| [2022] FWC 2424 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Thomas Trzcinka
v
Mt Arthur Coal Pty Limited
(U2022/1420)
DEPUTY PRESIDENT SAUNDERS |
NEWCASTLE, 12 SEPTEMBER 2022 |
Application for relief from unfair dismissal – direction requiring vaccination against COVID-19 – valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed
Introduction
[1] Mr Thomas Trzcinka was employed by Mt Arthur Coal Pty Limited (Mt Arthur) in the position of Mine Service Operator. His duties involved the servicing of mechanical equipment and refuelling mining equipment at the Mt Arthur coal mine in the Hunter Valley (Mine). Mr Trzcinka was dismissed by Mt Arthur on 13 January 2022 because he refused to comply with a direction that required him, as a condition of entry to the Mine, to provide evidence that he had obtained a first dose of a COVID-19 vaccine by 15 December 2021 and be fully vaccinated by 31 January 2022 (Site Access Requirement).
[2] Mr Trzcinka contends that his dismissal was harsh, unjust and unreasonable. Mt Arthur denies those allegations.
[3] I heard Mr Trzcinka’s unfair dismissal case against Mt Arthur on 6 September 2022. Mr Trzcinka gave evidence in support of his case. He also adduced evidence from Dr Phillip Altman. Mt Arthur adduced evidence from Mr Ross Carlson, who was employed as the acting General Manager at the relevant time, Mr Daniel McPhee, Maintenance Superintendent, and Dr Natalie Gray, Medical Director, Health Consulting Australasia, International SOS .
[4] Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of the application.
[5] There is no dispute between the parties and I am satisfied on the evidence that:
(a) Mr Trzcinka’s application for unfair dismissal was made within the period required in s 394(2) of the Act;
(b) Mr Trzcinka was a person protected from unfair dismissal;
(c) the Small Business Fair Dismissal Code did not apply to Mr Trzcinka’s dismissal; and
(d) Mr Trzcinka’s dismissal was not a genuine redundancy.
Was the dismissal harsh, unjust or unreasonable?
[6] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Mr Trzcinka’s dismissal was harsh, unjust and/or unreasonable. I will address each of these matters in turn below.
General principles
[7] It is necessary to consider whether the employer had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 1 In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded”2 and should not be “capricious, fanciful, spiteful or prejudiced.”3
[8] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 4 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).5
[9] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.6 It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 7
Valid reason alleged by Mt Arthur
[10] Mt Arthur contends that it had a valid reason to dismiss Mr Trzcinka because he failed to comply with the Site Access Requirement, which it submits was a lawful and reasonable direction.
General principles re lawful and reasonable directions
[11] In the absence of a contrary intention, there is a term implied into all contracts of employment to the effect that employees must follow the lawful and reasonable directions of their employer.24
[12] A lawful direction is one which falls within the scope of the employee’s employment. An employee is not obliged to obey a direction which goes beyond the nature of the work the employee has contracted to perform, although an employee is expected to obey instructions which are incidental to that work.25
[13] A direction which endangers an employee’s life or health, or which the employee reasonably believes endangers his or her life, will not be a lawful order, unless the nature of the work is itself inherently dangerous, in which case the employee has contracted to undertake the risk.26 Further, the direction must be lawful in the sense that it must not direct the employee to do something that would be unlawful, such as driving an unregistered or unroadworthy vehicle.27
[14] The reasonableness of a direction given to an employee is a question of fact and must be judged objectively having regard to all the circumstances, including the nature of the particular employment, the established usages affecting the employment, the common practices that exist, the general provisions of any instrument governing the relationship, and whether the employer has complied with any relevant consultation obligations.28 It is not necessary to show that the direction in question is the preferable or most appropriate course of action or in accordance with ‘best practice’ or in the best interests of the parties. There may be a range of options open to an employer within the bounds of reasonableness.29
[15] A direction lacking an evident or intelligible justification will not be reasonable, but that is not the only basis on which unreasonableness can be established. All the circumstances must be considered.30
Summary of Mr Trzcinka’s submissions on valid reason
[16] Mr Trzcinka contends that none of the injections for COVID-19 that had been developed by the time he was dismissed by Mt Arthur had long term safety data available. As a result, nobody could have been in possession of safety data that quantified the risk of taking a COVID-19 injection beyond the length of time that the injections had been developed and injected into test subjects in 2020, i.e. a very short time relative to unprecedented vaccine production.
[17] Mr Trzcinka submits that he and other employees of Mt Arthur attended a consultation meeting on 10 December 2021 in which they raised the issue of safety risks associated with COVID-19 injections. Mr Trzcinka also raised these safety risks in his show cause response on 12 January 2022, including his views that the COVID-19 injections had not been adequately assessed and were experimental.
[18] Mr Trzcinka contends that COVID-19 injections were, and remain, an ongoing experiment within the community. He submits that this is apparent from the Therapeutic Goods Administration (TGA) website under the Black Triangle Program information and the Provisional Approval status information. Mr Trzcinka further submits that the provisional approval process was further reduced by the Therapeutic Goods Legislation Amendment (2021 Measures No. 2) Regulation 2021, which removed steps 3 and 4 that normally required evidence of the magnitude of safety and efficacy to be demonstrated in addition to other safety features.
[19] Mr Trzcinka contends that he was dismissed in breach of ss 104, 105 and 106 of the Work Health and Safety Act 2017 because he raised a safety concern with his employer about COVID-19 injections.
[20] Mr Trzcinka refers to the obligation under regulations 37 and 38 of the Work Health and Safety Regulation 2017 on a duty holder to review and, if necessary, revise control measures if the risk changes or a new risk is identified, particularly if a control measure is found not to control the risk as far as reasonably practicable. Mr Trzcinka submits that between December 2021 and January 2022 the Omicron variant of COVID-19 became the dominant variant and Mt Arthur failed to adequately assess the changing risk as required by regulation 38.
[21] It is contended that by early January 2022, it had become clear that COVID-19 injections did little to nothing to prevent transmission of the Omicron variant. In light of this, Mr Trzcinka contends that it could not be said that there was a valid reason for his dismissal related to his capacity, nor could it be said that the vaccinations had any effect on the safety and welfare of other employees.
[22] Mr Trzcinka also contends that Mt Arthur never shared with him any risk assessment completed in relation to the COVID-19 injections. It is submitted that the COVID-19 injections had not been properly assessed by Mt Arthur in accordance with its duties under the Work Health and Safety Act and Regulations, both in terms of assessing possible risk and consulting with workers.
[23] Mr Trzcinka submits that Mt Arthur’s contention that the Site Access Requirement was lawful and reasonable on the basis of ensuring a safe work environment is absurd in the absence of a proper risk assessment for the medical procedure it mandated for all staff.
[24] Mr Trzcinka contends that the Site Access Requirement was tainted with illegality and unreasonableness, and was otherwise invalid.
Consideration re valid reason
[25] I am satisfied on the evidence adduced in these proceedings that no worker at the Mine works completely in isolation. The nature of mining operations at the Mine means that it is not possible to effectively social distance at all times.
