| [2022] FWC 2707 [Note: a correction has been issued to this document] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kyriakos Zapantis
v
Coles Supermarkets Australia Pty Ltd
(U2022/6566)
COMMISSIONER CIRKOVIC |
MELBOURNE, 11 OCTOBER 2022 |
Application for an unfair dismissal remedy – employment subject to Directions of Victorian Acting Chief Health Officer – Specified worker – Applicant elected not to receive a Covid-19 vaccine – Whether dismissal harsh – dismissal not unfair – refusal to follow a lawful and reasonable direction – application dismissed.
[1] Mr Kyriakos Zapantis (the Applicant) was employed by Coles Supermarkets Australia Pty Ltd (the Respondent) as a System Optimisation Specialist, having commenced employment on 21 September 1981 as a stock selector. His employment was terminated on or about 27 April 2022, on the ground that he had refused to follow a lawful and reasonable direction from the Respondent to comply with its Covid-19 vaccination policy. The Applicant had refused to provide the Respondent with proof that he had been vaccinated against Covid-19.
[2] The matter proceeded to a hearing conducted by Microsoft Teams on 29 September 2022 and both parties sought permission under s.596 of the Act to be legally represented. Having weighed the circumstances and considerations in s.596 of the Act and noting that each party did not object to the other’s applications, I granted permission to the parties to be represented.
[3] During the hearing, the Applicant gave evidence in support of his case. Mr Michael Sharp, Head of Operations Optimisation gave evidence for the Respondent. Both parties relied on witness statements from the Applicant, Mr Sharp, and Ms Stefanie Rogliano, acting National Manager – Advisory People and Culture of the Respondent.
[4] For the reasons below, I have found that the Applicant’s dismissal was not harsh, unjust or unreasonable, and that it was therefore not unfair.
[5] On 7 October 2021, the Acting Victorian Chief Health Officer issued the Covid-19 Mandatory Vaccination (Workers) Directions. These Directions imposed obligations on employers of certain identified workers (including retail workers) to collect, record and hold vaccination information about their workers scheduled to work outside the worker’s ordinary place of residence on or after 15 October 2021. Further, under these Directions:
a) A retail worker was defined to mean a person who works at or in connection with a retail facility; 1
b) A retail facility included a supermarket; 2
c) Employers of retail workers were to ensure that unvaccinated workers did not work for them outside their ordinary place of residence on or after 15 October 2021 unless they had a booking to receive a first dose of a Covid-19 vaccine by 22 October 2021. 3
d) Exceptions applied if a worker held a certification from a medical practitioner that they were unable to receive a Covid-19 vaccine due to a medical contraindication or an acute medical illness.
[6] The Covid-19 Mandatory Vaccination (Workers) Directions were updated from time to time, with the last version of them to operate being the Covid-19 Mandatory Vaccination (Workers) Directions (No 8). These were in turn replaced by the Pandemic Workplace Order 2022 (No. 1) (Specified Workers Order), which commenced at 11:59pm on 15 December 2021, and provided that:
1. If a worker (which, as identified in Row 29 of Column 1 of Schedule 1 of the Specified Workers Order, included retail workers) was or might be scheduled to work outside of their ordinary place of residence after 11:59pm on 15 December 2021, their employer was required to collect, record and hold vaccination information about them;
2. Retail workers were defined as persons who worked at or in connection with a retail facility, which in turn was defined as a premises at which a business operated to provide for the sale of goods by retail, including a supermarket; 4 and
3. Employers of retail workers were not to permit their workers to work for them outside of their ordinary place of residence if they were unvaccinated or partially vaccinated and if they did not hold vaccination information about a worker, the employer was to treat the worker as if the worker was unvaccinated.
[7] The Pandemic Workplace Order 2022 (No. 1) was updated from time to time. At the time of the dismissal, the Pandemic (Workplace) Order 2022 (No. 8) (Order) was in force. At the time of the termination of the Applicant’s employment, Victorian retail employees have been required to be vaccinated against Covid-19 to perform work on site. The refusal or failure by an employer to comply with the Directions or Orders is an offence which carries a significant penalty. For convenience, I refer to the various iterations of the Directions and Orders as the CHO Directions.
[8] For convenience I have set out below the relevant communications between the Applicant and the Respondent that surrounded the CHO Directions. For completeness, I note that much of the background is taken from evidence submitted by the Respondent. I observe that the Applicant’s evidence was silent as to those background communications and that by and large Mr Sharp’s evidence at hearing was not challenged as to those background communications. Further, I am of the view that Mr Sharp gave his evidence in a forthright manner consistent with his written statement. I have accepted his evidence as to the background communications between the parties surrounding the CHO Directions and the Vaccination Policy. For completeness, I note that there was some contest between the parties as to an occurrence on 17 March 2022 which I deal with later in the decision at para [25].
[9] From March to November 2020, the Applicant performed work from home. 5 After March 2021, the Applicant commenced an extended period of leave which included both annual and personal leave from which he did not return to work.
[10] The Respondent submits that the Applicant’s extended absence was due to an ongoing grievance regarding the Applicant’s 2020 performance appraisal. I note that in light of the Respondent’s concession that performance was not a factor in the Applicant’s dismissal, I have not had cause to give consideration to the purported performance issues in coming to my decision in this matter.
[11] Between March and August 2021, Mr Sharp conducted regular welfare checks with the Applicant, approximately every 2-3 weeks. During this time, the Applicant provided regular medical certificates to cover his absences. 6
[12] On 1 October 2021, Mr David Brewster, Chief Legal and Safety Officer of the Respondent, sent an email to all the Respondent’s staff in Victoria, including the Applicant, asking employees to input their vaccination status into the Respondent’s “myhub” intranet platform as soon as possible, to ensure the Respondent’s compliance with the CHO Directions. 7 On 14 October 2021, Mr Brewster sent a second email to all Victorian staff, including the Applicant, which relevantly included:8
“What happens if I don’t declare my vaccination status through myhub?
