Brendan Clarke v Central Queensland Services Pty Ltd
[2022] FWC 2418
•12 SEPTEMBER 2022
| [2022] FWC 2418 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Brendan Clarke
v
Central Queensland Services PTY LTD
(U2022/3623)
| COMMISSIONER SIMPSON | BRISBANE, 12 SEPTEMBER 2022 |
Application for an unfair dismissal remedy
On 26 March 2022, Mr Brendan Clarke (Mr Clarke/ the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against Central Queensland Services Pty Ltd (Central/ the Respondent). On his Form F2 Unfair Dismissal Application, Mr Clarke originally listed the Respondent to be BHP Group Limited and BHP Coal Pty Ltd T/A BHP Billiton Mitsubishi Alliance / BMA however, Mr Clarke filed an amended Form F2 on 30 March 2022 and the application was amended accordingly.
On 20 April 2022, the Respondent filed a Form F3 Employer’s Response form and the matter was listed for a conciliation before a Commission Conciliator on 19 May 2022 but did not settle. The matter was then allocated to me, and I listed the matter for a Directions Hearing on 1 June 2022. The matter was set for a substantive hearing on 5 July 2022 which was later adjourned until 27 July 2022.
REPRESENTATION
As the Applicant had objected to the representation of the Respondent, directions were issued for the filing of material pursuant to s.596 of the Act. After weighing each of the considerations under s.596 and in light of the material, I determined to grant the Respondent leave to be represented.[1] At the Hearing, the Applicant represented himself and was assisted by his wife, and the Respondent was represented by Mr Nick Le Mare, of Corrs Chambers Westgarth.
BACKGROUND
The Applicant commenced employment with the Respondent in August 2013 and was employed until his dismissal as a Maintenance Technician in the Tool Store at the Respondent’s Daunia Mine. In his Form F2, the Applicant submitted that the Respondent failed to undertake the Consultation Process or act in accordance with the requirements of the BMA Daunia Mine Enterprise Agreement 2019 (the Agreement) and, as the Applicant broadly referred to as ‘various other legislation’, when implementing a vaccination requirement and direction for employees to be fully vaccinated against COVID-19 or to provide a valid exemption.
The Applicant was dismissed on 8 March 2022 for his failure to comply with the Respondent’s direction to be fully vaccinated with an approved COVID-19 vaccine and provide proof of that vaccination in accordance with the requirements of the Respondents Group Site Access Requirement (the SAR).
Mount Arthur Coal Decision and The BHP & Ors Recommendation
The Respondent submitted it modified its consultation process following the conclusion of the Full Bench in Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal (Mt Arthur Coal) issued on 3 December 2021.[2]
The Respondent said it also underwent negotiations with employees and union representatives before the Commission and as a result, the Commission issued the Recommendation of Deputy President Asbury (BHP & Ors Recommendation/the Recommendation) on 21 January 2021.[3]
The Parties relevantly referred to the Full Bench Decision and the Recommendation of Deputy President Asbury. Deputy President Asbury’s Recommendation highlighted that the implementation of the requirement was not unreasonable nor unlawful having regard to the Privacy Act and the right to bodily integrity and further that the consultation process had been extensive and comprehensive.
EVIDENCE AND SUBMISSIONS
On 15 June 2022, the Applicant filed written submissions and a statutory declaration,[4] a further reply statement of 20 July 2022 to the evidence of Mr Gardner,[5] a reply statement to the statement of Ms Smith filed on 27 July[6] and a JSA Risk Assessment Document.[7]
On 29 June 2022, the Respondent filed submissions and statements of Mr Jason Gardner[8] (Maintenance Manager) (Mr Gardner) and Ms Lori Smith[9] (General Manager) (Ms Smith), employees of the Respondent at the Daunia Mine.
Mr Clarke set out in his evidence that he is currently 59 years of age and started working in the mining industry at 19 years of age. Mr Clarke said over 25 of his 40 year long career in the mining industry has been with BHP. Mr Clarke further stated that he was just short of nine years employment at that Daunia Mine site with his final 2 years job sharing in the Tool Store. Mr Clarke said he is the sole income earner in his family.
Mr Clarke said that he has worked as a Trainer Assessor for a number of years and held senior positions such as supervisor and technical expert to BHP throughout the world for tyre management.
Mr Clarke said that during his employment he has never breached or been challenged by a failure to follow lawful and reasonable directions and/or safety regulations.
Mr Clarke said that he has undertaken a great deal of research through genuine sources such as government health sites and highly qualified specialists. Mr Clarke said his decision not to comply with the Respondent’s direction that he accept the vaccination was not made easily, however he said the “evidence of risk and BHP’s own refusal to accept liability or discuss” supported his belief that the risk was present.
Mr Clarke confirmed that he had a work email address and that he accessed emails on a computer provided on site by the Respondent. He said his job did not require him to access emails on site, however he said he supposed he could have accessed emails on site if wanted to. He said he was not allowed to have his phone in the work area.
Early 2021 – 31 August 2021
In the early stages of the COVID-19 pandemic, the Respondent established a management group in order to mitigate the risk of COVID-19 across the Respondent’s workplaces and sites. In early 2021, following the introduction and vaccine national rollout the Respondent undertook avenues to provide information to their employees regarding vaccination. These included the circulation of announcements, videos and references to various statutory authorities regarding the safety and efficacy of the vaccines.
