| [2022] FWC 2848 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Chris Nightingale
v
Woolworths Group Limited T/A Woolworths Group
(U2022/3901)
DEPUTY PRESIDENT EASTON |
SYDNEY, 24 OCTOBER 2022 |
Application for an unfair dismissal remedy – refusal to be vaccinated against COVID-19 – whether employer adequately consulted with workforce – whether direction in policy was unreasonable and unlawful – valid reason found – procedural fairness – dismissal was not harsh, unjust or unreasonable – application dismissed.
[1] On 2 April 2022 Mr Chris Nightingale made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) for an unfair dismissal remedy, alleging that he had been unfairly dismissed from his employment with Woolworths Group Limited.
[2] Mr Nightingale was employed as a part-time store member at Woolworths Group’s BIG-W store at Jesmond. He commenced employment on 15 November 2017.
[3] Mr Nightingale is opposed to vaccination generally and was dismissed from his employment because he chose not to be vaccinated against COVID-19.
[4] The dismissal arose because Woolworths Group Limited (“Woolworths”) introduced a group-wide policy across its workforce of approximately 180,000 employees that required employees to be vaccinated against COVID-19, subject to a small number of exemptions (Vaccination Policy).
[5] Like many cases heard by the Commission, this decision records a collision between personal beliefs/individual choices and matters of health and safety of employees in a workforce. In other words, at the core of this matter is a clash between the personal choice of an individual employee to refuse to do something that reduces the risk of other employees suffering harm, and the right of the employer to apply work health and safety (WHS) control measures across its workforce.
[6] Mr Nightingale says that the direction within the Policy was both unlawful and unreasonable. Most of the arguments advanced by Mr Nightingale have been run and lost in other unfair dismissal claims and can be dealt with reasonably shortly.
[7] Two arguments do require closer consideration: firstly, whether Woolworths adequately consulted with Mr Nightingale and other relevant stakeholders prior to implementing the policy and secondly, whether any direction contained within the policy was unreasonable because only two doses of an of the approved vaccine are less effective than three or four doses.
[8] Mr Nightingale’s primary attack on Woolworths’ Vaccination Policy is that Woolworths failed to adequately consult with him and relevant stakeholders before implementing the Policy. Following the 5-member Full Bench decision in CFMMEU v Mt Arthur Coal Pty Ltd (2021) 310 IR 399, [2021] FWCFB 6059 (Mt Arthur Coal), the adequacy of Woolworths’ consultation process will need to be carefully reviewed. By the Full Bench’s reasoning a direction contained in a policy requiring employees to be vaccinated against COVID-19 might not constitute a reasonable direction if the employer has not adequately consulted with relevant stakeholders before implementing or enforcing the policy.
[9] A most unusual, perhaps even peculiar, situation arises where an individual employee, representing himself and prosecuting his own unfair dismissal claim, asks the Commission to find that a policy that a large employer has applied to 180,000 employees is not reasonable because of a deficiency in consultation prior to the introduction of the policy. It is potentially peculiar because Mr Nightingale’s unfair dismissal claim might stand or fall on whether Woolworths consulted with people or unions that have no connection to Mr Nightingale at all.
[10] I recognise that this is an inherently difficult task for Mr Nightingale because there is only so much evidence he can lead about consultation. The determination of the consultation question, and the evidence to be considered, focus upon events that are quite separate to Mr Nightingale’s individual circumstances, such as the deliberations and workings of senior management committees within Woolworths.
[11] I gave Woolworths permission to be legally represented in the proceedings because of the potentially significant consequences if I was to find that consultation was inadequate and/or that any direction given under the Policy was unreasonable (see Nightingale v Woolworths Group Limited T/A Woolworths Group [2022] FWC 1733).
[12] For the reasons explained later in this decision I am satisfied that through the consultation process Mr Nightingale had a reasonable opportunity to question and raise concerns about any issue connected to the proposed policy and that he was given the same opportunity as every other employee to persuade Woolworths that what it was doing was wrong and that it should take a different course of action. He was also able to ask questions and had access to information in relation to vaccines and the proposed policy.
[13] That is, Mr Nightingale had every opportunity to participate in the consultation process undertaken by Woolworths. I reject Mr Nightingale’s submission that Woolworths’ communications were inadequate in bringing matters to Mr Nightingale’s attention. In October 2021 and February 2022 Mr Nightingale was vocal in his opposition to the vaccine mandate on Woolworths’ internal communication platform and on Facebook – which I am satisfied is proof that Mr Nightingale was on notice of Woolworths’ intentions and could have accessed the information provided to all staff.
