[2022] FWC 1448

The attached document replaces the document previously issued with the above code on 8 July 2022 to correct minor typographical and formatting errors.

Associate to Commissioner McKenna

Dated 11 July 2022.

Fair Work Act 2009
s.394—Unfair dismissal

Bradley John Dean

v
Regional Express Holdings Ltd
(U2021/11968)

Application for an unfair dismissal remedy

[1] Bradley Dean has made an application, pursuant to s.394 of the Fair Work Act 2009 (“Act”), in which he seeks an unfair dismissal remedy in relation to his termination of employment by Regional Express Holdings Ltd (“Rex” or “REX”).

Preliminary matters

[2] As to the initial matters to be considered, as set out in s.396 of the Act, there was no issue, and I otherwise find, that the application was made within time; Mr Dean is a person who was protected from unfair dismissal; Rex is not a small business, with the result that consideration of the Small Business Fair Dismissal Code does not arise; and the termination of employment was not a genuine redundancy.

Background

[3] Rex is a company described as being “Australia’s leading regional airline with routes to over 65 ports in all states and territories. It employs approximately 1,486 staff, and prior to the COVID-19 pandemic, transported over 1.2 million passengers per annum”. Mr Dean commenced employment with a predecessor to Rex, Hazelton Airlines, in May 1994. In August 2002, he was employed by Rex, as a successor employer. Mr Dean was informed he was dismissed in a meeting on 1 December 2021, with written confirmation following the next day. Thus, in combination, Mr Dean’s employment spanned about 27 years. In the time preceding the dismissal, Mr Dean was employed as a SAAB 340 Captain (Year 10) Check Captain (Grade 2) under the terms of the Regional Express Pilots’ Enterprise Agreement 2014 (“Pilots EA”).

[4] The dismissal arose against the background of the failure of Mr Dean to be vaccinated against COVID-19, pursuant to requirements in the Rex Group COVID-19 Mandatory Vaccination Policy (“Policy”). A distinguishing factor in this case, as against so many other vaccination-related dismissals that have come before the Commission, is that Mr Dean became vaccinated post-dismissal despite his earlier anxiety about being vaccinated. The evidence indicated that Mr Dean became vaccinated with the Novavax vaccine in early-2022, at effectively the first opportunity following its approval for use in Australia by the Therapeutic Goods Administration. Mr Dean had his first Novavax vaccination on 17 February 2022 and his second on 10 March 2022, with the result he was then relevantly fully-vaccinated for the purposes of the Policy.

[5] The evidence made it plain that, around the time of the dismissal, both parties very much wanted the employment to continue, notwithstanding the fact that Mr Dean was not vaccinated in accordance with the requirements in the Policy. Mr Dean was not only an employee of very long-standing, he was also a well-regarded one. For example, Mr Dean had been the recipient of an “Outstanding Achievement” award, and the dismissal letter referred to Mr Dean’s “dedicated service” and advice that the decision to dismiss him had “not been made lightly”. The dismissal had proceeded against the background of what might be described as various proposals by Mr Dean and one proposal by Rex that had been made to attempt to preserve, by one means or another, an ongoing employment relationship in the context of Mr Dean’s status as an unvaccinated employee. For reasons that I will later address, those proposals and counterproposals ultimately did not result in a preservation of the employment relationship.

The proceedings

[6] Both parties adduced detailed written witness statements of evidence pursuant to the directions, but not all those who provided statements were required for cross-examination in the hearing. In Mr Dean’s case, the evidence was given by:

•  Mr Dean, on his own behalf;

•  Dr Pia Bjorklund, Mr Dean’s general medical practitioner and his Designated Medical Examiner (“DAME”) for his annual pilot-specific medicals; and

•  James Mattner, Senior Industrial Officer with the Australian Federation of Air Pilots (“AFAP”)

[7] In Rex’s case, the evidence was given by:

•  James Davis, Independent Director on the Board of Rex;

•  Paul Fisher, General Manager Flight Operations and Chief Pilot of Rex; and

•  Paula Tran, Human Resources Manager of Rex.

[8] Mr Davis, Mr Fisher and Ms Tran were not members of the Rex management committee which made the decision to dismiss Mr Dean, albeit Mr Fisher and Ms Tran gave input to that committee about Mr Dean. Irwin Tan, General Manager Corporate Services of Rex, whose name was on a number of relevant written communications and who participated in, and/or chaired, the meeting in which Mr Dean was dismissed, did not give evidence in the proceedings.

[9] Although Mr Dean initially had private solicitors in connection with the making of his application for an unfair dismissal remedy, he self-represented throughout the proceedings. Mr Dean’s presentation of his own case, including the way he conducted the cross-examination of Rex’s witnesses, was (largely) atypically professional and focussed for a self-representing party. I asked Mr Dean to provide the speaking notes that he used for his closing submissions, which he later did. The speaking notes Mr Dean provided just does not reflect or capture the compelling eloquence of Mr Dean’s oral delivery of his closing submissions before me about why he considered the dismissal was unfair and why he should be reinstated. Rex was represented by counsel. Rex’s submissions, in a way that left no base uncovered in terms of the justification for the Policy and why there was a valid reason for the dismissal, addressed the reasons that led to the decision to dismiss Mr Dean and in support of the contention that the dismissal should not be found to be harsh, unjust or unreasonable, and why his application for an unfair dismissal remedy should be dismissed.

A selected background

[10] It is unnecessary for the purposes of this decision to traverse the history of vaccination requirements in Australia that emerged in response to the COVID-19 pandemic or the decision made by Rex to implement the Policy. The salient matter is that Rex determined to implement the following vaccination requirements as part of the Policy:

“5.1 Who needs to be vaccinated

Rex requires all existing frontline customer-facing staff members to be fully vaccinated against COVID-19 by 1 November 2021 and all new frontline staff members employed after 1 November 2021 to be fully vaccinated against COVID-19 prior to the commencement of employment.

Frontline staff includes, Pilots, Flight Attendants, Customer Service Officers at the Airports and anyone that has regular contact with the general public and/or passengers in the course of their duties. It does not include staff that have casual or limited contact with the public like our catering staff or ramp staff.

Frontline staff who are on unpaid leave or long term sick leave who are returning to work after 1 November 2021 will need to be fully vaccinated prior to their first day back to work.

…

9 Termination of Employment

Where a staff member does not complete and submit the Schedule A Mandatory COVID-19 Vaccination Declaration/Objection Form or provide evidence of vaccination before 16 October 2021 without a valid reason, they will be considered not to have complied with a reasonable and lawful direction and disciplinary action, up to and including termination of employment or engagement, may result. Where all other considerations and/or alternatives for redeployment have been exhausted for a frontline staff member who cannot or does not wish to be vaccinated, termination of employment or engagement may result.”

[11] Schedule B of the Policy explained matters about its operation in the format of various frequently asked questions (“FAQs”). One of the questions and answers in the FAQs was set out as follows:

“7. What provisions will be made for frontline staff who cannot or do not wish to be vaccinated?

Staff members will be required to complete a form outlining their objection either based on medical or other reasons. Staff should fill in the COVID-19 Declaration/Objection Form attached to the Policy ASAP but before 16 October 2021. Staff will be required to provide reasons why they cannot be vaccinated, including evidence in the form of a letter from a suitably qualified medical practitioner if objecting based on a medical reason. Further evidence may be requested to support the objection.

Rex will assess the staff member’s situation to determine if any other safety measures could be implemented or review other suitable roles (where available) for the staff member to be re-deployed.

Given the purpose of this policy and the application, it will be unlikely that a front line staff member could continue work in the front line if unvaccinated. However, each situation will be assessed on a case-by-case basis.

If no suitable role can be found the staff member will be required to meet the requirements of the policy to continue working in the frontline. If this results in a delay in getting fully vaccinated, the staff member will be required to take leave (including Leave Without Pay) from 1 November 2021 until the fully vaccinated date. If vaccination is not an option for the staff member then the staff member may be terminated due to not meeting a work requirement.

All staff who fail or refuse to complete the Declaration/Objection Form by 16 October 2021 will be deemed to be unvaccinated for the purposes of this Policy.

…

13. Will the company provide for staff to delay vaccination until they are able to obtain their preferred vaccination type?

No, the requirement is for frontline staff to be vaccinated by 1 November 2021.

There are three vaccines being used in the Australian roll out that have been approved by the Therapeutic Goods Association (TGA), these are Moderna, Pfizer and AstraZeneca. Individuals would be responsible for discussing the options with their medical practitioner if they have concerns.

Unvaccinated frontline staff will not be rostered for duty from 1 November 2021.”

[12] As may be seen from the preceding extracts of the Policy, all Rex’s employees were required to complete and submit the Schedule A Mandatory COVID-19 Vaccination Declaration/Objection Form (“Declaration Form”) or provide evidence of vaccination before 16 October 2021. All employees were advised that a failure to do so would be considered as non-compliance with a reasonable and lawful direction, and that disciplinary action may result including dismissal. Among other matters, the Declaration Form that Mr Dean submitted indicated he was not vaccinated.

The show cause letter

[13] Based on what Mr Dean had written in his Declaration Form, Rex’s understanding was that he would not be fully vaccinated by 1 November 2021 in accordance with the requirements of the Policy. As such, Mr Tan sent correspondence to Mr Dean on 26 October 2021 which invited him to show cause why he should not be dismissed on the grounds of non-compliance with a lawful and reasonable direction. Mr Tan’s correspondence advised that once Mr Dean’s response to the show cause letter was received, Rex would consider and make a decision based on all relevant information. The show cause letter further advised:

“As outlined in the Policy, this means that from 1 November 2021:

- you are not able to attend for work because you are not ready willing and able to meet all the requirements of your position;

- you will not be paid any pay until you are ready, willing and able to attend for work (which means being vaccinated and providing evidence of this);

- if you have accrued annual leave or long service leave you may be allowed to access that leave while this issue is being resolved. You may also access days in lieu (DIL) you may have available. Please contact Manager if you wish to access accrued leave; and

- we will explore options with you, which may include (if applicable) alternative duties, or the taking of leave or the cessation of your employment. The transfer into a short term arrangement as a simulator instructor is not currently an option. However, after receiving your response to this show cause the Company will confer with you on any other possible options.” (my emphasis)

[14] Relevantly, thereby, Mr Tan’s advice to Mr Dean in the show cause letter was that Rex would explore options with him, which may include: (a) alternative duties; (b) the taking of leave; or (c) the cessation of his employment. Mr Tan also advised that the transfer into a short-term arrangement as a simulator instructor was not currently an option, but that Rex would “confer” with him on any other possible options after receiving Mr Dean’s response.

Mr Dean’s response to the show cause letter

[15] On 2 November 2021, with drafting assistance from Mr Mattner, Mr Dean sent a lengthy response to the show cause letter including opening reference to his 27 years of loyal service. Mr Dean referred to his disappointment about his endeavours (two emails and one telephone call) to Rex’s human resources (“HR”) section to try to discuss his concerns around the vaccination issue, where “no one bothered to contact me to address those concerns directly” and where he had heard nothing from HR after his email dated 13 October 2021 asking for a copy of Rex’s risk assessment. There was no evidence of any reply concerning Mr Dean’s request for a copy of a risk assessment. (Separately, Mr Mattner’s evidence indicated that the AFAP had requested a risk assessment for pilots generally, and Ms Tran’s evidence indicated that several other employees had asked for a risk assessment, but Rex considered and relevantly advised Mr Mattner, for the reasons set out in Ms Tran’s evidence, it did not have to provide a risk assessment.)

[16] As to the Policy’s requirement for Mr Dean to have had two vaccination doses by 1 November 2021, Mr Dean’s response to the show cause letter continued:

“4. … I would like to point out that I am not opposed to having a vaccine to protect myself and the community from COVID-19. However, I am experiencing extreme hesitancy with the current vaccines that are available. I have been doing a lot of research, so that I can make an informed decision. I am currently ‘pooling all the facts’, to assess all the available options before making a final, informed decision. It is important to note that a close personal friend of mine died after having a COVID-19 vaccine. I also know of many others that have had significant adverse reactions. It has been well documented and is on the [Therapeutic Goods Administration] website that the possible side effects of the vaccines include Myocarditis, Pericarditis, and blood clots, just to name a few. If I were to suffer any of these, there would be significant consequences.

I would likely immediately lose my Class L medical and in turn my Airline Transport pilots Licence. If that eventuated, I suspect that I would struggle to ever regain either of those two certifications. As such, my career in aviation would abruptly be finished, with little or no warning, and no recourse.”

[17] Mr Dean then set out some matters around the operation of the Policy, emphasising that while he was a frontline employee for the purposes of the Policy that “there are always exceptions to nearly any rule”; here, Mr Dean wrote, 80 per cent of his duties comprised (non-frontline) simulator work and, for example, the employees within Rex’s Australian Airline Pilot Academy (“AAPA”) were not required to be vaccinated, but were required to wear face masks. Mr Dean asked rhetorically why he would not be considered to be in a similar position as AAPA staff?

[18] Mr Dean then turned to the other 20 per cent of his (frontline) pilot work, pointing to his limited physical contact with the passengers and available safety measures.

[19] Mr Dean said there was “a clear alternative”, asking that his simulator role potentially be expanded temporarily, to allow him to do more work there. In that regard, Mr Dean noted that, in the past, Rex had allowed several check captains to be on simulator-only duties due to medical issues. If Rex did not consider that undertaking full-time simulator duties would be feasible, Mr Dean suggested, as a further alternative, that there are other suitable roles where he could be utilised to “top up” the remaining 20 per cent of work.

[20] Mr Dean canvassed some other safety measures that might be considered, if his current role “remained as is”.

[21] Mr Dean’s response to the show cause letter concluded with the following summary:

“I am asking REX to give genuine consideration to my circumstances. As I have already stated, based on the experiences of friends, I am fearful of the long term health issues from the vaccine. I am also worried about the potential to be forced out of the aviation industry if I lose my licence due to a severe adverse reaction. In addition to that, given my history with the company, I would once again stress that I believe the current threat of termination is extremely harsh, and completely uncalled for in my situation. Rather I ask Rex to consider all possible opportunities, including temporary changes to my current role and/or introduction of additional control measures, to allow more time to consider all my options and extend my long and loyal career that I have forged with Rex. I look forward to your reply as a matter of urgency. Should there be any further detail that you require, I would be prepared to meet with you to discuss the matter further. …”

Rex’s response to Mr Dean’s response to the show cause letter

[22] On 16 November 2021, Mr Tan wrote to Mr Dean advising that management had considered his response to the show cause letter. Among other matters, Mr Tan advised that Rex had noted Mr Dean’s comments about potentially being an exception to the rule in being classified as a frontline employee given his estimate of 80 per cent simulator duties, but pointed out that Mr Dean’s role of Saab Captain (year 10) Check Captain (Grade 2) required flying and, therefore, was frontline. Mr Tan further advised that Rex disagreed with the proposed measures Mr Dean had outlined in his response to the show cause letter, explaining that these measures could not be guaranteed in everyday operations and nor could Rex guarantee that his workload would remain predominantly simulator-based. Mr Tan advised, as a result, in accordance with the Policy, Mr Dean was required to be vaccinated. Mr Tan noted that, to that point in time, Mr Dean had failed to comply Policy in not taking steps to be vaccinated by 1 November 2021. Mr Tan’s letter then turned to two further matters.

[23] The first matter was advice that, in consideration of Mr Dean’s personal circumstances and his years of service, Rex was allowing extra time (to 30 November 2021) for him to make a decision about obtaining a vaccination.

[24] The second matter was advice about an alternative position. Mr Tan’s letter read:

“I understand the HR Manager contacted you regarding an alternative role, specifically a casual Simulator Instructor. Given the Public Health Orders in Victoria and the requirements for authorised workers to be vaccinated you would be unable to work in the Melbourne Simulator; therefore, this would be a Wagga Sim position only. If this is something that would be of interest to you we request that you submit a formal expression of interest to Human resources at [email address] by no later than 30 November 2021. Please note this would be a permanent change, not a temporary placement and under different terms and conditions of employment to the Pilots Agreement.”