[26] I have had extensive involvement in the implementation of the Site Access Requirement at the Mine. I determined an application for interim relief on 9 November 2021. 8 I was one of the five members of the Commission that considered whether the Site Access Requirement was a lawful and reasonable direction.9 On 3 December 2021, the Full Bench determined that:
(a) the Site Access Requirement was prima facie lawful:
“[85] We accept that the object and purpose of the Site Access Requirement is to protect the health and safety at work of Mt Arthur’s employees and other people at the Mine. On that basis, the Site Access Requirement is prima facie ‘lawful’ because:
• it falls within the scope of the employment, and
• there is nothing ‘illegal’ or unlawful about becoming vaccinated.”
(b) the Site Access Requirement was not reasonable. The major and determinative factor that led to the conclusion that the Site Access Requirement was not reasonable was due to deficiencies in consultation:
“[251] In all the circumstances we find that, on balance, the Site Access Requirement was not a reasonable direction. The determinative consideration has been that we are not satisfied that there was consultation in accordance with ss.47 and 48 of the WHS Act.
…
[253] Had Mt Arthur consulted the Employees in accordance with its consultation obligations − such that we could have been satisfied that the decision to introduce the Site Access Requirement was the outcome of a meaningful consultation process – the above considerations would have provided a strong case in favour of a conclusion that the Site Access Requirement was a reasonable direction.
…
[265] Mt Arthur’s failure to comply with its consultation obligations under the WHS Act is the major consideration which led us to conclude that the Site Access Requirement was not a lawful and reasonable direction. The consultation deficiencies we have identified can be addressed by Mt Arthur consulting the Employees in relation to the question of whether or not the Site Access Requirement should be imposed at the Mine. Any subsequent dispute will need to be determined having regard to the particular circumstances at the time.”
(c) the scientific and medical evidence supported the Site Access Requirement:
“[29] There are a number of general factual propositions which are uncontentious and which we accept have been established on the evidence before us:
1. COVID-19 involves a high burden of disease, greater than influenza.
2. Any infected person is at risk of developing serious illness from the virus, which may lead to death.
3. The risks posed by COVID-19 have changed with the rapid rise of the Delta variant which is more infectious and has more severe health effects than previous variants.
4. All COVID-19 vaccines currently available in Australia are effective at preventing symptomatic infection, including from the Delta variant.
5. All COVID-19 vaccines currently available in Australia substantially reduce the risk of serious illness or death, including from the Delta variant.
6. All COVID-19 vaccines currently available in Australia are safe and any adverse effects are usually mild. There is a much higher risk of developing serious complications and dying from acquiring COVID-19.
7. An unvaccinated person is more likely to acquire COVID-19 from another unvaccinated person, rather than a vaccinated person.
8. While other measures, such as mask wearing, and social distancing, are demonstrated to reduce the transmission of COVID-19, the effectiveness of these measures depends on people applying them consistently or correctly. They do not provide a substitute for the constant protection offered by vaccines, nor do they reduce the risk of developing serious illness once somebody acquires an infection.
9. Vaccination is the most effective and efficient control available to combat the risks posed by COVID-19.
10. Even with high vaccine rates in the community, COVID-19 will remain a significant hazard in any workplace in which there is a possibility that people will interact or use the same common spaces (even at separate times). The Mine is clearly such a workplace.
…
[61]…higher rates of vaccination do decrease the risks to an unvaccinated person. However, as Professor McLaws and Witness R5 made clear in their evidence, higher rates of vaccination do not remove the risk of COVID-19 infection for unvaccinated workers. That is because unvaccinated workers are at risk of catching COVID-19 from other unvaccinated workers and fully vaccinated workers, who can acquire COVID-19 and efficiently transmit the disease to others. Indeed, unvaccinated people are more likely to acquire COVID-19 compared with vaccinated people. Further, unvaccinated workers on a work site increase the risk of spreading COVID-19 to vaccinated workers and other unvaccinated workers. In turn, those persons are at risk of spreading COVID-19 outside the workplace to their families and friends.
[62] We are also satisfied on the basis of the expert evidence given by Professor McLaws and Witness R5 that the rates of infection of COVID-19, in the Hunter Region and throughout Australia, are likely to increase over time as movement restrictions ease, with the result that it is inevitable that everyone who works on the Mine will come into contact with someone – probably many people – who are infected with COVID-19. Witness R5 went on to express his opinion that ‘with reopening the virus will spread through Australia, and [although] the timing in the given locations [is] not exact, but in time it will spread to all locations, and be present in all work places’. When COVID-19 does so spread, those who remain unvaccinated are at greatest risk of acquiring COVID-19, becoming seriously ill or dying from acquiring COVID-19, and infecting other people with whom they come into contact.”
(d) notwithstanding the deficiencies with consultation, there were a number of considerations that supported a finding that the Site Access Requirement was otherwise reasonable:
“[252] We note that there are a range of considerations which otherwise weighed in favour of a finding that the Site Access Requirement was reasonable, including that:
1. It is directed at ensuring the health and safety of workers of the Mine.
2. It has a logical and understandable basis.
3. It is a reasonably proportionate response to the risk created by COVID-19.
4. It was developed having regard to the circumstances at the Mine, including the fact that Mine workers cannot work from home and come into contact with other workers whilst at work.
5. The timing for its commencement was determined by reference to circumstances pertaining to NSW and the local area at the relevant time.
6. It was only implemented after Mt Arthur spent a considerable amount of time encouraging vaccination and setting up a vaccination hub for workers at the Mine.”
[27] Following our decision that the BHP Group, including Mt Arthur, had not adequately consulted with employees in relation to the Site Access Requirement, I facilitated further consultation between Mt Arthur, its employees and relevant unions. On 17 December 2021, I issued a Statement in which I made the following observations on the basis of the material before the Commission: 10
“How did the parties progress with consultation in light of the Decision?
[18] On 3 December 2021, Mt Arthur withdrew the direction to employees covered by the EA to comply with the Site Access Requirement.
[19] On 3 December 2021, Mt Arthur requested the assistance of the Commission to facilitate an urgent discussion regarding the process of consultation with its employees to determine whether a site access requirement should be adopted for its employees and if so, the terms of such a requirement.
[20] On 6 December 2021, Mt Arthur held toolbox talks with employees and confirmed that further consultation would occur regarding a proposed site access requirement and encouraged employees to participate in that consultation process.
[21] On 6 December 2021, Mt Arthur provided a proposed Consultation Plan to the Applicants. The Consultation Plan addressed areas that the Commission considered needed to be met in order for a decision to be made about whether a site access requirement should be adopted at the Mine for Mt Arthur’s employees, and if so, the terms of such a requirement.
[22] On 6 December 2021, the Commission held a conference during which the Consultation Plan was discussed.
[23] On 6 December 2021, Mt Arthur emailed all of its employees, enclosing a letter, announcing the further consultation that would occur in relation to a proposed site access requirement that would require employees to:
• have at least a single dose of an approved COVID-19 vaccine by 15 December 2021; and
• be fully vaccinated by 31 January 2022, (the Proposed Site Access Requirement).
[24] On 7 December 2021, Mt Arthur held further toolbox talks with employees and in relation to the Proposed Site Access Requirement.
[25] On 7 December 2021, Mt Arthur sent an email to all employees enclosing the consultation plan, the Decision and its summary of that decision, a FAQ document, and a safety and health rationale summary document.
