In Kim Stevens v William Adams Pty Ltd [2022] FWC 1851, an Unfair dismissal dispute, the Fair Work Commission noted a fake vaccination certificate.
[13] There is one further evidentiary matter that must be mentioned. In response to a message from the Commission requesting the parties to confirm their vaccination status ahead of the attendance hearing that was listed for 14 July 2022, Ms Stevens replied that she was not vaccinated against COVID-19. The hearing was then relisted to be conducted by Microsoft Teams. Ms McKay said in her evidence that she was surprised to learn that Ms Stevens was not vaccinated, because on 27 November 2021 she had sighted Ms Stevens’ immunisation certificate that purported to confirm that she had received two doses of an approved COVID-19 vaccine. The company had required Ms Stevens and other employees to produce evidence of their vaccination status, in order to ensure that it complied with Victorian public health orders, pursuant to which employers in certain sectors were required to prevent unvaccinated workers from attending the workplace. In cross-examination, Ms Stevens was asked why she had lied in her correspondence to the Commission. Ms Stevens replied that she had lied to the company, and that in fact she was not vaccinated. This suggests that the vaccination certificate that she showed to the company was a forgery. I will advise the General Manager of the Commission about this matter for the purpose of considering a referral to the appropriate authorities for investigation.
[14] I make the following factual findings. First, I accept the evidence of Ms McKay and Ms Arandelovic about the reasons for which the company terminated Ms Stevens’ employment . It was clear, convincing, and entirely credible. It is not in dispute that Ms Stevens was persistently late for work. Ms Stevens stated in her F2 application that she had been late for work nearly every day for four years. She acknowledged in her oral evidence that she had failed to use the TANDA system consistently. She had been repeatedly warned about both of these things. These are obvious and inherently believable reasons why an employer would wish to terminate an employee’s employment. ...
[20] For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable (s 385(b)). In considering whether it is so satisfied, the Commission must take into account the matters specified in s 387. The Commission is required to consider whether there was a valid reason for the dismissal related to the person’s capacity or conduct (s 387(a)). Such a reason is one that is valid in the sense that it was a good or sufficient reason, and also a substantiated reason. A valid reason is one that is sound, defensible and well-founded.
[21] Both of the reasons for dismissal cited by the company were in my view valid reasons. First, Ms Stevens had persistently failed to arrive for work on time. Secondly, she had repeatedly failed to use the TANDA system. She had been directed to do both of these things. The directions were both lawful and reasonable. She was therefore contractually obliged to follow them. I do not propose to set out the caselaw on lawful and reasonable directions. It suffices to note that the directions were lawful because they involved no illegality and fell within the scope of Ms Stevens’ contract of employment. I do not consider that the direction to use TANDA entailed any contravention of the Privacy Act. There can be no doubt that the direction to start work on time was a lawful one. The directions were also reasonable. The company had sound reasons for wanting to replace its manual time recording system with an effective and efficient electronic platform. It considered Ms Stevens’ concerns about the biometric functionality of the system and decided to disable it so as to allay the concerns. The direction to start work on time was inherently reasonable. Ms Stevens suggested that she had been late because of stress surrounding rumours about her, but it has not been established that there were in fact any rumours. And in Ms Stevens’ own words from her F2 application, she was late ‘nearly every day for four years and it had never mattered’, until she raised her concerns about TANDA. She also told Mr Minuzzo that the reason for her lateness was connected to the traffic on the Monash freeway. I do not accept that there were rumours about Ms Stevens, or that any stress connected to any belief she may have had that such rumours existed was a reason for her lateness.
[22] It is well-established that an employer may rely upon the misconduct of an employee discovered after dismissal as a valid reason for dismissal. A third valid reason for dismissal was the fact that Ms Stevens lied to the company about being vaccinated . This is a grave matter. It was serious misconduct, which would have warranted summary dismissal. The company was prohibited by public health orders from allowing unvaccinated workers to attend the workplace. It was subject to penalties for contraventions of its obligations under the Public Health and Wellbeing Act 2008. Ms Stevens admitted that she lied to the company about being vaccinated in order to be able to come to work. This was a fundamental breach of her contract of employment. This alone would have justified her dismissal.
