Carolyn Olsson v Dr Shaun McGrath

Case •

[2022] FWC 1270

•

24 MAY 2022
[2022] FWC 1270

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Carolyn Olsson
v

Dr Shaun McGrath

(U2022/2136)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 24 MAY 2022

Application for relief from unfair dismissal – public health order requiring vaccination against COVID-19 – valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed.

Introduction

  1. Ms Carolyn Olsson was employed by Dr Shaun McGrath, a Consultant Endocrinologist, as a part time medical secretary. Ms Olsson was dismissed because she was not able to work in her job in circumstances where a public health order prohibited her from carrying out work as a health care worker on or after 31 January 2022 without having had at least one dose of a COVID-19 vaccine or being issued with a medical contraindication certificate. Ms Olsson contends that her dismissal was harsh, unjust and unreasonable. Dr McGrath denies those allegations.

  1. I heard Ms Olsson’s unfair dismissal case against Dr McGrath on 6 May 2022. Ms Olsson gave evidence in support of her case. Dr McGrath gave evidence in his defence of Ms Olsson’s claim for unfair dismissal.

Relevant facts

  1. Ms Olsson’s role as a medical secretary at Dr McGrath’s practice included reception duties, telephone communications, sending and receiving correspondence with patients, processing documents, checking emails, and housekeeping (preparing rooms for consultations).

  1. In October 2021, Dr McGrath spoke to Ms Olsson about the possibility of exposure to COVID-19 and measures to address the risks associated with such exposure. Dr McGrath also informed Ms Olsson that there was a possibility of mandatory vaccination being extended to all health care workers.

  1. On 16 December 2021, Dr McGrath alerted Ms Olsson to a press release from NSW Health entitled “Mandatory vaccination requirements will be extended to all primary care and other private sector health providers across NSW, with these workers required to have had two doses of a COVID-19 vaccine by 31 January 2022”.

  1. On 23 December 2021, Mr Brad Hazard, the New South Wales Minister for Health and Medical Research, made the Public Health (COVID-19 Vaccination of Health Care Workers) Order (No 3) 2021 (Public Health Order), which required, among other things, that:

  • a stage 2 health care worker not to work as a health care worker on or after 31 January 2022 unless the worker has received at least one dose of a COVID-19 vaccine or been issued with a medical contraindication certificate. A stage 2 health care worker is defined in the Public Health Order to include a person who does work in connection with the provision of a health service by a health practitioner on the premises at which the health practitioner provides the service. The Public Health Order gives the example of “a receptionist at a doctor’s surgery” as a person who would fit within this part of the definition of a stage 2 health care worker. The Public Health Order also defines a health care worker to include a stage 2 health care worker,

  • a stage 2 health care worker, if required to do so by an authorised person on or after 31 January 2022, provide vaccination evidence for the worker, and

  • each responsible person for a stage 2 health care worker take all reasonable steps to ensure that the worker complies with the requirements set out in the previous two bullet points.

  1. In the week commencing 20 December 2021, Dr McGrath discussed the implications of the Public Health Order with Ms Olsson. Dr McGrath told Ms Olsson that if she did not meet the requirements of the Public Health Order she could no longer attend work in Dr McGrath’s medical practice after 31 January 2022. Ms Olsson told Dr McGrath that she could not give informed consent to receiving an injection that was provisionally approved as a clinical trial and had not undergone safeguard trials required of vaccines generally, in order to keep her job. Dr McGrath asked Ms Olsson to consider her choices over the Christmas holiday break. Ms Olsson asked Dr McGrath to outline their discussion in writing. Dr McGrath did so by email on 22 December 2021.

