[2022] FWC 1135 [Note: An appeal pursuant to s.604 (C2022/3971) was lodged against this decision - refer to Full Bench decision dated 7 October 2022 [[2022] FWCFB 185] for result of appeal.]
FAIR WORK COMMISSION

DECISION


FairWorkAct 2009
s.394 - Application for unfair dismissal remedy

Ms Beata Goodluck
v
The Commissioner for Public Employment
(U2021/12288)

COMMISSIONER RIORDAN

SYDNEY, 16 JUNE 2022

Application for an unfair dismissal remedy

[1] On 24 December 2021, Ms Beata Goodluck (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 16 December 2021 on the basis that she was not able to perform the inherent requirements of her job. 

[2] The Applicant was employed by the Northern Territory Department of Education from January 2004 until her dismissal on 16 December 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 an order for compensation.

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 COVID-19 Directions (No. 55) 2021 (CHO Direction No. 55) came into effect 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 and 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 riot 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. 

[12] On 19 November 2021, Ms Robyn Thorpe, Principal of Dripstone Middle School, wrote to the Applicant by email as follows:

“Hi Beata

Thank you for coming in to discuss your return to work and the Mandatory Covid Vaccine for all school employees on Tuesday 9th November.

I wanted to touch base to see whether or not you have made any decisions in regard to returning to work and the conditions to meet the Mandatory Vaccine timeframe.

As discussed, if you are to return to work on 1st December, you will need to be vaccinated and your vaccination status will need to be put into MYHR. This is then approved by Nektaria and myself once we have sighted your vaccination certificate.

If nothing is entered into MYHR by the 30 November, then you will be unable to attend the workplace on December 1st.

We would appreciate any decisions you have made by next Wednesday 24th November or earlier if possible.

This would help assist us in making staffing plans for the rest of the year and for 2022.

Thanks
Robyn”

[13] The Applicant responded by email on 23 November 2021, stating:

“Hello Robyn,

Sorry, I just noticed your email. I was not checking it for a few days.

Yes. I understand.

I am booked to have my first dose this Friday.

I will email you the documentation after this is done.

Kind regards
Beata”

[14] On 26 November 2021, the CEO wrote to the Applicant directing her to provide vaccination information:

“Dear Beata

RE: DIRECTION TO PROVIDE VACCINATION INFORMATION

On 13 October 2021 the Northern Territory Chief Health Officer (CHO) by CHO Directions No. 55 of 2021 (CHO Directions No. 55) set out directions for the requirement of mandatory vaccination of workers to attend the workplace.

To comply with CHO Directions No. 55 and provide appropriate duty of care to students, young children, staff and all visitors to education facilities, I have directed all employees of the Department of Education (the department) that they are required to:

a. Record their COVID-19 vaccination status in myHR; and

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

I note that you have been on a period of extended leave from the department and may not yet be aware of this information and the broader application of CHO Directions No. 55 in the department.

This letter serves as your official notification of your requirement to comply with the mandatory vaccination requirements outlined in the CHO Directions No. 55.

Direction to provide evidence

In accordance with CHO Directions No. 55 and my duty of care to all workers and other persons entering the department’s workplaces, I direct that prior to returning to the workplace (and if you haven’t already) you must provide me with verification of:

1. a completed vaccination appointment slip, a medical certificate or an Australian immunisation history statement; or

2. a digital or paper-based COVID-19 vaccination certificate from the Australian Immunisation Register, for full vaccination.

If you have a medical exemption from receiving all approved COVID-19 vaccines then you must provide a certificate issued by the Commonwealth that certifies that you have a contraindication to all approved COVID-19 vaccinations.

If you do not provide evidence of vaccination status or a medical exemption before you return to work you must not attend your workplace until such time as you can comply with CHO Directions No. 55. If you fail to comply with CHO Directions No. 55 within 14 days from the date in which you are due to return to work, I may decide to take action in relation to your employment under the Public Sector Employment and Management Act 1993 (the Act).

If you remain non-compliant with CHO Directions No. 55 and I decide to take action in respect to your employment under the Act, I will write to you and outline my intentions.

Further Information and Available Support

If receiving this notice and dealing with the issues it raises is difficult for you, you may seek support. Employee Assistance Program (EAP) has a range of confidential and professional counselling services available to access if required. You may also wish to seek advice and assistance from your union.

…

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

Yours sincerely

Karen Weston
Chief Executive
26 November 2021”

(My emphasis)

[15] Between 26 and 27 November 2021, the Applicant and Ms Thorpe exchanged the following email correspondence:

“Hi Robyn,

I am sick. So, I will not be at work on Monday.

I tried to send you my medical certificate but my scanner did not work.

I will send it asap.

My medical certificate is up to Monday to be reviewed.

I will not be able to put this on myHR as I do not have a work computer.

Could Nektaria please put it in?

Kind regards
Beata Goodluck”

…

“Hi Beata

Thank you for that. You are not due back at work until Wednesday.

