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[2022] FWC 3029
General information, not legal advice.
Fair Work Commission
2022-11-18
Original judgment source is linked above.
s.394 - Application for unfair dismissal remedy
"If the respondent does not comply the matter may be decided on the basis of the applicant's materials only."
The Senior Site Services Supervisor is responsible for running their job sites, coordinating site crews, coordinating subcontractors, purchasing/coordinating the purchase of required materials, tracking where their job is timewise and management relations."
"In the event you are unable to comply with the above direction we will then invite you to a meeting to discuss the future of your employment. This may include possible redeployment within the organisation which we can discuss at the time.
In the event you fail to comply with the above and we cannot agree on a workable solution, the business will have very little choice but to terminate your employment with the business. ...."
"We will also consider and discuss any suitable redeployment options available based on our operational requirements and business interests."
"Following on from your last correspondence we have taken some time to fully consider matters and all issues raised before coming to a final decision regarding your employment.
As you are aware you have failed to follow a reasonable and lawful direction to provide evidence of your vaccination status in the timeframe required. Accordingly, you are currently restricted from accessing any mine sites in WA under the Resources Industry Worker (Restrictions on Access} Directions and have been so since 1 December 2021.
Based on this, Australian Ceramics Engineering has been considering whether to terminate your employment in the understanding that you can no longer meet the inherent requirements of your role in compliance with the Resources Industry Worker (Restrictions on Access) Directions.
In response to these concerns, you provided written reasons to us outlining why you consider your employment should not be terminated. Broadly speaking these include that you are uncomfortable with receiving a vaccination, are of the view vaccination provides no immunity nor prevents transmission of a virus, have concerns about the amount of adverse reactions and deaths occurring as a result of vaccination and would rather wait until a traditional vaccine was approved.
Furthermore, you believe the business is pursuing termination of your role because you were forced to carry out a number of unethical requests and that these requests were designed to jeopardise your employment subsequent to raising concerns about vaccination. We take such allegations very seriously and have investigated your concerns around purported unethical requests to the extent possible, noting you have refused to provide evidence to us in relation to these matters. Regardless, such behaviour has not been put to you by the business as a reason for considering your dismissal at this time. We have been very clear in our communications to date your inability to attend site is the primary issue of concern.
Much of the remainder of information provided in relation to your concerns have been raised in your communications to us already. We understand that decisions regarding vaccination are an individual choice and that you hold a number of concerns with receiving such treatment. However, there are natural consequences under the Public Health Orders for individuals who decide to remain unvaccinated which mean we cannot lawfully allow you to enter any mine sites at this time.
Your responses provided to date and matters raised have all been carefully considered as part of our decision. As it stands you have not been able to attend the workplace and perform the role you are employed to undertake for 14 weeks since 1 December 2021. Taking into account your individual circumstances, we consider that the extended period of time we have allowed you to seek advice and consider your options has been more than adequate in the circumstances.
Given all of this, on the basis you remain unvaccinated and cannot lawfully resume your role in compliance with the Resources Industry Worker (Restrictions on Access) Directions which are likely to remain in place for the foreseeable future, we have decided to terminate your employment, effective today, on the basis you can no longer carry out your role as required. While these circumstances are regrettable, we would like to take this opportunity to thank you for your service and wish you all the best."
(a) A Principal Technical Officer works above and beyond an employee at the C2(a) level and has successfully completed sufficient additional training to enable the employee to perform work within the scope of this level in addition to a national advanced diploma or equivalent. Within organisational policy guidelines and objectives, a principal technical officer:
(i)
- performs work requiring mature technical knowledge involving a high degree of autonomy, originality and independent judgment;
operates within broad statements of objectives without requiring detailed instructions; or
(ii)
- performs work at the above level of skill in a particular technical field.
(b) amounts applied or dealt with in any way on the employee's behalf or as
(c) the agreed money value of non-monetary benefits; and
(d) amounts or benefits prescribed by the regulations.
(2) However, an employee's earnings do not include the following:
(a) payments the amount of which cannot be determined in advance;
(c) contributions to a superannuation fund to the extent that they are contributions to which subsection (4) applies;
Note: Some examples of payments covered by paragraph (a) are commissions, incentive-based payments and bonuses, and overtime (unless the overtime is guaranteed).
(3) Non-monetary benefits are benefits other than an entitlement to a payment of money:
(a) to which the employee is entitled in return for the performance of work; and
(b) for which a reasonable money value has been agreed by the employee and the employer;
but does not include a benefit prescribed by the regulations.
