Post-dismissal disclosure of vax lie reinforced validity of sacking

The Fair Work Commission (FWC) has upheld the dismissal of a Victorian employee who was “persistently” late during her four years of employment and categorically refused to use the designated time-clocking system, finding her disclosure in pre-Hearing and under cross-examination that she was not vaccinated against COVID-19, despite having furnished her employer with a vaccination certificate in November 2021 which indicated she had received two doses of an approved vaccine, provided an additional valid reason for termination, “which would have warranted summary dismissal”.

The employee had been engaged as a used equipment inventory coordinator prior to her dismissal on 1 April 2022, when her employment was terminated, with notice, for her constant lateness and almost total refusal to record her working hours using the company’s system, TANDA, which had been implemented a year prior to her employment ending. Initially, the coordinator sought to justify her concerns about utilising the TANDA system because of purported fears regarding its “ability to collect biometric data” but she conceded to engage with the system after the employer disabled this function. Despite her agreement to use the TANDA system, the coordinator failed to do so appropriately, causing her to be counselled about her conduct in August 2021, then receiving a warning and final warning when she resisted complying in October and November 2021 respectively. The coordinator’s behaviour continued and, in the final weeks of her employment she “did not record any time on TANDA and was late for work by an average of 40 minutes each day”.

In her own evidence to the Commission, the coordinator confirmed “that she had been late for work nearly every day for four years” and agreed that she had “failed to use the TANDA system consistently” but she advanced an argument that these reasons were merely a “guise” and that her dismissal was occasioned because she had raised a sexual harassment complaint in April 2021. In her response to the employer’s notice to show cause, the coordinator said, “she found it curious that the company was proposing to terminate her employment at a point when she was about to bring the largest sexual harassment case in Australian history and that as part of the settlement of the claim, she would acquire ownership of the company”. However, when given the opportunity to articulate her concerns prior to termination, the coordinator refused to do so, instead making a comment to her manager that “[the manager] would have to testify in court and that people who lie on the stand get deported”.

In upholding the coordinator’s dismissal, Deputy President Colman accepted the “clear, convincing, and entirely credible” evidence of the employer regarding the reasons for dismissal adding that the repeated directions to arrive for work on time and use the TANDA system for recording her hours were “both lawful and reasonable”. Furthermore, the Deputy President found the coordinator’s sexual harassment complaint of April 2021 was “unconnected” to her dismissal and that it had been dealt with appropriately by previous managers. In any event, Deputy President Colman assessed that the remark that had given rise to the original (and only) complaint, “spoken in the relevant context, did not carry any sexual or sexualised content or connotation”. With reference to the coordinator’s threat of deportation which had been directed at her manager during the show cause meeting, the Deputy President expressed such a comment was “highly inappropriate and discriminatory” explaining he inferred the coordinator “sought to convey that [the manager] might be deported for no reason other than the fact that she has a surname that is not Anglo-Celtic”. “This behaviour is completely unacceptable”, he observed.

Finally, in turning to consider the coordinator’s disclosure that she had lied about her vaccination status, adducing that “the vaccination certificate that she showed to the company was a forgery” at a time when Victorian workers were required to be vaccinated against COVID-19 in order to leave their home for work, Deputy President Colman noted, “this is a grave matter”. In concluding that her behaviour in this respect constituted “a fundamental breach of her contract of employment” he affirmed that, “this alone would have justified her dismissal”. The Deputy President indicated he intended to “advise the General Manager of the Commission about this matter for the purpose of considering a referral to the appropriate authorities for investigation”.

Deputy President Colman confirmed that the employer had terminated the coordinator’s employment for “two clear valid reasons” after having been “given a reasonable opportunity to address the company’s concerns” whilst, “unbeknown to the company at the time, there was also a third valid reason for her dismissal, namely the fact that she had lied to it about her vaccination status”. The Deputy President concluded the dismissal of the coordinator “was not harsh, nor was it unjust or unreasonable” and “was therefore not unfair”.

Stevens v William Adams Pty Ltd [2022] FWC 1851 (18 July 2022)