18. The Applicant submits that he was performing his role remotely from home and had been for some time. He further submits that by reason of this fact, the Public Health Orders did not apply to him.

19. Although the Applicant performed many aspects of his role remotely from home, the Applicant did not do so exclusively. So much is already admitted by the Applicant himself at paragraph 6D of his Outline of Argument: Merits, where he states:

"I had been working almost exclusively from home since the start of the pandemic (March 2020), with the exception of the odd monthly team meeting."

20. The available evidence demonstrates that Applicant's CSS (IHC) role was flexible as to location of work. Such flexibility was by reason of an initiative by the Respondent, introduced in late 2016, known as Project Flex. The purpose of project flex was to provide greater flexibility to employees as to when and how they work, and to reduce the Respondent's overall office footprint.

21. Notwithstanding such flexibility, the Applicant's role inherently required him to maintain a constant readiness, willingness and ability, to attend for work outside his primary residence as directed.

22. The Respondent submits that the source of the inherent requirement was contractual, finding its underpinnings in the wording of clause 1.6 of the Employment Agreement which defines the Applicant's location of work not by reference to any single physical location, but rather to a division and region: "In Home Care - Northern Metropolitan".

23. The Respondent therefore posits that the proper construction to be given to the clause is that it defines the location of work as northern metropolitan Melbourne, allowing the Respondent to exercise a managerial prerogative as to precisely where within that region the Applicant is required to work.

24. Policies and procedures developed by the Respondent and in place at the time of the dismissal (and issuing of the Direction), further develop the inherent requirement. Such documents include:

a) the 'Flex Ways of Working - In Home Care: Principles, Practices & FAQ's' document, which unequivocally stated:

"Where instructed to attend an office or meeting location, it is expected that you will."

b) the 'Project Flex: Flexible Working Handbook', which identifies key principles of Project Flex as being:

"[Everyone will be expected to] visit other hubs when needed"

25. Pursuant to clause 7 of his Employment Agreement, such policies constituted lawful and reasonable directions by the Respondent and the Applicant was expected to familiarise himself with them, as and when they may be added to the Respondent's intranet.

26. Consistent with the inherent requirement, the Applicant has been expected to perform his role from a variety of locations during the course of his employment. Specifically:

a) from the commencement of his employment in May 2019 to March 2020, the Applicant's base hub/office was designated as the Respondent's Bundoora offices and he was required to work from that location for the majority of his time;

b) from March 2020, due to restrictions arising from the pandemic, the Applicant was asked to work remotely from home and predominantly did so until his dismissal.

c) In around March 2021, due to an easing of restrictions, the Applicant was required to start attend regular in person meetings with his team. Such meetings were conducted monthly at the Respondent's offices or other Respondent sites including Rosanna Baptist Church and then Baptcare Wattle Grove.

27. Although the Respondent submits that the Applicant's location of work was a general area, to be defined by the Respondent at its sole discretion from time to time, should the Fair Work Commission disagree with this submission and instead accept, as the Applicant contends, that his location of work was his primary place of residence (which the Respondent denies), then the Respondent refers to and relies upon the balance of clause 1.6 of Employment Agreement which confers upon the Respondent a discretion to change the Applicant's location of employment as and when it requires.

28. While the Respondent accepts that such a discretion was not infinite, and was subject to certain limitations including by reference to reasonableness, the Respondent submits that it was reasonable and appropriate that it expect the Applicant (and its other staff) to maintain a readiness, willingness and ability to attend for work at a location other than their primary place of residence.

29. In order to advance this submission, it is unnecessary for the Respondent to articulate what the outer boundaries of the discretion were. Instead, it is only necessary that the Respondent demonstrate that the expectation was reasonable in all the circumstances.

30. The requirement that the Applicant (and other employees) be ready, willing and able to attend for work outside of his ordinary place of residence as and when required was vital to ensuring high levels of staff morale, wellbeing, cooperation, communication, training and development. It was further necessary to ensuring that, should the demands of the role dictate, the Applicant was able to attend on a customer or other stakeholder in person if required.

