Fair Work Act 2009
s.394—Unfair dismissal

Nathan Necovski
v
Department of Justice and Community Safety
(U2022/6757)

Application for an unfair dismissal remedy- dismissal unfair- compensation awarded.

[1] Mr Nathan Necovski has made an unfair dismissal application to the Fair Work Commission pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent is the Department of Justice and Community Safety (Respondent). The matter proceeded to a hearing conducted on 11 October 2022. Both parties were granted permission to be represented by members of Counsel, pursuant to s.596 of the Act. Mr Pym appeared for Mr Necovski and Ms Fitzgerald appeared for the Respondent. Witness evidence was received from Mr Necovski, Professor John Catford and Ms Caitlin Huffer, Manager- Workplace Relations for the Respondent.

Initial matters to be considered – s.396 of the Act

[2] Mr Necovski’s application was made within the 21-day period after the dismissal took effect, as required by s.394(2) of the Act (s.396(a)) and there is no dispute that he is a person protected from unfair dismissal because he had completed the minimum employment period and his annual rate of earnings was less than the high income threshold (s.396(b)). Further, it is not disputed, and I am satisfied that the Respondent was not a small business employer. As such, the matter does not require consideration of whether the dismissal was consistent with the Small Business Fair Dismissal Code (s.396(c)). Finally, it was not claimed and nor does the material before me suggest the dismissal was a case of genuine redundancy (s.396(d)).

Section 385 of the Act – was the dismissal unfair?

[3] As to the circumstances set out at s.385 of the Act, there is no question or dispute that Mr Necovski was dismissed (s.385(a)). Further, as outlined above, this is not a matter that involves a small business, such that consideration of whether Mr Necovski’s dismissal was consistent with the Small Business Fair Dismissal Code (s.385(c)) is required or one where it is claimed the dismissal was a case of genuine redundancy (s.385(d)).

[4] This leaves s.385(b) and in determining whether the dismissal was harsh, unjust or unreasonable, I must have regard to s.387 of the Act.

Background facts

[5] Mr Necovski began working for the Respondent on 25 May 2020 at the Parkville Youth Justice Precinct (PYJP) as a youth justice worker (YJW). On 15 October 2021, the Respondent released a COVID-19 Vaccination Policy (Policy). The Policy provided that staff were unable to work outside their ordinary place of residence unless they had received two doses of a COVID-19 vaccine by 26 November 2021. Mr Necovski’s role as a YJW required him to leave his primary place of residence and perform his duties at the PYJP. Mr Necovski’s position description noted that in his role as a YJW he was primarily responsible for maintaining the safety and security of the Youth Justice custodial centres supervising young people, recording their movements, conducting searches and security checks. Further, the role required Mr Necovski to provide care, supervision and support to the children and young people in custody at the centre by acting as a role model, building positive working relationships and supporting them in addressing the issues that contributed to them receiving a custodial sentence.

[6] Mr Necovski received his first dose of the Pfizer vaccine on 21 October 2021 at his workplace. Mr Necovski said he suffered significant adverse side effects but nonetheless attempted to comply with the Policy by presenting to the Austin Health Vaccination Hub on 28 November 2021 to receive his second dose of the Pfizer vaccine. He was advised at that time that the vaccine would not be administered due to his symptoms.

[7] Mr Necovski was deemed sufficiently recovered so as to resume ordinary duties by 23 February 2022, however he was advised to not receive any further doses of MRNA vaccines and obtain further opinion before receiving any further doses of any vaccine. Mr Necovski obtained a referral to Professor Kumar Visvanathan on 7 March 2022, but then fell ill with COVID-19, having tested positive on 24 March 2022. He was required to isolate until 1 April 2022.

[8] A letter dated 5 April 2022 from the Respondent to Mr Necovski 1 recorded that Mr Necovski had received one dose of an available vaccine and provided the Respondent with a digital certificate on three occasions indicating that a medical contraindication applied. The letter further outlined that as a consequence of his vaccination status, Mr Necovski had been unable to enter a youth justice facility since 15 October 2021, albeit Mr Necovski maintained the applicable date was in fact 21 October 2021. The 5 April 2022 letter continued as follows:

“From the limited information provided by you, it may be until August 2022 when you may be in a position to receive a second dose of COVID-19 vaccine which is a significant period and is not operationally sustainable. It is unclear when you will be in a position to receive a third dose of an available COVID-19 vaccine.

The department is seeking medical information from your doctor as to the reasons for the extended period before you can receive the vaccination.

…

If you do not respond within 14 days from the date of this letter or the response you or your doctor provides does not materially alter the department’s view about your capacity to fulfil the inherent requirements of your role, I intend to advise the Secretary to consider termination of your employment.” 2

[9] Responding on 19 April 2022 via an email sent at 8:49am, Mr Necovski forwarded a letter from his treating general practitioner (Dr Andrew Donald) dated 13 April 2022. 3 The letter from Dr Donald outlined that Mr Necovski had fully recovered from both the adverse vaccine reaction and his more recent COVID-19 infection. The letter then outlined the following in relation to Mr Necovski:

“1. Nathan’s second & third doses of COVID-19 vaccination were initially delayed due an [sic] adverse reaction to the first dose.

…

He was referred to the body responsible for assessing adverse reactions, Victorian Specialist Immunisation Services (VicSIS) for advice as to the appropriate timing & options for subsequent doses. This consultation did not occur until 03 February 2022. Subsequently, after having recovered from the adverse vaccine reaction, he then suffered with COVID-19 infection.

2. As per ATAGI guidelines, Nathan is entitled to delay any further doses of COVID-19 vaccine for up to 4 months following recovery from the illness. Therefore Nathan has elected to defer any second COVID-19 vaccination until 04 August 2022.

3. Nathan is now well and fully recovered from COVID-19 infection and is fit to resume his normal work duties…” 4

[10] The Respondent replied with an email sent two and a half hours later, stating:

“Based on the medical advice, there is no medical reason why you are unable to receive the second vaccine noting that you are required to have received three doses to enter a youth justice facility, and it is unclear when you will be in a position to resume your duties as a youth justice worker.

The information provided has not materially alter [sic] the department’s understanding of your ability to perform the inherent requirements of the role.

I am providing you with a final opportunity to provide evidence of you receiving a second dose of an available COVID-19 vaccine, or evidence that have a vaccination booking by close of business Friday 29 April 2022. If you do not provide evidence that you have received a second dose of an available COVID-19 vaccine, or evidence that you have a vaccination booking by close of business Friday 9 April 2022, the Secretary will be advised to consider termination of your employment.” 5

[11] Mr Necovski then sent a further email to the Respondent on 26 April 2022 at 2:50pm attaching a revised letter from his doctor and a range of assertions, including that he posed little to no risk to either himself or others for a 12 week period from the end of his isolation until 15 July 2022 as having recently recovered from COVID-19, that he had a reduced chance of reinfection for at least four months and further, that he may be treated as equivalent to someone who is fully vaccinated. Mr Necovski argued the risks associated with his return were negligible for himself, colleagues and others because he was “medically recognised as protected from COVID-19” for at least four months.  6

[12] The Respondent replied via email on the same date at 3:38pm, stating:

“Your response has been considered, however your response does not materially alter the department’s understanding of your ability to perform the inherent requirements of your role, including compliance with the department’s vaccination policy. The Secretary will now be advised to consider termination of your employment.” 7

[13] At 12:00PM on 27 April 2022, Mr Necovski sent an email to the Respondent stating:

“I would like to state for the record that I am currently in consultation with a specialist pending an appointment to assess the safety of taking the Novovax vaccine.

…

In the interim and as of mid-February 2022 since my recovery I have been happy to undertake alternative duties, however I did not receive a response to my previous query dated 24 February. If available, please let me know as I have every intention to return to work in my full capacity once I can be assured that I will not suffer the same or worse reaction to further vaccination. Though I do believe per my previous email that I am fit for work now for at least the next four months.” 8

[14] At 2:43pm on 28 April 2022, Mr Necovski sent a further email to the Respondent stating as follows:

“I understand that the Secretary will consider termination of my employment tomorrow and I am seeking an extension of that deadline in order to facilitate gaining an appointment with a specialist to better ascertain if it is safe for me to be vaccinated with Novavax and in order to provide you with an accurate timeframe of when that can happen.

