Fair Work Act 2009
s.394—Unfair dismissal

Robyn Pskiet
v
Maicap Unit Trust T/A Nocelle Foods
(U2022/1214)

Application for an unfair dismissal remedy – employer vaccination policy – applicant not compliant with policy – whether dismissal unfair – policy basis for a lawful and reasonable instruction – application of policy to applicant’s particular circumstances impacted upon reasonable options at the time – not a valid reason at the point of dismissal – all other considerations assessed – dismissal unfair – compensation awarded.

1. What this decision is about

[1] Ms Robyn Pskiet (the Applicant) has applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the FW Act) following her alleged unfair dismissal from Maicap Unit Trust T/A Nocelle Foods (Nocelle Foods or the Respondent).

[2] Nocelle Foods is a family-owned producer, wholesaler and distributor of food and drink, with a distribution network based mainly in South Australia but with some clients in other States. Amongst other items, Nocelle Foods distributes sauces, pasta, vinegar, condiments, snacks, soft drinks and toiletries to major supermarket chains and smaller stores, restaurants, and cafes.

[3] Ms Pskiet commenced employment with Nocelle Foods in 2005 as machine operator and was promoted to Quality Assurance (QA) Manager in early 2010. As QA Manager Ms Peskiet was responsible for ensuring sales staff and customers receive their orders in a timely manner, working with management and factory employees to provide training, coaching and support in relation to company procedures and processes, work health and safety (WHS) and Quality, Food Safety, and Environmental Compliance.

[4] Ms Pskiet’s employment was based at the Pooraka warehouse and production facility of the Respondent. Also located at that premises was in the order of some 60 employees mainly comprising production and warehouse employees. Sales, logistics and transport staff, and visitors also worked from or attended the facility from time to time.

[5] Ms Pskiet’s employment was terminated by letter dated 12 January 2022:

“Termination of employment

I am writing in relation to your employment with Nocelle Foods.

As you know on 29 December 2021, I wrote to all Nocelle employees informing them that the business had decided to implement a policy requiring employees to be vaccinated against COVID- 19.

A copy of the vaccination policy is enclosed with this letter.

As I explained Nocelle had decided to implement the policy in response to growing concerns about the COVID-19 pandemic and increasing levels of community transmission following the opening of the South Australian borders. We implemented this policy following government recommendations and advice that vaccination is the most effective way to address the risks that are associated with COVID-19.

We take our work health and safety obligations seriously, and after consultation with staff determined that it was appropriate to adopt a vaccination requirement in the interests of all connected with our business. You will appreciate that the supply and distribution nature of our business means that we play an important role in ensuring all South Australians are able to access critical resources from our clients.

The vaccination policy requires all Nocelle employees to have received one dose of a COVID-19 vaccine by 10 January 2022. The policy acknowledged that there may be some employees who are not able to safely receive a vaccine dose and so the policy provided a medical exemption process for eligible staff.

On 10 January 2022 by email you confirmed that you have not complied with the requirement to be vaccinated. You also confirmed that you do not have a medical exemption from vaccination.

I indicated on 10 January 2022 that I had formed the preliminary view, based on non-compliance with the vaccination requirement, that it was appropriate to terminate your employment. I also indicated that I did not consider that there were any redeployment or working from home arrangements that would be suitable. I indicated I would provide you an opportunity to raise anything that you wish in relation to my preliminary view about the termination of your employment. I have considered the matters you raised.

I have decided to proceed with the termination of your employment on the basis of non­ compliance with the vaccination requirement which constitutes a lawful and reasonable direction issued by Nocelle.

Under the terms of your employment contract you are entitled to 5 weeks' notice of termination.

I have decided that you will not be required to serve your notice period and instead we will make a payment to you of 5 weeks' pay in lieu of notice. Your employment will end today 12 January 2022.

Please ensure that any company property or key in your possession are returned to our Head Office.

I wish you all the best for the future.
Josef Capobianco
Director.”

[6] Ms Pskiet considers the dismissal was unfair on the basis that the requirement to comply with the vaccination policy was not reasonable or lawful. That position was in turn based upon propositions that included the alleged absence of necessary consultation, that the process of seeking compliance with the policy did not enable her to take leave, work from home, or await access to the Novavax vaccine, and that the Respondent did not have a proper WHS system.

[7] After conducting a directions conference with the parties on 14 April 2022 and considering the nature and extent of the evidence involved, I determined that a hearing would be the most effective and efficient way to resolve this matter.¹

[8] I observe that there is no contest that the application was validly made within time, 2 that Ms Pskiet was dismissed,3 and that she was protected from unfair dismissal.4 Nocelle Foods is also not a small business as defined under the FW Act.

[9] For reasons that follow, I have determined on balance that the dismissal of Ms Pskiet was unfair, largely due to timing and the manner in which the vaccination policy was applied to her, and that a measure of compensation should be awarded.

2. The cases presented by the parties

2.1 Ms Pskiet

[10] Ms Pskiet’s fundamental position is the vaccination policy, and the direction to comply with it, was unlawful and unreasonable. This position is advanced based on the following contentions: 5

•  There was not a government vaccination mandate (relevant to her employment).

•  There was no meaningful consultation with employees, including herself or her representative.

•  There was no risk assessment completed by the company. A risk assessment would have included the assessment of all control measures available to help keep all people that come onsite safe. It may have been reasonable for some staff to be vaccinated as the risk is different among the varying roles within the company, as some workers have different work sites.

•  Information was not shared about how the decision to implement the mandate was made either before or after the mandate was introduced. The Applicant made every effort to obtain that information and did not receive any reasons. Every workplace is different and should have been risk assessed on the conditions of the workplace. The lack of risk assessment is a breach of the WHS laws.

•  The timing allowed between notification and the requirement to be vaccinated, if it was legal, was too short. During this time clinics had reduced hours and, being the holiday period, family commitments meant there was less time available be vaccinated. No support to be vaccinated was offered at all (the Respondent simply sent links to government websites). The Applicant was not spoken to about the vaccination or given support. The Applicant applied for a trial vaccination on the 31 December 2021.

•  The Applicant stated that she is not anti-vax but rather is pro-choice. This includes a willingness to be vaccinated (with Novavax) when it became available in order to maintain her employment.

[11] In contending that there was an absence of the required consultation and a risk assessment undertaken, Ms Pskiet relied upon publicly available information provided by the Fair Work Ombudsman (FWO). Ms Pskiet also contended that the risk assessment should have been undertaken on a formal basis akin to QA principles and approaches. Further, Ms Pskiet submits that she was not provided with the necessary information to constitute appropriate consultation or enable her to make an appropriate decision.

[12] Ms Pskiet also contends that the process of seeking compliance with the policy did not enable her to take leave, partially work from home, and/or await access to the Novavax vaccine which became available in January 2022. In that regard, Ms Pskiet also submits that she was treated differently and unfairly considering the approach adopted by the Respondent to another employee (CB). Further, the Respondent did not have a proper WHS system.

[13] I observe that Ms Pskiet also faintly suggested in submissions that a Food Scientist who was appointed by Nocelle Foods as a Production Supervisor in August 2021 was put in place to be her replacement. There is no evidence to support a suggestion that there was any reason for dismissal beyond the issues arising from the vaccination policy.

[14] Ms Pskiet provided a witness statement 6 and relevant documentation,7 and gave sworn evidence.

2.2 Nocelle Foods

[15] Nocelle Foods contends that the dismissal was not unfair and that the application should itself be dismissed by the Commission.

[16] The basis of the Respondent’s position may be summarised as follows:

•  The Applicant’s refusal to comply with the Respondent’s vaccination policy constituted a failure to comply with a lawful and reasonable direction, and this constitutes the valid reason for the dismissal of the Applicant.

•  The vaccination requirement introduced by the Respondent fell within the scope of the employment and there is no law which makes it unlawful to become vaccinated. On that basis the requirement was lawful.

•  The requirement that the direction be reasonable is to be assessed by a range of factors that will bear on whether a direction is reasonable, and reasonableness is a question of fact having regard to all of the circumstances. For a direction to be reasonable it does not need to be demonstrated that the direction was the preferable or most appropriate course of action or in accordance with best practice or the best interests of the parties.

[17] In relation to the reasonableness of the vaccination policy Nocelle Foods further contends:

•  The Respondent holds an important role in the supply chain for essential goods. The Respondent’s business imports and delivers food, drink and other items into supermarkets, restaurants, cafes and other similar businesses.

•  As of 29 December 2021 (the date the policy was implemented) there was a significant level of community transmission in South Australia with the case numbers on that day reaching 1000 cases for the first time in the Covid-19 pandemic.

•  The South Australian Government had predicted that there would be a significant increase in case numbers and this eventuated, with South Australia reaching 4000 cases within the following 12 calendar days.

•  As of 29 December 2021, there had been both the Delta variant and Omicron variant detected in the South Australian community. At that time, it was not yet clear the significance of Omicron in comparison to the Delta variant. Further, as of 29 December 2021 the South Australian Government had adopted more onerous isolation requirements for unvaccinated individuals. The position in SA at that time meant that employees who chose to be unvaccinated would be required to isolate for up to 14 days if they were a close contact, while vaccinated individuals would only need to isolate for 7 days.

•  Parts of the Respondent’s workforce had been impacted by Government vaccination requirements in New South Wales, Victoria and Western Australia. Some clients imposed obligations on the Respondent to ensure that only vaccinated employees attended their workplaces. Further, the marketplace which was serviced by the Respondent had vaccination requirements.

•  The Respondent owed obligations under the Work Health and Safety Act 2012 (SA) to its workers and other persons with whom it interacted. These obligations, due to the nature of the business, extended to ensuring the health and safety of clients and that members of the public were not put at risk.

•  The Respondent had workers compensation considerations in that any employee who contracted COVID-19 in connection with their employment would be eligible to make a claim. In those circumstances the Respondent had a financial consideration of doing what it could to reduce the likelihood of a claim.

•  Although the South Australian Government had not mandated vaccination for the Respondent’s industry, the Government had been unequivocally encouraging businesses to implement vaccination requirements internally.

•  The terms of the policy itself were reasonable in that the policy facilitated a process for employees to obtain medical exemptions in accordance with protocols developed by the Australian Technical Advisory Group on Immunisation (ATAGI) (which were adopted also by the SA Government).

[18] In relation to consultation leading to the vaccination policy, the Respondent contended that consultation is not a pre-requisite or condition for a direction to be reasonable but can be part of the overall circumstances. In those circumstances it is open to the Commission to find that quite apart from the consultation processes the Respondent’s direction was reasonable. However, the Respondent submits that there was appropriate consultation with its workforce and that this consultation process included consulting with the Applicant.

