[2022] FWC 2027

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009 s.394—Unfair dismissal

Linda Exeter-Grant
v
Village Roadshow Theme Parks Pty Ltd
(U2022/4893)

COMMISSIONER SPENCER

BRISBANE, 17 NOVEMBER 2022

Application for an unfair dismissal remedy – similar recent decisions for same Employer – Employee’s failure to comply with Public Health Order requiring proof of vaccination – valid reason –Applicant argued termination not effective at time Public Health Order lifted, dismissal upheld – Application dismissed

INTRODUCTION

[1] Ms Linda Exeter-Grant (the Applicant) lodged an Application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act).

[2] The Applicant stated that she was dismissed from her employment with Village Roadshow Theme Parks Pty Ltd (the Respondent/Employer/VRTP) on 17 March 2022, due to not providing evidence of vaccination against Covid-19. She argued that her dismissal was harsh, unjust, or unreasonable.

[3] The Respondent has its headquarters on the Gold Coast, where it operates a series of theme parks: Warner Bros. Movie World, Wet ‘n’ Wild Gold Coast, Australian Outback Spectacular, Paradise Country, Sea World Resort and Waterpark, Village Roadshow Studios, and Topgolf Gold Coast. The Applicant was employed as a lifeguard at Wet ‘n’ Wild.

[4] The Respondent submitted that the Application for an unfair dismissal remedy should be dismissed, on the basis that the dismissal of the Applicant was not unfair within the meaning of s.385 of the Act, the Respondent had a valid reason for the termination, and had provided a fair procedure.

[5] The Applicant was represented by Mr Alex Smith. Mr Smith has represented a series of Applicants before the Commission in unfair dismissal applications involving vaccination matters. He does not appear as a paid agent. The Respondent was granted permission to be legally represented, pursuant to s.596(2)(a) of the Act, by Mr Troy Spence of counsel, instructed by Mr Alex Aspromourgos, Executive Director of Mapien. The matter was considered to have some complexity, and representation would assist with the efficient presentation of the material before the Commission.

[6] In accordance with s.396 of the Act, it must be determined:

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

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

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

[7] I am satisfied that the Application was made within the 21-day period required by s.394(2) of the Act. Further, the Applicant was a person protected in terms of the unfair dismissal provisions and the dismissal was not a genuine redundancy. Finally, I am satisfied that the Respondent is not a small business employer and therefore the Small Business Fair Dismissal Code does not apply.

BACKGROUND

[8] The Applicant commenced employment with the Respondent on 17 December 2017, and worked as lifeguard on a part-time basis at the Wet ‘n’ Wild theme park until the termination of her employment.

[9] This Application shares common ground with other recently determined unfair dismissal Applications of employees of the same Employer. The Respondent’s termination of employment of Jodi Mills, Cristian Martinez Gomez, Helen Kaslar, and Michelle Tisdell (in similar circumstances to the current Applicant), were also made on the same basis as the Applicants’ failure to demonstrate, to the Employer, compliance with the Queensland Government’s requirement that all persons on theme park property were vaccinated in accordance with the Public Health Direction, and compliance with the Employer’s reasonable and lawful direction to be vaccinated. The Applicant distinguished her matter from those in Mills in that, contrary to those employees, she had not stated she would never take the vaccine, but was vaccine hesitant.

[10] These other matters referred to are set out in the decision of Mills & Ors v Village Roadshow Theme Parks Pty Ltd. 1 The decision relating to the dismissal of the four employees was released after the Hearing in this current matter. The decision was referred to the parties with Directions for further submissions. The additional issue in the current matter is that the Applicant has argued that the lifting of the Public Health Direction coincided with the end of the notice period, and therefore the termination should be dismissed. This matter was relied on by the Applicant at the Hearing and the parties were also further directed to address this issue.

[11] The letter of termination in relation to Ms Exeter-Grant is dated 17 March 2022 (Termination Letter). During cross-examination, the Applicant confirmed that she knew the decision to terminate her employment was made on 17 March 2022, and that the employment had ceased. The Applicant was afforded four weeks’ notice to be served on unpaid leave. 2

[12] The Termination Letter is set out below:

“Dear Linda,

NOTICE OF TERMINATION

I refer to our previous conversations in relation to your compliance with the Queensland Government’s Public Health and Social Measures linked to the vaccination status Direction (the ‘Vaccination Direction’) and VRTP’s lawful and reasonable instruction to be vaccinated in line with this Government mandate.

Our communication to you commenced in September 2021 and included:

1. 28/09/2021 – Survey sent to team members to enquire on their vaccination status.

2. 05/11/2021 – Survey sent to team members requesting their vaccination status.

3. 09/11/2021 – Email regarding Government’s Direction in regard to their mandate.

4. 15/11/2021 – Email requesting you to update VRTP on vaccination status by 01/12/2021.

5. 24/11/2021 – Email reminder to show vaccination proof by 01/12/2021.

6. 08/12/2021 – Email final reminder if no proof shown, advice of removal from roster from 17/12/2021.

7. 21/01/2022 – Email sent – Show Cause Letter.

8. 07/02/2022 – Email sent – Granting extended leave continuing to 17 March 2022.

In our communication, you were provided with many opportunities to show cause as to why you should not face disciplinary action which may include termination of employment because of your:

1. Failure to comply with the Vaccination Direction;

2. Failure to comply with a reasonable and lawful direction; and

3. Inability to work because of the above.

Having considered all of the circumstances, we have determined that you have failed to provide any satisfactory reason why your employment should not be terminated. You have failed to comply with the Vaccination Direction and our reasonable and lawful direction. This means that you are unable to enter our premises, cannot perform your usual duties or be rostered to work.

In these circumstances, we have determined to cease your employment. Provided below is the notice period as listed under Fair Work. Your termination date is effective as per the relevant notice period based on your years of service. You will remain on leave without pay during this period. All outstanding entitlements will be paid upon termination in accordance with your commencement date.

Period of continuous service	Minimum notice period
1 YEAR OR LESS	1 week
More than 1 year – 3 years	2 weeks
More than 3 years – 5 years	3 weeks
More than 5 years	4 weeks

Employees over 45 years old who have completed at least 2 years of service when they receive notice are given an additional week of notice.

As you are aware, you are unable to enter the property while you remain unvaccinated. Therefore, we request that you attend to the return of your uniform and other company property by delivering it to the Security Office at Sea World or Warner Bros. Movie World at your earliest convenience and in compliance with the Vaccination Direction.

You will also have 4 weeks to access your ESS portal should you wish to print any payslips or previous Group Certificates.

You are invited to apply for future roles with the VRTP should the Public Health and Social Measures restrictions be lifted, or you elect to become vaccinated.

We wish you well in your future endeavours.

Yours sincerely

Ann-Maree O’Neill

Head of People & Culture

[13] The Applicant’s wage rate at the time of the dismissal was $23.73 per hour. During the 12-month period immediately prior to 17 December 2021, the Applicant had worked, on average, 22 hours per week with an average weekly wage of $726.41. The Applicant was employed under the Village Roadshow Theme Parks Enterprise Agreement 2016-2018 (the Agreement).

[14] The Applicant recognised the reasons for the termination of her employment, being the failure to comply with the Public Health Direction and non-compliance with the Employer’s direction to employees to demonstrate evidence of vaccination to attend the site to work.

[15] The Applicant stated that she had sent emails on a number of occasions stating her concerns about the safety and efficacy of the vaccine, seeking further information on this from the Employer. She stated her questions were ignored and never answered, so she could not make an informed decision to participate in, what she set out to be, an experimental medical procedure (the Covid vaccine) without these answers.