The current medical advice I have is not based on any previous experience nor testing and is in effect a dice roll. Some prior consultation would put me in a position to more confidently make that decision and as previously mentioned, I am currently in the process of engaging a specialist. I have sent a communication to him on 11 April 2022 but am yet to receive a response as he is quite busy. I have attempted to and I am endeavouring to follow up with him as much as I can over the past couple of weeks given the looming deadline.

I am asking for your understanding in the matter in light of the relatively minor inconvenience in keeping me employed against the devastation to me of terminating my employment. I understand this has been a protracted process however it has never been my intention to needlessly drag it out. As you are aware I have not been paid since I became unwell following my first dose. I am seeking nothing more than the opportunity to ensure that I can safely return to work to a job that I am passionate about and that I do not wish to lose.” 9

[15] At 11:28am on Friday 29 April 2022, the Respondent sent an email in reply, stating as follows:

“Thank you for your emails dated 26 April, 27 April and 28 April 2022.

The department released its COVID-19 Vaccination Policy (Policy) on 15 October 2021. Although there have been updates to the Policy since that time, the requirement that staff must be fully vaccinated to attend the workplace has not changed. In addition to the Chief Health Officer’s Directions and Pandemic Orders, the department is obligated under the Occupational Health and Safety Act 2004 to provide and maintain a working environment for its employees that is safe and without risks to health, so far as is reasonably practicable.

COVID-19 vaccinations provide an added layer of protection against COVID-19. The department endorses vaccinations that have been approved by the Australian Technical Advisory Group on Immunisation (ATAGI), which is a technical advisory group of the Australian Government. When the department’s Policy was introduced on 15 October 2021, a number of vaccines were available. Since 21 February 2022, Novovax has been available in selected state run centres as well as GPs and pharmacies.

The department granted you until 29 April 2022 to receive a second vaccination. Your email dated 27 April 2022 states that you recovered from an adverse reaction to a COVID-19 vaccine in February 2022, however since that time you have not consulted with a specialist about the safety of receiving the Novavax vaccination. You have recently referred to seeking specialist advice, however you have not provided a date of a specialist consultation despite being off work since October 2021. Despite numerous opportunities, it remains uncertain if and when you will receive a second vaccination.

The department rejects that your matter is of relatively minor inconvenience. The Policy applies to all employees and was developed in response to the COVID-19 pandemic which has had significant global consequences. You have been provided significant opportunity to meet the requirements of the Policy. Your email dated 26 April 2022 refers to the risk of COVID-19 to your well-being. However, the requirement to get vaccinated extends beyond protecting yourself. As raised in the Policy, it extends to protecting fellow work colleagues and workplace participants.

The information you have provided does not materially alter the recommendation for the Secretary to terminate your employment.” 10

[16] Mr Necovski produced to the Commission a document entitled “ATAGI expanded guidance on acute major medical conditions that warrant a temporary medical exemption relevant for COVID-19 vaccines.” It would appear this document was updated on 29 April 2022. Further, it outlined that a valid reason for a temporary exemption included SARS-CoV-2 infection, in the event of which it outlined vaccination should be deferred for 3 months after a confirmed infection. The document also suggested that the exemption was not for a duration longer than 4 months. 11

[17] On Wednesday 4 May 2022, Mr Necovski emailed the Respondent at 3.14pm, as follows:

“Please be advised that I have secured an appointment with Professor Kumar Visvanathan who is a professor of immunology on 10 May 22. I will shortly thereafter be in a position to provide an accurate indication as to my future vaccination status.” 12

[18] A letter dated 30 May 2022 from the Respondent to Mr Necovski states:

“…

You provided limited information to the department, advising that it may be August 2022 until you are in a position to receive a second dose of COVID-19 vaccine, which is a significant period and is not operationally sustainable. It was also unclear when you would be in a position to receive a third dose of an available COVID-19 vaccine.

The department requested you seek medical information from your doctor as to the reasons for the extended period before you could receive the required vaccinations. No response with the requested medical information was received.

Your non-compliance with the requirement to be vaccinated means that you are unable to leave your home to undertake the inherent requirements of your role.

Given your circumstances, including your non-compliance with the department’s Policy and that you cannot lawfully attend your workplace, I am satisfied that you cannot perform your role as a Youth Justice Worker and therefore in line with the provisions of section 33 of the Public Administration Act 2004 (VIC) I am terminating your employment.

In coming to this decision, I have taken into account the correspondence sent to you dated 1 January and 19 April 2022, which asked you to show cause as to why your employment should not be terminated. You provided responses to the department on 26, 27 and 28 April 2022, however, your responses did not materially alter the department’s understanding of your ability to perform the inherent requirements of your role, including compliance with the department’s vaccination policy.

I can confirm your employment will be terminated effective 6/06/2022.

…” 13

(my emphasis)

[19] This evidently prompted Mr Necovski to email the Respondent at 10:41PM on 30 May 2022. To this email, Mr Necovski attached a letter from Professor Kumar Visvanathan, Infectious Diseases Physician, St Vincent’s Hospital and Deputy Head, Department of Medicine, Eastern Hill Campus, at the University of Melbourne, along with an Australian Government COVID-19 digital certificate 14 outlining that he has a medical contraindication to COVID-19 vaccines until 26 November 2022. Professor’s Visvanathan’s letter was dated 19 May 2022 and stated:

“This letter is to emphasize that Nathan had a severe reaction to his first Pfizer COVID-19 vaccine and I would recommend that he does not receive any further booster doses of any COVID-19 Vaccine that is available.

I have organised an exemption certificate for him.” 15

[20] Mr Necovski’s email outlined the following:

“Please be advised that termination of my employment at this stage is unjust.

The sole reason for not being in compliance with the policy is that at this stage I have received medical advice not to receive further doses (please see letter attached). It was not until today that the exemption Professor Visvanathan mentions was reflected on my Medicare record (please see digital certificate attached). I will have a further appointment with Professor Visvanathan in June for testing.

I am currently exempt from receiving further doses of any vaccine on the basis that further investigation is required to form a valid medical opinion as to the safety of further doses. On this basis I have a valid medical reason as to why I am not in a position to receive any further doses and compliance with the policy is simply not a medically advisable option for me.

As I have stated ad nauseum, I am willing to be fully vaccinated however it is evident that further doses of a vaccine pose a danger to my health and in accord with medical advice, until that danger can be better understood or mitigated, it is neither safe nor sensible to attempt it.

Please reconsider your position on terminating my employment. On the basis that I possess a valid medical exemption within the meaning of the pandemic order I would again ask that you fulfil your obligation to provide me with alternative duties until I can be fully operational. I sincerely enjoy my role as a youth justice worker with the Department and to be deprived of my livelihood in light of medical advice against further vaccination which could endanger my life, is heinously unfair.” 16

(my emphasis)

[21] Mr Necovski followed up with an additional email sent at 3:25pm on 31 May 2022, to which he attached a further letter from Professor Visvanathan of the same date outlining the following:

“This is a short letter to note and emphasize that Nathan NECOVSKI had a severe reaction to his first Pfizer vaccine and I would recommend that he does not receive any further booster doses of either COVID vaccines that are available.

The severe, documented inflammatory reaction led to severe myalgia, arthraligia and serositis. This was accompanied by significantly raised inflammatory markers in the peripheral blood. Given these circumstances we deemed that it would not be safe for Nathan to have any further doses of the recommended vaccines…” 17

[22] After identifying a technical error with the termination communicated via the letter dated 30 May 2022, the significance of which remains unclear, the Respondent issued a second letter terminating Mr Necovski’s employment on 2 June 2022. This letter did not differ in substance to the letter dated 30 May 2022 and outlined that Mr Necovski’s termination would take effect on 9 June 2022.

Consideration

[23] I am under a duty to consider each of the criteria in s.387 of the Act in reaching my conclusion and will do so below.

Was there a valid reason for dismissal relating to Mr Necovski’s capacity or conduct? – s.387(a)

[24] In considering whether the dismissal of Mr Necovski was harsh, unjust or unreasonable, I am required to take into account whether there was a valid reason for the dismissal related to his capacity or conduct (including its effect on the safety and welfare of other employees). The reason or reasons should be “sound, defensible and well founded” 18 and should not be “capricious, fanciful, spiteful or prejudiced”.19

[25] There is no dispute between the parties that Mr Necovski was a “custodial worker” within the meaning of both the various iterations of the COVID-19 Mandatory Vaccination (Workers) Directions (the Directions) and ultimately, the Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 8) (Specified Workers Order), which applied at the time of his dismissal. 20 Neither party challenged the validity of either the Directions or the Specified Workers Order.

