[2022] FWC 2580
The attached document replaces the document previously issued with the above code on 26 September 2022.
Parties and matter have been amended in the preamble.
Associate to Deputy President Easton.
Dated 27 September 2022.
| [2022] FWC 2580 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Shani Southwell
v
New Horizons Enterprises Ltd
(U2022/2454)
Stephen Prager
v
New Horizons Enterprises Ltd
(U2022/2827)
DEPUTY PRESIDENT EASTON |
SYDNEY, 26 SEPTEMBER 2022 |
Application for relief from unfair dismissal – refusal to be vaccinated against COVID19 – public health orders apply to employment – alleged invalidity of public health orders because of inconsistency with the Australian Constitution – assertion that no vaccines against COVID-19 have been approved and therefore the requirements of any public health order cannot be met - valid reason found – the respondent was required to comply with public health orders – the applicants could have complied with the public health orders by receiving an approved vaccine – procedural fairness - dismissal was not harsh, unjust or unreasonable – application dismissed.
[1] New Horizons Enterprises Ltd is a disability, social, and community services provider operating across metropolitan, rural, and remote New South Wales. Ms Shani Southwell and Mr Stephen Prager were employed by New Horizons and in 2021 were required by NSW Public Health Orders to be vaccinated against COVID-19. Neither Ms Southwell nor Mr Prager provided proof of vaccination to New Horizons and they were dismissed from their employment in February 2022.
[2] Ms Southwell commenced employment with New Horizons Enterprises Ltd (New Horizons) in 2010. Ms Southwell was employed as a team leader with oversight of a team of frontline workers delivering NDIS funded services when her employment was terminated on 13 February 2022. Ms Southwell made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment with New Horizons.
[3] Mr Prager commenced employment with New Horizons in 2011. Mr Prager was employed as a Community Support Worker when his employment was terminated on 18 February 2022. Mr Prager made an application to the Commission under s.394 of the FW Act for a remedy, alleging that he had been unfairly dismissed from his employment with New Horizons.
[4] Both Applicants prepared and lodged their applications with the assistance of Mr Alex Smith. It seems that Mr Smith has appeared with or represented several unsuccessful applicants in unfair dismissal proceedings.1
[5] For the reasons stated in my earlier decision 2, I gave permission for New Horizons to be represented by legal practitioners.
[6] The applications were in near-identical terms, as was the materials filed on behalf of each applicant in the course of the litigation. Early in the proceedings, with the consent of Ms Southwell and against the objection of Mr Prager, I determined that the two applications be heard together.
[7] The cases advanced by the Applicants are indistinguishable: both Applicants worked in disability services, both Applicants were required to be vaccinated against COVID-19, neither applicant has been vaccinated, and both Applicants were afforded procedural fairness by the employer. In fact both cases are largely indistinguishable from many of the other unsuccessful unfair dismissal cases lodged by former employees who chose not to comply with public health orders that covered their employment, save for the arguments considered and rejected below.
[8] The primary argument in the Applicants’ cases is that public health orders made by State Health Ministers that require persons to be vaccinated are invalid because they are inconsistent with s.51(xxiiiA) of the Australian Constitution. This constitutional argument was the central foundation of the Applicants’ cases when they were originally filed. This point remained the central foundation of the Applicants’ cases in their written submissions filed prior to the first scheduled hearing. Mr Smith has run this very same constitutional argument in several proceedings in the Commission and the argument has lost every time. The same point was also run and lost in the Supreme Court of NSW in Kassam v Hazzard; Henry v Hazzard (2021) 362 FLR 113, [2021] NSWSC 1320 and in the NSW Court of Appeal in Kassam v Hazzard; Henry v Hazzard (2021) 311 IR 233, [2021] NSWCA 299.
[9] The argument itself is without merit and has been so comprehensively rejected by Courts and tribunals that it should not have been raised, at least not without a fulsome submission explaining (1) how it is said the Commission could determine the lawfulness of such a public health order rather than in a Court and (2) even if the Commission could determine the point, how or why I could arrive at a different conclusion to all of those who have already considered the very same point. The Respondent described the Applicants’ submissions as embarrassing, misguided and/or misconceived. I have understood the descriptor “embarrassing” to incorporate notions more commonly found in relation to pleadings, and to refer to the submissions being “unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against it”, or “in which irrelevant allegations are made tending to increase expense” (see for example Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803 at [18]-[19]).
[10] These matters were directly raised with the Applicants and Mr Smith on the morning of the first scheduled hearing, as well as the costs consequences of commencing or pursing an apparently hopeless case.
