| [2022] FWC 1362 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Krystle Giggs
v
St John Ambulance Western Australia Ltd
(U2021/6095)
COMMISSIONER WILLIAMS |
PERTH, 2 JUNE 2022 |
Application for an unfair dismissal remedy
[1] This decision concerns an application made under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy by Mrs Krystle Giggs (the Applicant). The respondent is St John’s Ambulance Western Australia Ltd (the Respondent or SJA).
[2] Mrs Giggs was dismissed by SJA from her employment as a paramedic on 22 June 2021. The dismissal letter states that her employment ended due to her failure to comply with the lawful and reasonable direction to receive the 2020 influenza vaccination. 1
[3] The progress of this application to hearing was interrupted by Mrs Giggs making an application for supposed questions of law concerning her section 394 application to be referred to the Federal Court pursuant to section 608 of the Act.
[4] Mrs Giggs’ section 608 application was dismissed by Vice President Hatcher in his decision of 27 September 2021. 2
[5] At the hearing of this matter evidence was given by the Applicant who also called Mr David Abbott, a paramedic and delegate of the Ambulance Employees Association Of Western Australia (AEAWA).
[6] For the respondent, evidence was given by Ms Kerryn Welke, the Respondent’s Manager Metropolitan Operations – Southwest District; Ms Rene Anderson, the Respondent’s Head of People Services; Ms Debbie Jackson, the Respondent’s Chief Officer – Corporate Services and Dr Paul Bailey, the Respondent’s Medical Director.
[7] The applicant commenced employment with SJA on 5 April 2012.
[8] In 2013 she successfully completed an Advanced Diploma of Paramedical Science and graduated to an ambulance paramedic role in SJA. In 2017 she completed a Bachelor of Science (Paramedical Science) and in 2019 completed a Graduate Diploma in Critical Care Paramedicine.
[9] The applicant’s evidence in summary was that the duties of her ambulance paramedic role include responding to 000 calls, operating an emergency vehicle under emergency conditions, resuscitating and stabilising patients, conducting detailed assessment of patients and incident circumstances to inform diagnosis and to alleviate symptoms and distress with the use of therapeutic products and crisis support services.
[10] Dr Bailey, the Respondent’s Medical Director since 2015 has a Bachelor’s Degree in Medicine and Surgery from UWA and is a Fellow of the Australian College for Emergency Medicine. He also has a Biochemistry/Physiology PhD. He has worked in Emergency Medicine for over 20 years including as the Director of Emergency Medicine for St John of God Hospital in Murdoch.
[11] His evidence regarding ambulance paramedics is that they provide services which include the provision of emergency services (Priority 1), nonemergency services (Priority 2) and nonemergency transport services (Priority 3 and 4) including to residential aged care facilities. 3
[12] His evidence was that it is critical that each SJA ambulance is able to respond to any job (Priority 1 through to Priority 4) and be able to deal with the issues that arise. It is common on the way to a Priority 3 or 4 call to be diverted to a Priority 1 call.
[13] This requirement for an ambulance paramedic to be able to respond to any and all calls for assistance is expressly reflected in the position description,
“Main Purpose of Position – To respond promptly and efficiency to all ambulance calls,…” 4
[14] He says SJA does a significant amount of work in residential aged care facilities and probably about 60% of the total ambulance on road services are involved with aged care.
[15] He explained that the elderly in aged care facilities are usually barely coping from a health perspective as it is. They do not need much to go wrong before they become very sick. During winter, there tends to be a resurgence in respiratory conditions throughout the community and this can have serious consequences amongst the aged care population. 5
[16] I accept Dr Bailey’s evidence, which is reinforced by similar evidence from Ms Wilke 6 and Ms Jackson.7
[17] On 20 March 2020, the Visitors to Residential Aged Care Facilities Directions (the Directions) were issued by an emergency officer authorised by the Chief Health Officer under the Public Health Act 2016 (WA).
[18] The Direction’s purpose is to limit the spread of Covid 19 in residential aged care facilities.
[19] Relevantly, under the Directions, entry to residential aged care facilities was restricted and in addition a person who was able to enter could then only enter the residential aged care facility if they had an up-to-date vaccine against influenza. 8
[20] Numerous iterations of the Directions were issued thereafter.