[14] In relation to the second key argument, I am satisfied on the evidence before me that the direction given under Woolworths’ policy is objectively reasonable as a work health and safety control measure.
[15] Mr Nightingale relied on materials from the internet, including public statements by politicians and government Chief Medical Officers, which call into question the effectiveness of two doses of an approved vaccine. Woolworths’ Vaccination Policy required employees to have two doses and the public statements relied upon by Mr Nightingale mostly encouraged people to receive booster shots, meaning third or fourth doses.
[16] It seems that Mr Nightingale has not had any doses of a vaccine. His central point was that the requirement to have two doses was unreasonable because, he says, (1) only two doses would not achieve the benefits claimed by Woolworths and (2) it imposes a significant impost on those who do not want to have any vaccine.
[17] Woolworths relied on expert evidence from Dr Paul Griffin, who is a leading infectious disease specialist. Indeed, Dr Griffin chairs a committee that oversees the other leading infectious disease specialists.
[18] Dr Griffin’s opinion, provided by specific reference to Woolworths’ business, is that “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.”
[19] In this decision I will:
(a) recite the relevant principles regarding directions given by employers in vaccination policies, including the established requirement that any such direction be a lawful and reasonable direction;
(b) review and consider the consultation processes undertaken by Woolworths, as well as Mr Nightingale’s specific complaints about consultation, in order to assess whether the direction given in the Vaccination Policy was unreasonable (as claimed by Mr Nightingale) because of any shortfall in Woolworths’ consultation processes;
(c) review and consider the evidence in the proceedings about vaccination, including expert evidence from Dr Griffin, in order to assess whether the Vaccination Policy was reasonable; and
(d) in light of these matters, consider whether the dismissal of Mr Nightingale was harsh, unjust or unreasonable by reference to the matters listed in s.387 of the FW Act.
[20] As the Full Bench’s reasoning in Mt Arthur Coal Pty Ltd at [64]-[67] makes clear, the legal basis for Woolworths 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]
[21] 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. Employees are required to comply with such directions as an implied term of their contract of employment, to the extent that any direction is both lawful and reasonable.
[22] The Full Bench in Mt Arthur Coal recognised that the introduction of a site access policy containing a COVID-19 vaccine mandate enlivened the consultation obligations in the Work Health and Safety Act 2011 (NSW) (WHS Act). Woolworths’ decision to introduce the Vaccination Policy, by the same reasoning, enlivened the consultation obligations in the WHS Act.
[23] The Mt Arthur Coal decision needs to be understood in the following context. In that matter a direction had been given to the workforce at the site, but consultation had not been adequate before the direction was issued. The direction was challenged and Mt Arthur provided an undertaking not to implement the outcome of any disciplinary process associated with any employee’s refusal to comply with the Site Access Requirement pending the resolution of the proceedings in the Commission (see (2021) 310 IR 399 at 408, [2021] FWCFB 6059 at [15]).
[24] The Full Bench found that the original direction was not reasonable, solely because of the deficiencies in the consultation process, and identified the way forward to be further consultation in a short period of time before the site access requirements could be imposed. That is, the earlier deficiencies were not incurable and did not render the vaccine mandate direction forever unenforceable. The Full Bench contemplated and effectively endorsed the possibility that exactly the same direction could be issued/enforced once adequate consultation had occurred.
[25] After the Full Bench decision Mt Arthur did undertake further consultation over only a few days and then announced to all employees that it had made the decision to introduce the site access requirements. On the day of the announcement Mt Arthur gave employees who had been stood down seven days to consider whether they would comply with the new site access requirement (see [2021] FWC 6626 at [48]-[49]).
[26] 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.
[27] Mr Brett McLean is that Chapter Lead, Occupational Health & Safety for Woolworths. Mr McLean provided a witness statement and was not required for cross-examination. Mr McLean was a member of the COVID-19 Crisis Management Team, which he describes as “a strategic and tactical team” comprising of Mr Brad Banducci, CEO, all of Mr Banducci’s direct reports, and other team members who had particular specialist expertise in relation to the management of COVID-19.
