you terminate my employment you will not do it, you seem to want to drag this thing on.” Ms Lawson indicated that she was “sorry you are feeling this way…I therefore…acknowledge your resignation”. Mr Johnson replied “just to make it clear I did not resign my employment position. I was choosing an option that was given to me by flinders ports concerning the vaccine mandate.” 21

[38] On 21 October 2021 Flinders wrote to Mr Johnson advising that it considered his two emails of 20 October a retraction of his resignation but gave notice of “likely termination of your employment” on the ground of “being unable to perform an inherent requirement of the job”. Flinders gave Mr Johnson a deadline to respond by close of business 25 October 2021. 22

[39] On 24 October 2021 Mr Johnson responded (by email) indicating that he regarded the mandate as an “unlawful workplace direction”, that he “withdrew and retracted all and any former correspondence” and sought to be advised when he could “report back to work…with immediate effect”. 23

[40] Ms Lawson then discussed the matter with Mr Sleath. Ms Lawson recommended that Mr Johnson be dismissed as he was unable to be employed on vessels. Mr Sleath considered the matter and agreed. He did not believe that offering on-going land-based work only to unvaccinated stevedores was operationally viable. Ms Lawson drafted a termination letter dated 26 October 2021 which Mr Sleath signed. It was hand delivered and sent by email. It read: 24

“Dear Ian

Termination of your employment with Flinders Adelaide Container Terminal (FACT) Pty Ltd

I refer to:

1. Your employment at FACT in the position of Stevedore;

2. The show cause letter to you of 21 October 2021; and

3. Your emails sent to myself and Julie Lawson, Group IR/ER Manager at 21:30 and 21:33 respectively on 24 October 2021.

In my letter of 21 October 2021, I advised you that FACT was considering terminating your employment, on the grounds that you have failed to provide FACT with any proof of at least one dose of a TGA (Therapeutic Goods Administration) approved vaccination against COVID-19 or evidence of a medical exemption from vaccination, and you accordingly cannot fulfil the inherent requirements of your contracted position.

You were asked to provide a response to my letter by 5pm on 25 October 2021. You were invited to provide any further information that may be relevant to my decision as to your ongoing employment.

In your identical emails which were received on 24 October 2021, you did not provide any further information (medical or otherwise) in relation to your ability to comply with the Cross Border Travel Associated Direction 55 (Direction) and any subsequent Directions.

I do not accept the assertion in your email that you have only been provided with "short notice" of the vaccination requirement imposed by the Direction. You have been on notice of the COVID-19 vaccination requirement since 9 September 2021. Since then, you have been reminded of the direction issued to you by FACT on a number of occasions. You declined various meeting requests and subsequent offers of taking time to consider your vaccination status by repeatedly advising via email that you wanted to be terminated from your employment. This information was initially interpreted to be your resignation however, you latterly advised this was not your intention.

While we understand that vaccination is a personal choice for you, the Direction made under the Emergency Management Act 2004 mandated the vaccination requirements in relation to persons who embark commercial vessels that arrive in South Australia from a country other than Australia or from a restricted zone. The Company must comply with this legal requirement, and despite numerous written directions you have chosen not to provide FACT with proof of vaccination or medical exemption and therefore you are unable to perform the inherent requirements of your position.

Consequently, based on the information available to me, I have made the decision to terminate your employment on the grounds of your inability to lawfully embark vessels in accordance with the Direction, and consequently, your inability to perform the inherent requirements of your role, now or in the foreseeable future.

Further or in the alternative, the Company would be entitled to treat your failure to provide proof of vaccination or medical exemption as breach of a lawful and reasonable direction issued to you. In all the circumstances, including but not limited to the Direction, this refusal likely constitutes serious misconduct, entitling FACT to terminate your employment immediately, without notice.

Your employment at FACT will end effective today, 26 October 2021.

I confirm that you will be paid your usual wages up to today, and that your recent absence from work while stood down on pay will be treated as normal service, and no leave has been deducted for this period.

Despite the fact that you have arguably engaged in serious misconduct, you will be paid four (4) weeks in lieu of notice, and any accrued statutory entitlements owing to you calculated to today's date. The payment will be made to your preferred bank account during the next scheduled payroll run.

If you have any Company property, including uniform items please contact me directly to make arrangements to return these items and if you have personal property remaining in the workplace please also let me know and arrangements will be made for it to be couriered to your address.

Please direct any questions or future correspondence in relation to your employment to myself.

I thank you for your time at FACT, and wish you well for the future.

