Plaintiff Opposes Dismissal by Employer

Mark Scoble v Esso Australia Pty Ltd [2022] FWC 1778 (8 July 2022)

Mr. Scoble was dismissed by Esso Australia Pty Ltd (Esso). Mr. Scoble filed an application for an unfair dismissal remedy. The Court, in deciding whether to grant the remedy, assessed whether the dismissal was valid.

Facts:

Mr. Scoble commenced employment with Esso on 1 September 2008 and was employed on a full-time basis as a Senior Maintenance Technician when his dismissal took effect on 11 January 2022. His application filed on 25 January 2022 was made within the 21-day period after the dismissal took effect. Mr. Scoble is a person protected from unfair dismissal because he had completed the minimum employment period and the Esso Gippsland (Longford and Long Island Point) Enterprise Agreement 2017 (the Agreement) applied to him.  

The Victorian Minister for Health issued a declaration pursuant to s.198(1) of the Public Health and Wellbeing Act 2008 (Vic) (PHWA) on 16 March 2020 that Victoria had entered a state of emergency as a consequence of the COVID-19 pandemic. On 7 October 2021, the Acting Victorian Chief Health Officer issued the COVID-19 Mandatory Vaccination (Workers) Directions (the Directions). 

The Directions imposed obligations on employers of certain identified workers (including utility and urban workers) to collect, record, and hold “vaccination information” about their workers scheduled to work outside the worker’s ordinary place of residence on or after 15 October 2021. In a meeting held via video conference on 14 December 2021, Ms. Hribar and Ms. Rebecca Francey (Esso Employee Services Advisor) met with Mr. Scoble. Ms. Hribar says that she said words to the effect that Esso was terminating his employment with four weeks’ notice and that the termination would take effect on 11 January 2022. 

Ms. Hribar told Mr. Scoble that the reason for this was that he was unable to perform the inherent requirements of his role as Maintenance Technician at the LIP Fractionation Plant. Ms. Hribar sent Mr. Scoble a letter dated 14 December 2021 by email and post which confirmed the termination of his employment (Termination Letter).  The Specified Workers Order was in operation when Mr. Scoble’s dismissal took effect on 11 January 2022.  

Issue:

Whether or not there is a valid reason for dismissal relating to Mr. Scoble’s capacity or conduct. 

Applicable law:

Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371 - provides that the reason or reasons for the dismissal of an employee should be “sound, defensible and well founded”. 

Public Health and Wellbeing Act 2008 (Vic), s.200(1)(d) - provides that when the state of emergency existed, the Chief Health Officer of Victoria had the power to authorise the issuing of emergency powers, which included the issuing of directions pursuant to the PHWA.

Public Health and Wellbeing Act 2008 (Vic), s.165AB -  whereby the Premier of Victoria can make a pandemic declaration after considering the advice of the Chief Health Officer and the Minister for Health, if the Premier is satisfied on reasonable grounds that there is a serious risk to public health resulting from a disease that is or has potential to be a pandemic disease.

Public Health and Wellbeing Act 2008 (Vic) s.165AI - provides that if a pandemic declaration has been made, the Victorian Minister for Health can make ‘pandemic orders’ for the purposes of protecting public health. 

Barbara Roman v Mercy Hospitals Victoria Ltd [2022] FWCFB 112 - provides that the Commission, not being a court, cannot make any binding declaration about the validity of state or federal legislation.

Kathryn Marguerite Roy-Chowdhury v Ivanhoe Girls’ Grammar School T/A The Ivanhoe Girls’ Grammar School [2022] FWCFB 101 - relied upon in observing that the Directions and Orders have at no stage been declared invalid by a court and were in effect at all material times, and proceed on the basis that they are valid and lawful and that the Commission must discharge its functions according to law.

Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 1) at Part 4, Clause 19 - relied upon in holding that a refusal or failure by Esso to comply with a pandemic order or with a direction given to it or a requirement in the exercise of a pandemic management power was an offence for which a penalty of 300 penalty units applied.

Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 - provides that notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made.

Analysis:

Mr. Scoble contends that other roles (and any required retraining) could have been considered as an alternative to dismissal. Ms. Hribar’s evidence was that there were no other roles that would have been suitable for Mr. Scoble. 

Ms. Hribar also stated that at no stage did ESSO have any field-based roles working 100% of their time in an office-based role or from home. She maintained that all field-based roles have a component of field-based activities and a requirement for the holders of them to enter the plant environment. 

Mr. Scoble submitted that a full-time, office-based planning role could have been made available to him. However, the planning role is covered by field-based employees on a rotating basis and is not able to be worked from home. 

Further, employees undertaking the planning role are still required to attend the site in order to “walk the job” they are planning. The requirements in the Specified Workers Order applicable at the date of termination have remained in force over the ensuing 6 months to date and consider this erodes the suggestion that temporary arrangements could have been adopted until the requirements were removed, as an alternative to dismissal. 

Conclusion:

The Court is satisfied the dismissal of Mr. Scoble was not harsh, unjust, or unreasonable. Accordingly, the Court finds that Mr. Scoble’s dismissal was not unfair.  His application for unfair dismissal remedy is dismissed.