Fair Work Act 2009
s.394—Unfair dismissal

Michael Pillifeant
v
Boeing Defence Australia Ltd
(U2022/6216)

Application for an unfair dismissal remedy – Application dismissed

[1] Mr Michael Pillifeant (Mr Pillifeant/the Applicant) contends he was unfairly dismissed by Boeing Defence Australia Ltd (Boeing/the Respondent). 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 as a Senior Systems Engineer in the Respondent’s aerospace company after failing to comply with the Respondent’s direction to be vaccinated by 3 December 2021, or provide a valid medical exemption.

[2] As the matter could not be resolved by conciliation, directions were issued for the filing of material and a hearing was listed for 6 September 2022. The Respondent sought to be represented. Pursuant to s.596 of the Act, I was satisfied that it would be of assistance to the Fair Work Commission (the Commission), and would not unduly prejudice the Applicant to grant leave for the Respondent to be represented. I was satisfied that the presence of the Respondent’s representative would enable the matter to be dealt with more efficiently. Accordingly, I allowed the Respondent to be represented. At the hearing, Mr Pillifeant appeared on his own behalf and Mr Andrew Denton of counsel instructed by Corrs Chambers Westgarth appeared 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 whom the Small Business Dismissal Code applies.

BACKGROUND

[4] The events leading to the Applicant's termination are generally not in dispute. Rather, the Applicant contended that the Respondent’s direction was unreasonable and unlawful.

[5] The Respondent is one of seven entities within the Boeing Australia Holdings Pty Ltd (Boeing Australia) group of companies. The Respondent is a primary contractor in the Australian Defence industry. Its core capabilities include Australian Defence systems, modelling and simulation, maintenance, repair and operations of Defence aircraft, research and development, and support and training.

[6] The Applicant was employed by the Respondent as a Senior Systems Engineer from 18 August 2014 until his dismissal on 23 May 2022. The Applicant was employed on a part-time basis, working three days a week. The Applicant’s primary place of work was the Respondent’s office at 150 Charlotte Street in Brisbane’s CBD. At the time of his dismissal, the Applicant was working from home twice a week.

[7] In March 2020, Boeing Australia established the ‘COVID-19 Working Group’ which was a team dedicated to implementing measures in response to the COVID-19 pandemic.

[8] In mid-2021, as community transmission of COVID-19 increased, Boeing Australia began to consider whether it was necessary and appropriate to implement a COVID-19 vaccination policy, having regard to the company’s health and safety obligations.

[9] In August 2021, the ‘COVID-19 Policy Team’ (the Policy Team) formed within the COVID-19 Working Group. The Policy Team was responsible for developing and implementing a COVID-19 vaccination policy, in consultation with the Trade Reference Group (the TRG) and the Australian Workers’ Union (AWU). The TRG is a group of employees covered by the Boeing Defence Australia Limited Aviation Trades Enterprise Agreement 2021 to 2023 (the Agreement) convened to negotiate with the Respondent’s management about matters affecting employees covered by the Agreement.

[10] On 30 August 2021, Boeing Australia emailed employees of the Respondent providing a link to a survey seeking employee sentiment about COVID-19 vaccinations. The results of this survey were initially sent to AWU organisers and the head of the TRG to discuss the results of the employee survey and obtain their views regarding a potential mandatory COVID-19 vaccination policy. The results of the employee survey were published to all employees of Boeing Australia thereafter.

[11] When the employee survey closed on 6 September 2021, Boeing Australia had received 2,565 employee responses to the survey. Among other things, the responses indicated that:

(a) Nearly 88% of employees surveyed were fully vaccinated, had one dose, or intended to get vaccinated;

(b) 4% of employees surveyed preferred not to say their vaccination status;

(c) 8% of employees surveyed said that they were averse to becoming vaccinated or unable to do so due to a medical or other reason;

(d) 60% of employees surveyed agreed that mandating vaccinations would create a safer workplace, and 58% of employees surveyed were supporting of Boeing Australia mandating vaccinations in the workplace; and

(e) 18% of employees surveyed disagreed that mandating vaccinations would create a safer workplace and 24% of employees were not supportive of Boeing Australia mandating vaccinations in the workplace.

[12] On 12 October 2021, Boeing Australia facilitated a webinar broadcast with Professor Graeme Stewart, a clinical immunologist at the Westmead Institute for Clinical Research, to all Boeing Australia employees. The purpose of the webinar was to provide the employees with a briefing from an external medical expert in relation to the efficacy of the COVID-19 vaccination and the role of vaccination in safely re-opening Australia.