Let me know if you are still unwell by Tuesday.

Before you come back you will also need to be vaccinated. Let me know when you have had your vaccination so that it can be entered into MyHr before you return. This is a department requirement.

Thanks
Robyn”

…

“Hi Beata

Apologies for the misinformation but you are due back at work on Monday.

Nektaria won’t be able to put your leave into MYHR without sighting the certificate.

She will need to receive your vaccination status providing evidence that you have received the first dose.

Until you can provide this we are unable to approve your sick leave.

Regards

Robyn”

…

“Hi Robyn,

I can receive vaccination when I am sick. No doctor will give it to me.

Kind regards
Beata”

[16] The Applicant provided a medical certificate dated 25 November 2021, which stated that she was unfit for her normal work from 25 November to 29 November 2021 inclusive.

[17] The Applicant provided a further medical certificate dated 29 November 2021, which stated that she was unfit for her normal work from 29 November to 3 December 2021 inclusive.

[18] On 2 December 2021, the CEO wrote to the Applicant as follows:

“Dear Ms Goodluck

RE: INABILITY TO PERFORM DUTIES — FAILURE TO UPDATE COVlD-19 VACCINATION STATUS IN MYHR

I am writing to you, pursuant to section 44 of the Public Sector Employment and Management Act 1993 (the Act), to advise you that l suspect that there are "inability or performance grounds" which exist in respect to your employment.

In particular, with reference to sections 44(1) (a) and (b) of the Act, I suspect that you are not able and/or not suitable to perform the duties assigned to you.

Particulars

The basis upon which I suspect there may be inability and performance grounds for your employment are as follows:

Chief Health Officer Directions (No. 55) 2021

Direction to Advise Vaccination Status

As you are not able to perform your duties, I have reasonable grounds to suspect that there are inability and performance grounds in relation to your employment because:

1. you are not able to perform the duties assigned to you — for section 44(1)(a) of the Act; and/or

2. you are not suited to perform the duties assigned to you — for section 44(1)(b) of the Act.

Suspension Pending Investigation

On the basis of the material set out above, I am of the opinion that the suspected inability or performance grounds are of such a serious nature that you should not perform the duties you have been assigned to perform pending the making of a final decision. Pursuant to section 47 of the Act I foreshadow an intention to suspend you from duty, without remuneration, until the suspension ceases in accordance with section 47(4) of the Act.

Opportunity to respond

However, before I make any decisions pursuant to section 44 and 47 of the Act, I invite you to make submissions to me as to whether you believe there are reasonable grounds for me to be satisfied that you are unable to or not suited to perform your duties, and on whether you consider it is appropriate that you be suspended from duty without remuneration. Your submissions should be made in writing and must reach me no later than 4pm Monday 6 December 2021. Please ensure your response is copied to [redacted] if you are responding via email.

In making your submissions you should also be aware that if, after considering your comments, I am satisfied that you are unable to or not suited to perform your duties, then I may foreshadow such action as l consider appropriate under section 46 of the Act, Remedial action. I have accordingly enclosed a copy of part 7 of the Act for your information.

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 Directions No. 55,

•  Part 7 of the Act;

•  Employment Instruction No.3 - Natural Justice; and

•  Employment Instruction No. 6 — Performance and Inability.

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

I appreciate that receiving this notice and dealing with the issues it raises may be difficult. If you would like support, the Employee Assistance Program (EAP) has a range of confidential and professional counselling services that I encourage you to access. You may also wish to seek advice and assistance from your union

…

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

Yours sincerely

Karen Weston
Chief Executive
2 December 2021”

(My emphasis)

[19] The Applicant provided her written response on 6 December 2021 as follows:

“Response to Ms Karen Weston, CEO of Education Department

Re: “INABILITY TO PERFORM DUTIES” letter 2nd of December 2021 - Interim Response

1. I received your letter dated the 2nd of December 2021 (last Thursday), regarding “INABILITY TO PERFORM DUTIES – FAILURE TO UPDATE COVID-19 VACCINATION STATUS IN MYHR” in which you requested a response by today (Monday) the 6th of December 2021.

2. I am currently on sick leave with a medical certificate, and I have submitted two medical certificates to Principal Robyn Thorp (Dripstone MS) on the 27th of November 2021 and on the 29th of November 2021.

3. Expecting a response in 2 business days while I am unwell and on sick leave, is unreasonable and insufficient time to expect a reasonably considered response to your advice that you, "suspect that there are “inability or performance grounds”.” (First sentence of your letter dated 2 dec 2021)

4. Prior to 29th of November 2021 I has on unpaid leave which was from 12th of March 2021 to the 29th of November 2021. During this time, I had no access to MYHR as my work laptop was handed in on the 12th of March 2021 to Dripstone MS IT staff, as requested.

