[2021] FWC 6182 [Note: a correction has been issued to this document] [Note: An appeal pursuant to s.604 (C2021/7734) was lodged against this decision.]
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.365—General protections

Jessica Watson
v
National Jet Systems Ltd
(C2021/3114)

DEPUTY PRESIDENT LAKE

BRISBANE, 22 OCTOBER 2021

Application to deal with contraventions involving dismissal

[1] Jessica Watson (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute in relation to the termination of her employment. The Applicant was specifically employed by National Jet Operation Services Pty Ltd (NJOS). NJOS and National Jet Systems Ltd (the named Respondent, NJS) are both part of the Qantas Group and both employ cabin crew, are covered by the same policies and procedures and fly the same aircraft and routes. That said, there are separate enterprise agreements covering the employees of each. All management employees are employed by NJS. Neither NJS nor NJOS currently employ any human resources personnel. All NJS crew, including pilots and cabin crew, wear the Qantas uniform and comply with Qantas Group uniform policy. These entities are, for the purposes of this decision collectively referred to as the Respondent.

[2] It was uncontentious that the Applicant had been employed by the Respondent since on or around 23 January 2013 and that employment had ended. What is in dispute is how and when her employment ended. In short, the Applicant claims she was constructively dismissed on 13 May 2021. The Respondent disagrees and states that the Applicant was never dismissed, but that if she was (which is denied), the dismissal took effect on 7 May 2021, which would mean that the application was made four days outside of the 21-day time limit prescribed by the Act.

[3] The jurisdictional matter was allocated to my Chambers for determination. Directions were issued for the filing of submissions and witness statements. The matter was listed for hearing before me by Microsoft Teams on 1 September 2021 at which both parties sought permission to be represented.

[4] The Commission may grant permission for a person to be represented by a lawyer if to do so would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter, or where it would be unfair to not grant permission because the person is unable to represent themselves or for some other reason, taking into account fairness between the parties. 1 The presence of one of these elements does not immediately invoke the right to representation. Rather, the Commission’s decision to grant permission “involves an evaluative judgment akin to the exercise of discretion”,2 and requires “consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.” 3 I am satisfied that the present case is one in which both parties – and the Commission – would benefit from the assistance of legal representation to allow for the efficient conduct of the case, having regard to the complexities involved. Accordingly, both parties were granted permission to be represented. Mr Robert Grealy from Australia Law Partners represented the Applicant, while Matthew Follet appeared on the Respondent’s behalf, instructed by Ashurst.

[5] As will become apparent from the material set out below, the arguments put forth by both parties centred around the reasonableness or otherwise of the mask direction introduced by the Qantas Group.

Respondent’s submissions

[6] The Respondent submitted that in response to the COVID-19 pandemic, on 26 October 2020, the Qantas Group and NJS mandated the wearing of face masks (subject to a medical exemptions procedure) when performing duties as a cabin crew member through the issuing of a Qantas Group Face Mask Guideline and NJS Cabin Crew Safety Alert. By early January 2021, the mask mandate corresponded with the parties’ respective legal obligations under relevant State law in Victoria, New South Wales and Queensland (with other relevant jurisdictions to follow shortly thereafter).

[7] Within days of the introduction of the mask mandate, Ms Watson sought an exemption from wearing a face mask. On 6 January 2021, the requirement that Ms Watson wear a face mask was adjusted, so that she could wear a face mask or shield. The Respondent’s submission was that over the ensuing months, various machinations ensued with respect to the Applicant’s compliance with the mask mandate and her fitness for work more generally arising out of existing medical conditions disclosed by the Applicant for the first time. Ultimately however, NJS did not accept there was any medical basis for Ms Watson to be granted an exemption from the mask mandate, and as such, issued the direction that she return from leave on 7 May 2021 and comply with the requirements. The Respondent contends that the direction was lawful and reasonable and the Applicant had a duty to comply.

Lawful and reasonable direction

[8] The Respondent submitted that Ms Watson was obliged to comply with all lawful and reasonable directions issued by NJS. The Respondent avers that this extended to directions about what, where, how and when work was to be performed.

[9] The Respondent submitted that what is “reasonable” in the context of employer directions was explained in R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan4 In the context of appearance, dress, grooming and uniform, “a reasonable employer… can be allowed to decide what, upon reflection and mature consideration, could be offensive to the customers and the fellow employees”.5 Consistent with that proposition, a Full Bench of the Commission has held that:

“a policy [including a uniform or grooming policy] will be reasonable if a reasonable employer, in the position of actual employer and acting reasonably, could have adopted the policy. That is, a policy will only be unreasonable if no reasonable employer could have adopted it. A policy will not be unreasonable merely because a member of the Commission considers that a better or different policy may have been more appropriate.”  6

[10] The Respondent contended that NJS implementing a mask mandate in the context of COVID-19 was consistent with its safety leadership position in aviation, the wishes and preferences of its customers, and consistent with best-practice health advice about transmission risks. The Respondent submitted that it was a legal requirement of the Applicant at the time of the Direction under relevant State laws and public health orders.

[11] The Respondent submitted that by the time of the Direction and the alleged repudiation in May 2021, it was an offence for the Applicant to not wear a face mask at all times when flying as a cabin crew member, and the mask mandate in place at that time reflected this position. The Respondent submitted that NJS was doing no more than requiring the Applicant to act in accordance with what were otherwise her legal obligations under State law.

Was insistence upon an unlawful/unreasonable direction a repudiation?

[12] The Respondent submitted that unlike Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd 7, the Applicant’s contention here does not involve an alleged erroneous interpretation of the contract by NJS. The Respondent contended that the Applicant first contended that the mask mandate was not authorised by her employment contract was in a letter from her solicitor on 12 February 2021, which asserted that the mask mandate amounted to a non-consensual variation to the contract of employment.

[13] NJS responded on 23 February 2021, stating that the mask mandate was a lawful and reasonable direction. Ms Watson’s solicitors responded two days later, contending that NJS remained in breach of the Employment Contract (the Contract), but without any explanation as to why, nor any response to the contention that the mask mandate was lawful and reasonable. A further letter from Ms Watson’s solicitors on 30 April 2021 did not refer to any breach of contract or repudiation by reason of the mask mandate (nor the question of whether it was a lawful and reasonable direction).

[14] Accordingly, on no occasion prior to the Direction had Ms Watson contended that the mask mandate was not a lawful and reasonable direction or responded to NJS’s contention that it was. NJS was given no opportunity to reconsider its position or evince any substantive intention of any kind regarding ongoing performance of the contract (properly construed). The Respondent submitted that Ms Watson’s case appeared to be that the mere communication of NJS’s legal understanding of the contract of employment, was itself a repudiation.

[15] The Respondent contended that the issuing of a lawful and reasonable direction, even if “new”, did not amount to a variation to a contract of employment, but was instead the exercise of a power or right held by the employer under the employment contract.

Was the Applicant “dismissed”?

[16] The Respondent maintains that the Applicant was not dismissed. However, that if the Commission determines that she was dismissed, the Respondent contends this occurred on 7 May 2021, notwithstanding that the alleged repudiation was not accepted (so as to purportedly bring the contract of employment to an end) until 13 May 2021. If that is correct, her application was four days out of time when lodged on 1 June 2021. On that basis, an extension of time would have to be granted for her application to proceed.

[17] The Respondent further submits that as at 13 May 2021, there was no evidence suggesting that the Applicant had resigned from her employment with NJS, forcibly or otherwise. Further, the Respondent submitted that whilst the acceptance of an alleged repudiation could, in layman’s terms, be characterised as a resignation, there is a legal distinction between the concepts (reflected in the dichotomy in s.386(1)) and a resignation was not what was intended by the Applicant’s legal advisers.

[18] The Respondent contends that none of NJS’s directions to the Applicant were unlawful or unreasonable, nor repudiatory, and none of its conduct forced her to do anything, let alone resign. It was the Respondent’s submissions that NJS required clarity as to the Applicant’s fitness for work and wanted a second opinion. That is why an appointment with an IME was booked.

[19] The Respondent avers that on or around 1 February 2021, Dr Peter Prasad, the National Manager Occupational Health for Qantas Medical, decided based upon the materials that the Applicant had provided (including from her treating doctor) in relation to the question of wearing a face mask or face shield, that she was temporarily unfit for flying duties, because the materials raised a concern about whether she was fit to perform the safety critical requirements of her role (including the capacity to wear face masks, oxygen masks and smoke hoods). Further, the Respondent submits that she was offered other non-safety critical duties in the interim but refused.

[20] The Respondent contended that neither Dr Brandis’ letter, nor any of Dr Stowell’s certificates, directly addressed, answered or satisfied NJS that the Applicant was medically excused from the requirement to wear a face mask or face shield. Hence, the Respondent submitted that in the 7 May 2021 letter, she was directed to return to flying duties, but was also directed to comply with the requirement to wear a face mask or face shield.

[21] I will now turn to the evidence provided by each witness called by the Respondent in support of their jurisdictional objection.

Evidence of Matthew Franzi

[22] Mr Matthew Franzi, Executive Manager Group Safety & Health and Executive Manager Safety for Qantas Airways, gave evidence in these proceedings. Mr Franzi has worked in multiple roles within Qantas and holds various qualifications. He has been involved in various risk assessments related to COVID-19. His evidence was that safety is always the number one priority at Qantas. The implementation of measures to mitigate risks arising from the transmission of COVID-19 were taken to protect the safety of employees and customers, as well as to ensure compliance with the business’ obligations under safety legislation.

[23] Qantas introduced a ‘Fly Well’ program which involved taking various measures to support the safety and wellbeing of the workers and customers. The measures were continuously assessed having regard to Government directions, recommendations, risk assessments and customer expectations. The nature of the controls necessarily varies having regard to the nature of the flying operations, as well as outbreaks of community transmission, and their reasonableness and the foreseeability of risk. Further, Mr Franzi’s evidence was that the risk of transmission in community settings continues to evolve, and the Commonwealth, State and Territory Governments have implemented various directions and orders to mitigate those risks. Quite aside from Government regulations/orders, Mr Franzi stated that consideration is also given to the recommendations issued by Governments at different times.

[24] Mr Franzi stated that the wearing of face masks is an example of one of the control measures implemented as part of the Fly Well program. The Qantas Group mandated the wearing of face masks for all of customer facing frontline employees, including cabin crew, on 26 October 2020.

