| FWC 593|
|FAIR WORK COMMISSION|
Fair Work Act 2009
DEPUTY PRESIDENT COLMAN
MELBOURNE, 17 MARCH 2022
Application for an unfair dismissal remedy – refusal of dietician to provide hospital with evidence of vaccination status – government directions – hospital required to comply with directions and not allow applicant to attend the workplace – role of the Commission is to apply law, not a party’s alternative policy preferences – application dismissed
 This decision concerns an application for an unfair dismissal remedy made by Ms Isabella Stevens under s 394 of the Fair Work Act 2009 (FW Act). From July 2011 until 3 December 2021, Ms Stevens worked as a dietician for the Epworth Foundation, which trades as Epworth HealthCare (Epworth). Ms Stevens was dismissed on the ground that she was unable to meet the inherent requirements of her job. Ms Stevens had refused to provide Epworth with proof that she had been vaccinated against COVID-19. Pursuant to Victorian government directions, Epworth was therefore required not to allow Ms Stevens to attend the workplace on or after 15 October 2021. Ms Stevens contends that the directions were unlawful or unfair and that Epworth did not have a valid reason to dismiss her, and that Epworth should in any event have allowed her to take long service leave instead of dismissing her. She contends that her dismissal was unfair and seeks reinstatement.
 Section 396 requires that I decide four matters before considering the merits of Ms Stevens’ application. I am satisfied of the following. First, the application was made within the 21-day period required by s 394(2). Secondly, Ms Stevens was a person protected from unfair dismissal. Thirdly, the dismissal was not a genuine redundancy. Fourthly, Epworth is not a small business employer, and the Small Business Fair Dismissal Code is therefore inapplicable.
 On 1 October 2021, the Acting Chief Health Officer of Victoria issued the COVID-19 Mandatory Vaccination Directions (No 5) (No 5 Direction) under s 200(1)(d) of the Public Health and Wellbeing Act 2008 (Vic). These imposed obligations on the operators of specified facilities, including healthcare facilities such as Epworth, not to allow workers to attend for work on or after 15 October 2021 unless they had provided evidence to the employer of having been vaccinated against COVID-19, or of a booking to receive a vaccination by 29 October 2021. An exception applied for workers who provided a certificate that they were unable to receive a vaccination due to a medical contraindication. The No 5 Direction commenced on 1 October 2021 and ended on 21 October 2021. It was succeeded by other directions in similar terms. I will refer to them collectively as the Directions.
 On 20 September 2021, an email was sent by the management of Epworth to all employees informing them that mandatory vaccination directions required healthcare workers to have received specified doses of the COVID-19 vaccine by particular dates.
 In late September 2021, Ms Stevens commenced a period of sick leave running to 21 October 2021. On 1 October 2021, she wrote to Mr Simon Benedict, executive general manager of Epworth Richmond, objecting to the requirement that she provide evidence of her vaccination status, and seeking assurances as to the safety and effectiveness of the vaccines.
 In a letter to Ms Stevens dated 7 October 2021, Mr Benedict stated that the Directions were legally binding and required Epworth’s compliance, and that contraventions were subject to penalties. The letter stated that Epworth was not required to provide the assurances that Ms Stevens sought but noted that there was widespread medical support for the vaccination regime. It further stated that by 15 October 2021, healthcare workers must either be vaccinated, and provide appropriate evidence of vaccination, or have a booking to receive a vaccination by 29 October 2021, unless the exception for medical contraindications applied. It stated that Epworth was required to ensure that a worker who had not provided the required evidence did not enter or remain on Epworth’s premises for the purposes of work, and that any such worker would therefore not be able to perform their duties and would not be paid, which would have implications for the worker’s ongoing employment.
 On 11 October 2021, Ms Stevens wrote to Mr Benedict, questioning the safety of vaccines and requesting to take annual leave from the conclusion of her sick leave on 21 October 2021.
 Ms Stevens did not provide Epworth with the required evidence by 15 October 2021. On this date, Ms Stevens remained on sick leave. She did not have, and did not later provide to Epworth, a medical exemption in respect of the COVID-19 vaccinations.