5. I was off work, and I did not have access to MYHR.

6. Upon returning to work, when I am well enough, I presume I will once again have access to MYHR.

7. When I am not sick and can seek advice and attend to your letter more competently, I will give you a fuller response.

8. Your proposed course of action falls short of natural justice requirements if you proceed before receiving a fuller response from me when I can return to work from sick leave.

9. I suggest that it would be more reasonable to allow more time for me to recover from my illness and await my official response, before you proceed with any course of action including those alluded to in your letter of last Thursday, which appears to fall short of natural justice principals, and regulations in several respects which require more time than 2 working days whilst sick to elucidate.

10. Please allow 14 days for a reasonable response time.

11. I attach a current sickness certificate from my doctor.

Sincere Regards

Beata Goodluck

Attachment: Medical Certificate”

[20] The Applicant attached to this correspondence a medical certificate dated 6 December 2021, which provided that she was unfit for her normal work from 6 December to 10 December 2021 inclusive.

[21] The Applicant was suspended from duty without remuneration on 8 December 2021:

“Dear Ms Goodluck

RE: Notice of suspension from duty without remuneration

I refer to my letter dated 2 December 2021 in which I invited you to respond to why you should not be suspended from duty without remuneration, under section 47 of the Public Sector Employment and Management Act 1993 (the Act) in relation to the following inability and performance grounds:

•  that you are not able to perform the duties assigned to you — for section 44(1)(a) of the Act; and/ or

•  that you are not suited to perform the duties assigned to you — for section 44(1)(b) of the Act.

I have now carefully considered the material before me, including your response received on 7 December 2021 in which you advised that:

•  Expecting a response in two days while you are on personal leave is unreasonable and insufficient time;

•  You are currently on personal leave supported by medical certificates.

In accordance with section 47 of the Act I have decided to suspend you from duty without remuneration as I am of the opinion that, because you have failed to update your COVID-19 vaccination status in myHR and you do not have a contraindication to all approved vaccines:

•  you are not permitted to enter your workplace;

•  I must not permit you to enter your workplace;

•  you are unable to perform the duties assigned to you, until such time as you can comply with CHO Direction No.55 of 2021; and

•  no alternative duties are reasonably available.

Your suspension will take effect immediately from the date of this letter and will remain in place pending the making of a final decision in relation to the suspected inability and performance grounds. You may wish to use your recreation leave or long service leave entitlements during this period.

If you want to make a further submission in respect to the particulars as outlined in my previous correspondence, please do so by 4:00pm Friday 10 December 2021, to [redacted].

My previous directions to you continue to apply.

Available Support

…

Yours sincerely

Karen Weston
Chief Executive
8 December 2021”

[22] The Applicant responded by email on 10 December 2021, providing:

“Hello Karen,

I am unable to perform my duty due to medical condition.

I will respond fully when I am better.

Thank you for your understanding.

Kind Regards
Beata Goodluck”

[23] The Applicant provided a medical certificate dated 10 December 2021, which stated that she was unfit for her normal work from 10 December to 17 December 2021 inclusive.

[24] The CEO wrote to the Applicant on 13 December 2021 as follows:

“Dear Ms Goodluck

RE: INABILITY TO PERFORM DUTIES- CHO DIRECTIONS NO.55 OF 2021.

I refer to my letter dated 2 December 2021 in which I advised you that I had reasonable grounds to suspect that there were inability and performance grounds in relation to your employment, under section 44(1) of the Public Sector Employment and Management Act 1993 (the Act).

My letter invited you to make submissions as to whether you agreed with my suspicion and provide me with any other comments you wished in relation to the matters particularised in that letter.

I acknowledge receipt of your submission on 6 December 2021, in which you:

•  State that you are unable to perform your duty due to your medical condition and you will respond fully when you are better.

After considering all of the information and evidence, I now make the following findings.

1. I acknowledge your medical certificates of:

a. 25 November 2021 to 29 November 2021

b. 29 November 2021 to O3 December 2021

c. 06 December 2021 to 10 December 2021

2. You accessing personal leave does not prohibit me from taking action as long as the action is not being taken because you are on personal leave. I am taking action because you have not met the CHO Directions;

3. I reaffirm that the period of suspension without remuneration from 8 December 2021 continues;

4. Because you have not received the first dose of an approved COVlD-19 vaccine, Directions 6 and 10 of CHO Directions No. 55 of 2021 require that you must not attend your workplace, and I must not allow you to do so;

5. I am not able to provide you with suitable alternate duties in a workplace that is not subject to CHO Directions No.55 of 2021;

6. As a consequence, I am satisfied on reasonable grounds that there are inability and performance grounds for your employment because:

a. you are not able to perform the inherent duties of your position (for a reason other than physical or mental illness or disability) — under section 44(1)(a) of the Act; and/or

b. you are not suited to perform the inherent duties of your position — under section 44(1)(b) of the Act/or;

Proposed remedial action

Having found that there are inability and performance grounds in relation to your employment, as set out above, I must now consider what is reasonable and appropriate remedial action in the circumstances and in light of the actions available to me under section 46(1) of the Act.