Yours sincerely

David Sleath
General Manager”

[41] Mr Johnson was paid four weeks in lieu of notice.

[42] At the date of dismissal, Mr Johnson was unvaccinated. He had not produced a medical exemption to his employer. This remained his status at the hearing.

[43] Twenty days after dismissal, on 15 November 2021, Mr Johnson lodged an unfair dismissal claim.

[44] Since dismissal, Mr Johnson has been unemployed. He says he has applied for approximately ten jobs in forklift driving and related work. On some applications he has not been successful, on others he is awaiting a response.

Submissions

Mr Johnson

[45] Mr Johnson claims his dismissal was harsh, unjust or unreasonable. He seeks compensation.

[46] He claims dismissal was unfair on multiple grounds:

•  there was no valid reason for dismissal because the vaccine mandate as expressed in the Direction is unlawful;

•  there was no valid reason for dismissal because vaccines against COVID-19 are unsafe and a risk to his future health and safety;

•  there was no valid reason for dismissal because it was Flinders who put the health and safety of stevedores at risk by allowing vessels to berth with crews that had not been tested for COVID-19;

•  there was no valid reason for dismissal because Flinders could have but did not roster unvaccinated stevedores exclusively on land or straddle work for the duration of the Direction;

•  the dismissal was procedurally unfair because Flinders threatened and bullied him; and

•  the dismissal was procedurally unfair because the period of notice given by Flinders to be vaccinated was unreasonably short.

Flinders

[47] Flinders contend 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 Johnson remained unvaccinated and had not produced a medical exemption. Having regard to the Direction prohibiting unvaccinated stevedores working on vessels, Mr Johnson could not perform an inherent requirement of his job from 11 October 2021. The employer’s position that the Direction be complied with was lawful and reasonable because failure to do so would have been an offence by the company; and

•  the dismissal was not procedurally unfair because Mr Johnson was provided multiple notices of the vaccination requirement imposed by the Direction; was given an extension of time to comply; was allowed to reconsider his position despite asking to be terminated; was advised of dismissal being a likely consequence of remaining unvaccinated (or not exempt); and had opportunities to attend two meetings after the 11 October 2021 deadline but declined to do so.

Consideration

[48] There are no jurisdictional or preliminary issues arising.

[49] I am satisfied that Mr Johnson 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.

[50] Flinders is not a “small business” for the purposes of the unfair dismissal provisions of the FW Act.

[51] I now consider whether Mr Johnson’s dismissal was unfair.

[52] 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 Flinders 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 Flinders’ 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

[53] 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. ²⁵ 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.

[54] The Commission will not stand in the shoes of Flinders and determine what the Commission would have done if it was in Flinders position. The question the Commission must address is whether there was a valid reason for dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).

[55] A valid reason is not assessed simply by reference to a legal right to terminate a contract of employment.²⁶

[56] In this matter, the reason for dismissal advanced by Flinders is that Mr Johnson was “unable to lawfully embark vessels in accordance with the Direction, and consequently, your inability to perform the inherent requirements of your role, now or in the foreseeable future”. 27

[57] The effect of the Direction was that Flinders was prohibited from allowing Mr Johnson to undertake work on commercial vessels berthed at his place of work from 11 October 2021 unless he was vaccinated (first dose) against COVID-19 or had a valid medical exemption. Mr Johnson decided not to be vaccinated by that date and did not provide a medical exemption. This meant that he was not able to fulfil a core element of his role as a stevedore, which was to work on commercial vessels.

[58] I am well satisfied there were no suitable alternative duties (such as ongoing land-based work) reasonably available for unvaccinated stevedores on an ongoing basis. Mr Sleath’s evidence, which I accept, was Flinders required stevedores to work on vessels and that the efficiency of operations would be materially compromised should unvaccinated stevedores have roles artificially carved out to work only on land or on straddles. Flinders provided a land-based option for a temporary (ten day) period only to enable unvaccinated stevedores time to consider their position; after that Flinders provided access to a month’s annual leave for those holding out. In any event, Mr Johnson did not consider that even the temporary land-based option suited his preferences. He preferred a mix of personal and annual leave to maintain income during this period, and then requested termination.

[59] I also consider it reasonable to take into consideration that, at the time of dismissal, there was no indication from the State Co-ordinator for South Australia (who issued the Direction) 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.

