[2022] FWC 809
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394—Unfair dismissal

Karl Byrne
v
Regal Cream Products Pty Ltd
(U2021/10152)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 8 APRIL 2022

Application for an unfair dismissal remedy – employment subject to Directions of Victorian Acting Chief Health Officer – Respondent required to comply with the Directions to collect, record and hold vaccination information and not allow unvaccinated workers to attend the workplace – Applicant terminated on the basis that he was unable to meet requirements of his contracted position – valid reason for termination of employment – Dismissal not unfair – observation on efforts to mitigate loss.

[1] Mr Karl Byrne has made an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to this application is Regal Cream Products Pty Ltd, which trades as Bulla Dairy Foods (Bulla).

[2] The matter proceeded to a hearing conducted via Microsoft Teams on 23 February 2022 and Bulla sought permission to be legally represented. Having weighed the circumstances and considerations in s.596 of the Act, I granted Bulla permission to be represented by Mr David Sztrajt of HR Legal. During the course of the hearing, Mr Byrne gave evidence as did Ms Chiara O’Brien, Bulla’s People Operations Manager and Mr Zeinoon Raydan, Site Lead for Bulla’s Mulgrave facility.

BACKGROUND

[3] Mr Byrne began working for Bulla on 4 September 2017 through an employment agency before commencing full time employment on 15 July 2019. At the time of the dismissal on 29 October 2021, Mr Byrne was an onsite Multi Skilled Operator at Bulla’s Mulgrave facility.

[4] On 1 October 2021, the Victorian Government announced that specified Authorised Workers were required to receive their first dose of COVID-19 vaccine by 15 October 2021.

[5] Bulla sent an email to all workers including Mr Byrne on 4 October 2021, which outlined, inter alia:

● “all Victorian Bulla employees are Authorised Workers, and that this requirement to be vaccinated applies to all Bulla sites”;

● “The Victorian government has stated that you must have had at least one dose of the COVID-19 vaccine in order to perform duties at an Authorised workplace by 15th October 2021”; and

[6] On 7 October 2021, the Acting Victorian Chief Health Officer issued the COVID-19 Mandatory Vaccination (Workers) Directions 1 under s.200(1)(d) of the Public Health and Wellbeing Act 2008 (Vic). These imposed obligations on employers of certain identified workers (including manufacturing workers working at or in connection with a premises used for the production or processing of food) to:

[7] The COVID-19 Mandatory Vaccination (Workers) Directions commenced at 11.59pm on 7 October 2021 and were updated from time to time, although the vaccine requirements for manufacturing workers remained the same. At the time of the termination of Mr Byrne’s employment on 29 October 2021, the COVID-19 Mandatory Vaccination (Workers) Directions (No 5) applied. 2 References to “the Directions” hereafter will be to whichever of these two versions, and any of the intervening versions, was applicable at the material time.

[8] On 8 October 2021, an email was sent to all staff by Bulla advising them of the Directions and containing Bulla’s summary of requirements imposed by the Directions that would apply on and from 15 October 2021. In particular, Bulla stated that from 15 October 2021:

“…Bulla employees may only attend a Bulla site or travel outside of their home on behalf of Bulla (i.e., to travel or attend any third-party site), if Bulla holds either:

If Bulla does not hold the above information about a Bulla employee, the Direction states that Bulla must treat the Bulla employee as if the employee is unvaccinated and, as such, it will be unlawful for Bulla to allow you to leave your home to carry out any work on behalf of Bulla. Bulla could be fined up to $100,000 for failing to comply with this Direction.”
(Bold font: Bulla’s emphasis. Underlining: my emphasis)

[9] Further, the 8 October 2021 email outlined in answer to the question “What if I refuse to have the vaccination without a medical exemption?”:

[10] On 12 October 2021 Mr Byrne emailed his supervisor stating he would be taking some time off “for stress leave”. There were two pdf attachments to this email. One appeared to comprise both a medical certificate dated 12 October 2021 from Dr Kenneth Loh which stated Mr Byrne was suffering from a medical condition and would be unfit for work for the period 13 to 27 October 2021 inclusive and a Bulla Application for Leave Form. The other pdf attachment had been given the name “Karl Medical Exemptions” and comprised a letter from Dr Loh dated 4 October 2021, which stated:

“Please be advised that, in my opinion, it cannot be guaranteed that Karl will not have a life threatening adverse reaction to the Covid-19 vaccines.”

