Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

MCI Southport Properties Pty Ltd T/A Southport Day Hospital/Cosmetic Evolution

Application for an unfair dismissal remedy - where the Applicant was a casual - where the Respondent imposed a vaccine mandate - where the Applicant did not want to get the COVID-19 vaccine - whether the Applicant had served the minimum employment period - whether the Applicant had been dismissed - where the Applicant had served the minimum employment period - where the Applicant had not been dismissed - jurisdictional objection upheld - application dismissed

• [1] Amber Callender (the Applicant) brought an application seeking an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act), claiming she was dismissed from her employment with MCI Southport Properties Pty Ltd T/A Southport Day Hospital/Cosmetic Evolution (the Respondent) and that dismissal was harsh, unjust and unreasonable.

• [2] The Respondent raised two jurisdictional objections to the application. First, that the Applicant did not meet the minimum employment period and second, that she was not dismissed. Directions were issued for the filing of submissions and evidence in respect of these issues and the merits of the Applicant's application. All these matters were heard before me at a hearing on 21 December 2021 via Microsoft Teams where the Applicant appeared with her husband, Paul Callender. Tina Owens and Lee Cousins appeared for the Respondent.

• [3] As to the other matters that s.396 of the Act requires me to consider, I am satisfied that the application was made within time and the Applicant was a person protected from unfair dismissal as she earned less than the high-income threshold and her dismissal was not a genuine redundancy.

• [4] The Applicant has been employed by the Respondent - which is part of the Macquarie Health Corporation (Macquarie) - since February 2018 as a registered nurse on a casual basis. She also worked casually at the Miami Day Hospital (Miami) in a similar role for at least some of that period.

• [5] On 6 July 2021, David Wenkart, the Respondent's Deputy Chief Executive, wrote to staff encouraging them to take the first dose of the COVID-19 vaccine.

• [6] Ms Owens could not remember the exact date, but she recalls the Applicant raising concerns with her after that memorandum was issued. Ms Owens told the Applicant to go and have a conversation with her doctor, and if she had a medical reason for not having the vaccine, to provide them to Ms Owens who would in turn forward it to Mr Wenkart for consideration.

• [7] On 11 August 2021, Mr Wenkart wrote to all employees at the 13 private hospitals operated by the Macquarie group informing them of a decision made that all staff were required to be vaccinated against COVID-19. Specifically, the memorandum stated that staff must receive their first dose by 1 September 2021 and their second dose by 1 October 2021. He indicated that if a staff member was not vaccinated by the requisite time, they would be unable to attend the workplace. If a staff member had a medical or other reason why they could not be vaccinated, they were invited to write to Mr Wenkart by 20 August 2021.

• [8] On 21 August 2021, the Applicant sent an email to Tina Owens stating, among other things, that while she was not against all vaccinations, she was hesitant to receive the COVID-19 vaccine. She noted that the hospital already practised the highest level of hygiene and everyone there was fully aware of the safety protocols dealing with disease control. Accordingly, she asked that her "request to refrain from the vaccine mandate by your company be considered". She asked that her email be passed on to Mr Wenkart, which Ms Owens did.

• [9] On 26 August 2021, Ms Owens replied to the Applicant's email, indicating that Macquarie had advised that the vaccination mandate was a lawful direction and if a staff member chose not to follow that direction, they would cease to be rostered on from 1 September 2021. Ms Owens said the Applicant should seek advice from her doctor.

• [10] On 30 August 2021, the Applicant inquired about information that she required for her unfair dismissal application. Ms Owens responded the next day confirming that the Applicant had not been dismissed. Ms Owens checked the position with Mr Wenkart, who instructed her that because the Applicant is casual employee, it was within the Respondent's discretion to decide whether to offer her any further shifts.

• [11] The Queensland Government subsequently announced that from 15 December 2021, all healthcare workers who enter healthcare settings must be fully vaccinated against COVID-19.

Had the Applicant served the minimum employment period?

• [12] For the Applicant to be capable of bringing an unfair dismissal application, she must demonstrate that she met the minimum employment period (being six months).[1] The period of employment to be considered is the period of continuous service she had completed with the Respondent.[2] However, a period of service as a casual employee only counts if the employee was a regular casual employee, who during their period of service had a reasonable expectation of continuing employment on a regular and systematic basis.[3] The Applicant was employed on a casual basis within the meaning set out in s.15A of the Act, [4] so the question I must determine is whether she was a regular casual employee and if she had a reasonable expectation of continuing employment on a regular and systematic basis.