[60] At the time of dismissal, Mr Johnson had not complied with the requirement in the Direction, either by being vaccinated (first dose) or producing a valid medical exemption. Nor had Mr Johnson given Flinders any indication of an intent to comply. Indeed, his emails in the preceding days and weeks were clear statements of opposition to the mandate. He sought termination in preference to other options. In these circumstances, it was not unreasonable for Flinders to conclude that it could not maintain his employment given that Mr Johnson had allowed the first dose deadline to pass without being vaccinated or produce an exemption.

[61] To have permitted Mr Johnson to undertake his duties as a stevedore (including working on vessels) after 11 October 2021 would have constituted an offence and rendered Flinders liable for a substantial financial penalty.

[62] That Mr Johnson believed the Direction to be unlawful 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 Johnson considers the instrument unlawful, he is entitled to press that view before a court of competent jurisdiction such as the South Australian Supreme Court. The Commission has no jurisdiction to rule on such matters.

[63] Nor is the position altered by the fact that Mr Johnson believed vaccines against COVID-19 to be unsafe. 28 Flinders did not have the liberty to pick or choose whether to comply with the Direction. It had been mandated. As noted, continuing to employ Mr Johnson on vessels in breach of the Direction exposed the employer to prosecution and penalties for an offence. As observed by a full bench of the Commission in DA v Baptist Care SA:²⁹

“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.”

[64] The submission by Mr Johnson that no valid reason for dismissal existed because it was Flinders who put the health and safety of stevedores at risk by allowing vessels to berth with crews that had not been tested for COVID-19 does not take the matter further. As Mr Sleath said in evidence, Flinders did not make the rules about whether ship crews were or were not subject to mandatory COVID-19 testing. That Mr Johnson decided not to be vaccinated against COVID-19 as required by the Direction sits uncomfortably with his concern about working on vessels alongside crew members untested against COVID-19.

[65] Flinders had a sound, defensible and well-founded reason to terminate Mr Johnson’s employment. There was a valid reason for dismissal. This weighs against a finding of unfair dismissal. 30

Notification of reason for dismissal

[66] 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 employment³¹ and in plain and clear terms.³²

[67] The evidence clearly establishes that Mr Johnson was informed of the reason for dismissal at the time of notification. Indeed, he was expressly advised in advance of dismissal of the likelihood of dismissal (and the reason) should he remain unvaccinated and not produce a valid exemption, as required by the Direction.

[68] Whilst Mr Johnson disagreed with the reason for dismissal, he was informed in those express terms.

[69] This is a neutral consideration.

Opportunity to respond

[70] 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.³³

[71] 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.³⁴ 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.³⁵

[72] The evidence clearly establishes that Mr Johnson had multiple opportunities to respond to the employer’s advice that the Direction required vaccination or production of a valid exemption by the 11 October 2021 deadline in order to continue working on vessels. Mr Johnson twice declined the opportunity to meet in person (12 and 19 October 2021), preferring to respond largely by email to Ms Lawson and Mr Sleath.

[73] Mr Johnson’s submission that he was threatened and bullied is unsupported by an objective consideration of the evidence. No doubt he felt pressured by the circumstances given his view that vaccines against COVID-19 were unsafe. However, an employee being advised in clear and measured terms by their employer that dismissal was a possible or even likely consequence of decisions they make is an element of procedural fairness, not an act of bullying.

[74] Flinders communicated openly and repeatedly with Mr Johnson. It provided options some of which were taken up, some of which were spurned. Mr Johnson ultimately sought to be terminated. When it became apparent to Flinders that by this Mr Johnson was seeking to be terminated not at his initiative but theirs, Flinders promptly indicated that it would not process his request as a resignation; rather, it encouraged Mr Johnson to take more time to consider his position. When Mr Johnson then expressed frustration that his desire to be terminated was not being actioned, Flinders provided him one final opportunity to respond in advance of deciding whether to dismiss. This was procedural fairness writ large.

[75] Nor do I accept Mr Johnson’s submission that the dismissal was procedurally unfair because the period of notice given by Flinders to be vaccinated was unreasonably short. Four weeks passed between advice from Flinders about the Direction and his dismissal. In this period, vaccination clinics were notified and made available by the employer. This period was more than adequate for Mr Johnson to consider his position, especially since he was aware three weeks prior of an earlier direction.

[76] Moreover, the 11 October 2021 deadline was set by the statutory officer who made the 29 September 2021 Direction, not Flinders. In any event, through the temporary land-based option and accommodating a combination of stand down and leave requests, Flinders extended the date for unvaccinated stevedores to consider their position. As late as 20 October 2021 Ms Lawson encouraged Mr Johnson “to consider taking the option of 4 weeks leave or at the very least take a further 7 days from today to think about what you want to do”. It was Mr Johnson’s insistence on being terminated that ultimately saw him dismissed on 26 October 2021 and not some weeks later.

