Colton v Dhelkaya Health
[2024] FedCFamC2G 939
•23 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Colton v Dhelkaya Health [2024] FedCFamC2G 939
File number(s): MLG 1635 of 2022 Judgment of: JUDGE MANSINI Date of judgment: 23 September 2024 Catchwords: FAIR WORK - alleged contraventions of general protections provisions of the Fair Work Act 2009 (Cth) – circumstances of global COVID-19 pandemic and State Government-introduced public health directions and orders – where Applicant was a registered nurse in residential aged care facility of the Respondent – directed to produce evidence of COVID-19 vaccination or authorised medical exemption – took long service leave and continued to assess whether to take the vaccine – ultimately dismissed by reason of inability to perform inherent requirements of the role on capacity grounds – where not established that adverse action was taken for a prohibited reason – where not established that action was taken or threatened with intent to coerce – application is dismissed. Legislation: Fair Work Act 2009 (Cth) ss. 12, 340, 341, 342, 343, 360, 361, 539, 545, 793.
Occupational Health and Safety Act 2004 (Vic) ss. 20-23, 35
Public Health and Wellbeing Act 2008 (Vic)
Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2020-2024 cl.11, 99
COVID-19 Mandatory Vaccination (Specified Facilities) Order 2022 (No. 6)
Pandemic (Workplace) Order 2022
Pandemic COVID-19 Mandatory Vaccination (Specified Facilities) Order 2021 / 2022
Cases cited: Cadbury Schweppes Pty Ltd v Australian Liquor Hospitality and Miscellaneous Workers’ Union & Anor [2000] FCA 1793
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243
Esso Australia Pty Ltd v The Australian Workers’ Union [2016] FCAFC 72
Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525
Mayne v Dhelkaya Health [2024] FedCFamC2G 938
Schanka v Employment National (Administration) Pty Ltd [2000] FCA 202
Division: Division 2 General Federal Law Number of paragraphs: 145 Date of hearing: 2 – 3 May 2024 Solicitor for the Applicant: George Ryan Solicitor Counsel for the Respondent: Mr Minucci Solicitor for the Respondent: Minter Ellison ORDERS
MLG 1635 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LEONARD BERNARD COLTON
Applicant
AND: DHELKAYA HEALTH
Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
23 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.Costs be reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
IN SUMMARY
[1]
THE CASE BEFORE THE COURT
[5]
Grounds of the application
[9]
Materials relied upon
[11]
STAUTORY FRAMEWORK
[16]
General protections
[16]
THE EVIDENCE
[28]
Objections to evidence
[28]
Summary of the evidence
[44]
About the Respondent
[45]
Terms and conditions of the Applicant’s employment
[53]
The global COVID-19 pandemic
[59]
Applicant’s response to the Respondent’s initial pandemic response
[67]
Respondent’s mandatory vaccination direction
[74]
Applicant’s response to Respondent’s mandatory vaccination direction
[80]
Applicant’s dismissal from employment
[88]
Ms Mayne’s evidence
[95]
Other matters
[96]
FIRST AND SECOND GROUNDS
[97]
The respective contentions
[97]
Consideration
[105]
The adverse action
[105]
The workplace right(s)
[107]
The reasons
[109]
Resolution
[134]
THIRD GROUND
[135]
The respective contentions
[135]
Was the Applicant subject of coercion?
[137]
Resolution
[143]
CONCLUSION
[144]
REASONS FOR JUDGMENT
Judge Mansini
IN SUMMARY
Mr Leonard Bernard Colton (the Applicant) was employed by Dhelkaya Health (the Respondent) to work in a nursing role at Castlemaine Health for some 8 years until his employment came to an end by reason of his inability to fulfill the inherent requirements of his nursing role because he was not vaccinated against COVID-19 and unable to enter or remain on site at the workplace.
The Applicant contended that his dismissal was in contravention of the general protection provisions at Part 3-1 of the Fair Work Act 2009 (Cth) (Act). He also claimed to have suffered other adverse action and unlawful coercion in the course of his employment and in relation to the hospital’s approach to the global COVID-19 pandemic.
It was not contentious that the pandemic had a significant impact on the work environment of the Respondent’s facilities. The Respondent maintained that it had simply followed Victorian Government public health directives and orders and denied any contravention of the Act.
For the reasons that follow, none of the advanced causes of action were made out and the proceedings must be dismissed.
THE CASE BEFORE THE COURT
These proceedings were commenced by application filed on 15 July 2022.
On 28 November 2022, by consent of the parties, this case was ordered to be heard together with an application by Ms Mayne filed on 12 August 2022 in MLG1867/2022.
The Applicant subsequently elected to proceed by way of statement of claim, which was filed on 12 January 2023. Attempts to amend those pleadings were met with opposition by the Respondent on each occasion. For the reasons given on 24 October 2023, the Applicant’s pleadings of 12 January 2023 were struck out in their entirety and his legal representative was afforded 2 further opportunities to replead (heard on 12 December 2023 and 5 February 2024). Ultimately, on 5 February 2024, the case was ordered to proceed on the original claim (Form 2 filed on 15 July 2022) with 2 specific amendments to the alleged contraventions, in order to facilitate the progress of the proceedings as quickly, inexpensively and efficiently as possible.
