Fair Work Act 2009
s.394—Unfair dismissal

Donovan Christopher Scott
v
Vita People/Telstra
(U2022/1621)

Application for an unfair dismissal remedy – reasonable and lawful policy direction - COVID-19 Vaccination requirement - where the Applicant was not unfairly dismissed.

[1] Mr Donovan Christopher Scott (the Applicant) contends he was unfairly dismissed by Vita People (the Respondent), for whom he had worked since 4 April 2018. He seeks an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). In short, the Applicant was terminated from his position in the Respondent’s business after failing to comply with the Respondent’s direction to be vaccinated by 30 December 2021. The events leading to the Applicant’s termination are not in dispute. Rather, the Applicant contends that the unlawfulness of the Respondent’s conduct gives rise to his unfair dismissal claim.

[2] As the matter could not be resolved by conciliation, directions were issued for the filing of material and a hearing was listed for 30 June 2022. The Applicant appeared on his own behalf, and the Respondent sought to be represented. This was not opposed by the Applicant. Even so, I am still required to consider whether permission ought to be granted under s.596 of the Act. Given the direction in question was not one based on a Public Health Order and the Applicant puts forward arguments and evidence where there may be disputes over relevance and admissibility, and this matter is not a simple factual contest, I was satisfied that it would be of use to the Commission – and would not unduly prejudice the Applicant – to have the assistance of the Respondent’s legal representative. I was also satisfied that the presence of the Respondent’s representative would also enable the matter to be dealt with more efficiently. Accordingly, I allowed Mr Crilly from Seyfarth Shaw Australia to appear for the Respondent.

[3] Section 396 of the Act requires that I am satisfied of four matters before considering the merits of the Applicant’s application. Neither party disputed and I am satisfied that the Applicant made his application within the 21-day period required by s.394(2) of the Act, that he was a person protected from unfair dismissal (as he earned less than the high-income threshold), that his dismissal was not a case of genuine redundancy, and that the Respondent is not a small business to which the Small Business Dismissal Code applies.

Chronology

[4] The Applicant commenced employment with Vita People (now Fone Zone) on 4 April 2018 and was employed in the position of Territory Manager based in Townsville at the Townsville Business Centre (TBTC). The TBTC provides telecommunications and technology

products and services for business customers in North Queensland.

[5] In or around September 2021, Vita Group (which ran 107 Telstra licensed stores) entered into a share sale agreement for Telstra to acquire Vita Group’s Retail ICT and Sprout businesses. This was completed on 26 September 2021. At which time the Chief People Officer sent a letter to all Vita People staff, including the Applicant, notifying them of major workplace change, and outlining operational changes that would affect the business of Vita People in light of the share sale agreement.

[6] On or around 30 September 2021, following a period of consultation, Telstra introduced a COVID-19 Vaccination Policy (Policy) to discharge its duty to ensure so far as reasonably practicable, the health and safety of workers, customers, and the communities where it operates. Following the acquisition of Vita People by Telstra, the Policy applied to Fone Zone as a wholly owned subsidiary of Telstra, and Fone Zone’s employees. It made vaccination mandatory for those in roles where there is a heightened risk of contracting COVID-19 due to the nature of the work and the need to be in contact with others. The Policy refers to a process for obtaining a medical exemption with appropriate supporting evidence.

[7] On 21 October 2021, a company-wide update was sent to all staff regarding the upcoming application of the Policy. In this message, Mr Long (a Telstra Executive) outlined the key aspects of the Policy as it applied to Vita People. He also provided an email address (vitavoice@telstrastores.com.au) and a link to a form contained on Vita Pulse which is generally used for consultation, that staff could use to raise any questions or feedback about
the Policy.

[8] On 10 November 2021, the Applicant engaged with HR Administration seeking advice regarding the Policy. The Applicant emailed HR Administration expressing his “deep” concerns about the Policy.

[9] On 16 November 2021, The Respondent responded to the Applicant’s email. Later that day, at 2.00pm, the Applicant sent a further email querying whether any thought had been given to providing alternative duties for unvaccinated persons.

[10] On 19 November 2021 at or around 8.28am, the Respondent replied to the Applicant’s email. The Respondent stated that temporary or permanent suitable alternative duties may be provided where an employee’s application for a medical exemption is accepted, following an independent medical assessment.