[25] Mr Franzi stated that when Fly Well was first launched in June 2020, masks were strongly recommended for all customers and cabin crew, consistent with Government advice. The position was different for those flying operations which were assessed as being higher risk flying, including the repatriation flights that Qantas operated on behalf of the Australian Government to India and Argentina. For those international flying operations where the risks were higher, cabin crew were required to complete clinical Personal Protective Equipment (PPE) training and wear PPE comprising P2/N95 masks, gloves and, at times, face shields and gowns.

[26] The first State to impose directions around the wearing of face masks was Victoria. This resulted in updated guidance being issued to employees of the Qantas Group (including cabin crew. On 22 July 2020, the Qantas Group issued updated guidance to its employees, including the introduction of a requirement that all cabin crew on flights to and from Melbourne must wear a surgical mask.

[27] Mr Franzi’s evidence was the introduction of the face mask mandate for all frontline employees on 26 October 2020, took into account the importance placed on safety leadership, minimising even further the risk of COVID-19 transmission on aircraft, feedback received from customers that the wearing of face masks was important for them to have confidence in operations and also the evolving positions adopted by State Governments at that time.

[28] Mr Franzi stated that he observed increasing confusion around when masks were and were not required to be worn, particularly for cabin crew involved in domestic flying to and from Victoria. He also received feedback from the customer experience team about customer confusion. This created a risk, which he said was able to be mitigated via the mandatory introduction of face masks for frontline employees.

[29] At the Commonwealth level, Mr Franzi referred to the Domestic Passenger Journey Protocol endorsed by the Australian Health Protection Principal Committee (the Protocol). Pursuant to the Protocol, the use of face masks for all passengers and crew was endorsed as mandatory. These recommendations were adopted by National Cabinet on 8 January 2021.

Evidence of Dr Peter Prasad

[30] Dr Peter Prasad, National Manager Occupational Health for Qantas Medical, also gave evidence. Dr Prasad has an extensive list of qualifications, including a Bachelor of Medicine, Bachelor of Surgery (MBBS), a Graduate Diploma in Occupational and Environmental Health, an Australian Certificate in Civil Aviation Medicine and a Masters in Aviation Medicine. He has held various occupational health related roles within Qantas.

[31] Dr Prasad stated that on 26 October 2020, the Qantas Group introduced changes to how masks were to be worn as part of the Fly Well program. As part of this, the Qantas Group mandated the wearing of approved face masks for customer facing roles at all times when at work and in view of customers indoors, and when unable to physically distance outdoors. This applied to operating cabin crew. This policy change was reflected in the Qantas Group published 'COVID-19 Face Mask Guidelines'. The basis for the change in policy was made for a range of reasons, including to reduce any risk of transmission of COVID in the context of the epidemic and pandemic and so that Qantas could restore faith in the travelling public, because customers had a strong expectation of mask use during a flight.

[32] Face Mask Exemption Guidelines were also produced. The guidelines stated that if employees had a relevant medical condition preventing safe use of masks, they should supply a Medical Exemption Certificate from their treating health practitioner, which would facilitate consideration of mask adjustments or exemption, as well as review of any associated risks and work tasks. The Certificate would be sent to, and reviewed by, Qantas Medical who would conduct a health-based risk assessment. The medical information provided needs to be sufficient to inform that assessment. If required, the Guidelines provided that Qantas Medical could seek further information, work with the employee with respect to mask adjustments, or issue a mask exemption. The outcome would be communicated directly to the employee by Qantas Medical or their manager.

[33] Dr Prasad went on to say that even in ordinary operations (that is, in non-COVID times) cabin crew roles substantively require mask use for non-normal and/or emergency situations so a medical condition that results in a complete contraindication to mask use requires a detailed health-based risk assessment. While no permanent exemptions for mask use have been issued for Cabin Crew in the Qantas Group, exemptions have been granted to employees pursuant to the Guidelines.

[34] Dr Prasad’s evidence was that Qantas Medical would assess the medical condition to determine whether an exemption should be provided. His experience was that there are limited medical contraindications to mask use, including:

(a) persons with a significantly serious lung or heart condition, or persons who have difficulty breathing, such that adding layer of fabric over their mouth and nose would have medical consequences;

(b) persons with significant disabilities; and

(c) persons who have experienced severe trauma – usually where covering of the face has contributed to a psychological diagnosis.

[35] Dr Prasad stated that employees with medical contraindications to mask use may not be fit to perform roles where mask use is a substantive requirement, which may necessitate consideration of the employee's fitness for work. To date, Qantas Medical has been able to manage most applications for an exemption by making adjustments to the wearing of masks. He stated the adjustments granted include frequent breaks, when the employee can physically distance from others or the wearing of a face shield instead of a mask. The granting of such adjustments is managed via the process of issuing an Adjustment Certificate.

[36] Dr Prasad’s evidence was that Cabin crew are employed in safety critical work which is centred around conducting the emergency procedures in the event of an emergency on an aircraft. All Qantas Group cabin crew are trained, and are required to be able to perform, certain emergency procedures which require cabin crew to use different types of face coverings in various emergency contexts, including oxygen masks, smoke hoods, surgical masks and eye shields. The duration of an emergency is unknown so cabin crew must be able to wear a mask for an extended period.

[37] In the hearing, Dr Prasad conceded that he did not have particular qualifications as a neurologist, psychiatrist or a psychologist and did not have qualifications as a respiratory doctor. When asked about the advice provided by the Government regarding efficacy of masks, Dr Prasad stated that the main source of direction was health authorities who had, over the course of the pandemic, needed to contact trace hundreds or possibly thousands of flights which were notified to have positive passengers on-board.

[38] Dr Prasad stated that they considered guidance given in the communicable diseases network bible of COVID which is the Series of National Guidance (SONG), and the feedback from health authorities themselves when they undertook contact tracing for positive passengers on flight. Dr Prasad stated the SONG outlines how a person gets designated as a close contact for the transmission of COVID and states how PPE protects a person from being designated as a close contact and reduces their transmission risk.  Dr Prasad stated that is supported by medical evidence, which also informed the decision to make masks mandatory.

[39] Dr Prasad gave evidence that the masks available for Qantas cabin crew are surgical masks, but they had been exploring the use of reusable fabric masks. Dr Prasad stated that the general position is that unless a person has a medical condition, they are provided with a surgical mask.  He further stated that there may be current cabin crew who have skin conditions for which they may have been allowed to use fabric masks instead of surgical ones, though at the time of the hearing he could not be certain of the status of each of those cases.

[40] In the hearing, Dr Prasad was asked what the benefit of wearing face masks was if the risk of transmission on the aircraft is low. Dr Prasad answered that:

“In the context of having a passenger who is infectious with COVID on an aircraft or any individual really, we want to prevent transmission in any way that we can.  The reason to want to reduce transmission to as low as possible is because there are two aspects to safety:  one is prevention of the occurrence, and one is protection.  So if the occurrence occurs how do we reduce the fallout of that occurrence.  What we've realised early on in the pandemic is that while we can try and prevent a person from becoming infected, we have, up until vaccination came into effect, we had no reasonable means of protection so we had no way of controlling the fallout.  We see - I've dealt with over 120 cases of COVID in my people.  We've had all outcomes, from asymptomatic people to a death in a young person, as well as significant disability, associated with long COVID, in several of our flight attendants.  It was important to try and reduce that to protect people to reduce the significant occurrence of disease of those, you know, grave consequences, in whatever way is possible, irrespective of having low transmission characteristics.  We want to protect people using all possible means.  It's also true to say that the nature of the work gives rise to close contact, that's unavoidable.  We don't have stay at home flight attendants and we don't have flight attendants who don't come into close contact with passengers.  The nature of the work means that the occasion for transmission arises constantly in the work, so we need to have every protection that we can have.”   

[41] Dr Prasad agreed that most people who have had severe complications from COVID-19 have been in an older age group but acknowledged it could have severe outcomes for younger people too, particularly those with pre-existing conditions. That said, he stated that some people, with no pre-disposing conditions have had severe outcomes as well. Dr Prasad did not accept that if there were suitable available therapeutic treatments that wearing a mask would not be necessary. Prevention is better than a cure.

[42] Dr Prasad did not accept that wearing a mask for several hours a day, five days a week, carries a risk of bacterial pneumonia in the wearer in circumstances where the wearer has opportunities to take breaks from, and change, masks throughout that period. He acknowledged that if someone were using a single mask for such a period without taking break, there may be a risk of various types of infection. Consequently, Qantas recommends changing masks every two hours, and cabin crew can change at every stop, which may be less than two hours.

[43] Dr Prasad’s evidence was that generally, unless there are relevant underlying medical conditions, wearing a face mask for two hours straight will not cause harm to someone’s health, and Qantas would not force someone with underlying health conditions to wear a mask.

Statement of Julia Thompson

[44] Ms Julia Thompson, Head of Cabin Crew at National Jet Systems, gave evidence in this matter. Ms Thompson has held various positions with the Respondent and currently oversees the management of human resources issues and supervises NJP’s Safety Management System, as they both relate to cabin crew.

[45] Ms Thompson stated that since the beginning of the COVID-19 pandemic in Australia, NJS has sought to continuously manage its response having regard to health advice and customer requirements. In doing so, it has issued various communications to cabin crew as new measures were introduced or operational changes made. Safety Alerts were generally issued by being put on the sign-on computers at the port and/or by posting them on noticeboards. NJS also uploads Safety Alerts to CrewNet, which is the system used by NJS cabin crew to sign on for duty.

[46] Ms Thompson stated that multiple Safety Alerts have been issued covering various matters since the pandemic began, including information about procedures for dealing with suspected COVID-19 cases, hygiene practices and PPE use, and the introduction of temperature testing on some routes. Some measures were introduced based on customer feedback, such as the temperature testing regime.

[47] Ms Thompson stated that on 12 June 2020, the Qantas Group introduced the Fly Well program with which NJS was required to comply. NJS communicated these changes to its cabin crew through a “Notice to Cabin Crew” on 11 June 2020. That notice recommended that NJS cabin crew wear masks when interacting with customers, to align with the Fly Well program and community expectations. On 25 September 2020, NJS issued another Safety Alert to all cabin crew strongly recommending the wearing of surgical masks.

[48] On or around 26 October 2020, the Qantas Group issued a Face Mask Guideline which required that masks be worn by all staff in jurisdictions that mandate the wearing of masks for the general population, and otherwise, by all frontline workers (those in customer facing roles) in all locations when in view of customers indoors and when unable to physically distance outdoors.

