[2022] FWC 2085

The attached document replaces the document previously issued with the above code on 10 August 2022.

In paragraph [76] “2022” has been replaced with “2021”. Typographical errors have been corrected in paragraphs [158], [159] and [173].

Associate to Deputy President Anderson.

Dated 15 August 2022.

Fair Work Act 2009
s.394—Unfair dismissal

Les Tytula
v
Coventry Group Limited T/A Cooper Fluid Systems
(U2022/1934)

Application for an unfair dismissal remedy – engineering manager – failure to provide proof of vaccination against COVID-19 or medical contraindication – employer policy – employee belief vaccination unsafe – whether valid reason – procedural fairness – dismissal not harsh, unjust or unreasonable – application dismissed

[1] On 14 February 2022 Les Tytula (the applicant or Mr Tytula) applied to the Commission under s 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy. He was dismissed by the Coventry Group Limited trading as Cooper Fluid Systems (Cooper Fluid Systems, the employer or the respondent). The dismissal took effect on 8 February 2022. At the date of dismissal Mr Tytula was employed as an engineering manager.

[2] Mr Tytula claims his dismissal was harsh, unjust or unreasonable. He seeks reinstatement or compensation.

[3] Cooper Fluid Systems oppose the application. It contends Mr Tytula’s dismissal was not unfair and no issue of remedy arises.

[4] Conciliation was conducted on 21 April 2022. The matter did not resolve.

[5] I issued directions on 9 May 2022.

[6] I conducted a further directions hearing on 29 June 2022 on three issues: on a request by Cooper Fluid Systems that Mr Tytula be directed to file a witness statement; on foreshadowed objections by Cooper Fluid Systems to materials relied upon by Mr Tytula; and on an application by Mr Tytula that the Chief Executive Officer and Managing Director (CEO and MD) of Coventry Group Limited, Mr Robert Bulluss, be subpoenaed to give evidence.

[7] No further directions were issued. Mr Tytula undertook to file a witness statement in the required form, and did so on 1 July 2022. I adjourned the application to subpoena Mr Bulluss. It was not subsequently pressed. I made no order on admissibility but granted leave to Cooper Fluid Systems to raise objections by way of further interlocutory application or at the hearing.

[8] In advance of the hearing, I received materials from Mr Tytula and Cooper Fluid Systems.

[9] I heard the matter (merits and remedy) by video conference on 14 and 15 July 2022.

[10] Mr Tytula was self-represented. Cooper Fluid Systems was legally represented, with permission and without objection.

Evidence

Oral evidence

[11] Mr Tytula’s application contends that no valid reason existed for dismissal because the direction that he be vaccinated was neither lawful nor reasonable. He says that vaccines against COVID-19 are not safe and thus the requirement to be vaccinated was unreasonable.

[12] Despite this being a central pillar in these proceedings, neither Mr Tytula nor Cooper Fluid Systems adduced oral evidence from any medical, health, immunology, epidemiological or other scientific expert on this or any related question. This is a significant gap in the evidence and one to which I return later in this decision.

[13] Mr Tytula gave oral evidence on a statement 1 and forty-eight documents accompanying his statement.

[14] For Cooper Fluid Systems, evidence was received from General Manager Bruce Carter on a statement and eleven accompanying documents 2 and from Coventry’s Health and Safety Environment Manger Adam Smallwood3 on a statement and nine accompanying documents.4

[15] Mr Tytula gave evidence in a calm, considered but forthright manner. He was willing to make concessions on the factual narrative if and when his recall was not exact. He was uncompromising and unflinching in expressing opinions about COVID-19 and vaccine safety. He characterised his position as based on “objective facts” and not subjective belief or opinion. Mr Tytula took care in his answers. His recall of events leading to his dismissal was generally plausible and largely not in contest.

[16] Aside from an occasional lapse in memory, Mr Smallwood was clear about his role in assessing and recommending measures to mitigate workplace risk arising from COVID-19. However, he was somewhat casual in answers in cross-examination, initially conveying the impression of not wishing to be troubled by questions from Mr Tytula, especially where they invited debate on Mr Tytula’s opinions. Conveying this impression, even on questions that tested his recall of the factual narrative, detracted from Mr Smallwood’s evidence. However, Mr Smallwood was otherwise conscientious in answering questions. Considered overall, Mr Smallwood’s evidence, despite his initial disposition, can generally be relied upon.

[17] As the decision-maker, Mr Carter was an impressive witness. He was appropriately respectful towards the Commission and Mr Tytula but firm and confident in his answers on the factual narrative. He was clear as to what occurred in meetings with Mr Tytula and the basis on which he took the decision to dismiss. Mr Carter’s evidence, considered overall, was plausible and a reliable basis for fact-finding.

Documentary evidence

[18] There is substantial documentary material before the Commission.

[19] Cooper Fluid Systems advanced a variety of objections to large portions (but not all) of the material submitted by Mr Tytula.

[20] The forty-eight documents filed by Mr Tytula can be conveniently grouped into four categories:

•  Category one (documents 1 to 12): pre-dismissal communications between Mr Tytula and Cooper Fluid Systems;

•  Category two (documents 13 to 18): post-dismissal matters;

•  Category three (documents 19 to 36): documents concerning COVID-19 and vaccines (including articles, transcripts and data); and

•  Category four (documents 37 to 48): documents concerning project work undertaken by Mr Tytula for Cooper Fluid Systems.

[21] Category one and category four documents were not objected to. They were admitted into evidence. 5

[22] Categories two and three were objected to. They were marked for identification pending this decision.

[23] With respect to category two, documents 14 and 15 are relevant. I admit them into evidence (A14 and A15). They are post-dismissal email exchanges between Mr Tytula and Cooper Fluid Systems concerning the return of a work phone. Though post-dismissal, they are relevant to the employer’s conduct in the wake of the dismissal and thus ostensibly relevant to one aspect of Mr Tytula’s submission as to harshness.

[24] Documents 13 and 17 I do not admit into evidence. They are correspondence between Cooper Fluid Systems’ solicitors and Mr Tytula during the conduct of these proceedings. They are not relevant to the dismissal or its alleged harshness, or remedy.

[25] Document 16 is a request by Mr Tytula to Cooper Fluid Systems made three months after filing his claim for a PowerPoint presentation given whilst employed. Mr Tytula sought the PowerPoint for use in this proceeding. It is of little or no controversy. I admit it (A16).

[26] Document 18 is relevant to Mr Tytula’s post-dismissal job search. It is relevant to remedy. I admit it (A18).

[27] Category three documents are relied on by Mr Tytula as “objective evidence” that vaccines against COVID-19 are not safe, and presented in support of his submission that no valid reason existed for his dismissal because the direction to be vaccinated was neither lawful nor reasonable. They were objected to on grounds of relevance, hearsay, opinion and lack of probative value.

[28] I make three general comments on this category.

[29] Firstly, not being a court, the Commission is not bound by the rules of evidence. 6 The rules of evidence are however a useful guide as to what materials may have relevance and probative value.

[30] Secondly, irrespective of relevance, the Commission operates according to the rules of procedural fairness. Procedural fairness requires contested evidence to be capable of being tested if it is to be used in fact-finding. In the interests of fairness as well as making findings according to the requisite standard of proof (the balance of probabilities), contested material that may have ostensible relevance but which is not presented in a form capable of being tested may be afforded little or no probative weight, even if relevant.

[31] Thirdly, a broad discretion exists under the FW Act whether to admit material that may not be admissible in a court of law. 7 Without being exhaustive, in this matter I have regard to relevance and procedural fairness, including prejudice, should ostensibly relevant material be admitted that is not capable of being tested. I also have regard to the fact that much of the material in category three is relied upon as opinion evidence, noting that no expert evidence was called by either side.

[32] Given the broad manner in which Mr Tytula framed the grounds on which he claims no valid reason for dismissal existed, the documents in category three have some ostensible relevance to his contentions. However, that is a far from establishing a sufficient basis to admit the material or give it probative weight. The eighteen documents in the category are a hotchpot of materials drawn from the internet, some locally and some from the United States and elsewhere.

[33] Documents 19, 35 and 36 are data from Australian government websites. They are relevant and whilst hearsay, I admit them. They have some probative value, though data in the abstract requires context if conclusions are to be safely drawn.

[34] I have decided to admit documents 20 to 31 (inclusive) in the exercise of discretion but many do not necessarily relate to Australian circumstances, are hearsay or represent untested opinions, articles or reports. They are not evidence of the truth of what is said. I accord them little probative weight absent the type of testing required of opinion evidence from experts.

[35] Documents 32, 33 and 34 are transcripts of extracts of speeches given by certain persons sourced from the internet. Whatever the credentials of these persons, they too are not evidence of the truth of what is said, despite Mr Tytula asserting so. The opinions expressed, even if relevant and accurate have not been tested in these proceedings. I admit these transcripts in the exercise of discretion but afford them little probative weight.

Evidentiary disputes

[36] This application concerns a refusal by Mr Tytula to comply with a vaccination mandate introduced by his employer in circumstances where he held the view that vaccines against COVID-19 were unsafe and ineffective.

[37] I deal with these issues to the extent necessary in considering whether a valid reason for dismissal existed.