[19] Nocelle Foods also contends that Ms Pskiet did not confirm that she was willing to have the Novavax vaccine and the suggestion provided as part of these proceedings should not be accepted given the overall impact of the Applicant’s evidence. Further, the treatment of the other employee (CB) resulted from different circumstances associated with his role in the business, including already approved leave and his confirmed commitment to have the Novavax vaccine as soon as it was available, which he did.

[20] Nocelle Foods also submits that there was no capacity for Ms Pskiet to productively work from home.

[21] Nocelle Foods relied upon the witness statement 8 of its Director, Mr Josef Capobianco and relevant documentation.9 Mr Capobianco also gave sworn evidence.

3. Observations on the evidence

[22] I generally found Ms Pskiet’s evidence regarding the objective facts of the events relevant to this matter to have been given in an honest and frank manner. Some of her evidence about the impact and reasonableness of the facts were more akin to submissions and I have treated those aspects accordingly. Ms Pskiet’s evidence about her willingness in January 2022 to become vaccinated with Novavax had substance but was not completely convincing. I will return to this aspect.

[23] I also found Mr Capobianco’s evidence was given in a frank and open manner. Further, aspects of his evidence being more akin to submissions, and I have also treated these in that manner. In Mr Capobianco’s case, I did not find his evidence about the extent to which Nocelle Foods had a comprehensive work health and safety regime in place to be completely convincing. This caveat arises principally from the absence of recall and detail in his oral evidence about such matters when questioned.

[24] Neither party led expert evidence about the effectiveness and risks associated with Covid-19 vaccinations or about the risks and medical consequences of Covid-19 itself. However, the parties, predominately the Respondent, relied upon tendered publicly available medical information and advice, and decisions of the Commission dealing with these aspects. In determining this matter, I have had regard to that material.

4. The facts of the matter

[25] Nocelle Foods is predominately a wholesaler and distributor of food and drink. The majority of its distribution network is based in South Australia with some clients in other States. Nocelle Foods is also part of a larger business group.

[26] Nocelle Foods distributes products to major supermarkets such as Foodland, Woolworths, Costco and IGA. It also distributes to smaller stores, restaurants, and cafes.

[27] The majority of its workforce is based in South Australia. About 85% of staff are warehouse workers, production workers and truck drivers. It also has a small number of sales representatives and other administrative staff based in South Australia, with several sales representatives who work outside of South Australia. All South Australian based staff work out of the one warehouse location in Pooraka.

[28] The business requires sales staff to go into supermarket and hospitality sites operated by clients to take orders. The orders are filled by warehouse workers and production workers who work out of the same site. The warehouse and production workers assist drivers with loading orders onto trucks, and the drivers then interact with clients at their work sites. As the management and administrative staff work out of the same location as other staff they interact with warehouse and production workers most days.

[29] Ms Pskiet was based at the warehouse facility and had a separate office in that building. The position required her to attend on the warehouse and production facility floor from time to time.

[30] It is relevant to consider the events as they occurred in the workplace in the context of the Covid-19 pandemic as it unfolded in South Australia.

[31] The following table is based upon that provided by the Respondent and is consistent with publicly available information admitted as documentary evidence 10 and other evidence in this matter:

CHRONOLOGY: STATE OF PANDEMIC RESPONSE AT KEY DATES

[32] The events in bold text above are included for ease of reference.

[33] The extent of Covid-19 cases in South Australia is evident from the following table also provided by the Respondent that is supported by evidence 11 before the Commission:

[34] The various vaccination directions issued by the SA Government did not apply to Nocelle Foods or to employment of the kind undertaken by Ms Pskiet.

[35] On 22 November 2022, Nocelle Foods sent an email to its employees advising 12 that it was considering the introduction of a Covid-19 vaccination policy and attaching a survey. This followed Mr Capobianco taking advice and considering information from various SA health authorities including the health care and vaccination directions that had been issued by those authorities, and on-line guidance provided by the FWO. Mr Capobianco had also earlier discussed the possibility of a vaccine policy with the senior management team. Ms Pskiet is not a member of that team.

[36] Ms Pskiet received a Covid-19 “Consultation survey – Vaccination Status” form from her direct manager on 22 November 2021, without the accompanying email. The survey was provided to employees in the business more generally supported by the covering email letter and/or tool-box meetings. Ms Pskiet did not receive any information beyond the survey itself and did not attend the relevant tool-box meeting conducted in her workplace. Ms Pskiet was however a manager with ready access to the senior management team and was involved to varying degrees in administering many of the company’s quality and safety systems.

[37] The survey requested the provision of the employee’s name and department and, in effect, their vaccination status. Where unvaccinated, the survey provided the opportunity for employees to provide a reason.

[38] Ms Pskiet returned the form on 24 November 2021, indicating that she was “unvaccinated waiting for a safe vaccine” and stating “please see attached SDS (Safety Data Sheet) is vaccination safe with so much unknown.” 13 The attached SDS14 was a document issued for the Pfizer – BioNTech Covid-19 vaccine. It contained information on the composition of the vaccine and other information relevant to the handling, storage, and disposal of the product. It also contained responses such as “no data available” particularly in connection with the physical and chemical properties of the vaccination. It was not information about the safe administration of the vaccine or the risk of side-effects.

[39] Mr Capobianco and the senior management team assessed the survey responses. The great majority of replies indicated that employees were already, or intended to be, vaccinated. There were 8 employees who indicated that they were unvaccinated against Covid-19 and did not intend to be vaccinated. Mr Capobianco also reviewed the reasons that the 8 employees provided for their choices which included concerns about the safety of vaccines, maternity leave considerations, fearful about what to do, medical conditions, personal choice, and uncertainty about what to do.

[40] At that time, Nocelle Foods had already implemented a number of other COVID measures at work including mask requirements in the warehouse areas, social distancing requirements, site check-in protocols, a QR code process, and signage warning against entry if persons were experiencing symptoms.

[41] Mr Capobianco was also monitoring the health advice being issued by the South Australian health authorities, the experience in other States where Covid-19 was far more prevalent including the closure of, or constraints on, businesses arising from positive cases or close contact rules, the impact of the opening of the SA borders, and the fact that some clients and workplaces (including those applying to other parts of the broader Nocelle business) were requiring vaccinations. 15 Mr Capobianco also took into account the feedback from the survey and the fact that at that time South Australia had a longer quarantine period for close contacts than most other jurisdictions (10 days v 7 days). The definition of close contact at that time also referenced the vaccination status of the person as one of the risk factors that might increase the chance of being considered a close contact.16

[42] Although Mr Capobianco was aware of the operations and nature of the workplace, and the employees and visitors attending, and had regard to the factors outlined earlier, no formal risk assessment of Covid-19 in the workplace was conducted.

[43] Mr Capobianco did not speak to Ms Pskiet but did directly engage with any employee who approached him about concerns with the proposed policy. One of those employees was CB and I will return to those circumstances as part of the consideration of Ms Pskiet’s contention that she was dealt with unfairly, in part, by reference to how CB was treated.

[44] On 29 December 2021, Nocelle Foods advised its employees, including Ms Pskiet, that it was introducing the vaccination policy. I set out the terms of the policy later in this Decision. The email accompanying the policy stated:

“WHS-Vaccination Requirement

As you know last month, we raised with staff that we were considering Nocelle’s response to COVID-19 risks and this included considering whether to implement a mandatory vaccination policy.

We consulted with staff on this issues and asked staff to provide us with information about their vaccination status. Thank you to everyone for providing your responses and comments.

The directors have been closely monitoring developments with COVID-19 since the borders opened and the various advice being provided by the government in relation to the risks.

As you would no doubt be aware there has been a significant increase in community transmission in South Australia. This has included positive cases attending many business sites such as supermarkets and food retailers which is relevant to our business operation.

We are starting to hear more frequently of persons connected with staff testing positive, and hearing about the business disruption associated with losing staff due to isolation and quarantine.

With all this in mind the directors have decided to implement a mandatory vaccination policy.

The policy is attached to this email.

The mandatory vaccination policy requires all employees to have had at least one dose of an approved COVID-19 vaccination by 10 January 2022 and to arrange to have their second dose within 4 to 6 weeks after receiving their first dose based on the government recommended timing.

The policy addresses the medical exemption process that is available to employees and is based on the approach taken by the South Australian government, and the policy also outlines the steps that Nocelle will take in relation to an employee who refuses to meet the vaccination requirement.

We consider this requirement to be important in terms of ensuring the health and safety of our staff, our clients, and the community, and to protect the ongoing viability of the business.

If you need more information, please contact Josef Capobianco.

Kind Regards,
Josef Capobianco
Director” 17

[45] Ms Pskiet responded almost immediately in the following terms:

“Hi Josef

I am very concerned about the long term safety of the vaccines that are currently available.

I request that you provide me with Safe work method statement (SWMS) for each vaccine (or the one you are mandating) Safety data sheet for the vaccine.

All covid-19 risk assessments conducted.

I look forward to your reply

Kind regards,
Robyn Pskiet” 18

[46] On 30 December 2021, Mr Capobianco responded to Ms Pskiet:

“Hi Robyn,

Thank you for your email about the vaccination requirement.

If you would like to access information about the safety and efficacy of COVID-19 vaccines then this information can be accessed from the ATAGI website. I have provided a link to their immunisation website: https://www.health.gov.au/committees-and-groups/australian-technical-advisory-group-on-immunisation-atagi.

You can also access information from the South Australian COVID-19 website here: https.V/www.covid-19.sa.gov.au/. These sites will provide you with official information approved by experts and government agencies.

We take our WHS obligations seriously and COVID-19 presents as a significant risk to our employees, their families contractors, clients and the community. You will have no doubt seen that most Australian States/Territories (including South Australia) are experiencing a significant increase in community transmission. This increase is expected to continue. COVID-19 transmission also presents as a risk to our viability as a business if major portions of our workforce need to quarantine, isolate or test positive for COVID-19.

I recognise that you have personal views about vaccination however we consider it important to introduce this requirement in the interests of health and safety.

Kind Regards,
Josef Capobianco
Director” 19

[47] On 6 January 2022, Ms Pskiet responded:

“…

Hi Josef

In reference to the new vaccination policy.

I do have concerns on the long-term safety concerns of all 3 TGA provisionally approved vaccines.

Please see the below 3 clips taken from the TGA website.