[11] On 15 October 2021, Mr Raydan sent an email to Mr Byrne stating that he had tried to call him several times that day and attached a “suspension letter” dated 14 October 2021. With the heading “Notification of suspension due to refusal of Covid-19 vaccine”, this letter included the following:

“You have advised the business that you are refusing to be vaccinated for COVID-19, and that you do not hold an exemption that applies under the Direction. We acknowledge receipt of your medical certificate from Dr Loh indicating you are unfit for work from 13 October 2021 to 27 October 2021, though this is not a medical exemption.”

[12] The letter further outlined that Mr Byrne would be paid sick leave for 13 and 14 October 2021 but would be suspended without pay from 15 to 22 October 2021, at which time Bulla would meet with him to further discuss his intentions in relation to receiving a COVID-19 vaccination after that date. Bulla also outlined its intention to act lawfully in accordance with the Direction, and that it might determine that Mr Byrne may be unable to meet the inherent requirements of his contracted position as an authorised worker at Bulla due to remaining unvaccinated.

[13] In response to the “suspension letter”, Mr Byrne emailed Bulla on 21 October 2021, stating as follows:

“Dear Zei,

In response to the notification of suspension (the letter you emailed me sent on the 14th of October 2021), I am aware of the unlawful and temporary directions made by the Victorian Chief Health officer regarding COVID-19 Mandatory Vaccination on the 7th of October 2021.

Addressing your claims, I have not advised the business of my decision not to get the vaccination, I have instead made it clear that access and inquiry into my medical history and vaccination status is unlawful according to federal medical privacy acts.

The company has acknowledged the receipt you have of my medical certificate from Dr Loh indicating I am currently unfit for work due to stress. Bulla have failed to approve the correct leave, and have instead decided to suspend me without pay while on stress leave, which is breaking multiple laws laid out by the Fair Work Act 2009 s.351, 352 and 385, Fair Work Regulations 2009 r.3.01, set by the National Employment Standards (NES), as well as Bullas own company policies.

Many employers are unaware of the risks of coercing people to undergo medical procedures without Valid Consent and the implications of breaching the Privacy Act (Cth) 1988 being Federal Legislation as well as numerous human rights acts.

Please familiarise yourself with the following points:

1. Ministers (and arguably those acting with delegated authority such as the Chief Health Officer) are required to comply with the Ministerial Code of Conduct (both NSW and Victoria).

2. Section 5 of the NSW Ministerial Code of Conduct unambiguously states “A Minister must not knowingly issue any direction or make any request that would require a public service agency or any other person to act contrary to the law.”

3. Section 2.6 of the Victorian Code of conduct for ministers and parliamentary secretaries unambiguously states “They must not encourage or induce other public officials, including public servants, bid their decisions, directions or conduct in office to breach the law or to act improperly.”

Please provide evidence in my contract with Bulla as a multi skilled operator that experimental and provisionally approved medical experiments/vaccines are mandatory. I am a loyal and reliable worker, and I adequately perform the duties and requirements outlined in my contract and company policies.

This notification of suspension without pay has come with shock and disappointment and has further added to my stress and anxiety.

Karl Byrne”

[14] In response, Ms O’Brien wrote a letter dated 22 October 2021. It was addressed to Mr Byrne’s residential address and stated:

“Dear Karl,

We acknowledge your email dated 21 October where you raised concerns about the vaccination mandate. We understand this is a difficult issue for many people.

As you are aware Mandatory Vaccination Directions have been issued by the Victorian Government. This is a legal requirement that applies to our business. A copy of the current Directions can be found on the DHHS website. This Direction does not force you to be vaccinated. However, if you choose not to it, then it impacts on your employment as we are legally unable to permit you to work on our site.

