Fair Work Act 2009
s.394—Unfair dismissal

Christopher McFall
v
Qantas Airways Limited
(U2022/2248)

Application for relief from unfair dismissal - interlocutory decision – publicly available information prior to filing initial submissions – matter in issue prior to filing initial submissions - application for vacation of directions and to adduce new evidence in chief subsequent to respondent submissions and evidence – general principles – apparent relevance – procedural fairness - due administration of justice Application for an unfair dismissal remedy

Background

[1] The outcome of this interlocutory decision was communicated to the parties by my Chambers on Wednesday 20 July 2022 at which point I advised them that my reasons for that decision would follow. Those reasons are set out herein.

[2] On 21 February 2022, Mr Christopher McFall (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Qantas Airways Limited (Respondent). The Applicant seeks financial compensation and reinstatement.

[3] The matter was allocated to my Chambers on 5 May 2022, following an unsuccessful conciliation.

[4] On 2 June 2022, a Case Management Conference was held and directions were issued for the filing of materials. The Applicant was represented by Ms Serene Teffaha from Advocate Me. Those directions in summary provided that the Applicant file his merits material by 15 June 2022, the Respondent file its merits material by 29 June 2022, and the Applicant file any materials in reply by 13 July 2022.

[5] On 15 June 2022, the Respondent filed a Form F53 appointing Ashurst as their legal representative as well as submissions in support of leave to be represented. The Applicant filed a Form F53, again appointing Ms Serene Teffaha but this time from CoVision, and submissions in support of leave to be represented.

[6] On 15 June 2022, in part compliance with my directions, the Applicant filed its merits materials (compromising submissions and witness statements of Mr Christopher McFall and Mr Jesus Semonia) with my Chambers but not with the Respondent.

[7] On 16 June 2022, at the request of the Applicant’s representative, my Chambers forwarded the Applicant’s submissions to the Respondent at 5.50pm as the Applicant claimed it had difficulties sending the documents to the Respondent.

[8] On 17 June 2022, the Respondent requested a one-day extension to file their material due to the delay in receiving the Applicant’s filed materials. That extension was granted and new directions were issued that the Respondent file and serve its submissions and materials by 30 June 2022 at 4:00pm. The Applicant was also given a complementary extension to file its submissions and materials in reply by 4:00pm on 14 July 2022.

[9] On 24 June 2022, a joint request by the parties was received by my Chambers to amend the timetable set out in the directions of 17 June 2022, on the basis that two of the Respondent’s intended witnesses were on medical leave or annual leave and it would not impact the hearing date. The Applicant did not oppose the request to amend the timetable and the extensions were granted with new directions issued requiring the Respondent to file and serve its submissions and materials by 4:00pm on Tuesday 5 July 2022; and the Applicant to file and serve its submissions and materials in reply by 4:00pm on Tuesday 19 July 2022, having been afforded the same extension.

[10] On 4 July 2022, the Applicant’s representative advised my Chambers of without prejudice correspondence raised with it by the Respondent in relation to an offer to settle the matter and raising the Tween 1 matter. Notwithstanding the inappropriateness of providing ex-parte communications to my Chambers without the Respondent’s consent, the Applicant requested a further adjournment of time to:

“…procure independent medical experts and so will Qantas to contest the question on alleged COVID-19 vaccine effectiveness and safety, in addition to the proposition that the COVID-19 vaccines reduce severity of symptoms. The real world data appears to not support this conclusion and my client should be given the opportunity to respond to this by bringing in independent medical experts to contest the basis of the Respondent’s COVID-19 vaccination policy as a blanket requirement. Similarly, I would anticipate that Qantas would want to do the same.”

Further, the Applicant’s representative requested further directions to address this issue and timetable an extension of time to enable her client to put on witness evidence from independent medical experts.

[11] On that same morning of 4 July 2022, my Chambers sought submissions from the parties in relation to how this matter is relevant to the factors that I needed to decide. The Applicant was directed to file submissions by 4:00pm on Monday 11 July 2022 and the Respondent by 4:00pm Monday 18 July 2022. Several minutes later the Applicant’s representative sent the following correspondence to my Chambers:

“Thank you Associate,

We are appreciative of the prompt response.

Please clarify if the other orders are put on hold or suspended for the purposes of putting submissions before the Deputy President. If they are not, the Applicant will be requesting an extension of time to file his reply on 19 July 2022 as he is not in a position to secure and instruct independent medical experts in that short period of time. The Applicant cannot afford a detrimental cost orders made against him if he did not take all the steps required to ensure that he presents his arguments as best as he can, including debating the medical evidence.”

[12] On 5 July 2022, I instructed my Chambers to reply as follows:

“Dear Parties,

I refer to the above matter and below correspondence.