[25] Mr Tan’s letter then addressed matters related to applying for alternative (non-frontline) positions through the Rex Careers page. The letter also explained that Mr Dean would not be able to work during the period of the extension, and explained matters around leave without pay and/or accessing paid leave entitlements. Mr Tan’s letter concluded:

“Following receipt of your correspondence regarding the points outlined in this letter the Company will make a decision regarding your employment going forward. Please contact me should you have any questions or require any further clarification on anything outlined in this letter.”

[26] Mr Dean did not contact Mr Tan about anything outlined in the letter. He determined to write to Rex’s Executive Chairman, Lim Kim Hai, requesting a review of his individual circumstances as they related to the Policy – as I will next outline.

Mr Dean’s letter to the Executive Chairman of Rex

[27] Following receipt of the preceding correspondence from Mr Tan, Mr Dean “reluctantly” wrote to the respondent’s Executive Chairman, Lim Kim Hai, on 24 November 2021, seeking a review of his individual circumstances as they related to the Policy. Mr Mattner assisted Mr Dean in drafting that letter. Segments of Mr Dean’s letter to Mr Lim traversed matters that were similar to the matters raised in his earlier response to the show cause letter. Mr Dean also indicated that he was currently working with his doctor to find a solution to “this problem”. Mr Dean expressed concern that Rex’s management: (a) seemed to have simply dismissed his concerns, without much consideration; and (b) offered him a permanent change to a casual simulator instructor position (not something Mr Dean said he had expected or would ever want, due to his love of flying).

[28] Mr Dean then put forward various proposals/options, so that he “can, in due course, comply with” the Policy. For example, Mr Dean proposed that:

•  for a period of five months (until 31 May 2022), he would work only in the Wagga Wagga simulator (and potentially in the Sydney simulator, once operational);

•  he would continue at his current pay rate (Grade 2 Check Captain);

•  to increase simulator utilisation, Mr Dean indicated he would be keen to take on type rating training, without any salary increase (i.e., without increasing to the Grade 3 Check Captain pay rate);

•  to further increase his productivity, he would also take on the role of the Wagga Wagga Simulator Coordinator with no change/increase to his current salary rate;

•  once he was fully vaccinated, he would return immediately to full flying duties but would continue the additional duties as agreed until 31 May 2022.

[29] Mr Dean’s letter to the Chief Executive continued that if it there was agreement to “adopting a temporarily reconfigured role for a maximum of 6 months” he would have welcomed the opportunity to fill that role, and continue to actively work for the respondent. Mr Dean’s letter elaborated various matters in support of the proposed reconfiguration, including agreement with colleagues to do swaps. Mr Dean’s letter concluded: “I have already offered several possible productivity gains that would arise from my proposal, at no cost to REX, as a sign of my ‘good faith’ in this matter. Hopefully, with some additional discussion on the precise details of my proposal, a suitable final outcome can be agreed upon. I remain a loyal employee and thank you for your time in considering my situation.”

The reply to Mr Dean’s letter to Mr Lim

[30] Despite Mr Dean expressing his hope to Mr Lim that “with some additional discussion on the precise details” a suitable outcome could be agreed, no additional discussion ensued with anyone before the dismissal decision was later conveyed. It may be noted, in such respects, that Mr Dean’s evidence indicated that he felt sure that discussions with Mr Fisher would have achieved a mutually-agreed outcome that would have been suitable to Rex. As I will later outline, there is evidence to support a conclusion that if discussions had occurred, this would have been the case.

[31] Mr Tan responded to Mr Dean’s letter on 26 November 2021, advising that Mr Lim and the management committee had reviewed and carefully considered all the information, as well as Mr Dean’s previous response to the show cause letter. Mr Tan advised that the management committee’s position “remains unchanged on the matter as outlined in the correspondence sent to you on 16 November 2021.” Mr Tan further advised of matters around a Teams meeting “on 1 December 2021 to communicate the decision by the Management Committee regarding your on-going employment”, including advice to Mr Dean about his entitlement to have a support person present at the meeting.

The dismissal meeting on 1 December 2021

[32] Mr Dean fully considered, believed, and expected that the reference in Mr Tan’s letter to a meeting on 1 December 2022 to communicate the decision by the management committee regarding his “on-going employment” to be just that: a meeting about his on-going employment. In that regard, and notwithstanding the fact that the management committee’s position was unchanged (i.e., that he was required to be vaccinated under the Policy given his existing role involved frontline pilot duties), Mr Dean’s most recent correspondence to Mr Lim on 24 November 2021 concluded with a proposal that discussions be held. To contextualise this, Mr Dean wrote that so as to try to resolve this issue in a positive fashion and to assist in that aim “… can I suggest that a telephone or video call be organised for some point in the coming week, or soon after, in which the specifics of my proposal can be discussed in far greater detail. … Hopefully, with some additional discussion on the precise details of my proposal, a suitable final outcome can be agreed upon.” I re-emphasise, at this point, that the initial show cause letter had indicated that Rex “will confer” with Mr Dean about options following receipt of his response to the show cause letter, but Rex had not conferred with Mr Dean after that response had been received or at any time thereafter (the two telephone calls with between Ms Tran and Mr Dean could not be characterised as conferring with him, as I will later outline).

[33] To further contextualise matters, Mr Dean’s evidence and submissions also indicated that he genuinely held strongly to Rex’s ethos as set in the Rex Value Statement, and expected it would inform Rex’s approach. He highlighted aspects which read:

•  “Staff members are part of the Rex family”

•  “We accept that sometimes staff may make mistakes while trying to act in the best interest of the Company”

•  “We value open communication and will strive to create an environment that removes silo mentalities by embracing full transparency”

•  “Staff members have a right to be heard regardless of their position”

•  “Staff members are encouraged to directly contact the members of the Management committee and Board if they feel their immediate supervisors are being a barrier”.

[34] Mr Dean felt reaffirmed in such views given the comments made by Rex’s Deputy Chairman, The Honourable John Sharp AM, in a media release that was issued on 21 September 2021. In the media release titled “‘Determined’ to keep unvaccinated staff”, Mr Sharp was quoted as saying matters including: that about 30 of Rex's 1,500 staff were opposed to getting the vaccine for medical or “other reasons”; that, where possible, unvaccinated workers would be moved to positions where they did not interact with customers; that Rex was determined to keep staff; that if unvaccinated staff can be redeployed to another area where they are not customer-facing, Rex will do that to keep them in a job; and that “We hope there won’t be anybody who loses a job out of this.”

[35] A videoconference meeting was held on 1 December 2021, which was attended by Mr Dean, Mr Mattner, Mr Tan and Ms Tran. While I will return to what unfolded in the meeting, Mr Dean was dismissed.

The dismissal letter

[36] On 2 December 2021, Mr Tan sent a letter to Mr Dean confirming his dismissal. That letter relevantly read:

“Dear Brad,

Rex Group Mandatory COVID-19 Vaccination Policy, Termination of Employment

We write in respect of the Rex Group COVID-19 Mandatory Vaccination Policy (Policy) and refer to our previous communications with you about the Policy, particularly our most recent letter dated 16 November 2021, and to our meeting with you on 1 December 2021.

Alternative Roles (Non-Frontline/Customer Facing)

As set out in the letter of 16 November 2021, whilst the Company considered you failed to comply with the Rex Group COVID-19 Mandatory Vaccination Policy, specifically not taking steps to obtain your COVID-19 Vaccination by 1 November 2021, the Company gave you a further opportunity to apply for a casual Simulator Instructor position or existing advertised non-frontline roles within the Company by 30 November 2021. You were advised that if you did not wish to apply for an alternative role or did not find any of the advertised positions suitable or were unsuccessful in securing an alternative role, the Company will make a decision about your employment going forward.

Unfortunately, you have not secured an alternative role.

The Company has carefully considered all of the information available to it including the matters set out in the letters from you and discussed with you at the meeting on 1 December 2021; and we confirm there is nothing in that information that changes the Company’s position on the matter. We appreciate you taking the time to provide a personal response, explaining your circumstances and proposing alternative options for consideration by the Company. Unfortunately, for the reasons explained at our meeting with you, those options are not viable.

Decision to Terminate

Accordingly, as communicated with you at the meeting, the Company has made the decision to terminate your employment on the grounds that you are unable to perform in the inherent requirements of the role as a frontline employee as Saab Captain (Year 10) Check Captain (Grade 2) because you have not met the requirements of the Policy to be fully vaccinated against COVID-19 by 1 November 2021.

Our decision to terminate has not been made lightly, particularly given your length of dedicated service with the Company. However, the Company expects all of its employees to comply with the Policy and your failure to do so means that you cannot meet the inherent requirements of your role. Your employment as communicated is terminated with immediate effect 1 December 2021.

Notice in lieu

Whilst your employment ended on the date outlined above, in accordance with the Regional Express Pilot’s Agreement 2014, Rex will provide you with 4 weeks’ pay to be paid in lieu of notice and a further week for being over 45 years of age and having 2 years of service.

Leave entitlements

…

Return of company property

…

Future Employment

As communicated to you at the meeting, the termination of your employment in these circumstances does not preclude you from applying for employment with the Company in the future in the event that you do become fully vaccinated or if circumstances otherwise change. We thank you for your service with the Company and wish you well in the future.”

Mr Dean’s outline of submissions

[37] In Mr Dean’s written outline of submissions, which were filed and served pursuant to the directions, the first thing he noted was that he was seeking reinstatement. Among other matters, Mr Dean noted he been employed by Rex and its predecessor for over 27 years. He explained that prior to Rex releasing the Policy on 8 October 2021, he had developed vaccine hesitancy, and had tried to work with Rex and to explain his situation. Following the dismissal on 1 December 2021, he had continued to work through his vaccine hesitancy issues, while consulting with his doctor, and has now been able to comply with the Policy such as to now be fully vaccinated - having had his first COVID-19 vaccination on 17 February 2022 and the second on 10 March 2022.

[38] Mr Dean submitted that the dismissal was harsh, unjust and unreasonable. His case is not about whether Rex’s mandate was lawful, but it is a question as to whether the direction was reasonable given his particular circumstances and how Rex had handled his situation. Mr Dean submitted that “I’m not an anti-vaxxer but Rex is treating me that way”, in circumstances where he had the personal issue of significant anxiety towards the vaccine as confirmed by his doctor/designated aviation medical examiner, Dr Bjorklund. Mr Dean said he unfortunately had developed extreme anxiety resulting in vaccination hesitancy when a friend died after receiving the vaccine; he then had some family members suffer adverse reactions, which further exacerbated the situation. Mr Dean referred to the occasions where he had twice advised Rex in writing that he was not opposed to vaccination as well as in a telephone call with Ms Tran; he had been working with Dr Bjorklund and they had a plan moving forward concerning his vaccine hesitancy.

[39] Rex’s reason for the dismissal was that he was unable to perform the inherent requirements of the role as a frontline employee as Saab Captain (Year 10) Check Captain (Grade 2). Mr Dean submitted that when he was first employed by Hazelton Airlines (the predecessor employer), 100 per cent of his role was flying. Over the years, that percentage had significantly changed such that the flying portion of his role was approximately 20 per cent, with the rest of his duties in the Flight Simulator as a Check Captain (being duties he could perform unvaccinated under the Policy).

[40] Mr Dean submitted that “Rex terminating me immediately was extremely harsh”. He was not able to have the vaccination immediately after Rex mandated it in the Policy, but he did not refuse to be vaccinated. He had sought to engage with Rex about the measures by which he could continue to work unvaccinated while he worked through his anxiety, and ultimately offered to take leave that he had accrued before returning to work after being vaccinated. In this context, Mr Dean submitted that his conduct did not constitute serious misconduct such as to be given the same weighting as theft, fraud, assault, or intoxication at work, requiring immediate termination without notice. (I interpose to note that, in fact, Mr Dean was given a payment in lieu of notice, albeit the dismissal took immediate effect.) Mr Dean submitted that he never refused to comply with the Policy, and that all he needed was more time due to a personal medical issue. The final version of the Policy was published on 8 October 2021, requiring all frontline employees to be fully vaccinated by 1 November 2021. This placed unreasonable time pressure on him, as it gave only 23 days’ notice and a minimum of 21 days was required between doses. Mr Dean submitted that: “If you have a problem that you need to act on, it is not possible to act on that until the final policy is published.”

[41] Mr Dean submitted there were reasonable means by which his employment could have been maintained for a temporary period, with several options available to Rex which he had proactively offered. Mr Dean submitted that one of the simplest solutions was to utilise him only in the simulator, on a temporary basis, while he sorted out his personal medical issue. With approximately 80 per cent of his work in the simulator, it would have required only a small roster change to make this work. Additionally, two of Mr Dean’s colleagues offered to take his flying duties to free-up extra simulator duties where he and the two colleagues had often arranged shift swaps in the past to help each other out. Mr Dean had been proactive in offering several solutions to Rex, under the belief that he did not want to leave Rex short of a check captain and Rex would be more than happy to work with him to find a solution in circumstances where it was always his intention to find a solution.

[42] Mr Dean submitted that, despite his efforts to have a meeting, he did not even get a telephone call from either of his direct managers, the chief pilot Mr Fisher or Simon Vanstone, the Manager Training and Checking – both of whom he had known and worked with for over 20 years. The only meeting was the dismissal meeting on 1 December 2021, which Mr Dean described as having completely “blindsided” him, as he was expecting to discuss his situation and to work on a possible solution. This was in circumstances where the reason for the meeting on 1 December 2021 had been described to him (in Mr Tan’s correspondence) as one “regarding your on-going employment”.

[43] Mr Dean submitted there was precedent for Rex to grant his request, in the circumstances of him being temporarily medically unable to fly because, over the years, Rex had allowed check captains to perform simulator-only duties on a temporary basis when those employees had a medical issue preventing them from flying. It was discriminatory why this was not also made available to him.

[44] Mr Dean noted that Rex was happy for him to work unvaccinated in the simulator because it offered him a casual position in the simulator, unvaccinated. However, the casual simulator position Rex offered was to be a permanent change of employment, not a temporary placement. As a result, Mr Dean would have had to give up flying, full-time employment, and seniority. This offer of the casual position did suggest, however, that there was regular work that could have been temporarily allocated to him, whilst he was overcoming his anxiety prior to being vaccinated.

[45] All options suggested by Mr Dean were rejected, in circumstances where it would have been reasonable as a means of achieving the outcome of becoming vaccinated, whilst remaining productive, and allowing reasonable accommodation of his anxiety while working through this with Dr Bjorklund. He had been positive that this was only a temporary delay and that soon he would be able to resume full flying duties.

[46] Mr Dean submitted that another option that he put to Rex was to use his accrued annual leave/long service leave to allow him to work toward becoming vaccinated and, once vaccinated, return to work - which the Policy allowed. At the dismissal meeting, Mr Dean offered to take accrued annual leave and long service leave, which would have allowed time to around the 20 February 2022 to get over his anxiety and be able to return to work fully vaccinated. In response to this leave proposal, Mr Tan said he was unable to make that decision and paused the meeting for an hour so he could discuss this with the Executive Chairman, Mr Lim. When the meeting reconvened, Mr Tan advised Mr Dean that the Chairman’s decision was unchanged and that he was to be terminated immediately, without notice. Mr Dean submitted that, had he been granted the leave, he could not, within the meaning of s.387(a) of the Act, have been considered a threat to the safety or welfare of any Rex employees (or customers).

[47] Mr Dean noted that employees are given many different policies that must be complied with, and it would be expected that an employer will follow its own policies. Mr Dean submitted it was unjust for his employment to be terminated in circumstances where Rex had not complied with its own policies leading up to the dismissal. Mr Dean drew attention to that part of the Policy which explained (in the FAQs section): “If this results in a delay in getting fully vaccinated, the staff member will be required to take leave (including Leave Without Pay) from 1 November 2021 until the fully vaccinated date.” Mr Dean submitted that it is thereby clear that he should have been able to access accrued leave up to and including leave without pay if required until he was fully vaccinated.