31. The Respondent refers to and repeats the evidence given by its following witnesses on the point:

"no role within Baptcare (even a 'Level Three' role) is seen as exclusively capable of remote working, that is, working entirely away from Baptcare's premises (e.g. at an employee's home). There remains an expectation that at some time or another, all employees will be required to attend a Baptcare physical location, even if it is just for training or education."

"It is important for in person meetings to occur because of the importance of human connection and its significant relevance to building strong teams, which we value as a division. We had identified that purely remote work did not suit Baptcare's operational needs and led to social isolation of staff. We received feedback anecdotally from our staff that while they enjoyed remote working they also desired an opportunity to spend time together face to face."

"Teams within the In-Home Care Division are required to meet in person on a monthly basis (when not prevented by lockdowns/COVID restrictions). Such meetings will typically occur at a team's nearest Baptcare Office location. Since the closure of the Bundoora office, the North West teams nearest office is Camberwell."

"Prior to COVID-19 lockdowns, these meetings occurred in person at least on a month to month basis. Further, as managers had a local ability to lead their teams and hold meetings at their discretion, it is likely there were in person meetings more frequently just monthly. Around the time of the applicant's dismissal the North West team were unable to conduct such planned meetings due to the unavailability of the applicant's line manager but otherwise would have done so."

"Staff are also required to attend mandatory training sessions in person. Baptcare attempted to do it remotely, but from feedback from the training sessions, in particular for the Occupational Violence and Manual Handling modules, we concluded remote training sessions they were not adding value and our staff required face to face interaction to deliver the best outcomes."

"It is important that staff receive the best possible training outcomes, in order for Baptcare to meet its organisational needs and also, in respect of training relating to health and safety, its statutory duties."

"For the above reasons, I consider it critical that all staff (including staff working in CSS roles) are able to attend for work at Baptcare's premises."

"in-person meetings with team members were to be conducted at regular intervals."

"Accordingly, notwithstanding the flexibility afforded to the Applicant, he and all other Baptcare employees are expected to maintain a readiness, willingness and ability to attend Baptcare's physical locations as and when required."

"In relation to remote-working staff, in my view, no person is an island; employees of Baptcare cannot work remotely all the time and should have some in person contact with their colleagues. Even if they do not have in person contact with customers, they will interact in person with other staff members, who, in turn, may go out to residential aged care homes or interact in person with our customers."

"All staff were to be vaccinated as there are no staff that exclusively work from home at Baptcare, as staff are still required to attend in person meetings and on-site training."

"Based on my experience as a HR professional, on-site meetings and training are more preferable to 'virtual' delivery as the in-person/on-site setting:

(A) Offers opportunity for greater participant interaction;

(C) Offers ability to focus without competing demands and interruptions (emails, phone calls, huddles) and therefore better learning outcomes;

(D) Offers opportunity for social interaction with team members;

(E) Offers opportunity for time away from technology; and

(F) Offers opportunity for 'corridor' conversations including information sharing and problem solving."

32. While the Applicant submits in his Outline of Argument: Merits, that the Respondent "could" have permitted the Applicant to work exclusively from home, such a submission is misguided. The Respondent was under no legal compulsion to make such adjustments to the inherent requirements of the Applicant's role. He did not claim a medical exemption nor otherwise identify any impediment which might have warranted such a special accommodation in the circumstances.

33. In the circumstances set out above, whilst the Respondent could in theory have permitted the Applicant to work exclusively remotely, this would have been inconsistent with its organisational and operational needs particularly with respect to training and regular team meetings.

34. By reason of the inherent requirement that the Applicant maintain a constant readiness, willingness and ability to attend for work outside his ordinary place of residence, the Public Health Orders provided a lawful and reasonable basis for the Direction.

