Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Anna Gikas
v
The Commissioner for Public Employment
(U2021/12287)

Application for an unfair dismissal remedy

[1] On 24 December 2021, Ms Anna Gikas (the Applicant) filed an application (the Application) with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the FW Act). The Applicant was dismissed by The Commissioner for Public Employment (the Respondent) on 26 November 2021 on the basis that she was not able to perform the inherent requirements of her job.

[2] The Applicant was employed as a teacher by the Northern Territory Department of Education from 23 March 2020 until her dismissal letter on 26 November 2021. The Applicant’s employment was covered by the Northern Territory Public Sector Teachers and Assistant Teachers’ 2017 – 2021 Enterprise Agreement.

[3] The Applicant seeks reinstatement to her position with the Respondent.

Background

[4] On 18 March 2020, a public health emergency was declared in the Northern Territory as a result of the COVID-19 pandemic.

[5] On 13 October 2021, the Northern Territory Chief Health Officer issued COVID-19 Direction (No. 55) 2021 (CHO Direction No. 55) directing for mandatory vaccination of workers to attend the workplace. These directions applied to the following workers:

(a) a worker who, during the course of work, is likely to come into contact with a vulnerable person;

(b) a worker who is at risk of infection with CoVID-I9 because the worker, during the course of work, is likely to come into contact with a person or thing that poses a risk of infection;

(c) a worker whose workplace poses a high risk of infection with COVID-19;

(d) a worker who performs work that is necessary for the operation or maintenance of essential infrastructure or essential logistics in the Territory.

[6] These directions provided that for the period starting on 13 November 2021, a worker who had not received the first dose of an approved COVID-19 vaccination must not attend the worker’s workplace. On and from 24 December 2021, a worker who had not received two doses of an approved COVID-19 vaccine must not attend the worker’s workplace.

[7] These directions applied unless the worker could provide evidence of a contraindication to all approved COVID-19 vaccines.

[8] On 13 October 2021, Ms Jodie Ryan, Chief Executive Officer, Department of the Chief Minister and Cabinet, Northern Territory Government, wrote to all Northern Territory Public Service (NTPS) employees regarding the CHO Direction No. 55 and confirming the requirement that all staff receive the first dose of the COVID-19 vaccine by 13 November 2021 and to be fully vaccinated by 24 December 2021. The email correspondence noted the exemption for a proven contraindication.

[9] On 14 October 2021, Ms Karen Weston, Chief Executive Officer (CEO) of the Department of Education, wrote to all Government School Staff acknowledging Ms Ryan’s email of 13 October 2021, advising of the requirement for all workers to be vaccinated unless they have a proven contraindication to all available vaccines. Notably the correspondence provided:

“While we are working through the details of this announcement, for those who have not yet had their vaccine, I encourage you now to get your COVID-19 jab. This can be done during work hours, with no requirement to request or take leave. You can book your COVID-19 vaccination here. I also encourage all school representative body employees to do the same.”

[10] On 22 October 2021, Ms Vicki Telfer PSM, Commissioner for Public Employment, wrote to all Northern Territory Government staff, advising of, among other things, the requirement for employees’ vaccination statuses to be registered with their employer a week in advance of the due dates. A ‘myHR’ system had been developed for registering these details.

[11] Various emails from the CEO followed these communications, providing further information and clarification to the School Staff.

[12] On 9 November 2021, the CEO wrote to the Applicant directing her to provide vaccination information:

“Dear Anna

RE: DIRECTION TO PROVIDE VACCINATION INFORMATION

I want to reassure you that I value all of our staff and we want to keep the good people we have in our department. Mandatory vaccination is to protect children, staff, families, school representative bodies, volunteers and everyone else who works in our schools.

I expect all employees in the NT Department of Education to comply with the CHO Directions No. 55. This was first communicated to all staff via a CE email on Wednesday 13 October 2021.

In accordance with Northern Territory Chief Health Officer COVID-19 Directions (No. 55) 2021: Direction for mandatory vaccination of workers to attend the workplace (CHO Directions No. 55):

a. record their COVID-19 vaccination status in myHR prior to 5 November 2021; and

b. provide their manager with evidence of their COVID-19 vaccination status for verification.

On Monday 1 November 2021, an email from myself was sent to all Department of Education staff to remind all employees to record their vaccination status in myHR prior to 5 November 2021. I also provided a link to assist employees to enter their status in myHR

On 5 November 2021 an audit of myHR vaccination information established that you had not yet entered your vaccination status in myHR.

I also understand that your manager has been in discussions with you about your intention and encouraged you to update your vaccination status in myHR.

The latest myHR data from 8 November 2021, indicates that I had not yet received your vaccination status in accordance with myHR.

If there is any technical difficulty or other reason preventing you from entering your vaccination information into myHR, or if you have entered your information but are yet to provide evidence, or receive a response from your manager, please contact [redacted] as soon as possible.

Direction to enter vaccination information

Direction No. 13 of CHO Directions No. 55 provides that a person conducting a business or undertaking must take reasonable steps to determine the extent to which any worker who performs work for the person is vaccinated with an approved COVID-19 vaccination.

Direction No. 14 of CHO Directions No. 55 provides that a worker must, on request by the person conducting a business or undertaking for whom they work, provide evidence the person needs to determine the extent to which the worker is vaccinated with an approved COVID-19 vaccination.

In accordance with CHO Directions No. 55 and my duty of care to all workers and other persons entering the department's workplaces, I again direct you to enter your COVID-19 vaccination status into myHR and to provide your manager with the required verification.

Exclusion from workplace

If you fail to enter and verify that information by 13 November 2021 you will be directed not to attend your workplace and you will be stood down from your duties until such time as your vaccination status is entered and verified, or I decide to take action in relation to your employment under the Public Sector Employment and Management Act 1993.

If you remain non-compliant with the CHO Directions and I decide to take action in respect to your employment under the Act I will write to you and outline my intentions.

I remind you that you do have access to Employee Assistance Program should this support be required.

Yours sincerely

Karen Weston
Chief Executive”

[13] On 12 November 2021, the CEO wrote to the Applicant directing her not to attend the workplace after 12 November 2021:

“Dear Anna

RE: DIRECTION NOT TO ATTEND WORKPLACE AFTER 12 NOVEMBER 2021

As Chief Executive of the Department of Education I direct you not to attend your workplace after midnight on 12 November 2021 because you are unable to comply with Northern Territory Chief Health Officer COVID-19 Directions (No. 55) 2021: Direction for mandatory vaccination of workers to attend the workplace (CHO Directions No. 55).

Direction to Advise Vaccination Status

On 13 October 2021, I emailed all staff stating my expectation that all employees in the NT Department of Education comply with the CHO Directions No. 55.

On Monday 1 November 2021, an email from myself was sent to all Department of Education staff to remind all employees to record their vaccination status in myHR prior to 5 November 2021. I also provided a link to assist employees to enter their status in myHR.

On 5 November 2021 an audit of myHR vaccination information established that you had not yet entered your vaccination status in myHR.