[26] On 7 December 2021, the “Mt Arthur Coal Consultation” hub went live, which was a central hub on Mt Arthur’s intranet that contained all of the materials relevant to the Proposed Site Access Requirement.
[27] On 7 December 2021, the Applicants confirmed that they agreed with the proposed Consultation Plan and advised that they considered that the question of whether Mt Arthur meets its obligations to consult will depend on the quality and genuineness of the consultation itself.
[28] A copy of the Consultation Plan is at Appendix A to this Statement.
[29] On 8 December 2021, Mt Arthur held further toolbox talks with employees and in relation to the Proposed Site Access Requirement.
[30] On 8 December 2021, Mt Arthur and the Applicants met to discuss the Proposed Site Access Requirement. The Applicants provided materials for the consideration of Mt Arthur.
[31] On 8 December 2021, Mt Arthur undertook consultation meetings with employees who had been stood down due to their non-compliance with the Site Access Requirement.
[32] On 8 December 2021, Mt Arthur and the Applicants participated in a report back conference before me in relation to the consultation that had so far occurred regarding the Proposed Site Access Requirement.
[33] On 8 December 2021, Mt Arthur held further toolbox talks with employees and in relation to the Proposed Site Access Requirement.
[34] On 9 December 2021, Mt Arthur held further toolbox talks with employees and in relation to the Proposed Site Access Requirement.
[35] On 9 December 2021, Mt Arthur held consultation meetings with Department and Site HSE Committees.
[36] On 9 December 2021, Mt Arthur provided the Applicants with a record of the meeting that took place on 8 December 2021.
[37] On 10 December 2021, Mt Arthur held further toolbox talks with employees and in relation to the Proposed Site Access Requirement.
[38] On 10 December 2021, Mt Arthur provided the Applicants a written response to the specific matters raised by the Applicants for further consideration during their meeting on 8 December 2021.
[39] On 10 December 2021, Mt Arthur provided the attendees at the various Department and Site HSE Committee meetings with records of those meetings containing responses to each of the matters raised for further consideration during those meetings.
[40] On 10 December 2021, Mt Arthur and the Applicants participated in a second report back conference before me in relation to the consultation that had so far occurred regarding the Proposed Site Access Requirement.
[41] Between 10 and 12 December 2021, where appropriate, Mt Arthur provided individual written responses to consultation contributions provided by individual employees in relation to the Proposed Site Access Requirement.
[42] On 12 December 2021, the Applicants confirmed that they did not require a further meeting with Mt Arthur.
[43] On 12 December 2021 at 8:00pm, the further consultation process formally concluded and Mt Arthur proceeded to make a decision on the proposal.
[44] On 13 December 2021, Mt Arthur confirmed the conclusion of the consultation process, and the commencement of the decision making phase of the process, with the Applicants.
[45] On 13 December 2021, Mt Arthur and the Applicants participated in a third report back conference before me in relation to the consultation that had so far occurred regarding the Proposed Site Access Requirement.
[46] On 13 December 2021, Mt Arthur sent an email to all employees providing an update on the status of the consultation and that Mt Arthur had now transitioned to the decision-making phase of the process.
[47] On 14 December 2021, Mt Arthur, taking into account all material available to it, made a decision that a site entry requirement should be adopted and that it should take the form of the Proposed Site Access Requirement.
[48] On 14 December 2021, Mt Arthur announced to all employees that it had made the decision to introduce the Proposed Site Access Requirement. Shortly thereafter, Mt Arthur separately forwarded this announcement to all Health and Safety Committees and the Applicants.
[49] On 14 December 2021, Mt Arthur issued letters to stood down employees regarding the decision to introduce a site access requirement and the next steps for those employees, which included providing the stood down employees with a period of seven days to consider whether they would comply with the new site access requirement.
[50] On 15 December 2021, Mt Arthur and the Applicants participated in a final listed report back conference before me in relation to the decision made by Mt Arthur regarding the Proposed Site Access Requirement.
Observations
[51] The Decision provided a pathway for the parties to move forward through consultation conducted through a variety of appropriate forums.
[52] Mt Arthur responded to the Decision by withdrawing the direction to employees to comply with the Site Access Requirement and commencing a period of further consultation with its employees in relation to the Proposed Site Access Requirement.
[53] The Consultation Plan was agreed following a discussion facilitated by the Commission.
[54] The Applicants maintained the view that whether Mt Arthur meets its obligations to consult would depend on the quality and genuineness of the consultation itself.
[55] The CFMMEU also maintained its position that it:
• encourages members to get vaccinated when they are able, subject to medical advice from their doctor;
• does not support mandatory vaccination in mining and energy workplaces; and
• considers decisions about mandatory vaccination for any group of workers should be made by health authorities and not by individual employers or employer associations.
[56] Notwithstanding the difference of views, through conferences in the Commission the parties worked together to ensure that the further consultation progressed in accordance with the Consultation Plan and were able to promptly identify and resolve any issues pertaining to the process of consultation.
[57] The parties have actively participated in the consultation process and in conferences in the Commission during the period of consultation.
[58] The Applicants requested a final meeting after the time fixed by the Consultation Plan in the event there were matters raised by members which needed to be discussed. Mt Arthur agreed to this on the basis that it would not result in the time for decision under the Consultation Plan being extended. Mt Arthur considered that this was important in light of the NSW Government’s proposal to relax COVID-19 related restrictions from 15 December 2021.
[59] As a result of the conferences held by the Commission, the parties reached the agreed position that:
• the Consultation Plan had been followed and completed; and
• every employee and health and safety representative had received a reasonable opportunity to make every contribution to consultation that they wished to make, and to say everything that they wished to say, in a way that meant their contribution could be considered in making a decision.”
[28] The evidence before the Commission in these proceedings supports, and is consistent with, the observations I made in the previous dispute proceedings 11 concerning the extensive efforts to which Mt Arthur went to consult with its employees and relevant unions before making the final decision to implement the Site Access Requirement at the Mine on 14 December 2021. As part of that consultation, Mt Arthur completed a ‘Workplace Risk Assessment and Control’ (i.e. a risk assessment) in relation to the Site Access Requirement in consultation with health and safety representatives.12
[29] As to Mt Arthur’s consultation and communications with Mr Trzcinka in particular, the relevant timeline of events was as follows:
(a) On about 10 November 2021, Mr Trzcinka was stood aside without pay as a result of his failure to comply with the initial site access requirement imposed in November.
(b) On 4 December 2021, following the Full Bench decision, Mr Trzcinka was sent a letter containing a direction not to attend the Mine or perform any duties for Mt Arthur while the new consultation process was completed.
(c) On 8 December 2021, Mr Trzcinka participated in a consultation meeting with Mt Arthur in relation to the Site Access Requirement.
(d) On 10 December 2021, Ms Phoebe Thomas sent Mr Trzcinka a record of the meeting on 8 December 2021 and a question and answer document, which included a link to the MAC Consultation Hub. A login was not required to access that link and the information contained in it. Mr Trzcinka says that he could not access the information in the link. In any event, Mr Trzcinka accepts that he was sent a significant amount of information by Mt Arthur about the Site Access Requirement and the basis for its imposition. Mr Trzcinka also accepted in cross examination that it did not matter what information was sent to him by Mt Arthur because, as at January 2022, the COVID-19 vaccines did not have any long term safety data available and without such data Mr Trzcinka would not accept any statements made by regulatory authorities or governments about the safety of the vaccines.
