Fair Work Act 2009

s.394 - Unfair dismissal

Association for Christian Senior Citizens Homes Inc.

Application for an unfair dismissal remedy - employment subject to Directions of Victorian Acting Chief Health Officer - Applicant elected not to receive a COVID-19 vaccine - dismissal not unfair - application dismissed.

• [1] On 24 October 2021, Mr Floors Aucamp made an application to the Fair Work Commission for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Mr Aucamp's unfair dismissal application is the Association for Christian Senior Citizens Homes Inc. (the Respondent).

• [2] The matter did not settle at a staff conciliation or at a subsequent Member Assisted Conciliation. I conducted a Determinative Conference via Microsoft Teams on Tuesday, 21 December 2021. Mr Aucamp appeared and gave evidence. Mr Neil Morgan (CEO) and Ms Christine Dennis (Chief Operating Officer) appeared and gave evidence for the Respondent.

Initial matters to be considered - s.396 of the Act

• [3] Mr Aucamp's application was made within the 21-day period after the dismissal took effect, as required by s.394(2) of the Act (s.396(a) of the Act). Further, there is no dispute that he is a person protected from unfair dismissal, as he had completed the minimum employment period and further, at the time of his dismissal, his annual rate of earnings was less than the high income threshold (s.396(b) of the Act). In addition, at the material times the Respondent was not a small business employer so the matter does not require consideration of whether the dismissal was consistent with the Small Business Fair Dismissal Code (s.396(c) of the Act. Finally, it was not claimed and nor does the material before me suggest the dismissal was a case of genuine redundancy (s.396(d) of the Act).

Section 385 of the Act- was the dismissal unfair?

• [4] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 of the Act provides the following:

A person has been unfairly dismissed if the FWC is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy."

• [5] There is no question or dispute that Mr Aucamp was dismissed (s.385(a)) and, as outlined above, that this was not a case of genuine redundancy (s.385(d)) or a matter that involves a small business such that consideration of whether Mr Aucamp's dismissal was consistent with the Small Business Fair Dismissal Code (s.385(c)).

• [6] This leaves s.385(b) and in determining whether the dismissal was harsh, unjust or unreasonable, I must have regard to s.387 of the Act:

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."

• [7] Mr Aucamp commenced employment with the Respondent on 5 January 2016. At the time of his dismissal, he was employed full time in the role of Maintenance Manager at the Respondent's Ebenezer retirement village. At this facility, it was Mr Aucamp's responsibility to provide maintenance support to residents which extended to the buildings and facilities, the gardens and the common property. Mr Aucamp would either perform the necessary maintenance tasks himself or he would engage and manage external contractors. The maintenance and/or management of it undertaken by Mr Aucamp was both internal and external/outside.

• [8] It is not in dispute that a meeting took place between Mr Aucamp, Mr Morgan and Ms Dennison on Monday 4 October 2021. At this meeting there was discussion about directions that had been foreshadowed by the Victorian Government regarding mandatory vaccination against COVID-19. Mr Morgan said that the Respondent believed that the direction would be coming on 7 October 2021 or 8 October 2021 and that it was conveyed to Mr Aucamp that the Respondent had formed the view that the directions would cover his work, although they were waiting to see what was included. Mr Morgan gave evidence that the Association was aware of Mr Aucamp's stance on vaccination as a result of previous discussions with him but wanted to discuss the foreshadowed Directions in order to give Mr Aucamp the opportunity to think about the consequences for himself, his family and future employment if he elected not to get vaccinated. The parties agreed that the possibility that Mr Aucamp could no longer be employed if he was not vaccinated was discussed. Mr Aucamp's evidence was that he knew the mandatory vaccination requirement was coming and that it might happen but, in his heart, he did not think it would be issued by the Government. He said that at that time he had not made a firm decision as to whether or not he would get vaccinated but that he had been "reading up" to find out about the safety and efficacy of vaccination and he did not think that it was "looking that good".

• [9] Subsequently, the COVID-19 Mandatory Vaccination (Workers) Directions were made by the Acting Chief Health Officer of Victoria (the Vaccination Directions). [1] The Vaccination Directions commenced at 11.59pm on 7 October 2021 and were to end at 11:59:00pm on 21 October 2021.

• [10] Mr Morgan said he formed the view that the Vaccination Directions were applicable to Mr Aucamp's employment because he was a worker falling within their definition of a 'repair and maintenance worker', being a person who worked in connection with outdoor maintenance, repairs, and cleaning, including at occupied premises.[2] Mr Aucamp did not dispute that the Vaccination Directions applied to him.