In or around August 2021, the Respondent began to consider additional safety controls to prevent the spread of COVID-19 within its sites in Australia. On 21 August 2021, an “Options Analysis” was submitted to the management group which led to the recommendation that vaccination could be a requirement of entry to their worksites.
On 31 August 2021, the Respondent announced by way of email to all staff, including the Applicant, the initiation of the consultation process for the introduction of the SAR. The email provided, inter alia, that employees could direct any questions, comments or concerns about the SAR and the COVID-19 vaccines in general to a dedicated email address. The announcement was followed by a consultation process engaged in with employees and their representative in accordance with the Coal Mining Safety and Health Act 1999 (Qld) (the CMSH Act).
Ms Smith set out in her evidence steps she took on 31 August 2021 including sending a WebEx meeting invitation to the management team, superintendents and supervisors at the Site for a pre-start meeting to take place at 8:30 am. Ms Smith said the purpose of that meeting was to provide an update on the COVID-19 situation. Ms Smith said she recalled that the following matters were discussed:
(a) An update on the status and progress of the proposed implementation of the proposed SAR;
(b) An overview of the proposed SAR; and
(c) The avenues available to workers to ask questions and provide feedback throughout the consultation process.
Ms Smith said at 9:30 am, she sent an email to the management team, superintendents and supervisors of the Site to provide reference information regarding the COVID vaccination update. As part of that email, Ms Smith attached all currently available information for leaders to refer to when responding to questions from workers about the COVID-19 vaccination (including a ‘Frequently Asked Questions’ (FAQs) document). Ms Smith said she requested that the leaders point the workers to the dedicated COVID-19 email address, whereby they could direct questions or comments regarding the proposed SAR.
September 2021 – November 2022
On 14 September 2021, Ms Smith sent an email to the management team with speaking notes regarding the rationale behind the Respondent’s assessment of COVID-19 vaccination and the SAR. The Respondent received memorandums from Mr Tim Dahlheimer (Vice President, Health Safety Environment, Minerals Australia) (Mr Dahlheimer) and Dr Gary Krieger (Senior Vice President of New Fields, and a Doctor of Medicine) (Dr Krieger) which both provided support and advice to institute the SAR. The memorandums provided evidence-based support of the efficacy of the vaccine in reducing the threat of COVID-19 on employees and the worksite.
The Respondent had prepared a Risk Based Options analysis paper to be taken into account by the Respondent in its assessment of whether to introduce the SAR. The paper contained inter alia, a Risk Analysis of options if the SAR was and was not introduced. This Risk Assessment was based on information produced by the Australian Technical Advisory Group on Immunisation (ATAGI), news reports and clinical evidence. This paper was considered in the development of the SAR.
Mr Gardner said in August and September the Respondent undertook consultation with the workforce about the proposal of introducing a vaccination policy. Mr Gardner said he was responsible for distributing messaging from Ms Smith (General Manager, Daunia), reminding employees of their options for providing feedback to BHP, and being able to answer questions in relation to the proposed requirement for COVID-19 vaccination. Mr Gardner said Ms Smith held several meetings via the video platform WebEx in relation to the proposed requirement for COVID-19 vaccination.
Mr Gardner said consultation meetings were scheduled for all workers (regardless of whether or not they were union members). He said workers were also reminded about the consultation process and the opportunities for engagement at ‘Return to Work’ meetings which occurred when they returned each round and at information briefs which occurred prior to most shifts. Mr Clarke said he did not dispute such an announcement was made when vaccination was being considered, however he was on leave for the entire month of August and most of September. Mr Clarke submitted this was irrelevant as vaccination was only being considered at this stage and details were not provided.
On 6 October 2021, the senior leaders of the Respondent received an email from Mr Edgar Basto (President, Minerals Australia) (Mr Basto) indicating that in line with Government guidance and the review of the effectiveness and status of COVID-19 controls, that a vaccination would become a requirement for entry to workplaces.
On 7 October 2021, the Respondent announced that based on the research and consultation process, the SAR was to be introduced. The announcement was sent by email to all workers on the site, including the Applicant. This announcement informed that the SAR was intended to come into effect on 31 January 2022. The announcement requested employees continue to provide feedback or queries in relation to the SAR to the designated email address or by speaking with their managers.
On that same day, Ms Smith followed this announcement with an email to all staff at the site, advising workers to be respectful of each other’s views and to reinforce the rational underpinning of the SAR and the decision to introduce it. The email also provided the contact phone number and email address for support and referred staff to the EAP should they require. The email also included the attachment of Mr Basto’s email and a frequently asked question document.
Mr Clarke said that during his shift on 14 October 2021, there was a group return to work meeting where there was a video message shown by Mr Gardner from Mr Basto saying that the vaccination mandates were going to be introduced for the good of the workplace on all their sites in Australia. Mr Clarke said there was no consultation, and this was presented as a done deal.
Mr Clarke said after the video there was a short question and answer segment with senior management, and Mr Gardner, the Maintenance Manager said that they could ask questions and he would answer what he could. Mr Clarke said one question was, what if they have a reaction to the vaccination and Mr Gardner said that BHP accepted no responsibility or liability, and it would be part of a no-fault indemnity scheme issued by the government. Mr Clarke said another question was if they could get a medical exemption and the superintendent said that if they could pass a coal board medical then they would not be eligible for any exemption.