[16] The Applicant stated she was never counselled nor warned by the Employer for any performance deficiencies or conduct issues. In fact, she stated she received positive feedback and a nomination for a Team Member for the Quarter Award for April, May and June 2019, and she received a certificate and verbal confirmation from her supervisors as a valued employee. She further considered that her dismissal was unfair because her contract of employment did not include a vaccination clause, and she had never signed an amendment to the contract. Furthermore, she stated that she had never advised the Employer that she did not want to be vaccinated. She stated that she was concerned about the potential effects of the vaccine, and enquired whether the Employer would confirm, in writing, that they would accept legal responsibility for any harm, injury, or death she suffered as a result of having the Covid vaccine. She stated that she never received a response from the Employer to this request. The Employer submitted they relied on the Public Health Direction, per the Chief Health Officer, that had taken into account these health and vaccine related matters.

[17] The Termination Letter indicated that the Employer sent eight pieces of communication between September 2021 and 7 February 2022 (the correspondence on 7 February 2022 being correspondence which granted the Applicant extended leave until 17 March 2022 due to her unvaccinated status.)

[18] The Show Cause correspondence to the Applicant queried why the Applicant had chosen not to comply with the Public Health Direction. The Employer had set out the Respondent’s specific obligations with regard to the Public Health Direction for vaccination in the pandemic. The Respondent had set these out via a series of communications to the employees, and the particular obligations for their business.

[19] The Employer recorded, in the correspondence of 20 January 2022 to the Applicant, that, “during the recent communication with your manager, you had made it clear that you will not be vaccinated and do not intend to comply with the vaccination direction to get vaccinated.” The Employer’s correspondence indicated that the Applicant’s response had been considered, and they had determined that the reasons for non-compliance with a vaccination directive were unsatisfactory.

[20] The purpose of the communication was to set out to the Applicant the requirement for her to show cause, as to why she should not face disciplinary action (which may include termination of employment). This was due to the Applicant’s failure to comply with the vaccination direction, failure to comply with a reasonable and lawful direction, and an inability for the Employer to roster her, because of her unvaccinated status.

[21] The Employer set out that VRTP and the Applicant were bound by the public health and social measures, linked to the vaccination status requirements of the Public Health Direction. The Employer set out that the Applicant did not comply with the obligations placed on her by the Public Health Direction, and did not provide evidence to the Respondent as required of her COVID-19 vaccination status, or a medical contraindication by the due date.

[22] Ms O’Neill, Head of People and Culture for the Respondent, provided evidence that the Employer had undertaken a detailed process of communicating with employees about the COVID-19 vaccination requirements since September 2021. In particular, she stated that on 9 November 2021, the Employer sent an email to all employees advising that the Queensland Government had released the Public Health Direction, which required various employees, including employees working in theme parks, to be fully vaccinated when 80% of the adult population was vaccinated, which was predicted to be by 17 December 2021.

[23] From that time, only fully vaccinated employees would be permitted to enter the VRTP properties. All employees were required to complete their vaccination survey and to provide copies of the certificates of vaccination.

[24] The requirements were followed up on 15 November 2021, with the Employer sending an email to all employees, requesting that they provide their vaccination status to People and Culture by 1 December 2021. The Employer further stated that as a business, as per the Queensland Government’s restrictions, they would not be able to roster team members who have not provided proof of the vaccination to the People and Culture team by that date.

[25] On 15 November 2021, the Applicant again provided an email outlining her concerns in relation to privacy and the enforcement of the Public Health Direction. On 17 November 2021, the Employer responded to the Applicant’s letter and outlined that the Employer intended to comply with the directions imposed on them by the Queensland Government, which required all staff and visitors to be fully vaccinated. Further, the Employer stated that if employees were not fully vaccinated by 17 December 2021, they would not be allowed on site at any of the Employer’s properties, to perform the requirements of their role from 17 December 2021 until further notice. The Employer emphasised that it considered this direction to be a lawful and reasonable direction, and that if evidence of vaccination was not provided on a double vaccinated basis, the Employee would be classified as unvaccinated and be suspended without pay from 17 December 2021.

[26] Via further communication on 8 December 2021, it was confirmed that if any employee had not provided their vaccination status, they would not receive shifts from 17 December 2021. The Applicant responded to this correspondence, seeking further information in relation to the questions contained in her 15 November 2021 letter. On 20 January 2022, the Applicant was sent a letter requesting that she show cause as to why she should not face disciplinary action, in response to acknowledging compliance with the Public Health Direction, and a lawful and reasonable instruction given by the Employer in relation to the vaccination (Show Cause Letter). The Employer also submitted that their prior correspondence set out the justification for the termination, in relation to the vaccination requirement.

[27] The Applicant provided a response to the Show Cause Letter, that she should not face disciplinary action given her responses, and set out:

“Hi Ann-Maree

I received your letter below via Chloe and would like to point out to you the following statement is incorrect:

During the recent communication with your manager, you made it clear you will not be vaccinated and do not intend to comply with the Vaccination Direction and direction to get vaccinated.

I am still awaiting response from VRTP with regards to my concerns about the vaccine, so can you please answer the below:

1) Can you please advise the specific Law under which Village Road Show requires employees to provide proof of Vaccination by 1 December 2021, in order to be allocated rostered work duties. Does this Law comply with the Biosecurity Act 2015 (Cth) (the BSA) is a Commonwealth Act. Section 109 of the Australian Constitution which states:

“When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid”.

(2) Can you please confirm that in requiring Village Road Show employees to be Covid vaccinated, in order to carry out work duties, you are legally complying with:

• The Australian Privacy Act 1988 Section 94H, http://grco.de/privacyact

• The Australian Biosecurity Act Sect 60, https://qrco.de/Sect60Biosec

• The Australian Biosecurity Act Sect 61, https://grco.de/Sect61 Biosee

(3) The Australian Government has stated ‘Covid Vaccinations will be voluntary’. Can you please advise the Laws under which Village Road Show is mandating employees (including myself) to be Covid Vaccinated as a requirement of remaining employed with allocated rostered duties? Does this Law contradict the Commonwealth Act. Section 109 of the Australian Constitution which states:

“When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid”.

With regard to the Covid Vaccination:

(4) Can you please confirm that Covid Vaccines are considered SAFE and are FULLY APPROVED by the TGA, and are NOT in any way, shape or form, still considered experimental, and therefore have no need of further review to determine Safety and Efficacy in Australia, by the TGA or any other relevant organisations.

(5) Can you please provide a complete list of all individual contents in each available Covid Vaccine and provide Safety Data Sheets for each individual content, also confirming that ALL individual contents of the Covid Vaccunations are historically PROVEN TO BE SAFE and NON-TOXIC to a human being.

(6) Can you please fully advise me of ALL the adverse reactions associated with this Covid vaccine since its introduction.

(7) Can you please confirm that being fully Covid Vaccinated WILL effectively prevent me from spreading the Covid Virus into the workplace and/or community.

(8) Can you please confirm that being fully Covid Vaccinated WILL effectively protect me from serious level of infection that could lead to my hospitalisation or death.

(9) Can you please provide independent study website links comparing risk of contracting Covid 19 and risk of fatality, after first dose of Covid Vaccination, as compared to having NO Covid vaccination.

(10) Can you please confirm that in being Covid Vaccinated, I am NOT being exposed to any form of Gene Therapy, that my RNA and DNA will not be altered either temporarily or permanently.

(11) Can you please confirm that my Immune System’s current ability to repair damaged DNA, in the weeks, months and years ahead, will not be damaged or impaired in any way, as a result of having been Covid Vaccinated.