[13] On 15 October 2021, Boeing Australia announced it was implementing Boeing Australia’s COVID-19 Vaccination Requirements and Safety Controls Policy (the Policy). As an entity within the company, employees of the Respondent were subject to the policy. The Policy classified all roles in ‘Group 1’ or ‘Group 2’.

[14] In summary, the Policy:

(a) applied to employees of Boeing Australia entities performing work in Australia (including the Respondent);

(b) stated that employees performing a Group 1 role must be fully vaccinated and register their ‘Approved COVID-19 Vaccination Evidence’ or have a ‘Valid Medical Exemption.’ Group 1 included, but was not limited to, roles employed by the Respondent at non-Victorian workplaces and sites where:

i. a role is required to be performed by a fully vaccinated person because of a customer and or public health direction/order that requires the person to be fully vaccinated to fulfil their duties; or

ii. the role has been determined by the relevant Boeing entity as requiring vaccination based on a risk assessment;

(c) set a compliance date of 3 December 2021 for non-Victorian employees for the Respondent in a Group 1 role to register Approved COVID-19 Vaccination Evidence in Boeing’s Worklife system;

(d) specified that non-Victorian employees for the Respondent in a Group 1 role had no option to access ‘Alternative Safety Controls’ other than where a ‘Medical Exemption’ was approved; and

(e) stated that breach of the Policy may result in disciplinary action against the Boeing Australia employee in accordance with the relevant Boeing entity’s disciplinary policy up to and including termination of employment.

[15] The Respondent tendered the Covid Vaccination Risk Assessment and Safety Controls as evidence.

[16] During the week commencing 8 November 2021, the Applicant was advised that his position as a Senior Systems Engineer had been assessed as a Group 1 role. Accordingly, the Applicant’s role required him to be fully vaccinated by 3 December 2021, unless a valid medical exemption applied.

[17] On 26 November 2021, the Applicant engaged with the Respondent’s Human Resources (HR) Team Lead about the grouping of role allocations under the Policy, and the Respondent’s decision to classify Senior Systems Engineering roles as a Group 1 role. During this meeting, the Applicant was advised that if he chose not to be vaccinated without an approved medical exemption by 1 January 2022, taking account of the Applicant’s personal leave until 31 December 2021, he would not be in compliance with the Policy. Consequently, he would not be able to attend the workplace, or any of the Respondent’s sites.

[18] On 16 December 2021, the Applicant provided the Respondent with a medical exemption which expired on 15 April 2022.

[19] On 20 December 2021, the Applicant was advised by HR that he would be required to comply with an Individual Covid-19 Safety Control Plan (ICCP) in order to return to work on the 4 January 2022, in line with the Policy. ICCPs were required for employees holding medical exemptions or Group 2 roles. The Applicant was also asked to advise of any issues he may have with wearing a mask so his ICCP could be drafted and discussed with him.

[20] On 20 December 2021, the Applicant advised HR that he had breathing problems when wearing a mask.

[21] On 23 December 2021, the Applicant was directed to work from home upon his return from leave, whilst a suitable ICCP that took into account his restrictions was finalised.

[22] On 4 February 2022, the Applicant was advised by HR that he would be required to wear a face shield instead of a face mask in the workplace due to his health concerns and he was provided with the ICCP for his review and signature. The Applicant signed the ICCP and continued to work from home.

[23] On 17 March 2022, the Applicant was contacted by HR advising that his medical exemption was due to expire on the 15 April 2022 and could he provide an update on his intent to comply with Boeing Australia’s policy upon the expiration of his medical exemption. During this discussion, the Applicant informed HR that he did not intend to get vaccinated.

[24] On 22 March 2022, the Applicant requested that the Respondent consider whether his role could be reclassified as a Group 2 role that would not require vaccination. On 23 March 2022, the Applicant was informed that his role would not be reclassified.

[25] On 23 March 2022, the Applicant was issued with a Policy non-compliance letter advising he had from 16 April 2022 until the 29 April 2022 to register evidence of his first dose of a COVID-19 vaccine. He did not comply with the direction to provide that evidence of vaccination and gave no other assurances he had been vaccinated.

[26] On 3 May 2022, the Applicant was asked to show cause as to why his employment should not be terminated for failing to follow the Respondent’s reasonable and lawful directions to comply with the Policy.

[27] On 6 May 2022, the Applicant requested Boeing Australia’s definitions of Group 1 and Group 2 categories and Boeing Australia’s risk assessment documentation used to formulate its COVID-19 policy and an explanation clarifying the risks associated with having unvaccinated people in the workplace.