The matter proceeded to final hearing over 2 days, on 2 and 3 May 2024. Both parties were legally represented. Pursuant to an earlier order and consent of the parties, the final hearing was convened concurrent with Ms Mayne’s application. As the cases are factually distinct the reasons stand alone yet bear similarities to the extent of common issues of law and procedure.
Grounds of the application
The Applicant’s claim as ordered to proceed may be summarised in 3 parts, relevant to each class of contravention claimed:
(a)Adverse actions taken because the Applicant had, had exercised or proposed to exercise workplace rights – alleged contraventions of s.340(1)(a) (first ground);
(b)Adverse action taken to prevent the exercise of workplace rights by the Applicant – alleged contravention of s.340(1)(b) (second ground); and
(c)Coercion claims – alleged contraventions of s.343 (third ground).
The original application sought compensation for loss of wages in the amount of general damages in the amount of $14,950 for lost wages and in an unspecified amount for the adverse impact of his dismissal on his professional standing. The final filed submissions indicated reinstatement was also sought.
Materials relied upon
Evidence and materials in this application and the related application of a Ms Bernadette Therese Mayne were received and taken to be filed in both proceedings. Accordingly, the parties filed a joint court book the contents of which was received in both proceedings subject to that which was opposed (addressed below) and a few amendments made by the Applicant on transcript.
The Applicant and Ms Mayne respectively gave oral evidence at the hearing. The other witnesses who had filed evidence for the applicants were not required for cross examination and did not give evidence at hearing.
At the hearing, the Applicant sought leave to adduce oral evidence in chief from 6 further witnesses who were not otherwise required for cross examination by the Respondent, which was opposed by the Respondent where the Respondent was not on notice of the evidence that they proposed to give (and is addressed with other objections to evidence in the below).
Also at hearing, the Chief Executive Officer (a Ms Sue Race), the Executive Director of People, Safety and Experience (a Ms Vicky Mellington) and the Executive Director, Clinical and Community (a Ms Dianne Senior) gave oral evidence for the Respondent.
The Respondent also prepared a chronology and an aide memoire to identify common documents annexed to the affidavits of Ms Race and Ms Mellington.
STAUTORY FRAMEWORK
General protections
Part 3-1 of the Act is titled “General Protections”.
Within it, “Division 3 – Workplace rights” includes provisions designed to protect certain workplace rights and industrial activities.
In relation to the first category of alleged contravention, the starting point is s.340 of the Act which relevantly provides (and, at all relevant times, provided):
Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
“Adverse action” is (and was) defined at s.342(1). Relevantly, adverse action is taken by an employer against an employee if the employer dismisses the employee or injures the employee in their employment or alters the position of the employee to the employee’s prejudice or discriminates between the employee and other employees of the employer: item 1 of s.342(1) of the Act.
Sub-section 342(2) goes on to clarify that the meaning of “adverse action” includes a threat of such action: s.342(2)(a). There are then exceptions for action authorised by or under any other law of the Commonwealth or a law of the State where prescribed by the Regulations (none of which is presently applicable): s.342(3).
“Workplace right” is defined at s.341, in 3 broad categories which relevantly provides (and provided) as follows:
Meaning of workplace right
(1) A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee—in relation to his or her employment.
In turn, “workplace law” is defined to include the Act and any other law of the Commonwealth, a State or Territory that regulates the relationships between employers and employees and “workplace instrument” is defined as an instrument that is made under or recognised by a workplace law that concerns the relationship between employers and employees: s.12 of the Act.
In relation to the third ground, s.343 of the Act provides (and provided) a prohibition on a person organising, taking or threatening to organise or take any action against another person with intent to coerce the other person or a third person to exercise or not exercise or propose to exercise or not exercise a workplace right.
Division 7 is titled “Ancillary Rules” and recognises that some adverse action may be taken for more than one reason. In order to be actionable under Part 3-1, it is sufficient that the relevant adverse action is taken for reasons that include a proscribed reason: s.360.
The statute also provides a rebuttable presumption concerning the proof of the reasons for which action was taken: s.361. That is – if, in an application in relation to a contravention of Part 3-1 of the Act, a person is accused of having taken action for a particular reason or with particular intent and if the taking of that action for that reason or with that intent would constitute a contravention of Part 3-1 then it is presumed that the conduct was engaged in for that reason, unless or until the person who engaged in it proves otherwise.
Sections 340 and 343 are civil remedy provisions. The Act confers jurisdiction upon this Court to hear applications for relief relating to contraventions of this section: s.539(2). That power extends to relief in the form of compensation as is sought here: s.545.