If you do not disclose your vaccination status through myhub, you cannot leave home for work from Friday 15 October. This means you cannot attend stores, DCs, the Tooronga SSC, or visit other people like suppliers from tomorrow. If you are having difficulty updating your status on myhub, please speak to your line manager.
What happens if I do not wish to be vaccinated or have a medical exemption?
Please update your vaccination status to 'decline' on myhub. Team members who enter ‘decline’ will be contacted by P&C Advisory with further details, including the process to follow if you have a legitimate medical exemption. Following this declaration:
• If you have a medical reason for not receiving a vaccination, you must provide certification of a medical contraindication from a medical practitioner. Team members who provide a contraindication certificate will be able to continue to leave home for work from 15 October if they have an authorised worker permit.
• If you choose not to be vaccinated and have not provided a certification of a medical contraindication, you cannot leave home for work from Friday 15 October. This means you cannot attend stores or the Tooronga SSC for work from tomorrow…
What happens if I am not ready, willing, and able to work due to not disclosing my status or not wishing to be vaccinated?
Team members who have not declared that they have been vaccinated or provided a medical contraindication certificate by Friday 15 October will not be able to leave home for work for Coles due to Victorian Government regulations. Please discuss what this means for you with your line manager. If you are unable to complete your duties due to not being vaccinated, you will need to take annual leave or long service leave until you are able to attend stores or the Tooronga SSC.”
[13] Between September 2021 and October 2021, 9 the Respondent undertook a period of discussion and consultation with employees as to the introduction of a vaccination policy. This included the conduct of an employee survey to ascertain the views of employees. On 21 October 2021,10 the Respondent advised its workers that it would be implementing vaccination requirements as part of its response to mitigate the ongoing safety risks of Covid-19 at its sites. This was followed by the introduction of the Coles COVID-19 Vaccination Policy (the Vaccination Policy) on 12 November 2021. Relevantly, the Vaccination Policy acknowledges that the Covid-19 restrictions were easing, that people are “circulating more freely in the community and around Australia, “and that “we have entered a new phase of living and working with Covid-19.” It was also acknowledged in the Vaccination Policy that the majority of employees support Covid-19 vaccinations “and a large percentage believe that vaccinations should be required to work at Coles.”
[14] The Vaccination Policy was updated from time to time. At the date of the dismissal, version 8 of the Vaccination Policy was in force. 11 Each iteration of the Vaccination Policy in evidence before me has:12
• Required employees of the Respondent in Victoria to have had a first vaccination dose by 22 October 2021 and a second by 26 November 2021.
• Required employees to update their vaccination status in the Respondent’s internal system “myhub” to enable an effective response to ongoing COVID-19 requirements.
• Allowed employees to apply for a medical exemption due to a medical contraindication.
• Allowed employees who needed additional time to comply with the policy to use their accrued annual, long service, or unpaid leave, to a maximum of three months, to do so, subject to operational requirements.
• Stated it is an inherent requirement of all roles to attend their place of work, or another Coles site, regularly or from time to time; and
• Stated that employees who refuse to comply with the requirements of the policy may be subject to disciplinary action, up to and including dismissal.
[15] In early November 2021, the Applicant suffered a heart attack while in his home and was hospitalised. He also suffered stroke-like symptoms three weeks later. The Applicant provided medical certificates to the Respondent, certifying he had a medical condition and could not attend work from 1 November to 14 November, and from 26 November to 3 December 2021. 13 Mr Sharp temporarily ceased his regular communications with the Applicant following the heart attack.
[16] On 21 December 2021, Mr Sharp conducted a regular phone check-up with the Applicant and discussed, among other things, the requirements under the Vaccination Policy. 14 The Respondent submits that in this call, Mr Zapantis:
• Indicated that he did not think he was a candidate for receiving the COVID-19 vaccination;
• Indicated that because of his heart attack, he would not get vaccinated and would get a medical exemption; and
• Requested to meet with the Chief People Officer of Coles to discuss his ongoing grievance about his 2020 performance review.
[17] On 22 December 2021, the Respondent’s People and Culture department sent an email to all employees recorded as non-compliant with the Vaccination Policy in the Respondent’s systems, outlining the requirements to be vaccinated and directing them to update their vaccination status. 15
[18] In late December 2021, a meeting between the Applicant, the General Manager of People and Culture and the General Manager of Operations of the Respondent was scheduled for 12 January 2022, to discuss the Applicant’s ongoing performance review issues. 16 On 7 January 2022, Mr Sharp called the Applicant to confirm the meeting and to request a copy of the Applicant’s vaccination exemption.17 The Applicant provided to Mr Sharp a Medicare Immunisation History Statement, confirming an exemption from receiving the AstraZeneca vaccine from 10 December 2021 to 10 January 2022.18
[19] On 11 January 2022, Mr Sharp called the Applicant to suggest that the 12 January meeting be conducted virtually, due to the expiration of the Applicant’s medical exemption. The Applicant did not attend the virtual meeting, instead providing Mr Sharp a second Medicare Immunisation History Statement on 13 January 2022, which confirmed a further exemption from receiving AstraZeneca expiring on 4 February 2022. 19
[20] The 12 January meeting was rescheduled and took place on 4 February 2022, between the Applicant, Mr Nathan Wallace and Ms Lynley Corcoran of the Respondent. The Applicant submits that the parties discussed his return to work and ongoing performance appraisal grievance. 20
[21] Also on 4 February 2022, Mr Sharp met with the Applicant to discuss his return to work and organise a re-integration program whereby he would transition from part-time to full-time over a period of approximately three months. Following the meeting, a three-month training plan for the Applicant and a further meeting between the Applicant, Mr Sharp, and Mr Wallace on 17 March 2022 was organised. 21
[22] On 9 March 2022, Mr Sharp spoke to the Applicant and informed him about the requirements under the Vaccination Policy for his upcoming return to work. The Applicant submitted a third Medicare Immunisation History Statement which provided a further exemption from receiving the AstraZeneca vaccine from 9 March to 23 March 2022. 22 Mr Sharp advised the Applicant that to properly comply with the Vaccination policy, he was required to submit an additional medical contraindication form.23
[23] On 16 March 2022, Mr Sharp called the Applicant to follow up regarding the additional medical contraindication form. The Applicant refused to provide the additional medical contraindication form. 24
[24] On 17 March 2022, Mr Sharp had a further telephone conversation with the Applicant, 25 wherein Mr Sharp reiterated to the Applicant that:
• The medical certificates previously provided by the Applicant did not meet the Vaccination Policy’s requirements for the Applicant to be considered medically exempt from receiving a Covid-19 vaccine;
• The Applicant’s treating practitioner had only exempted the Applicant from receiving an AstraZeneca vaccine and he may still be able to receive a Moderna, Pfizer, or Novavax Covid-19 Vaccine in order to become complaint with the Vaccination Policy;
• The Applicant would either need to receive a Covid-19 vaccine of a type he was not exempt from, or provide an updated medical exemption stating he was exempt from all Covid-19 vaccines, before he could undertake further work for the Respondent;
[25] Mr Sharp also directed the Applicant to attend the meeting with Mr Sharp and Mr Wallace remotely, given the Applicant’s vaccination status. 26 Notwithstanding the direction, Mr Zapantis attended the Coles Tooronga Store Support Centre at 1:30pm on that day and spoke with building security. The details of the encounter were contested at hearing, but given my findings as to the matter generally I consider it unnecessary to resolve the contest between the parties.
