Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - refusal of real estate sales consultant to provide employer with evidence of vaccination status - incapacity to perform requirements of the role - valid reason for dismissal - compliance with SBFDC - dismissal not unfair in any event

• [1] This decision concerns an application for an unfair dismissal remedy made by Ms Catherine Pope under s 394 of the Fair Work Act 2009 (Act). From June 2019 until 22 October 2021, Ms Pope worked as a sales consultant for Bacchus Marsh Realty Pty Ltd, which trades as Stockdale & Leggo Bacchus Marsh (BMR). BMR dismissed Ms Pope after she failed to provide it with evidence that she had been vaccinated against COVID-19, which had the consequence that the company was required by law not to allow her to attend the workplace. Ms Pope contends that BMR could have allowed her to work from home and that its decision to dismiss her was harsh, unjust or unreasonable.

• [2] Section 396 of the Act requires that I decide four matters before considering the merits of the application. I am satisfied of the following. First, Ms Pope's application was made within the 21-day period required by s 394(2) of the Act. Secondly, Ms Pope was a person protected from unfair dismissal. Thirdly, the dismissal was not a genuine redundancy. Fourthly, as I explain below, the dismissal complied with the Small Business Fair Dismissal Code (SBFDC). Ms Pope's unfair dismissal application must therefore be dismissed. The dismissal would not in any event have been unfair with regard to s 387 of the Act.

• [3] On 7 October 2021, the Victorian Acting Chief Health Officer issued the COVID-19 Mandatory Vaccination (Workers) Directions under s 200 of the Public Health and Wellbeing Act 2008 (Vic) (Directions). The Directions remained in effect until 21 October 2021, whereafter they were succeeded by other directions in similar terms. They required employers to collect, record and hold vaccination information about any worker who, on or after 15 October 2021, was or may be scheduled to work outside their ordinary place of residence. They required that employers not allow workers to attend for work on or after 15 October 2021 unless they had provided evidence to the employer of having been vaccinated against COVID-19. An exemption applied for workers who provided a certificate that they were unable to receive a vaccination due to a medical contraindication. Ms Pope did not have an exemption. BMR was subject to the Directions because it is an 'estate agent' within the meaning of the Directions.

• [4] Mr Mark Shelly is the managing director of BMR. He gave evidence that Ms Pope's role as a sales consultant required her, among other things, to conduct property inspections, be familiar with all properties listed for sale, distribute promotional and follow-up material both by mail and leaflet drop, door-knock at relevant properties, and greet visitors to the office at reception. These duties were referred to in Ms Pope's contract of employment, a signed copy of which was attached to Mr Shelly's statement.

• [5] Mr Shelly said that on 1 October 2021, he received an email from BMR's franchisor Stockdale & Leggo, advising that 'authorised workers' were required to be vaccinated by 15 October 2021. Later that day Mr Shelly forwarded this email to Ms Pope and other staff members, under cover of a message stating: 'Could we all please ensure that we adhere to this.' On 13 October, Mr Shelly sent a copy of the Directions to staff, including Ms Pope, together with a brief summary of the Directions. He asked that staff provide a copy of their vaccination status by 21 October 2021.

• [6] Mr Shelly said that on 14 October 2021, during a sales meeting, Ms Pope told him that she would not provide her personal vaccination information and that she could not be required to do so. Later that day, Ms Pope sent Mr Shelly a message in similar terms. She also asked Mr Shelly to confirm whether she would be terminated because of her refusal to share private medical information with the company. That evening, Mr Shelly sent an email in reply, asking Ms Pope to attend an online meeting with him the following day to discuss the requirements of the Directions, and the implications for her employment if the requirements were not met.

• [7] Mr Shelly said that at the meeting on 15 October 2021, Ms Pope again refused to provide information about her vaccination status, and it was agreed that she would commence a period of leave without pay until the question of her vaccination status was resolved.

• [8] In a letter dated 20 October 2021, Mr Shelly advised Ms Pope that, despite several requests, she had failed to provide the company with information confirming her vaccination status, and that unvaccinated persons were required to provide proof that they would receive their first dose by 22 October 2021 and their second dose by 26 November 2021. The letter further stated:

"It is a reasonable and lawful direction of (the company) to require all employees to comply with the vaccination requirements set out in the Vaccination Mandate. Compliance with the mandate is also an inherent requirement of your role as Sales Consultant. Failure to comply with this direction will result in termination of your employment."