[48] Mr Dean noted that the dismissal letter included advice that “… the termination of your employment in these circumstances does not preclude you from applying for employment with the Company in the future in the event that you do become fully vaccinated …”. Mr Dean submitted that this implies there was no issue with his employment, except for his vaccination status. Mr Dean submitted: “I am now fully vaccinated and am complying with Rex’s vaccination policy, why do I need to reapply, why can’t I be reinstated to my original position?”. As to this, Mr Dean further submitted that the implications of reapplying and starting his employment with Rex again are significantly harsh because he would lose his seniority number, his Wagga Wagga base, and 55 weeks of sick leave. Mr Dean’s submissions pointed out that, apart from employment with Rex, he is unable to gain similar and suitable employment in Wagga Wagga; he would have to relocate to another city to seek employment with another airline, which would involve significant personal and financial hardship.

[49] Mr Dean submitted that, at the time of the dismissal, he was trying to comply with the Policy, and that he had been “honest, upfront, and willing to work with Rex”. Mr Dean submitted that, with the benefit of hindsight, he could possibly have expressed/communicated himself better or differently in some of his correspondence. He submitted that he never wanted to lose his job and was happy working for Rex. Mr Dean submitted (uppercase in original): “As I said I am NOT an employment Lawyer but what I am is an excellent Pilot and Check Captain with an impeccable record of passionate and loyal service to Rex.”

Rex’s written outline of submissions

[50] Rex made detailed submissions on various matters relevant to the application, for example, against the background of the evidence of Mr Davis which comprehensively detailed the exigencies and developments that informed the Board’s decision to introduce the Policy; the evidence of Mr Fisher and Ms Tran also detailed similar matters in aspects of their evidence. Rex also addressed in detail reasons why Mr Dean’s failure to be vaccinated constituted a valid reason or reasons for the dismissal. To the extent that Rex’s submissions addressed matters around the rationale for the Policy and there being a valid reason or reasons for the dismissal, I will not summarise those submissions. There are three reasons for this:

(a) in the hearing, Mr Dean did not contest the Policy itself as it concerned the vaccination requirement;

(b) even if the Policy had been contested by Mr Dean in these proceedings, the Policy was, on the evidence and my acceptance of Rex’s submissions thereto, unassailably open to Rex to introduce and implement following the consultation processes that it undertook; and

(c) Mr Dean’s failure to comply with the Policy’s vaccination requirement objectively grounded a valid reason or reasons for his dismissal, as I will later discuss in addressing the criterion in s.387(a) of the Act – and this is so notwithstanding my acceptance of Mr Dean’s fears and anxiety about being vaccinated. As noted in the recent decision of Easton DP in Stuart Tween v Qantas Airways [2022] FWC 1594 at [124], that airline industry employer had introduced its vaccination policy during a global pandemic for cogent medical reasons and the vaccination fears of the applicant in that case did not exempt him from compliance.

[51] Rex submitted that Mr Dean’s application should be dismissed because: it had a valid reason for dismissal; the dismissal was not otherwise harsh; and a fair go all round was afforded. To the extent Mr Dean relied on an alleged lack of proper consideration concerning his personal circumstances, such matters are to be resolved by reference to the circumstances at the time of his dismissal on 1 December 2021 and not by Mr Dean’s subsequent vaccination. What is required, Rex submitted, is a close examination of the facts leading to dismissal with “the object of avoiding hindsight illusion”.

[52] Rex drew attention to Mr Dean’s employment history and the responsibilities of his role as a SAAB 340 Captain (Year 10) Check Captain (Grade 2). As captain, he was the legal commander of flights, but was also qualified to fly as second-in-charge as a first officer; as a check captain, he conducted routine pilot proficiency assessments, and he received an amount of about $45,000 more than the basic pilot rate under the Pilots EA in recognition of his rank as check captain. Rex referred to its estimate in the percentage breakdowns of Mr Dean’s duties, being estimates which were markedly lower than those proffered by him (with Rex’s estimates of simulator duties being in range of 50+ but less than 60 per cent).

[53] Rex drew attention to the exigencies which led it to introduce the Policy. As noted earlier, it is unnecessary to traverse the detail of those matters for the purposes of the decision. Relevantly, Rex’s submissions noted (concerning the then-proposed introduction of the Policy):

“11. … Various views were expressed in support or opposition to the policy. Some employees were trenchantly opposed to it, whilst others advised that they would refuse to work with unvaccinated staff members.

12. Mr Dean himself challenged the legality of the policy in a letter dated 24 September 2021. He said the policy infringed the Constitution. He said that it contravened provisions of the Biosecurity Act 2005 (Cth), United Nations instruments, and the Australian Immunisation Handbook. He said that he needed to give informed consent to vaccination or it would otherwise constitute unlawful coercion.”

[54] Under the Policy, which came into effect on 8 October 2021, frontline employees were required to provide evidence of their vaccination by 1 November 2021. Frontline employees who had a medical contraindication to vaccination, or who did not want to obtain a vaccination, were required to complete the Declaration Form by 16 October 2021 providing evidence of their medical contraindication and/or reasons for their objection. As to the 32 frontline employees who refused or failed to comply with the Policy, Rex provided the same processes to each of these employees, which involved further engagement with those individuals, and ultimately, a show cause process. By December 2021, 17 employees were dismissed - with the balance electing to obtain a vaccination, resign, or be redeployed.

[55] As to what had unfolded specifically in relation to Mr Dean as one employee among the 17 dismissed employees, Rex’s submissions characterised matters in the following way:

“15. With regards to Mr Dean, REX engaged in a lengthy process of discussion and correspondence between 15 October 2021 and 1 December 2021.

(a) On 15 October 2021, Mr Dean submitted his Declaration/Objection Form to confirm that he was not going to obtain a vaccination. He reiterated his view that the policy was coercive, and that he wanted to make an informed decision prior to undergoing a medical procedure.

(b) From there, [Ms Tran] commenced telephone conversations with Mr Dean to discuss his position and to seek his confirmation that he would obtain a vaccination. Such confirmation was not forthcoming, and Ms Tran would provide these updates to REX’s Management committee.

(c) On 26 October 2021, REX invited Mr Dean to show cause why he should not be subject to disciplinary action up to and including termination of employment. REX advised that, in line with the policy, he was to be stood down and that he could access his accrued entitlements. REX offered Mr Dean access to its EAP, and allowed Mr Dean to access his paid days in lieu.

(d) On 2 November 2021, Mr Dean wrote to respond to the show cause letter. He said that he was still hesitant, and still gathering information about vaccines. He relayed that he had a close friend of his who he said died after obtaining the COVID-19 vaccine. He said that he was not a front line staff member under the policy, and therefore, the policy did not apply to him or that he should be exempted from it.

(e) On 11 November 2021, Mr Dean and Ms Tran had another conversation. Mr Dean reiterated that he was still hesitant. Ms Tran asked him to put a timeline on when he could get vaccinated, but he would not do so.

(f) On 16 November 2021, REX wrote to Mr Dean and advised that, due to his personal circumstances, it was prepared to extend the time for compliance to 30 November 2021. REX also offered Mr Dean an alternative role as a casual simulator instructor based in Wagga Wagga, which would have accommodated his preference to remain unvaccinated under the policy. REX also encouraged Mr Dean to apply for any other vacancies on its job vacancy board if he wished to apply for an alternative non-front line position.

(g) On 24 November 2021, Mr Dean responded to restate his fear of the vaccine. He reiterated that the policy did not apply to him. He rejected REX’s offer of redeployment into the proposed simulator instructor role, and instead proposed an alternative option that involved REX incurring the cost of retraining him for duties that were not required at the time.

(h) On 26 November 2021, REX replied to advise that its position had remained unchanged, and that a meeting would be held to discuss his ongoing employment on 1 December 2021.

(i) On 1 December 2021, REX and Mr Dean met (together with Mr Dean’s support person, James Mattner). In that meeting, Mr Dean confirmed his hesitancy again, and confirmed to REX that he was unable to provide a firm commitment as to when he was proposing to obtain a vaccination. REX advised that it was proceeding to dismissal and confirmed this in writing on 2 December 2021.”

[56] Rex submitted that it decided to provide five weeks’ pay in lieu of notice, despite the refusal constituting what was described as “conventional serious misconduct”.

[57] Rex characterised Mr Dean’s submissions as in part involving the proposition that the application of the Policy was: “… unreasonable because: (a) he offered alternatives to dismissal which should have been taken up by REX; and/or (b) his personal circumstances were such that the direction became unreasonable”. As to that, Rex submitted that the assessment of reasonableness is directed to the Policy and its application to all frontline staff, and not an assessment of Mr Dean’s perceptions that the Policy should not have been applied to him; Rex submitted that, taken to its logical conclusion, Mr Dean is asserting that the Policy should have been applied to some frontline staff, but not all staff, and not to him. Rex enumerated thirteen reasons in elaboration of the submission that there was a valid reason for Mr Dean’s dismissal, be that because of his incapacity to perform the job as required, or due to his failure to comply with the Policy as a lawful and reasonable direction.

[58] Another tranche of Rex’s submissions addressed reasons why Mr Dean contended his dismissal was otherwise harsh, taking into account his personal circumstances and the difficulty he might face in finding alternative employment. Rex’s position is that the dismissal was not harsh upon considering all the circumstances leading to the dismissal and having regard to the legislative underpinning of “a fair go all round” for both the employer and the employee, assessed in the context of the authorities. Rex’s submissions continued that: “The insubordination to a lawful and reasonable direction will always be serious misconduct that entitles an employer to summarily dismiss an employee” and that the Commission “must start, therefore, at the conclusion that Mr Dean’s failure to comply with the policy was grave, and the proportionate response to this was summary dismissal”. As to that, Rex submitted that in October to December 2021, Rex sought to accommodate Mr Dean’s circumstances by: (a) extending the timeline for him to comply with the Policy to 30 November 2021, to allow him time to grapple with his stated hesitancy; (b) offering the opportunity for redeployment into a non-frontline role; and (c) going to the length of creating a casual simulator instructor role for him, in circumstances where no other employee had a position created for him or her. Upon Mr Dean “unexpectedly” deciding to reject the casual simulator instructor role, providing five weeks’ payment in lieu of notice, “notwithstanding the commission of serious misconduct”.

[59] Rex submitted that Mr Dean’s personal circumstances must be seen against the duty of Rex to afford equal treatment to its 1,400 employees in the implementation of the Policy, in circumstances where differential treatment between employees can bring about an unfair dismissal. Many Rex employees, for their own reasons, opposed the vaccination requirement. Rex sought vaccination compliance from all frontline employees, and it dismissed all those employees who refused to comply. Absent a medical contraindication, no distinctions were drawn by Rex and it would have been unfair for Rex to discriminate between employees and excuse Mr Dean from compliance; and it would be unfair on those employees if the Commission did the same. Moreover, Rex would have been met with objection and dispute upon other employees learning that Mr Dean was to be excused from complying with the Policy.

[60] Mr Dean’s alternative proposals were not acceptable and imposed unfair burdens on Rex, i.e.:

- Mr Dean’s retaining proposal involved Rex incurring the cost of retraining him for duties it did not require at the time;

- Mr Dean’s proposal that he take over simulator duties for other pilots would not have resulted in a full-time workload;

- the cessation of the check captain allowance for those other pilots likely would have followed, or Rex would have been required to continue paying such allowance in circumstances where other relevant pilots were not performing those duties and there was no evidence that those pilots supported such a measure; and

- Mr Dean remained unable to perform the simulator duties in Melbourne, given the then-prevailing COVID-19 measures in place in that State.

[61] Rex submitted that Mr Dean’s “last minute request to take leave was not practicable”, i.e., the request made in the dismissal meeting on 1 December 2021. Rex required all pilots to be ready, willing and able to conduct flight duties throughout the Christmas period due to the forecasted uptick in demand for flights over the December 2021 to January 2022 period, and due to the expectation that COVID-19 transmission throughout its pilot cohort would place significant pressure on Rex to be able to meet its flight schedules. Rex submitted that an employer may reject an annual leave or long service leave request provided the rejection is reasonable, having regard to the employer’s needs at the time.

[62] Rex submitted that Mr Dean “unexpectedly rejected REX’s own redeployment proposal into the role [it] had created for him” despite its proposal “accommodating his preference to remain unvaccinated and otherwise meeting the majority of his preferences”. Rex’s submissions further contended that Mr Dean’s “attempts to delay the effect of the policy should be seen as just that. He (like others subject to a show cause process) were delaying the implementation of the policy as it was expected at the time by Mr Dean and others that the courts would vindicate their stance”. By way of additional support, Rex submitted:

•  no employer has a duty to accommodate an employee (be it through delay or role modification) in these circumstances;

•  Rex needed its employees to comply with the Policy by 1 November 2021 so that it could immediately return to operations, take steps to stem its losses and restore its viability, and ensure that it had all pilots available to it in order to accommodate forecasted demand and COVID-19 illness within its pilot cohort;

•  Mr Dean’s delay attempts should be seen in context and not in hindsight (and in circumstances where Mr Dean as an airline industry worker had preferential access to vaccines from early 2021, he knew by August 2021 that Rex was considering instituting the Policy, he knew by September 2021 that Rex had decided that vaccination was to be mandatory, and Mr Dean had the vast majority of 2021 to come to the decision to be vaccinated).

[63] Rex reiterated its submissions that were to the effect that throughout the consultation phase, Mr Dean made it clear to Rex that he felt the Policy was unlawful (in a letter during the consultation phase) and coercive (in the subsequent Declaration Form). Then, throughout the show cause process, Mr Dean refused to confirm that he was going to obtain a vaccination by a particular date, despite Rex repeatedly asking this of him. By the time of the dismissal meeting on 1 December 2021, Mr Dean remained unvaccinated, and Rex had to treat him as unvaccinated in accordance with the terms of its Policy.

[64] In conclusion, Rex reiterated its submission that a fair go all round was afforded and that it did all that could reasonably be done to accommodate Mr Dean’s circumstances and his wish to remain unvaccinated. Further, Mr Dean’s personal circumstances did not, on balance, make the dismissal harsh – with reference to a decision of the Commission in which a finding was made that the application of a mandatory vaccination policy to an employee with 17 years’ service was nonetheless fair: Edwards v Regional Cream Products [2022] FWC 257. Unlike the circumstances in the referenced case, here Rex maintains that Mr Dean is welcome to reapply for employment now that he has decided to obtain a vaccination, if that is his wish.

[65] Rex submitted that Mr Dean was notified of the reason for the dismissal during the show cause processes that preceded the dismissal. Moreover, the dismissal letter addressed, as to reason, the fact that Mr Dean was unable to perform the inherent requirements of the role as a frontline employee as Saab Captain (Year 10) Check Captain (Grade 2) because he had not met the requirements of the Policy to be fully vaccinated against COVID-19 – being reasons that related both to capacity (inability to perform) and conduct (failure to comply with the Policy). Rex further submitted that its “exhaustive consultation and show cause process ensured that Mr Dean was notified of REX’s reasoning, and that he was given a fulsome [sic] opportunity to respond (section 387(a) and (b)). He had access to a support person, and Mr Mattner was there to provide support in the dismissal meeting of 1 December 2021(section 387(d)). These matters count towards the conclusion that the dismissal was fair.”

Mr Dean’s written reply submissions

[66] In his written reply submissions, Mr Dean highlighted various matters where he disagreed or cavilled with, for example, the characterisations or correctness of what had been advanced in some of Rex’s written submissions. While I do not summarise all the matters, some of the key matters advanced were as follows.

[67] Mr Dean strongly contested Rex’s percentage breakdown of pilot/simulator duties that in the 1 April 2019 to 31 March 2020 pre-COVID-19 he performed approximately 57 per cent of his role as a simulator instructor and 55 per cent from 1 April 2020 to 31 October 2021 (during COVID-19). Upon his own review of his rosters from the period 1 January 2018 to 1 December 2021 and a manual cross-checking in conjunction with his personal diary records, the results summary shows that (for Rex’s quoted period): (a) prior to onset of COVID-19 - 73 per cent simulator; and (b) during the pandemic period - 83 per cent simulator. Thus, the more accurate overall figures were 80 per cent simulator and 20 per cent aircraft duties.

[68] As to Rex’s submission which read “On 15 October 2021, Mr Dean submitted his Declaration/Objection Form to confirm that he was not going to obtain a vaccination. He reiterated his view that the policy was coercive, and that he wanted to make an informed decision prior to undergoing a medical procedure”, that submission was incorrect. That is, in the Declaration Form, Mr Dean did not say he was “not going to obtain a vaccination”; rather, he had said “I am still undecided about whether to get the vaccine or not.” Mr Dean submitted also that he did not say the Policy was coercive; what he had said was “I believe I will be in a position to make an informed position without coercion”.