[21] Having become aware of the Directions SJA engaged with the State Health Incident Command Centre to understand the impact of the Directions on SJA’s staff. It became clear from this correspondence that paramedics would not be exempt from the Directions. The requirements for an influenza vaccination to enter residential aged care would apply to SJA’s staff.
[22] The provision of the Directions dealing with penalties states that
‘It is an offence for a person to fail, without reasonable excuse, to comply with any of these Directions, punishable by a fine of up to $20,000 for individuals and $100,000 for bodies corporate.’
[23] SJA were advised by WA Health that entry to residential aged care facilities for Priority 1 – (lights and sirens) or Priority 2 –( urgent response) would be the only exception and only these responses would be recognised as a “.. reasonable excuse..” for failing to comply with the direction. 9
[24] SJA then understood that nonemergency responses to residential aged care facilities would necessitate paramedics having had an up-to-date influenza vaccine. As a result, all on-road paramedics would need to have an influenza vaccine to ensure they were able to respond to calls from residential aged care facilities and be compliant with the Directions. 10
[25] Because of these circumstances, SJA developed a policy designed to ensure it and its staff would comply with the Directions.
[26] A draft policy was developed and this, with proposed procedures was distributed to the United Workers Union and the Ambulance Employees Association of Western Australia for consultation; being the unions representing paramedics involved in patient transport and ambulances. Engagement with unions occurred in weekly meetings that were occurring in response to Covid 19. 11
[27] On 24 April 2020, SJA issued a communication to all front-line staff attaching a copy of the draft policy and supporting procedures and invited feedback. The communication explained that due to the urgency of the issue, feedback and comments would be required by noon on Wednesday, 29 April 2020. It also advised that engagement was already happening directly with unions. 12
[28] Returning to the Applicant, in February 2020 she had been injured at work and deemed unfit for duty. Her evidence was that she had returned to work on limited duties from 26 April 2020. 13
[29] She explains that on her return to work on 26 April 2020 she was advised by colleagues and managers that the seasonal influenza vaccine was mandatory. She was told that ‘if you don’t have that jab SJA will sack you’.
[30] She says all on road managers she spoke with told her that it was mandatory to have the influenza vaccine. 14
[31] An ongoing series of communications with staff continued through to 1 May 2020, when the CEO issued a message to all staff titled “Employee Volunteer Flu Vaccination”. This advised that having considered the feedback from employees and the unions SJA had decided to implement a Mandatory Influenza Vaccination Policy ( the policy) and that staff are expected to provide evidence of compliance consistent with the policy, that is, that they had received an up-to-date influenza vaccination or have applied for an exemption by 10 May 2020. 15
[32] These emails were received by and opened by the applicant on 1 May 2020. 16
[33] On 1 May 2020, a new standard operating procedure was distributed to staff via email which was prompted by residential aged care facilities advising SJA that unvaccinated SJA staff would be refused entry to facilities unless they were responding to an emergency.
[34] The applicant’s evidence is that on 29 May 2020 she received an email from Ms Doyle, Head of Metropolitan Ambulance Operations, stating records showed she had not provided evidence of her flu vaccination as required by the influenza vaccination policy. The email also stated the date for lodging an exemption had expired and records of vaccination should be provided by 5 June 2020.
[35] The same day the applicant responded to the email asking SJA to confirm that they would be prepared to terminate someone’s employment if they chose to decline an influenza vaccination.
[36] Also on the same day, the applicant’s evidence is that Ms Doyle responded reminding employees to submit proof of vaccination and stating that the opportunity to apply for an exemption had expired and that if a request for an exemption or vaccination status was not received by 5 June SJA would contact employees to investigate why they had not responded.
[37] The applicant says on 30 May 2020 she responded to Ms Doyle saying she was a conscientious objector for reasons she was happy to detail and asked if she could still lodge an exemption request by 6 June 2020. The applicant said she was open to discuss her concerns and hear scientific evidence to support vaccines and asked questions about inoculation immunity timelines and whether additional protective measures during the 2 to 4 weeks would be required.
[38] On 31 May 2020 Ms Doyle replied to the applicant stating that the opportunity to lodge an exemption had closed but they will consider the information she has provided and she will receive further correspondence regarding the matter in due course. 17
[39] There was some delay in the respondent following up the applicant regarding her vaccination compliance.
[40] Ultimately, Ms Welke rang the applicant on 1 August 2020 in relation to her vaccination status. A disciplinary meeting was arranged for 3 August 2020.