[11] On 19 November 2021, following the feedback, the Policy became operative at Vita People.

[12] On 22 November 2021, the Applicant contacted the Respondent stating he had “vaccine hesitancy” in taking a “trial/experimental” vaccine and he intended to make a discrimination complaint. Further, the Applicant asserted that it was a breach of privacy laws to request he provide his medical status.

[13] On 23 November 2021, the Respondent replied to the Applicant, stating that he should gain advice from a qualified medical professional and to indicate whether he was seeking a medical exemption.

[14] On 26 November 2021, the Respondent directed the Applicant to comply with the Policy by having his first vaccination dose by 30 November 2021 and second vaccination dose by 31 December 2021. It further stated that failure to comply may result in disciplinary action in line with Vita’s Managing Performance and Conduct Policy, up to and including termination of employment. The Applicant refuted the direction stating that it was not lawful or reasonable and that his role did not fit the criteria.

[15] On 30 November 2021, the Respondent issued a letter of suspension to the Applicant and provided him the opportunity to respond. The Applicant was suspended on full pay and given a timeline to respond or request a formal conduct hearing. A response was due by 4.00pm on 2 December 2021, or if he wished to have a conduct hearing, by 1 December 2021.

[16] On 1 December 2021, the Applicant responded with several reasons for failing to comply with the Policy. Chiefly, he wanted to wait for further information or an alternative vaccine, and he proposed that he could work from home. He further alleged that the direction was not lawful or reasonable. He also asserted that he had a right to deny a request to provide vaccination information and that the Policy was discriminatory.

[17] On 2 December 2021, the Respondent replied to the Applicant’s queries and concerns and readdressed the concerns raised in the Applicant’s letter dated 26 November.

[18] On 3 December 2021, the Applicant sent a further email to the Respondent raising various concerns about the Policy and direction and requested a copy of Telstra’s risk assessment.

[19] On 6 December 2021, the Applicant was issued a final written warning and was directed to obtain his first dose during the period of 8 to 13 December 2021 or evidence of a booking to be vaccinated within 48 hours. The Applicant chose not to comply. There was correspondence between the parties between 8 to 13 December 2021. No further issues were raised by the Applicant regarding the Policy.

[20] On 13 December 2021, the Applicant was given another opportunity to respond to the allegations regarding his failure to comply with a lawful and reasonable direction and was also requested to show cause as to why disciplinary action to terminate his employment should not be taken.

[21] On 15 December 2021, the Applicant replied and filed a General Protections application.

[22] On 17 December 2021, the Respondent notified the Applicant that it intended to terminate his employment but offered him a further 7 days to reconsider his position.

[23] On 20 December 2021, the Applicant replied and refused to comply with the direction of the Respondent. He expressed that he was going to seek a medical exemption. The Respondent paused the disciplinary process pending the outcome of his application for a medical exemption and requested that the Applicant provide evidence of a medical exemption from a qualified medical practitioner by 30 December 2021. The Respondent reinforced that a failure to comply with these new directions may result in disciplinary action.

[24] On 24 December 2021, the Applicant provided a medical certificate certifying that he was unable to work from 24 December through to 30 December 2021. Further, the certificate provided that the Applicant was seeking a medical exemption and that he was not able to attend work until that exemption is finalised.

[25] On 31 December 2021, the Applicant was offered a further opportunity to respond as to why his employment should not be terminated. The Applicant provided a response on the same day.

[26] On 12 January 2022, a conference was held by the Commission in relation to the General Protections application and it was agreed that the Applicant would provide information regarding his medical exemption or an indication when it would be forthcoming by 14 January 2022.

[27] On 14 January 2022, the Applicant advised he had not yet been able to secure an appointment with the cardiologist. The Respondent replied that any reasonable evidence relating to his attempt to secure an appointment would be considered when making any further decision.

[28] On 17 January 2022, the Applicant advised that he had confirmed an appointment, but was unable to attend as he was currently in isolation and awaiting results of a COVID-19 PCR test.

[29] On 18 January 2022, the Applicant provided what purported to be a screenshot of a text message confirming his COVID-19 positive test result.