[77] Further, by accommodating options sought by Mr Johnson once the mandate commenced (and after Mr Johnson’s last shift), Flinders enabled Mr Johnson to maintain income in the period 11 to 26 October 2021. By deciding on four weeks’ pay in lieu of notice, Flinders provided post-dismissal income despite its view that the company was entitled to dismiss without notice and Mr Johnson’s insistence that he would not “be taking the package” 36.

[78] Considered overall, Mr Johnson had full opportunity to respond to a transparent and procedurally fair process leading to his dismissal. He did so in the manner he saw fit.

[79] This consideration weighs against a finding of unfairness.

Opportunity for support person

[80] 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.

[81] No requests were made given that Mr Johnson declined to meet on the two occasions scheduled by the employer.

[82] Flinders did not unreasonably refuse Mr Johnson a support person. This is a neutral consideration.

Warnings concerning performance

[83] This matter does not concern Mr Johnson’s performance or competency as a stevedore. This consideration is not relevant.

Size of enterprise and human resource capability

[84] The employer is not a small business within the meaning of the FW Act.

[85] 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.

[86] This is a neutral consideration.

Other matters

[87] There are no other matters arising.

Conclusion

[88] In considering whether Mr Johnson’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.³⁷ 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.”

[89] In arriving at an overall assessment, the statutory considerations must be applied in a practical, common-sense way to ensure that Flinders and the employee are each treated fairly.³⁸

[90] 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 State Co-ordinator for South Australia making the Direction of 29 September 2021). As observed by a full bench of the Commission: 39

“[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.”

[91] I have found a valid reason for dismissal given that, after 11 October 2021, Mr Johnson was unable to lawfully embark vessels in accordance with the Direction and consequently unable to perform an inherent requirement of his role as a stevedore from that date and into the foreseeable future.

[92] I have also found that Mr Johnson had full opportunity to respond to a transparent and procedurally fair process in advance of being dismissed.

[93] No factors in s 387 of the FW Act weigh in favour of a finding of unfairness; considerations under ss 387 (a) and (c) weigh against such a finding.

[94] Considered overall, Mr Johnson’s dismissal was not unfair.

Conclusion

[95] Having not found the dismissal to be harsh, unjust or unreasonable, no issue of remedy arises.

[96] Mr Johnson’s application is dismissed. An order 40 giving effect to this decision is issued in conjunction with its publication.

DEPUTY PRESIDENT

Appearances:

Mr I Johnson, on his own behalf.

Mr M Kay with Mr S Brand, with permission and on behalf of, Flinders Adelaide Container Terminal Pty Ltd.

Hearing details:

2022
Adelaide (by video conference)
21 February

Printed by authority of the Commonwealth Government Printer

<PR738599>

 1   Decision at Email ‘Chambers - Anderson DP’ 2 February 2021

 2   A1 to A3

 3   A4 to A27

 4   R1

 5   R2

 6   JL-1 and JL-2

 7   JL-3 Emergency Management (Cross Border Travel – Associated Direction No 55) (COVID-19) Direction 2021 clause 9

 8   A4

 9   JL-4, JL-5, JL-7 and JL-8

 10   JL-6

 11   A26 and A27

 12   DS-1

 13   JL-10

 14   Jl-11

 15   JL-12

 16   JL-13

 17   JL-14

 18   JL-14 and JL-15

 19   JL-16

 20   JL-16, JL-17, JL-18 and JL-19

 21   JL-20

 22   JL-21

 23   JL-22

 24   A22; JL-23

25 Sydney Trains v Hilder [2020] FWCFB 1373 at [26]

26 Sydney Trains v Hilder [2020] FWCFB 1373 at [26] principle (6)

 27   JL-23 Termination letter 26 October 2021

 28   Audio transcript 21 February 2022 11.15am

29 [2020] FWCFB 6046 at [31]

 30   Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 7498 at 20

31 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 at [73]

32 Previsic v Australian Quarantine Inspection Services Print Q 3730 (AIRC, 6 October 1998)

33 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 at [75]

34 RMIT v Asher (2010) 194 IR 1 at 26-30

35 Gibson v Bosmac Pty Ltd (1995) 60 IR 1 at 7

 36   JL-17

37 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR915674 at [69] (AIRC, 21 March 2002)

³⁸ 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]

 39   DA v Baptist Care SA [2020] FWCFB 6046 at [32]

 40   PR738600