(12) Can you please confirm that in the weeks, months and years after being Covid Vaccinated, I will NOT EXPERIENCE Antibody-Dependent Enhancement (ADE), or any form of an Enhanced Immune System response, that could potentially cause organ/s failure or death, when I am exposed to Non-Covid viruses and other pathogens, due to changes in my Immune System function, from being Covid Vaccinated.

(13) Can you please confirm that Covid Vaccinations will NOT CAUSE me any immediate or delayed adverse reactions in the months following injections including but not limited to: Blood Clots, Tinnitus, Heart Attack, Stroke, Sudden Impairment of Memory/Cognitive Function, Guillian-Barre Syndrome, Organ Failure or Death?

As Village Road Show is mandating I be Covid Vaccinated in order to continue being allocated rostered work as an employee, can you please confirm in writing that Village Road show accepts legal responsibility for any harm, injury or death I suffer, as a result of having a Covid Vaccine?

Once I have received the above-requested information in full and I am satisfied that there is NO threat to my heath, as per your mandate, I will be happy to be covid vaccinated, but with one condition – namely that:

An authorised member of Village Road Show personnel takes legal responsibility, confirming in writing that I will not be harmed, will not suffer adverse effects, or die, as a result of having a Covid Vaccine.

I would appreciate your urgent attention and response as VRTP has chosen not to respond to any of my previous emails which I requested a response for. I emailed yourself personally Ann-Marie on 16-Nov-21 and 13-Dec-21 of which you still haven’t responded, instead have chosen to stand me down from my rostered shifts with no remuneration. As a result of that decision by VRTP, myself and my family are under a huge financial strain and are looking at losing our house, which has also deeply affected my mental health and led to depression. You mentioned your concern is the health of your employees and customers, but it seems you are not concerned about my health affects from VRTP stopping my income because you won’t answer my questions or concerns regarding the injection you are trying to coerce me to into taking. That is bullying and is incredibly disappointing as I have always enjoyed working for VRTP and felt appreciated as a employee up until now. I am also very disappointed as I know this is a VRTP decision, as the Queensland Government mandate is only a recommendation and not a law, so VRTP choose whether they are enforcing it or not.

Ann-Maree, I will appreciate a response from you by 5pm Wednesday, January 26, 2022.

Regards

Linda Exeter-Grant”

SUMMARY OF THE EVIDENCE AND SUBMISSIONS

[28] In support of her application for an unfair dismissal remedy, the Applicant, with her representative, provided written submissions, with annexures, which sought to question the legality of the Public Health Direction, the safety of the vaccine, and the Respondent’s instructions to provide proof of vaccination.

[29] The Applicant alleged that her dismissal was unfair because she:

a) Was never counselled or warned about poor performance and received positive feedback on numerous occasions;

b) Never refused to receive the COVID-19 vaccine, but was concerned about the safety and efficacy of the vaccine, and whether the Respondent would accept liability in the case of death, injury or illness as a result of the vaccine;

c) Sent several emails to the Respondent raising her concerns about the safety and efficacy of the vaccine, which the Applicant alleged were not responded to; and

d) As a consequence of the Respondent’s failure to respond to her concerns, the Applicant was unable to make an informed decision about whether to receive the COVID-19 vaccination.

[30] The Applicant submitted that the Respondent’s actions were unlawful, illegal and unreasonable, therefore deeming these acts as coercion with threat and menace, civil conscription, and economic pressure, as upheld by the High Court which is vitiated.

[31] The Applicant submitted that the process by which the Respondent implemented these actions was harassing, bullying, harsh, discriminatory, illegal, and thereby making them ultra vires and void ab initio.

[32] The Applicant submitted that at no time did she state that she refused to follow the direction to be vaccinated. Instead, the Applicant submits that she emailed VRTP on numerous occasions, requesting information and also requesting long-term data that, on what she submits was an ‘experimental medical procedure that they were enforcing,’ proved the vaccine was safe and effective. The Applicant submits she never received a reply addressing any of her concerns, or a reply informing her that the Respondent could not provide her with evidence that vaccine was safe and effective. For those reasons, the Applicant submitted that the direction to be vaccinated was not reasonable or lawful.

[33] In considering the evidence in the matter, Ms O’Neill stated that, as part of her duties, she was directly involved in compliance with the COVID-19 public health laws and procedures required to be implemented by the Employer.

[34] Ms O’Neill stated that the Applicant had undertaken an online induction, which included content from the Employer’s OH&S Policy and Code of Conduct. The induction was repeated on 29 June 2020, when the Employer reopened following a period of closure due to COVID-19. This further induction included an acknowledgement that the Applicant had read and understood the OH&S Policy and Code of Conduct. The Code of Conduct included, at page 13, a work ethic/personal conduct statement that set out that team members were required to follow all reasonable directions, and that deliberately disobeying a reasonable and lawful direction would not be tolerated, and would result in disciplinary action.

[35] In her evidence, Ms O’Neill set out the significant impact of the COVID-19 pandemic on VRTP. She stated that COVID-19 resulted in a fast escalation of disruption to the business. The theme parks experienced a reduction in visitation, particularly from international tourist markets, along with reduced forward bookings and lower annual pass sales to the domestic market. All of this made trading challenging, and it was difficult to predict the overall consequence. She stated that the business took decisive action to mitigate the significant adverse impact of COVID-19 on the business, and cost reduction strategies were implemented to reduce the potential impact on the VRTP’s earnings and cash flows. She stated there was continual discussions with industry groups, and the federal, state, and local levels of government developed action plans and support.

[36] She submitted that a series of cost saving initiatives were implemented as follows:

“• Senior executives salaries reduced immediately

• Senior executive bonuses were zero

• I. Freeze on all non-essential uncommitted capital expenditure

• Freeze on all non-essential international and domestic travel

• II. Freeze on all non-essential recruitment, consulting and advisory work

• All employees were asked to take leave to reduce employee costs” 3

[37] Ms O’Neill included, as an attachment to her statement, an update provided by the Respondent’s board dealing with the pandemic.

[38] Her evidence was that the safety and well-being of their employees and patrons was the first priority, and that they continually follow guidelines provided by government and health authorities, despite the adverse impact on the profitability of the business. As a consequence of the impact of COVID-19, the Group announced the temporary closure of its Gold Coast theme parks: Warner Bros. Movie World, Sea World, Wet ‘n’ Wild, and Paradise Country. In addition, Topgolf was also temporarily closed. Sea World Resort, as an accommodation provider, remained open at that time.

[39] VRTP considered that the closing of these businesses was the best approach at the time to protect the health and safety of their patrons, employees, and the community, in light of the continued spread of the coronavirus and the Government’s initiatives to address that spread. Further action was taken by the group as follows:

“VRTP considered that closing these businesses was the best approach to protect the health and safety of our patrons, employees and the community in light of the continued spread of coronavirus and Government initiatives to address that spread.

VRTP considered contingency plans for the closures, which included employee stand downs, and placing the facilities in a maintenance only position while ensuring the welfare of our animals continued at our usual highest standards.

VRTP took action to mitigate the significant adverse impact of COVID-19 on our businesses and continued to implement further cost reductions throughout the businesses. This included, but was not limited to:

a. working with suppliers to reduce expenses;

b. deferral of Government taxes where possible;

c. use of leave entitlements by all employees across the business and further stand downs where appropriate. Only employees in business-critical functions remained working.

d. expenditure, including capital expenditure, was ceased or postponed, and reduced to minimum essential levels.” 4

[40] Ms O’Neill stated that the Employer reopened the properties once it was safe and prudent to do so, as the primary focus was to get through the pandemic and to emerge at the other end able to support the many thousands of employees that they have across the business.