[69] As to Rex’s submission that “He said that he was not a frontline staff member under the policy, and therefore policy did not apply to him or that he should be exempted from it”, Mr Dean submitted this was “miscommunicated”, given it was solely in relation to his proposal of redeployment into the simulator. Moreover, the FAQs identified that “Rex will assess the staff member’s situation to determine if any other safety measures could be implemented or review other suitable roles (where available) for the staff member to be re-deployed” and identified that “… each situation will be assessed on a case-by-case basis”. Further, as to Rex’s submission that, in correspondence dated 24 November 2021, “He reiterated that the policy did not apply to him”, Mr Dean submitted this was incorrect because he did not say this.

[70] In relation to Rex’s submission that “… it went to the length of creating a casual simulator instructor role for Mr Dean”, Mr Dean did not believe that this role was so much “created” for him, more so “proposed” to him. Mr Dean submitted it must clearly be noted that it was stated by Mr Tan in his correspondence “… this would be a permanent change, not a temporary placement and under different terms and conditions of employment to the Pilots Agreement”. As to Rex’s submission that Mr Dean would have maintained his pilot seniority and received a 25 per cent penalty rate, Mr Dean stressed that this was never mentioned or offered in writing to him. He added that seniority has been one of the major issues through this whole process and an offer involving retention of seniority would have been of major importance to his consideration if it had been communicated to him. Mr Dean submitted there appears to have been a major breakdown in Rex’s communications here – in circumstances where he had made several requests to meet with Rex to discuss his situation, but Rex was unwilling to engage with him in this way.

[71] Mr Dean addressed some other miscellaneous matters that had been advanced by Rex in relation to why his proposals were, in effect, impracticable, including:

•  As to the retaining proposal that would have involved Rex incurring the cost of retraining him for duties it did not require at the time, Mr Dean submitted that type rating is on his licence. Given his extensive experience and competency, the minor addition to perform type rating would likely involve a minimal cost. At the time, Rex had pilots in ground school, meaning these pilots were moving toward type rating training late in 2021 and into early-2022. He also understood that Rex was advertising for simulator instructors around the date of his submissions.

•  As to concerns expressed by Rex that Mr Dean remained unable to perform simulator duties in Melbourne, given the then-prevailing COVID-19 measures in place in that State, he had been in the Melbourne simulator on three occasions in four years, including for a proficiency check. Mr Dean submitted it would be highly unlikely he would be required there.

•  As to Rex’s submissions that Mr Dean’s proposal that he take over simulator duties for other pilots would not have resulted in a full-time workload, Mr Dean submitted that he did not propose to “take over simulator duties”, but rather “swap” duties with two Wagga Wagga-based check captains on a temporary basis. Mr Dean had verbal confirmation from these captains that they were happy to support/help-out, as had occurred over the years. As Rex had rejected the offer, there was nothing further to advance by way of evidence.

•  By reference to clause 66.1.2 of the Pilots EA, Mr Dean disputed Rex’s submission that the cessation of the check captain allowance for those other two pilots likely would have followed, or that Rex would have been required to continue paying such allowance in circumstances where pilots were not performing those duties. Mr Dean submitted that check captains are paid an annual allowance as compensation for their check and training duties irrespective of the amount of checking duties they perform. He added it was highly likely that the two captains would have been conducting check duties in the aircraft instead of the simulator and that it is rare that a check captain is rostered for a flight that does not involve check and training duties: therefore, their allowance would still be paid. The swap component of his proposals was, Mr Dean submitted, about redistribution of duties not forgoing duties.

•  Mr Dean submitted that Rex’s submission that his “last minute request to take leave was not practical” did not make sense to him in circumstances where he was trying to work with Rex to remain productive, so the taking of leave was not his first preference. He added: “keeping the Company’s productivity first and foremost is how I have always worked” and pointed-out that he thought the dismissal meeting was going to be about coming to an agreement on how he and Rex could implement a mutually beneficial arrangement. On the one hand, Rex was saying there was not enough work in the simulator for him and, on the other hand, Rex was saying that all pilots needed to be ready, willing and able to conduct flight duties throughout Christmas 2021 period due to a forecasted uptick in demand. Mr Dean submitted the simulator demand is continual and consistent, with only minor fluctuations throughout the year, because every pilot is checked every 180 days. This means someone had to perform the simulator duties and, if that had been him, this would have freed other check captains to fly.

•  In relation to Rex’s submissions that Mr Dean’s personal circumstances did not, on balance, make the dismissal harsh and that he was welcome to reapply for employment, Mr Dean again noted that there is a “massive detrimental difference” between re-applying and reinstatement in relation to pilot seniority (resetting him from 9 to 298), meaning the loss of the Wagga Wagga basing where he had resided for the last 19 years, with practically no chance of ever regaining that basing.

•  Mr Dean noted that Rex has not provided a witness statement from Mr Tan, who was its key representative in the dismissal process. Mr Dean also noted that his particular circumstances were relayed on several occasions to the management committee for a decision, but no one from that committee had provided a witness statement.

Mr Dean’s closing oral submissions (based on his speaking notes)

[72] Mr Dean’s closing oral submissions addressed matters including the following, with the overview drawn from a document he submitted in response to my request that he provide the speaking notes used for closing oral submissions.

[73] The case was not advanced by Mr Dean on the basis of questioning whether Rex’s Policy was lawful and reasonable. Rather, Mr Dean submitted that the question of reasonableness was advanced against his own particular circumstances and how Rex handled his situation. Mr Dean encapsulated matters as follows (uppercase in original):

“Why would I risk a career that I love by NOT complying with a REX policy?

I tried very hard to comply, [I] just needed some more time.”

Rex failed to follow its own policies.

[74] Mr Dean submitted that the fact that he had accrued leave gave him confidence that he would have more time to be fully vaccinated in line with the Policy. In that regard, Mr Dean referred to matters including the expectation by Rex’s Board that the Policy should be followed and comments made by Mr Sharp that if frontline staff could be redeployed to another area where they were not customer-facing, that would be done to keep those staff and the stated hope that no employee would lose his or her job.

[75] Mr Dean submitted he was “proactive in offering genuine temporary alternatives up to and including the taking of leave” – with the taking of leave being something Mr Dean understood and believed was clearly allowed by the Policy. Mr Dean referred to part of the FAQs numbered 7 in the Policy. The segment to which Mr Dean referred read: “If this results in a delay in getting fully vaccinated, the staff member will be required to take leave (including Leave Without Pay) from 1 November 2021 until the fully vaccinated date.” Mr Dean submitted that if Rex had followed its own policy in such respects “we would not be here today”, i.e., in relation to the application for an unfair dismissal remedy. Mr Dean submitted, including by reference to Rex’s values as espoused in the Rex Value Statement, that he believed and trusted that Rex “would have supported me on this” in its consideration of his case.

[76] Mr Dean referred to a check captain who is employed full-time by Rex, but is doing simulator-only duties because that employee does not have a current pilot’s medical. Mr Dean submitted that Rex accommodated that employee’s situation from 5 March 2022 (i.e., in circumstances where he was dismissed on 1 December 2021), which is consistent in the way other pilots had been treated in the past. As to this, Mr Dean rhetorically asked: “Why was this not made available to me?”.

[77] Mr Dean referred also to the evidence of what had transpired where serious flight safety breaches or serious policy breaches had occurred and how the pilots involved were managed; relevantly, he submitted matters would be investigated and there would be a meeting to determine what happened and that retraining may occur instead of termination of employment.

Natural justice and procedural fairness

[78] Mr Dean submitted that Rex did not genuinely engage with him and/or failed to afford him natural justice and procedural fairness. Mr Dean submitted: “To terminate an extremely loyal employee with over 27 years of service and an exemplary record without even one genuine meeting must be considered unfair. There was no meeting except for the termination meeting” on 1 December 2021. Mr Dean referred to fact that Mr Fisher did not personally contact him even though Mr Fisher held responsibilities for “exercising disciplinary authority over all flight personnel”. The Policy identified that “Managers are responsible for ensuring that all new and existing staff and associates in their department, or persons engaged to perform work for their department, are aware of and comply with its policy at all times”, but Mr Dean was not contacted by Mr Fisher or any of his managers, in contravention of the Policy in such respects concerning lines of responsibility.

[79] Mr Dean’s submissions noted that Mr Fisher, in his evidence, had expressed disappointment that Mr Dean had not accepted Rex’s offer of an alternative position as a casual simulator instructor at Wagga Wagga - but Mr Fisher did not know he was not given the terms and conditions that were otherwise outlined in his witness statement in connection with that offer, particularly on the issue of retention of seniority on the seniority list. Mr Dean submitted:

“If this was actually offered to me, I would have taken it.

If a temporary part time simulator position was offered to me, I would have taken it.

If a combination of simulator and accrued leave was offered to me, I would have taken it.

If accrued leave up to Leave Without Pay was offered to me, I would have taken it.”

[80] Mr Dean submitted that a simple meeting, or in fact any meeting, between himself and Mr Fisher would have offered him procedural fairness, but, more importantly, between them, they could have “easily cleared up this miscommunication [and] found an equitable solution to both parties”. The fact there had been no meeting before the dismissal was confirmed in the evidence of Mr Fisher and that of Ms Tran. Despite Ms Tran’s written evidence that she had “periodically” telephoned Mr Dean, Ms Tran had only two telephone conversations during the whole process preceding the dismissal. These telephone calls comprised: (a) a return call that Ms Tran made to him on 21 October 2021, after he had telephoned the HR section; and (b) a short “informal chat” on 11 November 2021 following his response to the show cause letter.

Failure to genuinely listen and procedural fairness

[81] Mr Dean submitted that Rex did not genuinely listen to him or provide him procedural fairness. Mr Dean submitted that his case “is different on a number of levels”. As to this, Mr Dean’s submissions included the following:

•  he is not saying he is special or should have been exempt from the Policy;

•  he is not an “anti-vaxxer”;

•  he continually said to Rex he was not opposed to the COVID-19 vaccine, but had significant hesitancy and anxiety towards the vaccine due to his personal experiences, as confirmed by the evidence of Dr Bjorklund;

•  he is now fully vaccinated and has been since 10 March 2022.

[82] Mr Dean considered that one option that was not genuinely explored was being redeployed into the simulator on a temporary basis, where he did not need to be vaccinated. Simulator duties made-up the majority of his role and temporary redeployment should have been a simple solution. Regardless of the (disputed) percentage breakdown of simulator duties versus flying duties, Mr Dean noted that it was nonetheless a matter of common ground that the majority of his work was simulator-based. If a middling approximation of a 70/30 per cent split was used, this would mean that only three days in every fortnight needed to be moved from a frontline role to a non-frontline role; and, Mr Dean submitted, this was only for a temporary time until he became vaccinated.

[83] Mr Dean expressed concern about what Ms Tran may have conveyed to Rex’s management committee based on their “very limited conversations”, and whether his “unique situation” was accurately passed-on to all the decision-makers or whether they were given a very abbreviated version “that lumped me with the anti-vaxxers”. Mr Dean noted he had on 24 September 2021 provided voluntary feedback/questions on the then-proposed Policy, pursuant to the invitation extended to employees. The subject-line of the letter was “Request for Advice in Relation to Vaccine Mandates” and was addressed to Neville Howell (acting Chief Operating Officer) and Mr Fisher. As to that letter, Mr Dean explained:

“It was a generic letter that I had received from a friend. It raised some questions and concerns.

The timing of this letter was not long after the death of a close personal friend, which was still very raw to me.

This letter was sent before REX had even put out a draft policy and I don’t think it should be used against me, as my intent was purely for feedback.

In REX’s submission … they say I challenged the legality of the policy but at that point in time the policy did not exist.

After the sudden death of a personal friend, following his vaccination, I developed justifiable vaccine hesitancy, which led me to a level of anxiety, through no fault of my own. This has been confirmed by Dr Bjorklund.”

[84] Mr Dean noted that Rex did not adduce evidence in the Commission proceedings from Mr Tan, who was Rex’s key representative in the dismissal process and a member of Rex’s management committee. It was Mr Tan who had sent Mr Dean two emails and who “delivered my termination meeting”. Mr Dean noted that his particular circumstances were relayed on several occasions to the management committee for a decision, but no witness statements had been provided by any member of that committee – raising, Mr Dean submitted, Jones v Dunkel questions.

[85] Mr Dean noted that (in the letter confirming the dismissal) Rex suggested that he should re-apply for jobs with it, and Rex’s evidence otherwise indicated there was no issue with his employment. As to the invitation to re-apply, Mr Dean drew attention to matters including:

•  seniority - and that going from 9 to about 300 on the seniority list would mean he would not be able to have a captain’s position in Wagga Wagga;

•  he would lose approximately 55 weeks’ sick leave and the potential opportunity for future promotions;

•  that this is extremely harsh by Rex to Mr Dean and his family after living in Wagga Wagga for more than 18 years.

[86] Mr Dean submitted that he felt that once Rex had formed an early opinion, rather than working with him, it discredited his estimation of frontline duties and failed to communicate the conditions outlined in the casual simulator-only position that was offered to him, including on the seniority issue. Mr Dean further submitted that Rex had actively refused the alternatives he suggested to assure his swift dismissal; he had been employed by Rex for over 10,000 days and if leave had been granted, again, “we wouldn’t be here today”.

[87] In conclusion, Mr Dean submitted that:

•  the support he had received from the check and training team, and his pilot colleagues far and wide, had been truly overwhelming;

•  he still loves his job;

•  he has always had Rex’s best interests at heart and has always done his absolute best to promote the airline;

•  he has no doubt that if he and Mr Fisher had had a meeting, they would have negotiated an outcome that was suitable and acceptable to Rex, up to taking leave (including leave without pay) as per the Policy – then, once he was fully vaccinated, he would have continued his loyal employment with Rex; and

•  Rex did not follow its policies, did not have a meeting with him, did not genuinely listen to him and unfairly dismissed him.

[88] In submitting that the dismissal was harsh, unjust and unreasonable, Mr Dean submitted he should be “reinstated with remuneration”.

Consideration

[89] I turn to a consideration of whether the dismissal was harsh, unjust or unreasonable, taking into account the criteria in s.387 of the Act.

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)

[90] No formal direction, as such, was given by Rex to Mr Dean to be vaccinated against COVID-19. Rather, the effect of the Policy was that a failure by a relevant employee to comply would be treated or considered as non-compliance with a lawful and reasonable direction – with the corollary that disciplinary action may result, including termination of employment. I accept that the Policy’s vaccination requirement as it applied to Mr Dean was, for the reasons advanced by Rex, lawful and reasonable in all the circumstances.

[91] As is plain, Mr Dean failed to comply with the requirement of the Policy. I find there was a valid reason for the dismissal related to Mr Dean’s capacity and conduct (including the effect of Mr Dean’s capacity and conduct on the safety and welfare of other employees) in him failing, as the Policy required, to be vaccinated against COVID-19 by either the initial deadline and/or the extended deadline - in circumstances where Mr Dean’s role and responsibilities undoubtedly comprised not only non-frontline simulator duties but also frontline pilot duties. This is so regardless of the contested percentage breakdowns of the respective frontline and non-frontline duties, albeit, on whichever analysis, the majority of Mr Dean’s work was simulator-based. Other reasons would also support a finding of a valid reason on capacity grounds, including Mr Dean being unable to fly into various states and airports because he was unvaccinated.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[92] Rex submitted that its exhaustive consultation and show cause process ensured that Mr Dean was notified of its reasoning, and that he was given a full opportunity to respond. I accept that there was comprehensive consultation in the lead-up to the implementation of the Policy with employees, various unions, and other interested parties such as the WHS committee and the Pilots’ Committee. What then next occurred that was specific in relation to Mr Dean included advice in the show cause letter that read:

“As outlined in the Policy, this means that from 1 November 2021:

- you are not able to attend for work because you are not ready willing and able to meet all the requirements of your position;

- you will not be paid any pay until you are ready, willing and able to attend for work (which means being vaccinated and providing evidence of this);

- if you have accrued annual leave or long service leave you may be allowed to access that leave while this issue is being resolved. You may also access days in lieu (DIL) you may have available. Please contact Manager if you wish to access accrued leave; and

- we will explore options with you, which may include (if applicable) alternative duties, or the taking of leave or the cessation of your employment. The transfer into a short term arrangement as a simulator instructor is not currently an option. However, after receiving your response to this show cause the Company will confer with you on any other possible options.”