[28] Mr McLean said that COVID-19 has had a significant impact on Woolworths’ operations in terms of providing a safe working environment and a safe retail environment, as well as posing challenges that required Woolworths to adapt its operations to respond to public health orders, supply chain shortages, panic buying, marked changes to the delivery of products and services, and the like.
[29] In July 2021 Woolworths’ response to COVID-19 generally and to the wave of cases as the Delta strain took hold included measures such as opening COVID-19 testing locations for Woolworths staff, opening a vaccination pop-up clinic at the Sydney Regional Distribution Centre, implementing a well-being framework to support vulnerable team members during 14-day isolation periods.
[30] In August 2021 Woolworths’ response included introducing more stringent restrictions in stores located within NSW Local Government Areas of concern, increased PPE requirements, converting testing sites into vaccination hubs, and temporarily converting the Cecil Hills and Fairfield stores into online delivery hubs to support Western Sydney customers who were under stricter lockdown requirements.
[31] In September 2021 Woolworths rolled out rapid antigen testing at distribution centres and opened another vaccination clinic. In October 2021 Woolworths opened more vaccination hubs and began discussions with the federal government about increasing vaccination opportunities for team members in North Queensland including indigenous employees.
[32] In October 2021 the COVID-19 Crisis Management Team decided to introduce the Vaccination Policy. On 21 October 2021, Mr Banducci sent a message to all team members stating that a decision had been made to require team members across Australia to be fully vaccinated against COVID-19.
[33] On 4 January 2022, Mr Banducci sent a message to all team members stating, amongst other things, that the vaccination requirement for NSW, Victoria, ACT, WA and NT team members would be deferred to 27 February 2022 and that further consultation would take place.
[34] On 9 February 2022 the COVID-19 Crisis Management Team met twice, considered responses and materials obtained through various modes of consultation, and endorsed the introduction of the Vaccination Policy for NSW. Employees in NSW were required to provide proof of double vaccination by 27 February 2022.
[35] Woolworths led evidence from Ms Khang Phan, the Group Health & Safety Business Support Manager. Ms Phan had the responsibility for conducting risk assessments in relation to COVID-19 amongst other things. Ms Phan explained in her statement that Woolworths is constantly assessing risks in its workplace and Woolworths established a group-wide framework for managing risks in the workplace in response to COVID-19.
[36] Ms Phan identified materials relied upon in October 2021 in the preparation of Woolworths’ risk assessment in relation to COVID-19 vaccines.
[37] Woolworths obtained a report jointly authored by Dr Paul Griffin and Woolworths’ Chief Medical Officer, Dr Rob McCartney. This joint report contained a series of questions and answers, including the following:
“17. Does having a workforce that is vaccinated against COVID-19 minimise the health and safety risks associated with COVID-19 in relation to that workforce? If yes, please describe the risks and how vaccination of the workforce minimises these risks?
Vaccination reduces the health and safety risks of the workforce very significantly. Being vaccinated reduces the risk of acquiring the infection and also reduces the risk of passing it on if infected making the workplace safer for the other staff members. Most importantly vaccinated individuals if infected are likely to have fewer symptoms and be unwell for a shorter duration. They are also much less likely to require healthcare intervention including hospitalisation and intensive care.
18. If your answer to 18 is yes, is your answer affected by the percentage of the workforce that is vaccinated? That is, in your opinion, what is the required level of vaccination rate among the workforce to adequately minimise the risks to health and safety (eg. at 80% of the workforce)?
The greater the proportion of the workforce vaccinated the less likely there will be transmission in the workplace. Also, the less likely it will be of seeing any staff members progress to more sever disease or not survive if they are infected.
20. Compared with vaccination, what is the effectiveness of each other method in your response to (17) above for managing the risk of infection and transmission of COVID- 19 (both alone and where appropriate, in combination)?
Vaccination is clearly the most effective mitigation strategy and efficacy has been outlined above.
21. In your opinion, is vaccination a preferable and/or more effective form of protection against COVID-19 infection and transmission than other methods identified in (17) or combinations of method identified in (20)? If so, why.
Vaccination is the most effective mitigation strategy given its profound reduction in severe disease and death in addition to the significant reduction of rates of infection as well as onward transmission. The most effective form of protection is to combine vaccination with physical and environmental strategies.”