[26] On 18 March 2022, Mr Sharp contacted the Applicant to discuss the Applicant’s compliance with the Vaccination Policy and the Applicant’s return to work. 27 During that conversation, the Applicant informed Mr Sharp that he had contacted his doctor for a medical exemption and had an appointment scheduled for 28 March 2022.28
[27] On 29 March 2022, Mr Sharp contacted the Applicant to discuss the contents of a further letter to be sent by email to the Applicant that day, 29 stating inter alia that:
• The Applicant had been off work since 26 March 2021, and on 4 February 2022 the Respondent had met with him to discuss his return to work;
• He had been made aware that if he was not fully vaccinated by the dates set out in the Policy, he would not be permitted to attend any of Coles’ sites and he would be unable to perform the full range of work as required by Coles;
• His temporary medical exemption expired on 23 March 2022;
• That the medical evidence submitted was insufficient as it did not outline the medical contraindication from the vaccine;
• His treating practitioner had only exempted him from receiving an AstraZeneca Covid-19 Vaccine, indicating that he was able to receive a Moderna, Pfizer or Novavax Covid-19 Vaccine, in order to become compliant with our vaccination requirements;
• He had informed the Respondent that he was not intending to be vaccinated and he would be obtaining a further medical exemption;
• He was required, by no later than 12th April 2022, to take steps to comply with the Vaccination Policy; and
• A failure to comply with the above direction may result in disciplinary action being taken against him, up to and including the termination of his employment.
[28] On 30 March 2022, the Applicant telephoned Mr Sharp to discuss the 29 March letter. During that conversation, the Applicant advised Mr Sharp that he could not get a further extension on his medical exemption, that he had to take care of his wellbeing, and that he was concerned about the two medical episodes he had in November 2021. 30
[29] On 13 April 2022, Mr Sharp contacted the Applicant again to discuss the contents of a show cause letter to be sent to the Applicant following the conversation. 31 The letter stated inter alia that:
• The Applicant had not demonstrated compliance with the Vaccination Policy as directed;
• Given his ongoing refusal to comply with the Vaccination Policy, the Respondent was considering the termination of his employment;
• He was directed to attend a virtual meeting on 20 April 2022 by videoconference to discuss why his employment should not be terminated given his non-compliance with the requirements of the Vaccination Policy;
• If he did not attend the meeting or provide any further information, the Respondent would proceed to make a decision as to whether his employment should be terminated for not complying with the requirements of the Vaccination Policy.
Although there is some confusion in the material submitted by the parties as to the date the show cause letter was issued, on the material before me it is evident that the letter is dated 13 April and it was received by the Applicant on or about that time.
[30] Before the meeting on 20 April 2022, the Applicant responded to the show cause letter by email to Mr Sharp and other officers of the Respondent. 32 In his response, the Applicant stated inter alia that “...I do not believe in medical apartheid and people should have the right to choose what goes into their body,” that his stance on medical vaccines was known even before his medical episodes, and that he was not refusing to take the vaccine, noting “it‘s a trial vaccine until 2023, and when all the data is in, I will be able to make an informed decision at that time.”33 The meeting commenced virtually but was quickly adjourned to the next day to allow Mr Sharp and his colleagues an opportunity to consider the Applicant’s response.34
[31] On 21 April 2022, the Applicant received an offer to end his employment after a payment from Coles. 35
[32] On 27 April 2022, the show cause meeting resumed. Mr Sharp advised the Applicant that the Respondent had decided to terminate his employment because he had refused to follow a lawful and reasonable direction from the Respondent to: 36
• Comply with the requirements of the Vaccination Policy; and
• Provide information on his intentions to comply with the Vaccination Policy by 12 April 2022.
[33] Later that day, Mr Sharp issued a written termination letter by email to the Applicant confirming the decision, which has been reproduced below. 37
“27 April 2022
Jack Zapantis
[Address Redacted]
[Address Redacted]
Dear Jack,
This letter is to confirm in writing that the decision has been made to terminate your employment with Coles Supermarkets Australia Pty Ltd (Coles).
This letter provides you with 5 week’s notice of the termination of your employment. Accordingly, your employment will cease on 1st June 2022.
Given your non-compliance with the Coles Group COVID-19 Vaccination Policy, you are unable to attend your place of work and perform work during the period of notice.
Any employment entitlements owing will be paid to you on termination.
The reasons for your termination are as previously explained to you in our discussion of 27 April 2022.
I remind you that you have access to free and confidential counselling via our Employee Assistance Program, provided by Converge International. The number for this service is 1300 687 327.
Yours sincerely,
Michael Sharp
Head of Systems Optimisation”
[34] There is no dispute between the parties, and I am satisfied, in relation to the four matters referred to in ss.396(a)-(d) of the Act, as follows.