 In a letter dated 18 October 2021, Mr Benedict advised Ms Stevens that she was authorised to take annual leave from the expiration of her sick leave on 21 October 2021 until 29 October 2021. He also restated the requirements of the Directions and reiterated that failure to meet the requirements would have implications for Ms Stevens’ future employment.
 In a letter to Mr Benedict dated 27 October 2021, Ms Stevens again objected to the requirement that she provide proof of vaccination, citing privacy grounds. She noted that she had applied to take a period of long service leave. She also stated that she planned to return to work on 3 November 2021 after the conclusion of her period of annual leave.
 On 29 October 2021, Mr Benedict replied to Ms Stevens, directing her not to attend the workplace on 3 November 2021 as she had not provided the required vaccination information. Mr Benedict advised Ms Stevens that she could take long service leave until 23 November 2021, noting that it was not suitable for her to take leave for a longer period. Mr Benedict stated that it was Ms Stevens’ right not to provide the information that was being sought, and that Epworth could not require her to confirm that she had been vaccinated, but that without this information Epworth could not allow her onto its premises for the purposes of work.
 In a letter to Mr Benedict dated 18 November 2021, Ms Stevens disputed the lawfulness of the Directions and Epworth’s requirement that she provide information about her vaccination status, invoking in this regard the Privacy Act 1988, and statements from the federal government to the effect that vaccinations were not mandatory, which statements, she said, prevailed over the Victorian Directions. Ms Stevens also stated that she planned to return to work on the day after her long service leave ended.
 In a letter to Ms Stevens dated 22 November 2021, Mr Benedict stated that Epworth had requested on multiple occasions that she provide confirmation of her vaccination status or a medical exemption, but that she had not done so. Mr Benedict stated that Epworth had determined that it was untenable for Ms Stevens to continue in her employment, as there was no indication that she would be able lawfully to perform her role in the short to medium term, yet her role was one that needed to be performed on an ongoing basis as part of Epworth’s operational requirements. Mr Benedict stated that Epworth had decided that it had grounds to terminate Ms Stevens’ employment on the basis that she could no longer fulfil the inherent requirements of her role. He stated however that before finalising a decision, Epworth invited Ms Stevens to show cause as to why her employment should not be terminated and to provide any relevant information by 1 December 2021.
 On 22 November 2021, Ms Stevens wrote to Mr Benedict and asked either that her long service leave to be extended until 1 January 2022, or that she be allowed to take the entire balance of her long service leave, noting that the emergency powers in force in Victoria were due to expire. On 29 November 2021, Mr Benedict replied, stating that the Victorian government had announced that the Directions would be renewed and remain in place for a substantial period of time and well into 2022, and that in any event Epworth had issued its own COVID-19 vaccination policy that required all staff to be vaccinated within timelines similar to those in the Directions. Mr Benedict stated that Epworth had provided Ms Stevens with a reasonable period of time to make her decision and was unable to extend her leave.
 On 1 December 2021, Ms Stevens responded to Mr Benedict’s show cause letter of 22 November 2021. She stated, in essence, that the Directions were invalid or did not apply because they were contrary to federal privacy and discrimination law, that she was fit and healthy and content to undergo a PCR test to show that she did not have COVID-19, but that she would not be providing her private sensitive health information to Epworth, and that it was unlawful for Epworth to request her to do so. She stated that Epworth would be acting unlawfully by not allowing her to continue in her employment, and that she should be allowed to take all of her long service leave, during which time it was likely that there would be ‘legal challenges’ that may resolve the matter.
 In a letter dated 3 December 2021, Mr Benedict advised Ms Stevens that her proposal to take PCR tests did not satisfy the requirements of the Directions that applied to Epworth. He reiterated that the Directions were likely to remain in place for a substantial period of time, and that in any event Epworth had its own policy that workers must be vaccinated. Mr Benedict stated that it was not possible for Ms Stevens to perform the key requirements of her role from home, and that he did not consider it reasonably possible to deploy her to any role not requiring her attendance at the workplace. Mr Benedict stated that Ms Stevens’ employment would end that day, and that she would be paid five weeks of pay in lieu of notice.