[93] Despite what was set out in the last paragraph of the preceding extract from the show cause letter, Rex did not explore options with Mr Dean, including options such as (relevantly) “alternative duties” or “the taking of leave”. No explanation was given by Mr Tan to Mr Dean why: “The transfer into a short term arrangement as a simulator instructor is not currently an option”, more particularly in circumstances where there had been no previous consultation or any other form of discussions about a short-term arrangement as a simulator instructor and why this was not currently an option (being the approach about simulator duties that was later seemingly to inform other arrangements that Mr Dean was to propose in relation to temporary arrangements and the like). Moreover, again despite the advice within the same paragraph that “after receiving your response to this show cause the Company will confer with you on any other possible options”, Rex did not confer with Mr Dean after it received his response to the show cause letter about any other possible options. Rex did not “confer” with Mr Dean about any options at all before he was advised of the dismissal at the outset of the meeting on 1 December 2021 – and the lack of discussions is a central feature of Mr Dean’s contentions around procedural unfairness.

[94] On 2 November 2021, Mr Dean sent a lengthy response to the show cause letter (parts of which are extracted or summarised earlier) asking Rex to consider all possible opportunities, including temporary changes to his current role to allow more time to consider all his options and extend his “long and loyal career” with Rex. He added that he looked forward to a reply as a matter of urgency and that should there be any further detail that Rex required, he would be prepared to meet to discuss the matter further.

[95] Despite Mr Dean’ request for an urgent reply to his response of 2 November 2021 and what he said about meeting to discuss the matter further (i.e., in circumstances where the earlier show cause letter had referred specifically to conferring with Mr Dean after Rex received his response to the show cause letter), there was no meeting or conferring with Mr Dean. What next relevantly happened was that, on 16 November 2021, Mr Tan wrote to Mr Dean advising that, among other matters, management had considered his response to the show cause letter, and that his role required flying and, therefore, was frontline. In consequence, Mr Dean was required by the Policy to be vaccinated. The three other principal matters addressed by Mr Tan that were relevant to ongoing employment were: (a) advice about the extension of time to 30 November 2021 for Mr Dean to make a decision about obtaining a vaccination; (b) advice that Mr Tan’s understanding was that Ms Tran contacted Mr Dean regarding an alternative role, specifically as a casual simulator instructor (advised as a permanent change, not a temporary placement and under different terms and conditions of employment to the Pilots EA) and indicating that any expression of interest should be submitted by no later than 30 November 2021; and (c) advice about applying for alternative (non-frontline) positions through the Rex Careers page. Mr Tan’s letter concluded:

“Following receipt of your correspondence regarding the points outlined in this letter the Company will make a decision regarding your employment going forward.”

[96] Thus, Mr Tan’s letter, in referring to following “receipt of your correspondence”, sought a written reply regarding the points outlined in the letter. There was no mention of conferring with Mr Dean about options (as had been set out in the show cause letter), albeit Mr Tan did indicate that Mr Dean should contact him should he have any questions or require any further clarification on anything outlined in this letter – and there had been no conferring in the fortnight between Mr Dean’s response to the show cause letter and Mr Tan’s letter of 16 November 2021. Mr Dean did not contact Mr Tan about anything outlined in the letter.

[97] The correspondence Mr Dean sent following Mr Tan’s letter was sent to Rex’s Executive Chairman, Lim Kim Hai, requesting a review of his individual circumstances as they related to the Policy and proposing a range of options.

[98] Mr Dean was given an opportunity to respond to the reasons related to his capacity and conduct, and did so through his written communications to Mr Tan and Mr Lim. Mr Dean was concerned that the alternatives he proposed in terms of reconfigurations of his role, or other potential options, were not properly considered or discussed with him before the dismissal decision had been made. The evidence otherwise indicated that Mr Dean had two fairly perfunctory telephone calls with Ms Tran which appeared to have as their principal focus discussion about vaccination hesitancy and timelines. Moreover, in his letter to Mr Lim, Mr Dean had written:

“To assist in that aim, can I suggest that a telephone or video call be organised for some point in the coming week, or soon after, in which the specifics of my proposal can be discussed in far greater detail. I have already offered several possible productivity gains that would arise from my proposal, at no cost to REX, as a sign of my ‘good faith’ in this matter. Hopefully, with some additional discussion on the precise details of my proposal, a suitable final outcome can be agreed upon.

I remain a loyal employee and thank you for your time in considering my situation.”

[99] No meeting or discussion of the type proposed by Mr Dean in his letter to Mr Lim was arranged by Rex.

[100] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 has been affirmed by a number of decisions of Full Benches of the Commission, including Mark Bartlett v Ingleburn Bus Services Pty Ltd t/a Interline Bus Services [2020] FWCFB 6429 (“Bartlett”). Bartlett conveniently describes the established operation of s.387(b) and s.387(c) of the Act (reference not reproduced):

“[19] The relevant principles as to the meaning and application of s 387(b) and (c) are well-established. They may be summarised as follows:

(1) Each of the matters specified in s 387, including those in paragraphs (b) and (c), must be taken into account as matters of significance, to the extent that they are relevant to the particular case at hand, and given due weight.

(2) Proper consideration of s 387(b) requires a finding to be made as to whether the applicant has been notified of “that reason” – that is, the reason for dismissal relating to the capacity or conduct of the applicant found to be valid under s 387(a) – prior to the decision to dismiss being made.

(3) Proper consideration of s 387(c) requires a finding to be made as to whether the applicant has been given a real opportunity to respond to the reason for dismissal. As a matter of logic, unless the applicant has been notified of the reason, it is difficult to envisage that it could be found that the applicant has been afforded an opportunity to respond to that reason.

(4) Once findings are made in relation to s 387(b) and (c), they may then be weighed together with the other matters required to be taken into account in order to form a conclusion as to whether the applicant’s dismissal was harsh, unjust or unreasonable. Where it is found that the applicant was not notified of the reasons for dismissal and/or was not given an opportunity to respond, a relevant consideration as to the weight to be assigned to this is whether this meant that the applicant was deprived of the possibility of a different outcome in terms of avoiding his or her dismissal.” (Italics in original)

[101] As to s.387(b) of the Act, I find Mr Dean was put on notice by Rex about the reasons related to matters concerning his failure to be vaccinated, but I also accept Mr Dean’s submission to the effect that there was a denial of procedural fairness to him in relation to the discussion of options other than dismissal in circumstances where he had advanced various proposals. That is, Mr Dean squarely submitted: “To terminate an extremely loyal employee with over 27 years of service and an exemplary record without even one genuine meeting must be considered unfair. There was no meeting except for the termination meeting” on 1 December 2021. Borrowing from what was said by the Full Bench in Bartlett, I find Mr Dean “was deprived of the possibility of a different outcome in terms of avoiding his … dismissal”. Mr Tan advised that the meeting scheduled for 1 December 2021 was “to communicate the decision by the Management Committee regarding your on-going employment”. As noted earlier, Mr Dean understood that the meeting was to discuss his “ongoing employment”. The outcome of the meeting on 1 December 2022 was, however, predetermined by the Board, regardless of matters that may have been raised by or on behalf of Mr Dean – and in circumstances where, notably, the meeting arranged by Rex for 1 December 2021 was the only meeting relating to the dismissal that was convened by Rex.

[102] In the usual scheme of things, consistently with the tenets of procedural fairness, a meeting or discussions might ordinarily be expected to be held between an employee and an employer to discuss matters before a dismissal is actually effected. A familiar approach in terms of procedural fairness would be to allow an employee, and/or his or her representative, the opportunity to canvass and discuss matters in a meeting before the final dismissal decision is made, or at least before a dismissal decision is conveyed, e.g., “Is there anything else you would like to say, or have considered, before a final decision is made?”. Here, Mr Dean had not been given the opportunity to have a meeting or discussions with the assistance of a support person to canvass matters before being informed of the dismissal in the meeting on 1 December 2021. Mr Dean’s case drew particular attention to, for example, his understanding that leave would be engaged as an option if no suitable role could be found as set out in the FAQs in the following way:

“If no suitable role can be found the staff member will be required to meet the requirements of the policy to continue working in the frontline. If this results in a delay in getting fully vaccinated, the staff member will be required to take leave (including Leave Without Pay) from 1 November 2021 until the fully vaccinated date. If vaccination is not an option for the staff member then the staff member may be terminated due to not meeting a work requirement.”

[103] Despite Rex’s submissions suggesting that in the meeting on 1 December 2021 (in this order) Mr Dean “confirmed his hesitancy again, and confirmed to REX that he was unable to provide a firm commitment as to when he was proposing to obtain a vaccination. REX advised that it was proceeding to dismissal …”, Mr Tan first advised Mr Dean that he was dismissed. It was only after that the dismissal advice had been relayed that there then was a discussion about other matters, relevantly including Mr Dean’s proposal of the potential option of accessing leave for a confined period of time instead of dismissal.

[104] The evidence around this really is quite clear. That is, the evidence of three of the four participants in the meeting on 1 December 2021 - Mr Dean, Mr Mattner and Ms Tran - each indicated that Mr Tan informed Mr Dean, around the outset of the meeting, that he was dismissed.

[105] To the extent that there was then post-dismissal discussion in the meeting about options Mr Dean wanted to canvass and have considered, including accessing leave until 20 February 2022 (or 1 March 2022 at the latest) - by which time it was his plan/intention to be fully vaccinated, Mr Tan’s advice, following his discussion with Mr Lim, was to reconfirm the earlier advice to Mr Dean that he was dismissed.

[106] As to this, Mr Dean’s evidence was:

“61. On 1 December 2021 A teams meeting was conducted. Present were Myself, Irwin Tan, Paula Tran and James Mattner (AFAP).

i. At the start of the meeting, Irwin said: “... the purpose of today’s meeting is to terminate your employment, effective immediately”.

ii. I was totally blind-sided by this and in shock, I certainly had not prepared myself for anything like that outcome. For my part, I was still focussed on the process of finding an agreeable short-term compromise, that would allow me to continue working at Rex, albeit with a few alterations in duties etc., up until I was Covid-19 double vaccinated.

iii. I said “I’m disappointed by Rex’s decision, I am not an antivaxxer and I am working with my doctor to get vaccinated. Why wouldn’t Rex work with me”.

iv. I said “why can’t I take my accrued leave, both annual leave and long service leave. This would have allowed me the further time, to around the 20 February 2022 to get over my anxiety and be able to return to work fully vaccinated.

v. Irwin [Tan] said, “I am unable to make that decision, could we pause the meeting for an hour so I can discuss this with the chairman?”

vi. It was agreed that we could pause the meeting.

vii. Just prior to pausing the meeting Irwin said “just to make sure I have got it correct, confirming you will take your leave and return to work vaccinated”.

viii. I said “that is my plan”.

ix. Paula [Tran] then said “can you confirm the date is the 20^th of February, that you are going to return fully vaccinated”.

x. I said “that is my intention”.

xi. When the meeting reconvened Irwin said, “that the chairman’s discission was unchanged and I was to be terminated immediately, without notice.””

[107] To similar effect, the evidence of Mr Mattner was:

“33. At the start of the meeting [on 1 December 2021], Mr Tan stated that Rex’s management had reviewed Captain Dean’s written response to the ‘Show Cause’ letter.

34. Mr Tan then stated that before he went any further in the meeting, he thought it preferable to advise Captain Dean immediately that the decision of Rex’s Executive Chairman and senior management was that there was insufficient simulator work for Captain Dean to do for a full-time role, and consequently that Rex was terminating him effective immediately, with the full notice period to be paid in lieu.

35. Captain Dean responded by saying that:

(i) he was very disappointed by Rex’s decision;

(ii) he was not opposed to being vaccinated against COVID-19;

(iii) getting COVID-19 vaccinations was still definitely an option for him, but he was trying to find a solution to his existing concerns about the vaccination types that were currently approved in Australia;

(iv) he did not want his twenty-seven (27) years of loyal service broken.

36. Mr Tan replied, noting that to operate currently in and out of Kingsford Smith Airport in Sydney, Captain Dean would need to be fully COVID-19 vaccinated.

37. Captain Dean then questioned Mr Tan whether he could utilise his accrued annual leave, whilst he sorted out his concerns around COVID-19 vaccinations.

38. Mr Tan then stated he would suspend the meeting briefly, to allow him to confer with Rex’s Executive Chairman about Captain Dean’s request to take annual leave, in preference to being terminated.

39. After a short break, the meeting was reconvened.

40. Mr Tan advised Captain Dean that he had conferred with the Executive Chairman, but Rex’s position was that Captain Dean was still to be terminated immediately.

… [Description of further discussion]

44. Mr Tan’s [sic] repeated that senior management at Rex had already made the decision to terminate him.”09209

[108] Again to similar effect, the evidence of Ms Tran was:

“70. On 1 December 2021, I attended a Microsoft Teams meeting with Mr Tan, Mr Dean and Mr Dean’s support person James Mattner (Senior Industrial Officer AFAP), during which we communicated to Mr Dean that REX had decided to terminate his employment.

71. By way of summary, at the meeting:

(a) Mr Tan informed Mr Dean of REX’s decision to terminate his employment due to non-compliance with the policy;

(b) Mr Dean proposed, as an alternative to termination, that he would use his annual leave and long service leave, and during that time would get vaccinated;

(c) Mr Tan asked Mr Dean “are you likely to get vaccinated?”;

(d) Mr Dean responded words to the effect that he was “likely to get vaccinated but needed time to deal with personal issues”. He calculated that if he used all of his leave, he would have until 20 February 2022 to be vaccinated;

(e) I asked Mr Dean whether he can be certain that on 20 February 2022 he would return to work vaccinated, or whether his intention was to make a decision by then if he would receive the vaccine;

(f) Mr Dean again responded that he was “likely” to be in a position to return to work, however he would like the “flexibility of maybe 1 March 2022”;

(g) we paused the meeting so Mr Tan could discuss this proposal with Mr Lim;

(h) the meeting reconvened and Mr Tan communicated to Mr Dean that the Executive Chairman had considered what Mr Dean had to say but the decision stands and that his employment will still be terminated; …”.

[109] As may be seen from the three extracts of evidence above, and while there are some differences in detail in the accounts of Mr Dean, Mr Mattner and Ms Tran about aspects of the meeting on 1 December 2021, what is a matter of common evidentiary ground is that the meeting relevantly commenced with Mr Tan relaying advice to Mr Dean that he was dismissed.

[110] Among other matters said, Mr Dean then next relevantly proposed accessing leave accruals instead of the dismissal that already had been advised to him by Mr Tan. It is unknown what was discussed between Mr Tan and Mr Lim after Mr Dean made his proposal about accessing leave until 20 February 2022 or 1 March 2022 and his advice that it was his intention to be fully vaccinated by that date, because neither Mr Tan nor Mr Lim gave evidence in the proceedings. Mr Tan subsequently relayed advice to Mr Dean that the dismissal decision stood and his employment would still be terminated.

[111] As things later transpired, Mr Dean was not fully vaccinated by 20 February 2022 or 1 March 2022, but he did have his first vaccination against COVID-19 on 17 February 2022 (and then had his second on 10 March 2022). I consider that, if access to his leave accruals had been granted and Mr Dean showed Rex evidence of his first vaccination within his leave period, it seems likely that Rex would not have proceeded to dismiss him, say, on 20 February 2022. The fact of the vaccination on 17 February 2022 would have stood as a clear manifestation to Rex that Mr Dean’s stated intention to be fully vaccinated was underway (and then was, in fact, completed as to double vaccination shortly thereafter, namely, on 10 March 2022). On the other hand, if Mr Dean did not show such proof, it may be accepted that Rex would reasonably have proceeded to dismissal and refusal of further leave requests.