35. In Aleisha Jean Shepherd v Calvary Health Care T/A Little Company of Mary Health Care Limited [2022] FWC 92, while considering the effect of New South Wales' Public Health (COVID-19 Aged Care Facilities) Order 2021, Deputy President Saunders held [at 33]:

"Once a public health order is in force and applies to a particular workplace, the employer of employees who work in the workplace is obliged to comply with the order unless or until it is declared invalid or unlawful by a court of competent jurisdiction. The Commission does not have jurisdiction to determine whether a public health order is invalid."

36. It is not in dispute that the Applicant failed to comply with the Direction by refusing to provide the Respondent with information and/or evidence relating to his current vaccination status, by 15 October 2021 as required, or at all. The failure to do so was misconduct warranting the termination of the Applicant's employment.

37. Further and in addition, as the Applicant was not (fully or otherwise) vaccinated against COVID-19 and had told the Respondent he had no intention of being vaccinated, his failure to comply with the direction to obtain at least a first dose of a COVID-19 vaccination by 15 October 2021 constituted a further instance of misconduct warranting of the termination of his employment.

38. Further and in the alternative, the Applicant's failure to comply with the Direction rendered him unable to perform one or more of the inherent requirements of his role.

39. As set out above, it was an inherent requirement for the Applicant's role that he maintain a readiness, willingness and ability to attend for work outside his ordinary place of residence. As noted above, the Respondent's evidence will show that this was in fact an important requirement, so the Applicant could fully participate in and benefit from training and team meetings.

40. By reason of the operation of the Public Health Orders which meant he

a) had to provide information and evidence about his vaccination status; and

b) had to be vaccinated to work outside his home,

41. the Applicant's failure to comply with the Direction meant that he lacked the necessary capacity to continue performing his role. This was because the Respondent was no longer able to permit the Applicant to attend its physical locations of work, which it required him to be able to do for the reasons set out above. The Respondent submits it was and is the Respondent's prerogative to require its employees to attend work at its physical locations - even just simply for its convenience, although in this case for good reason.

42. Even if such requirement was of infrequent application, it was still an important requirement which the Respondent was lawfully entitled to impose on its employees and with which it could reasonably expect employees be able to comply.

43. Further and in the alternative, the Direction was lawful and reasonable having regard to the requirements imposed on the Respondent by workplace health and safety law.

44. Under section 21(1) of the Occupational Health and Safety Act 2004 (Vic), the Respondent "must, so far as is reasonably practicable, provide and maintain for [its] employees... a working environment that is safe and without risks to health".

45. It is generally accepted that COVID-19 represents a major and serious risk to health and safety in the workplace. It is also generally accepted that being fully vaccinated against COVID-19 is a reasonable and effective measure to reduce the spread of the virus in physical workplace settings and the severity of the disease if contracted.

46. Given that it was an inherent requirement of the Applicant's role that he maintain a readiness, willingness and ability to attend for work outside his ordinary place of residence, it was reasonable for the Respondent to require his compliance with the Direction.

47. Had the Applicant been permitted to attend the Respondent's physical locations of work without being vaccinated against COVID-19, the Applicant would have exposed himself (and/or others) to an unjustifiably higher risk of infection and serious effects of COVID-19.

48. The Direction was accordingly reasonable, as it was in furtherance of the Respondent's obligation to provide and maintain a health and safe working environment for its employees.

49. In summary, the Direction was lawful and reasonable and the Applicant's failure to comply with it was misconduct, warranting the termination of his employment. Further and in the alternative, his failure to comply with the Direction also meant he lacked the capacity to perform an inherent requirement of his role.

50. The Respondent therefore had valid reasons for dismissing the Applicant within the meaning of section 387(a) of the FW Act.

Was the Applicant notified of the reasons for dismissal?

51. The Respondent submits that the Applicant was clearly put on notice of the reasons for his dismissal in the 'show cause' letter issued to him on 28 October 2021.

Was the Applicant given an opportunity to respond to the reasons for dismissal?

52. The Respondent submits that the Applicant was given an opportunity to respond to the reasons for his proposed dismissal. Such opportunity was articulated within the 28 October 2021'show cause' letter, which provided the Applicant with a period of 7 days to give any response before a decision regarding his employment would be made. The evidence shows the Applicant did respond to the reasons for dismissal.