[28] On 9 May 2022, the Respondent provided the Applicant with a copy of the Policy with the official definitions of Group 1 and Group 2 categories and referred the Applicant to the safety control procedure which further defined the differences between Group 1 and Group 2 roles. The Respondent also provided a copy of Boeing Australia’s risk assessment documentation used to formulate its Policy.

[29] On 11 May 2022, the Applicant requested further details on the risk assessment criteria that was undertaken.

[30] On the 13 May 2022, the Respondent sent the Applicant a copy of the risk assessment completed on his role and again advised the Applicant that all questions that he had raised had been responded to and addressed in many previous communications. The Applicant was also informed that the Policy had been developed considering all the relevant safety, medical, discrimination, privacy, employment laws and Boeing Australia’s policies and procedures.

[31] On 23 May 2022, the Applicant was dismissed because he failed to follow the Respondent’s reasonable and lawful directions to comply with the Policy.

SUBMISSIONS AND EVIDENCE

[32] The Applicant adopted his Outline of Submissions filed on 16 August 2022 as his evidence. 1 The Applicant accepted in his oral evidence that in his role he may be required to travel domestically or overseas. He said he had no perceived need to travel. He accepted he may be moved to other projects however said there is always discussion beforehand.

[33] The Applicant accepted that there may a requirement for face-to-face time with clients subject to the project he is working on. He accepted that he could not perform all the requirements of his role at home and maintained it is possible to social distance for testing work. It was put to him that he could be required to do testing in confined spaces, and he said in his experience he has been able to social distance when doing such work.

[34] The Respondent filed witness statements from Mr Peter Duffy, Mr Richard Brooke, Ms Anne Bowman and Ms Anita Tichelaar. On 2 September 2022 the Applicant advised chambers and the Respondent that Mr Brooke and Ms Tichelaar would be required for cross examination. The Applicant confirmed at the hearing that he did not wish to cross examine Mr Duffy or Ms Bowman. The statements of Mr Peter Duffy dated 30 August 2022 2 and Ms Anne Bowman3 were admitted into evidence uncontested.

[35] Ms Tichelaar is employed as a Human Resources Business Partner by the Respondent. Ms Tichelaar adopted her statement of 30 August 2022. 4 During her oral evidence Ms Tichelaar said the Policy was based on reputable authorities such as the Australian Technical Advisory Group on Immunisation (ATAGI), Australian Department of Health, State Health Departments and Professor Stewart. Ms Tichelaar confirmed in re-examination the sources of information relied on in the evidence.

[36] Ms Tichelaar was asked why the finer details of the risk assessment tool are not included in the Policy. Ms Tichelaar said the policy was written before tool and not everything can go into policy.

[37] Mr Brooke the Senior Human Resources Project Manager for the Respondent adopted his statement of 30 August 2022. 5 The Applicant put questions to Mr Brooke about why the Applicant was assessed in Group 1.

[38] Mr Brooke agreed that Boeings major customer was the Commonwealth of Australia. Mr Brooke was asked if it was possible for a manager to know what the day-to-day activities were of the employees they had oversight of. Mr Brooke said he believed that was a critical requirement of a manager.

[39] It was put to Mr Brooke the assessment was not a general role-based assessment. Mr Brooke said what was considered were the ordinary day to day roles and the requirements of the roles going forward.

[40] Mr Brooke was asked about his evidence concerning the higher risk of Covid-19 transmission by domestic or international air travel compared to travelling on public transport such as on a train or bus. Mr Brooke said in assessing domestic travel the Respondent assessed the close physical contact for extended periods of time, for example up to four or five hours. Mr Brooke said at the point of time when the policy was implemented crossing state borders required vaccination in many jurisdictions, and if someone was carrying Covid-19 at the point they travelled, that would present a greater risk at the sites those employees were travelling to.

[41] It was put to Mr Brooke that the risk of travelling on a train for an hour is comparable to traveling by a plane from Brisbane to Sydney. Mr Brooke said pre travel requirements including lining up checking in and the boarding process and the time leaving the plane and airport at the other end presents a greater risk. Mr Brooke also said one factor was sending an employee interstate who was not vaccinated may result in them not being able to return home from interstate. The Applicant made the observation that at the time of his termination he could travel freely on domestic flights.

[42] Mr Brooke maintained that there is a clear distinction between requiring an employee to travel by domestic air travel for the purposes of work, and an employee making a decision to travel to and from work by public transport instead of, for example, by private car. Mr Brooke said the decision of an employee about how they travel to work is outside the scope of the policy and is a matter for the employee, as compared to a direction from the Respondent to an employee to travel by plane.

[43] Mr Brooke said the question in the tool which refers to travel to and from work by public transport was not intended to be about the use of public transport, it was intended to be directed to workplace related activities.