[30] On 21 January 2022, the Respondent advised the Applicant that if he wished to be considered for a medical exemption from the vaccination requirement based on his positive COVID-19 test result, he would need to consent to the medical exemption process. Further, the Respondent advised that Vita People had not yet received any evidence of his long-term medical exemption.

[31] On 25 January 2022, Mr Scott told the HR Business Partner that he could provide the requested information once he received a negative COVID-19 test result and that he did not consent to Vita or Telstra accessing his medical records to determine the status of his COVID-19 test results.

[32] The Respondent terminated the Applicant’s employment on 27 January 2022.

[33] On 7 February 2022, the Applicant lodged an application for an unfair dismissal remedy.

Applicant’s Material

[34] The Applicant accepts that he was informed on multiple occasions that if he was not vaccinated by 30 December 2021, his employment may be terminated. However, he does question the lawfulness of that directive.

[35] The Applicant alleges several procedural flaws in the process. First, that there was a lack of a conduct hearing. Second, that the Respondent did not follow the Commission’s agreement with the Respondent. Third, that the Applicant had suffered from COVID-19 delaying communications and impeding his ability to visit a cardiologist. Fourth, that he should have been treated under Q Health to be treated as vaccinated for 6 months. 1 Finally, that he had been notified of the suspension being lifted and he was required to take annual leave and was not able to work from home.

[36] The Applicant further alleges that the Respondent’s direction was not lawful and reasonable as there had not been consultation and that there had been coercion. The Applicant challenged that a reasonable and lawful direction could be given in circumstances where he regards the vaccines as possibly causing illness or even death and research is still being conducted.

[37] The Applicant stated that he suffered from a medical condition in 2019 and that he took it upon himself to secure an appointment based upon this incident in relation to having a COVID-19 vaccine. He was not able to attend on the cardiologist until 25 February and following some blood tests, produced a report on 26 April 2022 indicating a larger than normal heart. His GP was unable to make any further comments on this matter nor the risks associated with the COVID-19 vaccines.

[38] The Applicant states that the employer should not have access to personal medical reports nor require employees to undertake a medical procedure. He asserts that he was terminated before the Respondent had a good understanding of his medical condition and how the COVID-19 vaccines may affect his health. He had a firm belief that he should delay receiving the vaccine due to his circumstances and that he was treated unfairly and prejudicially.

[39] Further, there is no Constitutional basis for such a mandate. Additionally, the Applicant contends that requiring staff to be vaccinated before allowing them to attend work amounts to coercion and duress.

[40] Nevertheless, it was accepted that the Applicant, as at 30 December 2021, had made it clear that he was not vaccinated and did not have a medical exemption.

[41] For the reasons set out above, the Applicant submits that he was unfairly dismissed.

Respondent’s Material

[42] The Respondent contends that many of the issues raised by the Applicant are not ones that can be properly engaged with in the Commission. Rather they assert the question before me is whether the Applicant was unfairly dismissed in light of s.387 of the Act.

[43] The Respondent states that it had a valid reason to dismiss the Applicant: namely, his non-compliance with a lawful and reasonable direction issued by the Respondent. Further, the Respondent asserts that the Applicant was notified of that reason well in advance of the termination occurring, had ample opportunity to respond (and did so), that his response was considered by the Respondent, but ultimately a decision was made to terminate his employment because he could not fulfil the inherent requirements of his role. He was not unreasonably refused a support person. The Respondent further asserts that the consultation process undertaken was comprehensive and that given the extensive communications leading up to the implementation of the vaccination mandate, all staff – including the Applicant – were very aware of what would happen if they were not vaccinated by 30 December 2021.

[44] The Respondent denies that its staff were coerced into having the vaccine. The Respondent always accepted that it was their choice. The Respondent maintains that the Applicant was not unfairly dismissed

[45] The termination letter issued to the Applicant comprehensively records the series of communications between the parties and events leading to the termination. I extract it in full.

“Dear Donovan

Termination of Employment

I refer to our letter dated 31 December 2021 regarding your failure to comply with a reasonable and lawful direction issued on 22 December 2021 to comply with Telstra’s COVID-19 Vaccination Policy and provide appropriate supporting evidence for medical exemption. I note that in this letter, you were provided with a further opportunity to comply with the direction.