The liability of bodies corporate (in terms of the conduct and state of mind of a body corporate) is provided for at s.793 of the Act. That provision relevantly provides that any conduct engaged in on behalf of a body corporate by an officer, employee or agent of the body corporate, within the scope of their actual or apparent authority, is taken for the purposes of the Act and the procedural rules to have been engaged in by the body corporate.
THE EVIDENCE
Objections to evidence
Objections to evidence were made by the Respondent, outlined in a document handed up prior to trial as directed.
The primary objection was to a general category of evidence relating to the safety, effect, efficacy and/or effectiveness of any or all of the COVID-19 vaccines available and/or administered at any time in Australia on the basis that it is not relevant to a fact or issue in the proceedings. The objection related to: certain paragraphs of the affidavits of the Applicant and Ms Mayne; the entire affidavits of Ms Fawcett, Dr Neil and the 2 affidavits of Ms Peers; to the extent they were relied on for the safety, efficacy and effectiveness of the vaccines, various paragraphs of the affidavits of Ms Mosier, Ms Sayer-Castle, Ms Zsunchke and Mr Bertoni; and, to the extent it were sought to be brought before the Court as evidence in the proceedings, a bundle of documents referred to in the joint court book as the “Applicants’ additional material” (a list of the documents comprising that bundle is at Annexure A to these reasons).
At hearing, the Respondent confirmed that: if the Applicant successfully proved that he had and had exercised a workplace right(s) for the purposes of the Act, then the Respondent conceded that the proven workplace right(s) were exercised on the basis that the Applicant had a genuine belief that the COVID-19 vaccine was unsafe for him to take.
A second objection was raised in relation to the affidavits of Dr Neil, Ms Fawcett and the 2 affidavits of Ms Peers, which were said to constitute inadmissible opinion evidence.
The evidence subject of these objections was extensive and need not be detailed exhaustively here. It included depositions of the Applicant, Ms Mayne and others with nursing and medical qualifications, as to their concerns about the limited information known about the COVID-19 vaccines and about adverse side effects of the COVID-19 vaccine (with regard to their personal experiences). There was also a series of journal articles and other sources which included perspectives and research on adverse effects and limited effectiveness of the COVID-19 vaccine.
On behalf of the Applicant (and Ms Mayne) it was submitted that the first category of objection affected about 90 to 95% of the evidence in the case and, were the objection upheld, would perhaps make a farce of the proceedings. The Applicant also maintained that the Respondent’s concession did not resolve the issue, and the evidence remained relevant for purposes of establishing that the Applicant was doing his job in raising his concerns. In addition that there was sufficient information made available to every person that was offered a vaccine (so that each person could give informed consent to take the vaccine) was a critical obligation on the Applicant to investigate in his roles as nurse and a health and safety representative (HSR).
Further, that the second category of objection affected about 80% of the evidence. Whilst the evidence subject of this second category of objection was not relied on as expert evidence but rather to establish the opinion of that individual witness, on behalf of the Applicant it was submitted that he was not just raising these concerns because he had a personal opinion.
There were some limited objections on the basis of hearsay. The Applicant properly accepted that those objections were accurately made.
There were also a series of objections to relevance.
Resolution
The Applicant pursues multiple instances of alleged contraventions of the Act (arising under ss.340 and/or s.343). The relevant limbs to be made out (in the Applicant’s case) and then disproved (in the Respondent’s case) are outlined in the statutory framework above.
It is perhaps understandable that both applicants are desirous to have findings made about the safety, effect and efficacy of the COVID-19 vaccines because the approach of public policy makers in these respects (and with which they fundamentally and strongly disagreed) underlies the series of events that lead to the cessation of their employment with the Respondent.
However, as the Respondent has accepted that the Applicant was genuine in his beliefs about the (un)safety, (in)efficacy and (in)effectiveness of the COVID-19 vaccines, the truth of his beliefs does not need to be proved in order for him to succeed in this case.
Accordingly, the evidence and bundle of documents subject of the primary objection is not received in the case.
Subject to the ruling on the primary objection as to relevance, the general objection to admissibility of expert opinion evidence was withdrawn on the grounds that those paragraphs were led purely for subjective opinion or the subjective state of mind of the particular individuals at a particular point in time.
The hearsay objections are upheld.
Whilst some of the evidence subject of the relevance objections was not directly relevant to a ground of the claim as it were allowed to proceed, the balance of the evidence is allowed and received as relevant context to the matters in issue.
Summary of the evidence
Below is a summary of the evidence before the Court as relevant to the Applicant’s claims. Unless otherwise indicated, the following is not contentious and constitutes factual findings I have made.
About the Respondent
In or around March 2022, the entity that was formerly “Castlemaine Health” integrated with the Maldon Hospital and CHIRP Community Health to become the Respondent entity (known as “Dhelkaya”) (for ease of reference, the predecessor entity is also referred to as the Respondent in these reasons).