[44] The Applicant raised the issue of a score of 11 or more would result in a Group 1 categorisation, and 10 or below resulted in being in category 2. The Applicant asked Mr Brooke if he could justify the thresholds within the tool based on the risk assessment.

[45] Mr Brooke said the purpose of assigning a score to each of the risk factors was to measure the frequency and degree. He gave the example of working in a confined space and the frequency and duration of the activity contributing to the score based on the risk of transmission of Covid-19.

[46] Mr Brooke said he could not speak directly to why the score of 11 was chosen however he said through his discussion with Ms Poole there was a point where a factor or combination of factors occurring frequently enough required a person to be vaccinated.

[47] Mr Brooke was asked about the scores assigned to the frequency of attendance at work and was asked to explain the basis for the scores. Mr Brooke said it is self-evident in that if an employee is attending more frequently because of the nature of the role the higher the risk and it had to be quantified.

[48] Mr Brooke was asked how three days a week can be the same as five days per week, and whether five days is a greater risk than three days. Mr Brooke said three days a week is still a high-risk activity and three days per week was considered as a high-risk activity.

[49] The Applicant said his contract was three days a week, but he did not always attend three days a week and the tool does not distinguish between three and five days.

[50] Mr Brooke was also asked about the assessment criteria concerning the extent of contact with members of the public. Mr Brooke said as an example, the Respondent’s office is in a building in Charlotte Street shared with other entities including the Department of Foreign Affairs and Trade that has many visitors and employees share elevators with general members of the public who visit the building.

[51] It was put to Mr Brooke that if you are not attending the office, you are not exposed to the risk, however Mr Brooke said the Respondent was risk assessing the role, not the individual, and also assessing the potential future requirements of the roles and employees are required to perform certain duties associated with their roles.

[52] Mr Brooke was also asked about the question concerning whether the role requires close contact with other persons closer than 1.5 metres for longer than 20 minutes and how that criterion was developed. Mr Brooke said that was based on government health guidance at the time. Mr Brooke was asked why the scoring was different for this question and he said any environment where social distancing couldn’t be maintained presented a risk. He said it was looked at as a high-risk issue and it may be physically impossible to maintain social distancing when employees are working on tasks together.

[53] The Applicant challenged that his assessment was daily for this criterion as he is employed three days a week and the criterion does not consider his part time status. Mr Brooke said most roles are filled on a full-time basis, and daily is as per the requirements of the role. Mr Brooke did not accept the scoring system did not take into account the individual requirements of roles.

[54] The Applicant put that he should have been assessed on a project basis, rather than on a role basis, and the risk he was presenting was a Group 2 risk not a Group 1 risk. Mr Brooke responded that they are distinct things, and a role risk assessment allows the Respondent to consider the role requirements as they stand and also that they many change, including the possibility that the Applicant can be directed to perform different projects. Mr Brooke described this as a wholistic assessment.

[55] In summary, the Applicant’s case was that he was unfairly dismissed, as the Respondent’s direction was unreasonable and unlawful.

[56] The Applicant questioned the validity and adequacy of the Respondent’s risk assessment, submitting that it failed to comply with the specific operational requirements and reference documents specified by the Policy. The Applicant asserted that Group 1 was most applicable to employees who moved between worksites, regularly interacted with customers and/or external contractors, and who were required to travel domestically and/or internationally. The Applicant submitted that Group 2 was more applicable to employees who worked part-time in the office space and had limited interaction with customers and/or external contractors.

[57] The Applicant argued that the risk assessment should have been conducted on an individual basis, rather than according to the role. The Applicant submitted that had the Respondent conducted a risk assessment based on the individual characteristics and operational requirements of his employment, the risk assessment would have categorised his employment as a Group 2 role, and he would not have required proof of vaccination to continue his employment. To support this allegation, the Applicant referred to inconsistencies between the risk assessment and the characteristics of his employment, summarised below.

(1) The risk assessment assumed that all Senior Systems Engineers worked on a full-time basis and were required to work from their primary location at least three times a week. However, the Applicant was employed on a part-time basis, working at the office once a week, and worked from home twice a week.

(2) The risk assessment assumed that all Senior Systems Engineers were required to undertake international or domestic travel. However, the Applicant had never been required to undertake international or domestic travel. The Applicant also noted that domestic travellers were not required to be vaccinated at the time of his dismissal.

(3) The risk assessment assumed that his role required close contact with other people, including co-workers, customers and external contractors. However, during the course of his employment, the Applicant had little exposure to customers and external contractors. The majority of his work was conducted from his computer terminal, with teleconferences via WebEx. Further, since working part-time under a flexible work arrangement, the Applicant was allocated more administrative tasks, such as internal document audits and reviews.