[49] In conjunction with the Mask Guideline, Qantas Group issued a COVID-19 Mandatory Face Mask Medical Exemption Guideline which attaches a COVID-19 Mandatory Face Mask Medical Exemption Certificate application that can be filled out by a health practitioner for employees who are unable to wear a face mask due to a relevant medical condition(s). Exemption applications were sent to Qantas Group Medical for assessment.

[50] On or around 27 October 2020, an email was sent to all Qantas Group employees referring to media reports of the Mask Guideline and explaining the mandatory mask requirement. On 12 January 2021, NJS issued a Safety Alert to all cabin crew regarding Domestic Cabin Crew Safety Protocols. This alert reflected changes to mandatory mask wearing in airports and on aircraft in Victoria, New South Wales and Queensland.

[51] On 29 October 2020, the Applicant sent Ms Thompson an email attaching a medical certificate from her general practitioner, Dr Philip Stowell, dated 28 October 2020 which stated:

Jessica Watson has no medical condition of note, but she is now apparently required to wear a face mask at work. This makes her extremely anxious, and she finds she has trouble performing [her job] safely.

I know of NO research showing any significant benefit from wearing masks, and I doubt the legality of such requirements.

My advice and opinion is that she not be required to wear masks at work.”

[52] The Applicant was then on annual leave but due to return on 1 November 2020.

[53] On 31 October 2020, Ms Thompson was copied to an email from the Applicant to the Qantas COVID Support Team attaching an application for a Medical Exemption Certificate dated 31 October 2020 and a medical certificate dated 28 October 2020 from Dr Stowell. That certificate read:

Jessica Watson… is apparently required to wear a face mask at work for QANTAS. This makes her extremely anxious, and she finds she has trouble performing her job safely.

I know of NO convincing research showing any significant benefit from wearing masks, and I doubt the legality of such requirements.

My advice and opinion is that she not be required to wear masks at work.

I attach the QANTAS form relating to this and would hope that the advice need not be enforced. I understand that a number of other QANTAS staff have had the requirement to wear a mask relaxed and I would support this in Jessica’s case too.”

[54] Ms Thompson gave evidence that from around 2 November 2020 until around 20 December 2020, Ms Watson operated as cabin crew without wearing a face mask or shield. Ms Thompson only became aware of this some time later. In or around late November 2020, Ms Thompson phoned Ms Watson to discuss the mask mandate and her application for an exemption certificate but was unable to get in contact with her.

[55] On 11 December 2020, Ms Thompson received an email from Ms Watson in response to Ms Thompson’s phone calls, in which she informed Ms Thompson for the first time that she suffered from Hashimoto’s Disease and a very rare bone tumour. Ms Thompson responded to Ms Watson the following day asking whether she had provided her documentation to Qantas Medical. On 15 December 2020, the Applicant indicated that she had been in contact with Barbie Bains, Occupational Health Nurse, Qantas Group.    On 17 December 2020, Ms Thompson sent a follow up email to Ms Watson to check whether she had received any further correspondence from Qantas Medical in relation to her application for a Medical Exemption Certificate.   

[56] Ms Watson took a period of annual leave from 21 December 2020 until 3 January 2021.

[57] On or around 6 January 2021 a direction was issued approving the use of face shields for Mask Exemption Certificate holders, based on the medical approval of Dr Russell Brown, Medical Officer, Qantas Medical. On that day, Barbie Bains issued a COVID-19 Mandatory Face Mask Medical Adjustments Certificate which stated that the Applicant could use an appropriate face shield instead of a mask.   

[58] Ms Thompson stated that on or around 9 January 2021, the Applicant was “paxing” on a flight from Hobart to Brisbane. In other words, she was rostered on, being paid and in Qantas uniform on this flight, but was not operating as cabin crew. She could, however, be called on at any moment to assist. She sat in a customer seat and did not wear a face mask or shield. NJS received a complaint from a customer about the Applicant not wearing a face mask or shield.

[59] On or around 11 January 2021, Ms Thompson stated that the Applicant submitted Incident Report 332587 via the lntelex System, an online incident reporting system used by the Qantas Group. In that report, the Applicant stated that a passenger had taken a photo of her, which made her feel incredibly uncomfortable. She asked one of the other crew members to approach he passenger and tell them it was inappropriate to take photos of a crew members and that she should delete the photo. The passenger stated that she was taking the photo because the Applicant was not wearing a mask.

[60] On 19 January 2021, Ms Thompson sent an email to the Applicant to check in on how she found wearing the face shield and to inform her that a complaint had been received. Ms Thompson also sent an email to Dr Prasad requesting his medical advice about the Applicant's medical fitness to perform her role.

[61] The Applicant responded to Ms Thompson’s email on 21 January 2021 expressing her dissatisfaction with wearing a face shield, following which Ms Thompson sent a further email to Dr Prasad and Ms Bains extracting parts of Ms Watson's response. Ms Thompson then sought to schedule a meeting between herself, the Applicant and Ms Jennifer Newell, Human Resources business partner on 25 January 2021.

[62] On 1 February 2021, Ms Thompson attended a meeting with Dr Prasad, Ms Newell and Ms Jill Svanberg, Manager Case Management, to discuss the Applicant's fitness to perform duties as cabin crew. At that meeting, Dr Prasad recommended that the Applicant was temporarily unfit for flying work.

[63] Following the meeting, Ms Thompson phoned the Applicant and left a voice message to inform her of Dr Prasad's recommendation. She then emailed the Applicant to confirm the recommendation that she was unfit for flying work but was still fit to perform ground-based non-safety critical work. An Independent Medical Examination (IME) was scheduled for the Applicant on 3 March 2021.

[64] On 15 February 2021, Ms Thompson received an email from the Applicant's legal representative, Mr Grealy, setting out a chronology of events thus far in relation to the mask requirements and claimed that the mandate was unlawful, a breach of contract and a form of discrimination. Accordingly, the Applicant demanded to be reinstated to her normal cabin crew duties immediately. Further, if that did not occur, the Applicant would have no alternative but to take the matter further.

[65] On 22 February 2021, Ms Thompson sent a referral letter to Red Health in preparation for that IME along with relevant documentation.

[66] The Respondent, through Ms Thompson, responded in a letter on 23 February 2021, which first noted that the Applicant’s employing entity was NJS and not Qantas and then went on to describe the role of a cabin crew member and its inherent requirements. That letter stated that:

“When Jessica disclosed that she was unable to wear a mask or a face shield due to underlying medical conditions, we became concerned that she may not be fit to perform the inherent requirements of her role should there be an emergency situation or medical situation on board an aircraft. On advice from Qantas Medical, Jessica was given alternative duties or the option of not attending work on full pay while NJS determines whether her medical conditions may impact her ability to perform the inherent requirements of her role. To this end, Jessica has been asked to attend an independent medical examination (IME) with Dr Navin, Occupational Physician, on 3 March 2021, to which she has agreed. The purpose of the IME is to understand Jessica’s fitness for work and to ensure she is able to perform her role safely. Once we receive Dr Navin’s report, this will be shared and discussed with Jessica, and will assist NJS to determine whether Jessica is fit to perform the inherent requirements of her role and what, if any, reasonable adjustments could be made.”

[67] The letter went on to reject the allegations that there had been any breach of conduct or discrimination.

[68] On 25 February 2021, Mr Grealy wrote back to Ms Thompson stating that there is no indication whatsoever that the Applicant could not perform the emergency procedures. Further her medical conditions preclude her from wearing a face mask or shield for extended periods but does not meant that she cannot wear a face mask, fire hood or oxygen masks for the short time that such measures might be necessary in an emergency. The Applicant maintained that any reasonable doubt the Respondent may have harboured in relation to the Applicant’s ability to perform her duties must be extinguished by a letter from Dr Phoebe Brandis, the Applicant’s neurosurgeon, which stated:

I reviewed Jessica in the neurosurgery out-patient department at the Princess Alexandra Hospital today. She is followed up in our clinic for a left frontal skull haemangioma.

I understand she has had issued with face masks and shields at work due to headaches. There are no medical restrictions to her using whatever protective personal equipment is necessary.”

[69] Further, Mr Grealy stated that NJS had taken action to restrict the Applicant’s employment because she could not wear a face mask for extended periods of time and that this was discriminatory. Finally, he confirmed that the Applicant would not attend the IME. That

[70] On 3 March 2021, Ms Thompson notified Mr Grealy that the IME had been cancelled, and NJS would assess Dr Brandis' letter.

[71] On 9 March 2021, Ms Thompson attended a Microsoft Teams meeting with the Applicant, Mr Grealy and Ms Newell to discuss NJS’ concerns around Ms Watson's ability to perform her role as cabin crew. Ms Thompson’s evidence was that at this meeting the Applicant agreed to schedule an appointment with her general practitioner to answer a number of questions prepared by NJS, rather than attending an IME. A letter was to Dr Stowell on 10 March 2021 setting out NJS’s concern and requesting a medical opinion.

[72] On 14 April 2021, the Applicant sent Ms Thompson a medical certificate from Dr Stowell dated 26 March 2021 which stated that:

“…I understand that Jessica has been employed by your company as a flight attendant for about 8 years. At no time during this 8 years have you ever had reason to question her fitness to fly and carry out her required duties, whether they be her normal duties or those required in the case of an emergency.

As is demonstrated by her unhampered ability to carry out her employment duties over the last 8 years despite the existing Hashimoto’s Disease, skull tumour or anxiety, I confirm that Jessica’s medical conditions do not affect ability to:

1. Wear a fire hood for the limited time it would be required in an emergency;

2. Wear an oxygen mask for the limited time it would be required in an emergency; or

3. Wear a surgical mask for the limited time it would be required to assist in a contagious passenger (although I cannot think of an occasion where a contagious person would be on a flight).

In response to your specific questions:

1) Jessica suffers from well-controlled Hashimoto’s Thyroiditis – this does not affect her day to day work.

2) Jessica also has a benign frontal bone tumour that does not affect her day to day work.

3) Jessica has no symptoms that currently affect her ability to work.

4) Jessica is on thorough treatment for her Hashimoto’s Disease, namely diet, supplements and medication. The skull tumour is not a major medical concern for now.

5) Jessica’s prognosis:

(a) For Hashimoto’s Disease – excellent;

(b) For skull tumour – because it is not a brain tumour – very good.