[26] It was also not in dispute that employers of custodial workers were not to permit their workers to work for them outside of their ordinary place of residence unless they were “fully vaccinated” or an “excepted person”.

[27] The parties agreed that at the time of his dismissal, Mr Necovski had only received one vaccination and was an “excepted person” under the Specified Workers Order.

[28] The reason for Mr Necovski’s termination was outlined in the letter to him from the Respondent dated 2 June 2022 (the 2 June 2022 Termination Letter). In the 2 June 2022 Termination Letter, the following statements were made:

•  The Respondent’s records indicated that Mr Necovski had not confirmed that he had received three doses of an available COVID-19 vaccine, consistent with its COVID-19 vaccinations policy;

•  The policy required all departmental staff to confirm they had received three doses of an available COVID-19 vaccine before performing work outside their home;

•  Mr Necovski’s role as a YJW required him to leave his primary place of residence to undertake its inherent requirements;

•  Mr Necovski had advised that it may not be until August 2022 that he would be in a position to receive a second dose of COVID-19 vaccine, which the Respondent considered was a significant period and not operationally sustainable;

•  It was also unclear when Mr Necovski would be in a position to receive a third dose of an available COVID-19 vaccine;

•  Mr Necovski had not responded to its request for medical information explaining why it would be an extended period before he could receive the required vaccinations;

•  Mr Necovski’s non-compliance with the requirement to be vaccinated meant he was unable to leave his home to undertake the inherent requirements of his role; and

•  Given Mr Necovski’s circumstances, which included his non-compliance with its policy and his inability to lawfully attend the workplace, it was satisfied that Mr Necovski could not perform his role as a YJW.

[29] Mr Necovski argued that having been an “excepted person” for the purposes of the Directions and Orders at all material times, the only prohibition on working outside of his ordinary place of residence was the Policy. At the hearing, Mr Necovski did not contest, in a general sense, the vaccination requirement imposed by the Policy. He accepted it was generally capable of being characterised as a lawful and reasonable direction and he did not take issue with its reasoning and content, or the validity of the consultation process and, broadly speaking, the Policy’s implementation. 21 Mr Necovski did not dispute the science underpinning the Policy or the rationale for imposing the requirement for a YJW to be triple vaccinated and nor did he maintain an earlier argument he had advanced (that he might have been able to safely continue his role as a YJW while unvaccinated).22

[30] Mr Necovski submitted however that to the extent the Policy does accommodate a person who is an “excepted person”, the Respondent did not adhere to it, in that it did not follow processes outlined in the Policy for individuals with medical contraindications. This will be addressed further as part of the analysis of s.387(h) of the Act.

[31] For its part, the Respondent submitted that notwithstanding that Mr Necovski was an “excepted person” for the purpose of the Government mandates, the effect of the Policy was that he was unable to attend the PYJP and perform the work his role required. Further, the Respondent submitted that the Policy provided that where an employee was unable to have a vaccination at all, the employee's ongoing employment may be impacted if reasonable adjustments or suitable alternative duties were not available.

[32] The Respondent said that before proceeding to terminate his employment it considered whether Mr Necovski would be required to leave his primary place of residence in order to fulfil the inherent requirements of his role or whether he could instead work from home and/or perform alternate duties. The Respondent said it decided that Mr Necovski was required to physically attend its work premises to perform all of the inherent requirements of his role, which included:

•  the supervision of young people, including recording their movements, conducting searches and security checks; and

•  providing care and support to the children and young people in custodial centres by acting as role models, building positive working relationships and supporting them to address the issues that contributed to them receiving a custodial sentence.

[33] The Respondent said it had also determined that there were no reasonable adjustments that could have been made so as to allow Mr Necovski to perform these duties without creating an unacceptable risk to the young people in the PYJP and his co-workers. Nor did it consider that these functions could be performed remotely, or that Mr Necovski could have performed his role from home. The Respondent argued that Mr Necovski’s inability to perform the inherent requirements of his role was a valid reason for dismissal.

[34] The Respondent proffered that when relying on an internal policy rather than public health laws to dismiss a worker due to their vaccination status, there are several factors which will weigh into the determination of whether the Policy is lawful and reasonable, including:

•  Whether consultation obligations under the OHS legislation are complied with;

•  Whether the policy is directed at ensuring the health and safety of workers;

•  Whether the policy has a logical and understandable basis;

•  Whether the policy is a reasonably proportionate response to the risk created by COVID-19; and

•  Whether the policy is developed having regard to the circumstances at the workplace, including the fact that some workers cannot work from home and must come into contact with other workers whilst at work. 23

[35] The Respondent outlined that the Policy was implemented after consultation with the Respondent’s workers and the Community and Public Sector Union. It outlined that it had provided workers with a draft policy for comment and feedback on prior to implementation. Further, it argued the Policy is consistent with its Occupational Health and Safety Management System (OHSMS) OHS Risk Management procedure, which outlines the process to identify, assess, control and monitor OHS risks. The Respondent further submitted that the Policy was a necessary step the Respondent was required to take in order to meet its OHS obligations and to protect people from transmission of COVD-19, both with regards to infection and serious illness. The Respondent submitted the Policy supported the relevant public health directions and orders, while also referring to and giving effect to its obligations under the Occupational Health and Safety Act 2004 (Vic).

[36] The Respondent submitted that Professor Catford's advice evidences a logical and understandable basis for the policy, and also pointed to a variety of other control measures that were in place at the PYJP, which it argued confirmed the Policy’s bona-fides, such as:

•  the imposition of quarantine periods for all new arrivals at the precinct that required every young person to be quarantined alone for 14 days;

•  the introduction of mandatory RATs as a condition of entry for all staff and visitors;

•  the ceasing for a period of all non-urgent personal visits, requiring all visits between children and their parents to be virtual;

•  not allowing unvaccinated or under-vaccinated family members of young people to attend the precinct; and

•  the imposition of strict PPE requirements, density restrictions and mandatory isolation of positive cases and close contacts.

[37] The Respondent submitted the Policy was designed to address the inherent demands of the PYJP environment and was necessary to both ensure a safe level of staffing and maintain the operation of the precinct. It asserted the Policy was created in conjunction with human rights assessments that were conducted so as to ensure that any measures that limited the human rights of young people, such as the right to humane treatment when deprived of liberty, were justified and kept to a minimum. Further, the Respondent submitted the Policy was created to address the particular circumstances of prisons and youth justice centres, including the fact that it cannot force prisoners and youth detainees to be vaccinated.

[38] The evidence before me indicates that the Policy was developed taking into account advice from Professor Catford. I have noted that Professor Catford has been a Professor of Public Health for over thirty years and has held senior academic, government and health service management positions in Australia and the United Kingdom, and positions with the World Health Organisation. In particular, Professor Catford is a former Chief Health/Medical Officer and Executive Director of Public Health for the State Government of Victoria and a former Dean of the Faculty of Health, Medicine, Nursing and Behavioural Sciences at Deakin University. Further, in March 2020, Professor Catford accepted the role as Public Health Specialist Advisor, COVID-19 Pandemic Response for the Victorian Government and is currently the Principal Health Adviser to the Respondent with special focus on Corrections, Youth Justice, Courts and Quarantine.

[39] Professor Catford has characterised a range of areas within custodial facilities as ‘High-Risk Areas’ 24 and has provided the Respondent with advice in relation to COVID-19 vaccinations in High-Risk settings. I have noted that the Policy supplemented a range of other control measures in place at the PYJP designed to reduce and, where possible, eliminate the risk of COVID-19 transmission. I also note that there was unchallenged evidence from Professor Catford that staff in High-Risk settings who are not ‘up to date’ with their COVID vaccinations (i.e., have received three or more vaccinations) are:

•  more likely to get infected with SARS-Cov-2 and contract COVID-19 disease (both acute COVID and long COVID);

•  if infected, more likely to be absent from work due to isolation requirements and continuing sickness;

•  if infected, more likely to infect other staff and prisoners resulting in potential outbreaks and increased sickness absence of staff;

•  if infected, more likely to expose colleagues, thereby requiring them (as close contacts) to quarantine and be absent from work;

[40] Further, I have noted the unchallenged evidence from Professor Catford that ‘up to date’ vaccination is considered to reduce the likelihood of becoming infected in the first place but even if infection occurs, it will reduce the length and intensity of the infectious period. Professor Catford also stated that the protection of a third dose of an approved COVID-19 vaccine will provide benefits in terms of reducing the risk of infection and serious health consequences (both short and long term) for:

•  the individual staff member of the Respondent;

•  their immediate family and housemates;

•  other colleagues in their work group;

•  the young people in detention, some of whom may be at heightened risk due to underlying health conditions, Aboriginal and Torres Strait Islander status and other factors;

•  members of the public they come into contact with (who may be very vulnerable); and

•  the wider community.

