Fair Work Commission|2021-12-10

Joash Cohen v Davidsons Garage Pty Ltd [2021] FWC 6587 (10 December 2021)

s.394 - Application for unfair dismissal remedy

[1] Mr Joash Cohen has applied under s 394(1) of the Fair Work Act 2009 (FW Act) for an unfair dismissal remedy in respect of the termination of his employment with Davidsons Garage Pty Ltd (Davidsons Garage). Mr Cohen commenced employment with Davidsons Garage in January 2020, and worked as a motor mechanic at its garage in Maroubra in Sydney (Maroubra Autocare). He was summarily dismissed on 23 August 2021. The reasons for his dismissal were contained in a letter dated 23 August 2021 which, omitting formal parts, stated:

"I am writing to you about the termination of your employment with Davidsons Garage Pty Ltd T/A Maroubra Autocare effective today.

Firstly, You illegally travelled for a trip to the Snow during a PHO where you were not allowed to leave the Greater Sydney Area. You travelled without advising us (your employer) of your movements with no consideration of potentially returning with COVID to the workshop. You do not use QR codes.

Secondly, you are in breach of the COVID Safe requirements in place to allow you to work at Maroubra Autocare without a mask due to your exemption. These being, No entry to the office, No approaching or serving customers, Checking in with the QR code daily and the practice of safe social distancing.

Thirdly, you do not believe in COVID 19 and do not believe in the PHO associated with it, this in its self [sic] presents a safety risk to our staff and customers. You are entitled to your beliefs, but you cannot bring that to our workplace. The cases now stand at over 800 every day. The risk is too great.

As discussed with David Cantelo, your complacent behavior toward COVID Safe rules resulting in these incidents:

Was not acceptable behaviour by you that is inconsistent with the continuation of your employment.
Caused other staff members to feel threatened.
That the behaviour is repeated after warnings given on several occasion are being ignored.
Caused a serious and imminent risk to the staff working in the enclosed office space whom are not yet vaccinated.
You refused to carry out a lawful and reasonable instruction consistent with your employment under the COVID Safe requirements given to you to work at Maroubra Autocare.
We consider that your actions constitute serious misconduct warranting immediate dismissal.

You will be paid any accrued entitlements and outstanding remuneration, including superannuation, up to and including the date of this letter. You are required to provide Payroll with your correct residential address in Matraville."

[2] The above letter was signed by Mr Stephen Davidson, one of the owners and directors of Davidsons Garage, and Mr David Cantelo, who was the manager at the Maroubra Autocare site.

[3] In his application, and specifically in response to the above termination letter, Mr Cohen contends that his dismissal was unfair for the following reasons:

"• I requested and informed my employer Dave Cantelo on the 19/7/21 for time off (holidays) which had been approved to do so, to go to the snow 21/7/21. It was made to his knowledge and agreed between us. After I had returned from my trip I was informed via text message that I would require a covid test before returning to work 2/8/21. I did not accept the test as I know it to be intrusive. I already suffer from sinusitis therefore did not wish to take any risks and this test has been proven to be ineffective. I was informed that I had to take another week off work in order to return if I did not do the test, I complied. Then I was advised before returning to work I would have to wear a mask for which I have an exemption. I informed my employer of this and provided it and it was accepted. I then returned to work on the 9/8/21. Work resumed as per normal.

As to the no entry to the office, I was not provided by necessary accessories i.e stickers, job cards, stamps etc. to allow me to do my job without accessing the office. At no point was I serving customers - the only instance being handing out a key which I was directed to do by Dave Cantelo himself. I was not informed that employees had to use QR codes, nor did I see any other employees do so.

On Saturday 21/8/21 I was pulled aside after finishing work and verbally told by the manager that I had to wear a mask if I was to return to work on Monday the 23/8/21 - 'The owners do not want to take the risk of getting fined'. He said the other employees would not look down on me and respect me, to swallow my pride and just wear a mask, 'just do it', 'it will only be for another month'. He said he didn't want people to bring complaints to the business."

[4] Mr Cohen seeks monetary compensation as a remedy.

[5] Mr Cohen and Davidsons Garage filed submissions and witness statements in accordance with standard directions. The matter was the subject of a determinative conference before me, conducted remotely, on 26 November 2021. Mr Cohen represented himself. Davidsons Garage was represented by Ms Robyn Eldridge, an employee of the Motor Traders' Association of New South Wales, a registered organisation (MTA). Permission was not required for her appearance by virtue of s 596(4)(b) of the FW Act.

[6] A critical feature of this matter is that Davidsons Garage, and Mr Cohen, were subject to a number of requirements imposed by a series of public health orders made by the NSW Minister for Health pursuant to s 7 of the Public Health Act 2010 (NSW) (PH Act) in response to a COVID-19 outbreak in Sydney in the period leading up to Mr Davidson's dismissal. The first of these orders, the Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021, described (in clause 7) the grounds for the order as follows:

7 Grounds for concluding that there is a risk to public health

The basis for concluding that a situation has arisen that is, or is likely to be, a risk to public health is as follows -

(a) public health authorities both internationally and in Australia have been monitoring and responding to outbreaks of COVID-19, which is a condition caused by the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2),

(b) COVID-19 is a potentially fatal condition and is highly contagious,

(c) a number of cases of individuals with COVID-19 have recently been confirmed in New South Wales and other Australian jurisdictions, including by means of community transmission, and there is an ongoing risk of continuing introduction or transmission of the virus in New South Wales.

