| [2022] FWC 2780 [Note: An appeal pursuant to s.604 (C2022/7348) was lodged against this decision.] |
| FAIR WORK COMMISSION |
DECISION |
FairWorkAct 2009
s.394—Unfair dismissal
Emily Brown
v
Woolworths Group Limited
(U2022/3299)
Chantelle Brown
v
Woolworths Group Limited
(U2022/3316)
DEPUTY PRESIDENT EASTON |
SYDNEY, 17 OCTOBER 2022 |
Application for an unfair dismissal remedy – refusal to be vaccinated against COVID-19 – alleged invalidity of public health orders because of inconsistency with the Australian Constitution – assertion that no vaccines against COVID-19 have been approved – valid reason found – procedural fairness – dismissal was not harsh, unjust or unreasonable – application dismissed.
[1] Ms Emily Brown and her daughter Ms Chantelle Brown were employed by Woolworths Group Limited as casual shop assistants at the Woolworths supermarket in Jindabyne. In February 2022 Woolworths introduced a group-wide policy that required each of its 180,000 employees to be vaccinated against COVID-19, subject to a small number of exemptions. Emily and Chantelle Brown were dismissed from their employment because they did not provide proof of vaccination.
[2] Emily Brown commenced employment with Woolworths Group Limited (Woolworths) in July 2020. Chantelle Brown commenced employment in March 2021. Both were dismissed by letter dated 12 March 2022.
[3] On 18 March 2022 Emily Brown made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Woolworths.
[4] On the same day Emily Brown also filed an application under s.394 on behalf of Chantelle Brown. Emily and Chantelle’s applications were heard together and the circumstances in each application are largely indistinguishable.
[5] On 5 July 2022 I gave permission for Woolworths permission to be represented by a lawyer pursuant to s.596 of the FW Act. 1
[6] On 18 July 2022 I declined to make orders requiring Woolworths’ Chief Executive Officer and Chief Medical Officer to attend and give evidence. 2
[7] At final hearing I also declined the Applicants’ application that I recuse myself from hearing the matter. I gave an ex-tempore decision and the Applicants immediately asked that the hearing be adjourned so that they could appeal my decision. I declined the adjournment application.
[8] Early in the proceedings I gave the Applicants permission to be represented by Mr Alex Smith. Mr Smith is not a lawyer and says he is not a paid agent. There was some conjecture about whether the Applicants have a right to be represented by an unpaid agent who is not a lawyer. In a preliminary directions hearing Emily Brown suggested, in effect, that because s.596 is silent on requiring permission to be represented by unpaid non-lawyers, that she and Charlotte therefore have an unqualified right to have a person such as Mr Smith appear for them. I do not agree. The normal position is that parties in proceedings in the Commission must appear on their own behalf (per Warrell v Walton [2013] FCA 291, (2013) 233 IR 335 at [24]). Section 596 imposes specific requirements that must be satisfied before the normal position can be departed from in respect of lawyers and paid agents. However the Commission still retains a discretion to allow a party to be represented by someone other than themselves.
[9] In this matter the Applicants, through Mr Smith as their advocate, have run the same points that have been put to and rejected by the Commission, many times over. The arguments are in nearly identical terms to arguments put in other unsuccessful cases, and the result in this case is the same as the result in those other cases.
[10] I have carefully reviewed all of the evidence and submissions of the parties and have decided these two applications on their own merits. However it is not necessary to recite the Applicants’ submissions in detail or provide elaborate analysis of the many difficulties contained within those arguments. Almost all of the matters put by Mr Smith on behalf of the Applicants are not new and, frankly, should not have been put without a fulsome submission explaining how or why I could arrive at a different conclusion to all of those who have already considered and rejected the very same points.
[11] There were no public health orders in place that required the Applicants to be vaccinated against COVID-19 in order to lawfully attend the workplace. In this matter the employer decided to introduce a new policy across its workforce requiring staff to be vaccinated by certain dates, subject to very limited exceptions (Vaccination Policy).
[12] The Applicants submit that there is no “law” requiring them to comply with the Vaccination Policy. In their oral closing submissions the Applicants said:
“… Woolworths – or no corporation has the right to make any form of law, okay. So, now, Woolworths are claiming there's a lawful and reasonable reason, which means they've actually included a law. Now, Deputy President Asbury, and I have a recording of this, confirms in the BHP case with Richards, that there is no law. Okay, so there is no such law. I demanded that the BHP lawyers and/or the Deputy President Asbury produce the law, the Act, that is said to rely upon to make the direction to participate in a COVID-19 vaccine or clinical trial a lawful direction. My argument was, if you can't produce the law, you cannot claim lawful, and if you can't produce the law, you cannot claim lawful and/or reasonable, because the two consecutively – Woolworths and BHP all stated they were making a lawful and reasonable direction on their employees to have to participate or receive doses of COVID-19 vaccine in order to enter the worksite.”