As you have not received an approved COVlD-19 vaccination none of the options available under sections 46(1)(a) to 461(b)(ii) of the Act (including training, reduction in salary, or transfer to alternate duties) will remedy your inability to attend the workplace to perform your duties.

As no other reasonable and appropriate remedial actions are available to me, I consider that the only reasonable and appropriate action available to me is to terminate your employment under section 46(1)(c) of the Act.

However, before l take that remedial action, I invite you to submit to me in writing any reasons why I should not terminate your employment.

Your written submission, if any, must reach me by the 4pm Wednesday 15 December 2021. If no response is received within this time, I will make final decision based on the material I currently have.

Available support

…

Yours sincerely

Karen Weston
Chief Executive
13 December 2021”

[25] The Applicant wrote to the CEO by email on 25 December 2021 stating:

“Hello Karen,

Thank you for your letter.

I noticed that the medical certificate that I have included above is not included in your letter.

Kind Regards
Beata Goodluck”

[26] The Applicant further wrote to the CEO on that same date by email stating:

“Hello Karen,

I will respond properly to your letters when I am better.

Kind Regards
Beata Goodluck”

[27] On 16 December 2021, Ms Susan Bowden, Acting Chief Executive, wrote to the Applicant terminating her employment:

“Dear Ms Goodluck

RE: Termination of Employment — Inability to Perform Your Duties

I refer to Karen Weston’s letter dated 13 December 2021 in which she advised you of her findings that there were inability and performance grounds in relation to your employment, under sections 44(1)(a) and 44(1)(b) of the Public Sector Employment and Management Act 1993 (the Act).

The letter also foreshadowed an intention to terminate your employment in the NT Public Sector, under section 46(1)(c) of the Act, and invited you to make submissions as to why this action should not be taken.

I have carefully considered all the evidence available to me, including your response received on Wednesday 16 December 2021 and your submissions that you will respond properly to the letter when you are better.

Having given the matter careful consideration, I maintain my earlier findings that because:

1. you have not received the first dose of an approved COVID—19 vaccine, Directions 6 and 10 of CHO Directions N0. 55 of 2021 require that you must not attend your workplace, and | must not allow you to do so;

2. an absence from the workplace due to personal leave does not excuse you from meeting the requirements of the CHO Directions;

3. COVlD-19 vaccination appointments are readily available and bookings can be made on the day;

4. To date, you have not provided an exemption that indicates a contraindication and complies with the requirements of the CHO directions;

5. I am not able to provide you with suitable alternate duties in a workplace that is not subject to CHO Directions No.55 of 2021;

you are not able to perform the inherent requirements of your duties, under section 44(1)(a) of

the Act, and/or you are not suited to perform the inherent requirements of your duties, under section 44(1)(b) of the Act.

Remedial Action

As you have not provided evidence that you have received the first dose of an approved COVlD-19 vaccine I remain satisfied, on reasonable grounds, that the only reasonable and appropriate remedial action available to me is to terminate your employment under section 46(1)(c) of the Act.

Notice of Termination

Pursuant to section 46(1)(c) of the Act, I hereby terminate your employment in the NT Public Sector with effect from the date of this letter.

In accordance with section 117 of the Fair Work Act 2009 you will receive a payment in lieu of being given notice of termination.

Under section 59A of the Act you may appeal against my decision. Any appeal must be lodged within 14 days after you receive this letter with:

[redacted]

If you would prefer, you may wish to make make (sic) an unfair dismissal application to the Fair Work Commission. More information is available at:

…

As previously advised, the Employee Assistance Program is available to you. These services are completely confidential.

If you have any questions about this matter please do not hesitate to contact Workforce Services

on via email: [redacted].

Yours sincerely

Susan Bowden
A/Chief Executive
16 December 2021”

[28] 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.

[29] 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.

[30] 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

[31] 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.   

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

[32] 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 Goodluck’s Application are summarised as follows. 

[33] 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.

[34] 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

[35] The Applicant commenced working for the Respondent in or around January 2004. The Applicant submitted that at the time of her dismissal, she was employed in the role of “Classroom Teacher” at Dripstone Middle School.

[36] The Applicant submitted that although she been the subject of an informal performance management process in 2020, she had never been subject of any disciplinary action in her approximately 18 years of service with the Respondent.

The Applicant’s response to the Directions

[37] The Applicant denied being an “anti-vaxxer” and submitted that she supports vaccination efforts against COVID-19 and is now herself vaccinated against COVID-19.

[38] The Applicant submitted that between March 2021 and 26 November 2021, she was on a period of unpaid study leave in order to complete her Psychological Science Degree, and intended to return to work on 29 November 2021, as agreed with the principal of Dripstone Middle School. The Applicant submitted that, due to the demands of her studies, when the second semester of 2021 concluded, she was exhausted and became unwell.