[41] The Employer continued to follow Government updates regarding COVID-19, and the business was temporarily closed until at least 30 April 2021. Throughout the closure, the Employer engaged with team members and continued to support them, including providing access to their accrued leave entitlements and, for the team members who had exhausted their leave entitlements during the standdown, they allowed them to go into 10 days negative leave.

[42] The Employer also reached out to Aldi and Woolworths regarding employment opportunities for any of their members who were on stand down, and allowed them to apply for positions without resigning from their employment with the Respondent.

[43] Ms O’Neill’s evidence was that since COVID-19 emerged, the Employer had worked closely with Government and leading experts to ensure that at all times it had adopted the highest level of health and safety practice, and that they were continuing to work actively with all levels of government during that difficult time.

[44] Ms O’Neill stated that the Employer welcomed the Federal Government’s JobKeeper program, and moved to implement it as soon as it became available.

[45] She further set out that the Employer’s properties were significantly impacted by border closures and government travel restrictions, and as a result became reliant on the local market when allowed to trade.

[46] Ms O’Neill stated that from around mid-2021, the Group began to fully engage with employees to determine their COVID-19 vaccination status, as this was necessary in order for the group to better understand and manage the COVID-19 risk profile.

[47] Ms O’Neill stated:

“On 28 September 2021 VRTP undertook a confidential survey of employee on their COVID-19 vaccination status and intentions. This survey was completed by 1,408 employees and showed that:-

• 38% were fully vaccinated;

• III. 64% had at least one vaccination;

• 81% with one vaccination already or planning to be vaccinated;

• IV. 12% were not willing or able to be vaccinated;

• 7% would not disclose their vaccination status;

• V. 44% preferred to work with vaccinated colleagues.

On 5 November 2021 VRTP undertook a further confidential survey of employee on their COVID-19 vaccination status and intentions. This survey was completed by 2,126 employees and showed that:

• 66% were fully vaccinated;

• VI. 17% had at least one vaccination and planned to have a second vaccination;

• 7% were not yet vaccinated but had an appointment to be vaccinated;

• VII. 3% were not vaccinated and do not intend to be vaccinated due to medical reasons;

• 7% did not intend to be vaccinated.” 5

[48] On 5 November 2021, the Respondent conducted a further confidential survey of employees on their COVID-19 vaccination status and intentions.

[49] The Respondent’s Environmental Health/Safety & Occupational Health and Safety (OHS) Team corresponded with the Queensland Government and identified that the Respondent’s venues were classified as high risk, and capable of producing a ‘super spreader’ event, which had to be managed appropriately.

[50] The Respondent undertook a consultation process with employees. A range of these emails are set out at the commencement of this decision. On 9 November 2021, the Queensland Government released its Public Health and Social Measures COVID Vaccine Plan (the COVID Vaccine Plan), which introduced a range of public health measures, including the Public Health Direction. This plan provided that all theme park employees and guests would be required to be fully vaccinated against COVID-19 when 80% of the adult population of Queensland was double vaccinated. The plan predicted this stage of the COVID Vaccine Plan would occur on or about 17 December 2021.

[51] Following this announcement, the Respondent’s Environmental Health/Safety & OHS Team liaised with Queensland Health’s Gold Coast Public Health Unit on the implementation of the Public Health Plan, and what amounted to a medical contraindication, which precluded the requirement to be vaccinated.

[52] On 9 November 2021, the Respondent sent an email to all employees, including the Applicant, advising that the Queensland Government’s COVID Vaccine Plan required all theme park employees to be fully vaccinated, in addition to posting a message to the Respondent’s Team Member Facebook page sharing the same.

[53] On 15 November, the Respondent sent an email to all employees, including the Applicant, providing a rostering update and employees requesting that they provide their vaccination status to the People & Culture Team by 1 December 2021.

[54] On 15 November 2021, the Applicant sent a letter to Clark Kirby, CEO of the Respondent, outlining several questions challenging the legality of the Respondent’s request to provide her vaccination status to her employer.

[55] On 17 November 2021, the Respondent replied to the Applicant’s letter dated 17 November 2021, confirming that it was complying with obligations imposed by the Queensland Government.

[56] On 25 November 2021, the Respondent sent an email to all employees, including the Applicant, reminding them to provide their vaccination status to the People & Culture Team by 1 December 2021.

[57] On 24 November 2021, the Respondent sent an email to all employees, including the Applicant, further reminding them to provide their vaccination status to the People & Culture Team by 1 December 2021.

[58] On 8 December 2021, the Respondent sent an email to all employees, including the Applicant, who had failed to provide details of their vaccination status. The Respondent advised that the employees could not be offered shifts from 17 December 2021, in line with the COVID Vaccine Plan. The email further stated that “if Government enforced restrictions continue beyond January…other action may be considered including termination of your employment.”

[59] On 13 December 2021, the Applicant sent an email to the Respondent enclosing a letter that outlined several questions challenging the legality of the Respondent’s request to provide her vaccination status to them.

[60] On 16 December 2021, the Applicant worked her last rostered shift, and subsequently took paid leave until 9 March 2022.

[61] On 17 December 2021, the Applicant sent an email following up on her previous email sent on 13 December 2021 and requesting a response to her letter.

[62] On 17 December 2021, in accordance with the COVID Vaccine Plan, the Queensland Government’s Public Health Direction came into effect.

[63] Part 1 of the Public Health Direction set out the vaccination entry requirements for businesses, including the Respondent. Clause 8 provided:

“Vaccination Entry Requirements - Business, Activity or Undertaking in Schedule 1

8. A person may only enter and remain at a business, activity or undertaking where they:

a. comply with the vaccination entry requirements relating to the business, activity or undertaking and provide proof of COVID-19 vaccination prior to entering the business, activity or undertaking or prior to being served or upon request; or

b. are unvaccinated and provide evidence of a medical contraindication prior to entering the business, activity or undertaking or prior to being served or upon request; or

c. are unvaccinated and provide evidence of being a COVID-19 vaccine trial participant or a medical certificate or a letter from a medical practitioner, certifying that the person is currently taking part in a COVID-19 vaccine trial

Note: a person who enters a venue to access a COVID-19 vaccination at a vaccination centre within the business, activity or undertaking must only enter that part of the venue that is the vaccination centre and must not remain any longer than required, unless otherwise permitted to do so under this Direction.”

[64] Clause 9 provided:

“9. A person who owns, controls or operates a business, activity or undertaking listed in Schedule 1 in Queensland whether operating at a private residence, commercial premises or in a public space, must when operating the business, activity or undertaking:

a. comply with the vaccination entry requirements for the business, activity or undertaking; and

b. take reasonable steps to ensure staff and visitors comply with the vaccination entry requirements for the business, activity or undertaking; and

c. clearly display the requirement for staff and visitors to be fully vaccinated and provide evidence of COVID-19 vaccination or of a medical contraindication; and

d. request and sight proof of COVID-19 vaccination or evidence of a medical contraindication required under Part 2; and

e. request and sight evidence that the person is a COVID-19 vaccine trial participant.

f. for a business, activity or undertaking listed in Schedule 1A, where vaccination is a requirement of entry to the business, activity or undertaking, clearly display the Check in Qld app QR code at each entry to the business that is used by staff or visitors

g. collect contact information required under Part 3 where required in Schedule 1; and

h. comply with any COVID-19 density limits for the business, activity or undertaking; and

i. operate in accordance with the COVID-19 checklist or COVID safe site plan, where required.