• [9] On 21 October 2021, Ms Pope replied to Mr Shelly, stating that she did not agree that she had failed to comply with the Directions, and that it was not lawful or reasonable of the company to require employees to comply with the Directions. Later that day, Ms Pope attended another online meeting with Mr Shelly to discuss her employment. Ms Pope submitted to the Commission a typed transcript of this discussion, which records that Ms Pope said to Mr Shelly words to the effect that she would not provide any medical records to BMR relating to her vaccination status. During the meeting, Mr Shelly said words to the effect that, although everyone had worked from home during lockdown, the office was now open and that Ms Pope's role as a senior sales consultant required her to be able to go to properties, conduct appraisals, and meet people at properties. He asked Ms Pope to explain how all of these duties could be done from home. Ms Pope replied that there would need to be an interim period with a 'different working situation'. At the end of the meeting, Ms Pope asked Mr Shelly whether there were options other than termination. Mr Shelly said he would seek advice.

• [10] On 22 October 2021, Mr Shelly sent a letter to Ms Pope, in which he stated that compliance with the Directions was an inherent requirement of her role, that she had failed to comply with the Directions, and that in so doing she had also refused to comply with a lawful and reasonable direction of the company. The letter advised Ms Pope that her employment with the company was terminated with immediate effect, and that she would receive a payment of two weeks' wages in lieu of notice.

• [11] Ms Pope gave evidence that she had a good record of service with BMR and had always received positive feedback about her work. She said that after receiving notification of the requirements of the Directions from BMR, she asked the company to provide her with relevant health and safety information pertaining to the vaccines, and in particular a document called a 'materials safety data sheet', as well as a copy of the company's policy for managing risks related to COVID-19 in the workplace, but that no such information was provided. Ms Pope stated that she had been ready, willing and able to work, and that BMR should have allowed her to work from home. In this regard, Ms Pope said that she had been treated less favourably than another employee, Ms Emily Hickey, who had not been vaccinated at the time of Ms Pope's dismissal but was allowed to work from home. Ms Pope said that the company's explanation that Ms Hickey was not a salesperson should not be accepted, because although Ms Hickey was a personal assistant, sales and commissions data confirmed that she undertook sales work. Ms Pope said that the company's differential treatment of her and Ms Hickey was another dimension of unfairness in her dismissal.

• [12] Ms Pope also said that the company's letter of 20 October 2021 had suggested that unvaccinated persons had until 22 October 2021 to receive the first dose, but that she was dismissed before the end of the working day on 22 October 2021, and that this had 'pre-empted' her final decision as to whether to obtain a COVID-19 vaccination.

• [13] Ms Pope contended that her dismissal was harsh, unjust or unreasonable. She said that BMR did not have a valid reason to dismiss her, because it unreasonably insisted that she provide her sensitive medical information, whereas her contract of employment did not require her to do so. Ms Pope also contended that the Directions were unlawful or unreasonable and that BMR could therefore not rely on them in connection with its decision to dismiss her. As there was no valid reason, her dismissal by the company could not have been consistent with the SBFDC, nor could it be considered fair with regard to the considerations in s 387. Ms Pope contended that she had been treated less favourably than Ms Hickey, who like her was covered by the Real Estate Industry Award 2020 (Award) and performed sales work, even if her formal position was that of personal assistant to Mr Shelly. She said that it was discriminatory and unfair that another employee had been allowed to work from home, whereas she had been refused this possibility. Ms Pope contended that the company could have considered alternatives to termination of her employment but failed to do so. She also submitted that it was unlawful or unfair for the company to have terminated her employment while she was on a period of leave, by which she meant the period of unpaid leave that had commenced on 15 October 2021.

