Fair Work Act 2009

s.394 - Unfair dismissal

• [1] Mr Anthony Girod (the Applicant), a former employee of Swan Transit (the Respondent), lodged an unfair dismissal application on 5 February 2022.[1] At the time of his dismissal, the Applicant was employed as a public transport bus driver.

• [2] The Respondent is a bus company operating Transperth services under contract to the Public Transport Authority.

• [3] On 3 December 2021, the Western Australian government introduced the Public and Commercial Transport Workers (Restrictions on Access) Directions (Directions)[2] to address the risk posed by COVID-19 in the context of the public and commercial transport workforce.[3] The Directions required public transport workers to be vaccinated against COVID-19 by 1 January 2022 and to provide their employer with proof of vaccination.[4] Under the Directions, the Respondent was not permitted to allow an unvaccinated transport worker to enter the workplace.[5]

• [4] In short, the Applicant did not comply with the requirements of the Directions and as a consequence his employment was terminated on two grounds. Those grounds were as follows:

a) the Applicant did not have capacity to lawfully perform the inherent requirements of his role or enter the workplace because he had not complied with the requirements of the Directions;

b) the Applicant had failed to comply with the Respondent's lawful and reasonable direction to comply with the proof of vaccination requirement from 1 January 2022.

• [5] Shortly stated, I have concluded that the Applicant's dismissal was not harsh, unjust, or unreasonable, and as such, have dismissed his application on the basis that he was not unfairly dismissed. In doing so, I am satisfied that this outcome has ensured a 'fair go all round' is accorded to both Applicant and Respondent. My reasons follow.

• [6] The broader context and events leading to the conclusion of the employment were as follows.

• [7] In response to the Western Australian Government's announcement that public transport workers would be required to be vaccinated against COVID-19 with a first dose before 31 December 2022 and a second dose before 31 January 2022, Mr Brian Thompson, Managing Director of the Respondent, posted a notice to all employees advising of the announcement and that the Respondent would be required to record or register all employees' vaccination status.[6]

• [8] On 3 December 2021, the Directions were introduced and included a definition of 'transport worker' as a person described in column 1 of the table in Schedule 1 of the Definitions.[7] The Respondent considered that as the Applicant was employed as a public transport bus driver, his occupation fell under the definition of 'transport worker' in the Directions.[8]

• [9] Mr Thompson said that he wrote to all employees on 17 December 2021 who had not provided evidence of their vaccination status, including the Applicant, to remind them of the requirement to provide this information.[9] The letter stated the reason why the Respondent was obliged under the Directions, to collect, record and hold the employee's vaccination information.[10]

• [10] On 20 December 2021, the Applicant provided a written response to Mr Jim Evans, Operations Manager of the Respondent, challenging whether the Directions were mandatory, enforceable, and binding on him.[11] Further, the Applicant communicated, '...it is my considered position that I serve myself, and my family, best if I refuse an experimental drug with known, and unknown, toxins and rely on my good health and natural immunity to safeguard my well-being.[12]

• [11] Mr Thompson again wrote to the Applicant on 23 December 2021, reiterating the requirement of the Respondent to comply with the Directions and that the Applicant would not be able to attend work or undertake the inherent duties of his position unless he complied with the COVID-19 mandate.[13]

• [12] On 24 December 2021, the West Australian government released the Booster Vaccination (Restrictions on Access) Directions (Booster Directions),[14] which obliged all people who were required to comply with vaccination requirements in other 'directions', to receive a COVID-19 booster dose for the purpose of limiting the spread of COVID-19.[15] The Booster Directions applied to public transport workers.

• [13] On 29 December 2021, Mr Thompson received another letter from the Applicant further arguing the legal basis for the vaccine mandate and pointing out that legal action opposing the vaccination mandate was being organised against state and federal governments. Mr Thompson stated that the letter offered no basis or opportunity for the Respondent to avoid the requirements of the Directions as they applied to the Applicant.[16]

• [14] On 30 December 2021, Mr Thompson sent an email to the Applicant advising, '[If] you refuse to comply with the Direction, you are unable to resume work on 4 January. You will be indicating to us that you are either unwilling or unable to fulfil the inherent requirements of your job and that you are repudiating your employment contract with us. We may accept this repudiation and terminate your contract of employment'.