[13] As the Full Bench’s reasoning in CFMMEU v Mt Arthur Coal Pty Ltd (2021) 310 IR 399, [2021] FWCFB 6059 at [64]-[67] makes clear, the legal basis for the Respondent to introduce and enforce its Vaccination Policy is the term implied into all contracts of employment that employees must follow the lawful and reasonable directions of their employer:
“[64] None of the Parties submit that there is anything in public health orders, the Agreement or the express terms in the Employees’ contracts that would provide the legal basis for the Site Access Requirement. It follows that the basis for the Site Access Requirement must derive from the term implied into all contracts of employment to the effect that employees must follow the lawful and reasonable directions of their employer. Such a term is implied, by law, in the absence of a contrary intention by the parties.
[65] The seminal decision concerning the requirement of employees to follow their employer’s lawful and reasonable directions is R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday (Darling) in which Dixon J summarised the common law position as follows:
‘Naturally enough the award adopted the standard or test by which the common law determines the lawfulness of a command or direction given by a master to a servant. If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable.
In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.’
[66] Recently the Full Federal Court in One Key Workforce Pty Ltd v CFMEU adopted a slightly different formulation of the implied term:
‘the duty of the employee at common law is to obey lawful orders. The “standard or test” by which the common law determines whether the order is lawful is one of reasonableness: R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621. Dixon J explained at 621–2:
If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.
As Finn J observed in McManus v Scott-Charlton (1996) 70 FCR 16 at 21:
The need for some such limitation is patent: employment does not entail the total subordination of an employee’s autonomy to the commands of the employer. As was said by the President in Australian Tramway Employees’ Association v Brisbane Tramways Co Ltd (1912) 6 CAR 35 at 42:
A servant has to obey lawful commands, not all commands. The servant does not commit a breach of duty if he refuse[s] to attend a particular church, or to wear a certain maker’s singlets. The common law right of an employee is a right to wear what he chooses, to act as he chooses, in matters not affecting his work.
There are obvious, and powerful, considerations of civil rights and liberties and of due process which inform this. These need not be laboured here although they are of no little significance in the resolution of this case.’
[67] Whether expressed as a ‘lawful and reasonable’ direction or a ‘lawful’ direction in which the test for determining lawfulness is whether the direction is reasonable, may simply be a matter of semantics. In each case the direction must be ‘lawful’ and ‘reasonable’. The weight of authority supports the use of the expression ‘lawful and reasonable’; it is the expression used in the arbitral question posed by the Applicants and acceded to by the Respondent; and it is the formulation we have decided to adopt.”
[Footnotes omitted, emphasis original]
[14] In other words, relevant terms of a policy issued by an employer, such as a group-wide vaccination policy, can be understood at law to be directions issued by an employer. To the extent that any direction issued by the employer is both lawful and reasonable, employees are required to comply with the direction as an implied term of their contract of employment. The ‘law’ that imposes such an obligation is the common law.
[15] The Applicants’ argument that there is no ‘law’ is rejected.
[16] The Applicants argue that any policy issued by Woolworths that requires employees to be vaccinated against COVID-19 is unlawful because it is inconsistent with s.51(xxiiiA) of the Australian Constitution.
[17] Mr Smith has run this very same constitutional argument for other applicants in several proceedings in the Commission and the argument has been unsuccessful every time. The same point was also run and was unsuccessful in the Supreme Court of NSW in Kassam v Hazzard; Henry v Hazzard (2021) 362 FLR 113, [2021] NSWSC 1320 at [266]-[268] and in the NSW Court of Appeal in Kassam v Hazzard; Henry v Hazzard (2021) 311 IR 233, [2021] NSWCA 299. In those cases the argument was constructed and presented by legal practitioners, and was rejected by very senior judges who described it as “completely untenable.”
[18] No inconsistency arises between the Vaccination Policy and the Australian Constitution.
[19] The Applicants also argue that the Vaccination Policy is unlawful because there are no vaccines approved for general use in Australia. In Southwell and Prager v New Horizons Enterprises Ltd [2022] FWC 2580 (New Horizons) I rejected this argument. Mr Smith appeared in that matter and presented the same argument in those proceedings, relying on substantially the same documents from the Therapeutic Goods Administration‘s (TGA) website.
[20] The full argument, and my reasons for concluding that the argument is fanciful, defies common sense and manifestly groundless, can be found in the New Horizons decision at [12]-[31]. I note that the decision in New Horizons was not published at the time that Emily and Chantelle Brown’s cases were heard.
[21] In summary the argument is as follows:
(a) each of the vaccines approved by the TGA were said by the Applicants to have only been approved for the purpose of a clinical trial, and not approved for general use;
(b) The TGA applies a 6-stage approval process for the approval of new medicines and vaccines:
(i) Stage 1 - Pre-application;
(ii) Stage 2 – Application;
(iii) Stage 3 – Evaluation;
(iv) Stage 4 – Decision;
(v) Stage 5 - Registration: Once approved by the TGA, the vaccine is included in the Australian Register of Therapeutic Goods (ARTG) as a provisionally registered medicine and is able to be lawfully supplied in Australia by the sponsor. Approved vaccines will appear in the searchable ARTG on the TGA website. Product Information and Consumer Medicines Information will also be available in the MedSearch App in the same way as for any other registered medicine. The provisional registration is for an initial period of two years, with the option to apply for up to two extensions, up to a maximum of six years; and
(vi) Stage 6 - Monitoring: The TGA will continue to play an active role in the ongoing monitoring of any vaccines available in Australia, and has robust procedures in place to investigate any potential new safety issues. The TGA's vaccine safety monitoring system can rapidly detect, investigate and respond to any emerging safety issues identified for COVID-19 vaccines. The post-market monitoring relies on reviewing and analysing adverse events reports, working with international regulators and reviewing medical literature, media and other potential sources of new safety information.