• [14] BMR contended that it had two valid reasons to dismiss Ms Pope. First, she had rendered herself unable to perform the inherent requirements of her job by refusing to provide evidence that she had been vaccinated against COVID-19, because this meant that the company could not permit her to attend the workplace, which her job required. Secondly, BMR submitted that Ms Pope had refused a lawful and reasonable direction of the company that required her to comply with the Directions. BMR submitted that its valid reasons satisfied the relevant requirement of the SBFDC, or alternatively the consideration in s 387(a) of the Act. BMR contended that it had also warned Ms Pope, notified her of the reasons for her dismissal, and given her an opportunity to respond to those reasons. Ms Pope's role was not one that could reasonably be performed from home. By contrast, Ms Hickey was not a salesperson but an administrative assistant who had undertaken some sales-related work for training purposes, and it was possible for Ms Hickey to perform her job remotely. BMR submitted that the dismissal was consistent with the SBFDC, or alternatively not unfair with regard to s 387.

• [15] A dismissal cannot be unfair if it was consistent with the SBFDC (see s 385(c)). Section 388(2) defines when a dismissal will be consistent with the SBFDC. Two conditions must be satisfied. First, immediately before the time of dismissal, the employer must have been 'a small business employer', as defined in s 23. BMR falls within this definition. Based on the evidence of Mr Shelly, which I accept, I am satisfied that immediately prior to Ms Pope's dismissal it employed fewer than 15 employees. This was not contested. I also find that BMR does not have any associated entities, and in particular that it is not an associated entity of its franchisor, Stockdale & Leggo.

• [16] The second condition in s 388(2) is that the employer must have complied with the SBFDC in relation to the dismissal. In respect of cases not involving summary dismissal, the Code provides:

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.

The employee must be warned verbally, or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations."

• [17] The deficiency in the second limb of the SBFDC is that instead of relevantly setting a simpler, lower standard for small businesses, it renders mandatory several matters that are only considerations in the setting of s 387. In any event, I consider that BMR complied with the second limb of the SBFDC in relation to the dismissal of Ms Pope.

• [18] First, Ms Pope was given a reason as to why she was at risk of dismissal in Mr Shelly's letter of 20 October 2021. The reason was a valid one related to Ms Pope's conduct or capacity to do the job. She was told that 'compliance with the mandate' was an inherent requirement of her role as a sales consultant. This reason could have been more precisely formulated. In fact, it was the company that had to comply with the 'mandate', not Ms Pope. But in my view, it was clear in the context of the correspondence what was meant. Ms Pope's failure to provide the company with the required information concerning her vaccination status meant that the company was prohibited by law from allowing her to work outside of her usual place of residence. Ms Pope was employed as a sales consultant. She was required to undertake duties that had to be performed outside of her home. If Ms Pope chose not to provide the company with evidence that she had been vaccinated against COVID-19 the company was not allowed to permit her to work outside the home, and she would not be able to do her job.

• [19] I reject Ms Pope's contention that, because she had worked from home during lockdown, and had performed sales work including appraisals at this time, she could have and should have been allowed to work from home again. The lockdown had been an exceptional situation. The lockdown had now been lifted. BMR's offices were open. So were the offices of other real estate agents, which compete with BMR. In her evidence, Ms Pope recognised that by working from home, she could not work in the same way as she would from the office. In her own words, 'an interim period' and a 'different working situation' would be required. I accept the evidence of Mr Shelly that the core elements of Ms Pope's role required her to be able to come to work. It does not matter that there might have been some duties that Ms Pope could have done from home. It was perfectly reasonable of BMR to expect Ms Pope to do all of her job properly, especially her core duties, following the lifting of the lockdown. Ms Pope decided not to provide proof of vaccination against COVID-19 to BMR. She therefore rendered herself unable to do her job. BMR had a valid reason for dismissing Ms Pope that related to her capacity.

• [20] Secondly, Ms Pope was warned on several occasions that she was at risk of being dismissed if she did not provide proof that she had been vaccinated against COVID-19.

• [21] Thirdly, Ms Pope was provided with an opportunity to respond to the warning and was also given a reasonable chance to rectify the matter: she had ample time to provide the required proof of vaccination status to her employer. She chose not to do this. Ms Pope was under no misapprehension about what the company required of her.

• [22] I note that Ms Pope's written submissions in respect of the SBFDC proceeded on the incorrect assumption that the company was relying on the second limb of the code, which concerns summary dismissal. Ms Pope was not summarily dismissed, even though she was dismissed with immediate effect. Rather, she was terminated on notice, but received payment in lieu of notice. BMR complied with the first limb of the SBFDC in relation to Ms Pope's dismissal. The application must therefore be dismissed.