[38] That aside, the facts concerning Mr Tytula’s employment and his interaction with Cooper Fluid Systems prior to dismissal are largely not in dispute save for the following:

•  there is a dispute whether Mr Tytula informally discussed his concerns with his immediate manager (Mr Clark) prior to or following the policy requirement being announced or implemented;

•  there is a dispute whether Mr Tytula attended tool-box or group meetings about a possible vaccination mandate prior to or following the policy requirement being announced or implemented; and

•  there is a dispute whether Mr Carter instructed Mr Smallwood not to discuss Mr Tytula’s concerns with him.

[39] I deal with these issues to the extent necessary in the body of this decision.

[40] I take into account all of the evidence, submissions and materials before me though, given the breadth of issues raised, deal in this decision with those matters most directly relevant to a determination of the application.

Facts

[41] I make the following findings.

Cooper Fluid Systems

[42] Cooper Fluid Systems is one of four businesses in the Coventry Group which operates in Australia and New Zealand as a distributor of industrial supply products.

[43] Cooper Fluid Systems employs approximately 850 people.

Mr Tytula’s employment

[44] Mr Tytula is a qualified engineer with senior level experience. Since 2010 he was employed on industrial projects with Cooper Fluid Systems and its predecessor Torque Industries. Prior to that, he was employed by the Australian Submarine Corporation.

[45] Mr Tytula was based at Cooper Fluid Systems Regency Park operations in Adelaide, South Australia.

[46] Mr Tytula was an Engineering Manager. His duties included project design and scope, risk assessment, project budgeting, project inspection and recruitment within the engineering team. He dealt routinely with managers, employees, contractors and clients of the business. As an engineering manager, he was responsible for a small engineering team comprising engineers and electricians.

COVID-19

[47] In 2020 a global pandemic was declared following the identification of a hitherto unknown virus causing severe acute respiratory syndrome (COVID-19).

[48] The pandemic impacted Australia from February 2020 resulting in unprecedented public health responses by governments nationwide. These included but were not limited to the closure of international borders, closure or control of inter-State borders, restrictions on border movement, lockdowns, curfews, restrictions on commercial and community activities, social distancing and mandates including mask wearing and, in declared settings, vaccination.

[49] In this period, various strains of the virus with differing levels of transmissibility and severity emerged prompting public health authorities to alter policy settings and invoke different measures to address variants.

[50] The virus placed unprecedented pressure on public and private health systems and resulted in loss of life and illness.

[51] Upon the virus spreading, a concerted global effort commenced to find and deliver vaccines against COVID-19.

[52] Until such time as vaccines became available and a level of vaccination considered necessary to protect public health was achieved, Australian authorities maintained stringent public health measures.

[53] Vaccines against COVID-19 became available in Australia from mid-2021. Towards the end of 2021 public health authorities commenced relaxing (though not eliminating) public health measures as the rate of vaccination increased.

[54] In South Australia, a public health emergency was declared in March 2020 via an Emergency Declaration by the State Coordinator for the State of South Australia under the Emergency Management Act 2004 (SA). The declaration operated until 24 May 2022 when it was revoked.

[55] Once vaccinations became available, directions issued by the State Coordinator for the State of South Australia mandated, inter alia, that persons do not attend prescribed settings unless vaccinated against COVID-19 or presented evidence of a medical contraindication.

Cooper Fluid Systems policy

[56] During the course of the pandemic, Cooper Fluid Systems (in conjunction with its parent, Coventry Group) developed and reviewed a COVID-19 policy in order to mitigate the effects of COVID-19 in its workplaces and to maintain, as far as possible, the continuation of its business operations.

[57] This work was done in the first instance through its Health and Safety Environment Manager Mr Smallwood, who reported to General Manager Mr Carter.

[58] In mid-2021, with the emergence of the Delta strain of the virus and increasing domestic case numbers, Cooper Fluid Systems reassessed whether its control measures were adequate.

[59] In August and September 2021 Mr Smallwood updated a risk assessment.

[60] Although some client settings had become the subject of government vaccination mandates (such as Cooper Fluid Systems health sector clients), the Regency Park site was not a declared setting to which a government vaccination mandate applied.

[61] This notwithstanding, from mid-2021 (when vaccines became available) until 15 October 2021 Coventry Group Limited adopted a policy by which it “encouraged” vaccination. This was regularly communicated by all-staff emails to employees from its CEO and MD. 8

[62] On 1 October 2021 a survey was sent to employees inviting views on vaccination policy. 9

[63] Managers were also tasked by Mr Smallwood to conduct tool-box meetings with staff to discuss vaccination policy and related issues, using Australian government guidance material as reference. 10

[64] On 15 October 2021, Mr Smallwood, armed with the results of the survey and staff feedback, finalised the risk assessment. 11

[65] That day, 15 October 2021, Coventry Group Limited announced, in light of the survey responses and its assessment of customer and government expectations, that: 12

“…we now require all personnel to provide proof of their vaccination status by no later than 22nd of October 2021. If you are concerned about providing your vaccination status, please advise your Manager and a member of the Leadership Team will contact you to assist you with your concerns.”

[66] Vaccination policy continued to be the subject of feedback and consideration. Having obtained a general understanding of the level of vaccination amongst its staff, a decision was then taken by the Coventry Group to mandate vaccination. The decision was announced to staff by email from the CEO and MD on 15 November 2021. It relevantly provided: 13

“Hi everyone

Thank you for providing your COVID-19 vaccination status to us. It is pleasing that the majority of people in the Group are now either fully vaccinated or will be fully vaccinated soon. Vaccinations are the best way to protect you, your family, friends and colleagues from serious illness from COVID-19. It also allows us to operate the business safely and to continue to meet our customer’s service requirements.

Your health and safety is our number one priority. To ensure we are able to provide you with a safe work environment, deliver on our customer’s needs and comply with Government legislation, we are updating our COVID- 19 policy (attached) to reflect that we now require all employees working for the Coventry Group to be fully vaccinated against COVID-19. This decision has been taken with consideration to all the available health information and knowledge that customers are advising us they will only trade with us if our people are vaccinated. As COVID-19 restrictions ease, this policy change is important for our health and safety, ability to service our customers and ongoing job security.

If you are not already vaccinated you will need to provide proof of you first vaccination by no later than 30^th November 2021 and proof you are double vaccinated by no later than 31 December 2021 unless you have a medical exemption provided by a duly qualified medical practitioner. If you have not already done so, please email proof of you vaccination status or medical exemption to [email address redacted]@cgl.com.au.

We will make personal contact with anyone who has not provided proof of vaccination and the Coventry Leadership Team are available to talk to you if you have concerns with this policy change. I am personally available to talk to you.

Thank you for your support. This is another important step in our COVID-19 journey together.

Regards,

Robert Bulluss | CEO & MD
Coventry Group Ltd”

[67] As a result, Cooper Fluid Systems employees were thereafter required to be vaccinated (first dose) by 30 November 2021 and (second dose) by 31 December 2021, or produce evidence of medical contraindication.

[68] The policy read: 14

“HSE-105 WORKPLACE COVID-19 POLICY

Purpose and Scope

Coventry Group Limited (CGL) is committed to the health, safety and wellbeing of our people. This commitment includes minimising the risk from COVID-19. The purpose of this policy is to provide a framework for protecting our people from the effects of COVID-19 in the workplace. This policy applies to all employees, contractors and visitors who are performing work at any CGL location.

Definitions

Policy

To ensure CGL remains compliant to any State and/or Government requirements, and any standards required to enter our customer’s sites, we implement the following to continue to protect our people;

•  Implement the COVID-19 response plan which outlines the key control measures and provides further details to support this policy.

•  From 31 December 2021, it will be a requirement that all employees, contractors and visitors (excluding customers, unless required by local or state government) must be Fully Vaccinated against COVID-19. Where two doses are required to be considered Fully Vaccinated; employees, contractors and visitors must have received their first dose by 30 November 2021. Proof of Vaccination will be required to be provided to [email address redacted]@cgl.com.au

•  CGL understands that not all employees will be able to receive a provisionally registered COVID-19 vaccine for medical reasons. Medical exemptions will need to be provided by a duly qualified medical practitioner.

•  All vaccination information provided to CGL will remain confidential and be stored on relevant employee files as per the Privacy Act. Any vaccination information that is required to be released to our customers will only be done once consent is given.” (emphasis in original)

The policy and Mr Tytula

[69] The 15 November 2021 announcement invited persons with “concerns with this policy change” to speak to the Coventry Leadership Team.

[70] Mr Tytula had by then already foreshadowed concerns to management.

[71] On 4 October 2021 (three days after the staff survey was announced) Mr Tytula had sent the CEO and MD a video under cover of the following email: 15

“Subject: EXPLOSIVE Truth About Vaccines & COVID w/Inventor Of mRNA Vaccine Technology, Robert Malone YouTube

Hi Robert,
I’ve come across this interview with the inventor of the mNRA treatment. I wonder what you think about his advice regarding the injections against covid-19?
Kind regards,
Les Tytula
Engineering Manager”

[72] On 5 October 2021 the CEO and MD replied to Mr Tytula: 16

“Hi Les

Good to hear from you. I hope you and your family are well.

Thanks for sending through the YouTube clip.