(e) On 14 December 2021, Mt Arthur made a decision to introduce the Site Access Requirement effective from 15 December 2021. In making this decision, Mt Arthur undertook a risk assessment, which was made available to employees. Mt Arthur took into account the information which was available at the time about the new Omicron variant of COVID-19. Mt Arthur relied heavily on the recommendations made by the Australian Department of Health and the Australian Technical Advisory Group on Immunisation (ATAGI). Mt Arthur also considered both the risks associated with contracting COVID-19 and the risks associated with taking a COVID-19 vaccine in making its decision to impose the Site Access Requirement.
(f) On 14 December 2021, Mt Arthur sent Mr Trzcinka a letter confirming the outcome of the fresh consultation process and directed him to provide evidence of his vaccination status by 21 December 2021. Mr Trzcinka did not provide any response to that correspondence.
(g) On 21 December 2021, Mt Arthur sent Mr Trzcinka a letter asking him to show cause why his employment should not be terminated.
(h) Mr Trzcinka took a period of leave over the Christmas and New Year period, resulting in the show cause process being put on hold.
(i) On 10 January 2022, Mt Arthur sent Mr Trzcinka a further letter requesting that he provide evidence of his compliance with the Site Access Requirement.
(j) On 10 January 2022, Mr Trzcinka sent an email to Mr Daniel McPhee, Acting Maintenance Manager, confirming that he would not be providing any evidence of his compliance with the Site Access Requirement.
(k) In early January 2022, Mt Arthur had a team dedicated to monitoring information from NSW Health about the spread of COVID-19. At that time, Mt Arthur was aware that both the Delta and Omicron variants were being spread around the community.
(l) On 12 January 2022, Mt Arthur sent a further letter to Mr Trzcinka requesting that he show cause as to why his employment should not be terminated for failing to comply with the Site Access Requirement.
(m) On 12 January 2022, Mr Trzcinka provided a written response to the show cause letter issued to him. In summary, Mr Trzcinka asserted that he had been coerced into obtaining a COVID-19 vaccine, he considered that COVID-19 vaccines were unsafe and, therefore, the Site Access Requirement endangered his health, and COVID-19 vaccines were not effective at preventing the transmission of COVID-19.
(n) The issues raised by Mr Trzcinka had been addressed by Mt Arthur during the consultation process. By way of example, a substantial amount of information concerning the safety and effectiveness of COVID-19 vaccines was made available on the MAC Consultation Hub.
(o) On 13 January 2022, following consideration of Mr Trzcinka’s show cause response, Mr McPhee met with Mr Trzcinka and communicated Mt Arthur’s decision to terminate his employment with immediate effect.
(p) On 14 January 2022, Mt Arthur sent Mr Trzcinka a letter confirming the termination of his employment. Mr Trzcinka received four weeks’ pay in lieu of notice.
[30] Mr Trzcinka relies to a significant extent on the evidence of Dr Altman to support his contentions that COVID-19 vaccines are not safe or effective, particularly in light of Omicron becoming the dominant strain of COVID-19 by January 2022. Dr Altman is not a medical practitioner. He holds the degrees Bachelor of Pharmacy, Master of Science and Doctor of Philosophy. His doctorate was concerned with the development of new cardiotonic drugs with lower intrinsic toxicity compared to existing drugs including their chemical synthesis and testing in various animal models.
[31] I accept that Dr Altman is a pharmacologist and has expertise in the areas of clinical medical research and pharmaceutical drug regulatory affairs in Australia. Dr Altman has worked with the Australian pharmaceutical industry since 1974 in relation to clinical trial design, management and reporting and in relation to obtaining new drug approvals dealing with the Secretary of the Department of Health and the TGA.
[32] It is apparent from Dr Altman’s written evidence that his opinions on the relevant issues may be summarised as follows:
(a) The enforcement of mandatory COVID-19 vaccination is a highly controversial and unprecedented step in public health policy. The basic assumptions commonly held which are used to support mandatory vaccination include the following four misconceptions:
(i) Misconception 1 – there is an alarming and disproportionately high risk of the infection/death due to COVID-19 across the general community;
(ii) Misconception 2 – the new generation of COVID-19 vaccines have been proven to be both safe and effective;
(iii) Misconception 3 – unvaccinated individuals represent both an unacceptable risk to both themselves and to others in that they, unlike vaccinated individuals, can transmit the virus and contribute to its spread in the community; and
(iv) Misconception 4 – the benefits and risks of the new gene-based COVID-19 vaccines is generally the same for all individuals regardless of their clinical status (e.g. natural immunity), age or propensity for serious infection.
(b) The COVID-19 vaccines are not really vaccines. They are serious gene-based therapies which employ a gene-based technology which has never before been deployed in a fully approved therapeutic product. In this sense they should properly be considered to be experimental in that much of the usually required safety and efficacy information regarding these therapeutics is still outstanding and being generated and assessed by drug regulatory agencies on an ongoing basis.
(c) The TGA has only granted conditional Provisional Approval of COVID-19 vaccines in Australia. Provisional Approval is a relatively new drug regulatory pathway introduced in 2018. Under this expedited review system, therapeutic agents (including vaccines) can be made available for use when there is a perceived urgent need to use a drug even though the amount of safety and efficacy data normally required to approve the drug is unavailable. The manufacturer is required by the TGA to submit additional safety and efficacy data over a defined period to answer specific important outstanding safety and efficacy issues. Products released under Provisional Approval cannot be considered “approved” or fully evaluated. Under these circumstances and because there is pending or outstanding safety and efficacy data to be generated and evaluated, it is premature, by definition, to declare such drugs “safe and effective” and the use of these agents needs to be constantly under review in light of emerging safety data to reassess the risk versus any perceived benefit. As clinical and safety data is gained with broad usage in millions of individuals, it is essential that there is a constant re-assessment of both the risks and benefits of any therapeutic. It is highly likely, if not a certainty, that safety issues will be identified and quantified which should impact on how a new drug is used, in whom it should be used and under what circumstances it should be used.
(d) Conventional vaccines usually take about seven years to develop and test. The gene-based vaccines were developed in less than a year and are supported by extremely limited safety and efficacy clinical data.
(e) In effect, all COVID-19 vaccines remain in Phase 3 clinical trials with safety data remaining to be produced. There is no medium or long-term safety data to support these serious therapeutic agents.
(f) Historically, a large number of conventional vaccines have been withdrawn due to safety concerns following widespread use. These include vaccines for yellow fever, polio, smallpox, dengue fever, measles, respiratory syncytial virus, swine flu, rotavirus, papillornavirus and influenza.
(g) The COVID-19 vaccines use a genetic technology which has not been employed for any fully approved drug and in this sense the use of these products should properly be considered experimental. The vaccines deliver either RNA in a lipo-nanoparticle (which has never been used previously) or DNA genetic material contained in a viral vactor to produce a spike protein, similar to that found on the surface of the coronavirus, in order to provoke an immune response. It is the spike protein which is now known to be the main toxic component of the SARS-CoV-2 coronavirus. It is also the spike protein produced by these vaccines which is understood to cause the unprecedented number of serious adverse events and deaths being reported following vaccination in various international adverse drug reporting systems.