(c) all of the relevant COVID-19 vaccines approved in Australia have been “provisionally” approved or registered;
(d) within the material from the TGA’s website there are references to clinical trials. Mr Smith and the Applicants cite these references to clinical trials as proof that the vaccines are only approved for the purposes of clinical trials;
(e) I have reviewed all the material tendered by the Applicants and could not find any reference to the TGA approving COVID-19 vaccines for clinical trials only. Mr Smith was invited at the hearing to identify any part of the material tendered that explicitly stated as much, but he was not able to do so;
(f) it is actually very clear from the material on the TGA’s website that a number of COVID-19 vaccines have been approved for general use in Australia in accordance with the TGA’s protocols;
(g) the Applicants’ proposition is fanciful and defies common sense. If in fact there are no vaccines generally approved by the TGA, and “provisional” approval is only for the limited purpose of clinical trials, the Australian community would expect the TGA to unambiguously say as much in every relevant document it publishes about vaccination. If the Applicants are right then the TGA has either misunderstood its own processes or it has misstated those processes throughout its website. Millions of doses of COVID-19 vaccinations have been administered by medical and health professionals since the vaccines were approved and, if the Applicants are correct, not one medical doctor has realised the error. State governments have drafted, published and reviewed Public Health Orders across the country and not one health administrator has apparently realised that there are no approved vaccines.
[22] The balance of the arguments relied upon by the Applicants are rejected. Each of these arguments is dependent upon the unlawfulness of the Vaccination Policy, or that the policy could not be complied with because no COVID-19 vaccines have been approved.
[23] The following excerpt from the Applicants’ submissions cover the various points raised:
“13.1. The dismissal was harsh because the Applicant is facing adverse and detrimental economic impacts and defamatory consequences resulting from being maliciously, defamatorily, unethically, and unreasonably dismissed. The claim that the dismissal was lawful is vexatious and therefore ultra vires, void ab initio, and cadit quaestio. The Respondent wilfully, deliberately and maliciously placed the Applicant in an untenable position with the illegal and unlawful implementation of a new policy direction requiring a claimed vaccination=medical procedure =medical service, that is contrary to any laws in this country, and a change in contract that was legally and lawfully declined. It was also impossible to fulfil due to the manner in which the policy direction was implemented (s109 and s51(xxiiiA) Commonwealth-Constitution). [Refer the Engineers Case in point [8] OS page 4] and [Wong v Commonwealth [9] OS page 5].
13.2. The dismissal was unlawful, illegal and harsh as no hearing in any jurisdiction has been held. The Applicant is accused of serious misconduct with no physical material evidence in law having been cited. There are laws that are contrary to the allegations of misconduct contained within s109 and s51(xxiiiA) of the Commonwealth-Constitution that provide protection from the misguided and belligerent policy directions. Any claims to the contrary are ultra vires, void ab initio, and cadit quaestio. [Refer the Engineers Case in point [8] OS page 4] and [Wong v Commonwealth [9] OS page 5]
13.3. The Respondent’s own misguided, misconceived and belligerent actions prevented the Applicant from carrying out their normal contractual obligations by making an unlawful and illegal demand upon the Applicant.”
[24] As can be seen from the above excerpt, the Applicants’ submissions used many legal phrases and terms. I have carefully reviewed all of the submissions filed by the Applicants in case there might be any other discrete legal points of substance, but found none.
[25] I am satisfied that the direction contained within Woolworths’ Vaccination Policy was lawful.
[26] The Applicants tendered documentary material that refers to risks associated with vaccination.
[27] Woolworths relied upon expert evidence from Dr Paul Griffin who prepared a written report (the Griffin Report). Dr Griffin’s expertise is beyond question. Dr Griffin:
(a) has been the Director of Infectious Diseases at Mater Health services in 2013. This is a clinical role diagnosing and treating infections, including directly treating hundreds of COVID-19 positive patients and having responsibility for management advice on COVID-19 for patients at all Mater campuses as well as Wide Bay Hospital and Health service;
(b) is an Associate Professor in Medicine and Director of Infectious Diseases at the University of Queensland;
(c) holds Fellowships in Infectious Diseases from the Royal Australasian College of Physicians, in Clinical Microbiology from the Royal College of Pathologists of Australasia and from the Australasian College of Tropical Medicine;
(d) is the Chair of the Advanced Training Committee of Infectious Diseases with the Royal Australasian College of Physicians, which oversees the training of specialist physicians in Infectious Diseases in Australia;
(e) was involved in the UQ COVID-19 vaccine development program from early 2018, initially as a Rapid Response Pipeline for Stabilized Subunit Vaccines and then subsequently COVID-19 vaccine, including fulfilling the role as Principal Investigator for the clinical trial;
(f) has held Medical Advisory Board roles including AstraZeneca COVID-19 vaccine and Evusheld antibody therapy, Pfizer Paxlovid oral COVID-19 therapy, MSD Molnupiravir oral COVID-19 therapy and GSK Sotrovimab COVID-19 monoclonal antibody therapy;
(g) has overseen many infectious diseases related clinical trials, predominantly later phase vaccine studies including multiple COVID-19 vaccine clinical trials;
(h) has over 50 peer reviewed publications including an article on COVID-19 in the New England Journal of Medicine in 2020, 10 book chapters and over 3000 citations; and
(i) has featured regularly on prominent programs across television, radio, print and online including The Project, Sunrise, Today Show, A Current Affair and ABC, and internationally including the BBC and Canada’s CTV.
