Andrew Kennon v Telstra Corporation Limited [2023] FWC 227

1 Fair Work Act 2009 s.394—Unfair dismissal Andrew Kennon v Telstra Corporation Limited (U2022/8949) COMMISSIONER PLATT ADELAIDE, 25 JANUARY 2023 Application for an unfair dismissal remedy – whether a valid reason for dismissal – whether Respondent’s COVID-19 Vaccination Policy was a lawful and reasonable direction – policy found to be lawful and reasonable – dismissal not unfair – application dismissed. [1] On 5 September 2022, Mr Andrew Kennon (the Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy alleging that he had been unfairly dismissed from his employment by Telstra Corporation Limited (Telstra or the Respondent). [2] On 26 September 2022, Telstra filed a form F3 Employer Response and did not raise any jurisdictional objection. [3] On 19 October 2022, the matter was allocated to my Chambers and on 25 October 2022, a directions conference was held, and directions were issued for the filing of material. [4] A hearing was conducted, in person, on 6 and 7 December 2022. The Applicant was represented by Mr Bruce Vandepeer, who appeared as a lay, unpaid advocate, and the Respondent was represented by Mr Stephen Crilly (of Counsel). Permission was granted to the Respondent to be represented by a lawyer throughout the entirety of the matter, unopposed by the Applicant, on the basis of s.596(2)(a) of the Act, as I determined it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. Background [5] In September 2021, in response to the COVID-19 pandemic, Telstra introduced a COVID-19 Vaccination Policy (the Policy). The Policy required certain employees (who had not been exempted on medical grounds) to have received their first vaccination against COVID- 19 by 29 October 2021 and a second vaccination by 29 November 2021. [6] At the time, Mr Kennon was employed by Telstra as a Constructor Operative. The requirements of the role were such that Mr Kennon was required to complete on-site work, and interact with employees, customers, and members of the public. [2023] FWC 227 DECISION -- 1 of 16 -- [2023] FWC 227 2 [7] Telstra identified Mr Kennon’s role as falling within the Policy. [8] On 11 October 2021, Telstra gave Mr Kennon a direction to obtain a COVID-19 vaccination by no later than 29 October 2021. Telstra contend that the direction was lawful and reasonable in the circumstances. On 8 August 2022, Telstra issued Mr Kennon with a final written warning for failing to comply with the direction given to him on 11 October 2021. On 8 August 2022, Telstra gave Mr Kennon a further direction to obtain a COVID-19 vaccination by no later than 11 August 2022. Telstra contend that the direction was lawful and reasonable in the circumstances. [9] Mr Kennon and Telstra exchanged correspondence on a number of occasions between 28 July 2022 and 16 August 2022. [10] Mr Kennon did not receive a vaccination by 11 August 2022, nor did he hold a medical exemption at that time. [11] On 17 August 2022, Mr |Kennon (in the presence of his support person Mr Vandepeer, who attended by Microsoft Teams) was interviewed. Later that day, Mr Kennon was dismissed in writing and was provided with five weeks’ pay in lieu of notice [12] Mr Kennon contends that the direction to comply with the Policy was not a lawful or reasonable direction and that as a result his dismissal was unfair. Mr Kennon contends that the Policy was a form of “coercion”. Mr Kennon also contends that the available vaccinations are not “vaccinations” in the true meaning of the term, and therefore it is not possible to comply with the Policy. Telstra contend that the direction was lawful and reasonable in the circumstances and that Mr Kennon’s dismissal was an appropriate consequence in the circumstances. Evidence [13] Mr Kennon and Telstra both submitted material in accordance with the directions. All of the materials were collated into a court book which was distributed prior to the hearing. This court book was received into evidence. I noted that Mr Vandepeer’s statement contained both evidence and submissions. I also noted that some of the material appeared to be articles of a medical nature and that no expert witness was called to attest to the information therein. [14] I have given appropriate weight to the received material after an assessment of its character (e.g. hearsay and/or opinion evidence, expert evidence or submission) and its relevance. [15] The Applicant filed a witness statement from Mr Kennon1, two witness statements/submissions, with attachments, from Mr Vandepeer2, and an outline of submissions. [16] Telstra filed a witness statement, with attachments, from Mr Craig Marlow, Technical Support Project – Lead, North-West Construction, Commercial Engineering, Networks and IT).3 [17] Each of the witnesses gave evidence and was cross-examined. -- 