On 9 November 2021, you were sent a letter as a final reminder with a deadline of COB Wednesday 10 November 2021, to upload your vaccination status onto myHR.

I also understand that your manager has been in discussions with you about your intention and encouraged you to update your vaccination status in myHR.

The latest myHR data from 11 November 2021, indicates that I had still not received

confirmation of your vaccination status in accordance with my directions above.

If you have recently booked a vaccination or received a vaccination, I ask you to update your manager or myHR accordingly.

If there is any technical difficulty or other reason preventing you from entering your vaccination information into myHR, or if you have entered your information but are yet to provide evidence, or receive a response from Your manager, please contact [redacted] as soon as possible.

Direction Not To Attend Work Pending Further Action

Direction 6 of CHO Directions No. 55 provides that, for the period starting on 13 November 2021 and ending on 24 December 2021, a worker who has not received the first dose of an approved COVID-19 vaccine must not attend the worker's workplace.

Consequently, I direct you not to attend your workplace after midnight on 12 November 2021 and until further notice.

You will continue to be paid until such time as your COVID-19 vaccination information is entered into and/or verified in myHR, or until I commence a formal process to manage your employment under the Public Sector Employment and Monagement Act 1993.

If you wish to discuss this matter, please contact Workforce Services on [redacted].

Yours sincerely

Karen Weston
Chief Executive”

[14] On 15 November 2021, the CEO wrote to the Applicant as follows:

“Dear Anna

RE: ALLEGED BREACH OF CONTRACT – INABILITY TO COMPLY WITH CHIEF HEALTH OFFICER DIRECTIONS NO. 55 OF 2021

As Chief Executive Officer (CEO) of the Department of Education (the Department) I am considering whether there are reasonable grounds for me to terminate your fixed period employment contract under section 33 of the Public Sector Employment and Management Act 1993 (the Act).

For the reasons set out below, I have reasonable grounds to suspect that you are unable to attend your workplace or perform the duties assigned to you under your contract.

Particulars

(a) You are a fixed period employee of the Department currently employed at the CT designation.

(b) Your contract commenced on 23 March 2020 and is due to expire on 27 January 2022.

Chief Health Officer Directions (No. 55) 2021

(c) On 13 October 2021 the Northern Territory Chief Health Officer (CHO) issued “COVID‐19 Directions (No. 55) 2021: Directions for mandatory vaccination of workers to attend the workplace” (CHO Directions No. 55).

(d) CHO Directions No. 55 took effect at 12:00 noon on 13 October 2021 and remain in force.

(e) Direction 4 of CHO Directions No. 55 provides that the Directions apply to workers:

(i) who during the course of work, are likely to come into contact with a vulnerable person;

(ii) who are at risk of infection with COVID‐19 because the workers, during the course of work, are likely to come into contact with a person or thing that poses a risk of infection;

(iii) whose workplace poses a high risk of infection with COVID‐19; or

(iv) who perform work that is necessary for the operation or maintenance of essential infrastructure or essential logistics in the Territory;

(f) I am satisfied that Direction 4 of CHO Directions No. 55 applies to your workplace.

(g) Direction 6 of CHO Directions No. 55 provides that:

For the period starting on 13 November 2021 and ending on 24 December 2021, a worker who has not received the first dose of an approved COVID‐19 vaccine must not attend the worker’s workplace.

Work Health and Safety Duty of Care

(h) As CEO of the department I have a duty, under the Work Health and Safety (National Uniform Legislation) Act 2011 (the WHS Act), to ensure, so far as is reasonably practicable, the health and safety of all workers in the Department, and all persons who visit the Department’s premises and workplaces.

(i) Under section 24(3)(k) of the Act one of my functions as CEO is to ensure the application within the Department of appropriate occupational health and safety standards.

(j) Under section 25 of the Act I have such powers as are necessary to enable me to carry out my functions under the Act and any other Act, including the WHS Act.

Direction to Advise Vaccination Status

(k) On 13 October 2021 I sent an email to all staff and advised as a result of CHO Directions No.55 staff were required to record their COVID‐19 vaccination status in myHR by no later than 5 November 2021.

(l) On 1 November 2021 I sent an email reminding all employees to record their vaccination status in myHR prior to 5 November 2021.

(m) On 9 November 2021 I wrote to you individually and advised you that in order to comply with CHO Directions No. 55 and to meet my duty of care to all workers and other persons entering the Department’s workplaces, I directed you to immediately enter your vaccination information in myHR and provide your manager with the required verification.

(n) On 11 November 2021 I directed you not to attend your workplace on and from 13 November 2021 until your vaccination status is entered and verified, or I decided to take action in relation to your employment under the Act.

(o) As at 13 November 2021 you had not entered any COVID‐19 vaccination information into the myHR vaccination register.

(p) I am not able to provide you with suitable alternate duties in a workplace that is not subject to CHO Directions No.55.

(q) For the reasons set out in particulars (a) to (p) above, CHO Directions No. 55 require that you must not attend your workplace, and I must ensure that you do not do so.

Potential Termination of Your Contract

For the reasons set out above, you cannot perform the inherent requirements of the duties you were employed to perform and I am considering whether I should terminate your fixed period contract under section 33 of the Act.

However, before I make a decision, I invite your submissions as to why I should not terminate your contract of employment.

Your submissions should be made in writing and must reach me no later than 4pm Tuesday 16 November 2021. Please ensure your response is copied to [redacted] should you respond via email.

Confidentiality

Please be aware that, in order to safeguard the integrity of this process, any matters which are the subject of the process are to remain confidential. Consequently, you are directed not to discuss this matter with your work colleagues or any person likely to have information relevant to the allegation(s) against you, other than your union or support person. You are also reminded of your obligations as a public sector officer that any media or social media comment about this process, is prohibited.

I enclose for your information copies of:

•  CHO Direction No. 55;

•  Section 33 of the Act;

•  Employment Instruction Number 3 – Natural Justice; and

•  Employment Instruction Number 12 – Code of Conduct.

Further Information

Whilst this process is ongoing, I direct you to make yourself available for the purpose of assisting with any investigations or inquiries relating to this matter.

Available Support

…

If you wish to discuss this matter then please contact Workforce Services via email: [redacted].

Yours sincerely

Karen Weston
Chief Executive
15 November 2021”

[15] The Applicant provided a response to the CEO on 15 November 2021 as follows:

“Dear Madam

SUBMISSIONS AS TO REASONS FOR NON-COMLIANCE WITH CHO DIRECTIONS NO. 55 OF 2021 – TRM NO: 50:D21:102133

I refer to your letter of 15 November 2021 inviting submissions as to why you should not terminate my contract of employment.

Please be advised I have attempted to comply with the Chief Health Officer’s directions, and the requirement of my employment as regards vaccination, as follows:

2 November 2021 – booked appointment with my GP for first dose of vaccine at Arafura

Medical Clinic on 9 November 2021. Received appointment card with appointment date.

3 November 2021 – attempted to record my vaccination status on myHR, which was that I was awaiting an appointment. Was informed that an appointment card, rather than SMS evidence was not sufficient evidence for my line manager.