[28] The Griffin Report is described in detail in this decision because it squarely deals with many of the doubts, suspicions and uninformed commentary about COVID-19 vaccines in Australia. The Griffin Report spells out the benefits and the limitations of the vaccination over time by reference to the different strains of COVID-19 faced so far in the Australian community, refers to some limitations in the measurement of the effectiveness of vaccines, considers vaccine effectiveness compared to other risk control measures including masks and daily Rapid Antigen Tests, and contains specific analysis referrable to Woolworths’ workplaces.
[29] The Griffin Report addressed the following questions:
(a) In November 2021, based on the available scientific evidence at the time, what were the benefits of a person receiving two doses of a COVID-19 vaccination?
(b) In February/March 2022, based on the available scientific evidence at the time, what were the benefits of a person receiving two doses of a COVID-19 vaccination?
(c) Were there any other controls (other than vaccination) that Woolworths could have implemented in November 2021 and/or February/March 2022 to minimise the health and safety risks associated with COVID-19 in the workplace? What was the effectiveness of such controls?
(d) Having regard to the effectiveness of these other available controls, were there still additional benefits of a person having two doses of a COVID-19 vaccine? If so, what were the benefits and why did these benefits arise?
(e) Do you consider that requiring Woolworths workers to be double vaccinated against COVID-19 by February/March 2022 was an appropriate control measure to mitigate the effect of the risks of COVID-19 in the workplace? If so, why?
[30] Woolworths initially proposed to introduce a vaccination policy in November 2021. In describing the benefits of a person receiving two doses of a COVID-19 vaccination in November 2021, based on the available scientific evidence at the time, the Griffin Report indicates that two doses of vaccine provided high levels of protection from symptomatic infection, particularly severe disease, and also reduced rates of infection and transmission. The Griffin Report cited the following medical data:
(a) from January 2020 until the date of the report (July 2022), Australia reported over 8 million cases of COVID-19 and over 10 000 deaths;
(b) the four vaccines provisionally approved and in routine use in Australia were subject to a full and thorough assessment using an established approval process, including:
(i) 43 000 volunteers in the clinical trial for Comirnaty (Pfizer COVID-19 vaccine);
(ii) 30,000 volunteers for Spikevax (Moderna);
(iii) 57,000 volunteers for Vaxzevria (AstraZeneca); and
(iv) over 40,000 volunteers with approximately 24,000 who received the vaccine and 17,500 who received placebo in the United States, Mexico and the United Kingdom for Nuvaxovid (Novavax);
(c) each approved vaccine showed significant efficacy against severe disease:
(i) Pfizer: Early results obtained two months after the second dose reported an efficacy of 95 percent in preventing symptomatic laboratory confirmed COVID-19. Subsequent analysis demonstrated that efficacy against severe COVID-19 remained high for up to 6 months after the second dose at 95.7%;
(ii) Moderna: Preliminary results at two months following the second dose reported an efficacy of 94.1% in preventing symptomatic laboratory confirmed COVID-19. There were 30 severe cases in this trial with all of them occurring in the placebo group, giving an initial efficacy estimate against severe disease of 100%;
(iii) Astrazenica: Vaccine efficacy estimates have been more challenging to calculate owing to the large number of different trials, variability in dosing intervals and variability of protection against new variants. Interim analysis of pooled data in studies demonstrated an overall efficacy of 70.4% in preventing symptomatic laboratory confirmed COVID-19; and
(iv) Novavax: Efficacy against PCR confirmed symptomatic COVID-19 was on average 90% and estimated efficacy against moderate or severe COVID-19 was 93.5%.
(d) the third wave of COVID-19 in Australia commenced in June 2021 and was largely due to the introduction of the Delta variant. The Delta variant was more infectious than preceding variants, and some studies demonstrated that Delta caused more severe disease;
(e) although harder to measure, it is “abundantly clear” that the vaccinations in use also do reduce infection and the ability to transmit. Studies have shown:
(i) a decrease in documented cases of COVID-19 among family members of health care workers was associated with vaccination;
(ii) vaccination reduced transmission of both the Alpha and Delta variants, although Delta less so than Alpha;
(iii) index cases who were unvaccinated or only partially vaccinated were more likely to transmit infection to their close contacts than those who had received their primary vaccination series;
(iv) protection appeared greater in younger compared to older people. In the fortnight 8-21 September in NSW the rates of infection in the 2-dose vaccinated population compared to the unvaccinated population was 21 versus 488 per 100,000 in those aged 12-19 years and 61 versus 193 per 100,000 in those aged 80+ years;
(v) those who were fully vaccinated including a booster were shown to have fewer infections when exposed to Omicron.