1. Provisional approval of this vaccine is valid for two years and means it can now be legally supplied in Australia. The approval is subject to certain strict conditions, such as the requirement for Pfizer to continue providing information to the TGA on longer term efficacy and safety from ongoing clinical trials and post-market assessment

2. Provisional approval of this vaccine in Australia is subject to certain strict conditions, such as the requirement for Moderna Australia Pty Ltd to continue providing information to the TGA on longer-term efficacy and safety from ongoing clinical trials and post-market assessment.

3. Provisional approval of this vaccine is valid for two years and means it can now be legally supplied in Australia. The approval is subject to certain strict conditions, such as the requirement for AstraZeneca to continue providing information to the TGA on longer term efficacy and safety from ongoing clinical trials and post-market assessment. COVID-19 Vaccine AstraZeneca has been shown to prevent COVID-19 however it is not yet known whether it prevents transmission or asymptomatic disease.

All 3 vaccines are still in clinical trial phase but have been provisionally approved.

There have been 686 deaths to 28/11 /21 from vaccination.

There have been 85,714 adverse reactions to 28/11/21 from vaccination.

The new variant appears to be infecting vaccinated people at the same rate as unvaccinated.

I have a proven record of good immunity (1,135 hrs) of accumulated sick leave.

With the above in mind before I can get vaccinated.

Can You confirm that I will suffer no harm from vaccination?

Can you provide a letter signed by a fully qualified doctor who will take full legal and financial responsibility for any injuries occurring to myself, because of vaccination?

If I should have to decline the offer of vaccination, please confirm that it will not compromise my position and that I will not suffer prejudice and discrimination as a result?

Thanks
Robyn Pskiet” 20

[48] On 7 January 2022, Mr Capobianco replied:

“Dear Robyn

Thank you for your email.

As discussed the decision to implement a COVID-19 vaccination requirement is one that we made based on government advice and recommendations, and following consultation and consideration of our WHS obligations.

According to government advice and recommendations (such as ATAGI and TGA) vaccination is the most effective way to address the risks associated with COVID-19. While there may be some risks associated with vaccination, the protective benefits of the vaccination far outweigh these potential risks. Most of the risks of the vaccine are short term in any event, and only in very rare circumstances are more severe.

We are not in a position to provide you with the assurances you are requesting about vaccination. We acknowledge there may be some employees who may have strong views about vaccination and decide they do not wish to be vaccinated. That is their choice to make and one that we will respect. However it is important to recognise given the vaccination requirement we have introduced that this may impact their ongoing employment with us.

As per the policy circulated on 29 December 2021, it is a requirement that staff have received at least one dose of a COVID-19 vaccination by 10 January 2022 (or have provided a medical exemption by this date). Staff who have not complied with this timeframe will be involved in discussions about their employment and this may involve termination of their employment (depending on redeployment opportunities or whether the person could effectively work from home).

In fairness to you I am advising you at this time that I do not see any redeployment opportunities or working from home arrangements that are suitable in relation to your employment.

Please let me know your position in relation to compliance or otherwise with the policy by Monday.

Kind Regards,
Josef Capobianco
Director” 21

[49] The response from Ms Pskiet on 9 January 2022 was:

“Hi Josef

As you are unable to supply me with any of the requested information (safety data sheets, risk assessments, Safe work method statement).

I am unable to provide a vaccination certificate at this time.

Thanks
Robyn Pskiet” 22

[50] Mr Capobianco replied on 10 January 2022:

“Dear Robyn

Thank you for your email.

I have taken from your email that you have not complied with the vaccination requirement and do not have a medical exemption. Please let me know if my understanding is incorrect.

As to the information you have requested, my earlier email confirmed that the requested information about safety and efficacy of vaccinations can be accessed from the ATAGI and TGA websites.

As you know the policy circulated on 29 December 2021 stated that where a person has not complied with the policy then there will be a discussion about the employee's ongoing employment. I mentioned in my email on Friday that in your case I did not see any redeployment opportunities or working from home arrangement that would work effectively and allow you to continue in your employment without meeting our vaccination requirement.

In those circumstances I have formed the preliminary view, based on non-compliance with the vaccination requirement, that it is appropriate to terminate your employment. I will provide you with the opportunity to respond to that preliminary view before a final decision is made. I will make a final decision on your employment on Wednesday 12 January 2022 and invite you to put forward any consideration you might have in the meantime.

Kind Regards,
Josef Capobianco
Director” 23

[51] In the lead up to Ms Pskiet’s anticipated return to work, she advised Nocelle Foods as follows:

“Hi Josef

I do not have a vaccination certificate or exemption.

I am due back at work tomorrow 11/01/22.

So I will be onsite to fulfill [sic] my work duties at my normal start time.” 24

[52] On 10 January 2022, Mr Capobianco advised Ms Pskiet that she was being suspended without pay in the following terms:

“Subject: RE: Vaccination Requirement

Dear Robyn

I acknowledge receipt of your confirmation that you are not vaccinated and do not have a medical exemption.

In accordance with the vaccination policy circulated on 29 December 2021 you will be placed on unpaid suspension effective immediately.

You will remain on unpaid suspension until the end of 12 January 2022 at which time a decision will be made about the preliminary view to terminate your employment.

In the event you attend the workplace in the meantime you will be directed to leave.

Kind Regards,
Josef Capobianco
Director” 25

[53] Ms Pskiet responded on 11 January 2022:

“Subject: RE: Vaccination Requirement

Hi Josef

I am disappointed that you have not shown any intension [sic] of entering into discussions with me about my employment.

I have given 16+ years of dedicated loyal service. At this time I find it hard to believe that all you have done is suspended me without pay and suggested/ threatened to terminate employment without even considering if it may be appropriate to use some of my annual leave currently at around 9 weeks, or my long service leave at around 20 weeks.

The rules relating to isolation and the even working whilst infected are constantly changing (Naracoorte meat workers have been permitted to work whilst testing positive to covid-19). The definition of a close contact has changed since the vaccine policy was written. There is currently no difference in quarantine time between ‘vaxed’ an [sic] ‘unvaxed’ persons. The data is showing an increasing number of fully “vaxed” contracting covid. The vaccination policy may need reviewing soon as the situation has changed.

I have attached the who policy brief on mandating vaccines, this is an interesting read.

Please ask yourself what the mandate will actually achieve/ has achieved, is the work place safer? I have never stated that I will not have a vaccine at all. I have concerns about the safety of the current provisionally approved vaccines. The (sic) is another vaccine that may get provisional approval soon.

Robyn Pskiet” 26

[54] Ms Pskiet was dismissed on 12 January 2022 with the provision of the letter set out earlier in this Decision.

[55] At the point of dismissal, Ms Pskiet had accrued leave as follows:

•  385 hours annual leave;

•  1144 hours of personal / carers leave; and

•  790 hours of long service leave.

[56] The annual leave and long service leave was paid out upon dismissal, in addition to 5 weeks pay in lieu of notice.

[57] It is common ground that a modern award applied to Ms Pskiet’s employment. The award contains a requirement to consult in certain circumstances and it is agreed that this applied to the introduction of the policy.

[58] One of the factual controversies is whether Ms Pskiet was ultimately willing to be vaccinated with the Novavax vaccine when it became available as a provisionally approved vaccine, if that step was required to keep her job. Ms Pskiet’s evidence is that if her continuing employment depended on this, she would have been willing to do so despite her reluctance to be vaccinated more generally.

[59] Prior to the dismissal, the prospect of Ms Pskiet having a vaccination was communicated by her in various forms and included:

•  “unvaccinated waiting for a safe vaccine ….” 27 – in the survey response.

•  “I am very concerned about the long term safety of the vaccines that are currently available” 28 – in response to the making of the policy.

•  “All 3 vaccines are still in clinical trial phase but have been provisionally approved.

There have been 686 deaths to 28/11 /21 from vaccination.

There have been 85,714 adverse reactions to 28/11/21 from vaccination.

The new variant appears to be infecting vaccinated people at the same rate as unvaccinated.

I have a proven record of good immunity (1,135 hrs) of accumulated sick leave.” 29

•  “I have given 16+ years of dedicated loyal service. At this time I find it hard to believe that all you have done is suspended me without pay and suggested/ threatened to terminate employment without even considering if it may be appropriate to use some of my annual leave currently at around 9 weeks, or my long service leave at around 20 weeks. …

Please ask yourself what the mandate will actually achieve/ has achieved, is the work place safer? I have never stated that I will not have a vaccine at all. I have concerns about the safety of the current provisionally approved vaccines. The (sic) is another vaccine that may get provisional approval soon.” 30 – in response to the Applicant’s suspension.

[60] In oral evidence, Ms Pskiet’s evidence touching upon this matter included:

•  In reference to whether Ms Pskiet communicated her intention to be vaccinated with “another vaccine that may get provisional approval soon” 31 – (in effect) not raised more specifically but was awaiting a meeting”.32 And later – “I know I made a typo there but it was still clear what I’d meant and at no time did Josef contact me to ask for confirmation on my status and to clarify anything at all. Emails were the only form of communication that I received.”33

•  “ … So, just in terms of Novavax, did you expressly raise Novavax at any time?” – “I made reference to the other - another vaccine that was being provisionally approved, so, because it was originally due to be approved in the December but there was a holdup and it didn't get done till January.” 34

•  “…I want to ask some questions about Novavax. Do you accept that prior to the termination of your employment you never told Mr Capobianco that you would get Novavax?” – “I did not stipulate the name of it but I made reference to another vaccine being provisionally approved, and in reading Joseph's evidence I can see he was clearly aware of Novavax because of the discussions that he had with [CB].” 35

•  “Okay, and so even though you thought Novavax might be approved, you signed up for the Covax trial?” –“Yes.”

“Why did you do that if you were committed to Novavax?” – “I did it in case I could get accepted straight away into the Covax 19 trial because I considered that was probably a safer vaccine than what the Novavax was, plus I was trying to keep my options open, and unsure of what I was able to do.”

“And why did you think Covax was safer than Novavax?” –“Just because of the way that it's made.” 36

•  “… So you did … some research into Covax?” – “But I was researching both of them but I was willing to have the Novavax if that was the first one and I needed to do that to keep my job. But I didn't see the RMNA [sic] vaccines as being safe enough to even consider under any circumstances.”