4 November 2021 – made new appointment for first dose of vaccine at Marrara Covid Centre on 11 November 2021, so that I had SMS record of appointment to record on myHR, as required by my line manager. I understand my vaccination status was entered on myHR on that day, including expected date of first vaccination.

4 November 2021 – my sister had Pfizer vaccine, and suffered serious side-effects, including pericarditis, that resulted in one week hospitalisation and ongoing disability until today. This caused me to want to seek medical advice before I have my vaccination.

7 November 2021 – notified my line manager regarding my sister’s reaction to the vaccine and that I had made an appointment with my GP to discuss.

8 November 2021 – attended my doctor and sought and obtained a referral to a heart specialist for advice in relation to my first vaccination. Also obtained from my GP a certificate to be carer for my mother (as my ill sister is unable to care for her – she has three weeks’ sick leave and cannot fulfil her carer duties towards our mother).

9 November 2021 – cancelled my vaccination appointment. Meeting with my school principal, Robyn Thorpe – she approved two weeks’ carer’s leave starting 17 November 2021, with full pay and medical leave until I see a cardiologist.

By way of final submission, I confirm it is my intention to become vaccinated, and I would have had my first vaccine by 13 November 2021, but for the fact my sister had a serious episode of pericarditis requiring one week’s hospitalisation following her first Pfizer injection on 4 November 2021. This has caused me to seek further medical opinion before I have my first shot.

I undertake to provide evidence of my vaccination or of my exemption from having a vaccination as soon as I am able to do so.

Yours faithfully

Anna Gikas”

[16] The CEO wrote to the Applicant on 21 November 2021 as follows:

“Dear Anna

RE: BREACH OF CONTRACT — INABILITY TO COMPLY WITH CHIEF HEALTH OFFICER DIRECTIONS NO. 55 OF 2021

I refer to my letter dated 15 November 2021 in which l advised you that I am considering terminating your fixed period contract of employment, pursuant to section 33 of the Public Sector Employment and Management Act 1993 (the Act), as l suspect you are unable to perform the inherent requirements of your position.

In that letter, I also:

a) notified you of the reasons as to why I suspect you are unable to perform the inherent requirements of your position; and

b) invited you to provide me, by no later than 16 November 2021, with any submissions you wish to make as to why I should not terminate your contract of employment.

I have not received any response from you and consequently I remain of the view that you cannot perform the inherent requirements of your position because you have not been vaccinated in accordance with CHO Directions 55 of 2021.

Accordingly, I have decided to terminate your fixed period employment effective from the date of this letter, pursuant to section 33 of the Act.

DCDD Payroll Services will calculate your final entitlements to be paid out on your termination.

Available Support

…

If you wish to discuss this matter then please contact Workforce Services via email: [redacted].

Yours sincerely

Karen Weston
21/11/2021”

[17] The Applicant’s employment was formally terminated by written letter on 26 November 2021:

“Dear Ms Roussos

RE: ALLEGED BREACH OF CONTRACT - INABILITY TO COMPLY WITH CHIEF EXECUTIVE HEALTH OFFICER DIRECTIONS No. 55 OF 2021

I refer to my letter dated 15 November 2021 in which I advised you that I was considering terminating your fixed period of employment, pursuant to section 33 of the Public Sector Employment and Management Act 1996 (the Act), as I suspected that you were unable to perform the inherent requirements of your position.

In that letter, I also:

a) Notified you to the reasons as to why you could not perform the inherent requirements of your role and that I was considering whether I should terminate your fixed period contract under section 33 of the Act; and

b) Invited you to provide me, by no later than Tuesday 16 November 2021, with any submissions You wish to make as to why I should not terminate your contract of employment.

I subsequently wrote to you, dated 21 November 2021, and advised that I had not received your response for my consideration and consequently terminated your fixed period employment with immediate effect.

You had in fact provided your response to me, dated 15 November 2021, and outlined that:

•  you attempted to comply with the CHO Directions and booked an initial appointment for your first dose of the vaccine on 9 November 2021;

•  you cancelled the above appointment at Arafura Medical Clinic because they were unable to provide you with an email to confirm your appointment;

•  you rescheduled an appointment for your first dose of vaccine for 11 November 2021 with Marrara Covid Centre and provided email confirmation of the booking to Katerina Laouris, Business Manager;

•  on 4 November 2021, your sister suffered serious side effects from the Pfizer vaccine, prompting you to cancel your appointment of 11 November 2021 in favour of seeking further medical advice;

•  on 8 November 2021, you obtained a referral to a heart specialist for further advice; and

•  you maintain that you intend to get vaccinated.

I have carefully considered your response and advise that:

1. You have not met the requirements of the CHO Directions No. 55, specifically:

a. For the period starting on 13 November 2021 and ending on 24 December 2021, a worker who has not received the first dose of an approved COVID-19 vaccine must not attend the worker's workplace; and

b. Workers can attend the workplace without being vaccinated with an approved

COVID-19 vaccine if they provide evidence of a contraindication to all COVID-

19 approved vaccines (i. e. certificate issued by the Commonwealth, as required

by the CHO Direction).

2. There have been several advices provided to staff since 13 October 2021, outlining the COVID-19 vaccination requirements and timeframes under the CHO Directions;

3. While I acknowledge your health concerns, you make no mention of a pre-existing medical condition that would indicate a possible contraindication, nor have you provided the required Commonwealth approved medical certificate; and

4. As the Person Conducting a Business or Undertaking, I am responsible for implementing the CHO Directions.

Based on the reasons mentioned above, including your submission, I remain of the view that you cannot perform the inherent requirements of the duties you were employed to perform and therefore terminate your fixed period employment effective from the date of this letter, pursuant to section 33 of the Act.

DCDD Payroll Services will calculate your final entitlements to be paid out on your termination.

Available Support

…

Yours sincerely

Karen Weston
Chief Executive
26 November 2021”

[18] The matter was listed for Hearing by Microsoft Teams on 27 and 28 April 2022, with a further hearing date for final submissions by Microsoft Teams on 9 May 2022.

[19] Ms Renae Kumar of Counsel appeared for the Applicant at the Hearing. Mr Brian Mappas, Employee Relations Manager, Office of the Commissioner for Public Employment Northern Territory Government, appeared on behalf of the Respondent.

[20] The Applicant appeared and gave evidence on her own behalf. Ms Karen Weston, Chief Executive Officer of the Department of Education, and Ms Nektaria Pikoulos, Assistant Principal Dripstone Middle School appeared and gave evidence for the Respondent.

Statutory Provisions

[21] The relevant sections of the FW Act relating to an unfair dismissal application are:

“396 Initial matters to be considered before merits 

The FWC must decide the following matters relating to an application for an order under Division 4 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. 

381 Object of this Part 

(1) The object of this Part is: 

(a) to establish a framework for dealing with unfair dismissal that balances: 

(i) the needs of business (including small business); and 

(ii) the needs of employees; and 

(b) to establish procedures for dealing with unfair dismissal that: 

(i) are quick, flexible and informal; and 

(ii) address the needs of employers and employees; and 

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement. 

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned. 

Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95. 

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.

384 Period of employment 

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer atthat time as an employee. 

(2) However: 

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless: 

(i) the employment as a casual employee was on a regular and systematic basis; and 

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and 

(b) if: 

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and 

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and 

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised; the period of service with the old employer does not count towards the employee’s period of employment with the new employer. 

385 What is an unfair dismissal 

A person has been unfairly dismissed if the FWC 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. 

see section 388. 

387 Criteria for considering harshness etc. 

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 

(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.”

Applicant’s Submissions

[22] The Applicant’s Application was listed to be heard jointly with applications by three other employees of the Respondent who were also dismissed as a result of the CHO Direction No. 55 vaccination mandate. Accordingly, joint submissions were filed on behalf of the applicants by their legal representatives. The submissions as relating to Ms Gikas’s Application are summarised as follows.

CHO Direction No. 55

[23] The Applicant submitted that the CHO Direction No. 55 issued on 13 November 2021 relevantly provided:

a. at direction 6, that for the period between 13 November and 24 December, a worker who had not received the first dose of an approved COVID-19 vaccine must not attend their workplace;

b. at direction 7, that from 25 December 2021, a worker who had not received two doses of an approved COVID-19 vaccine must not attend their workplace;

c. at direction 8, despite Directions 6 to 7, a worker may attend their workplace without being vaccinated with an approved COVID-19 vaccine if the worker had evidence of a contraindication to all approved COVID-19 vaccines (Exemption);

d. at direction 9, the evidence required for direction 8 is satisfied by either (i) a medical certificate issued by a medical practitioner that certifies that the worker has a contraindication to all approved COVID-19 vaccines in accordance with the Clinical guidance on use of COVID-19 vaccine in Australia in 2021, or any success guidelines, issued by the Australian Technical Advisory Group on Immunisation (ATAGI) or (ii) a certificate issued by the Commonwealth that certifies that the worker has a contraindication to all approved COVID-19 vaccines (Evidence Requirement);

e. at direction 10, a person conducting a business or undertaking must ensure that any worker who performs work for the person does not attend the workplace contrary to directions 6 and 7;

f. at direction 11, that nothing in the Directions prevents a worker who is not vaccinated as specified in directions 6 and 7, or exempt from vaccination under direction 8, from working at a place where they, during the course of work, is not likely to come into contact with a vulnerable person or a person or thing that poses a risk of infection of COVID-19, and is not likely to be exposed to a high risk of infection with COVID-19;

g. at direction 12, that nothing in the Directions prevents a person conducting a business or undertaking from making reasonable adjustments to accommodate a worker who is not vaccinated as specified in directions 6 and 7.

[24] The Applicant submitted that on 10 November 2021, the Northern Territory Government amended direction 9 to provide that “The evidence required for direction 8 is a certificate issued by the Commonwealth that certifies that the worker has a permanent and temporary contraindication to all approved COVID-19 vaccines” (Amended Evidence Requirement).

The Applicant’s employment

[25] The Applicant submitted that she commenced working for the Respondent on 23 March 2020, in the full-time fixed term role of “Classroom Teacher” at Dripstone Middle School, teaching year 7, 8 and 9 Mathematics. This was the role the Applicant held at the time of her dismissal.

[26] The Applicant submitted that she had never been subject of any performance management or disciplinary action whilst employed in the Northern Territory public service from 1997 to 2002, and again from the start of 2021 until her termination.

The Applicant’s response to the Directions

[27] The Applicant denied being an “anti-vaxxer” and noted that members of her immediately family are vaccinated.

[28] The Applicant submitted that in October 2021, she received communications from the Respondent concerning the introductions of mandatory COVID-19 vaccinations for public sector workers in the Northern Territory. The Applicant submitted that she “personally welcomed this measure” and, on 2 November 2021, made an appointment to receive her first dose of the COVID-19 Pfizer vaccine. At that time, the Applicant was back-filling for another teacher who was on leave, however, the Applicant submitted that based on conversations with other employees of the Respondent, she believed that she would receive a new contract or permanent position with the Respondent through 2022.

[29] The Applicant submitted that on 4 November 2021, her sister received her first injection of the COVID-19 Pfizer vaccine and had a serious adverse reaction to the vaccine, being pericarditis, for which she was hospitalised on 6 November 2021. The Applicant submitted that as a result of this occurrence, she took over care for their 73-year-old mother who suffers from

serious mental health issues, and also took over care for her sister’s three young children, aged between three and eleven years.

[30] The Applicant submitted that on 9 November 2021, she sought medical advice concerning her sister’s serious adverse reaction and was advised by her doctor to seek the opinion of a cardiologist before receiving her first dose of a COVID-19 vaccine.

[31] The Applicant submitted that on 10 November 2021, she shared these matters with the principal and assistant principal of Dripstone Middle School, as well as her immediate supervisor, and applied for carers’ leave through the Respondent’s MyHR system. The applicant submitted that she informed the principal and assistant principal that if she was unable to obtain an appointment with a cardiologist within her two weeks of approved carers’ leave, she would be seeking a further period of leave. The Applicant’s evidence was that the assistant principal stated words to the effect that: she understood; the Applicant should keep her updated about the situation; and “I will put it on to your MyHR”.

[32] The Applicant submitted that she was afraid following her sister’s serious adverse reaction and in accordance with her doctor’s advice, cancelled her appointment to receive her first dose of the COVID-19 Pfizer vaccine pending the outcome of her consultation with a cardiologist.

[33] On 17 November 2021, the Applicant received confirmation of her appointment to receive an echocardiogram on 6 December 2021, a test she was required to undertake for the

purposes of a cardiologist consultation.

The dismissal

[34] On 15 November 2021, the Applicant received an email from a representative of the Respondent advising that the Respondent was considering terminating her contract as she had not yet entered her vaccination status into the MyHR system and was therefore noncompliant with the CHO Directions. The Applicant was given until 4 PM on 16 November 2021 to provide written submissions as to why her contract should not be terminated.

[35] The Applicant provided her response that same day, and noted that her response relevantly provided:

“By way of final submission, I confirm it is my intention to become vaccinated, and I would have had my first vaccine by 13 November 2021, but for the fact that my sister had a serious episode of pericarditis requiring one week’s hospitalisation following her first Pfizer injection on 4 November 2021. This has caused me to seek further medical opinion because I have my first shot. … I undertake to provide evidence of my vaccination or of my exemption from having a vaccination as soon as I am able to do so.”

(Applicant’s emphasis)

[36] The Applicant submitted that on 23 November 2021, she received an email advising that her contract was terminated because the Respondent had not received a reply or submissions from her as requested. The Applicant submitted that between 23 and 25 November 2021, she made numerous attempts to confirm with the Respondent that her submissions had been received. The Applicant submitted that she received confirmation from an employee of the Respondent that the submissions had been received but, inexplicably, unread.