• [13] The Respondent asserts that the Applicant had not met the minimum employment period because though she had been employed by the Respondent since 2018, her engagement was not as a regular casual employee and that she did not have a reasonable expectation of continuing employment on a regular and systematic basis. The Respondent claims that in any event, the Applicant's period of continuous service with the Respondent was broken in September 2020 because from October 2020 until May 2021, the Applicant had not accepted any shifts offered to her by the Respondent. Eventually, the Respondent ceased making those offers. Ms Owens' evidence was that this is common practice. That is, if staff do not respond to the texts sent by the Respondent offering available shifts, eventually the Respondent stops offering those shifts until the staff member comes back to them and indicates that they are available again. In May 2020, for the first time in around seven months, the Applicant contacted the Respondent again requesting some casual work.

• [14] The Respondent asserts that at the time, the Applicant was not offered work on a regular and systemic basis as noted in the text messages between the Applicant and the Respondent on 19 May 2021. The Applicant sent a text message to the Respondent saying that she would like to transition back to Southport if she could get more regular shifts and the Respondent told her to "stay put at Miami Hospital" as the Respondent could not offer any "secure" shifts. Notwithstanding those messages, the Applicant accepted one shift in May 2021 and more in June and August 2021.

• [15] The Respondent thus asserts that the Applicant's period of continuous service was broken by the gap in employment between October 2020 and May 2021 and the period of service as a casual employee did not count towards the period of employment. Further, the Applicant could have no expectation of regular casual employment or continuing employment on a regular and systemic basis. The Respondent thus submits that the Applicant is precluded from bringing the present application.

• [16] The Applicant disagrees, asserting that her shifts were regular and systematic and that she had a reasonable expectation of ongoing employment. The Applicant points to the decision of Ponce v DJT Staff Management Services Pty Ltd where the Commission stated that just because a casual employee receives varying hours each week or month or has different starting and finishing times does not mean that they are an irregular non-systematic employee. Further, unpredictable but frequent casual work may constitute regular and systematic employment.[5]

• [17] The Applicant claims that she had been a casual employee of the Respondent since February 2018 and that that did not change despite her not accepting any shifts between September 2020 and May 2021. There was never any communication from either party that the employment relationship between them had ceased. On that basis, the Applicant asserts that the fact she did not work for the Respondent between September 2020 and May 2021 did not break her period of continuous employment. During this period, she had been working at Miami. She had always found the shifts there to be more reliable (in that they were not often cancelled) and there were more of them. However, Southport was closer to home so if she could receive more work at Southport that would be her preference. However, given the consistency and duration of shifts being offered to her at Miami during the period between September 2020 and May 2021, she did not need to accept shifts from the Respondent.

• [18] There are well-established principles that apply when determining whether an employee meets these criteria. It is the employment that must be on a regular and systematic basis, not the hours worked.[6] To be systematic, the casual employment need not be predictable, frequent, often, uniform or constant.[7] Rather, the engagement must involve "something that could fairly be called a system, method or plan". [8] In circumstances where there is no clear pattern of work, the employment may still be considered regular and systematic employment if it can be established that the employer offered suitable work when it was available at times when the employee had generally made themselves available and work was offered and accepted regularly enough that it could no longer be regarded as occasional or irregular.[9]

• [19] The Respondent provided a table of shifts setting out the number of shifts worked by the Applicant since August 2018. Between August 2018 and September 2020, the Applicant worked at least one shift every month for the Respondent, with the exception of three months: February 2019 and April and May 2020. The latter two were because the Respondent was closed due to COVID-19. For five of the months between August 2018 and September 2020, the Applicant only worked one shift. During the other months her shifts varied from two to seven. Something of the way shifts were offered may account for their varying numbers. Each month the Respondent would send a text message to the casual nursing staff, asking whether they were available for the relevant shifts. The Applicant would then indicate which shift she could work, taking into account that she also worked at Miami, and would then be included in the roster as required. I think it is fair to say that even though the hours were not uniform, there was a continuity about the Applicant's engagement such that it could not be considered irregular or occasional. On that basis, I am comfortable that prior to September 2020 the Applicant's engagement was regular and systematic.