“Had you seen the safety data sheet from Novavax - - -?” – “No.” 37

•  “Sorry, I – my question is, you assumed that Covax and Novavax were going to be safer but you didn't have the safety data information - - -?” – “Yes. Because my - - ”

“To know if that was the case?” – “My decision was based on the research that I'd done on RMNA [sic] technology.” 38

•  “Do you have reservations about whether the vaccines are effective?” – “I know that they're ineffective in that they don't work in the transmission of the Sars-2 COVID virus.” 39

•  “No, so you would disagree that vaccines reduce the likelihood of transmission?” – “It's proven that they don't, actually.” 40

•  “The official guidance from the - - -?” – “Whether I disagree or agree with what they said, I was willing to have the Novavax vaccine when it became available, to keep my job, whether I agreed with it or not, as in a lot of people in Australia. Most of them got vaccinated, not because they chose to or wanted to, they did it to keep their jobs.” 41

•  “You thought that if you caught COVID your immune system would be sufficient to deal with that, is that right?” – “It could have been.” 42

•  “You’re saying if he doesn't give you the requested information, you wouldn't be complying with the policy - - -?” – “No - - -”

“Is that right?” – “No, it doesn't – I am unable to provide the certificate at this time. I never said I wouldn't have one.” 43

•  “You thought that having a vaccination requirement at work wouldn't improve safety at all?” – “No, I don't believe that it would have. Do people still get COVID-19 and have to stay away?”

“You don't think there is any benefit to the vaccination, is that right?: – “Not with the COVID-19 vaccinations - my experience shows that everyone that I've know has actually got COVID-19 - some of my family that have had vaccinations have all had COVID. The ones that are unvaccinated haven’t.” 44

•  “In the context of you being asked - just wait for a minute - in the context of you being asked why you shouldn't be dismissed, why didn't you say, ‘Actually, Novavax is just around the corner, I confirm I'm available for it’. Why didn't you do that? – “I don't know why I didn’t because I made reference to it getting approved soon. I didn’t name it - it was a very emotional time for me and maybe I wasn’t completely thinking clearly. I mean, I spent 16-plus years dedicated to that - - -” 45

•  “So I thought out of fairness to you I should raise that with you and give you an opportunity to give evidence as to your willingness or otherwise to take the Novavax when it became available? – “Yes. I was willing to have the Novavax vaccine when it became available to keep my job.”

“Notwithstanding your views about the benefit of vaccination?” – “I wanted to be able to keep that job until the time because I really loved doing the work and the people that I worked with and yes, I would have been, because Novavax was the safer - being a protein-based vaccine was a lot more points about it that were safer than the RMNA [sic] vaccines.” 46

[61] When asked directly whether she had become vaccinated when the Novavax vaccine became available, Ms Pskiet declined to confirm her vaccination status and the following responses were provided:

•  “I don't see that as being relevant at the moment because it wasn’t available at the time I was terminated, and the minute – and as soon as I got terminated, everything changed for me.” 47

•  “I'm not willing to disclose that.” 48

[62] I observe that although the right to press for an answer to that question was expressly reserved, the Respondent did not do so. In any event, I accept that Ms Pskiet’s dismissal impacted on her willingness to consider vaccination, at least in the context of Novavax.

[63] In assessing Ms Pskiet’s evidence about her willingness to be vaccinated when the Novavax vaccine became available, I also observe that there are competing aspects of that evidence. Ms Pskiet referred to the other vaccine about to be approved (without ever naming it) and waiting for a safer vaccine, and her evidence about the preference for Novavax (as a protein-based vaccination) and concerns about the MRNA vaccines, although subjective, was convincing as to the actual basis of her position. I also observe that the real prospect of Novavax being approved at some stage early in 2022 was known by Ms Pskiet and Mr Capobianco at the time of the events leading to the dismissal. On the other hand, Ms Pskiet’s evidence about Covid-19 vaccinations more generally demonstrates a strong opinion about their ineffectiveness and risks, which, coupled with her unwillingness to disclose her present status, is more consistent with the view that she would ultimately not have been vaccinated in order to keep her job when Novavax became available. In that regard, and for reasons set out above, I do accept that for an unwilling or reluctant person, the fact that her employment was no longer impacted (as she was already dismissed) is a relevant consideration.

[64] On balance, I consider that the appropriate finding is that whilst I cannot be confident that Ms Pskiet would have ultimately agreed to become vaccinated in order to keep her job when Novavax became available, this is more than a distinct possibility. In the end result, this must remain speculation as ultimately, the dismissal occurred shortly before the reality of Novavax as an option. However, this aspect must be considered in the context of Ms Pskiet’s request to take leave in the circumstance of her pending dismissal and the other circumstances at the time. I will return to this as part of my later consideration.

[65] The other contextual factual controversy is associated with the alleged differential treatment of another employee, CB. The facts reveal the following:

•  CB is one of several warehouse supervisors employed. CB works in the warehouse team where about 60 warehouse workers are engaged.

•  CB returned his consultation survey and had selected two boxes. The first was that he was unvaccinated but intended to be vaccinated. The second was that he was unvaccinated but did not intend to be vaccinated. CB had already approached Mr Capobianco prior to that time and advised that he was awaiting the Novavax vaccine.

•  Nocelle Foods had agreed that CB would take leave from early January until 11 February 2022.

•  Due to some changes in another employee’s leave, CB offered to come back to work early, and this commenced on 4 January 2022.

•  On 12 January 2022, Mr Capobianco contacted CB about his (non) vaccination status and was advised that CB would be vaccinated when Novavax became available. I observe for reference that this was the date that the Applicant was dismissed.

•  As CB was on leave for another 9 days, Mr Capobianco determined that it was not necessary to take steps to potentially terminate the employment then as he would be on holidays. CB also acknowledged that he understood he could not come back to work if he was unvaccinated. CB further advised that if there was no update about Novavax then he might get one of the other approved vaccination options before the end of his holidays.

•  On or about 19 January 2022 Mr Capobianco became aware that Novavax would likely be approved by the TGA. On that same day, he contacted CB to confirm that Novavax was the vaccine that he was intending to receive. CB confirmed it was and that he would be registering for Novavax as soon as it was available to the public in South Australia.

•  Mr Capobianco agreed with CB that the sensible approach was to reinstate his original leave, and his absence would be covered by family members.

•  On about 23 January 2022 Mr Capobianco became aware that the Federal Health Minister (Greg Hunt) had announced that Novavax was likely to be approved by the TGA imminently and be available in Australia to be administered on 21 February 2022. This was confirmed with CB who indicated that he would make sure that he was registered for an appointment for Novavax as soon as it became available.

•  On about 21 February 2022 CB confirmed he had received Novavax. He had arranged an appointment for the first day it was available in South Australia. CB has since returned to work and remains employed by Nocelle Foods.

[66] These findings confirm Mr Capobianco’s awareness of the Novavax vaccine’s likely approval. In addition, they also confirm that Nocelle Foods was prepared to use annual leave to accommodate an employee who had expressly confirmed a willingness to have the Novavax vaccine, including the steps they would be taking as soon as the approval came through. There are some similarities and some important differences in the circumstances and approach of Ms Pskiet at the time.

[67] I will also briefly return to this aspect as part of my later consideration.

5 Findings about the vaccination policy and its introduction

[68] The Full Bench of the Commission in Construction, Forestry, Maritime, Mining and Energy Union and another v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal 49 (Mt Arthur Coal) comprehensively considered the context for the introduction of a vaccination policy into a workplace.

[69] The following general principles may be drawn from Mt Arthur Coal: 50

•  In the absence of a contrary intention, there is a term implied into all contracts of employment to the effect that employees must follow the lawful and reasonable directions of their employer. 51

•  A lawful direction is one which falls within the scope of the employee’s employment. An employee is not obliged to obey a direction which goes beyond the nature of the work the employee has contracted to perform, although an employee is expected to obey instructions which are incidental to that work. 52

•  A direction which endangers an employee’s life or health, or which the employee reasonably believes endangers his or her life, will not be a lawful order, unless the nature of the work is itself inherently dangerous, in which case the employee has contracted to undertake the risk. 53

•  Further, the direction must be lawful in the sense that it must not direct the employee to do something that would be unlawful, such as driving an unregistered or unroadworthy vehicle. 54

•  The reasonableness of a direction given to an employee is a question of fact and must be judged objectively having regard to all the circumstances, including the nature of the particular employment, the established usages affecting the employment, the common practices that exist, the general provisions of any instrument governing the relationship, and whether the employer has complied with any relevant consultation obligations. 55

•  It is not necessary to show that the direction in question is the preferable or most appropriate course of action or in accordance with ‘best practice’ or in the best interests of the parties. There may be a range of options open to an employer within the bounds of reasonableness. 56

•  A direction lacking an evident or intelligible justification will not be reasonable, but that is not the only basis on which unreasonableness can be established. All the circumstances must be considered. 57

[70] Ms Pskiet’s contract of employment 58 expressly required her to comply with reasonable and lawful directions59 and provided the capacity to the Respondent to terminate on the grounds of a “failing to follow lawful directions”.60

[71] The terms of the policy 61 were as follows:

“POLICY - REQUIREMENT FOR COVID-19 VACCINATIONS

Policy statement

Nocelle takes the risks associated with the COVID-19 pandemic seriously.

Nocelle recognises the evolving risks associated with COVID-19 and the public facing roles that most of our employees have with clients and the community.

Nocelle is mindful that the public facing nature of these roles and the business increases the risks of employees contracting and transmitting COVID-19. This may also impact the likelihood that the Nocelle workplaces could become COVID-19 exposure sites.

In line with our work health and safety obligations, we have decided to implement a requirement that all employees must be vaccinated against COVID-19.

Application

This policy applies to all Nocelle employees including Merchant Street.

Definitions

In this policy:

•  "ATAGI Guidelines" means the Australian Technical Advisory Group on Immunisation expanded guidance on acute major medical conditions that warrant a temporary medical exemption relevant for COVID-19 vaccines.

•  "TGA Approved COVID-19 Vaccination" means a vaccination that has been specifically approved and recognised by the Therapeutic Goods Administration and as at the date of this policy includes AstraZeneca, Pfizer and Moderna vaccinations.

Vaccination requirement

All employees must by 10 January 2022 have:

•  received at least one dose of a TGA Approved COVID-19 Vaccination; and

•  either received a second dose of a TGA Approved COVID-19 Vaccination, or be able to produce evidence of a booking to receive a second dose before 21 February 2022.

This requirement is subject to the process below in relation to medical exemptions.

All employees are required to maintain fully vaccinated status and follow recommendations issued by ATAGI or the Federal or State Government in relation to booster doses. Nocelle may issue additional directions from time to time in relation to booster or other vaccination requirements.

Evidence of vaccination status

All employees must by 10 January 2022 provide evidence to satisfy Nocelle that they have complied with the vaccination requirement in this policy.

Employees can provide a copy of their Immunisation history statement or COVID-19 digital certificate.