[35] Firstly, the Applicant’s application was not made within the 21-day period after the dismissal took effect, as required by s.394(2) of the Act (s.396(a) of the Act). However, the Applicant has been granted an extension of time to make the application. 38
[36] Secondly, there is no dispute that the Applicant is a person protected from unfair dismissal as defined by s.382 of the Act in that he is an employee who has completed a period of employment of at least the minimum employment period, and the sum of his annual rate of earnings and such other amounts is less than the high income threshold (s.396(b) of the Act).
[37] Thirdly, as to whether this matter involves a dismissal that was consistent with the Small Business Fair Dismissal Code (s.396(c) of the Act), it was not in dispute, and I am satisfied that the Department is not a small business employer within the meaning of s.23 of the Act. As such, I am satisfied that the Small Business Fair Dismissal Code does not apply.
[38] Fourthly, neither party suggested this case involves a dispute as to whether or not the circumstances involved a genuine redundancy and I find this to be the case (s.396(d)) of the Act).
[39] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 of the Act provides the following:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
[40] There was no dispute, and I am satisfied, that the Applicant was dismissed within the meaning of s.386(1) of the Act.
[41] As outlined in paragraph [37] above, s.385(c) of the Act does not apply.
[42] As outlined in paragraph [38] above, s.385(d) of the Act does not apply.
[43] In determining whether the dismissal was harsh, unjust or unreasonable (s.385(d) of the Act), I must have regard to s.387 of the Act:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[44] I consider below each of these criteria in reaching my conclusion.
Was there a valid reason for dismissal relating the Applicant’s capacity or conduct? s.387(a)
[45] In considering whether the dismissal of the Applicant was harsh, unjust or unreasonable, I am required to take into account whether there was a valid reason for the dismissal related to the Applicant’s capacity or conduct (including its effect on the safety and welfare of other employees). The reason or reasons should be “sound, defensible and well founded” 39 and should not be “capricious, fanciful, spiteful or prejudiced”.40
[46] The Respondent submitted that there were two valid reasons for the Applicant’s dismissal. The first purported valid reason for the Applicant’s dismissal was his refusal to follow a lawful and reasonable direction. The Respondent submits that the Applicant was lawfully and reasonably directed to comply with the requirements of its Vaccination Policy, including being required, by 12 April 2022, to comply with the vaccination requirements outlined therein, or otherwise provide additional information to explain why he was unable to comply.
[47] The second reason advanced was that it was an inherent requirement of the Applicant’s role that he performed work in-person at Coles sites, including in the Head Office and Distribution Centres from time to time. As the Applicant had not complied with the CHO Directions, the Respondent was unable to permit the Applicant to perform work outside his ordinary place of residence. Accordingly, he was unable to fulfil the inherent requirements of his role.
[48] The Applicant submitted that there was no valid reason for the termination of his employment because:
• The non-compliance with the Vaccination Policy may have been a valid reason at a stage prior to 27 April 2022 but was not a valid reason at the time of the decision, being 27 April 2022.
• By causing its policy to remain in the same form as it was as was the case in Pandemic Order No 2, by not responding to the change in mandates over the intervening months from January (when Pandemic Order No 2 commenced) to April 2022 (when Pandemic Order No 8 commenced), Coles had rendered the direction it gave to the Applicant unreasonable, in the sense of Darling Lighthouse Stevedores 41 and Adami v Maison de Luxe.42
• Where there is no mandatory element in legislation, the effect upon not complying with the basis of a policy which looks to that legislation is far from straight-forward. Thus, the direction to a worker such as the Applicant may be contrasted to other circumstances, such as where the consequences of not being vaccinated would be dire. 43
• The policy did not allow the Applicant to undertake Covid-19 testing such as RAT or PCR tests before attending the workplace as an alternative to getting vaccinated, and was therefore inflexible. 44
• It gave a timeline applying to Victorian employees and granted a broad discretion to the Respondent’s officers to issue the Applicant show cause notices and dismiss him. Considering the purposive nature of the policy to ensure the health and safety of the Respondent’s employees, and the fact that the Applicant was not a danger to anyone or attempting to return to work, the Applicant was content to take leave instead of be vaccinated. 45
• It was not an inherent requirement of the Applicant’s role to attend the Respondent’s worksites.
[49] I note for completeness that the Applicant does not concede there was a valid reason for termination, but that if a valid reason was found, the Applicant would still argue the dismissal was harsh for the reasons discussed in my consideration of s.387(h) below.
[50] I conclude that there was a valid reason for the Applicant’s dismissal. The effect of the CHO Directions was that the Respondent was prohibited from allowing the Applicant to undertake work from its Hawthorn East location and other distribution centres as required, from 15 October 2021, unless he was at least partially vaccinated or had a valid medical exemption. It is uncontentious that the Applicant was not vaccinated either partially or fully, and further, did not have a valid medical exemption.
[51] Any changes to the CHO Directions from the Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2022 (No.2) to the Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2022 (No.8), the latter of which was in force as at the date of the Applicant’s termination, do not in my view disturb my finding. I do not accept the suggestion that the Respondent was required or indeed able to predict if and when the mandatory vaccination requirements for retail workers would be lifted in Victoria. As such, after 15 October 2021, the Respondent was prohibited by law from allowing the Applicant to undertake work from its Hawthorn East location. Further, it is not seriously contested, and I am of the view, that the Applicant was a retail worker as defined by the CHO Directions.
[52] As to the Applicant’s assertion that there was no inherent requirement for him to attend the Respondent’s worksites as a part of his role, I disagree.
[53] The Applicant provides detailed evidence in his written statement as to the functions required of the role of System Optimisation Specialist. Relevantly he states that the position involved “travelling to check on difficulties which emerged with any DC’s.” 46 I observe that the Applicant’s contract of employment, in evidence before me, specifies the location of the Applicant’s employment as “Hawthorn East”.47 I accept the Respondent’s uncontested submission that this refers to the Coles Head Office in Hawthorn East.48 The Respondent states that an important part of the Applicant’s role was being physically present at distribution centres to perform troubleshooting and other tasks and that the Applicant’s role was not one that could be performed from home. In cross-examination, the Applicant acknowledged that being physically present in distribution centres for “troubleshooting and supporting the institution of changes and such”49 was a very important part of his role, albeit “not the only way we could actually do our job.”50 In the circumstances I find that the Applicant’s role required him to attend the Respondent’s worksites from time to time.
