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

Mr Manny Koulakis
v
The Commissioner for Public Employment
(U2021/12289)

Application for an unfair dismissal remedy

[1] On 24 December 2021, Mr Manny Koulakis (the Applicant) filed an application (the Application) with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the FW Act). The Applicant was dismissed by the Commissioner for Public Employment (the Respondent) on 7 December 2021 on the basis that he was not able to perform the inherent requirements of his job.

[2] The Applicant was employed by the Northern Territory Fire and Rescue Service (NTFRS) as a Firefighter from mid-1995 until his dismissal on 7 December 2021. The Applicant’s employment was covered by the Northern Territory Public Sector Fire and Rescue Service 2017 - 2021 Enterprise Agreement (the Agreement).

[3] The Applicant seeks reinstatement.

Background

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

[5] On 13 October 2021, the Northern Territory Chief Health Officer issued COVID-19 Directions (No. 55) 2021 (CHO Direction No. 55) which came into effect on 12 November 2021, directing for mandatory vaccination of certain workers to attend the workplace. These directions applied to the following workers:

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

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

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

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

[6] These directions provided that for the period starting on 13 November 2021, a worker who had not received the first dose of an approved COVID-19 vaccination must not attend the worker’s workplace. On and from 25 December 2021, a worker who had not received two doses of an approved COVID-19 vaccine must not attend the worker’s workplace.

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

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

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

[10] On 22 October 2021, Mr Jamie Chalker, Commissioner of Police and CEO, wrote to all Northern Territory Police, Fire and Emergencies Services (NTPFES) staff regarding Mandatory COVID-19 vaccination for all NTPFES workers. The correspondence provided that due to the nature of their work, all NTPFES workers were subject to the mandatory vaccination criteria directed by CHO Direction No. 55. It provided that all NTPFES workers were required to receive their first dose of an approved COVID-19 vaccination by 13 November 2021, and their second dose of an approved COVID-19 vaccination by 25 December 2021.

[11] Various internal broadcasts followed these communications, providing further information and clarification regarding the vaccination mandate.

[12] On 23 November 2021, Mr Mark Spain, Chief Fire Officer (CFO) wrote to the Applicant as follows:

“Dear Mr Koulakis

RE: INABILITY TO PERFORM DUTIES - FAILURE OR REFUSAL TO RECEIVE APPROVED COVID-19 VACCINATION

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

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

Particulars

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

(a) You are an ongoing employee of the Department working as a Firefighter.

Chief Health Officer Directions No. 55 2021

(b) On 13 October 2021, the Northern Territory Chief Health Officer issued "COVID-19 Directions (No. 55) 2021: Directions for mandatory vaccination of workers to attend the workplace" (CHO Directions No. 55)

(c) CHO Directions No. 55 took effect at 12:00 noon on 1.3 October 2021 and remain in force

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

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

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

iii. whose workplace poses a high risk of infection with COVID-19; or

iv. who perform work that is necessary for the operation or maintenance of essential

infrastructure or essential logistics in the Territory; and

(e) I am satisfied that Direction 4 of CHO Directions No. 55 applies to your workplace because categories (i), (ii) and (iii) above.

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

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

(g) Direction 10 of CHO Directions No. 55 relevantly provides that:

A person conducting a business or undertaking must ensure that any worker who performs work for the person must not attend the worker's workplace contrary to direction 6.

Direction to Advise Vaccination Status

(h) On 22 October 2021, the Chief Executive Officer:

i. published the Northern Territory Police, Fire and Emergency Services COVID-19 vaccination Instruction and Policy; and

ii. notified you and all workers at the Northern Territory Police, Fire and Emergency Services that CHO Directions No. 55 applied to your workplace

(i) On 26 October 2021:

i. the Chief Executive Officer directed you and all workers at your workplace to advise their vaccination status by no later than 2 November 2021 (Direction 1 of 2021); and

ii. you were sent a reminder of this direction on 5 November 2021 and 10 November 2021

(j) On 11 November 2021 you were contacted by Watch Commander Eric Koomen to remind you of your requirement to comply with the CHO Direction No. 55 given you had been on an extended leave and may not have had access to the previous correspondence. During this conversation you indicated you were not willing to disclose your vaccination status.

(k) On 11 November 2021 Watch Commander Eric Koomen also reminded you of provisions under the Fire and Emergency Act 1996 (NT), in which the Chief Fire Officer may enact powers under Section 9, including a recall to duty should the workforce be impacted by an outbreak of COVID-19.

(1) As at 12 November 2021, you had not entered any COVID-19 vaccination information into

the myHR Vaccination register.

(m) On 16 November 2021 you were contacted by Ms Natalia Drake of Taskforce Protect, to follow up your vaccination status. During this conversation you indicated you were not willing to disclose your vaccination status.

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

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

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

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

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

However, before I make a decision in that regard, I invite you to make submissions to me as to whether you agree with my suspicion.

Your submissions should be in writing and must reach me by no later than the close of business on 29 November 2021.

Suspension Pending Investigation

On the basis of the material set out above, I am of the opinion that the suspected inability or performance grounds are of such a serious nature that you should not perform the duties you have been assigned to perform pending the making of a final decision. Pursuant to section 47 of the Act I foreshadow an intention to suspend you from duty, without remuneration, for a period of three (3) months or until the suspension otherwise ceases in accordance with section 47(4) of the Act. You may wish to use your recreation leave or long service leave entitlements during this period.

However, before I take action to suspend you, I invite you to make a submission in relation to the foreshadowed intention to suspend you from your duties without remuneration. Your submissions should be in writing and must reach me no later than close of business 26 November 2021.

As you are currently on recreational leave and there is no requirement for you to attend duty your IT and building access will be suspended effective immediately. If you require access to your payslips or other personnel information please contact DCDD Workforce Services via email [redacted].

I enclose for your information copies of:

•  Direction 1 of 2021 from CEO NTPFES

•  CHO Directions No. 55;

•  Part 7 of the Act;

•  Employment Instruction No. 3 - Natural Justice; and

•  Employment Instruction No. 6 - Performance and Inability

If you wish to discuss this matter please contact Taskforce Protect [redacted].

I appreciate that receiving this notification and dealing with the issues it raises may be difficult. If you would like support, please contact NTPFES Support and Wellbeing service on [redacted].

Yours sincerely

Mr Mark Spain AFSM

Chief Fire Officer

23 November 2021”

[13] The Applicant provided a response on 29 November 2021 as follows:

“Dear CFO Spain,

With regard to your letter “Inability to perform duties” received by me on 24/11/2021 … I offer the following:

1) I have not failed nor refused to receive an approved COVID-19 vaccination... this is an assumption on your part.

2) I am not in breach of any Department Directive nor any CHO mandate.

3) As you have stated, I am on approved leave that began well before the CHO 55 mandate declaration and the CEO's Direction 1 of 2021.

4) Should you choose to legally cancel my approved leave due to an operational impact of a Covid outbreak within the workforce then I will provide all necessary documentation that allows me to be a compliant worker in my workplace as defined by the CHO 55 mandate and the CEO's directive.

There is no legal basis to suspend me nor conclude an inability of performance. I value my privacy like many others and that's why many laws have been created that surround that very issue.

As you have only given me a few days to respond to your letter, I can confirm that this is only a partial response to you. My complete submission will be given before the close of business on the 3/12/2021.

Regards

Manny Koulakis”

(My emphasis)

[14] On 1 December 2021, CFO Spain suspended the Applicant from duty without remuneration:

“Dear Mr Koulakis

RE: Section 46(1)(c) Public Sector Employment and Management Act 1993 – Foreshadowed intention to terminate employment and notice of suspension from duty without remuneration

I refer to my letter dated 23 November 2021 in which I notified you that I suspected there are reasonable grounds for me to be satisfied that there are inability or performance grounds under section 44(1)(b) of the Public Sector Employment and Management Act 1993 (the Act) in relation to your employment as a Firefighter.

In the correspondence I detailed the inability and performance grounds and invited you to provide a submission to me as to whether you agree with my suspicion, or provide me with any comments you may have in relation to the matters set out in the particulars. The relevant inability and performance grounds are:

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

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

On 29 November 2021 I received an email from you, in response to my letter dated 23 November 2021, in which you advised:

1) I have not failed nor refused to receive an approved COVID-19 vaccination… this is an assumption on your part.

2) I am not in breach of any Department Directive nor any CHO mandate.

3) As you have stated, I am on approved leave that began well before the CHO 55 mandate declaration and the CEO's Direction 1 of 2021.

4) Should you choose to legally cancel my approved leave due to an operational impact of a Covid outbreak within the workforce then I will provide all necessary documentation that allows me to be a compliant worker in my workplace as defined by the CHO 55 mandate and the CEO's directive

You also advised that the response provided is a "partial response" and that it is your intention to provide a further submission on 3 December 2021.

As I outlined to you in my letter dated 23 November 2021 your response, to my suspicion that there are reasonable grounds that you are not able to or not suited to perform the duties assigned to you, was due by close of business 29 November 2021.

As I outlined in my letter dated 23 November 2021, NTFRS members may be recalled to duty and therefore I require all employees, irrespective of their current leave arrangements, to be compliant with the CHO Direction No. 55 in order to perform the duties assigned to you.