• [20] Once continuous service is established, it is only broken in circumstances where the employer or employee makes it clear to the other party that there will be no further engagements.[10] There was never any express communication by either party that the Applicant would no longer work for the Respondent. Although there were some months where the Applicant did not work, I am not satisfied that served to change the regular and systematic nature of her employment. The Applicant clearly considered that her relationship with the Respondent as ongoing. In support of that conclusion is the Respondent's rostering system. As has been described above, it was common for the Respondent to send texts to the casual nursing workforce indicating the upcoming shifts required to be covered. Each nurse would indicate their availability and desire to work those shifts and the Respondent would then prepare a roster. The Respondent may have stopped offering the Applicant shifts after she stopped responding, however as soon as the Applicant indicated that she would be available to work for the Respondent she was rostered on again.

• [21] I consider that the Applicant had an expectation of ongoing regular and systematic casual employment and that this expectation was reasonable, because of the way in which the Respondent's rostering system worked and how the shifts allocated to her. Once the Applicant indicated she was available for shifts again, she was rostered on each month. While these shifts may have varied in respect of their start times, days and durations, there was a clear and reasonable expectation that the Applicant would receive some shifts from the Respondent.

• [22] There is some authority for the proposition that during any part of the period of casual employment, the employment is either not regular and systematic or the Applicant does not have a reasonable expectation of an ongoing commitment, that part of the period of casual employment does not count.[11] If that be so, it may be appropriate to discount from the period of the Applicant's continuous employment the period from September 2020 to May 2021. Even if one was to do that, the Applicant would still have completed the minimum employment with the Respondent.

• [23] On that basis, I am satisfied that the Applicant had completed the minimum employment period. That jurisdictional objection fails.

• [24] I turn now to the Respondent's second jurisdiction objection: that the Applicant was not dismissed.

• [25] Section 386(1) of the Act relevantly provides that a person has been dismissed if:

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

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

• [26] The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli outlined the relevant authorities with respect to what it means for an employee's to be terminated at the initiative of the employer.4 In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.5 While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held that intention.6 It is sufficient that the employer's conduct would, on any reasonable view, be likely to bring the employment relationship to an end.7 Put another way, did the employer's conduct have the probable result of bringing about the end to the employee's employment or leaving the employee with no effective or real choice but to resign?8 It is necessary to conduct an objective analysis of the employer's conduct to determine if it was of such a nature that resignation was the probable result or that the employee had no effective or real choice but to resign.9 All the circumstances - including the conduct of both the employer and employee - must be examined.10 In other words, it must be shown that "the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship."11

• [27] The Respondent further claims that the Applicant is precluded from bringing this application because she was not dismissed within the meaning of s.386 of the Act. Rather, she is simply not being offered any further shifts because she indicated that she would not comply with the Respondent's direction that she be vaccinated by 1 September 2021. The Applicant had been told that she could not return to the Respondent's premises until she had complied with the direction or else received a certificate from her doctor exempting her from same. No such notification having been received; the Respondent has not offered the Applicant any further shifts.

• [28] The Respondent submits that at no time has the Applicant being told that she has been terminated. Indeed, Ms Owens' email of 31 August 2021 (described above) confirmed that position.

• [29] As to the reasonableness of the mandate, the Respondent asserts that it is not uncommon for nursing staff and health practitioners to be required to be vaccinated unless there is a medical reason why the particular staff member cannot receive the vaccine. It is all about creating and maintaining a safe environment for staff and patients.

• [30] The Respondent noted that should the Applicant now wish to return to work, however, she would have to comply with the Queensland Health directive which requires health workers to be vaccinated. That said, Ms Cousins indicated that if the Applicant did get vaccinated, the Respondent would not hesitate in having her back.

• [31] The Applicant accepts that she had not provided the Respondent with a valid medical exemption. She had yet to see her doctor but was due to do so soon. She maintains that she was dismissed on 26 August 2021, by virtue of the email sent to her by Ms Owens which indicated that the Applicant would not receive any further shifts after 1 September 2021 if she did not receive the COVID-19 vaccine. Additionally, she has not received any further shifts and has been told that she will not be allowed back on the premises unless and until she gets vaccinated.

