A teacher, who was summarily dismissed for failing to notify his employer about his COVID-19 vaccination status, successfully argued that his dismissal did not disentitle him to a payment in lieu of notice, as he was not guilty of serious and wilful misconduct.

 

 

Background

In 2021, the SA Government introduced the Emergency Management Direction (EMD) to address the COVID-19 pandemic. This directive required various sectors, including schools, to ensure their employees were vaccinated against the virus, with exemptions only for medical reasons, so that by 11 December 2021 all staff attending school were vaccinated against COVID-19.

Temple Christian College notified its staff of this new requirement in November 2021, and requested staff notify it of their intentions by 22 November 2021 so that all staff were in a position to comply with the EMD when it came into effect from 11 December 2021.

There was some discussion amongst the affected teachers and senior staff members at the College about whether they could use their leave entitlements whilst they made a decision about receiving the vaccination. Initially the College would consider staff using leave, but it was not until 23 November 2021 that it clearly stated this would not be an option.

The teacher in this case did not provide the necessary documentation by 22 November 2021, and the College eventually dismissed him on 10 December 2021. At no time did he say to the College that he would not be vaccinated, but rather he sought more time to consider his options.

After his dismissal, Robertson sought compensation for entitlements he believed were owed under the College’s Enterprise Agreement. Those entitlements were a payment in lieu of notice and a redundancy payment.

The College, however, disputed these claims, asserting that Robertson’s dismissal was not a redundancy and the dismissal was lawful and justified on the grounds of serious and wilful misconduct. If that were true, the College could dismiss him on the spot and he would not have been entitled to payment in lieu of notice or redundancy pay.

Alternatively, the College argued that by not providing proof of his vaccination, the teacher had frustrated or repudiated his contract of employment, which also meant he would not be entitled to notice or a payment in lieu of notice.

Redundancy

The Tribunal dealt quickly with the teacher’s argument that he had been made redundant. The evidence established that the subjects he had been teaching were reallocated to two other teachers instead of being taught by one teacher. Also, from 2021 to 2022 the number of full time equivalent teachers had increased slightly.

The Tribunal accepted the College’s argument that a teacher is employed to teach classes that are allocated to them and which are within their skills and experience. Teachers were not employed to teach specific classes, so the fact that the classes Robertson taught were still being offered did not support the conclusion his job was no longer required or performed.

Accordingly, he was not entitled to a payment for redundancy.

Instant Dismissal

It was accepted that the College had directed all staff to either be vaccinated by 10 December 2021 or otherwise provide evidence of a medical exemption, and that this was a lawful and reasonable direction given the urgent circumstances at the time.

The teacher understood from his discussions with the College about using leave entitlements that this option was being considered and he could wait to hear further about this before making a decision to receive the vaccination. The Tribunal noted there was an absence of further communication with staff, after the initial discussions, about whether they could take leave, until late in November 2021.

In an e-mail he received on 23 November 2021 the teacher was advised taking leave would not be an option and he should urgently advise if he would be vaccinated or not, even though the deadline to provide that information had passed. He called a meeting with senior staff at the College that same day asking they reconsider the use of leave entitlements, however the College rejected this request.

The Tribunal found that the decision to not comply with the direction was deliberate and it was also a failure to comply with a lawful and reasonable direction. However, the conduct was not so serious that it justified instant (summary) dismissal. The Tribunal pointed out the College had a range of options short of dismissal it could have taken to discipline him for failing to comply with the direction.

Although the failure to comply with the direction had been deliberate and may have been misconduct, the Tribunal noted the College had not relied on this as a ground for dismissal when they terminated him. He was therefore still entitled to notice or a payment in lieu.

Serious and Wilful Misconduct

The teacher first received notice of an intention to dismiss from the College in the e-mail sent 23 November 2021. At the meeting on the same day, the College warned him it would dismiss staff from 11 December 2021 who were not vaccinated or medically exempt by 10 December.