Was there an unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal?

53. The Respondent submits that as there was no discussion held relating to his dismissal, there could have been no refusal by the Respondent to allow the Applicant to have a support person present to assist at any discussions relating to dismissal.

54. Further and in the alternative, the Respondent submits the Applicant did not request any support person at any stage and he had ample notice of all disciplinary meetings during the process leading to his dismissal.

If the dismissal related to unsatisfactory performance - was the Applicant warned about that unsatisfactory performance before the dismissal?

55. The Respondent submits that the reasons for dismissal were not related to unsatisfactory performance.

The degree to which the size of the Respondent's enterprise would be likely to impact on the procedures followed in effecting the dismissal?

56. The Respondent is a large employer and submits that its procedures reflected what might be expected of an employer of such a size. It followed a fair and reasonable procedure in effecting the Applicant's dismissal. Such a consideration ought be given a neutral weighting.

The degree to which the absence of dedicated human resource management specialists or expertise in the Respondent's enterprise would be likely to impact on the procedures followed in effecting the dismissal?

57. The Respondent has a dedicated human resources department. Such a consideration ought be given a neutral weighting.

58. Similar to Ms Shepheard in the Calvary decision, the Applicant in this case has advanced arguments pertaining to the lawfulness of the Direction in the context of privacy legislation. To these questions, Deputy President Saunders found as follows [at 34]:

"...in my opinion [such arguments] are not relevant to the question of whether there was a valid reason for Ms Shepheard's dismissal related to her capacity or conduct. My reasoning for this conclusion is as follows. Th Public Health Order required that Ms Shepheard be vaccinated against COVID-19 in order for her to enter her place of work from 9am on 17 September 2021. If Ms Shepheard wanted to be exempt from that requirement, the Public Health Order required that she present "to the operator of the residential aged care facility a certificate, in the form approved by the Chief Health Office, issued by a medical practitioner, specifying the medical contraindication that makes the person unable to be vaccinated". Accordingly, the disclosure of medical information to Calvary was required by the Public Health Order, in circumstances where an exemption was sought. Calvary had no option but to comply with the Public Health Order. It follows that when Calvary invited Ms Shepheard to provide relevant information to support her claim and Ms Shepheard elected not to provide any such information, Ms Shepheard had no capacity to undertake her role as a Care Support Employee in an aged care facility because she was prohibited from entering such a facility..."

59. The Public Health Orders in the present case go further than those applicable in the Calvary decision. Insofar as they require the Applicant to have provided information and evidence relating to his vaccination status by 15 October 2021, they provided a lawful and reasonable basis for the Respondent's Direction (insofar as it pertained to such matters).

60. Even if the Public Health Orders did not apply (which is denied), the Respondent submits that it was not otherwise required to obtain the Applicant's consent to providing information relating to his vaccination status under the Privacy and Data Protection Act 2014 (Vic) and the Australian Privacy Principles given that the Direction (insofar as it related to his obligation to do so) was necessary to lessen or prevent a serious threat to the life, health or safety of its staff and customers.

61. The Applicant has further raised arguments pertaining to the Direction's interference with his bodily integrity. Although distinguishable on its facts (primarily given the applicability of the Public Health Order to the Applicant's employment), the decision of the Full Bench of the Fair Work Commission in Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059, is relevant to the this point. At [223] the Full Bench held that such a factor "is not determinative of the question of reasonableness; it is a consideration to be weighed in the balance with the other relevant considerations."

62. Finally, the Respondent submits that it did more than what was minimally required of it in the circumstances and notes that it met with the Applicant on 21 October 2021 in order to provide him with an opportunity to explain and elaborate upon his position in order for it to better understand that position before any disciplinary process was commenced. Such activity demonstrated a genuine interest by the Respondent for the Applicant's questions, concerns and ultimately, reasons for failing to comply with the Direction. Although such matters were ultimately unable to provide the Applicant with a reasonable excuse for not complying with the Direction, the Respondent did everything it could to properly take them into account.