The purpose of this letter is to summarise our findings and confirm the outcome of this disciplinary process, which was conducted in line with Vita People’s Managing Performance and Conduct Policy.

Your Responses to Date

On 26 November 2021, you were directed in writing to comply with the policy by having a first COVID-19 vaccination dose by 30 November 2021 and second vaccination dose by 31 December 2021. You were advised that failure to comply with this direction may lead to disciplinary action up to and including termination of employment. You did not comply with this direction.

On 30 November 2021, you were suspended on full pay and given an opportunity to respond to the allegation that you had failed to comply with a lawful and reasonable direction by 2 December 2021. On 3 December 2021, you emailed me a response providing various reasons for not complying with the Policy including concerns about the safety of the vaccine. This response was considered.

On 6 December 2021, you were issued with a final written warning and further direction to comply with the policy by 8 December 2021. As you failed to comply with this direction, you were then provided with an opportunity to Show Cause on 13 December 2021 and formally respond writing to allegations of unacceptable conduct by you. You provided a written response to the Show Cause letter on 15 December 2021 (summarised in our correspondence on 17 December 2021). I note that you had outlined questions and concerns, to which I provided a response in writing on 16 December 2021.

On 17 December 2021, you were notified of Vita People’s intention to terminate your employment on 20 December 2021, based on findings that you had failed to comply with a reasonable and lawful direction. This correspondence provided you with an opportunity to take a period of leave without pay to reconsider your position.

Following the notification of Vita People’s intention on 17 December 2021, you submitted further questions and concerns in writing, which I provided a response on 20 December 2021. I noted in my correspondence on 20 December 2021 that you had not provided a response to the opportunity to reconsider your position. You responded on the same day stating that you intend to apply for a medical exemption. I requested clarification from you as Vita People has not received an application for medical exemption from you to date. You did not provide a response.

On 21 December 2021, I issued an email regarding your application for a medical exemption and outlined the requirement to provide appropriate supporting medical evidence from a qualified medical practitioner. I requested a response by 1:00pm on 22 December 2021 or Vita People would proceed to terminate your employment. You subsequently responded stating that you have applied for a IM011 through your medical practitioner.

On 22 December 2021, I issued a letter outlining the suspension of conduct investigation and a further direction to comply with Telstra’s COVID-19 Vaccination policy by providing appropriate supporting evidence for a medical exemption from a legally qualified medical practitioner by close of business Thursday 30 December 2021. You were required to advise me of your leave request in writing during this period.

On 31 December 2021, I issued a letter providing further opportunity to respond as to why Vita People should not end your employment on 7 January 2022. You stated in your response on 31 December

2021, inter alia:

•  You questioned whether the direction was a lawful and reasonable direction and that relevant acts or law had not been cited.

•  Your cardiologist is on holiday and will appraise your application for an exemption and there were public holidays.

•  You are on leave and whether this is considered work as you are having to deal with me.

•  There is an appointment with Fair Work Commission on 12 January 2022 and that you are beginning to feel threatened by the responses.

On 12 January 2022, a conference with Commissioner Ryan of the Fair Work Commission was held in relation to your application. The proceedings before the Commission concluded on the someday and it was agreed that you would provide information of your medical exemption or an indicative date of when the information would be provided to me by Friday 14 January 2022.

In your correspondences on 14 January 2022, you stated, inter alia, that:

•  You have not been able to secure an appointment, however the practice manager is trying to get in contact with the cardiologist giving the second opinion.

•  You have come down with flu like symptoms and have attended PCR testing on Friday and awaiting results. You have advised the cardiologist and this will give them time to schedule an appointment next week.

•  You have heard from the practice and the appointment is ready for you, confirmed via phone call.

•  You are currently in isolation awaiting PCR test result as your sister has tested positive to COVID-19.

No evidence was provided in your correspondence. I provided a response on the same day stating that any reasonable evidence relating to your attempt to secure an appointment would be taken into account when making a decision, and to ensure you provide us with any evidence for consideration.