As we previously advised you, unless you met these requirements (or the Government changes the Direction) from 15 October 2021 we had no option but to suspend your employment without pay (with no accruals of leave).

While at this stage we you have been suspended, unless either your decision (or the Direction) changes, or you obtain a medical exemption in accordance with the Direction, then you should be aware that it is likely that your employment will be terminated. This Direction applies to almost all workers who perform work away from their home across Victoria, so your decision may make it difficult for you to obtain other work.

As you can appreciate these circumstances are out of our control. I would encourage you to direct any queries or concerns to the Victorian Government rather than us.

We are required to follow this Victorian Government Direction in respect of our workers.

If you believe the Direction is not legal, it is open to you to challenge it in the Courts. A number of individuals and businesses unsuccessfully sought to challenge Directions regarding lockdown and curfew last year. Our business is not going to be challenging this.”

[15] As there was no response from Mr Byrne, Mr Raydan attempted to telephone him throughout 25 October 2021. Evidently, he was not able to speak with Mr Byrne and at 5.09pm, Mr Raydan sent an email to Mr Byrne attaching a “show cause letter”, which stated:

“Dear Karl

Show cause letter due to refusal of COVID-19 vaccine

On 21 October 2021 the Victorian Chief Health Officer released the COVID-19 Mandatory Vaccination (Workers) Directions (No 5) (Direction), which states that on or after 15 October 2021. Bulla Dairy Foods (Bulla) cannot permit an employee who is unvaccinated to work onsite.

We will now grant you a final extension to have the COVID-19 vaccination, up to 29 October 2021.

Please understand that unless your decision changes between now and 29 October 2021, then you should be aware that Bulla intends to act lawfully in accordance with the Direction, and may determine that due to remaining unvaccinated, you may be unable to meet the inherent requirements of your contracted position as an Authorised Worker at Bulla.

You now have a final opportunity to provide Bulla with any additional information, in writing, that you would like us to consider before we make a final decision regarding your employment. You have until 27 October 2021 to provide me with your written response as to why your employment should not be terminated.

A follow-up remote meeting will be held with you on 29 October 2021 to advise you of our decision. You may bring a support person to this meeting.

We understand that this may be a difficult time for you, and trust as you can appreciate that Bulla’s actions reflect compliance with Victorian Government directions.

If you have any questions, please do not hesitate in contacting me directly.

Kind regards,

Zei Raydan

Site Lead”

(Bold font: Bulla emphasis)

[16] Mr Byrne received this letter and sent an email in reply to Mr Raydan’s email address at 5.17pm on 27 October 2021 attaching a further Medical Certificate for the period 28 October 2021 to 10 November 2021 and a Bulla Application for Leave Form in respect of the same period. The email outlined the following:

“Dear Zei,

In reply to your letter dated 25th October 2021, I now confirm as follows:

There are two issues of concern which I would like to address:

1. I have never advised the company of refusal to the vaccinating against Covid-19, however I have notified the company with a letter dated 04/10/21 from my doctor stating he could not guarantee that I would not have a life-threatening adverse reaction to the Covid-19 vaccine.

Since your previous letter on the 14th October 2021, I have been informed of the official Medicare immunization medical exemption (IM011).

The appropriate paperwork has been filled out by my doctor, submitted and is pending approval within 10 business days.

2. In regard to my medical certificates, I am genuinely unfit for work at this stage and I am entitled to sick leave and sick leave accrued payments.

Please find attached a further medical certificate from 28/10/2021 to 10/11/2021.

I have always met the inherent requirements of my contracted position as an authorised worker at Bulla and appreciate your understanding of this extremely difficult time for me.

Kind regards

Karl Byrne”

(my emphasis)

[17] At 2.17pm on 29 October 2021, Mr Byrne was sent an email by Mr Raydan, with a letter attached entitled “Termination of your employment”. The letter read as follows:

“Dear Karl,

Termination of your employment

Bulla has attempted to contact you multiple times today and over the past week to discuss your intention to be vaccinated by today, 29 October 2021. On 15 October 2021, you were directed to remain contactable whilst on unpaid suspension and you have not done so.