[58] The Applicant also submitted that the Policy was independent from his employment agreement, and failure to comply with the Policy did not constitute a breach of his employment agreement. In support of this submission, the Applicant referred to the employment agreement attached to his offer of employment dated 27 May 2014, which states:

“25.1 The Company has detailed policies, standards and procedures which operate independently from this agreement. These policies and procedures deal with a variety of matters, including standards of behaviour, workplace processes, Drug and Alcohol Management Plan (DAMP) and additional benefits which are provided in the Company’s discretion, and which may be modified or withdrawn at any time.

25.2 The Employee is expected to comply with the Company’s policies and procedures and a failure to do so may result in disciplinary action but will not constitute a breach of this agreement.

25.3 The Company’s policies and procedures are not incorporated into this agreement and do not form part of the terms and conditions of the Employee’s employment.”

[59] The Applicant submitted that there was no law or public health direction which required the Applicant to be vaccinated to continue working. The Applicant asserted that a vaccine mandate could only be implemented by government via public health order, or when a company has such a high risk, it cannot be managed with other means. Further, as 88% of employees surveyed indicated that they had been vaccinated as of 6 September 2021, the Respondent had passed the 80% threshold set by the Queensland Government to ‘re-open’ the state.

[60] The Applicant submitted that because the Respondent had already provided him with an ICCP, it was possible for him to continue to do his work as a Senior Systems Engineer safely and effectively without the need to be vaccinated. He noted that the customer he was engaging with at the time of his dismissal did not require proof of vaccination to perform work. The Applicant suggested that there were more suitable methods than implementing a vaccination mandate to mitigate risk of exposure to COVID-19.

[61] The Applicant also questioned the efficacy of the COVID-19 vaccine, and his capacity to consent to receiving the vaccine under duress and coercion. The Applicant stated that the COVID-19 vaccination had only been provisionally approved and was therefore at the clinical stage trial. The Applicant submitted that requiring employees to participate in a clinical vaccination trial breached various state and federal laws.

[62] The Applicant accepted that he was informed on multiple occasions that if he was not vaccinated by 3 December 2021, his employment may be terminated.

[63] The Applicant raised that vaccinations were part of a clinical trial, and issues concerning the vaccines related to bodily integrity, coercion.

[64] The Applicant also raised that a vaccinated person could carry the Covid-19 virus.

[65] In closing oral submissions that Applicant submitted the laws in Australia allow vaccination to be voluntary, and public health orders changed that in certain cases, however in the case of the Respondent, its survey of staff indicated 88% of staff were vaccinated or about to be vaccinated and exceeded the government requirement for Australia to open up safely.

[66] The Applicant said the risks in the Respondent are no greater than in other defence companies and other companies have not mandated the requirement to be vaccinated.

[67] The Applicant submitted vaccination is not needed given the vaccination rates in the community and there are more suitable methods to mitigate the risk.

[68] The Applicant also submitted that consent must be given to participate in a clinical trial.

[69] The Applicant submitted the risk tool is inadequate to determine the risk for a part time employee, and further that domestic travel is rated as a greater risk than using public transport, and three days is treated as the same level of risk as a five day a week role. The Applicant also submits the scaling in the tool is inconsistent.

[70] The Applicant submitted that the domestic travel issue was no longer valid as at the time of termination he was able to travel within Australia without being vaccinated.

[71] The Applicant submitted the risk must be a real risk, and not a perceived risk. He submitted under his ICCP he was tested every day and knew he did not have Covid-19. He submitted the risk he presented was lower than that of a vaccinated person.

[72] The Applicant submitted at the time of his termination he was working as a Group 2 risk. He said if he was transferred to another project, it could be argued he was elevated to a Group 1 however it was not foreshadowed that his role would change soon.

[73] The Respondent submitted that it had a valid reason to dismiss the Applicant: namely, his wilful and informed non-compliance with a lawful and reasonable direction to be vaccinated against COVID-19 and comply with the Policy. In its submissions, the Respondent referred to recent decisions of the Commission, where Members decided that directions to comply with a COVID-19 vaccination policy were lawful and reasonable, and failure to comply with such a direction or policy was a ‘valid reason’ for dismissal within the meaning of s.387(a) of the Act. 6 The Respondent submitted that there was no evidence presented in this matter, which would distinguish it from existing precedent.

