Fair Work Act 2009
s.394—Unfair dismissal

Emily Brown
v
Woolworths Group Limited
(U2022/3299)

Chantelle Brown
v
Woolworths Group Limited
(U2022/3316)

Application for an unfair dismissal remedy – section 590(2)(a) – application for an order requiring a person to attend Fair Work Commission – orders refused.

[1] On 18 March 2022 Ms Emily Brown and her daughter Ms Chantelle Brown made applications pursuant to s.394 of the Fair Work Act 2009 (Cth), alleging that they had been unfairly dismissed from their casual employment with Woolworths Group Limited.

[2] On 15 November 2021 Woolworths Group Limited (“Woolworths”) introduced a Covid-19 Vaccination Policy (Vaccination Policy) that required staff to be vaccinated against Covid-19. Both Applicants refused to be vaccinated and were dismissed from their employment.

[3] Both Applicants are represented by Mr Alex Smith, who is not legally qualified, nor medically qualified, is not a paid agent, but has strongly held legal and medical views that are opposed to vaccination and vaccination mandates.

[4] The Applicants have sought orders under s.590(2)(a) of the Fair Work Act 2009 (Cth) (the FW Act) that two senior officers of Woolworths, Mr Bradford Banducci (CEO) and Dr Rob McCartney (Chief Medical Officer) to attend the Commission and give evidence. This decision only deals with the application for orders to attend to give evidence.

[5] Section 590 of the FW Act is in the following terms:

“590 Powers of the FWC to inform itself

(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2) Without limiting subsection (1), the FWC may inform itself in the following ways:

(a) by requiring a person to attend before the FWC;

…

(d) by taking evidence under oath or affirmation in accordance with the regulations (if any);

…

(i) by holding a hearing (see section 593).”

[6] In Uijland v Airservices Australia [2020] FWC 3613, Deputy President Sams listed considerations that may arise when considering such orders:

1. Whether the person’s evidence is likely to be the same or corroborative of other persons who give evidence about the same matters and will add nothing to that evidence; see: Kennedy v Qantas Ground Services Pty Ltd [2019] FWC 4819;

2. Whether the evidence of the person concerns agreed or uncontested facts;

3. Whether the person’s evidence is otherwise obtainable from relevant documents, CCTV footage or business records:

4. Whether the person’s evidence has ‘apparent’, not necessarily direct relevance; see: Hu v Shanghai Garden Chinese Restaurant [2020] FWC 1308;

5. Whether there is an unwarranted or disproportionate inconvenience on an unwilling person being required to attend the Commission; or

6. Whether there is probative value in a person’s recollection of long passed historic events.

[7] Both Mr Banducci and Dr McCartney are squarely in the Woolworths’ camp 1 and Woolworths has chosen not to lead evidence from either person. Jones v Dunkel2 inferences may or may not be drawn from Woolworths’ forensic decision.

[8] The Applicants insist that both officers should be called and “cross-examined” as to their role in the development of Woolworths’ Vaccination Policy.

[9] The following extract from Woolworths’ Outline of Submissions records the key matters in contest:

“The requirements of the Vaccination Policy amounted to a lawful and reasonable direction that the Applicants obtain at least two doses of an available and approved COVID-19 vaccine to work at Woolworths…

The Applicants both had strongly held personal views as to the safety and efficacy of relevant COVID-19 vaccines. Those views went against the overwhelming scientific consensus that the COVID-19 vaccines as approved for use in Australia by the Therapeutic Goods Administration (TGA) are safe and are the most effective way of mitigating the most serious symptoms and risks of COVID-19.

…

From 2 March 2021 until 15 November 2021, Woolworths engaged in an extensive communication and consultation process with its over 180,000 employees, health and safety representatives (HSRs) and relevant unions in relation to COVID-19 vaccinations and whether team members should be required to be vaccinated.

…

On 21 October 2021, Woolworths’ CEO sent a communication to team members stating that the company had made a decision that all team members employed in Australia were to be fully vaccinated against COVID-19 to work at Woolworths based on medical advice and inviting further feedback as Woolworths 'work[ed] to form [its] official policy'. The communication also made it clear that Woolworths would consult with its team members before it introduced a policy. This communication was sent following consideration by Woolworths' Executive Committee of (among other things) employee sentiment about potentially having a vaccination policy and the prevailing medical advice calling for the need for a vaccination policy.

On 15 November 2021, Woolworths’ CEO announced the Vaccination Policy in a message to team members.

…

On 9 February 2022, Woolworths’ Crisis Management Team (CMT), including senior management, met and considered whether to maintain the vaccination requirement. It decided to do so. In coming to this conclusion, it considered, amongst other things, the feedback received from consultation and medical evidence from Dr McCartney, Woolworths' Chief Medical Officer, which provided that vaccination was the most effective tool to mitigate the risk of serious hospitalisation, death and transmission.