I cannot claim to understand the science involved in medicine and vaccines. From my perspective, the clip seemed to be a discussion around risk and whether there is sufficient information available for people to make an informed decision about having the vaccine.

I can only share my experience with you. Before my family and I had the vaccine the risks were explained very clearly to us. We were also provided information on potential side effects and what to look out for. I felt well enough informed to assess the risk and make a decision to proceed with the vaccine knowing that there is risk of side effects with all medications.

For me the risk of getting sick, the potential long term health impact if I got the virus and the risk to my family, friends and colleagues was much greater than the risk taking the vaccine.

Unfortunately one of our colleagues recently contracted the virus. Our colleague is okay but his wife and mother in law contracted the virus from him and both ended up in ICU. His wife is recovering but his mother in law passed away from the virus. It emphasised to me the reasons I have had the vaccine.

I can only suggest if you have concerns about the vaccine to discuss them with your doctor.

Thanks for reaching out and stay safe.

Regards,
Robert Bulluss | CEO & MD
Coventry Group Ltd”

[73] On 15 October 2021, the day his employer advised of the requirement to provide vaccination status, Mr Tytula emailed an objection to a vaccine mandate to the Regency Park Manager (Mr Clark). He stated: 17

“…These new genetic treatments are still in the trial state, and there have been hundreds of thousands of adverse reactions and thousands of deaths caused by them, already…mass vaccination, even with proven medication is against the best medical practice…Finally, it is against my conscience to give consent to any activity that is unlawful, and relieve the manufacturer of any liability. Therefore, I will decline the request of getting injected with the currently offered substances. Please advise what options I have regarding my employment with CFS.”

[74] Mr Tytula then sent Mr Bulluss, Mr Carter and Mr Clark another YouTube video. 18

[75] In early November 2021 Mr Tytula decided to register not just his concern, but those of others. He drafted a letter on Cooper Fluid Systems letterhead. On 16 November 2021, the day after the policy announcement, he submitted the letter with the names of fourteen persons. The letter read: 19

“Dear Renee,

In relation to the announced CGL’s HSE-105 Workplace COVID 19 Policy, in the climate of widespread misinformation on the subject matter, we request the following information be obtained, from credible sources, for our consideration:

1. Legal status of the subject injections and if the treatments are experimental.

2. If the injections meet the definition of a standard vaccine.

3. Proof that subject virus was properly, fully isolated.

4. Proof of the treatment being fully, independently and rigorously tested against control groups, and the subsequent outcomes of those tests, including their safety and efficacy.

5. Contents of the injections, and whether they contain any elements toxic to the body.

6. Verification if subject injections prevent spreading of the virus.

7. List of reported and estimated fatalities and other adverse reactions to the injections in Australia and worldwide.

8. Verification that the injections are not experimental mRNA gene altering therapy.

9. Verification if the manufacturers are liable for any injuries caused by their products, immediate and future.

10. Safety net and help available to people suffering from adverse reactions, including compensations to members of immediate family.

11. Availability of other means of preventing and treating viral infections, including Covid-19.

We look forward to receiving your prompt reply with the findings.”

[76] On 22 November 2021 Mr Tytula was called into a meeting with Mr Carter and Mr Clark. Mr Carter told Mr Tytula that he was not authorised to use company letterhead to express personal views. Mr Carter asked Mr Tytula to outline his concerns with the policy. Mr Tytula indicated that “the vaccines aren’t safe and you can’t make me get one”. 20

[77] On 29 November 2021, the day prior to the first vaccination dose requirement, Mr Tytula sought personal leave until 2 January 2022. This was granted.

[78] Mr Tytula did not provide proof of a first dose or medical contraindication as required by the policy by 30 November 2021, or at all.

[79] Mr Tytula did not provide proof of a second dose or medical contraindication as required by the policy by 31 December 2021, or at all.

[80] On 4 January 2022, two days after resuming work in the new year, Mr Tytula was handed a letter from Mr Carter. It read: 21

“Missed deadline – COVID-19 Vaccination

Dear Les

As communicated on Monday, 15 November 2021, Coventry Group Ltd (CGL) has introduced a policy requiring all employees to have received their first COVID-19 vaccination by 30 November 2021 (HSE-105 Workplace COVID-19 Policy).

To date, you have not provided evidence in line with this Policy to meet this requirement. As such, you are required to take paid annual leave until the earlier of the date you provide sufficient evidence that you have received your first vaccination dose, or Monday, 10 January 2022.

…

Yours sincerely,

Bruce Carter
General Manager
Cooper Fluid Systems” (emphasis in original)

[81] That afternoon, 4 January 2022, Mr Carter and Mr Clark met with Mr Tytula. The meeting was short: 22

Mr Carter: “Les, as you know, CGL has implemented a Vaccination Policy across all of its entities, including CFS, which required all employees to provide proof they had received two doses of a COVID-19 vaccination by (sic) 31 December 2022. You have not complied with this policy. We wanted to give you another opportunity to consider complying with the policy. Have you been vaccinated or do you intend to be vaccinated?”

Mr Tytula: “You do not have the right to enquire about my vaccination status, however, I confirm that I am not vaccinated and do not intend to be vaccinated.”

Mr Carter: “Okay, well, as a result we will need to place you on annual leave, as you are not eligible to continue to attend work at CFS. We will arrange another meeting to discuss with you the next steps on 10 January 2022. Do you have any questions?”

Mr Tytula: “No.”

Mr Carter: “Okay. We also want to remind you that the EAP is available to you at all times to discuss any issues or concerns you have.”

[82] On 5 January 2022 Mr Tytula was placed on annual leave.

[83] On 6 January 2022 Mr Tytula wrote to Mr Smallwood (copied to Mr Clark and the human resources manager) attaching a typewritten commentary from a third party author (“Paul”) opposing vaccine mandates (with disclaimer by the author) and various attachments. 23

[84] The extended deadline of 10 January 2022 passed without Mr Tytula providing proof of vaccination or a medical contraindication.

[85] A non-compliance meeting was scheduled by Cooper Fluid Systems. It was held on 1 February 2022, attended by Mr Carter, Mr Clark, Mr Tytula and an officer from the human resources department. The meeting included the following exchange: 24

Mr Carter: “Mr Tytula, we have arranged this meeting to discuss your compliance with CGL’s vaccination policy. As you know, the policy required all employees to provide proof of double vaccination by 31 December 2021. You did not do this. We wanted to provide you another opportunity to confirm whether you have been vaccinated or intend to be vaccinated.”

Mr Tytula: “I am not answering that. I don’t have to tell you. Are you going to respond to the materials I sent you?”

Mr Carter: “We have reviewed and considered the material you provided but we do not intend to respond as the company is well aware of its obligations under the WHS Act.”

Show cause and dismissal

[86] On 2 February 2022 Cooper Fluid Systems sent Mr Tytula a show cause letter. 25 It advised Mr Tytula that it was considering whether to take further action in relation to his employment given his alleged non-compliance. Mr Tytula was provided until 7 February 2022 to respond.

[87] On 6 February 2022 Mr Tytula sent Mr Carter a show cause response. It included the following: 26

“I have no problems complying with additional policies if they are reasonable and lawful, but a request to allow injection with an experimental substance that:

•  has caused thousands and thousands of deaths and millions of severe adverse reactions around the world,

•  has unknown long term side effects,

•  has classified details about its makeup,

•  is ineffective in preventing transmission of the virus,

•  requires the 'patients' to indemnify all the parties involved in the process

is most UNREASONABLE; it is bizarre. It also is most UNLAWFUL as it contravenes the Nuremberg Code (1947) - see Attachment D, other laws and even the recent Fair Work Commission's decision - see an excerpt from, below.

[paras 130, 131 and 132 of [2021] FWCFB 6015 Hatcher VP, Dean DP and Riordan C extracted]

As I mentioned during the meeting, I cannot comply with two company policies that are in conflict with each other. I am following HSE100 because it is right. HSE105 is wrong, hence, it must be withdrawn, without a delay, to prevent further major or catastrophic injuries to CGL's employees - I know of at least one employee from Torque Industries who has suffered severe heart problems after the injections - allegedly confirmed by a doctor, and required several hospitalisations.

I would also like to point out that your repeated acts of standing me down and coercing to take the injections (thus, potentially, putting my safety at risk) are now amounting to bullying. I request that you cease behaving in this way and restore a proper business relationship.

With regards,
Les Tytula”

[88] On 8 February 2022 Mr Carter met with Mr Tytula. Mr Carter advised that Mr Tytula’s response had been considered but not accepted. Mr Tytula repeated points of view in his show cause response, referring to them as “facts”. Mr Carter advised Mr Tytula that due to non-compliance with the policy his employment would be terminated.

[89] Following the meeting, Cooper Fluid Systems sent Mr Tytula a letter dated 8 February 2022 formally advising his termination. It read: 27

“Termination of Employment

I refer to the meetings held on 1 February 2022 and 8 February 2022 between yourself, Elissa Henderson (HR Business Partner), Andrew Clark (Regional Manager) and Bruce Carter (General Manager) regarding your reluctance to obtain a COVID-19 vaccination in line with Coventry Group Ltd (CGL) HSE-105 Workplace COVID-19 Policy.