[74] The Respondent submitted that it had a statutory duty to take reasonably practicable steps to protect the health and safety of its workers. The Policy was implemented to protect, to the extent reasonably practicable, the health and safety of all Boeing Australia workers and other individuals affected by its operations, to reduce the risk of transmitting COVID-19 in the workplace and becoming seriously ill or dying. The Respondent submitted that the Applicant’s subjective cynicism towards the vaccine should not alter this conclusion.

[75] The Respondent further asserted that the consultation process undertaken was comprehensive and that given the extensive communications leading up to the implementation of the vaccination mandate, all employees working in a Group 1 role – including the Applicant – were very aware of what would happen if they were not vaccinated by 3 December 2021. The Respondent reiterated 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.

[76] With respect to the Applicant’s assertions about the efficacy of vaccination, the Respondent referred to several decisions of the Commission 7 which have adopted the view taken of the Full Bench in CFMMEU, Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal8 (the Mt Arthur Coal decision).9 In the Mt Arthur Coal decision, the Full Bench found that the factual propositions around the efficacy of the COVID-19 vaccines were uncontentious.

[77] With respect to the Applicant’s submissions regarding the validity of the risk assessment, and the suggestion that he should have been classified in a Group 2 role, the Respondent stated this assertion was without merit. The role-based approach was logical and reasonable, looking at the requirements of the role based on the Respondent’s needs, and what obligations could be imposed upon the role pursuant to the employment agreement. The Respondent submitted that taking an individual approach would have required the Respondent to dive into the day-to-day duties of over 2,000 employees and ignore their employment agreements. Further, the purpose of the risk assessment tool was not to analyse how each role had been performing its duties throughout COVID-restricted operations in 2020-2021, but to assess the requirements the Respondent had of each role moving forward so that it could operate with greater safety and fewer restrictions. To perform the risk assessments by reference to the working patterns of individual employees would have been artificial as many of those working patterns would have been changed to meet COVID restrictions and would not accurately reflect the business needs or expectations of the Respondent.

[78] The Respondent submitted that each of the inconsistencies alleged by the Applicant were dealt with in detail in the witness statement of Mr Peter Duffy, Systems Engineering Architecture and Definition Capability Leader for the Respondent. Mr Duffy completed the risk assessment for Senior Systems Engineers on 26 October 2021.

Assumption about full-time work at primary location and close contact with other people

[79] The Respondent stated that the Applicant’s flexible work from home arrangement was a temporary measure. Going forward, the Applicant would be required to attend his primary place of work. Mr Duffy stated that, in his experience, Senior System Engineers are routinely required to attend on-site, contact members of the public 3+ days a week, and visit non-home sites at least once every two weeks. While the risk assessment did not consider the Applicant’s individual work characteristics, Mr Duffy responded to the Applicant’s assertion that he was not required to attend on site, stating that:

“As part of the Wedgetail project, Mr Pillifeant was engaged to assist with the functional configuration audit (FCA) activity. This activity involves examining the functionality of a product and auditing whether the product meets certain baseline functionality requirements. Involvement in the FCA program requires a high level of contact with the customer (the RAAF) at both Boeing premises and at the RAAF’s premises in Williamstown, New South Wales. Among other things, Mr Pillifeant’s role in the FCA program required him to :

i. plan FCA activities and create troubleshooting reports and technical performance measures reporting;

ii. provide weekly communication and status updates regarding FCA activities;

iii. attend the office at least 2 days per week to attend audit activities and team meetings and to access the secure network;

iv. engage in domestic travel, including to Williamtown to support the above activities.”

[80] Mr Duffy also stated that the project the Applicant was working on had to be conducted in accordance with Australian Government security requirements. This required all work which is classified to be performed in a security-cleared environment and required access to a secure network. This work could not be performed from home.

Assumption about travel requirements

[81] The Respondent submitted that Senior Systems Engineers were expected to engage with the Respondent’s customers directly, which may require domestic or international travel to attend their premises in person. This requirement was explicitly stated in clause 11 of the Applicant’s employment agreement. Whilst levels of customer exposure for Senior Systems Engineers may vary depending on the project and stage of the project, they should have some in-person customer contact throughout the life of a project. Typical activities requiring a Senior Systems Engineers to travel would be to attend security-classified meetings and briefings, elicitation of requirements from the customer, design audits, integration and testing activities in those sensitive security constrained environments. International travel would normally be required due to security and global trade control constraints for similar activities with supplier and support networks, including Boeing Australia.

[82] There was an expectation within the Systems Engineering Integration and Test (SEIT) capability that Senior Systems Engineers may be redeployed within the capability, or to different projects, in order to meet the needs of the business and those of customers. The Respondent referred to clause 4.3 and 4.4, which provides the Respondent may re-deploy the Applicant to another position within the company or a related body corporate. As a result, there is a need for Senior Systems Engineers to be able to engage in international and domestic travel, even if travel is only infrequently required for their current project.