[38] Ms Phan also gave detailed evidence about the preparation and finalisation of a further risk assessment in January 2022 and then another in February 2022. The February 2022 risk assessment included updated information on vaccines, including information about the Novavax vaccine.
[39] 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.
[40] 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.
[41] 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.
[42] I am satisfied that using WorkJam was a reasonable and sensible method of communicating with employees, given that WorkJam is the primary way in which Woolworths communicates with its staff.
[43] Surveys released by Woolworths are accessible through WorkJam, as well as other communication methods.
[44] 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.
[45] Ms Johnson says that in March 2021, when vaccines started to become available, Mr 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 the CMO, Dr McCartney.
[46] 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.
[47] 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 and information on why vaccines are the key to mitigating the impacts of COVID-19.
[48] Woolworths used other forums and mediums to seek the views of its employees. There were “Townhall” meetings whereby staff were invited to submit questions that would be put to a panel ahead of a discussion that was made available on video to the whole workforce.
[49] 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.
[50] 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.
[51] Woolworths also consulted extensively with Health and Safety Representatives (HSR) across its workforce, as well as “listening sessions” with BIG-W store leaders, supermarket HSRs and nominated team members.
[52] Woolworths consulted with the Shop, Distributive and Allied Employees Association, the United Workers' Union, the Australasian Meat Industry Employees Union, the Australian Workers' Union, the Communication, Electrical, Electronic, Information Postal, Plumbing and Allied Services Union of Australia and relied on correspondence from each union in evidence. Woolworths also consulted with the Retail and Fast Food Workers Union.
[53] The decision was made in October 2021 to introduce a vaccine mandate and the decision was followed by further extensive consultation on the details of the policy by which the mandate would be introduced and by which staff were provided with extensive resources to make their own decision about whether to be vaccinated or not.
[54] By the time that the COVID-19 Crisis Management Team came to consider the implementation of a vaccine mandate in February 2022, Woolworths had 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.
[55] Mr Nightingale’s primary complaint about Woolworths’ consultation process was that Woolworths did not make it compulsory for staff to participate in the process. He says that if he was directed to participate in consultation he would have. He says that it should not have been left to chance and left for him and other employees to try and navigate their way around the WorkJam app to find information. He says that in the past Woolworths has provided training to employees but has not required them to do the training in their own time. Mr Nightingale complains that he was not provided any paid time to participate in consultation activities and that he and staff should not have been left to “self-consult” – meaning consult in their own time.
[56] Mr Nightingale also says that Woolworths should have compiled lists of employees and checked off each employee on the list to ensure that they participated in consultation, in the same way that Woolworths had rolled out staff training from time to time.
[57] I do not accept this criticism of the consultation process. In my view it is sufficient for employers to invite rather than compel employees to respond or consult. It is not necessary that employers provide paid time for consultation, particularly if a significant proportion of the workforce is part-time or casual.
[58] Mr Nightingale also submitted that because messages were sent in WorkJam at time when he was on leave, that Woolworths’ consultation was inadequate because there was no expectation upon him to use WorkJam when he was on leave. I do not accept this submission because Mr Nightingale was only on leave because he was not vaccinated and could not attend work because of certain Public Health Orders. Matters relating to COVID-19 and vaccination, and Woolworths’ position on such matters, must have been important to Mr Nightingale at the time (not least of which because they were preventing him from working).
[59] In 2021 and 2022 Mr Nightingale was actually quite vocal about vaccination and about Woolworths’ consultation processes. It is difficult to accept his submission at hearing that he was not aware of the information disseminated by Woolworths about vaccination. Mr Nightingale made comments in online public forums such as:
“Is that a fu$king joke bigw communications? People are being threatened by you, their job, income, home, family and your answer is to download a fu$king app.
You know this is against everything big W stands for, an assault on people’s body and privacy. If people commit suicide their bl00d is on your hands.”
[60] Overall I am satisfied that Woolworths properly consulted with its workforce and Mr Nightingale prior to the decision of the COVID-19 Crisis Management Team on 9 February 2022 to confirm the Vaccination Policy and the requirement/direction that employees in New South Wales the double vaccinated by 27 February 2022. There is no basis to find that the direction given within the Vaccination Policy was unreasonable because of any shortfall in Woolworths’ consultation processes.
[61] 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.
[62] 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.
[63] 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?
[64] 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.
[65] 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.
[66] 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.
[67] 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.
[68] 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.
[69] 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.
