| [2022] FWC 932 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ursula Bernadette Gee
v
Eastern Health
(U2021/11219)
COMMISSIONER WILSON |
MELBOURNE, 22 APRIL 2022 |
Application for an unfair dismissal remedy. Refusal or failure to provide vaccination information; whether work could be performed entirely from home. Section 387 considered. No unfair dismissal.
[1] This decision concerns an application for an unfair dismissal remedy made by Mr Ursula Gee pursuant to s.394 of the Fair Work Act 2009 (the Act). The application was filed in the Fair Work Commission (the Commission) on 31 January 2022 (the Application) after Ms Gee was dismissed by the Respondent, Eastern Health, with effect from 15 November 2021.
[2] For the reasons set out below I find Ms Gee was not unfairly dismissed.
PRELIMINARIES
[3] The merits of the Application were the subject of a hearing convened by me on 4 March 2022. Ms Gee appeared on her own behalf. Permission was sought by Eastern Health to be represented by Mr Nicholas Harrington of Counsel, instructed by Mr David Hartnett of K & L Gates, solicitors. I determined that the requirements under s.596(2) of the Act were met, and permission was duly granted. After consulting with the parties on the subject, as required by s.399, I determined the matter would best proceed by way of a hearing, with that course being the most effective and efficient way to resolve the matter.
[4] 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 Ms Gee’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.
BACKGROUND
[5] Ms Gee started work for Eastern Health on 19 October 2015 and by the time of her dismissal had worked for the respondent for 6 years. Eastern Health is a Victorian public entity and Ms Gee’s employment was covered by the Administrative Officers (Victorian Public Health Sector Health and Allied Services, Managers and Administrative Workers) Single Interest Enterprise Agreement 2016 – 2020. Ms Gee was employed as a project officer in the field of stakeholder relations, working for Eastern Health Telephone and Online Services Unit (TOLS). TOLS is part of a business unit known as “Turning Point”, which provides telephone and online services for those seeking help for clients with addiction issues. The services are offered to the community on behalf of the Victorian Government, and also the NSW, SA, Tasmanian and Australian Governments. 1
[6] Ms Gee performed her work from a site in Church Street, Richmond 2 and she did not attend any other site.3 Her work is described by her manager, Rick Loos as involving a range of administrative duties as follows;
“(i) collation of periodic data reports to funding stakeholders;
(ii) analysis of data reports to identify gaps in data entry;
(iii) invoicing to service funders;
(iv) assistance to the Manager of TOLS in resource forecasting and budgeting; and
(v) assistance to the TOLS Operations Coordinator with rostering and pay processes.” 4
[7] Ms Gee contests the accuracy of the summary in a minor respect, saying she was surprised to see the reference to analysis of data reports to identify gaps in data entry, having only done it once. 5
[8] Ms Gee’s employment had also been subject to two separate letters of appointment. The first is expressed as commencing on 21 August 2017 until 21 August 2018, and the second as commencing on 21 August 2018 and being “for a maximum period until 21 August 2020”. 6 Each offer of employment states about the location of her work;
“Healthlink Department, Turning Point Alcohol and Drug Services
In order to respond to organisational needs or workloads you may be expected/required to work in another area and/or site of Eastern Health. This requirement may be a permanent change, temporary or on an ad-hoc basis having regard for your skills, capabilities and scope of practice” 7
[9] No further letter of appointment was issued to Ms Gee, although she kept working for Eastern Health under the same terms and conditions until 15 November 2021.
[10] Prior to the start of the COVID-19 pandemic Ms Gee worked exclusively from Eastern Health’s Richmond premises and did not work from home. Following the start of the pandemic and the Victorian Government’s declaration of a state of emergency she started working from home. Eastern Health’s submission was that this came about after Ms Gee and other employees were offered the option to work from home if they could. Mr Loos asserts that towards the end of her employment Ms Gee was also working on site one day per fortnight to assist the TOLS operation coordinator with staff rostering activities. 8 Ms Gee’s oral evidence was that such attendance was more frequent toward the end of 2021 before she was dismissed, being Monday and Friday.9
[11] In September 2021 Victorian Government issued the first of several Directions under the Public Health and Wellbeing Act 2008 (Vic) (the PHW Act) dealing with vaccinations against COVID-19.
[12] For the purposes of context to terms in this decision, the Directions each use the term “vaccination information”, being the collection of information about a person’s vaccination status, which could be whether the person is fully or partially vaccinated, unvaccinated, or an “excepted person”, 10 being one who holds a medical practitioner’s certification they are unable to be vaccinated. 11
[13] Eastern Health submit the Directions were mandates it was required to comply with in relation to its staff, including Ms Gee. Through Mr Loos, Eastern Health expressed this understanding by writing to the TOLS staff on 4 October 2021. Mr Loos’ email to staff was over an earlier organisation-wide email from Eastern Health’s Chief Executive on 1 October 2021, which appraised staff about a number of COVID-19 related matters and stated to them they were required to be vaccinated;
“Mandatory Vaccination FAQ’s
As advised. Eastern Health now require all staff, contractors, volunteers and students to be vaccinated against COVID-19.