Neither of these conditions will have any effect of her ability to perform all her duties as cabin crew during normal or emergency operating procedures…”

[73] On 30 April 2021, Mr Grealy wrote to Ms Thompson stating that the Respondent had been allowed sufficient time to review Dr Stowell’s report and its contents. He noted that Dr Stowell had stated, in no uncertain terms, that the Applicant’s medical conditions would not prevent her from discharging the duties that might be required of her in an emergency situation. Specifically, that she could wear a face mask, fire hood or oxygen mask for the short time that such measure might be necessary in an emergency. Further, he wrote, Dr Brandis had also confirmed that the Applicant is able to discharge the duties required of her in any emergency. The Respondent thus had “no reason to believe that Jessica is unable to perform the duties of her employment as a Cabin Crew member [and]… NJS has no lawful reason to keep Jessica from returning to those duties”. As such, Mr Grealy wrote that the Applicant should be immediately reinstated and if no response was received by 5 May 2021, they would assume NJS did not intend to return her client to Cabin Crew duties and the Applicant may provide instructions to bring a general protections claim.

[74] On 7 May 2021, Ms Thompson sent a letter by email to Mr Grealy commenting on the medical evidence that had been provided to the Respondent. Specifically, Ms Thompson pointed out that neither Dr Stowell nor Dr Brandis’ reports refer to any medical condition or symptom that prevents the Applicant from wearing a face mask or shield. Accordingly, Ms Watson return to her role as cabin crew, effective 14 May 2021, and that in doing so she was required to follow the Company’s lawful and reasonable direction to wear a face mask or face shield. Any failure to do so may result in disciplinary action up to or including termination.

[75] Ms Thompson gave evidence that on or around early 10, 11, 12 and 13 May 2021, she phoned and left voice messages for the Applicant to discuss her return to work as set out in NJS's letter of 7 May 2021. This was followed up by an email on 13 May 2021, in which Ms Thompson noted that she had tried to contact the Applicant by phone to discuss her return to work and asked her to contact Ms Thompson.

[76] Later that day, Mr Grealy wrote to Ms Thompson stating that:

“…there is nothing in Jessica’s Employment Contract that would enable NJS to mandate face masks without her fully informed consent. Any mandate that employees wear face masks amounts to a substantive variation to the terms of the Employment Contract and it has no legal effect unless and until Jessica consents to it.

Jessica does not consent to the variation. In fact, she cannot do so without risking her health. Therefore, the mandate that she wears a face mask is unlawful and unenforceable.

NJS is not an authorised officer under the relevant public health legislation. It has no power to enforce Public Health Directives and it certainly has no power to introduce mandates that create greater burdens on its employees than those Public Health Directives.

By directing Jessica to perform her duties as a Cabin Crew Member whilst wearing a face mask at all times, despite that fact that she has provided suitable evidence of adverse medical conditions, NJS is:

- Discriminating against her on the grounds of her medical conditions; and

- In fundamental breach of the Employment Contract.

Jessica cannot safely wear a face mask. The direction that she does so is onerous and unnecessary and amounts to a repudiation of the Employment Contract. Jessica has no alternative but to accept this repudiation and termination her Employment Contract, effective immediately.

With respect to the termination of the Employment Contract, it is our view that it amounts to a constructive dismissal and our client is therefore entitled to apply to the Fair Work Commission for breaches of the General Protections in the Fair Work Act. Further, NJS’s conduct amounts to discrimination, entitling our client to apply to the Human Rights Commission for compensation. Our client expressly reserves her rights in relation to these claims.”

[77] The Applicant did not present for her shift on 16 May 2021.

[78] On 2 June 2021, Ashurst Australia on behalf of NJS sent a letter to Mr Grealy stating that:

  Mr Grealy’s letter of 13 May 2021 amounted to a repudiation by the Applicant of her contract of employment;

  NJS’s direction to wear a face mask or shield whilst performing her duties as operating cabin crew was a reasonable and lawful direction particularly given this is subject to the provision of medical evidence that satisfies NJS that Ms Watson is unable to wear a face mask or shield, but is otherwise still able to meet the inherent requirements of her role, for example in relation to emergency procedures;

  The medical evidence provided to date has not satisfied Qantas Medical that the Applicant has a medical condition that prevents her from wearing a face mask or face shield. It was noted that NJS had requested, and Ms Watson had initially agreed, to attend an IME on 3 March 2021 to obtain further medical information on her ability to wear a face mask or face shield but that Ms Watson failed to attend the appointment;

  NJS’s direction did not amount to a repudiation of her employment contract and that the purported acceptance of such repudiation in Mr Grealy’s letter of 13 May 2021 has no basis. As such, the employment remains on foot;

  That said, Mr Grealy’s 13 May letter evinces an intention by the Applicant that she no longer wishes to remain in employment with NJS and that she should confirm whether she wishes to resign; and

  If the Applicant did not resign, NJS would direct her to attend an IME.

[79] On 3 June 2021, Mr Grealy responded to Kathy Srdanovic from Ashurst by email:

“…An application for unfair dismissal and breach of General Protections has been filed in the Fair Work Commission.

Your view that the direction that my client wear a mask at all time whilst performing her duties is not a reasonable employment direction. Sufficient medical evidence has been provided to enable your client to confirm that my client suffers from legitimate medical conditions that make it unsuitable for her to wear a face mask for extended periods of time. By refusing to accept this evidence and demanding that my client go to work with a mask, your client is not only discriminating against my client but is potentially placing my client in a position of significant danger.

My client will not be attending an IME. We have gone through this before. NJS is not entitled to demand that any employee attend on an IME. This is beyond the requirements of its ordinary operations and results in discrimination against employees who cannot wear face masks for extended periods of time.

Unless your client is prepared to pay out significant compensation for its unnecessarily prejudicial conduct, further discussions can take place at the impending conference.”

  NJS maintained that the direction was within the scope of the Applicant’s contractual requirement to comply with all lawful and reasonable directions and that NJS had not repudiated the contract. The matter then came before the Commission.

Statement of Narelle Leong

[80] Ms Narelle Leong, employed by Qantas as Head of Customer Strategy, Insights and Advocacy, also gave evidence in this matter. She stated that in May 2020, they started surveying the Qantas Airline Advisory Panel about a series of matters related to the airline’s recovery and stimulation. The survey conducted in May 2020 included questions relating to barriers to flying and safety measures. At this stage, the 14-day quarantine period and risks of infection were identified as the primary barriers to flying.

[81] On 19 May 2020, the Qantas Group announced the launch of the Fly Well program, which brought together a range of measures designed to ensure a safe travel environment and increase customer confidence. Fly Well was rolled out from 12 June 2020 and was still in operation at the time of the hearing. The health measures which originally formed part of the program were based on a combination of best-practice medical advice and feedback from customers. Ms Leong stated that in September 2020, the survey to the Qantas Airline Advisory Panel indicated a significant increase in the number of respondents who believed that “cabin crew wearing masks and gloves” was a mandatory or critical safety practice they expected from Qantas to make them feel confident in flying. This moved up from about half of respondents in May 2020, to over two-thirds in September 2020. An industry survey shared by the International Air Transport Association dated 10 September 2020, indicated that frontline staff (including crew) wearing masks reassured 87% of airline travellers, and was the top reassuring factor in air travel during the pandemic. In response to that feedback, on 26 October 2020, the Qantas Group introduced a change to the Fly Well program and made masks mandatory for all customer facing employees, including cabin crew.

[82] Ms Leong’s evidence was that one of their key measures of customer satisfaction is their Net Promoter Score. Cabin crew service is a key driver of this score across all operations. Consequently, getting the service proposition right is a key priority. This includes a range of measures, including food and beverage service, consistent uniform and grooming standards for crew, quality service in line with Qantas’ premium brand and safety training. Ms Leong’s evidence was that getting the service proposition right also includes ensuring that customers feel safe while they are being served, and that crew are seen as accessible and friendly. She stated that mask wearing by front line staff is a key safety measure impacting the NPS.

[83] Ms Leong stated that the most recent travel sentiment survey of the Qantas Airline Advisory Panel that discussed safety measures for domestic travel was conducted in January 2021. She stated that this showed a continuing upward trend in cabin crew wearing masks being a mandatory/critical safety measure. Specifically, the January 2021 recovery research survey produced the following results:

  Two-thirds of customers rated potential infection from cabin crew as a medium/high barrier to flying;

  78% of customers believe that cabin crew wearing masks is a mandatory/critical safety measure to provide confidence about flying; and

  Most customers believe in the usage of face masks, with 90% stating that face mask availability is a mandatory/critical safety measure.

[84] Ms Leong’s evidence was that within the Qantas Group, they also measure customer satisfaction and advocacy via operational post-flight surveys. The surveys are sent to customers within 48 hours after their flight and they have seven days to respond. The questions cover a series of topics including food and beverage, service and overall satisfaction with cabin crew. There are also free-field text opportunities where customers can enter their own comments.

[85] In around July 2020, Ms Leong stated that they introduced a question aimed at understanding the customer’s level of satisfaction with Qantas’ COVID-19 response, namely “how satisfied are you with Qantas’ response to COVID-19” and also "from a safety perspective, how comfortable did you feel flying with Qantas".

[86] Ms Leong stated that their operational post-flight research highlighted the following:

  Customer satisfaction with the cabin crew is at historically high levels;

  Where customers rate cabin crew low, they are asked to include why in a free text field. The comments indicate that appropriate mask usage was a contributing factor;

  80% of customers were satisfied/highly satisfied with Qantas’ COVID-19 response, and a similar level comfortable flying with Qantas’ safety measures. Specifically:

  Customer satisfaction has been high since the launch of Fly Well and improved from about September/October 2020 as Fly Well measures were embedded; and

  As part of their ongoing tracking and input into enhancing the customer experience, they undertook text analytics of the free-field text related to Fly Well in February 2021. Masks was one of the most mentioned topics across Qantas airlines, and particularly so for QantasLink; and

  In relation to domestic flying and QantasLink, over two-thirds of customers surveyed in the April 2021 operational survey believed that face masks should be mandatory for all customers for the duration of the flight. This question was discontinued from May 2021.

[87] Ms Leong stated that customer complaints relating to cabin crew not wearing masks can be escalated to the relevant cabin crew team responsible for those flying operations. Thematic feedback is also regularly given to each business unit in relation to negative customer sentiment and complaints, including relating to mask usage.

Applicant’s Submissions

[88] The Applicant alleges that she was constructively dismissed by the Respondent and she was forced to resign by the conduct of the Respondent, including breaches of the Contract and General Protections in the Act.

[89] The Applicant submitted that she did not give notice to the Respondent on 7 May 2021 that she terminated her employment. The Applicant submitted that until either the Applicant or Respondent gave notice of the intention to terminate the Contract and/or employment relationship, the Applicant’s employment remained on foot. Further, she submits that notice of termination was not given to the Respondent until 13 May 2021. Therefore, the Applicant submitted that the employment contract and relationship did not end until 13 May 2021.