[41] The applicant attended the 3 August 2020 meeting with Mr Abbott as her representative from the AEAWA.
[42] Her non-compliance with the policy was discussed and relevantly she was provided with a show cause letter. 18
[43] The letter said that she had not complied with the respondent’s influenza vaccine policy and not applied for an exemption. It explained consequently she was no longer able to complete the inherent requirements of her position and SJA considered her non-compliance to be a serious matter and is now proposing to end her employment. The letter said she was being stood down on pay.
[44] The applicant’s evidence was she chose to reply immediately at the meeting and did so. 19
[45] She said she told SJA it was not her intention to be vaccinated at this stage and that she had always intended to make an exemption application.
[46] On Sunday, 9 August 2020 the applicant emailed to SJA a completed exemption application and supporting documentation. 20
[47] Confusingly, the applicant’s completed Application for Exemption from Influenza Vaccination Form appears to be dated 29 May 2020 although the date it was signed by her is 8 August 2020.
[48] The form provides for three types of exemptions, being respectively Medical, Religious or Other.
[49] The applicant ticked Medical exemption against which she has hand written “latex allergy; rash, andgiodoema.”
[50] The Commission assumes the last word is a misspelling of ‘angioedema’.
[51] The applicant has struck out the Religious exemption option.
[52] The applicant ticked the Other exemption option and inserted as follows,
“Conscientious Objections” followed by
“Personal Beliefs;
Understanding of Evidence-Based Conclusions;
Risk Assessment; and
Alternative Protections.”
[53] Attached to the applicant’s exemption application is a 45-page document that argues the applicant’s case for an exemption addressing at length SJA’s policy and procedures, understanding of influenza, understanding of influenza vaccines, personal risk assessment for influenza vaccine, healthcare worker’s rights and responsibilities, government policies and guidelines and, legal and ethical considerations including the rights of employees and right to refuse medical treatment or intervention.
[54] The context for SJA allowing employees to apply for an exemption from its Mandatorily Influenza Vaccination Policy flows from the wording of the various iterations of the Directions which prescribe that a person who does not have an up-to-date vaccination against influenza cannot enter a residential aged care facility, “…if such a vaccination is available to the person”.
[55] Dr Bailey’s evidence explained that there were two types of exemptions provided by SJA. 21
[56] The first exemption was for medical exemptions where the influenza vaccination was not “ available” to a particular staff member for accepted proven medical reasons. The West Australian Department of Health confirmed that the influenza vaccine was deemed “ not available” if the person had a history of vaccine anaphylaxis or had Guillian Barre syndrome or was significantly immunocompromised, for example due to chemotherapy.
[57] Where such a medical exemption was granted, that staff member was compliant with the Directions and so could continue working as a paramedic on-road and enter residential aged care facilities regardless of the priority level call they were responding to.
[58] Secondly, there were exemptions granted at SJA’s discretion. These were determined on a case-by-case basis but if granted meant the staff member was still not compliant with the Directions and so had to be redeployed away from off-road duties.
[59] An exemption panel was established to consider applications for exemptions. The panel was usually made up Dr Bailey, Ms Jackson and Ms Anderson.
[60] The panel assessed all 19 exemption applications from SJA employees.
[61] Dr Bailey’s evidence was that one exemption was granted for medical reasons for an employee with a history of Guillian Barre syndrome. This was the only exemption that meant the employee was compliant with the Directions meeting the Department of Health’s requirement of someone for whom the vaccine was not available.
[62] SJA granted discretionary exemptions to staff who presented evidence to the panel, being one employee whom had suffered a prior severe allergic reaction to a vaccination which was supported by medical evidence, another whom suffered multiple sensitivities that resulted in an adverse reaction to an influenza vaccination that was supported by medical evidence and finally one staff member who had suffered from severe allergies to some of the content of the influenza vaccination which again was supported by medical evidence.
[63] Separately the panel granted two religious exemptions.
[64] A total of six exemptions were granted.
[65] At the point the applicant made her exemption application, SJA’s exemption panel was made up of Ms Jackson and Dr Bailey only as Ms Anderson was on leave at this time.
[66] The panel considered the applicant’s exemption application.
[67] Dr Bailey’s evidence was that her exemption application was rejected because she presented no evidence of any medical condition that was contraindicated for the influenza vaccine and her application was based on her personal wish not to be vaccinated against influenza because of her assessment of the science relating to efficacy and risks.