Mr Clarke said a further question was regarding what happens if things change, and he said Mr Gardner replied that they would change requirements as the situation changed.
Mr Clarke described this as the provision of information only and not consultation.
Mr Clarke said he rang the Respondent’s Helpline with his concerns about the vaccination policy and was told that “they aren’t doctors and couldn’t provide me with any details, advice or reassurances.”
Mr Clarke was asked when he became aware there was a proposal to introduce a vaccine requirement and he said he believed about October 2021. Mr Clarke was asked at what stage he formed the view he was opposed to the policy and he said not until January 2022. Mr Clarke was asked if he wanted to be involved in the decision and he said yes. Mr Clarke claimed he was unaware of a consultation process before the policy coming into place.
Mr Clarke said the meeting with Mr Basto was the only meeting he attended. He said he was not aware of any information on the intranet or on notice boards. He said the only email he received was the one saying the vaccinations were to be mandated.
Mr Clarke said return to work is the first port of call when he returns to site and his return to work meeting was the one where the video was shown.
Mr Clarke asked Mr Gardner about the meeting on 14 October when the video of Mr Basto was played, and Mr Gardner said Mr Clarke asked questions. Mr Clarke asked Mr Gardner whether, given Mr Gardner was his manager and he knew Mr Clarke had a lot of concerns after the meeting on 14 October and he knew Mr Clarke was not on site, he thought he should have made a greater effort to speak to Mr Clarke about his concerns. Mr Gardner said that he had questions from up to 100 people and he had people in his office constantly. Mr Gardner said he did not know specifically that Mr Clarke was not on site as he doesn’t follow leave that closely. Mr Gardner agreed he could have contacted Mr Clarke off site.
Mr Gardner said that there were pre-starts, emails, posters and many opportunities leading up to the site access requirement and there were many opportunities for consultation. Mr Gardner said there were emails and Mr Clarke could have logged on to see the information. Mr Gardner accepted he did not spend time one on one consulting with Mr Clarke. Mr Gardner said the information provided to the workforce was comprehensive.
Mr Gardner said he believed that Mr Clarke was aware of the consultation process in relation to the proposed requirement for COVID-19 vaccination because Mr Clarke spoke about the fact that he did not agree with BHP’s position in relation to the proposed SAR at one of the consultation meetings.
October 2021 JSA Document
Mr Clarke was asked about the JSA document he filed. He said the JSA he completed was how a JSA should be completed, and the document was emailed to the General Manager at Daunia. Mr Clarke said the second page was about the spread of the illness. Mr Clarke agreed that the JSA set out that controls that could manage the spread of the illness. The document also set out ways to control the illness on site.
Mr Clarke agreed the JSA also set out that risks associated with the Pfizer vaccine could not be managed, as was the case with the Moderna and AstraZeneca vaccines. Mr Clarke agreed that he signed the document on 18 October 2021 and it was a process he participated in October 2021 that for the reasons contained in the JSA opposed mandatory vaccination going ahead. It was put to Mr Clarke that on the basis of this, he did have input into consideration of mandatory vaccination on site. Mr Clarke agreed he participated in the process. Mr Clarke said there was no response to the JSA document.
It was put to Mr Clarke he had a strong view that mandatory vaccination shouldn’t go ahead and was asked after the JSA document what he did to push the point mandatory vaccination should not go ahead. Mr Clarke said he was on leave from that point.
Ms Smith gave evidence that the JSA was considered by her as part of her decision making.
It was put to Ms Smith that the paperwork from the Respondent in relation to the risk assessments was not valid. Ms Smith said the risk assessment process for Covid 19 is not covered by the coal mining safety legislation and the mines inspectorate provided clear guidance on this, and that is why the risk assessment process involved a smaller group who were technical experts.
Ms Smith said the mines inspectorate provided two letters saying the matter was for Queensland public health not the mines inspectorate. It was put to Ms Smith that there was no valid risk assessment for Daunia Mine. Ms Smith said it was not a risk assessment for the Coal Mine Health and Safety Act it was a risk assessment for a business decision referencing Queensland public health guidelines.
It was apparent that it was Mr Clarke’s view that the risk assessment did not include a cross section of the workforce and therefore was not valid.
Ms Smith was asked what the actual date of the decision was to implement the mandate and she said her final decision at Daunia was 9 January 2022.
There was some cross examination of Ms Smith about the basis on which vaccines were brought onto site. Ms Smith said the vaccine hubs were not actually on site and were outside the boundary of the Daunia Mine.
November 2021 – January 2022
On 17 November, Ms Smith sent an email to the Operations team at the mine site to inform that the Respondent intended to ensure that employees would have easy access to vaccination. Her email stated that there would be a walk-in vaccine clinic and data portal available for employees to upload their data.
Mr Gardner said that on 29 November 2021, the BHP Health, Safety and Environment team sent a letter to Mr Clarke in relation to an update regarding the Vaccination Data Capture Portal (Portal). That letter provided a range of information about the Respondent’s vaccination policy. Mr Clarke said he never received this email. He said he was not on site during this period and the email was never forwarded to his personal email address. Mr Clarke said Mr Gardner was notified that he did not receive this email.