I have considered the response provided and as you have not provided any evidence to support your compliance with the CHO Direction No. 55, I remain of the view that, because you have failed to update your COVID-19 vaccination status in myHR, and you do not have a contraindication to all approved vaccines:

•  you are not permitted to enter your workplace;

•  I must not permit you to enter your workplace;

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

•  no alternative duties are reasonably available.

Having determined that there are inability or performance grounds, I must now consider what is reasonable and appropriate action to take in the circumstances and in light of the actions available to me under section 46(1) of the Act (attached).

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

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

Before I take action to terminate your employment, I invite you to make a submission to me in relation to the foreshadowed intention to terminate your employment. Your submissions should be in writing and must reach me no later than close of business 3 December 2021. I will write to you further, to confirm my actions by 6 December 2021. In making my final decision, I will take into account any submission received.

Suspension from duty without remuneration

Further, I refer to my letter dated 23 November 2021 where I invited you to respond why you should not be suspended from duty without remuneration, under section 47 of the Act.

I have now carefully considered the material before me, including your response received 29 November 2021 and I note in particular that you are of the view that "there is no legal basis to suspend me [you], nor conclude an inability or performance". Having now carefully considered your response, I am satisfied, that based on the information before me, you have not complied with CHO Direction No. 55.

In accordance with section 47 of the Act I have decided to suspend you from duty without remuneration. Your suspension will take effect immediately from the date of this letter and will remain in place pending a final decision in relation to the foreshadowed action to terminate your employment. You may wish to use your recreation leave or long service leave entitlements during this period.

For the purposes of efficiency, rather than requiring you to formally request to utilise your recreation leave during your period of suspension, I have determined that you have requested to utilise your recreation and long service leave during your period of suspension and I will not alter your current recreation or long service leave periods.

During your suspension you are directed to not attend the workplace or any other departmental workplace in relation to the performance of your duties.

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

You are further reminded that your obligations under the Code of Conduct continue to apply throughout and following the conclusion of this process.

It is anticipated that I will make a final decision no later than Monday 6 December 2021.

My previous directions to you continue to apply

Available Support

I remind you that Employee Assistance Programs are available if you require support.

…

Yours sincerely

Mr Mark Spain AFSM

Chief Fire Officer

1 December 2021”

[15] As relied on by the Applicant, Ms Erina Early of the United Workers Union wrote to CFO Spain on 2 December 2021, as follows:

“Dear Mr Spain

Employee Rights whilst on Approved Leave

I refer to your recent suggestions that you are empowered under s.9(2) of the Fire and Emergency Act 1996 to recall firefighters from approved leave.

I am aware that you have suggested this, to some of our members as well as me.

I am aware that you have threated to take disciplinary action, including dismissal of our members, who are on approved leave, and who have not yet been vaccinated for Covid-19. Your threats have been based upon your suggestion that you have powers under s 9 (2) of the Fire and Emergency Act 1996 to recall employees from approved leave.

I have been unable to identify a power under s 9 (2) of the Fire and Emergency Act 1996 for the Chief Fire Officer to recall employees from approved leave.

The Fire and Emergency Act 1996 does not regulate annual leave entitlements. Annual Leave entitlements form part of the National Employment Standards under the Fair Work Act 2009.

I request that you inform me as to the basis of your suggestion that s 9 (2) of the Fire and Emergency Act 1996 provides a basis to recall employees from approved leave.

Employment conditions of employees of the Northern Territory Fire and Rescue Service are regulated by the Northern Territory Public Sector Fire and Rescue Service 2017-2021 Enterprise Agreement (“The Agreement”).

The Agreement provides specific provisions about recalling off-duty employees. It is those provisions which apply, to questions of recalling employees from approved leave, and not s 9(2) of the Fire and Emergency Act 1996.

Enterprise Agreement

The Northern Territory Public Sector Fire and Rescue Service 2017-2021 Enterprise Agreement prescribes provisions regarding recalling off-duty employees only in very limited circumstances in the case of fire in Clause 32.4:

Notwithstanding anything contained in this Agreement, in the case of fire, an employee off duty is liable to be called upon to report for duty and if called upon, will report for duty immediately. Provided that, in the opinion of the Director or their delegate, the employee recalled to duty is fit for duty.

Our members on approved leave cannot be recalled under this Clause as:

a) Only an employee who is off duty is liable to be called upon to report for duty. Members on approved absences as distinct from being off-duty are not liable to be called upon.

b) There is unlikely to be a period of high fire risk, and demand for firefighting services during our members’ leave, considering the impending wet season.

c) The unius est exclusion alterius principle of statutory interpretation means that where certain things are specified in law, an intention to exclude all others from its operation may be inferred. By including the emergency recall travel times for people in Darwin, Katherine, Alice Springs and Track Stations, the ability to recall employees outside these areas is inferred not to exist.

Section 9(2) of the Fire and Emergency Act

The Chief Fire Officer has the power under s9(2) only to do things that are necessary or convenient to be done for or in connection with or incidental to the performance of his functions and the exercise of his powers.

It is neither necessary nor convenient to recall employees to work when they are on approved periods of leave.

The High Court has expressed a clear and settled interpretation of ‘necessary or convenient’ for over 70 years. Where the Act confers a very general power to do what is ‘necessary or convenient,’ Courts will construe what is ‘necessary or convenient’ far more narrowly than if the power were granted in a more specific manner.

The conferral of powers 'necessary or convenient' is limited to what is strictly 'necessary or convenient for you to perform your statutory duties. We note that:

a. At no stage in the past has it ever been necessary to recall employees from annual leave for you (or your predecessors) to perform the statutory duties of the Chief Fire Officer; and

b. Suggesting the act is necessary or convenient would necessitate that you have attempted to recall members who are not on annual leave, which is a far more convenient act; and

c. As discussed below, you are only empowered to recall employees who are off duty instead of being on an approved absence. It is neither necessary nor convenient to act in contravention of the Enterprise Agreement.

d. The approaching wet season has been declared as a La Niña weather event, further reducing the anticipated demand upon Fire Services and staff levels.

Powers in an Outbreak

In some of your correspondence to our members you suggest that the Chief Fire Officer may enact powers under Section 9 of the Fire and Emergency Act 1996, including a recall to duty. You suggest that this recall to duty can only occur ‘should the workforce be impacted by an outbreak of COVID-19.’

The workforce has not been impacted by an outbreak of COVID-19.

If it were the case that s.9(2) provided such powers, the conditions precedent as suggested by you have not been met.

COVID-19 Vaccinations.

Direction 4 of CHO Directions 55 of 2021 states that the mandatory vaccination policy applies to:

(a) a worker who, during work, is likely to come into contact with a vulnerable person.

(b) a worker who is at risk of infection with COVID-19 because the worker, during the course of work, is likely to come into contact with a person or thing that poses a risk of infection.

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

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

These Directions only apply ‘during work,’ ‘in the course of work,’ in a ‘workplace’ or in ‘performing work’ respectively. None of these categories are applicable to people who are on approved leave. There is nothing further in the Schedule to suggest that the Directions apply to persons on annual leave.

Further Considerations

We appreciate that there is a requirement for all on duty firefighters to provide information about their vaccination status and get vaccinated.

We believe that it is unfair and unreasonable to threaten disciplinary action, including termination of employment, of employees who are taking approved leave, and are in the process of arranging vaccinations to be compliant with the CHO directive when they return from leave.

Where individuals may have been delayed in arranging these matters while they are on leave, some flexibility ought to be provided for their unique circumstances.

It does appear as if your suggestions about hypothetical recalls from approved leave are misconceived and unhelpful to the circumstances.

I request that you adjust your practices to accommodate a more reasonable time frame

for those employees who are on approved leave.

Finally, I note that there is a photograph of a white board circulating on social media which shows a list of names of some of your employees, who appear to be subject of correspondence from you about their vaccination status. I trust you will take whatever steps necessary to address that situation.

If you require further information, please do not hesitate to contact Mr Thomas Malone

(Industrial Officer) on [redacted].

Yours sincerely

Erina Early

Secretary – Northern Territory

United Workers Union”

[16] The Applicant provided his further response to CFO Spain on 3 December 2021 as follows:

“Dear Mark Spain

I provide the following written information in good faith as requested prior and request that the information in this correspondence be treated with dignity and confidentiality as required pursuant to the Commonwealth Privacy Act (Cth).

Matters for consideration.

1. I have had pre approved annual leave pursuant to section 87 and 88 of the Fair Work Act (Cth) confirming that I am on legitimate annual leave up until 20 December 2021 in compliance with the Fair Work Act (Cth).

2. As such I request that the Department continue to pay me my annual leave pursuant to sections 87 and 88 of the Fair Work Act (Cth) to …….. December 2021.

3. I contend that as my employer you can not now just unilaterally cancel my per-approved (sic) annual leave and to do so is unlawful and in contravention of the Fair Work Act (Cth).

4. I contend that section 88 of the Fair Work Act (Cth) in relation to annual leave requests confirms that an employer must not be unreasonable by not agreeing to an employee' s application of annual leave of absence.

5. The Explanatory Memorandum to the Fair Work Bill2009 and in particular paragraph 382, in assessing what is a reasonable decision by an employer that the following would all be relevant considerations:

. the needs of both the employee and the employer's business,

. any agreed arrangement with the employee,

. the custom and practice in the business,

. the timing of the requirement or direction to take leave,

. the reasonableness of the period of notice given to take the leave.

The case law that supports my understanding of section 88 of the Fair Work Act (Cth) includes;

. [1998] NSW IRC 628 Glenda Louise Robbie v Dun & Bradstreet (Australia) Pty Ltd (25 November 1998).