• [11] The Vaccination Directions imposed obligations on specified employers to collect, record and hold vaccination information about their workers. Further, the Vaccination Directions provided that:

a) Specified employers were obligated to ensure that unvaccinated workers did not work outside the worker's ordinary place of residence on or after 15 October 2021;

b) An unvaccinated worker was defined as a person who had not received a dose of COVID-19 vaccine and who was not an 'excepted person' (it was not contended that Mr Aucamp was an excepted person); and

1. There was an exception to this requirement, whereby an unvaccinated worker who had a booking to receive a dose of COVID-19 vaccine by 22 October 2021 was still permitted to work outside the worker's ordinary place of residence.

• [12] On the morning of the Determinative Conference, Mr Morgan provided my Chambers with a copy of an email exchange between himself and Mr Aucamp. It comprised an email sent by Mr Morgan to Mr Aucamp at 3.29pm on Friday 8 October 2021 which attached the Vaccination Directions. That email stated:

I trust you are starting to feel better after an initial period of rest.

I would not normally write during a time of leave, however, the Chief Health Officer's Directions contain relatively short deadlines that expire before you are due to return to work. I would also greatly appreciate it if you choose not to get vaccinated to let us know as soon as possible so that we can make other arrangements to cover the ongoing responsibilities at Ebenezer Village. Much appreciated."

• [13] At that time Mr Aucamp was on a period of personal leave due to stress but he responded with an email reply sent at 12.02pm on Monday 11 October 2021, which stated:

I will not be taking the vaccine, is it possible to let me know what will happen after Friday? Will you let me go, and if so, will I be paid annual leave, pro rata long service leave, and 5 weeks notice period?

• [14] Mr Aucamp said that in sending this email, he wanted to make it clear to the Respondent that he would not be taking the vaccine so it would be able to organise someone to replace him. He also said he wanted to know whether he would be terminated.

• [15] On 14 October 2021, the Respondent sent Mr Aucamp an email with a letter dated 14 October 2021 advising that Mr Aucamp's employment was terminated effective at the close of business that day (the termination letter). The relevant contents of the termination letter were:

I am writing to confirm our need to terminate your employment based on the Victorian Government's mandatory vaccination requirements.

As you are aware, the Victoria Acting Chief Health Officer's COVID-19 Mandatory Vaccination (Workers) Directions, state that certain groups of employees must not attend their normal work site from 15 October 2021 if they have not received their first dose of a COVID-19 vaccine (or have not had it booked by 22 October 2021). Unfortunately, we understand, you do not qualify for one of the recognised exemptions in the relevant Directions.

Based on the above, we cannot lawfully permit you to enter our premises to perform your duties as a Maintenance Manager from 15 October 2021. From that date you cannot lawfully perform your role and as a result, your employment will be terminated.

The termination of your employment is effective as at close of business 14 October 2021. You will be paid your wages up to and including 14 October 2021 and any accrued leave entitlements owing on termination. We will also include an ex gratia payment for one day of wages as you had a sick certificate extending to 15 October 2021.

As discussed in my earlier emails, our HR advice is that a payment in lieu of notice does not apply in your situation. We recognise the Victorian Government's announcement requiring mandatory vaccinations was quite recent and we are willing to pay you an additional 3 weeks pay on the basis that notice in lieu does not apply. If it is determined that notice in lieu is to be paid, we consider it reasonable to deduct the 3 weeks of additional pay from any future notice in lieu payment (i. e. we will pay an extra 2 weeks of pay if a notice in lieu payment should have been paid).

• [16] Mr Aucamp said that up until the point of receiving the termination letter he was not sure he would be terminated or that the Government would proceed with the Vaccination Directions, although he accepted this was a possibility following the meeting on 4 October 2021 and the subsequent email exchange outlined above. Ultimately, Mr Aucamp did not think the Respondent would threaten an employee with the loss of their job if they did not get a vaccination because he does not believe that this would constitute informed consent.

• [17] I have previously outlined the criteria set out in s.387 of the Act. I am under a duty to consider each of these criteria in reaching my conclusion and will do so below.