The directions were originally issued on 2 June 2022 and an extension has been granted on two occasions so far, upon request from [the] Respondent, on 17 June 2022 and 27 June 2022.

Evidence has already been put by the applicant and that time has passed.

The Deputy President’s further directions of 4 July 2022 are purely seeking submissions as to the proposition put by the Applicant’s representative that the Tween case hinged on medical evidence from Dr Prasad and how that is or isn’t relevant to the factors that need to be decided by the Deputy President in this present matter.

The direction for the submission of evidence and submissions, already twice amended at the request of the Respondent, are otherwise unchanged.

At present the Deputy President does not consider there is any denial of procedural fairness that would give rise to a need to amend the directions further.”

[13] Later that same day (5 July 2022), the Applicant’s representative responded as follows:

“Dear Associate,

The Applicant has a right of reply to file both further submissions and witness statements in response to the Respondent’s evidence. This is due on 19 July 2022 and therefore the time has not passed to put on evidence in reply.

The Respondent has since brought the Tween case to the attention of the Applicant and made threats as to costs. We anticipate that the Respondent will file evidence today which may include Dr Prasad’s evidence and/or another similar medical advisor to Qantas.

Perhaps the Deputy President may reconsider her position in providing an extension of time to the Applicant to file evidence in reply once there is an opportunity to peruse the Respondent’s evidence and consider the Applicant’s further submissions.

We remain grateful for the opportunity to put submissions to the Deputy President on the question of expert evidence.”

[14] On 6 July 2022, the Respondent’s representative responded as follows:

“Dear Associate

U2022/2248 – Christopher McFall v Qantas Airways Limited

We refer to the above matter and the correspondence attached and below.

Our client shares the understanding of the Deputy President’s Chambers that the directions of 27 June 2022 remain unchanged, and that the Deputy President’s further directions of 4 July 2022 only seek submissions on the proposition raised by the Applicant. On that basis, our client proceeded to file its submissions and evidence yesterday as directed. Our client also intends to file submissions in reply on 18 July 2022 in accordance with the Deputy President’s further directions.

We are instructed that our client does not otherwise consent to the Applicant’s proposal for the hearing dates to be vacated. Our client’s position is that the Applicant had an opportunity to put on medical evidence in chief and can otherwise respond to the matters raised in Dr Prasad’s statement in reply in accordance with the Deputy President’s directions of 27 June 2022.

The Applicant’s representative is copied to this correspondence.”

[15] On 6 July 2022, the Applicant’s representative wrote to my Chambers as follows:

“Dear Associate,

I refer to my colleague’s email below.

The position of the Applicant is that he will require further time to procure independent experts (bio-statisticians, data analysts, medical experts) to respond to Dr Prasad’s evidence. Two weeks is not sufficient, noting that Dr Prasad’s evidence was already prepared and used in a previous case and was only filed yesterday by the Respondent in this matter.

The further directions of 4 July 2022 have no utility now that the Respondent has filed Dr Prasad’s evidence in this case. I don’t see why the Applicant requires to justify their position in relation to the need to file independent expert statements when the Respondent has already filed their evidence from Dr Prasad and the Applicant already has that right.

The right of reply is traditionally given to an Applicant to facilitate the ability to respond to the evidence of the Respondent.

There is nothing controversial about this request.

The Applicant requires more time to procure independent expert evidence in reply to Dr Prasad’s evidence. I think this a reasonable and fair request.”

[16] Later that same day (6 July 2022), I instructed my Chambers to respond as follows:

“Dear Parties,

I refer to the above matter and correspondence below.

The Deputy President has considered the Applicant’s request for an extension and is not minded to grant it as she does not see the relevance of Dr Prasad’s evidence to the matters that must be decided, taking into account the relevant authorities.

However, it is noted that submissions were sought in the directions issued on 4 July 2022, from the Applicant and the Respondent in this respect and the Deputy President accordingly invites the Applicant to make the submissions sought at such earlier time as she sees fit.

Once the Deputy President has received the abovementioned submissions, the granting of an extension of time will be reconsidered.

The Deputy President notes that an extension must not be assumed and the parties should be prepared to follow the directions already given.”

[17] On 11 July 2022, the Applicant filed its submissions on the relevance of the expert evidence and on 18 July 2022 the Respondent filed its submissions on the same issue. I will address these submissions shortly.

[18] On 18 July 2022, my Chambers wrote to the parties as follows:

“Dear parties

The Deputy President has considered the Applicant’s submissions filed 11 July 2022 and the Respondent’s submissions filed 18 July 2022.

The Deputy President’s view is that she does not need to determine whether the ATAGI and TGA advice is right or wrong to determine the relevant issues for an unfair dismissal based on the case law, inter alia, in Hazzard, BHP, Epworth and Mercy Hospitals.