[54] Further, the Applicant did not provide a valid medical exemption. At best, intermittently from the period 10 December 2021 to 23 March 2022, he was exempted from receiving AstraZeneca. This meant that he was not able to fulfil his role, which as stated above, at least in part, could only be performed on site. The Applicant submits that the CHO Directions did not include a “mandatory element”. 51 I do not accept this submission, as it is evident that the CHO Directions were in force at the relevant time including at the termination of the Applicant’s employment. The Respondent would have been in breach of its legal obligations and exposed itself to significant financial penalties if it had allowed the Applicant to attend the workplace from 15 October 2021.
[55] On the basis of the above, I accept the Respondent’s submission that it was an inherent requirement of the Applicant’s role that he physically attend its worksites. For completeness, I note that the Respondent did not rely on this reason at the time of termination. It is uncontroversial that it is for the Commission to determine whether there was a valid reason for termination. I have found a valid reason for termination based on the Applicant’s inability to perform the inherent requirements of his role. That the Respondent did not rely on that reason at the time of termination, does not in my view render the reason less valid.
[56] As to whether there was a further valid reason based on a failure to comply with a lawful and reasonable direction to comply with the Respondent’s Vaccination Policy, I note that the Applicant does not seriously challenge the validity of the Vaccination Policy or that there was a breach of the Vaccination Policy. Rather the Applicant states that the effect of the Vaccination Policy was unreasonable and harsh upon the Applicant. 52 I have dealt with these submissions under my consideration of s.387(h).
[57] For completeness I note that the Applicant submits that non-compliance with the Vaccination Policy may have been a valid reason for dismissal at a stage prior to 27 April 2022. 53 The basis for this submission is not fully developed in the material before me and I am unable to make a meaningful finding as to the relevance of the assertion to the consideration before me.
[58] The Vaccination Policy was introduced by the Respondent on 12 November 2021 following an extensive consultation process that included both an internal risk assessment and a survey to ascertain staff views as to the implementation of a vaccination policy. 54 The purpose of the policy was to ensure the ongoing health and wellbeing of the Respondent’s workforce and its customers. As such, and given the Respondent’s consultation process, I am satisfied that the implementation of the Vaccination Policy, and the Respondent’s subsequent directions to its employees, including the Applicant, to comply with it, were reasonable.
[59] As to the question of whether the direction was within the scope of the employment contract, I note that the Applicant’s contract of employment contains an express term that the Applicant must comply with company policies, as follows: 55
“4 Company policies
The Company and the Group has various policies which apply to your employment. You must familiarise yourself with these policies. Where the policies place obligations on you, you must comply with them. The Company or the Group may review, vary, add to or withdraw the policies from time to time in its absolute discretion. To avoid doubt, any policies (including those specifically referred to in this agreement) and any obligations on the Company or the Group set out in them do not form part of your employment agreement and are not binding on the Company or the Group.”
[60] Further, I am satisfied that the direction does not require the Applicant to act unlawfully. For the reasons above, I am satisfied that the direction to the Applicant to comply with the Vaccination Policy were lawful and reasonable.
[61] For the reasons given, I am satisfied that the Respondent had two separate valid reasons to terminate the Applicant’s employment. Firstly, for his failure to comply with a lawful and reasonable direction to comply with the Respondent’s Vaccination Policy (Reason 1). Secondly, because by refusing to comply with the CHO Directions, he was unable to fulfil the inherent requirements of his role (Reason 2). The Applicant chose not to become vaccinated, at least in part because of concerns relating to the safety of the vaccine, as he stated he did not “believe in medical apartheid”, that it was “a trial vaccine until 2023”, and that “when all the data is in, [he would] be able to make an informed decision at that time.” 56 The Respondent was required to comply with the CHO Directions and a failure to do so left it exposed to significant financial penalty. The Applicant was of course within his rights to decline to be vaccinated or provide the Respondent with evidence that he had a valid medical exemption. He did neither. For these reasons, the Respondent had a sound, defensible and well-founded reason to terminate the Applicant’s employment.
[62] Section 387(b) requires the Commission to take into account whether an employee has been notified of the reasons for dismissal. Notification of a valid reason for termination must be given before the decision is made to terminate the employee’s employment, and in explicit and plain and clear terms. In Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) 57 a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 observed:
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 58
[63] On 13 April 2022, Mr Sharp issued the Applicant a show cause letter for failing to comply with the Vaccination Policy. At the meeting on 27 April, Mr Sharp informed the Applicant that the reason for his dismissal was that he had failed to comply with the Vaccination Policy. This was confirmed in the termination letter issued to the Applicant the same day. The Applicant was therefore notified of a valid reason for his termination.
[64] I have found that incapacity to perform the inherent requirements of the role was one of the valid reasons for termination and I accept that the Applicant was not expressly notified of this valid reason for termination. I observe that the various iterations of the Vaccination Policy in evidence before me each stated that it was “an inherent requirement of all roles at Coles to attend your place of work, or another Coles site, regularly or from time to time.” In all the circumstances before me, I am satisfied that the Applicant was notified in substance of this reason for termination.
[65] Section 387(c) requires the Commission to take into account whether an employee was provided an opportunity to respond to any reason for their dismissal relating to their conduct or performance. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 59
[66] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 60 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.61
[67] In Wadey v YMCA Canberra 62 Moore J stated the following principle about the right of an employee to appropriately defend allegations made by the employer:
“[T]he opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.”
[68] The Applicant was first put on notice that the Respondent would require mandatory vaccination at its worksites on 21 October 2021. I have also noted the unchallenged evidence of Mr Sharp that the Applicant was further reminded of his obligations under the Vaccination Policy, both in writing and orally by Mr Sharp, on several occasions between December 2021 and April 2022, and meetings were held between the parties on 20 April and 27 April 2022. The Applicant made use of his opportunities to respond, both by providing medical exemptions from receiving the AstraZeneca vaccine to the Respondent, and by submitting further information in advance of the 20 April show cause meeting.