[70] 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.”
[71] Mr Nightingale is not a doctor or a scientist, but he nonetheless holds his views on vaccination very firmly. Mr Nightingale does not know for a fact that the risks of vaccination are greater than the benefits - he does not have the medical background or knowledge to know one way or the other.
[72] I do not have a medical background either, and I must make findings based on evidence. I must weigh up the evidence presented and, as best I can, arrive at legal conclusions about factual matters. In assessing evidence and materials in legal proceedings, at least the following factors can be considered:
(a) the qualifications and expertise of the person providing the evidence;
(b) whether the evidence was challenged, typically by way of cross-examination, and how well the evidence withstood any challenge; and
(c) whether there is other contradictory or inconsistent evidence, and the reliability of that other contrary evidence.
[73] Mr Nightingale represented himself in the proceedings and I assisted him to navigate the litigation process. I explained to Mr Nightingale that because Dr Griffin had specifically prepared a report dealing with the impacts of vaccination for Woolworths’ business at particular times in the progression of the pandemic, that I would be generally inclined to place greater weight on his report than I would place on material Mr Nightingale found on the internet. I also explained to Mr Nightingale that he had the opportunity to question and challenge Dr Griffin’s report and that if Mr Nightingale needed more time to prepare cross-examination of Dr Griffin, then Dr Griffin’s evidence could be led on another hearing day.
[74] Mr Nightingale could have asked Dr Griffin questions in cross-examination. He could have asked if Dr Griffin agreed with Mr Nightingale’s views about vaccination from a medical perspective. He could have asked about some or all of the points in the Griffin Report that Mr Nightingale did not agree with. Dr Griffin’s answers to these questions could have significantly helped Mr Nightingale’s case or could have significantly harmed it.
[75] Mr Nightingale chose not to cross-examine Dr Griffin. In the circumstances I can more readily accept Dr Griffin’s evidence because it has not been challenged.
[76] Mr Nightingale relied on other material in his case, such as public statements by government officials advocating for booster shots, including:
(a) a story on the www.news.com.au website posted on 17 February 2022 quoting Australia’s former deputy chief medical officer, Dr Nick Coatsworth’s claim that the Omicron variant is less dangerous than the seasonal flu, that “for the booster perspective, from the disease perspective, this is an illness that will very rarely cause harm to young, fit, healthy adults and kids” and that Dr Coatsworth believed that booster shots were only needed for vulnerable people or those with chronic illness;
(b) a story posted on the www.dailymail.co.uk website on 11 March 2022 that refers to a substantially lower infection-fatality rate in the UK. The article says that “scientists have credited the build-up of immunity after repeated waves of the virus, the vaccine rollout and the fact Omicron is inherently milder than older forms of the virus”;
(c) a video clip of a TV evening news report on 5 July 2022 “as [NSW] stares down the barrel of a third Omicron wave [where] hospitalisations are set to peak again at the end of [the] month and into August”, and in which the Chief Medical Officer of NSW, Dr Kerry Chant, is shown at a press conference to say “the virus has changed, So now with omicron the evidence is clear that we need three doses or in some cases four doses to provide the best protection against getting very sick”;
(d) a video clip of a TV evening news report on 6 July 2022 “as the winter wave begins to hit”, where the Federal Health Minister, Mark Butler said “two doses of vaccine is not enough to provide protection against omicron, a third dose is crucially important”; and other similar YouTube clips and media articles covering the same issues.
[77] Mr Nightingale relied on this material to submit that the two doses required under Woolworths’ Policy did not provide adequate benefit or protection against COVID-19, which in turn spoke against the reasonableness of the Policy. There is some logic to this argument insofar as the reasonableness of the Policy is connected to the benefits of vaccination.
[78] The media articles and tweets and so on are of minimal value as evidence in Mr Nightingale’s unfair dismissal claim compared to Dr Griffin’s evidence. Dr Griffin is obviously an expert in his field. Dr Griffin’s report is targeted and specific to matters at hand in the case and appears to be balanced and appropriately thorough and cautious.
[79] In any event Dr Griffin’s opinions are not inconsistent with most of the material Mr Nightingale relies on. Dr Griffin notes that two doses of vaccine are less effective against the Omicron variant compared to earlier COVID-19 variants, and Dr Griffin’s evidence clearly establishes that three or four doses are more effective than two doses.