You were offered to have a support person present to which you declined this request. As you are aware, CGL has a positive obligation to mitigate any risk within the business and as such, a necessary control measure in response to the COVID-19 pandemic has been introduced through a policy requiring all employees to have received their first COVID-19 vaccine dose by 30 November 2021 and be fully vaccinated by 31 December 2021 (HSE-105 Workplace COVID-19 Policy).

During the meetings you stated that you had not currently received the COVID-19 vaccine and you were not intending to do so.

This letter confirms in writing the termination of your employment with Coventry Group Ltd, trading as Cooper Fluid Systems, effective today, Tuesday, 8 February 2022.

In determining this course of action, the following was taken into consideration:

a) Coventry Group Ltd (CGL) HSE-105 Workplace COVID-19 Policy requiring a first vaccination dose by 30 November 2021 for all employees, with the exception of those in receipt of a medically approved exemption;

b) The additional ten-week extension given to you to provide appropriate documentation of either a medical exemption or confirmation of a COVID-19 first dose vaccine;

c) Your response during the meetings held with you on 1 February 2022 and 8 February 2022, where you outlined that you are not willing to obtain the COVID-19 vaccination;

d) Your role in the Regency Park branch as Engineering Manager;

e) Current workload and operational requirements within the Regency Park branch; and

f) No suitable redeployment alternatives.

Based on your length of service and the applicable industrial instrument, your notice period is five (5) weeks’, however, the Company has decided to terminate your employment as of today, 16 December 2021.

The Company will pay you in lieu of notice per the applicable industrial instrument. Your accrued entitlements will be processed along with your final payment into your nominated bank account, as soon as possible.

We would also like to take this opportunity to remind you of the free and confidential services of Assure Programs, Coventry Group’s external Employee Assistance Program (EAP). You can access the EAP via telephone on 1800 808 374 or online at www.assureprograms.com.au for a range of health and wellbeing facilities.

We thank you for your service and wish you well for the future.

Yours sincerely,

Bruce Carter
General Manager
Cooper Fluid Systems”

[90] Mr Tytula was provided five weeks’ pay in lieu of notice.

[91] The letter of termination incorrectly stated Mr Tytula’s date of termination as 16 December 2021 when in fact it was 8 February 2022.

Post dismissal

[92] Six days later, on 14 February 2022, Mr Tytula filed these proceedings.

[93] On 3 March 2022 (three weeks after dismissal) Mr Tytula requested that he be permitted to retain the company mobile phone in his possession but return the SIM card only. This request was declined due to company-specific software having been installed on the phone. On 4, 7 and 8 March 2022 Mr Tytula requested to be permitted to transfer personal contents from the phone in advance of returning it. On 8 March 2022 Mr Clark wrote to Mr Tytula advising that as the phone had not been returned it had already been remotely “deactivated for security purposes and all data deleted”. This was confirmed by Mr Clark on 31 March 2022. 28

Submissions

Mr Tytula

[94] Mr Tytula submits that his dismissal was harsh, unjust or unreasonable. He seeks reinstatement or compensation.

[95] He claims his dismissal was unfair on multiple grounds:

•  there was no valid reason because the requirement that he comply with the policy was not a lawful or reasonable direction;

•  Cooper Fluid Systems policy and the direction to comply was unlawful because it breached the Work Health and Safety Act 2012 (SA); breached the Australian Human Rights Commission Act 1986 (Cth); breached the Criminal Code Act 1995 (Cth); violated the Nuremberg Code 1947; and was made in the absence of a government direction mandating vaccination;

•  Cooper Fluid Systems policy and the direction to comply was unreasonable because the risk assessment conducted by Cooper Fluid Systems was wrong and inadequate; vaccination was not safe and did not mitigate risk; vaccination intruded on the right to bodily autonomy; compliance was not possible because consent to vaccination was coercive; and compliance was not possible because information he had sought was not provided;

•  Cooper Fluid Systems should have but failed to direct Mr Tytula to work from home in lieu of being dismissed;

•  Cooper Fluid Systems should have but failed to direct Mr Tytula to take extended leave in lieu of being dismissed; and

•  Cooper Fluid Systems denied Mr Tytula the opportunity to personally farewell colleagues and unreasonably deleted contents from the mobile device in his possession resulting in the loss of personal material.

[96] Mr Tytula also claims that his dismissal was unfair because it had the harsh consequence of denying him, as a senior engineer, investment in his career and compelling him, at a late stage in his career, to seek fresh employment which, to date, he has been unable to secure.

[97] Mr Tytula seeks orders for reinstatement with backpay and continuity of service. In the alternative, he seeks to be compensated for the loss of income and career opportunities.

Cooper Fluid Systems

[98] Cooper Fluid Systems contends that the dismissal was not harsh, unjust or unreasonable and no issue of remedy arises. It submits:

•  the issue before the Commission is whether Mr Tytula was unfairly dismissed. It is not a general inquiry into scientific or medical issues or opinions concerning COVID-19 or vaccinations;

•  there was a valid reason for dismissal having regard to the fact that Mr Tytula chose not to produce evidence of vaccination or medical exemption and was thereby in breach of his employment obligations;

•  the direction to comply with the policy was lawful;

•  the direction to comply with the policy was reasonable;

•  in developing and introducing the policy, including its risk assessment, Cooper Fluid Systems relied on and was entitled to rely on advice and guidance issued by government and regulatory authorities. It was not required to independently test Mr Tytula’s views on COVID-19, the vaccine or related science;

•  the dismissal was not procedurally unfair because Mr Tytula was provided reasonable time to comply (including by a time extension); was encouraged to speak to his general practitioner about vaccine safety; was advised of dismissal being a potential consequence of being non-compliant; and was able to access personal leave and annual leave to ensure he lost no income in the period he was stood down;

•  it was not reasonable for the employer to insulate Mr Tytula from the policy by allowing him to work from home on an indefinite basis; and

•  nor was it reasonable for the employer to delay dismissing Mr Tytula by placing him on further annual or long service leave as he was not likely to change in view on the matter.

Consideration

[99] There are no jurisdictional or preliminary issues arising.

[100] I am satisfied that Mr Tytula was a person protected from unfair dismissal within the meaning of s 382 of the FW Act. He served the required minimum employment period (s 382(a)). His annual rate of earnings did not exceed the high-income threshold (s 382(b)(iii)). His employer was a “national system employer” within the meaning of s 14 of the FW Act. His application was filed within the required 21-days after dismissal.

[101] Cooper Fluid Systems is not a “small business” for the purposes of the unfair dismissal provisions of the FW Act.

[102] I now consider whether Mr Tytula’s dismissal was unfair.

[103] Section 387 of the FW Act provides:

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

Valid reason

[104] Valid in this context is generally considered to be whether there is a “sound, defensible or well-founded” reason for dismissal and one that is not “capricious, fanciful, spiteful or prejudiced. ²⁹ In considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations.

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

[106] A valid reason is not assessed simply by reference to a legal right to terminate a contract of employment.³⁰

[107] In this matter, the reason for dismissal was Mr Tytula’s non-compliance with a policy that required proof of vaccination against COVID-19 or a medial contraindication.

[108] Mr Tytula submits there was no valid reason for dismissal because the policy was unlawful and unreasonable.

[109] Whilst each case, including this matter, is determined on its own facts, I note that a substantial number of recent decisions of the Commission, by single members and by full benches, have in one form or another dealt with issues overlapping those raised by Mr Tytula. Without repeating them, I have regard to such decisions and, in particular, full bench decisions, which are authoritative and, at least on matters of law and principle, binding.

[110] I now deal with the grounds of alleged unlawfulness.

Breach of Work, Health and Safety Act

[111] Mr Tytula submits that the policy breached the Work, Health and Safety Act 2012 (SA) because Cooper Fluid Systems failed to consult as required, and because the policy created rather than mitigated workplace risk.

[112] I reject both submissions.

[113] The policy requiring mandatory vaccination was introduced by Cooper Fluid Systems in November 2021. It represented a material variation to an existing policy that had already introduced control measures against COVID-19 short of mandatory vaccination. It followed a consultative process that included both a staff survey, tool-box meetings and direct liaison with employees who wished to express views on vaccination policy to management. Mr Tytula availed himself of that process, and received the benefit of feedback from the Regency Park Manager and the CEO and MD.

[114] For reasons (considered below) the policy had a logical and understandable basis in that it was an enhanced control measure mitigating against a material risk to the health and safety of employees. The policy did not create an unsafe workplace nor breach the Work, Health and Safety Act 2012 (SA) on that ground.

Breach of Criminal Code, Nuremberg Convention and Human Rights Act

[115] Mr Tytula submits that the policy breached the Criminal Code Act 1995 (Cth) because it interfered with a democratic right to earn a living and the Nuremberg Convention 1947 and the Australian Human Rights Commission Act 1986 (Cth) because it denied free choice over bodily integrity.

[116] These submissions were advanced but not fully developed.

[117] There was no apparent breach of a democratic or political right. No authority was put before me that a justiciable right to earn a living exists or is statutorily enshrined, much less captured by the Commonwealth Criminal Code. In any event, rights are conditioned by responsibilities. One such obligation in an employment context is an employee’s obligation to comply with their employer’s lawful and reasonable directions. An employer possesses well-established rights at common law and under industrial instruments to take disciplinary action in the event employment obligations are breached. Dismissal is one such consequence. Dismissal necessarily has a consequence of depriving a dismissed employee from earning future income from a terminated employment arrangement.