In any event, that [the] Applicant has had considerable time to state their case and these issues are not new issues merely because of Tween. They existed before that.

On the basis of the above, the Deputy President does not see any need to disturb the current directions (of 27 June 2022) and expects that the Applicant will file and serve its submissions in reply and materials by Tuesday 19 July 2022 at 4:00pm (AEST).

In response to the Respondent’s further queries, I confirm that the method of the hearing will be altered from in person to by video using MS Teams. An amended Notice of Listing will be issued reflecting this.

The Deputy President will grant leave to appear to the parties on the basis that it continues to aid the Commission, if that ceases, the Deputy President reserves her right [to] withdraw such leave.

The Commission will prepare a Digital Court Book of the filed materials and will distribute this to the parties as soon as possible prior to the hearing. The parties are required to provide copies of any case law upon which they intend to rely by 4pm Wednesday 20 July 2022, highlighting any relevant paragraphs.”

[19] On 19 July 2022, the Applicant’s representative again wrote to my Chambers as follows:

“Dear Associate,

As you are aware I am a paid agent and the Applicant is currently seeking legal advice from another party in relation to the response of the Deputy President in denying him an extension of time to address the critical question as pointed out by Deputy President Easton in his Tween decision as at 22 June 2022 that one of the relevant issues to consider for an unfair dismissal is whether there is an ”objectively and medically sound rationale that underpins the vaccination policy”.

The Applicant contends that there is serious bias, prejudice and a denial of procedural fairness and natural justice targeted against him based on the following grounds:

1. The decision of Tween was only released on 22 June 2022 and it is has made a relevant consideration to unfair dismissal claims the science considered in formulating vaccination policies. While it is agreed that this may not have been a relevant consideration beforehand, it is alleged that the Deputy President is making an error at law by refusing to consider the medical rationale for the vaccination policy as a relevant consideration after Tween. This is a relevant issue that should be tested via a judicial review which the Applicant is currently seeking advice on.

2. The Applicant has never asked the Deputy President to determine whether the ATAGI and TGA advice is right or wrong but rather whether the enquiries made by Qantas in relying on that advice solely through Dr Prasad without considering all of the other available scientific evidence is right or wrong.

3. The Deputy President is suggesting that the safety and effectiveness of the COVID-19 vaccines is a foregone conclusion and cannot be tested in this forum. We say that Tween has now expanded that enquiry to include considerations as to the safety and effectiveness of the COVID-19 vaccines within the ambit of considerations for unfair dismissal where they underpin vaccination policies.

4. Denying the Applicant the opportunity to prepare and garner expert evidence to respond to the Respondent’s evidence which clearly relies on Dr Prasad’s conclusions that the science is settled and that the safety and effectiveness of the COVID-19 vaccines is a foregone conclusion is in itself indicative of bias and prejudice against the Applicant by forcing him into a situation where he is asked to present his arguments without being prepared with the evidence.

5. I note here that the Applicant has been threatened with costs by the Respondent if the Tween decision is repeated in his case. Those threats are not taken lightly.

So, in summary, the Applicant’s circumstances in Tween are almost identical to those of Mr McFall, the Tween decision was the first to confirm the relevance of the medical rationale for the policy, the Tween decision was published after Mr McFall lodged his application and evidence in Chief, and the Respondent by adducing the Dr Prasad Affidavit also implicitly acknowledged the relevance of the evidence. Mr McFall is merely asserting his right to be given a sufficient opportunity to reply to the Respondent’s evidence taking into account the Tween guidance, and should be afforded that right as a matter of procedural fairness and particularly under the threat of an adverse costs order.

Given that the Applicant has had approximately 24 hours to consider the Deputy President’s decision and its effect on the Applicant’s case, the Applicant respectfully requests the proceedings be paused and the hearing date vacated to facilitate for the Applicant the opportunity to bring a judicial review on these critical issues that need to be settled. In the event that the request is denied, the Applicant is prevented from participating in the proceedings due to the reasons set out above. The Applicant will not intentionally expose himself to an adverse costs order by repeating the same hearing as Tween without being afforded the opportunity to adduce further expert evidence.

Finally, I note it seems highly unusual for a Deputy President to grant leave “on the basis that it continues to aid the Commission”.

It is suggested that this ruling leaves both the Applicant and Respondent open to the uncertainty that they may suddenly have to represent themselves at any time during the proceedings. 

The Applicant contends that this is not fair or reasonable to either the Applicant or the Respondent, and particularly the Applicant, as the Respondent is an extremely large, well-equipped organisation with in-house counsel that could then step in should the need arise.”