[80] However Dr Griffin unequivocally says that there is still material protection and benefit from receiving two doses in 2022 while the Omicron variant is dominant.
(a) In Mt Arthur Coal at [224] the Full Bench considered amongst other things whether the introduction of a site access policy containing a COVID-19 vaccine mandate contained a reasonable direction to employees captured by it. The Full Bench at [259]-[264] made the following broad observations regarding directions given by employers:
“The reasonableness of a direction is a question of fact having regard to all the circumstances, which may include whether or not the employer has complied with any relevant consultation obligations; the nature of the particular employment; the established usages affecting the employment; the common practices that exist; and the general provisions of any instrument governing the relationship.
We note that, absent a consideration of all the relevant circumstances it is not appropriate to make general statements about whether a direction of a particular character is a lawful and reasonable direction. That said; we think there is some utility in making some broad observations.
If the object and purpose of such a direction is to protect the health and safety at work of employees and other persons frequenting the premises then such a direction is likely to be lawful. This is so because it falls within the scope of the employment and there is nothing illegal or unlawful about becoming vaccinated. But such a direction must also be reasonable.
As Flick J observed in NSW Trains v Australian Rail, Tram and Bus Industry Union the determination of whether an employer direction is lawful and reasonable can only be made by reference to the subject matter and context; it cannot be made ‘in vacuo’. The assessment of reasonableness and proportionality is essentially one of fact and balance and needs to be assessed on a case-by-case basis. The assessment will include, but not be determined by, whether there is a logical and understandable basis for the direction.
A direction lacking an evident or intelligible justification is not a reasonable direction but that is not the only basis upon which unreasonableness can be established. It is an objective assessment of the reasonableness of the direction, having regard to all of the circumstances.
In any particular context there may be a range of directions open to an employer within the bounds of reasonableness. Further, to establish that a direction is reasonable it is not necessary to show that the direction in contention is the preferable or most appropriate course of action or in accordance with ‘best practice’ or in the best interest of the parties.”
[Emphasis added, footnotes omitted]
[81] The workplace health and safety risks for Woolworths’ employees at this time are somewhat obvious - most of Woolworths’ employees work in public places within retail stores. The Griffin Report refers to a number of alternative or complimentary risk control measures and reaches the very firm conclusion that vaccination is the far superior risk control measure.
[82] On the evidence before me I am satisfied that the Vaccination Policy is reasonable, proportional to the risks arising from COVID-19, and that there is therefore a logical and understandable basis for the policy. As Dr Griffin’s evidence establishes, there are material benefits derived from 2 doses of vaccine, even if there are greater benefits from third or fourth doses.
[83] Mr Nightingale’s other arguments can be disposed of in short compass.
[84] Mr Nightingale argued that the terms of the Vaccination Policy are flawed:
“The policy contains a major mistake, on page 4 of the covid vaccination policy it states under definitions:
(Date for Double Vaccination means the dates by which Team Members and other persons must be Double Vaccinated as set out under the heading "Principles.”)
The heading "Principles" doesn’t exist in the entire document so there is no date for double vaccination under the heading principles.”
[85] I reject this argument. The ordinary meaning of the words in the Vaccination Policy are straightforward and the dates by which staff were required to be vaccinated were clear in the policy itself.
[86] Woolworths’ Code of Conduct policy requires a respectful workplace. Mr Nightingale argues that Woolworths’ intolerance of Mr Nightingale’s decision not to be vaccinated contravened this provision of Woolworths’ own Code of Conduct. Mr Nightingale’s submissions do not explain how Mr Nightingale says that Woolworths could accommodate Mr Nightingale’s own choice if Woolworths was satisfied that the Vaccination Policy was an appropriate WHS control measure. In my view the Vaccination Policy and Woolworths’ Code of Conduct are not contradictory or inconsistent.
[87] Mr Nightingale argues that the Vaccination Policy is unlawful “as soon as the threat of termination is made” because, he says the Policy constitutes undue pressure, coercion or manipulation. This argument has been rejected in the Commission and in other courts and I also reject it.
[88] Mr Nightingale argues that the Vaccination Policy discriminates based on religious belief. This argument is convoluted and fundamentally hopeless. Mr Nightingale is an atheist, which he says is a “belief which is protected under the respectful workplace policy.” As best as I can understand it, Mr Nightingale’s argument is that because his belief is not a belief that has an objection to vaccination he is disadvantaged by the Policy compared to other workers who might have a religious belief that could give them an exemption. This submission is rejected.