[39] The Applicant submitted that she decided to receive her first dose of COVID-19 Pfizer vaccine after the completion of her final exam for the second semester of her degree on 26 November 2021 and arranged to receive her first dose of the COVID-19 Pfizer vaccine on that date. However, she submitted that on 25 November 2021 she contracted a respiratory disease and became unwell. The Applicant submitted that as she could not attend her vaccination appointment with respiratory symptoms, she postponed her appointment.

[40] The Applicant attended a doctor’s appointment and received medical certificates that certified that she was unable to attend work from 25 November to 17 December 2021.

The dismissal

[41] On 2 December 2021, the Applicant received an email from the CEO notifying her that as she had not provided proof of her vaccination status in accordance with the Directions, she may be suspended from her employment, and invited her to make submissions in response by 4 PM on 6 December 2021.

[42] The Applicant provided her response on 7 December 2021, stating that she had had insufficient time to respond in circumstances where she was on personal leave supported by medical certificates. The Applicant requested 14 days to recover from her illness, seek advice and then respond. The Applicant submitted that she also identified that she did not have access to MyHR.

[43] On 8 December 2021, the CEO emailed the Applicant advising that the Respondent had determined to suspend her from duty without pay due to her failure to update her vaccination status in MyHR.

[44] On 13 December 2021, the CEO emailed the Applicant inviting her to show cause why her employment should not be terminated by 4 PM on 15 December 2021.

[45] On 15 December 2021, the Applicant responded with a medical certificate for the period

from 10 December to 17 December 2021, and stated that she would respond to the CEO’s email when she was well enough to do so.

[46] On 16 December 2021, the Acting CEO emailed the Applicant notifying her that her employment had been terminated.

Impact of the dismissal on the Applicant

[47] The Applicant submitted that she is experiencing emotional and financial distress as a result of the dismissal. In particular, the Applicant noted that she has a dependent teenage daughter with disabilities and is struggling to meet financial commitments relating to her daughter’s wellbeing.

Relevant Law

[48] 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

[49] 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’.

[50] The Applicant submitted that she had every intention to comply with the Directions but was unable to do so due to contracting a respiratory illness. The Applicant submitted that this intention can be ascertained by the fact that she is now vaccinated against COVID-19.

[51] Further, the Applicant submitted there was no immediate danger of her attending at the workplace without either being vaccinated or having an Exemption as she was on leave until 17 December 2021.

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

[52] 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

[53] 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

[54] As the Applicant’s dismissal purportedly related to capacity reasons, 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

[55] The Applicant submitted that the Respondent is a large organisation and had the benefit of dedicated human resources expertise.

s.387(h) – any other matters

[56] 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.

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

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

Remedy

[59] The Applicant seeks an order for compensation.

Respondent’s Submissions

[60] 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 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.

[61] The Respondent submitted that on 16 December 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

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

s.387(a) – valid reason

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

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

[65] 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.

[66] The Respondent submitted that the CHO 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.

[67] The Respondent submitted that these circumstances resulted in the Applicant being unable to perform the inherent requirements of her job, and falling within section 44 of the Act, Inability and performance.

[68] 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.

[69] The Respondent submitted that having found that there were inability or performance grounds for the Applicant, the actions available to the CEO under s.46(1) of the PSEM Act included taking no further action, ordering training or counselling or other remedial activities, reducing pay, transfer or termination. The Respondent submitted that in circumstances where the Applicant was not vaccinated by the relevant dates specified by the CHO Directions, and unable to be placed in alternate duties where the CHO Direction did not apply, the CEO had no alternative but to terminate the Applicant’s employment.

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

[70] 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.

[71] Following those general advices, the Respondent submitted that the Applicant received specific and detailed advice on 19 November 2021, 26 November 2021, 2 December 2021, 8 December 2021, 13 December 2021 and 16 December 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

[72] The Respondent submitted that there were no requests by the Applicant to meet to discuss her inability proceedings 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

[73] 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

[74] 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 Applicants’ contentions

[75] 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 under the CHO Directions. The Respondent submitted that Lion Dairy is not on point.

[76] In response to the Applicant’s Witness Statement and Submissions, the Respondent noted that the Applicant submits she contracted a respiratory disease and became unwell, and therefore could not receive the COVID-19 vaccine. The Respondent submitted that in response to the CEO’s letters to the Applicant about the inability grounds, the Applicant submitted a response dated 7 December and a number of medical certificates simply stating that she was ‘unwell’. The Respondent submitted that there was no mention of a respiratory disease in the letter or the medical certificates nor that the Applicant would need to overcome this disease before she could receive the vaccine. Further, the Respondent submitted that the Applicant did not provide any evidence of any booking(s) to receive the vaccine.

[77] The Respondent further submitted that the Applicant’s final medical certificate was from 10/12/21 to 17/12/21, and that she has indicated she received the first dose of the Novavax vaccine on 21 February 2022, being some 11 weeks after that time.

[78] The Respondent submitted that the evidence provided demonstrates the Applicant’s dismissal was not harsh, unjust or unreasonable.