[20] The issues raised by the Applicant’s representative are serious ones and it is appropriate that I clearly set out my reasons in relation to my refusal to vacate the hearing and reissue directions as sought by her.

[21] As previously mentioned, my Chambers issued further directions requiring the parties to address the proposition of the Applicant that the directions and hearing listed be vacated and the Applicant be permitted to file further expert evidence in response to the Respondent’s evidence of Dr Peter Prasad as it pertains to the issues that I must decide.

[22] On 11 July 2022, the Applicant filed submissions that say:

1. The Applicant’s first and principal submission is to challenge the legality or lawfulness of the direction to be vaccinated by the Respondent. This question turns on the Respondent’s authority as derived under the Work Health and Safety Act 2011 QLD, in addition to the accompanying regulations. The Applicant contends that the lengthy and proscriptive legislation and regulations do not allow employers to mandate vaccination in the workplace which are not mentioned as an allowable control measure. The Applicant contends that the Respondent’s vaccination policy is unlawful because it is outside the scope of the employer’s authority. This part of the Applicant’s submissions does not turn on an enquiry of the medical evidence.

2. The Applicant, then concurrently and/or in the alternative, submits that the Respondent failed to discharge its primary duty of care to the Applicant as the risk assessment was inadequate. This part of the enquiry examines the reasonableness of the Respondent’s vaccination policy and necessitates a merits-based enquiry into the medical and/or scientific rationale underpinning the policy. We say that this part of the enquiry will necessitate adducing medical and/or scientific evidence in response to Dr Prasad’s evidence.

3. The Respondent is relying on Dr Prasad’s evidence in the McFall matter, in addition to relying upon it in the Tween case.

4. In relation to the issue of reasonableness, while Dr Prasad states (sic) that he relies on published medical evidence and Government publications, the evidence is neither sourced or referenced.

5. The Applicant is not in a position nor does he have the expertise to respond to Dr Prasad, particularly in the absence of unsourced and unreferenced statements.

6. In summary, Dr Prasad opines that:

a. COVID-19 is a serious illness that may lead to death.

b. COVID-19 is characterised by various variants, more recently the Omicron variant, and that high rates of hospitalisations, long COVID and deaths persist despite vaccination.

c. Adverse effects are rare, myocarditis is temporary and most people recover within a few days.

d. An unvaccinated person is more at risk of being harmed by COVID-19 than vaccines.

e. COVID-19 vaccines are safe for use and prevent infection, symptomatic disease, hospitalisations and deaths in the vaccinated as opposed to the unvaccinated.

f. Local data for the unvaccinated population compared to the vaccinated is unavailable.

g. Vaccination is the only practicable control measure available that has an effect of reducing the consequences of infection.

h. Testing regimes are not an equivalent control measure to vaccination.

i. Risks to serious health consequences are diminished significantly by COVID-19 vaccines.

j. Case numbers have grown to 8000 after vaccination with no known data as to hospitalisations, deaths or severe complications.

k. Where COVID-19 is potentially a workplace illness and where there is an unvaccinated worker in the workplace, the risk of hospitalisation or death from a workplace infection is relatively higher.

7. The Applicant needs to be given the opportunity to properly respond to and dispute what he says is the contradictory and factually unsupported assertions made by Dr Prasad. Real-world data will be collated and presented to properly clarify these assertions that clearly discriminate against the unvaccinated when we are now seeing an increase of deaths and hospitalisations by up to 25% when compared to historical averages after the roll-out of the vaccines in the vaccinated.

8. In the case of Tween, Dr Prasad also submitted similar, if not the same, evidence.

9. The Deputy President in that matter turned his attention to the soundness of the medical advice that underpinned the Respondent’s vaccination policy.

10. Deputy President Easton acknowledged Tween’s dismissal as a tragedy at paragraph 5, and furthermore went into some detail in relation to Dr Prasad’s evidence, noting at paragraph 73 that it “was largely unchallenged”. This is again repeated at paragraphs 123 and 124, concluding at paragraph 136 that his decision was predicated on “the seriousness of the global pandemic, the devastation to Qantas’ business, the measures taken by Qantas to return to normal operations and the objectively and medical sound rationale that underpins the vaccination policy”.

11. The Applicant is not an expert in this field, and therefore requires more time to dispute Dr Prasad’s assertions and bring in expert evidence using real-world local data which is available and which is contended to demonstrate unequivocally that COVID-19 vaccines are useless against new variants, and there has been significant increase in cases, hospitalisations, ICU admissions and deaths since the roll-out of the vaccines as supported by the best available statistics as issued by the Australian Bureau of Statistics.

12. The Applicant does not wish to waste the time of the Fair Work Commission fighting issues that have already been decided. His focus is on challenging the lawfulness and reasonableness of the Respondent’s direction to be vaccinated based on Dr Prasad’s assessment. He needs to be given the opportunity to procure expert evidence that can be backed by qualified individuals with the appropriate expertise and referenced evidence.

