U 53/2022 – David Mills -v- South Metropolitan Tafe
The Commission dismissed the claim that the respondent employer’s dismissal of the applicant employee for failing to comply with a COVID-19 vaccination direction was not harsh, oppressive or unfair.
The Commission found that the applicant sought leave without pay to circumvent compliance with the COVID-19 direction, making the employer’s refusal to grant such leave not unreasonable. His failure to comply meant he was unable to perform the inherent requirements of the role he was employed to perform which was inconsistent with the continuation of his employment.
The applicant commenced employment as a Fabrication Lecturer at the respondent employer’s Naval Base campus in 2018.
In mid-2020, the applicant told the respondent that his health was deteriorating, he was concerned about it, and he might look at reducing his hours to see if that would help with his health. From 2 August 2021, he reduced his hours to 0.71 of a full-time equivalent.
On or around 20 November 2021, the applicant requested time off without pay for six months. The applicant then applied for leave without pay for six months. Both requests were denied.
In November 2021, the respondent emailed its employees stating that it proposed to direct employees to be partially vaccinated against COVID‑19 before 31 December 2021 and fully vaccinated against COVID‑19 before 31 January 2022.
The applicant did not make a formal application to work remotely, just a request to do so, via email. He attempted to get an exemption from being vaccinated against COVID‑19 from a doctor but was unsuccessful.
The respondent issued the Employee Direction on 7 December 2021, stating failure to comply may result in disciplinary action, ranging from reprimand to dismissal.
The respondent wrote to the applicant on 25 January 2022, stating that he had not complied with the Direction. On 9 February 2022, the respondent informed the applicant that it was commencing disciplinary action and he had 10 days to respond. Following the applicant’s response, the respondent notified him that it found that he committed a breach of discipline, and the proposed outcome was dismissal. The applicant responded to such correspondence on 3 March 2022.
On 10 March 2022, the respondent notified the applicant by letter that he was dismissed for failure to comply with the Direction.
The applicant filed an unfair dismissal application on 6 April 2022. He sought reinstatement, continuity of employment and back pay or 6 months’ pay as compensation.
The applicant submitted that his requests for leave and to work from home on compassionate grounds based on ill health, were inadequately considered, contrary to the principles of fairness or the Employer Guidelines dated 21 December 2021.
Despite his acknowledgement that the Directions were lawful and his failure to comply with them constituted a disciplinary breach, the applicant contended that the procedure followed regarding the Direction was unfair, such that his dismissal was unfair. The applicant contends that being required to present proof of COVID‑19 vaccination or exemption when requesting leave or remote work constituted procedural unfairness. Finally, he asserts that the respondent predetermined dismissal as the only possible outcome without considering alternatives, resulting in procedural unfairness.
The respondent submitted that the applicant’s role as a trades lecturer requires direct instruction on the Naval Base campus. Although some aspects of his job could potentially be performed remotely, the primary function of demonstrating and instructing students cannot be performed from a remote setting. Thus, operational factors prevent the applicant from performing part of his role remotely and require the respondent to employ a substitute when he is absent.
Further, the respondent contended that the applicant sought an exemption from compliance with the direction through leave or remote work due to health reasons, despite being aware of the impending or already issued direction when making his requests. Further, the applicant sought six months of leave when, at the time, he had an accrual of approximately two and a half weeks of paid leave. Thus, he was effectively seeking Personal Leave Without Pay, without providing medical evidence.
The respondent submitted that, as per the Guidelines, the applicant had 14 days from his first scheduled day back at work to provide proof of vaccination or an exemption, upon which a disciplinary process would commence. The Guidelines allow unvaccinated employees to work remotely under exceptional circumstances only. The applicant did not provide evidence supporting the existence of exceptional circumstances to justify the accommodation, instead attempted to invoke the exception to distance himself from the workplace. Thus, the applicant breached the Direction, rendering him unable to discharge the duties of his job, constituting a serious breach of discipline, warranting dismissal.
The applicant refuted the claim that he sought leave to avoid receiving the COVID‑19 vaccine, reiterating that his requests for leave and subsequent remote work request were driven by health concerns related to his asthma. According to the applicant, the dismissal was unnecessary because the respondent could have approved either his request for leave or his request for remote work, notwithstanding his disciplinary breach.
The Commission dismissed the application because the applicant had not discharged the onus upon him to establish that his dismissal was harsh, oppressive or unfair.
The Commission found that the applicant submitted requests for leave and remote work to avoid the workplace, as being present would have necessitated COVID‑19 vaccination, which he had no intention of receiving. His denial of such is not substantiated by the evidence or the contemporaneous correspondence between him and the respondent.
This finding was supported by the applicant’s failure to provide any medical evidence supporting his asthma claim that might warrant his request. The evidence indicates he pursued a medical exemption from the COVID‑19 vaccine but was unsuccessful, implying that his condition does not satisfy the criteria for a valid medical exemption.
The Commission accepted evidence that no lecturers work remotely, and the applicant would be unable to perform the lecturing and practical aspects of his role from home. Consequently, the respondent would need to hire another individual to cover the lecturing and practical components of the applicant’s position, resulting in extra costs. The Guidelines make clear that this is a situation where a request may be denied.
The applicant’s failure to comply with the Direction meant he was unable to perform the inherent requirements of the role he was employed to perform and was inconsistent with the continuation of his employment.
Thus, the respondent’s refusal to grant the leave request was not unreasonable and the respondent did not exercise its legal right to dismiss so harshly or oppressively as to amount to an abuse of that right.
The decision can be read here.