[89] Mr Nightingale argues that the Vaccination Policy is a breach of the Disability Discrimination Act 1992 (Cth). He says that “Noone should be treated differently because of a disease they do not have or may get in the future and be used to discriminate against you so Woolworths Covid policy is a clear breach of the disability act.” This argument seems to submit that a person who refuses to be vaccinated has a disability, perhaps an imputed disability. This argument is no stronger than the religious belief argument and is rejected.
[90] Section 387 of the FW Act requires me to take into account the following matters in determining whether Mr Nightingale’ dismissal was 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.
[91] 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.
[92] 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.
[93] 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]).
[94] I am satisfied that the direction contained within Woolworths’ Vaccination Policy was lawful and reasonable and that Mr Nightingale’s failure to comply with that direction is of sufficient gravity to constitute a valid reason for dismissal.
[95] I therefore find that there was a valid reason to dismiss Mr Nightingale from his employment.
Was the Applicant notified of the valid reason (s.387(b))?
[96] Section 387(b) requires me to take into account whether Mr Nightingale “was 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.
[97] In this matter Mr Nightingale was notified of the valid reason for his dismissal.
Was the Applicant given an opportunity to respond to any valid reason related to his capacity or conduct (s.387(c))?
[98] 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. Mr Nightingale was given a proper opportunity to respond.
[99] In answer to a show-cause letter issued by Woolworths, Mr Nightingale made a written submission that challenged the lawfulness and effectiveness of vaccines in what can now be described as fairly standard terms. The response asked many of the same questions that other unvaccinated employees have asked of their employer shortly before being dismissed. Mr Nightingale seems to have copied the text for his response from a template supplied by “Red Union.” His response asked, for example, for “a full list of ingredients of the available COVID-19 vaccines, the medical safety data available on the ingredients and risks associated with the ingredients of each of these covid 19 vaccines.” The opening paragraphs of Mr Nightingale’s response reveal the nature of the whole document, viz:
“I write with regards to the matter of the covid vaccine policy and my desire to be fully informed and require more clarification and evidence in regards to the policy.
I have had no proper consultation so far in regards to this policy, the only two times I have spoken to a manager about the policy was when I was told I could not attend work due to the state mandate then on Friday the 25th of February 2022 when I was again told I could not attend the workplace from monday 28th February 2022.
So far my medical status has remained private but upon full receipt of this information which will be part of my consultation requirement I will consider the policy.
I’d be most grateful if you could please provide the following information, in accordance with statutory legal requirements.
I would like this information to make me feel satisfied that it is needed and a lawful and reasonable request.
…
1. A: Can you provide a full list of the studies and evidence used to justify the covid-19 vaccination policy.”
[100] In evidence Mr Nightingale said he did not understand the terms of the letter he sent, which is not to his credit.
[101] There is nothing within his response that required Woolworths to reconsider dismissing Mr Nightingale. Mr Nightingale had ample opportunity to become “fully informed” over the many months that Woolworths provided information to him and to the workforce.
Other factors – s.387(d)-(h)
[102] The parties predominantly communicated by email and so the absence of a support person in these communications (s.387(d)) did not affect the fairness of the dismissal in this matter.
[103] Woolworths did meet with Mr Nightingale by video conference and offered Mr Nightingale the option of having a support person present. At this meeting a Woolworths representative read out to Mr Nightingale the contents of his termination letter. Mr Nightingale made various comments while the letter was being read and immediately disconnected from the meeting when Woolworths’ representative finished reading.
[104] As the dismissal did not relate to unsatisfactory performance, the fact that Mr Nightingale was not warned about unsatisfactory performance (s.387(e)) does not affect the fairness of his dismissal.
[105] 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 his dismissal.
[106] There are no other relevant matters (s.387(h)) that impact upon the fairness of the dismissal of Mr Nightingale.
[107] 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 termination was harsh, unjust or unreasonable.
[108] The reasons for dismissing Mr Nightingale were valid. There was no procedural unfairness. Overall I find that the dismissal of Mr Nightingale was not harsh, unjust or unreasonable.
[109] Accordingly, I will make an order dismissing the application. 1
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR747138>
Appearances:
Mr C Nightingale, Applicant
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 19, 25.