On 18 January 2022, you provided a phone screenshot indicating that your COVID-19 test on 14 January 2022 was positive. Consequently, I responded on 21 January 2022 that should you wish to be considered for a medical exemption based on your covid positive status, I will need to refer you to Telstra through DoneSafe to obtain formal evidence of you having tested positive for COVID-19 and consult with your treating medical practitioner for consideration for any medical exemption based on your covid positive status.

Further, you were reminded that we are yet to receive any evidence of your long-term medical

exemption, which was to be provided to us by 14 January 2022.

You have outlined in your correspondence on 25 January 2022, inter alia, that:

•  You have been isolating due to your covid positive result. As soon as you test negative you can resume all previous activities.

•  You do not consent to Vita People or Telstra accessing your medical records to confirm your COVID positive status for the purpose of considering any medical exemption.

•  As soon as you receive a negative result (tested again 25 January 2022), you are able to see a doctor and send through the required information.

We have not received any formal evidence of your medical exemption/s to date. I note that Vita People have provided every opportunity for you to comply with a reasonable and lawful direction and responded to your questions and concerns to date. Vita People has not received any formal evidence for a medical exemption to date notwithstanding that you have been informed of the requirements to seek a medical exemption since 16 November 2021.

Findings

The reasons for Vita People’s decision to end your employment were discussed with you as part of the investigation process. In summary, Vita People is ending your employment for the following unacceptable conduct:

•  You failed to follow a lawful and reasonable direction issued to you on 22 December 2021 (and repeated subsequently), which directed you to comply with Telstra’s COVID-19 Vaccination Policy by 30 December 2021.

As your role was identified as one which requires an employee to be vaccinated, your conduct is in breach of the Telstra’s COVID-19 Vaccination Policy, Vita People Code of Conduct and Values, and the terms and conditions of your employment. You were previously issued with a Final Written Warning on 6 December 2021, as you failed to follow a lawful and reasonable direction issued to you on 26 November 2021, which directed you to obtain a COVID-19 vaccination by 30 November 2021. You then failed to follow the further lawful and reasonable

direction issued to you on 6 December 2021 and engaged in a Show Cause process on 13 December 2021 as an opportunity for you to provide reasons for not complying with the directive. Based on your responses we issued a further direction on 22 December 2021 directing you to comply with Telstra’s COVID-19 Vaccination Policy by providing appropriate supporting evidence from a legally qualified medical practitioner by close of business on Thursday 30 December 2021, which you have failed to provide.

In consideration of all information available at this time, Vita People assess that you have engaged in unacceptable conduct, by failing to follow a lawful and reasonable direction issued to you. Based on this assessment, Vita People consider that there is a valid reason for dismissal, and this letter serves as notice of your termination of employment, effective immediately.

In accordance with clause 38.3 of Vita People Pty Ltd Terms and Conditions of Employment (Employer Greenfields Agreement 2009), you will be paid your notice in lieu of working the notice period. I have considered carefully what disciplinary action to take as a result of your unacceptable conduct. In deciding to end your employment, I have taken into account all of the information available to me, including:

•  All of the information from the investigation, including your version of events;

•  Your responses in writing and orally;

•  The seriousness of failing to comply with directions and policy;

•  The nature of your role in Vita People;

•  Your previous disciplinary and service record;

•  Your length of service at Vita People;

•  Your failure to provide appropriate supporting evidence for a medical exemption;

•  Your rejection of a final opportunity to reconsider your position and make arrangements to be vaccinated; and

•  The purpose of Telstra’s COVID-19 Vaccination policy, which is to ensure the safety and wellbeing of our people, customers, and the community.

Return of Company Property

You have in your possession company property, including a laptop, tablet (iPad), mobile phone, store key and car pass. You will be contacted by a representative of the Vita People IT team to arrange for this to be couriered back to Vita People Support Centre.

Final Pay

You will be paid any unpaid or owing wages and any annual leave entitlements up to and including 27 January 2022. A final superannuation payment will also be paid into your super fund. Should you have any further questions regarding your final pay please contact Vita People Payroll Team at payroll@telstrastores.com.au.

Your Preceda access will be terminated. As such, please contact the Payroll Team should you require copies of any payslips after your termination date or a separation certificate. A copy of your final payslip will be emailed to the personal email address we have on record in Preceda if so requested.