[37] On 26 November 2021, the Applicant spoke to another employee of the Respondent, Ms Shirley Wilkshire, Director of Injury Management, and asked how her employment could have been terminated when her submissions had not been read. The Applicant stated that Ms Wilkshire said words to the effect of:

“The CEO has the submission. We had not received it. The CEO will reconsider the decision. In the meantime the termination is not valid and I will be asking payroll not to wind you up and put a stop to the termination until your submission in considered.”

[38] The Applicant submitted that on 13 December 2021, it came to her attention that two large deposits had been made to her bank account. She submitted that this prompted her to contact Ms Wilkshire as it appeared her employment had been terminated. The Applicant’s evidence is that Ms Wilkshire said that she would “get back to [Ms Gikas]” but never did so.

[39] The Applicant submitted that on 16 December 2021, she received an email attaching a letter informing her of the termination of her employment.

Impact of the dismissal on the Applicant

[40] The Applicant submitted that she is 52 years old and has four children between the ages of fifteen and nineteen who are financially dependent on her and her husband. The Applicant submitted that as her husband’s business was severely impacted by the COVID-19 pandemic, she had been the family’s primary income earner before her dismissal.

[41] Further, the Applicant submitted that she provides care to her sister who now suffers from pericarditis as a long-term disability, her sister’s three young kids, and her elderly mother who has mental health issues.

[42] The Applicant submitted that her dismissal has strained her and her family’s ability to meet their financial commitments, which has in turn placed additional financial burden and pressure on her husband.

Relevant Law

[43] The Applicant submitted, with reference to the relevant criteria in s.387 of the FW Act, where an employee is dismissed for ‘capacity’ reasons, the following principles apply: 1

a) Capacity cases based on medical opinions are different to misconduct cases. In capacity cases the employer is usually required to have regard to an expert opinion or opinions – not to make an independent assessment of what is essentially a medical question. In misconduct cases, an employer is required to make a finding of whether the employee engaged in the conduct concerned;

b) In an unfair dismissal case, the relevant factual matrix must be considered by the Commission. In a case where the reason for dismissal is misconduct the Commission must consider whether the conduct occurred based on the evidence before the Commission. In a case where the reason for dismissal relates to capacity, the Commission should have regard to the medical opinions at the time of the decision to dismiss;

c) The existence of a valid reason for termination based on capacity depends on whether the reason was sound, defensible and well founded – and not capricious, fanciful, spiteful or prejudiced - considered in the context of the object of ensuring a ‘fair go all round’;

d) It is appropriate to have regard to medical assessments that relate to the capacity to perform the full duties of the position;

e) It is also appropriate to have regard to whether reasonable adjustments may be made to a person’s role in order to accommodate any current or future incapacity. However, such consideration of what may be reasonable adjustments will be within the context of the substantive position or role, not as it may be modified or restricted in order to accommodate the employee’s injury;

f) The absence of a clear finding by an appropriate medical practitioner that the employee cannot perform the inherent requirements of the job will suggest that there is not a valid reason for termination based on capacity;

g) A decision based on the existence of a medical opinion that an employee cannot perform the inherent requirements of a job is suggestive of a valid reason because such a decision is sound, defensible and well founded.

s.387(a) – valid reason

[44] The Applicant submitted that there was no valid reason for her dismissal. The Applicant submitted that the Respondent’s reasons, allegedly based on the inability of the Applicant to perform the inherent requirements of her role, were either or both capricious or fanciful, particularly when considered in the context of the object of ensuring a ‘fair go all round’.

[45] The Applicant submitted that she was diligently taking steps to determine whether she had a medical contraindication to any or all COVID-19 vaccines and was therefore entitled to the exemption. In light of her sister’s serious adverse reaction, the Applicant submitted that it was reasonable and unsurprising that she was taking such steps. The Applicant submitted that the taking of such steps was consistent with the medical advice she received, and these steps were taken shortly and promptly after 4 November 2021, when her sister experienced the serious adverse reaction.

[46] The Applicant submitted that in her email to the Respondent on 15 November 2021, she undertook to provide evidence of either her vaccination or an exemption as soon as she was able to do so.

[47] Further, the Applicant submitted that there was no immediate danger or her attending at the workplace without either being vaccinated or having an exemption as she was on leave and had indicated that this would continue until the issue of her vaccination status was resolved.

s.387(b) and (c) – whether the Applicant was notified of the reason for dismissal and had an opportunity to respond

[48] The Applicant did not dispute that she was notified of the reason for her dismissal and provided an opportunity to respond.

s.387(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

[49] The Applicant submitted that as the Respondent did not arrange any discussions with her relating to her dismissal, this factor does not arise for consideration.

s.387(e) – if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal

[50] As the Applicant’s dismissal did not relate to unsatisfactory performance, this factor does not arise for consideration.

s.387(f) and (g) – the degree to which the size of the employer’s enterprise and the absence of dedicated human resource management expertise would be likely to impact on the procedures followed

[51] The Applicant submitted that the Respondent is a large organisation and had the benefit of dedicated human resources expertise. The Applicant submitted that the process and procedures followed by the Respondent in effecting her dismissal were procedurally unfair, noting that her submissions were not taken into account before the Respondent determined to dismiss her.

s.387(h) – any other matters

[52] The Applicant restated that she is not an anti-vaxxer. The Applicant submitted that she had genuine, good faith reasons for not receiving a vaccination against COVID-19 by the dates set out in the Directions.

[53] The Applicant submitted that the financial impact on her and her unblemished record are factors that go to the harshness of her dismissal.

[54] For the above reasons, the Applicant submitted that her dismissal was harsh, unjust or unreasonable.

Remedy

[55] The Applicant seeks an order for reinstatement to her employment with the Respondent, together with backpay to the date of her dismissal and continuity of service.

Respondent’s Submissions

[56] The Respondent submitted that Part 7, Employee Performance and Inability of the Public Sector Employment and Management Act (PSEM Act), Employment Instruction No. 6, Performance and Inability and Employment Instruction No. 3, Natural Justice set out the legislative regime for managing employees with inability or performance issues. The Respondent submitted that these provisions relevantly provide:

(i) There are inability or performance grounds for an employee if the employee is not able to perform the duties he or she is assigned to perform (whether because of physical or mental illness or disability or any other reason) (s44(1)(a)); or is not suited to perform, or capable of efficiently performing, those duties (s44(1)(b);

(ii) If a CEO or delegate is satisfied, on reasonable grounds, that there are inability or performance grounds (s44(2)), the CEO may:

a. take no further action (s46(1)(a));

b. order training counselling or other remedial activities (s46(1)(b)(i));

c. reduce the employee’s salary within the range applicable to the employee’s designation (s46(1)(b)(ii));

d. transfer the employee to perform other duties in the Agency or seek to transfer to another agency (s46(1)(b)(iii)); or

e. terminate the employee’s employment (s46(1)(c)).

(iii) If the suspected inability or performance grounds are of a sufficiently serious nature, the CEO may suspend the employee with or without pay pending a decision (s47);

(iv) an employee on suspension without pay may, during the suspension, take any long service leave or recreation leave the employee is entitled to (s47(5)(b)).

(v) natural justice must be afforded (the employee informed of any adverse information, provided with a reasonable opportunity to respond, the decision make to impartially consider the employees submissions prior to making a decision.