  1. In January 2022, after returning to work following the Christmas holiday break, Dr McGrath asked Ms Olsson whether she had decided to comply with the Public Health Order. Ms Olsson informed Dr McGrath that she was not intending to be vaccinated against COVID-19. Ms Olsson did not present Dr McGrath with a medical contraindication certificate. Dr McGrath explained to Ms Olsson that as a health employee she had no option but to comply with the Public Health Order and as a health employer Dr McGrath also had to comply with the Public Health Order. Ms Olsson again asked Dr McGrath to outline their discussion in writing and the implications for Ms Olsson. Dr McGrath did so by email on 24 January 2022.

  1. On 25 January 2022, Ms Olsson provided Dr McGrath with a document entitled “Notice of Employment Particulars”. It provides:

“NOTICE OF EMPLOYMENT PARTICULARS
Request for the Law for Mandated Vaccinations in Employment

Employer: Shaun McGrath
[address omitted]

Employee: Carolyn Olsson
[address omitted]  25-01-22

Dear Shaun,

This notice is written in concern of a requirement made unto me, to undertake a medical treatment for the Covid-19 virus, as made on the basis that I may contract a disease and infect others thereafter and that the vaccination required of me to safeguard the community from that disease.

It appears from the notice given, you are claiming to be acting on public health orders issued by the Chief Health Officer of the State which have not accompanied this notice in order to inspect whether such orders are mandating (contracting) and are enforceable and binding on me.

Prior to receiving such notice, I have taken genuine steps and sought competent legal advice and further made enquiries into the Public Health Act 2010 (NSW) for which the Act has a provision found at s 10 for exemption by reasonable excuse, which is not accommodated for consideration in your notice, providing reasonable grounds for action against you for negligence.

Your notice purports to be executed by an authorised person, being an entity created and governed by the Corporations Act 2001 (Cth) claiming among other things, to impose changes to my employment contract by invoking a mandate that may not have fulfilled the legal process to overcome by constitutional guarantee of Crown law, found at s2(3) Constitution Act 1889 (WA) (s 118 Cth Constitution; Recognition of laws etc. of States) a mandatory prohibition against Acts devoid of the Crown, signature and seal.

Furthermore, it has been declared by the High Court, in the matter COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA AND ORS V QUEENSLAND RAIL AND ANOR [2015] HCA 11 to whereby the High Court unanimously held that a trading corporation within the meaning of s51(xx) of the Constitution that the relations between a trading corporation and its employees are governed by Commonwealth law and not State law and, therefore, seeking to apply State law to its employees is inconsistent with the Fair Work Act 2009 (Cth).

The employer/employee relationship (which is private in nature) is governed by the Federal scheme of corporation law as requested by the States in 2001 via s51(xxxvii), making the State Health directions inoperable by virtue of s 109 of the Constitution by extinguishing legislative power be imposed on the employer upon employees who enters the workplace.

It is of great concern that I am informed by a variety of government sources, both State and Commonwealth, that the vaccines have not gone through the safeguard trials required of vaccinations generally, and that the vaccines are being rushed through on the basis of an emergency and fail to provide protection from contracting nor spreading the virus and may only be a mechanism to lessen symptoms.

There exists in several media venues reports of substantial adverse effects and the occasional death that occurs immediately to several days thereafter. Reports abound that emergency wards of hospitals are treating vaccinated people for the aftereffects of the vaccines where nurses who are required to have those same vaccines, are refusing and leaving their workplace for the fear of the witnessed effects.

Further, there are reports of ingredients in the makeup of the vaccines that have cause for alarm in that they are known toxins and the studies to ensure the safety of these harmful substances have not been carried out in the push for early release.

Albeit that said, it is my responsibility as an adult, and for my family that I do not put myself in harm’s way needlessly, and that I am not denied my rights to medical choice and medical privacy. In that sense, I protect the requirement made on me to reveal my medical status on the basis for employment, when I am not under the effects of a disease and cannot be subject to the State’s Quarantine powers which are for want of jurisdiction (employer/employee) as deemed by the High Court.

Furthermore, it is my considered position that I serve myself, and my family, best if I refuse an experimental drug with known, and unknown, toxins and rely on my good health and natural immunity to safeguard my wellbeing.