• [32] The Applicant asserts that when the vaccination mandate was introduced by the Respondent, it was not a lawful direction because the Respondent had not followed workplace health and safety laws in that they had not provided safety and risk data, workplace health and safety plans or analysis or any detailed information to its staff about the basis for the direction. In fact, the Applicant contends there was no consultation at all. Additionally, the Applicant noted that given the patients were having elective surgery, they were healthy patients and thus lower risk. It was also pertinent to note that they themselves were not (at that time) expected to be vaccinated when they entered the Respondent's premises. Additionally, the Macquarie mandate applied to all Macquarie hospitals, including those in New South Wales, Victoria and Queensland. The Applicant was of the view that introducing a mandate in Queensland, where at that time there were relatively few COVID-19 cases, was broader than it needed to be. Finally, she stated that it is the nature of surgery that there may be a risk of the transfer of viruses. That is why proper personal protective equipment has always been warn. This in itself mitigated the risks of transferring COVID-19.

• [33] The Applicant did acknowledge that the situation changed as of 15 December 2021 when the Queensland Government mandate became effective. She accepted that after that date, the Respondent was entitled and indeed required to comply with the Government's mandate.

• [34] Based on the evidence before me, I am not satisfied that the Applicant has been terminated by the Respondent. The Respondent's decision to introduce a mandatory vaccination policy was lawful and reasonable at the time it was introduced. The position with respect to the mandate has become more certain following the Queensland Government's introduction of its own mandate with which the Respondent must now comply. I do not accept that the Respondent's introduction of the mandate constructively dismissed the Applicant nor otherwise amounted to a termination of the Applicant's employment at the initiative of the Respondent.

• [35] There was no evidence that she had been provided with a termination letter, separation certificate or other confirmation that her employment was at an end. Indeed, Ms Owens' email 31 August 2021 made it clear that the Respondent's understanding was that the Applicant had not been terminated. Rather, she would simply not be offered any further shifts unless or until she became vaccinated or provided a valid medical exemption. As of the date of the hearing, that had not been provided. The Respondent stated at the hearing that if the Applicant could demonstrate that she had been vaccinated she would be welcomed back to the Respondent's workplace. However, without it, particularly now given the Queensland Government's mandate, the Respondent could not provide her with any further shifts.

• [36] There is similarly no correspondence from the Applicant, prior to the lodgement of this application, that supports the assertion that she was constructively dismissed. The way it was left with the Respondent, prior to the application being lodged, was that the Applicant was going to speak with her doctor. While it may have been understood between the parties, that the Applicant would not be returning to work unless or until she was vaccinated there has been no formal dismissal.

• [37] As was the case during the period from September 2020 and May 2021 when the Applicant elected not to accept or request any shifts from the Respondent, the Respondent simply exercised its right not to offer the Applicant any further shifts. The employment relationship has not yet formally ended.

• [38] For the reasons set out above, I do not accept that the Applicant has been dismissed.

• [39] On that basis, I order that the second jurisdictional objection be upheld.

Accordingly, I ordered that the Applicant's application be dismissed.

[1] Fair Work Act 2009 (Cth) s.383.

[2] Ibid s.384(1).

[3] Ibid s.384(2).

[4] Ibid s.15A.

[5] Ponce v DJT Staff Management Services Pty Ltd [2010] FWA 2078.

[6] Yaraka Holdings Pty Limited v Giljevic (2006) 149 IR 399 [65]; cited in Ponce v DJT Staff Management Services Pty Ltd T/A Daly's Traffic [2010] FWA 2078 [70].

[7] Yaraka Holdings Pty Limited v Giljevic (2006) 149 IR 399 [68]; cited in Grives v Aura Sports Pty Ltd [2012] FWA 5552 [32].

[8] Yaraka Holdings Pty Limited v Giljevic (2006) 149 IR 399 [91].

[9] Ponce v DJT Staff Management Services Pty Ltd T/A Daly's Traffic [2010] FWA 2078 [76].

[10] Shortland v Smiths Snackfood Co Ltd (2010) 198 IR 237; [2010] FWAFB 5709 [13].

[11] Bronze Hospitality Pty Ltd v Hannson [2019] FWCFB 1099 [29].

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