[57] The Respondent submitted that on 26 November 2021, following due process and consideration of the Applicant’s particular circumstances, the Applicant’s employment was terminated by the Chief Executive Officer of the Department of Education under s.46(1)(c) of the PSEM Act on the basis that she was not able to perform the inherent requirements of her job.

Why the dismissal was not harsh, unjust or unreasonable

[58] The Respondent addressed the criteria in s.387 of the FW Act as follows.

s.387(a) – valid reason

[59] The Respondent submitted that the Applicant’s dismissal was not harsh, unjust or unreasonable for the following reasons.

[60] The Respondent relied on the CEO’s Witness Statement which demonstrated there was a valid reason for the dismissal relating to the Applicant’s capacity to perform the inherent requirements of her job.

[61] The Respondent submitted that CHO Directions 55/81 were in place which in essence provided that if a worker fell within one of four categories they were precluded from attending work and their employer was precluded from allowing the worker to attend if they had not received an approved COVID-19 vaccine within specified times. An offence would be committed if the CHO Directions were breached.

[62] The Respondent submitted that the CEO had determined that all employees within the Department of Education fell within one of the categories of workers who were required to be vaccinated. At the relevant time, 13 November 2021, the Applicant had not received a first dose of an approved COVID-19 vaccination and had not provided acceptable evidence (as set by the CHO Directions) of a contraindication to the approved vaccines. The Respondent submitted that in accordance with the CHO Directions, the Applicant was therefore precluded from attending work and the CEO was precluded from allowing her to attend.

[63] The Respondent submitted that these circumstances resulted in the Applicant being unable to perform the inherent requirements of her job.

[64] The Respondent submitted that as the CEO determined that all jobs within the Department of Education fell within one or more of the categories specified by the CHO as requiring workers to be vaccinated, the CEO was unable to provide the Applicant with suitable alternative duties in a workplace that was not subject to the CHO Directions.

[65] The Respondent submitted that the Applicant was employed on a fixed period contract and was therefore not subject to the performance and inability provisions of Part 7 of the PSEM Act as these only apply to ongoing (permanent) employees. The Respondent submitted that the Applicant was managed in accordance with best HR practice and her termination was effected under s.33 of the Act.

s.387(b) and (c) – whether the Applicant was notified of the reason for dismissal and had an opportunity to respond

[66] The Respondent submitted that the Applicant was notified of the reasons for considering her dismissal and was provided an opportunity to respond. The Respondent also noted that following the CHO’s Direction issued on 13 October 2021, at least six notices were sent to all employees in the Department of Education between 13 October 2021 and 12 November 2021 advising of the CHO Direction, its requirements and its impact on employment.

[67] Following those general advices, the Respondent submitted that the Applicant received specific and detailed advice on 9 November 2021, 12 November 2021, 15 November 2021 and 26 November 2021.

s.387(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

[68] The Respondent submitted that there were no requests by the Applicant to meet to discuss her inability to comply and therefore the question of whether there was an unreasonable refusal by the employer to allow a support person to assist at any discussions relating to the dismissal does not arise.

s.387(e) – if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal

[69] The Respondent submitted that the Applicant’s dismissal did not relate to any unsatisfactory performance. The Respondent submitted that the dismissal arose because the Applicant chose not to be vaccinated and, consequently, was precluded from attending work and the CEO was not permitted to allow the Applicant to attend.

s.387(f) and (g) – the degree to which the size of the employer’s enterprise and the absence of dedicated human resource management expertise would be likely to impact on the procedures followed

[70] The Respondent submitted that whether the size of the employer’s enterprise impacts on the procedures followed and the degree of dedicated human resource management are not matters that the Respondent wishes to raise.

Addressing Applicant’s contentions

[71] The Respondent noted that the Applicants’ jointly filed Outline of Submissions referred to the case of Lion Dairy that dealt with an employee dismissed for medical ‘capacity’ reasons. The Respondent submitted that the citation by the Applicant draws the distinction between capacity based on medical opinions being different to misconduct cases. The Respondent agreed with that principle, and submitted that the PSEM Act establishes separate provisions for the management of discipline and for the management of inability/performance. The Respondent noted that in the extant cases, not being able to perform the inherent requirements of the job has arisen not out of any medical grounds, but out of the Applicant choosing not be vaccinated with an approved COVID-19 vaccine, and consequently being precluded from attending her workplace due to non-compliance with the CHO Directions. The Respondent submitted that Lion Dairy is not on point.

[72] In response to the Applicant’s Witness Statement and Submissions, the Respondent relied on the evidence set out in the witness statement of Ms Nektaria Pikoulos, Assistant Principal Dripstone Middle School.

[73] The Respondent submitted that the Applicant was on a fixed period contract of employment ending 27 January 2022. The Respondent noted that the Applicant states she believed she would receive a new contract or permanent position in 2022, however, the Respondent submitted that the Applicant could have had no such expectation.

[74] As to the Applicant’s submission that she had medical concerns that should have exempted her from any action to terminate her employment, the Respondent acknowledged the Applicant’s concerns, however, submitted that the Applicant did not provide any medical evidence indicating she had any pre-existing medical condition that would indicate a possible contraindication.

[75] The Respondent submitted that for all of the above reasons, the Applicant’s dismissal was not harsh, unjust or unreasonable.

Applicant’s Reply Materials

[76] The Applicant filed a Witness Statement in Reply in lieu of an Outline of Submissions in Reply. Her Witness Statement in Reply is summarised as follows.

[77] In reply to the CEO’s Witness Statement, the Applicant clarified that she did not have any vaccination appointments booked prior to 7 November 2021. Her first vaccination appointment was scheduled for 9 November 2021, three days before the cut-off date for her to be vaccinated, being 12 November 2021. The Applicant relied on her earlier submissions and evidence that for reasons including her sister’s severe adverse reaction, she did not proceed with this appointment and sought to obtain specialist advice from a cardiologist.

[78] The Applicant stated that on 28 January 2022, she attended a specialist appointment with Dr Marcus Ilton, Director of Cardiology at Royal Darwin Hospital in the Northern Territory. Dr Ilton advised her that given her sister’s pericarditis it was reasonable for her to have a cardiac assessment prior to receiving a Covid-19 vaccine. The Applicant stated that Dr Ilton also advised her that he had found no specific cardiac concerns which would preclude her from receiving an approved Covid-19 vaccine.

[79] The Applicant stated that following Dr Ilton’s advice, she did receive her first dose of the Novavax vaccine on 9 March 2022 and second dose on 1 April 2022. The Applicant stated that she is eligible for a booster dose of an approved Covid-19 vaccine on 22 July 2022 being 16 weeks after her second dose. The Applicant confirmed that she intends to book an appointment for the third dose as soon as possible, however, stated that her treating doctor is not currently taking vaccine appointments for July 2022 as it is too far away.