On 3 December 2021, following a decision by the Commission[10], the Respondent took additional steps to collaborate with the Unions and the Commission to agree on the consultation process. Ms Smith, in her witness statement summarised these additional steps and her involvement as follows:
“The actions taken by BHP to ensure consultation was effected in accordance with the recommendations from the FWC Decision included:
(a)setting up WebEx updates for all crews to discuss what we were currently doing in terms of consultation (including the options available for workers to provide their thoughts, ideas and suggestions for consideration), the practical implications of the FWC Decision and what we were going to do next as part of consultation. I led the WebEx updates. I also explained that each WebEx update was part of the consultation process agreed between the Fair Work Commission and the unions;
(b)having regular updates, communications and consultation sessions on Site with all workers at Daunia, including consultation sessions on Site with a group of delegates from the entire workforce;
(c)distributing a slide pack to all workers, which set out the steps involved in the consultation process;
(d)engaging with the Fair Work Commission and unions involved;
(e)tracking the questions and feedback provided by workers and ensuring this was lodged and recorded appropriately in the FAQ documents; and
(f)establishment of three to four consultation boards around Site with physical feedback forms.”
Ms Smith said these actions were taken over the space of a three or four week period.
On 10 December 2021, staff received an email from Mr William Hughes (Superintendent HSE Business Partnership) (Mr Hughes) which attached an information brief regarding the health support at the site regarding the uploading of employees’ vaccination certificates.
Mr Clarke agreed that he was on long service leave from 9 December 2021 to 12 January 2022. Mr Clarke was asked whether he kept in contact with anyone from the site while he was on long service leave and he said no as he went to his farm and he did not have access at the farm, and that was where he spent three months trying to get the house to a liveable standard. I took Mr Clarke’s reference to not having access to mean access to computers on the internet. He said he doesn’t really know what’s going on in the world when he is at the farm. It was put to him that he was not aware of any emails that came in during that period because he didn’t look. Mr Clarke said it was not that he didn’t look, it was that he did not have access to look (while at the farm).
Ms Smith said on 16 December 2021 at 6.11 am, she sent an email to all workers of BHP attaching a document entitled ‘Consultation Plan’. Ms Smith said the Consultation Plan is a document agreed between the Unions and BHP on 15 December 2021, following the FWC Decision.
Ms Smith said the objective of the Consultation Plan was to map out BHP’s consultation process moving forward for all workers and their representatives. Ms Smith said the Consultation Plan sought to provide workers with a genuine opportunity to share all thoughts, ideas, suggestions and scientific, medical or safety data or other information about the proposed SAR. Ms Smith said the Consultation Plan also facilitated a process by which BHP could take into account feedback from workers, and what if any, measures it could take to avert or mitigate the effect of the proposed SAR, before BHP made a final decision on the implementation of the SAR.
Ms Smith said on 16 December 2021, she signed off on an updated Workplace Risk Assessment and Control (WRAC) for the Site. The WRAC was undertaken by Jarius Angel (Site Systems Superintendent, BMA), Michelle Davis (Site Systems Specialist, BMA), Mr Hughes and Darren Lusher (Health Specialist, BMA).
Ms Smith said the WRAC supported the implementation of vaccination as a SAR for all employees, contractors and visitors from 31 January 2021 as a control measure (amongst other safety controls) to ensure that any identified risks associated with COVID-19 at the Site were at an acceptable level.
Ms Smith said copies of the Consultation Plan and the WRAC were printed and displayed on the communication board at the Site, and this was done so that those documents were clearly visible and accessible to all workers at the Site.
Ms Smith said a copy of the Daunia WRAC was also available for download by all workers, including Mr Clarke, on the Consultation Hub. Ms Smith said other key documents in relation to the proposed SAR and the rationale underpinning the proposed SAR were also uploaded to the Consultation Hub and available for download by all workers, including (but not limited to) the following:
(a)the Consultation Plan;
(b)the COVID-19 Vaccination BHP Australia Risk-based Options Analysis paper dated 30 September 2021;
(c)FAQs about COVID-19 vaccination;
(d)meeting minutes from various State Consultation Group Meetings;
(e)COVID-19 Medical Information Share;
(f)the FWC Decision, including a summary and statement about the FWC Decision;
(g)COVID-19 vaccination as a condition of workplace entry - health and safety basis and rationale paper;
(h)the memorandum about vaccination as a condition of workplace entry from Tim Dahlheimer dated 21 August 2021; and
the memorandum about vaccination in the workplace from Dr Gary Krieger dated 16 December 2021.
Ms Smith said on 20 December 2021 at 5:22 pm, Mr Hughes sent an email to all workers of BHP attaching a COVID-19 Vaccination Support Site Brief regarding site support that would be on offer to workers that required assistance in uploading their COVID-19 vaccination certificates onto the vaccination portal.
Ms Smith said on 21 December 2021, she was made aware by the Central Employee Relations team that a State Consultation Group meeting was held between representatives of BHP, Daunia and union representatives from the Construction, Forestry, Maritime, Mining and Energy Union, Australian Manufacturing Workers Union and the Communications Electrical & Plumbing Union (Unions) to discuss thoughts, ideas and suggestions on the proposed SAR.
Ms Smith said on 22 December 2021 at 5:53 pm, she sent an email to all staff at the Site to provide an update on the consultation process on the SAR.
Ms Smith said on 22 December 2021 at 5:56 pm, she sent an email to all superintendents and management staff at the Site, attaching supporting tool box talk information and guidance material to assist them in discussions with individual workers in their crew about the proposed Site Access Requirement.