 Ms Stevens gave evidence that she had been gainfully employed by Epworth for over ten years and that she was ready and able to perform her duties as a dietician as usual, but that Epworth had prevented her from coming to work and had dismissed her instead of allowing her to take all of her accrued leave or agreeing to allow her to submit negative COVID-19 test results before coming to work. Ms Stevens also said that she had developed genuine concerns in relation to the safety and efficacy of the COVID-19 vaccines, and that she could not be required to become vaccinated or to provide information about her vaccination status.
 Ms Stevens submitted a brief witness statement from Mr Richard Stevens, in which he stated that the dismissal had taken a heavy toll on Ms Stevens, and that she had loved her job. He also stated that, ‘as a doctor’, he had seen many ‘vaccine injured clients’ and that he believed that vaccines pose a real risk of injury. Mr Stevens did not attend the Commission to give evidence. I understand Mr Stevens’ statement was submitted for the purpose of demonstrating that Ms Stevens had good reason to refuse to become vaccinated against COVID-19 because of the risk of injury. But Mr Stevens has no expertise in immunology. According to Epworth, Mr Stevens is an osteopath. Ms Stevens also submitted a brief witness statement of a Mr Adam Schroder, who described himself as an ‘expert in software and data’ and stated that ‘the risk of death and injury [from vaccinations] is significant and the benefit of vaccination success is very limited.’ This bare assertion is of no evidentiary significance.
 Ms Stevens’ representative made reference to various reports and articles said to cast doubt on the efficacy or safety of COVID-19 vaccines. But no expert evidence was led. In any event, the relevant COVID-19 vaccines have been approved for use in Australia by the national regulator, the Therapeutic Goods Administration (TGA), which is an expert body. The TGA’s approval of relevant vaccines is a matter of public record and is evidence of their safety and efficacy.
 Ms Stevens contended that her dismissal was harsh, unjust or unreasonable. She said that Epworth did not have a valid reason to dismiss her, because it insisted that she provide it with her sensitive medical information in circumstances when there was no valid basis for it to do so. She disputed the efficacy and safety of the COVID-19 vaccines, and contended that, by requiring her to become vaccinated as a condition of her ongoing employment, Epworth was forcing her to participate in a ‘medical trial procedure’ without providing her with alternatives, which she said was contrary to the Mental Health Act 2014 (Vic), and that Epworth was doing so without agreeing to her requests to be given further information and assurances of safety.
 Ms Stevens further contended that the Directions on which Epworth relied as a reason for requiring her to become vaccinated and provide information on her vaccination status were invalid because they were made pursuant to state law and were inconsistent with federal privacy and discrimination law, as well as international human rights conventions to which Australia is a party. Ms Stevens contended that she had been subjected to adverse action, coercion, undue influence, misrepresentations and discrimination contrary to ss 340, 343, 344, 345 and 351 of the FW Act, and that her ‘right to work’ under the International Covenant on Economic, Social and Cultural Rights (ICESCR) had been violated. Ms Stevens submitted that she was in good health and was able to work and should have been allowed to do so, and that in all the circumstances there was no valid reason for her dismissal, which was unfair. Ms Stevens further submitted that Epworth could have chosen to grant her long service leave, but instead dismissed her after over ten years of service, and that it was harsh, unjust or unreasonable to do so.
 Epworth contended that it dismissed Ms Stevens for a good and valid reason, namely that she had rendered herself unable to perform the inherent requirements of her job by deciding not to provide proof of her vaccination status. Ms Stevens’ decision meant that Epworth was prohibited from allowing her to attend the workplace. Epworth submitted that it was not reasonable for Ms Stevens to take a significant amount of leave as a means of avoiding the application of the Directions when there was no indication that they would be revoked in the near future, and where Epworth required her to work. As to Ms Stevens’ request to take additional long service leave, Ms Bridgid Connors, Epworth’s chief people officer, gave evidence that granting a further period of long service leave would have continued to leave Ms Stevens’ role unfilled, with an adverse impact on client service. Epworth contended that it had warned Ms Stevens of the consequences of not providing the required evidence and had given her an opportunity to respond to the reason for dismissal. Her role could not be performed at home. Epworth submitted that in all the circumstances the dismissal was not unfair.