• [15] Further correspondence was sent by Mr Thompson to the Applicant on 4 January 2022, advising the Applicant that he had not provided the required information under the Directions and could therefore not fulfil the inherent requirements of his duties.[17] Mr Thompson asked the Applicant to provide written submissions as to why the Respondent should not accept his decision as a repudiation of his employment contract.[18]

• [16] A further notice was posted to all employees, including the Applicant, on 6 January 2022, regarding the Booster Directions.[19]

• [17] Mr Thompson gave evidence that he received an email from the Applicant on 10 January 2022, which attached three documents, all of which formed part of the Applicant's response to the letter of 4 January 2022.[20] Mr Thompson said that the documents disputed the validity of the mandate and questioned the safety of the vaccines.[21] Mr Thompson continued that he responded to the Applicant on that same day acknowledging his email and re-stated that 'unfortunately it doesn't change the requirements for Swan Transit to comply with the Directions'.[22]

• [18] Mr Thompson sent an email to the Applicant on 11 January 2022, offering the Applicant the opportunity to meet with him to discuss the alleged repudiation of his employment contract.[23] The Applicant declined to meet with Mr Thompson, noting that his email was formal notification of a grievance and formal complaint, which would be lodged with WorkSafe and if required, through the Commission.[24] The Applicant's email dated 12 January 2022 also set out that whilst the Applicant appreciated having the opportunity to discuss in person the alleged repudiation of his contract, he considered that he would simply being going over verbally what had already been presented.[25] The Applicant further noted his safety concerns regarding the known risks with 'the experimental drug', the Respondent's obligation to have conducted an appropriate risk assessment and to engage in consultative process with employees - which the Applicant stated had not been done.[26]

• [19] Whilst the Respondent emailed the Applicant again on 12 January 2022, reiterating that the Respondent was required to comply with the Directions which the Respondent could not be held reasonably responsible for, by 17 January 2022, the Respondent decided to accept the Applicant's repudiation and terminate his employment.[27]

• [20] The Applicant was represented at hearing by Mr Glenn Floyd, pro bono advocate, who was not a legal representative. The Applicant's representative explained that Applicant's argument could be reduced to one simple matter or issue. That issue was that the Respondent itself had created the situation where the Applicant was unable to be vaccinated against COVID-19. This was because independent injecting practitioners were obliged to refuse to inject persons with the COVID-19 vaccination where that person was under threat of sacking.

• [21] The Applicant submitted that the Respondent had issued a '[N]on-negotiable Demand-Directive to get Covid-Injected OR be Employment Terminated'. As such, the Applicant considered that the material facts that were to be determined by the Commission included:

a) Is it a 'Fact' that Brian Thompson Managing Director Swan Transit, issued employees a Non-Negotiable Demand to be COVID-Injected, with a (threat) penalty 'condition', of employment termination, if they are not COVID-Injected?

b) Is it a 'FACT' that 'VALID CONSENT' is required at law for all COVID-injections, wherein 'VALID-CONSENT' is defined under Federal Immunisation Guidelines Criterion 2 where Injections MUST ONLY be voluntary, and in the absence of undue pressure, coercion or manipulation?

c) Is it a 'Fact' that Injecting-Practitioners are prohibited by law to inject anyone without 'VALID CONSENT' given voluntarily by employees and freely given in the absence of undue pressure, coercion or manipulation?

d) Is it a 'Fact' that all/any employment termination demand (threats) 'Conditions' for Injection non-compliance, as a consequence; automatically obliterates 'mandatory' lawfully obligated 'valid consent' to any/all injections?

e) Is it a 'Fact' that valid consent cannot be given by any employee if an employment termination threat penalty 'condition' drives any employee to be injected wherein the employee notifies of attendance being solely due to the employment termination threat penalty 'condition' for non-injection?

f) Is it a 'Fact' that Brian Thompson Managing Director Swan Transit, knew or ought to have known of existing 'binding' law on injecting practitioners of the Federal Immunisation Guidelines Criterion 2 where injections must only be voluntary, and in the absence of undue pressure, coercion or manipulation?