(h) The claimed 95% efficacy of certain gene-based COVID-19 vaccines was based on only 170 subjects who contracted COVID-19 during the trial.
(i) The threat posed by COVID-19 has been exaggerated due to the nature of the PCR test used to detect cases. The PCR test has been set to be exquisitely sensitive and could produce a positive result even if no live virus was present or even if a fragment of a single viral particle was present.
(j) Epidemiological modelling of the pandemic by the Doherty Institute and the Burnet Institute have been shown to have grossly overestimated the severity of the impact on public health with some estimates of death rising to 150,000 and the impact and utility of lockdowns, testing requirements and mask mandates have all been challenged around the world due to the poor outcomes of such strategies.
(k) Another complicating factor are the reported COVID-19 government statistics. There is no discrimination between those individuals in hospitals in intensive care dying with COVID-19 as opposed to dying from COVID-19. The total number of Australians dying from COVID-19 would be a fraction of the total deaths reported and could be deduced to rank about the same order of magnitude as seasonal influenza.
(l) There is a risk of myocarditis, cancers and other complications from COVID-19 vaccines. In addition, there is laboratory evidence which is apparent from publications that mRNA contained in the Pfizer and Moderna COVID-19 vaccines can enter the nucleus of cells and potentially integrate into human genetic material. This raises the possibility of serious safety issues regarding genotoxicity and carcinogenicity in the long term. In Dr Altman’s opinion, potential adverse effects warrant the issuance of a Black Box warning to all prescribers and intended users and any consideration of mandatory vaccination be suspended.
(m) There is serious under-reporting of deaths and adverse events caused by COVID-19 vaccines. There is an enormous safety risk associated with administering a provisionally approved therapeutic (of a completely new therapeutic class) which is not supported by medium or long-term safety data to a normal healthy person who is at statistically minimal risk of serious disease.
(n) In relation to risk-benefit, it has been reported that “based on publicly available official UK and US data, all age groups under 50 years old are at greater risk of fatality after receiving a COVID-19 inoculation than an unvaccinated person is at risk of a COVID-19 death”. In such circumstances, it appears difficult to justify mandatory vaccination.
(o) The COVID-19 vaccines neither prevent infection nor do they prevent transmission of the infection.
(p) There is no evidence to suggest that COVID-19 gene-based vaccination offers superior protection from COVID-19 as compared to natural immunity. A person with broad COVID-19 natural immunity will not benefit from mandatory COVID-19 vaccination and should not be exposed to the potential risk of serious adverse events or even occasional death associated with these gene-based therapeutics.
(q) The COVID-19 vaccines which are and have been available since the end of 2021 were not very effective against the newer Omicron variant. Thus, while the COVID-19 vaccines lost efficacy against the virus, the risk of serious adverse effects, including death, remained. The benefit to risk calculation turned decidedly unfavourable in late December 2021, especially for healthy people of working age.
(r) While both the absolute number and percent of the population who are vaccinated against COVID-19 increased rapidly for countries during 2021 and into 2022, the data shows both the rate and absolute number of confirmed COVID-19 cases markedly increased towards the end of 2021. The worldwide data demonstrates a failure of the COVID-19 vaccines to prevent infection and transmission of the disease.
(s) Based on the available evidence, there appears to be no grounds to support mandatory gene-based COVID-19 vaccination, especially for a person with natural immunity.
[33] Dr Altman accepted in his oral evidence that he does not have any qualifications in immunology, vaccinations, epidemiology, public health, or gene therapy. The clinical trials in which Dr Altman has been involved did not concern vaccinations. Dr Altman’s involvement in applications for approval of vaccines occurred about three decades ago.
[34] In his oral evidence Dr Altman explained that the views he expressed in his written affidavit in chief and supplemental expert witness statement were based on published information which was available as at the date of his reports, i.e. 17 June 2022 and 25 July 2022.
[35] Dr Altman disagreed with the proposition that COVID-19 vaccines which are available in Australia are safe and the adverse effects are usually mild. Dr Altman accepted that his views in relation to this issue do not represent mainstream views. In his oral evidence Dr Altman also adhered to the following opinion he expressed in a podcast on 29 May 2022:
“It is about control and the more and more I think about it, the more and more I think that COVID-19 was just a tool to exert control and there will be other tools that will be introduced and following on that will be a loss of our freedoms, digital identity, digital currency, these are all ways of controlling people of ensuring that they know who you are and if you’ve been injected or not and now we’ve seen in Canada, bank accounts can actually freeze all your assets if you don’t comply with government policy.”
[36] Dr Gray gave evidence in response to Dr Altman. Dr Gray is a public health physician. She holds a fellowship with the Australasian Faculty of Public Health Medicine. Dr Gray’s areas of expertise are communicable disease prevention and control, pandemic planning, vaccination program delivery and vaccine safety communication, travel medicine, and maternal and perinatal health. Dr Gray’s current roles are Medical Director, Australasian Health Consulting and Medical Director, Global Health, Aid and Development (Pacific) for International SOS. In this capacity, Dr Gray has spent the past 15 months providing COVID-19 related technical and public health advice.
[37] Dr Gray’s opinions on the issues in contest may be summarised from her written evidence as follows:
(a) Prior to the rollout of COVID-19 vaccination, based on data from countries with a large first wave of cases (including the US and the UK), it was estimated by the Australian public health community (to inform the public health response) that 10% of people with COVID-19 would require hospital admission, and that the death rate from COVID-19 infection would be between 1 in 100 and 1 in 250. In comparison, the death rate from influenza in Australia between 2010 and 2019 averaged 11.6 per 100,000 (with a peak of 26.7 per 100,000 in 2017).
(b) According to the Australian Institute of Health and Welfare, up to the end of 2020 (and thus prior to the availability of COVID-19 vaccination), there were 909 deaths from COVID-19 in Australia out of 28,381 cases, a death rate of 3.2 in 100. During the same period, about 12.5% of people with COVID-19 were hospitalised for treatment.
(c) As vaccination rates increased during 2021, the death rate from COVID-19 in Australia started to fall. As at 19 January 2022, there had been 2,841 deaths from a total of 1,506,602 cases, a death rate of 0.19 in 100. In Dr Gray’s opinion, a comparison of the data from 2020 and 2021 suggests that the fall in the death rate from COVID-19 over 2021 should be seen as a reflection of the effectiveness of the COVID-19 vaccination program rather than as evidence that COVID-19 does not pose significant risk to an individual. This is particularly the case given that the dominant variant for the second half of 2021 was the Delta variant, which was well known for causing serious illness.
(d) In 2022, the picture is further complicated by the dominance of the Omicron variant which, while still causing serious illness and death for many people, is widely accepted among clinicians and public health physicians to cause less serious disease in the majority of people due to its preference for the upper airways rather than the lungs. In 2022 various antiviral treatments that lower the risk of serious illness and death also became more widely available. As at 7 July 2022, there had been 10,190 deaths from a total of 8,354,527 cases, a death rate of 0.12 in 100. In Dr Gray’s opinion, this lower death rate from COVID-19 in 2022 reflects the effectiveness of the vaccination program, the availability of preventative medications, and the dominance of the Omicron variant.