[7] The succeeding public health orders all contained a provision to the same effect.[1]

[8] The requirements imposed by the public health orders, as relevant to this matter, were as follows:

(1) At all times from 26 June 2021 up to the date of Mr Cohen's dismissal, there was a requirement for persons over the age of 12 years to wear a face mask covering their nose and mouth at all times while in an indoor area or premises other than a place of residence (mask requirement).[2] The mask requirement did not apply to "a person with a physical or mental health illness or condition, or disability, that makes wearing a fitted face covering unsuitable including, for example, a skin condition, an intellectual disability, autism or trauma".[3] From 22 July 2021, such an illness or condition could be evidenced by, among other things, a statutory declaration by the person that "the person has the physical or mental health illness or condition, or disability, and ... the physical or mental health illness or condition, or disability, makes wearing a fitted face covering unsuitable".[4]

(2) At all times from 2 June 2021 up to the date of Mr Cohen's dismissal, persons[5] entering any business premises were required, upon entry, to register their contact details electronically (check-in requirement). This could be done by, among other things, the person using their phone to register their details with Service NSW.[6]

(3) At all times from 2 June 2021, occupiers of premises (subject to specified exceptions which are not presently relevant) were required not to allow more persons on the premises than the greater of "the number of persons that is equivalent to 1 person per 2 square metres of space in the premises, or ... 25 persons".[7] This has in practice been in part implemented as a requirement for persons to remain 1.5 metres apart (social distancing requirement).

(4) At all times from 26 June 2021 up to the date of Mr Cohen's dismissal, a person was required not to be away from their place of residence, wherever located, or, if the person was staying in temporary accommodation, wherever located, without reasonable excuse (travel restriction).[8] A reasonable excuse included for the purposes of work, if it was not reasonably practicable for the employee to work at the employee's place of residence, and exercise and recreation within specified limited geographic boundaries.[9] However, taking a holiday was expressly stated not to be a reasonable excuse.[10]

[9] Section 10 of the PH Act provides that it is an offence, punishable by monetary penalties and/or imprisonment, to fail to comply without reasonable excuse with a Ministerial direction made under s 7.

[10] As earlier stated, Mr Cohen made a witness statement,[11] which was admitted into evidence, and he was subject to cross-examination. He also put into evidence screenshots of various exchanges of text messages between himself and Mr Cantelo.[12]

[11] Davidsons Garage relied upon witness statements made by Mr Cantelo,[13] Ms Imelda Chandra[14] (secretary at Maroubra Autocare), and Mr Anthony Bondin[15] (a manager at Maroubra Autocare). Mr Cohen cross-examined all of these persons. Davidsons Garage also relied on the following documents:

• A bundle of photos of signs indicating various COVID-19 safety requirements placed on the door of and within the office at Maroubra Autocare.[16]

• A copy of the termination letter.[17]

• An example of a MTA "Member Update" concerning requirements applicable during the COVID-19 lockdown in New South Wales.[18]

• A statutory declaration made by Mr Cohen on 28 July 2021.[19]

[12] In relation to the key facts in this matter, there was not that much that was in dispute. When Mr Cohen gave evidence, I afforded him an unrestricted opportunity to respond to any of the matters referred to in the witness statements of Mr Cantelo, Ms Chandra and Mr Bondin. The matters he disagreed with were of very limited compass.[20] Where the facts are not in contest, it will not generally be necessary in setting out my factual findings to refer to their specific source in the evidence.

[13] Insofar as there were factual matters in contest, I have no hesitation in accepting the evidence given by Mr Cantelo, Ms Chandra and Mr Bondin. Their evidence was straightforward, consistent, and accorded with the probabilities of the matter. Mr Cantelo was also forthright in making concessions where necessary about some factual matters which were against the interests of either himself or Davidsons Garage.[21] However, I have reservations about some of the evidence given by Mr Cohen. As will become apparent, Mr Cohen holds a firm position of non-belief in the COVID-19 pandemic (which he described as "fearmongering") and the validity of public health orders associated with it,[22] and also has a strong sense of grievance at being required to comply with public health orders and other COVID-19-related safety measures. This has plainly coloured and rendered unreliable certain aspects of his evidence. In the limited instances where Mr Cohen's evidence significantly conflicts with that of the three witnesses for Davidsons Garage, I generally prefer the evidence of the latter. The specific conflicts in the evidence are dealt with in greater detail below.

[14] Davidsons Garage operates three car maintenance workshops, one of which is Maroubra Autocare. At the time of Mr Cohen's dismissal, it employed a total of 22 persons. Stephen and Carmen Davidson are the owners and directors of the business. The Maroubra Autocare facility includes an office and a workshop. Mr Cantelo's desk is located in the office, in line of sight of the door. Ms Chandra's workspace is also located in the office. Mr Bondin works in both the office and the workshop. As a mechanic, Mr Cohen primarily worked in the workshop, but it appears that ordinarily his duties might occasionally cause him to go into the office.

Initial lockdown period - 26 June to 20 July 2021

[15] As a result of an outbreak of the Delta variant of COVID-19, metropolitan Sydney was made subject to a public health order effecting, in broad terms, a "lockdown" from 26 June 2021. Like employers generally, Davidsons Garage was placed in the difficult position of having to comprehend and implement the requirements of public health orders, which were changed at frequent intervals, at very short notice. Its managers communicated the relevant requirements of the public health order, including the mask requirement, the check-in requirement and the social distancing requirement, both verbally and by way of forwarding updates from the MTA. Signage was placed in the workshop and in the office, including on the front door of the office, advising of the mask requirement, the check-in requirement and the social distancing requirement.