[112] The fact of Mr Dean’s first COVID-19 vaccination on 17 February 2022 would have dispelled the concerns, as expressed by Ms Tran, that he was just delaying and would not become vaccinated if granted leave. That is, Ms Tran’s evidence indicated that she was not confident that Mr Dean would be vaccinated and that he was engaging in delaying tactics (not dissimilarly to other employees who would not be vaccinated and were, in effect, waiting to be vindicated in relation to various legal challenges to requirements of any description concerning vaccination). To avoid any doubt, there was no evidence to suggest that Mr Dean was one of the employees who was seeking to delay being vaccinated against the background of awaiting various legal challenges to vaccination mandates – being a matter that I sought clarification of in the proceedings. Further, the evidence of Mr Dean and Dr Bjorklund referred to matters about trying to address his anxiety and specific concern about being regarded by Rex as an “anti-vaxxer”.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[113] There was no unreasonable refusal by Rex to allow Mr Dean to have a support person to assist during the discussions on 1 December 2021. Mr Dean was assisted by Mr Mattner of the AFAP as his support person/union representative during that final meeting. Mr Dean’s case effectively contended that the dismissal meeting was not so much a meeting to discuss matters relating to the dismissal, but rather to deliver the advice about the dismissal as a fait accompli. I accept that is the case. I find that Mr Dean was afforded the opportunity to have a support person present at a meeting not so much relating to dismissal, but at a meeting when the pre-determined dismissal decision itself was conveyed. In that regard, it is apposite to point out that Ms Tran’s contemporaneous handwritten notes of the dismissal meeting included text which recorded Mr Dean as having said words to the effect: “disappointed, first time had conversation asked for previously”.

If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal

[114] This dismissal was a conduct and capacity-related dismissal in relation to the Policy’s COVID-19 vaccination requirement. There were no unsatisfactory performance-related issues. Mr Dean was a well-regarded, “competent” employee.

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 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

[115] Rex is a significant employer in Australia’s domestic aviation industry, employing approximately 1,486 employees. The procedures that were followed by Rex in effecting the dismissal were broadly consonant with the types of procedures that might be expected from an employer of that size and which has dedicated HR management specialists or expertise.

[116] Mr Fisher indicated that matters were effectively left with Rex’s HR section, given the commonality of the industrial relations issues concerning the application of the Policy and the not-insubstantial number of employees who were not vaccinated against COVID-19. The evidence indicated there had been two fairly short telephone calls between Mr Dean and Ms Tran. Subject to matters I will address later in the decision, it is nonetheless a little surprising that an employer with in-house HR personnel did not convene any meeting to discuss matters at any time preceding the meeting on 1 December 2021, especially when the show cause letter included advice that Rex would confer with him following his response to the show cause letter, and Mr Dean also sought discussions. The only meeting that was convened was the one in which the dismissal advice was peremptorily conveyed by Mr Tan to Mr Dean and, as outlined earlier as being a matter of common evidentiary ground, at the outset of that meeting. I do not say “peremptorily” in a way that is personally critical of Mr Tan. Mr Tan was the messenger of the dismissal decision that had already been made (and, later in the meeting, he was also the messenger of Mr Lim’s decision that the dismissal stood).

Any other matters that the Commission considers relevant

[117] I am acutely conscious of Rex’s submissions about even-handedness in treatment as between Mr Dean and its other employees who did not comply with the Policy. To give Rex’s submissions evidentiary form and context, Ms Tran’s evidence identified the following matters:

“54. As mentioned, all frontline staff obtained vaccination, save for 32 who had initially refused.

55. In relation to these 32 employees:

(a) 9 employees chose to get vaccinated.

(b) 1 provided evidence of a medical contraindication to the vaccine. REX was able to redeploy this person to the role of a Catering Officer, where vaccination was not required under the Policy.

(c) 2 employees applied for vacancies on the REX job vacancies board and were redeployed into non-frontline roles.

(d) 2 employees had resigned.

(e) 1 employee was on long term leave for unrelated reasons, and remains on leave. The show cause process is yet to conclude in respect of this employee.

(f) 17 employees refused or failed to comply with the Policy and were dismissed following a show cause process.”

[118] By way of further elaboration to Rex’s submissions about even-handedness, Mr Fisher’s evidence identified the following matters concerning the pilots within the cohort of dismissed employees:

“34. Mr Dean was one of approximately 9 pilots (and 32 employees in total) who refused to comply with the Policy when it commenced.

35. [Rex’s HR section] was primarily responsible for engaging with these pilots and seeking confirmation from them about whether or not they would comply with the Policy.

36. All pilots that did not comply with the Policy were eventually dismissed from their employment, including Mr Dean.”

[119] Thus, 17 employees, including nine pilots, were dismissed for failure to be vaccinated against COVID-19. I am aware, and there was discussion about this in the initial stages of the proceedings, that several employees who were dismissed by Rex for failure to be vaccinated, other than Mr Dean, lodged applications for an unfair dismissal remedy. To my general understanding, Mr Dean’s application initially travelled with those other unfair dismissal applications. Following representation to the Commission from Mr Dean’s then-solicitors, Mr Dean’s application was disaggregated from the other applications and was allocated to me in a standalone-type way, whereas the other applications were collectively allocated to another member of the Commission and continued to travel together. Again to my general understanding, all the other applications were discontinued before their scheduled hearing date.

[120] In circumstances where Rex dismissed 17 employees for failure to be vaccinated against COVID-19, I fully appreciate why Rex could not be seen to be showing some, however described, leniency to Mr Dean in relation to the uniform application of the Policy.

[121] I have considered the evidence and submissions around even-handedness as between employees. I note that Rex’s evidence and submissions also placed emphasis on the offer of the casual simulator-only position as involving something that was not arranged for any other unvaccinated employee. The fact of the matter is that Rex was prepared to continue the employment of the unvaccinated Mr Dean in simulator-only duties through its offer/creation of a casual position that was specific to him.

[122] As to the offer of the casual simulator-only position, Ms Tran’s evidence was that, in a telephone conversation with Mr Dean, the following was said:

“65. On 11 November 2021, I had a telephone conversation with Mr Dean regarding his response to the Show Cause Letter. During this conversation we discussed the following:

…

(c) I told Mr Dean that REX is prepared to offer him work in an alternate non-frontline role, being a casual Simulator Instructor based in Wagga Wagga;

(d) Mr Dean told me that he would consider the offer, however he indicated that he did not want to reduce his remuneration or lose his prior service; …”.

[123] Hence, on Ms Tran’s evidence, the extent of the information she relevantly provided to Mr Dean was that Rex was prepared to offer a casual simulator instructor position based in Wagga Wagga. Ms Tran’s evidence did not indicate that she said anything in relation to Mr Dean’s concerns about reduced remuneration or loss of prior service - in circumstances where, at this juncture in the telephone conversation, it might be expected that that Ms Tran could have, or should have, explained that: (a) there would be a 25 per cent loading attaching to the offer (which may have assuaged the financial concern); and, (b) importantly, as to losing his prior service, that his seniority on the pilots’ seniority list would not be lost. (Separately, I note that Mr Dean would have lost approximately 55 weeks of accrued, but untaken, personal/carer’s leave with the termination of his permanent employment in connection with Rex’s offer of future employment on a casual basis.)

[124] The subsequent correspondence from Mr Tan to Mr Dean about a Wagga Wagga-based casual simulator instructor position relevantly read in connection with the invitation to submit a formal expression of interest:

“I understand the HR Manager contacted you regarding an alternative role, specifically a casual Simulator Instructor. Given the Public Health Orders in Victoria and the requirements for authorised workers to be vaccinated you would be unable to work in the Melbourne Simulator; therefore, this would be a Wagga Sim position only. If this is something that would be of interest to you we request that you submit a formal expression of interest to Human resources at [email address] by no later than 30 November 2021. Please note this would be a permanent change, not a temporary placement and under different terms and conditions of employment to the Pilots Agreement.”

[125] On what was before me, the information that was provided to Mr Dean about the casual position was as set out in the extract of Ms Tran’s evidence and in the extract from the above letter from Mr Tan. Mr Fisher’s evidence elaborated matters concerning the casual position, but not in a way that was ever explained to Mr Dean. That is, Mr Fisher’s evidence on the topic of the Wagga Wagga simulator casual employment was:

“55. Notwithstanding the impracticability and unfeasibility of Mr Dean’s proposals, REX decided to create Mr Dean a position which somewhat met his request, and would have allowed him to remain unvaccinated which was his preference.

56. The proposal was outlined in a letter on 16 November 2021 from Mr Irwin Tan (General Manager Corporate Services). In that letter, REX offered Mr Dean an alternative position as a casual Simulator Instructor. This arrangement would have enabled Mr Dean to work solely in the Wagga Wagga simulator, allowed him to remain unvaccinated which was his preference, whilst providing REX with adequate flexibility during periods where the simulator was quiet or not operational.

57. As a casual position, it would have attracted a casual loading of 25% on top of his hourly rate of pay under the Pilots EA (or the hourly rate under the Award if there was a BOOT issue). He could have maintained his seniority on the seniority list for future transfer opportunities. If he was to work the proportions of simulator duties that he asserted by, for example, arranging with other Check Captains roster arrangements that allowed him to perform that amount of simulator work at Wagga Wagga (consistent with his assertions), take home pay could have been more or less the same. In addition he may have been eligible for casual conversion if the arrangement went for more than a year.

58. REX formulated this proposal for Mr Dean only. No other REX pilot or REX employee had a position created for them so as to ensure that they did not lose their employment.

59. REX did this taking into account his responses throughout the processes of consulting and encouraging him that I outline above. REX decided to take this step acknowledging Mr Dean’s circumstances, and his length of service to REX.

60. Much to everyone’s disappointment, Mr Dean chose not to accept this position.”

[126] Ms Tran gave evidence to relevantly identical effect as that given by Mr Fisher about the proposed casual simulator position, but, as I have outlined, there was no evidence from Ms Tran that she explained what the proposal would involve in the terms now described in her evidence or in any other terms. Moreover, Mr Tan’s letter at least seemed to proceed on the basis that such matters had or may have been described by Ms Tran to Mr Dean about the offer of the casual simulator-only position, but, clearly, it was not described or explained in this way.

[127] Mr Fisher explained matters about seniority:

“15. Under the Pilots EA, Rex publishes a seniority list of all pilots in its employment. Seniority is considered in all matters concerning employment opportunities, promotions, retention or demotion in case of reduction of establishment and posting, temporary and permanent transfer. Each pilot is ranked based on the length of service of that pilot, with the longest serving pilot being ranked “one”. As at 13 December 2021, Mr Dean was ranked nine out of 298 pilots in the seniority list as he had been employed by REX (and Hazleton initially) since 1994.”

[128] Mr Dean submitted: “If this was actually offered to me, I would have taken it.” Mr Dean was emphatic that no one described to him the matters about the terms and conditions of the casual simulator position. While it is the case that there was no evidence that the proposed position was described to him, equally, Mr Dean did not contact Mr Tan despite the invitation to make contact if he had any queries (which may have included queries about the terms and conditions of the offer being an offer described by Mr Tan as a permanent change, rather than a temporary placement, and with terms and conditions of employment different from the Pilots Agreement). Mr Dean took the approach of writing to Mr Lim, seeking a review and consideration of the further matters he proposed by way of a temporary reconfiguration of his role so that it was non-frontline. Regardless of whether there was fault on the part of Rex that it did not better-explain matters, or whether there was fault on the part of Mr Dean in not contacting Mr Tran for more details about the terms and conditions attaching to the offer of the casual simulator-only role, there was a clear lack of communication and/or explanation that may have been constructively resolved in the interests of both parties - given they were both plainly trying to preserve an ongoing employment relationship - if matters had been discussed in a meeting before the dismissal was effected.

[129] One way or the other, it may be accepted that no one described to Mr Dean the terms and conditions elaborated in the proceedings by Mr Fisher and Ms Tran – particularly on the important issue of seniority, described by Mr Dean as being “one of the major issues”; and his subsequent proposal to Mr Lim was a temporary reconfiguration, rather than what Mr Tan had confirmed would be a permanent arrangement in simulator-only duties, in circumstances where he explained to Mr Lim his love of flying, in the context of advancing his proposed temporary reconfiguration.

[130] Clause 32 of the Pilots EA deals with the arrangements around the seniority list, including bid preference in relation to matters such as “base” (with Mr Dean’s “Home Base” being Wagga Wagga) as well as omission/protest procedures. The Pilots EA also identifies the seniority list as being relevant to a range of rights and obligations addressed in other clauses, as identified in the evidence Mr Fisher. While Rex’s evidence and submissions indicated that the casual simulator-only position would have involved retention of Mr Dean’s seniority on the seniority list, and Mr Dean case was that he had known that seniority would be retained he would have accepted the offer, I observe that the seniority is closely-conditioned by the Pilots EA as it concerns the only two categories of employment contemplated by it – full-time employment and part-time employment. For my own part (for in the hearing both parties proceeded on the basis that seniority could be preserved), I do not understand the basis upon which it could be contended by Rex that it (somehow) had the right to purport to bestow retention of seniority on a person whose employment as a full-time permanent employee was to terminate and then change to being an on-call casual. As the Pilots EA identifies, any determination by Rex concerning seniority ranking is open to challenge/protest – and most likely, I would venture, successfully as to purported ranking of a casually-employed Mr Dean at nine, where the Pilots EA just does not envisage casual employment as an employment classification for the purposes of the EA-specific seniority list.

[131] It seems to me that, without the applicability/proper application of the Pilots EA as between its full-time and part-time employees, there could have been no proper retention of seniority ranking for a casually employed Mr Dean - because seniority is not something that can be unilaterally determined/bestowed by Rex in relation to classifications of employment that otherwise are not within the scope of the Pilots EA. To use the descriptor in Rex’s evidence and submissions, this casual simulator-only offer involved a position it “created”. Moreover, the evidence in Rex’s case indicated uncertainty as to what pay would actually be involved. For instance, Mr Fisher’s evidence was that: “As a casual position, it would have attracted a casual loading of 25% on top of his hourly rate of pay under the Pilots EA (or the hourly rate under the Award if there was a BOOT issue)” suggesting, I gather, an opt-out of the Pilots EA. In any event, it is unnecessary to further address my own concerns around what was described in the proceedings as being offered by Rex (albeit not communicated to Mr Dean at any time), because Mr Dean did not submit an expression of interest in the casual simulator-only position.

[132] Mr Dean’s case repeatedly referred to the fact that he had wanted and/or submitted that he reasonably expected to have a meeting to discuss matters. I consider that the lack of communication about the nature of the casual position speaks to the fact that a meeting should have been held in circumstances of the dearth of information that was provided about the terms and conditions of the offer. I have noted that Mr Dean’s case emphasised that he would have accepted the casual, simulator-only role if it had been offered or explained to him with explanation of the terms and conditions described in the proceedings by Mr Fisher and Ms Tran. Even though it would not have involved the flying that he loved, given the Policy requirement for those with frontline (pilot) duties to be vaccinated, one supposes it would have been, all things considered, including the all-pervading importance of seniority, a better prospect for a person with a very specific occupational focus than the alternative of being unemployed in Wagga Wagga.

[133] I would add that no consideration appears to have been given by Rex to any potential change involving a permanent part-time work agreement in a simulator-only role, given the concerns advanced in Rex’s case that there was insufficient work for Mr Dean to perform simulator-only duties on a full-time basis in Wagga Wagga (i.e., without reducing other pilots’ simulator duties and/or taking into account times when the simulator was quiet or not operational). In such respects, clause 9 of the Pilots EA deals with the arrangements concerning part-time employment. Obviously, permanent part-time work would not have been Mr Dean’s preference, because his preference was to continue to work full-time in a temporarily reconfigured position and without any pay reduction; but it might have been a compromise, say, to the date he had proposed to Mr Lim. Had a temporary part-time simulator role been proposed/created, as had occurred with the casual proposal/creation, Mr Dean presumptively would have retained, for example, his 55 weeks of accrued personal/carer’s leave rather than not having any such entitlement to personal/carer’s leave as a casual (and a change to a part-time work agreement presumptively would have preserved the seniority ranking, given that part-time work is actually envisaged in the Pilots EA). Moreover, there was evidence of Rex pilots having been given simulator-only roles both before and after Mr Dean’s dismissal; while Mr Fisher explained some matters around the circumstances involving one such employee, the fact remains that there have been in the past, and there continues to be one pilot on simulator-only duties in Wagga Wagga. Last, on the topic of what may, or may not, have been available for discussion, I note that clause 71 of the Pilots EA contains broad-ranging individual flexibility agreement provisions. While neither party referred to this, it is something that at least may have been considered as an option.