[118] Matters concerning bodily integrity in the wake of a mandatory vaccination requirement introduced by company policy are relevant to reasonableness. These matters are considered below. There is no basis to conclude that Cooper Fluid Systems mandatory vaccination policy was unlawful on the grounds asserted.

Mandate absent government direction

[119] Mr Tytula submits that the vaccination requirement was an unlawful direction because government authorities had not prescribed a vaccination mandate at his place of work.

[120] This submission has no force.

[121] An employer has a right to issue directions concerning workplace issues absent a government direction to do so. An employee’s duty to follow lawful directions is implied by law and not by a particular government instruction. A direction will be lawful so long as it is relevantly connected to the work of an employee and does not require the employee to undertake an unlawful activity or endanger their life or health. 31

[122] The direction issued by Cooper Fluid Systems, with the purpose of mitigating risk of illness, serious injury or death, was relevantly connected to work.

[123] Further, the reasonableness of an employer’s policy proposing a COVID-19 vaccination mandate is to be objectively considered on its merits and not be burdened by a presumption of unreasonableness simply because government authorities have not declared a worksite to be a high-risk setting. 32

[124] The obligation on Mr Tytula to provide proof of vaccination or medical contraindication was not unlawful on the ground that it was the product of his employer’s policy and not a government direction.

Conclusion on unlawfulness

[125] I do not conclude that the direction that Mr Tytula comply with HSE-105 Workplace COVID-19 policy was unlawful.

[126] I now deal with the grounds of alleged unreasonableness.

Policy and risk assessment based on unscientific grounds

[127] Mr Tytula submits that the policy was not based on what he describes as “facts”. He submits that vaccination against COVID-19 is unsafe and that a policy which mandates vaccination is consequently unreasonable. He considers that risks from vaccination outweigh the benefits. 33

[128] More specifically, Mr Tytula submits: 34

“…In straight, everyday terms, in order to keep my job, CGL required me:

(a) to be raped - literally, as my body would be penetrated against my will,

(b) to serve as a ‘lab rat’ in the most extravagant and hideous experiment on people in human history,

(c) to accept full responsibility for any adverse reactions to the injection, including disability and death,

(d) to aid and abet, in my assessment, a criminal act.

This mandate is not only unfair, unlawful and harsh, it is evil…”

[129] The nature of this language underscores the strength of view held by Mr Tytula.

[130] Mr Tytula advances these views as “facts” and regards alternative views as wrong or ignorant even when advanced by medical or scientific persons or bodies.

[131] His evidence was that the position he holds is beyond mere belief, but one of “conviction” and a “matter of certainty”. He acknowledged in evidence that he holds no medical or scientific expertise in such matters. The position he advances is based on his “research” and “common-sense”. 35 In forming his views he says he considered data of government and regulatory authorities but did not “thoroughly review everything” published by such bodies. He considers those agencies to have “discredited themselves”36 by providing the guidance and advice they have. He considers that the agencies “play with the way figures are presented to obscure the picture”37 and “overlook the evidence”.38

[132] Mr Tytula does not readily accept that a large body of scientific material exists that has reached contrary conclusions. He did not include contrary views in his materials before the Commission “because I could see they are wrong”. He considers that as deaths from the vaccine exceed a particular threshold they are unsafe. 39 He does not consider a view that vaccines are safe to be the prevailing scientific view. He considers that view to have been influenced by “mass media” and not science. To the extent scientists have reached a conclusion that the vaccines are safe, “they are wrong”.

[133] Mr Tytula says that “facts stand before opinions of government departments”. He says that “any person of sound mind” would come to the position he advances.

[134] Mr Tytula asks the Commission to make findings on these issues. He put his case this way: 40

“[the policy] required employees to be inoculated against covid with a substance that was demonstrably unable to prevent neither infection nor transmission of the virus. Thus, simply making no sense at all. The injections turned out to be non-vaccines”.

[135] There are multiple difficulties with these submissions.

[136] Firstly, they misconceive the nature of proceedings under s 394 of the FW Act. The Commission is not, in exercising jurisdiction under Part 3-2 of the FW Act (Unfair Dismissal), conducting inquisitorial proceedings. The matters in issue are to be determined in an orthodox manner, by evidence and submission having regard to the law and the facts. They are not determined by desktop research or general inquiry of the Commission’s own motion or otherwise.

[137] Secondly, relevance. The question before the Commission is a narrow one: was a dismissal of a specified employee by a particular employer harsh, unjust or unreasonable? In this matter there is an interaction between the alleged unfairness of dismissal and the alleged unreasonableness of the Cooper Fluid Systems policy. In that sense, the rationale of the policy is a relevant consideration insofar as it concerns decisions made by the employer. However, broader questions about vaccine safety or efficacy such as the incidence of illness or mortality amongst vaccinated persons compared to unvaccinated persons, or the incidence of illness or mortality arising from vaccination compared to being infected with the virus itself, or the incidence of illness or mortality from being infected with the virus amongst different age cohorts are of tangential relevance only.

[138] Thirdly, Mr Tytula has no specialist qualifications in these matters and his opinion evidence was thus not that of an expert. Nor did Mr Tytula produce evidence from his general practitioner or other medical specialist that his health or wellbeing, or the health and wellbeing of employees generally, would be endangered should he be vaccinated or by a general policy requiring vaccination.

[139] Fourthly, no evidence of a probative nature is before the Commission that deals with the views or contested views of appropriately qualified experts on the safety and efficacy of vaccines against COVID-19. Findings, to the extent relevant to matters in issue, cannot be made in the absence of evidence. The hotchpot of materials relied upon by Mr Tytula does not constitute evidence on which findings can be made. Views of individuals from outside the Australian jurisdiction may or may not be relevant. Such views, expressed as they are in the past, may or may not have currency even amongst the authors or proponents. Speculation about any of these issues is not a basis for fact-finding.

[140] Illustrative of this problem is the emphasis placed by Mr Tytula on document A25 being what he says is an internal report from the Pfizer Corporation (United States) that he believes proves that its vaccines cause death and injury and are therefore unsafe. Its relevance, authenticity and currency has not been established. Even allowing (somewhat generously) for it to be treated as relevant, authentic and current, it is presented entirely absent any context or testing. That aside, it is not readily apparent that the report advances Mr Tytula’s case as it appears to conclude that “the data do not reveal any novel safety concerns or risks requiring label changes and support a favourable benefit risk profile…”. 41

[141] Fifthly, even if the views expressed have probative value (which, for the aforementioned reasons I have not found), a singular opinion of an individual (even an expert) falls short of establishing a scientific consensus.

[142] It was the collective advice and guidance of government and regulatory agencies that underpinned the decision by Cooper Fluid Systems to introduce its policy and require compliance by its employees.

[143] The policy was accompanied by an updated risk assessment developed and overseen by Mr Smallwood.

[144] The policy was neither a knee-jerk reaction nor unexpected. Prior to the introduction of the policy, vaccination had been encouraged by the employer but not mandated. Then, in October 2021 the policy required employees to indicate vaccination status. Irrespective of whether Mr Tytula attended tool-box meetings during this period, the 15 November 2021 policy could not reasonably have been a surprise to him given that he was already organising a petition letter demanding proof of vaccine safety.

[145] I accept the evidence of Mr Smallwood that in developing its policy Cooper Fluid Systems had regard to the fact that, at that time (November 2021), closed borders were starting to re-open (including in South Australia); the likely consequences of re-opening borders would be increased risk of community and workplace transmission of the virus; the rapid evolution of different variants of the virus; that increased transmission created a material risk of illness (including serious illness and in some cases death) amongst its employees or those with whom they came into contact; and that vaccines against COVID-19 had become available over preceding months to the Australian community and were assessed by regulatory authorities as generally safe amongst the adult population.

[146] Cooper Fluid Systems also took into account that some of its client businesses already required (or were required by government direction) to be vaccinated if Cooper Fluid Systems employees were to visit their premises or meet in-person with their staff. As indicated in the employer’s notification to staff on 15 November 2021: 42

“This decision has been taken with consideration to all the available health information and knowledge that customers are advising us they will only trade with us if our people are vaccinated.”

[147] In these circumstances, it was reasonable for Cooper Fluid Systems to put in place enhanced measures against the risk of transmission and the risk of illness including serious illness or death.

[148] Unsurprisingly, given that Mr Tytula had formed a view that vaccines were unsafe, and in some instances more unsafe than being infected with the virus, he disagreed that a vaccination mandate was an appropriate control measure.

[149] Cooper Fluid Systems did not accept Mr Tytula’s view. Mr Tytula’s views were received but not separately researched or tested.

[150] With respect to vaccination effectiveness and safety, the evidence of Mr Smallwood is that Cooper Fluid Systems introduced the vaccination requirement based largely on publicly available advice and guidance of specialist government and regulatory authorities including the Therapeutic Goods Agency (TGA), the Australian Technical Advisory Group on Immunisation (ATAGI), Safe Work Australia (SWA), the Commonwealth Chief Health Officer and the Australian and State governments and their public health officers.