[16] Mr Cantelo gave evidence that in the period between 26 June to 20 July 2021, there were instances where Mr Cohen did not comply with the COVID-19 safety requirements. Specifically:

(1) On a number of occasions, Mr Cohen did not wear a mask while at work. Mr Cantelo said that, when this occurred, he reminded him of the mask requirement, and that Mr Cohen replied to the effect of "No I'm not wearing one, this is all a scam" (it is not clear whether this was said on each occasion or merely on a single occasion). Mr Cantelo acknowledged that he did not take this any further by issuing a written warning at the time, even though he knew Mr Cohen's conduct in this respect was unacceptable.

(2) Mr Cohen also did not comply with the check-in requirement on a number of occasions after it became effective. Mr Cantelo said that he knew this because he started work before Mr Cohen did, he could see from his desk when staff entered the premises, and the QR code was on the office door in front of his desk. He said he reminded Mr Cohen that it was mandatory to sign in using the QR Code, but that Mr Cohen "completely ignored" his instruction in this respect, and "not once" complied with the check-in requirement.[23]

[17] Mr Cohen did not contradict any of this, nor did he contend that he complied with the mask requirement or the check-in requirement throughout this period. He claimed that he was not aware of the check-in requirement,[24] but I do not accept this in the face of Mr Cantelo's evidence, the photographic evidence of signs in the workplace stating the check-in requirement, and the ubiquity of the check-in requirement generally during the lockdown period. His proposition that other employees did not follow the check-in requirement was firmly contradicted by Mr Cantelo.[25] I accept Mr Cantelo's evidence that the mask requirement and the check-in requirement were communicated to all staff including Mr Cohen, and that Mr Cohen did not comply with these requirements on a number of occasions notwithstanding that he was reminded to do so by Mr Cantelo.

[18] A practice was adopted in the Maroubra Autocare workshop during the lockdown to play on the radio the press conferences being conducted at 11.00am daily by the then Premier of NSW to report on the status of the COVID-19 outbreak. Mr Cantelo said that this was for the purpose of keeping employees informed of the lockdown requirements and the COVID-19 safety rules to be complied with. Mr Cantelo's evidence was that, on a number of occasions, Mr Cohen "commented in a loud and disruptive manner" while the press conference was occurring, saying words to the effect of "Turn that shit off", "This is all bullshit" and "This is all a scam". Mr Cantelo said that he instructed Mr Cohen not to do this, but Mr Cohen walked away. Mr Cohen accepted in cross-examination that he said, in relation to the press-conferences, "Turn it off" and "It is bullshit", and also conceded that he may have said "This is a scam".[26]

[19] On 19 July 2021, Mr Cohen applied to take annual leave. It was initially agreed that he should take annual leave from 21 July to 24 July 2021 inclusive, and this was later extended to 2 August 2021 at Mr Cohen's request. It is apparent that Mr Cohen told at least Mr Cantelo that he was going to the NSW snowfields to ski during that period. Text messages passing between Mr Cohen and Mr Cantelo make it clear that Mr Cantelo knew where Mr Cohen was going and did nothing to discourage him. Mr Cantelo readily accepted in his oral evidence that he knew Mr Cohen was going to the snow and, when Mr Cohen put it to him that he had "lied" in stating in the termination letter that Mr Cohen had travelled to the snow without informing his employer, Mr Cantelo said that he had not prepared the letter and was merely asked to counter-sign it.[27]

[20] However, it is clear that Ms Carmen Davidson did not know that Mr Cohen was going to the snow. Ms Chandra (who also knew where Mr Cohen was going) gave evidence that, on 22 July 2021, Ms Davidson rang her to inquire whether anybody was away during the week for the purpose of preparing employees' pay. In her witness statement, Ms Chandra recounted the following exchange as having then occurred:

"I told Carmen, all here but next week Joash is on Holidays. He has gone to [the] snow for a long weekend. Carmen was immediately upset and asked, how? He can't leave Greater Sydney? I told Carmen Joash told everyone that his licence and car is registered to his parent's address, so he would use that. Carmen responded 'that is fraud, he lives in Matraville'. I said, I know, he could spread COVID. Carmen asked to speak to David. Carmen spoke to David, she was very upset about the situation."

[21] Mr Cohen gave his address in his witness statement, and in his statutory declaration of 28 July 2021, as being in the country village of Cambewarra in the Shoalhaven region. Mr Cohen accepted in his oral evidence that he did not commute from Cambewarra while working at Maroubra Autocare, but rather lived at Matraville.[28] That difference in addresses seems to be what Ms Chandra and Ms Davidson were referring to in the above exchange. Ms Chandra's evidence, which I have no difficulty in accepting, suggests that Mr Cohen knew that the travel restriction prohibited him from travelling to the snowfields and that he deliberately contravened that restriction. At the determinative conference, Mr Cohen agreed that he was aware of limitations on travel that were applicable at that time, and when asked what he understood those to be, he replied: "Unconstitutional".[29] He did not elaborate upon this legal proposition, but his answer makes clear enough his attitude towards compliance with public health orders.