(f) modelling in the United States estimated that from December 2020 to June 2021 the US vaccination campaign saved 240,797 lives, prevented 1,133,617 hospitalisations and averted more than 14 million cases (compared with the no vaccination scenario). It is estimated that in the same period, across 33 countries, the median number of deaths averted was 469,186 in people 60 years and older; and
(g) vaccine protection against the majority of the endpoints reported including hospitalisations and mortality seemed to be similar or only very slightly reduced against Delta when compared to preceding variants.
[31] In describing the benefits of a person receiving two doses of a COVID-19 vaccination in February/March 2022, based on the available scientific evidence at the time, the Griffin Report indicates that vaccination, even with two doses by February/March 2022 still provides measurable protection, particularly in the weeks following vaccination, as evidenced by the following data:
(a) Australia’s largest COVID-19 wave commenced in late December 2021, is essentially still ongoing, and the significant increase in transmission was largely due to the introduction of the Omicron variant;
(b) estimates suggest that while Delta was approximately 2-fold as transmissible as the original Wuhan strain, Omicron (BA.1) was likely 4 to 6-fold more transmissible;
(c) the Omicron variant is less severe than the Delta variant but is not mild;
(d) the protection provided by two doses against symptomatic disease is reduced against Omicron however not to levels that are not detectable. Protection against symptomatic disease is still at 8.8% at 25 or more weeks with the Pfizer vaccine;
(e) after two doses of the AstraZeneca vaccine, effectiveness against symptomatic disease from the Omicron variant starts at 45 to 50% then drops to almost no effect from 20 weeks after the second dose. With two doses of Pfizer or Moderna effectiveness against symptomatic infection dropped from around 65 to 70% down to around 10% by 25 weeks after the second dose;
(f) two to four weeks after a booster dose of either the Pfizer or Moderna vaccine, effectiveness against symptomatic infection ranges from around 60 to 75%, dropping to 25 to 40% from 15+ weeks after the booster. Vaccine effectiveness estimates for symptomatic disease for the booster dose are very similar, irrespective of the primary course received and vaccine effectiveness is generally slightly higher in younger compared to older age groups;
(g) two doses of either AstraZeneca or Pfizer vaccines was associated with a vaccine effectiveness of approximately 25 to 35% after 25+ weeks against hospitalisation following infection with the Omicron variant. After a Pfizer booster (after either primary vaccination course), vaccine effectiveness against hospitalisation started at around 90% dropping to around 75% after 10 to 14 weeks. After a Moderna booster vaccine effectiveness against hospitalisation was 90 to 95% up to 9 weeks after vaccination;
(h) high levels of protection (over 90%) are also seen against mortality with all three vaccines and against both the Alpha and Delta variants with relatively limited waning. At 25+ weeks following the second dose, vaccine effectiveness was around 60% while at two or more weeks following a booster vaccine effectiveness was 95% against mortality;
(i) while protection is reduced as vaccine effectiveness wanes over time, it can essentially be restored with a third or booster dose. Queensland data suggests that people who have received three doses of a COVID-19 vaccine are 20 times less likely to die from the virus than those who remain unvaccinated; and
(j) the vaccines are effective at preventing infection with Omicron, particularly following a third dose. This inherently reduces onward transmission by there being fewer infectious individuals in the population as uninfected individuals cannot transmit. Further given symptoms such as coughing can facilitate transmission, even a reduction in symptoms can reduce the probability of onward transmission.
[32] In considering whether there were any other controls (other than vaccination) that Woolworths could have implemented in November 2021 and/or February/March 2022 to minimise the health and safety risks associated with COVID-19 in the workplace, the Griffin Report:
(a) considered other control measures including social distancing, hand hygiene, mask wearing, using other PPE, ventilation, physical barriers such as “sneeze guards”, cleaning, isolating of cases, and active screening of asymptomatic individuals;
(b) noted that to achieve a sufficient level of risk reduction, typically a number of these strategies would need to be applied in parallel and relatively rigorously enforced to ensure they are done at a sufficient level such that the unintended consequences of such a strategy are likely to be prohibitive;
(c) identified that rapid antigen testing as a means of reducing risk on a broad scale has many limitations: sensitivity is poor, which cannot be overcome by daily testing, and can lead to over-reliance, false reassurance (particularly with false negative tests) and reduced compliance with other measures such as mask wearing and social distancing, which can in turn increase risk; and
(d) recognised that there are a high number of relevant variables at play that determine the effectiveness of these other control measures and the benefits associated with them.
[33] Dr Griffin concludes that it is nonetheless clear that these other measures are not an adequate substitute for vaccination. For example, masks are likely to reduce the incidence of COVID-19 by around half however this is dependent on a good quality mask in good condition being warn at the time of exposure. If a mask is worn incorrectly, damaged or soiled, or the exposure occurs at a time the mask is not being worn, then their effect is likely to be negligible.