2 of 16 -- [2023] FWC 227 3 [18] The relevant evidence drawn from the witness statements and/or oral testimony is summarised below. [19] On 18 October 1999, Mr Kennon was engaged by Telstra as a full-time Constructor Operative. A copy of the job description was submitted.4 I accept that Mr Kennon’s role requires frequent interaction with other persons in a variety of settings. [20] In September 2021, Mr Kennon spoke to Mr Vandepeer about his concern that Telstra would mandate COVID-19 vaccinations. Mr Vandepeer wrote all of the correspondence Mr Kennon exchanged with Telstra from that time. Mr Vandepeer does not claim to be an expert witness other than in the field of linguistics. [21] From 19 June 2020 until 12 July 2022, the Telstra Enterprise Agreement 2019-20215 (the 2019 Agreement) covered and applied to Mr Kennon’s employment. From 13 July 2022, the Telstra Limited Enterprise Agreement 2022-20246 (the 2022 Agreement) commenced operation and covered and applied to Mr Kennon’s employment. Both the 2019 Agreement and the 2022 Agreement contain terms which provide for the agreement to be supported by policies. [22] On 6 September 2021, Telstra began communicating with its staff and their unions concerning a proposed COVID-19 vaccination policy.7 Feedback from employees was received from a variety of mediums including the COVID-19 Yammer Group, email and Microsoft Teams messages. Some changes were made to the Policy from the feedback received. [23] On 13 September 2021, Telstra extended the consultation period by a week. [24] On 20 September 2021, Telstra advised staff that the consultation period had concluded, and the Policy would be introduced. The Policy was based on guidance from the TGA that vaccination was the most effective control measure to prevent serious illness arising from infection with COVID-19. The Policy makes vaccination mandatory for roles where there is a heightened risk from COVID-19. The Policy is intended to assist Telstra to discharge its duty to ensure, so far as reasonably as practicable, the health and safety of workers, customers and communities. [25] Mr Kennon was issued a copy of the Policy on 11 October 2021. On 11 October 2021, Mr Robert Chicowski (Mr Kennon’s supervisor at the time) wrote to Mr Kennon8 and noted that Mr Kennon’s role was one that was covered by the Policy and directed Mr Kennon to comply with the Policy by having his first vaccination by 29 October 2021 and a second dose by 29 November 2021. Mr Kennon was advised that non-compliance may result in disciplinary action including termination of employment. [26] Mr Kennon took a combination of annual leave and personal leave between 11 October 2021 and 31 January 2022 inclusive [27] Mr Kennon started reporting to Mr Marlow on or about 8 November 2021. [28] On 31 January 2022, there were numerous communications between Mr Kennon and Mr Marlow. Mr Kennon sought information about the risk assessment underlying the Policy. Mr Marlow responded that day. Mr Kennon then questioned the efficacy of vaccinations against COVID-19 and sought information as to the impact of South Australia opening its state borders in late 2021. Mr Marlow advised Mr Kennon that he understood that he did not agree with the -- 3 of 16 -- [2023] FWC 227 4 Policy, but that it remained in place. Mr Marlow advised Mr Kennon to discuss any medical concerns with his doctor and reminded him of the medical exemption option. Mr Kennon then sought information about the law which required “forced vaccination”. Mr Marlow advised that Mr Kennon was obliged to follow lawful and reasonable directions. Mr Marlow advised that Mr Kennon’s medical certificate would expire that day, and Telstra would require evidence of his receipt of the first vaccination in order for him to return to work. Mr Kennon advised that his son was a “close contact”, and that he would need to take leave to isolate until 14 February 2022. [29] Mr Kennon was absent on personal leave between 14 February 2022 and 16 March 2022 inclusive. [30] On 9 March 2022, Mr Darren Fewster, Executive Transformation and People – Telstra, advised Mr Kennon that Telstra would cease paying him personal leave unless he was vaccinated. Mr Kennon raised concerns about the lawfulness and reasonableness of the Policy and referred to Telstra’s dispute resolution policy. Mr Fewster responded explaining the basis under which Telstra contended the Policy, and the direction, was lawful and reasonable. Mr Fewster advised that the decision to be vaccinated was a personal choice but failure to comply with the Policy may lead to disciplinary action. Mr Fewster advised that Mr Kennon had not raised a dispute about a matter contained in Telstra’s enterprise agreement9. I note that the relevant enterprise agreement does not refer to vaccinations and/or COVID-19. [31] On 5 