• g) Is it a 'Fact' that the 'only possible' transmission of any virus can only come from an infected person and uninjected persons per se (by or in itself or themselves intrinsically); cannot post any infection risk whatsoever.[28]
• [22] The Applicant pressed that the Respondent assumed the onus of proving that the above-mentioned propositions were not material facts by rebutting them with evidence.

• [23] The Applicant further sought to rely upon a document titled, '[T]he Legally Compulsory Australian Immunisation Handbook "Criterion 2. Valid Consent' Template" © Copyright Glenn Floyd Australia free to use and sent anywhere!!' (Valid Consent Form). The Valid Consent Form read:

I state and say as practitioner administering this injection, that I have been informed by the person named as follows Anthony Girod who is expected to take this injection from me, that this person presents for the injection under involuntary, and extreme undue pressure, coercion or manipulation, by the government and/or employer to be injected. I fully understand that this extreme undue pressure, coercion or manipulation to be injected, is brought about by the government mandates of fines and exclusion from schools, hospitals, public venues etc. and the employer making threats of employment termination if the person is not injected as directed by the employer.

I fully acknowledge that The Australian Immunisation Handbook Guidelines requires me at law, to fully and comprehensively screen anyone before injection, and obtain their Valid Consent to the injection, specifically under Valid Consent Criterion 2., which obliges me legally to ensure the injections given ONLY voluntarily and in the absence of undue pressure, coercion or manipulation.

I therefore (as Practitioner administering this injection), fully understand and fully agree, that if I proceed with injections after now being advised that the injections are not voluntary and are expected to be done under extreme undue pressure, coercion or manipulation, that I am violating The Australian Immunisation Handbook Guidelines Criterion 2. 'Valid Consent'., I also fully understand, if I proceed to Covid-Inject, I will be committing a Criminal Act of Assault and Battery; and I will be liable and will be criminally charged and pursued personally and professionally (as will my employer be), under both criminal statute law and civil TORT litigation for ALL damages and harm caused....

• [24] It was difficult to discern whether the Applicant did, or did not, cavil with the contention that the Respondent had engaged with consultation. On one hand such submission was made, yet on the other, the Applicant's representative pressed that the issue was simply whether the Respondent's actions had resulted in the Applicant being unable to be vaccinated because it had itself, imposed a threat of termination of employment upon the Applicant.

• [25] The Applicant's representative clarified that at no time did the Applicant feel he had been induced, coerced or manipulated to get vaccinated.

• [26] Section 396 of the Fair Work Act 2009 (Cth) (the Act) requires that I decide four matters before considering the merits of the Applicant's application. There is no dispute between the parties concerning these matters, and I am satisfied of the following. First, the application was made within the 21-day period required by s 394(2) of the Act. Second, the Applicant was a person protected from unfair dismissal, as he was covered by the Swan Transit Enterprise Agreement 2017 (the Agreement).[29] Third, the Applicant's dismissal was not a case of genuine redundancy. Fourth, no question of compliance with the Small Business Fair Dismissal Code arose.

• [27] For a dismissal to be unfair, the Commission must be satisfied that the dismissal was harsh, unjust, or unreasonable (s 385(b)). The conduct which may fall within the phrase 'harsh, unjust or unreasonable' was explained in Byrne v Australian Airlines Ltd; Frew v Australian Airlines Ltd by McHugh and Gummow JJ as follows:

.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.[30]

• [28] In considering whether a dismissal is unfair, the Commission must take into account the matters specified in s 387, this includes determining whether there was a valid reason for dismissal and taking into account any other matters the Commission considers relevant.

• [29] Section 387 of the Act contemplates that the Commission will undertake an overall assessment as to the nature of the dismissal and in so doing, the criteria in s 387 must, where relevant, be weighed up in totality.

• [30] For the reasons that follow, the Applicant's case turns on whether there was a valid reason for his dismissal, and whether there were other matters of such relevancy that they render the Applicant's dismissal as harsh, unjust or reasonable.