[90] The Applicant submitted that it is inarguable that the Contract came to an end on 7 May 2021. She claims it is well settled that no contractual relationship can come to an end unless and until notice of the termination has been communicated to the other party. That notice occurred on 13 May and on that basis, the application was lodged within 21 days.

Termination of Employment Contract

[91] The Applicant submitted that the Mask Direction was not the sole reason for the Applicant’s termination of the Contract. Additionally, the Respondent has engaged in discriminatory conduct, bullying and harassment since 26 October 2020. Namely:

  On 26 October 2020, the Respondent introduced policies that exceeded the restrictions made by the Chief Health Officers in the Australian States. These policies required all employees to wear face masks at all times when in view of customers and follow the new process for determining whether the employee was “exempt” from wearing a face mask at work. In implementing such policies, the Respondent immediately discriminated against employees for whom it was unsuitable to wear a face mask;

  The Respondent applied different rules to passengers and cabin crew. Passengers could fly without a mask and without producing evidence of their medical conditions, whilst the Applicant was stood down from her employment because she was unable to wear a face mask;

  The Respondent tried to force a face shield on the Applicant when she could not tolerate wearing a face mask, even though there is no scientific evidence to support a face shield being effective;

  When a complaint was made about the Applicant by a passenger, the Respondent sided with the passenger who was actively discriminating against her;

  The Respondent failed to perform any, or any reasonable, investigations to determine whether it was safe for its employees to wear face masks for long periods of time;

  There was no credible scientific evidence to support the conclusion that wearing face masks for long periods of time was without risk to the health and safety of employees or that face masks offered any, or any significant, protection against COVID-19;

  There was significant scientific evidence to show that wearing a face mask for extended periods of time would harm the wearer and surgical masks did very little to stop the spread of viruses;

  The Respondent asserted that the Applicant’s inability to tolerate a face mask meant she could not properly discharge the Emergency Duties, when there was no legitimate reason to draw a correlation between the two;

  The Respondent demanded the Applicant attend an IME, without any lawful right to do so;

  The Respondence refused to accept the evidence provided by two doctors that it was unsuitable for the Applicant to wear a face mask and the evidence of Dr Stowell that the Applicant was perfectly able to perform the emergency duties;

  The Respondent directed employees to wear special masks with the Qantas logo and others supplied by the Respondent, without having performed any, or any suitable, investigations as to whether the said masks were safe and fit for purpose;

  The Respondent decided that the Applicant could not perform her duties as a cabin crew member without a face mask, despite agents of Qantas representing that viral transmission on aircraft was highly unlikely;

  The Respondent introduced policies that have little to do with public safety and a lot to do with public perception. This is admitted by Narelle Leong in her Statement, where she confirms that the Mask Direction was driven by customer surveys and not safety;

  The Respondent bullied and harassed the Applicant because she could not tolerate wearing a face mask;

  The Respondent took issue with the Applicant’s assertions that she had rights as an employee and was not prepared to allow the Respondent to unlawfully impact those rights; and

  The Respondent isolated the Applicant from her colleagues by refusing to allow her to perform her usual duties, without any regard for her mental health.

[92] The Applicant alleges that the Respondent made the process of obtaining a mask exemption overly complicated, when all that was required was a note from the employee’s doctor confirming they suffered a medical condition that made it unsuitable for them to wear a mask. The Applicant asserts that the Respondent has not granted anyone a ‘mask exemption’.

[93] The Applicant submits that the Respondent’s conduct has been unnecessarily combative and in contumelious disregard for the Applicant’s physical and mental health, her safety and rights as an employee. She says this is demonstrated by the following acts of the Respondent:

  standing the Applicant down for being unable to wear a face mask and refusing to accept medical evidence from two doctors regarding her inability to do so;

  maintaining that the real reason for standing her down was that she could not satisfactorily perform the emergency duties and refusing to accept Dr Stowell’s statements that the Applicant could carry out the emergency duties without issue;

  compelling that the Applicant attend an IME with a doctor nominated (and regularly engaged) by the Respondent; and

  demanding that the Applicant return to work as a cabin crew member and wear a face mask.

[94] The Applicant submits that she was forced to resign from her employment. The Applicant alleges that the Respondent was going to make her come to work and wear a face mask, despite the advice from two doctors that it was unsuitable for her to do so. She says her only options were to attend an IME that the Respondent was not lawfully entitled to demand, with a doctor paid, and regularly engaged, by the Respondent or go to work and wear a face mask and risk an adverse medical event.

Unlawful and Unreasonable Direction

[95] The Applicant submits there is no term in the Contract that requires the Applicant to wear a face mask in the course of her employment, nor any term that enables the Respondent to arbitrarily vary the terms of that contract. The Applicant alleges that the mask requirement amounts to a fundamental variation to the Contract and is unenforceable without the Applicant’s consent.

[96] The Applicant submits that clause 14 of the Contract provides that policies and procedures do not form part of it. Where there is no mutuality of obligation in respect of policies, it would be unconscionable for the Respondent to bind the Applicant to them and it is estopped from so doing. Further, the Applicant submits the Respondent is not lawfully permitted to use policies and procedures to surreptitiously introduce fundamental changes to the terms of employment. The Applicant contends that the mask direction is thus only enforceable if the employee consents. The Applicant submits that for those reasons, the Applicant is not bound by the relevant policies, and the mask direction was, and is, not a lawful or reasonable instruction.

[97] Further, once the Respondent introduced the mask requirements, it was obligated to investigate the impact that COVID-19 would have on passengers and employees on aircraft and elsewhere, the safety of wearing safety for extended periods and determine whether the wearing of facemasks would have a significant impact regarding the prevention of transmission of COVID-19 in the aircraft. The Applicant contends that given there is no evidence the Respondent did any such investigation, any direction to its employees to wear face masks for extended periods of time is not reasonable or lawful.

[98] Further, and in any event, the Applicant submits that to mandate masks at all times that an employee is in sight of the public demonstrates that the direction was more about public perception than public health and was not a proportionate response given there was a relatively minor risk of transmission of COVID-19 on an aircraft, that individuals who are most vulnerable to complications from COVID-19 would not have been flying and where the danger from COVID-19 has been overstated and misrepresented.

[99] The Applicant submits that the response is particularly disproportionate because directing the Applicant to wear a face mask had the capacity to cause her physical and mental harm.

[100] The Applicant contends there was no good reason for the Respondent to introduce requirements that exceeded the restrictions put in place by the Chief Health Officers. Each relevant Public Health Order specifically exempted certain people and did not require them to carry or produce evidence of their medical conditions. The Applicant submits that any direction by the Respondent that exceeded the Public Health Orders were not reasonable or lawful and were completely unnecessary.

Medical Reports

[101] The Applicant submits that the Respondent gave no explanation as to why Dr Brandis and Dr Stowell’s correspondence were insufficient to establish that the Applicant could not wear a face mask but could perform the emergency duties. She avers that as her treating doctors they were significantly better qualified that any IME doctor to determine her medical status. Further, the Applicant contends the Respondent relied on Dr Prasad’s evidence to justify its decision to stand the Applicant down even though, having never seen the Applicant, he is not qualified to comment on her medical conditions.

Statement of Jessica Watson (the Applicant)

[102] Ms Watson began her employment with the Respondent as a cabin crew member in 2013. At that time, she was provided with a written employment agreement, referred to above as the Contract. Although the Contract referred to Company Policies, Ms Watson said she was not provided with copies of such policies at or about the commencement of her employment but is now aware of the Qantas Group’s Code of Conduct and Ethics and Standards of Conduct Policy.

[103] In August 2015, she was diagnosed with Hashimoto’s Disease. Though she noticed a lump associated with a frontal lobe tumour in 2017, it was not formally diagnosed until September 2020. Ms Watson says she has not suffered any symptoms or issues arising out of either condition that affects her ability to discharge her duties as a cabin crew member. Further, approximately every twelve months since she commenced employment, she has been assessed in line with the Respondent’s Emergency Procedures Policies, on her ability to wear a fire hood, and has passed on each occasion. She accepts that in an emergency she may be required to wear an oxygen mask or a fire hood. However, she says that such emergencies are short lived and so she would only be required to wear the PPE for a short time. She stated that, in any event, both the oxygen masks and fire hood enable the wearer to breath filtered air and do not interfere with the wearer’s ability to breathe or otherwise absorb oxygen.

[104] Ms Watson stated that on or about 26 October 2020, she received an email from Przemek Mazurek, Head of Safety and Compliance, informing her that, from 28 October 2020, all cabin crew would have to wear face masks while performing their duties. At or about this time, she came into possession of the Qantas Group – Mandatory Face Mask Medical Exemption Guidelines, the Mandatory Masks Q&A and the Domestic Cabin Crew Safety Protocols.

[105] At no time before 28 October 2020, did her medical conditions affect her ability to perform her duties as a Cabin Crew Member. However, when she saws these documents, she was concerned that she would not be able to wear a face mask for extended periods of time. She used a face mask in July 2020 and found that it caused her breathing difficulties and anxiety. Consequently, she attended her doctor to obtain an opinion concerning the safety and suitability of her wearing a face mask for extended periods.

[106] On or about 28 October 2020, Ms Watson obtained a medical certificate from her personal doctor, Dr Phillip Stowell (extracted above). That medical certificate was provided to Ms Thompson the following day. Qantas Medical then required Ms Watson to fill out a form entitled COVID-19 Mandatory Face Mask Medical Exemption Certification (Exemption Application).

[107] Ms Watson provided a completed Exemption Application to Qantas Medical on or about 31 October 2020. Ms Watson received an email from Jo-Anne Bird, Senior Brisbane Base Manager, rejecting it on or around 3 November 2020. Ms Watson stated that she was surprised that Ms Bird was privy to her medical details, as she did not consent to those details being disclosed. Ms Bird told her that her Exemption Application had been rejected because Qantas Medical did not accept that she suffered from a medical condition that made it unsafe for her to wear a face mask. On or about 10 November 2020, Ms Watson sent an amended medical certificate to Qantas Medical (extracted above).

[108] On 8 December 2020, Ms Watson spoke with Ms Bains about her exemption. During this conversation, Ms Watson revealed she was suffering from Hashimoto’s Disease and a frontal lobe tumour. Ms Watson said that Ms Bain told her that the Respondent was not approving any exemption applications.

[109] On 30 December 2020, Ms Watson understands Ms Bird sent an email to Dr Prasad seeking a recommendation about the use of face shields for employees who could not safely wear a face mask.