We are currently determining what evidence will be required and update you early next week.” 12
[14] Mr Loos’s email to TOLS staff reinforced this sentiment, stating;
“Hi All,
Further to David Plunkett’s email and, in reference to mandatory vaccination, it seems that unless you have a medical exemption, all staff must be vaccinated whether you are patient facing or not, or, whether you work onsite or from home. I have attached the FAQ’s document linked in his email.
I understand that for staff yet to be vaccinated that this is a difficult time. We will work with Eastern Health HR to get more information regarding impact on working arrangements.
There is an email address if you have any further questions not answered by the FAQ’s - COVIDVaxStatus@easternhealth.org.au however, please let me know if you have any questions and I’ll work on getting responses for you.
Kind Regards,
Rick” 13
[15] Mr Loos’ evidence is that this correspondence followed promulgation of the Victorian Government’s COVID-19 Mandatory Vaccination Directions (No 4) (Direction No 4), made under the PHW Act on 29 September 2021. Direction No 4 revoked the earlier Direction No 3 and is stated as commencing on 29 September 2021 and ending on 21 October 2021, both at 11:59:00pm. The Directions extended the operation of previous direction to healthcare facilities as defined and required by the matters set out in a FAQ document accompanying Mr Plunkett’s correspondence;
“By 15 October 2021 all Eastern Health employees will need to:
• Have received their first dose of the COVID-19 vaccination; or
• Have proof of a COVID-19 vaccination booking by 29 October 2021.
Where an employee is unvaccinated by 15 October 2021 but has proof of a COVID-19 vaccination booking by 29 October 2021, they may continue to work but only where they are wearing appropriate PPE that includes at a minimum a surgical mask and face shield.
By 29 October 2021 all employees will need to:
• Have received their first dose of the COVID-19 vaccination; and
• Have proof of a second COVID-19 vaccination booking by 15 December 2021;
By 15 December 2021 all employees will need to have received both doses of a COVID-19 vaccination.” 14
[16] On 6 October 2021 Mr Loos and Ms Gee spoke about the subject, with Ms Gee saying she did not intend to be vaccinated. 15 She raised with Mr Loos whether she could remain working from home. Mr Loos’ evidence is that he agrees the discussion took place but that he never said he would support her to work from home indefinitely.16
[17] Mr Loos wrote directly to Ms Gee on 12 October 2021, with the correspondence being both more formal as well as more specific. Noting that Eastern Health did not at that date hold information about Ms Gee’s COVID vaccination status it expressed the view that if such continued it both could not lawfully allow her to undertake work as well as that it held the view that a failure to be demonstrate vaccination or exemption meant Ms Gee would be unable to meet the inherent requirements of her job, asserting it had no discretion on these matters and so far as is relevant stated;
“The Chief Health Officer for Victoria (CHO) has now issued Directions under the [Public] and Health Wellbeing Act 2008 (Vic) relating to this decision and we are writing to you because we do not hold [information] about your current vaccination status, and accordingly from 00:00hr on 15 October 2021 we cannot lawfully [allow] you to undertake work for Eastern Health unless you provide evidence that:
a) you have already received one dose of a COVID-19 vaccination; OR
b) you are booked to receive a vaccination by 29 October (and intend to be fully vaccinated before 15 December);
OR
c) vaccination is medically contraindicated for you (certified by a medical practitioner).
In the event that you do not meet one of criteria above, you will be unable to meet the inherent requirements of your employment contract with Eastern Health from 15 October 2021. This is the case even if you can work from home, because there is no entitlement under your employment contract to work from home, and it is not sustainable for any employee to work from home on a permanent basis without ever attending an Eastern Health site.
You will be continue to be paid your ordinary pay, but you cannot work until such time as we can meet with you to review your employment with Eastern Health.
[It] is important for you to understand that Eastern Health has no discretion in implementing the CHO Directions, and that [mandatory] vaccination applies to a wide range of employees across Victoria, not just to healthcare workers” 17
[18] What followed was a series of engagements back and forth between Ms Gee and Mr Loos as well as an Eastern Health People and Culture Business Partner, Ms Emily de Boer, who did not give evidence in these proceedings. The exchanges reinforced that Ms Gee did not intend to be vaccinated and that she believed it would be reasonable for Eastern Health to permit her to work from home, which she put to Eastern Health on several occasions.
[19] The relevant interactions include those set out below.