At the relevant times, the Respondent was a Victorian public health service which provided a range of services to its patients. Those services included: hospital services (such as urgent care and patient care), outpatient health services (such as podiatry, physiotherapy and nursing), outpatient non-clinical services (such as cleaning services), maternity services and aged care services.
There were 2 sections or areas of the Respondent’s operations: a residential aged care section and an acute ward (also referred to as an urgent care centre). It came to be accepted that a nurse employed at the hospital would mostly work in specific areas, but could be temporarily redeployed around the hospital - for example, in times of a staff shortage.
At the time of the hearing, the Respondent employed approximately 900 employees to work in its operations.
Ms Race was the Chief Executive Officer.
Ms Senior was the Executive Director, Clinical and Community.
Ms Mellington, as Executive Director of People, Safety and Experience, was responsible for all human resources, work health and safety and emergency management related matters across the organisation including employee experience, recruitment, termination, payroll and industrial relations. Workforce consultation was within Ms Mellington’s portfolio of responsibilities.
Mr Abbott was the Nurse Unit Manager of the Applicant’s work area.
Terms and conditions of the Applicant’s employment
The Applicant is an experienced nurse who commenced employment with the predecessor to the Respondent as a registered nurse in November 2014.
A copy of the Applicant’s most recent contract of employment dated 4 March 2019 (absent the position description referenced therein) was in evidence before the Court.
At the relevant times, the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2020-2024 (Enterprise Agreement) covered and applied to the Applicant’s employment.
The Applicant performed duties at Ellery House, one of 3 residential aged care units operated by the Respondent at its Cornish Street facility.
On the Respondent’s records, from approximately 17 February 2016, the Applicant was appointed pursuant to the Occupational Health and Safety Act 2004 (Vic) (OHS Act) as a HSR for his work area. In that capacity, the Applicant completed annual training courses, attended regular work health and safety meetings chaired by the Respondent’s Chief Executive Officer and acted as the designated person to whom relevant employees could report any health and safety concerns.
During his employment, the Applicant was also an Australian Nursing and Midwifery (union) representative and Ergo Coach, which involved teaching safe ergonomic methods of work in manual handling of both clients and machinery.
The global COVID-19 pandemic
On 11 March 2020, the World Health Organisation declared COVID-19 as a pandemic.
On 28 June 2021, the Prime Minister and all Australian State and Territory Premiers or First Ministers agreed to mandate that all residential aged care workers must become vaccinated against COVID-19.
From around mid-2021, the Victorian Government through its Chief Health Officer made a series of public health directions and orders under the Public Health and Wellbeing Act 2008 (Vic) (PHW Act). Among regulation of other public and private matters, the Chief Health Officer directed and ordered restrictions on attendance at workplaces and mandatory vaccination of employees against COVID-19.
On and from 7 September 2021, the first iteration of public health (mandatory vaccination) directions commenced operation. Those directions applied to residential aged care facilities and required operators to inform workers who performed work at the operator’s work premises that the operator would be requesting them to provide certain evidence about their vaccination status by 17 September 2021. By that first iteration of mandatory vaccination directions, a permitted reason for not receiving a COVID-19 vaccine was if an “exception” applied to the worker (defined to mean that a contraindication applied to them) and the worker had provided the operator with evidence from a medical practitioner to certify that the exception applied to them.
By a subsequent iteration, all health workers were required to be fully vaccinated by a Victorian Government-imposed deadline of 15 October 2021 and employers were required to stop workers who were unvaccinated from coming onto their premises to perform work.
The mandatory vaccination requirements were effected by way of pandemic orders issued by the Minister for Health under the PHW Act and commenced operation on 15 December 2021. Relevant to these proceedings there was the:
(a)Pandemic COVID-19 Mandatory Vaccination (Specified Facilities) Order 2021 / 2022 (Specified Facilities Order); and
(b)Pandemic (Workplace) Order 2022 (Workplace Order).
Over the period late January to April 2022, there were a series of updates to the Specified Facilities Order and the Workplace Order.
All iterations of the Specified Facilities Order and the Workplace Order required the Respondent, as a public health service and operator of a specified facility, to take all reasonable steps to ensure that any worker who was not fully vaccinated against COVID-19 or was not an excepted person (as defined) did not enter or remain on the operator’s premises for the purposes of working. An “excepted person” was defined as a person that held an acceptable certification that the person was unable to receive a dose, or further dose, of any COVID-19 vaccine that was available in Australia due to either a medical contraindication or an acute medical illness. An “acceptable certification” was defined as being a current COVID-19 digital certificate issued by Services Australia and displayed through the Medicare app, Service Victoria app or equivalent smartphone wallet (or printed) or a current Immunisation History Statement displayed through the Medicare app. Failure to comply was an offence under the PHW Act and attracted a maximum penalty for a body corporate of between 300 and 600 penalty units.
Applicant’s response to the Respondent’s initial pandemic response
The Applicant’s evidence was that it was not until COVID-19 came about in 2020 that things at work began to change. He was unsure about actual dates of events and gave generalised evidence of dissatisfaction about the requirement to wear a face mask which he discussed with unnamed colleagues and superiors but his concerns were met with compliant complacence.