[69] I am satisfied that the Applicant was given an opportunity to respond to Reason 1. As to whether he was given an opportunity to respond to Reason 2, I have made findings at paragraph [64] above that the Applicant was not expressly notified of this reason for termination. However, based on the above, I am satisfied that the Applicant was aware that he would not be able to perform the inherent requirements of his role if he remained unvaccinated or did not provide the Respondent with a valid medical exemption.
[70] Having regard to all the circumstances, I am satisfied that the Applicant was given an opportunity to respond to the reason for dismissal related to his capacity.
[71] There was no unreasonable refusal to allow the Applicant a support person during any discussions relating to dismissal. This consideration is not relevant in this case.
[72] The Applicant was not dismissed for unsatisfactory performance. This criterion is not relevant to the present case.
[73] The Respondent is a substantial body. It has human resource management specialists and expertise. In all the circumstances, I am satisfied that neither the size of its enterprise nor any absence of human resource management specialists or expertise had any impact on the procedures followed in effecting the Applicant’s dismissal.
[74] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
[75] Set out below, I have distilled the submissions made at hearing by Counsel for the Applicant in support of the argument that the that the Applicant’s termination was harsh;
• The Applicant was on long service leave at the time he was given notice of dismissal, had already taken 3 short periods of long service leave, with the latest being on 19-25 April and was intending to take leave “as required”: 63
• At the time of the show cause letter and the termination, the Applicant had a genuine fear or apprehension as to being vaccinated because of his heart condition.
• It will be, and is likely to remain, difficult for the Applicant to obtain further employment due to his length of service with the Respondent, his age, and the specialised nature of his work as a Systems Optimisation Specialist. The Respondent engaged in a generic dismissal process that ultimately had limited regard to these personal circumstances of the Applicant.
• The Applicant had a substantial balance of long service leave available to him, which was estimated to extend until November 2022. By dismissing him instead of allowing him to take his long service leave, the Respondent deprived the Applicant of the opportunity to remain in employment.
• While he was on long service leave and absent from the workplace, there was no pressing need for the Respondent to proceed with the Applicant’s termination, as he presented no threat to the Respondent’s employees despite being unvaccinated.
• The Respondent expediated the show cause process by only giving the Applicant two weeks to respond to the 29 March letter, and only one week to respond to the show cause letter on 13 April 2022.
[76] Further, the Applicant submits, that where the consequences of not being vaccinated are not as dire as in workplaces such as aged care, any such policy requiring employees to be vaccinated becomes less reasonable. 64 The Applicant also submits that the Respondent was directing the Applicant to abide by a direction that was not “either mandated otherwise by legislation, or necessary at law,” and was more excessive than was necessary for the protection of Coles employees.
[77] I have considered the Applicant’s submissions as to s.387(h) and make the following observations. As stated above, the Applicant alleges that an element of unfairness arose because the Applicant was dismissed in circumstances where he had a substantial amount of long service leave available to him and that the Respondent should have allowed the Applicant the opportunity to take that leave “until such time as one of two things occurs; either Mr Zapantis is no longer able to take accumulated leave, or some other urgent event requires him to do something, such as to return to work or make a decision about that.” 65 Further, during the hearing Counsel for the Applicant submits that “the effect of that policy is unreasonable and harsh upon him because he was not working and he was not, if one looks at the purposive expression of that policy, he was not in danger to anyone. He was not in the process of attempting to return to work, he was content to take that leave.”66
[78] On the evidence before me, it is apparent that as of 25 March 2021, the Applicant commenced a period of leave and was absent from that date up to the termination of his employment. There is no contest that during that time he was accessing his annual leave when his personal leave was exhausted. Further, as at 4 February, the Applicant was in discussions with Mr Sharp as to his return to work on 21 March 2022. 67 It is not in contest that Mr Sharp contacted the Applicant on 18 March 2022 and advised him that the discussions as to his return to work would need to be separated from the discussions as to his vaccination68 and that the Applicant spoke to Mr Sharp on 30 March 2022 and told him that he “couldn’t provide any further information”69 about his vaccination status.
[79] What followed this discussion was a show cause letter on 13 April 2022 advising the Applicant that the Respondent was considering terminating his employment. It is worth noting that the Applicant provided a detailed response to the show cause letter at approximately 10:21 AM on 20 April 2022, the morning of the show cause meeting. In that correspondence the Applicant states amongst other things that he did not believe in “medical apartheid,” and that the vaccines are a “trial vaccine until 2023, and when all the data is in I will be able to make an informed decision at that time.” Further, the Applicant agrees that at the meeting of 20 April, Mr Sharp advised the Applicant that he needed time to digest the response given it was some four pages long. 70
[80] Notably there is nothing in that correspondence which suggests that the Applicant made the Respondent aware that he was hoping to access his long service leave in order to delay his return to work. During cross examination the following exchanges occurred between Counsel for the Respondent and the Applicant: 71
Ms Sweatman, lawyer for the Respondent: So your evidence now is that you did in that email or in the meeting on 20 April ask to take all of your long service leave?
Mr Zapantis: No, I didn’t say that. I made it very clear to the people involved that I will be taking it as required.
Ms Sweatman: Okay?
Mr Zapantis: Because I was waiting for a resolution
Ms Sweatman: So after the meeting on 20 April there was a public holiday and ultimately you took a number of days across which Mr Sharp and Coles were considering your response before they came back to you; that’s correct?
Mr Zapantis: I believe so.
…
Ms Sweatman: So over the period of time that you were applying to take your long service leave you were actively engaged in discussions with Mr Sharp about your return to work and about the show cause process; that’s correct?
Mr Zapantis: That’s correct
Ms Sweatman: You don’t dispute that Mr Sharp was not asking you to engage in those processes when you had made an application to take a period of long service leave for rest and recreation. That wasn’t the purpose for which you were applying for that leave?