I attempted to call you on the following dates with no response:

- Friday 29 October 2021 at 10:11am

- Monday 25 October 2021 at 10:06am

- Friday 15 October 2021 at 1:41pm

- Friday 15 October 2021 at 11:38am

I also emailed you on the following dates asking you to contact me for any questions, and received no response:

- Monday 25 October 2021 at 5:09pm – Show Cause Letter provided

- Friday 22 October 2021 at 4:22pm – Response to an email you sent the business

- Friday 15 October 2021 at 1:47pm – Notification of Suspension Letter provided

I would like to advise you, that in order to follow the COVID-19 Mandatory Vaccination (Workers) Directions (No.5) (Direction), Bulla requires all employees to have had their first dose of the COVID-19 vaccination by 15 October 2021, to permit them to continue to work onsite.

On 15 October 2021, and again on 22 October 2021, you have indicated that you refuse to be vaccinated against COVID-19. As you have chosen not to be vaccinated and have not provided the business with a valid medical exemption, you are unable to meet the inherent requirements of your contracted position as an Authorised Worker at Bula.

Therefore, I would like to provide you with formal notification that your employment with Bulla has been terminated effective immediately, from 29 October 2021.

You will be paid 2 weeks payment in lieu of notice, your accrued entitlements and any outstanding pay up to and including your last day of employment, which includes superannuation. These amounts shall be paid into your nominated payroll bank account.

Please understand that these are circumstances outside of our control. We understand that this news may be a difficult for you, and trust as you can appreciate that Bulla’s actions reflect compliance with Victorian Government directions.

I would like to thank you for your contribution to the business and wish you all the best for the future.

If you have any questions, please do not hesitate in contacting me directly.

Kind regards

Zei Raydan

Site Lead”

[18] Mr Byrne has produced what appears to be an email sent to him from “myGov” on 5 November 2021, after his employment had been terminated. The header of the message was “Proof of your COVID-19 vaccination details are ready to view” 3 and it seems this email may not have been accessed by Mr Byrne until 6.25pm on 10 November 2021. In any event, he has produced what appears to be an Australian Government COVID-19 digital certificate in his name. It is said to have been “generated” on 10 November 2021 and has amongst its contents the statement, “this individual has a medical contraindication to COVID-19 vaccines.” It was stated to be valid from 10 October 2021 until 16 April 2022.4

Initial matters to be considered

[19] There is no dispute between the parties, and I am satisfied, in relation to the four matters referred to in ss.396(a)-(d) of the Act, as follows.

[20] Firstly, Mr Byrne’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) of the Act).

[21] Secondly, there is no dispute that Mr Byrne is a person protected from unfair dismissal as defined by s.382 of the Act in that he is an employee who has completed a period of employment of at least the minimum employment period, and the sum of his annual rate of earnings and such other amounts is less than the high income threshold (s.396(b) of the Act).

[22] Thirdly, as to whether this matter involves a dismissal that was consistent with the Small Business Fair Dismissal Code (s.396(c) of the Act), it was not in dispute, and I am satisfied that
Bulla is not a small business employer within the meaning of s.23 of the Act, having had 15 or more employees at the relevant time. As such, I am satisfied that the Small Business Fair Dismissal Code does not apply.

[23] Fourthly, neither party suggested this case involves a dispute as to whether or not the circumstances involved a genuine redundancy and I find this to be the case (s.396(d)) of the Act).

Section 385 – Was Byrne’s dismissal unfair?

[24] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 of the Act provides the following:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Section 385(a) – Was Mr Byrne dismissed?

[25] There was no dispute, and I am satisfied, that Mr Byrne was dismissed within the meaning of s.386(1) of the Act.

Section 385(c) – Small Business Fair Dismissal Code

[26] As outlined in paragraph [22] above, s.385(c) of the Act does not apply.