Note: the requirements of this public health direction apply to premises or a public space only to the extent that the business, activity or undertaking is conducted at the premises or public space. Where a business, activity or undertaking is conducted from a private residence, for example, the requirements of this public health direction only apply to the part of the private residence used by or for the business, activity or undertaking.”

[65] Part 2 of the Public Health Direction set out compliance with vaccination requirements. Clause 18 provided:

“Obligations on staff

18. From 17 December 2021 - staff who enter, work in or provide services at a business, activity or undertaking where vaccination is a requirement of entry or affects occupant density requirements must, before starting their next shift on or after 17 December 2021, provide proof of COVID-19 vaccination, or of a medical contraindication, or a medical certificate or letter from a medical practitioner certifying that the person is currently taking part in a Covid-19 vaccine trial (as required under paragraph 8(c) to their employer.

Note: an employee only needs to provide proof of COVID-19 vaccination, or of a medical contraindication, or a medical certificate or letter from a medical practitioner certifying that the person is currently taking part in a Covid-19 vaccine trial (as required under paragraph 8(c) to their employer once unless their vaccination status or requirements for COVID-19 vaccination change.”

[66] Schedule 1 – Business, activities and undertakings, of the Public Health Direction set out the relevant requirements for the Respondent. In particular, this Government Direction required, for work in theme parks, employees to be fully vaccinated.

[67] Part 5 of the Public Health Direction stated that:

“A person to whom the direction applies commits an offence if the person fails, without reasonable excuse, to comply with the direction.

Section 362D of the Public Health Act 2005 (Qld) provides:

Failure to comply with public health directions

A person to whom a public health direction applies must comply with the direction unless the person has a reasonable excuse.

Maximum penalty—100 penalty units or 6 months imprisonment.”

[68] The Respondent submitted that it was bound by the Public Health Direction, as it specifically applied to theme park operators in Queensland, and in turn their employees were also bound.

[69] On 4 January 2022, the Applicant provided to the Respondent a document presented as evidence of a medical exemption. The Respondent submitted that because the document was not in the form prescribed by the Public Heath Direction, they were unable to accept it.

[70] Between 6 January 2022 and 10 January 2022, the Respondent corresponded with the Applicant on a number of occasions regarding her alleged vaccination exemption. The Respondent advised the Applicant that it was not a valid exemption as prescribed by the Public Heath Direction and provided her with the details of what was required for a valid medical exemption.

[71] The document was not a legitimate vaccination exemption and was not recognised as such.

[72] On 20 January 2022, the Respondent sent a Show Cause Letter to the Applicant providing the opportunity to set out why she should not face disciplinary action for failing to comply with the Public Health Direction and the lawful and reasonable instruction given by the Respondent.

[73] The Respondent did not receive a response to the Show Cause matters from the Applicant.

[74] On 22 January 2022, the Applicant emailed the Respondent’s People and Culture and OHS teams, ignoring the Government’s Public Health Direction, and again requesting a risk assessment and raising concerns relating to receiving the vaccine.

[75] On 7 February 2022, the Respondent sent an email to the Applicant providing a further opportunity to respond to the Show Cause Letter dated 20 January 2022. This correspondence also stated that the Respondent would not agree to a further extension to respond after 17 March 2022. The Respondent advised that if the Applicant continued to fail to comply with the Public Health Direction and the lawful and reasonable instruction given by the Respondent, her employment would be terminated.

[76] The Respondent states it did not receive a response from the Applicant. On 1 March 2022, the Respondent sent an email to the Applicant enquiring whether her vaccination status had changed, and if so, seeking confirmation whether she would be able to return to the roster from 18 March 2022. The email reiterated that if she continued to fail to comply with the Public Health Direction and the lawful and reasonable instruction requiring vaccination given by the Respondent, her employment would be terminated.

[77] On 2 March 2022, a response was received from the Applicant requesting a response to her correspondence sent on 13 December 2021 and 17 December 2021.

[78] On 17 March 2022, the Applicant was notified in writing that her employment was terminated as a consequence of her:

a) non-compliance with the Public Health Direction;

b) non-compliance with the Respondent’s instruction to be vaccinated in line with the Public Health Direction; and

c) inability to work because of the issues raised above (at a) and b)).

[79] In line with notice requirements, the Applicant was given four weeks’ notice of her termination, which she continued on her unpaid leave.

[80] The Respondent submitted that its direction to the Applicant was both lawful and reasonable in circumstances where both parties were required to comply with the Public Health Direction.

[81] The Respondent submitted that the Applicant was notified on several occasions of the requirement to comply with the Public Health Direction, and was provided the opportunity to set out why she should not face disciplinary action for failing to comply with the Public Health Direction, and the lawful and reasonable instruction given by the Respondent.

[82] For the reasons set out above, the Respondent submitted there was a valid reason for dismissing the Applicant from her employment, and that the process followed in deciding to terminate the employment of the Applicant was procedurally fair.

[83] The Applicant considered that the dismissal was unfair, as the Public Health Direction was lifted just prior to the time the notice period expired.

CONSIDERATION

[84] Section 387 of the Act provides that, in considering whether a dismissal was harsh, unjust or unreasonable, the Commission 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.

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct

Lawful and reasonable direction

[85] The failure to follow a vaccination policy has, in a number of decisions, been found to be a failure to follow a lawful and reasonable direction, and therefore a valid reason for termination. 6 In Roman v Mercy Hospital Victoria Ltd, the Full Bench found:

“[21] The core findings in the decision under appeal are that the relevant effect of the Directions was that Mercy could not lawfully allow Ms Roman to attend her workplace at the Werribee hospital on or after 15 October 2021 and that, as a consequence, she could not from that time perform her job. This made inevitable, we consider, a finding under s 387 of the FW Act that there was a valid reason for Ms Roman’s dismissal relating to her capacity. It also supported the Deputy President’s findings that Mercy’s direction to Ms Roman to provide advice as to her vaccination status was lawful and reasonable, since it concerned Ms Roman’s capacity to continue to perform her job, and that Ms Roman’s failure to comply with this direction constituted a further valid reason for her dismissal relating to her conduct. Additionally, these core findings foreclosed any real possibility that Ms Roman’s dismissal could be found to be harsh, notwithstanding the existence of a valid reason for dismissal because, from 15 October 2021, no reasonable alternative to the termination of her employment was capable of identification.” 7

[86] As considered in the Roman case, Ms Roman (similar to the Applicant’s circumstances in the current matter) was aware that she could not to continue to work for the Employer if she did not comply with the vaccination policy. It was upheld on appeal that, in circumstances where the employee exercises their private right to make a particular personal choice, those choices have inevitable implications for her employment where they are inconsistent with the continuation of her contract of employment, as was the case with Ms Exeter-Grant.

[87] Further, in Tween v Qantas, 8 reference was made to the applicable medical evidence and the context of the industry, similar to the circumstances of the Applicant’s employment. It was determined that the direction to be vaccinated in accordance with the Public Health Direction and policy was a reasonable direction:

“[103] The Vaccination Policy was one of many control measures applied by Qantas in response to the evolving challenges of the COVID-19 pandemic. It is somewhat self-evident that Qantas’ business had been devastated by COVID-19 in 2020 and 2021, and by the middle of 2021 it was making plans to ramp up its operation. The introduction of the Vaccination Policy was one significant step in the process of returning to flying.