“Lumped with the anti-vaxxers”

[134] Mr Dean’s case forcefully contended that he was not an “anti-vaxxer” and he expressed concern that Rex had “lumped” him in with the anti-vaxxers, both preceding the dismissal and in the hearing – whereas he was anxious and hesitant about being vaccinated, and conveyed that to Rex. Mr Dean’s uncontested evidence was that a close friend’s blood clot-related death followed a COVID-19 vaccination (albeit there was no evidence about direct cause-and-effect between the administration of the vaccination to the friend and his sad death). Mr Dean’s evidence was that until his friend’s death, he was not concerned about having a COVID-19 vaccination. Mr Dean’s concerns following his friend’s death were subsequently compounded as a result of medical circumstances involving other individuals within a close circle of family and friends.

[135] If Rex had lumped him in with the anti-vaxxers, that is to be seen in light of the fact that Mr Dean had, during the consultation phase concerning the development of the Policy, sent to Rex what I might describe, at its most benign, as a “stock” anti-vaccination letter. As Rex’s submissions encapsulated matters concerning (some of) the contents of Mr Dean’s letter: “Mr Dean himself challenged the legality of the policy in a letter dated 24 September 2021. He said the policy infringed the Constitution. He said that it contravened provisions of the Biosecurity Act 2005 (Cth), United Nations instruments, and the Australian Immunisation Handbook. He said that he needed to give informed consent to vaccination or it would otherwise constitute unlawful coercion.”

[136] Mr Dean submitted the correspondence to Rex in connection with the invitation it had extended to employees for comment on the Policy. Mr Dean drew attention to the fact he submitted letter at a time when the Policy was still in the consultation phase and at a time when, Mr Dean’s evidence indicated, his close friend had died of a heart attack with blood clots on 28 July 2021 after being vaccinated and things were still “raw” for Mr Dean concerning the death of that friend. Subsequently his son’s girlfriend, who was otherwise fit and healthy, was taken to hospital with chest pain, shortness of breath and heart palpitations within 24 hours after receiving her first dose of the Pfizer vaccine. Some weeks thereafter, one of his son’s friends suffered a severe adverse reaction to the Pfizer vaccine. Mr Dean’s son told him that the cardiologist said that the friend had died in the ambulance enroute to hospital and had to be revived and that the doctor had confirmed that it was believed to be an adverse reaction to the vaccine; the son’s friend now has myocarditis. These reactions of the son’s girlfriend and other friend happened within 24 hours of their first vaccinations. (Albeit much of this evidence was hearsay, Mr Dean was not cross-examined on the details he set out about these three named individuals.)

[137] Moreover, on 15 October 2021 (following the introduction of the Policy), Mr Dean submitted his required Declaration Form which relevantly read:

“I am still undecided about whether to get the vaccine or not. I take my pilots licence and class 1 medical very seriously. I want to make an informed decision prior to getting or having any medical procedure. I spoke to my GP today and am working through the information that was provided to me. As per my email to REX HR (13/10/21) I am still waiting on a copy of Rex’s COVID-19 Workplace Risk Assessment for my role as SAAB 340 Check and Training Captain based in Wagga. Once I have received and had time to process all the information, I believe I will be in a position to make an informed decision without coercion.”

[138] Thus, Mr Dean: (a) submitted to Rex a letter covering some of the now-familiar territory typically associated with concerns by persons opposed to COVID-19 vaccination mandates and/or questioning the efficacy of COVID-19 vaccination; (b) had sought from Rex a workplace risk assessment for his role in connection with the Policy’s COVID-19 vaccination requirement (which was not provided); and (c) referred in the Declaration Form to matters in terms including the use of the word “coercion” after the introduction of the Policy. Given aspects of its contents, the provision of the generic letter understandably would have operated to inform Rex’s understanding that Mr Dean was anti-vaccination. Moreover, Mr Dean’s use in the Declaration Form of the word “coercion”, echoed part of the sentiment that was set out in the generic letter.

[139] More particularly, Mr Dean was not, in fact, partially-vaccinated or double-vaccinated by the Policy-specified date of 1 November 2021 or by the extended date of 30 November 2021 (in passing, it appears that not only Mr Dean, but some or all the other unvaccinated employees were granted this extension to allow them to bring themselves in compliance, or at least partial compliance, with the Policy by this extended date). Nor had Mr Dean indicated a firm date by which he intended to be vaccinated. (To the extent that Rex made submissions that Mr Dean had not been vaccinated of his own volition earlier in 2021 despite, for example, the priorities for airline industry employees and the existence of vaccination hubs for that industry, those submissions are neither here nor there – the relevant matter is specific to the employer’s Policy specification.)

[140] There was no specific evidence in the proceedings about the particular bases upon which the 31 other frontline employees refused or failed to comply with the Policy, but Ms Tran’s evidence indicated, among other matters, that some employees were very negative about vaccines and the mandate, and others simply refused to engage with Rex on the topic. Ms Tran added that Rex was concerned about the content and nature of some of the responses.

[141] The evidence of Mr Dean and Ms Tran as to their two telephone calls indicated that Mr Dean did not challenge the Policy once it was introduced and he did not use any impolite, immoderate, or anti-vaxxer type language in his two telephone discussions with Ms Tran. For example, Ms Tran’s evidence was that “Mr Dean would tell me that he was hesitant”. Separately from Ms Tran’s evidence about Mr Dean advising of his hesitancy, her evidence also noted that in Mr Dean’s response to the show cause letter he advised “that he is doing research to assess the available vaccination options before making a final, informed decision” and “explained that a close friend of his had recently died after receiving the COVID-19 vaccine, which was causing him hesitancy in receiving the vaccine himself.” As to this, Mr Dean described matters he discussed with Dr Bjorklund in an appointment on 15 October 2021:

“[40] i. I discussed with Dr Bjorklund my concerns regarding the Covid 19 vaccinations and my hesitancy causing anxiety.

ii. This included details about my friend’s death after AstraZeneca vaccination and other people close to my family who suffered adverse reactions from Pfizer vaccine.

iii. We discussed the probability of adverse reactions and the effect on my Pilot’s Licence. As I desperately wanted to comply to the policy, we discussed how to further manage my anxiety as a way forward.”

[142] Dr Bjorklund’s evidence was to similar effect about what was discussed during the appointments with Mr Dean. Dr Bjorklund’s evidence detailed various other matters about appointments with Mr Dean and the post-dismissal discussions:

“13. Brad was upset due to Regional Express seeing him as an “anti-vaccinator” - which he believes he isn’t because he believes he could have a vaccine if it did not come with so much apparent risk.

14. I reassured that I did not see him as such and that hopefully the new vaccine Novavax that was reported to be bought by the Australian Govt would solve this. Unfortunately, this vaccine had not been given provisional registration yet, so timing was uncertain.

15. He did not appear to have anywhere near the same anxiety re this vaccine which he had researched extensively - though he still had a slight amount unease, but he was sure that he would have no hesitation in having the Novavax vaccine doses when they became available.

…

22. Brad had been tracking the Novavax situation and that it was now provisionally registered in Australia. No-one had any stock yet even in the capital cities.

25. [In an appointment on 10 March 2022], Brad informed me that he had his second Novavax dose that dav. He had been lucky to ring a vaccination place in Canberra the day they had received them, and he went over, I believe, that day to have his first dose so he was probably one of the first in Australia to have had 2 doses. He stated he had been ringing Sydney as well to try to get the vaccine as soon as possible.”

[143] Mr Dean’s evidence about becoming vaccinated against COVID-19 was:

“63. On 7 December 2021 and 21 December 2021, I had follow up appointments with Dr Bjorklund. These appointments were an integral part of my process going forward. We discussed the possibility of Novavax, with the available research stating less severe adverse reactions.

64. Due to the fact I was now terminated some time pressure had been removed. I spent more time researching Novavax. I felt comfortable and noticed my anxiety levels considerably decrease.

65. Novavax initially was to be provisionally approved late December 2021. Unfortunately, that was pushed back. Finally, being provisionally approved [on] 20 January 2022. Supply was not made available until 14^th February 2022.

66. On the 17 February 2022 I secured an appointment in Canberra for my first dose. As I was prepared to travel, I had called several recommended sites in Sydney and my local area to finally find supply in Canberra.

67. On the 10 March 2022 my second dose of Novavax was received in Wagga. I am now fully Vaccinated as per the Rex policy.”

[144] To the extent that Mr Dean sent the generic letter during the consultation phase, Mr Dean regretted this – explaining it had been given to him and sending it to Rex was the product of being very upset by the then-recent death of his close friend after he had been vaccinated against COVID-19. Mr Dean submitted the letter should not be used against him by Rex in these proceedings. I note that, once it was introduced, Mr Dean did not oppose the Policy. He proposed what might be described as some workarounds which, ultimately, were not deemed practicable or acceptable for the reasons described in Rex’s evidence. It is unnecessary to traverse the pros and cons of the respective proposals, but I will say that I accept Rex’s submissions that Mr Dean’s proposal around exceptions to the rule, in suggesting that he might continue to undertake (frontline) flying duties accompanied by various additional safety measures such as wearing a facemask when flying and the like, certainly had the appearance of suggesting that the Policy should not apply to him. Without finally deciding the matter of the differences in the estimated percentages in the breakdown of duties (and there was much evidence and submissions in the respective cases around this), I incline to the view that, in everyday practical terms, the matter-of-fact workaday division was closer to Mr Dean’s estimate of around 80/20 per cent than what was advanced by Rex. That is, Rex’s calculations were based around what might be generally described as roster inputs as to when Mr Dean may have been called upon to be available for pilot duties as against the amount of, say, the real-time days in a week that he had worked on simulator duties over, say, the pre-COVID time and then in the subsequent period of starting to return to normalisation in Rex’s operations in 2021. Nonetheless, regardless of the contested percentage amounts in the division of duties, Mr Dean’s role indisputably involved what Rex characterised in the Policy as frontline (pilot) duties, as well as and non-frontline (simulator) duties. Unless the job was re-configured in some way such as to excise pilot duties, Mr Dean would have been required to be available to perform pilot/frontline duties as Rex’s roster input-type analysis indicated. As such, Mr Dean’s job undoubtedly was captured by the Policy’s requirement to be vaccinated. The measures Mr Dean put forward, even if not accepted by Rex, were his best attempt to continue working productively within the constraints of the Policy in relation to the 20 per cent balance of time.

[145] The fact Mr Dean initially submitted the generic letter no doubt (reasonably) coloured the perceptions of Rex’s management about matters he raised, despite his written and spoken advice that he was not anti-vaccination but, more accurately, was vaccine-hesitant. Ms Tran’s evidence was that she was the conduit to other management/the Board about Mr Dean. Further, the evidence of Ms Tran indicated the following as to Mr Dean’s “delay requests”:

“76. Throughout the show cause process and termination meeting, I never felt confident that Mr Dean would receive the vaccine. His pattern of behaviour, including the feedback he provided during consultation and the comments on his Declaration/ Objection Form, gave me the impression that he was simply trying to delay receiving the vaccine or making any commitment to REX.

77. In his letter to Mr Lim he was putting proposals that involved a 6-month timeframe, at other times he simply said more time and then at the termination meeting his timeframes were again “flexible” and not definitive.

78. It appeared from other employees we were engaging with about non-compliance that they were trying to delay the process. A few employees conveyed to us that there were challenges to vaccine mandates by employers and governments in the Fair Work Commission and the Supreme Courts in New South Wales and Victoria. Employees advised us that these challenges were being followed on social media platforms.

79. Employees had expected/hoped that if they delayed for long enough, the court proceedings would vindicate their position, things would change, and vaccinations would no longer be necessary.

80. It was public knowledge at the time that some lawyers had commenced proceedings using crowd funding to fund the litigation. These proceedings were broadcast by the Supreme Courts and were watched by tens of thousands of people at the time.”

[146] On a consideration of the evidence and submissions in both Rex’s case as well as Mr Dean’s own case, I can appreciate why Ms Tran did not have confidence that Mr Dean would be vaccinated. Nonetheless, it is the case that Ms Tran also seems to have “lumped” Mr Dean with other employees who were seeking to delay matters for the reasons described in her evidence such as seeking delay for the purpose of having their anti-vaccination stance vindicated through legal challenges. There was no evidence that Mr Dean himself was one of the employees who was awaiting the outcome of “the challenges to vaccine mandates by employers and governments in the Fair Work Commission and the Supreme Courts in New South Wales and Victoria” being followed on social media platforms, some of which were publicly-known to involve crowd funding to fund the litigation. For his part, Mr Dean was trying to grapple with overcoming his fear and anxiety about being vaccinated; and, in February 2022, albeit after he had been dismissed, in fact received his initial Novavax vaccine at the first available opportunity. Indeed, he travelled a couple of hundred kilometres from Wagga Wagga to Canberra to receive his first vaccination after unsuccessfully trying to obtain the Novavax vaccination locally or in Sydney (where he was also prepared to travel to be vaccinated if he had been able to obtain a booking), rather than waiting for supplies of that brand of vaccine to become available in Wagga Wagga for his first vaccination. The objective fact is that Mr Dean did have his first vaccination against COVID-19 on 17 February 2022, at the first available opportunity (which was within the time that Mr Dean was later to propose in the dismissal meeting concerning accessing his accrued leave until 20 February 2022) – so Ms Tran’s lack of confidence that Mr Dean would become vaccinated if granted leave was, in fact, wrong.

[147] Nothing in the preceding paragraph is to be construed as involving any criticism of Ms Tran or her evaluation of what was before her concerning Mr Dean, particularly given she referred in her cross-examination to the “heavy workload” around this time. Ms Tran explained that: (a) many employees were supportive of the mandate, conveyed support for vaccinations, and advised that they had already been vaccinated; (b) many employees advised that they had concerns about working with unvaccinated staff or who said they would refuse to work with unvaccinated colleagues; and (c) other employees were very negative about vaccines and the mandate. Here, in connection with the Board-determined operation of the Policy, the HR employees, among other matters, had to coordinate the consultation about the proposed introduction of the Policy, and collate and analyse the responses of all the approximately 1,486 employees. The HR employees were dealing with the effectively simultaneously processes involving no fewer than the initial 32 employees who, each for his or her own individual reason or set of reasons, had refused or failed to be vaccinated in accordance with the specifications in the Policy; and, ultimately, the dismissal of 17 employees including nine pilots. All this in a time that was perilously difficult for Rex given all that went with COVID-19, the emergence of new variants in connection with its impact on the airline industry and the associated financial losses.

[148] I am sympathetic to Ms Tran (and the other no doubt beleaguered HR staff who were trying to deal as best they could with the employee-related matters concerning the introduction and, then, the implementation of the Policy notwithstanding Mr Dean’s expressions of disappointment about his interactions with the HR team) – in circumstances where the first line of interaction concerning what I might describe as “ordinary” disciplinary-type matters would otherwise have been an employee’s own responsible manager. Mr Fisher explained that matters concerning HR’s handling of matters of the unvaccinated employees was because of, broadly speaking, the commonality of the employment issues. While this is understandable, Mr Dean’s conviction is that he and Mr Fisher would have been able to achieve something mutually workable and suitable if only there had been discussions directly between themselves. Whether Mr Dean’s assessment is right or wrong remains an unknown because there was no conferring/discussions.