[34] In considering whether there were there still additional benefits of a person having two doses of a COVID-19 vaccine (having regard to the effectiveness of these other available controls), Dr Griffin said when the risks and benefits are compared it still very much favours the use of vaccination, and said:
(a) the optimal approach to reduce the risks associated with COVID-19 is for a comprehensive strategy combining all available measures to be applied;
(b) the majority of strategies other than vaccination are often dependent on sustained high rates of compliance to afford any significant benefit;
(c) the only alternative strategy with a high enough rate of efficacy to be considered acceptable would be to work from home full time, which of course is not an option for the Woolworths group; and
(d) having regard to the effectiveness of these other available controls there is clear additional benefits from a person having two doses of vaccine.
[35] Finally, when asked to consider whether requiring Woolworths workers to be double vaccinated against COVID-19 by February/March 2022 was an appropriate control measure to mitigate the effect of the risks of COVID-19 in the workplace, Dr Griffin provided the following views:
(a) the risk considerations include:
(i) risk is greater in indoor venues than outdoor the Woolworths Group has a predominantly indoor workforce;
(ii) Woolworths’ workplaces employ a very large number of staff and many of them have the potential to be exposed to very high customer numbers;
(iii) social distancing in the course of performance of duties in the workplace is not able to be easily maintained at all times due to space constraints and the movement of customers and staff through stores; and
(iv) Many argue that the young are not as likely to progress to more severe disease and while rates of more severe disease may be lower in younger individuals it is still significant;
(b) the alternative strategies are limited; and
(c) vaccination is a safe and effective strategy to mitigate the risks of COVID-19:
(i) the four approved vaccines available in Australia have proven safe in clinical trials and in subsequent real-world experience. Many associated adverse events occur at lower incidence in response to vaccination than to COVID-19 infection itself;
(ii) efficacy remained high against the Delta variant accounting for Australia’s third wave;
(iii) efficacy against Omicron from two doses was reduced, however not to zero;
(iv) protection against severe disease remained high (greater than 60%); and
(v) efficacy could be largely restored or at least significantly increased by a third booster dose.
[36] The Griffin Report concludes as follows:
“Hence, the currently approved vaccines in use are safe and effective and although protection against Omicron has been reduced, 2 doses of vaccination have not been rendered redundant. When comparing the high levels of safety and the risk in the community of acquiring COVID-19 and the associated adverse outcomes that can occur subsequently, and given the limited impact of alternative strategies, in my opinion the requirement for workers to be double vaccinated against COVID-19 by February/March 2022 was an appropriate control to mitigate the risks of COVID-19 in the workplace.”
[37] Dr Griffin also co-authored an earlier report with Woolworths’ Chief Medical Officer in relation to COVID-19 vaccinations.
[38] Dr Griffin was not required for cross-examination. In their written submissions the Applicants submitted that the Griffin Report is based on opinion and hearsay and therefore inadmissible. Dr Griffin is undoubtedly an expert in his field, and I accept his opinions on medical matters accordingly.
[39] To the extent that the materials relied upon by the Applicants refer to risks associated with vaccination, or a challenge to the effectiveness of COVID-19 vaccines, such matters are squarely addressed in the Griffin Report.
[40] Dr Griffin was the Principal Investigator for a clinical trial for a COVID-19 vaccine and has overseen a large number of infectious diseases related clinical trials including multiple COVID-19 vaccine clinical trials.
[41] The Applicants had the opportunity to put their submissions, opinions, fears and “truths” to a leading medical expert through cross-examination. The Applicants are convinced that COVID-19 vaccines have only been approved for clinical trials but chose to not ask a senior medical specialist who has conducted many clinical trials, including COVID-19 related clinical trials, questions that could have proved (or disproved) the correctness of their case.
[42] The Applicants rely on a letter from Dr Connie Turni addressed to “To whom it may concern”. Dr Turni’s letter appears to express concern about “the mandatory vaccination the university is contemplating to enforce”, whatever that might mean. Dr Turni is a research fellow with a PhD in veterinary immunology and in her letter she refers to her work with pigs. Dr Turni was not made available for cross-examination, in fact there was no indication from the Applicants that Dr Turni knew that her letter was being relied upon, let alone supported the use of her letter in these proceedings. Mr Smith made the following submission on how I should regard the content of Dr Turni’s letter:
“Now, with regard to the Dr Connie being a veterinarian. Now, veterinarians are in fact far more qualified medically than a actual doctor is who deals with human beings. Veterinarians actually deal with a whole range of different animals and they have a far higher level of education.
More importantly, all vaccinations actually start out with animal trials, believe it or not and the pigs being the closest to human beings, is generally a starting point for clinical trials with the various drugs and things on – apart from rats and so forth but the pigs are of course the next closest thing there is to human beings and that’s not in appearance obviously but in actual – as in DNA and our chemical and biological makeup.”
[43] I reject the Applicants’ submission and prefer Dr Griffin’s evidence over the content of Dr Turni’s letter.
[44] The Applicants also tendered a document called “The Vaccine Death Report” dated September 2021. The “report” is authored by “David John Sorensen and Dr Vladimir Zelenko” and purports to “reveal the real risk of an unprecedented genocide” as part of “the greatest organised mass murder in the history of our world.” This document seems popular with those opposed to vaccines but contains untestable claims that are absurd and irrelevant. I place absolutely no evidentiary weight on any part of this “report”.