[11] Mr Smith is not a lawyer and he says he is not a paid agent. I note that there is no explicit power in the FW Act to make an order for costs against Mr Smith in the same way that a costs order could be made against a lawyer or paid agent (per s.401).
[12] On the first morning of the hearing, and in response to the matters described above, the Applicants advised that they wanted to advance a new and different point that, they said, had not ever been raised before in any legal proceedings. The new point was that the public health orders, to the extent that they require certain persons to have two doses of an “approved” vaccine, cannot be complied with because no COVID-19 vaccines have actually been “approved.”
[13] The Applicants say that the injecting of COVID-19 vaccinations into the arms of men, women and children is participation in a clinical trial by means of ‘constructive fraud’, which is an integral aspect of the Constitutional point, but not the new part of the argument.
[14] The new argument put was that each of the vaccines approved by the Therapeutic Goods Administration (TGA) have only been approved for the purpose of a clinical trial, and not approved for general use.
[15] The Applicants should have given the Respondent advance notice of this new argument but did not do so. To the extent that the new argument required further evidence to be led regarding the TGA’s approval process, no such evidence was filed in usable form prior to the first scheduled hearing.
[16] Unsurprisingly New Horizons was caught by surprise at the hearing and could not properly respond to the new point, and as a result the hearing was adjourned to another date.
[17] A further program was set for the filing of evidence and submissions in relation to the new point. The Applicants were also required to indicate in their revised written submissions whether they pressed the original constitutional argument, and if they intend to do so, they were required to provide additional submissions as to how and why I should reach a different conclusion to all of the earlier decisions on the same point.
[18] The Applicants filed further evidence and provided a further written submission but did not withdraw or revise their constitutional argument.
[19] At the second hearing the Applicants led brief evidence about their own dismissal.
[20] The Applicants also sought to tender documents obtained from the internet that purport to call into question the safety and effectiveness of COVID-19 vaccines, as well transcripts from other proceedings in the Fair Work Commission. The transcripts were said to prove a “practice of estoppel by silence of the nationally appointed Judiciary of the FWC by presenting biased correspondence of case determinations eluding to the vexatious argument/s that the Applicant has no chance of winning their case, thereby establishing a prima facie case of biased considerations in favour of the Employer/Respondent by FWC as a whole”. Other material of a similar calibre was also filed.
[21] None of this material was admitted into evidence because none of it had any probative value in determining the matters in issue in the Applicants’ cases. For all practical purposes the Applicants’ cases stand or fall on the question of whether the Applicants’ non-compliance with the public health orders was a valid reason for their dismissals. All of the factors listed in s.387 of the FW Act must be considered, but the high point of the Applicants’ cases is that there was no valid reason for dismissal because the Applicants were not required to, or not able to, comply with the relevant public health orders.
[22] The Applicants also tendered evidence, predominantly materials obtained from the TGA’s website, that are said to establish the new proposition that no vaccines have been “approved” by the TGA other than for the limited purpose of clinical trials.
[23] The TGA’s approval process is described in detail on its website and can be summarised as follows:
(a) Stage 1 - Pre-application: a sponsor (usually a pharmaceutical company) must first submit a provisional determination application. The TGA will assess the application against specific eligibility criteria, such as the nature of preliminary clinical data, evidence of a plan to submit comprehensive clinical data, and the clinical need. If the TGA grants provisional determination, the sponsor is then eligible to apply for provisional registration of the vaccine in the Australian Register of Therapeutic Goods (ARTG);
(b) Stage 2 - Application: Once provisional determination has been granted, the sponsor then needs to submit an application for provisional registration in the ARTG. The sponsor must submit a comprehensive dossier that includes specific information on clinical studies, non-clinical/toxicology studies, chemistry, manufacturing, risk management and other information;
(c) Stage 3 - Evaluation: Once an application is accepted, the TGA will commence a formal evaluation process that is carried out in multiple phases by technical experts;
(d) Stage 4 - Decision: Once the evaluation is complete, the TGA delegate will make a decision whether to provisionally register the vaccine in the ARTG. The TGA delegate's decision to grant provisional registration is based on a number of factors including the safety, quality and effectiveness of the vaccine has been satisfactorily established for its intended use, and the sponsor's plan to submit comprehensive clinical data, stability data and other information before the provisional registration ends;
(e) Stage 5 - Registration: Once approved by the TGA, the vaccine is included in the ARTG as a provisionally registered medicine and is able to be lawfully supplied in Australia by the sponsor. Approved vaccines will appear in the searchable ARTG on the TGA website. Product Information and Consumer Medicines Information will also be available in the MedSearch App in the same way as for any other registered medicine. The provisional registration is for an initial period of two years, with the option to apply for up to two extensions, up to a maximum of six years; and
(f) Stage 6 - Monitoring: The TGA will continue to play an active role in the ongoing monitoring of any vaccines available in Australia, and has robust procedures in place to investigate any potential new safety issues. The TGA's vaccine safety monitoring system can rapidly detect, investigate and respond to any emerging safety issues identified for COVID-19 vaccines. The post-market monitoring relies on reviewing and analysing adverse events reports, working with international regulators and reviewing medical literature, media and other potential sources of new safety information.