Applicant’s Reply Witness Statement

[79] 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. 

[80] In response to the CEO’s statement, the Applicant stated that neither the CEO nor any employee of Dripstone Middle School requested that she provide evidence of the appointment she had booked to receive the COVID-19 vaccine.

[81] The Applicant stated that in preparing her reply statement, she contacted Care Point Medical Centre and requested a list of previous appointments she had booked. However, Care Point Medical Centre advised that they do not keep a record of appointments that are booked and cancelled before the reminder text message is sent. The Applicant stated that as she booked the vaccine appointment on 23 November 2021 and cancelled it before she received the reminder text message on 25 November 2021, she did not have a record of her appointment booking.

[82] The Applicant did not recall meeting Ms Robyn Thorpe on 9 November 2021. The Applicant accepted that a meeting took place on or around 23 November 2021, during which she stated that she and Ms Thorpe had a conversation including words to the following effect:

Ms Thorpe: “You have to be vaccinated.”

Me: “I know.”

Ms Thorp: “You probably need to get vaccine by 26 November to give them enough time to upload the vaccine certificate.”

Me: “Yeah I’m going to.”

[83] The Applicant stated that following this meeting, she booked an appointment at Care Point Medical Centre to receive the Pfizer vaccine.

[84] The Applicant denied stating that she was going to wait for the Novavax vaccine. The Applicant noted that on 23 November 2021 the Novavax vaccine was not available and there was no information as to when it would be made available. The Applicant stated that she planned to receive the Pfizer vaccine at that time.

[85] The Applicant stated that on or around 25 November 2021 she contracted a respiratory illness, being a cold. She stated that neither the CEO nor any employee of Dripstone Middle School requested further information about the respiratory illness she was suffering from.

[86] The Applicant stated that on that same day, she saw her treating doctor, Dr Aechoor, at Care Point Medical Centre to seek medical advice before her vaccine appointment the following day. The Applicant’s evidence was that she and Dr Aechoor had a conversation which included words to the following effect:

Me: “I have to be at work on 29 November 2021 and I have to be vaccinated but I am unwell. I think I have a cold.”

Dr Aechoor: “You can’t get vaccinated. You can’t get a vaccine whilst your sick and have a cold. It’s one of the questions on the pre-vaccine questionnaire. If you have any respiratory illness then you can’t be vaccinated. If you do, you have to cancel the appointment.”

Me: “Yeah I will.”

Dr Aechoor: “I have to give you a medical certificate for a few days. If your not feeling any better come and see me. If your feeling better then come and book for your vaccination.”

Me: “I’m not working now.”

Dr Aechoor: “I’m going to give it you anyway from 25 November to 29 November.”

[87] Dr Aechoor provided the Applicant with a medical certificate covering the period 25 November 2021 to 29 November 2021.

[88] The Applicant noted that she was scheduled to return to work on 29 November 2021. She stated that on 29 November 2021, she attended another consultation with Dr Aechoor as her cold was not getting better. She stated that during the consultation Dr Aechoor, the Doctor said words to the effect of:

“If you still have the cold you shouldn’t be at work when your sick. Take another four days off and see how you feel.”

[89] Dr Aechoor provided the Applicant with a medical certificate for the period 29 November 2021 to 3 December 2021.

[90] The Applicant stated that on 3 December 2021 she attended a further consultation with Dr Aechoor as she was still experiencing cold symptoms and the Doctor advised her to take another few days off work until she had fully recovered. Dr Aechoor provided the Applicant with a medical certificate covering the period 6 December 2021 to 10 December 2021.

[91] The Applicant stated that on 10 December 2021 she attended a consultation with Dr Aechoor as her cold symptoms had eased but she was experiencing extreme fatigue. She stated that she and Dr Aechoor had a conversation which included words to the effect of:

Me: “My cold has eased off but I feel so exhausted and weak.”

Dr Aechoor: “It’s probably post cold exhaustion that we see sometimes. You need to rest to regain your energy and strength. You need to be completely better. We will not administer any vaccine until then. Particularly if your immunity is low given a simple cold has flattened you for so long.”

[92] Dr Aechoor provided the Applicant with a medical certificate covering the period 10 December 2021 to 17 December 2021.

[93] The Applicant’s evidence was that she received the first dose of an approved COVID-19 vaccine on 21 February 2022 and her second dose on 13 March 2022. The Applicant noted that she was due to receive a third dose on or after 14 May 2022 and had booked an appointment for the Pfizer booster vaccine on the 17 of May at Care Point Medical Centre.

[94] The Applicant stated that as she was terminated on 16 December 2021, she did not feel that there was an immediate rush to receive the COVID-19 vaccine as she was no longer subject to a vaccine mandate. The Applicant noted that she was initially booked in to receive the Pfizer vaccine on 31 January 2022, however, when she became aware that Novavax would soon be available she cancelled that appointment and booked in to receive the Novavax vaccine.