Take Note:

1.   I protest the interference of a medical service upon me of unknown consequences, and I protest the inspection that violates my medical privacy.

2.   I request production of the written law that requires me to undergo a forced vaccination as a prerequisite of my employment.

3.   I request the production of the written data that proves the vaccine has undergone the clinical trials required of vaccines to prove its safety.

4.   I request that the law for mandated vaccinations be made pursuant to the constitutional guarantee.

5.   I request that the health directions and mandates be proved, for enforcement, that it has been made in the fulfilment of the law that governs this Commonwealth, for which unites and protects us.

Failure to produce the written law mandating this forced vaccination, within three days of this notice, shall be taken to be unwarranted coercion and workplace harassment for which substantial compensation may be due. Undertaking the vaccine as a condition to avoid work termination will not release, or absolve, you of the above numbered points and may be deemed a trespass without a written coram judice warrant. (See George v Rockett {1990} HCA 26-170 CLR 106)

I expressly reserve all my rights.

By

Carolyn Olsson”

  1. On 26 January 2022, Dr McGrath emailed Ms Olsson a copy of the Public Health Order, the Public Health Amendments (COVID-19 Medical Contraindication Certificates) Order 2021, together with a link to explanatory notes from the NSW Health website and information published by the Fair Work Ombudsman on COVID-19 vaccinations and public health orders. Dr McGrath also informed Ms Olsson, in his 26 January 2022 email, that “given your obvious distress, I would like you to take your last working day, being Thursday 27th January 2022, off from work. I will pay you your normal wage for this day and it will not draw down on your leave entitlements. Thank you for all your hard work over the last few years and I sincerely wish you the best for the future”.

  1. Ms Olsson took up Dr McGrath’s offer and did not attend work on 27 January 2022. Ms Olsson’s employment with Dr McGrath came to an end on 31 January 2022. In February 2022, Ms Olsson was provided with a separation certificate and paid her accrued annual leave entitlements.

  1. Dr McGrath gave unchallenged evidence, which I accept, that there were no alternative duties available for Ms Olsson to undertake, nor could Ms Olsson perform her duties as a medical secretary from home.

  1. The Public Health Order was repealed and remade with minor changes on 21 March 2022. The requirement for stage 2 health care workers to be vaccinated against COVID-19 or hold a medical contraindication certificate remained in place under the order as amended on 21 March 2022.

Initial matters to be considered

  1. Section 396 of the Fair Work Act2009 (Cth) (Act) sets out four matters which I am required to decide before I consider the merits of the application.

  1. There is no dispute between the parties and I am satisfied on the evidence that:

(a)Ms Olsson’s application for unfair dismissal was made within the period required in s 394(2) of the Act;

(b)Ms Olsson was a person protected from unfair dismissal;

(c)the Small Business Fair Dismissal Code did not apply to Ms Olsson’s dismissal; and

(d)Ms Olsson’s dismissal was not a genuine redundancy.

  1. I am also satisfied that Dr McGrath dismissed Ms Olsson within the meaning of s 386(1)(a) of the Act. In particular, Dr McGrath terminated Ms Olsson’s employment on his initiative. So much is clear from the written communications from Dr McGrath to Ms Olsson on 22 December 2021 and 24 January 2022 in which Dr McGrath informed Ms Olsson that she would no longer be able to work at his practice after 31 January 2022 if she remained unvaccinated and did not provide a medical contraindication certificate.

Was the dismissal harsh, unjust or unreasonable?

  1. Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Ms Olsson’s dismissal was harsh, unjust and/or unreasonable. I will address each of these matters in turn below.