[110] Between 26 October 2020 until 9 January 2021, Ms Watson continued to perform her cabin crew duties without wearing a face mask. She says there were no incidents or issues arising from this until on or about 9 January 2021, while Ms Watson was performing flying duties without a face mask, a female passenger took her photo with a phone. This made Ms Watson uncomfortable and an incident ensued, which was documented by Ms Watson in the incident report described above. On 13 January 2021, Ms Watson received an email from Ms Thompson, asking why she was had not been wearing a face shield.

[111] On 13 January 2021, she stated that Ms Bird sent an email to Jacinta Atkins and Ms Thompson noting that Ms Watson did not wear the face shield.

[112] On 14 January 2021, Ms Watson emailed Ms Thompson and others and noted that she was getting no communication from Qantas and that Qantas was failing in its duty of care to employees. Ms Watson confirmed that bullying directed at unmasked employees was unacceptable.

[113] On 14 January 2021, Ms Watson said she received an email from Ms Thompson, wherein she sought to arrange a meeting, asked that she send her ‘medical exemption’ to keep it on file and escalate to Qantas Medical if need be and asked what PPE she was wearing to comply with current mask mandates in Queensland.

[114] On 15 January 2021, Ms Watson sent an email to Ms Thompson and others, wherein she confirmed that she did not have to wear a face mask in Queensland, as the Public Health Direction excepted persons suffering medical conditions that made in unsuitable to wear a face mask, and said that Qantas’s conduct was causing her increased stress.

[115] On 15 January 2021, Ms Watson received an email from Ms Thompson, wherein she asked whether Ms Watson had a medical exemption in accordance with the Public Health Act and said that Qantas was in the process of mandating face masks on all flights irrespective of the State Legislation. Accordingly, Ms Thompson stated that Ms Watson was required to wear a face shield in accordance with the Qantas Mask Policy.

[116] On 19 January 2021, Ms Watson received an email from Ms Thompson, asking how Ms Watson went wearing the face shield, how her appointment with the neurologist had gone and whether Ms Bains had required her to deliver any medical documentation regarding her tumour to Qantas Medical to review for her mask exemption. Ms Thompson also advised that Qantas had received a complaint from a passenger about Ms Watson not wearing a face mask. Ms Thompson told her that her ‘mask exemption’ still required her to always wear a face shield while at work and it was simply unacceptable for her not wear any face PPE.

[117] On 21 January 2021, Ms Watson sent an email to Ms Thompson, wherein she wrote that she found the face shield to be horrible, had developed a headache within an hour of putting it on and that it had become unhygienic very quickly. She also wrote that her neurologist said she would need another MRI in March because the tumour had grown. Ms Watson also asserted that Qantas’s conduct in relation to masks could be seen as coercion.

[118] On 21 January 2021, Ms Watson received an email from Ms Thompson confirming that Ms Watson’s mask exemption only allowed her to work with the face shield, and she was not approved for work without any form of PPE.

[119] Ms Watson sent an email to Ms Bains later that day stating that she had trialled the face shield and it was awful, rigid, had impaired her vision, caused pain on the bridge of her nose, given her headaches and was exacerbating her anxiety. She said she did not like being coerced into wearing a face shield, just because she could not wear a face mask and as there was no mask mandate in her contract of employment, the Respondent was discriminating against her.

[120] On 25 January 2021, Ms Thompson sent an email to Ms Bains (copying Ms Watson), noting her complaint on 21 January 2021 about the discomfort the face shield was causing due to her frontal lobe tumour.

[121] On 1 February 2021, Ms Watson received an email from Ms Thompson wherein she advised that she had a meeting with Qantas Medical to discuss Ms Watson’s inability to safely wear a face mask and her medical conditions and that Dr Prasad had decided that she was unfit for flying duties. Accordingly, Ms Thompson was removing Ms Watson from flying duties, effective 2 February 2021.

[122] On 2 February 2021, Ms Watson responded by email to Ms Thompson, wherein she asked why she was considered unfit for flying duties and stated that, in her opinion, that was not true and that she was perfectly capable of fulfilling the normal duties on an aircraft, as she had since she commenced employment with the Respondent. Ms Watson did not agree to being placed on administrative duties and was performing those duties under sufferance and stated that wished to have equal access to opportunities for professional development, promotions and working conditions.

[123] On 7 February 2021, Ms Thompson emailed Ms Watson stating that:

  the role of Flight Attendant is safety critical;

  the Respondent’s decision to temporarily ground her was based on her medical disclosures, which require further medical assessment against the inherent requirements of the role, to ensure that she could safely perform the duties of a Flight Attendant;

  The Respondent’s preference was to seek information from her treating doctor but reserved the right to refer her to an IME for a second opinion;

  Ms Thompson had made an appointment with Dr Marcus Navin of Red Health Independent Medical Assessments on 3 March 2021; and

  The Respondent would make the appointment with Dr Navin and pay for it, but Dr Navin would only provide information to the Respondent with Ms Watson’s consent.

[124] On or about 11 February 2021, Ms Watson engaged Mr Grealy from Australia Law Partners to act on her behalf.

[125] On 23 February 2021, Ms Watson obtained a letter from her treating neurosurgeon in relation to her medical conditions. She did not attend the IME appointment on 3 March 2021.

[126] On 9 March 2021, Ms Watson attended a teleconference with Ms Thompson and Mr Grealy.

[127] On 17 March 2021, Ms Watson attended on Dr Stowell for the purpose of obtaining a report to confirm that her medical conditions did not prevent her from carrying out the Emergency Duties.

[128] On 26 March 2021, Ms Watson received an email from Nick Bull stating that employees must wear the medical grade masks and not disposable masks, the risk of COVID19 transmission onboard aircraft remains very low and that the Respondent had been moving towards TGA-approved masks over the past month.

[129] Ms Watson stated that on 14 April 2021, Dr Stowell’s report (extracted above) was provided to Ms Thompson.

[130] In the hearing, Ms Watson stated that she did not, nor did she intend to, resign on 13 May. It was put to Ms Watson that her submissions stated that she resigned 13 May, to which she agreed but could not recall reading those submissions at the time but has always gone through with the advice given to her.

[131] Ms Watson was questioned in the hearing about a text message which stated that she had not resigned and was going to hang on to her Qantas belongings such as her badge and pass. Ms Watson stated that she felt like if she had handed it back, the Respondent could have just wiped their hands clean of her and not provided any further response.

[132] Ms Watson stated that she was being paid for about another two pay periods after 16 May and was being called for duty after 13 May. She said she responded to this by saying she would not wear a face mask. Ms Watson stated that after the pay stopped, there was no further communication from the Respondent, apart from the Respondent seeking her Qantas belongings, so she went and found another job.

[133] In the hearing, it was put to Ms Watson that the Respondent’s representative had sent a letter on 22 June 2021, informing her that her salary would be ceased to be paid from 22 June 2021. Ms Watson said she had not been shown this letter. Ms Watson said she had also not seen a further letter sent to her representative on 20 August 2021 seeking the return of all company property.

Statement of Robert Grealy

[134] The Applicant’s Representative, Mr Grealy provided a statement acknowledging that he had been engaged by the Applicant on or about 11 February 2021 in relation to her employment as a cabin crew member. On 15 February 2021, he emailed a letter to Ms Thompson and Ms Bird regarding the standing down of the Applicant, notifying them of the Respondent’s discriminatory conduct and demanding that the Applicant be reinstated to flying duties.

[135] On 23 February 2021, he received correspondence from the Respondent, wherein it contended that the Applicant might not be fit to perform cabin crew duties because of her inability to wear a face mask and confirmed that an IME appointment had been made for her on 3 March.

[136] On 25 February 2011, Mr Grealy stated that he emailed a letter to Ms Thompson, confirming that there was no indication that the Applicant could not perform Cabin Crew duties, an inability to wear a face mask for long periods of time had no correlation with the ability to perform emergency duties, that the Applicant had provided sufficient medical evidence to show that she is capable of performing cabin crew duties (including emergency duties) and that it was not lawful for the Respondent to demand the Applicant to attend an IME and so she would not be attending.

[137] Mr Grealy stated that by error, the medical report of Dr Phoebe Brandis was not attached to the aforesaid email. The medical letter was emailed to Ms Thompson on 2 March 2021. He stated that at the time she provided her report, Dr Brandis was the Neurosurgery Principal House Officer at the Princess Alexandra Hospital.

[138] Mr Grealy’s evidence was that on 3 March 2021, Ms Thompson confirmed that Ms Watson did not have to attend the IME appointment scheduled for 3 March 2021. On 9 March 2021, he attended on a teleconference involving the Applicant and Ms Thompson. Mr Grealy stated that during this teleconference Ms Thompson said that Dr Brandis’s report was insufficient to show that the Applicant could discharge the emergency duties and the Respondent required her to attend an IME. In response, Mr Grealy confirmed the Applicant would not be attending an IME and would, instead, obtain confirmation of her ability to perform the emergency duties from her doctor.

[139] Mr Grealy stated that on 16 March 2021, Ms Thompson emailed a Work Medical Assessment Questionnaire to Dr Stowell, the Applicant’s other treating doctor. Mr Grealy understood that the Applicant attended an appointment with Dr Stowell the following day. Dr Stowell then provided a report on or about 14 April 2021, confirming that Ms Thompson was able to perform the emergency duties and would not be prevented from so doing by her medical conditions.

[140] Mr Grealy said that on 30 April 2021, he emailed a letter to Ms Thompson, noting the content of Dr Stowell’s report and demanding that the Applicant be allowed to return to flying duties. He said that on 7 May 2021, Ms Thompson responded, acknowledging that Dr Stowell confirmed that the Applicant’s medical conditions did not prevent her from carrying out the emergency duties but also did not refer to any medical condition or symptom that prevented the Applicant from wearing a face mask or face shield. Similarly, Ms Thompson noted that Dr Brandis did not refer to any medical condition or symptom that prevented the Applicant from wearing a face mask or face shield. Ms Thompson stated that the information provided by the Applicant’s doctors did not satisfy the Respondent that the medical conditions and symptoms disclosed by the Applicant prevented her from wearing a face mask or face shield, that the direction for the Applicant wear a face mask or face shield was a lawful and reasonable direction. Further, Ms Thompson confirmed that no exemption from wearing a face mask would be granted to the Applicant and that the Respondent required her to return to work on 14 May 2021 in her role as Cabin Crew and comply with the mask mandate. Any failure by the Applicant to do so may result in disciplinary action.