(e) In January 2022, both the Delta and Omicron variants were circulating in Australia. According to the NSW COVID-19 Weekly Surveillance Report, between 26 November 2021 and 15 January 2022 there were 2,664 cases of Delta and 2,056 cases of Omicron reported in NSW.
(f) While the risk of severe illness and death is significantly mitigated by vaccination for all population groups, some individual and population level risk factors for serious illness have been well established. These are relevant irrespective of whether the person is infected with the Delta or Omicron variant.
(g) Systematic reviews demonstrate that COVID-19 does not affect all population groups equally. The strongest risk factor for serious disease is age, with those aged over 65 years at particular risk. The reviews also demonstrated racial, ethnic and socioeconomic disparities in COVID-19 illness, hospitalisations and deaths, independent of age or background medication conditions.
(h) An individual’s risk in 2022, as in 2021, therefore stems from a complex interplay of demographic and medical factors, as well as their vaccination status.
(i) The risk of an individual becoming seriously unwell or dying from COVID-19 is relevant for two reasons. The first is the impact on that individual. The second is that individual risk contributes to the population risk and the population risk impacts the capacity of the health system to respond to both COVID-19 patients and people requiring hospital treatment for other reasons. In 2021, the dominance of the more severe Delta variant led to people who were experiencing serious illness requiring intensive hospital treatment, often for prolonged periods of time. In 2022, the sheer number of people infected with the Omicron variant means that, while the individual risk is low, population risk remains high. This is because even a small percentage of a high number of cases leads to a large absolute number of hospitalisations.
(j) In both of these situations there was and continues to be significant concern throughout the health care system that the capacity to care for COVID-19 patients, as well as other patients requiring intensive care treatment, could be compromised. The health impacts of COVID-19 across the community are therefore more extensive than the risk from the infection itself.
(k) In summary, while the risk of COVID-19 to an individual is complex and multi-factorial, the population risk has remained high across the three years of the pandemic due to an array of factors including variant, vaccination coverage, and healthcare system capacity.
(l) Evidence from clinical trials and real world data demonstrates that although there is evidence of waning protection against infection and symptomatic disease, which is more pronounced with the Omicron than the Delta variant, protection against severe disease (hospitalisation) and death from the Delta variant remains very high across time. Although the evidence was less strong for the Omicron variant (due to these data being presented soon after it became the dominant strain), there was some evidence for high levels of protection against severe illness and death following a third (booster) dose of vaccine.
(m) There is less evidence for vaccines leading to a reduction in transmission of the Omicron variant, due to the significant increase in transmissibility of this variant and the increased incidence of both breakthrough infections and repeat infections in both vaccinated and unvaccinated people. It is therefore estimated by the Australian public health community (to inform the public health response) that COVID-19 vaccination no longer reduces the risk of transmission. This may change once the Omicron-specific vaccines become available.
(n) All COVID-19 vaccines approved by the TGA in Australia went through all phases of trials prior to receiving registration by the TGA. The reason that the COVID-19 vaccines were able to be brought to market more quickly than usual is that the timing of some of the phases overlapped. For example, some Phase 3 studies started as soon as preliminary data from the Phase 1 and 2 trials were available. While this enabled them to be made available earlier in order to address the pandemic and save lives, it is important to understand that no steps were skipped or missed.
(o) It is apparent from the TGA weekly report from 20 January 2022 that there were 11 deaths attributed to the AstraZeneca vaccine from 13.7 million doses given. Those 11 deaths were linked to the vaccine after 751 reports of death were received and reviewed. All other deaths were not shown to be related to the receipt of a COVID-19 vaccine. Eight of the 11 deaths were due to TTS (thrombosis with thrombocytopenia syndrome), one was due to immune thrombocytopenia, and two were linked to Guillain-Barre Syndrome. There were no deaths from 30 million doses of Pfizer vaccine and no deaths from 2.4 million doses of the Moderna vaccine.
(p) In the same way as the TGA in Australia encourages reports of deaths and symptoms that occur in the period of time following COVID-19 vaccination, and then each report is investigated to determine whether there could be a plausible link with the vaccine, the US VAERS (Vaccine Adverse Event Reporting System) also accepts self-reports from the public as well as required and encouraged reports from healthcare providers. It is very important to be clear about this when using data from the VAERS system. Dr Altman refers to there having been 20,622 reports of death following COVID-19 vaccinations. What he does not make clear, however, is that the vast majority of these have not been found to be linked to the vaccine.
(q) According to the VAERS Report from 11 July 2022, there have been over 597 million doses of COVID-19 vaccines administered in the US between 14 December 2020 and 6 July 2022. Over this period, VAERS received 15,380 preliminary reports of death among people who had received a COVID-19 vaccine. Following a review of each of these deaths by clinicians from the Centre for Disease Control and the US Food and Drug Administration, nine deaths have been causally associated with the Johnson & Johnson vaccine.
(r) The overwhelming weight of evidence, including that from clinical trials, regulatory approval processes, and ongoing global surveillance of adverse events (based on extensive data sets with over 46 million doses given in Australian to 16 January 2022 and, according to Our World in Data, nearly 9 billion doses administered globally by that date) supports the safety of all three vaccines that were approved for use in Australian in January 2022.
(s) The emergence of the Omicron variant and subvariants in late 2021 and throughout 2022 has had a number of impacts. Although the Omicron variant is widely accepted to cause less severe disease overall, due to it affecting the upper airways more often than the lungs, its greatly increased transmissibility has led to a rapid and significant rise in case numbers which, in turn, have resulted in an unsustainable increase in hospitalisations and tragic rise in deaths. The Omicron waves in Australian have coincided with a relaxing of COVID-19 public health restrictions, which has further fuelled case numbers and pressure on our health care system.
(t) At the same time, the COVID-19 vaccines in use in Australia are still those that were developed to combat the Wuhan strain of the virus. This has resulted in a reduction in the effectiveness of the vaccine in preventing infection and symptomatic illness, although protection against serious illness and death has largely been preserved. It has also led to a reduction in the capacity of the vaccine to stem transmission. The safety profile of the vaccines has not been altered by these developments.
(u) In summary, and based on Dr Gray’s understanding of the evidence as at 13 January 2022 and July 2022, Dr Gray is of the opinion that:
• The COVID-19 vaccines approved for use in Australia were (and continue to be) very effective at reducing the real risk of serious illness, hospitalisation and death from COVID-19 infection.
• Their effectiveness at preventing infection and symptomatic illness was (and continues to be) related to the variant (they were more effective against Delta than they are against Omicron) and the duration since the most recent dose (they have peak effectiveness in the first 3 months).
• The vaccines have also contributed to reducing the transmission of COVID-19 in the community, with the evidence suggesting a greater impact on transmission of the Alpha and Delta variants than of the Omicron variant.
• All three COVID-19 vaccines approved for use in Australia have been rigorously tested and subject to stringent approval processes and surveillance systems. All three have been repeatedly demonstrated to be safe, and the very rare adverse events are well documented and understood.