. [1999] NSW IRC 316 Full Bench NSW Industrial Relations Commission Dun & Bradstreet (Australia) Pty Ltd v Glenda Louise Robbie (20 July 1999).

These case authorities decisions deemed unfair for an employer to arbitrarily consider a request for leave solely by reference to the employer's business needs and without taking into account on a reasonable basis the circumstances of the employee. These decisions also determined that an employee must be granted leave unless the employer can justify the refusal of leave on reasonable grounds.

6. As I am now not working physically in the workplace and nor dealing with clients stakeholders and or other employees and nor vulnerable persons in the workplace, I am not contravening and I am comply with COVID19 Directions (Number 55) 2021 issued by the Northern Territory Government Chief Health Officer.

7. In addition, I am also not contravening section 351 2 (b) of the Fair Work Act (Cth) dealing with inherent requirements.

8. What constitutes an inherent requirement are explained in the High Court of Australia decision [1998] HCA 18 Qantas Airways Limited v Christie (19 March 1998).

9. I request that my pre approved annual leave continue to be applied and approved as per the obligations of the Fair Work Act (Cth) that the NTFRS has to me in relation to my preapproved annual leave I have which is in effect a contract and you can not unlawfully break this contract.

10. My contract is in place as stated by a Full Bench of the Australian Industrial Relations Commission in the decision [1999] AIRCFB Advanced Australian Workplace Solutions Pty Ltd (25 October 1999) at [49].

[49] in the Full Bench of the Australian Industrial Relations Commission in the decision [1999] AIRCFB Advanced Australian Workplace Solutions Pty Ltd (25 October 1999) states -

"[49] The elements of a contract are stated in Macken, McCarry and Sappideen’ “The Law of Employment” (4^th Edition, 1997 by the Hon James Macken, Paul O’Grady and Carolyn Sappideen) (Macken, McCarry, and Sappideen) a text to which reference was made both before Commissioner Simmonds and us, as follows (page 74):

“The law holds that before any simple contract is enforceable it must be formed so as to contain various elements. These are:

1. There must be an "intention" between the parties to create a legal relationship the terms of which are enforceable.

2. There must be an offer by one party and its acceptance by the other.

3. The contract must be supported by valuable consideration.

4. The parties must be legally capable of making a contract.

5. The parties must genuinely consent to the terms of the contract.

6. The contract must not be entered into for any purpose which is illegal.”

Yours sincerely

Manny Koulakis”

[17] The Respondent dismissed the Applicant by formal letter dated 7 December 2021:

“Dear Mr Koulakis

RE: Termination of Employment - Inability to Perform Your Duties

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

My letter also foreshadowed my intention to terminate your employment in the NT Public Sector, under section 46(1)(c) of the Act, and invited you to make submissions as to why I should not take that action.

I have carefully considered all the evidence available to me, including your response received 3 December 2021 and your submissions that "I [you] am on legitimate annual leave up until 20 December 2021" and "that as my [your] employer you in can not (sic) now just unilaterally cancel my per-approved (sic) annual leave and to do so is unlawful and in contravention of the Fair Work Act (Cth)."

You further stated 'As I am now not working physically in the workplace and nor dealing with clients. (sic) stakeholders and or other employees and nor vulnerable persons in the workplace, I am not contravening and I am comply with COVID19 Directions (Number 55) 2021 issued by the Northern Territory Government Chief Health Officer. "

As I outlined in my letters dated 23 November 2021 and I1December 2021, NTFRS members may be recalled to duty and therefore I require all employees, irrespective of their current leave arrangements, to be compliant with the CHO Direction No. 55 in order to perform the duties assigned to you.

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

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

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

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

Remedial Action

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

Notice of Termination

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

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

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

[redacted].

If you would prefer, you may wish to make make (sic) an unfair dismissal application to the Fair Work Commission. More information is available at: https://www.fwc.gov.au/content/rules-form/unfair-dismissal-applicatoin or by telephone to 1300 799 675. Applications to the Fair Work Commission must be on the prescribed form, available on the website, and lodged within 21 days.

Available Support

I remind You that Employee Assistance Programs are available if you require support.

…

Yours sincerely

Mr Mark Spain AFSM

Chief Fire Officer

7 December 2021”

[18] The matter was listed for Hearing at Darwin on 18 July 2022.

[19] The Applicant appeared and gave evidence on his own behalf at the Hearing. The Respondent was represented by Mr Mark Hathaway, Employee Relations Manager, Office of the Commissioner for Public Employment, Northern Territory Government.

[20] Subject to an Order to Attend issued at the Applicant’s request, Mr Eric Koomen, Watch Commander NTFRS, was cross-examined at the Hearing. Mr Mark Spain, Chief Fire Officer, gave evidence on behalf of the Respondent.

Statutory Provisions

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

“396 Initial matters to be considered before merits  

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:  

(a) whether the application was made within the period required in subsection 394(2);  

(b) whether the person was protected from unfair dismissal;  

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;  

(d) whether the dismissal was a case of genuine redundancy.  

 381 Object of this Part  

(1) The object of this Part is:  

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

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

(ii) the needs of employees; and  

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

(i) are quick, flexible and informal; and  

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

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

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

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

382 When a person is protected from unfair dismissal  

A person is protected from unfair dismissal at a time if, at that time:  

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and  

(b) one or more of the following apply:  

(i) a modern award covers the person;  

(ii) an enterprise agreement applies to the person in relation to the employment;  

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold. 

384 Period of employment  

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

(2) However:  

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

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

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

(b) if:  

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

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

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

385 What is an unfair dismissal  

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

(a) the person has been dismissed; and  

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

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

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

see section 388.  

387 Criteria for considering harshness etc.  

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

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

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

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

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

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

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

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

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

[22] The relevant sections of the Public Sector Employment and Management Act 1993 (NT) (PSEM Act) as cited by the Respondent is as follows:

“44 Inability or unsatisfactory performance

(1) There are inability or performance grounds for an employee if the employee:

(a) is not able to perform the duties he or she is assigned to perform (whether because of physical or mental illness or disability or any other reason); or

(b) is not suited to perform, or capable of efficiently performing, those duties; or

(c) is not licensed, registered or otherwise qualified for the efficient and satisfactory performance of those duties; or

(d) is not performing those duties efficiently or satisfactorily.

(2) If the Chief Executive Officer of an Agency is satisfied, on reasonable grounds, that there are inability or performance grounds for an employee in the Agency, the Chief Executive Officer may take action in relation to the employee under section 46(1).

(3) In determining whether there are inability or performance grounds for an employee, the Chief Executive Officer must have regard to:

(a) the performance and conduct principle; and

(b) the employee's performance record under the Agency's employee performance management and development system as mentioned in section 24(3)(f); and

(c) any other matter the Chief Executive Officer considers relevant.

(4) For determining whether there are reasonable grounds as mentioned in subsection (2), the Chief Executive Officer may, subject to the Employment Instructions, do one or more of the following:

(a) obtain relevant information from persons as, and in the way, the Chief Executive Officer considers appropriate;

(b) consult with persons as the Chief Executive Officer considers appropriate;

(c) make inquiries as the Chief Executive Officer considers appropriate;

(d) if applicable, obtain a report from a health practitioner under section 45.

(5) The Chief Executive Officer must not take remedial action in relation to an employee unless satisfied:

(a) the action is appropriate and reasonable in the circumstances; and

(b) the employee:

(i) has been given written notice of the proposed action and the grounds for taking it; and

(ii) has been given a reasonable opportunity to show why the action should not be taken.

(6) As soon as practicable after making a decision under subsection (2), the Chief Executive Officer must give written notice of the decision to the employee.

(7) If the decision is to take remedial action, the notice must:

(a) give the reasons for the decision; and

(b) inform the employee of the employee's right to request a review under section 59 or to appeal under section 59A (as appropriate).

(8) A decision to take remedial action takes effect on the day the notice is given to the employee or a later day specified in the notice.”

“46 Remedial action

(1) If permitted under section 44 to take action in relation to an employee, the Chief Executive Officer may:

(a) take no further action; or

(b) do one or more of the following:

(i) order the employee to undertake training, counselling or other remedial activities the Chief Executive Officer considers appropriate in the circumstances;

(ii) reduce the employee's salary within the range applicable for the employee's designation;

(iii) under section 35:

(A) transfer the employee to perform other duties in the Agency; or

(B) transfer, or request the Commissioner to transfer, the employee to perform duties in another Agency; or

(c) terminate the employee's employment.

(2) The employee must comply with an order made under subsection (1)(b)(i) within the period specified in the order.

(3) The merit principle and section 36(3) do not apply in relation to a transfer under subsection (1)(b)(iii).”

[23] The relevant section of the Fire and Emergency Act 1996 (NT) as cited by the Respondent is as follows:

“9 Powers and functions of Chief Fire Officer

(1) Subject to the directions of the Director, the Chief Fire Officer has operational responsibility for the Fire and Rescue Service.

(2) The Chief Fire Officer has power to do all things that are necessary or convenient to be done for or in connection with or incidental to the performance of his or her functions and the exercise of his or her powers.”

Applicant’s Submissions

Dismissal while on a period of annual leave

[24] The Applicant submitted that the Respondent has failed to have regard to Part 2.12 of CHO Direction No. 55 in effecting his dismissal, which provides:

“Nothing in these Directions prevents a person conducting a business or undertaking from making reasonable adjustments to accommodate a worker who is not vaccinated”.