A person may elect to instead show (but not provide a copy of) these statements or certificates to a member of the management team who will confirm that the employee has complied with the requirements of this policy.

Nocelle will treat the information provided in accordance with its privacy obligations.

Medical exemptions

Nocelle acknowledges that some employees may have medical conditions that mean they are not able to safely receive a COVID-19 vaccination.

An employee will be exempt from the vaccination requirement in this policy if they have provided to Nocelle a medical certificate from a legally qualified medical practitioner certifying that the employee has a medical exemption from receiving a TGA Approved COVID-19 Vaccination on either a permanent or temporary basis in accordance with the ATAGI Guidelines. The certificate must specify the nature of the exemption and basis on which it applies.

An employee who provides a medical exemption may, in the discretion of Nocelle, continue to perform their duties but must comply with any other requirements imposed by the Nocelle in relation to the person's duties.

Non-compliance

An employee who has not complied with the vaccination requirement set out in this policy or provided evidence to satisfy Nocelle of such compliance will be placed on unpaid suspension while Nocelle takes steps to discuss the matter further with the person.

Nocelle will consider any matters which the employee puts forward and depending on the circumstances this may result in changes to the person's duties or possibly termination of the employment.

Variation

Nocelle may in its discretion amend or replace this policy from time to time.”

[72] I observe that in their evidence both Mr Capobianco and Ms Pskiet referenced publicly available information from the website of the FWO. 62 The features of that information relevant to their evidence included:

•  Managing vaccinations in the workplace including the range of consideration that should be considered and alters employers to the consultation obligations that might arise from relevant awards or enterprise agreements and WHS requirements. This included a link to some guidance materials issued by Safe work Australia 63 that recommended the treatment of Convid-19 in the same manner as the management of other risks, including conducting a risk assessment as part of determining any response.

•  The existence of State and Territory health laws and directions that might directly impact upon vaccinations at work.

•  An indication that employers can direct their employees to be vaccinated if the direction is lawful and reasonable. Whether a direction is lawful and reasonable is fact dependent and needs to be assessed on a case-by-case basis. A range of considerations, including by reference to 4 tiers of workplace according to risk of exposure, the extent of community transmission and various other factors.

•  A caveat that employers should be aware of the impact of anti-discrimination laws and that legal advice should, in effect, be sought.

[73] Importantly, this was appropriately provided to assist the community deal with a difficult developing circumstance and no doubt constructively and appropriately guided parties. However, as confirmed by the FWO information itself, this information did not represent legal requirements (in their own right) or any form of decision-rule for the introduction of Covid-19 vaccination policies. The same may be said for the Safe Work Australia guidance material. That is, although some guidance material has statutory status under WHS laws, this guide expressly provided:

“This document provides guidance to assist businesses determine how best to manage the risk of COVID-19 in the workplace. It provides a framework that complements and links to more detailed advice on the Safe Work Australia website. This document is not intended to prescribe specific approaches, but instead seeks to help businesses determine what is appropriate for their individual workplaces and circumstances.” 64

[74] The general factual context for the potential introduction of workplace Covid-19 vaccination requirements was considered by the Full Bench in Mt Arthur Coal in the following terms:

“[29] There are a number of general factual propositions which are uncontentious and which we accept have been established on the evidence before us:16

1. COVID-19 involves a high burden of disease, greater than influenza.

2. Any infected person is at risk of developing serious illness from the virus, which may lead to death.

3. The risks posed by COVID-19 have changed with the rapid rise of the Delta variant which is more infectious and has more severe health effects than previous variants.

4. All COVID-19 vaccines currently available in Australia are effective at preventing symptomatic infection, including from the Delta variant.

5. All COVID-19 vaccines currently available in Australia substantially reduce the risk of serious illness or death, including from the Delta variant.

6. All COVID-19 vaccines currently available in Australia are safe and any adverse effects are usually mild. There is a much higher risk of developing serious complications and dying from acquiring COVID-19.

7. An unvaccinated person is more likely to acquire COVID-19 from another unvaccinated person, rather than a vaccinated person.

8. While other measures, such as mask wearing, and social distancing, are demonstrated to reduce the transmission of COVID-19, the effectiveness of these measures depends on people applying them consistently or correctly. They do not provide a substitute for the constant protection offered by vaccines, nor do they reduce the risk of developing serious illness once somebody acquires an infection.

9. Vaccination is the most effective and efficient control available to combat the risks posed by COVID-19.

10. Even with high vaccine rates in the community, COVID-19 will remain a significant hazard in any workplace in which there is a possibility that people will interact or use the same common spaces (even at separate times). The Mine is clearly such a workplace.”

[75] This followed consideration of relevant expert evidence and remains apposite, subject to local circumstances. The impact of the Delta variant contemplated in that decision was a reality in South Australia at the time of the development and implementation of the policy.

[76] The direction for Ms Pskiet to be vaccinated against COVID-19 under the policy enlivened the general duties and consultation obligations in the Work Health and Safety Act 2012 (SA) (SA WHS Act).

[77] The primary duty of care upon Nocelle Foods as a PCBU under the SA WHS Act is provided in the following terms:

“19—Primary duty of care

(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—

(a) workers engaged, or caused to be engaged by the person; and

(b) workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.

(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

(3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable—

(a) the provision and maintenance of a work environment without risks to health and safety; and

(b) the provision and maintenance of safe plant and structures; and

(c) the provision and maintenance of safe systems of work; and

(d) the safe use, handling and storage of plant, structures and substances; and

(e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and

(f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and

(g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.

(4) If—

(a) a worker occupies accommodation that is owned by or under the management or control of the person conducting the business or undertaking; and

(b) the occupancy is necessary for the purposes of the worker's engagement because other accommodation is not reasonably available, the person conducting the business or undertaking must, so far as is reasonably practicable, maintain the premises so that the worker occupying the premises is not exposed to risks to health and safety.

(5) A self employed person must ensure, so far as is reasonably practicable, his or her own health and safety while at work.

Note—

A self employed person is also a person conducting a business or undertaking for the purposes of this section.”

[78] The general duty for workers is also set out in s.28 of the SA WHS Act in the following terms:

“28—Duties of workers

While at work, a worker must—

(a) take reasonable care for his or her own health and safety; and

(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and

(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act; and

(d) co operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.”

[79] The relevant regulations 65 also provide the following:

“35—Managing risks to health and safety

A duty holder, in managing risks to health and safety, must—

(a) eliminate risks to health and safety so far as is reasonably practicable; and

(b) if it is not reasonably practicable to eliminate risks to health and safety—minimise those risks so far as is reasonably practicable.

36—Hierarchy of control measures

(1) This regulation applies if it is not reasonably practicable for a duty holder to eliminate risks to health and safety.

(2) A duty holder, in minimising risks to health and safety, must implement risk control measures in accordance with this regulation.

(3) The duty holder must minimise risks, so far as is reasonably practicable, by doing 1 or more of the following:

(a) substituting (wholly or partly) the hazard giving rise to the risk with something that gives rise to a lesser risk;

(b) isolating the hazard from any person exposed to it;

(c) implementing engineering controls.

(4) If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by implementing administrative controls.

(5) If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by ensuring the provision and use of suitable personal protective equipment.

Note—

A combination of the controls set out in this regulation may be used to minimise risks so far as is reasonably practicable if a single control is not sufficient for the purpose.

37—Maintenance of control measures

A duty holder who implements a control measure to eliminate or minimise risks to health and safety must ensure that the control measure is, and is maintained so that it remains, effective, including by ensuring that the control measure is and remains—

(a) fit for purpose; and

(b) suitable for the nature and duration of the work; and

(c) installed, set up and used correctly.

38—Review of control measures

(1) A duty holder must review and, as necessary, revise control measures implemented under these regulations so as to maintain, so far as is reasonably practicable, a work environment that is without risks to health or safety.

(2) Without limiting subregulation (1), the duty holder must review and, as necessary, revise a control measure in the following circumstances:

(a) the control measure does not control the risk it was implemented to control so far as is reasonably practicable;

Examples—

(1) The results of monitoring show that the control measure does not control the risk.

(2) A notifiable incident occurs because of the risk.

(b) before a change at the workplace that is likely to give rise to a new or different risk to health or safety that the measure may not effectively control;

(c) a new relevant hazard or risk is identified;

(d) the results of consultation by the duty holder under the Act or these regulations indicate that a review is necessary;

(e) a health and safety representative requests a review under sub-regulation (4).

(3) Without limiting subregulation (2)(b), a change at the workplace includes—

(a) a change to the workplace itself or any aspect of the work environment; or

(b) a change to a system of work, a process or a procedure.

(4) A health and safety representative for workers at a workplace may request a review of a control measure if the representative reasonably believes that—

(a) a circumstance referred to in subregulation (2)(a), (b), (c) or (d) affects or may affect the health and safety of a member of the work group represented by the health and safety representative; and

(b) the duty holder has not adequately reviewed the control measure in response to the circumstance.”

[80] Division 2 of part 5 of the SA WHS Act establishes the basis of the obligation to consult in the following terms:

“47—Duty to consult workers

(1) The person conducting a business or undertaking must, so far as is reasonably practicable, consult, in accordance with this Division and the regulations, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety.

Maximum penalty:

(a) in the case of an individual—$20 000;

(b) in the case of a body corporate—$100 000.

(2) If the person conducting the business or undertaking and the workers have agreed to procedures for consultation, the consultation must be in accordance with those procedures.

(3) The agreed procedures must not be inconsistent with section 48

48—Nature of consultation

(1) Consultation under this Division requires—

(a) that relevant information about the matter is shared with workers; and

(b) that workers be given a reasonable opportunity—

(i) to express their views and to raise work health or safety issues in relation to the matter; and

(ii) to contribute to the decision-making process relating to the matter; and

(c) that the views of workers are taken into account by the person conducting the business or undertaking; and

(d) that the workers consulted are advised of the outcome of the consultation in a timely manner.

(2) If the workers are represented by a health and safety representative, the consultation must involve that representative.

49—When consultation is required

Consultation under this Division is required in relation to the following health and safety matters:

(a) when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking;

(b) when making decisions about ways to eliminate or minimise those risks;

(c) when making decisions about the adequacy of facilities for the welfare of workers;

(d) when proposing changes that may affect the health or safety of workers;

(e) when making decisions about the procedures for—

(i) consulting with workers; or

(ii) resolving work health or safety issues at the workplace; or

(iii) monitoring the health of workers; or

(iv) monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking; or

(v) providing information and training for workers; or

(f) when carrying out any other activity prescribed by the regulations for the purposes of this section.”