[151] Mr Smallwood concluded that: 43

“The medical and scientific consensus, and government guidance, is that vaccines against COVID-19 were highly effective at preventing infection and the severity of infection (severe disease and death). The research and guidance showed that vaccinated people were less likely to spread COVID-19.”

[152] This conclusion underpinned the revised risk assessment Mr Smallwood submitted to senior management and informed the consequent policy made by Cooper Fluid Systems and in particular: 44

“the effectiveness of the COVID-19 vaccine as a higher order control based on the risk Assessment”.

[153] This conclusion is not dissimilar to “general factual propositions” expressed by a full bench of the Commission in Mt Arthur Coal on 3 December 2021: 45

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

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

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

…

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

[154] Mr Smallwood was not indifferent to the risks of vaccination. He acknowledged that one employee (amongst 850) had fallen ill consequent on the vaccine and this had been formally brought to the employer’s attention. His evidence was: 46

“there was risk but however the benefits outweighed the risks”.

[155] Was it unreasonable for Cooper Fluid Systems to form this view based on regulatory and government advice and to not independently interrogate the science on vaccine safety and effectiveness?

[156] The answer to this question is no.

[157] Cooper Fluid Systems is not an organisation with specialist expertise in matters of vaccination safety or effectiveness. As part of a publicly owned company it operates within the framework of government and regulatory institutions that form the infrastructure of the Australian nation. It was reasonable, particularly in the circumstances of a hitherto unknown virus and the declaration of a global health pandemic and prolonged states of emergency in Australian jurisdictions (including in South Australia) that Cooper Fluid Systems would look to the responsible governments and their specialist regulatory institutions for guidance and advice on issues that could or should frame policy and practice concerning COVID-19.

[158] In this context, it was reasonable for Cooper Fluid Systems to not independently investigate vaccination effectiveness or safety when developing its policy. Its policy was consistent with the risk assessment prepared by Mr Smallwood and that was based on government and regulatory guidance and advice reflective of the consensus of those bodies. As was generally observed by Deputy President Asbury in Owens v I-Med Radiology Limited: 47

“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.”

[159] On the role and advice of ATAGI, in Jovcic and Markovic v Cooper Brewery Limited Deputy President Colman concluded: 48

“I find ATAGI’s advice to be compelling for the following reasons.

[39] First, it is a matter of public record and a notorious fact that ATAGI is an expert body whose role is to provide evidence-based advice on the administration of vaccines to the Commonwealth, and also to the general public. ATAGI’s fifteen members hold senior positions at major universities, hospitals and research institutions around the country. ATAGI’s status as an expert body that provides advice to government and the public cannot seriously be doubted and indeed the applicants did not seek to impugn that status.

[40] Secondly, ATAGI has been continuously evaluating the epidemiological state of the country in respect of COVID-19 at its weekly meetings and updating the advice that it provides to the public on its website. Its advice has therefore remained current. I note that the formulation of ATAGI’s advice about the effect of vaccines on transmission of the virus changed over the relevant period. In updates from September to December 2021 ATAGI stated that vaccination was an intervention to ‘prevent infection, transmission and severe disease’. A statement on 24 December 2021 said that booster doses were ‘likely to increase protection against infection with the Omicron variant’. Then on 17 January 2022, an ATAGI update stated that vaccination ‘prevents serious disease and death, and reduces disease transmission’. One would expect of an expert advisory body that the content, formulation and emphasis of its advice would change in response to its ongoing assessment of the available evidence.

[41] The fact that there may be views in the scientific community that differ from those of ATAGI about the effect of vaccines on transmission of the virus is neither surprising nor a reason to doubt the reliability of ATAGI’s advice.”

[160] Having regard to the context in which the Cooper Fluid Systems policy was made, including ATAGI’s advice, the employer’s view that mitigation was necessary from both an employee and business perspective was reasonably based. The view that introducing a vaccination mandate as an additional control measure at a time of a projected increase in community transmission was logical and understandable. It was a significant policy enhancement to pre-existing control measures but one proportionate to the assessed risk. The mandatory vaccination policy did not sit in isolation from Cooper Fluid Systems broader response to COVID-19. The employer maintained its COVID-19 response plan. 49

[161] In summary, there were relevant business risks associated with having non-vaccinated employees and a community benefit in having the broader population with high levels of vaccination.

[162] It was also reasonable for Cooper Fluid Systems to apply the policy to Mr Tytula. For the policy to have its intended effect, it required general application across its workforce. Mr Tytula was, in the ordinary course of his employment, working in proximity with other employees and, less frequently, with clients. In circumstances where an employee became unwell from contracting the virus it could impact their capacity to work productively, whether from the workplace or if isolating at home.

[163] A subset of Mr Tytula’s submission is that he says he was asked to comply with inconsistent policies. He says that Cooper Fluid Systems policy requiring workplaces to be safe and that unsafe practices be notified (HSE-100) was sound, but its policy to require vaccination made workplaces unsafe and was thus inconsistent.

[164] This submission is rejected. It is simply a reformulation of Mr Tytula’s submission that the vaccination policy and risk assessment was based on wrong science. I have concluded that Cooper Fluid Systems was entitled to consider vaccination to be generally effective and safe based on the scientific consensus reflected in the guidance and advice of government and specialist regulatory bodies. There is no inconsistency between Cooper Fluid Systems policies.

[165] I conclude that the policy introduced by Cooper Fluid Systems was not unreasonable on this ground.

Coercion

[166] Mr Tytula submits that the policy was coercive in that an employee’s decision whether or not to be vaccinated was subject to a threat of disciplinary sanction including dismissal.

[167] Similar submissions have been made in decided cases before the Commission dealing with rights and obligations under the Privacy Act 1988 (Cth).

[168] It was observed in Mt Arthur Coal that a requirement, enforceable by potential termination for non-compliance, that an employee be vaccinated or produce an exemption to access a work site does not constitute coercion in the legal sense but is nonetheless a form of economic and social pressure relevant to reasonableness. 50

[169] I take into account that Cooper Fluid Systems policy interfered with Mr Tytula’s right to bodily integrity. However, I have found that the policy had an inherently rational basis having regard to Cooper Fluid Systems risk assessment, the advice and guidance of government and specialist regulatory authorities concerning vaccination as a control measure, and the circumstances associated with the pandemic that applied at the time the policy was introduced. Those circumstances continued to exist at the time of dismissal.

[170] In assessing reasonableness, these considerations outweigh the interference with individual bodily integrity consequent on the vaccination policy.

[171] Similarly, the policy was accompanied by a potential sanction of dismissal for non-compliance. This is relevant in that it conditioned the nature of an employee’s choice. Mr Tytula exercised a choice not to provide proof of vaccination, but not a choice without consequence.

[172] I take into account that the policy provided grounds for medical exemption and as such the employer was not indifferent to the health and welfare of individual employees who had medically verifiable grounds precluding vaccination. Vaccination was mandated but exemption was provided for. I also take into account that for the policy purpose to have effect, it required enforcement. The disciplinary options applied by Cooper Fluid Systems were orthodox. The policy did not mandate termination but, after a show cause process, termination was (as made clear in correspondence to Mr Tytula of 2 February 2022) a likely consequence.

[173] Given this, and given that the policy had a logical basis, I do not consider that the policy, whilst compromising free choice, was unreasonable on that ground.

Conclusion on unreasonableness

[174] I take into account the well-established principle that, in considering the reasonableness of an employer’s direction, it is not necessary to show that the direction in question is the preferable or most appropriate course of action or in accordance with ‘best practice’ or in the best interests of the parties. There may be a range of options open to an employer within the bounds of reasonableness. 51

[175] Cooper Fluid Systems was not compelled to introduce a vaccination requirement as an enhanced control measure, but it was not unreasonable that it did so in November 2021 having regard to the prevailing circumstances. Having done so, it was then not unreasonable to direct its employees to comply, including at the time of Mr Tytula’s dismissal in February 2022.

[176] I do not conclude that the direction to comply with HSE-105 Workplace COVID-19 policy was unreasonable.

Conclusion on valid reason

[177] The vaccination policy introduced by Cooper Fluid Systems was lawful and reasonable. There was no reasonable basis on which Mr Tytula refused to comply with the HSE-105 Workplace COVID-19 policy.

[178] As Mr Tytula’s non-compliance with his employment obligation to comply with lawful and reasonable directions was not reasonably based, Cooper Fluid Systems had a sound, defensible and well-founded reason to terminate his employment.

[179] There was a valid reason for dismissal.

[180] This consideration weighs against a finding of unfairness. 52

Notification of reason for dismissal

[181] Notification of a valid reason for dismissal should be given to an employee protected from unfair dismissal before a decision is made to terminate their employment⁵³ and in plain and clear terms.⁵⁴

[182] The evidence clearly establishes that Mr Tytula was informed of the reason for dismissal at the time of notification (8 February 2022). He was given formal written notice later that day.

[183] The reason for dismissal was his non-compliance with the requirement to provide proof of vaccination or a medical contraindication.

[184] Whilst Mr Tytula disagreed with the reason for dismissal, he was informed in those terms.

[185] This consideration weighs against a finding of unfairness.