 For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable (s 385(b)). In considering whether it is so satisfied, the Commission must take into account the various matters specified in s 387.
 The Commission is required to consider whether there was a valid reason for the dismissal related to the person’s capacity or conduct (s 387(a)). Such a reason is one that is valid in the sense both that it was a good or sufficient reason, and also a substantiated reason. In my view, Epworth had a valid reason to dismiss Ms Stevens. It was one related to her capacity to perform her role. Ms Stevens is entitled to her opinions about the efficacy and safety of the COVID-19 vaccines. Ms Stevens was also within her rights to decline to become vaccinated or to provide Epworth with the information it requested from her. But her choices had the inevitable consequence that Ms Stevens rendered herself unable to perform her job. Epworth was prohibited by law from allowing her to attend the workplace unless she provided the required evidence. Had Epworth allowed Ms Stevens to attend the workplace from 15 October 2021, it would have broken the law, and exposed itself to financial penalties. There was in effect a new regulatory requirement that attached to Ms Stevens’ job. She could have decided to take the necessary steps to meet the requirement. She decided not to do so.
 I reject the contention that Epworth was forcing Ms Stevens to participate in a ‘medical trial procedure’. She was not forced to do anything. And the rollout of COVID-19 vaccinations is not a trial. Relevant tests and trials took place prior to the TGA approval of those vaccines for use in Australia. It is not correct to say that Ms Stevens had no alternative but to become vaccinated. She did have an alternative. It was the alternative that she decided to choose, even though, for Ms Stevens, it was a very difficult choice. It was the alternative that involved her legal exclusion from Epworth’s workplace.
 Ms Stevens variously contended that the Directions were invalid. However, at the time of the dismissal, and indeed to date, the Directions have not been declared by a court to be invalid. The Commission is an administrative tribunal and will carry out its functions according to law, proceeding on the basis that legislation and delegated legislation is valid until a court says otherwise. I would add, parenthetically, that in any event I do not consider the arguments advanced by Ms Stevens to cast doubt on the validity of the Directions. The contention that the Directions are inconsistent with federal law and therefore invalid pursuant to s 109 of the Constitution does not appear to me to have any merit. In particular, there is no reason to think that the Directions are inconsistent with the Privacy Act 1988; evidence of vaccination status can be gathered, used and stored in accordance with the privacy principles. Nor would there appear to be any cogent basis to contend that the Directions are inconsistent with Commonwealth anti-discrimination legislation, because the status of being unvaccinated is not a protected attribute. Further, the contention of Ms Stevens that the Directions are invalid on the ground that they are contrary to international human rights conventions is misconceived, because international conventions have domestic effect in Australia only to the extent that they have been incorporated into legislation. There is no general ‘right to work’ in Australia, regardless of what the ICESCR may say about the matter.
 Ms Stevens also appeared to contend that the Commission should accept her contention that the Directions were disproportionate or unfair, and on this basis proceed to determine her application in a manner that disregards them. Such an approach is impermissible. The Commission must apply law, not undermine it by giving effect to a party’s alternative policy preferences under the guise of exercising discretion.
 I reject the contention that Epworth ought to have lobbied the Victorian government in an effort to have the Directions revoked or amended. Epworth is a healthcare provider, not a policy-making body. Ms Stevens objects to what she regards as the illegitimacy or unreasonableness of the Directions. But that is not a complaint that can logically be directed at Epworth. It was bound to comply with the Directions. It was entirely proper that it did so. It could not allow Ms Stevens to attend its premises for work in light of the personal decisions she had made. I am satisfied that Epworth had a good and substantiated and therefore valid reason to dismiss Ms Stevens: she was unable to do her job.
 In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether an employee has been notified of the reasons for dismissal and whether the person was afforded an opportunity to respond to any reason related to their capacity or conduct (ss 387(b) and (c)). The show cause letter of 22 November 2021 notified Ms Stevens of the proposed reason for dismissal and gave her an adequate opportunity to respond.