Valid reason (s 387(a))

General principles

  1. It is necessary to consider whether the employer had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal.[1] In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded”[2] and should not be “capricious, fanciful, spiteful or prejudiced.”[3]

  1. The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[4] The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).[5]

  1. In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.[6] It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.[7]

  1. The employer bears the evidentiary onus of proving that the conduct on which it relies took place.[8]

Consideration re valid reason

  1. Once a public health order made under s 7 of the Public Health Act 2010 (NSW) (PH Act) is in force and applies to a particular workplace, the employer of employees who work in the workplace is obliged to comply with the order, as are the employees in the workplace, unless they have a reasonable excuse[9] for failing to comply with the order or the order is declared invalid or unlawful by a court of competent jurisdiction. The Commission does not have jurisdiction to determine whether a public health order is invalid or unlawful.[10] 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.[11]

  1. The New South Wales Court of Appeal has determined that public health orders in materially similar terms to the Public Health Order were not invalid.[12]

  1. I am satisfied on the evidence that when Ms Olsson was employed by Dr McGrath she was a stage 2 health care worker within the meaning of the Public Health Order. In particular, Ms Olsson worked in connection with the provision of health services by Dr McGrath on premises at which Dr McGrath provided health services. Because Ms Olsson was a stage 2 health worker, she was also a health care worker within the meaning of the Public Health Order.[13] Accordingly, the Public Health Order applied to Ms Olsson in relation to her employment with Dr McGrath. The effect of the Public Health Order was to prohibit Ms Olsson from working as a health care worker on or after 31 January 2022 unless she had received at least one dose of a COVID-19 vaccine or had been issued with a medical contraindication certificate.

  1. There is no dispute that Ms Olsson did not, prior to 31 January 2022, have any doses of a COVID-19 vaccine, nor had she been issued with a medical contraindication certificate. It follows that Ms Olsson was prevented, by reason of the Public Health Order, from undertaking any work as a health care worker on or after 31 January 2022.

  1. Ms Olsson contends for a range of reasons that she had a reasonable excuse not to comply with the Public Health Order. I disagree, for the reasons set out below.

  1. Ms Olsson submits that her employment agreement does not state that she is required to be vaccinated in order to keep her job. That is correct. But the absence of a contractual term does not matter in circumstances where the source of the prohibition on working as a health care worker without being vaccinated against COVID-19 or having a medical contraindication is a public health order made under the PH Act.

  1. Ms Olsson submits that the Public Health Order is unlawful because s 51 of the Commonwealth of Australia Constitution Act (Constitution) states that relations between a corporation and an employee are governed by commonwealth law, not state law and therefore applying state law to the employees of a corporation is inconsistent with the Act. Ms Olsson also submits that state health directives are inoperable by virtue of s 109 of the Constitution by extinguishing legislative power imposed on employers upon employees in the workplace. I reject these arguments. First, s 51 of the Constitution does not state that relations between a corporation and an employee are governed by Commonwealth law. Section 51 of the Constitution provides that “The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to … (xx) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth”. Secondly, Dr McGrath is a sole trader, not a corporation. Thirdly, there is nothing inconsistent between the Public Health Order and the Act. Fourthly, the Commission does not have jurisdiction to determine claims concerning constitutional invalidity.

  1. Ms Olsson contends that the Public Health Order is inconsistent with ss 60 and 61 of the Biosecurity Act 2015 (Cth), and therefore invalid pursuant to s 109 of the Constitution. The Commission does not have jurisdiction to determine this issue. In any event, I do not consider the argument to have any merit. Section 60 of the Biosecurity Act empowers particular officers to impose a human biosecurity control order on an individual if the officer is satisfied that the individual has one or more symptoms of a listed human disease, the individual has been exposed to a listed human disease or another person who has signs or symptoms of such a disease, or the individual has failed to comply with an entry requirement in relation to a listed human disease. Section 61 of the Biosecurity Act sets out what a human biosecurity control order must specify. I do not consider there to be any merit to the suggestion that the power to make an order under s 7 of the PH Act to deal with risks to public health alters, impairs or detracts from the operation of the Biosecurity Act. As to indirect inconsistency, the Biosecurity Act does not, in my opinion, leave no room for the operation of the PH Act. The Biosecurity Act and the PH Act, or the Public Health Order, address different topics. The former, in ss 60 and 61, being the risks associated with symptoms of, or exposure to, a listed human disease, and the latter being the imposition of measures to deal with public health risks generally.