[41] Professor Catford also gave unchallenged evidence that:

•  Staff who are not ‘up to date’ with their COVID vaccinations are at increased risk of being infected, and should they become infected, of more serious health impacts and of transmitting COVID-19;

•  The risk of being infected is significantly increased when staff are working in High-Risk areas;

•  Someone who has a medical exemption from being vaccinated is likely to be more vulnerable to infection and serious disease than someone who is vaccinated;

•  The biggest risk to the young people in custody of contracting COVID-19 was, and is, from staff who may be infected;

•  The Respondent is not able to require young people in custody to be vaccinated as a condition of entry; and

•  Young people are generally less compliant with measures such as social distancing, mask-wearing and sanitising surfaces.

[42] I accept that Professor Catford’s advice was informed by the imperative of ensuring safe levels of staffing at the PYJP and human rights considerations, including the desire to limit the need for the locking down of detainees due to a breakout of COVID-19.

[43] Having regard to the material before me, there is no basis to challenge the evidence of Professor Catford and indeed, the reasoning behind and content of the Policy was ultimately not subjected to challenge by Mr Necovski. I am satisfied that the Policy was informed by Professor Catford’s advice that staff who are not ‘up to date’ with their COVID vaccinations should not be permitted to attend High-Risk areas in custodial environments for their own protection and that of others.

[44] I observe that in Roman v Mercy Hospitals Victoria Ltd 25 (Roman), Deputy President Colman discussed the concept of lawful and reasonable directions, as follows:

“Implied into the contract of employment is an obligation of an employee to obey the employer’s lawful and reasonable directions (Bayley v Osborne (1984) 4 FCR 141 at 145). The requirement that the direction be lawful has two dimensions. One is that the employer cannot demand that an employee act unlawfully. The other is that the direction must be within the scope of the contract of employment (see R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621-2 per, Dixon J). The latter reflects the ‘general rule ... that a contract by which a person is employed in a specific character is to be construed as obliging him to render, not indeed all service that may be thought reasonable to render, but such service only as properly appertains to that character’ (see Commissioner for Government Transport v Royall (1966) 116 CLR 314 at 322, per Kitto J).” 26

[45] In Roman, the Deputy President identified two dimensions required in order for a direction to be lawful. As to them, I am firstly satisfied that the direction given by the Respondent did not require Mr Necovski to act unlawfully. Secondly, I am satisfied the Respondent issued a direction that was within the scope of Mr Necovski’s contract of employment. The Respondent imposed a requirement related to workplace health and safety and more specifically, to Mr Necovski’s job because his compliance or non-compliance with the Policy bore upon his capacity to perform his duties as a YJW. I agree with the view the Deputy President expressed in Roman that a direction to an employee to do something that is a necessary condition for a state of capacity to do their job is a lawful direction. 27 I further observe there was consultation with health and safety representatives and employees regarding the proposal to introduce the Policy and that Frequently Asked Questions (FAQ) were provided, along with the opportunity to provide feedback in circumstances where conditions were continually evolving and there were external factors at play in the form of the imposition of the Directions.

[46] Turning then to the question of whether the direction given by the Respondent in applying the Policy was reasonable, it is useful to refer to the decision of the Full Bench in CFMMEU & Matthew Howard v Mt Arthur Coal Ltd T/A Mt Arthur Coal (Mt Arthur Coal) 28 in which it was held:

“…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.” 29

[47] I am satisfied the Policy was reasonable. I have noted the Respondent consulted with health and safety representatives and requested employee feedback before finalising the policy. 30 I have had regard to other considerations said by the Full Bench in Mt Arthur Coal to weigh in favour of a finding of reasonableness,31 and note that in this matter:

•  The Policy is directed at ensuring the health and safety of workers of the Respondent at the PYJP;

•  Having regard to the uncontested evidence of Professor Catford, it has a logical and understandable basis;

•  It is a reasonably proportionate response to risks created by COVID-19 in a custodial setting;

•  It was developed having regard to the circumstances at PYJP, including the fact that YJWs cannot work from home and will come into contact with other workers and young detainees whilst at work;

•  The timing for the commencement of the Policy was determined by reference to circumstances pertaining to Victoria at the relevant time (i.e., the commencement of the Directions);

•  It was only implemented after the Respondent had previously engaged Professor Catford to assist with the implementation of COVID-19 vaccination for staff and he had presented 4 specific information webinars to staff regarding vaccination.

[48] The Policy imposed new regulatory requirements for Mr Necovski’s role and the Policy also addressed the additional obligations on the Respondent to provide a safe place not just for YJWs, but also for the youth in their care.

[49] In the particular circumstances of this case, I am satisfied the Policy is lawful and reasonable.

[50] I am also satisfied, having regard to the nature of his role and its duties, that Mr Necovski could not perform the inherent requirements of his role as a YJW other than by attending the PYJP. I am satisfied Mr Necovski could not comply with the vaccination requirements in the Policy at the time of his dismissal and therefore, could not attend the PYJP. It is well established that when an employer relies upon an employee’s incapacity to perform the inherent requirements of their position to assert there is a valid reason for a dismissal, it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must be considered. 32 Mr Necovski had an entirely understandable basis for not getting fully vaccinated. This, however, had the inevitable consequence of rendering him unable to perform his job. As Mr Necovski did not and could not become vaccinated and therefore could not comply with the Policy, he was unable to perform the job he was employed by the Respondent to do. Having regard to these circumstances, I am satisfied that the Respondent had a valid reason for dismissing Mr Necovski on 2 June 2022 that was related to his capacity.

Notification of the valid reason – Opportunity to respond to any reason related to capacity or conduct – ss.387 (b) and (c)

[51] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made, 33 in explicit terms,34 and in plain and clear terms.35 In Crozier v Palazzo Corporation Pty Ltd36 a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

[52] As early as 8 October 2021, the Respondent sent information to all employees which included its draft mandatory vaccination policy and an FAQ document. The FAQ document addressed Mr Necovski’s eventual circumstances in the following way:

“What if I have a medical condition that prevents me from receiving the vaccine?

Vaccination against COVID-19 is an inherent requirement of your role in order for you to work safely by not exposing yourself, other employees, prisoners and young people, or members of the community to the risk of COVID-19.

If you cannot have the COVID-19 vaccination because that you have an acute medical illness or contraindications to all available vaccines as determined by the Australian Technical Advisory Group on Immunisation (ATAGI) you must advise your manager as soon possible and provide appropriate medical evidence from an authorised medical practitioner.

The department may request an independent medical assessment.

If the medical condition means that you are unable to have the vaccination at all, the department will consider reasonable adjustments or suitable alternative duties where available. However, if reasonable adjustments or suitable alternative duties are not available, the department may be required to consider the termination of your employment.”

[53] Mr Necovski agreed that an email sent to him on 11 October 2021 (answering his enquiry as to what would happen if he did not get vaccinated) included the attachment entitled “COVID-19 Vaccination Policy FAQs – 08.10.21” which had in turn outlined that a consequence of non-compliance with the Policy may be termination of employment. 37

[54] The Respondent sent Mr Necovski a ‘show cause’ letter dated 5 January 2022.

“Proposed termination of employment - inability to perform the inherent requirements of your role  

Because you have not confirmed that you have received your second dose of a COVID-19 vaccination, you are unable to attend Parkville Youth Justice Precinct and perform the duties and responsibilities for which you are employed. The requirement for employees to be COVID-19 vaccinated is a lawful and reasonable direction and an inherent requirement of your role. The department is proposing to terminate your employment because you cannot fulfil the inherent requirements of your role.