Ms Smith said on 24 December 2021 and 29 December 2021, she attended meetings with a number of other BHP representatives and workers at the Site in relation to further consultation on the introduction of a SAR at Daunia. Ms Smith said the purpose of these meetings was to discuss the introduction of the SAR on 31 January 2022 and the measures that BHP could take to avert or mitigate the adverse effects of that introduction on workers, and answer any questions that workers may have about the proposed Site Access Requirement.
January 2022 - March 2022
Ms Smith said on 5 January 2022 at 5:53 am, she sent an email to all management staff, superintendents and supervisors at the Site with further guidance notes on how to approach consultation with workers in their respective crews, and on 5 January 2022 at 6:50am, she sent an email to all staff at the Site to provide an update on consultation regarding the Site Access Requirement, attaching a BHP fact sheet on FAQs regarding COVID-19 vaccination and how to upload COVID-19 vaccination status evidence on the vaccination portal. Ms Smith said she reminded all staff that the consultation period about the site access requirement was closing at 8 pm AEST on 6 January 2022.
Ms Smith said that following the closure of the consultation process on 6 January 2022, she reviewed the feedback received during the consultation period and then made the ultimate decision that the SAR would proceed on 31 January 2022. Ms Smith said before the decision to the implement the SAR was made, she carefully considered and took into account any thoughts, queries, comments and feedback provided by workers during the consultation process.
On 13 January 2022, Mr Gardner wrote a letter to Mr Clarke which directed him to produce evidence of his vaccination status to the Respondent in order for him to be able to access the site on his return from leave.
That letter stated, among other things, that:
(a)Mr Clarke was advised about the Site Access Requirement in October 2021;
(b)by way of letter dated 29 November 2021, Mr Clarke was advised that BHP needed to maintain records of all COVID-19 vaccination status’ across the workforce through requesting evidence of vaccination;
(c)BHP’s records reflect that Mr Clarke has not uploaded information or evidence of COVID-19 vaccination to the Portal;
(d)Mr Clarke was directed to register his vaccination status on the Portal so as to continue to have access to BHP owned and managed workplaces;
(e)Mr Clarke could provide his vaccination evidence through accessing the Portal through the QR code attached to the letter or through completion of a form on his desktop device; and
(f)Mr Clarke could send any questions or comments in relation to the requirement to the dedicated email address or he could contact the COVID-19 vaccine support line and/or his team leader.
Mr Clarke said he received this letter by email.
On 25 January 2022, Mr Clarke received a group email informing him that the Commission had issued a Recommendation informing that the requirement had been deemed reasonable and lawful. The following day, Mr Clarke received a text message from his superintendent requesting he call to advise whether he was intending to receive the vaccination. Mr Clarke sent a reply message the following day informing the superintendent could call him. During the phone call, Mr Clarke was informed that in order to attend the worksite, he would need to be fully vaccinated by 31 January 2022.
Ms Smith said that on 25 January 2022 at 8:20 am, she sent an email to all staff at the Site informing them that the SAR would come into effect from 12.01 am on 31 January 2022. Ms Smith said the email provided, amongst other things, information regarding the Recommendation from the Fair Work Commission handed down on 21 January 2022, which held that the Site Access Requirement was a lawful and reasonable direction, having regard to the Privacy Act and the right to bodily integrity.
Ms Smith said her email also set out the various measures she had decided to implement following consultation to support the implementation of the SAR at Daunia, including the utilisation of unpaid leave or remote working arrangements in certain circumstances.
Ms Smith said on 25 January 2022 at 8:24 am, she sent an email to all Superintendents and Management staff at the Site to inform them that a pre-start pack to accompany the email sent on 25 January 2022 would be circulated shortly.
Ms Smith said on 31 January 2022, the SAR came into effect at the Site, and the SAR, along with the Site’s other COVID-19 related safety controls are continually reviewed at both a BMA level and Site level to ensure they continue to be effective and necessary within the current COVID-19 environment. Ms Smith said the SAR remains in place at Daunia.
Mr Clarke was stood down from 1 February 2022 until 8 March 2022. Mr Clarke said that Mr Gardner telephoned him to confirm he had not uploaded his medical records and when Mr Clarke confirmed this, Mr Gardner proceeded to read him a letter where Mr Clark was advised he was stood down. Mr Clarke said he was not given prior notice that he was going to be stood down. Mr Clarke said Mr Gardner made clear the matter was not up for discussion. Mr Clarke submitted that for this period of stand down, he stated that the Respondent had relied solely on the Recommendation (of Deputy President Asbury) as the reason for the stand down. Further, he stated that the whilst the Recommendation addressed the Privacy Act and the right to bodily integrity, it failed to address a ‘multitude of reasons’ under the Agreement.
Mr Clarke said the letter provided him an option to provide a show cause within 48 hours. Mr Clarke said he provided the show cause response within the allotted timeframe. The show cause response included the following:
“As per your email dated the 1.2.22. I am disappointed to be coerced by my employer to take an experimental injection using a new technology with no long-term side effects available to retain my job which I have done to the best of my ability and without complaint for many years with BHP. I am not a trouble-maker and follow all reasonable and even some unreasonable company requests to get the job done in a safe and efficient manner. However, I do not believe that this is a reasonable request and does not take into account my own individual risk. I am very stressed as I have heard and witnessed first-hand many serious health issues resulting from the injections, and adverse effects have been well documented on government and medical health sites. Also, where the manufacturers have petitioned the courts to have their results of any testing done, suppressed for 75 years, does not instil me with faith in their product. In particular, where it has been shown that even after both injections and 2 boosters that the current treatment fails to prevent the catching, transmission, going to hospital and death from COVID making the treatment unnecessarily risky for little to no benefit. In view of this information, I believe that I should be able to wait for the newer vaccination which is purported to have less side-effects and more available testing.”