April 2022, Mr Kennon advised Telstra that he had contracted COVID-19. [32] Mr Kennon provided Telstra with medical confirmation of his contracting COVID-19, and was granted a medical exemption from vaccination in compliance with the Policy on that basis for the period of 26 April to 1 August 2022. The ‘information’ provided by the Applicant [33] Mr Kennon submitted a number of documents concerning matters he or his advocate believed were relevant to his case, including • “Clinician Alert #89”10, authored by Dr Paul Effler, Senior Medical Advisor, WA Department of Health, effective 19 October 2022. This appears to be a summary of the ATAGI guidance on myocarditis and pericarditis after COVID-19 vaccinations. • “The Time of COVID”11, a report authored by Dr Phillip M Altman dated 9 August 2022, concerning COVID-19 management and policy. I note that Mr Altman argues that COVID-19 vaccines (including those provisionally approved by TGA) are not truly vaccines. • A report prepared by Lisa Mitchell12 (5 August 2022) which concerns a review of TGA published adverse events related to COVID-19 and non-COVID-19 vaccinations to 8 June 2022. [34] The Applicant did not present any medical expert evidence. [35] There was no assessment or testing of the ‘information’ contained in the materials submitted. -- 4 of 16 -- [2023] FWC 227 5 Submissions of Mr Kennon [36] Mr Kennon’s submissions as to why he considered his dismissal to be unfair were mainly centered around his assertion that the direction of Telstra for him to follow the Policy was not a lawful and reasonable direction. Accordingly, Mr Kennon submitted that there was no valid reason for his dismissal. The reasons for Mr Kennon’s assertion that the Policy was not lawful and reasonable are summarised below: • Mr Kennon submits that the Policy is internally inconsistent in that it: • in some areas, the Policy states that “it encourages all employees to be vaccinated”, whilst in other areas, the Policy uses the language “Requiring employees to be vaccinated”. Mr Kennon submitted that the Policy is contradictory on this basis, and therefore cannot be lawful and reasonable. • expects compliance with reasonable health and safety requirements but does not force compliance. • required vaccination with an “approved COVID-19 vaccination”, despite COVID-19 vaccinations available in Australia having only been “provisionally approved”. • Vaccination is not the best protection against COVID-19. • From 20 April 2022 to 1 August 2022, Mr Kennon had a medical exemption as he had contracted COVID-19. • In the 12 months prior to his dismissal, Mr Kennon was denied annual leave. • The Policy includes the sentence “Fully vaccinated people can still contract and transmit COVID-19, even if asymptomatic. This may result in serious health risks for unvaccinated employees working in close proximity to them.” Mr Kennon’s interpretation of this statement is that if he became vaccinated, he would become a risk to other unvaccinated people. Mr Kennon submitted that a policy that requires him to become a risk to others could not be lawful and reasonable. • Mr Kennon submitted that the etymology of the word “vaccine” comes from treatment of the Smallpox disease, and the correct definition of “vaccine” requires that it produces complete immunity from a particular infectious disease. On the basis that none of the COVID-19 vaccinations in Australia provide complete immunity from COVID-19, Mr Kennon submitted that it was impossible to comply with the Policy, as no COVID-19 vaccine exists. • Mr Kennon submitted that Telstra did not adequately consult with him in relation to the Policy. • Mr Kennon submitted that the direction constituted “coercion”, and therefore could not be lawful or reasonable. -- 5 of 16 -- [2023] FWC 227 6 Submissions of Telstra [37] Telstra contended that the Policy was a lawful and reasonable direction, and therefore Mr Kennon’s failure to comply with the directions given on 11 October 2021 and 8 August 2022 were failures to comply with a lawful and reasonable direction. Telstra contend that each failure to follow a lawful and reasonable direction amounts to valid reasons for dismissal in relation to the conduct of the Applicant. Telstra contends that a direction to comply with the Policy is a lawful and reasonable direction on the following basis: • The direction was reasonable given the nature of the Mr Kennon’s role, the nature of Telstra’s workplace, the nature of the illness sought to be protected against, and all other relevant circumstances at the time the direction was given. • The Policy was introduced to fulfil Telstra’s work health and safety obligations across a large workforce, across different states and territories in Australia. Whilst Telstra had to comply with its obligations across Australia, Telstra noted that