(4) This subsection applies to contributions that the employer makes to a superannuation fund to the extent that one or more of the following applies:
(a) the employer would have been liable to pay superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 in relation to the person if the amounts had not been so contributed;
(b) the employer is required to contribute to the fund for the employee's benefit in relation to a defined benefit interest (within the meaning of section 291- 175 of the Income Tax Assessment Act 1997) of the employee;
(c) the employer is required to contribute to the fund for the employee's benefit under a law of the Commonwealth, a State or a Territory.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant."
Size of the enterprise and absence of dedicated HR management specialists
"[27] Before we deal specifically with DA's grounds of appeal, two general conclusions may be stated about DA's case, the decision and DA's appeal.
[28] The first is that we agree with the Deputy President that the situation that led to DA's dismissal is not novel, and reflects circumstances sometimes found in other unfair dismissal cases. The concept of "capacity" in s 387(a) as a basis for a valid reason for dismissal goes beyond the physical or skill capacity of the employee and encompasses situations where employees do not have or maintain the necessary licence, certification, qualification, approval or accreditation to lawfully perform the inherent requirements of their job.[2] Where an employee cannot perform the inherent requirements of their job and there is no reasonable scope for the employee to be redeployed into another role, it is likely that there will be a valid reason for dismissal based on the employee's capacity.[3]
[32] Second, in a situation where an employee's capacity to perform the inherent requirements of their job is affected by the actions of a third party, the employer still has an obligation to treat the employee fairly. The principle in this respect was stated by Deputy President Asbury in Stevens v ISS Property Services Pty Ltd,[4] in the context of a situation where the work capacity of an employee of a labour hire business is affected by the actions of the host employer, as follows:
"[12] A number of cases have considered the manner in which the matters in s. 387 of the Act are considered in circumstances where an employer provides labour to a client and the client directs the employer to remove the employee from a site. As a Full Bench of the Commission observed ... in Donald Pettifer v MODEC Management Services Pty Ltd (Pettifer) labour hire arrangements in which a host employer has the right to exclude a labour hire employee from its workplace, are becoming a common part of the employment landscape in Australia. The reality for companies in the business of supplying labour is that they frequently have little if any control over the workplaces at which their employees are placed and the rights of such companies in circumstances where a client seeks the removal of an employee are limited. However, this is not a basis upon which companies in the business of supplying labour to clients can abrogate responsibility for treating employees fairly when dismissal is the result of removal from a particular site and the fairness of the dismissal is considered with reference to the matters in s. 387 of the Act."
[33] The above is founded upon a similar formulation of the principle stated in Deputy President Asbury's decision in Kool v Adecco Industrial Pty Ltd,[5] which was expressly approved by Full Benches in Pettifer v MODEC Management Services Pty Ltd[6] and Tasmanian Ports Corporation Pty Ltd t/a Tasports v Gee.[7] Considerations which may arise in an assessment of whether the employer has acted fairly towards the employee in the type of situation described may include the extent to which the employer has the power to alter, modify or challenge the outcome determined by the third party, the extent to which the employer has exercised that power, and the capacity of the employer to redeploy the employee to a position where the employee's capacity is not affected by the third party's conduct. In Pettifer, the dismissal was found not to be unfair in circumstances where it was demonstrated that the labour hire employer was bound by its contract with the host employer to remove an employee from the worksite where instructed to do so by the host employer, and where the employer actively explored opportunities for redeployment but was unable to identify any suitable alternative position.[8] By contrast, in Tasports, the dismissal was found to be unfair in circumstances where the employer did not place its contract with the host employer into evidence and thus did not demonstrate that it had no recourse to preserve the employee's employment at the host employer's worksite, nor did it adequately investigate options for the employee's redeployment.[9]"
[1] J Boag and Son Brewing Pty Ltd v Allan John Button [2010] FWAFB 4022 at [22].
[2] Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at [42].
[3] Pettifer v MODEC Management Services Pty Ltd [2016] FWCFB 5243, 261 IR 439 at [37].
[6] [2016] FWCFB 5243, 261 IR 439 at [18], [38]-[41].
[7] [2017] FWCFB 1714, 266 IR 253 at [33]- [34].
[8] [2016] FWCFB 5243, 261 IR 439 at [37], [40]-[41]
[9] [2017] FWCFB 1714, 266 IR 253 at [41].
Printed by authority of the Commonwealth Government Printer
Mr Ryan Archer
Australian Ceramics Engineering Pty Ltd [2022] FWC 3029