The College again did not say it would consider or rely upon a failure to notify of an intention to get vaccinated to be serious and wilful misconduct or that employees would be dismissed on that ground.

The first time he heard the College alleged serious and wilful misconduct was in June 2022 after he wrote to them about receiving his payment in lieu of notice.

The Tribunal found that a notice of dismissal that is contingent on another event is not a sufficient notice that complies with the Fair Work Act 2009. The fact that the College left open the option for the teacher to notify of his vaccination or exemption status and retain his role up until it dismissed him meant any notice provided did not satisfy the Fair Work Act’s requirements.

It also noted that he did not challenge the direction. He wanted more time to consider his options and the 2021/2022 school terms and the EMD would have accommodated this.

The Tribunal found the dismissal was not on the grounds of serious and wilful misconduct and neither could it be justified on those grounds.

When is an Employment Contract frustrated?

An employment contract is frustrated when unforeseen events outside the control of the employer and employee make performance of the contract either impossible or radically different from what had been initially contemplated. When this happens, neither is required to give notice because the contract terminates automatically from the frustrating event.

Here the EMD was an event outside of the College or the teacher’s control, but its effect on the contract of employment did not necessarily occur on and from 10 December 2021.

The Tribunal found employees were not required to be vaccinated or have an exemption by 10 December 2021, rather it meant they could not attend school grounds or activities from that date.

Relevantly, the teacher was dismissed on the last day of school in 2021 before the long summer break that did not end until 31 January 2022. Even unvaccinated, his employment contract was not frustrated before the start of term 1 in 2022, or a later date if he had been granted leave.

In other words, the College’s decision to terminate him from 11 December 2021 was its own decision in order for the school to be able to plan for the next school year. Therefore, the employment contract did not end because it has been frustrated by the EMD.

Repudiation

The College finally argued that by failing to comply with the direction regarding notifying it if he would be vaccinated or as medically exempt, the teacher had repudiated his employment contract.

Repudiation is essentially where a party to a contract demonstrates an unwillingness to perform its obligations or substantially perform them. This test is an objective one, meaning it’s judged by what a reasonable person in the situation of the other party would have concluded, rather than requiring proof of a person’s actual intention.

The Tribunal noted the teacher’s attempts to negotiate taking leave, so he had more time to consider his options, and the length of time before he would be required back on campus after the summer break, and concluded this was not conduct that demonstrated on an objective basis a renunciation of his employment contract.

Particular note was taken of the fact he did not have to be on campus for the summer break and could have taken leave from 31 January 2022. Robertson wanted his employment to continue. However, the Tribunal concluded the College made a one-sided decision to end his employment from 11 December 2021, putting to bed any argument that it was the teacher who had repudiated the employment contract.

The Tribunal found he was entitled to a payment in lieu of notice, with the amount and interest to be agreed by both parties. The Tribunal also noted that the College’s failure to give notice or make payment in lieu had resulted in multiple breaches of the Fair Work Act 2009 which could result in further monetary penalties.

Decision

The court’s decision shows that major changes, like new pandemic rules, don’t automatically void employment contractual rights and, depending on the circumstances of each employee, they may still retain their right to notice that their employment will be ending or a payment in lieu of notice.

Understanding your legal rights and obligations, particularly in employment matters, requires careful attention. This case shows the importance of knowing your employment agreement and following the right procedures. Getting advice from a lawyer can be crucial to ensure your rights are protected and the proper steps are taken. Their support helps you make informed decisions.

Websters Lawyers are here for workers

If you find yourself in a dispute with your employer over your employment rights, including issues related to your contract, redundancy, or other workplace matters, Websters Lawyers can provide the advice and support you need. Our experienced employment lawyers can help ensure your rights are upheld and assist you in navigating the complexities of your situation. For more information on how we can help, click here.

Stewart Robertson v Temple Christian College Incorporated T/A Temple Christian College [2024] SAET 77
https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/sa/SAET/2024/77.html