Maintaining confidentiality

You have had access to confidential information during your employment; your obligation to keep this information confidential continues after you leave your employment. This includes, but is not limited to, the information concerning our customers, employees, policies, procedures, and practices.

Support

Finally, we acknowledge that ending your employment may be confronting for you. If you need further support at this time our Employee Assistance Program (provided by Benestar), is available for all team members and their immediate families for 30 days post-employment. To access this service please phone 1300 361 123 or visit their website on www.benestar.com.” 2

[46] The Respondent maintains that the Applicant had a contractual duty to comply with lawful and reasonable directions of the employer. 3 Further, under the Enterprise Agreement that applied, he was required to “comply with policies and procedures at all times”.4 In fact, the Agreement states specifically that he “comply with the provisions of all relevant workplace health and safety legislation and Vita Group’s Health and Safety policies and procedures”.5

[47] The Respondent contends that those obligations are not constrained by a requirement that a relevant policy be “reasonable”. The Applicant’s letter of offer expressly states that the Applicant’s employment was governed by the Agreement and acceptance of it meant the Applicant agreed that he had read and understood it, and that its terms were reasonable. Clearly the Respondent asserts that the Applicant had a contractual duty to comply with the Policy and there was no ability for the Applicant to have a preference as to which policies to comply with or not.

[48] Further the Respondent contends that the Applicant had duties under Queensland Work Health and Safety Legislation to comply, so far as he was reasonably able, with any reasonable instruction and to co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to the worker. 6

[49] In terms of consultation, the Respondent states that opportunities to give feedback and have it considered were given to employees prior to the policy being implemented by Vita People. The feedback did not alter the Policy, this did not mean that there had not been consultation. The Applicant does not provide any evidence to demonstrate that where people made comments and had concerns, they were not appropriately engaged with and dealt with and in fact, the Applicant’s concerns were dealt with in the many communications that passed between the parties.

[50] Regarding procedural fairness, the Respondent states that the Applicant knew that the Respondent was considering termination, he had been the recipient of 6 separate pieces of communication that foreshadowed a possible decision to terminate his employment. The Respondent further suspended the process when the Applicant made a last-minute pivot to say he was seeking a medical exemption. The Applicant argues that even though he was unwilling to share any medical information, that by sending in his notice regarding COVID-19 that the organisation should have pre-emptively identified that there may be an exemption, and so should not have enacted the termination. The Respondent alleges this is a desperate last-minute attempt made by the Applicant to avoid dismissal.

[51] The Respondent states that the car lease the Applicant took out was not through the Respondent’s business and was entered into by the Applicant with full understanding that the lease would have to be paid off at some point. The Applicant’s dismissal had the unfortunate but common and inevitable effects of loss of employment.

Consideration

[52] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust, or unreasonable, the Commission must take into account:

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

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

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

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

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

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

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

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

[53] I am required to consider each of these criteria to the extent they are relevant to the factual circumstances before me. 7

(a) whether there was a valid reason for the dismissal

[54] To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 8 and should not be “capricious, fanciful, spiteful or prejudiced.”9 Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.

[55] The Respondent asserts that its direction was lawful and reasonable. As to what is “reasonable” in the context of employer directions, the Full Bench provided in CFMMEU v Mt Arthur Coal that:

“The reasonableness of a direction is a question of fact having regard to all the circumstances, which may include whether or not the employer has complied with any relevant consultation obligations; the nature of the particular employment; the established usages affecting the employment; the common practices that exist; and the general provisions of any instrument governing the relationship.” 10

[56] There is a common law right to personal and bodily autonomy and integrity which is recognised in the Mt Arthur Coal Full Bench decision. In relation to the Privacy Act or bodily integrity, any consent given for the two matters may be vitiated by a threat of discipline or termination. In this matter there is no issue of lack of compliance by the Respondent to any of the requirements of the Privacy Act.

[57] In relation to the present case, requesting an employee to provide vaccination status does not in any way put undue pressure on an employee to undergo vaccination. The decision resides with the Applicant and is open for him to decline. The Full Bench in Mt Arthur Coal noted that the choice lay with Applicant and their decision to decide between getting the vaccination and continuing to be employed. The rights of bodily integrity need to be balanced against all other rights, including the health and safety of other employees in the workplace. For these reasons, I find that the Respondent’s direction that requires for the collection of employee sensitive information such as their vaccination status does not impinge on the rights of employee’s bodily integrity and is not an unlawful or unreasonable direction.