[80] In response to Ms Pikoulos’s Witness Statement, the Applicant stated that at the start of term 4 she raised the issue of whether her contract would be renewed several times with Ms Pikoulos. The Applicant stated that she “decided that [she] would continue to question Ms Pikoulos about the renewal of [her] fixed term contract until the issue was resolved and [she] had signed a new contract”. She stated that previously, she had been offered a new fixed term contract to sign before the end of the school year with the contract commencing at the beginning of the following year. Further, she stated that contract renewal discussions invariably occurred in term 4 of the school year as the school gets a better understanding of their needs for the following year.

[81] The Applicant’s evidence was that on or around 18 October 2021 (at the beginning of week 2 of term 4 2021) Ms Pikoulos said to her words to the effect of:

Ms Pikoulos: “Whether Beata comes back or not you will have work at Dripstone. You’re very highly valued and we don’t want to lose you.”

Me: “I’m sick of contracts. I deserve to be considered for permanency.”

Ms Pikoulos: “There will be some permanent positions available the following year. You are a strong candidate.”

[82] The Applicant stated that in late October 2021, she and Ms Pikoulos had a conversation which included words to the following effect:

Ms Pikoulos: “We want to keep you. There will be work for you here on a full-time basis even if it’s not a permanency.”

Me: “This so frustrating not being able to get a permanency given the fact I’m born and breed in this town.”

Ms Pikoulos: “I agree with you. This is just how the system is. There are too many people occupying positions on leave.”

[83] Further, she stated that in late October 2021 she raised the issue of being offered a permanent contract with Ms Pikoulos again, and Ms Pikoulos said words to the effect of:

“It is very likely that we will have work for you. You shouldn’t be too worried.”

[84] The Applicant stated that in mid-2021, she became aware that a colleague was initially offered a two-year contract rather than a one year contract. She stated that she raised this with Ms Pikoulos and their conversation included an exchange to the effect of:

Me: “Why was Tim given two years which gave him peace of mind and work security and I cant seem to score more than a year at a time. I’ve been teaching for longer. I’m in an area where maths is a core subject and qualified maths teachers are rare as hens teeth.”

Ms Pikoulos: “It’s two different faculties and two different sets of circumstances.”

[85] The Applicant stated that Ms Pikoulos advised her that sometime in term 4 Dripstone Middle School would know which positions needed to be filled and confirm whether she would be offered another fixed term contract.

[86] In November 2021, the Applicant was aware that there was one vacant permanent position within the maths faculty that required backfilling, Ms Beata Goodluck’s position, and another employees’ position in another faculty who had been seconded to another position within the Northern Territory Government or Education Department for several years.

[87] The Applicant discussed contract renewal with her line manager and maths faculty senior, Ms Margaret Vatskalis. The Applicant stated that she and Ms Vatsaklis had a conversation which included words to the following effect:

Me: “I want to remain at the School. It’s important that I’m offered another fixed term contract as I want to apply for permanency when the opportunity arises.”

Ms Vatskalis: “I’m very keen to have you remain working at the school. There’s a lot of value in having you remain.”

[88] As to the effect of the CHO Directions, the Applicant denied that she expressed any confusion about CHO Direction No.55. The Applicant’s evidence was that she understood that she was required to receive the first dose of an approved Covid-19 vaccination before 13 November 2021.

Remedy

[89] In correspondence to the Commission, the Applicant provided that while her application is for reinstatement to a maths teacher position at Dripstone Middle School, in the event the Commission does not find reinstatement to Dripstone Middle School appropriate, she would accept re-employment to a maths teacher vacancy, as identified by Mr Mappas, at Palmerston College.

Consideration

[90] I have taken into account all of the submissions that have been provided by the parties and I have attached the appropriate weight to the evidence of the witnesses. The fact that an issue is not mentioned in this decision does not mean that it has not been taken into account.

[91] When considering whether a termination of an employee was harsh, unjust or unreasonable, the oft-quoted joint judgement of McHugh and Gummow JJ in Byrne v Australian Airlines (Byrne) 2 is of significance:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[92] In analysing Byrne, a Full Bench of the Australian Industrial Relations Commission in Australian Meat Holdings Pty Ltd v McLauchlan (AMH) 3 held:

“The above extract is authority for the proposition that a termination of employment may be:

•  unjust, because the employee was not guilty of the misconduct on which the employer acted;

•  unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before the employer; and/or

•  harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct”.

[93] Further, a Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd 4 said:

“[24] 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”.

[94] I now turn to the criteria for considering harshness as provided in s.387 of the FW Act.

Section 387(a) – valid reason

[95] The meaning of the phrase “valid reason” has been universally drawn from the judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd: 5

“In broad terms, the right is limited to cases where the employer is able to satisfy the Court of a valid reason or valid reasons for terminating the employment connected with the employee’s capacity or performance or based on the operational requirements of the employer. …

In its context in s 170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that” the employer and employee are each treated fairly…”.

(My emphasis)

[96] In Rode v Burwood Mitsubishi, 6 a Full Bench of the Australian Industrial Relations
Commission held:

“… the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.”

[97] In Qantas Airways Ltd v Cornwall (Cornwall) 7 the Full Court of the Federal Court of Australia said:

“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”

[98] The evidence of the CEO is compelling. The CEO gave her evidence without fear or favour. I find the CEO to be a witness of credit. Relevantly, the CEO testified:-

“It was unfair of you to not give her the opportunity to seek that medical advice before making a decision; do you accept that?---I'll accept that and I imagine we'll make submissions about that which go to some of the other things I've talked about”.

[99] The CEO also testified that she was unaware the Applicant was on approved leave until she received her medical advice from the cardiologist:

“Were you aware that she had indicated to Dripstone Middle School that she would remain on leave until she could receive her medical advice?---I was not aware of that”.

[100] The CEO advised that the use of leave whilst waiting to be vaccinated was a decision for each school:

“Turning to Ms Gikas, earlier on there was a discussion about the use of leave and you had indicated that the decisions around the use of leave would be made by the managers of the schools?---Yes.”

[101] It is not in dispute that the Applicant was on approved carers leave and then approved personal leave until after she had seen her cardiologist on 28 January 2022.

Section 387(b) – Notified of the reason

[102] It is not in dispute that the Applicant was notified of the reasons for her termination.

Section 387(c) – Opportunity to respond

[103] The Applicant was given an opportunity to respond to the reasons for her dismissal.

Section 387(d) – Refusal of a support person

[104] The Respondent did not arrange a meeting with the Applicant, nor invite an opportunity for a meeting. As there were no physical meetings ahead of the Applicant’s termination, there was no opportunity or requirement for a support person to be present at any meeting.

Section 387(e) – Unsatisfactory performance

[105] There were no issues of unsatisfactory performance raised by the parties.

Section 387 (f) and (g) – Size of Enterprise and HR Staff – procedures followed

[106] The Respondent did not seek to make any submissions on these matters. It is noted that the Respondent is large employer.

Section 387(h) – Any other matters

[107] I have taken into account the confusion caused internally within the Respondent due to the Applicant being recognised by both her married and maiden names. This confusion was unfortunate, and difficult to comprehend in 2021. However, I accept the evidence of the CEO that she read the submission of the Applicant before deciding to terminate her employment.