[20] On 13 October 2021, in response to the mandatory vaccination direction, Ms Gee took issue with the argument that permanently working from home was not sustainable and put forward both that she could satisfactorily perform all her duties and responsibilities from home, and that Mr Loos had stated to her that “he completely supports my working from home on an ongoing basis”. Ms Gee also drew attention to Victorian Government information which she asserted stated “mandatory vaccination is not intended to apply to those working from home”. She put forward that her contract had changed when she was directed to work from home meaning Eastern Health could not now say “say that there is no entitlement to work from home under my employment contract”. Finally, Ms Gee requested she be provided with certain documents, and, in particular, relevant sections of her employment contract. 18
[21] In response Eastern Health resisted the proposition Ms Gee could perform her work entirely from home as well as the request for documents, with Ms de Boer stating to that Ms Gee merely that her “employment contract does not entitle you to work from home 100% of the time, nor is it reasonable or practical for any employee to work from home 100% of the time and never attend site”. 19 Ms Gee responded to Ms de Boer that her response had been “unprofessional and unacceptable” in not providing the requested documents and that in her “role which is administrative and has no client face-to-face contact, it is both reasonable and practical to work from home”.20
[22] On 14 October 2021, in response to an Eastern Health online survey about vaccination status, she stated she did not intend to enter the Turning Point Church Street premises “as I can fully complete all of the inherent functions of my position at Turning Point, working from home”. 21 Ms Gee’s full response to the survey provides insight as to her reasoning for resisting providing the vaccination information (or indeed to be vaccinated). In response to the question “Have you had a COVID Vaccine” she stated firmly she would not be vaccinated, and provided her reasons for that decision;
“Section 13 of the Victorian State government legislation, the Charter of Human Rights and Responsibilities Act 2006 Version No. 014
Section 13 states that a person has the right not to have his or her privacy unlawfully or arbitrarily interfered with, thereby bringing into question whether Eastern Health has infringed upon this right by demanding this private medical information.
EH records should show that I received the influenza vaccine in 2021 at Turning Point, As I recall providing a Medicare Number.
I have read the Victorian Government information of 12 October 2021 regarding Authorised Provider and Authorised Workers, which inter alia states “If their employees are unable to work from home they can leave home to attend work “. This information further states, “No, mandatory vaccination is not intended to apply working from home”
Eastern Health in its blanket approach to the Victorian government mandates and refusal to make any accommodations for actual work circumstances has in fact exceeded the mandate. My position at Turning Point is in an office facing a computer, I have no face-to-face patient nor client contact and barely any phone contact with clients.
I do not intend to enter the offices of Turning Point 110 Church St, from 15 October 2021 00:00 as I can fully complete all of the inherent functions of my position at Turning Point, working from home.” 22
[23] On 25 October 2021 Mr Loos issued on behalf of Eastern Health a show-cause letter to Ms Gee. The correspondence referred to previous interactions with Ms Gee and that non-compliance with the Directions would be an offence. Further;
“An employment contract is illegal - [unreadable] therefore unenforceable - if it involves doing something that is a criminal act or a civil wrong, or against the public good. And whilst some employees may have been able to work from home on a temporary basis during lock downs, this [unreadable] sustainable on a permanent basis. Moreover, employees with medical exemptions, and who comply with the directions, are entitled at law to any suitable redeployment opportunities.
Vaccination is therefore an inherent requirement of employment for all Eastern Health employees, unless one of the specified exemptions applies.
Despite ongoing discussions and communication with you regarding your obligations, and opportunities for you to provide evidence that you have complied with the directions, regretfully you have failed to do.
Unfortunately under these circumstances we are unable to offer you any work, and accordingly we are considering terminating your employment. Before making our decision, you are invited to attend a meeting to provide Eastern Health with any information that you consider relevant as to why Eastern Health should not terminate your employment on the basis that you are unable to perform the inherent requirements of your position. This meeting will take place via WebEx on the Monday, 25th of October at 3pm. In attendance at this meeting will be myself and Emily de Boer, Eastern Health People & Culture Business Partner. You are encouraged to bring a support person or representative to this meeting, if [unreadable] wish to do so.” 23
[24] Ms Gee provided her response to these matters on 25 October 2021. In her response to Mr Loos she asserted that the legality of the Directions had been untested in a Court and may turn out to be illegal and that submission to the vaccination mandate appears to be at odds with legislation and international agreements on human rights. She also responded to Eastern Health’s contention about the unsustainability of working from home and that vaccination or medical exemption was now an inherent requirement of her job. In relation to the former issue she put forward that;
“the specific work I undertake has been proven to be successfully undertaken without physically being present at the office since being instructed to do so.