[58] The Applicant’s argument that the directions are inconsistent with s.51(xxiiiA) of the Australian Constitution does not have any merit. The Applicant further contends that the directions are invalid and inconsistent with the Commonwealth Anti-Discrimination Legislation, Australian Human Rights Conventions, and the Biosecurity Act 2015 (Cth). I reject the contention that these directions are invalid or inconsistent. The status of being unvaccinated is not a protected attribute held under Anti-Discrimination Legislation and there is no general right to work in Australia. Further to this, an order made under the Public Health Act 2005 (Qld) s.7 does not impair or detract from the operation of the Biosecurity Act 2015 (Cth), both Acts address different topics.

[59] The Commission does not have any jurisdiction to determine the inconsistency or validity between the federal law and therefore any inconsistency falling under s.109 of the Constitution.

1. Contract/Policy Issues

[60] The Applicant argues that the contract of employment that was signed on 12 October 2018 does not require him to be vaccinated against COVID-19. However, the Applicant’s contract of employment at clause 1.1 has a requirement to comply with the Greenfields Agreement 2009. At clause 40 of the Greenfields Agreement 2009, the employee agrees to abide by all company policies and procedures. The Respondent has clear directions under its COVID-19 Vaccination Policy which under the contract of employment the Applicant was required to follow. The Applicant failed to comply with the policy and procedures, which was in breach of his contractual provisions and may constitute a valid reason for dismissal.

[61] The Applicant undertook a personal campaign against having the vaccine. He utilised a panoply of arguments, from the vaccine being experimental, coercion, unconstitutional, and being a risk to his health. Throughout his crusade, he adopted any argument that may have been of some assistance to him, finally settling on linking a 2019 medical event with possible side effects of the vaccine. Despite the Applicant claiming he had myocarditis, the medical report at the time does not support this diagnosis.

[62] He was not transparent with his employer; the commitment the Applicant gave at a conciliation conference before the Commission was to ensure his employer was notified of his actions to gain a medical exemption by 14 January 2022. He did not do this, rather he sidestepped this requirement stating that he had tested positive for COVID-19 and was unable to provide any further evidence of securing an appointment as he was in isolation. The Respondent requested again for any evidence that he had secured an appointment to substantiate his commitment to seek a medical exemption. He did not provide any evidence of his actions. His having COVID-19 did not present any obstacle to having a confirmed appointment date at some time post-infection.

[63] In cross-examination the Applicant stated that:

PN218 Yes, but my point, Mr Scott, is all of the material that you put into your witness statement about your correspondence with your cardiologist’s office, trying to get an appointment, you didn’t give any of that to Vita, did you?  -No, and I mentioned as to why I didn’t do that. I didn’t want to make my doctors vulnerable to any coercion or bullying or anything like that or any anonymous tips while they were trying to assert my – my health status [emphasis added].

[64] Ultimately, the Applicant undertook a course of conduct that led to his dismissal. The Respondent provided a reasonable and lawful direction which the Applicant refused on multiple occasions. Extensions were granted and yet he failed to cooperate with his employer. The Applicant raises no novel arguments in relation to an employer deciding to implement a vaccine policy, rather he throws all possible arguments up against the wall, hoping something would stick. He has reaped the outcome of this unrelenting campaign against a reasonable and lawful request and finds himself without a job in an environment where he had considerable warnings of what employers were doing. The medical evidence that postdates his employment termination does not assist the Applicant as these matters were not before the Respondent prior to the decision.

[65] The Applicant requested health and safety data sheets as well as the relevant risk analysis. The Respondent was under no obligation to provide the information, the data relevant to the efficacy and safety of the COVID-19 vaccines had already been considered by the TGA and approved for use, the employer acted upon that advice. The risk analysis was also not required to be provided to the Applicant, the Respondent had an obligation regarding the health and safety of their employees and customers, they assessed the risk and implemented an appropriate control that was not unusual and in fact was a common response by employers with similar customer and employee working patterns and locations and a customer base that interacted directly with staff.