[22] Consistent with Ms Chandra's evidence, Mr Cantelo said that Ms Davidson rang him on 22 July 2021 and expressed her concern about Mr Cohen's "lack of consideration for his fellow staff members and the risk that presented to them and the business by travelling to the snow and back illegally in light of the rising number of covid-19 cases during this time".[30] Ms Davidson told Mr Cantelo that Mr Cohen would need to return a negative COVID-19 before he returned to work so as to minimise the risk of contracting COVID-19 in the workplace. After this telephone call, Ms Davidson followed up with the following text message sent to Mr Cantelo:

[23] Text messages passing between Mr Cohen and Mr Cantelo show that Mr Cohen remained in the snowfields until at least 25 July 2021. However, he must have returned to Sydney by 28 July 2021 at the latest since he had his statutory declaration made that day and witnessed by a pharmacist in Matraville. In that declaration, Mr Cohen stated: "I suffer from a genetic chronic sinusitis which affects my breathing. I also suffer from anxiety."

[24] On the afternoon of Sunday, 1 August 2021, Mr Cohen texted Mr Cantelo to say that he would return to work the following day. In response, Mr Cantelo sent Mr Cohen the following text message:

Carmen has advised that you will need to take a covid test with a negative pass before returning to work.

There is a testing centre at heffron park, you could get a test today/tonight,

So if you get the test today, you should be able to come back to work on Tuesday,

[25] Mr Cohen sent Mr Cantelo the following text message in response to this request:

"I understand the predicament you are in but that said there has been no legal (or shall I say lawful) obligation put on to you personally by the government and or the federal biosecurity act (that is above state legislation or guidance) ... for me to be requested to have a test you have lawfully have to have a signed document by a bio security officer addressing myself by name personally to do so and only if I have symptoms that suggests I am susceptible to be sick. (Bio security act clause 60 and 61)."

[26] Mr Cohen's text message appears to be referring to ss 60 and 61 of the Biosecurity Act 2015 (Cth), which specify the federal biosecurity officers who are empowered to impose a "human biosecurity control order", the circumstances in which such an order may be imposed and the prescribed content for such an order. A human biosecurity control order may, in brief summary, be imposed on an individual if the relevant officer is satisfied that the individual has a listed human disease, and may require the individual to comply with certain biosecurity measures including vaccination, restricting the individual's behaviour and ordering the individual to remain isolated (see s 59). Since Mr Cantelo was not purporting to impose a human biosecurity control order on Mr Cohen, but was rather simply conveying to him an employment direction, ss 60 and 61 of the Biosecurity Act 2015 were utterly irrelevant to the situation. However, Mr Cohen's response again is strongly indicative of his resistance to complying with health measures taken in response to the COVID-19 pandemic. In his Form F2 application, as earlier set out, Mr Cohen said that he refused to take the test because it was "intrusive", was a "risk" because he suffered from sinusitis, and because it "has been proven to be ineffective". Certainly, the nasal form of the COVID-19 test is intrusive, but that has not prevented over 49 million tests being administered in Australia.[31] The contentions that the test represents a risk to someone with sinusitis and is ineffective were not supported by any evidence and are rejected.

[27] Mr Cantelo responded to Mr Cohen's text as follows:

"And everyone has to wear masks the whole time while at the workshop. The whole time.

And Carmen said, if you don't want to have the test,

"Ok no problem I will see you on Monday also i have an exemption to wear a mask I can provide it if required when I return to work."

Anyone who enters the property must wear a mask at all times.

[30] That was the end of the exchange that day. On Wednesday 4 August 2021, Mr Cohen confirmed by text message that he would return to work the following Monday and asked for Mr Cantelo's email address so he could send him his "exemption". Mr Cohen emailed his declaration to Mr Cantelo on 5 August 2021. His covering email stated:

Please find attached document as discussed previously regarding the wear[ing] of face masks in the workplace.

This is a legal document which explains the reasons for my medical exemption. I ask that you please respect my situation and understand that during these unlawful times, I wish to not be discriminated against and be able to carry out my work without interference.

*You can find these informations on the NSW government website.

If you cannot wear a face mask because of a disability, a physical or mental health illness or condition, you must carry either a medical certificate or letter signed by a registered health professional (such as a doctor) or a registered NDIS provider or a statutory declaration."

[31] Mr Cantelo's evidence, which I accept, was that he had never heard of Mr Cohen suffering the conditions stated in the declaration before.[32] Mr Bondin, who has known Mr Cohen for about seven years (in a relationship which apparently also extended outside of working hours[33]), gave evidence to similar effect.[34] Mr Cantelo forwarded Mr Cohen's declaration to Ms Davidson. She sought legal advice about the matter. On Saturday, 7 August 2021, she advised Mr Cantelo by text that the exemption would be accepted and Mr Cohen would not be required to wear a mask in the workplace, but that he would need to abide by a "Covid-safe plan". Under this plan, Mr Cohen:

(3) was not permitted to enter the office or approach customers;

(4) was required to check-in with the QR code like all other employees;

(5) was not permitted to continue with his "anti-covid anti-government rants".

[32] Mr Cohen returned to work on Monday, 9 August 2021. Mr Cantelo's evidence was that, at 8.00am that day, he explained the requirements of the Covid-safe plan to Mr Cohen and that Mr Cohen agreed to the requirements and confirmed he understood them. Mr Cohen's evidence was that he was only told not to go in the office, and specifically was not told about the check-in requirement.[35] I do not accept this evidence over that of Mr Cantelo and I note, in any event, that Mr Cohen was already subject to the check-in requirement and had already been told by Mr Cantelo not to engage in "rants" while the Premier's press conferences were being played on the radio.