Opportunity to respond to the proposed termination of employment 

The purpose of this correspondence is to provide you with an opportunity to respond to the proposed termination of your employment…” 38

[55] Mr Necovski responded on 10 February 2022 by providing a COVID-19 digital certificate stating he had a medical contraindication to COVID-19 vaccines until 28 February 2022. On 11 January 2022, 8 February 2022, 29 March 2022 and 31 March 2022, 39 the Respondent again wrote to Mr Necovski stating that it would consider terminating his employment if he did not provide evidence of having been vaccinated against COVID-19. The Respondent’s correspondence repeatedly stated, “the requirement for employees to be COVID-19 vaccinated is a lawful and reasonable direction and an inherent requirement of your role.” On 4 April 2022, Mr Necovski responded by providing a COVID-19 digital certificate stating he had a medical contraindication to COVID-19 vaccines until 3 August 2022.

[56] On 5 April 2022, the Respondent sent a request for further medical evidence with a requirement that there be a response by 19 April 2022. This correspondence was referred to above at [8] and of significance was the caution:

“If you do not respond within 14 days from the date of this letter or the response you or your doctor provides does not materially alter the department’s view about your capacity to fulfil the inherent requirements of your role, I intend to advise the Secretary to consider termination of your employment.”

[57] The Respondent formed the view that the response provided by Mr Necovski on 19 April 2022 provided no medical reason as to why he was unable to receive the second vaccine and that it remained unclear as to when he would be in a position to resume his duties as a YJW. This prompted the reply email dated 19 April 2022 referred to above at [10], which stated that the information provided by Mr Necovski had not materially altered the Respondent’s understanding of his ability to perform the inherent requirements of his role. Mr Necovski was provided with a ‘final opportunity’ to provide evidence by close of business Friday 29 April 2022 of either receipt of a second dose of an available COVID19 vaccine or a vaccination booking. This email also concluded with the following:

“If you do not provide evidence that you have received a second dose of an available COVID-19 vaccine, or evidence that you have a vaccination booking by close of business Friday 29 April 2022, the Secretary will be advised to consider termination of your employment.” 40

[58] There was thereafter the further correspondence sent by Mr Necovski dated 26, 27 and 28 April 2022, which was met with a reply from the Respondent advising that the information provided had not materially altered its understanding of Mr Necovski’s ability to perform the inherent requirements of his role, including compliance with the Respondent’s vaccination policy. Nor did Mr Necovski’s further correspondence change the recommendation that his employment be terminated.

[59] While Mr Necovski subsequently emailed the Respondent on 4 May 2022 to advise that he had secured an appointment with Professor Visvanathan on 10 May 2022 and would be in a position to provide an “accurate indication” as to his future vaccination status “shortly thereafter”, there was no further correspondence between the parties until the first dismissal letter dated 30 May 2022 was sent to Mr Necovski.

[60] Having regard to the circumstances of this case, I am satisfied Mr Necovski was on notice of the prospect of and reasons for his dismissal and had been provided with opportunities to respond prior to the decision to terminate his employment being made.

Unreasonable refusal by the employer to allow a support person – s.387(d)

[61] This consideration is not a factor in this application. No refusal been alleged.

Warnings regarding unsatisfactory performance – s.387(e)

[62] This consideration is not a factor in this application.

Impact of the size of the employer on procedures followed - s.387(f) and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[63] I do not consider the size of the Respondent, an employer with over 9000 employees, to have been a relevant factor in this case on the procedures followed (s.387(f)). The Respondent has a human resources team and therefore, s.387(g) of the Act is not a relevant factor in this case.

Other relevant matters – s.387(h)

[64] Section 387(h) of the Act requires the Commission to take into account any other matters it considers relevant.

[65] Mr Necovski was employed by the Respondent for just over two years. I have noted there were no expressed performance issues or disciplinary issues and that Mr Necovski was provided with 2 weeks' notice upon the termination of his employment.

[66] I have also noted that Mr Necovski was an ‘excepted person’ under the Specified Workers Order and his not being vaccinated was not through an exercise of choice. I have weighed the fact that Mr Necovski was following medical advice to the effect that it was not safe for him to get vaccinated against the evidence of Professor Catford regarding the risk of permitting unvaccinated YJW’s to work onsite. I am satisfied Mr Necovski found himself in circumstances not of his making.

[67] Mr Necovski ultimately advanced three points in support of his contention that the dismissal was harsh, unjust or unreasonable:

•  The Respondent’s conclusion that there was no medical evidence for him not taking a vaccine rendered the dismissal unreasonable because it failed to take into the evidence he produced between 26-28 April 2022 and particularly, on 30 May 2022 from Professor Visvanathan;

•  There was a failure by the Respondent to engage with his material or confer and discuss, which resulted in him being given “the anti-vaccination process in circumstances where he clearly did not fall into that category”; 41

•  There was a failure by the Respondent to adopt a serious approach to redeployment pending a vaccination becoming available that he could take, it having acted in breach of its own policy by not considering ‘reasonable adjustments’ or ‘alternative duties.’

[68] As to the first point, the 2 June 2022 Termination Letter stated:

“The department requested you seek medical information from your doctor as to the reasons for the extended period before you could receive the required vaccinations. No response with the requested medical information was received.” 42

[69] This was not accurate because as outlined above at [19] and [21], Mr Necovski submitted letters (dated 19 May 2020 and 31 May 2022 respectively) from Professor Visvanathan on 30 May 2022 and 31 May 2022, which outlined:

•  Mr Necovski experienced a severe, documented inflammatory reaction to his first Pfizer vaccine which led to severe myalgia, arthraligia and serositis and was accompanied by significantly raised inflammatory markers in the peripheral blood;

•  It was deemed unsafe for Mr Necovski to have any further doses of the recommended vaccines; and

•  It was recommended that Mr Necovski not receive any further booster doses of either COVID vaccines that were available.

[70] As to the second point, there is some force to Mr Necovski’s argument. An air of frustration began to lace the Respondent’s correspondence and approach as time went on, with the Respondent forming the view that Mr Necovski was seeking to delay the process. The Respondent responded with haste to a number of emails from Mr Necovski using correspondence that had the flavour of ‘pro forma’ about it. On some occasions, the Respondent’s reply correspondence did not meaningfully engage with Mr Necovski’s particular circumstances. Additionally, upon receiving Mr Necovski’s email dated 19 April 2022 to which the letter of Dr Donald dated 13 April 2022 was attached, the Respondent appeared to form the view that Mr Necovski was exercising a choice not to get vaccinated. When it later became apparent that Mr Necovski was consulting a specialist and seeking information regarding Novavax, the Respondent’s complaint was that Mr Necovski had been taking his time to do so. For the Respondent, it would seem that the passage of time became a diversion from a focus on Mr Necovski’s particular circumstances.

[71] However, I do not consider these first and second points from Mr Necovski ultimately weigh in favour of a finding that his dismissal was harsh, unjust or unreasonable. It is true that the Respondent took the position that Mr Necovski had had a significant opportunity to meet the requirements of the Policy and numerous opportunities to get fully vaccinated. It is also apparent that the Respondent decided to dismiss Mr Necovski before Mr Necovski had provided advice as to the outcome of his consultation with Professor Visvanathan. However, the Professor’s advice did not swing matters in Mr Necovski’s favour. The initial advice from Professor Visvanathan was that it was unsafe for Mr Necovski to have any further doses of the recommended vaccines until 26 November 2022. While debunking the notions that Mr Necovski was simply electing not to get fully vaccinated or was somehow relying on his contraction of COVID-19 to delay vaccination, the Professor’s advice meant that Mr Necovski was going to continue to be unable to comply with the Policy and perform the job he was employed by the Respondent to do regardless of ATAGI Guidelines and any exercise of choice on the question of vaccination. I observe that the Respondent’s view to this effect has been subsequently further confirmed, with Professor Visvanathan extending Mr Necovski’s medical exemption from further vaccination to 1 February 2023. 43

[72] In relation to the ‘redeployment’ ground, Mr Necovski submitted:

•  At all material times he was threatened with termination for not complying with the policy and there was never any explanation or exploration of alternate roles; 

•  The Respondent did not properly look at the many vacancies that it likely had, be it internal, advertised or ones that it could have made;

•  He was not telephoned and asked about his skills and nor was he asked for his Curriculum Vitae (CV); and

•  He could have written case reports and/or performed data analysis from home in circumstances where Professor Catford’s evidence was that there was essentially no risk in working from home while waiting to find a vaccine that he was able to take.