…

The Applicants’ responses [to show cause letters issued on 28 February 2022] were reviewed by a Review Panel, which assisted the decision-maker, Michael Mackenzie, General Manager, ACT/NSW Supermarkets, who decided whether to terminate each Applicants’ employment.”

[10] Woolworths has filed expert evidence from Dr Paul Griffin, Associate Professor in Medicine and Director of Infectious Diseases at the University of Queensland and Mater Hospitals, South Brisbane addressing the following questions:

(a) In November 2021, based on the available scientific evidence at the time, what were the benefits of a person receiving two doses of a Covid-19 vaccination?

(b) In February/March 2022, based on the available scientific evidence at the time, what were the benefits of a person receiving two doses of a Covid-19 vaccination?

(c) Were there any other controls (other than vaccination) that Woolworths could have implemented in November 2021 and/or February/March 2022 to minimise the health and safety risks associated with Covid-19 in the workplace? What was the effectiveness of such controls?

(d) Having regard to the effectiveness of these other available controls, were there still additional benefits of a person having two doses of a Covid-19 vaccine? If so, what were the benefits and why did these benefits arise?

(e) Do you consider that requiring Woolworths workers to be double vaccinated against Covid-19 by February/March 2022 was an appropriate control measure to mitigate the effect of the risks of Covid-19 in the workplace? If so, why?

[11] Woolworths has filed evidence from Mr Michael Mackenzie, General Manager, NSW/ACT Supermarkets, who decided to terminate the employment of both Emily and Chantelle Brown and also from other officers about consultation.

[12] The Applicants are fundamentally entitled to both interrogate and rebut the assertions made by Woolworths in its submissions, and the evidence upon which the assertions are founded, including the expert medical evidence from Dr Griffin.

[13] Both applications squarely attack the reasonableness and lawfulness of the Vaccination Policy that was applied nationally to all of Woolworths’ employees. However the proceedings are not a commission of inquiry into whether Woolworths is a good employer or has treated others unfairly in relation to vaccination and Covid-19. 3

[14] The proceedings are only concerned with whether the Applicants, two casual employees from one Woolworths store, were unfairly dismissed.

[15] The immediate question is whether it is necessary, in order for the Applicants to fairly prepare and present their case, that the Commission’s powers under s.590 are deployed to require Mr Banducci and/or Dr McCartney to attend to give evidence.

[16] In my view the answer to this question is no.

[17] In the filed material there is evidence of statements made by Mr Banducci to the Woolworths workforce, but those statements are not relied upon by Woolworths for any purpose other than evidence that the statements were made. The Applicants assert that some of the statements made by Mr Banducci are inconsistent with other statements made by him or other Woolworths officers. It is not necessary to call Mr Banducci to establish the asserted inconsistencies - the Applicants can do that by merely relying on the evidence of the statements themselves.

[18] Woolworths has filed no evidence from Mr Banducci or Dr McCartney and does not propose to rely on any evidence that either of them might give. There is no evidence from either of them that the Applicants need to test or rebut.

[19] Woolworths argue that the Vaccination Policy is lawful and reasonable and rely on expert medical evidence and other evidence to support its case. Woolworths also argues that it properly consulted with its workforce and relies on evidence from officers who had direct involvement in that consultation process.

[20] Crucially, the Applicants have not established that any evidence Mr Banducci or Dr McCartney might give would have apparent relevance to the evidentiary matters in contest.

[21] Mr Banducci or Dr McCartney might have opinions about the direct evidence led by others, about the reasonableness of the Vaccination Policy and so on - but any opinions they hold are not relevant in the proceedings.

[22] Having found that there is no apparent relevance to any evidence either person might give, I do not need to consider the other factors listed by Deputy President Sams. For completeness I observe that:

(a) any evidence about the reasonableness of the Vaccination Policy or about consultation is likely to be the same or corroborative of other persons who will give evidence and their evidence will add nothing to that evidence;

(b) their evidence might relate to contested issues but would not concern contested facts;

(c) their views (cf evidence) are otherwise obtainable from relevant documents; and

(d) there is not an unwarranted or disproportionate inconvenience on an unwilling person being required to attend the Commission.

[23] For the above reasons I decline to make any orders requiring Mr Banducci or Dr McCartney attend the Commission to give evidence.

DEPUTY PRESIDENT

Appearances:

Mr A Smith for the Applicants
Mr M Seck of Counsel instructed by Mr J Fox and Mr A Khouri of Minter Ellison.

Hearing details:

2022.
Sydney (By Video using Microsoft Teams)
July 14.

Printed by authority of the Commonwealth Government Printer

<PR743878>

 1   Director, Office of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2013] FCAFC 8 at [98]-[101].

 2   (1959) 107 CLR 298.

 3   Hu v Shanghai Garden Chinese Restaurant [2020] FWC 1308 at [28].