[33] The evidence makes clear that Mr Cohen breached all five requirements of the Covid-safe plan in the two week period from his return to work on 9 August 2021 to his dismissal on 23 August 2021. First, it is clear that on a number of occasions, Mr Cohen breached the first, second and third requirements by failing to confine himself to the workshop, entering the office and not maintaining social distancing while he was in the office. Mr Cantelo saw this happen on "multiple occasions",[36] Ms Chandra recalled it happening three times,[37] and Mr Bondin said it happened two or three times.[38] Mr Cohen accepted that he had done this (although he cavilled at frequency of this), and when I raised with him whether he accepted this was a breach of what Mr Cantelo told him to do, he said "I believe that it is discrimination as I have a mask exemption".[39] I take it from that answer that he intentionally contravened the requirements of the Covid safety plan in this respect.

[34] As earlier set out, Mr Cohen contended in his Form F2 application that he entered the office because he was not provided with the "necessary accessories i.e stickers, job cards, stamps" to permit him to do his job. In his oral evidence, he said that "On a couple of occasions I may have to get service stickers and access stamps, but in saying that too, I do have a mask exemption, which allows me to do such things."[40] Mr Cantelo's evidence was that Mr Cohen did not need to be in the office to do his job and that all stationery items were provided in the workshop.[41] In any event, Mr Cohen was observed by Mr Cantelo, Ms Chandra and Mr Bondin using a computer, not obtaining stationery.[42] Mr Cohen did not dispute that he used a computer in the office on more than one occasion. Mr Cohen's evidence to the effect that his mask exemption allowed him to go in the office indicates that he intentionally defied the instruction not to go in the office.

[35] Mr Cantelo said that the small size of the office meant that Mr Cohen could not socially distance in that space, and Ms Chandra said that the computer which Mr Cohen used was only about one metre away from her.[43] Ms Chandra said that Mr Cohen's presence near her, which she estimated to be about one metre away, made her feel threatened. She was pregnant at the time and not yet eligible to be vaccinated against COVID-19. Mr Bondin said he also felt upset at Mr Cohen being in the office since he had a family with young children and was also not yet vaccinated. When Mr Cantelo saw Mr Cohen in the office, he directed him to leave, but Mr Cohen returned to the office on subsequent occasions.

[36] Mr Cohen also breached the fourth and fifth requirements of the Covid-safe plan. He was never seen checking-in using the QR code, and he accepted that he did not do so.[44] Mr Cohen claims that he was not advised of the requirement to check-in, but I have previously rejected his evidence in this respect. Mr Cantelo also gave evidence, which I accept, that on a number of occasions after 9 August 2021 Mr Cohen yelled at the Premier when her 11.00am press conferences were played on the radio, saying words to the effect of "This is bullshit" in what Mr Cantelo described as a "loud and disruptive manner in front of staff". Mr Cohen denied that he did this after he returned from annual leave and claimed he was wearing headphones when the press conference was played.[45] While it is possible that Mr Cohen did wear headphones on one or more occasions during the press conferences, this does not cause me not to accept Mr Cantelo's evidence.

[37] There were also additional aspects of Mr Cohen's behaviour which caused concern to Davidsons Garage in this period. In particular:

When a customer told Mr Cohen that he should be wearing a mask, Mr Cohen did not respond and walked off. This was observed by Ms Chandra, so I infer this incident occurred in the office.

When asked by a maintenance worker why he was not wearing a mask, Mr Cohen simply replied "I don't wear masks" without explaining that he had an exemption.

[38] On or about Friday 20 August 2021, Ms Chandra complained to Ms Davidson about Mr Cohen's conduct in being near her in the office with no mask and not complying with his work requirements or Mr Cantelo's directions, and asked to be transferred to Davidsons Garage's Bondi Junction location. It appears that Mr Bondin also made a complaint to Ms Davidson about Mr Cohen. In response to this, Ms Davidson sent a text message to Mr Cantelo on Saturday 21 August 2021 informing him of the safety concerns expressed by Ms Chandra and Mr Bondin and stating that Mr Cohen's employment would be terminated as he was an unacceptable risk to other staff members and customers. Ms Davidson said in this message that Mr Cohen's last day would be Monday, 23 August 2021, when he could collect his tool box and finish up work.

[39] Although the context is not entirely clear, it appears that Mr Cantelo made an attempt to save Mr Cohen's job by endeavouring to persuade him to wear a mask so as to overcome the need for the Covid safety plan which Mr Cohen had repeatedly breached. Mr Cantelo gave oral evidence that, after the completion of work on Saturday 21 August 2021, he had an "off the record" discussion with Mr Cohen about him wearing a mask. Mr Cantelo said that he was "speaking to [Mr Cohen] on a personal level and trying to give my best recommendations to get a resolution to the situation".[46] It is not clear whether, at this point, Mr Cantelo told Mr Cohen that Ms Davidson wanted to dismiss him, nor whether Mr Cantelo was acting with Ms Davidson's knowledge. The discussion continued via a text message exchange the following day (Sunday 22 August 2021). In the morning, Mr Cantelo sent the following messages to Mr Cohen:

"Hi mate. Carmen is asking what the answer is regarding the mask outcome is.

There is too many cases for you to be unmasked at work. And Mel is pregnant too. Can you let me know this morning."