The Applicant also gave evidence that upon the introduction of administration of a vaccine for patients and staff, in early 2021, he discussed his concerns about the safety and efficacy of the vaccine with unnamed colleagues and superiors which concerns were disregarded in the most part.
The Applicant was not specific but said that he received regular emails encouraging him to get vaccinated at the hospital and described his fear and trepidation at the prospect of taking the vaccine which he considered “experimental”.
He recalled generalised examples, without reference to dates and times, of being advised not to talk about problems with the vaccine at work and of his Nurse Unit Manager, Mr Abbott: having no apparent desire to discuss the issues and being outraged at pamphlets disparaging use of the vaccines being left near the visitor sign-in area. The Applicant gave other examples of unnamed nurses and allied health professionals asking him to help around how they could get out of the mandates that were being talked about and, among other concerns, of having questioned the way the vaccines were administered.
For her part, Ms Mellington broadly denied any contravention in these respects and expressly denied any recollection of directions about distribution of written materials questioning the Government’s approach but was also not in a position to answer such ungeneralised and unparticularised claims in evidence. Ms Mellington deposed that the Respondent had engaged in the nature and scope of consultation about COVID-19 vaccination, vaccine related directions and other COVID-19 related matters arising from Government directions and orders against the context of those Government directions and orders having the force of law and requiring the Respondent to take all reasonable steps to ensure that any worker who was not fully vaccinated or validly exempt did not enter or remain on the Respondent’s premises for the purposes of working. Her evidence was that there was no utility in the Respondent engaging in any further, different or more extensive consultation processes. She also denied any decision to shape or limit the scope of the consultation that did occur and denied any decision made for reasons that included staff expression of views about the safety and effectiveness of the COVID-19 vaccines, prevention or limitation of the expression of such views or exercise of workplace rights connected with workplace health and safety or at all. Ms Mellington maintained that the Victorian Government’s position meant there could not possibly have been any material change made to any vaccination requirements arising from a view expressed by a staff member and – therefore, whilst it remained open at all times for staff to raise and discuss issues and concerns, there was no utility in engaging in further consultation than that which occurred.
On 5 August 2021, the Applicant requested to access his long service leave on the basis that his father-in-law had fallen ill. He described in evidence how he had not wanted to use any of his leave entitlements but, following a period involving the introduction of a requirement to wear face masks and also on account of his trepidation regarding the vaccines that by then had been approved for medical use, he was desperate to get out of what he felt was a toxic environment in which he had become enmeshed.
From 16 August 2021, the Applicant was absent from work on approved long service leave. He said that he had hoped that in his time away there would be a change of attitude to the vaccine program being run by the Respondent and the health authorities. During his leave period, the Applicant said he was intermittently checking his work emails and received various communications from the Respondent, such as staff updates.
Respondent’s mandatory vaccination direction
On 25 August 2021, the Chief Executive Officer of the Respondent (Ms Race) sent an email to all employees in the following terms:
Dear staff,
At the National Cabinet meeting on 28 June 2021, the Prime Minister and all Australian state and territory first ministers agreed to mandate that at all residential aged care workers receive at least the first dose of a COVID-19 vaccine by mid-September 2021. This decision was based on advice from medical experts, the Australian Health Protection Principal Committee.
Castlemaine Health’s operations are based on a single site and we are a large aged care provider. This means all areas of our operations and all staff working on it are considered high risk for COVID-19. That is why from Thursday, 16 September all Castlemaine Health staff must receive at least the first does of the COVID-19 vaccine. From that date, COVID-19 vaccination will be a mandatory condition of working at Castlemaine Health. If you have not had and/or evidenced your first dose by 16 September you will not be rostered to work and must be suspended from duty. All new staff employed after 16 September must provide evidence of vaccination as part of pre-employment checks.
[…]
Exemptions
Exemptions to a mandatory vaccination will only be considered on medical grounds and must be in line with the Australian Technical Advisory Group on Immunisation’s (ATAGI) clinical guidance on COVID-19 vaccine in Australia in 2021. Medical practitioners will notify the Australian Immunisation Register (AIR) of a person with a vaccine exemption due to a medical contraindications or natural immunity. The exemption is then displayed on an Immunisation History Statement available from MyGov-Medicare.
If you choose to seek a medical exemption via this route and can provide your Immunisation History Statement as evidence, you may choose to use your own annual leave, long service leave or leave without pay. All exemptions will be considered on a case-by-case basis and you may be able to be redeployed.
More information
Our COVID-19 Staff Vaccination Policy is available on PROMPT or please aske your manager for a copy. If you would like to discuss concerns about vaccination, please email [...] to be put in touch with Dr Peter Sloan, our Director of Medical Services.
The demographics of this latest COVID-19 outbreak are continuing to change
(sic.)