Opportunity to respond

[186] An employee protected from unfair dismissal should be provided an opportunity to respond to a reason for dismissal relating to their conduct or capacity. An opportunity to respond should be provided before a decision is taken to terminate an employee’s employment.⁵⁵

[187] The opportunity to respond is an element of procedural fairness but does not require formality. This consideration is to be applied in a common sense way to ensure the employee is treated fairly.⁵⁶ Where an employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, that is enough to satisfy this consideration.⁵⁷

[188] The evidence establishes that Mr Tytula had multiple opportunities to respond to the employer’s advice that compliance with the policy was required. As far back as 15 October 2021, when Mr Tytula first advised his intentions, he asked: 58

“Please advise what options I have regarding my employment with CFS.”

[189] He was provided direction at meetings with senior management on 22 November 2021, 4 January 2022 and 1 February 2022. The obligation to comply was also made clear in correspondence of 4 January 2022 and 2 February 2022.

[190] Relevantly, Cooper Fluid Systems’ correspondence of 2 February 2022 repeated not just the obligation to comply but also advised that a decision “may result in appropriate action being taken including termination of employment”. 59 That there were potential employment consequences was not a surprise to Mr Tytula.

[191] Hence, Mr Tytula was not just provided an opportunity to explain his alleged non-compliance, but to also respond to the potential sanction of termination.

[192] Mr Tytula does not contend that he did not have these opportunities to respond. Indeed, the evidence clearly indicates that he did so, particularly in writing (4 November 2021 email, 16 November 2021 letter, 6 January 2022 letter and 6 February 2022 letter). Whilst initially the strength of Mr Tytula’s concerns were expressed somewhat inferentially (by questions posed and videos sent) when compared to his unambiguous tone once the policy was made, I accept Mr Tytula’s evidence that it is more likely than not that he made his concerns known to the Regency Park Manager Mr Clark in advance of the policy being introduced.

[193] Mr Tytula’s submission on procedural fairness is more nuanced. He says that not all of his correspondence or questions raised were answered and that as a result he was “denied critical information”. 60 He says that at meetings (especially with Mr Carter) he was not provided the opportunity to debate his views.

[194] These submissions, when viewed in context, do not carry weight.

[195] Firstly, Mr Tytula was not precluded from putting forward whatever he wanted, and he did; including questions seeking verification of vaccine safety, liability and compensation (e.g. on 16 November 2021) and a myriad of documents from internet sources and third party transcripts and videos (e.g. on 6 January 2022).

[196] Secondly, Cooper Fluid Systems did, to the extent it considered necessary, consider his correspondence. However, having acted on government and regulatory guidance and advice, the employer not unreasonably did not independently test the science. As Mr Carter put it in his evidence:

“I am not a doctor and not qualified in that space”; 61 and

“I am not in the business of consulting YouTube videos on medical matters”. 62

[197] Thirdly, for the same reason as it was not unreasonable for the employer to not independently interrogate the science, it was not unreasonable for Cooper Fluid Systems to decline to debate those issues with Mr Tytula. It was reasonable for Cooper Fluid Systems to refer Mr Tytula to his medical practitioner on vaccination safety. That is what the CEO and MD and the General Manger did.

[198] In these circumstances it was not unreasonable that Mr Carter truncated meetings when Mr Tytula sought to debate the science. Whilst this frustrated Mr Tytula, his employer’s role was not to undertake scientific inquiry outside its competency. It was to make decisions concerning the management of COVID-19 that were informed in part on its risk assessment, the prevailing circumstances, and the advice and guidance of government and specialist regulatory authorities.

[199] Given this, it matters not whether Mr Carter instructed Mr Smallwood to not discuss with Mr Tytula his correspondence about the vaccine. I accept Mr Carter’s evidence that even if he did so (and on this matter his recall is somewhat in conflict with Mr Smallwood) it followed the view he had formed that debating vaccination safety was not productive, and that the issue would be managed directly between Mr Carter and Mr Tytula, as it was.

[200] Considered overall, Mr Tytula had opportunity to respond to a transparent and procedurally fair process leading to dismissal. He did so in the manner he saw fit.

[201] This consideration weighs against a finding of unfairness.

Opportunity for support person

[202] Where an employee protected from unfair dismissal has requested a support person to assist in discussions relating to dismissal, an employer should not unreasonably refuse that person being present.

[203] No requests were made by Mr Tytula. Cooper Fluid Systems did not unreasonably refuse Mr Tytula a support person. The show cause letter of 2 February 2022 encouraged Mr Tytula to be accompanied by a support person, if he wished.

[204] This is a neutral consideration.

Warnings concerning performance

[205] This matter does not concern Mr Tytula’s performance or competency as an engineer or manager.

[206] This is a neutral consideration.

Size of enterprise and human resource capability

[207] The employer is not a small business within the meaning of the FW Act. It has a human resource capability. Officers of that department were involved in and aware of meetings and correspondence between Cooper Fluid Systems and Mr Tytula.

[208] There is no sense in which the size of the employer or its internal capacity mitigated managing workplace or disciplinary matters in a fair manner.

[209] This is a neutral consideration.

Other matters

Working from home

[210] Mr Tytula submits that his dismissal was harsh because Cooper Fluid Systems failed to allow him to work from home in lieu of being dismissed.

[211] Mr Tytula’s evidence was that he is able to productively perform his work from home. He says that meetings with staff, managers or clients could have been done remotely. He says that examining drawings and products using modern technology is more meaningful than doing so in-person. He says that he rarely if ever attended the commissioning of completed projects.

[212] In support of this position, Mr Tytula’s evidence was that during periods in 2020 and 2021 when the Regency Park site was closed either due to lockdowns by South Australian authorities or risk management by Cooper Fluid Systems, he and his colleagues worked from home without disruption. He also says that after his dismissal a re-organisation of the South Australian engineering team occurred resulting in managerial oversight from Brisbane.

[213] These submissions are not persuasive.

[214] Firstly, there is no evidence that at or prior to dismissal Mr Tytula requested that he work from home as an alternative to being dismissed. The record of pre-dismissal meetings (4 January 2022 and 1 February 2022) and of the dismissal meeting (8 February 2022) make no such reference 63 nor does Mr Tytula’s correspondence of 6 January 2022 and 6 February 2022. Mr Tytula’s submission is not that Cooper Fluid Systems unreasonably refused his request. It is that Cooper Fluid Systems ought, of its own initiative and absent a request, to have directed that he work from home.64

[215] Secondly, Mr Tytula was not contracted to work from home. In those circumstances, and absent any otherwise applicable policy or determination, Cooper Fluid Systems was entitled to decide whether and in what circumstances Mr Tytula would be permitted to work from home.

[216] Thirdly, it is of little relevance that Mr Tytula was able to perform some or all of his duties from home during past business closures. Mr Tytula’s submission is not that he ought to have been permitted to work from home in circumstances where all others were also working from home. Rather he says he ought to have done so in circumstances where the business was open and other employees were attending the workplace unless otherwise approved. There is no comparability to circumstances where the workplace was closed to all employees.

[217] Fourthly, Mr Tytula was a senior employee managing a small team of engineers and related tradespersons. Given his role leading project teams, it was not unreasonable that Cooper Fluid Systems expected the presence of its engineering manager to supervise others. Mentoring was a responsibility of his position. I accept Mr Carter’s evidence that Mr Tytula was also required to liaise with and attend meetings of managers on budget and operational issues, and from time to time with clients.

[218] In essence, Mr Tytula’s submission is that the business ought to have made special allowance for him, despite his seniority, to work from home once he decided to be non-compliant with its policy; in other words to insulate him from a policy which others were required to comply as a means to avoid dismissal for breach.

[219] Irrespective of whether Mr Tytula had asked to work from home or not, there is no merit in this submission. The dismissal was not harsh on this ground.

Taking extended leave

[220] Mr Tytula submits that his dismissal was harsh because Cooper Fluid Systems failed to allow him to take leave in lieu of being dismissed. He says that accrued annual leave and accrued but not taken long service leave should have been used for that purpose.

[221] I do not accept this submission.

[222] Firstly, there is no evidence that at or prior to dismissal Mr Tytula requested to take leave as an alternative to being dismissed.

[223] Secondly, upon returning to work in the new year non-compliant with the policy, Cooper Fluid Systems directed Mr Tytula to take annual leave from 4 January 2022 until the non-compliance meeting of 1 February 2022 to allow him “to reconsider his position”. 65 This was then extended by a further week to allow a response to the show cause letter. Cooper Fluid Systems did so on these two occasions to enable Mr Tytula to remain employed during these periods without loss of pay.

[224] Thirdly, and decisively, a further period of mandated leave would have served no useful purpose. Mr Tytula did not need more time to form a view on the direction to comply. He was not in the process of taking steps to comply or consider different vaccine options. 66 Mr Tytula was fighting the policy itself. His position was steadfast. He had told his employer that he did not wish to take part in “experimental gene therapy”.67 He had put his employer on notice of potential litigation and industrial manslaughter charges if the vaccine caused fatality.68 He had demanded the policy be withdrawn without delay “to avoid catastrophic injuries to employees”.69 He had the view that insistence on compliance was coercion and bullying.70

[225] There were no grounds on which the employer could have reasonably believed that further time would have altered any of Mr Tytula’s views. Nor was there any reasonably foreseeable basis to conclude that the risk assessment and the policy on which it was based would alter in the short to medium term.

[226] The dismissal was not harsh on this ground.

