Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

• [1] This decision concerns an application for an unfair dismissal remedy made by Mr Sumit Aneja (Applicant) under s 394 of the Fair Work Act 2009 (FW Act) in respect of his dismissal by Alfred Health (Respondent).

a) Mr Aneja was employed by the Respondent from December 2008 to 29 October 2021.

b) At the time of his dismissal Mr Aneja was employed in the role of Security Officer and Team Leader.

c) Mr Aneja was dismissed on the grounds that he was unable to meet the inherent requirements of his job.

• d) A further reason for the dismissal was that Mr Aneja failed to provide the Respondent with proof that he had been vaccinated against COVID-19. During the hearing before me, Alfred Health withdrew the contention that the failure to provide proof of his vaccination status constituted "serious misconduct". It was an appropriate concession to make.[1]

e) Because Alfred Health did not have proof of Mr Aneja had been vaccinated against COVID-19, relevant Victorian Government directions prevented Alfred Health from allowing Mr Aneja to attend the workplace on or after 15 October 2021.

f) At the date of the hearing before me, Mr Aneja remained prevented from attending for work at Alfred Health by reason of his continuing unvaccinated status.

• [3] Mr Aneja contends that Alfred Health did not have a valid reason to dismiss him, and that Alfred Health should, in any event, have allowed him to use his leave entitlements instead of dismissing him. As at the date of dismissal Mr Aneja had 29 weeks of accrued leave entitlements. Mr Aneja contends that his dismissal was unfair and seeks financial compensation.

• [4] Section 396 requires that I decide four matters before considering the merits of Mr Aneja's application. I am satisfied of the following:

a) First, the application was made within the 21-day period required by s 394(2).

b) Secondly, Mr Aneja was a person protected from unfair dismissal.

c) Thirdly, the dismissal was not a genuine redundancy.

d) Fourthly, Alfred Health is not a small business employer, and the Small Business Fair Dismissal Code is therefore inapplicable.

• [5] I make the following findings of fact:

a) On 29 September 2021, the Acting Chief Health Officer of Victoria issued the COVID-19 Mandatory Vaccination Directions (No 4) (No 4 Direction) under s 200(1)(d) of the Public Health and Wellbeing Act 2008 (Vic). These imposed obligations on the operators of specified facilities, including healthcare facilities such as Alfred Health, not to allow workers to attend for work on or after 15 October 2021 unless they had provided evidence to the employer of having been vaccinated against COVID-19, or of a booking to receive a vaccination by 29 October 2021. An exception applied for workers who provided a certificate that they were unable to receive a vaccination due to a medical contraindication. The No 4 Direction commenced on 29 September 2021 and ended on 1 October 2021. It was succeeded by other directions in similar terms (Directions).

b) On 1 October 2021 Mr Way, Alfred Health's Chief Executive Officer, sent an email to all employees informing them about the requirements of the Directions for healthcare workers. Specifically, employees were advised about relevant crucial dates in October 2021 by which vaccination/or appointments were required by. Nothing in the Directions or the CEO's email mandated vaccination. The Directions mandated that Alfred Health prevent attendance at work of unvaccinated workers.

• c) Also in October 2021 Alfred Health developed a "Mandatory COVID vaccination of Alfred Health Employees" Guideline. Despite the title of the Guideline, it did not mandate vaccination. The Guideline set out the circumstances under which Alfred Health would "not allow an employee to enter any Alfred Health premises for work unless the employee [had] provided evidence [about vaccination status or exemption[2]]. The Guideline explained that "any employee with an unrecorded vaccination status will be managed as an unvaccinated employee." It is clear from the Guideline that Alfred Health was primarily concerned with the collection of information about vaccination status so that it could manage unvaccinated employees.

• d) On 21 September 2021 Mr Aneja sent an email[3] to Alfred Health with a list of questions including questions relating to the safety of the COVID-19 vaccines.

• e) On 7 October 2021, Mr Brian Price, Specialist Immunisation Service Team, Department of Infectious Diseases, at Alfred Health replied to Mr Aneja[4]. In addition to helpfully providing Mr Aneja with links to information about COVID vaccines, Mr Price thoughtfully offered Mr Aneja "a clinical consultation with one of our clinical team." There is no evidence that Mr Aneja took up the offer made to him by Mr Price. Dissatisfied with the response from Mr Price, later on 7 October 2021, Mr Aneja requested additional information.[5]

• f) Also on 7 October 2021 Mr Aneja sent two emails asking for the deletion of any of his health and vaccination information that had been collected.[6]

• g) On 8 October 2021 David Ruschena, Alfred Health's General Counsel, replied to Mr Aneja denying his request.[7] Mr Ruschena correctly noted that "Victorian employers are now required by law to hold and maintain information about their workers' vaccination status". During the course of 8 October 2021 Mr Aneja and Mr Ruschena engaged in further email exchanges about the issue.[8]

• h) On 8 October 2021 Alfred Health sent to employees (including the Applicant) a "Management Pack" which included information about a "New mandatory vaccination guideline".[9] The Management Pack warned that staff members who had not provided their vaccination status, or declined to receive a vaccination, would not be permitted to enter Alfred Health's premises from 15 October 2021 and that Alfred Health would have meetings with staff members in relation to their non-compliance with the Directions. Mr Aneja claims not to have received this email. Not much turns on whether he received it or not. Its contents were consistent with previous correspondence that Mr Aneja did receive.