From late March 2020, EH asked employees to work from home, if they could. At Turning Point, this enabled TOLS to maintain its services while maintaining density limits set by the Victorian government. EH provided access to the technology that allowed me to work from home and I have generally worked from home from 25 March 2020, as have many or even 50% of other TOLS staff. Although I have worked from the office occasionally, all of this work could have been undertaken from home as you have conceded. By EH’s request and its approval, working from home became part of my ongoing employment until I was stood down, notwithstanding that there was no formal amendment to my now-expired employment contract.” 24
[25] Ms Gee also reminded Mr Loos that she believed he had supported her ability to perform her work from home indefinitely with that support being consistent with what she understood to be the position of the Victorian Government generally. In this regard she could see no part of her fixed term employment contract with a “specific reference to vaccination as “an inherent requirement of employment for all Eastern Health employees, unless one of the specified exemptions applies”“. 25
[26] Ms Gee’s response also drew attention to her view that termination of employment was proposed despite her vaccine status being private and protected information under Victorian legislation, and that the legality of the Directions had not been tested by the Courts. She also put forward that the proposed decision would be inconsistent with Eastern Health’s espoused values and that there had been no attempt to make any accommodation and allow her to work from home, despite her excellent work record. 26
[27] On 15 November 2021 Eastern Health notified Ms Gee through a letter from Mr Loos that her employment was terminated with effect from the same date. The letter’s heading was “Termination – Unable to Legally Attend Workplace”, stating;
“Over recent weeks we have been in discussions with you about our statutory obligation to comply with the COVID-19 Mandatory Vaccination Directions (which prohibit unvaccinated employees from attending Eastern Health facilities to work, unless medically exempt), and the fact that we have no discretion to waive these requirements.
Despite ongoing opportunities for you to provide evidence that you have complied with the directions, unfortunately you have failed to do so. Under these circumstances you cannot lawfully fulfil the requirements of your employment contract with us.
Given the current demand on our workforce resulting from COVID, it is essential for all employees to be ultilised, and accordingly we cannot reasonably keep your position open any longer.
On the basis of above, we regretfully confirm that your employment with us will end. Whilst you have no entitlement to paid notice (given that you cannot lawfully work), as a gesture of goodwill we will pay you 4 weeks in lieu of notice (in addition to any outstanding leave that you have accrued but not taken) and your employment will end today.
As you have the right to refuse vaccination, this is a no fault dismissal and does not preclude you from applying for a role with Eastern Health in the future, should you change your mind about vaccination. If you are re-employed within 3 months you can apply to have any sick leave reinstated and your service recognised for the purposes of other leave entitlements.” 27
[28] After receiving this notification Ms Gee sent a further letter to Mr Loos. The correspondence contended Eastern Health had exceeded the Victorian Government’s directives, by not allowing her to work from home, a matter within its discretion; the requirement to be vaccinated should be construed as coercion on Eastern Health’s part; and that under the enterprise agreement should the notice provisions apply she should be paid an additional week’s pay for reason of being older than 45 years of age. Her correspondence included the following contentions;
“Paragraph 1
Eastern Health has exceeded the Victorian Government’s directives, by not allowing me to work from home, a discretion which it does have but has chosen not to exercise. This discretion continues to be afforded to vaccinated employees of Turning Point. Given the leakiness and diminishing efficacy of the “vaccines” Eastern Health’s position is increasingly untenable.
Paragraph 2
On page 2, point 4 of my letter dated 25 October 2021 I provided a statement on my vaccination status as required by you. Looking at the substance and intention of your letter it is difficult to interpret it as anything other than the application of coercion to receive a Covid “vaccination”.
Paragraph 4
I disagree with the statement that I “have no entitlement to paid notice”, as I can lawfully work from home. Section 18.2 of the Victorian Public Health Sector (Health and Allied Services, Managers and Administrative Workers) Single Interest Enterprise Agreement 2016-2020) provides for a Period of Notice of 4 weeks by the Employer and part (b) provides for an additional week of notice for an Employee over the age of 45 who has served 2 continuous years of service.
Paragraph 5
Refers to a “no fault dismissal”. Kindly ensure that the Termination payment reflects the additional week.” 28
CONSIDERATION – WHETHER DISMISSAL UNFAIR (s.387)
[29] In order to determine the application, it is necessary to consider its merits in the manner set out in s.387, the provisions of which section are as follows:
“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 the employer 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 the employer’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.”
[30] Determination of whether the dismissal was harsh, unjust or unreasonable requires each of the matters specified in s.387 to be taken into account. The Full Bench has summarised the approach that should be taken by the Commission to the criteria within s.387 in the following way:
“The following propositions concerning consideration as to whether there is a valid reason for dismissal for the purpose of s.387 are well established:
• a valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced; 29
• a reason would be valid because the conduct occurred and justified termination; conversely the reason might not be valid because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour); 30
• it is not necessary to demonstrate “serious misconduct” or misconduct sufficiently serious to justify summary dismissal in order to establish a valid reason for dismissal; 31
• the existence of a valid reason to dismiss is not assessed by reference to a legal right to dismiss 32 (so that, for example, where summary dismissal has occurred, it is not necessary to determine whether the right of summary dismissal was legally available); and
• the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee’s conduct). 33“34 (original references)
[31] A dismissal is unfair in the case of a person protected from unfair dismissal, dismissed by the employer which is not a small business employer and for reasons other than genuine redundancy, if it was harsh unjust or unreasonable, taking into account the criteria within s.387. I will deal with each of the criteria within s.387 in turn.