the Policy only applies to roles falling within its scope (i.e. customer facing roles or roles required to be performed on site such as the Constructor Operative role). • Telstra noted that previous decisions of the Commission13 have found that vaccination directions issued by Telstra in accordance with the Policy were lawful and reasonable. • Mr Kennon’s dismissal was not motivated by his personal beliefs. • A thorough consultation process was engaged in prior to the Policy being implemented. • A direction to be vaccinated has been found by the Commission to not constitute “coercion” as that term is legally understood. Consideration [38] It appears the Mr Kennon’s advocate, Mr Vandepeer, took control of the communications with Telstra at an early stage. [39] Mr Vandepeer appears to have little knowledge of employee relations, the operation of the unfair dismissal jurisdiction, procedure and/or the rules of evidence, and the content of a growing amount of COVID-19 related jurisprudence. Whilst I have made allowances for Mr Vandepeer’s knowledge gaps, it is not my role to run Mr Kennon’s case. Having said that, it would be an injustice for Mr Kennon’s case to fail solely because of the competence of his chosen advocate. [40] I accept that Mr Kennon held genuine concerns about the vaccine and its potential side effects. Mr Kennon gave oral evidence that he had a moral objection to vaccines which involved the use human foetus tissue in their development. [41] The ‘information’ in the form of quasi-medical reports submitted by the Applicant is not such that I can take judicial notice of it. There was no expert evidence called so as to enable me to evaluate the contents of the documents submitted on Mr Kennon’s case. -- 6 of 16 -- [2023] FWC 227 7 [42] I was not persuaded by the material provided to depart from the analysis of the risks posed by COVID-19 and appropriate mitigation strategies determined by the Full Bench in CFMMEU and Anor v Mt Arthur Coal14 (Mt Arthur). In that matter, the Full Bench heard expert evidence from a variety of witnesses on the risks of COVID-19 and the efficacy of COVID-19 vaccinations available for use in Australia. The Full Bench summarised the following based on the evidence before them: “1. COVID-19 involves a high burden of disease, greater than influenza. 2. Any infected person is at risk of developing serious illness from the virus, which may lead to death. 3. The risks posed by COVID-19 have changed with the rapid rise of the Delta variant which is more infectious and has more severe health effects than previous variants. 4. All COVID-19 vaccines currently available in Australia are effective at preventing symptomatic infection, including from the Delta variant. 5. All COVID-19 vaccines currently available in Australia substantially reduce the risk of serious illness or death, including from the Delta variant. 6. All COVID-19 vaccines currently available in Australia are safe and any adverse effects are usually mild. There is a much higher risk of developing serious complications and dying from acquiring COVID-19. 7. An unvaccinated person is more likely to acquire COVID-19 from another unvaccinated person, rather than a vaccinated person. 8. While other measures, such as mask wearing, and social distancing, are demonstrated to reduce the transmission of COVID-19, the effectiveness of these measures depends on people applying them consistently or correctly. They do not provide a substitute for the constant protection offered by vaccines, nor do they reduce the risk of developing serious illness once somebody acquires an infection. 9. Vaccination is the most effective and efficient control available to combat the risks posed by COVID-19. 10. Even with high vaccine rates in the community, COVID-19 will remain a significant hazard in any workplace in which there is a possibility that people will interact or use the same common spaces (even at separate times). The Mine is clearly such a workplace.”15 [43] The Full Bench decision in Mt Arthur at [108] made comment on the consultation requirements in implementing a COVID-19 vaccination policy. They are summarised as follows: • Consultation must give employees an opportunity to be heard and express their views such that they may be taken into account. • Consultation needs to be real, not merely formal or perfunctory or an afterthought -- 7 of 16 -- [2023] FWC 227 8 . • The right to be consulted is not a right of veto. • Management has the right to make the final decision. [44] Based on the evidence before me, I am satisfied that Telstra’s approach to the development of the Policy and its consultation processes were such to meet these requirements. [45] The remaining issues in this matter are: • Did the direction given to Mr Kennon amount to coercion? • Are the requirements of the