[141] On 13 May 2021, Mr Grealy emailed a letter to Ms Thompson, which stated, inter alia, that the direction that the Applicant return to work as a cabin crew member and wear a face mask was unlawful and amounted to repudiatory conduct by the Respondent. Further, he said that the Applicant accepted this repudiatory conduct and terminated the Contract, effective immediately.

[142] Mr Grealy stated that on 2 June 2021, he received correspondence from Ashurst on behalf of the Respondent, wherein they asserted that the Applicant’s employment remained on foot and she was required to attend on an IME.

[143] Mr Grealy stated that he has performed his own substantial investigations concerning statistics and information related to mortality in Australia and, particularly, mortality from complications from COVID-19, other information concerning COVID-19, RT-PCR tests and the use of face masks, as well as material related to prophylaxis for COVID-19 and therapeutic treatments. While it does not appear that Mr Grealy has any particular qualifications in respect of such matters, he stated that in his opinion, the virulence of COVID-19 has been consistently overstated and misrepresented by the Chief Medical Officers, and other similar representatives, of the Commonwealth and States of Australia. He claimed that this was due to:

  Children being rarely infected or symptomatic;

  At least 40% of people who are infected being asymptomatic, with asymptomatic spread being highly rare;

  Spread from surfaces being highly rare;

  Outdoor transmission is rare;

  COVID-19 is statistically less dangerous than seasonal influenza;

  People who have had COVID-19 have T-cell immunity for an extended period of time afterward;

  Many people have natural T-cell immunity to COVID-19;

  There were less deaths from all causes in Australia in 2020 than previous years;

  Less than 10% of the deaths reported as deaths from COVID-19 complications were solely attributable to COVID-19 (both in Australia and worldwide);

  More than 90% of the reported deaths from COVID-19 complications were people who suffered from one or more comorbidities such as cancer, heart disease, diabetes; hypertension etc (both in Australia and worldwide);

  The Commonwealth and States of Australia (and their servants and agents) followed the Guidance for Certifying Deaths due to COVID19, which stated that COVID19 should be recorded as the medical cause of death for all decedents where the disease caused, or is assumed to have caused, or contributed to, death;

  The number of cases of, and ICU admissions from, COVID-19 complications in 2020 was less than the total influenza cases and ICU admissions in Australia during the 2018 influenza season;

  In July 2019, the total number of reported influenza cases in Australia was 70,070 (compared to about 30,000 reported cases of COVID-19 in about 9 months);

  The total number of reported cases of influenza in Australia in 2019 was 310,000;

  In July 2020, the total number of reported influenza cases in Australia was 153. There were no cases of influenza reported in Australia from July 2020 to March 2021;

  Most people who contract COVID-19 have mild symptoms and recover; and

  The median age for death in Australia in 2019 was 81.7 years (78.8 for males, 84.8 for females), which is less than the median age for deaths from COVID-19 complications and the median age for death from all causes.

[144] Further, Mr Grealy stated that from October 2020 to the present date, neither the Respondent nor any of its servants, employees or agents had any prior experience or qualifications that would make them competent to make employment directions concerning COVID-19 or were treating doctors.

[145] Mr Grealy’s opinion was that surgical or cloth face masks do very little to protect the wearer from catching COVID-19 and protect others from catching COVID-19. He continued by saying that long-term use of face masks will cause hypoxia, apoxia, Breathing difficulties, anxiety, asthma complications, indigestion complications, facial rashes, cancer, exacerbation of PTSD, asthma complications and bacterial complications. Mr Grealy further opined that the PCR Test was not designed to be a diagnostic tool. Rather, its intended use was as a manufacturing technique to replicate DNA sequences billions of times. As such, he stated that the PCR Test is unsuitable for determining if someone has COVID-19.

Consideration

[146] I have had regard to the wealth of submissions and evidence given by both parties.

[147] I will say at the outset that I have given no weight to the opinions proffered by Mr Grealy in respect of the transmission of COVID-19 and the effectiveness or otherwise of masks, as no evidence was provided to me of his expertise in such fields of study. In his capacity as the Applicant’s lawyer, it was not appropriate for him to purport to lead such evidence.

[148] For the reasons stated below, I am satisfied on the evidence before me that the mask mandate was a lawful and reasonable direction in the context of the COVID pandemic.

[149] It is well established at law that an employee has an obligation to comply with the lawful and reasonable directions of his or her employer. 8 To be lawful, a direction does not require a positive statement of law endorsing an action. Rather, it is sufficient that the direction does not involve illegality and “falls reasonably within the scope of service of the employee”.9

[150] The question of what is reasonable is a question of fact and balance. 10 In Woolworth Ltd v Brown, a Full Bench of the Commission observed that:

“What is reasonable will depend upon all the circumstances including the nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument governing the relationship. A policy will be reasonable if a reasonable employer, in the position of actual employer and acting reasonably, could have adopted the policy. That is, a policy will only be unreasonable if no reasonable employer could have adopted it. A policy will not be unreasonable merely because a member of the Commission considers that a better or different policy may have been more appropriate… It is not the role of the Commission ‘to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable.’”  11

[151] The mask mandate was introduced in response to the COVID-19 pandemic in 2020. The fact that its introduction was a decision come to having regard to the risk of transmission of COVID-19, the potential consequences for a person who contracts the virus based on medical evidence and guidance from health authorities, as well as public perception does not make it any less lawful or reasonable. Had the mandate been implemented without an exemption process in place for those staff who could not, for medical reasons, wear masks while conducting their duties, my conclusion may have been different. However, Qantas had a clearly documented exemption process. The Applicant, for example, having expressed the view that she could not wear a mask was offered the reasonable adjustment of wearing a face shield instead.

[152] Contrary to the Applicant’s assertion that Qantas has not granted any exemptions to employees with respect to masks, Dr Prasad stated that some exemptions (though none permanent) had been granted in appropriate cases. I prefer Dr Prasad’s evidence given that in his position, he is more likely to have accurate and up-to-date information.

[153] In the Applicant’s case, NJS was not satisfied based on the evidence presented to it that the Applicant was unable to wear a mask. That conclusion was reasonable based on the evidence provided. I have read the material provided by Dr Strowell and Dr Brandis. Neither of those practitioners referred to any medical condition which would inhibit the Applicant’s ability to do so. Based on the medical evidence provided to it, NJS was not satisfied that the Applicant was entitled to a medical exemption to the face mask mandate. NJS did not conclude that the Applicant did not have a medical condition that warranted an exemption. Indeed, they directed her to an IME – which she chose not to attend – to investigate same. NJS simply stated that evidence of such a condition had not been provided and in those circumstances, no exemption would be issued.

[154] Section 386(1) of the Act relevantly provides that a person has been dismissed if:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[155] Whether the Applicant in this case was dismissed involves a consideration of the correspondence exchanged between the parties.

[156] Ms Thompson’s letter of 7 May 2021 stated that the medical evidence provided by the Applicant had not referred to any medical condition or symptom that prevented the Applicant from complying with the mask mandate. Without such information, the Applicant was directed to return to her flying duties on 14 May 2021 and comply with the requirement to wear either a face mask or shield. The letter confirmed that any failure to do so could result in disciplinary action up to or including termination.

[157] The Applicant then chose not to contact Ms Thompson to discuss her return to work, despite Ms Thompson’s multiple attempts. On 13 May 2021, Mr Grealy responded to Ms Thompson’s letter on the Applicant’s behalf alleging that the mask mandate amounted to a contract variation, to which the Applicant did not consent. He maintained that the Applicant could not comply without risking her health and on that basis the mask mandate was unlawful and unenforceable. Further, he stated that NJS was not empowered to enforce Public Health Directives, nor could it introduce mandates that create greater burdens on its employees than those Public Health Directives. Mr Grealy then reiterated that the Applicant had provided suitable evidence of adverse medical conditions and that NJS’s direction was discriminating against her on the grounds of her medical conditions and was in breach of her contract. Finally, Mr Grealy stated that the direction that the Applicant wear a face mask was a repudiation of her employment contract by NJS. He writes, “Jessica has no alternative but to accept this repudiation and termination her Employment Contract, effective immediately…With respect to the termination of the Employment Contract, it is our view that it amounts to a constructive dismissal”.

[158] For the reasons outlined above, I am not satisfied that NJS’s letter of 7 May 2021 – and the direction for the Applicant to return to work and comply with the mask direction contained therein – was an unlawful or unreasonable direction. Further, I reject Mr Grealy’s premise that the the Applicant had provided suitable evidence of adverse medical conditions. She had not. I am therefore not satisfied that the letter amounted to a repudiation of the employment contract by NJS. As at 7 May 2021, the Applicant’s employment remained on foot.

[159] Ms Watson did not attend her rostered shift on 16 May 2021.

[160] On 2 June 2021, NJS through its solicitors sent a letter to the Applicant, through Mr Grealy, stating that NJS’s direction was a repudiation of the Applicant’s employment contract and that the purported acceptance of such repudiation in Mr Grealy’s letter of 13 May 2021 was without basis. NJS confirmed that the Applicant’s further employment remains on foot. NJS acknowledged that Mr Grealy’s 13 May letter suggested that the Applicant no longer wished to remain employed by NJS and stated that she should confirm whether she wishes to resign. NJS noted that if she did not resign, NJS would direct her to attend an IME. This was particularly necessary given the medical evidence provided to date has not satisfied Qantas Medical that the Applicant has a medical condition that prevents her from wearing a face mask or face shield and further, there was legitimate concern that this meant she could not fulfil the inherent requirements of her role, for example in relation to emergency procedures.

[161] This letter did not dismiss the Applicant, constructively or otherwise. It expressly stated that her employment remained on foot. It acknowledged that Mr Grealy’s letter implied that the Applicant did not want to return to work and if that was the case, she could resign. The letter did not require her to do so, it simply required that she confirm her position. If, on the other hand, she wished to return to work, she would be required to attend an IME so that NJS could be satisfied that the Applicant could perform the inherent requirements of her role.

[162] The Applicant lodged this application on 1 June 2021 and Mr Grealy confirmed by email on 3 June 2021 that the Applicant would not be attending an IME. Some correspondence between the parties then ensued. It must be noted that the following correspondence was mentioned for the first time at the hearing and only provided afterwards. However, the correspondence itself was uncontentious between the parties.

[163] Relevantly, on 22 June 2021, Ashurst wrote to Mr Grealy in the following terms:

“…As stated in our letter of 17 June 2021, our client National Jet Systems Pty Ltd (NJS) denies that it has repudiated the contract of employment between it and Ms Watson and considers that the employment relationship between them remains on foot. It is on that basis that NJS has continued to pay Ms Watson her usual base pay (albeit in the absence of her providing service): not as payment in respect of four weeks' notice as now claimed (or characterised) in your email.