[66] For those reasons, I am satisfied that the Respondent’s direction that the Applicant be vaccinated or provide a valid medical exemption by 30 December 2021 was a lawful and reasonable direction with which the Applicant was required to comply.

[67] Consequently, in considering the above I am satisfied that the Respondent had a valid reason to terminate the Applicant’s employment.

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

[68] Based on the evidence provided and submissions made, I am satisfied that the Applicant was made aware in the months leading up to the implementation of the mandate, that if he was not vaccinated by 30 December 2021, his employment may be terminated.

[69] The Applicant had – and took – the opportunity to respond on several occasions to indicate his opposition to the introduction and enforcement of the vaccination policy. The Respondent replied to each of the Applicant’s email questions, the responses were not in accordance with the view of the Applicant’s views, however. The Show Cause process was paused when the Applicant at this late stage declared that he was seeking a medical exemption. The Respondent consented and participated in a conciliation before the Commission as a result of the Applicant lodging a s.372 General Protections application. The termination of the Applicant followed after the Applicant did not provide any evidence of an appointment or any efforts made by the Applicant to secure a medical appointment for the purposes of gaining an exemption.

[70] The Applicant alleges that he was not afforded a formal conduct meeting. However, upon examination of the Respondent’s communication and the Applicant’s emails, the Respondent had written to the Applicant on 30 November 2021 stating that,

“should the Applicant wish to have a formal conduct hearing to do so by 1 December 2021, and should you not require a meeting then we require a written response by 2 December.”

The Applicant responded after the deadline by saying.

“If a hearing is the next stage, then I wish to inform you I wish to record and possibly livestream it on my social media”.

The Respondent’s view is that this request post the deadline does not equate to a request for a formal hearing. I find that the Applicant had the opportunity for a formal conduct meeting and he did not indicate his wish to have one and the disciplinary process followed the standard pathway for the Respondent. There was no procedural error on the part of the Respondent.

[71] I am satisfied that the Applicant was notified of the reason for his termination and had a sufficient opportunity to respond.

(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

[72] The Applicant has not claimed that he was unreasonably refused a support person.

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

[73] Given the reasons for the Applicant’s termination, this factor is irrelevant.

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

[74] The Respondent is a large employer with a well-resourced human resources department. it undertook an extensive process to provide its staff with information about the policy which was to apply to its operations. The Respondent had access to the relevant support staff including Human Resources.

(h) any other matters that the FWC considers relevant

[75] I consider that there are no other matters before me that are relevant.

Conclusion

[76] Accordingly, I am satisfied based on the evidence provided that the Respondent had a valid reason for terminating the Applicant’s employment and that it did so in accordance with as fair a process as it could. I find that the Applicant was not unfairly dismissed in accordance with the Act.

[77] I therefore order that the Applicant’s application be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR744719>

 1   Scott, ‘EVD10 – IM011 exemption form’, Submission in Scott v Vita People, U2022/1621, 10 February 2022, 1–3.

 2   Vita People, ‘RG-37 copy of my email chain with Mr Scott dated 27 January 2022 attaching the Termination Letter’, Submission in Scott v Vita People, U2022/1621, 27 January 2022, 2–5.

 3   R v Darling Island Stevedoring & Lighterage Co; Ex parte Halliday & Sullivan (1938) 60 CLR 601, 621–2 (‘Darling Island Stevedoring’).

 4   Vita People, ‘Statement of Risa Gall’, Submission in Scott v Vita People, U2022/1621, 20 June 2022, 4, [25]; Vita People, ‘RG-13 copy of my email chain with Mr Scott dated 22 November and 25 November 2021’, Submission in Scott v Vita People, U2022/1621, 25 November 2021, 4.

 5   Vita People, ‘Statement of Risa Gall’, Submission in Scott v Vita People, U2022/1621, 20 June 2022, 4, [26].

 6   Vita People, ‘Respondent’s Submissions’, Submission in Scott v Vita People, U2022/1621, undated, 5, [20].

 7   Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

 8   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

 9   Ibid.

 10   CFMMEU v Mt Arthur Coal [2021] FWCFB 6059, [259].