• [23] Had I reached a different conclusion in relation to the company's compliance with the SBFDC, I would nevertheless have found that the dismissal of Ms Pope was not unfair. My consideration of those matters is as follows. For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable (s 385(b)). In considering whether it is so satisfied, the Commission must take into account the matters specified in s 387. The Commission is required to consider whether there was a valid reason for the dismissal related to the person's capacity or conduct (s 387(a)). Such a reason is one that is valid in the sense both that it was a good or sufficient reason, and also a substantiated reason.

• [24] As noted above, BMR had a valid reason for dismissal related to Ms Pope's capacity. By choosing not to provide the company with evidence that she had been vaccinated against COVID-19, she had rendered herself unable to perform the full range of duties, including her core duties, required under her contract of employment. The duties referred to in the evidence of Mr Shelly concern matters of obvious importance to a person whose role is a sales consultant in a real estate business. They could not reasonably be performed from home. The fact that during lockdown, real estate businesses were forced to make the best of a difficult situation whereby salespersons may have worked from home, as Ms Pope did, is irrelevant. That was due to an extraordinary circumstance which had ceased to exist, i.e. the lockdown.

• [25] Ms Pope contended that BMR could not rely on the Directions to justify its decision to dismiss her because the Directions were invalid or unfair. But the Commission proceeds on the basis that laws and delegated legislation are valid, until such time as a court says otherwise. The Directions have not been declared to be invalid. I would add that in any event I do not consider that any of the arguments advanced by Ms Pope that seek to impugn the validity of the Directions have merit.

• [26] The company contended that it had a second valid reason to dismiss Ms Pope, one related to her conduct in refusing to follow the company's reasonable direction that she comply with the Directions. However, it is not necessary for me to decide whether this was a lawful and reasonable direction, because one valid reason has already been established. I note that, to the extent that BMR's direction required Ms Pope to take action to enable it to be compliant with the Directions, it would have been misconceived, because the company's compliance with the Directions was not dependent on Ms Pope's conduct. Despite Ms Pope's refusal to provide proof of her vaccination status, the company remained in compliance with the Directions at all times. BMR quite properly refused to allow her to work outside her usual place of residence.

• [27] In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether an employee has been notified of the reasons for dismissal and whether the person was afforded an opportunity to respond to any reason related to their capacity or conduct (ss 387(b) and (c)). Mr Shelly's letter of 20 October 2021 told Ms Pope that failure to comply with the vaccination mandate would result in her dismissal. Again, although the Directions did not place any requirements on Ms Pope, I consider that the letter made plain what Ms Pope had to do if she wanted to be able to continue to attend the workplace and remain employed. Ms Pope had an adequate opportunity to respond to the reason for dismissal.

• [28] The company did not refuse, unreasonably or otherwise, to allow Ms Pope to have a support person present to assist in discussions relating to the dismissal (s 387(d)). Ms Pope had a support person with her at the meeting on 21 October 2021.

• [29] If a dismissal relates to unsatisfactory performance, s 387(e) requires the Commission to consider whether the person has been warned about that unsatisfactory performance prior to dismissal. However Ms Pope's employment was not terminated for unsatisfactory performance, but for issues relating to her conduct and capacity.

• [30] 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 be likely to impact on the procedures followed in effecting the dismissal (ss 387(f), (g)). BMR is a small employer and does not have dedicated human resources staff. However I attribute this little weight. It does not affect my overall assessment.

• [31] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account any other matters that it considers relevant (s 387(h)). Ms Pope contended that she was treated differently from another employee, Ms Emily Hickey, who remained unvaccinated but was not dismissed and was allowed instead to work from home. I reject the contention that this involved any unfairness. Mr Shelly's evidence, which I accept, was that Ms Hickey was employed in 2020 to be his personal assistant, and that she has since entered into a traineeship to undertake her licenced estate agent course. Her role is to assist Mr Shelly in the administration of day to day affairs. She is able to perform her duties from home. As Mr Shelly explained, any involvement of Ms Hickey in selling properties occurred in her capacity as a trainee. She was not able to perform the same duties as Ms Pope. Ms Pope produced photographs of whiteboard notes appearing to show earnings attributed to Ms Hickey. However I accept Mr Shelly's evidence that these notes were for training purposes. Irrespective of this, Ms Hickey's circumstances are very different from those of Ms Pope. Contrary to Ms Pope's contention, the fact that she and Ms Hickey were both covered by the same award does not mean that they should both have been able to work from home. They performed different roles. In my opinion, taking into account the matters referred to in s 387, Ms Pope's dismissal was not harsh, unjust or unreasonable. It was entirely understandable. It was not unfair.