"All the crew want you at work. But it has to be with a mask on. The guys would all respect you."

[40] That evening, Mr Cohen responded, and the following exchange occurred:

Cohen: "Hi Dave Just getting back to you on this matter. Does this mean that Carmen won't allow me to return to work on Monday if I do not wear a mask even tho I have provided a medical reason which exempts me? Can you please get back to me thanks."

Cantelo: "Carmen has advised everyone has to wear a mask on the premises at all times. It's best you speak to Carmen in the morning before commencing work."

Cohen: "This is to[o] stressful I won't be in tomorrow."

[41] Mr Cohen did not attend work on Monday 23 August 2021. It appears that he was told, or already knew, that his employment was terminated. At approximately 9.47am, Mr Cantelo sent Mr Cohen a text message which relevantly stated:

The reason why she is terminating your employment is not because of the mask wearing. Your exemption was accepted.

It was because you broke the covid safety plan. That you agreed on with me.

Telling the builder that you don't have to wear a mask.

She has asked if you can collect your tools, remaining Accruals will be paid on payday Thursday..."

[42] The termination letter was provided to Mr Cohen the same day. It does not appear that Mr Cohen was paid any amount in lieu of notice, since he claims in his submissions that he should be paid a compensation amount that includes "my 2 weeks pay in lieu".

[43] Mr Cohen did not directly give any evidence or make any submission about his employment or financial position since he was dismissed. However, the compensation amount he has claimed also includes "2 months in compensation as I lost a good job, my apartment where I cared for my younger disabled brother and my reputation". I infer from this that Mr Cohen has suffered a limited degree of financial loss as a result of his dismissal.

[44] Section 396 of the FW Act requires that four specified matters must be decided before the merits of Mr Cohen's application may be considered. I deal with each of these in turn below (using the paragraph lettering in the section):

(a) Mr Cohen's application was made within the 21-day period required by s 394(2).

(b) It is not in dispute, and I am in any event satisfied, that Mr Cohen is a person protected from unfair dismissal within the meaning of s 382 in respect of his dismissal by Davidsons Garage. He was employed by Davidsons Garage for about 19 months, and his employment was covered by the Vehicle Repair, Services and Retail Award 2020.

(c) Davidsons Garage was not at the time of Mr Cohen's dismissal a small business within the meaning of s 23, and thus the Small Business Fair Dismissal Code (Code) was not applicable to the dismissal.

(d) Davidsons Garage did not contend, nor is there any basis to conclude, that the dismissal of Mr Cohen was a case of genuine redundancy within the meaning of s 389.

[45] Section 385 of the FW Act provides that a person has been unfairly dismissed if:

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

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

[46] It is not in contest, and I find for the purpose of s 385(a), that Mr Cohen was dismissed by Davidsons Garage. I have already dealt with s 385(c) and (d): the Code did not apply to Mr Cohen's dismissal, and his dismissal was not a case of genuine redundancy. The issue in contest which it is necessary for me to determine is whether, for the purpose of s 385(b), Mr Cohen's dismissal was harsh, unjust or unreasonable.

[47] In considering this question, s 387 of the FW Act requires the Commission to take into account a number of matters specified in paragraphs (a) to (h) of the section. I deal with each of these matters in relation to Mr Cohen's application in turn below.

Section 387(a) - Whether there was a valid reason for the dismissal related to the person's capacity or conduct

[48] The question as to whether there was a valid reason for Mr Cohen's dismissal based on his conduct or capacity must, in the first instance, be considered by reference to the three reasons for dismissal stated in the termination letter.

[49] The first reason given was that Mr Cohen travelled to the snow contrary to a public health order which prevented him from leaving the Greater Sydney Area, and did so without advising Davidsons Garage of his movements and with no consideration of potentially returning to work with COVID-19. In a factual sense, this reason may only be partially sustained. Mr Cohen did travel to the NSW snowfields during an authorised period of annual leave and, in doing so, he contravened the travel restriction in a then-applicable public health order. It is reasonable to say that, in doing so, he was reckless as to whether he might cause the spread of COVID-19 into the workplace in a way that the public health order was intended to prevent. As I have found, he knew about the travel restriction but intentionally did not comply with it since he considered public health orders to be "Unconstitutional" and contrary to his belief that the COVID-19 pandemic was "a scam" and was merely "fearmongering". However, it is equally clear that Mr Cohen informed his immediate manager, Mr Cantelo, as to where he intended to go prior to leaving. It was a failure on the part of Mr Cantelo not to inform Ms Davidson about this or to warn Mr Cohen that his planned holiday would be in breach of the travel restriction and that his return to work after such a holiday would be a risk to the health and safety of the Maroubra Autocare workplace.

[50] Conduct in contravention of the law that is engaged in by an employee while not at work is not per se a valid reason for an employee's dismissal. The conduct must, viewed objectively, be likely to cause serious damage to the relationship between the employer and employee, or damage the employer's interests, or be incompatible with the employee's duty as an employee.[47] In this case, as already stated, Mr Cohen's reckless non-compliance with the travel restriction endangered the health and safety of the staff at Maroubra Autocare, and I would have found that for this reason it constituted a valid reason for dismissal but for two countervailing matters. First, Mr Cantelo at the least acquiesced in Mr Cohen going to the snow, such that Mr Cohen might reasonably have assumed that his contravention of the travel restriction would not have any consequences for his employment relationship. Second, although Davidsons Garage initially required Mr Cohen to undertake a COVID-19 test prior to his return to work from annual leave (which, if necessary, I would have found to be a lawful and reasonable employment direction), it ultimately did not press that requirement in the face of Mr Cohen's refusal to undertake such a test and, instead, required only that he not return to work for a further week. Mr Cohen complied with this alternative requirement and was then permitted to return to work. In those circumstances, I do not consider that Mr Cohen's dismissal two weeks after he returned to work can be justified by reference to his trip to the snow.