Section 385(d) – Genuine redundancy

[27] As outlined in paragraph [23] above, s.385(d) of the Act does not apply.

Section 385(b) – Harsh, unjust or unreasonable

[28] In determining whether the dismissal was harsh, unjust or unreasonable (s.385(d) of the Act), I must have regard to s.387 of the Act:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[29] I am under a duty to consider each of these criteria in reaching my conclusion and will do so below. 5

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

[30] In considering whether the dismissal of Mr Byrne 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” 6 and should not be “capricious, fanciful, spiteful or prejudiced”.7

[31] In its letter dated 29 October 2021, Bulla outlined it was terminating Mr Byrne’s employment because he was unable to meet the inherent requirements of his contracted position, having chosen not to be vaccinated and having failed to provide a valid medical exemption.

[32] Mr Byrne submits there was no valid reason for his dismissal. In his email to Bulla on 21 October 2021, he described the Directions as “unlawful” and “temporary.” Neither of these propositions hold. The Directions have at no stage been declared invalid by a Court. They have been in effect at all material times and have been extended. Further, they applied to Bulla as the employer of Mr Byrne, a manufacturing worker who worked at or in connection with a premises used for the distribution, production or processing of food. It has not been suggested Mr Byrne could have performed his work at home.

[33] Mr Byrne asserts he did not inform Bulla that he refused to be vaccinated but this does not advance things for him because he does not dispute that he was neither fully vaccinated nor partially vaccinated at all material times. Further, Mr Byrne accepted that the Directions applied to both himself and Bulla and that Bulla was required to treat him as unvaccinated. 8

[34] I have also not been persuaded by Mr Byrne’s submission that access and inquiry into his medical history was unlawful according to federal “medical privacy” legislation. 9 Mr Byrne did not develop this submission in any way and, as was proffered by Deputy President Colman in Isabella Stevens v Epworth Foundation (Stevens),10 there is no reason to think that the Directions are inconsistent with the Privacy Act 1988 (Cth) or that evidence of vaccination status cannot be collected, recorded and stored in accordance with the privacy principles.

[35] There are a number of things that can be said in response to Mr Byrne’s assertion that his contract with Bulla did not make “experimental and provisionally approved medical experiments/vaccines” mandatory. Firstly, whatever view Mr Byrne may wish to express in relation to the COVID-19 vaccines that were available at the time of his termination, these vaccines had been approved for use by the Therapeutic Goods Administration (TGA), Australia’s national regulator. Secondly, Mr Byrne’s assertion regarding his contract of employment with Bulla proceeds on the incorrect premise that parties to an employment contract can contract out of requirements validly imposed by law and any accompanying obligations that may flow. Regardless, there was no mandatory requirement for Mr Byrne to receive a COVID-19 vaccination. However if, as transpired, Mr Byrne chose to not become vaccinated and did not hold the certification required to be regarded as an “excepted person” under the Directions, he was unable to perform his job for Bulla.

[36] In his email to Bulla dated 21 October 2021, Mr Byrne made a range of assertions. As to these:

[37] Putting to one side the assertions in Mr Byrne’s email to Bulla dated 27 October 2021 that he was in the process of obtaining a valid medical certificate, having completed and submitted the “appropriate paperwork” for which approval was pending, I nonetheless observe that on 29 October 2021, Mr Byrne was neither fully nor partially vaccinated and had not provided evidence that he was an “excepted person”. Accordingly, Bulla did not “hold” vaccination information about Mr Byrne on 29 October 2021 and was therefore required under the Directions to treat him as if he was unvaccinated. 11 The consequence of this was that Bulla was prohibited under the Directions from allowing Mr Byrne to work outside of his ordinary place of residence. Had it done so, it would have been guilty of an offence and exposed to a substantial financial penalty. I am therefore satisfied that Bulla had a valid reason for dismissing Mr Byrne on 29 October 2021 that was related to his capacity because at that time, Mr Byrne lacked the capacity to perform the job he was employed to do.