[73] The Policy provides that the Respondent’s Managers must “consider reasonable adjustments or alternative duties where available for employees who cannot be vaccinated because they have an acute medical illness or contraindications to available vaccines as determined by ATAGI, in consultation with People and Workplace Services;” 44

[74] In a scenario where an employee has a medical condition that prevents them from receiving a vaccine, the COVID-19 vaccination policy FAQ states:

“If the medical condition means that an employee is unable to have the vaccination at all, the Respondent will consider reasonable adjustments or suitable alternative duties where available. However, if reasonable adjustments or suitable alternative duties are not available your ongoing employment may be impacted” 45

[75] The Respondent accepted that Mr Necovski was an “excepted person” but argued that the Policy did not promise redeployment in such cases, only alternative duties or reasonable adjustment to current duties. The Respondent submitted that suitable alternative duties is being given some different work to do, not being given a completely new role or redeployed to a completely new role. The Respondent said there was no obligation to redeploy and that Mr Necovski was dismissed following its determination that there were no reasonable adjustments that could be made or suitable alternative duties available.

[76] It would appear that Mr Necovski had made enquiries regarding his employment options as early as 24 February 2022, when he sent an email to Ms Maria Chong of the Respondent asking whether there was any update on where he stood on “any employment in any role.” 46 On 27 April 2022, Mr Necovski addressed the subject again in email correspondence, stating:

“…In the interim and as of mid-February 2022 since my recovery I have been happy to undertake alternative duties, however I did not receive a response to my previous query dated 24 February. If available please let me know as I have every intention to return to work in my full capacity once I can be assured that I will not suffer the same or worse reaction to further vaccination…” 47

[77] Ms Huffer stated that if an employee had a medical contraindication, the Policy was applied by considering whether reasonable adjustments could be made to their current role, or whether there were some alternative duties, as opposed to a consideration of whether there was an alternative role. 48

[78] As to what consideration the Respondent gave to alternative duties, no specific evidence was provided by the Respondent regarding consultation with Mr Necovski. Nor was there specific evidence as to how the Respondent determined that there were no suitable alternative duties. Further, no description of internal searches of positions available within the Respondent’s portfolio was presented and when asked whether the proposition of any alternative roles was ever mentioned to Mr Necovski, Ms Huffer replied, “I don’t believe so.” 49

[79] Ms Huffer stated:

“Due to the nature of the Applicant’s role as a frontline worker, there were no reasonable adjustments that could be made to the role, and Youth Justice attested that no alternative duties were available that the Applicant was qualified to perform and that did not require him to attend the workplace. The Applicant is qualified for “hands on” roles within Youth Justice, rather than management or administration, and all of these roles require a person to attend the workplace to perform them…” 50 (my emphasis)

[80] No person from Youth Justice gave evidence as to how or when alternative roles were considered for Mr Necovski. Under re-examination, Ms Huffer gave the following explanation of processes within the Respondent:

“Okay, so the show-cause brief does not go to the Secretary, only the proposal for termination goes to the Secretary. So, the show-cause brief would have been signed-off by the relevant Deputy Secretary or Commissioner and would have gone through the Director of Employee and Workplace Relations and various other delegates. But the termination brief goes to the Secretary and she would have been advised that Youth Justice had attested that there were no suitable alternative duties or reasonable adjustments that could be made to accommodate Mr Necovski.” 51

[81] Ms Huffer was also asked whether the Respondent engaged with Mr Necovski to assess whether or not he had any alternate skills to see, for instance, whether he might have been able to do data entry or writing case notes. Her reply was:

“Not that I’m aware of.” 52

[82] Further, the following was put to Ms Huffer:

“… the applicant says that you didn't engage specifically.  Also, the Department didn't engage physically.  It never picked up a telephone, it never sought the submission of a new CV, it never invited the applicant – it may have been the case that the applicant applied for a variety of roles within the Department and was not suitable for all of them, but we say that that opportunity was not provided?---I would accept that, yes.  If that's what you're saying, I would agree with that.”

[83] The Policy specifically states that Managers must consider reasonable adjustments or alternative duties where available for employees such as Mr Necovski, who could not be vaccinated because of a contraindication to the available vaccines. I have not been persuaded that the Respondent gave Mr Necovski’s case specific consideration. There was no documentary evidence as to whether there was any consideration of other duties that might have been suitable for Mr Necovski. On the evidence presented, I cannot conclude that an effort contemplated by the Policy was made to consider reasonable adjustments or suitable alternative duties for Mr Necovski. The fact that neither of the letters of dismissal made any reference to these considerations serves to confirm my conclusion. That Mr Necovski was dismissed in circumstances where this obligation under the Policy was not fulfilled is a relevant matter and a reason to conclude that the dismissal was unfair, because Mr Necovski was deprived of investigations being undertaken on his behalf.

[84] On the question of redeployment more generally, the Respondent submitted that it is not reasonable to expect an employer in the long-term 53 to redeploy to a whole new job a person who was not able to perform the inherent requirements of the job that they were employed to perform. In specific reference to Mr Necovski, it was also stated that any jobs he was likely to be capable of performing required vaccination. As to these matters, while I accept there was not an absolute obligation to redeploy Mr Necovski, it is reasonable to have expected the Respondent to at least have considered the prospect through some sort of a process.

[85] Having considered the various matters arising in relation to s.387(h) of the Act, I am satisfied they weigh in favour of a finding that Mr Stock’s dismissal was unfair.

Conclusion

[86] I have made findings in relation to each matter specified in s.387 of the Act 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. 54 I am satisfied there was a valid reason for the dismissal but have concluded that the dismissal of Mr Necovski was unreasonable because the Respondent has not persuaded me that it considered reasonable adjustments or suitable alternative duties for Mr Necovski in accordance with the Policy. Nor have I been satisfied that specific consideration was given to the redeployment of Mr Necovski. Accordingly, I find that Mr Necovski’s dismissal was unfair.

Remedy

[87] In the circumstances where I have found Mr Necovski was protected from unfair dismissal at the time of being dismissed and that he has been unfairly dismissed, s.390 of the Act prescribes that a remedy is available. Accordingly, I am required to determine whether to order the reinstatement of Mr Necovski or, if I am satisfied that reinstatement is inappropriate, an order for compensation if I am satisfied that such an order is appropriate in all the circumstances. 55

[88] Mr Necovski submitted reinstatement is an eminently sensible and realistic solution because he had a very good work record, enjoyed his work, had a good relationship with his co-workers and employer and there is no risk of a breakdown in the relationship. As to his vaccination status, Mr Necovski said he would continue consulting with his medical specialist to see whether a different vaccination might be available in the near or the distant future.  He submitted there is “a very real chance” that he will be fully vaccinated “at some point in the future.”

[89] The Respondent submitted reinstatement would not be the appropriate remedy because it cannot, on the basis of what it submitted is a lawful and reasonable policy based on clear expert advice, safely allow Mr Necovski to return to his role, and there are no other appropriate roles available that he is able to perform, while unvaccinated. The Respondent submitted that in circumstances where the Policy remains in place, the case against reinstatement is compelling.

[90] Having regard to these submissions and the circumstances of this case, I am satisfied it is inappropriate to order the reinstatement of Mr Necovski. Firstly, there is advice from Professor Visvanathan dated 1 August 2022 before the Commission outlining that Professor Visvanathan has extended Mr Necovski’s exemption from vaccination for a further six months (i.e. until 1 February 2023). 56 There is no indication that the underlying reasons behind this will change and therefore I cannot be satisfied, given the fact that the Policy remains in place, Mr Necovski will again be able to perform the inherent requirements of the job that he was originally employed to perform. Therefore, I am not satisfied it is possible to reappoint Mr Necovski to the position of a YJW.57

[91] Nor am I satisfied that it would be possible to appoint Mr Necovski to another position on terms and conditions no less favourable than those on which he was employed immediately prior to his dismissal. 58 I have considered Ms Huffer’s evidence on what was occurring within Corrections Victoria, what had been reported to her about Youth Justice and the broad circumstances in which the Respondent found itself. While a general commentary, Ms Huffer gave the following evidence in response to a question about the extent to which the Respondent considered whether Mr Necovski could have performed work from home duties as follows:

“So, the decision around whether or not people could perform alternative duties or have reasonable adjustments made to their role was primarily made by Youth Justice. But I can give some general comments about that. First of all, in the case of all of our custodial facilities, including Corrections Victoria’s prisons and Youth Justice facilities, the roles of the Youth Justice workers and prison officers are frontline worker roles, and they involve one-on-one engagement in the case of young people. In the case of Youth Justice working with the young people, there’s supervision, looking after their safety and wellbeing. That doesn’t have a significant number of elements in it that would allow for a reasonable adjustment to be made for any of that work to be performed from home. So, given that there are a reasonable number of people within those facilities who had exemptions of some description, there would not have been enough work to provide some people with alternative duties or reasonable adjustments.” 59

[92] When asked what specific analysis was undertaken for employees that presented with medical contraindications or objections, Ms Huffer replied:

“So, more broadly, it was considered that they were frontline workers, but it was also considered whether their exemptions were temporary and whether there was work available for them to undertake. In some cases, so for example, I’m not sure about Youth Justice, I don’t believe there was any alternative duties, there certainly was for some people within Corrections Victoria, because there were short term data entry work and various other things like that. But at the same time, my understanding and Youth Justice’s understanding of Mr Necovski’s skills were that his background was face-to-face with youth.” 60

[93] No evidence was put before me suggesting Mr Necovski had transferable qualifications and skills suitable for other ongoing work with the Respondent. Mr Necovski did not, for instance, persuade me that he has qualifications or experience in policy, administration or management. The prospect of temporary data entry only arose in the context of Corrections Victoria. Ultimately, I am not persuaded it would be possible to find a sustainable ongoing position for Mr Necovski while he is only able to perform work outside of the Respondent’s premises.

[94] I must therefore consider whether it is appropriate in all the circumstances to make an order for payment of compensation 61 and if so, what that amount should be.

[95] Taking into account my finding that the dismissal was unfair and the reasons for that conclusion I have outlined above, and since I am satisfied an order for reinstatement is inappropriate, I consider that an order for payment of compensation is appropriate in all the circumstances. I am not persuaded the material before me suggests otherwise. Section 390(3)(b) of the Act is therefore satisfied. Section 392 of the Act sets out the criteria for deciding an amount of compensation. The assessment of compensation I am required to undertake is directed towards the remuneration lost in consequence of Mr Necovski having been unfairly dismissed.

[96] Section 392 provides as follows:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[97] In considering each of the criteria in s.392 of the Act, it is useful to refer to the statement of principles to be applied in the assessment of compensation by the Full Bench of the Commission in Johnson v North West Supermarkets T/A Castlemaine IGA (Johnson): 62

“[41] The well-established approach to the assessment of compensation under s 392 is to apply the ‘Sprigg formula’, derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul Licensed Festival Supermarket. This approach was articulated in the context of the current legislative framework in Bowden v Ottrey Homes Cobram and District Retirement Villages. Under that approach, the first step to be taken in assessing compensation is to consider s.392(2)(c), that is, to determine what the applicant would have received, or would have been likely to receive, if the person had not been dismissed. In Bowden this was described in the following way:

“[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:

‘... we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law.’

[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the ‘anticipated period of employment’...”

[42] The identification of this starting point amount ‘necessarily involves assessments as to future events that will often be problematic,’ but, as the Full Bench observed in McCulloch v Calvary Health Care Adelaide, ‘while the task of determining an anticipated period of employment can be difficult, it must be done.’

[43] Once this first step has been undertaken, various adjustments are made in accordance with s.392 and the formula for matters including monies earned since dismissal, contingencies, any reduction on account of the employee’s misconduct and the application of the cap of six months’ pay. This approach is however subject to the overarching requirement to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case.” 63

(my emphasis, references omitted)

[98] In Balaclava Pastoral Co Pty Ltd t/a Australian Hotel Cowra v Darren Nurcombe, 64 the Full Bench stated that in quantifying compensation, it is necessary to set out with some precision the way in which the various matters required to be taken into account under s.392(2) (and s.392(3) if relevant), and the steps in the Sprigg formula, have been assessed and quantified. The Full Bench also proffered that the way in which a final compensation amount has been arrived at should be readily apparent and explicable from the reasons of the decision-maker.

Remuneration that would have been received if the dismissal had not occurred – s.392(2)(c)

[99] Mr Necovski argued that, if alternative duties had been found for him, he would have been able to perform them from 22 February 2022, but relevantly for the purposes of s.392(2)(c), that he would have been able to perform them indefinitely from 9 June 2022 onwards. Mr Necovski outlined that his income varied according to the number of weekends and holidays he worked and that while his base salary was $56,566, his actual income, including penalty rates, for the 2020/2021 financial year, was $70,487.

[100] The Respondent submitted that it is likely that if the Applicant had remained employed, his remuneration would have remained at nothing as he was unable to work outside of his home in line with the mandatory vaccination policy. The Respondent argued that Mr Necovski would have remained on a period of unpaid leave.

[101] In the alternative, the Respondent submitted that if it had been able to source alternative duties for the Applicant (which the Respondent does not admit was possible), any such duties would likely be temporary and there would be no guarantee they would have lasted from the time of dismissal to the time of decision of the Commission. The Respondent submitted that it is further unlikely that Mr Necovski would have been able to perform any such alternative duties on an ongoing remote basis, as the Respondent requires all its workers to attend the workplace on occasion which requires them to be vaccinated.

[102] As was outlined by the Full Bench in Johnson, the identification of the starting point amount in s.392(2)(c) “necessarily involves assessments as to future events that will often be problematic”. 65 It has previously been held that an assessment of the likely period of employment is not to be conducted in a vacuum but rather against the backdrop of the circumstances of the dismissal and the reasons for concluding that the dismissal was unfair.66

[103] I am satisfied that even if the Applicant had remained employed by the Respondent, he would not have been able to perform the duties required of his role, due to the Respondent's mandatory vaccination policy and evidence put forward by the Applicant indicating he remains unable to be vaccinated against COVID-19 for the foreseeable future. 67

[104] I have outlined evidence of the viability of a YJW being assigned reasonable adjustments or suitable alternative duties above at [91]–[92]. Ms Huffer could not give an account of whether the proposition of any alternative roles, was ever mentioned to Mr Necovski. Nor was she aware of the Respondent having engaged with Mr Necovski to assess whether or not he had any alternate skills, for instance, to see that he might have been able to do data entry or writing case notes. However, her evidence more generally was:

“There was a lot of work done within Youth Justice in general, to consider whether it was reasonable to be able to provide a reasonable adjustment for alternative duties. Given the number of staff that they had with exemptions, that was not going to be possible to do that for everyone.” 68

[105] Ms Huffer was asked how many staff there were with exemptions, and she replied:

“I’m not sure exactly. I would say 20 to 30 perhaps. But that’s not accurate...” 69

[106] Noting these matters, my assessment is that Mr Necovski would have remained in employment with the Respondent for a further period of no more than two weeks. I consider this would have provided adequate time for meaningful dialogue and an exchange of information regarding Mr Necovski’s skill set to have occurred, together with dialogue as to whether there were either any other suitable roles or reasonable adjustments or alternative duties available to him. While, as indicated above at [93], I am not persuaded anything would have materialised, I consider Mr Necovski was entitled to such a process and have noted that the Respondent had committed to this in the Policy. During this two-week period, I consider no more than the base salary would have applied because I consider it highly unlikely that the dialogue would have occurred other than during normal business hours. Based on the Mr Necovski’s base salary ($56,566), the gross remuneration he would have received for such a 2-week period would have been $2,175.61 (excluding superannuation)). This is the starting point.

Remuneration earned – s.392(2)(e) and income reasonably likely to be earned – s.392(2)(f) & (g)

[107] Remuneration earned from the date of dismissal to the date of any compensation order is required to be taken into account under s.392(2)(e) of the Act. Remuneration reasonably likely to be earned from the date of any compensation order to the date the compensation is paid is to be taken into account under s.392(2)(f) of the Act.

[108] It is not disputed that Mr Necovski has not earned any income since the dismissal. Mr Necovski received a lump sum Work Cover payment of $15,186.30 on 31 August 2022 but I have not taken this into account because this payment was in respect of the period following his adverse reaction to the first vaccine (21 October 2021 to 23 February 2022).

Viability – s.392(2)(a)

[109] The parties agree and I am satisfied that an order by the Commission in relation to Mr Necovski’s employment has no effect on the viability of the Respondent's enterprise.

