Carolyn Olsson v Dr Shaun McGrath - [2022] FWC 1270

[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

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.

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

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).

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.

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”.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Carolyn Olsson v Dr Shaun McGrath and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] FWC 1270
Decision Date: 24 MAY 2022

CaseChat Overview and Summary

Carolyn Olsson was employed by Dr Shaun McGrath as a part-time medical secretary. Olsson was dismissed due to her inability to comply with a public health order requiring vaccination against COVID-19. Olsson argued that her dismissal was harsh, unjust, and unreasonable, while Dr McGrath denied these allegations. The Fair Work Commission (FWC) was tasked with deciding whether Olsson's dismissal was unfair under the Fair Work Act 2009. The FWC found that Dr McGrath had a valid reason for Olsson's dismissal, as she was unable to work in her role due to the public health order. The FWC also determined that procedural fairness was observed, as Olsson was notified of the reason for her dismissal and given an opportunity to respond. Considering all relevant factors, the FWC concluded that Olsson's dismissal was not harsh, unjust, or unreasonable, and therefore dismissed Olsson's application for unfair dismissal.

Orders