[83] The Respondent denied that its staff were coerced into having the vaccine. The Respondent submitted that it always accepted that it was the Applicant’s choice to be vaccinated. In accordance with the Policy, when the Applicant produced an accepted medical exemption, an ICCP was put in place to facilitate the Applicant’s circumstances. When the medical exemption expired 15 April 2022, the Applicant failed to produce a further medical exemption and indicated that he did not intend to comply with the Policy and get vaccinated.

[84] The Respondent submitted in its closing oral submissions that the central issue in this matter has been dealt with many times by the Commission and there is nothing in this case that would cause a different result. The Respondent submitted that the Applicant’s primary submission has always been that Covid-19 vaccines are only provisionally approved.

[85] The Respondent submitted further that the Applicant’s arguments in relation to consent, and coercion have been routinely dismissed in other matters before the Commission. The Respondent submitted that the Applicant made clear that he wilfully refused to comply with the lawful and reasonable direction given in relation to the Policy.

[86] The Respondent referred to a number of more recent decisions of the Commission where it has been found that the efficacy of the vaccines is uncontentious. The Respondent noted that the Applicant had called no expert medical evidence and his material concerning the efficacy and vaccination should be rejected out of hand.

[87] The Respondent noted that despite the Applicant being given the opportunity to challenge the evidence of Mr Duffy and Ms Bowman he elected not to, and the uncontested evidence of Mr Duffy in particular supported the Respondent’s position that the Applicant was correctly categorised in Group 1 and would have been in Group one even if adjustments were made to scoring based on the Applicants role being part time. Further the evidence was that the requirement to travel was increasing.

CONSIDERATION

[88] 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.

[89] I am required to consider each of these criteria to the extent they are relevant to the factual circumstances before me. 10

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

[90] To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 11 and should not be “capricious, fanciful, spiteful or prejudiced.”12 Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.

[91] 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 the Mt Arthur Coal decision, 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.” 13

[92] In this matter, the Respondent undertook a comprehensive consultation process prior to implementing the Policy. The Respondent chose not to adopt a ‘one size fits all’ approach, but rather, considered the operational requirements of roles and the risk of exposure to COVID-19. In the risk assessment, the Respondent considered relevant factors including obligations provided under the employment agreement, including requirements to attend the primary worksite, requirements to work in close proximity to others, and requirements to travel domestically and internationally. As a company which employs more than 3,000 people, it was reasonable to undertake risk assessments based on role classifications, rather than the day-to-day circumstances of individual employees.

[93] The Full Bench decision in Mount Arthur Coal made clear findings about the safety and efficacy of Covid-19 vaccines. The Applicant has not called any medical evidence that would support a different conclusion to that of the Full Bench in relation to that issue. I reject the Applicant’s submissions in relation to this issue.

[94] I also reject the Applicant’s submissions in relation to issues he has raised concerning privacy law, and his submissions about consent, and that the Respondent’s actions amount to duress or unlawful coercion. There were no particular facts in this case that would cause the Commission to adopt a different position to the findings made in other cases before the Commission concerning these issues, including that the direction to be vaccinated in this case does not breach privacy law and does not amount to unlawful coercion. Ultimately the Applicant was able to decide for himself whether to be vaccinated.

[95] Regarding the Applicant’s submissions that he should have been categorised under Group 2 and not Group 1, it is notable the Applicant did not challenge the evidence of Mr Duffy and Ms Bowman. The Applicant’s argument is that the proper approach was to adopt a project-based approach rather than a role-based approach. As was submitted for the Respondent, it is not for the Commission to determine what it would have done had it been the employer.

[96] The Commission’s role is to determine whether the Respondent had a reasonable and logical basis for its policy. I am satisfied the policy, the development of the risk assessment tool and the implementation of the policy was reasonable and logical. The Respondent assessed its needs and also what could be required of the roles within its organisation under its employees’ employment agreements. It is clear that the Applicant could be required to travel and could be directed to perform different work to the particular work he was performing on the project he had been engaged on Prior to his termination.

[97] I agree with the Respondent that it would not be practical to assess the risk based on the specific work an employee may be doing at a particular point in time without regard to what their role can entail, when it is uncontroversial that work can be subject to change in accordance with the role the employee is engaged in under their employment contract.

[98] There was uncontested evidence that the amount of travel required of employees is increasing. Mr Duffy gave evidence that the project the Applicant had been working on was moving into a testing stage when the Applicant was on leave, which would involve working closely with other staff.