• i) On 10 October 2021 Alfred Health sent an email to its managers (including the Applicant) about the management of employees with "an unrecorded COVID-19 vaccination status." Later on 11 October 2021 the Applicant replied stating "that due to my own position on this matter, I don't think I can offer any help in enforcing these directions."[10]

• j) Also, on 11 October 2021 Alfred Health sent an email to Mr Aneja a further "COVID-10 Alert".[11] The Alert set out the vaccination timelines and, again, stated that employees who had not disclosed their vaccination status or had declined the vaccine would not be able to enter any part of Alfred Health's premises, except as a patient, from 15 October 2021.

• k) On 14 October 2021, Alfred Health sent a letter[12] to Mr Aneja which explained Alfred Health's duty to comply with the Directions, which prevent unvaccinated employees from entering the premises of Alfred Health for the purpose of work. The letter noted Alfred Health had not received evidence that Mr Aneja had been vaccinated, was booked in to be vaccinated by 29 October 2021 or that he had evidence of a medical exception. The letter noted that if he declined to be vaccinated, he may be unable to continue his employment with Alfred Health. He was directed not to attend work from 15 October 2021 and was informed that he would be placed on paid leave and that a meeting would be arranged to discuss the matter further.

• l) On 14 October 2021 Callum Fearnside, Acting Manager of HR Services sent Mr Aneja an email[13] enclosing a copy of the Guideline "Mandatory Covid Vaccination of Alfred Health Employees". The Guideline set out the dates for compliance with the Directions. The covering email noted that "staff members who have not had a first vaccination or booked to receive a first dose before 29 October 2021 will not be able to enter any part of Alfred Health's premises other than as a patient, from Friday 15 October 2021.

• m) On 14 October 2021 Mr Aneja sent an email[14] to Louise Vecchi, Director of Human Resources & Employee Experience enclosing a letter titled 'Your economic duress is negating my ability to decline a Covid-19 vaccine'. The letter stated that Alfred Health was exercising economic duress upon him by forcing him to choose between taking the COVID-19 vaccine and losing his job. The letter also included information concerning informed consent, mandatory vaccination and the risks associated with COVID-19 vaccines. Mr Aneja noted that "there are multiple cases before the Supreme Court of Victoria and Supreme Court of NSW, and in which the court is being asked to consider whether the Public Health Orders are valid..." Mr Aneja asked that Alfred Health "permit the Courts to determine the issue as to whether or not it is lawful for [him] to be subject to mandatory vaccination, before [Alfred Health seeks] to impose this outcome on [him]."

• n) On 20 October 2021 Alfred Health sent a show cause letter[15] to Mr Aneja indicating that its preliminary view was that Mr Aneja was unable to perform the inherent requirements of his job for the foreseeable future and that as a result, Alfred Health was considering terminating his employment. Mr Aneja was then invited to attend a meeting on 25 October 2021 to discuss the matter. The covering letter referred to correspondence dated 8 October 2021 which Mr Aneja says he did not receive. Alfred Health characterised the inherent requirement issue as follows:

"3. Attending work premises from time to time for non-clinical staff is an inherent requirement of your job.

Alfred Health considers that one of the inherent requirements of your job as a Security Officer is that you be able to undertake it in a way that does not cause Alfred Health to breach the law. If Alfred Health were to allow you to attend work, it would breach [the Directions and laws]."

• o) On 20 October 2021 the Applicant agreed[16] to the meeting but wrote that he would like to respond in writing.

p) On 21 October 2021 Mr Aneja called his manager Gary McLachlan and requested to use his leave entitlements to allow for more time to consider his position. He contended that another employee in his department had been afforded such an opportunity. Mr McLachlan denied the request and stated that HR would not allow it.

• q) On 25 October 2021 Mr Aneja responded[17] to Alfred Health's show cause letter stating that his contract of employment does not require participation in clinical trials, that he had not been given sufficient time to consider whether he wants to receive the COVID-19 vaccine and that he should be allowed to attend work under the Directions due to exceptional circumstances.