Notification of the valid reason – s.387(b)

[38] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made, 12 in explicit terms,13 and in plain and clear terms.14 In Crozier v Palazzo Corporation Pty Ltd15 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.”

[39] Mr Byrne was notified of the valid reason for his dismissal through the “show cause” letter dated 25 October 2021. The valid reason was confirmed in the termination letter dated 29 October 2021, which was attached to the email sent by Mr Raydan on 29 October 2021.

Opportunity to respond to any reason related to capacity or conduct – s.387(c)

[40] The “show cause letter” emailed by Mr Raydan to Mr Byrne on 25 October 2021 advised Mr Byrne that if he remained unvaccinated 16 on 29 October 2021, Bulla may determine he may be unable to meet the inherent requirements of his contracted position as an authorised worker. The letter further advised Mr Byrne that he had an opportunity before it made a final decision to provide Bulla with any additional information in writing and his response as to why his employment should not be terminated. The letter outlined that the opportunity was available until 27 October 2021 and a follow-up meeting would be held on 29 October 2021. Mr Byrne took up this opportunity by sending an email in reply to Mr Raydan at 5.15pm on 27 October 2021.

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

[41] This consideration is not relevant in this case. There was no unreasonable refusal by Bulla to allow Mr Byrne a support person present to assist at discussions relating to his dismissal.

Warnings regarding unsatisfactory performance – s.387(e)

[42] Mr Byrne’s dismissal was not related to unsatisfactory performance and therefore this factor is not a relevant consideration in this case

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

[43] I do not consider the size of Bulla to have been a relevant factor in this case (s.387(f)) and have noted it has a human resources function within its operation (s.387(g)). Neither s.387(f) or s.387(g) are determinative either way in this case.

Other relevant matters – s.387(h)

[44] Mr Byrne submits he was validly on sick leave (personal/carer’s leave) and should not have been terminated. Bulla submits that on and from 15 October 2022, no entitlement to sick leave was enlivened due to Mr Byrne’s suspension from work. I do not consider Mr Byrne had an entitlement to sick leave on and from 15 October 2021 protecting him from termination. From 15 October 2022 until his dismissal, Mr Byrne was not permitted to attend for work outside of his ordinary place of residence due to the Directions because he was not able to provide Bulla with the requisite vaccination information. Nor was Mr Byrne able to perform his duties as a Multi Skilled Operator from home. This meant that from 15 October 2021 there was no work which Mr Byrne could be required to perform for Bulla and thereby derive income. I therefore do not consider that Mr Byrne was absent on and from 15 October 2022 because he was taking paid personal/carer’s leave due to a personal illness or injury. As Mr Byrne had no “ordinary hours of work” during that period, he had no entitlement under s.99 of the Act to be paid for personal/carer’s leave.

[45] Mr Byrne was not contactable by telephone during the period of his absence from work in October 2021, even though he appeared to be under the impression that he was required to remain so. 17 Mr Byrne elected to turn his mobile telephone off and keep it turned off during the periods in which Bulla was attempting to call him to discuss his position in relation to the Directions. In fact, Mr Byrne said that his mobile telephone was “pretty much” turned off between 15 and 27 October 2021 and on 29 October 2021.18 I express no opinion regarding of Mr Byrne’s explanation for this state of affairs beyond musing that parties may have been better served if Mr Byrne had made contact with Bulla by telephone after he received the “show cause letter” dated 25 October 2021, as he was invited to do. Further, they also may have been better served had Mr Byrne turned his telephone on to receive calls at this point because the “show cause letter” had flagged that a “follow-up remote meeting” would be held on 29 October 2021. A conversation between the parties either following receipt of the “show cause letter” or once Mr Byrne had sent the 27 October 2021 email may have helped clarify what appeared to be underway at Mr Byrne’s end and been able to cover any queries of Bulla in response.