[51] I therefore conclude that the first reason given in the termination letter was not a valid reason for dismissal. I note that, in connection with the first reason, the termination letter contains a reference to Mr Cohen not using QR codes. This overlaps with the second reason, and I will consider it in that rubric.

[52] The second reason in the termination letter is that Mr Cohen did not comply with the COVID safety plan he was required to comply with upon acceptance that he was exempted from the mask requirement. I observe from the outset that it is very doubtful that Mr Cohen's declaration properly exempted him from the mask requirement. Leaving aside the issue that he appears to have falsely stated his current address in the declaration, there is no medical evidence that Mr Cohen suffers from sinusitis or diagnosable anxiety, and his declaration did not (as required) state that these conditions rendered the wearing of a face mask "unsuitable".

[53] In any event, having accepted the exemption, Davidsons Garage required Mr Cohen to comply with the five measures identified in paragraph [31] above. I find that this constituted a lawful employment direction with which Mr Cohen was required to comply. It was plainly concerned with mitigating the risk presented to the health and safety of Davidsons Garage's employees at the Maroubra Autocare workplace presented by Mr Cohen's professed incapacity to wear a mask, and thus fell within the scope of Mr Cohen's employment.[48] None of the five specific requirements was itself unlawful. The direction was reasonable in the then-prevailing circumstances[49] because:

at the time the direction was given, the Sydney metropolitan area was faced with a significant and growing daily number of COVID-19 infections to which the NSW Health Minister responded with a "lockdown" effected by public health orders;

Mr Cohen's professed incapacity to comply with the mask requirement meant that an important infection control measure determined by the NSW Health Minister did not apply in his case, and it was reasonable in that context for Davidsons Garage to take alternative risk mitigation measures having regard to the fact that the Maroubra Autocare workplace would likely need to close if a workplace infection occurred;

the requirements for Mr Cohen to stay in the workshop, not enter the office and practise social distancing were intended to limit close contact between Mr Cohen and other employees and customers, and thus constituted reasonable infection control measures which did not restrict Mr Cohen's capacity to perform his usual duties;

these measures were also reasonable having regard to the concern of as-yet unvaccinated employees such as Ms Chandra and Mr Bondin at having to work with an unmasked employee;

the requirement for Mr Cohen to check in using the QR code merely reflected the check-in requirement imposed by the then-applicable public health order with which Davidsons Garage was required to comply, on pain of monetary penalties;

the requirement for Mr Cohen to cease disrupting the playing on the radio of the then Premier's daily conference was reasonable, in that Davidsons Garage considered that the information about the pandemic being conveyed at these press conferences was important for employees to hear for the continued safe operation of the business; and

Mr Cohen agreed to comply with the five requirements.

[54] As I have earlier found, Mr Cohen wilfully failed to comply with all five requirements, and did so repeatedly and in the face of warnings to cease doing so. Having regard to the significance of these requirements in the circumstances I have described, this constituted a valid reason for his dismissal based on his conduct.

[55] The third reason for dismissal given in the termination letter was, in summary, that Mr Cohen's "beliefs" concerning the COVID-19 pandemic and the public health orders associated with it represented a risk to the workplace in the context of the number of daily infections at that time. I accept that this constituted a further valid conduct-based reason for Mr Cohen's dismissal (although it overlaps to a substantial degree with the second reason). Although, as the termination letter states, Mr Cohen was entitled to hold his beliefs about the COVID-19 pandemic and the public health orders, however misconceived and outlandish those beliefs may be, he was not entitled to refuse to comply with lawful employment directions and applicable requirements of public health orders in the workplace on the basis of those beliefs. Mr Cohen's behaviour in the workplace manifested a continuing intention not to comply with health and safety requirements relevant to the COVID-19 pandemic generally if he disagreed with them, and this represented an objectively unacceptable risk to the business in that:

if his non-compliance resulted in him spreading infection in the workplace, this would endanger the health and safety of other employees and probably require the Maroubra Autocare workplace to be shut down;

it exposed Davidsons Garage to liability for contravention of public health orders;

his conduct caused concern and distress to other employees and thus interfered with the harmonious operation of the business; and

Mr Cohen's flaunting of his non-compliance in front of other employees and customers had the potential to damage Davidsons Garage's reputation.

[56] In its submissions, Davidsons Garage raised an additional reason for the dismissal upon which it sought to rely for the purpose of s 387(a), namely that Mr Cohen had failed to wear a mask at work, in contravention of the mask requirement, in the initial lockdown period of 26 June to 20 July 2021. I have found as a matter of fact that this occurred, and this was in breach of the mask requirement and a lawful employment requirement. However, I doubt that Davidsons Garage can now rely upon it, since it was a matter known to it at the time of the dismissal but not raised to justify the dismissal in the termination letter. I also note Mr Cantelo's concession that he took no action at the time to formally warn or discipline Mr Cohen about this. In these circumstances, I do not propose to make any finding about this matter under s 387(a).