[45] In these circumstances I accept the contents of the Griffin Report without reservation. Further, I accept that the introduction of the policy across Woolworths’ Group operations was reasonable given the interaction of Woolworths’ employees with member of the public and the other matters considered in the Griffin Report such as the limitations of other control measures.
[46] The Applicants did not actively challenge whether the Respondent properly consulted with relevant stakeholders prior to introducing its vaccination policy.
[47] I am nonetheless satisfied that the Respondent did in fact properly consult with its employees prior to intruding the vaccination mandate in February 2022.
[48] Ms Samantha Johnson is the Head of Employee Relations for Woolworths and oversees a range of services relating to employee relations at Woolworths including workplace investigations, complaint and grievance case management, performance management and misconduct, industrial relations and support services. Ms Johnson provided a statement in these proceedings and was not required for cross-examination.
[49] Woolworths is Australia’s largest private employer and employees over 180,000 team members across Australia. Woolworths operates 1076 supermarkets, 160 Metro stores, 183 BIG W stores and 22 distribution centres. Ms Johnson says that Woolworths operations have been significantly impacted by COVID-19 since 2020 and continues to be impacted.
[50] Woolworths’ primary method of communication with team members in supermarkets, Metro and BIG W is through “WorkJam.” WorkJam has broadcast posting and direct messaging functions. WorkJam is used to record starting and finishing times and in WorkJam staff can access published rosters, payroll information, key communications and so on. WorkJam is used to broadcast information across the whole workforce as well as individual communication with specific employees. Ms Johnson says that WorkJam has been a significant communications tool deployed during COVID-19.
[51] Due to the size and diversity of Woolworths’ operation and the number and breadth of locations of its team members, Ms Johnson says that Woolworths predominantly uses surveys to consult with team members. Ms Johnson says that before the COVID-19 pandemic, Woolworths used surveys in a variety of ways to consult with team members and obtain their feedback including during enterprise bargaining.
[52] Surveys released by Woolworths are accessible through WorkJam, as well as other communication methods.
[53] Woolworths release regular surveys to team members called ‘Voice of the Team’. These surveys are conducted monthly and usually survey one third of the workforce at a time. Woolworths has used Voice of the Team surveys to request feedback about COVID-19 matters, such as vaccination status and employees’ intentions for vaccination.
[54] Ms Johnson says that in March 2021, when vaccines started to become available, Woolworths’ CEO Mr Brad Banducci sent a communication to all employees titled “Our Approach to Covid Vaccines and Caring for Our Teams”. This communication stressed the significance of vaccination as a tool for keeping customers and team members safe, provided information about paid vaccination leave that Woolworths was offering team members, and provided an FAQ from Dr Rob McCartney, Woolworths’ Chief Medical Officer.
[55] In June 2021 Woolworths also sent a communication to all team members titled “Strongly Encouraging you to get the COVID-19 vaccine” which, as the title suggests, provided further information and medical advice about vaccinations and encouraged team members to be vaccinated.
[56] Similarly on 4 August 2021 Woolworths sent a further communication titled “The Science behind Vaccines from Dr Rob”, which included a video of a discussion between Mr Banducci and Dr McCartney on the science behind vaccines and why vaccines are the key to mitigating the impacts of COVID-19.
[57] Woolworths provided medical information, in digestible form, in relation to COVID-19, the risks associated with contracting COVID-19, vaccination and the risks associated with vaccination. Links and references to more detailed publicly available material were regularly provided - including links to websites of government health authorities.
[58] For those whose minds were open to making an informed and balanced decision regarding vaccination, Woolworths provided access to significant resources, and links to even more resources. For the rest, Woolworths provided platforms for them to voice their opinions.
[59] In the second half of 2021 Woolworths was facing significant challenges and the Delta variant was on the rise. It says that the longer the delay in implementing a vaccine mandate, the greater the risk to the health and safety of its workforce.
[60] By the time that Woolworths came to consider the implementation of a vaccine mandate, it had already collected significant information from its workforce about vaccination. Data had been collected on “team sentiment”, including vaccination levels, levels of vaccine hesitancy and opposition to vaccination, support for and concerns about working with unvaccinated staff, and the like.
[61] In November 2021 Mr Banducci announced that a policy was to be introduced requiring staff to be vaccinated against COVID-19. When this policy was announced staff were told that NSW employees must be vaccinated by 31 January 2022.
[62] This date was deferred until 27 February 2022 and further consultation took place in January 2022.
[63] Section 387 of the FW Act requires me to take into account the following matters in determining whether the Applicants’ dismissals were harsh, unjust or unreasonable:
(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.
[64] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. I set out my consideration of each below.
[65] To be a valid reason, the reason for the dismissal should be sound, defensible or well founded and should not be capricious, fanciful, spiteful or prejudiced. However, the Commission will not stand in the shoes of the employer and determine what the Commission would do in the same position.
[66] Woolworths submits that the Applicants’ refusal to be vaccinated as required by the Vaccination Policy was misconduct.
[67] The Applicants submit that there was no valid reason for dismissal (per s.387(a)) because the Vaccination Policy was unlawful for various reasons.
[68] It is well-established that a substantial and wilful breach of an employer’s policy will usually constitute a valid reason for dismissal (per B, C and D v Australian Postal Corporation t/a Australia Post (2013) 238 IR 1, [2013] FWCFB 6191 at [36]).