[32] To be a valid reason the reason must be “… sound, defensible or well-founded.” A reason which is “… capricious, fanciful, spiteful or prejudiced …” cannot be a valid reason. 35 The reason for termination must be defensible or justifiable on an objective analysis of the relevant facts.36 The valid reason for termination is not to be judged by legal entitlement to terminate an employee, “… but [by] the existence of a reason for the exercise of that right” related to the facts of the matter.37 Ascertainment of a valid reason involves a consideration of the overall context of the “practical sphere” of the employment relationship.38
[33] It is not the Commission’s role to “stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court.”39 However, the Commission “must consider the entire factual matrix in determining whether an employee’s termination was for a valid reason.”40
[34] There were no notable issues associated with Ms Gee’s employment before the commencement of the pandemic.
[35] Ms Gee contends that Eastern Health’s decision in March 2020 regarding working from home amounts to a change to the terms of her employment contract. Mr Loos argues that what actually occurred is that Eastern Health staff;
“... were offered the option to work from home if they could. This invitation was issued because in Eastern Health was keen to ensure its workforce was safe and, as best as we could, free from infection. This was a temporary arrangement caused by the COVID-19 pandemic and the fear of a mass infection in the community. The invitation to work from home was never intended as an enduring or irreversible change/variation to her contract.” 41
[36] The precise notification to staff or to Ms Gee about this subject is not before me.
[37] In the absence of specific evidence that Ms Gee’s contract had been changed to allow permanent working from home at her election, I do not accept her contract of employment was changed in the way she contends. The proposition would be counter-intuitive at several levels, including for a major public health authority which is always going to be dependent on in-person interactions with patients and staff for the great majority of its work. Despite the community and professional commentary about potentially profound changes to work that have been or will be wrought from the pandemic a decision to allow an employee to permanently choose where they work will require proof of actual conduct that reasonably allows a finding of this nature. There is none in Ms Gee’s case.
[38] Despite Ms Gee questioning the legal basis of the Directions to Eastern Health before being dismissed, she specifically did not do so in these proceedings. 42
[39] Eastern Health note the purpose of the Directions as being to impose obligations on specified facilities “in relation to the vaccination of workers, in order to limit the spread of severe acute respiratory syndrome coronavirus (SARS-CoV-2) within the population in these settings” and that it in turn was required to issue the relevant instructions.
[40] The relevant text of Direction No 4 requires a specified facilities operator to collect, record and hold vaccination information about workers who are or may be scheduled to work at the facility, and then to prevent entry of an unvaccinated worker after a relevant date. An unvaccinated person is defined as a person “who has not received a dose of a COVID-19 vaccine and is not an excepted person”, with an excepted person being one who has received a medical practitioner’s certificate that they are unable, due to a medical contraindication to receive a dose, or a further dose, of a COVID-19 vaccine.
[41] Ms Gee agrees she made a conscious decision in October 2021 and has not received any COVID-19 vaccinations and is not an excepted person. 43
[42] Aside from the matter of whether her contract of employment had changed Ms Gee argued she could perform her work from home and that Eastern Health could allow that to occur. It exceeded the Directions by not allowing her to work from home when it could. 44 This was a unilateral extension of the Directions.45 It held a discretion to allow her to work from home, a discretion which continues to be afforded to vaccinated employees of Turning Point.”46
[43] Ms Gee worked exclusively at the Turning Point office in Richmond, other than the period she worked from home and argued that her “position at Turning Point is in an office facing a computer, I have no face-to-face patient nor client contact and barely any phone contact with clients”. 47
[44] It will be recalled that the Victorian Government Directions associated with vaccination and other matters developed over a short time, responding to rapidly changing medical and community needs.
[45] Eastern Health referred in its primary case to two instruments as particularly applicable in this case, each being a legislative instrument made pursuant to the PHW Act, the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 4) (Direction No 4) and the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 10) (Direction No 10) (CHO Directions).
[46] After the hearing, and at my request, Eastern Health clarified that the Directions in operation at the date of the dismissal were the Victorian Chief Health Officer Directions - Covid-19 Mandatory Vaccination (Specified Facilities) Directions (No 12) (Direction No 12). Direction No 12 commenced operation at 6:00 PM on 5 November 2021 and revoked the Victorian Chief Health Officer Directions - Covid-19 Mandatory Vaccination (Specified Facilities) Directions (No 11) (Direction No 11).