[24] All of the relevant COVID-19 vaccines approved in Australia have been “provisionally” approved or registered (Stage 5: Registration). The product information sheet issued by the TGA for each vaccine and relied upon by the Applicants include the following:
“[Name of vaccine] has provisional approval for the indication below:
Active immunisation to prevent coronavirus disease 2019 (COVID-19) caused by SARS-CoV-2 in individuals [age].
The use of this vaccine should be in accordance with official recommendations.
The decision has been made on the basis of short-term efficacy and safety data. Continued approval depends on the evidence of longer term efficacy and safety from ongoing clinical trials and post market assessment.”
[25] I have reviewed all the material tendered by the Applicants and could not find any reference to the TGA approving COVID-19 vaccines for clinical trials only. Mr Smith was invited at the hearing to identify any part of the material tendered that explicitly stated as much, but he was not able to do so.
[26] Within the material from the TGA’s website there are references to clinical trials, such as the notation reproduced above. Mr Smith and the Applicants cite these references to clinical trials as proof that the vaccines are only approved for the purposes of clinical trials.
[27] It is not necessary to cite all of references to clinical trials in the TGA materials and explain how the Applicants’ proposition is not correct. In short the Applicants and Mr Smith have simply pointed to snippets within documents that refer generally to the existence of clinical trials. For example, the TGA has published a “COVID-19: Guidance on clinical trials for institutions, [Human Research Ethics Committees], researchers and sponsors.” These guidelines do not prove that any person who has been vaccinated against COVID-19 in Australia is part of a clinical trial. The guidelines simply apply to clinical trials when and if clinical trials are conducted. The terms of the guidelines themselves show this to be correct: for example the guidelines include the following regarding “participants”:
“… Participants who do not attend clinic visits or complete other trial activities may be reminded that these are required; however, if a patient declines or actively refuses to participate in trial activities, then their decision should be respected and they should be considered to have withdrawn from the trial. These participants should be informed that their decision will not affect their ongoing treatment or participation in future clinical trials.
- Participants who choose to move off the investigational product and onto standard care, and who do not wish to continue with site visits may be able to remain on trial for follow-up only.
- Participants should be informed of any modifications to the trial, including medical and other trial procedures, ongoing treatment or care and any tests or assessments that will have, or have the potential to have, an impact on them…”
[28] These guidelines bear no resemblance to how approved COVID-19 vaccines have been administered to the general Australian population. That is, if there is a national clinical trial taking place, these guidelines are not being followed. The Applicants cannot rely on the authority of the TGA to set guidelines for clinical trials as proof of the existence of a clinical trial, without dealing with the fact that the guidelines are not being followed.
[29] In my view it is actually very clear from the material on the TGA’s website that a number of COVID-19 vaccines have been approved for general use in Australia in accordance with the TGA’s protocols. In fact it is obvious from the TGA’s materials.
[30] The Applicants’ proposition is fanciful and defies common sense. If in fact there are no vaccines generally approved by the TGA, and “provisional” approval is only for the limited purpose of clinical trials, the Australian community would expect the TGA to unambiguously say as much in every relevant document it publishes about vaccination. If the Applicants are right then the TGA has either misunderstood its own processes or it has misstated those processes throughout its website. Millions of doses of COVID-19 vaccinations have been administered by medical and health professionals since the vaccines were approved and, if the Applicants are correct, not one medical doctor has realised the error. State governments have drafted, published and reviewed Public Health Orders across the country and not one health administrator has apparently realised that there are no approved vaccines.
[31] I have given the Applicants a proper opportunity to prepare and present their argument and I have provided my reasons for rejecting it. In case this process has inadvertently given the argument some legitimacy, I must add that in my view the proposition advanced by the Applicants is, to borrow phrases usually applied in strike out applications: so obviously untenable that it cannot possibly succeed, manifestly groundless, so manifestly faulty that it does not admit of argument, discloses a case which the Court is satisfied cannot succeed, and under no possibility can there be a good cause of action.