63. In all the circumstances, the Respondent's decision to dismiss the Applicant was an appropriate and proportionate sanction and not harsh. Assuming the validity of the reasons for the dismissal, there was no other practicable alternative available to the Respondent but to dismiss the Applicant.

64. The issuing of a written warning instead, for example, would have been patently insufficient in circumstances where the Applicant was likely to have an ongoing incapacity for work by reason of his conduct. Similarly, there would have been little utility in the Respondent continuing to stand the Applicant down without pay for an indefinite period of time, whether to the Applicant, or the Respondent."

• [33] I will now consider each of the criteria at s.387 of the FW Act separately.

• [34] The Respondent must have a valid reason for the dismissal of the Applicant, although it need not be the reason given to the Applicant at the time of the dismissal.[48] The reasons should be "sound, defensible and well founded"[49] and should not be "capricious, fanciful, spiteful or prejudiced."[50]
• [35] There are now ample decisions of the Commission that support the proposition that the failure of an employee to meet the requirements of a public health order support a valid reason for dismissal.
• [36] Had that been the entirety of the circumstances in the present matter I too would have found that the Respondent had a valid reason for dismissing the Applicant.
• [37] However, that is not what occurred in the present matter. The relevant public health order, the Victorian Government Covid-19 Mandatory Vaccinations (Workers) Directions (No. 5), applied to an employer where "a worker is, or may be, scheduled to work outside the worker's ordinary place of residence on or after the relevant date."
• [38] The very clear evidence in this matter is that Baptcare did not require or schedule any north/west CSS employee to attend in person for work until 24 February 2022.
• [39] That is to say, as between when the Applicant had his employment terminated on 10 November 2021 and when CSS employees were required to attend in person for work on 24 February 2022 the Applicant remained ready, willing and able to perform the inherent requirements of his job.
• [40] There is no criticism of Baptcare that it, ultimately, required CSS employees to return to the office. That was its managerial prerogative. But until such time as they actually required in person attendance, nothing prevented the Applicant from performing the job that, for the better part of two years, he had been performing from home in any case.
• [41] The termination of the Applicant's employment on 10 November 2021 was premature. There is no reason why Baptcare could not have allowed the Applicant to continue in his employment until such time as it actually required him to return to the office. Had that been on 11 November 2021 I would have dismissed the Applicant's application for an unfair dismissal remedy. Had it been reasonably within the contemplation of Baptcare that the return to the office was likely to occur at some point close to 10 November 2021, the Respondent would have been able to successfully argue that the Applicant could not perform the inherent requirements of his job. Had Baptcare terminated the employment of the Applicant on 24 February 2022 I would have dismissed the Applicant's unfair dismissal application.
• [42] But that is not what occurred. For three months and 14 days after the employment of the Applicant was terminated he could have continued to perform his work at home just like every other CSS employee.
• [43] The same was confirmed by Mr Wilson in the following exchange[51]:

Commissioner: "All right. Let me ask the question again, Mr Wilson. Since 10 November how many times have Baptcare CSS employees been required to attend a Baptcare premises?"

Mr Wilson: "Well, in that specific instance, I'm not aware of any occasions."

Commissioner: "Is the answer, 'Zero, Commissioner'?"

Mr Wilson: "Well, I am aware of zero cases, Commissioner."

Commissioner: "Yes. And isn't it the case since 10 November last year at no time has a CSS employee been required to attend a Baptcare premises or training?"

Commissioner: "Yes. And so the applicant could have continued to work from home after 10 November and that wouldn't have been any different to any other CSS employee, isn't that correct?"

• [44] Consequently, I find that, as at 10 November 2021, there was not a valid reason for the dismissal.

• [45] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,[52] in explicit terms[53] and in plain and clear terms.[54] In Crozier v Palazzo Corporation Pty Ltd[55] a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations FW Act 1996 stated the following:

"[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted."[56]

• [46] Technically, having found that there was no valid reason for the dismissal it necessarily follows that the Applicant could not have been notified of the valid reason. However, if I am wrong about the validity of the reason, then it is clear from the evidence that the Applicant was notified about why Baptcare was dismissing him.
• [47] Consequently, the better view is that, and I so find that, the Applicant was notified of the reason for the dismissal.