 Epworth did not refuse, unreasonably or otherwise, to allow Ms Stevens to have a support person present to assist in discussions relating to the dismissal (s 387(d)).
 If a dismissal relates to unsatisfactory performance, s 387(e) requires the Commission to consider whether the person has been warned about that unsatisfactory performance prior to dismissal. However Ms Steven’s employment was not terminated for unsatisfactory performance, but for issues relating to her capacity.
 The Commission is required to consider the degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal (ss 387(f), (g)). As I have said elsewhere, the purpose of these provisions is not to raise the bar for larger employers such as Epworth, but to require the Commission to take into account these common features of smaller employers. In any event, there was no procedural deficiency in respect of which mitigation might be sought in connection with these provisions. Sections 387(f) and (g) carry no weight in the present matter.
 In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account any other matters that it considers relevant (s 387(h)). I take into account the fact that Ms Stevens’ views and concerns about the COVID-19 vaccinations were genuinely held. I found Ms Stevens to be very sincere. Ms Stevens was and is entitled to her opinions. But Epworth had to comply with the law.
 Ms Stevens submitted that her dismissal was unfair because she was dismissed at a time when she could have taken her remaining long service leave. I disagree. Epworth had already granted her a period of several weeks of long service leave. She was advised by Mr Benedict in his letter of 29 October 2021 that it was not a suitable time to take leave for a longer period. Ms Connors gave evidence that granting further long service leave would have continued to leave the position unfilled, with an impact on services to patients. In my opinion, Epworth had reasonable business grounds to refuse Ms Stevens’ request to take further long service leave. But in any event, as Epworth rightly contended, even if Ms Stevens had been allowed to take the rest of her long service leave, it would not have made any difference, because her leave would have concluded at the end of February 2022, at which time the Directions remained in force in relation to healthcare workers. Indeed they remain in force to the present day. Further, Ms Stevens said in her evidence that it remains her view that she should not be required to provide Epworth with sensitive medical information such as her vaccination status. From this I infer that, had Ms Stevens returned from leave in February 2022, she would have continued to refuse to provide the relevant vaccination information to Epworth, with the consequence that Epworth would still have been prohibited from allowing her to attend its premises for work.
 Ms Stevens contended in her written submissions that it was relevant for the Commission to take into account the fact that she had offered to undergo a PCR test to demonstrate that she did not have COVID-19, and that this would have been a reasonable alternative to her dismissal. This is not the case. The Directions did not provide for exceptions in respect of employees who return negative COVID-19 tests. Ms Stevens contended that it was unfair of Epworth not to provide her with assurances concerning the safety or efficacy of the COVID-19 vaccines, but Epworth was not required to do so, and nor in my opinion ought it reasonably to have done so.
 In her written submission, Ms Stevens also said that Epworth had rejected her offer to sign a statutory declaration confirming that she was ‘fully and lawfully vaccinated with all fully approved vaccines’. Ms Stevens did not give evidence about this. However in my view it would have been reasonable for Epworth to regard any such offer as falling well short of what was required by the Directions, which directed employers to collect information on vaccinations specifically against COVID-19 (see s 8 of the No 5 Direction). Ms Stevens’ conspicuous omission of reference to COVID-19 vaccination suggests that she did not regard such vaccines to be ‘fully approved’.
 Ms Stevens relied on the dissenting decision of Dean DP in Kimber v Sapphire Coast Community Aged Care Limited  FWCFB 6015. I do not find that decision to be of any assistance to Ms Stevens.
 I take into account under s 387(h) the fact that Ms Stevens had worked for Epworth for over ten years and had a good employment record. She was fit, ready and willing to work. But she was unable to work. As a consequence of the decisions Ms Stevens made, Epworth was prohibited from allowing her to attend the workplace.
 Having regard to s 387 of the FW Act, I consider that Ms Steven’s dismissal was not harsh, unjust or unreasonable, and that it was therefore not unfair. The application is dismissed.
P. Wilson for Ms Stevens
N. Ruskin for Epworth Foundation
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