[32] The balance of the arguments relied upon by the Applicants are rejected. Each argument is dependent upon the unlawfulness of the public health orders, or that the public health orders could not be complied with because no COVID-19 vaccines have been approved.
[33] The following excerpt from the Applicants’ submissions cover all of the discrete points raised:
“13.1. The dismissal was harsh because the Applicant is facing adverse and detrimental economic impacts and defamatory consequences resulting from being maliciously, defamatorily, unethically, and unreasonably dismissed. The claim that the dismissal was lawful is vexatious and therefore ultra vires, void ab initio, and cadit quaestio. The Respondent wilfully, deliberately and maliciously placed the Applicant in an untenable position with the illegal and unlawful implementation of a new policy direction requiring a claimed vaccination=medical procedure =medical service, that is contrary to any laws in this country, and a change in contract that was legally and lawfully declined. It was also impossible to fulfil due to the manner in which the policy direction was implemented (s109 and s51(xxiiiA) Commonwealth Constitution). [Refer the Engineers Case in point [8] OS page 4] and [Wong v Commonwealth [9] OS page 5]
13.2. The dismissal was unlawful, illegal and harsh as no hearing in any jurisdiction has been held. The Applicant is accused of serious misconduct with no physical material evidence in law having been cited. There are laws that are contrary to the allegations of misconduct contained within s109 and s51(xxiiiA) of the Commonwealth Constitution that provide protection from the Respondent’s misguided and belligerent policy directions. Any claims to the contrary are ultra vires, void ab initio, and cadit quaestio. [Refer the Engineers Case in point [8] OS page 4] and [Wong v Commonwealth [9] OS page 5]
13.3. The Respondent’s own misguided, misconceived and belligerent actions prevented the Applicant from carrying out their normal contractual obligations by making an unlawful and illegal demand upon the Applicant.”
(Source formatting)
[34] As can be seen from the above excerpt, the Applicants’ submissions used many legal phrases and terms. I have carefully reviewed all of the submissions filed by the Applicants in case there might be any other discrete legal points of substance, but found none.
[35] Section 387 of the FW Act requires me to take into account the following matters in determining whether the Applicants’ dismissal was harsh, unjust or unreasonable:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[36] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. I set out my consideration of each below.
[37] To be a valid reason, the reason for the dismissal should be sound, defensible or well founded and should not be capricious, fanciful, spiteful or prejudiced. However, in assessing the validity of the reason(s) for dismissal the Commission will not stand in the shoes of the employer and determine what the Commission would do in the same position.
[38] Because of the public health orders in place to protect people disabilities, New Horizons could not lawfully allow the Applicants to perform their work without ensuring that they were vaccinated against COVID-19. As such neither Applicant could perform the inherent requirements of their job and there was a valid reason for dismissal.
Were the Applicants notified of the valid reason?
[39] Section 387(b) requires me to take into account whether the applicant “was notified of that reason.” Sections 387(b) and (c) direct the FWC’s inquiry to matters of procedural fairness. In general terms a person should not exercise legal power over another, to that person’s disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case (per Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151 [70] citing FAI Insurances Ltd v Winneke (1982) 151 CLR 342; Kioa v West (1985) 159 CLR 550; Annetts v McCann and others (1990) 170 CLR 596).
[40] New Horizons was patient in its dealings with the Applicants as it took appropriate steps to comply with public health orders. New Horizons provided the Applicants with updates on changes to public health orders and an abundance of information so as to allow them to make an informed decision about whether they were prepared to be vaccinated, and the consequences for their employment if they were not vaccinated.
[41] In this regard I am satisfied that the Applicants were notified of the reasons for their dismissal.
Were the Applicants given the opportunity to respond to any valid reason related to their capacity or conduct?
[42] The opportunity to respond to which s.387(c) refers is an opportunity to respond to the reason for which the employee may be about to be dismissed.
[43] The Applicants were given a proper opportunity to respond to the allegations against them. The Respondent wrote to each applicant separately about the need for each of them to provide proof of vaccination and the consequences if they could not or would not provide such proof. For example an email sent to Mr Prager shortly before he was dismissed contained the following:
“As we have previously advised, there are NSW Public Health Orders that mandate certain workers are vaccinated. The Public Health (COVID-19 Care Services) Order (No 2) 2021 remains in force. Version 1 of this order was repealed when Order No 2 came into effect from 1st November 2021. There are also requirements from Funding Providers such as DCJ for service provider staff to be vaccinated
As an employee working in the Disability Services Sector, you remain covered by the DCJ requirements and need to be vaccinated before returning to work If you don’t comply with those requirements, then you are not able to attend work and do your job. You need to put yourself in a position to fulfil your contract.