  1. Ms Olsson contends that a government directive is not a law, and a recommended mandate/media release is not a ruling by parliament. It is also submitted by Ms Olsson that the Public Health Order was inoperable because it was devoid of the crown signature and seal. I do not find these arguments persuasive. Mr Hazard made the Public Health Order under s 7 of the PH Act, which empowers the Minister, if the Minister considers on reasonable grounds that a situation has arisen that is, or is likely to be, a risk to public health, to take such action and by order give such directions as the Minister considers necessary to deal with the risk and its possible consequences. An order made under s 7 of the PH Act does not have to be passed by both houses of Parliament in order for it to impose legal obligations on citizens in New South Wales, nor does it have to contain the crown signature and seal to be legally effective.

  1. Ms Olsson contends that it is legally, morally and ethically wrong to coerce a person to participate in a clinical trial, particularly in circumstances where the COVID-19 vaccines are experimental and have significant side effects including death. I do not accept these arguments. The COVID-19 vaccines required to be taken to comply with the Public Health Order are those “approved by the Therapeutic Goods Administration for use in Australia”.[14] The Therapeutic Goods Administration is responsible for assessing the safety, quality and effectiveness of all COVID-19 vaccines before they can be used in Australia. If Ms Olsson were correct in her argument that the experimental nature of the vaccines and their significant side effects gave her a reasonable excuse not to comply with the Public Health Order, it would have to follow that every other person in New South Wales had the same reasonable excuse, with the result that the Public Health Order did not impose any obligations on any person in New South Wales. The Public Health Order was made by Minister Hazzard on the basis that there was a risk to public health and the grounds for so concluding are set out in clause 3 of the Public Health Order.

  1. Ms Olsson submits that the requirement to be vaccinated violates her medical privacy and her right to informed consent. Ms Olsson has not been coerced to take a COVID-19 vaccine or do anything, nor has her right to informed consent concerning medical services or procedures been violated. She was informed by her employer that a Public Health Order had been made which prevented her from working as a health care worker unless she was vaccinated against COVID-19 or had a medical contraindication certificate. That information presented Ms Olsson with a choice. Ms Olsson chose not to be vaccinated. The consequence of Ms Olsson’s choice was that she could no longer work in Dr McGrath’s medical practice.

  1. As to privacy, Ms Olsson says that Dr McGrath breached the Privacy Act1988 (Cth) because he asked her whether she was vaccinated against COVID-19 and requested evidence of any such vaccination. Arguments concerning the interaction between the Privacy Act and other similar COVID-19 related public health orders were considered by Beech-Jones CJ (common law) in Kassam v Hazzard; Henry v Hazzard.13 His Honour rejected the contention that the public health orders under consideration in that case were invalid because they violated a person’s right to privacy. His Honour also relevantly held (at [215]) as follows in relation to arguments made by the plaintiffs concerning the Privacy Act: 

“Dr Harkess also referred to privacy principle 6 in Schedule 1 to the Privacy Act 1988 (Cth) which precludes an “APP entity” that holds personal information that was collected for a particular purpose from using or disclosing that information to another person unless the individual has consented to the disclosure (or subclauses 6.2 or 6.3 apply). Dr Harkess referred to the circumstance where a person submits to vaccination because of the effect of Order (No 2), the Aged Care Order or the Education Order and then obtains their vaccination evidence from the Australian Immunisation Register which is described below. He contended that, in those circumstances, there was no consent to the disclosure even though it is the (now) vaccinated person obtaining the information. This argument rises no higher than his contention about the impugned orders vitiating consent in relation to an alleged violation of the right to bodily integrity which has been addressed above and rejected.”14 