[81] There is also an extensive Code of Practice 66 that supports these requirements.

[82] In essence, the consultation requirements of the SA WHS Act require that as far as is reasonably practicable:

•  relevant work health and safety information is shared with workers;

•  workers are given a reasonable opportunity to express their views and to raise health or safety issues;

•  workers are given a reasonable opportunity to contribute to the decision-making process relating to the health and safety matter;

•  the views of workers are taken into account;

•  workers are advised of the outcome of any consultation in a timely manner, and

•  if the workers are represented by a health and safety representative, consultation must include that representative.

[83] There is no indication that health and safety representatives are elected in this workplace. This means that the workers’ views were to be obtained directly.

[84] The WHS Act consultation obligations under the SA WHS Act and those considered in Mt Arthur Coal are broadly consistent. 67

[85] The relevant modern award 68 provided the following provision of relevance to this matter:

“31. Consultation about major workplace change

31.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:

(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and

(b) discuss with affected employees and their representatives (if any):

(i) the introduction of the changes; and

(ii) their likely effect on employees; and

(iii) measures to avoid or reduce the adverse effects of the changes on employees; and

(c) commence discussions as soon as practicable after a definite decision has been made.

31.2 For the purposes of the discussion under clause 31.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:

(a) their nature; and

(b) their expected effect on employees; and

(c) any other matters likely to affect employees.

31.3 Clause 31.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.

31.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 31.1(b).

31.5 In clause 31 significant effects, on employees, includes any of the following:

(a) termination of employment; or

(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or

(c) loss of, or reduction in, job or promotion opportunities; or

(d) loss of, or reduction in, job tenure; or

(e) alteration of hours of work; or

(f) the need for employees to be retrained or transferred to other work or locations; or

(g) job restructuring.

31.6 Where this award makes provision for alteration of any of the matters defined at clause 31.5, such alteration is taken not to have significant effect.”

[86] There are broadly similar principles between the consultation obligation in the SA WHS Act and the modern award. However, in the case of the award consultation obligation that arises as soon as practicable after the definite decision has been made.

[87] I adopt, without repeating here in full, the observations 69 of the Full Bench in Mt Arthur Coal regarding what constitutes consultation. Those principles include the nature and detail of the required consultation is context specific including the precise wording of the consultation obligation itself, consultation needs to be real and not merely formal and perfunctory, and consultation does not involve a right of veto.

[88] The role to be played by the consideration of consultation in the present context was also clarified in Mt Arthur Coal in the following terms:

“[95] We agree with ACCI that a range of factors will bear on whether a direction is reasonable. As we have mentioned, the reasonableness of a direction is a question of fact having regard to all the circumstances, which may include whether or not the employer has complied with any relevant consultation obligations.

[96] Whether a particular direction is reasonable is not to be determined in a vacuum, it requires consideration of all the circumstances, including the nature of the particular employment, the established usages affecting the employment, the common practices that exist and the general provisions of any instrument governing the relationship. In NSW, this would include consideration of obligations in the WHS Act, which governs employment relationships in that jurisdiction. The assessment of reasonableness and proportionality is essentially one of fact and balance and needs to be assessed on a case-by-case basis. The assessment will include, but not be determined by, whether there is a logical and understandable basis for the direction.” (footnotes omitted)

[89] This must also be considered in the context of the later rejection by the Full Bench of a proposition, in effect, that the absence of consultation was not determinative of objective reasonableness because there is no basis to conclude that any further consultation might have resulted in a different requirement. It did so in the following terms:

“[195] First, the outcome of any further consultation is not to be simply viewed through a binary prism; that is, whether or not Mt Arthur would direct compliance with the Site Access Requirement. The terms of the Site Access Requirement itself and the consequences of any failure to comply with it are also matters which may be the subject of amendment, following further consultation. As mentioned earlier, the responsibility to consult carries a responsibility to give those consulted an opportunity to be heard and to express their views so that they can be taken into account; it is not a mere perfunctory exercise.

[196] Second, the relevance of a failure to consult to the assessment of the reasonableness of a direction is not determined by the likelihood of the success of further consultation, it is sufficient if the failure to consult denied the Employees the possibility of a different outcome. As the High Court held in Stead v State Government Insurance Commission, in the context of a denial of natural justice:

‘… if the Full Court is properly to be understood as saying no more than that a new trial would probably make no difference to the result, their Honours failed to apply the correct criterion. All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result.’”

[90] The Full Bench in Mt Arthur Coal had also observed earlier in the decision:

“[188] Accordingly, it seems to us that a failure to consult in accordance with the WHS Act does not have the effect of invalidating a direction issued pursuant to an implied contractual power.”

[91] The consultation undertaken by Nocelle Foods in the context of its proposed vaccination policy was not expansive nor detailed. However, it provided the basic information as to what was being proposed and why. Nocelle Foods sought and considered feedback including those who were concerned or opposed to the vaccination requirement. I have made some general findings about the process earlier in this Decision. The full process surrounding the consultation and implementation of the vaccination policy is set out in the evidence 70 of Mr Capobianco and I accept that evidence.

[92] In the case of Ms Pskiet, it did not provide all of the information that she requested, some of which did not exist. However, it provided links to relevant information, and she was aware of the broader context given her role with the company. The information in response to Ms Pskiet’s survey was provided after the decision to implement the policy was made and is not therefore directly relevant to the initial consultation itself. However, consultation about its implementation is also part of the assessment of the reasonable basis for the ultimate direction to be vaccinated (in the absence of a medical exemption).

[93] The WHS consultation requirement is not an absolute, in the sense that it is based upon the notion of “so far as is reasonably practicable”. 71 I accept that there was some urgency to determine whether there was going to be a policy given the context set out earlier in this Decision. Further, to the extent that not all employees were given all of the information otherwise provided with the survey, this is a factor but does not of itself mean that the consultation obligation was not met.

[94] Further, the nature and actuality of consultation must be judged as a whole and in the circumstances of the workplace and the developing pandemic. Context and the nature and circumstances of each case matter, meaning that what will amount to ‘consultation’ has an inherent flexibility. 72 In addition, I would accept that Mr Capobianco had a view that, based upon medical and other advice and his assessment of the risks involved, the policy should be introduced. Having a view to a particular course rather than simply opening discussion on neutral options may be desirable, but is not, of itself, a failure to consult provided the necessary ingredients exist that meet minimum consultation obligations.

[95] On the basis of the relevant facts to which I have referred to above, I am satisfied on balance that Nocelle Foods:

•  shared relevant information with Ms Pskiet and its other relevant employees about whether a direction should be made requiring those employees to be vaccinated against COVID-19;

•  gave Ms Pskiet and its other relevant employees a reasonable opportunity to express their views and contribute to the decision making process;

•  took into account the views of workers; and

•  advised Ms Pskiet and its other relevant employees of the outcome of the consultation in a timely manner.

[96] Having regard to all the circumstances and not without some hesitation, I am satisfied that Nocelle Foods complied with its consultation obligations under the SA WHS Act in connection with the making and communication of its decision, including Ms Pskiet, to be vaccinated against COVID-19 unless they had a medical contraindication.

[97] I am also satisfied that the award consultation obligations were met by Nocelle Foods in connection with the vaccination policy. The decision was advised with the necessary information and Nocelle Foods subsequently engaged with those few employees for whom the vaccination policy required them to do something further.

[98] In Mt Arthur Coal, the Full Bench ultimately found that the required consultation obligation of the relevant WHS Act had not been followed given all of the circumstances of that business. This meant that the vaccination policy in that case was not the proper foundation for a lawful and reasonable direction. The Full Bench also made the following observations about some of the other relevant factors in assessing whether a direction of the present kind may be reasonable:

“[252] We note that there are a range of considerations which otherwise weighed in favour of a finding that the Site Access Requirement was reasonable, including that:

1. It is directed at ensuring the health and safety of workers of the Mine.

2. It has a logical and understandable basis.

3. It is a reasonably proportionate response to the risk created by COVID-19.

4. It was developed having regard to the circumstances at the Mine, including the fact that Mine workers cannot work from home and come into contact with other workers whilst at work.

5. The timing for its commencement was determined by reference to circumstances pertaining to NSW and the local area at the relevant time.

6. It was only implemented after Mt Arthur spent a considerable amount of time encouraging vaccination and setting up a vaccination hub for workers at the Mine.

[253] Had the Respondent consulted the Employees in accordance with its consultation

obligations − such that we could have been satisfied that the decision to introduce the Site Access Requirement was the outcome of a meaningful consultation process – the above consideration would have provided a strong case in favour of a conclusion that the Site Access Requirement was a reasonable direction.”

[99] These do not establish universal principles but are illustrative of the nature of considerations that might be applied in assessing whether a requirement to comply with a vaccination policy provided the basis for a lawful and reasonable direction.

[100] No formal risk assessment was conducted by Nocelle Foods. This was not ideal, but in practice the Respondent considered other risk management approaches and assessed and applied the general advice from the health authorities. That advice included strong encouragement for vaccinations and contentions about the safety, effectiveness and risks associated with Covid-19 and the vaccinations. Further, the Respondent considered the degree to which its employees interacted at work with others including visitors to the site and the impact of the vaccination requirements that were or had been introduced by clients and associated workplaces.

[101] There were relevant business risks associated with having non-vaccinated employees and a community benefit in having the broader population with high levels of vaccination.

[102] Despite any reservations about whether the requirements of the SA WHS Act had been met, I do not consider that the implementation of the policy was unlawful or unreasonable on that basis given all the prevailing circumstances at the time.

[103] I am satisfied that the requirement for employees working at Nocelle Foods to be vaccinated against COVID-19 was a reasonably proportionate response to the risk created by COVID-19 at that time. Taking a COVID-19 vaccine involves some risk. The risks of taking a vaccine must be weighed against the benefits of doing so and the findings in Mt Arthur Coal remain relevant. The benefits were apparent at the time of the dismissal given the state of the medical advice, the level and anticipated growth in the prevalence of Covid-19 in the South Australian community and the other circumstances within the business. The policy was also directed at ensuring the health and safety of workers of the Respondent, fell within the scope of the employment, and had a logical and understandable basis. The policy was introduced at a time where its apparent purpose was evident. It also contained a relevant exception for contrary medical circumstances.

[104] As a result, I am satisfied that the requirement to comply with the vaccination policy at Nocelle Foods at the time of the dismissal provided the proper basis for a lawful and reasonable direction for employees of the Respondent at the relevant time.

[105] I will return to the application of that requirement to Ms Pskiet as part of my consideration of whether there was a valid reason for dismissal in her case.