[104] The uncontroverted and uncontroversial evidence of Dr Prasad included the following:

“The effectiveness of the vaccines vary in relation to the Delta and Omicron variants of the virus. Vaccination affords a high degree of protection against transmission hospitalisation and death from the Delta variant. The degree of effectiveness against transmission is generally lower with Omicron compared to Delta. As Omicron is a more transmissible variant than Delta, vaccination has a lesser effect on blocking transmission of the Omicron variant between persons, but vaccination still provides significant protection against hospitalisation and death from Omicron.

Vaccination against COVID-19 is the most effective and efficient control measure available to prevent the serious health consequences of the virus. Over the course of the Pandemic, unvaccinated adults, in comparison to vaccinated adults, have a higher risk of becoming infected with the virus, transmitting the virus and suffering serious health consequences, including death.In a fully susceptible (unvaccinated and uninfected) population, one person with Delta would, on average, infect five other people, while one person with Omicron could transmit the virus to about 20 others. In comparison, vaccinations reduce onward transmission by approximately 45 to 65% for the Delta strain. Definitive data is still awaited for the Omicron strain, but early data suggests that vaccination is less effective in preventing onward transmission of Omicron.

A person who is vaccinated against COVID-19, in comparison to a person who is not vaccinated, among other things:

(a) is less likely to become infected with COVID-19, depending on the strain;

(b) is less likely to transmit COVID-19 to others, depending on the strain; and

As a comparison of unvaccinated and vaccinated populations, the US data published as at 29 January 2022 demonstrated a death rate of 15.3 per 100,000 people for the unvaccinated, and a death rate of 2.3 per 100,000 for the fully vaccinated, as well as 0.7 per 100,000 for the boostered population. Local data for unvaccinated population compared with the vaccinated is not available.”

[105] In all the circumstances I find that the direction contained within the Vaccination Policy was a reasonable direction. 9

[88] In Tween, it was determined that the Applicant was not unfairly dismissed for failing to be vaccinated, given “the seriousness of the global pandemic, the devastation of Qantas’ business, the measures taken by Qantas to return to normal operations, and the objectively and medically sound rationale that underpins the Vaccination Policy.” 10 Comparatively, the Respondent’s business had been subject to the Public Health Direction to close the businesses, and ensure mandatory vaccination of staff to avoid ‘super spreader’ situations of these public domains. Similarly, the Respondent in the current matter was subject to the Public Health Direction. The Respondent’s business had been significantly affected (as set out) by the pandemic.

[89] The Applicant conceded under cross-examination that she had completed the Respondent’s induction training in 2020, and on the code of conduct requiring compliance with lawful directions. 11 This also enabled the Employer to engage in performance management utilising the disciplinary procedure. The Applicant also conceded that she had not been able to perform her role of a lifeguard remotely from home, and it was recognised that in circumstances where she was not vaccinated, she could not return to site.12

[90] The Applicant agreed that she was aware she had to provide evidence of her vaccination status by 1 December 2021, and that if such vaccination status was not confirmed on that date, she would be unable to work after 17 December 2021 at Wet ‘n’ Wild. 13

[91] The Applicant submitted that she did not recognise that the Covid vaccination was an approved vaccination, or that she was aware that the Government in its Public Health Direction had referred to the vaccination. 14 However, the Employer submitted that the Applicant’s position, (that she had no knowledge of the State or Federal Government’s health order referring to the COVID-19 vaccine as a vaccination), was contradicted by her own correspondence, whereby she referred to the Australian Government’s reference to the vaccine mandate, but she submitted that they had stated the Covid vaccinations would be voluntary.15

[92] The Applicant confirmed that she had received the further show cause correspondence of 7 February 2022, whereby it was set out that the Employer would not agree to a further extension until after 17 March 2022, if the Applicant did not respond or continued to be unvaccinated. The follow-up communication was sent to the Applicant on 1 March 2022 regarding confirmation as to whether her vaccination status had changed, and that if she remained unvaccinated, the Employer would have no option other than to terminate her employment. The Applicant agreed in cross-examination that she provided no response to the second show cause letter. 16

[93] The Respondent made submissions regarding the credit of the evidence of the Applicant, given her inconsistent answers on the issue of the vaccination and, at times, that she was evasive, argumentative, and had refused to answer questions regarding her vaccination status. Further, in arguing that the Covid-19 vaccination was not a recognised vaccination but, as she referred to it, a clinical trial and a poison. No medical evidence was brought by the Applicant to sustain that argument.

[94] The Applicant submitted correspondence from an organisation called The Control Group which provided the Applicant with an ID card on joining. In providing such, the Applicant was aware that the document she presented to the Employer was not from her medical practitioner or specialist that she had attended for treatment in relation to an alleged medical contraindication, and therefore could not be accepted as a valid medical exemption.

[95] The Applicant provided no evidence of receiving vaccination, nor of a valid medical exemption.

[96] It is clear from the evidence that the Applicant failed to follow a lawful and reasonable direction.

Similar Applications

[97] As set out above, former employees of the Respondent have made similar unfair dismissal applications to the Commission. In Mills & Ors v Village Roadshow Theme Parks Pty Ltd, 17 these four applications share commonalities with the present Application. The Mills decision did not consider the issue raised by the Applicant in relation to the lifting of the Public Health Direction after the termination, however, the similar circumstances include:

(a) the same Respondent in each matter;

(b) the requirement to be vaccinated arising from the implementation of a Queensland Government mandate;

(d) the termination of employment on 17 March 2022.

[98] Given the commonalities between the Mills decision, which was released after the Hearing, the parties were directed to provide submissions with respect to the Mills decision.

[99] In accordance with those further directions, the Respondent submitted that the Applicant’s employment was terminated for reasons identical to the reasons considered in Mills. In Mills, it was found that the termination of the Applicants’ employment was for a valid reason. 18

[100] As referred to, the Applicant submitted that the background facts of the Mills matters were not exactly the same between the cases, primarily because the Applicants in Mills stated that they would never be vaccinated against COVID-19, whereas the Applicant in this matter raised a number of concerns with the Respondent about the COVID-19 vaccination.

[101] The Applicant refused to provide the Respondent with proof of vaccination prior to her termination, and refused to acknowledge at the Hearing whether she had since been vaccinated. 19

Safety, efficacy, and bodily integrity

[102] The Applicant argued that the onus should be placed on the Employer to justify the direction that they place on their employees, in terms of such a direction being lawful, and that it ought to be backed with proof of safety and efficacy from reliable long-term data. The Applicant submitted that the vaccine should not be provisionally approved but fully approved and not be an experiment.

[103] The Applicant submitted that she was concerned about the safety and efficacy of the vaccine, and whether the Respondent would accept liability in the case of death, injury, or illness. The Applicant, in her submissions in response to the further directions, submitted that she ‘repeatedly raised concerns to the Respondent that were never acknowledged or answered by them.’ However, as summarised in Owens v I-Med Radiology Ltd: 20

“COVID-19 Vaccinations are approved for use in Australia pursuant to Commonwealth legislation and employers are not required to prove their safety or efficacy to employees or to the Fair Work Commission in the event of a dispute with an employee.” 21

[104] The issue of bodily integrity has also been considered in a number of vaccination cases (with approval) before the Fair Work Commission 22 and superior courts.