[68] Ms Jackson’s evidence was that the applicant had not provided any medical evidence in support of her claim for a medical exemption and had not identified a medical contraindication that prevented her from having the influenza vaccination. Her evidence was that she relied to some extent on Dr Bailey to interpret some of the applicant’s supporting material provided in respect to medical and vaccine efficacy issues. It was her understanding that the applicant was declining the influenza vaccine because she was not convinced of the vaccine’s efficacy in light of its risks to her personal safety. The applicant had said in her exemption application that she was open to being vaccinated, had been in the past, but did not want to have this particular vaccine. It seemed she was making what she felt was an evidence-based decision. Ms Jackson did not accept this amounted to a conscientious objection and also agreed her application for exemption should be refused.
[69] A letter dated 20 August 2020 was sent to the applicant advising that her application for exemption had been declined. The letter explained that accordingly their records showed she was not currently vaccinated and so she will not be able to access aged care facilities for priority 3 and 4 responses.
[70] The letter concluded that as her application for exemption had been declined, she was requested to comply with the SJA influenza vaccination policy.
[71] The applicant replied three days later with a letter that posed 14 questions to SJA.
[72] SJA on 12 September 2020 provided a detailed four-page response to the applicant’s questions.
[73] Subsequently there was correspondence backwards and forwards between the applicant and SJA including emails to SJA’s Chief Executive Officer.
[74] One of the issues for SJA to consider was whether in the near future there would be a lifting by government of the Directions.
[75] In March 2021 the Department of Health had advised that the Directions would remain in effect for the 2021 influenza season. 22
[76] Given the continuing extension by the government of the Directions on going into 2021, SJA decided to make a decision regarding the applicant, who remained stood down on pay, and its other unvaccinated staff.
[77] On 14 April 2021 the applicant sent an email confirming that it was her intention to ‘… maintain my bodily integrity on the grounds of the safety concerns which I previously identified…”. Ms Anderson understood this to mean the applicant would not be getting vaccinated against influenza.
[78] Ultimately a meeting was arranged with the applicant and held on 4 May 2021 which she attended with her husband as her support person. At the meeting she was issued with a further show cause letter and provided until 14 May 2021 to respond to that letter.
[79] The letter traversed the history of the issues and advised that the respondent was proposing to end the applicant’s employment for refusing to comply with the influenza vaccination policy despite being instructed to do so. The letter said her continued non-compliance means she is unwilling and unable to perform the inherent requirements of her role as a paramedic given the ongoing restrictions arising from the Directions.
[80] On 13 May 2022 the applicant provided her response to the show cause letter from her solicitors. 23
[81] The applicant’s solicitors letter also traversed the history of the events and interactions between the parties concerning the influenza vaccination. The letter made the point that there was no criticism of the applicant’s conduct or capacity at work. It complained that her conscientious objection and concerns particularised in her exemption application have been rejected without a detailed response. The letter said the applicant maintains that she is allowed to attend at emergency and priority three and four events in the absence of vaccination for influenza. The letter requested the respondent return her to her employment or at least consider disciplinary action other than dismissal in recognition of her unblemished record. The letter says other staff deemed unable to meet the inherent requirements of their role have received the benefit of SJA making a reasonable adjustment to their role to allow them to continue in their employment including colleagues who are impacted by injury or illness or such criminal matters as drink-driving offences.
[82] The evidence is that this response on behalf of the applicant was reviewed and considered by SJA. SJA felt there were no new issues raised and no strong mitigating factors as to why they should not proceed to dismiss the applicant. The view also was that this response on behalf of the applicant confirmed the view that her exemption application was a decision she was making based on her understanding on research in respect to the influenza vaccine.
[83] SJA decided that given the Directions remained in effect for the foreseeable future and the applicant was still refusing the respondent’s direction to be vaccinated it was appropriate for her to be terminated on the grounds that the applicant could not fulfil the inherent requirements of her on-road role because she could not lawfully attend all the places a patient may be, and further that she had not obeyed SJA’s direction that she comply with SJA’s mandatorily influenza vaccination policy.
[84] The decision was made to terminate the applicant’s employment. She was notified of this by letter dated 22 June 2021.
“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.”
[85] The Applicant's evidence explained at length her views regarding the Directions and sought to impugn the Directions based on her understanding of the law, viruses, vaccines and vaccinations, worker’s rights, risk assessment, ethical considerations and related matters.