[25] The Applicant submitted that he was on a period of pre-approved annual and long service leave at the time of his dismissal, in compliance with clauses 41 and 48 of the Agreement. The Applicant submitted that his pre-approved leave formed part of his contract of employment. The Applicant relied here on the decision of a Full Bench of the Australian Industrial Relations Commission in Advanced Australian Workplace Solutions Pty Ltd at paragraph [49], 1 where the Full Bench set out the elements of an enforceable contract.

[26] The Applicant submitted that clauses 41.6 and 41.7 of the Agreement relevantly provide:

“41.6 Granting of Leave

The Director or their delegate may, on application in writing by an employee, grant leave for recreation purposes, subject to the NTFRS operational requirements.

41.7 Excess Leave

Where an employee has recreation leave in excess of two years credits (or three years credits in the case of a compulsory transferee), the CEO may, on giving a minimum of two months’ notice, direct the employee to take recreation leave and the employee must take that leave within a three month period, or a period agreed between the parties, to reduce the accrued leave to the equivalent of two years (or three years in the case of a compulsory transferee) of credit.”

[27] Further, clause 48.2 of the Agreement provides:

“48.2 With the exception of the provision of 48.1 all other conditions relating to long service leave are contained in By-law 8. Provided that, a current employee will not be disadvantaged by the operation of this clause.”

[28] As to the Respondent’s power to cancel employees’ leave, the Applicant relied on the correspondence of the UWU as extracted at paragraph [15] of this decision.

[29] The Applicant submitted that the Respondent’s unilateral and arbitrary decision to cancel his pre-approved leave, for no valid operational reasons, was in contravention of the “No Extra Claims” provisions in clause 8 of the Agreement. For completeness, the Applicant provided clause 8 in full as follows:

“8 No Extra Claims

8.1 This Agreement constitutes a final settlement of the parties’ claims and together with the PSEM Act, is intended to set out, or set out processes for determining, all the terms and conditions of employment of the employees who will be subject to this Agreement, until its expiry.

8.2 The parties agree that they will not make any extra claims in relation to employee terms and conditions of employment in operation for the period of this Agreement, other than specifically provided for in this Agreement.”

[30] The Applicant relied here on the decision in Australian Municipal, Administrative, Clerical and Services v North East Water, 2 in which Commissioner Wilson determined that North East Water made a ‘further extra claim’ that contravened its enterprise agreement when it removed a policy providing for employees’ personal use of its cars.

[31] The Applicant also relied here on the principles for interpretation of enterprise agreements as outlined in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (Berri). 3

[32] Further, the Applicant relied on the doctrine of ‘contra proferentem’ as explained in the decision Ms Kirsty Fraser v Act for Kids: 4

“[51] I questioned Mr Pollard on the ambiguity within the contract, having regard to the doctrine of contra proferentem. Where an ambiguity exists, an agreement will normally be interpreted contra proferentem, that is, against the party who formulated the document.”

[33] The Applicant noted that after he received correspondence from CFO Spain on 24 November 2021, foreshadowing an intention to terminate his employment despite the fact that he was on approved leave for the period 16 October 2021 to 23 January 2023, he responded to CFO Spain on 29 November 2021 as extracted at paragraph [13] of this decision. The Applicant relied on his response to the CFO.

[34] The Applicant submitted that in his dismissal letter of 7 December 2021, the Respondent made concessions by way of the following:

“I have carefully considered all the evidence available to me, including your response received 3 December 2021 and your submissions that "I [you] am on legitimate annual leave up until 20 December 2021" and "that as my [your] employer you [I] cannot (sic) now just unilaterally cancel my per-approved (sic) annual leave and to do so is unlawful and in contravention of the Fair Work Act (Cth)."

You further stated "As I am now not working physically in the workplace and nor dealing with clients, (sic) stakeholders and or other employees and nor vulnerable persons in the workplace, I am not contravening and I am complying with COVID19 Directions (Number 55) 2021 issued by the Northern Territory Government Chief Health Officer.”

[35] The Applicant relied here on the Respondent’s documents “General Order - Operational Overtime Procedure Feb 2022”, “General Order - Overtime Procedure 7 January 2015”, and “NT Commissioner for Public Employment's Guidance for Managers - Covid 19 matters and templates to use in letters and templates & scripts & processes dated - 4 November 2021”. The Applicant submitted that in these documents:

“•  there is no mention of recalling people on leave.

•  no mention of calling firefighters back to work whilst on leave.

•  there are also guidelines (old documents) as to what happens when vacancies cannot be filled such as shutting down stations and appliances (trucks).”

Sections 87 and 88 of the FW Act

[36] The Applicant submitted that in unilaterally cancelling his pre-approved leave, the Respondent contravened sections 87 and 88 of the FW Act. The Applicant submitted that s.88 confirms that an employer must not be unreasonable by unilaterally cancelling preapproved leave. The Applicant submitted that the Explanatory Memorandum to the Fair Work Bill (Cth) 2009 at paragraph 382 provides that in assessing what is a reasonable decision by an employer, the following matters are relevant:

•  the needs of both the employee and the employer’s business,

•  any agreed arrangement with the employee,

•  the custom and practice in the business,

•  the timing of the requirement or direction to take leave,

•  the reasonableness of the period of notice given to take the leave.

[37] The Applicant relied on NSW Industrial Relations Commission decisions in Glenda Louise Robbie v Dun & Bradstreet (Australia) Pty Ltd 5 and Dun & Bradstreet (Australia) Pty Ltd v Glenda Louise Robbie6 as providing that it is unfair for an employer to arbitrarily consider a request for leave solely by reference to the employer’s business needs and without taking into account, on a reasonable basis, the circumstances of the employee.

[38] The Applicant also relied on the Commission decision in Adriana Stevens v Horsley Park Supermarket Pty Ltd trading as Carlo's IGA Horsley Park 7 in which Commissioner Cambridge stated:

“[47] It is clear from s. 88 (2) of the Fair Work Act (Cth) that an employer must not unreasonably refuse to agree to a request by an employee to take paid annual leave. Whether there has been an unreasonable refusal to agree to a request to take paid annual leave is a matter that involves careful assessment of all of the particular circumstances of each case. Matters such as the nature and size of the employer’s business operation, and the period of notice provided for any requested leave, are matters of significance in any assessment of whether a refusal to agree to leave was unreasonable.

…

[58] In summary, when the various aspects of all of the circumstances surrounding the employer’s refusal to agree to the applicant’s April leave request are carefully examined and balanced, that refusal must be held to have been unreasonable. In simple terms, it was unreasonable for the employer to have delayed proper and clear determination of the applicant’s annual leave request such that a financial impost of some $4,000 would be suffered by the applicant in order to comply with the employer’s tardy directive. The applicant had made the request for annual leave with sufficient notice to enable the employer to make arrangements to cover the absence of the applicant. Further, the employer was obliged to provide and communicate unequivocal refusal in a timely manner.

…

[73] The procedure that the employer adopted when it dealt with the applicant’s request to take annual leave represented an unfortunate example of serious mismanagement.

…

[89] Consequently, for the reasons outlined above I have decided that an amount approximating with 16 week’s remuneration should be provided as compensation to the employee applicant.”

[39] The Applicant submitted that in cancelling his pre-approved leave, the Respondent contravened s.88 of the FW Act, and contravened his workplace rights pursuant to s.340 of the FW Act.

One size fits all approach and procedural fairness

[40] The Applicant submitted that the Respondent has adopted a one size fits all approach when dealing with his employment, relying on “template processes”.

[41] The Applicant submitted that the Respondent has not complied with number 13 in the 1 ‘November 2021 FAQ – NTPS Employment advice’ document which states:

“Alternative arrangements should be considered as an interim measure only, with the overall aim of mitigating the risk of COVID-19 transmission. This could include, for example, working from home where operationally feasible, or accessing recreation leave with approval.

Employees can apply for leave as part of normal leave request arrangements which will be considered in the context of an agency’s operational requirements.”

[42] The Applicant submitted that as he was on pre-approved leave and therefore not physically at work, he was not in the workplace dealing with stakeholders, other employees or vulnerable persons, and therefore was not contravening s.351(2)(b) of the FW Act dealing with inherent requirements. The Applicant cited Direction 4 of CHO Direction No. 55, which provides that the mandatory vaccination policy applies to the specified categories of employees (as outlined at paragraph [5] of this decision). The Applicant submitted that these Directions only apply “during work”, “in the course of work”, in a “workplace” or in “performing work” respectively. The Applicant submitted that none of the relevant categories of employees apply to persons who are on pre-approved annual and long service leave, and who had their leave approved well before 13 October 2021 when CHO Direction No. 55 was issued.

[43] The Applicant submitted that the Respondent fast-tracked the decision to dismiss him and failed to engage in a fair and reasonable process involving discussions with him or his representative. The Applicant cited here the Respondent’s ‘Employment Instruction Number 3 – Natural Justice’, which states:

“2 b) the person must be given a reasonable opportunity to respond to the information

including providing any evidence he or she wishes to include in the response;

2 c) the decision maker must impartially consider the employee’s submissions, prior

to making a decision;”

[44] The Applicant submitted that the Northern Territory Commissioner for Public Employment’s Guideline on Natural Justice relevantly provides:

“The exact requirements of a fair hearing will vary depending on the circumstances, including the seriousness of the foreshadowed action and the extent to which the person will be adversely affected by the decision. In general, the more serious the consequences of a decision for an employee the more rigorously the principle of natural justice should be applied.”