Policy capable of being met, i.e., are what is described as “vaccinations” in the Policy, those which have been commonly administered in Australia, correctly described? • What should be made of Mr Kennon’s moral objection to the available COVID-19 vaccines? • Should Mr Kennon have been granted long service leave? • Is there any procedural unfairness? [46] On the evidence before me and the guidance provided by the decision in Cinque v Jetstar Airways Pty Ltd16 I am unable to find that Telstra’s direction amounted to coercion. [47] Mr Vandepeer urged me to find that the reference to “vaccines” and “vaccination” in the Policy are not correct as they do not accord with the definition of vaccine contained in the Macquarie Dictionary, and thus the Policy requirement to be vaccinated is an impossibility. [48] The Macquarie Dictionary defines vaccine as below: “vaccine – noun – a substance, usually administered by injection, which elicits an immune response in the body, producing antibodies to the cells causing a specific infectious disease.” [49] Mr Kennon also contended that in order to be an appropriate vaccine under the Policy, it must not be a provisional vaccination (noting that the vaccines used in Australia all appear to have provisional approval) and must have been developed from a smallpox base, and finally must have the effect or preventing the disease. [50] With respect to the Applicant, this is not the common understanding of the term vaccine. I note that the Full Bench in Mt Arthur used the term vaccine when referring to the COVID-19 vaccines available at the time of that decision. In my view, how the vaccine was developed is an irrelevancy, as is the proposition that a vaccination must completely prevent or eradicate the disease in order to be appropriately termed a vaccine. I note no medical evidence was presented before me on this topic. In my view, the term “vaccine” as used in the Policy must be given its natural and ordinary meaning, not some strained and overly technical one. -- 8 of 16 -- [2023] FWC 227 9 [51] For completeness, I note that the Oxford Dictionary defines the term “vaccine” as “a substance that is put into the blood and that protects the body from a disease”. There does not appear to be a requirement in that definition that the disease be eradicated or be created in a particular manner. [52] In the context of the interpretation of an enterprise agreement, the guidelines of the Full Bench in Berri dictate that the Commission should not take an “overly technical” approach to interpretation.17 This stems partly from the fact that enterprise agreements are often prepared by lay persons, rather than experienced drafters of legislation. I see no reason why these rules of construction should not apply to a policy. In my view, the term vaccination as used in the Policy should not be interpreted in an artificial or overly technical way. It is commonly understood that the products commonly described as AstraZeneca Vaxzevria, Pfizer Comirnaty, Moderna Spikevax and other similar products are vaccines, and accordingly are appropriately described as vaccines in the Policy. I note that the Full Bench in Mt Arthur referred to the products available at the time of that decision as vaccines. [53] Mr Kennon’s submission that the term vaccination in the Policy is incapable of being met due to his strained definition is rejected. [54] I accept that Mr Kennon has a moral objection to certain vaccines. Whilst this might explain Mr Kennon’s reluctance to comply with the Policy, it does not excuse it. [55] Based on the evidence before me, Telstra did not rush to judgment, and accommodated Mr Kennon to a large extent, providing long periods of personal and annual leave. Telstra engaged with Mr Kennon with respect to the requests for further information. The granting of long service leave is generally a matter of agreement between the parties with the employer obligated not the unreasonably refuse. It appears to me that regardless of whether Telstra granted Mr Kennon additional leave, it would not have changed the outcome, perhaps only delaying it. [56] On the topic of procedural fairness, it appears that Telstra bent over backwards to ensure such fairness was afforded to Mr Kennon. The fact that Mr Kennon disagrees with the Policy and Telstra’s decision to dismiss him does not automatically render the dismissal procedurally unfair. [57] I turn now to the matters I am required to consider under the Act. Has Mr Kennon been dismissed? [58] A threshold issue to determine is whether Mr Kennon has been dismissed from his employment. [59] There was no dispute, and I find, that Mr Kennon’s employment with Telstra was terminated at the initiative of the employer. [60] I am therefore satisfied that Mr Kennon has been dismissed within the meaning of s.385 of the Act. Initial