[108] The CEO raised concerns that the Applicant cancelled her first appointment to receive her vaccine. Once again, this occurred due to poor or incorrect communication. The CEO testified that the appointment card obtained by the Applicant should have been accepted. 8 The Department should have investigated this issue rather than simply conclude that there was some sinister and predicated motive of the Applicant. The fact that the majority of the Applicant’s peers and colleagues had already complied with CHO Direction No. 55 does not, of itself, identify the Applicant as an anti-vaxxer or an employee who was not going to comply with the Direction.

[109] Taking Ms Pikoulos’s testimony at face value, I am satisfied that the Applicant would have been offered a 12-month contract for 2022 at Dripstone Middle School. The vacant role being filled by the Applicant in 2021 was that of Ms Goodluck (one of the joint applicants). The vacancy was continuing. The easy solution for the school was to simply continue with the good teacher they had in that role, being the Applicant. The role was eventually advertised and filled externally.

Conclusion

[110] Every employer and employee is entitled to a “fair go all round” in compliance with s.381 of the FW Act. I am of the view and find that the Applicant did not receive her statutory entitlement to this fair go. No employee should be terminated for following their doctors’ advice to get a specialist medical opinion – particularly when there is no chance of breaching the CHO Direction No. 55.

[111] I support the view of the CEO that it was unfair to the Applicant for the Respondent not to accept the Applicant’s excuse not to be vaccinated until after she had consulted with her cardiologist. Due to the time of year and the shortage of medical specialists in the Northern Territory, the delay in the Applicant’s specialist appointment was understandable.

[112] The Applicant’s termination also occurred without appropriate consultation between the Department and the management at Dripstone Middle School. Had any consultation occurred, then the Department would have been aware that the Applicant was on approved leave for the duration of the term and there was absolutely zero chance of the Applicant, or the School, breaching CHO Direction No. 55.

[113] On the basis that the Applicant was on approved leave until the end of the school term, and that even the CEO now concedes that it would have been fair for the Applicant to see her cardiologist before receiving a COVID-19 vaccine, I find that the Respondent did not have a valid reason to terminate the Applicant. The decision to terminate was indefensible and lacked common sense.

[114] I am satisfied that there are no issues that have been raised by the parties in relation to s.387(b)-(h) of the FW Act of such significance which could overturn my finding that the Respondent did not have a valid reason to terminate the Applicant.

[115] For the reasons stated above, I am satisfied that the Applicant’s termination was harsh and unfair.

Remedy

[116] Having found that the Applicant has been unfairly dismissed, I now turn to the issue of an appropriate remedy.

[117] I have taken into account the submissions from the parties in relation to what is an appropriate remedy.

[118] The relevant provisions of the FW Act in relation to a remedy for an unfair dismissal are:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

“391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[119] In Perkins v Grace Worldwide (Aust) Pty Ltd (Perkins), 9 the Full Court of the Industrial Court said:

“Trust and confidence is a necessary ingredient in any employment relationship. … So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee’s employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court’s finding on that question in the resolution of an application under Di 3 of Pt VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee.

… It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.

It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee’s employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer’s own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.” 10

(My emphasis)

[120] In Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter (Nguyen), 11 a Full Bench of the Commission conveniently summarised this issue:

“The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:

•  Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.

•  Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.

•  An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.

•  The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.

•  The fact that it may be difficult or embarrassing for an employer to be required to reemploy an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate. Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.” 12

Consideration

[121] The Applicant seeks the primary remedy under the FW Act of reinstatement.

[122] It is not in dispute that there were no performance issues associated with the Applicant’s employment with the Respondent. The only issue appears to be a lack of appropriate communication. The Applicant is an experienced and respected maths teacher. The Applicant seeks to continue her career in the Department. I can see no reason why reinstatement is not the appropriate remedy in this situation. Quality maths teachers are a scarce resource throughout Australia. It would be unfair to penalise the Applicant from working for the major employer in the education sector in the Northern Territory simply because she followed her doctor’s advice.

[123] The Applicant has modified her position since the Hearing and has now agreed to accept the role at Palmerston College for Term 3 in 2022. A role will need to be found for the Applicant for Term 4.

[124] The Applicant’s claim for backpay and continuity of service is a difficult matter. As a result of a conscious, yet quite understandable decision of the Applicant to wait for the Novavax vaccine, the Applicant was not able to comply with CHO Direction No. 55 until 1 April 2022. As a result, that is the only date that the Commission can realistically award backpay to in relation to this application. Had the Applicant taken immediate steps following her cardiologist’s advice to be vaccinated with AstraZeneca or Pfizer, the backpay would have been awarded to that date.

[125] The Applicant is also entitled to be paid until the expiration of her previous contract, ie 27 January 2022. The Applicant was on approved leave up until the end of term. Approved leave counts as time worked. I am of the understanding that this quantum may only be 5 days, but I have not been advised by the Respondent of the precise amount. A further Hearing can be conducted to clarify the amount if an agreement between the parties cannot be reached.

[126] For the sake of calculating the Applicant’s long service leave entitlements, I am satisfied that the Applicant would have received a new contract for 2022 at Dripstone. As a result, the Applicant’s service should continue for the calculation of long service leave accrual as if such a contract was in place.

Conclusion

[127] Based on the evidence of Ms Pikoulos, I am satisfied that the Applicant would have received a 12-month contract at Dripstone for 2022 had she complied with CHO Direction No. 55 in November 2021. The Applicant had good and cogent medical reasons for not doing so, a fact now accepted by the CEO. As a result, the primary remedy under the FW Act is appropriate in this circumstance.

[128] In accordance with s.391(1) of the FW Act, I Order that the Applicant be reinstated. Obviously, it is still a requirement on the Applicant to comply with the mandated third dose of an approved COVID-19 vaccine, which is required by 21 July 2022.

[129] At the time of the hearing there was an identified vacancy at Palmerston College, which the Applicant has since indicated she would accept. If this identified vacancy still exists, I Order the Applicant to be appointed to that role. If that identified vacancy is no longer available, then the parties should advise the Commission and alternate orders will be made.

[130] In relation to backpay, in accordance with s.391(3) of the FW Act, I Order:

a) that the Applicant be paid up until the expiry of her contract on 27 January 2022; and

b) that the Applicant backpaid to the date of her second vaccination, 1 April 2022. This payment should be made by the Department and continue until the Applicant’s new placement.

[131] In accordance with s.391(2) of the FW Act, I Order continuity for the purpose of long service leave from 28 January 2022 and from 1 April 2022 for all other purposes.

[132] I so Order.

COMMISSIONER

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 1   Lion Dairy and Drinks Milk Limited v Norman [2016] FWCFB 4218 at [25].

 2   (1995) 185 CLR 410.

 3   (1998) 84 IR 1.

 4   [2000] AIRC 1019.

 5   (1995) 62 IR 371.

 6   PR4471.

 7   (1998) 84 FCR 483.

 8   Transcript at PN208.

 9   (1997) 72 IR 186.

 10   Ibid at 191-2.

 11   [2014] FWCFB 7198.

 12   Ibid at [27]-[28].