[45] The Applicant relied on the decision in Eleanora Jalea v Sunstate Airlines (Queensland) Pty Ltd T/A Qantas Link, 8 upheld on appeal, in which Commissioner Bissett stated that the following principles must always be applied:

• employers must not apply two sets of rules, and or

• have substantially different tolerances in the workplace.”

[46] The Applicant also relied on a decision of Commissioner Bissett in Doug Drowley v RTL Mining and Earthworks Pty Ltd, 9 in which the industrial relations principles of differential treatment were explained as follows:

“[138] The most pressing issue in this exercise is the differential treatment shown to the Applicant compared to that of the other employee Mr Kilpin. The disregard for safety standards is evident in the action of each person. The existence of a verbal warning to Mr Kilpin is not, in my opinion, enough to justify the difference in outcome where the Applicant is dismissed.

[139] I am therefore satisfied that the dismissal of the Applicant was unreasonable.

[140] I therefore find that the Applicant was unfairly dismissed.”

[47] The Applicant submitted that as he was on leave, he was not in breach of CHO Direction No. 55, or ss.341 (dealing with workplace rights) or 351(2)(b) (dealing with inherent requirements) of the FW Act. Therefore, the Applicant submitted that he has not engaged in serious misconduct as defined in s.12 of the FW Act and Regulation 1.07 of the Fair Work Regulations. The Applicant submitted that he had a workplace right pursuant to ss. 340 and 341 of the FW Act to be able to continue to assert his right to take his approved leave. The Applicant submitted that CHO Direction No. 55 did not override the clauses of the Agreement dealing with approval of leave or his rights under the FW Act.

[48] The Applicant submitted that in dismissing him while on a period of pre-approved leave and while he was not physically at work, the Respondent has erroneously adopted a one size fits all approach when dealing with his employment matters. The Applicant maintained that CHO Direction No. 55 only applied to workers ‘during work,’ ‘in the course of work,’ in a ‘workplace’ or in ‘performing work’ respectively, none of which applied to him at the time of his dismissal as he was on pre-approved leave. The Applicant submitted that in adopting a one-size fits all approach, the Respondent contravened its procedural fairness obligations to him. As the Respondent failed to afford him the opportunity to meet and discuss his dismissal, the Applicant relied here on the decision in Karen Jones v Northern Territory Commissioner for Public Employment, 10 in which it was stated:

“[64] The evidence is that the applicant did not have the opportunity of meetings or face-to-face discussions over the period from 19 October 2011 to 13 January 2012. Without such meetings she did not have the opportunity for representation or support persons to assist with discussions with the respondent. Prior to that period the applicant had only two meetings with team leaders or a manager from the commencement of her employment on 14 June 2011. Given the list of grievances that the applicant provided to the respondent and the characterisation of the environment in which she was fulfilling the respondent’s work requirements which ultimately is illustrated prior to dismissal when the applicant informed the respondent she feared for her own safety. The tribunal has formed a view the respondent’s actions referred to above as a “disciplinary process by correspondence” have been too extended and carried out in such a manner that they resulted in unnecessary effects upon the applicant.

[65] The respondent’s evidence on Natural Justice has a guideline which indicates:

“The exact requirements of a fair hearing will vary depending on the circumstances, including the seriousness of the foreshadowed action and the extent to which the person will be adversely affected by the decision. In general, the more serious the consequences of a decision for an employee the more rigorously the principle of natural justice should be applied.”

[66] In the tribunal’s view the above scenario does not meet the test of a reasonable consideration of procedural fairness inherent in the provisions of s.387(c) and (d) of the Fair Work Act (Cth).

…

[68] In these circumstances the tribunal does not accept that the applicant has had a viable opportunity to respond to the employer in these circumstances or that she had the opportunity for a support person in discussions. The respondent has applied a less than a procedurally fair approach to a significant disciplinary process.”

[49] The Applicant submitted that the Commission has jurisdiction pursuant to s.387(h) of the FW Act to consider whether the Respondent has conducted a procedurally fair process in effecting his dismissal. The Applicant noted that s.5F(1) of the PSEM Act is relevant in this regard, which provides:

“5F(1) a public sector officer must do the following:

(a) carry out the officer’s duties as follows

(i) objectively, impartially, professionally and with integrity…”

[50] The Applicant submitted that as part of the considerations relevant to s.387(h) of the FW Act, the Commission should have regard to the Respondent’s unilateral cancelling of his pre-approved annual and long service leave which was approved to run up until 23 January 2023 and which formed part of his contract of employment as submitted above.

[51] The Applicant also submitted that the Commission should have regard to his period of service, which began in mid-1995.

Size of the Respondent’s business

[52] The Applicant submitted that the Respondent is not a small business, with over 20,000 employees in the Northern Territory Public Service.

Remedy

[53] The Applicant seeks reinstatement to the same substantive employment position and at no less remuneration than he held prior to his dismissal. The Applicant seeks an order for the period from the date of his dismissal until his return from leave on 23 January 2023 to be deemed a period of continuous employment.

[54] The Applicant seeks that he be allowed to remain on his pre-approved period of leave until 23 January 2023, and that he be compensated for the additional leave entitlements he would have accrued for the period from 7 December 2021 to 23 January 2023 including superannuation entitlements for that period.

[55] The Applicant submitted that as he has not engaged in any form of misconduct, the Commission has the power to reinstate his employment on these terms. 11

[56] It is noted that in reply submissions, the Applicant submitted:

“I couldn’t care less about reinstatement or compensation… that wasn’t my motivation”.

[57] However, I asked the Applicant to review his submissions and in a further reply email the Applicant clarified as follows:

“With regard to remedy, I am relying on what’s in my submission. The specific point that the respondent is making in their final submission is that all my leave has been paid out. It would be my understanding that, for reinstatement, this amount would be paid back by me and in turn my leave would be recredited. My leave is important to me. The rest is as per my submission.”

Respondent’s Submissions

[58] The Respondent submitted that the Applicant’s dismissal was not harsh, unjust or

unreasonable for the following reasons.

Valid reason

[59] The Respondent relied on CFO Spain’s evidence as demonstrating that there was a valid reason for the dismissal relating to the Applicant’s capacity to perform the inherent requirements of his job. The Respondent submitted that CHO Direction No. 55 was in place, such that a worker who fell within one of the four categories was precluded from attending work and their employer was precluded from allowing them to do so if the employee had not received an approved COVID-19 vaccine within specified times. The Respondent submitted that an offence would be committed if the CHO Directions were breached.

[60] The Respondent submitted that the CEO/Commissioner of Police had determined that all jobs within the PFES fell within one of the categories of workers who were required to be vaccinated. The Respondent submitted that at the relevant time, being 13 November 2021, the Applicant had not received a first dose of an approved COVID-19 vaccine. The Respondent submitted that in these circumstances, the Applicant was unable to perform the inherent requirements of this job and, therefore, s.44 of the PSEM Act, Inability and performance provisions, applied.

[61] The Respondent submitted that the Applicant was a Station Officer and CFO Spain was unable to find suitable alternative duties that were not subject to the CHO Direction, given all jobs within the PFES were considered to fall within one or more of the categories specified by the CHO as requiring workers to be vaccinated. The Respondent submitted that if the Applicant had been allowed to attend the workplace, the CEO would have committed an offence under the CHO Directions leaving himself or the PFES open to prosecution and a maximum fine of $25,120.

[62] The Respondent submitted that the actions available to CFO Spain under s.46(1) of the PSEM Act included taking no further action, ordering training or counselling or other remedial activities, reducing pay, transfer or termination. However, in circumstances where the Applicant was not vaccinated, not intending to be vaccinated and could not be placed in alternate duties where the CHO Direction did not apply, the Respondent submitted that CFO Spain had no alternative but to terminate the Applicant’s employment.

[63] The Respondent submitted that, as at the time of filing its submissions, the Applicant still had not indicated whether he was vaccinated.

Notification of the reason for dismissal and opportunity to respond

[64] The Respondent submitted that the Applicant was notified of the reason for considering his dismissal and was provided opportunities to respond. The Respondent submitted that following the CHO Directions being issued on 13 October 2021, at least eight notices were sent to all employees in the PFES between 13 October 2021 and 12 November 2021 advising of the CHO Directions, its requirements and its impact on employment. The Respondent submitted that following these general advices, the Applicant received specific and detailed advice on two

Occasions, being 23 November and 1 December, before his termination on 7 December 2021.

[65] The Respondent submitted that the Applicant was invited to make submissions on each of those two occasions, and the Applicant made submissions on 29 November and 3 December 2021. The Respondent submitted that CFO Spain considered each of these responses before a decision was made regarding the Applicant’s employment.

Any refusal of a support person

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

Unsatisfactory performance

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

Size of the Respondent’s business

[68] The Respondent submitted that the Northern Territory Public Sector has approximately 20,000 employees. The Respondent submitted that its size and capacity preclude consideration of sections 387(f) and 387(g) of the FW Act in this instance.