Was there a valid reason for dismissal relating to Mr Aucamp's capacity or conduct? (s.387(a))

• [18] On 16 March 2020, the Victorian Minister for Health issued a declaration pursuant to s 198(1) of the Public Health and Wellbeing Act 2008 (Vic) that Victoria had entered a state of emergency as a consequence of the COVID-19 pandemic. The declaration was extended numerous times over the ensuing 20 months, and it covered the relevant period during which the dismissal took place. Where a state of emergency exists, the Chief Health Officer of Victoria may authorise the exercising of emergency powers, which include the issuing of directions.[3] It is not in dispute, and I am satisfied, the Vaccination Directions covered the employment of Mr Aucamp because his employment came within the definition of a 'repair and maintenance worker'. As outlined above, such a worker was defined in clause 27(a)(ix) of the Vaccination Directions as a person who works in connection outdoor maintenance, repairs, and cleaning, including at occupied premises.[4]

• [19] Pursuant to the Vaccination Directions, the Respondent was required to take all reasonable steps to ensure that, on or after 15 October 2021, its workers who were not vaccinated did not work for it outside their ordinary place of residence. Additionally, workers in respect of whom no such vaccination information was held were to be treated as if they were unvaccinated, subject to an exemption where the unvaccinated worker had a booking to receive the first dose of a COVID-19 vaccine by 22 October 2021.

• [20] Under the Vaccination Directions, a worker was not treated as being unvaccinated or partially vaccinated if he or she was an "excepted person". To be an excepted person required medical certification from a medical practitioner that the person was unable to receive a vaccine due to a medical contraindication or an acute medical illness. It is not asserted and has never been asserted that Mr Aucamp was an excepted person.

• [21] A refusal or failure by the Respondent to comply with a direction given to it or a requirement made of it under the Vaccination Directions is an offence for which a penalty of 600 penalty units applies.[5]

• [22] It is also not contended that the obligations imposed on the Respondent were altered in any material effect by any successive instrument. In this regard I note that the Vaccination Directions were revoked at 11.59pm on 14 October 2021 but this was after the dismissal of Mr Aucamp took effect.

• [23] Both the termination letter and the submissions made on behalf of the Respondent at the Determinative Conference make clear that Mr Aucamp's dismissal was for a reason related to his capacity, rather than conduct. The Respondent recognised Mr Aucamp's stance regarding vaccination, acknowledged he might make a choice not to become vaccinated and when the requirements of the Vaccination Directions became known, sought his advice as to what he was going to do in response. At no stage did the Respondent issue a direction to Mr Aucamp requiring him to become vaccinated. Having received Mr Aucamp's advice that he would not be getting vaccinated on 11 October 2021, the Respondent proceeded to terminate his employment three days later. The termination was on the basis that the Vaccination Directions prohibited the Respondent from permitting Mr Aucamp to work as Maintenance Manager at the Ebenezer retirement village and therefore he could not lawfully perform his role from 15 October 2021.

• [24] Mr Aucamp was never directed by the Respondent to get vaccinated. Mr Aucamp was invited to advise whether or not he had decided to get vaccinated and in response, he stated on 11 October 2021 without equivocation that he would not be getting vaccinated. Mr Aucamp's statement in that email offered no suggestion that he had a booking to receive a dose of a COVID-19 vaccination that would have caused him to have become partially vaccinated by 22 October 2021 or that he intended to make one. In these circumstances, the Respondent was entitled to conclude Mr Aucamp was and would remain unvaccinated. To then have permitted Mr Aucamp to work for it outside of his ordinary place of residence after 11.59pm on 14 November 2021, which his employment duties required, would have constituted an offence under the Public Health and Wellbeing Act 2008 (Vic) and rendered the Respondent liable for a substantial financial penalty. I am therefore satisfied in the circumstances of this particular case that there was a valid reason for Mr Aucamp's dismissal related to his capacity to perform the work he had been employed to do.

Was Mr Aucamp notified of "that reason" (s.387(b)) and given an opportunity to respond (s.387(c))

• [25] I am satisfied that the foreshadowed mandatory vaccination requirements and the possibility that Mr Aucamp could no longer be employed if he was not vaccinated was discussed by the parties on 4 October 2021. I am also satisfied that by providing Mr Aucamp with a copy of the Vaccination Directions on 8 October 2021 and in the accompanying email, the Respondent provided notification to Mr Aucamp that if he chose not to get vaccinated, he would not be able to work at Ebenezer Retirement Village. The text of the email dated 8 October 2021 also indicates Mr Aucamp was given an opportunity to respond, which he subsequently took up in the reply email he sent to Mr Morgan on 11 October 2021. Mr Aucamp stated he would not be getting vaccinated, and the email also indicates that he was alive to the possibility his employment may be terminated as a result. I am therefore satisfied that the considerations in ss.387(b) and (c) of the Act were met.

Was there an unreasonable refusal by the employer to allow a support person - s.387(d)

• [26] This consideration is not relevant in this case. There was no evidence before me of an unreasonable refusal by the Respondent to allow Mr Aucamp a support person at the discussion on 4 October 2021.