• There is no convincing evidence that natural immunity is better, more effective or more long-lasting than vaccine-induced immunity. Natural immunity (i.e. having the infection) also brings with it the risk of serious illness, hospitalisation and death. Vaccination is still recommended after having COVID-19 infection.
• Vaccination is a cornerstone of the public health response to the COVID-19 pandemic and has played a vital role in saving lives and protecting the capacity of the health system to be able to care for both COVID-19 and non-COVID patients.
[38] Dr Gray accepted in her oral evidence that she is not an immunologist, vaccinologist or a vaccine scientist. Dr Gray has specialty in public health.
[39] Dr Gray explained in her oral evidence that the COVID-19 vaccines which are available in Australia went through various phases before being granted provisional approval. Phase 3 involved safety and effectiveness data being obtained and provided to the TGA. Further data must be provided to the TGA within two years of the provisional approval for the vaccines to receive full approval.
[40] Dr Gray referred in her oral evidence to the fact that the Omicron variant first emerged in South Africa in late November 2021. Dr Gray explained that it is widely accepted that the Omicron variant became the dominant variant of COVID-19 in Australian by 9 February 2022, but it is not possible to determine precisely when Omicron took over from Delta as the dominant variant of COVID-19 in Australia. That is because, unlike a PCR test, it is not possible to determine from a rapid antigen test whether a person is suffering from the Omicron or Delta variant of COVID-19 and much of the data prior to February 2022 came from rapid antigen tests.
[41] Importantly, Dr Gray explained in her oral evidence that we now know that Omicron is less serious than Delta, but that was not known in January 2022. At that time, we had reports that Omicron seemed less serious in the South African context, but they were early reports and we did not know if that would translate to the Australian context. In about February 2022, it became apparent that the approved COVID-19 vaccines were partially effective at preventing transmission of the early sub-strains of the Omicron variant. In about May or June 2022, it became apparent that the approved COVID-19 vaccines do not have any impact on the transmissibility of the later sub-strains of the Omicron variant of COVID-19. Nevertheless, Dr Gray explained that the approved COVID-19 vaccines remain effective at preventing the likelihood of severe illness or death from all strains of the Omicron variant of COVID-19.
[42] Dr Gray explained in her oral evidence that, as at the date of the hearing (6 September 2022), more than 12 billion doses of COVID-19 vaccines have been given around the world and it is evident from real world data that the approved COVID-19 vaccines are as effective and safe as we expected they would be.
[43] I prefer and accept the expert opinion evidence given by Dr Gray over that given by Dr Altman. First, I consider that Dr Gray has more appropriate expertise than Dr Altman to opine on the issues in dispute in this matter. Dr Gray is a medical doctor with specialist expertise in public health. Her areas of expertise include communicable disease prevention and control, pandemic planning, vaccination program delivery and vaccine safety communication. Dr Altman is not a medical doctor. His expertise is in the areas of clinical medical research and pharmaceutical drug regulatory affairs.
[44] Secondly, Dr Gray gave expert evidence on the basis of what was known as at the date of Mr Trzcinka’s dismissal (13 January 2022). Dr Altman expressed his opinions on the basis of information available to him when he prepared his reports in June and July 2022. The primary issue for determination in this case is whether the Site Access Requirement was a lawful and reasonable direction. That necessarily requires attention to be focused on the information which was available at the time that requirement was imposed on Mr Trzcinka, namely 13 January 2022.
[45] Thirdly, Dr Altman’s opinions in relation to the safety and efficacy of the approved COVID-19 vaccinations in Australia is contrary to the advice and recommendations made by various governmental agencies in Australia, including ATAGI and the Australian Department of Health. Dr Altman accepted in his oral evidence that his views in relation to the safety and efficacy of COVID-19 vaccines do not represent mainstream views.
[46] Fourthly, although the available COVID-19 vaccines in Australia have not received final approval from the TGA (because data is still being obtained), real world data demonstrates that, as at 6 September 2022, more than 12 billion doses of COVID-19 vaccines have been given around the world and it is evident from this data that the approved COVID-19 vaccines are as effective and safe as expected.
[47] The evidence given by Dr Gray in these proceedings supports the expert evidence adduced by Mt Arthur in the Full Bench proceedings decided in early December 2021. I am satisfied that Dr Gray’s evidence establishes that, as at 13 January 2022:
(a) being infected with COVID-19 continued to pose a real risk of serious illness, hospitalisation and death, particularly for individuals with a range of specific risk factors;
(b) the COVID-19 vaccines available in Australia were effective in significantly reducing the risk of an individual becoming seriously ill, being hospitalised or dying from COVID-19;
(c) the COVID-19 vaccines were more effective at reducing the risk of infection and preventing transmission against the Delta variant than they were against the Omicron variant, but they were still somewhat effective at preventing transmission of the early sub-strains of the Omicron variant in early 2022;
(d) although the Omicron variant became the dominant variant by 9 February 2022, in January 2022 both the Omicron and Delta variants were circulating in New South Wales; 13
(e) although the Omicron variant is widely accepted to cause less severe disease overall than the Delta variant, due to it affecting the upper airways more often than the lungs, its greatly increased transmissibility means that, while the individual risk is lower, population risk remains high;
(f) COVID-19 vaccines are more effective in the first three months after their administration;
(g) all three COVID-19 vaccines approved for use in Australia have been rigorously tested and subjected to stringent approval processes and surveillance systems. All three vaccines have been demonstrated to be relatively safe, with the rare adverse events being well documented and understood;
(h) there is no convincing evidence that natural immunity is better, more effective or more long-lasting than vaccine-induced immunity. Further, unlike vaccine-induced immunity, natural immunity brings with it the risk of serious illness, hospitalisation and death; and
(i) vaccination is a cornerstone of the public health response to the COVID-19 pandemic and has played a vital role in saving lives and protecting the capacity of the health system to be able to care for both COVID-19 and non-COVID patients.
[48] I accept that Mr Trzcinka is not an ‘anti-vaxxer’. He has taken other vaccines where long term safety data has been available. I accept that he was told that some other employees at the Mine suffered some side effects from taking a COVID-19 vaccine and he was genuinely concerned that he could be injured or killed if took a COVID-19 vaccine.
[49] Mr Trzcinka did not raise any medical contraindication or personal circumstances as a reason for non-compliance with the Site Access Requirement.
[50] Having regard to all the circumstances, I am satisfied that the Site Access Requirement had, at the time of Mr Trzcinka’s dismissal, a logical and understandable basis and was a reasonable and proportionate response to the risks posed by COVID-19. In particular:
(a) there is a risk of transmission of COVID-19 at the Mine because employees cannot isolate from one another;
(b) the Site Access Requirement was implemented after an extensive and thorough process of consultation. Mt Arthur assessed the risks of contracting COVID-19 and the risks of taking a COVID-19 vaccine in undertaking its risk assessment and ultimately making its decision. Mt Arthur acted in a manner consistent with advice and recommendations made by government agencies;
(c) there was an increased risk of transmission and incidence of COVID-19 in the community following the opening of borders and easing of restrictions towards the end of 2021;
(d) both the Delta variant and the Omicron variant were circulating in New South Wales in December 2021 and January 2022. Not a great deal was known about the Omicron variant in January 2022. The limited information which was known about the Omicron variant of COVID-19 as at 13 January 2022 meant that it was not reasonable for Mt Arthur to change the Site Access Requirement at that time;
(e) the increased transmissibility of the Omicron variant of COVID-19 and the risk that future variants may emerge and pose risks to health and safety;
(f) scientific and medical evidence continues to support vaccination as the most effective measure for mitigating against serious risk to health and safety from COVID-19; and
(g) the Site Access Requirement applies equally to all employees of Mt Arthur.