6. Whether the dismissal was unfair (harsh, unjust or unreasonable) – s.387 of the FW Act

[106] I need to consider whether the dismissal of Ms Pskiet was unfair in light of the above findings.

[107] Section 385 of the FW Act provides as follows:

“385 What is an unfair dismissal

(1) A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[108] There is no doubt that Ms Pskiet was dismissed and items (c) and (d) are not relevant, Ms Pskiet’s dismissal will be unfair if it is found to be harsh, unjust or unreasonable.

[109] Section 387 of the FW Act provides as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[110] It is clear that s.387 of the FW Act contemplates that an overall assessment as to the nature of the dismissal must be made by the Commission. In so doing, the FW Act sets out a number of considerations that must, where relevant, be weighed up in totality.

[111] It is convenient therefore to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.

Section 387(a) – whether there was a valid reason for the dismissal related to Ms Pskiet’s capacity or conduct (including its effect on the safety and welfare of other employees)

[112] Valid in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly.⁷³

[113] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees). 74

[114] It is also clear from the authorities that the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts before the Commission. That is, it is not enough for an employer to rely upon its reasonable belief that the termination was for a valid reason.⁷⁵ The employer bears the evidentiary onus of proving that the conduct or incapacity on which it relies took place. 76

[115] I have found that the vaccination policy in this case was capable of providing the basis for a lawful and reasonable direction to comply for employees of Nocelle Foods at the relevant time. However, the Commission must also assess whether this was so in the context of Ms Pskiet.

[116] Ms Pskiet’s role required her to, generally, be in the workplace and to access the warehouse and production facilities from time to time. Although some elements of her work could be performed from home, this was not a viable or productive medium or longer-term option. Ms Pskiet had concerns about the vaccines and was sceptical about their effectiveness, but there is no evidence of a medical or other objective basis to suggest that the policy itself was unreasonable in her circumstances.

[117] Ms Pskiet had not complied with the policy by confirming her vaccination status or providing a relevant medial exemption by the due date.

[118] In terms of the timing and manner of the application of the policy to Ms Pskiet. I have earlier found that Ms Pskiet, in effect, flagged the desire to wait for the Novavax vaccine and had raised the notion of taking some leave and/or performing some of her work from home. This could have been expressed more clearly in the lead up to the termination, however Mr Capobianco should have been aware of the import of Ms Pskiet’s position, and he was aware of the impending approval of the Novavax vaccine. Ms Pskiet was a long serving reasonably senior employee who had communicated a desire to discuss the issues with Mr Capobianco. Although both of these individuals could have taken that initiative, it was the Respondent that was considering the dismissal of Ms Pskiet. Although I also accept that Mr Capobianco was operating on advice that email communication was to be preferred, the absence of a proper discussion about Ms Pskiet’s intentions meant that the uncertainty about her intentions were not clarified and this prevented an informed decision being made about this aspect prior to the dismissal.

[119] I have also earlier found on balance, that whilst I cannot be confident that Ms Pskiet would have ultimately agreed to become vaccinated in order to keep her job when Novavax became available, this was more than a distinct possibility. In the end result, this remains speculation as ultimately, the dismissal occurred shortly before the reality of Novavax as an option.

[120] I do not consider that Mr Capobianco gave any fulsome consideration to the notion that Ms Pskiet could take some leave and await the Novavax development. Although I can appreciate that the tone of Ms Pskiet’s responses in the immediate lead up to the dismissal was unhelpful, contrasted with that adopted by CB and probably influenced his consideration, this occurred only after the prospect of her dismissal was threatened and imminent. Given Ms Pskiet’s service and position, she deserved proper consideration of her circumstances and for reasons outlined above, this may well have led to options that could have avoided, or at least delayed, the need for the dismissal.

[121] I also accept that it would not have been reasonable for Ms Pskiet to have been granted extended indefinite leave, including because of the nature of her position. However, the prospect of the Novavax vaccine was real at the point of the dismissal and the fact of dismissing the Applicant had the effect of completely removing Ms Pskiet as a resource for the business.

[122] Having objectively considered all of the relevant circumstances related to Ms Pskiet’s capacity and conduct based upon the findings of the Commission, I am on balance persuaded that the combination of her conduct was capable of constituted a valid reason for dismissal. However, the timing and related application of the policy to Ms Pskiet, means that I cannot be satisfied that, at the point of termination, a valid reason existed.

[123] I emphasise that this finding arises in the specific context of Ms Pskiet’s circumstances and those of the Respondent, based upon the evidence in this matter. Such a focus is, of course, required given the terms of s.387 of the FW Act.

Section 387(b) – whether Ms Pskiet was notified of the reasons for dismissal

[124] This consideration requires the Commission to assess whether the applicant concerned was relevantly notified of the reasons leading to the dismissal before that decision was taken.⁷⁷

[125] Ms Pskiet was notified of the reasons for her dismissal prior to that decision being made.

Section 387(c) – whether Ms Pskiet was given an opportunity to respond to any reason related to his capacity or conduct

[126] The process contemplated by the FW Act does not require any formality and is to be applied in a common sense way to ensure the employee has been treated fairly. This question becomes whether Ms Pskiet was aware of the precise nature of the employer’s concern about her capacity and had a reasonable opportunity to respond to these concerns.⁷⁸

[127] Given my earlier findings about the events surrounding the dismissal I am satisfied that a reasonable opportunity was provided to Ms Pskiet as contemplated by this consideration.

Section 387(d) – any unreasonable refusal by the respondent to allow Ms Pskiet a support person

[128] There was no meeting conducted and no request was made by Ms Pskiet for a support person. This consideration does not arise in this matter.

Section 387(e) – if the dismissal is related to unsatisfactory performance by Ms Pskiet – whether he has been warned about that unsatisfactory performance before the dismissal.

[129] This consideration relates to performance of the job. Performance in this context includes the employee’s capacity to do the work, and the diligence and care taken with that work.⁷⁹

[130] The dismissal was not related to Ms Pskiet’s performance, and this consideration does not arise.

Section 387(f) – the degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.

Section 387(g) – the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal.

[131] I deal with these two considerations together.

[132] Nocelle Foods is a not a small business and had access to external advice. Although this expertise is not within the business, given the size and resources of the Respondent, I do not consider that this absence materially impacted upon the overall procedures that it followed. However, the absence of a human resources resource on the ground may have impacted upon the manner of engagement with Ms Pskiet.

Section 387(h) - other matters considered to be relevant

[133] Amongst other considerations, the Commission should consider the impact of the dismissal upon the applicant given all of the circumstances. This dismissal meant that Ms Pskiet lost her long-standing employment with the normal consequences of that event including the loss of her personal leave balance. This is a relevant consideration.

[134] The broader context for the vaccination policy and the circumstances of the business at the time as outlined earlier is also relevant to the overall assessment of the dismissal.

Conclusion on nature of dismissal

[135] The FW Act requires a global assessment having regard to the various relevant statutory considerations. In that context, procedural unfairness is an important consideration given the provisions of the FW Act but does not necessarily mean that the dismissal was unfair. This is reinforced by the objects relating to Part 3-2 Unfair Dismissal of the FW Act in s.381 which relevantly provides as follows:

“381 Object of the Part

… …

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

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

[136] This would be little doubt that both parties could have handled the exchanges leading the dismissal differently. I have found that whilst the vaccination policy provided the basis of a lawful and reasonable direction it did not provide a valid reason for dismissal in the specific context of Ms Pskiet’s circumstances at the time that the dismissal took place. I have also taken into account and weighed the other considerations of s.387 of the FW Act.

[137] Given the facts of the matter and the statutory considerations, I am satisfied on balance that the dismissal of Ms Pskiet was harsh, and unreasonable. It was therefore unfair within the meaning of the FW Act.

7. Remedy

[138] Ms Pskiet does not seek reinstatement to her former position, but rather, compensation. Amongst other considerations, Ms Pskiet seeks that the Commission award her an amount which recognises her outstanding personal leave balance which was not paid out upon termination. For reasons discussed below, this is not the proper starting point for the assessment of compensation in a matter of this kind.

[139] Division 4 of Part 3-2 of the FW Act relevantly provides as follows:

“Division 4—Remedies for unfair dismissal

390 When the FWC may order remedy for unfair dismissal

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

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

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

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

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

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

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

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

… …

392 Remedy—compensation

Compensation

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

Criteria for deciding amounts

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

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

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

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

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

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

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

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

Misconduct reduces amount

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

Shock, distress etc. Disregarded

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

Compensation cap

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

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

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

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

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

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

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

393 Monetary orders may be in instalments

To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.”

[140] The prerequisites of ss.390(1) and (2) have been met in this case.

[141] Section 390 of the FW Act makes it clear that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances. As Ms Pskiet does not seek reinstatement and the Respondent strongly opposes that form of remedy, I find that such would be inappropriate in all of the circumstances of this matter.

[142] As set out above, under the FW Act, it is then necessary to consider whether compensation in lieu of reinstatement is appropriate.

[143] A Full Bench in McCulloch v Calvary Health Care Adelaide⁸⁰ (McCulloch) confirmed, in general terms, that the approach to the assessment of compensation as undertaken in cases such as Sprigg⁸¹ remains appropriate in that regard.

[144] Section 392(2) of the FW Act requires me to take into account all of the circumstances of the case including the factors that are listed in paras (a) to (g). Without detracting from the overall assessment required by the FW Act,⁸² it is convenient to discuss the identified considerations under the various matters raised by each of the provisions.

The effect of the order on the viability of Nocelle Foods

[145] Nothing was put on this aspect, but Nocelle Foods is a large business and there is no indication that an order of kind being considered here would impact upon the viability of that business.

The length of Ms Pskiet’s service with Nocelle Foods

[146] Ms Pskiet worked for Nocelle Foods for over 16 years, which is a significant duration and this factor is consistent with the making of a compensation order.

The remuneration Ms Pskiet would have received, or would have been likely to receive, if she had not been dismissed

[147] This involves, in part, consideration of the likely duration of Ms Pskiet’s employment in the absence of what I have found to be an unfair dismissal. That is, the establishment of the anticipated period of employment.⁸³

[148] The anticipated period of employment requires consideration as to how long the employment would have continued before it otherwise came to an end fairly, or on some justified or mutual basis. An applicant employee might also leave of their own volition and this is a prospect in this case given the events leading to the point at which the dismissal was being considered by the Respondent.