(underlining indicates hyperlinked text)
Simultaneous to the 25 August 2021 communications the Respondent rolled out a “COVID-19 Staff Vaccination Policy" which, according to Ms Mellington’s evidence, provided that all employees must be vaccinated or provide a valid medical exemption. Her evidence was that the policy was updated from time to time in line with the Government’s orders. A copy of the policy as at 2 February 2022 was produced to the Court.
On 27 August 2021, there was an update from Ms Race to all employees which reiterated that there was a deadline for staff vaccinations of 16 September (2021) and in which she “strongly urged” everyone who had not already done so “to get vaccinated now”.
On 8 September 2021, Ms Race sent an email to all employees which reiterated that any staff who had not had and/or evidenced their first dose of the COVID-19 vaccination by 16 September would not be rostered to work and would be suspended from duty. By that email, Ms Race also said the following:
I urge you to make an appointment to meet with a staff member from Human Resources and your Manager to discuss what options may be available to you. Please note we are expecting the Victorian Public Health orders to be announced on Friday which will provide further direction to Castlemaine Health.
If you are undecided/concerned or unwilling to be vaccinated, please ensure you do one of the following as a priority, and by the deadline noted:
•Unsure re vaccinations – please email […] to be put in touch with Dr Peter Sloan, our Director of Medical Services to discuss your concerns by Tuesday 14th September.
•Seeking a medical exemption – please email […] to advise status of this. Medical practitioners will notify the Australian Immunisation Register (AIR) of a person with a medical exemption due to medical contraindications. The exemption is then displayed on an Immunisation History Statement available from MyGov-Medicare. Please provide Susan Wyatt with a copy of this asap and prior to 16th September 2021
•Decided not to vaccinate for personal reasons – if you haven’t yet communicated your decision not to be vaccinated with your Manager or Infection Control, please make contact as a priority and prior to 16th September 2021 to enable any necessary roster arrangements to be made. Again I urge you to make an appointment with HR as soon as possible to discuss any options that may be available to you.
Respect for choice
Castlemaine Health strongly encourages all staff to access a priority appointment at our onsite COVID-19 Vaccination Clinic by emailing […] without delay, or attend another vaccination hub. That said, we take seriously our responsibility to provide a workplace free from harassment, bullying and victimisation. We are committed to providing a work environment free from these behaviours. It is a staff member’s right to be treated with dignity and respect and it is also a staff member’s responsibility to treat others the same way.
We are aware that many staff members have strong opinions on the topic of COVID-19 and vaccinations, and we want to ensure that people aren’t confronted by the personal ideologies of others, or treated in ways that would be deemed ‘below the line’ because of their own values and choices.
Please be reminded that Castlemaine Health’s Above and Below the Line Behaviours and the Harassment and Bullying policy (available on prompt) must be adhered to in dealings with colleagues at all times. If you would like to discuss any concerns you have in this regard, please reach out to your Manager in the first instance, and/or to the Human Resources Department.
Regards Sue
(sic.)
(emphasis per original)
On 13 January 2022, the Respondent’s Chief Executive Clinical and Aged Care Services (Ms Senior) sent an email to all employees which stated:
On the 10th of January, 2022, a new Pandemic Order was made requiring Victorian health care workers to receive a COVID-19 Booster dose. Booster doses are of particular importance when considering the emergence of variants of concern such as the Omicron variant.
This requirement for a booster dose follows the previous direction that healthcare workers were required to be vaccinated by a certain date or provide an authorised medical exemption.
There are slightly different dates for people according to where they work and when they had their 2nd dose last year.
Category 1: Everyone who had their second dose of COVID-19 Vaccine on, or prior to, the 12th September 2021 is required to have a booster by 12th February 2022 regardless of where you work.
Category 2: Aged care staff who had their 2nd dose AFTER the 12th September are required to have a booster by the 1st March 2022
Category 3: Hospital/Community staff who had their 2nd dose on the 13th September 2021 or later will be required to have a booster by the 29th March.
There are many who have already been wonderfully proactive and have received, or arranged appointments to get their boosters, for those that haven’t please arrange a time in our vaccination clinic, local pharmacy or your GP. Once you have had your booster please forward a copy of your new digital certificate to infection control as this will have the date registered on it.
(sic.)
The Respondent also included updates in relation to the vaccine requirements in weekly newsletters sent to all employees, a bundle of examples of which were in evidence. Ms Mellington’s evidence was that she and her team prepared and sent out a number of those email “blasts” and weekly newsletters.
Applicant’s response to Respondent’s mandatory vaccination direction
The Applicant received the Respondent’s initial announcement of the mandatory vaccination direction issued on 25 August 2021 whilst on long service leave and accepted he would have received the further email from Ms Race of 8 September 2021 regarding the requirement to take the first dose of the COVID-19 vaccine by 16 September 2021. In relation to this, the Applicant gave evidence that:
(a)He was not consulted about the announcement nor, to his knowledge, was any other HSR;
(b)He was not fully vaccinated against COVID-19 as at 16 September 2021; and
(c)During his absence on long service leave, he was able to escape the consequences of remaining unvaccinated but became anxious about what he was going to do toward the end of his long service leave period.