Mr Clarke said on 7 February 2022 Mr Gardner telephoned him after receiving his show cause response to confirm that Mr Clarke was prepared to consider receiving the Novavax vaccine when it became available later in the month. Mr Clarke said he confirmed this was correct. Mr Clarke said Mr Gardner said he needed it in writing and Mr Clarke subsequently sent an email to Mr Gardner confirming he would see a doctor about it when it became available.
On 24 February 2022, Mr Clarke sent an email to Mr Gardner advising he would not be receiving the Novavax vaccination. That email read as follows:
“Hi Jason and Regan
As per your request in regards my current personal medical records, I can confirm that after requesting a list of possible side-effects yesterday, and following this up with my own research (including personal evidence from family and work colleagues), it has become clear there is currently insufficient evidence and data available to reach an informed decision that Novavax is safe for use.
The formal publications offered on the Australian Government - Department of Health website, clearly state that: “…only a relatively small number of people have received this vaccination worldwide…” with more information to become available over time. And that side effects after Novavax are unknown.
Furthermore, the Department of Health website has highlighted, adverse impacts in vast percentage in participants in the limited trials conducted. This Includes a listed USA/Mexico phase III trial where “…adverse events were reported in around 58%…” of recipients after first dose and around 79% after the second dose. The only conclusion that can be drawn from such limited data sets available, is a clear indication of negative adverse side-effects.
The evidence surrounding the other injections are no more positive, and therefore it seems all contain serious risk of injury in the short-term, with little to no information of risk in the long-term. There is also little evidence supporting the success in curing, or in the prevention of catching or transmission of this virus, nor in stopping serious illness, hospitalisation, or death by use of these procedures. BHP Australia on their own decision to refuse any liability for adverse reactions, combined with the pharmaceutical companies lack of liability, also fails to inspire any confidence in its safety.
This is a job I have satisfied for 40 years with BHP and Rio Tinto without a single complaint or report on my ability or quality in my work duties. Always going above and beyond to ensure the success and safety of my current role and of the mine as a whole. I am a career mine worker, and expected to be able to see out my working life over the next 10 years with BHP, and realise the difficulty at my age to find suitable and comparable employment.
I further express disappointment, that while employed under one set of BHP work conditions (including medical requirement) which I have complied with – BHP Australia themselves have now introduced an additional invasive and possibly dangerous medical procedure (that is not required to be implemented by any law) retrospectively and unilaterally on their own initiative that contains personal risk to me and the entire workforce as a whole.
Taking into account, all this information or lack thereof, I must Decline the BHP Australia‘s unreasonable mandate, requiring me to be injected with this or any of the other current experimental drugs on trial as a means to retain my job or as a requirement to site.
Given that BHP Australia has indicated that the vast majority of the current workforce are vaccinated and as the ongoing proposed reduction in Covid requirements and obligations continues statewide and nationally, I believe that the company is now in a position to assess each employee on an individual basis and offer exemptions to these mandates.
I also don’t believe that it is essential or reasonable to force a small percentage of workers that do not wish to receive these injections before there is significant evidence to sustain they are safe.
I believe I can continue to excel in my current role without any substantial risk to BHP or it’s workforce. I request an exemption from what I believe to be unreasonable BHP Australia mandates, so I am able to continue in the role for which I was employed.”
Mr Gardner said that after receiving Mr Clarke’s email dated 24 February 2022, he had to make a decision in relation to next steps regarding his employment. Mr Gardner said that as part of that, he considered that:
(a)Mr Clarke had been on notice about the Site Access Requirement since at least October 2021;
(b)BHP had provided workers with ample opportunity to receive the COVID-19 vaccination including by setting up vaccination hubs at the Site;
(c)Mr Clarke did not present any legitimate exemptions or provide any medical evidence to justify or explain his refusal to be vaccinated;
(d)Mr Clarke expressed a willingness to receive the Novavax vaccination and this was accommodated. Mr Clarke then decided not to proceed with the Novavax vaccination;
(e)Mr Clarke was given an opportunity, and used those opportunities, to respond to the proposal to terminate his employment for failure to comply with the Site Access Requirement;
(f)Mr Clarke’s substantive role required him to attend the Site to perform work in the tool store;
(g)Mr Clarke was unable to fulfil the inherent requirements of his role because, pursuant to the Site Access Requirement, he was not permitted to enter or remain at any of BHP’s sites, including the Site, without being fully vaccinated against COVID-19; and
(h)there were no other vacant roles that Mr Clarke could be redeployed into.
Mr Gardner said that in light of these factors he determined that Mr Clarke’s employment should be terminated, and on 8 March 2022 he wrote a termination letter.
Mr Clarke said that on 8 March he received another phone call from Mr Gardner where he said words to the effect “I have a letter to read to you and that’s all there is to it it’s not up for discussion.” Mr Clarke said Mr Gardner read the letter terminating his employment.