• r) On 29 October 2021 Alfred Health sent a letter[18] to Mr Aneja confirming that a decision had been made to terminate his employment on the basis that he was no longer able to perform the inherent requirements of his position. It was stated that Mr Aneja's employment would end on that day and that he would be paid five weeks of pay in lieu of notice.

• [6] Mr Aneja contended that his dismissal was harsh, unjust or unreasonable. He stated that there was no lawful or reasonable direction requiring him to be vaccinated against COVID-19 but that rather, the Directions required Alfred Health to prevent unvaccinated workers from entering the workplace. He contended that the requirement to be vaccinated was therefore a temporary condition of entry into the workplace and not a condition of his employment. He further contended that he had been complying with the direction not to attend work.

• [7] Further, Mr Aneja contended that by threatening his employment, Alfred Health was exercising economic duress upon him and that such duress prevented him from providing his consent to receive the COVID-19 vaccine. Mr Aneja disputed the efficacy and safety of the COVID-19 vaccines and said that Alfred Health failed to address his concerns when its Specialist Immunisation Service directed him to the website of Melbourne Vaccination Education Centre and the Australian Department of Health upon receiving his questions about the vaccines. By failing to address his concerns and not meeting with him to discuss his individual circumstances Mr Aneja said that Alfred Health's decision-making process leading to his dismissal was unfair.

• [8] Mr Aneja further submitted that Alfred Health could have allowed him to use his 29 weeks of leave entitlements. The untested evidence was that the Applicant had accrued 22 weeks of long service leave and 7 weeks of annual leave. The Applicant contended that he should have been allowed to go on a period of leave while he waited for the requirements relating to mandatory vaccination to change[19], but instead Alfred Health dismissed him after nearly 13 years of service and that it was harsh, unjust or unreasonable to do so.

• [9] Alfred Health contended that Mr Aneja's dismissal was not harsh, unjust or unreasonable and that it dismissed Mr Aneja for a valid reason, namely that he had rendered himself unable to perform the inherent requirements of his role by choosing not to be vaccinated. Mr Aneja's decision not to get vaccinated meant that Alfred Health, bound by the terms of the Directions, was required to ensure Mr Aneja did not attend the workplace. Alfred Health contended that it was an inherent requirement of Mr Aneja's position that he be able to attend Alfred Health's premises and perform work and that he was unable to perform his work adequality from home. Alfred Health contended that it warned Mr Aneja of its concerns in relation to his inability to perform the inherent requirements of his position and gave him the opportunity to respond to those concerns and therefore did not deprive him of any procedural fairness.

• [10] As to Mr Aneja's request to take leave, Louise Vecchi, Director of Human Resources and Employee Experience, gave evidence[20] that it was not a viable option to grant leave to unvaccinated employees to wait until they could legally return to the workplace. Ms Vecchi said that unvaccinated employees were not capable of performing the inherent requirements of their role and as a result were not ready, willing and able to work. She said that during COVID-19 Alfred Health was managing challenging operational circumstances with staff absent due to COVID infections and other staff being furloughed due to COVID exposure and that permitting unvaccinated employees to take paid or unpaid leave would mean that Alfred Health was impeded in its ability to recruit for these roles.

• [11] Alfred Health, adopting the rationale expressed by Deputy President Gostencnik in Wilkinson v Eastern Health [2022] FWC 260, submitted that clause 74.6 of the Victorian Public Health Sector (Health and Allied Services, Managers and Administrative Workers) Single Interest Enterprise Agreement 2016 - 2020 gave Mr Aneja an entitlement to be paid annual leave based on the number of ordinary hours that he would have worked on the day or days on which the leave was taken. It said that the purpose underpinning this provision is to ensure that an employee is paid for absences for the period the employee would otherwise have been required or permitted, and been ready, willing or able to work ordinary hours. Alfred Health contended that because of the effect of the Directions and Mr Aneja's unvaccinated status it did not require him to perform any ordinary hours of work, nor could it lawfully permit him to do so. It submitted that in any event, because of his unvaccinated status, Mr Aneja could not have worked any ordinary hours on the day or days any leave was purported to be taken because he was not ready, willing or able to perform work in accordance with the Directions. The same logic was said to apply to any suggestion that Mr Aneja was entitled to take long service leave.

• [12] Alfred Health submitted that in any event, Mr Aneja did not make any formal application for leave and contended that, even if a formal application were made and leave was granted, it would not have changed the outcome, as Mr Aneja does not intend to get vaccinated and therefore would not be vaccinated at the time the leave expires. Alfred Health contended that therefore Mr Aneja's submission that he should have been left on leave cannot render the dismissal harsh.

• [13] For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable (s 385(b)). In considering whether it is so satisfied, the Commission must take into account the various matters specified in s 387.