  1. Ms Olsson relies on ss 88 and 94(h) of the Privacy Act as part of her contention that she had a reasonable excuse not to comply with the Public Health Order. Section 88 of the Privacy Act concerns travel allowances. It is not relevant to Ms Olsson’s circumstances. Section 94H of the Privacy Act deals with offences concerning requiring another person to download a COVIDSafe app to a communication device, having a COVIDSafe app in operation on a communication device or consenting to uploading COVID app data from a communication device to the National COVIDSafe Data Store, or taking action against another person because they have not done any of those things. The evidence adduced in these proceedings does not suggest any breach of s 94H of the Privacy Act.

  1. Ms Olsson did not address any of the privacy principles under the Privacy Act in her written or oral submissions. For completeness and because Ms Olsson represented herself, I will address privacy principles 3 and 6. Privacy principle 6 provides that an entity must not use or disclose information for another purpose unless the individual has consented. There is no suggestion that Dr McGrath used or disclosed any information provided by Ms Olsson for a secondary purpose. Ms Olsson elected not to provide any relevant medical or other information to Dr McGrath, save for the fact that she was unvaccinated against COVID-19. There is no evidence to support a finding that Dr McGrath used or disclosed the fact that Ms Olsson was unvaccinated against COVID-19 for a secondary purpose. 

  1. Privacy principle 3 requires an APP entity not to collect sensitive information such as medical information about an individual unless the individual consents to the collection of the information. There is no evidence to suggest that Dr McGrath collected any sensitive information from Ms Olsson. In any event, there is an exception to the requirement of consent if sub-clause 3.4 applies in relation to the information. Sub-clause 3.4 applies if the collection of information is required or authorised by or under an Australian law, which is defined to include an “an Act of the Commonwealth or of a State or Territory”. In the present case, clause 8 of the Public Health Order, made under the PH Act, required or authorised the collection of medical information by employers about employees. Accordingly, sub-clause 3.4 of privacy principle 3 applied to Ms Olsson and Dr McGrath.

  1. Ms Olsson contends that she was discriminated against because she had a high viral load and she was not included in the 2021 Christmas party. The evidence does not make out any claim for discrimination. By email sent to Ms Olsson on 13 October 2021, prior to the making of the Public Health Order, Dr McGrath provided the following information to Ms Olsson:

“… Anyone can get COVID but if you are not vaccinated then your risk of getting infection is greater and your risk of a more significant illness is greater. Those with the higher viral load are more likely to transmit to others. If you have any respiratory illness or unexplained fever you should get tested and not come to work until a negative test and resolution of the illness. This is to protect the rest of the staff and any vulnerable patients who visit. As the business owner I carry a responsibility to keep as safe as possible all staff and visitors. I understand there is also still talk about mandatory vaccination of all workers who work in any healthcare setting. You will need to keep your eye on that space.”

  1. Ms Olsson did not adduce any evidence concerning the 2021 Christmas party from which she says she was excluded. Nor did Ms Olsson ask Dr McGrath any questions about this matter or why she was not included in the Christmas party. In the absence of any evidence or material supporting this contention, I do not accept it.

  1. At the hearing Ms Olsson made an oral submission that COVID-19 vaccines contain parts of unborn babies and taking such a vaccine is against her Christian faith. No evidence was adduced to support the contention that any or all approved COVID-19 vaccines contain parts of unborn babies. In the absence of any such evidence or supporting material, I do not accept this submission.

  1. Ms Olsson was not able to fulfil the requirements of her role as a medical secretary at Dr McGrath’s medical practice from 31 January 2022. There were no alternative duties available for Ms Olsson to undertake, nor could Ms Olsson undertake her job from home. As at 31 January 2022, there was nothing to suggest that the Public Health Order would or was likely to be varied or rescinded such that Ms Olsson would be permitted to work as a health care worker at any time in the foreseeable future. Ms Olsson had weeks prior to her dismissal to consider whether she would be vaccinated against COVID-19. She informed Dr McGrath that she was not intending to be vaccinated against COVID-19. If Dr McGrath had permitted Ms Olsson to work in his medical practice as a health care worker on or after 31 January 2022, he would have been in breach of the Public Health Order and exposed to financial penalties. There was in effect a new regulatory requirement that attached to Ms Olsson’s job.[15] She could have decided to take the necessary steps to meet the requirement. She decided not to do so. For all these reasons, Dr McGrath had a sound, defensible and well founded reason to terminate Ms Olsson’s employment.