matters -- 9 of 16 -- [2023] FWC 227 10 [61] Under section 396 of the Act, the Commission is obliged to decide the following matters before considering the merits of the application: (a) whether the application was made within the period required in subsection 394(2); (b) whether the person was protected from unfair dismissal; (c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; (d) whether the dismissal was a case of genuine redundancy. Was the application made within the period required? [62] Section 394(2) requires an application to be made within 21 days after the dismissal took effect. [63] It is not disputed, and I find that Mr Kennon was dismissed from his employment on 17 August 2022 and made the application on 5 September 2022. I am therefore satisfied that the application was made within the period required in subsection 394(2). Was Mr Kennon protected from unfair dismissal at the time of dismissal? [64] Section 382 details when a person is protected from unfair dismissal: Section 382 – when a person is protected from unfair dismissal A person is protected from unfair dismissal at a time if, at that time: (a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and (b) one or more of the following apply: (i) a modern award covers the person; (ii) an enterprise agreement applies to the person in relation to the employment; (iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold. Minimum employment period [65] It was not in dispute, and I find that Telstra is not a small business employer, having 15 or more employees at the relevant time. [66] Mr Kennon was employed by Telstra for a period of approximately 23 years. -- 10 of 16 -- [2023] FWC 227 11 [67] I am therefore satisfied that, at the time of dismissal, Mr Kennon was an employee who had completed a period of employment with Telstra of at least the minimum employment period. Coverage of enterprise agreement [68] I am satisfied, and it is not in dispute, that the 2022 Agreement covered Mr Kennon at the time of his dismissal. [69] I am satisfied that, at the time of dismissal, Mr Kennon was a person protected from unfair dismissal. When has a person been unfairly dismissed? [70] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that: (a) the person has been dismissed; and (b) the dismissal was harsh, unjust or unreasonable; and (c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and (d) the dismissal was not a case of genuine redundancy. [71] There was no dispute that Mr Kennon had been dismissed, and it was not contended that the dismissal was a case of genuine redundancy, or that the Small Business Fair Dismissal Code had application. The only in dispute is whether the dismissal was harsh, unjust or unreasonable within the meaning of s.387 of the Act. Was the dismissal harsh, unjust or unreasonable? [72] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account: (a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and (b) whether the person was notified of that reason; and (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and (e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and -- 11 of 16 -- [2023] FWC 227 12 (f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (h) any other matters that the FWC considers relevant. [73] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.18 [74] I set out my consideration of each below referring to my factual findings above. Was there a valid reason for the dismissal related to Mr Kennon’s capacity or conduct? [75] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”19 and should not be “capricious, fanciful, spiteful or prejudiced.”20 [76] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.21 “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”22 [77] I have referred to the Full Bench decision in Mt Arthur earlier in this decision. [78] I accept that the Policy was an appropriate means by which to manage the risks posed by the COVID-19 pandemic and that Telstra met its consultation obligations prior to the implementation of the Policy. [79] I find that Telstra was entitled to direct Mr Kennon to comply with the Policy, and that such a direction was reasonable in the circumstances. The direction was consistent with that accepted by Commissioner Bisset in Colwell v Wellways Australia.23 I note that Mr Kennon was given a warning is respect of his first refusal to comply with the Policy. The second refusal by Mr Kennon represents a valid reason for his dismissal. [80] It is clear that Mr Kennon was not vaccinated in accordance with the Policy, nor did he apply or obtain a medical exemption. [81] Whilst I accept that Mr Kennon had an ethical position in respect of certain vaccines, this does not exempt him from compliance with the Policy. [82] Having regard to the evidence before me, I find that there was a valid reason for the