[46] Nonetheless, even if he was not contactable by telephone, Mr Byrne maintains he sent Mr Raydan the 27 October 2021 email at 5.15pm that day. This email contained the advice that Mr Byrne was in the process of getting “the official Medicare immunization medical exemption” for which approval was pending, having completed and submitted the “appropriate paperwork”. This email appears to have also included the abovementioned medical certificate from Dr Loh dated 27 October 2021, which opined that Mr Byrne was suffering from a medical condition and would be unfit for work from 28 October 2021 to 10 November 2021 (inclusive), plus a Bulla Application for Leave Form in respect of the same period. For his part, Mr Raydan says he did not receive any response from Mr Byrne to the “show cause letter” dated 25 October 2021 and has been unable to locate the 27 October 2021 email in his inbox.

[47] As to this state of affairs:

[48] Ultimately, I have not been persuaded I should not accept Mr Byrne’s evidence that he sent the 27 October 2021 email. 21 I have noted that the IT searches by Bulla did not cover that particular date and I note that while there existed an option, albeit costly, 22 for Bulla to send its hard drive to a digital forensic expert for further investigation, Bulla elected not to explore this. Therefore, having regard to the evidence and material before me, I am not persuaded that the 27 October 2021 email was not received by Bulla.

[49] Accordingly, I am prepared to proceed on the basis that Mr Byrne took steps to notify Bulla by email on 27 October 2021 that he was, at that time, pursuing an “official” medical exemption and he was expecting a response within 10 business days. I observe that the email dated 5 November 2021 from myGov to Mr Byrne made good these assertions. 23 As I have outlined above, the myGov email dated 5 November 2021 had the subject heading “Proof of your COVID-19 vaccination details are ready to view” and directed Mr Byrne to his myGov inbox. Mr Byrne has also produced a document with the header COVID-19 digital certificate which appears to have been “generated” on 10 November 2021, and which outlines validity from 16 October 2021 until 16 April 2022. This document includes the statement, “This individual has a medical contraindication to COVID-19 vaccines.”24

[50] I am therefore satisfied Mr Byrne responded to the “show cause letter” by sending the 27 October 2021 email to Bulla but his response was not considered by Bulla before it terminated his employment with immediate effect on 29 October 2021.

[51] By 11 November 2021, the 10 business days referred to in the 27 October 2021 email would have passed. Likewise, the 15 October 2021 deadline under the Directions for the provision of vaccination information had passed, as had the “first dose deadline” of 22 October 2021. There had been nearly 6 weeks for Mr Byrne to settle upon his position regarding the Directions and take the steps in response that he felt he needed to take. During that period Mr Byrne had been able to conduct research on a range of topics and had prosecuted his position in writing with Bulla, including his position that the Directions were “unlawful” and “temporary”. While it might have been reasonable for Bulla to have waited for 11 November 2021 before proceeding to make any decision in relation to Mr Byrne’s employment, I note that Mr Byrne took no steps to contact Bulla after his dismissal and he did not provide Bulla with a copy of the COVID-19 digital certificate until late January 2022. I consider that by 11 November 2021, Mr Byrne had been afforded a more than reasonable opportunity to provide the vaccination information about his vaccination status in the manner the Directions required.

[52] In any event, I am not persuaded waiting until 11 November 2021 would have changed anything. This is because the COVID-19 digital certificate produced by Mr Byrne would not have satisfied the definition of “acceptable certification” so as to establish Mr Byrne was an “excepted person” under the COVID-19 Mandatory Vaccination (Workers) Directions (No 7), which were then in force. Those Directions defined an “excepted person” in clause 9(5) and “acceptable certification” in clause 9(6) as follows:

(6) An acceptable certification:

(a) for the purpose of subclause (5):

[53] The COVID-19 digital certificate produced by Mr Byrne would not have fallen within the definition of “acceptable certification” under the COVID-19 Mandatory Vaccination (Workers) Directions (No 7). Accordingly, Mr Byrne would still have been regarded as “unvaccinated” and Bulla would have remained prohibited from allowing Mr Byrne to work outside of his ordinary place of residence. To summarise, even had Bulla waited and the COVID-19 digital certificate had been produced within the 10 working-day timeframe, nothing would have changed. It would have remained the case that Mr Byrne lacked the capacity to perform the job he was employed to do on account of remaining “unvaccinated” according to the Directions.