  1. I am satisfied that Dr McGrath had a valid reason to terminate Ms Olsson’s employment.

Notification of reason (s 387(b))

  1. Ms Olsson was notified of the reason for her dismissal in the oral and email communications with her in the period leading up to the cessation of her employment in Dr McGrath’s medical practice. Ms Olsson was on notice from 22 December 2021 that her employment would be terminated if she did not have a COVID-19 vaccination or a medical contraindication certificate.

Opportunity to respond (s 387(c))

  1. Ms Olsson was given opportunities to respond to the reason for her dismissal after she was notified, on 22 December 2021 and again on 24 January 2022, of the fact that her employment would be terminated if she did not have a COVID-19 vaccination or a medical contraindication certificate.

  1. Having regard to all the circumstances, I am satisfied that Ms Olsson was given an opportunity to respond to the reason for dismissal related to her capacity.

Unreasonable refusal to allow a support person (s 387(d))

  1. There is no evidence to suggest that Ms Olsson made a request for a support person to attend any meetings or discussions with Dr McGrath in relation to the termination of her employment.

  1. In all the circumstances, I am satisfied that there was not any unreasonable refusal by Dr McGrath to allow Ms Olsson to have a support person present to assist in any discussions relating to her dismissal.

Warnings of unsatisfactory performance (s 387(e))

  1. Ms Olsson was not dismissed for unsatisfactory performance. This criterion is not relevant to the present case.

Size of enterprise and absence of human resource specialists or expertise (s 387(f) and (g))

  1. Dr McGrath operates a small specialist medical practice. He does not have any human resources specialists or expertise.

  1. In all the circumstances, I am satisfied that neither the size of Dr McGrath’s enterprise nor any absence of human resource management specialists or expertise had any material impact on the procedures followed in effecting Ms Olsson’s dismissal.

Other relevant matters

  1. Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

  1. I take into account the fact that Ms Olsson was employed by Dr McGrath for a period of about three and one third years. There is no suggestion in the evidence that Ms Olsson had anything other than an excellent employment record during the time that she worked for Dr McGrath. These matters weigh in support of Ms Olsson’s argument that her dismissal was harsh.

  1. Dr McGrath consulted with Ms Olsson about the introduction of the Public Health Order and its consequences for her continuing employment in his medical practice. Dr McGrath not only provided information to Ms Olsson about these matters, he also gave her plenty of time to consider her position and make her choice about whether or not to be vaccinated. These matters weigh against Ms Olsson’s argument that her dismissal was unfair.

  1. Ms Olsson says that she was not provided with the information she sought from Dr McGrath in her letter dated 25 January 2022. The information sought by Ms Olsson in that letter was (a) “the written law that requires of me to undergo a forced vaccination”, (b) “the written data that proves the vaccine has undergone the clinical trials required of vaccines to prove its safety”, and (c) “the health directions and mandates be proved, for enforcement, that it has been made in fulfilment of the law that governs this Commonwealth”. In response Dr McGrath provided Ms Olsson with a copy of the Public Health Order, together with links to relevant explanatory information made available by NSW Health and the Fair Work Ombudsman. I consider that Dr McGrath’s response was reasonable in the circumstances. The fact that the Public Health Order was binding on both Dr McGrath and Ms Olsson meant that Dr McGrath was not obliged to provide Ms Olsson with data concerning clinical trials for the COVID-19 vaccines approved by the Therapeutic Goods Administration for use in Australia.