Notwithstanding that your client was directed by NJS to return to work by its letter of 7 May 2021, she has not attended work or performed any duties. An employer is not obliged under an employment contract or industrial instrument to pay salary to an employee unless that salary is earned by service (in this case, the performance of duties in accordance with the contract). On the basis that your client has not attended work or performed any duties in accordance with her contract, and has clearly indicated a lack of willingness to do so, we are instructed that NJS will cease paying your client her usual salary effective from 22 June 2021. She will thereafter be regarded as engaging in a period of unauthorised absence.

We refer to your request in your email of 19 June 2021 that NJS pay Ms Watson "employment benefits", which we understand to mean any accrued but untaken leave entitlements that would be payable on termination of her employment. As stated above and for the reasons set out in our letter of 17 June 2021, NJS denies that it has repudiated the employment contract with Ms Watson. Further, NJS has not received any notice of resignation from Ms Watson. Accordingly, NJS considers the employment relationship to remain on foot and is therefore unable to pay Ms Watson's accrued entitlements as requested by your email of 19 June 2021...”

[164] On 22 June 2021, Mr Grealy responded to that letter in the following terms:

“…The employment contract was clearly terminated by my client via my letter of 13 May 2021. She is entitled to be paid her accrued annual and long service leave and any other relevant benefits.

If these amounts are not paid to her immediately, further legal action will follow…”

[165] On 20 August 2021, Ashurst sent Mr Grealy a letter which relevantly stated that:

“…Whilst our client does not accept that characterisation (or recharacterisation) of events, in the circumstances now pertaining, including that your client has not performed any work for our client for several months, we are instructed that NJOS is now on notice that Ms Watson has resigned from her employment. NJOS does not agree that it forced your client to resign, or that this resignation occurred on 13 May 2021.

Now that it is clear your client has resigned from her employment, NJOS will process the amounts payable to her upon the termination of her employment. For the purposes of calculating amounts payable to your client upon termination, NJOS will treat 4 August 2021 as the date of termination of her employment, being the date that Ms Watson filed submissions in these proceedings. Whilst we understand that your client disputes that date (claiming instead, a resignation date of 13 May 2021), you will appreciate that our client’s approach to the resignation date is more favourable to your client with respect to her service-based leave accruals.

To enable the processing of final payment, your client is required to complete a clearance procedure, which includes the return of all company property including electronic equipment such as a mobile phone or laptop, uniforms, Qantas ID card / ASIC cards, and any access cards and keys that may have been issued to your client…

“If your client does not agree that she has resigned from her employment, please advise by no later than 5pm on Tuesday, 24 August 2021.”

[166] On 20 August 2021, Mr Grealy wrote to Ashurst maintaining that the Applicant had resigned her employment on 13 May 2021 and is therefore entitled to payment and accrued benefits up until that date and four weeks in lieu of notice. Any amount paid beyond those entitlements would be treated by the Applicant as “damages for [NJS]’s unlawful conduct”.

[167] On 24 August 2021, Ashurst wrote to Mr Grealy stating:

“…We understand from your email that you confirm your client has resigned from her employment. In relation to the date of resignation, as set out in our letter of 20 August 2021, the Respondent was proposing to treat 4 August 2021 as the date of resignation only for the purpose of calculating termination payments, but without prejudice to your client's position in these proceedings that she resigned with effect from 13 May 2021. We note your client's position in this regard. Notwithstanding, we confirm that the Respondent will calculate payments to 4 August 2021. Please advise your client to contact Julia Thompson to organise the company clearance procedure as set out in our letter of 20 August 2021. Our client will process the resignation in its system and provide Ms Watson with her final payslip.

Your client is not entitled to pay in lieu of notice in circumstances where she resigned from her employment and, accordingly, it was your client's obligation to provide notice of her resignation. In any case, we note that the Respondent continued to pay your client her base pay up to and including 22 June 2021…”

[168] Later that day, Mr Grealy responded, relevantly, confirming that his client:

“…resigned on 13 May 2021 in circumstances that made it constructive dismissal. She is seeking reinstatement to her former position. Therefore, I consider the demand to complete the company clearance procedure to be inappropriate and premature.

As regards payment, you have been given our client's position. Any excess payment will be treated as satisfying any notice period or damages. Your client was preventing my client from returning to work. In fact, my client could not serve any notice period because your client prevented her from so doing…”

[169] It is clear from the correspondence in this case that the Applicant resigned on 13 May 2021. I must now turn to consider whether, as Mr Grealy asserts, this constituted a constructive dismissal under s.386(1)(b).

[170] The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli outlined the relevant authorities with respect to what it means for an employee’s to be terminated at the initiative of the employer. 12 In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.13 While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held that intention.14 It is sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.15 Put another way, did the employer’s conduct have the probable result of bringing about the end to the employee’s employment or leaving the employee with no effective or real choice but to resign?16 It is necessary to conduct an objective analysis of the employer’s conduct to determine if it was of such a nature that resignation was the probable result or that the employee had no effective or real choice but to resign.17 In other words, it must be shown that “the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”18

[171] The Applicant’s submissions were set out in more detail above. However, in short, she alleged that NJS’s implementation of the mask mandate and refusal to accept the correspondence and certificates from her doctor with respect to her inability to wear a mask, when considered objectively, left the Applicant with no other choice but to resign. In that way, NJS’s conduct directly resulted in the Applicant taking the action that she did and thus her resignation was not voluntary.

[172] I am not satisfied that such an argument can stand. In the Respondent’s letter of 7 May 2021, the Applicant was told that the medical evidence provided thus far by the Applicant was not sufficient to demonstrate that she had any medical condition or symptom that prevented her from complying with the mask mandate. As such, she was directed to return to her flying duties on 14 May 2021 and comply with the requirement to wear either a face mask or shield. The letter confirmed that any failure to do so could result in disciplinary action up to or including termination. At that point, the Applicant had a number of options. She could attend work as directed or she could attend an IME to try to obtain medical evidence that would support her assertions that she had a medical condition which prevented her from wearing a face mask. The Applicant chose not to do either of those things, but instead instructed her lawyer to communicate her resignation. That was certainly an option available to her. Importantly, it was an option that she chose to take. NJS’s conduct did not, on any reasonable view, leave the Applicant with no real choice but to resign. Rather, the Applicant evaluated the options available to her and decide to leave her employment with NJS. The Applicant resigned.

[173] The Applicant submitted that the Mask Direction was not the sole reason for the Applicant’s termination of her employment. She asserts that an addition reason was that the Respondent has engaged in discriminatory conduct, bullying and harassment since 26 October 2020 after she disclosed that she was unable to wear a face mask, particularly for extended periods. I reject the assertion that the Respondent or any of its staff, engaged in discriminatory conduct, bullying or harassment which contributed to her decision to resign and, in the Applicant’s submissions, her constructive dismissal. On the contrary, the evidence before me demonstrates an organisation who attempted to engage in reasonable management action by trying to obtain accurate and specific medical evidence regarding an employee’s medical condition so an assessment could be undertaken as to whether she was fit to work in a safety critical industry.

[174] It is important to acknowledge that the Respondent’s enquiry was no longer simply whether the Applicant could wear a face mask in accordance with the mandate that had been introduced in response to the pandemic. It was broader than that because the Applicant, for the first time during her employment, disclosed that she suffered from two conditions that affected her ability to wears masks and the Respondent was understandably anxious to ensure that those conditions did not affect her ability to wear various facial coverings that may be required in the event of an emergency. The Applicant assured them that it would not do so, because emergency situations only lasted for limited periods. Dr Stowell’s correspondence makes similar assertions. With all due respect, it is not for the Applicant and Dr Stowell to conduct the overall aviation risk assessment and assert a conclusion. Dr Stowell, for example, did not provide a medical opinion regarding what “limited period” the Applicant, given her conditions, could withstand wearing a mask. Instead he simply asserted that, “as is demonstrated by her unhampered ability to carry out her employment duties over the last 8 years despite the existing Hashimoto’s Disease, skull tumour or anxiety, I confirm that Jessica’s medical conditions do not affect ability” to wear a fire hood, oxygen mask or surgical mask “for the limited time it would be required in an emergency”. The Respondent was also provided with Dr Brandis’ opinion, which was that there are “no medical restrictions to [the Applicant] using whatever protective personal equipment is necessary”. That, of itself, seems at odds with the opinion of Dr Stowell and the submissions made by the Applicant.

[175] The Respondent was entitled to make further enquires regarding the Applicant’s conditions to ensure that she was in fact fit to work. To allow her to return to work without such an assessment could have exposed the Applicant, other crew members, passengers and the Qantas Group more broadly to considerable safety and reputational risk.

[176] For the reasons stated above, I am not satisfied that the Applicant was dismissed within the meaning of the Act.

[177] Accordingly, I order that the application be dismissed.

Title: Lake DP - Description: Seal of the Fair Work Commission with member's signature

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR735159>

 1   Fair Work Act 2009 (Cth) s.596(2); see also Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender [2021] FWCFB 268.

 2   Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618.

 3   Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender [2021] FWCFB 268, [48].

 4   R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601.

 5   R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601.

 6   Woolworths Ltd v Brown (2005) 145 IR 285 at [35]; see also Woolworths Ltd t/as Safeway v Miller (2006) 151 IR 236, [12]-[15].

 7   Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115.

 8   Michael King v Catholic Education Office Diocese of Parramatta T/A Catholic Education Diocese of Parramatta [2014] FWCFB 2194 [26]-[29].

 9   Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374 [142], endorsing the decision of the Full Bench in Grant v BHP Coal Pty Ltd [2014] FWCFB 3027 [110]; see also Michael King v Catholic Education Office Diocese of Parramatta T/A Catholic Education Diocese of Parramatta [2014] FWCFB 2194.

 10   Construction, Forestry, Mining and Energy Union v Glencore Mt Owen Pty Ltd [2015] FWC 7752 [8]-[11].

 11   (2005) 145 IR 285 [35]; cited in Construction, Forestry, Mining and Energy Union v Glencore Mt Owen Pty Ltd [2015] FWC 7752 [9].

 12   Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.

 13   Ibid.

 14   Ibid; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O’Meara v Stanley Works Pty Ltd [2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.

 15   Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 [31].

 16   O’Meara v Stanley Works Pty Ltd [2006] AIRC 496 (11 August 2006) [23].

 17   Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.

 18   Ibid; Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 [28].