[99] I am satisfied on the basis of the evidence of Mr Duffy that even if the assessment tool assessed the Applicant as a three-day employee, he would have received a score that still resulted in him being in Group 1. I am also satisfied that the methodology underpinning the tool was a reasonable approach to assessing the level of risk which the Respondent is legally obligated to manage.

[100] For these reasons, I am satisfied that the Respondent’s direction that the Applicant be vaccinated was a lawful and reasonable direction with which the Applicant was required to comply.

[101] It is well established that in circumstances where a COVID-19 vaccination policy issued at the direction of the employer has been found to be lawful and reasonable, failure to comply with such policy is a valid reason for dismissal within the meaning of s.387(a) of the Act. 14 It is uncontentious that as at the date of his termination, the Applicant had indicated that he was not vaccinated, nor did he have a medical exemption. I do not accept the Applicant’s argument that clauses 25.1-25.3 of his employment agreement protected him from dismissal in circumstances where he did not comply with a direction. Rather, clause 25.2 explicitly stated that:

“The Employee is expected to comply with the Company’s policies and procedures and a failure to do so may result in disciplinary action but will not constitute a breach of this agreement.”

[102] In light of these reasons, I am satisfied that the Applicant’s failure to comply with the Respondent’s direction – constituted a valid reason for dismissal.

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

[103] 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 policy, that if he was not vaccinated and without a valid medical exemption, his employment may be terminated.

[104] The Applicant had – and took – the opportunity to respond on a couple of occasions to indicate his opposition to the introduction and enforcement of the Policy. This was done prior to 3 December 2021, and again after his medical exemption expired and he was issued with the show cause notice prior to his termination on 23 May 2022. Accordingly, 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

[105] 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

[106] 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

[107] 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 and provided the Applicant with procedural fairness as required by the Act.

(h) any other matters that the FWC considers relevant

[108] I have taken into account that the Applicant’s period of employment with the Respondent was of a reasonable duration. I note the evidence of the Applicant that he has now obtained other employment. There are no other matters which I consider relevant.

CONCLUSION

[109] 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.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR745460>

Appearances:

Mr Michael Pillifeant on his own behalf.

Mr Andrew Denton of counsel instructed by Corrs Chambers Westgarth for the Respondent.

Hearing details:

2022

Brisbane (by Microsoft Teams Video)
6 September.

 1   Exhibit 1.

 2   Exhibit 4.

 3   Exhibit 5.

 4   Exhibit 2.

 5   Exhibit 3.

 6   CFMMEU, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059; Ali Fawaz v G4S Integrated Services Pty Ltd [2022] FWC 777; Gregory John Casper v New Horizons [2022] FWC 1269; Mr Matthew Colwell v Wellways Australia [2022] FWC 1086; Margarita Smith v Compass Group Defence Hospitality Services Pty Ltd [2022] FWC 1434; Stuart Tween v Qantas Airways Ltd [2022] FWC 1594; Dany Nekho v Rentokil Initial Pty Ltd [2022] FWC 1632; Sampson v BHP Olympic Dam [2022] FWC 1568; Yang Yan v Nu Skin Enterprises Australia, Inc [2022] FWC 1426; Kallipolitis v Australian Postal Corporation [2022] FWC 1739; Dean v Regional Express Holdings Ltd [2022] FWC 1448.

 7   Les Tyulta v Coventry Group Limited T/A Cooper Fluid Systems [2022] FWC 2085; Christopher McFall v Qantas Airways Ltd [2022] FWC 1924; Margarita Smith v Compass Group Defence Hospitality Services Pty Ltd [2022] FWC 1434.

 8   [2021] FWCFB 6059.

 9   Ibid [29].

 10   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].

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

 12   Ibid.

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

 14   CFMMEU, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059; Ali Fawaz v G4S Integrated Services Pty Ltd [2022] FWC 777; Gregory John Casper v New Horizons [2022] FWC 1269; Mr Matthew Colwell v Wellways Australia [2022] FWC 1086; Margarita Smith v Compass Group Defence Hospitality Services Pty Ltd [2022] FWC 1434; Stuart Tween v Qantas Airways Ltd [2022] FWC 1594; Dany Nekho v Rentokil Initial Pty Ltd [2022] FWC 1632; Sampson v BHP Olympic Dam [2022] FWC 1568; Yang Yan v Nu Skin Enterprises Australia, Inc [2022] FWC 1426; Kallipolitis v Australian Postal Corporation [2022] FWC 1739; Dean v Regional Express Holdings Ltd [2022] FWC 1448.