New Horizons can lawfully request proof of vaccination from its employees. Please rest assured that any information about your status will be kept securely as part of your employee records.
In addition, but for a separate reason, New Horizons is committed to ensuring the health and safety of its workers and any person that enter its workplaces, such as customers (who may be vulnerable due to ill health). As you can appreciate, COVID-19 poses a potential risk to everyone’s health and safety, especially those with underlying health issues. Under work health and safety laws, and our duty of care, we are obligated to take all reasonably practicable steps to reduce that risk of transmission and impact from COVID. The risk of transmission of COVID at work is real. The consequences of getting COVID can be very serious, including death. We suggest you speak to your doctor if you would like more health and medical information regarding Covid and/or the Vaccination.
New Horizons has the ability under work health and safety laws and under your employment contract, to issue lawful and reasonable directions. We have done so. Employees are expected to comply. Unless there is a medical contraindication evidence, to attend work, and perform your job, safely, you will need to be vaccinated and provide proof of that Vaccination.
Further, New Horizons has recently implemented the Covid Safe Workplace Policy. That policy also requires you to be vaccinated before being able to effectively carry out your duties.
Unless you provide evidence of vaccination, you are unable to meet the requirements of your role and fulfil your employment contract New Horizons requires you to provide proof of your vaccination status, confirming receipt of at least 2 doses of an approved Covid Vaccine no later than 5pm Friday 18th February 2022. Failure to do so will result in termination of your employment from that date.”
[44] The Respondent wrote to Ms Southwell in similar terms shortly before her dismissal.
[45] The responses sent by each applicant did not assist their cases. The footer on Ms Southwell’s response document says the document was “Presented by De Cline.” De Cline is a website or organisation connected with Mr Smith. Ms Southwell’s response contained similar arguments to those pressed by her at hearing and was obviously a poor adaption of a bad template. For example Ms Southwell’s response included the following claims about New Horizon’s alleged criminal behaviour in taking steps to comply with the public health order
“This is official notification of you or your company’s /organisations/ Business / political party or any variation there of that you have made unlawful directions in civilly conscripting your employees or customers by means of threat and menace to be coerced into an INVASIVE MEDICAL PROCEDURE by injection with a CHEMICAL SUBSTANCE (false claimed SARS-COV2 vaccine). This is a dangerous Medical Procedure with serious side effects including SERIOUS INJURY and DEATH resulting in you and your Company / Business / Organisation / Political Party or any variation thereof and any employee of your (COMPANY) (BUSINESS / ORGANISATION)(political party) or variations thereof being criminally and civilly liable for any adverse reactions to the coerced INVASIVE MEDICAL PROCEDURE ( injected with false SARS-COV2 vaccine) into the body of your employees or customers, by your coercion with threat and menace.”
[46] Mr Prager’s responses, particularly his responses in 2021 when he was no longer able to attend the workplace because of the public health orders, did not assist his case either.
[47] I am satisfied that each applicant was given an opportunity to respond to the employer’s reasons for dismissal.
Other factors – s.387
[48] The Respondent did not have discussions with the Applicants relating to the dismissal. The parties communicated by email and so the absence of a support person in these communications (s.387(d)) does not affect the fairness of the dismissal in this matter.
[49] As the dismissal did not relate to unsatisfactory performance, the fact that the Applicant was not warned about unsatisfactory performance (s.387(e)) does not affect the fairness of the dismissal.
[50] Similarly, the size of the Respondent’s enterprise (s.387(f)) and the availability of dedicated human resource management expertise (s.387(g)) do not affect the fairness of the dismissal.
[51] There are no other relevant matters (s.387(h)) that impact upon the fairness of the dismissal of the Applicant.
[52] I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable and therefore an unfair dismissal.
[53] I find that the dismissals of the Applicants were not harsh, unjust or unreasonable.
[54] I have made separate orders dismissing each application. 3
DEPUTY PRESIDENT
Appearances:
Mr A Smith for the Applicants
Mr J Handley for the Respondent
Hearing details:
2022.
Sydney (By Video using Microsoft Teams)
July 7, August 22.
Printed by authority of the Commonwealth Government Printer
<PR746206>
1 Cogger v New Horizons [2022] FWC 1267, Casper v New Horizons [2022] FWC 1269, Scale v Coles Supermarkets Australia [2022] FWC 1593, May v Wesley Mission Queensland [2022] FWC 1661, Howard v Uniting Care Health [2022] FWC 1860.