13. Given the array of issues raised by Dr Prasad and the importance of evidence as to the safety and effectiveness of the vaccines to the issues in this case, and the requirements of procedural fairness, the Applicant should be afforded a reasonable opportunity to put on expert evidence to contradict the evidence of the Respondent’s expert.

[23] On 18 July 2022, the Respondent filed submissions that say:

1. By directions dated 4 July 2022, Deputy President Moltoni has sought submissions from the parties in relation to the following matters:

(a) the relevance to the proceeding of Dr Prasad’s witness statement dated 5 July 2022; and

(b) whether the hearing dates should be vacated.

2. These directions were made following a request by the Applicant to vacate the hearing currently listed for 25 and 26 July 2022. 2

The hearing dates should not be vacated

3. The Commission should not accede to the Applicant’s request to vacate the hearing dates. The reason advanced by the Applicant for this request is that he wants to file “independent expert evidence” in response to Dr Prasad’s witness statement to:

(a) “contest the question on alleged COVID-19 vaccine effectiveness and safety, in addition to the proposition that the COVID-19 vaccines reduce severity of symptoms”; and

(b) “contest the basis of [Qantas’] COVID-19 vaccination policy as a blanket requirement”. 3

4. For the following reasons, that is not a proper basis for vacating the hearing dates.

5. First, the Applicant has had a reasonable opportunity to advance his case in chief and to prepare reply material. He had between 21 February 2022 and 16 June 2022 to prepare and file his evidence and submissions, including engaging any relevant expert witnesses, and to decide on the best way to advance his case. Further, he (or at least his paid agent) should have reasonably anticipated that Qantas would adduce evidence to substantiate the reasonableness of the Qantas Group COVID-19 Vaccination Policy (the Policy) and the Direction 4 (given it carries the evidentiary onus of satisfying the Commission that there was a valid reason for the dismissal). The Applicant has had a reasonable opportunity to include evidence in his in-chief evidence and/or to prepare for the evidence to be filed in reply to matters raised by Qantas in its evidence.

6. Secondly, on the Applicant’s case, he has not put in issue the question of vaccine safety or effectiveness. As set out in the Applicant’s Outline of Submissions filed 16 June 2022 (AS), his primary case is to challenge valid reason on a contention of the “unlawfulness” of the Policy having regard to the Work Health and Safety Act 2011 (Qld) and other laws. As the Applicant acknowledges at paragraph [1] of his 11 July 2022 submissions, this argument does not bring into issue the question of vaccine safety or effectiveness. 5 The Applicant’s alternative case is that the Policy was unreasonable because the Respondent failed to take account of certain relevant considerations, including a risk assessment. This point alleges that a risk assessment was not properly done. However, in advancing that point, the Applicant has not put in issue the question of vaccine safety or effectiveness.

7. Indeed, as set out in the AS, the Applicant’s case implicitly accepts that at relevant times COVID-19 presented a health risk to workers (see AS [16](a), [24](c), [50], [60]- [63]). Further, the Applicant implicitly accepts that the approved COVID-19 vaccines were safe and effective (see AS [24](c)), subject only to a submission at AS [43] that the vaccines did not prevent transmission of COVID-19 – a point that Dr Prasad concedes in relation to the Omicron variant of the virus. 6

8. Thirdly, building on the first two reasons, the foreshadowed evidence (such as it is) is not in the nature of reply evidence. The Applicant is now effectively seeking to re-open his case in chief to explore and potentially agitate issues on previously unchallenged propositions such as the relative safety and efficacy of the approved COVID-19 vaccines, and to adjourn the hearing for an unspecified period of time to allow him to explore this. Now is not the opportunity to raise fresh arguments or contest previously unchallenged propositions.

9. Fourthly, the Applicant is very vague on the new evidence he intends to adduce. He gives no specifics as to the evidentiary propositions, nor does he identify the independent expert/s from whom any such evidence is to be led.

10. Fifthly, any extension of time at this late stage would necessitate the hearing dates to be vacated and result in a potentially significant delay to the hearing.

11. The Applicant’s application to vacate the hearing - based as it is effectively on an application for leave to re-open his case - should be dismissed. The hearing of the Application should proceed as listed, and the Applicant should be required to file and serve any materials in reply by 19 July 2022.

Dr Prasad’s evidence

12. Dr Prasad’s evidence is relevant to establish that: the vaccination requirements as set out in the Policy were a reasonable additional risk control measure; and that the Direction imbedded in the Policy, that employees were required to be vaccinated within specified time frames, was lawful and reasonable. It is also relevant to rebut the argument at AS [15]-[16] and [50](a) and (e) that Qantas implemented the Policy in the absence of adequate medical expertise or analysis of the medical research and scientific data.