[86] The Applicant’s personal view of the Directions however is not relevant to the determination of this matter.
[87] What is relevant is that the Directions were the law at the time of the Applicants dismissal.
[88] Consequently and quite unsurprisingly in the absence of a court ruling that the Directions were invalid the Commission, in determining this application, will apply that law as it stands.
[89] The evidence is that all ambulance paramedics need to be able to respond to calls of all types, regardless of whether it is Priority 1,2,3 or 4. It is entirely impractical and would degrade the respondent’s services, to limit some ambulance paramedics to only responding to emergency calls.
[90] Ambulance paramedics responding to calls in residential aged care facilities are a significant proportion of the respondent’s work. I accept the evidence demonstrates that ambulance paramedics are often required to enter residential aged care facilities.
[91] I am satisfied that SJA’s ambulance paramedics need to be able to lawfully enter residential aged care facilities when responding to Priority 3 and 4 nonemergency calls in order to do their job.
[92] Considering the wording of the Directions and the advice from the WA Department of Health regarding its application, SJA correctly concluded that ambulance paramedics responding to Priority 3 and 4 calls at residential aged care facilities would be subject to the Directions.
[93] In the applicant’s case because she had not had an up-to-date vaccination against influenza and because a vaccination against influenza was reasonably available to her (she did not have a documented medical contraindication to the influenza vaccine) she therefore was not a person who could under the Directions enter the premises of a residential aged care facility, otherwise than responding to an emergency. 24
[94] Considering the above circumstances, I find that the applicant was unable to lawfully undertake an inherent requirement of her job which was to respond to Priority 3 and 4 non-emergency calls at residential aged care facilities.
[95] The Mandatorily Influenza Vaccination Policy was developed by SJA in conjunction with two unions and in consultation with employees in order to ensure its ambulance paramedics were able to lawfully carry out their job when responding to Priority 3 and 4 nonemergency calls at residential aged care facilities.
[96] The policy provided that employees were able to apply to SJA for an exemption.
[97] SJA issued directions to its employees generally and the applicant specifically to comply with the Mandatory Influenza Vaccination Policy.
[98] The applicant indicated she was unwilling to then receive the influenza vaccine and so applied for an exemption.
[99] The applicant’s exemption application was considered by a panel but was not granted.
[100] There is nothing before the Commission that impugns the panel’s decision to reject the applicant’s exemption application. The panel’s decision was entirely reasonable in all of the circumstances.
[101] After the applicant’s exemption application was rejected SJA directed the applicant to comply with the respondent’s policy, which in practice meant she would have to be vaccinated for influenza.
[102] The applicant has never advised SJA that she has received the influenza vaccine and has provided no evidence that this is the case.
[103] Consequently, I am satisfied that the applicant did not comply with the Mandatorily Influenza Vaccine Policy and did not obey her employer’s direction to do so.
[104] The Commission consequently needs to consider whether the respondent’s direction to the applicant to comply with the policy was a lawful and reasonable direction.
[105] Recently a five-member bench of the Commission in the decision, Construction, Forestry, Maritime, Mining and Energy Union (105N) & Dr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal (the Mt Arthur decision) considered the duty on employees to obey lawful and reasonable directions as follows.
“[68] It is uncontentious that a lawful direction is one which falls within the scope of the employee’s employment. There is no obligation to obey a direction which goes beyond the nature of the work the employee has contracted to perform, though an employee is expected to obey instructions which are incidental to that work.
[69] Further, employer directions which endanger the employee’s life or health, or which the employee reasonably believes endanger his or her life or health, are not lawful orders; unless the nature of the work itself is inherently dangerous, in which case the employee has contracted to undertake the risk.
[70] The order or direction must also be ‘lawful’ in the sense that an employee cannot be instructed to do something that would be unlawful; such as a direction to drive an unregistered and unroadworthy vehicle.
[71] Employees are only obliged to comply with employer directions which are lawful and reasonable.”
[106] Then turning to reasonableness, the Commission said.