  1. Ms Olsson submits that she did not receive redundancy pay or anything else on the termination of her employment, and she did not receive her accrued annual leave or a separation certificate until February 2022. As to redundancy pay, the evidence does not establish or suggest that Ms Olsson’s position was made redundant. The reason Ms Olsson’s employment came to an end when it did is because she was not prepared to comply with the Public Health Order. I am satisfied that Ms Olsson received notice of the termination of her employment in the email from Dr McGrath on 22 December 2021, confirmed in a further email from Dr McGrath on 24 January 2022. In any event, if Ms Olsson had been given notice, or further notice, of the termination of her employment on or after 31 January 2022, she would not have been entitled to work for Dr McGrath during any such period because she did not comply with the Public Health Order, with the result that she would not have been entitled to any wages in respect of that period.

  1. As to accrued annual leave owing to Ms Olsson on the termination of her employment, Ms Olsson sent an email to Dr McGrath about that matter on 16 February 2022. The following day Dr McGrath made the outstanding payment ($114.98) to Ms Olsson. Similarly, Ms Olsson requested a separation certificate and it was provided to her on 22 February 2022. I accept that the late provision of accrued annual leave and a separation certificate add some weight, albeit not significant weight, to Ms Olsson’s argument that her dismissal was unfair.

  1. Ms Olsson submits that she was not able to collect her personal belongings from her workplace following her dismissal. This issue was raised for the first time in Ms Olsson’s closing oral submissions. Ms Olsson accepted that she had never asked Dr McGrath for any personal belongings. Ms Olsson identified three particular personal items which she would like to obtain from Dr McGrath’s practice. To his credit, Dr McGrath responded to this matter by informing Ms Olsson and the Commission that he would take immediate steps to arrange for the items identified by Ms Olsson to be posted to her. I consider this to be an appropriate resolution of this issue. I will treat this matter as neutral in my assessment of the fairness of Ms Olsson’s dismissal.

  1. Ms Olsson submits that her dismissal has caused her financial and emotional hardship. I accept her submission in that regard. It adds weight to her argument that her dismissal was harsh in terms of its impact on her personal and economic circumstances.

Conclusion

  1. After considering each of the matters specified in section 387 of the Act, my evaluative assessment is that Dr McGrath’s dismissal of Ms Olsson was not harsh, unjust or unreasonable. Dr McGrath consulted with Ms Olsson in relation to the requirement for her to be vaccinated against COVID-19 if she wished to continue to work in his medical practice. Dr McGrath had a valid reason for the dismissal and he afforded procedural fairness to Ms Olsson prior to bringing her employment to an end. Dr McGrath was legally obliged to comply with the Public Health Order. The effect of the Public Health Order was that Ms Olsson was unable to undertake her job from 31 January 2022. There were no alternative duties available for Ms Olsson, nor could she do her job from home. In my view, these matters outweigh the matters I have identified above which support Ms Olsson’s argument that her dismissal was unfair.

  1. I am satisfied that Dr McGrath’s dismissal of Ms Olsson was not unfair within the meaning of the Act. The application is dismissed.


DEPUTY PRESIDENT

Appearances:

Ms C Olsson, for the Applicant
Dr S McGrath, for the Respondent

Hearing details:

2022.
Newcastle (by videoconference)
6 May


[1] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at [373, 377-8]

[2] Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at [373]

[3] Ibid

[4] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at [685]

[5] Ibid

[6] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24]

[7] Ibid

[8] Ibid

[9] Section 10 of the PH Act

[10] Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 at [68]

[11] Stevens v Epsworth Foundation[2022] FWC 593 at [26]

[12] Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299

[13] Public Health Order, Schedule 1, Dictionary – definition of “health care worker”

[14] Public Health Order at Schedule 1, Dictionary – definition of “approved COVID-19 vaccine”

[15] Stevens v Epworth Foundation[2022] FWC 593 at [24]

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