It was put to Mr Gardner he did not have any discretion not to terminate Mr Clarke. Mr Gardner said the decision to make vaccination a site access requirement was the Respondent’s and as the site access requirement could not be met, he made the decision to terminate Mr Clarke. Mr Gardner was asked if there was another option such as looking at different work and if it was in Mr Gardner’s authority to do that. Mr Gardner said employees could apply for medical exemption. Mr Gardner said for Mr Clarke to fulfil his obligation in the tool store he could not see how that could be done without Mr Gardner coming on site.
MITIGATION
In the course of the hearing, I asked Mr Clarke about efforts he had made to mitigate his loss after his termination. Mr Clarke said his wife has been doing some part time work, and his evidence was to the effect that he used his long service leave, and after that he was focussed on his unfair dismissal application.
CONSIDERATION
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
I am required to consider each of these criteria to the extent they are relevant to the factual circumstances before me.[11]
(a) Whether there was a valid reason for dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)
To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[12] and should not be “capricious, fanciful, spiteful or prejudiced.”[13] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.
The Respondent asserts that its direction was lawful and reasonable. As to what is “reasonable” in the context of employer directions, the Full Bench provided in Mt Arthur Coal that:
“The reasonableness of a direction is a question of fact having regard to all the circumstances, which may include whether or not the employer has complied with any relevant consultation obligations; the nature of the particular employment; the established usages affecting the employment; the common practices that exist; and the general provisions of any instrument governing the relationship.”[14]
Mr Clarke argued that he only works a total of seven-night shifts per month, and therefore has a reduced level of contact with other people, and the night shift crew is smaller. Mr Clarke said he works alone and is only in the vicinity of 5 to 15 people each shift. Mr Clarke estimated only 20% of his role involved providing tools for other staff and the risks in relation to COVID-19 could have been managed by means other than vaccination.
Mr Clarke said the Civeo camp where he stayed is not managed by BHP and it is not mandatory to be vaccinated at the camp and where workers from other mines are not vaccinated.
Mr Clarke also relied on a JSA document tendered in the hearing signed by a range of employees of the Respondent, to support his view that the vaccination was not an appropriate way to manage the risk of COVID-19 and other control measures would produce a better outcome.
The decision in the case of Mt Arthur Coal of 3 December 2021 made conclusions in relation to the SAR, the same issue in contest here. The Full Bench in Mt Arthur Coal had before it extensive expert evidence. There was no contrary expert evidence in this case. The decision in Mt Arthur Coal concluded the SAR was capable of being lawful and reasonable however there was deficiency in the consultation process.
The decision in Mt Arthur Coal accepted a number of general factual propositions were established on the evidence as follows:
COVID 19 involves a high burden of disease, greater than influenza.
Any infected person is at risk of developing serious illness from the virus, which may lead to death.
The risks posed by COVID-19 have changed with the rapid spread of the Delta variant which is more infectious and has more severe health effects than previous variants.
All COVID-19 vaccines currently available in Australia are effective at preventing symptomatic infection, including the Delta variant.
All COVID-19 vaccines currently available in Australia substantially reduce the risk of serious illness or death, including from the Delta variant.
All COVID-19 vaccines currently available in Australia are safe and any adverse effects are usually mild. There is a much higher risk of developing serious complications and dying from acquiring COVID-19.
An unvaccinated person is much more likely to acquire COVID-19 from another unvaccinated person, rather than a vaccinated person.
While other measures, such as mask wearing, and social distancing, are demonstrated to reduce the transmission of COVID-19, the effectiveness of these measures depends on people applying them consistently or correctly. They do not provide a substitute for the constant protection offered by vaccines, nor do they reduce the risk of developing serious illness once somebody acquired infection.
Vaccination is the most effective and efficient control available to combat the risks posed by COVID-19.
10.Even with high vaccination rates of community, COVID-19 will remain a significant hazard in any workplace in which there is a possibility that people will interact or use the same common spaces (even at separate times). The Mine is clearly such a workplace.”
I adopt the reasoning in Mt Arthur Coal and reject the submission that either the JSA or other evidence relied on by Mr Clarke concerning the particular features of his role including the frequency of his work, and that work being performed at night and with a smaller number of employees, was a basis to conclude that it was unreasonable for the Respondent’s vaccination policy to be applied to him. It is uncontentious that in order for Mr Clarke to perform his role he was required to have contact with other employees on shift.
It is uncontentious that Mr Clarke continued to indicate up to the time of his termination that he was not vaccinated, and that he was not prepared to be vaccinated, and nor did Mr Clarke have a medical exemption. It is clear Mr Clarke would not comply with the Respondent’s direction.
Mr Clarke submitted that he was never consulted appropriately on an individual basis. Mr Clarke says that the Respondent has failed to comply with its consultation obligations under the enterprise agreement and safety legislation. Mr Clarke said he was not on site from 20 October 2021 through to his termination on 8 March 2022. Mr Clarke submits that Mr Gardner could have followed up with him and consulted with him even though he was off site. Mr Clarke was he on long service leave from 9 December 2021 to 12 January and was stood down from 1 February to 8 March 2022.
Mr Clarke submitted he was discriminated against for not being a member of a union as the unions were consulted with. Ms Smith gave evidence that both union and non-union members were invited to consultation sessions.
Mr Clarke has submitted that there was not a valid risk assessment, and the Mt Arthur Coal decision was support for the proposition that if employees were not made aware of a valid risk assessment, then consultation had not occurred. I am satisfied on the basis of the evidence that the risk assessment conducted by the Respondent supports its rationale for implementing the policy, and further the manner in which it was prepared was not in breach of mine safety laws for the reasons submitted by Ms Smith.