[51] When considering whether to impose the Site Access Requirement, it was reasonable for Mt Arthur to not independently investigate the safety or effectiveness of COVID-19 vaccines which had been approved for use by the TGA and recommended by various government agencies in Australia. In that regard, I agree with the observations of Deputy President Asbury in Owens v I-Med Radiology Limited, 14 Deputy President Anderson in Tytula v Coventry Group Limited,15 and Deputy President Colman in Jovcic and Markovic v Cooper Brewery Limited.16
[52] As well as being reasonable, I accept that the Site Access Requirement was a lawful direction. It was not contrary to any laws and did not require Mr Trzcinka to do anything which was unlawful. It clearly fell within the scope of Mr Trzcinka’s employment at the Mine. Further, on the basis of the expert evidence given by Dr Gray, which I have accepted, I do not consider that the requirement to be vaccinated against COVID-19 posed a significant risk to Mr Trzcinka’s life or health, nor did it give him reasonable grounds to believe that his life or health would be seriously endangered if he decided to take an approved COVID-19 vaccine.
[53] I do not accept Mr Trzcinka’s argument that it is relevant to consider whether, in March 2022, Mt Arthur decided to impose a new requirement for persons entering the Mine to have a third (booster) dose of a COVID-19 vaccine. That decision did not have any bearing on Mt Arthur’s decision to terminate Mr Trzcinka’s employment on 13 January 2022. The decision taken in March 2022 not to require persons entering the Mine to have a third (booster) dose of a COVID-19 vaccine was made on the basis of information available at that time. Although ATAGI recommended a booster, Mt Arthur made a decision not to require persons entering the Mine to have a booster. Mt Arthur decided that requiring two doses of a COVID-19 vaccine was an adequate control.
[54] Nor do I accept that there is any relevance to the fact that the Therapeutic Goods Legislation Amendment (2021 Measures No. 2) Regulation 2021 removed steps 3 and 4 that normally required evidence of the magnitude of safety and efficacy to be demonstrated in addition to other safety features. As Dr Gray explained in her evidence, the reason that the COVID-19 vaccines were able to be brought to market more quickly than usual is that the timing of some of the phases overlapped. For example, some Phase 3 studies started as soon as preliminary data from the Phase 1 and 2 trials were available. While this enabled them to be made available earlier in order to address the pandemic and save lives, it is important to understand that no steps were skipped or missed in granting provisional approval of the vaccines.
Conclusion re valid reason
[55] For the reasons given, I am satisfied that Mt Arthur had a valid reason to terminate Mr Trzcinka’s employment as a result of his refusal to comply with a lawful and reasonable direction.
[56] Mr Trzcinka was notified of the reason for his dismissal in the meeting on 13 January 2022 and the letter dated 14 January 2022 informing him of the termination of his employment. Mr Trzcinka was also notified of the reason in the show cause letters sent to him prior to his dismissal.
[57] Mr Trzcinka was given an opportunity to respond to the reason for his dismissal in reply to the show cause letters sent to him. Mr Trzcinka took up the opportunity afforded to him to respond to the reason for his dismissal.
[58] Having regard to all the circumstances, I am satisfied that Mr Trzcinka was given an opportunity to respond to the reason for his dismissal.
Unreasonable refusal to allow a support person (s 387(d))
[59] There is no evidence to suggest that Mr Trzcinka made a request for a support person to attend any meetings with Mt Arthur.
[60] In all the circumstances, I am satisfied that there was not any unreasonable refusal by Mt Arthur to allow Mr Trzcinka to have a support person present to assist in any discussions relating to his dismissal.
Warnings of unsatisfactory performance (s 387(e))
[61] Mr Trzcinka was not dismissed for unsatisfactory performance. This criterion is not relevant to the present case.
Size of enterprise and absence of human resource specialists or expertise (s 387(f) and (g))
[62] Mt Arthur is a large organisation. It has human resources specialists and expertise in its human resources team. In all the circumstances, I am satisfied that neither the size of Mt Arthur enterprise nor any absence of human resource management specialists or expertise had any material impact on the procedures followed in effecting Mr Trzcinka’s dismissal.
Other relevant matters
[63] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
[64] I take into account the fact that Mr Trzcinka was employed Mt Arthur for a little more than 10 years. There is no suggestion in the evidence of poor performance or misconduct of any kind. The length and quality of Mr Trzcinka’s employment record weighs in his favour.
[65] I do not accept Mr Trzcinka’s contention that he was dismissed because he raised a safety issue. I accept the evidence adduced from Mt Arthur to the effect that the reason for his dismissal was his failure to comply with the Site Access Requirement. That reason was consistently advanced by management on behalf of Mt Arthur both in writing and in discussions with Mr Trzcinka. The fact that Mr Trzcinka was not willing to comply with the Site Access Requirement because he believes that COVID-19 vaccines are unsafe does not alter Mt Arthur’s reason for dismissal from a failure to comply with a lawful and reasonable direction to one based on a safety complaint or issue. Supporting this conclusion is the fact that Mt Arthur applied the Site Access Requirement consistently across the Mine, as well as other businesses in the BHP Group, regardless of whether an individual employee objected to the requirement based on safety reasons or because they were a conscientious objector to any requirement to be vaccinated against COVID-19 or for any other reason.
[66] Apart from the matters I have already addressed, there are no other relevant matters for consideration.
Conclusion
[67] After considering each of the matters specified in section 387 of the Act, my evaluative assessment is that Mt Arthur’s dismissal of Mr Trzcinka was not harsh, unjust or unreasonable. Mt Arthur consulted with Mr Trzcinka in relation to the requirement for him to be vaccinated against COVID-19 if he wished to continue to work at the Mine. Mt Arthur had a valid reason for the dismissal and it afforded procedural fairness to Mr Trzcinka prior to making a decision to bring his employment to an end.
[68] I am satisfied that Mt Arthur’ dismissal of Mr Trzcinka was not unfair within the meaning of the Act. The application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr O’Brien, solicitor, for the Applicant
Ms Alderson, counsel, for the Respondent
Hearing details:
2022.
Newcastle (by videoconference)
6 September.
Printed by authority of the Commonwealth Government Printer
<PR745737>
1 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at [373, 377-8]
2 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at [373]
3 Ibid
4 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at [685]
5 Ibid
6 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24]
7 Ibid
9 Construction, Forestry, Maritime, Mining and Energy Union & Anor v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059
12 Hearing Book at pp 1571-1592
13 Dr Gray’s report at [14]
14 [2022] FWC 1823 at [46] point 9
15 [2022] FWC 2085 at [158]
16 [2022] FWC 9131 at [39]-[41]