[69] The Applicants’ failures to comply with the Vaccination Policy were of sufficient gravity to constitute a valid reason for dismissal.
[70] I therefore find that there was a valid reason to dismiss each applicant from their employment.
Were the Applicants notified of the valid reason (s.387(b))?
[71] Section 387(b) requires me to take into account whether the Applicants “[were] notified of that reason.” Sections 387(b) and (c) direct the FWC’s inquiry to matters of procedural fairness. In general terms a person should not exercise legal power over another, to that person’s disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case.
[72] In this matter both Applicants were notified of the valid reason for their dismissal.
Were the Applicants given an opportunity to respond to any valid reason related to their capacity or conduct (s.387(c))?
[73] The opportunity to respond to which s.387(c) refers is an opportunity to respond to the reason for which the employee may be about to be dismissed.
[74] The Applicants were given a proper opportunity to respond to the allegations against them.
[75] On 7 March 2022 both Emily and Chantelle Brown sent letters to Woolworths’ management in response to show cause letters sent to them the week before. The responses contain many of the arguments that have been put at the hearing and appear to be based on documents prepared by Mr Smith’s organisation / website. For example, both letters start and finish as follows:
“Before making your final decision about my ongoing employment and why my employment should not be terminated, please ensure to consider in your review the following IMPORTANT information:
I write this notice of response in serious concern of THE OFFER OF CONTRACT TO COERCE WITH THREAT AND MENACE TO COMPLY WITH AN IRREVERSIBLE INVASIVE MEDICAL PROCEDURE (CLAIMED COVID 19 VACCINE or any variation thereof)
This is a Breach of employment laws A breach of Medical Privacy Laws, A breach of federal laws, a breach of my human rights as a MAN or WOMAN and a breach of our Constitutional laws and assault and abuse and carry with it substantial criminal penalty including imprisonment.
On the basis of fact that a living Man, Woman, or any variation thereof, as person(s)/people in law (a natural person) are vessel(s) in commerce only and thereby fully retaining all rights bestowed under the COMMONWEALTH OF AUSTRALIA CONSTITUTIONAL ACT 1977 (Cth), take note that all Health directions, Health Orders, Rules, Lock Downs, Policies, Mandates, Directions and Directives are corporate entity recommendations and offers of contract only, not LAW.
Thereby, fully revoking the enforcement of all HEALTH DIRECTIONS / HEALTH ORDERS / RULES / LOCK DOWNS / POLICIES / MANDATES / DIRECTIONS and DIRECTIVES at all times.
….
In the absence of a current valid Bio Security Order against me, the individual living Man, Woman or any variation thereof (person in law), under the directions of an authorised Bio Security officer and consistent with the specific directions of that order under the Bio Security Act 2015 (Cth), no other order can be lawfully imposed at any time. Any threats imposed on me the living Man, Woman or any variation thereof (person in law) to submit to Orders, Health Directions, Health Orders, Rules, Lock Downs, Policies, Mandates, Directions and Directives upon me to self-harm against my will or restrict or invalidate my inalienable human rights to DECLINE such offers, creates an unlawful and unreasonable discriminatory burden upon the person(s) in law at all times.
Due to the seriousness of your demand with extreme menace being sought, I request your valid proof of claim with physical material evidence within 72 hours that your Health directions, Health Orders, Rules, Policies, Mandates, Directions and Directives are lawful and based on the Constitutional guarantees stated above.
Failure to respond by the close of business Thursday 10th March 2022 will be taken as tacit right to DECLINE all offers now and, in the future as deemed fit.
Regards
By:
CHANTELLE BROWN
All Rights Reserved.”
[76] The letters are obviously a poor adaption of a shambolic template, and did not contain any matters of substance that could have reasonably caused Woolworths to decide to continue either applicant’s employment.
Other factors – s.387(d)-(h)
[77] Woolworths did not have discussions with the Applicants relating to their dismissal, although it did invite such discussions. The parties communicated by email and so the absence of a support person in these communications (s.387(d)) does not affect the fairness of the dismissal in this matter.
[78] As the dismissals did not relate to unsatisfactory performance, the fact that the Applicants were not warned about unsatisfactory performance (s.387(e)) does not affect the fairness of their dismissal.
[79] Similarly, the size of Woolworths’ enterprise (s.387(f)) and the availability of dedicated human resource management expertise (s.387(g)) do not affect the fairness of the dismissals.
[80] There are no other relevant matters (s.387(h)) that impact upon the fairness of the dismissals of the Applicants.
[81] I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the terminations were harsh, unjust or unreasonable and therefore unfair dismissals.
[82] The reasons for dismissing the Applicants were valid. There was no procedural unfairness. Overall I find that the dismissals of Emily and Charlotte Brown were not harsh, unjust or unreasonable.
[83] Accordingly, I will make an order dismissing each application. 3
DEPUTY PRESIDENT
Appearances:
Mr A Smith for the Applicants
Mr M Seck of Counsel instructed by Mr A Khouri of MinterEllison for the Respondent
Hearing details:
2022.
Sydney (By Video using Microsoft Teams)
July 14.
August 29, 30.
Printed by authority of the Commonwealth Government Printer
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