[47] Direction No 12 continues many of the obligations of the earlier instruments and those referred to in the various correspondence. In particular, Direction No 12 maintained an obligation on the operator of a specified facility to collect, record and hold vaccination information about workers and to “take all reasonable steps to ensure that a worker who is unvaccinated does not enter, or remain on, the premises of a specified facility for the purposes of working at the facility”. It continued to be the case that a person is unvaccinated if they have not received a dose of a COVID-19 vaccine and are not an excepted person.
[48] Mr Harrington urged a purposive construction be given to the Directions with them being for a socially beneficial purpose. With reference to the PHW Act he urged account be taken that one of its purposes is to foster and advance public health and wellbeing in the State of Victoria. The entirety of Eastern Health should be regarded as a healthcare facility and to not do so may lead to a “relatively perverse outcome” in which different physical spaces in the overall facility were treated differently. Such would “undermine fundamentally the very object or purpose of the direction which is to apply to healthcare facilities as defined”. 48
[49] When the Eastern Health CEO wrote to all staff on 1 October 2021 Direction No 4 was operative. By the time of the show cause letter on 25 October 2021, Direction No 10 was operative. Shortly after the show cause letter Direction No 11 commenced operation, and by the time of Ms Gee’s dismissal on 15 November 2021, Direction No 12 was operative.
[50] The importance of these version changes is that Directions No 11 and 12 differed materially to the earlier versions with each including the following term dealing with work from home which had not featured in the earlier versions;
“6 Limits on work outside ordinary place of residence
(1) If:
(a) a person is a worker; and
(b) it is reasonably practicable for the person to work at the person’s ordinary place of residence,
an operator of a specified facility must take all reasonable steps to ensure that the person does not enter, or remain on, the premises of a specified facility for the purposes of working at the facility, unless:
(c) the operator collects, records and holds vaccination information about the person; and
(d) the person is:
(i) fully vaccinated; or
(ii) an excepted person.
Note: this obligation does not apply in relation to a person who is a worker, if it is not reasonably practicable for the person to work at the person’s ordinary place of residence.
(2) For the purposes of complying with this clause, an employer is authorised to use any information about a worker that it holds under subclause (1)(c).”
[51] Directions No 10, 11 and 12 each provide that an operator of a specified facility, being Eastern Health, must collect, record and hold vaccination information about a worker if they are or may be scheduled to work at the facility (Clause 4) and must take reasonable steps to prevent entry of “unvaccinated workers” as defined (Clause 5). If no vaccination information is held about a particular worker, the worker must be treated as an unvaccinated worker (Clause 5(3)). An unvaccinated worker must be prevented from entering or remaining upon Eastern Health’s premises for the purposes of work. There are exceptions to that rule pertaining either to the need to provide urgent specialist clinical or medical care, to respond to an emergency or to perform urgent and essential works to protect health and safety or assets and infrastructure. Ms Gee is in none of the categories of exceptional circumstance.
[52] Without the new clause 6 set out above, the construction of Directions No 10, 11 and 12 provide limited benefit to Ms Gee since without the provision by her of vaccination information as defined, she must be treated by Eastern Health as an unvaccinated worker. Eastern Health could if it wished allow Ms Gee to work from home, however that would be entirely a matter of its own discretion in the absence of any contractual, statutory or industrial instrument entitlement on the subject.
[53] That situation however potentially changed with the commencement of Direction No 11 which for the first time included a recognition there may be some circumstances in which it is reasonably practicable for an unvaccinated worker to work at their ordinary place of residence but with the limitation the person may not enter or remain on specified operator’s premises for the purposes of work.
[54] Construction of a statutory instrument proceeds on the basis that its provisions are intended to give effect to harmonious goals; where conflict appears it must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions; and construction must strive to give meaning to every word of the provision. 49
[55] Consideration of the Directions No 11 and 12 as a whole leads directly to the proposition that while no “unvaccinated worker” may attend or remain on the premises of a specified facility such as Eastern Health for the purposes of work, other than in the limited cases of an exceptional circumstance, there may be circumstances in which it is reasonable for an “unvaccinated worker” to perform work from their place of residence.
[56] In considering this matter I note the scale of Eastern Health’s operations. Mr Loos’ letterhead refers to six general Eastern Health sites and two state-wide services, including Turning Point. 50 The Employer Response Form (the Form F3) states the entity employed 10,960 employees at the time Ms Gee was dismissed.
[57] There is no evidence that Eastern Health considered at any time the content of Directions 11 and 12. In fact, its case to the Commission centred on the content of Direction No 10 when that was plainly not the instrument applying at the time Ms Gee was dismissed. Directions 11 and 12 at the least implied there may be circumstances in which it would be reasonably practicable for an employee to work at their ordinary place of residence and that this may reasonably be a basis not to demand evidence of their vaccination status.
[58] The evidence does not support a finding that Eastern Health gave regard to that provision.
[59] While so, Eastern Health’s case is that Ms Gee both did not comply with its directive to provide evidence of her vaccination status, which it was entitled to give, and that, ultimately, she could not perform the inherent requirements of her job since she was required, on occasion at least, to attend its premises.