13. The Applicant’s submission that Dr Prasad is “not an independent medical expert” must be rejected. If a witness is suitably qualified, then there is no rule that prevents that witness from giving relevant and admissible evidence. 7

14. The Applicant does not contend that Dr Prasad is not qualified to give his evidence in respect of COVID-19. Such a submission would be untenable in the face of Dr Prasad’s extensive medical experience. 8

15. In circumstances where the Applicant does not suggest that Dr Prasad is not qualified to give his evidence, there is no basis to exclude it.

16. Further and in any event, the Commission is entitled to inform itself in any manner that it sees fit (s 590 of the FW Act), and Dr Prasad’s evidence was adduced and accepted by the Commission in Stuart Tween v Qantas Airways Limited [202] FWC 1594.

Relevant Principles

Affording parties an opportunity to be heard

[24] Members must accord procedural fairness and natural justice to parties and those affected by the decisions they make. 9 Procedural fairness requires that parties are given a fair hearing; that is, the opportunity for all parties to put their case and to have that case determined impartially and according to law.10 What is required is that which is necessary to ensure that a decision is made fairly in the circumstances having regard to the legal framework within which the decision is made.11

[25] Procedural fairness requires that each party be given a reasonable opportunity to be heard and present its case. 12 What amounts to a ‘reasonable opportunity’ will depend on the circumstances of the case,13 including:

•  the statutory setting

•  the characteristics of the parties

•  the nature of the decision to be made, and

•  the steps already taken in the process. 14

[26] A failure to provide a party with an opportunity to be heard may constitute a denial of procedural fairness, 15 unless the failure did not deprive the party of the possibility of a successful outcome.16

Adjournment Requests

[27] Section 589 of the Fair Work Act provides that the Commission may make procedural and interim decisions as to how, when and where a matter is to be dealt with. The power in s.589 is broad. 17 The section is concerned with the manner in which the Commission deals with matters, including programming, location, timing, and administrative matters, and encompasses adjournments and stays of proceedings.18 The Commission may make such decisions on its own initiative, or upon application (s.589(3) FW Act).

[28] Relevant to the consideration of adjournment requests is the requirement for Members to act in a judicial manner. 19 One aspect of the duty to act judicially is the obligation to afford a party a reasonable opportunity to allow their case to be put.20 The opportunity to present a case is not confined to giving parties the opportunity to stand up and say what they want to say; it extends to a reasonable opportunity to prepare their case.21 An allocation of court time is of no value if a party is deprived of the opportunity of getting their case in order and being able to present their case in the fullest sense.22 When an adjournment is sought, the Commission needs to consider whether an adjournment is necessary to give the requesting party a reasonable opportunity to present their case as well as how long the matter needs to be adjourned in order for that to occur.23

[29] The decision to grant or decline an adjournment request is discretionary. 24 The proper exercise of the Commission’s discretion requires that relevant matters be taken into account and weighed in order to determine whether a proceeding should be adjourned, having regard to the relevant considerations of what justice requires.25

[30] The critical question is what procedural fairness requires in the circumstances. 26 Procedural fairness is the obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case.27 In dealing with an adjournment request, the requirements of procedural fairness will depend on a number of considerations, including the statutory context, the particular circumstances of the proceeding, and the grounds for making the adjournment application.28 A refusal to grant an adjournment may constitute a denial of procedural fairness if the refusal is not reasonable.29

[31] The statutory context, in relation to the discretion to be applied when assessing adjournment requests, includes the Commission’s obligation to perform its functions and exercise its powers in a manner that is fair and just, quick, informal, avoids unnecessary technicalities, is open and transparent and promotes harmonious and cooperative workplace relations (s.577 FW Act). The Commission must also take into account the objects of the Fair Work Act, and any objects of a relevant part of the Fair Work Act, as well as equity, good conscience, the merits of the matter, and the need to respect and value the diversity of the workforce (s 578 FW Act).

[32] The Commission is not required to grant every adjournment application that a party might make.¹⁴ The Commission may take into account the effect of procedural applications, including adjournment requests, on the Commission’s resources and the competing claims by parties in other cases awaiting hearing.¹⁵

Where a Party seeks to file additional or new evidence

[33] Authorities provide relevant considerations in such situations having regard for the Commission’s obligations under sections 577(a) and (b) of the Fair Work Act to perform its functions in a manner that is fair and just and also quick, informal, and which avoids unnecessary technicalities. Those relevant considerations are: 30

•  Is the evidence relevant, in that it engages in one or more of the issues requiring determination?