[105] Further, in Kassam v Hazzard, 23 (upheld on appeal),24 it was held:

“It can be accepted that there is room for debate at the boundaries of what external factors might vitiate a consent to medical treatment so as to render the treatment a battery and a violation of a person’s right to bodily integrity. The judgment of La Forest, Gonthier and Cory JJ in Norberg was influenced by provisions of the criminal law reforming the definition of consent for assaults including sexual assault (Norberg at 251). However, in the end result, the plaintiffs’ contentions are well beyond those boundaries. People may choose to be vaccinated or undertake some other form of medical procedure in response to various forms of societal pressure including a law or a rule, an employment condition or to avoid familial or social resentment, even scorn. However, if they do so, that does not mean their consent is vitiated or make the doctor who performed the vaccination liable for assault. So far as this case is concerned, a consent to a vaccination is not vitiated and a person’s right to bodily integrity is not violated just because a person agrees to be vaccinated to avoid a general prohibition on movement or to obtain entry onto a construction site. Clauses 4.3 and 5.8 of Order (No 2) do not violate any person’s right to bodily integrity any more than a provision requiring a person undergo a medical examination before commencing employment does.” 25

Notice and date of termination

[106] The Applicant later changed the nature of her arguments in this matter. At the Hearing, the focus of the Applicant’s case was that the termination was invalid, on the basis that the Public Health Direction no longer applied on 14 April 2022, that day being the final day of the Applicant’s notice period pursuant to the Termination Letter of 17 March 2022.

[107] The Applicant confirmed that she was aware that the decision to terminate her employment was made and communicated on 17 March 2022. However, as she was entitled to four weeks’ notice (based on her age and years of service), the Applicant served out her notice period until 14 April 2022 (on a period of unpaid leave). The Applicant argued therefore that she considered her termination date was 14 April 2022, a date that she argued was the same date that the Government lifted the Public Health Direction. The Applicant in her closing submissions emphasised, as she had in her evidence, that her interpretation was that her effective date of termination of employment is 14 April 2022, the same day the Public Health Direction was lifted and, therefore, she should have been returned to employment.

[108] The termination was put in place after two show cause processes. The Employer further followed these up for the Applicant to provide proof of the vaccination. The Applicant did not respond to the Employer. The Employer terminated the Applicant’s employment on 17 March 2022.

[109] On 8 April 2022, the Applicant sent the following email to an employee of the Respondent, arguing that she remained employed at the time the vaccine mandate was lifted:

“Dear Matt

I hope this email finds you well.

As you can appreciate since the Vaccine Mandate was put in place (December 17, 2021) it has been a huge financial burden on my family and my mental health.

I have been suffering stress and depression and have found it hard to cope at times, the loss of my income has resulted in the loss of our family home and us being New Zealand Citizens has meant we have had no financial support from the Government.

But the News that the Vaccine Mandate will be lifted on the April 14, has brightened my spirits and because I’m still on notice until April 18 (which is after the date they will be lifted 14^th April) could you please arrange for me to be now rostered shifts from April 14 2022

Thank you. I look forward to seeing you all again soon.

Kind regards

Linda”

[110] It is noted that the Applicant also conveys a position that she was ‘on notice until April 18,’ which was incorrect. Her four week notice period expired on 14 April 2022.

[111] On 13 April 2022, the Applicant received the following email from VRTP, characterised as general correspondence:

“Dear Linda

Easing of Restrictions

Thank you for your interest in working at Village Roadshow Theme Parks.

As you are aware, the Queensland Government have released a statement of changes to the Public Health and Social Measures – coronavirus (COVID-19). As of 1am AEST Thursday 14 April 2022 there will be an easing of restrictions and the requirements to check-in and to be fully vaccinated in a range of venues and events, including theme parks will end.

You are welcome to apply for any suitable vacant roles with VRTP once these Public Health and Social Measures restrictions ease.

Yours sincerely

Ann Maree O’Neill

Head of People & Culture”

[112] The Respondent submitted that the fact the Public Health Direction lifted on the date that coincided with date the Applicant’s notice ended, did not invalidate the termination or make the dismissal harsh, unjust, or unreasonable. The reason for this, the Respondent submitted, is that at the time the decision was made to dismiss the Applicant, being 17 March 2022, it was not known when the Public Health Direction would be revoked.

[113] It is agreed that the assessment of the factual circumstances relating to the termination, and consideration of the ‘valid reason’, must be undertaken at the time the decision was made, that is, when the termination occurred. 26 The circumstances at the termination date, 17 March 2022, were that:

• The Applicant had, since at least 17 December 2021, failed to comply with a lawful and reasonable direction to be fully vaccinated;

Article VIII. Had been unable to fulfil the inherent requirements of her job for three months;

• Had failed to provide any valid reason for this conduct; and

Article IX. There was no indication from the Queensland Government on 17 March 2022 that the Public Health Direction would be revoked at 1.00 am on 14 April 2022.

[114] The Respondent has addressed the circumstances at the time of termination, as follows:

“23. In the quotes attributed [to] the Honourable Yvette D’Ath, the Minister for Health and Ambulance Services, in the “JOINT STATEMENT, “COVID restrictions ease further”, Published Tuesday, 5 April, 2022”, the Minister says, inter alia:

‘Health Minister Yvette D’Ath said business and patrons are being given plenty of notice.

‘These measures have done their job,’ the Minister said.

‘By April 14, it is anticipated we will be at a stage of the current wave where we are comfortable to take this next step.

‘But the best defence against serious illness is to be fully vaccinated.’

24. The Respondent submits that in circumstances where the ‘Revocation of Public Health and Social Measures linked to vaccination status Direction (No. 4)” was published at 1.00 am on 14 April 2022, given the dynamic nature of Government decisions during the period of the pandemic and how quickly decisions were often made – or changed, it was prudent for the Respondent to take no steps in rostering the Applicant until the Public Health Direction was actually revoked in circumstances where the Minister for Health was “anticipating” what may happen.” (emphasis original)

[115] In the current matter, the Applicant has chosen (where she bears the onus to discharge that the dismissal was unfair) not to address the Public Health Direction, which specifically mandated vaccination for employees of theme parks. That is, in her evidence, she has failed to address the reality of the circumstances that existed at the time of termination, being 17 March 2022.

[116] The appropriate time for assessing the reasons for termination is at the time of dismissal (17 March 2022). This was addressed in CSL Ltd t/as CSL Behring v Chris Papaioannou, 27 where the Full Bench of the Fair Work Commission found that:

“The tension between Lion Dairy and Jetstar is to be resolved by the adoption of the approach in Jetstar. In a dismissal related to the person’s capacity, s.387(a) requires the Commission to consider and make findings as to whether, at the time of dismissal, the applicant suffered from the alleged incapacity. Such findings are to be based on the relevant medical and other evidence before the Commission.”

[117] In the current matter, at the time of termination on 17 March 2022, the Applicant was not vaccinated, had not complied with the Public Health Direction, and was not able to be rostered or work remotely.

[118] The Applicant, Ms Exeter-Grant, was unvaccinated at the time of her termination and remains so, per the absence of evidence to the contrary provided by her. Accordingly, in circumstances where the Employer was subject to the Public Health Direction, applicable at the time of the Applicant’s termination, the dismissal was for a valid reason.

[119] The Applicant recognised 17 March 2022 as the date of termination. The lifting of the Public Health Direction four weeks’ later did not repudiate or invalidate the basis for the dismissal or the valid reason for it.

(b) and (c) whether the person was notified of that reason and was given an opportunity to respond

[120] In this matter, the Public Health Direction required the Respondent to ensure that all employees were vaccinated against COVID-19 by 17 December 2021. The consultation process and procedure followed by the Respondent in implementing this policy was comprehensive, as per the correspondence included and outlined above. The Applicant, along with all other employees of the Respondent, were consulted with respect to the vaccine requirements. The Applicant was sent a number of letters that outlined the requirements for vaccination and the consequences of not being vaccinated by the required date.