“[80] We observe that the approach we have adopted in this matter is consistent with the following observation of the Full Bench in Briggs v AWH Pty Ltd:
‘The determination of whether an employer’s direction was a reasonable one (there being, as earlier stated, no contest in this case that AWH’s direction was lawful) does not involve an abstract or unconfined assessment as to the justice or merit of the direction. It does not need to be demonstrated by the employer that the direction issued was the preferable or most appropriate course of action, or in accordance with “best practice”, or in the best interests of the parties. The proper approach to the task is that identified by Dixon J in R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan in the following terms:
But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled. 25
[107] There is no suggestion that the respondent’s direction to comply with the policy was unlawful. Considering all of the circumstances detailed above including the issuing of the Direction under the Public Health Act, the application of the Directions to work the ambulance paramedics commonly undertook and the manner in which ambulance paramedics work within the respondent’s operations I have no doubt that the respondent’s direction to the applicant was also reasonable.
[108] I find that the respondent’s direction to the applicant to comply with the Mandatory Influenza Vaccination Policy was a lawful and reasonable direction and so a direction the applicant was obliged to obey. 26
[109] I will now turn to consider whether the dismissal of the applicant was in all the circumstances harsh, unjust or unreasonable.
[110] Because the applicant had not had an influenza vaccination she was, because of the Directions, unable to lawfully undertake an inherent requirement of her job, which was to respond to Priority 3 and 4 non-emergency calls at residential aged care facilities. This was a valid reason for her dismissal related to her capacity.
[111] Separately, the applicant had not obeyed her employer’s lawful and reasonable direction to receive the up-to-date influenza vaccination. This was a valid reason for her dismissal related to her conduct. 27
[112] The applicant was notified of the reason the respondent was considering dismissing her before it made the final decision to do so by providing her show cause letters explaining this.
[113] The applicant was given the opportunity to respond to the reason the respondent was considering dismissing her through the show cause process. Indeed her legal representatives provided a detailed written response prior to the final decision being made by the respondent to dismiss.
[114] There was no refusal by the respondent to allow the applicant to have a support person present to assisted any discussions relating to her dismissal.
[115] The dismissal was not related to unsatisfactory performance.
[116] The employer’s enterprise is large which has had a positive impact on ensuring that appropriate procedures were followed in effecting the dismissal.
[117] There was no absence of Human Resource management specialists or expertise. Rather, personnel with this role likely positively impacted on the procedures followed in effecting the dismissal.
[118] At the time of her dismissal the applicant had approximately nine years service which had otherwise been unblemished.
[119] The applicant was stood down on pay for a considerable number of months at considerable cost to the respondent. During all of this period she was non-compliant both with the Directions and the policy. At any time during these months the applicant could have reconsidered her choice and agreed to be vaccinated and so could have remain employed.
[120] The respondent certainly did not rush to dismiss the applicant.
[121] The applicant exercised her free will and chose not to receive the influenza vaccination. She did so in the full knowledge that she would consequently be dismissed.
[122] The dismissal of the applicant was neither harsh, nor unjust nor was it unreasonable.
[123] Mrs Giggs was not unfairly dismissed.
[124] This unfair dismissal remedy application will be dismissed and an order to that effect will now be issued.
Printed by authority of the Commonwealth Government Printer
<PR742152>
1 Respondent’s document 95 and 96
2 2021 FWC 5991
3 Exhibit R4 paragraph 12
4 SJA documents 14
5 Exhibit R4 paragraph 15 to 20
6 Exhibit R1 at 14 to 18
7 Exhibit R3 21, 27.
8 Respondent’s document SJA 1, clause 4 (d)
9 Respondent’s document SJA 16, email 20 April 2020 5:33 PM
10 Statement of Debbie Jackson paragraph 39 and 40
11 Statement Debbie Jackson paragraph 45 ,SJA documents 35 to 40
12 SJA documents 27.
13 Applicant’s witness statement paragraph 9 and Applicant’s 7 October 2021 statement paragraph 16.
14 Applicant’s witness statement paragraph 12
15 SJA document 30A, 31
16 SJA document 33
17 Exhibit A1 paragraph 13 to 18 and KMBG – 1 to 6
18 SJA document number 63
19 Exhibit A1 paragraph 32
20 Exhibit A1 paragraph 62
21 Witness statement of Dr Bailey paragraph 47 to 50.
22 Witness statement of Ms Jackson paragraph 84
23 SJA documents 94
24 SJA document 7, Visitors To Residential Aged Care Facilities Directions (No 7), the 3 February 2021 paragraph 8
26 For a similar decision regarding influenzas vaccines see 2021 FWC 2989 at [260]
27 For a similar decision regarding influenzas vaccines see 2022 FWC 1139 at [197]