Addressing the Applicant’s contentions

[69] As to the Applicant’s reliance on provisions of the Agreement, the Respondent agreed that the Applicant had correctly identified the relevant Agreement. However, the Respondent submitted that an inference that can be drawn from the Applicant’s submissions in relation to the Agreement is that it displaces all other statutes that have implications for his employment such as the PSEM Act and the Fire and Emergency Act 1996 (NT). The Respondent submitted that clause 6.2 of the Agreement states that it is to be read in conjunction with the PSEM Act, and therefore does not displace it. The Respondent submitted, therefore, the employee performance and inability provisions of Part 7 of the PSEM Act applied to the Applicant’s employment at the time of his dismissal. It submitted that whether the CFO correctly applied these provisions goes to the question of whether there was a valid reason for the Applicant’s dismissal.

[70] The Respondent submitted that the references to clause 32.4 of the Agreement, as contained in the UWU’s letter of 2 December 2021 and relied on by the Applicant, are misconceived. The Respondent submitted that these relate to recalling employees who are off duty back to duty so that they can be deployed to fight a fire. It submitted that these scenarios are more likely than the critical risk posed by the public health emergency associated with COVID-19. The Respondent submitted that the Agreement does not contemplate the public health emergency and its potential to “cut a swathe” through the Northern Territory Fire and Rescue Service, which could compromise the CFO’s ability to provide an appropriate level of fire services to the public.

[71] The Respondent submitted that the Applicant makes a number of submissions based on correspondence from the UWU. However, the Respondent submitted that as a Firefighter with the rank of Station Officer, the Fire and Emergency Act applied to the Applicant in conjunction with the PSEM Act. As to the Fire and Emergency Act, the Respondent submitted that it provides the Director and the CFO with broad powers in relation to the management of the Fire and Rescue Service. The Respondent did not accept the arguments advanced in the UWU correspondence that those powers preclude the CFO from recalling firefighters to duty, especially in an emergency such as the COVID-19 related public health emergency. The Respondent submitted that the CFO needed to be able to navigate a range of factors both actual and potential during that public health emergency, and one of the risks would be a sudden depletion of the Fire and Rescue Service as a consequence of the transmission of COVID-19 in the workforce. The Respondent submitted that the CFO would use a cascading sequence of recalls to duty, based on the circumstances at the time, which may or may not mean that he would need to recall firefighters from leave.

[72] The Respondent submitted that the UWU correspondence is misconceived. The Respondent noted that it refers to disciplinary action under Part 8 of the PSEM Act. However, the Respondent submitted that the CFO terminated the Applicant’s employment under Part 7 of the PSEM Act, which deals with employee performance and inability. The Respondent submitted that the ‘discipline’ provisions deal with misconduct and the CFO did not dismiss the Applicant because of misconduct. The Applicant was dismissed because without proof of his vaccination status he could not be permitted to enter the workforce, which in turn meant that the Applicant could not perform his duties.

[73] The Respondent submitted that it is not the role of the Commission to interpret the Fire and Emergency Act. It maintained that the Fire and Emergency Act provides the CFO with the power to recall firefighters from leave, and while not exercised to recall the Applicant, it may have been required if the public health emergency worsened.

[74] The Respondent noted that the Applicant has sought to rely on a number of authorities, which it briefly addressed as follows.

Berri

[75] The Respondent submitted that while the Applicant has referenced the correct authority for interpretation of enterprise agreements, the matter before the Commission is whether the Applicant was unfairly dismissed. It is not a matter about the correct application of a provision in the Agreement.

Authorities relating to ‘making an extra claim’

[76] The Respondent submitted that to suggest that the CFO in his efforts to implement the CHO Directions was in fact making an extra claim against the Agreement defies logic, especially since the actions he took were under the PSEM Act.

The doctrine of contra proferentum

[77] The Respondent submitted that the Applicant makes various references to the principles associated with the common law of contracts, including the contract of employment. The Respondent submitted that the Applicant’s reference to the doctrine of contra proferentum fits into this category and goes to the rule that would apply to an ambiguous clause and the presumption that the interpretation of said clause should go against the party putting it forward (the proffering party) because usually the party that would stand to benefit from a particular interpretation of that clause is the party that puts it forward. The Respondent submitted that in the present matter, the Commission is not attempting to navigate a contract of employment or an enterprise agreement. Rather, the Commission is dealing with a dismissal. The Respondent noted that it is the Commission’s task to determine whether that dismissal is either fair or unfair in accordance with the FW Act. The Respondent submitted that in its arguments that the dismissal was fair, it is relying on the application of Part 7 of the PSEM Act and that those actions were enlivened as part of the CFO’s obligation to implement the CHO Directions.

Karen Jones v Commissioner for Public Employment

[78] The Respondent submitted that this single member decision has not been replicated in subsequent decisions of the Commission. The Respondent submitted that subsequent decisions have emphasised the process and the steps, rather than whether there had been face to face discussions between the employer and the applicant prior to the dismissal. The Respondent submitted that it should not be relied on in the present case.

References to General Orders and Overtime Procedures

[79] The Respondent submitted that the Applicant’s reference to General Orders and Overtime Procedures are not relevant. The Respondent submitted that they fail to ‘shed any light’ on the critical questions before the Commission in the current matter.

References to media comments by the then Chief Minister of the Northern Territory

[80] The Respondent submitted that the media coverage sought to be relied on by the Applicant has no bearing on the decision being examined in this application. Further, the Respondent submitted that the Applicant is making a ‘logical fallacy’ in this regard.

Miscellaneous references to sections of the FW Act

[81] As to the Applicant’s reliance on sections of the FW Act dealing with leave entitlements and general protections, the Respondent submitted that these are not relevant as the question before the Commission is whether the CFO’s decision to dismiss the Applicant was fair in the circumstances.

[82] The Respondent submitted that on the evidence before the Commission, the Applicant’s dismissal was fair and was not harsh, unjust or unreasonable.

Remedy

[83] Further to the hearing in this matter, the Respondent was directed to file submissions as to remedy. The Respondent submitted as follows.

[84] As to any compensation for entitlements, the Respondent provided figures of the monies paid to the Applicant on termination for recreation leave, long service leave and ‘termination payment’. The Respondent submitted that if reinstatement is granted, any order for compensation would need to take these amounts into consideration.

[85] However, the Respondent submitted that reinstatement would be an inappropriate remedy in this case as the Applicant’s conduct has eroded the Respondent’s trust and confidence in him. The Respondent noted that at the Hearing, the Applicant revealed that he had met the vaccinations requirements on 29 November 2021. The Respondent submitted that the Applicant at no time revealed this information during the inability process or otherwise engaged in open an accurate communication with CFO Spain. The Respondent submitted that notwithstanding the fact that the Applicant was on leave, the Applicant’s conduct is such that the CFO cannot be confident that the Applicant would comply with similar directions in future.

[86] The Respondent submitted that the Applicant has failed to comply with ‘Employment Instruction 12’ which required the Applicant to have regard to all official guidelines concerning the performance of his duties and avoid waste and excessive use of public resources. The Respondent submitted that the Applicant has wasted tax payer resources, including the CFO’s time during the inability process, and the CFO and senior HR staff’s time in preparing for and participating in the unfair dismissal proceedings. The Respondent submitted that the Applicant’s conduct of these dismissal proceedings demonstrates a deliberate attempt to obfuscate and keep the CEO and CFO in the dark throughout the inability process.

[87] For all of these reasons, the Respondent submitted that the Applicant should not be reinstated and should not be granted any order for compensation. However, in the event of any award of compensation the Respondent submitted that it should be significantly discounted in accordance with s.392 and having regard to the Applicant’s behaviour.

Applicant’s Reply Submissions

[88] The Applicant continued to rely on his original submissions.

[89] Further, the Applicant highlighted that as of 11.59pm on 15 June 2022, being vaccinated is no longer an inherent requirement for employment in the Northern Territory. The Applicant sought to rely on an email dated 15 June 2022 from the Commissioner of Public Employment to all Northern Territory Government employees as follows:

“Cessation of mandatory vaccination requirements

As you are aware, the Chief Minister has announced that the Northern Territory’s Public Health Emergency Declaration will cease at 11.59pm tonight (Wednesday 15 June 2022).

CHO Directions requiring mandatory vaccination or evidence of a contraindication, associated rules and evidentiary requirements for workers to enter workplaces will cease to have effect from 11.59pm tonight.

From tomorrow, Thursday 16 June 2022, it will not be necessary to check the vaccine status of employees and the requirements currently on job descriptions and job ads regarding COVID-19 mandatory vaccination requirements will be removed. Selection panels will no longer need to check the vaccine status of applicants as unvaccinated people can be appointed to roles on and from 16 June 2022.

Even though from tomorrow it will no longer be a requirement to be vaccinated in order to enter our workplaces, being fully vaccinated provides protection for you, your families and our community.

The vaccination status currently in myHR will be kept as part of the employees’ records to ensure any decisions taken or not taken in relation to an employee pertaining to COVID-19 vaccine requirements have an evidentiary basis. You can continue to update your own myHR vaccination record but there will be no requirement to do so.”

[90] The Applicant also sought to rely on my recent decision in Gikas v Commissioner for Public Employment (Gikas), 12 in which I gave consideration to the fact that the Applicant was on a period of leave at the time of her dismissal and in which I awarded reinstatement to the Applicant.

[91] The Applicant submitted that in light of the changed circumstances regarding the vaccination mandate, there remained no sound or valid reasons why the Commission should not grant him reinstatement to his position with the Respondent. The Applicant submitted that it is not in dispute that there were no performance issues which led to his dismissal, and from 16 June 2022 there were no ‘inherent requirement’ concerns impeding his reinstatement to his role with the Respondent. The Applicant submitted that his vaccination status is now irrelevant.