[60] When it gave its directive to staff generally, and Ms Gee specifically, Eastern Health was obliged to follow Direction No 4 which did not include the clause 6 referred to above. There is no question that Eastern Health was at that time obliged to issue a direction for the provision of vaccination information if it apprehended a worker was or might be scheduled to work at one of its sites. Ms Gee initially demurred and eventually refused as well as stating that she did not intend to be vaccinated. She put forward arguments that she did not intend to attend her work premises which were rejected by Eastern Health as being contrary to its requirements. The show cause letter, given at a time when Direction No 10 was operative, laid plain that Eastern Health considered working from home was not sustainable on a permanent basis.
[61] Despite Eastern Health’s failure to take into account the content of Directions No 11 or 12 when it decided to dismiss Ms Gee, that omission does not lead to a finding there was no valid reason for her dismissal.
[62] Ms Gee’s evidence was that in 2021 she had begun returning to work on Eastern Health’s premises. Whereas in 2021 she had initially attended the premises one day a month, her attendance was greater in the time before she was terminated, giving this evidence in cross-examination by Mr Harrington, Counsel for Eastern Health.
“You said ‘mainly working from home’ because the Commissioner asked you a couple of questions before in your evidence-in-chief about your attendance at the work premises after March 2020. Do you remember being asked about that? Yes, I said something like initially one day a month I came in.
That’s right? Yes.
Then, in 2021, you came in a bit more than that, didn’t you? Yes, towards - before I was terminated, it would’ve been Monday and Friday.
When you were coming in to work in that fashion, that was entirely consistent with the way that you had worked prior to 30 March 2020, wasn’t it? I was doing the same work, yes.” 51
[63] Eastern Health argued it could not give an assurance Ms Gee would never be required to attend her workplace. A practical example arose in March and April 2021 when Eastern Health’s operations were impeded by a cyber-attack. A consequence of the attack included significant disruption, as described by Mr Loos, in which;
“all systems and remote access to staff was interrupted for a 5-week period. All staff were required on site to access systems and perform tasks until remote access was restored some 5 weeks after the initial incident”. 52
[64] I accept that at the time Eastern Health issued the show cause letter it required Ms Gee to be able to attend the workplace from time to time, even if that was infrequently. A consequence of the Directions applicable at that time, 25 October 2021, was that Ms Gee must have provided her vaccination or excepted person status and that not to do so meant she would potentially be unable to fulfil the inherent requirements of their job. One of those requirements was that she be ready, willing and available to attend their place of work as and when required.
[65] The termination letter sent to Ms Gee sets out that she was dismissed because Eastern Health had a statutory obligation “to comply with the COVID-19 Mandatory Vaccination Directions (which prohibit unvaccinated employees from attending Eastern Health facilities to work, unless medically exempt), and the fact that we have no discretion to waive these requirements” and that;
“Despite ongoing opportunities for you to provide evidence that you have complied with the directions, unfortunately you have failed to do so. Under these circumstances you cannot lawfully fulfil the requirements of your employment contract with us”. 53
[66] The statement that “we have no discretion to waive these requirements” is plainly wrong given the provisions of the Directions applicable at the time and should have been expressed as a statement that Eastern Health had decided not to exercise its discretion to allow Ms Gee to entirely work from home since it was an inherent requirement for her to be ready, willing and available to attend their place of work as and when required. Despite that error, the entire factual matrix of this matter allows a finding Eastern Health held a valid reason for Ms Gee’s dismissal. Eastern Health’s failure to have regard to the content of the Directions applicable on the date of dismissal and the error contained in the letter of termination are not sufficient to unseat such finding.
[67] On an unrelated matter I note that Ms Gee sought and obtained an Order from the Commission of the production of office entry records for other employees working from Richmond. She sought to show that other employees were making rare or no trips into the office at about the same time she was working exclusively from home. At best the material is ambiguous and incomplete, with it being unclear whether the relevant employees were vaccinated or not, as well as it being likely that swipe cards may not have been used for all entries and exits. I draw no conclusions about this material.
[68] It follows from the matters set out above that I accept Eastern Health had at the time of Ms Gee’s dismissal a valid reason for such related to her capacity. The valid reason was that without provision to Eastern Health of her vaccination information Ms Gee could not fulfil the requirements of her job.
[69] Ms Gee was notified of her dismissal through the letter provided to her from Eastern Health on 15 November 2021.
[70] For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal there needs to be a finding that there is a valid reason for dismissal. 54 I am satisfied that Ms Gee was on notice by no later than 25 October 2021 that her dismissal was being contemplated as well as being advised what she had to do to avoid being dismissed.
[71] There were no discussions with Ms Gee about her impending dismissal. Accordingly, consideration of this criterion is a neutral factor in my decision.
[72] There is no evidence of unsatisfactory performance by Ms Gee in any respect.