[149] I should note for completeness that the FAQs in the Policy confirmed that Rex would not provide for staff to delay vaccination until they were able to obtain their preferred vaccination type. The answer to the FAQs read: “There are three vaccines being used in the Australian roll out that have been approved by the Therapeutic Goods Association (TGA), these are Moderna, Pfizer and AstraZeneca. Individuals would be responsible for discussing the options with their medical practitioner if they have concerns.”. There was no suggestion in the evidence that Mr Dean ever proposed to Rex that he should be granted leave to 20 February/1 March 2022 in connection with what may, or may not, have been the approval of Novavax by the Therapeutic Goods Administration (albeit it transpired that is the vaccination he eventually had). Ms Tran’s evidence was that Mr Dean did not make any such proposal. Similarly, Mr Dean’s evidence did not suggest he was seeking leave specifically pending what may, or may not, have been the approval of the Novavax vaccine for use in Australia. Rather, the evidence indicated Mr Dean was actively engaging in appointments with his doctor/DAME to overcome or manage his anxiety about COVID-19 vaccination generally that had arisen principally against the background of the death of his close friend. Mr Dean said he “desperately wanted to comply” with the Policy by being vaccinated. This desperation is eminently understandable because Mr Dean’s job, a job he plainly loved, was on the line for failure to be vaccinated.

[150] While I am satisfied there was a valid reason for the dismissal for reasons of non-compliance with the Policy by the initial or extended date, the dismissal was characterised by substantive procedural unfairness arising from the failure of Rex to discuss alternative options with Mr Dean. The options Mr Dean proposed were not discussed with him, including as to why Rex considered his reconfiguration-style options as put to Mr Lim were rejected. Continued employment with Rex in the non-frontline casual simulator position simply was not discussed with Mr Dean as to the terms and conditions that Rex’s case now indicates were proposed to be involved – particularly in relation to the all-pervading employment importance of the seniority system at Rex under the Pilot’s EA.

[151] The further substantive procedural unfairness is the fact that there were no discussions relating to the dismissal, or discussion of other potential options short of immediate dismissal (albeit with a payment in lieu of dismissal) – relevantly, such as accessing paid leave entitlements or leave without pay consonantly with the approach in the Policy. That is, the FAQs section of the Policy document explained the operation of the Policy in terms that included: “If no suitable role can be found the staff member will be required to meet the requirements of the policy to continue working in the frontline. If this results in a delay in getting fully vaccinated, the staff member will be required to take leave (including Leave Without Pay) from 1 November 2021 until the fully vaccinated date. If vaccination is not an option for the staff member then the staff member may be terminated due to not meeting a work requirement.” Furthermore, there were other options around work/leave that could (at least potentially fruitfully) have been discussed and/or at least considered before the dismissal was effected in circumstances where Rex’s case was that there was insufficient work for full-time redeployment into the simulator work. As to the foregoing matters, I reiterate that Mr Dean said in the proceedings:

“If a combination of simulator and accrued leave was offered to me, I would have taken it.

If accrued leave up to Leave Without Pay was offered to me, I would have taken it.”

[152] Instead, Mr Dean was informed at the start of the meeting on 1 December 2021 that he was dismissed. Even though there was discussion after the advice concerning the dismissal had been relayed by Mr Tan to Mr Dean, I find that Mr Dean’s proposal concerning accessing paid leave entitlements until 20 February 2022 (or, to allow some flexibility, 1 March 2022) was in the nature of a post-dismissal discussion seeking to have the dismissal decision reversed. Rex submitted that Mr Dean’s “last minute” request concerning accessing leave in the 1 December 2021 dismissal meeting. It is the case that Mr Dean had not, prior to the dismissal, flagged leave options. As to this, Mr Dean said in the proceedings:

“I was trying to work with REX to remain productive, so the taking of leave wasn’t my first preference, as keeping the Company’s productivity first and foremost is how I have always worked. In fact, I thought the termination meeting was going to be about coming to an agreement on how we could implement a mutually beneficial arrangement.”

[153] Even though Mr Tan’s brief was to convey the dismissal decision (which he did), Mr Tan in a very fair way volunteered to discuss the leave matter with no less than the Executive Chairman. It simply is not known what was then discussed between Mr Tan and Mr Lim, or what led Mr Lim to the decision not to reverse the dismissal. It may be that, as with Ms Tran, there was a lack of confidence that Mr Dean would become vaccinated if leave was approved; or concern that Mr Dean was using this leave request as a ploy (as was the case with some trenchantly anti-vaccination employees in seeking delays, in the hope of legal outcomes that would vindicate their stance); or because of concerns about being even-handed in connection with the dismissal of unvaccinated employees. It may be that the decision was made against the background of what was set out in Rex’s submissions that the “last minute request to take leave was not practicable”, where Rex required all pilots to be ready, willing and able to conduct flight duties throughout the Christmas/New Year period due to the forecasted uptick in demand and the need to meet flight schedules. As I say, these matters are just unknown in such respects for the reasons that neither Mr Tan nor Mr Lim gave evidence in the proceedings.

[154] It remains a matter of speculation what might have been the subject of discussion and/or negotiation with the proviso, of course, of Board/managerial approval - had any discussions actually occurred - but, for his part, Mr Dean expressed confidence that something workable for both parties would likely have resulted through discussions with Mr Fisher. Stepping back from what happened in the dismissal meeting, one thing is clear – if the terms and conditions described in the evidence of Mr Fisher and Ms Tran had been discussed with him, Mr Dean indicated that he would have accepted the casual simulator proposal. Instead, the only information that Mr Dean had was as set out in Mr Tan’s letter, that is: “Please note this would be a permanent change, not a temporary placement and under different terms and conditions of employment to the Pilots Agreement.”

Conclusions

[155] On weighing the various matters, I am satisfied the dismissal was harsh, given the procedural fairness considerations arising in this case and, thereby, was an unfair dismissal.

[156] As I am satisfied Mr Dean was unfairly dismissed, I am also satisfied Mr Dean should have an unfair dismissal remedy. Rex submitted that if the application was not dismissed, it wished to be heard on the question of remedy. I find that a surprising submission given that the directions I issued concerning the filing and service of relevant evidence and submissions in specified terms - and Rex was represented by a major law firm and counsel. Here, the applicant plainly identified that a remedy he was seeking was reinstatement. Rex should have advanced complete evidence, materials and/or submissions pursuant to the directions I made, e.g., If the Commission is against us on the primary submission that the application should be dismissed, then our alternative submissions are: First …; Second, …; Third … . I do not propose to now re-open the case, notwithstanding that is the effect of what Rex proposed should occur if its primary submission concerning dismissal of the application did not succeed. This is particularly so given the following three matters.

[157] First, reinstatement is the primary remedy in the Act. Here, there are no issues concerning loss of trust and confidence of the type that might ordinarily be advanced in relation to reinstatement as a remedy and there are no performance-type concerns. Specifically, Mr Dean was respectful in his written communication to Mr Tan and Mr Lim; there was no evidence of any disrespectful or otherwise untoward conduct by Mr Dean to any other employee with whom Mr Dean had dealings, such as Ms Tran; Rex’s evidence indicated there was disappointment all round when Mr Dean did not accept the casual simulator position; and the evidence of Ms Tran was that if Dean re-applied to work with Rex he would have priority:

“94. As mentioned, the Termination Letter encouraged Mr Dean to apply for positions at REX if he did in fact decide to obtain a COVID-19 vaccination.

95. REX maintains this position. Whilst it is not REX’s choice to have to defend itself against Mr Dean in this proceeding, it remains the case that Mr Dean was a competent pilot.

96. Rex stands ready to reemploy Mr Dean if he submits an application for such and if he satisfies all the conditions for pilot employment. Mr Dean would be given priority over all other applicants of equal qualification and, if accepted, would be put on the path as a direct entry Captain.”

[158] Second, the only reason for the dismissal was the COVID-19 vaccination issue. Mr Dean made no challenge to the Policy in the hearing and Mr Dean is (now) fully vaccinated. In that regard, I note certain findings and comments made by Hatcher VP in Michael Rowe v Commissioner for Public Employment (Northern Territory) [2022] FWC 1405. Although the case was not on all fours with the matter before me, including by the fact that Mr Dean never suggested to Rex that he should not be dismissed because he was awaiting Novavax, the decision involved a case where the Vice President stated (italics in original):

“[57] Mr Rowe has not received any COVID-19 vaccine since he was dismissed, notwithstanding that the Novavax vaccine was provisionally approved for use in Australia on 20 January 2022 and became available for use in mid-February 2022. His evidence was that because of the way he was treated by the PWC [the Power and Water Corporation] and the Northern Territory Government, he now has “a completely different perspective on life”, and his current lifestyle does not require him to be vaccinated. …

…

[81] As to the second matter, it might be said that, having suspended Mr Rowe without pay for a period of three months in response to his failure to comply with the CHO Directions, there was no need or purpose to dismiss him prior to the expiration of the period of suspension.

[82] These matters are of potential relevance to the fairness or otherwise of the dismissal because Mr Rowe submits that he had not made a positive decision to refuse to be vaccinated, that he had legitimate concerns about risks associated with taking the mRNA vaccines that had been approved at the relevant time, and that he wished to reflect upon his position and work through his concerns away from the pressures of work and, perhaps, to wait for the approval and availability of the Novavax vaccine.

[83] If I were satisfied that there was a serious possibility that Mr Rowe may have reconsidered his position and ultimately agreed to be vaccinated if he had been allowed to take his pre-approved leave without being required to be vaccinated beforehand, I would be inclined to the view that his dismissal effective from 6 December 2021 was premature and harsh. I would similarly be inclined to this view if I considered that there was a serious possibility that Mr Rowe might have taken the Novavax vaccine (which was approved and available by mid-February 2022, as earlier stated) had PWC had stayed its hand whilst Mr Rowe was on suspension without pay. Matters that would support a conclusion of that nature include that the CHO [Chief Health Officer] Directions were introduced at relatively short notice, and that it is understandable that some persons may be hesitant to take the vaccine in the face of the significant amount of disinformation about vaccination being peddled in social media and elsewhere in the public sphere.

[84] However, ultimately, I do not consider that there was ever a real possibility that Mr Rowe would agree to vaccination, and I do not accept his evidence to the contrary. All the evidence suggests to me that he had made up his mind on the topic by late October 2021 (if not earlier), and Mr Rowe never identified anything which might reasonably cause him to change his position. …

[85] Accordingly, the two matters I have identified as relevant do not cause me to conclude that the dismissal was harsh, nor do they weigh in favour of such a conclusion. I do not consider, in light of the known facts, that Mr Rowe’s evidence that he might have been prepared to reconsider the question of vaccination had he taken his leave or remained on suspension without pay is credible, and I do not accept it.”

[159] Thus, there was discussion by the Vice President about whether there was ever a real possibility that the applicant before him would agree to COVID-19 vaccination in considering whether the dismissal was harsh. In Mr Dean’s case, in seeking a reconsideration of the dismissal decision that had already been conveyed to him in the meeting on 1 December 2021, he asked to access leave until 20 February 2022 (or to around 1 March 2022 to allow some flexibility) advising, among other matters, that it was his “intention” to be fully vaccinated – being evidence I accept, even if hesitantly given.

[160] As it transpired, Mr Dean was not fully vaccinated by 20 February 2022 or 1 March 2022, but he did receive his first vaccination on 17 February 2022 (and then had his second on 10 March 2022). This date of double vaccination was about a week-and-a-half later than the latest 1 March 2021 date that he had sought for flexibility, but this was due to delays outside his hands because the vaccine in question given was not available until mid-February 2022. I consider that, if access to his leave accruals had been granted and Mr Dean showed Rex evidence of his first vaccination within the leave period he had sought, it seems likely that Rex would not have proceeded to dismiss him. As noted earlier, the fact of Mr Dean’s first COVID-19 vaccination on 17 February 2022 would have (or, more accurately, should have) dispelled Rex’s concerns that his period of leave was just a delaying tactic and he would not actually become vaccinated in connection with accessing paid leave accruals. Once again borrowing from what was said by the Full Bench in Bartlett, I find Mr Dean “was deprived of the possibility of a different outcome in terms of avoiding his … dismissal” in circumstances where the dismissal was effected before there was any possibility of a different outcome in terms of discussion about leave-related proposals – and where, as I have found, that what followed in relation to involved Mr Dean unsuccessfully seeking a reversal of the dismissal decision that had already been advised (and for reasons that are, on the evidence, unknown).

[161] Third, while I consider it is appropriate, as is invariably the case in relation to reinstatement orders, to make an order to maintain continuity of employment/service, I do not consider that it is appropriate to make any order with respect to lost pay. Continuity of employment/service has particular significance in this case, given the concomitant matter of seniority. Moreover, at least as Rex put matters in its case concerning the offer of the casual simulator position, it was prepared to maintain Mr Dean’s continuity of service for the seniority list.

[162] In no circumstances would Mr Dean ever have had an order from me for lost pay for the time before he became double-vaccinated. As to the balance of the period of unemployment after becoming double-vaccinated, the dismissal was the result of Mr Dean’s fear about being vaccinated within the specified timeline. Regardless of my conclusion that Mr Dean’s fears were honestly held by him and that he was vaccine hesitant, Mr Dean self-determined not to be vaccinated and, in consequence, put himself into non-compliance with the requirements of the Policy’s timeline and the extension that was later given. The dismissal thereby resulted from the personal choice made by Mr Dean not to be vaccinated, as of course was his prerogative. In my discretionary assessment of matters, no lost pay should be ordered as a result of the procedural fairness issues in this case, in circumstances where there was otherwise a valid reason for the dismissal brought about by the exercise of Mr Dean’s personal prerogative not to be vaccinated by the initial or the extended compliance date.

[163] Against that background, I do not consider there is any cause to make an order to restore any lost pay and, therefore, no need to consider the amount of any remuneration earned by Mr Dean from employment or other work during the period between the dismissal and the making of the order for reinstatement or the amount of any remuneration reasonably likely to be so earned by Mr Dean during the period between the making of the order for reinstatement and the actual reinstatement. Had I been minded to make an order for lost pay or partial lost pay, I certainly would have relisted the matter to hear evidence and submissions on those matters which I am required by the Act to consider. However, the matters in s.391(4)(a)-(b) of the Act do not arise for consideration because I do not consider it is appropriate to cause Rex to pay any amount of remuneration with respect to lost pay. Indeed, I consider it would not result in a fair go all round to make any such order.

[164] Last, I separately note that, on one view of it at least, the practical outcome as to remedy that I have determined as appropriate is as Rex had encouraged Mr Dean to do, namely, to return to work once vaccinated (though, admittedly, with the continuity of employment/service that would have been lost through a procedure involving re-applying following the dismissal). To the extent that there was criticism of the fact that Mr Dean has not reapplied for a position with Rex since the dismissal, Mr Dean explained: “For a pilot there is a massive detrimental difference between reapplying and reinstatement in relation to our Seniority. … To reapply after 27 years of loyal service, my seniority number would reset from No.9 to 298. This would mean I lose my Wagga basing (where I have resided for the last 19 years), with practically no chance of ever regaining it.” Seniority was thereby relevant not only to a range of employment rights and obligations - it was also relevant to where Mr Dean/his family would reside.

Orders

[165] Reinstatement is the remedy that has been sought by Mr Dean and that is the primary remedy under the Act. In view of the foregoing, the disposition of the application as to remedy is as follows.

Reinstatement

[166] Rex shall reappoint Mr Dean to the position in which he was employed immediately before the dismissal (that is, at the same grade and at the same location Mr Dean previously worked) by no later than 21 days after the date of this decision.

Order to maintain continuity

[167] In connection with the reappointment, I consider it is appropriate that the reappointment should be effected with continuity of Mr Dean’s employment/service.

Order to restore lost pay

[168] I do not consider that an order to restore lost pay/superannuation is appropriate in this case.

Next steps

[169] Having regard to the foregoing, the parties are to confer on the settlement of a draft order to give effect to these conclusions, and lodge the draft order by no later than 14 days after the date of this decision. If there are any issues that arise or may arise in relation to time to obtain, for example, security clearances, re-accreditation, or anything similar, such as to delay the actual resumption of work by Mr Dean, that should be addressed in the draft order.

[170] Separately, the parties will need to confer about administrative or other repayment arrangements to be implemented to take into account the payments made by Rex to Mr Dean in connection with the termination of employment.

[171] The matter is stood over pending the receipt of the draft order. If the parties are unable to agree on the wording of the draft order giving effect to my conclusion, the matter will be relisted on the application of either party.

COMMISSIONER

Appearances:

B Dean, applicant, on his own behalf.
L Howard of counsel, for Rex.

Hearing details:

2022.
Sydney (via Microsoft Teams video):
May 10, 18.

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