Mr Zapantis: It was just a continuation of me being on leave. That’s all I had available to me at the time.
[81] During re-examination the Applicant states that his intention was to use his long service leave until he had his “issues” solved or addressed. When asked to explain those issues it is apparent that the Applicant was referring to issues involving Ms Dee, the head of the Department. I observe the following exchange: 72
Mr Donaghey: Thank you. Now, can I ask you what your intention was with that long service leave that you were taking at that time you asked the question? What did you intend to do?
Mr Zapantis: My intention was to use what I needed to do until I got my issues solved – addressed.
Mr Donaghey: When you say 'issues', which issues do you mean in particular?
Mr Zapantis: The issues that were created in 2020; August 2020.
Mr Donaghey: When you say those issues, do you mean the performance appraisal issues?
Mr Zapantis: No, I don't.
Mr Donaghey: Okay. I understand that.
Commissioner: I'm sorry, I don't understand that, Mr Zapantis. What issues do you mean?
Mr Zapantis: When I questioned – if I can let the Commissioner know, when I questioned my appraisal and I went through all the channels that I'm required to go through
Commissioner: Yes?
Mr Zapantis: and I went through the – and Ms Dee – or Dee, who was the head of the department at the time, was the last person I can go to because she was the head.
Commissioner: Yes?
Mr Zapantis: And when I asked her what was going on and why I got appraised in the way I did, she gave me the reply that, 'We do the bell curve and calibrate you with other people, and you've got to be a team player.' I go, 'I beg your pardon, a team player? I wasn't a team player? How could you say that? At my worse time when I was burying my parents, I was still doing work for the company,' and she turned around and said to me, 'Don't use your parents' death as an excuse.' How dare she?
Commissioner: Okay, so is that what you're referring to when you say you wanted to use your long service leave until those matters were dealt with?
Mr Zapantis: Yes.
Commissioner: Is that what you meant?
Mr Zapantis: Commissioner, that's correct. I gave (indistinct) month. I was at work from August 2020 to March 21. I used multiple channels to get this resolved. I didn't report it to P and C. I only reported my appraisal to P and C. I was hoping that the issue would be resolved within the department and all I got back was I didn't say that, I misheard, I misunderstood.
[82] In evidence, Mr Sharp said that the Applicant had exhausted his sick, personal, and annual leave and was still absent from work as of 29 March 2022. During cross examination Mr Sharp states that on or around 29 March he enquired as to the Applicant’s leave balance and was aware that the Applicant had “quite a number of weeks owing” to him but that he could not recall the exact number. 73 I have also had regard to the evidence before me in the form of business pay records. It is apparent that the Applicant made 3 separate requests for long service leave for the periods 29 March – 1 April, 4 April – 18 April, and 19 April to 25 April before his dismissal, and that a further period of long service leave was requested by the Applicant for the period 26 April to 1 June to enable him to be paid during his 5-week notice period.74 On one of those occasions, it is apparent that he questions the Respondent’s decision to allocate 5.6 days instead of 4 days to long service leave for that period.
[83] On the material before me, and despite the Applicant’s assertions at hearing, I am unable to conclude that the Applicant made an unequivocal application to take any further long service leave as a means of delaying the necessity to comply with the Vaccination Policy or providing him with an opportunity to re-consider his position. In those circumstances, I find that the Respondent acted responsibly and reasonably with respect to the Applicant’s long service leave requests. In my view the Respondent was not in a position to grant a request for long service leave to the Applicant to enable him to remain employed for an indefinite period, so that he may change his opinion as to the vaccination and/or have some other unspecified and unforeseen event to occur, where no such request was made. Further, it is evident on the material that at least from 30 March 2022, the Applicant had made clear his intention to the Respondent that he had nothing further to submit as to his vaccination status. In my view, on the material the Respondent had before it, it could reasonably infer that for the foreseeable future the Applicant regarded the Covid-19 vaccination as a trial vaccine.
[84] I note that the Applicant made no request to take his long service leave as an alternative to termination during his 5-week notice period. Rather, he requested to use his long service leave to cover his notice period, and wrote to the CEO of the Respondent on 31 May 2022 repeating many of the previous grievances he had expressed in his earlier correspondences. There is no suggestion that the Applicant was unaware of his accrued leave.
[85] In any event, I observe that even if the Applicant had been permitted to take his long service leave, on the evidence currently before me, there were no grounds upon which the Respondent could have reasonably believed that further time would have altered the Applicant’s views. On his own evidence, the Applicant is currently unvaccinated and remains concerned about the safety of the vaccines in the foreseeable future. He stated that the vaccines are a “trial vaccine until 2023, and when all the data is in I will be able to make an informed decision at that time.” Further, in an email to the Respondent’s CEO on 31 May 2022, the Applicant states “the vaccine is on trial and therefore I do not have to participate in the experiment by law.” 75
[86] I also reject the Applicant's submissions that a further element of harshness arises because there was no “pressing need” to terminate the Applicant’s employment in circumstances where he was no threat to the Respondent’s employees while on long service leave. As stated above, as of 4 February 2022, the Respondent was in contact with the Applicant to discuss his return to work on 21 March 2022 following a period of absence of some months. In those circumstances it was in my view reasonable for the Respondent to query the Applicant’s vaccination status and take positive steps to ensure his compliance with the Vaccination Policy before his return to work.
[87] Further, I do not accept the Applicant’s assertion that the show cause process gave the Applicant insufficient time to consider his position and respond appropriately. First, the uncontested evidence before me is that the Respondent commenced a process of communicating with employees from October 2021 as to the CHO Directions and the expectations it had of its employees. The process of communication continued with employees including the Applicant throughout the latter part of 2021 and early 2022. Save for a period where the Applicant was absent on account of his heart attack and the medical conditions he suffered thereafter, Mr Sharp was in regular communication with the Applicant as to the requirements of the CHO directions and the Vaccination Policy. In the circumstances of this case, I also consider that the Respondent provided sufficient time for the Applicant to provide responses to the 29 March letter and the 13 April show cause letter. I am not persuaded by the Applicant’s argument that the Respondent inappropriately expediated the show cause process, or had limited regard to the Applicant’s personal circumstances. Further, I do not accept that the material before me supports a finding that Mr Sharp or any other officer of the Respondent behaved inappropriately.