dismissal related to Mr Kennon’s failure to comply with a lawful and reasonable direction to comply with the Policy. Was Mr Kennon notified of the valid reason? -- 12 of 16 -- [2023] FWC 227 13 [83] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,24 and in explicit25 and plain and clear terms.26 [84] Telstra contends that Mr Kennon was advised of the allegations in respect of his conduct, namely that he disobeyed a lawful and reasonable direction to comply with the Policy on a number of occasions as detailed in the correspondence between the parties between 8 August and 17 August 2022. [85] I am satisfied that Mr Kennon was advised of the valid reason for the dis missal prior to the dismissal. Was Mr Kennon given an opportunity to respond to any valid reason related to their capacity or conduct? [86] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.27 [87] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.28 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.29 [88] I am satisfied that Mr Kennon was given an opportunity to respond to the allegation that he disobeyed a lawful and reasonable direction to comply with the Policy. Did Telstra unreasonably refuse to allow Mr Kennon to have a support person present to assist at discussions relating to the dismissal? [89] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present. [90] Mr Kennon sought and was allowed to have a support person (Mr Vandepeer) to be present. [91] I find that the Telstra did not unreasonably refuse to allow Mr Kennon to have a support person present at discussions relating to the dismissal. Was Mr Kennon warned about unsatisfactory performance before the dismissal? [92] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant. To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal? -- 13 of 16 -- [2023] FWC 227 14 [93] Telstra is a large business and did not submit that the size of its enterprise was likely to impact on the procedures followed in effecting the dismissal and accordingly this consideration is not a determining factor. To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal? [94] Telstra is a large business with in-house human resource specialists and accordingly this consideration is not a determining factor. What other matters are relevant? [95] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant. [96] I accept that Mr Kennon was a long-standing employee of Telstra and the dismissal had a significant impact on him. [97] I have considered the refusal by Telstra to provide Mr Kennon with long Service leave. Telstra’s approach appears consistent with that considered in the decision of Sampson v BHP Olympic Dam Corporation Pty Ltd.30 Is the Commission satisfied that the dismissal of Mr Kennon was harsh, unjust or unreasonable? [98] I have made findings in relation to each matter specified in section 387 as relevant. [99] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.31 [100] Having considered each of the matters specified in section 387 of the Act, I am satisfied that the dismissal of Mr Kennon was not harsh, unjust or unreasonable. Conclusion [101] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I find that Mr Kennon was not unfairly dismissed within the meaning of section 385 of the Act. Mr Kennon’s unfair dismissal application is therefore dismissed. An Order32 reflecting this decision will be issued concurrently. COMMISSIONER -- 14 of 16 -- [2023] FWC 227 15 Appearances: B Vandepeer for the Applicant. S Crilly for the Respondent. Hearing details: 2022. Adelaide: 6 December. Printed by authority of the Commonwealth Government Printer <PR749978> 1 Exhibit A3. 2 Exhibits A1 and A2. 3 Exhibit R1. 4 Page 231-239 of the Court Book 5 AE508275. 6 AE516070. 7 See R1 attachment CM-8, page 424 of the Court Book 8 Page 502 of the Court Book. 9 AE516070. 10 Page 54-55 of the Court Book. 11 Pages 58-99 of the Court Book. 12 Pages 100-164 of the Court Book. 13 Steven Symbonis v Telstra [2022] FWC 1018; and Donovan Scott v Vita People/Telstra [2022] FWC 2140. 14 [2021] FWCFB 6059. 15 Ibid at [29]. 16 [2022] FWC 2235 17 AMWU v Berri Pty Limited [2017] FWCFB 3005 at [114]. 18 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69]. 19 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373. 20 Ibid. 21 Edwards v Justice Giudice [1999] FCA 1836, [7]. 22 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24]. 23 [2022] FWC 1086. 24 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151. 25 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998). 26 Ibid. 27 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75]. -- 15 of 16 -- [2023] FWC 227 16 28 RMIT v Asher (2010) 194 IR 1, 14-15. 29 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7. 30 [2022] FWC 1568. 31 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]-[7]. 32 PR749979. -- 16 of 16 --