On 20 December 2021, Ms Race sent a letter to the Applicant about his failure to provide evidence of a COVID-19 vaccine or a medical exemption. That letter was prepared by Ms Mellington’s team for Ms Race’s review and approval. By that letter, Ms Race outlined a summary of communications between the Respondent and the Applicant about the matter. The letter acknowledged that the Applicant was (then) utilising his long service leave and had indicated his intention to resign following this leave should the vaccination requirement still be in place. The letter reiterated that the Applicant was not required to attend the Respondent’s premises until his “return date” of 2 January 2022. In preparation for his return, Ms Race requested the Applicant to confirm his intentions, in writing (specifically that she was not planning to be vaccinated, fully vaccinated, will be fully vaccinated by end of leave period or an excepted person). She acknowledged the Christmas holiday period and afforded the Applicant a further period to do so, until 14 January 2022. The letter also included the following:
Please note that if you are not fully vaccinated, or an excepted person, or haven’t provided [Castlemaine Health] with evidence of being fully vaccinated or being an excepted person by 4 April 2022, [Castlemaine Health] will have concerns about your capacity to perform the inherent requirements of your role (which requires you to enter and remain on, [Castlemaine Health] premises).
This information can be provided by email to [Ms Mellington’s email]. Please be advised that in the absence of receiving any updates from you, we will assume your status remains unchanged.
If you are not fully vaccinated by the Return Date [2 January 2022] or an excepted person, you will be stood aside without pay and [Castlemaine Health] will consider possible termination of your employment for capacity reasons due to you being unable to perform the inherent requirements of your position. In such circumstances [Castlemaine Health] will issue you with a show cause letter, providing you with an opportunity to respond to the concerns in relation to your capacity.
[…]
On 21 December 2021, the Applicant wrote to Ms Mellington and accepted the offer to extend his leave until 14 January 2022. By that email, the Applicant stated that he had not conveyed to Mr Abbott that he did not intend to become vaccinated and had never discussed any intention to resign from his employment with Mr Abbott. Ms Mellington acknowledged his responses and stated she was unable to verify with Mr Abbott because he was no longer working for the Respondent.
On 12 January 2022, the Applicant sent an email to a Ms Knights (Acting Nurse Unit Manager) attaching a medical certificate dated 11 January 2022 which certified he was unable to attend employment from 3 January to 1 April 2022 inclusive “due to a medical reason”. Ms Mellington’s evidence was that she advised Ms Knight, consistent with the approach adopted for all employees of the Respondent, that the Applicant was not permitted to access his personal leave because he was not legally able to work on account of not having provided proof of vaccination or a valid exemption. The Applicant’s evidence was that he received a response which rejected his request for sick leave because he was not vaccinated.
On 13 January 2022, the Applicant sent an email to Ms Race in response to the 20 December 2021 letter. The Applicant’s email was apparently drafted some days prior as it was dated 11 January 2022 and commenced with a statement about the fact that some directions were then out of date and had been replaced by an order which was set to expire on 12 January 2022 (the day prior to when the email was sent). The email stated that the constraints on the Applicant’s return to work were dependent on the Government’s continuation of the state of emergency. Further, even if the Government were to introduce a further Government order or directive limiting the circumstances for when the Applicant can attend the Respondent’s facilities, he asserted it would only be for a short period and only in response to an emergency situation. The Applicant said that what he could or could not do during an emergency did not mean he was unable to perform the inherent requirements of his position and, when the emergency ends, there would be no issue about his competence to do the work. The Applicant concluded his email with a statement that he was unable to attend work due to a medical condition and attached the medical certificate dated 11 January 2022.
On 27 January 2022, Ms Race sent an email to the Applicant attaching a “show cause” letter. Ms Mellington’s evidence was that a draft was prepared by herself and her team for approval of Ms Race. By that letter, Ms Race stated that as a result of the Applicant being unvaccinated the Respondent had concerns about his capacity to undertake the inherent requirements of his role and advised that the Respondent was undertaking a review process to consider the possible termination of the Applicant’s employment. Ms Race invited the Applicant to provide confirmation of availability to attend a meeting or to respond in writing to Ms Mellington by 4 February 2022, which was said to be an opportunity to respond and provide any information including any mitigating circumstances and any proposals on reasonable adjustments noting the very limited nature of any exceptions under the directions.
There was subsequently an exchange of correspondence between the Applicant and a Ms Lindsey Bish (then People and Culture Manager of the Respondent) wherein the Applicant requested a meeting to discuss questions about the medical certificate he had provided and his remaining leave. Ms Bish responded to arrange the meeting.