• [48] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.[57]
• [49] The evidence in this matter clearly demonstrates that the process gone through by Baptcare was procedurally fair. To the extent that the Applicant made requests for information from the Respondent those requests were disingenuous. The Applicant had no intention of ever getting vaccinated. At the date of the hearing, the Applicant remained unvaccinated. Before me the Applicant said he did not trust the medical profession or the Government.[58] There is nothing more that Baptcare could have done from a procedural fairness perspective.
• [50] I find the Applicant was given an opportunity to respond to the reason for the dismissal.

Unreasonable refusal by the employer to allow a support person - s.387(d)

• [51] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
• [52] The Applicant was a strong advocate on his own behalf. He did not seek to have a support person. Consequently, I find the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal.

Warnings regarding unsatisfactory performance - s.387(e)

• [53] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employer about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee's capacity than their conduct.[59]
• [54] The dismissal of the Applicant was not related to his performance. The dismissal related to the Applicant's capacity to perform his job when Baptcare determined that he could not satisfy the requirements of the relevant public health order. Consequently, warnings about unsatisfactory performance are not a relevant consideration.

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

• [55] The size of the Respondent's enterprise may have impacted on the procedures followed by the Respondent in effecting the dismissal.
• [56] The absence of dedicated human resource management or expertise in the Respondent's enterprise may have impacted on the procedures followed by the Respondent in effecting the dismissal.
• [57] The purpose of ss.387(f) and (g) is,

"not to raise the bar larger employers like [Baptcare], but require the Commission to take into account these common features the small employers. In any event, there was no procedural deficiency in respect of which mitigation might be sought in connection with these provisions. Sections 387(f) and (g) carry no weight in the present matter."[60]

• [58] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant.
• [59] If I am wrong about the fact that the Respondent's failure to require the Applicant to return to the office prior to 24 February 2022 makes invalid the purported reason for the dismissal, then, in any case, I would have found it relevant to the overall assessment of fairness, under this heading of "other relevant matters", that, like his vaccinated CSS colleagues, the Applicant could have continued to work through until 24 February 2022.

• [60] Having considered each of the matters specified in s.387, the Commission, as presently constituted, is satisfied the dismissal of the Applicant was unreasonable because the evidence before the Respondent on 10 November 2021 did not support a finding that the Applicant could not perform the inherent requirements of his position (because he was not actually being required to attend the office).
• [61] Accordingly, I find the Applicant's dismissal was unfair.

• [62] Section 390 of the FW Act sets out the circumstances in which I may make an order for reinstatement or compensation:

"390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person's reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The Commission may make the order only if the person has made an application under section 394.

(3) The Commission must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies."

• [63] I have already dealt with the issues at s.390(1)(a)-(b) above. The Commission, as presently constituted, is satisfied the Applicant was protected from unfair dismissal pursuant to s.382 of the FW Act and the Applicant was dismissed unfairly. Accordingly, the Commission is required to determine whether to order the reinstatement of the Applicant or, in circumstances where reinstatement is inappropriate, an order for compensation if it is satisfied such an order is appropriate in all the circumstances.

• [64] The Applicant seeks reinstatement as the primary remedy. Regardless of the remedy sought by the Applicant, s.390 of the FW Act requires I first determine whether reinstatement is appropriate before I may consider an order for compensation.
• [65] The Respondent submits reinstatement would be inappropriate because:

1. "the Applicant presumably remains unvaccinated and accordingly unable to perform the inherent requirements of his job in respect of attending physical training and meetings;

2. further and in the alternative, the manner in which the Applicant conducted himself towards his managers between the issuing of the Direction and the Dismissal (which at times was highly aggressive, disrespectful and insubordinate), means the Respondent has lost all trust and confidence in the Applicant.