• [14] The Commission is required to consider whether there was a valid reason for the dismissal related to the person's capacity or conduct (s 387(a)). Such a reason is one that is valid in the sense both that it was a good or sufficient reason, and also a substantiated reason.

• [15] The essence of a valid reason is a reason that is sound, defensible or a well-founded reason - one that is not capricious, fanciful, spiteful or prejudiced.[21]

• [16] I am satisfied that Alfred Health had a valid reason to terminate Mr Aneja's employment. Mr Aneja was entitled to make the decision he made not to get vaccinated. This case is not about vaccine mandates. There was no vaccine mandate. There was, however, a direction to employers not to allow employees to attend for work on site unless they were vaccinated.

• [17] As a Security Supervisor attending on site (as and when required) was an inherent requirement of the Applicant's position. The evidence did not support a finding that the Applicant could have continued effectively in his role working from home. By deciding (as he was freely able to do and did) not to get vaccinated the Applicant made himself unable to perform the inherent requirements of his role. It was his choice. It is simply the case that Mr Aneja does not like the consequence that flowed from the voluntary choice that he made. By reason of that choice Mr Aneja was not able to attend work on site. Mr Aneja's decision not to get vaccinated meant that Alfred Health, bound by the terms of the Directions, was required to ensure that Mr Aneja did not attend the workplace. Alfred Hospital was in no position not to comply with the Directions. It acted as it was lawfully required to do.

• [18] During the hearing Mr Aneja advised that he had recently tested positive for COVID-19. He contended that this meant he could now attend for work and that he was exempt from booster requirements because the anti-bodies in his system. This late evidence does not change my mind about whether (at the time of dismissal) the Applicant was able to perform the inherent requirements of his position (to be able to attend on site as and when required). The evidence of a recent COVID-19 infection may have been relevant to remedy, but it does not displace my finding that there was a valid reason for the dismissal.

• [19] In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether an employee has been notified of the reasons for dismissal and whether the person was afforded an opportunity to respond to any reason related to their capacity or conduct (ss 387(b) and (c)). The show cause letter of 20 October 2021 notified Mr Aneja of the proposed reason for dismissal and gave him an adequate opportunity to respond.

• [20] Alfred Health did not refuse, unreasonably or otherwise, to allow Mr Aneja to have a support person present to assist in discussions relating to the dismissal (s 387(d)).

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

• [22] The Commission is required to consider the degree to which the size of the employer's enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal (ss 387(f), (g)). The purpose of these provisions is not to raise the bar for larger employers such as Alfred Health, but to require the Commission to take into account these common features of smaller 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.

• [23] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account any other matters that it considers relevant (s 387(h)). In the present matter I have taken into account Mr Aneja's 13 years of service and unblemished employment record. I have taken into account the considerable economic cost to Mr Aneja caused by the dismissal. I have taken into account the Applicant's genuinely held concern about getting the COVID-19 vaccine.

• [24] However, I do not consider that any of these additional factors render the dismissal harsh or otherwise unfair. Alfred Health had no choice in the matter. It had to comply with the Directions. Mr Aneja did have a choice - to either get vaccinated or not. He freely exercised that choice. The consequences of exercising that choice were made clear to him, and, nonetheless, he made his (continuing) choice not to be vaccinated. So mote it be.

• [25] I have also considered and I accept that it was not unreasonable to deny the Applicant's informal leave request. Even if he had formalised it, it would not have been unreasonable for Alfred Health to deny it. The "can we wait it out?" approach that the Applicant urged upon Alfred Health was not a workable option. I accept the evidence of Ms Vecchi that it was not viable to grant leave to unvaccinated employees (up to 100 remained unvaccinated leading up to 15 October 2021) and then wait until they could legally return to the workplace (whenever that might be). The uncontested evidence is that, and I so find, during COVID-19 Alfred Health was managing challenging operational circumstances with staff absent due to COVID infections and other staff being "furloughed" due to COVID exposure. Permitting unvaccinated employees to take paid or unpaid leave would have impeded the ability of Alfred Health to recruit into roles where staff were on indefinite leave. There would also have been a cost to Alfred Health in continuing to accrue leave for staff (including the Applicant) while he was on approved leave.

• [26] Having regard to s 387 of the FW Act, I consider that Mr Aneja's dismissal was not harsh, unjust or unreasonable, and that it was therefore not unfair. The application is dismissed.

[2] It is common ground that no medical contradiction ever applied to Mr Aneja.

[19] Even at the date of this decision the vaccine requirements for attendance on premises have not change in Victoria.

[21] Selvachandran v Peteron Plastics [1995] IRCA 333, (1995) 62 IR 371 at 373.

Printed by authority of the Commonwealth Government Printer