• [31] Regarding notification of a reason for dismissal, it is accepted that before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matter that places her or his job at risk.[31]

• [32] An opportunity to respond is an opportunity proffered before the decision to dismiss an employee is made.[32] At a general level, the case law makes it plain that when it comes to providing an opportunity to respond, the process does not require any degree of formality and that the requirement is to be applied in a common sense practical way in order to ensure that the employee is treated fairly.[33] Where the 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, this is enough to satisfy the requirements of the section.[34]

• [33] The Applicant conceded in a very matter of fact manner, and appropriately in my view, that he had been notified of the reason for dismissal and whilst provided with an opportunity to respond both in writing and in person, he considered a face to face meeting futile. On this point, the Applicant explained in his written and oral evidence that whilst he was appreciative of the opportunity to respond in person, he considered that he and the Respondent would be simply traversing verbally what had already come to pass in the correspondence between the two.

• [34] Having considered the evidence, I have found the Applicant was placed on notice that a failure to provide evidence of COVID-19 vaccination or for that matter an exemption, would result in the termination of his employment and that he had received ample opportunity to respond to the same. As to whether the Respondent denied the Applicant the attendance of a support person to assist in any discussions relating to dismissal, as would be evident from the facts, the factor is a moot point.

• [35] If a dismissal relates to unsatisfactory performance, s 387(e) of the Act requires the Commission to consider whether the person has been warned about that unsatisfactory performance prior to dismissal. There is no suggestion that the Respondent took issue with the Applicant's performance. This factor is therefore irrelevant to the determination required.

• [36] The Commission is required to consider the degree to which the size of the employer's enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise, would likely impact on the procedures followed in effecting the dismissal. The Respondent is a large employer, has a dedicated human resources team and legal counsel cognisant of workplace relations law. The procedures followed by the Respondent were appropriate having regard to the size of the Respondent's enterprise. I attribute little weight to these factors given the specialist staff the Respondent has on hand.

• [37] Returning to whether there was a valid reason for the Applicant's dismissal, the following principles are apposite.

• [38] In considering whether the dismissal of the Applicant was harsh, unjust, or unreasonable, I am required to take into account whether there was a valid reason for the dismissal related to his capacity or conduct (including its effect on the safety and welfare of other employees). To explain further, 'valid' in this context generally refers to whether there was a sound, defensible or well-founded reason for the dismissal.[35] Such a reason is one that is valid in the sense that it was both sound and substantiated. Provisions such as s 387(a) must be applied in a practical, common-sense way, to ensure that the employer and employee are treated fairly.[36]

• [39] Whilst the Applicant referred to a decision handed down by the High Court of New Zealand regarding the COVID-19 vaccine mandate, and Counsel for the Respondent responded at length concerning the same, the submissions of both were an unnecessary distraction.

• [40] The Directions have at no stage been declared invalid by a court. They have been in effect at all material times. Further, they applied to the Respondent as an employer within the commercial transport industry of Western Australia. In effect, they constituted a new regulatory requirement that attached to the Applicant's role.[37] The Commission is an administrative tribunal and will carry out its functions according to law, proceeding on the basis that legislation and delegated legislation is valid until a court says otherwise.

• [41] As observed, it was somewhat unclear in Mr Floyd's polemical ramblings whether the Applicant rejected the contention that there was a valid reason for his dismissal, because the Respondent had failed to consult.

• [42] It was incontrovertible that the Applicant was covered by the Agreement.[38] Regarding the Agreement, it contains a provision requiring consultation in respect to significant change where the employer has made a definite decision to introduce a change.[39] In this matter however, it cannot be concluded that the Respondent made a definite decision to introduce change. The Respondent implemented a requirement mandated by the State Government. Therefore, in my view, there was no requirement to consult under the Agreement. No argument appeared to be pressed that there was a requirement to consult under occupational safety and health legislation.

• [43] The Applicant contended at length that the Respondent had positioned him as being unable to be vaccinated, because an 'Injecting Practitioner' was prohibited by law from injecting him. This was because, said the Applicant, that he could not provide valid consent for vaccination given the 'employment termination demand'.

• [44] In short, to perform his duties, the Applicant was required to attend work. However, on the commencement of the Directions the Applicant was precluded by law from attending the workplace. The Respondent does not argue that the Applicant was well within his rights to decline to be vaccinated against COVID-19. However, this was ultimately his choice. While he expressed he did not feel that he had been placed under undue pressure, coercion or manipulation, it nonetheless sat with him to make the decision of whether to voluntarily give his consent to be vaccinated against COVID-19. The Applicant exercised his choice not to be vaccinated and this ultimately led to the consequence that he rendered himself unable to meet the inherent requirements of his position.