[121] The Applicant’s evidence made reference to the annexures to Ms O’Neill’s statement of evidence that provided a chronology of the survey, consultation, and correspondence in relation to the vaccination matters as forwarded by the Employer to employees.

[122] The Applicant was clearly on notice of the requirement (and date) to provide evidence of her vaccination, in order to be rostered at the workplace. The series of correspondence conveyed this and, in particular, the show cause letter of 21 January 2022 again clearly put the Applicant on notice of dismissal, in relation to the necessity to provide proof of vaccination to work at the site.

[123] The Employer clearly set out in the 8 December 2021 correspondence that they could not force an individual to be vaccinated against their will, however a failure to do so had clear consequences for continuing employment.

[124] The Applicant agreed in cross-examination that she did not provide proof of her vaccination and, as a consequence, she was aware that she would not be rostered or allowed on site from 17 December 2021. Further, she agreed that she knew the failure to provide proof of being fully vaccinated would have consequences for her employment. She confirmed that the Employer’s letter of 8 December set that out to her. 28

[125] A further show cause letter was sent to the Applicant on 21 January 2022 and provided the Applicant with another opportunity to explain why she had elected not to comply with the Public Health Direction and be vaccinated accordingly, and to respond to why she had failed to comply with a reasonable and lawful of direction of the Employer. 29

[126] In addition, the Applicant was aware that there was an inability to work given her responses, and that she was required to show cause as to why she should not face disciplinary action as she had failed to comply with the vaccination direction. The Applicant’s response of 21 January 2022 to Ms O’Neill failed to address the matters set out in the show cause letter.

[127] There was a series of exchanges past this date, and on 8 April 2022 the Applicant sent an email to the Respondent requesting to be returned to the roster, as the Public Health Direction was to be lifted. The Applicant set out that on 13 April 2022, the Applicant received an email from the Respondent, notifying that the Applicant, and others, could apply for any suitable vacant roles, “once the Public Health and Social Measures restrictions ease.”

[128] For the reasons outlined above, the Applicant was notified of the reasons for her dismissal in the Show Cause and the reasons well in advance of the Termination Letter. She was given a number of opportunities to respond. The process was fair and transparent.

(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

[129] All exchanges in relation to the termination were undertaken in writing with the Applicant. Accordingly, there was no refusal to provide a support person.

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

[130] This factor does not arise, given the reason for the termination of the Applicant’s employment was not related to unsatisfactory performance.

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

[131] The Respondent is a large employer with approximately 2,800 employees. It has a well-resourced human resources department. The process undertaken by the Respondent was thorough, and significant correspondence was provided, consulting with the employees on the information about the Public Health Direction. 30 The process was commensurate with the size and resources of the Respondent and not procedurally deficient or unfair.

(h) any other matters that the FWC considers relevant

Notice and date of termination

[132] As set out, the Applicant raised at Hearing the further argument that the dismissal was unfair given the Public Health Direction was lifted after her termination, but as her notice period was concluding. The Applicant confirmed that she recognised the termination was effective on 17 March 2022. 31 The Applicant began working for the Employer on 17 December 2017. The Applicant was notified her employment was terminated on 17 March 2022. The Applicant was over the age of 45 and, in accordance with the notice requirements set out in s.117(3) of the Fair Work Act, the Applicant was owed four weeks’ notice. Accordingly, the notice period ended on 14 April 2022. The Applicant was not paid wages in lieu of notice, but given she was unvaccinated and unable to work on site or remotely, given her lifeguard duties, her period of unpaid leave was extended for the notice period.

[133] The Applicant submitted that given the Public Health Direction lifted on the date which coincided with the end of her notice period, the failure to review the termination made her dismissal harsh, unjust or unreasonable. It cannot be considered that the Employer, in not reinstating the Applicant at that time acted unfairly, as right up until that time the Applicant had no capacity to work during the notice period.

[134] The parties both recognised the employment relationship was severed at the point of termination, 17 March 2022. The letter provided, dated 13 April 2022, does not detract from the valid reason for the termination, in that the Applicant did not follow a lawful and reasonable direction. The normal indicia of an active employment relationship were not met at the time the vaccination requirement was lifted. The Applicant was not working and could not work. The contents of the Respondent’s letter of 13 April 2022 (made clear that it did not consider the employment relationship to be on foot) but referred to the opportunity to apply for a future position. The 13 April 2022 letter was generic and did not undermine the termination or the notice period.

[135] The Applicant conceded that the date of termination was 17 March 2022. Had the Applicant been provided with four weeks’ wages in lieu of notice, similarly it would not have affected the termination date of 17 March 2022. 32 In these circumstances where the Applicant was unvaccinated and could not work, the Employer was entitled, for the period to the expiration of the notice, to have the Applicant remain on unpaid leave.

[136] In Mills, the termination date of the Applicants’ employment was also on 17 March 2022. All Applicants were put on notice date required to have the vaccination. There was a series of communication to this Applicant and the Applicant in Mills.

[137] The Applicant in this matter did not argue that there was any unfairness on the basis of not receiving payment for wages in lieu of notice, particularly as she (and the Applicants in Mills) had been given considerable notice of being required to provide evidence of vaccination by 17 March 2022.

[138] In any event, given that the Applicant was unable to work during this period, due to her unvaccinated status, she could not enter the site and perform her duties and was therefore not entitled to the payment of wages.

The Applicant’s representation

[139] The Applicant in her closing submissions critiqued the representation by Mr Smith, on the basis that he was not at full capacity, was unwell and therefore unable to properly articulate on her behalf, and did not question the witnesses satisfactorily. The Applicant continued that she therefore had subsequently completed the closing submissions document herself.

[140] Mr Smith engaged in the Hearing proceedings and at no point during the Hearing did he volunteer that he was unwell, in terms of compromising his capacity to undertake the Hearing. Nor did the Applicant, or her representative, argue during the Hearing that she was prejudiced in any way.

[141] The Applicant also took issue with the nature of the cross-examination of her. However, her representative was aware that he was able to intervene or object, and also had the capacity to re-examine her in relation to the matters that form the basis of the questions she complained of, such matters being central to the Application. There was nothing irregular in the approach to the cross-examination.

[142] During the course of her evidence, the Applicant raised that she was dyslexic. The Applicant was critical of the discussion regarding her being dyslexic. However, enquiries were only made of her after the Applicant had volunteered this new information at the Hearing that she had dyslexia (following being asked to read a document). The Applicant had not recorded on her F2 Application that she required any assistance (in response to this question), nor had her representative set out such. There was, on review of her file, a file note completed by a Fair Work Commission Case Manager, which recorded that the Applicant had asked for a support person at conciliation, however there was no record of the Applicant advising that she had dyslexia or seeking associated requirements. The Applicant at all times had Mr Smith present, and discussion at the Hearing was only to establish an optimum process for her at the Hearing.

[143] In response to the Applicant volunteering the condition, it was necessary to make enquiries in order to assess the required procedure for cross-examination, and whether was any required particular presentation of matters. The Applicant agreed how the parties should proceed in conducting the Hearing, and this was accommodated. 33 I do not consider the exchange was improper, and such could have been avoided on provision of the timely condition and associated needs.

CONCLUSION

[144] Taking into account the facts and circumstances of this matter, I am satisfied, on the evidence provided, that the Respondent had a valid reason for terminating the Applicant’s employment and that it did so in accordance a fair process. The Applicant was not unfairly dismissed, in accordance with the Act.

[145] I therefore conclude that the Applicant’s Application pursuant to s.394 be dismissed.

[146] I Order accordingly.

of the Fair Work Commission with member’s signature.