• [32] I will address some of Ms Pope's remaining submissions.

• [33] Ms Pope contended that during the meeting on 14 October 2021, she had asked to be provided with a 'materials safety data sheet' and occupational health and safety information relevant to managing COVID-19 in the workplace, but that she was not provided with these documents, and that the company thereby breached it duty of care to her. Mr Shelly said that BMR did not possess such documents. In my view, the company had no obligation either to have documents of this kind or to provide them to Ms Pope.

• [34] Ms Pope submitted that the dismissal was unfair because she had been told in the letter of 20 October 2021 that she had until 22 October 2021 to obtain her first dose of vaccine, yet she was dismissed on the afternoon of that same day. Ms Pope contended that the company should not have dismissed her before the close of business, and that its decision to dismiss her that afternoon 'pre-empted any decision ... to obtain the first dose of a vaccine'. I reject this contention. During her discussion with Mr Shelly on 21 October 2021, Ms Pope stated very clearly that she would not divulge her private medical information to the company, including whether she had received a vaccination. I do not accept the suggestion by Ms Pope that she might have changed her mind about this matter later that afternoon. If she had been reconsidering her position, she should have told Mr Shelly about this, instead of leaving him with precisely the opposite understanding the previous day.

• [35] Ms Pope submitted that neither her contract of employment nor the Award required her to obtain vaccinations. But the Directions effectively established new regulatory requirements that attached to her ability to attend for work. She did not meet these requirements. Ms Pope contended that employers do not have power to demand that employees become vaccinated. BMR did not make such a demand. It advised her of the legal preconditions of her attendance at the workplace. She chose not to meet them.

• [36] Ms Pope submitted that her dismissal was unfair because she was dismissed during a period of unpaid leave, and that the Act prohibits dismissal in such circumstances. This is wrong. The Act does no such thing.

• [37] Ms Pope also said that her dismissal was unfair because BMR did not provide her with any alternative to dismissal, such as working on reduced hours. I do not consider this to have been unfair. Ms Pope was not employed to do other duties. She was employed to be a sales consultant. She was employed to work full-time not part-time. I do not accept Ms Pope's evidence that other options were promised to her. It is inherently implausible, and contrary to the documentary evidence that clearly explained the implications of the Directions and the company's expectations of Ms Pope. The lockdowns were over. Real estate businesses were open and competing for work. Mr Shelly needed his senior salesperson at work and in the field, not at home on restricted duties. And after all, there was of course an alternative that would have allowed Ms Pope to work as normal. She could have become vaccinated and provided BMR with the appropriate evidence. She did not want to do so, for her own personal reasons. That was her choice. But it had a logical consequence, because her job required her to attend the workplace.

• [38] Finally, I note that Ms Pope said during the hearing that she did not seek reinstatement, but compensation. Had it been necessary to consider the question of remedy, I would not have found reinstatement to be appropriate, given that Ms Pope did not seek it, and because there was nothing to suggest that Ms Pope had changed her position that she would not provide proof of vaccination status, such that BMR would remain prohibited by the Directions (which remain in force) from allowing her to attend the workplace. Further, I would not have awarded any compensation, because there is no evidence before me that Ms Pope took any steps to mitigate any loss, a circumstance that s 392(2)(d) requires the Commission to take into account. Ms Pope said during the proceeding that since her dismissal she had not applied for any jobs. She said that the reason for this was because she had been upset by her dismissal. But she did not present any medical evidence to show that she was unable to apply for jobs because of mental unwellness or any other reason. I do not accept that this was the case.

• [39] Ms Pope's dismissal was consistent with the second limb of the SBFDC. In any event, having regard to s 387 of the Act and all of the circumstances of the present matter, I do not consider that Ms Pope's dismissal was harsh, unjust or unreasonable. It was therefore not unfair.

• [40] Ms Pope's unfair dismissal application is dismissed.

Printed by authority of the Commonwealth Government Printer