Mitigation efforts – s.392(2)(d)

[110] Mr Necovski stated that he applied for many jobs following his dismissal. He gave evidence that he first sought to apply for ‘better jobs’ that would be considered a ‘step up’ rather than the same and has advised that he had attended interviews. Having been unsuccessful, Mr Necovski applied for other jobs that were ‘not as good’ as his former role with the Respondent.

[111] Mr Necovski applied for, and ultimately accepted on 24 July 2022, a role he had formerly held at Jigsaw Blue, a provider of Disability Support Services. This was 6.5 weeks after the termination of his employment. At the time of the hearing, Mr Necovski was still waiting for the ‘NDIS Worker Screening Check’ process to be completed so he could recommence paid employment. He does not appear to have otherwise sought to mitigate his loss by seeking other employment in the meantime.

[112] The Respondent submitted that Mr Necovski has not made proper attempts to mitigate his loss, both immediately after the termination of his employment and since he has gained casual employment at Jigsaw Blue. The Respondent submitted that it is unreasonable for the Applicant to await commencement at Jigsaw Blue without actively seeking other work.

[113] As held by the Full Bench in McCulloch v Calvary Health Care Adelaide, 70 the reasonableness of an applicant’s efforts taken to mitigate loss depends on the circumstances of the case. The question in applying this factor is whether Mr Necovski has acted reasonably. While I would normally consider a failure to continue to make efforts to mitigate loss to be a matter that weighs against a person seeking compensation,71 in all the circumstances of this case, I do not consider Mr Necovski has acted unreasonably because he pursued various avenues and has been required to continue to seek medical advice regarding his vaccination status. I therefore do not consider any deduction in the amount of compensation to be awarded is warranted.

Length of service – s.392(2)(b) and any other matters – s.392(2)(g)

[114] Mr Necovski was employed by the Respondent for approximately 2 years, from 25 May 2020 to 9 June 2022. It is necessary to take this into account but as it is not an extensive period of time, there will be no material adjustment either way on account of this factor alone.

[115] Whilst Mr Necovski concedes that an order of compensation is in lieu of reinstatement rather than an order to compensate the costs of an Applicant, he nevertheless submitted that he (and his family) have born the entire cost of this proceeding, which has been brought against “a well-resourced” Government department. The Respondent submitted that to the extent Mr Necovski suggests he should be compensated for having borne the cost of the proceedings himself, this is also an irrelevant consideration, as the purpose of compensation concerns salary related matters, not reimbursement of expenses.

[116] As for potential vicissitudes, Mr Necovski submitted that there is a degree of evidence to suggest that he would be promoted (being his substantial overtime work) and no evidence that he would not continue working. These matters are disputed by the Respondent, which outlined that staff are booked for overtime by the rostering office based on their availability and being booked for overtime has nothing to do with assessing a staff member’s ability for other positions, which would require a merit-based process under the Public Administration Act 2004. The Respondent submitted that there was no evidence to suggest Mr Necovski would have been promoted had he kept working and that Mr Necovski would not have been able to perform his duties in other positions in line with the Respondent's mandatory vaccination policy.

[117] That Mr Necovski has borne the costs of this proceeding does not weigh upon the assessment of compensation and I do not consider there is any basis for any deduction for contingencies in this matter. It will be left to the Respondent to deduct taxation required by law.

Misconduct – s.392(3)

[118] As has been admitted by the Respondent, this matter does not relate to any misconduct of Mr Necovski. Therefore, s.392(3) of the Act is not relevant and I will not make any reduction on account of this factor in the proposed compensation.

Compensation cap: s.392(5) & (6) and Instalments: s.393

[119] The amount of compensation proposed must not, and does not exceed the compensation cap and I do not consider that there is any reason for compensation to be made by way of instalments.

Shock, Distress: s.392(4)

[120] While I accept Mr Necovski is aggrieved by the manner of his dismissal, the amount of compensation calculated must not and does not include a component for shock, distress, humiliation or other analogous hurt caused to him as a result.

Conclusion

[121] I am satisfied that Mr Necovski was protected from unfair dismissal, that the dismissal was unfair and that order for compensation is an appropriate remedy in all the circumstances. The overarching requirement in assessing compensation is to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case. 72 In this case, I consider the appropriate amount of compensation to be awarded to Mr Necovski equates to $2,175.61 less taxation as required by law. An order requiring the payment of this amount plus the requisite amount of superannuation within 14 days will be issued with this decision.

DEPUTY PRESIDENT

Appearances:
Charles Pym for Mr N Necovski.
Sarala Fitzgerald for Department of Justice and Community Safety.

Hearing details:
Melbourne.
11 October.
2022.

Final written submissions:
Charles Pym for Mr Necovski on 16 October 2022
K&L Gates for Department of Justice and Community Safety on 20 October 2022

Printed by authority of the Commonwealth Government Printer

<PR748380>

 1   Digital Court Book at page 134.

 2   Ibid.

 3   Digital Court Book at page 174.

 4   Digital Court Book at page 174.

 5   Digital Court Book at page 175.

 6   Digital Court Book at pages 177-179.

 7   Digital Court Book at page 177.

 8   Digital Court Book at page 180.

 9   Digital Court Book at page 429.

 10   Digital Court Book at page 428.

 11   Digital Court Book at page 181.

 12   Digital Court Book at page 430.

 13   Digital Court Book at page 187.

 14   Digital Court Book at page 185.

 15   Digital Court Book at page 184.

 16   Digital Court Book at page 435.

 17   Digital Court Book at page 439.

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

 19   Ibid.

 20   Transcript PN 22-27.

 21   Transcript PN 46.

 22   Transcript PN 871-877.

 23   Relying on CFMMEU & Matthew Howard v Mt Arthur Coal Ltd T/A Mt Arthur Coal [2021] FWCFB 6059.

 24   These comprise isolation, quarantine, protective quarantine, transfer quarantine, transport of confirmed or suspected cases, community facing reception/gate house, visitor management, emergency response and client-facing clinical care.

 25   [2022] FWC 711.

 26   Ibid at [30].

 27   Ibid at [31].

 28   [2021] FWCFB 6059

 29   Ibid at [96].

 30   Digital Court Book at page 346.

 31   [2021] FWCFB at [252].

 32   J Boag and Son Brewing Pty Ltd v Button (2010) 195 IR 292 at 296

 33   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

 34   Previsic v Australian Quarantine Inspection Services (AIRC, Holmes C, 6 October 1998), Dec 907/98 M Print Q3730.

 35   Ibid.

 36   (2000) 98 IR 137, 151.

 37   Transcript at PN299.

 38   Digital Court Book at page 397.

 39   Digital Court Book at pages 401, 406, 409 and 411.

 40   Digital Court Book at page 421.

 41   Transcript PN 53

 42   Digital Court Book at page 189.

 43   Digital Court Book at page 199.

 44   Digital Court Book at page 375.

 45   Digital Court Book at page 379.

 46   Witness Statement of Caitlin Huffer, Attachment CH-15, Digital Court Book at page 407.

 47   Witness Statement of Caitlin Huffer, Attachment CH-22, Digital Court Book at page 424.

 48  Transcript at PN673.

 49   Transcript PN630.

 50   Witness Statement of Caitlin Huffer at paragraph 84, pages 260-261 of the Digital Court Book.

 51   Transcript at PN677.

 52   Transcript at PN637.

 53   Being how it characterised Mr Necovski’s circumstances, on the basis that he had been absent from work from a year at the time of the hearing and appeared likely to continue to be.

 54   ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].

 55   Ibid – s.390(3).

 56   Digital Court Book at page 199.

 57   Fair Work Act 2009, s.391(1)(a).

 58   Fair Work Act 2009, s.391(1)(b).

 59   Transcript at PN634.

 60   Transcript at PN636.

 61   Fair Work Act 2009, s. 390(3)(b).

 62   [2017] FWCFB 4453.

 63   Ibid at [41]-[43].

 64   [2017] FWCFB 429 at [43].

 65   Quoting Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 at [32].

 66   Liu v Xin Jin Shan Chinese Language and Culture School Inc [2021] FWC 479 at [10].

 67   Digital Court Book at page 199.

 68   Transcript at PN638.

 69   Transcript at PN639.

 70   [2015] FWCFB 2267 at [23], citing Biviano v Suji Kim Collection PR915963 at [34].

 71   Ningyun Jessica Zhang v Kevin Australia Pty Ltd [2022] FWC 2928.

 72   McCulloch v Calvary Health Care Adelaide [2015] FWCFB 873 at [29].