Consideration  

[95] 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.  

[96] It is not in dispute and I find that the Applicant is protected from unfair dismissal, submitted her application within the statutory timeframe, was not made genuinely redundant and did not work for a Small Business.
 
[97]  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.”   

[98] 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”. 

  [99] 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”.   

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

Section 387(a) – valid reason  

[101] 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…”. 

[102] 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.”  

 [103] 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.”   

[104] It is not in dispute that CHO Direction No. 55 applied to the Applicant. As a result, on her scheduled return to work, 29 November 2021, the Applicant had to have received the first dose of an approved COVID-19 vaccine to be allowed back into the workplace.

[105] It is not in dispute that the Applicant obtained four doctor’s certificates stating that she was unfit for duty from 25-29 November, 29 November-3 December, 6-10 December and 10-17 December 2021. There is no indication from the Applicant, at any time, that her illness would extend over this period. Relevantly, the Respondent had a right to believe, or at least an expectation, that the Applicant would be returning to work at the expiry of each of the certificates. As a result, knowing the vaccination status of the Applicant was important to ensure that teacher coverage of the Applicant’s classes could be maintained. The Applicant testified that she was unwell up until Christmas. I note that her unfair dismissal application (Form F2) was filed on Christmas Eve.

[106] The Applicant was asked on seven separate occasions to provide information in relation to her vaccination status before being terminated. The Applicant consistently and somewhat belligerently refused to engage in appropriate dialogue with the Respondent. To simply respond to these requests with emails which stated:-

“I will respond fully when I am better”, and

“I will respond properly to your letters when I am better”,

shows a degree of contempt, on behalf of the Applicant, to the CEO and the CHO Direction.

[107] The Applicant is clearly a very intelligent woman. She is an experienced Maths Teacher and has just completed a Psychology Degree. It belies logic and common sense for the Applicant to repeat her response to the Respondent on numerous occasions when the Respondent asked for reasons or responses to their enquiries. Clearly the Respondent was not satisfied with the Applicant’s responses. Even when the CEO, in correspondence on 13 December 2021, advised the Applicant that she was going to be terminated unless she gave the CEO a reason why she should not be terminated, the Applicant provided the same non-descript response. If the Applicant was able to type a few lines in an email in response to the Respondent’s correspondence, then she was able to add another line to say that she was suffering from a respiratory illness so was not eligible to receive the vaccine at that point in time. Instead, the Applicant displayed all of the traits of an “anti-vaxxer” who was simply running down her sick leave.

[108] In response to questions from Mr Mappas at the Hearing, the Applicant said:

“What was the reason that you didn't provide the details of your illness at that time; that you had a respiratory illness?---Well, I just thought that being sick - just telling them that I am sick was enough.  I didn't feel like I need to go any further into why.  I didn't feel the need to go any further into why I'm sick.  My doctor knew.  It was between me and my doctor, and I had a medical certificate.” 8

[109] In response to questions from me at the Hearing, the Applicant testified:

“The only thing missing in this letter - this email - is that when you say, 'I am currently on sick leave with a medical certificate', all you had to say was, you know, 'I have a cold', or, 'I have a respiratory problem and the doctor refuses to provide me with a vaccination.'  Nowhere in that document does it indicate that you're prepared to get a vaccination or the reason why the doctor won't give you a vaccination.  I'm prepared to accept that you were actually really ill and maybe couldn't think straight, but you could think coherently enough to put in a response which has got 11 paragraphs in it?---Yes.

You're here arguing that your termination was harsh and unfair?---Mm-hm.

But the CEO could only act on the information that you provided; the responses you provided.  You did not answer the critical question emanating from the CEO's correspondence which is about your vaccine status?---I think they knew that I wasn't vaccinated, Commissioner, didn't they?  I mean, they - I didn't provide them any - - -

But you had a reason why you weren't vaccinated and you just failed to - you continually failed to give the reason?---Yes.

So how is the CEO to know, for example, that you just weren't exhausting your sick leave and that you had no intention of ever getting the vaccination?  How is the CEO to know that?--- I think I have - I say in some of the statements that, you know - well, what I have written I remember is, you know, once I recover then I will be able to make a considered response and that would include my, you know, vaccination status and all of that.  You know, once I recover then I could get vaccinated and it would all be fine.

You wanted to wait until 20 December to provide that information?---Yes.  I mean, you know, I provided the information that I thought were relevant, but if they were looking for some specific information then I guess they could give me a call and ask, you know.  I mean, let me know exactly what they are looking for.

They could have done that.  Well, the document - the email that you received on 26 November told you what they were looking for?---Yes, so, Commissioner, to the best of my ability I provided them with a medical - I let them know that I am sick and, yes, I did miss the specificity of my illness, but then I didn't think that - I didn't believe that was necessary to actually state exactly what was the nature of illness.  I just thought a medical certificate would be enough to let them know that I have been assessed by a doctor and, yes, I am unfit and scared about vaccination at this stage.  So, yes, that's where my mind was at.” 9

[110] I note that this is the only occasion in the whole process where the Applicant has admitted to being scared of receiving the vaccination.