Post dismissal events

[227] Mr Tytula submits that his dismissal was harsh having regard to the fact that he was:

•  denied the opportunity to personally farewell his team;

•  denied future employment benefits and career progression; and

•  had personal data deleted from the company phone.

Personal farewell

[228] It is understandable that after a lengthy period of service as a manager of an engineering team reporting to him, Mr Tytula was disappointed at not having the opportunity to farewell his staff in person.

[229] However, in context, this did not render the dismissal harsh.

[230] At the time of dismissal Mr Tytula was non-compliant with the policy. That was the reason for dismissal. His non-compliance meant that he was not permitted in the workplace for any purposes. He was physically remote from his team at the time of dismissal due to decisions he had made.

[231] There is no evidence before me that Cooper Fluid Systems precluded Mr Tytula from speaking by remote means to his staff nor from engaging in whatever private out-of-hours liaison he wished to arrange.

[232] The dismissal was not harsh on this ground.

Denial of career progression

[233] Mr Tytula submits that his dismissal was harsh because the effect of dismissal was to deny him continued employment and the benefits (monetary and non-monetary) that accrue from productive work, leadership and career development.

[234] Mr Tytula was a competent engineer who took his work and career seriously. Being of mature working age (65 years), stable employment at Cooper Fluid Systems was important to his well-being and living standards.

[235] However, there is nothing unusual about Mr Tytula’s career circumstances or length of service with Cooper Fluid Systems that renders his dismissal for a valid reason to be unfair. Those effects are a consequence of dismissal, not the cause of dismissal. Dismissal would not have occurred but for the fact that Mr Tytula chose to be non-compliant with policy. The sanction of dismissal, with these consequential effects, was reasonably foreseeable. The show cause letter of 2 February 2022 expressly notified Mr Tytula of termination as a possible consequence of continued non-compliance.

[236] The dismissal was not harsh on this ground.

Loss of personal data

[237] Mr Tytula submits that Cooper Fluid Systems unreasonably deleted contents from the company mobile device in his possession resulting in the loss of personal material.

[238] Conduct that occurs after a dismissal and which is unrelated to matters that gave rise to dismissal is not relevant to whether a dismissal was harsh, unjust or unreasonable, though it may be relevant to remedy.

[239] Applying this principle, the fact that Mr Tytula lost personal data from the company phone in the weeks following dismissal is not strictly relevant to whether his dismissal was harsh, unjust or unreasonable.

[240] Nonetheless, the evidence, and it is limited on this point, is that Mr Tytula had used his work phone some months prior to take personal photos and videos (including of a family wedding). After dismissal, the content of the work phone appears to have been remotely erased as the phone had not been returned. This resulted in the loss of personal material.

[241] Three weeks after dismissal Mr Tytula drew Cooper Fluid Systems attention to the personal material. Upon Mr Clark checking on his behalf the status of the data, it was found to have already been removed.

[242] Unfortunate as this was, and without apportioning fault on either side, even were the events to have occurred as I have outlined, dismissal was not harsh on this ground. Mr Tytula had used a business phone for personal purposes. There was obvious risk in doing so. It is not entirely unforeseeable that a business may erase data from its hardware if not returned in a timely manner.

[243] The dismissal was not harsh on this ground.

[244] There are no other matters arising.

Conclusion

[245] Unfair dismissal matters are multifactorial. 71 In considering whether Mr Tytula’s dismissal was “harsh, unjust or unreasonable” the Commission is required to consider each of the matters in s 387 of the FW Act to the extent relevant.⁷² Those matters must be considered as part of an overall assessment. Each assessment must be made on its merits. That assessment is to be based on the ordinary meaning of the words, in their statutory context. Context includes the object stated in section 381(2) of the FW Act that:

“…the manner of deciding on and working out such remedies are intended to ensure that a “fair go all round” is accorded to both the employer and the employee concerned.”

[246] In arriving at an overall assessment, the statutory considerations must be applied in a practical, common-sense way to ensure that the employer and the employee are each treated fairly.⁷³

[247] I have found a valid reason for dismissal given that Mr Tytula was non-compliant with the vaccination requirements in Cooper Fluid Systems HSE-105 Workplace COVID-19 Policy.

[248] I have found that a direction to comply with the policy was lawful and reasonable notwithstanding Mr Tytula genuinely holding steadfast views that the vaccination requirement was unlawful and unreasonable and that vaccines against COVID-19 were not safe.

[249] I have found that it was not unreasonable for Cooper Fluid Systems to not direct Mr Tytula to work from home in lieu of dismissal.

[250] I have found that it was not unreasonable for Cooper Fluid Systems to dismiss Mr Tytula when it did and not delay his dismissal by directing further leave.

[251] I have found that the consequences of dismissal on Mr Tytula, whilst manifest, do not characterise the dismissal as harsh.

[252] I have found that Mr Tytula had opportunity to respond to a transparent and procedurally fair process in advance of being dismissed.

[253] No consideration under s 387 weighs in favour of a finding of unfairness. All considerations weigh against or are neutral.

[254] Mr Tytula had the right to disagree with the policy, but not the right to be sanction-free if non-compliant. Regrettable as dismissal was given Mr Tytula’s leadership role in the business and competency as a senior engineer, and notwithstanding the steadfastness of his views, considered overall, his dismissal was not unfair.

Conclusion

[255] Having not found the dismissal to be harsh, unjust or unreasonable, no issue of remedy arises.

[256] Mr Tytula’s application is dismissed. An order 74 giving effect to this decision is issued in conjunction with its publication

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR744562>

Appearances:

Mr L Tytula, on his own behalf

Mr H Skene and Ms G Hatch, with permission, with Ms E Henderson and Mr B Sewell on behalf of Coventry Group Limited T/A Cooper Fluid Systems

Hearing details:

2022
Adelaide (by video)
14, 15 July 2022

 1   A49

 2   R2 and BC1 to BC11

 3   Mr Smallwood was Coventry Group Health and Safety Environment Manger at the date of giving evidence. Until September 2021, Mr Smallwood had been Health and Safety Environment Manger Cooper Fluid Systems

 4   R1 and AS1 to AS9

 5   A1 to A12; A37 to A48

 6   S 591 FW Act

 7   S 590 FW Act

 8   A1 Emails 26 July 2022; 9 August 2022; 16 August 2022; 20 August 2022

 9   AS3

 10   AS9

 11   AS5

 12   BC3

 13   AS7

 14   BC6 Attachment HSE-105 Workplace COVID-19 Policy

 15   BC2

 16   A3

 17   BC4

 18   A49 paragraph 9

 19   A4

 20   R2 paragraph 49

 21   BC7

 22   R2 paragraph 21

 23   BC8

 24   R2 paragraph 23

 25   BC9

 26   BC10

 27   BC11

 28   A14; A15

29 Sydney Trains v Hilder [2020] FWCFB 1373 at [26]

30 Sydney Trains v Hilder [2020] FWCFB 1373 at [26] principle (6)

 31   Construction, Forestry, Mining and Energy Union v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059 at [68] to [70] (Mt Arthur Coal)

 32   Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) and Australian Workers’ Union v ASC Pty Ltd T/A Australian Submarine Corporation [2022] FWC 1198 at [229]; see also Tey v Winc Australia Pty Ltd [2022] FWC 1566 at [36]

 33   Teams audio (1) 14 July 2022 0h 44m

 34   A49 paragraph 43

 35   Teams audio (1) 14 July 2022 0h 45m

 36   Teams audio (1) 14 July 2022 0h 46m

 37   Teams audio (1) 14 July 2022 2hr 19m

 38   Teams audio (1) 14 July 2022 2hr 13m

 39   Teams audio (1) 14 July 2022 2hr 14m

 40   Outline of Submissions paragraph 2(d)

 41   Part 4 ‘Discussion’ page 28

 42   AS7

 43   R1 paragraph 41

 44   R1 paragraph 45(e)

 45   Mt Arthur Coal [29]

 46   Teams audio (2) 14 July 2022 02hr 22m

 47   Owens v I-Med Radiology Limited [2022] FWC 1823 at [46] point 9 DP Asbury

 48   [2022] FWC 1931

 49   BC6 Attachment HSE-P-507 CGL Response Plan-COVID-19

 50   Mt Arthur Coal [222]

 51   Mt Arthur Coal [77]

 52   Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166 at 20

53 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 at [73]

54 Previsic v Australian Quarantine Inspection Services Print Q 3730 (AIRC, 6 October 1998)

55 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 at [75]

56 RMIT v Asher (2010) 194 IR 1 at 26-30

57 Gibson v Bosmac Pty Ltd (1995) 60 IR 1 at 7

 58   BC4

 59   BC9 page 1

 60   Outline of Submission paragraph 2(c)

 61   Teams audio (3) 14 July 2022 09m

 62   Teams audio (3) 14 July 2022 17m

 63   A6; A8; A11

 64   Teams audio (1) 14 July 2022 2hr 54m

 65   A6

 66   Contrast for example with Pskiet v Maicap Unit Trust t/as Nocelle Foods [2022] FWC 1534

 67   A6

 68   A7

 69   A10

 70   A10

 71   Jones v Brite Services[2013] FWC 4280 at [24]

72 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR 915674 at [69] (AIRC, 21 March 2002)

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

 74   PR744602