[73] Eastern Health is demonstrably a large employer. There is, however, no evidence that its size impacted on the procedures it followed in effecting Ms Gee’s dismissal. This is a neutral factor in my decision.
[74] Eastern Health’s decision making in relation to Ms Gee was assisted by its People and Culture staff member. Accordingly, this is a neutral factor in my decision.
[75] At the time of her dismissal Ms Gee was 61 years of age and engaged in somewhat low-level administrative duties, working in a place well away from the main Eastern Health sites. She was obviously worried about vaccination against COVID-19, expressing those concerns at several points of the process leading to her dismissal. While aspects of Eastern Health’s dealings with her can be criticised, for example, its refusal to engage with her about her request for details of her contract and its failure to take into account the provisions of Directions No 11 and 12, she was overall treated with respect and given time both to consider her position as well as express her views. The balance of those considerations do not lean in Ms Gee’s favour, but rather in a finding that Eastern Health did what it could to explain its requirements to Ms Gee and give her time to consider and respond.
[76] I do not consider there to be any further matters requiring consideration under s.387(h).
Conclusion on the s.387 criteria
[77] After considering each of the criteria within s.387, I am satisfied there was a valid reason for Eastern Health’s dismissal of Ms Gee and that there were no procedural defects in the manner in which she was dismissed. Accordingly, I find that Ms Gee’s dismissal was not an unfair dismissal and that her application in turn must be dismissed.
COMMISSIONER
Appearances:
Ms Ursula Gee for the Applicant.
Mr Nicholas Harrington for the Respondent
Hearing details:
2022.
Melbourne (via video conference);
4 March 2022
Printed by authority of the Commonwealth Government Printer
<PR740594>
1 Transcript, PN 521 – 522.
2 Exhibit R1, Witness Statement of Rick Loos, [10](b).
3 Exhibit A1, Applicant’s Outline of Submissions, item 6d, para 5(e)(viii).
4 Ibid, [10](a).
5 Transcript, PN 187 – 189.
6 Exhibit A3, Applicant’s Bundle of Documents, Annexures Q and R.
7 Exhibit A1, Annexures Q and R.
8 Exhibit R1, [10](e).
9 Transcript, PN 228.
10 Victorian Chief Health Officer Directions – Covid-19 Mandatory Vaccination (Specified Facilities) Directions (No 12), clause 4.
11 Ibid clause 9(5).
12 Exhibit R1, Attachment RL – 2.
13 Ibid.
14 Exhibit R1, Attachment RL – 2.
15 Exhibit R1, [13]; Transcript PN 321.
16 Ibid [14].
17 Exhibit R1, Attachment RL – 3.
18 Exhibit A3, Applicant’s Document Bundle, Attachment C.
19 Exhibit R1, Attachment RL – 3.
20 Ibid.
21 Exhibit A3, Attachment D.
22 Exhibit R1, Attachment RL – 5.
23 Exhibit R1, Attachment RL – 6.
24 Ibid.
25 Ibid.
26 Ibid.
27 Exhibit A3, Annexure G.
28 Exhibit A3, Annexure H.
29 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
30 Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561, [6] – [7].
31 Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033, [32]; Annetta v Ansett Australia (2000) 98 IR 233, [9] - [10].
32 Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033, [32]; He v Lewin [2004] FCAFC 161; 137 FCR 266, [15].
33 Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033, [33] – [34]; O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205, [22] – [23].
34 Titan Plant Hire Pty Ltd v Shaun Van Malsen [2016] FWCFB 5520, [28]; see also Sydney Trains v Hilder [2020] FWCFB 1373, [26].
35 Selvachandran v Peteron Plastics (1995) 62 IR 371, 373.
36 Robe v Burwood Mitsubishi Print R4471 (AIRCFB, Ross VP, Polites SDP, Foggo C, 11 May 1999).
37 Miller v UNSW [2003] FCAFC 180 (Gray J) [13].
38 Selvachandran v Peteron Plastics (1995) 62 IR 371, 373.
39 Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir [2016] FWCFB 4185, [46] citing Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
40 Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir [2016] FWCFB 4185, [46] citing Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, 413.
41 Exhibit R1, [10](e).
42 Transcript, PN 432.
43 Transcript, PN 260, 269, 277.
44 Exhibit A1, Applicant’s Outline of Submissions, [6].
45 Ibid, 3c.
46 Exhibit A3, Annexure H.
47 Exhibit R1, Attachment RL – 5.
48 Transcript, PN 779.
49 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [69] – [71], per McHugh, Gummow, Kirby and Hayne JJ.
50 Exhibit R3, Attachment RL – 3.
51 Transcript, PN 226 – 229.
52 Exhibit R1, [31].
53 Exhibit A3, Attachment H.
54 Chubb Security Australia Pty Ltd v Thomas Print S2679 (unreported, AIRCFB, 2000) [41].