• [45] In light of this, the Respondent had a valid reason to dismiss the Applicant. It was one that was related to his capacity, not his conduct nor his performance. It was his inability to meet the inherent requirements of his role. The Respondent was prohibited by law from allowing the Applicant to attend the workplace unless he provided the required evidence in the aforementioned timeframes. The Respondent would have contravened the law and exposed itself to penalty if it had acted otherwise. Having arrived at this conclusion, it proves unnecessary to consider the other reason relied upon by the Respondent for the Applicant's dismissal. Namely, whether the Applicant failed to comply with the Respondent's lawful and reasonable direction to comply with the proof of vaccination requirement from 1 January 2022.

• [46] Whilst the Applicant's service with the Respondent and its predecessors to the Transperth contract was not insignificant and no mention was made of the Applicant having anything other than a sound employment record, these factors are insufficient to dissuade against a conclusion that the Applicant's dismissal was not unfair.

• [47] The Applicant did not complain at hearing that he had not been given notice of termination or a payment in lieu of notice. Having considered the letter of termination[40] and noting that the Respondent had surmised that the Applicant had repudiated his employment contract, it appears factually correct that payment in lieu of notice was not provided.

• [48] The fact that an employee has been dismissed without notice when the employee's conduct did not warrant summary dismissal may be relevant to consider under s 387(h) of the Act.[41] However, in the present case the Applicant did not have the capacity to work at his workplace from 4 January 2022. Accordingly, even if the Respondent had provided the Applicant with actual notice of termination and his employment had continued for a further four or five weeks, he would not have been entitled to any wages during that period. Having regard to all the circumstances, the failure to provide notice of termination or a payment in lieu of notice may support a conclusion that the Applicant's dismissal was harsh and unreasonable. However, as was the case in Ashlee Mitchell v Kinda Kapers Holdings Pty Ltd,[42] the weight to be attributed to this matter is ameliorated by reason of the fact that the Applicant would not have been entitled to the payment of any wages, if he had been given notice of his termination.

• [49] Having taken into account each of the matters specified in s 387 of the Act, I am satisfied that the Respondent had a valid reason for dismissing the Applicant based on his inability to meet the inherent requirements of his role. Further, I am unable to conclude that the Applicant's dismissal was harsh, unjust, or unreasonable. Accordingly, I am obliged to dismiss the application. An Order[43] to that effect is issued in conjunction with this decision.

[1] Fair Work Act 2009 (Cth) s 394 (the Act).

[2] Public and Commercial Transport Workers (Restrictions on Access) Directions (WA).

[3] Respondent's Outline of Submissions, [1.1] (Respondent's Submissions).

[6] Witness Statement of Mr Brian James Thompson [11] (Thompson Statement).

[14] Booster Vaccination (Restrictions on Access) Directions (WA).

[15] Thompson Statement (n 6) [17], Annexure BTA2.

[25] Applicant's Email dated 12 January 2022 'Alleged Repudiation of Contract - Interview to Discuss'.

[27] Thompson Statement (n 6) [28], Annexure BT12.

[28] Applicant's Material Facts Submission, 5-7_._

[29] [2017] FWCA 3859 (the Agreement).

[31] Royal Melbourne Institute of Technology v Asher [2010] FWAFB 1200, [26] (Asher); Osman v Toyota Motor Corporation Australia Ltd PR948009; Gibson v Bosmac Pty Ltd [1995] IRCA 222; (1995) 60 IR 1, 7, cited in Selvachandran v Peterson Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371, 373 (Selvachandran).

[32] Crozier v Palazzo Corporation Pty Ltd 98 IR 137, [73].

[36] Potter v WorkCover Corporation (2004) 133 IR 458, cited in Industrial Automation Group Pty Ltd T/A Industrial Automation (2010) 202 IR 17, [36].

[37] Roman v Mercy Hospitals Victoria [2022] FWC 711, [31].

[41] Johnson v Northwest Supermarkets Pty Ltd [2017] FWCFB 4453, [5]; Sharp v BCS Infrastructure Support Pty Ltd [2015] FWCFB 1033, [34].

[42] [2022] FWC 892, [94].

[43] PR742580.

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