[149] This is not an easy assessment in the context of this case. In particular, my findings about the legitimacy of the vaccination policy and the prospects that Ms Pskiet would have become vaccinated when the Novavax vaccine became available bear directly upon this consideration. The degree of confidence in such an outcome must, as a matter of fairness, also be taken into account in any projected loss. This includes the fact that as at the hearing of this matter, Ms Pskiet was not compliant with the requirements of the vaccination policy. This factor would normally provide a significant barrier to compensation. However, for reasons discussed earlier in this decision, I have found that the circumstances of Ms Pskiet in terms of a potential vaccination changed when she was no longer employed.

[150] I consider that the anticipated period of employment for present purposes should be some 12 weeks, including a period of notice. This reflects the balancing of all of the circumstances and inferences arising from the facts of this particular matter. This includes the finding that the timing of the dismissal made a real impact upon the options associated with the disciplinary outcome, a realistic assessment of what would have eventuated in the alternative, and the nature of, and necessary speculation associated with, the findings made about whether Ms Pskiet would have ultimately complied with the vaccination policy.

[151] Ms Pskiet was paid an annual salary of $60,000, being a gross weekly payment of $1,154 (rounded) per week, plus superannuation contributions.

[152] The projected remuneration that Ms Pskiet would have received based upon the anticipated period of employment with Nocelle Foods and the rate of remuneration paid would therefore have been $13,848 plus superannuation contributions.

The efforts of Ms Pskiet to mitigate the loss suffered by her because of the dismissal

[153] Ms Pskiet has not been actively seeking employment since her dismissal. In evidence, the Applicant indicated as follows in response to a question about this aspect:

“ … At the moment because I hadn't taken any of my long service leave and I had so much annual leave, I've only looked for roles within the quality area and I have applied for a couple of them. But most of the people nowadays want a certificate in food science or a degree which I do not have. So there's been so many jobs that I can't apply for in the field that I was working. So I've been taking a lot of leave and – but probably next month after the financial year ends I will have to just take factory work, anything that I can get. And I'm hoping to be able to get something up here in Lobethal because there's a lot of jobs going. But I know that I won't be able to go into the field that I was already in because of the lack of having a degree or a certificate in food science.” 84

[154] Although I accept that some period of “leave” may have been reasonable and there could have been some limitations on her employment options, I do not consider that Ms Pskiet has taken reasonable to mitigate her losses as at the time of the hearing. I find that a discount on the compensation should be applied.

[155] I consider that the discount based on this consideration should be 25 per cent of the projected remuneration loss.

The amount of any remuneration earned by Ms Pskiet from employment or other work during the period between the dismissal and the making of the order for compensation

The amount of any income reasonably likely to be so earned by Ms Pskiet during the period between the making of the order for compensation and the actual compensation

[156] Other than notice, Ms Pskiet was not in receipt of any employment related income following her dismissal and was not in paid employment at the time of the hearing of this matter.

[157] Ms Pskiet received 5 weeks pay in lieu of notice following her dismissal that should be taken into account as income under this consideration. The payment in lieu of notice was $6,346.15 (gross) including superannuation. The wage component of this notice payment was $5,770.

Any other matter that the FWC considers relevant and the remaining statutory parameters

[158] I have taken into account the projected nature of the anticipated loss of remuneration over a known period and given the circumstances of this case, it is not appropriate to make a further allowance for contingencies.⁸⁵

[159] I do not consider that a deduction for misconduct as provided by s.392(3) of the FW Act is relevant or appropriate in this case.

[160] In accordance with s.392(4) of the FW Act, I make no allowance for any shock, distress or humiliation that may have been caused by the dismissal. I also observe that compensation in this context is not in the nature of damages or a penalty for the actions of the employer.

[161] The maximum compensation limit in this case is the lesser of 26 weeks remuneration⁸⁶ before the dismissal occurred ($33,000) or the stated statutory compensation cap of $79,250.⁸⁷ The amount of compensation otherwise arising from the statutory considerations is less than the lower figure.

[162] Taxation as required would be payable on any amount determined. I consider that superannuation of 10 per cent⁸⁸ should be taken into account in relation to the compensation figure in this matter.

[163] In terms of Ms Pskiet’s contention that I should award her the equivalent of her outstanding personal leave, I have taken the loss of her entitlement into consideration in terms of the impact of the dismissal upon her. However, I find that the application of the specific statutory compensation considerations above provides a fair go all round.

Conclusions on remedy

[164] Having regard to the circumstances of this matter applied to the considerations established by s.392 of the FW Act, I consider that it is appropriate to make an award of compensation to Ms Pskiet in lieu of reinstatement. Further, I consider that the compensation should amount to $3,462 plus superannuation contributions, given the circumstances of this case and the terms of the Act.

[165] The above compensation figure has been derived by taking the projected remuneration loss, discounting this figure by 25 per cent on the basis of the (absence of) mitigation consideration, and deducting the payment made in lieu of notice.

8. Conclusions

[166] I find that Ms Pskiet’s dismissal was unfair within the meaning of the FW Act.

[167] I have found that compensation is appropriate in lieu of reinstatement and the amount determined above is also appropriate in all of the circumstances.

[168] The compensation payment is to be made within 14 days of this decision.

[169] An Order⁸⁹ consistent with the above is being issued in conjunction with this Decision.

COMMISSIONER

Appearances:

R Pskiet, the Applicant on her own behalf.

P Healey of Cowell Clark Lawyers, with permission, for the Respondent.

Hearing details:

2022
June 23
Video Hearing.

Final written submissions:

1 July 2022 – in connection with the FWO and WHS information.

Printed by authority of the Commonwealth Government Printer

<PR742748>

1 Section 399(1) of the FW Act.

 2   Section 394(2) of the FW Act.

 3   Section 386 of the FW Act.

 4   Section 382 of the FW Act. Ms Pskiet has served the minimum employment period and was not paid above the high income threshold.

 5   Drawn for the Applicant’s witness statement.

 6   Exhibit A1.

 7   Exhibit A2.

 8   Exhibit R1.

 9   Exhibits R2 and R3.

 10   Exhibit R3.

 11   Exhibit R2.

 12   Exhibit JC2.

 13   Exhibits A2/JC4.

 14   Exhibit JC4.

 15   The evidence of Mr Capobianco – exhibit R1 at 35 and 36.

 16   Annexure JC-5 to Exhibit R1. This was changed after the policy was implemented.

 17   Annexure JC-6 to Exhibit R1.

 18   Annexure JC-8 to Exhibit R1

 19   Annexure JC-9 to Exhibit R1

 20   Annexure JC-10 to Exhibit R1. The source and reliability of these statements is not known.

 21   Annexure JC-11 to Exhibit R1.

 22   Annexure JC-12 to Exhibit R1.

 23   Annexure JC-13 to Exhibit R1.

 24   Annexure JC-14 to Exhibit R1.

 25   Annexure JC-15 to Exhibit R1.

 26   Annexure JC-16 to Exhibit R1.

 27   Exhibits A2/JC- 4.

 28   Stated on 29 December 2021 (JC-8) and 6 January 2022 (JC-10).

 29   6 January 2022 (JC-10).

 30   11 January 2022 (JC-16).

 31   JC-16.

 32   Transcript PN99.

 33   Transcript PN110.

 34   Transcript PN109.

 35   Transcript PN142.

 36   Transcript PN 148 – PN150.

 37   Transcript PN154, PN155.

 38   Transcript PN162.

 39   Transcript PN174.

 40   Transcript PN178.

 41   Transcript PN185.

 42   Transcript PN289.

 43   Transcript PN10 and PN311.

 44   Transcript PN319 and PN320.

 45   Transcript PN328.

 46   Transcript PN340 and PN341.

 47   Transcript PN118.

 48   Transcript PN141.

 49   [2021] FWCFB 6059.

 50   Helpfully summarised by Saunders DP in Gregory John Casper v New Horizons [2022] FWC 1269.

 51   Mt Arthur Coal at [64].

 52   Ibid at [68].

 53   Ibid at [69].

 54   Ibid at [70].

 55   Ibid at [72] & [95]-[96].

 56   Ibid at [77].

 57   Ibid at [79].

 58   Letter of engagement – Court book page 12.

 59   Clause 6.1(c).

 60   Clause 7.5(b).

 61   Annexure JC-7 to the statement of Mr Capobianco.

 62   The relevant versions of the FWO information were confirmed with both parties.

 63   Safe Work Australia National guide for safe workplaces – COVID-19, October 2020.

 64   Ibid.

 65   Work Health and Safety Regulations 2012 (SA).

 66   Work health and safety consultation, cooperation and coordination Code of Practice (SA).

 67   The SA WHS Act and the NSW equivalent considered in Mt Arthur Coal each reflect the same national model WHS laws.

 68   Food, Beverage and Tobacco Manufacturing Award 2020.

 69   Mt Arthur Coal at [108].

 70   Exhibit R1.

 71   Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40. The assessment is to be undertaken at the particular time of the alleged breach and is limited to what is ‘reasonably able to be done’ taking into account and weighing up all relevant matters. See also Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304 at [52] as discussed in Mt Arthur Coal at [229] to [231].

 72   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v

QR Limited [2010] FCA 591 at [44].

73 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, (2004) 133 IR 458 per Ross VP, Williams SDP, Foggo C and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C at par [36].

 74   Walton v Mermaid Dry Cleaners Pty Ltd (1996) IRCA 267 per Moore J at [685].

75 See Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 per Ross VP, Williams SDP, Hingley C, 17 March 2000; Edwards v Giudice (1999) 94 FCR 561; Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, Acton SDP and Cribb C, 11 May 2000 and Rode v Burwood Mitsubishi AIRCFB Print R4471 per Ross VP, Polites SDP, Foggo C, 11 May 1999.

 76   King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 at [24].

77 See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.

78 RMIT v Asher (2010) 194 IR 1. See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].

79 See Anetta v Ansett Australia Ltd (2000) 98 IR 233.

80 [2015] FWCFB 873.

81 Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21. See also Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge [2013] FWCFB 431.

82 Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446.

83 McCulloch.

 84   Transcript PN131.

85 See the discussion of contingencies in McCulloch at [20] – [23]; Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge [2013] FWCFB 431, at par [52]; Ellawala v Australian Postal Corporation AIRC Print S5109, per Ross VP, Williams SDP and Gay C, 17 April 2000 and in Enhance Systems Pty Ltd v James Cox AIRC Print PR910779, per Williams SDP, Acton SDP and Gay C, 31 October 2001.

86 It is the higher of the amount of remuneration received or entitled to be received for the previous 26 weeks period that is to be used under s.392(6)(a) of the FW Act.

87 Section 392(5) of the FW Act.

88 Based upon the Superannuation Guarantee Charge Act 1992 (Cth) and related scheme.

89 PR744168.