Section 387(b) and (c) - Whether the person was notified of that reason and was given an opportunity to respond to any reason related to the capacity or conduct of the person

[57] There is no clear evidence that permits me to find that Mr Cohen was notified of the reasons for his dismissal prior to the dismissal being effected on 23 August 2021, although he may have been told by Mr Cantelo that his dismissal was on the cards on 21 August 2021. Because he was not notified of the reasons for his dismissal, Mr Cohen was denied an opportunity to respond to them.

Section 387(d) - Whether there was any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[58] There were no discussions as such relating to the dismissal, so the issue of a support person does not arise.

Section 387(e) - If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal

[59] The dismissal did not relate to any unsatisfactory performance on the part of Mr Cohen.

Section 387(f) and (g) - The degree to which the size of the employer's enterprise or 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

[60] Davidsons Garage is a relatively small business and does not have any dedicated human resource management specialists or expertise.[50] This undoubtedly affected the procedure by which Mr Cohen was dismissed. However, I do not consider that these matters should have prevented Davidsons Garage affording Mr Cohen procedural fairness. I note in this connection that Davidsons Garage was represented by the MTA at the hearing, indicating that it could have availed itself of specialist employment advice at the time of the dismissal.

Section 387(h) - Any other matters that the Commission considers relevant

[61] There are two other matters which I consider relevant. The first is that, as I have earlier inferred, Mr Cohen suffered a limited degree of financial loss as a result of his dismissal. The second is that Mr Cohen is utterly unrepentant about the conduct which caused his dismissal. It is clear that he remains of the position that his beliefs about the COVID-19 pandemic and measures taken to respond to it are valid and justify what he did, and that he has done nothing wrong.

[62] There are some matters which weigh in favour of a finding that Mr Cohen's dismissal was harsh, unjust or unreasonable. Mr Cohen was clearly denied procedural fairness, and I do not consider that this denial is explained or excused by the relatively small size of Davidsons Garage's business. At least as to the first reason for dismissal, if he had been afforded procedural fairness, he would have had the opportunity to clarify with Ms Davidson that he had informed Mr Cantelo, his immediate manager, of his intention to travel to the snow during his approved annual leave.

[63] However, I consider that these matters are clearly and significantly outweighed by the two (albeit overlapping) valid reasons for his dismissal. It is not necessary to repeat my previous characterisations of Mr Cohen's conduct except to say that it involved deliberate and repeated contraventions of lawful employment directions and public health orders intended to protect the business and its employees from the effects of the worst pandemic in Australia for over a century. I have no doubt that, had Mr Cohen not been dismissed, his conduct would have continued since his beliefs about the pandemic made him impervious to directions and warnings from management. In relation to the two valid reasons, had Mr Cohen been afforded procedural fairness, I do not consider that there is any possibility that he might have advanced some response or explanation which might have avoided or even delayed his dismissal. The nature of Mr Cohen's beliefs are such that he is incapable of recognising any fault in his behaviour. Insofar as his dismissal caused him financial loss, this was a result of his own conduct.

[64] For these reasons, I conclude that Mr Cohen's dismissal was not harsh, unjust or unfair.

[65] Mr Cohen was not unfairly dismissed. His application for an unfair dismissal remedy is therefore dismissed.

[1] Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order 2021, clause 7 (commenced 31 July 2021); Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021, Part 1, Division 4 (commenced 21 August 2021)

[2] Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021, clause 17; Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order 2021, clause 17; Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021, Part 2 Division 3, Part 3 Division 5, Part 4 Division 5 (as amended on 23 August 2021)

[3] Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021, clause 17(2)(b); Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021, clause 17(2)(b)

[4] Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021, clause 17(6) (as amended 22 July 2021)

[5] Subject to specified exceptions, none of which is applicable to Mr Cohen.

[6] Public Health (COVID-19 Gathering Restrictions) Order (No 2) 2021, clause 25

[7] Public Health (COVID-19 Gathering Restrictions) Order (No 2) 2021, clause 11(1)

[8] Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021, clause 20(1); Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order 2021, clause 20(1); Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021, clauses 3.2 and 4.2

[9] Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021, clause 20(2) and Schedule 1; Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order 2021, clause 20(2) and Schedule 1; Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021, clauses 3.2 and 4.2 and Schedule 2

[10] Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021, clause 20(5); Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order 2021, clause 20(5); Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021, clause 3.2(3) and clause 4.2(3)

[20] Transcript, 26 November 2021, PNs 40-58

[32] Exhibit 3, paragraph 12; Transcript, 26 November 2021, PNs 200-201

[33] Transcript, 26 November 2021, PNs 332-341

[39] Transcript, 26 November 2021, PNs 145-147

[42] Exhibit 3, paragraph 15; Exhibit 4; Exhibit 5

[43] Transcript, 26 November 2021, PN 307

[47]Rose v Telstra Corporation Limited [1998] AIRC 1592, Print Q9292

[48] See CFMMEU v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059 at [85]

[49] See NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883 at [218]- [219]

[50]Transcript, 26 November 2021, PN 421

Printed by authority of the Commonwealth Government Printer

Joash Cohen v Davidsons Garage Pty Ltd [2021] FWC 6587

At a glance

Court

Decision date

Source

Judgment (168 paragraphs)

Joash Cohen v Davidsons Garage Pty Ltd [2021] FWC 6587 (10 December 2021)

Parties

Legislation Cited (2)