•  Was the evidence able to be obtained with reasonable diligence for use during the hearing?

•  Are the interests of justice served better by allowing or rejecting the evidence?

•  What is the likely prejudice to the party resisting the application?

•  Will a denial of procedural fairness likely arise if a party does not have an adequate opportunity to argue its case?

•  Was the evidence not led because of inadvertence or mistake?

[34] Further, whilst procedural fairness determines that a party must be given a reasonable opportunity to prepare their case, 31 it is not for the Commission to ensure that the parties take the best advantage of that opportunity.32 Where, for example, a party fails to adequately prepare its case in the time available, or fails to call relevant witnesses, the Commission is not required to ‘rescue’ that party’s case by reconvening a further proceeding (although it may do so, particularly if there is no prejudice to the other party).33

Matters in issue in the proceedings

[35] It is not for me at this stage to make determinations about the Applicant’s or Respondent’s arguments in the substantive matter. The question before me is whether it is appropriate to vacate the programmed directions and hearing in order to provide procedural fairness to the Applicant to file new submissions and expert evidence having regard to the aforementioned principles of law. This also turns on whether such evidence is relevant to the matters in issue in the proceedings and whether such further evidence might have a bearing on the outcome of those proceedings as a result.

[36] In order to make that decision it is relevant to address the medical contentions raised by the Applicant in the submissions of 11 July 2022, that they claim is central to their right to have the directions vacated and a further opportunity to provide expert evidence.

[37] I make the following observations of the Applicant’s reliance on Tween. Firstly, Tween is not binding on me. Secondly, the evidence provided by Dr Prasad at paragraph [23] of Tween is simply a re-statement of the Therapeutic Goods Administrations (TGA), Australian Technical Advisory Group on Immunisation (ATAGI) and/or the Federal Government’s uncontentious and publicly available position on the Covid-19 Vaccines. It is not for Fair Work Commission to take a contrary review on the basis of any additional medical evidence that the Applicant might put before it.

[38] In this respect it is also necessary to consider the recent Full Bench decision in Mt Arthur Coal. 34 In that decision the Full Bench also found that the factual propositions around the efficacy of the Covid-19 vaccines (again the TGA, ATAGI and/or Federal Government positions) are uncontentious, and their establishment accepted by the evidence before the Full Bench in that matter.35 The authority for this proposition being established by the Full Bench is binding on me and means that this is not a matter for me to decide in the present matter.

[39] Further, I also note that the Qantas Vaccination Policy which was provided to the Applicant on 20 September 2021, 36 also clearly sets out the medical bases for the Covid-19 Vaccine efficacy and risks with references to relevant State and Federal Government websites as well as that of the World Health Organisation.37 This demonstrates that Qantas had put these matters in issue from the very beginning of its case and the Applicant had every opportunity to exercise reasonable diligence to address this in its initial materials.

[40] It is also relevant that the TGA, ATAGI and/or Federal Government positions have been publicly available for some time, the binding authority for this proposition in Mt Arthur Coal since 3 December 2021 and the Qantas Vaccination Policy references since 20 September 2021, all existed well before the Applicant was required to file and serve its submissions and evidence in chief on 15 June 2022.

[41] Given the legal principles and circumstances of this case set out herein, I do not agree that Tween created a new circumstance for the Applicant to address. For the reasons set out in the preceding paragraphs, those matters were already in issue from the beginning of this case. I do not agree there is any denial of procedural fairness in this interlocutory decision.

Discretion to Revoke the Grant of Permission to be Represented.

[42] In relation to the Applicant’s representatives contention that it is “highly unusual for a Deputy President to grant leave ‘on the basis that it continues to aid the Commission’”, I note that the Commission has discretion to revoke the grant of permission, either on the Commission’s own motion or on application (s.603 FW Act). 38 Grounds for revocation may arise, for example, where the basis for granting permission no longer applies, such as where representation is no longer contributing to the efficient conduct of the matter.

Conclusion

[43] In consideration of all the circumstances, I have granted the Applicant an extension to file and serve their submissions in reply by 4:00pm on 22 July 2022. The remainder of the directions including the hearing are not disturbed and the parties are expected to comply with them.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Final written submissions:

Applicant, 11 July 2022
Respondent, 18 July 2022

Printed by authority of the Commonwealth Government Printer

<PR744047>

 1   Stuart Tween v Qantas Airways Limited [2022] FWC 1594 (Tween).

 2   Email from the Applicant’s paid agent, Serene Teffaha, to the Chambers of Deputy President Moltoni dated 5 July 2022 at 4:18 pm.

 3   Email from Ms Teffaha to the Chambers of Deputy President Moltoni dated 4 July 2022 at 10:06 am. See also Applicant’s Submissions in Support of Application to Vacate the Hearing dated 11 July 2022 (Supplementary Submissions) at [2].