[92] The Applicant submitted that the Respondent has misunderstood the doctrines as applied in the case authorities regarding ‘no extra claims’. The Applicant submitted that his contentions were not ‘illogical’ as claimed by the Respondent.

[93] Further, the Applicant submitted that the Respondent has made an erroneous and flawed claim that the CFO made his decision to dismiss the Applicant under the PSEM Act. The Applicant submitted instead, the Respondent’s decision to dismiss the Applicant was based on the position that the Applicant was not complying with CHO Direction No. 55, which is not a product of the PSEM Act rather the Public and Environmental Health Act 2011 (NT). The Applicant restated, in this regard, that CHO Direction No. 55 is no longer valid as of 16 June 2022.

[94] The Applicant made further submissions as to the Respondent’s power of recall to duty, submitting that in accordance with the Agreement, this is limited to circumstances of a fire. The Applicant submitted that the Respondent’s cancelling of his leave was not in circumstances of a fire, and was for arbitrary, subjective and invalid reasons in contravention of the Agreement and the PSEM Act.

[95] The Applicant submitted that, contrary to the Respondent’s position, the Commission does have to make a determination in relation to the application of clause 8 (No Extra Claims), 32.4 (Recall off duty), 41.6 (annual leave), 41.7 (annual leave), and 48.2 (long service leave) in the Agreement including whether the unilateral cancelling of his leave was in breach of the Agreement and therefore harsh, unjust or unfair.

[96] The Applicant maintained that as he was on a period of pre-approved leave at the time of his dismissal, he was not contravening s.351(2)(b) of the FW Act or the CHO Directions. The Applicant submitted that:

“It beggars belief and logic that the Respondent can claim that albeit the Applicant Mr Manny Koulakis is not required to attend the workplace from 16 October 2021 to 23 January 2023, that the Applicant Mr Manny Koulakis is in contravention of the NT Chief Health Officer (CHO) Directions 55 of 2021.”

[97] The Applicant submitted that the Respondent has made a “disastrously flawed concession” by way of the following:

“In any case, the Chief Fire Officer did not need to recall the Applicant from leave, but he may have had to do so if the public health emergency worsened.”

[98] The Applicant submitted that this is “the nail in the coffin in the Respondent’s case” as it now concedes that there were no valid reasons to unilaterally cancel the Applicant’s pre-approved leave because “In any case, the Chief Fire Officer did not need to recall the Applicant from leave”. The Applicant submitted that the Commission must find, as a result of this concession, that the CFO cancelled his leave without valid reason, and for reasons that were arbitrary, subjective, and in breach of s.5F(1) of the PSEM Act and clauses 8 (No Extra Claims) and 32.4 (Recall off duty) of the Agreement.

[99] The Applicant submitted that for the above reasons, there was no valid reason for his dismissal and his dismissal was harsh, unjust or unreasonable taking into account the fact that CHO Direction No. 55 is no longer valid.

[100] The Applicant maintained that he seeks reinstatement, including orders for continuity of service and compensation.

[101] As to relevant case authorities regarding ‘loss of trust and confidence’, the Applicant relied on the authorities of Perkins v Grace Worldwide (Aust) Pty Ltd 13 and Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter.14

Consideration

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

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

[104]  When considering whether a termination of an employee was harsh, unjust or unreasonable, the oft-quoted joint judgement of McHugh and Gummow JJ in Byrne v Australian Airlines (Byrne) 15 is of significance:   
  

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

  
[105] In analysing Byrne, a Full Bench of the Australian Industrial Relations Commission in Australian Meat Holdings Pty Ltd v McLauchlan (AMH) 16 held:   
  

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

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

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

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

  
[106] I now turn to the criteria for considering harshness as provided in s.387 of the Act.  
  
Section 387(a) – valid reason  
 
[107] The meaning of the phrase “valid reason” has been universally drawn from the judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd: 17
  

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

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

  
[108] In Rode v Burwood Mitsubishi, 18 a Full Bench of the Australian Industrial Relations   
Commission held:   
  

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

  
[109] In Qantas Airways Ltd v Cornwall (Cornwall) 19 the Full Court of the Federal Court of Australia said:   
  

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

[110] It is not in dispute that the Applicant was on approved Annual Leave and Long Service Leave from mid-October 2021 until January 2023.

[111] It is not in dispute that the Applicant was required to comply with CHO Direction No. 55 on the basis that, as a firefighter, he was an essential worker.

[112] It is not in dispute that the Applicant refused to disclose his vaccination status to the Respondent, despite being asked to do so on a number of occasions. Based on this information, I accept that no suitable duties could be provided to the Applicant if he had been recalled to work by the CFO.

[113] I do not agree with the submission that the Applicant’s vaccination status is now irrelevant because the public health emergency has been lifted. The evidence shows that the Applicant’s vaccination status was a very relevant and primary consideration at the time of the Applicant’s termination.

[114] As a result, I am satisfied and find that the Respondent had a valid reason to terminate the Applicant on 7 December 2021 for his non-compliance with CHO Direction No. 55.

Section 387(b) – Notified of the reason  
  
[115] It is not in dispute that the Applicant was notified of the reasons for his termination.  
 
Section 387(c) – Opportunity to respond  
  
[116] It is not in dispute that the Applicant was provided opportunities to respond to the reasons for his termination, and he did so by way of his correspondence extracted at paragraphs [13] and [16] of this decision.
  
Section 387(d) – Refusal of a support person   
  
[117] The Applicant was on leave at the relevant time and no face-to-face meetings were arranged by the Respondent to discuss the reasons for the Applicant’s dismissal so no support person was required. This consideration is, therefore, not relevant in the circumstances.
  
Section 387(e) – Unsatisfactory performance   
  
[118] The Applicant was not dismissed for unsatisfactory performance.   
 
Section 387 (f) and (g) – Size of Enterprise and HR Staff – procedures followed   
  
[119] It is noted that the Respondent is a large employer with its own specialised HR department.
  
Section 387(h) – Any other matters  

[120] I advised the Applicant during the Hearing that the Commission does not have the jurisdiction to deal with the question of whether the CFO has the right to direct an employee back to work off approved leave. That question is an issue for a Court with the competent jurisdiction.

[121] As stated earlier, the Applicant was on approved Annual Leave and Long Service Leave from mid-October 2021 until January 2023. It is not in dispute that the Applicant’s leave was approved before the Chief Health Officer made any suggestion or direction in relation to compulsory vaccination requirements.

[122] Relevantly, the Northern Territory Government issued a Frequently Asked Employment Questions document in relation to “Mandatory COVID-19 vaccinations for workers” on 1 November 2021 (Annexure M11). Question 16 of Annexure M11 states:

“16. I am returning from leave, is there anything I need to do before returning to work?

You will be required to share your vaccination status and show evidence of this with your agency delegate before returning to work.

You are encouraged to communicate with your manager and provide your preferred contact details in order to receive relevant agency communications about the mandatory vaccination for workers.”

(My emphasis)

[123] I note that there are no exemptions or exceptions contained in Annexure M11. As a result, I am satisfied and find that Annexure M11 applied to the Applicant. To comply with CHO Direction No. 55, the Applicant was required to prove his vaccination status when returning to work.

[124] The Applicant sent an email to the Respondent on 29 November 2021, as extracted at paragraph [13] of this decision. The Respondent responded by way of formal letter on 1 December 2021, as extracted at paragraph [14] of this decision. Relevantly, the Respondent provided in that letter:

“On 29 November 2021 I received an email from you, in response to my letter dated 23 November 2021, in which you advised:

1) I have not failed nor refused to receive an approved COVID-19 vaccination… this is an assumption on your part.

2) I am not in breach of any Department Directive nor any CHO mandate.

3) As you have stated, I am on approved leave that began well before the CHO 55 mandate declaration and the CEO's Direction 1 of 2021.

4) Should you choose to legally cancel my approved leave due to an operational impact of a Covid outbreak within the workforce then I will provide all necessary documentation that allows me to be a compliant worker in my workplace as defined by the CHO 55 mandate and the CEO's directive

…

I have considered the response provided and as you have not provided any evidence to support your compliance with the CHO Direction No. 55, I remain of the view that, because you have failed to update your COVID-19 vaccination status in myHR, and you do not have a contraindication to all approved vaccines:

•  you are not permitted to enter your workplace;

•  I must not permit you to enter your workplace;

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

•  no alternative duties are reasonably available.

Having determined that there are inability or performance grounds, I must now consider what is reasonable and appropriate action to take in the circumstances and in light of the actions available to me under section 46(1) of the Act (attached).

