TERMINATION OF EMPLOYMENT – extension of time – date dismissal took effect – merit – vaccination policy – s.394 Fair Work Act 2009 – unfair dismissal application – respondent raised jurisdictional objection that application was lodged outside 21-day period in Fair Work Act – parties in dispute about date on which dismissal took effect – applicant was a radiographer – respondent operates a network of clinics providing medical imaging and diagnostic services – respondent implemented policy in October 2021 requiring employees to be vaccinated against COVID-19 – subsequently, Queensland Government issued public health orders which required healthcare workers to be double vaccinated by 15 December 2021, otherwise they were prohibited from entering healthcare settings – applicant attended a virtual show cause meeting on 15 December – at a further virtual meeting on 17 December, applicant was told her employment was being terminated and she would be paid 5 weeks’ in lieu of notice – Commission noted the following principles from previous cases including Ayub v NSW Trains regarding when a dismissal takes effect (subject to some exceptions not relevant to present case): an employer’s failure to provide written notice of termination will not necessarily mean that a dismissal has not taken effect; a termination requires plain and unambiguous communication by words or conduct; a dismissal does not take effect until it is communicated to employee and cannot take effect retrospectively; the 21-day period to lodge an unfair dismissal application does not commence before an employee becomes aware that they have been dismissed or at least has a reasonable opportunity to become aware – Commission concluded that at meeting on 17 December, applicant was told she was to be dismissed but there was no definitive statement or conduct that indicated that dismissal would take effect on 17 December – applicant was not required to return keys or property on that date and there was no evidence that her belongings were packed or removed immediately on conclusion of meeting – Commission 7 found that respondent stated its position on the effective date of dismissal in letter sent on 21 December but even then, the letter makes no reference to 17 December meeting and does not contain a confirmation that applicant was dismissed on that date – ‘Absent a plain and unambiguous statement at the meeting, that the Applicant’s employment was terminated with immediate effect, the letter of 21 December could not operate retrospectively to confirm her dismissal on 17 December…’ – Raven and Jandrek distinguished – dismissal took effect on 21 December – application made within 21-day period – jurisdictional objection dismissed – in relation to the merits of applicant’s case, Commission expressed provisional view that some arguments in application would be unlikely to succeed if pressed at the hearing and would likely be irrelevant to whether the dismissal was unfair – Commission noted: Commission is not a Court and has no power to make a binding declaration about validity of legislation including public health orders; to date, Australian Courts have upheld validity of COVID-19 public health orders issued by state governments including requirements that particular workers are vaccinated; Australian Courts have rejected the argument that public health orders issued by state governments are inconsistent with federal law or are invalid because of s.109 of the Constitution; when applicant dismissed, respondent was legally prohibited from allowing her to attend workplace unless she provided evidence of vaccination; a requirement that applicant comply with a public health order by being vaccinated in order to continue to work for an employer does not involve coercion or forced participation in a medical trial; incentives to encourage employees to be vaccinated are not coercion; applicant entitled to choose to be unvaccinated, but consequence of that choice will result in employer legally excluding her from workplace; the choice may be difficult, but it is still a choice; COVID-19 vaccines are approved for use in Australia pursuant to Commonwealth legislation and employers are not required to prove their safety or efficacy to employees or to Commission; employers are not required to lobby governments to revoke or amend their directives before employers dismiss employees for non-compliance with such directives – Commission observed that ‘arguments canvassed in [applicant’s] application…have been emphatically rejected in numerous cases before Courts and the Commission. While the Applicant is entitled to a hearing…any expectation that such arguments will be entertained by the Commission is misconceived and it is improbable that a different decision will be made in respect of those arguments’ – application listed for mention Owens v I-Med Radiology Ltd U2022/599 [2022] FWC 1823 Asbury DP Brisbane 12 July 2022