The evidence supports a conclusion that there was both broad consultations undertaken by the Respondent, and local consultation. The Recommendation of Deputy President Asbury issued on 21 January 2022 concluded the deficiency in consultation had been addressed. The extensive evidence of Ms Smith addressed the flow of information taking place in the relevant period. Ms Smith’s evidence addressed the extent of consultation on site to provide the opportunity for employees to have input into whether the vaccination policy should be implemented at Daunia Mine. Ms Smith’s evidence included pre-start briefings, information on the consultation hub, and of meetings and views expressed.
Ms Smith’s evidence was she had regard to this information including the JSA document tendered by Mr Clarke. Unfortunately for Mr Clarke, he was on long service leave, and he did not look at his emails and participate in the process, particularly the latter part of the process when he was on leave. This does not point to a deficiency in the process, and I am satisfied Mr Clarke had an opportunity to participate in the process. Mr Clarke’s own decision to be away at relevant times does not indicate the Respondent did not engage in appropriate consultation.
There is also clear evidence that Mr Clarke did have input earlier in October 2021 when he participated in the submission of the JSA document. Regardless of whether the obligations to consult arise from the enterprise agreement, or workplace health and safety legislation, I am satisfied sufficient consultation has occurred. There was considerable information made available in the period running up to the implementation of the policy and Mr Clarke was on site during that earlier period.
At one point Mr Clarke indicated he was considering his position regarding the Novavax vaccination, and the Respondent afforded Mr Clarke more time to consider his position, and he ultimately decided not to receive the Novavax vaccination.
I am satisfied that the evidence has established that the Respondent engaged in appropriate consultation. There is no evidence to support a conclusion that the Respondent’s direction was unlawful. For all of the reasons set out above, I am also satisfied that the Respondent’s direction was reasonable.
In light of Mr Clarke’s decision to refuse to comply with the Respondent’s direction the Respondent could not provide him with further work. Having considered all of the evidence I am satisfied that Mr Clarke’s failure to comply with the Respondent’s direction constituted a valid reason for dismissal.
(b) and (c) whether the person was notified of that reason and had an opportunity to respond
Based on the evidence provided and submissions made, I am satisfied that the Applicant was made aware in the months leading up to the implementation of the policy, that if he was not vaccinated his employment may be terminated, and further that he was given sufficient opportunity to respond to that reason
(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist in any discussions relating to dismissal
The Applicant has not claimed that he was unreasonably refused a support person.
(e) Was the Applicant warned about unsatisfactory performance before dismissal
Given the reasons for the Applicant's termination, this factor is irrelevant.
(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
The Respondent is a large employer with a well-resourced human resources department. It undertook an extensive process to provide its staff with information about the vaccination policy which was to apply to its operations. It consulted with the Applicant in respect of the policy, but it ultimately had very little control over what it could do if he chose not to be vaccinated.
(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
The Respondent is a large organisation with a dedicated human resource management team. Further the Respondent undertook, to a significant extent, to garner advice from the relevant industry employee unions and from the Fair Work Commission in establishing the Policy.
(h) Any other matters that the FWC considers relevant
Mr Clarke has worked for 40 years in the coal mining industry, and is late in his career and it may be challenging for him to get other work. It was put in closing submissions that Mr Clarke was close to retirement and his role in the tool shed for seven nights a month was a role he could physically keep doing until retirement in the next 5 to 7 years. He submitted that the impact on him has been harsh. There also appears to be no dispute that Mr Clarke has an unblemished record as an employee. It is clear he made a considered decision that he did not wish to be vaccinated.
The Respondent never contended that Mr Clarke had not had a long and distinguished career, however submitted that ultimately the matter is about the Respondent’s approach to managing risks in relation to COVID-19, and Mr Clarke exercised his right to choose not to be vaccinated.
On the basis of the evidence, the consideration in section 387(h) weighs in favour of Mr Clarke.
CONCLUSION
I have determined that the Respondent had a valid reason for dismissal and that the process followed by the Respondent that led to the termination was not unfair. While the consideration in section 387(h) favours Mr Clarke given the length of his employment, his good record and the personal impact of the termination on him, after having weighed each of the considerations in section 387, I have concluded that overall the dismissal was not harsh, unjust or unreasonable and I find that the Applicant was not unfairly dismissed in accordance with the Act.
I therefore order that the Applicant’s application be dismissed.
COMMISSIONER
Appearances:
Mr Brendan Clarke on his own behalf.
Mr Nick Le Mare of Corrs Chambers Westgarth for the Respondent.
Hearing details:
2022
Brisbane (by Microsoft Teams Video)
27 July.
[1] Clarke v Central Queensland Services Pty Ltd [2022] FWC 1589.
[2] [2021] FWCFB 6059.
[3] [2022] FWC 81.
[4] Exhibit 1.
[5] Exhibit 2.
[6] Exhibit 3.
[7] Exhibit 4.
[8] Exhibit 6.
[9] Exhibit 5.
[10] CFMMEU & Mr Matthew Howard v Mt Arthur Coal Pty Ltd t/a Mt Arthur Coal [2021] FWCFB 6059.
[11] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) [69].
[12] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[13] Ibid.
[14] [2021] FWCFB 6059 [259].
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