• [66] The Applicant remains unvaccinated. The Respondent has, since 24 February 2022, required CSS employees to attend the office. Because the Applicant is unvaccinated he cannot attend the office. Consequently, the Applicant cannot perform the inherent requirements of his position.

• [67] The further consequence of his decision to remain unvaccinated (as is his right) is that, in the circumstances the Commission, as presently constituted, is satisfied that I should order reinstatement is inappropriate.

• [68] Section 390(3)(b) provides the Commission may only issue an order for compensation to the Applicant if it is appropriate in all the circumstances.

• [69] Noting the unfairness in the premature dismissal of the Applicant, the Commission, as presently constituted, is satisfied that an order for compensation may be appropriate in all the circumstances of this case after the application of the usual steps used to calculate the same.

• [70] Section 392 of the FW Act sets out the circumstances that must be taken into consideration when determining an amount of compensation, the effect of any findings of misconduct on that compensation amount and the upper limit of compensation that may be ordered:

(1) An order for the payment of compensation to a person must be an order that the person's employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer's enterprise; and

(b) the length of the person's service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

(3) If the FWC is satisfied that misconduct of a person contributed to the employer's decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person's dismissal.

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

Note: subsection 392(5) indexed to $61,650 from 1 July 2012

(6) The amount is the total of the following amounts:

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period - the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations."

• [71] The method for calculating compensation under s.392 of the FW Act was dealt with by a Full Bench of the Commission in Bowden, G v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge[61] (Bowden). In that decision the Full Bench set out the order in which the criteria and other factors should be applied, taking into account authority under the Workplace Relations FW Act 1996 in Sprigg v Paul's Licensed Festival Supermarket[62] and Ellawala v Australian Postal Corporation[63]. I have adopted the methodology utilised in Bowden in determining the amount of a payment of compensation.

• [72] I will now consider each of the criteria in s.392 of the FW Act.

Remuneration that would have been received: s.392(2)(c)

• [73] The Applicant's remuneration with the Respondent was $673.74 per week.

• [74] I should now determine the period of time the Applicant would have remained employed by the Respondent, or would have likely remained employed with the Respondent, had they not been dismissed.

• [75] I find that, but for the dismissal on 10 November 2022, the Applicant would have continued to be employed until CSS employees were actually required to attend the office (i.e. until 24 February 2022).

• [76] Therefore, the Applicant would have continued to be employed by the Respondent for 14 weeks and 6 days had he not been dismissed. The amount the Applicant would have received is therefore $10,000.85

• [77] It is necessary to assess the remuneration earned by Applicant since the dismissal. It is as follows:

a) The Applicant was paid 4 weeks' notice. This reduces his economic loss by $2,694.96.

• b) Since 15 November 2021 (i.e. very soon after the dismissal) the Applicant commenced employment with Christianity Enterprises[64] earning $600 per week.[65] This reduces his economic loss by $8,657.14.

• [78] I find the Applicant has earned $11,352.10 in remuneration for employment during the period since the dismissal. That amount, when compared to what the Applicant would have earned, means that the Applicant has incurred no economic loss. In fact, the Applicant is $1,351.25 better off as a result of the dismissal.

• [79] Noting that the Applicant has incurred no economic loss, no further application of the principles in Bowden and Sprigg will assist him in bettering the calculation of compensation to be paid. No compensation is payable. He has had a pyrrhic victory.
• [80] I will not order the Respondent to pay any compensation to the Applicant.

• [81] The Commission, as presently constituted, is satisfied that the Applicant was protected from unfair dismissal, that the dismissal was unfair, but that no remedy is appropriate.
• [82] An order will be issued with this decision.

[1] Applicant's Statement of Evidence dated 13 January 2022 (Exhibit 5), at Court Book p 27.

[2] Respondent's Outline of Submissions dated 28 January 2022 (Exhibit 18), at Court Book p 87.

[4] Witness Statement of Nick Claringbold dated 28 January 2022 (Exhibit 20), at court Book p 106.

[8] See attachments NC-3 to Witness Statement of Nick Claringbold (Exhibit 20).