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

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

[125] I note that CFO Spain, in response to a question from me, said at the Hearing:-

“THE COMMISSIONER:  Thank you.  Before giving Mr Hathaway a go, I want to take you back to the letter, which is on page 266 of the court book, paragraph 4, quoting Mr Koulakis' email to you from a day or two earlier, your answer earlier, you indicated that you believe that Mr Koulakis was saying that he will be vaccinated, complaint, by the end of his leave.  I'm just wondering why you make that assumption when the wording indicates, quite clearly, that should you choose to legally cancel my approved leave.  So that infers that he's talking about if you cancel at any time he's able to comply.  He doesn't talk about at the expiration of his leave, he talks about when cancelling his leave, and that could happen today, tomorrow, Christmas Day, whenever it was.  So I'm just wondering, your answer doesn't relate to that (indistinct) interpreted, I accept that, but your answer doesn't relate to it currently?---I think, Commissioner, at the end of the day the questions, and I don't think they were hard questions, to be honest, to say whether you're vaccinated or not, (indistinct).  The fact that some of those people that I had to terminate chose their words as not to answer the simple question, 'Are you vaccinated and can you have it uploaded, so I know what my position is'.  Unfortunately, in my position, I can't assume that that was where Manny was going so it was just treated like everyone is, 'Please give us the detail and then you'll enjoy your leave'.”

[126] Read carefully, the Applicant advised the Respondent that if he was recalled to work, he would show the Respondent that he was compliant with the Directions. Obviously, the Applicant could not know when he was likely to be recalled to work, nor did he say he would be compliant by the end of his Annual and Long Service Leave in January 2023. Logically, this email stated that he was compliant with CHO Direction No. 55, but he was not going to show this to the Respondent until he had to return to work.

[127] Relevantly, under cross-examination from the Respondent, the Applicant testified that he was and always has been compliant with CHO Direction No. 55 in relation to receiving an approved vaccine.

[128] I am satisfied and find that the Applicant advised the Respondent of his vaccination status in his email on 29 November 2021, where he stated:

“1) I have not failed nor refused to receive an approved COVID-19 vaccination... this is an assumption on your part.

…

4) Should you choose to legally cancel my approved leave due to an operational impact of a Covid outbreak within the workforce then I will provide all necessary documentation that allows me to be a compliant worker in my workplace as defined by the CHO 55 mandate and the CEO's directive.”

[129] I find that the Applicant clearly states that he has received an approved COVID-19 vaccination and that if he is required to return to work from his approved leave then he will provide the necessary paperwork to prove that he is a compliant worker. It is obvious that CFO Spain, whilst claiming to have “carefully considered your response”, did not actually read the Applicant’s email carefully.

[130] Further, the Respondent’s FAQ document indicates that employees on approved leave will not be required to submit any paperwork in relation to their COVID-19 vaccination status until they return to work. It is not in dispute that the Applicant’s approved leave expired in January 2023. It is also not in dispute that the Applicant’s leave was approved prior to any knowledge or indication of CHO Direction No. 55. As a result, the Applicant could not be accused of simply taking his leave to circumvent the CHO Directions.

Conclusion

[131] Despite having previously found that the Respondent had a valid reason to terminate the Applicant, I am satisfied and find that the Applicant’s termination was harsh, unjust and unreasonable.

[132] The Applicant was on approved and lengthy Annual Leave and Long Service Leave. Despite no employee on long leave having ever been recalled to work in the history of the Northern Territory Fire Service, I accept that the lockdown of the Northern Territory may have created such a scenario. However, the Applicant was entitled to comply with CHO Direction No. 55 in accordance with the published advice of his employer. There was no requirement for the Applicant to provide his vaccination status until he returned from leave.

[133] Further, despite this protection, the Applicant advised the Respondent that if he was recalled to work, he would provide all of the necessary documentation to show that he was compliant with CHO Direction No. 55. I note that the Applicant was not saying that he would be compliant by January 2023 but that he would be compliant if and when he was recalled to work. Further, the Applicant stated that he had not failed or refused to receive an approved COVID-19 vaccination.

[134] In my view, the Respondent failed to read this correspondence carefully or with a clear mind. The language used by the Applicant is concise and has a plain and ordinary meaning. I do not accept the assertion by the CFO that he had considered the Applicant’s response, or if he did, the CFO did not comprehend the Applicant’s email. Instead of asking for clarification, the CFO took the well-worn disciplinary path towards termination for those employees who failed to comply with CHO Direction No. 55.

[135] As a result, the Applicant’s termination was harsh because of its consequences for a long standing and loyal firefighter having to endure the humiliation of ending his career via a termination, unjust because the decision to terminate the Applicant was based on a mistaken understanding of the facts and unreasonable because the inference that the Applicant had not complied with CHO Direction No. 55 could not be drawn from the materials before the Respondent.

[136] The Applicant did not receive his statutory entitlement to a ‘fair go’ in accordance with s.381(2) of the Act.

[137] For the reasons stated above, I find that the Applicant has been unfairly dismissed.

Remedy

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

[139] I have taken into account the submissions of the parties in relation to remedy.

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

“390 When the FWC may order remedy for unfair dismissal 

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

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

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

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

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

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

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

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

“391 Remedy—reinstatement etc. 

Reinstatement 

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

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

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

(1A) If: 

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

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

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

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

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

 
Order to maintain continuity 
 

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

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

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

Order to restore lost pay  

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

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

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

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

“392 Remedy—compensation 

Compensation 

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

Criteria for deciding amounts 

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

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

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

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

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

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

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

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

Misconduct reduces amount 

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

Shock, distress etc. disregarded 

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

Compensation cap 

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

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

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

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

(a) the total amount of remuneration: 

(i) received by the person; or 

(ii) to which the person was entitled; 

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

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

 
[141] In Perkins v Grace Worldwide (Aust) Pty Ltd (Perkins), 20 the Full Court of the Industrial Court said:  
 

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

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

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

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

It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee’s employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer’s own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.” 21

 
(My emphasis) 
 
[142] In Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter (Nguyen), 22 a Full Bench of the Commission conveniently summarised this issue: 
 

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

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

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

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

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

• The fact that it may be difficult or embarrassing for an employer to be required to reemploy an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate. Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.” 23

 
Consideration 

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

[144] The Applicant was dismissed due to the Respondent’s lack of comprehension of the Applicant’s email and the correspondence of the Commissioner of Public Employment. These deficiencies are not the fault of the Applicant.

[145] I note the submissions from the Respondent that this whole case was unnecessary because the Applicant was compliant with CHO Direction No. 55 whilst he was on leave. All that the Applicant had to do was advise the Respondent of his vaccination status. However, the Applicant was of the view that the CFO could not direct him back to work off approved leave and wanted to test the Respondent’s view on this issue. Further, I have previously found that the Applicant was compliant with CHO Direction No. 55 because he was only required to prove his compliance when he returned to work.

[146] I accept that the Applicant’s actions have resulted in the Respondent and the Commission being required to spend monies in relation to this matter, I am satisfied that the Respondent must bear some onus for this expense. The actions of the Respondent in dismissing the Applicant were ill conceived and hasty. The fact that the actions of a public servant have resulted in a Government spending, what some may believe to be, unnecessary money is not unique and should not disqualify that public servant from continuing their career.

[147] The Applicant’s final written submissions, in what I considered to be an act of frustration and totally out of character, contained a number of emotional submissions, which I have simply ignored and not repeated in this Decision. I asked the Applicant to review these submissions which he subsequently withdrew and relied upon his original submissions in relation to remedy.

[148] I am satisfied that the Applicant is a dedicated and committed firefighter who has the respect and confidence of his immediate supervisor and his crew. As a result, I am satisfied that the primary remedy of the Act is appropriate in this circumstance. I note that the Applicant is five levels below the CFO in the classification structure, so the level of contact between the CFO and the Applicant will be minimal. However, I did note the CFO and the Applicant shake hands at the conclusion of the Hearing, which gives me confidence that the requisite trust and confidence for a working relationship can be re-established.

[149] Adopting the obiter in Perkins and Nguyen, I hereby Order that the Applicant be reinstated to his former role from the date of his termination on 7 December 2021.

[150] I further Order that the Applicant maintain his continuity of service from the date of his termination in accordance with s.391(2). The Applicant is to be considered to be continuing on his approved leave from the date of his termination.

[151] Whilst no backpay is required on the basis that the Applicant was on extended paid leave when he was terminated, I Order that the Applicant repay to the Respondent any payment in lieu of notice that has been paid.

[152] I so Order.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR744044>

 1   Dec 1257/99 M Print S0253.

 2   [2014] FWC 6922.

 3   [2017] FWCFB 3005.

 4   [2016] FWC 5052.

 5   [1998] NSW IRC 628.

 6   [1999] NSW IRC 316.

 7   [2017] FWC 4626.

 8   [2012] FWA 1360.

 9   [2021] FWC 1911.

 10   [2012] FWA 7069.

 11   The Applicant relied on the following: The decision of the Full Court of the Federal Court of Australia [2014] FCAFC 89 Australian Postal Corporation v D’Rozario (23 July 2014) which upheld the Full Bench decision of the Fair Work Commission [2013] FWCFB 6191 B, C and D v Australian Postal Corporation trading as Australia Post (28 August 2013); [2014] FWCFB 7198 Thinh Nguyen and Thanh Le v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter (21 October 2014); [2016] FWCFB 7190 Francis Logan v Bendigo Health Care Group (13 December 2016); [2019] FWCFB 3323 Ryan Wilks Pty Ltd v Trudi Puszka (17 June 2019).

 12   [2022] FWC 1133.

 13   (1997) 72 IR 186.

 14   [2014] FWCFB 7198.

 15   (1995) 185 CLR 410.

 16   (1998) 84 IR 1.

 17   (1995) 62 IR 371.

 18   PR4471.

 19   (1998) 84 FCR 483.

 20   (1997) 72 IR 186.

 21   Ibid at 191-2.

 22   [2014] FWCFB 7198.

 23   Ibid at [27]-[28].