Was Mr Byrne’s dismissal harsh, unjust or unreasonable?

[54] I have made findings in relation to each matter specified in s.387 of the Act as relevant and given each due weight in determining whether the termination was harsh, unjust or unreasonable. 25 I am satisfied the dismissal of Mr Byrne was not harsh, unjust or unreasonable. Accordingly, I find that Mr Byrne’s dismissal was not unfair.

[55] As I have found Mr Byrne’s dismissal was not unfair, there is no requirement to consider the question of remedy. However, had I been required to do so, my conclusion would have been that an order for the reinstatement of Mr Byrne would have been inappropriate, having regard to the submissions of both parties on the question of reinstatement and the circumstances of this case. If I had then been required to consider whether an order for payment of compensation would be appropriate in all the circumstances of this case, my conclusion would have been that it was not. Amongst the circumstances the Commission is required to take into account in determining an amount of compensation, is the requirement to assess remuneration earned (and likely to be earned) following the dismissal and the efforts to mitigate the loss suffered because of the dismissal. New employment and/or work generating remuneration, plus efforts to secure these are contemplated. Further, the Commission is prohibited from ordering compensation that includes a component for shock, distress or humiliation, or other analogous hurt, caused by the manner of the dismissal. 26

[56] Therefore, action on behalf of a person following their dismissal is a key consideration. In this matter, Mr Byrne was completely inactive when it came to pursuing new employment and work following his dismissal. He made no effort to mitigate the loss he suffered because of the dismissal. The material before me, or absence thereof, left me unpersuaded that Mr Byrne was prevented undertaking mitigation efforts due to medical or other grounds. Additionally, if Mr Byrne ultimately became an “excepted person” under the Directions, their continued operation would not have imposed a barrier to his attempts to obtain new employment. As a result of Mr Byrne’s complete inactivity, I would not have considered an order for payment of compensation was appropriate in all the circumstances of this case.

Conclusion

[57] As I have found that Mr Byrne’s dismissal was not unfair, his application for unfair dismissal remedy is dismissed. Given this conclusion, I will not issue an Order.
esig

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR740205>

Appearances:

Mr K Byrne on his own behalf.

Mr D Sztrajt of HR Legal on behalf of Regal Cream Products Pty Ltd.

Hearing details:

2022.

By Video via Microsoft Teams.

23 February 2022.

 1   Digital Court Book at p.171.

 2   Digital Court Book at p.196.

 3   Digital Court Book at p.104.

 4   Digital Court Book at p.105.

 5   Sayer v Melsteel Pty Ltd [2011] FWAFB 7498.

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

 7   Ibid.

 8   Transcript PN 155 - 159 and PN 215.

 9   Mr Byrne’s reply submissions, Digital Court Book p.108.

 10   [2022] FWC 593 at [26].

 11   In this regard, I have not been persuaded that the letter of Dr Loh dated 4 October 2021 constituted the requisite certification for Mr Byrne to be an “excepted person” under the Directions.

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

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

 14   Ibid.

 15   (2000) 98 IR 137, 151.

 16   Defined under the Directions as a person who has not received a dose of COVID-19 vaccination and is not an “excepted person”.

 17   Transcript PN302.

 18   Transcript PN288 and PN281.

 19   Digital Court Book at p.285.

 20   Digital Court Book at pages 285 and 289.

 21   In cross-examination at Transcript PN 237-249, it was put to Mr Byrne that there was another instance of documents not having been received by the intended recipient when he had sent an email. The recipient was the Commission and despite contemporaneous correspondence from the Commission to Mr Byrne suggesting otherwise, a subsequent review has established the documents in question were in fact received when Mr Byrne first sent his email correspondence.

 22   Digital Court Book at p.286.

 23   Digital Court Book at p.104.

 24   Digital Court Book, page 105.

 25   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].

 26   Section 392(4).