[9] Witness Statement of Nick Claringbold dated 28 January 2022 (Exhibit 20), at Court Book p 107.

[11] Witness Statement of Melanie Fisher dated 28 January 2022 (Exhibit 48), at Court Book p 387.

[13] See attachments NC-5 to Witness Statement of Nick Claringbold (Exhibit 20).

[14] See attachments NC-6 to Witness Statement of Nick Claringbold (Exhibit 20).

[16] Applicant's Statement of Evidence dated 13 January 2022 (Exhibit 5), at Court Book p 27.

[17] Witness Statement of Melanie Fisher dated 28 January 2022 (Exhibit 48), at Court Book p 388

[19] See attachments MF-2 to Witness Statement of Melanie Fisher (Exhibit 48).

[20] Witness Statement of Melanie Fisher dated 28 January 2022 (Exhibit 48), at Court Book p 388.

[22] Applicant's Statement of Evidence dated 13 January 2022 (Exhibit 5), at Court Book p 27.

[24] Witness Statement of Katiana Velcek dated 28 January 2022 (Exhibit 38), at Court Book p 219.

[25] Applicant's Statement of Evidence dated 13 January 2022 (Exhibit 5), at Court Book p 27.

[27] Letter Outlining Applicant's Position on Vaccines dated 18 October 2021 (Exhibit 10, at Court Book p 60.

[29] Witness Statement of Katiana Velcek dated 28 January 2022 (Exhibit 38), at Court Book p 220.

[30] Applicant's Statement of Evidence dated 13 January 2022 (Exhibit 5), at Court Book p 27.

[31] Witness Statement of Nick Claringbold dated 28 January 2022 (Exhibit 20), at Court Book p 109.

[33] Applicant's Statement of Evidence dated 13 January 2022 (Exhibit 5), at Court Book p 28.

[34] Witness Statement of Nick Claringbold dated 28 January 2022 (Exhibit 20), at Court Book p 109.

[35] See attachments KV-7 to Witness Statement of Katiana Velcek (Exhibit 38G).

[36] See attachments NC-11 to Witness Statement of Nick Claringbold (Exhibit 31).

[37] See attachments MW-5 to Witness Statement of Michael Wilson (Exhibit 45).

[38] See attachments NC-13 to Witness Statement of Nick Claringbold (Exhibit 33).

[39] See attachments MW-7 to Witness Statement of Michael Wilson (Exhibit 47).

[40] See attachments NC-15 to Witness Statement of Nick Claringbold (Exhibit 35).

[41] See attachments NC-16 to Witness Statement of Nick Claringbold (Exhibit 36).

[42] Witness Statement of Katiana Velcek dated 28 January 2022 (Exhibit 38), at Court Book p 220.

[43] See attachments NC-17 to Witness Statement of Nick Claringbold (Exhibit 37).

[44] See attachments KV-11 to Witness Statement of Katiana Velcek (Exhibit 38K).

[46] Sayer v Melsteel [2011] FWAFB 7498.

[47] Applicant's Outline of Arguments dated 13 January 2022 (Exhibit 4), at Court Book p 23.

[48] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

[49] Selvachandran v Peterson Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371, 373.

[52] Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

[53] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

[54] Previsic v Australian Quarantine Inspection Services Print Q3730.

[55] (2000) 98 IR 137.

[57] RMIT v Asher [2010] FWAFB 1200; (2010) 194 IR 1, 14-15.

[59] Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.

[60] Stevens v Epworth Foundation [2022] FWC 593, [32].

[61] [2013] FWCFB 431.

[62] [1998] AIRC 989; (1998) 88 IR 21.

[64] It seems likely from the evidence of the Applicant that his new employer breached the relevant Public Health Order by not satisfying itself that the Applicant was vaccinated before permitting him to work outside his ordinary place of residence. Consequently, I decided to refer the conduct of the Applicant's present employer to the General Manager of the Commission. On 30 March 2022 General Manager advised me that he had decided to refer the suspected breach of the Victorian Public Health Orders to Victoria Police.

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