Warnings regarding unsatisfactory performance - s.387(e)

• [27] There is no suggestion, and I am satisfied that the evidence establishes the Respondent had not formed the view that Mr Aucamp was performing in an unsatisfactory manner. Therefore, this factor is not a relevant consideration in this case.

Impact of the size of the employer on procedures followed - s.387(f) and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

• [28] I do not consider the size of the Respondent is a relevant factor in this case (s.387(f)) and I have noted the Respondent accessed human resources management advice from an external provider (s.387(g)).

• [29] I have noted that in Mr Aucamp's Outline of Argument[6] he outlines various concerns about COVID-19 vaccination and information he relies on in support of these concerns. He submitted the requirement to be vaccinated is not about public health and asserts COVID-19 is also spread by vaccinated persons. Mr Aucamp submitted that the Vaccination Directions are a violation of a number of codes, covenants and declarations. He questions the validity and legality of the Vaccination Directions.

• [30] Mr Aucamp also complained in his Outline of Argument that the process adopted by the Respondent was too quick and he did not have time to think about things properly. He submitted he was shocked that he could be told he had to get vaccinated or not work for the Respondent anymore and that he could be terminated because he did not get vaccinated. However, these submissions did not accord with other evidence Mr Aucamp gave and other submissions he made at the Determinative Conference. Mr Aucamp gave evidence at the Determinative Conference that by the time of the 4 October 2021 meeting, he had already been researching the efficacy and safety of COVID-19 vaccines and he acknowledged he was aware that termination resulting from Government directions was a possibility. Despite his belief that the Vaccination Directions are illegal, Mr Aucamp acknowledged the Respondent was obligated to take steps to comply with them and said he thought the Respondent had handled things as best it could.

• [31] Mr Aucamp submitted he had been a good performer in his job and that he would have expected to remain employed by the Respondent for another 15 years. He is aggrieved because he thought he should have been paid 5 weeks in lieu of notice.

• [32] The Respondent says it did not consider the failure of Mr Aucamp to get vaccinated was serious misconduct. It says it knew Mr Aucamp was concerned about the actions of the Government but submitted it had no discretion when it came to the Vaccination Directions. The Respondent also submitted it had no capacity to provide extra notice of the dismissal because with only one week's notice, it was subject to a mandatory Government Direction. The Respondent believes it paid Mr Aucamp above what was strictly owed under its enterprise agreement.[7] It proceeded on the basis that no notice was due in this case because the Vaccination Directions were mandatory. Further, it appeared to hold the view, based on advice it had received, that it could make an adjustment for the period between Monday 4 October 2021 and Thursday 14 October 2021 inclusive.

• [33] Having considered and weighed the matters raised in relation to s.387(h) of the Act, I do not find that they are sufficient to render Mr Aucamp's dismissal harsh, unjust or unreasonable. The Vaccination Directions were not a change proposed by the Respondent. In truth, Mr Aucamp's grievance lies with the decision of the Victorian Government's Acting Chief Health Officer. Both parties were conscious of the predicament the other found themselves in as a result of the Vaccination Directions and I consider their various exchanges were respectful and without rancour. The Respondent was aware of Mr Aucamp's position regarding vaccination and acknowledged the impact the Vaccination Directions would have on him. Mr Aucamp regards the Vaccination Directions as illegal and discriminatory, but he acknowledged they imposed obligations on the Respondent. While Mr Aucamp expressed concern about the speed of the process that resulted in his dismissal and had the opportunity under the Vaccination Directions to make a booking to receive a COVD-19 vaccine by 22 October 2021, his position on the requirement to be vaccinated has not changed at any point since 11 October 2021. Moreover, he says that he has had no second thoughts about refusing to get vaccinated. Finally, while Mr Aucamp complains that he was not paid 5 weeks in lieu of notice of termination, he dismissed a query from me as to whether an offer from the Respondent that would result in him having received this amount would be of interest.

• [34] Having considered each of the matters specified in s.387 of the Act, I am satisfied the dismissal of Mr Aucamp was not harsh, unjust or unreasonable. Accordingly, I find that Mr Aucamp's dismissal was not unfair. Mr Aucamp's application for unfair dismissal remedy is therefore dismissed.

Mr N Morgan and Ms C Dennis for the Association for Christian Senior Citizens Homes Inc.

[3] Public Health and Wellbeing Act 2008 (Vic), s.200(1)(d).

[7] Association for Christian Senior Citizens Homes Inc. (trading as Outlook Gardens Aged Care Facility), ANMF and HSU Enterprise Agreement 2014 (Print AE408648 PR 552160).

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