[88] I have made findings above that the Applicant’s role required him to attend the Respondent's workplace. While I accept that the Applicant would be able to perform some aspects of his role from home, I find on the material before me that important aspects of the Applicant’s role required his presence at the distribution centres or head office. I acknowledge the Applicant’s view that he had spent a considerable period undertaking his duties from home because of either the pandemic orders in force at particular times or the business decisions made by the Respondent. I would observe that any argument advanced by the Applicant that the work from home arrangements should have remained in place for an indefinite period ignore the fact that in my view, the Respondent is entitled to make management decisions as to whether its business needs are best suited by on site attendance. I have also had regard to the terms of the Applicant’s contract of employment that express his place of work as Hawthorn East. I have also taken into account my comments at paragraph [53].
[89] I take into account that the Applicant’s concerns about the Covid-19 vaccine were genuinely held and that the circumstances surrounding his dismissal have caused him great distress. I observe that the Applicant chose not to become vaccinated, at least in part because of concerns relating to the safety of the vaccine. 76
[90] The Applicant submits that in the event the Respondent required him to attend its worksites, it could have required the Applicant take a Covid-19 rapid antigen test, and that he would have done so if required. 77 This submission is misguided as the CHO vaccination directions and the Vaccination Policy did not provide for exceptions in respect for employees who returned negative Covid-19 test results.
[91] I have taken into account that the Applicant was paid 5 weeks notice.
[92] Finally, I have taken into account the Applicant’s submissions that the termination was harsh on account of his personal circumstances, including his long-standing employment with the Respondent, which appears to be largely unblemished, his age, his medical condition, and the difficulty he is likely to encounter in securing further work. I accept that the loss of his employment has resulted in significant distress and financial burden. However, I do not consider the circumstances before me render the termination harsh. The Applicant chose to remain unvaccinated. He did not present a valid medical exemption. His views on the safety of the vaccines are no doubt genuinely held beliefs. That said, at the time of termination, the Respondent was obliged to comply with the law and faced significant penalty if it failed to do so. Further, the direction issued to the Applicant pursuant to the Vaccination Policy was both lawful and reasonable.
[93] After considering each of the matters specified in section 387 of the Act, my assessment is that the Respondent’s dismissal of the Applicant was not harsh, unjust or unreasonable. The Respondent had a valid reason for the dismissal, and it afforded procedural fairness to the Applicant prior to terminating his employment.
[94] The Applicant was provided with ample opportunity to provide evidence of having been vaccinated or provide a valid medical exemption but did not do so.
[95] The Respondent conducted a fair and thorough process in all the circumstances and was respectful of the Applicant’s concerns. However, ultimately the Applicant was both unable to meet the inherent requirements of his role and failed to follow a lawful and reasonable direction to comply with the Respondent’s Vaccination Policy.
[96] I appreciate that this is disappointing for the Applicant after such a lengthy period of service, but I am satisfied that his dismissal by the Respondent was not unfair. The application is dismissed.
COMMISSIONER
Appearances:
Mr T. Donaghey for the Applicant
Ms K. Sweatman for the Respondent
Hearing details:
Melbourne
2022, 29 October
Video using Microsoft Teams.
Printed by authority of the Commonwealth Government Printer
<PR746634>
1 Covid-19 Mandatory Vaccination (Workers) Directions at Clause 9(28)(e).
2 Covid-19 Mandatory Vaccination (Workers) Directions at Clause 9(28)(d(iii).
3 Covid-19 Mandatory Vaccination (Workers) Directions at Clause 5.
4 Pandemic Covid-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 1) at Schedule 2, Division 2, Clauses 32(13)(e) and 32(14).
5 Digital Court Book (DCB) page 89.
6 DCB page 400.
7 DCB Page 457.
8 DCB Page 459.
9 DCB pages 451 – 453.
10 DCB Page 463.
11 DCB page 450.
12 DCB pages 466 – 490.
13 DCB page 90.
14 DCB page 401.
15 DCB page 491.
16 DCB page 401.
17 Ibid.
18 Ibid.
19 Ibid.
20 DCB page 91.
21 DCB page 402.
22 Ibid.
23 Ibid.
24 Ibid.
25 Ibid.
26 DCB page 403.
27 Ibid.
28 Ibid.
29 DCB pages 403, 424.
30 Transcript PN 295 – 300.
31 DCB pages 404, 428.
32 DCB Pages 404, 430.
33 DCB page 430
34 DCB page 405.
35 DCB page 91.
36 DCB page 405.
37 DCB page 435.
39 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
40 Ibid.
41 R v Darling Island Stevedoring & Lighterage Co Ltd; ex parte Halliday and Sullivan (1938) 30 CLR 601 at 621
42 (1925) 24 CLR 143.
43 DCB page 81.
44 Transcript PN 84-87
45 Transcript PN 116.
46 DCB page 87.
47 DCB page 414.
48 DCB page 384.
49 Transcript PN 183.
50 Ibid.
51 DCB page 81.
52 Transcript PN 117.
53 DCB page 78.
54 DCB pages 451 – 455.
55 DCB page 409.
56 DCB page 430.
57 (2000) 98 IR 137.
58 Ibid 151.
59 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
60 RMIT v Asher (2010) 194 IR 1, 14-15
61 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7
62 [1996] IRCA 568; cited in Dover-Ray v Real Insurance Pty Ltd [2010] FWA 8544
63 Transcript PN 339.
64 DCB page 81.
65 Transcript PN 121
66 Transcript PN 117
67 Transcript PN 229
68 Transcript PN 293, DCB page 403.
69 Transcript PN 295.
70 Transcript PN 335
71 Transcript PN 339 - 341, PN 400 – 401.
72 Transcript PN 492 – 500.
73 Transcript PN 653
74 Transcript PN 612
75 DCB page 439.
76 DCB page 430.
77 DCB page 92.