[111] As a result of the lack of responses to the Respondent’s correspondence, I am satisfied and find that the Respondent had a valid reason to terminate the Applicant. The Applicant refused to advise the Respondent if she was compliant with CHO Direction No. 55.

Section 387(b) – Notified of the reason  
 
[112] It is not in dispute that the Applicant was notified of the reasons for her termination.  

Section 387(c) – Opportunity to respond  
 
[113] It is not in dispute that the Applicant was provided an opportunity to respond to her termination.
 
Section 387(d) – Refusal to support person   
 
[114] 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, this factor is a neutral consideration. 

Section 387(e) – Unsatisfactory performance   
 
[115] The Applicant was not dismissed for unsatisfactory performance.   

Section 387 (f) and (g) – Size of Enterprise and HR Staff – procedures followed   
 
[116] 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  

[117] The Applicant testified that she felt better around Christmas in 2021. The Applicant’s unfair dismissal application was lodged with the Commission on 24 December 2021. The Applicant received her first Novavax vaccination on 21 February 2021. The Applicant could have received her first dose of an approved COVID-19 vaccine at any time within the two months between Christmas and 21 February 2022. If the Applicant had received her first dose in the first week of January, she could have still received her second dose before the end of the school holidays and therefore been able to undertake casual teaching work whilst waiting for her unfair dismissal application to be finalised by the Commission.

[118] Relevantly, the correspondence from the CEO to the Applicant on 26 November 2021 said:-

“If you fail to comply with CHO Directions No. 55 within 14 days from the date in which you are due to return to work, I may decide to take action in relation to your employment under the Public Sector Employment and Management Act 1993 (the Act).”

[119] It is not in dispute that the Applicant was due to return to work on 29 November 2021. The Respondent commenced the Applicant’s employment inability process on day 4 of the Applicant’s scheduled return to work, not day 14. Under cross-examination on this issue, the CEO said:-

“You did this on 2 December, even though her return date was 29 November?---Yes.

Even though you had told her she had 14 days after her return date before you would commence the process?---Yes, I can see that now.” 10

Conclusion 

[120] The Respondent advised the Applicant that it would not proceed with any employment related process for 14 days after the Applicant returned to work, yet commenced the employment inability process on day 4. There was no excuse or reason given by the Respondent for this premature application of the policy, particularly when the Applicant had been on approved leave without pay for the entire school year. It would appear to be nothing more than the actual author of the correspondence of 2 December 2021 not being aware of what was contained in the correspondence of 26 November 2021. This error shows a lack of attention to detail within the Department. Its processes were sloppy and unprofessional.

[121] However, had the Respondent waited until 12 December 2021 to commence its employment inability process, the Respondent would have still been in the same position in relation to enforcing the CHO Direction. The Respondent did not know why the Applicant was on sick leave. The Applicant could have had a sore back, broken leg or a plethora of other ailments. I do not accept that the Applicant could simply state that she was unwell and supply a doctor’s certificate in order to circumvent the actions of the Respondent in relation CHO Direction No. 55. The Respondent had a right to know of the Applicant’s vaccination status. The Respondent had an obligation to comply with CHO Direction No. 55. I am not aware of any other employer who has invited an employee to provide this information on seven occasions prior to their termination. The Respondent has done everything humanly possible to obtain this required information from the Applicant.

[122] I note that the Applicant was well enough to write an extensive and aggressive email on 6 December 2021. Unfortunately, it did not contain any explanation of her illness.

[123] In my view, the Applicant deliberately waited for the Novavax vaccine to become available before she was prepared to be vaccinated because she was scared to be vaccinated with the MRNA vaccines. That was her right. Had the Applicant been upfront with the CEO, whom I find to be a very reasonable person based on the number of opportunities that the Respondent gave the Applicant to provide her information and her performance in the witness box, then the Applicant may have been able to continue to take leave without pay until she was fully vaccinated. I note that the Applicant did not have any medical reason or family related issue which she has raised to explain the delay in receiving a COVID-19 vaccination.

[124] Applying the Brigginshaw standard of proof, I am satisfied that the Applicant’s actions were deliberately undertaken to frustrate the Respondent’s enquiries into her vaccination status.

[125] I have previously found that the Respondent had a valid reason to terminate the Applicant. I find that none of the other considerations in s.387(b)-(h) of the FW Act are of such significance to interfere with this finding. Section 381(2) requires the Commission to ensure that there is a ‘fair go all round’. I am satisfied and find that the Applicant has received a fair go from the Respondent.

[126] For the reasons stated above, I find that the Respondent had a valid reason to terminate the Applicant.

[127] The Application for an unfair dismissal remedy is dismissed. 

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 PN433.

 9   Transcript at PN487-493.

 10   Transcript at PN237-238.