 4   See the Respondent's Outline of Submissions dated 5 July 2022 at [23].

 5   The Applicant concedes as much: see Supplementary Submissions at [1].

 6   Witness Statement of Dr Peter Prasad dated 5 July 2022 (Prasad Statement) at [24].

 7   FGT Custodians Pty Ltd (formerly Feingold Partners Pty Ltd) v Mark Fagenblat [2003] VSCA 33 at [4], [18] (Ormiston JA, with whom Chernov and Eames JJA agreed).

 8   Prasad Statement at [2] – [6], [8].

 9   Construction, Forestry, Maritime, Mining and Energy Union v Ditchfield Mining Services Pty Ltd [2019] FWCFB 4022, [34].

 10   Johansson v Avcom Pty Ltd [2013] FWCFB 8017, [23].

 11   Minister for Immigration and Border Protection v WZARH [2015] HCA 40, [28]-[30] (Kiefel, Bell and Keane JJ); cited in Construction, Forestry, Maritime, Mining and Energy Union v Ditchfield Mining Services Pty Ltd [2019] FWCFB 4022, [34].

 12   Shrestha v Migration Review Tribunal [2015] FCAFC 87, [38]-[41].

 13   Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6, [48] (McHugh and Gummow JJ).

 14   Shrestha v Migration Review Tribunal [2015] FCAFC 87, [49].

 15   See, eg, Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v B & E Trevena & Sons [2015] FWCFB 5125.

 16   Minister for Immigration and Border Protection v WZARH [2015] HCA 40, [59]-[61] (Gageler and Gordon JJ); cited in Construction, Forestry, Maritime, Mining and Energy Union v Ditchfield Mining Services Pty Ltd [2019] FWCFB 4022, [34].

 17   Deeney v Patrick Projects Pty Ltd [2018] FWCFB 5010, [13].

 18   See, eg, Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] FWC 7282, [20], [42]; Poposki v Warrigal Care [2018] FWC 4553; Parris v Trustees of Edmund Rice Education Australia [2020] FWC 3472, [12].

 19   R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angless Group [1969] HCA 10; Galintel Rolling Mills Pty Ltd [2011] FWCFB 6772, [27].

 20   Visy Board Pty Ltd v Rustemovski [2018] FWCFB 1255, [47].

 21   Galloway v Molina [2021] FWCFB 5419, [25].

 22   Ibid; See also R v Thames Magistrates’ Court, Ex parte Polemis [1974] 2 All ER 1219, 1223.

 23   Communications, Electrical, Electronic, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148, [135] (Katzmann and Rangiah JJ).

 24   Galloway v Molina [2021] FWCFB 5419, [29].

 25   Esso Australia Pty Ltd [2018] FWC 6244, [16].

 26   Allen v Fluor Construction Services Pty Ltd [2014] FWCFB 174, [23].

 27   Kioa v West [1985] HCA 81, [33].

 28   Allen v Fluor Construction Services Pty Ltd [2014] FWCFB 174, [23].

 29   Cole v Roy Hill Station Pty Ltd [2019] FWCFB 2925, [39]; Communications, Electrical, Electronic, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148, [46] (Buchanan J).

 30   Galloway v Molina [2021] FWCFB 5419, [52]-[55]; Morrison v Australian National University [2021] FWC 1250, [14]; Ross v Bridgewood Pty Ltd [2021] FWC 6173, [22]; Modra v Yirara College of the Finke River Mission Inc [2010] FWA 2900, [9]. See also Esso Australia Pty Ltd v The Australian Workers’ Union [2019] FWC 3696, [12]; Abigroup Contractors Pty Ltd v Crema [2012] FWAFB 8453, [27].

 31   Galloway v Molina [2021] FWCFB 5419, [25]; R v Thames Magistrates’ Court, Ex parte Polemis [1974] 2 All ER 1219, 1223.

 32   Ashton v Qube Bulk Pty Ltd [2017] FWCFB 134, [27], citing Re Coldham; Ex parte Municipal Officers Association of Australia [1989] HCA 13.

 33   Ex parte Municipal Officers Association of Australia [1989] HCA 13.

 34   Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059, [29] (Mt Arthur Coal).

 35   Ibid.

 36   Respondent’s Form F3 in this matter at s3.2, paragraph 4, filed with the Fair Work Commission and the Applicant on 13 April 2022.

 37   Ibid.

 38   Deeney v Patrick Projects Pty Ltd [2017] FWCFB 6515, [20]; Oratis v Melbourne Business School [2014] FWCFB 3869, [8]; Oratis v Melbourne Business School Ltd [2014] FWC 7994. Melbourne Business School Ltd [2014] FWC 7994.