On 10 February 2022, the Applicant attended a meeting with his legal representative, Ms Mellington and Dr Sloan. The meeting took place at a park near the Respondent’s premises. During the meeting, the Applicant expressed that he had not refused to be vaccinated but had declined to do so while awaiting answers to the questions he had raised about the safety and efficacy of the vaccines; and also sought to discuss and debate the merits of the COVID-19 vaccination. In cross examination, the Applicant accepted that in response he was told, in effect, that the meeting was not to debate the merits or efficacy or safety of the vaccine. The Applicant’s evidence was that he knew the Respondent was required to act in accordance with the applicable health orders, but did not recall Ms Mellington necessarily saying so in this meeting. He did recall feeling quite flustered because he said that he was shut down every time he tried to raise his concerns. Ms Mellington recalled having told the Applicant (who also recalled being told) that, if he decided to get vaccinated, the Respondent would be happy to have him come back to work and perform shifts. The meeting concluded with Ms Mellington saying that the Respondent would be in touch in relation to its decision about his employment.
Applicant’s dismissal from employment
Ms Mellington and her team proceeded to prepare a draft dismissal letter in relation to the Applicant’s employment. Ms Mellington’s evidence was that they did so because the Applicant had not put forward any extenuating circumstances to justify his failure to become vaccinated against COVID-19 or otherwise provided evidence of a valid medical exemption. Ms Mellington gave evidence that Ms Race agreed it was appropriate to dismiss Mr Colton from employment and signed the dismissal letter accordingly.
On 14 February 2022, Ms Race sent a termination letter to the Applicant at his work and personal email addresses. By that letter, Ms Race confirmed that she had been briefed on the 10 February 2022 meeting and the information put forward in response to the show cause letter. Ms Race stated that, after considering all available information, the Respondent had decided to terminate the Applicant’s employment on capacity grounds. Further that, as he was unvaccinated and not exempt from vaccination he was unable to enter or remain on site of the purposes of working at the Respondent’s operations which meant the Applicant could not fulfill the inherent requirements of his role. The letter stated that the termination was effective that same day and the Applicant would be paid 5 weeks’ pay in lieu of notice and any outstanding entitlements owed. Ms Race gave evidence to the Court that the dismissal of the Applicant was based solely on his vaccination status and its incompatibility with health orders that were binding on the Respondent at the time. Ms Race and Ms Mellington respectively gave evidence of their perspectives that the dismissal of the Applicant was not for any reason which involved:
(a)The Applicant’s role (or his conduct) as a HSR;
(b)The Applicant’s views concerning COVID-19 or the associated vaccines or him having in any way expressed those views to patients or staff of the Respondent; or
(c)The possibility that he may continue in the future to express those views to any patients or staff of the Respondent.
Ms Mellington did not receive any further correspondence from the Applicant and there was no further communication between the Applicant and the Respondent before the Court.
In cross examination at the hearing, the Applicant confirmed receipt of the above summarised correspondence and that, as at 10 February 2022, he was not vaccinated against COVID-19. He accepted in cross examination that, although he was not permitted to go back in to the workplace, he certainly had the opportunity during his period of long service leave to ask questions or raise concerns by phone or email of the members of the Respondent.
The Applicant further gave evidence of his perspective that:
(a)The Respondent was in a delivery of care emergency with insufficient nursing staff to carry out the workload from at least the time of his dismissal; and
(b)He was still baffled by having lost his job and career while looking after his own health as he understood his legal and professional duties required him to do.
Ms Mayne supported this evidence by describing her similar perspective on these issues in her evidence.
For her part, Ms Mellington did not agree with the characterisation of a delivery of care emergency or shortages that the Applicant and Ms Mayne had given their views about in evidence. She also did not agree that the circumstances were of a kind that constituted an “emergency situation” or “unforeseen circumstances” as to have justified the Respondent from non-compliance with the public health directives and orders.
Ms Mayne’s evidence
In the related application, Ms Mayne gave evidence which was to be adopted in these proceedings. At the relevant times, Ms Mayne was employed to work in the role of nurse in the urgent or acute care ward of the Respondent’s operations until her dismissal on 1 April 2022 by reason of her inability to fulfill the inherent requirements of her nursing role because she was not vaccinated against COVID-19 and unable to enter or remain on site at the workplace. Ms Mayne gave evidence about her experience and response to the Respondent’s response to the global COVID-19 pandemic and the mandatory vaccination direction which was, in parts, unique to her circumstances. Her evidence is detailed in the reasons of Mayne v Dhelkaya Health [2024] FedCFamC2G 938 and taken into account to the extent relevant to the Applicant’s case and the contextual background.
Other matters
The Applicant also gave evidence about the impact of his dismissal which to him was more than just the loss of a job - it resulted in him having to find another career and he had not been able to find another job with the pay he was able to earn as an experienced nurse and had periods of being unemployed and on Government support.
FIRST AND SECOND GROUNDS
The respective contentions
The alleged contraventions of s.340(1)(a) were at paragraphs 17 to 24 of the original claim and are read together with the amendments that the Applicant was granted leave to pursue on 5 February 2024. Given the degree of overlap, it is convenient to deal with the alleged contravention of s.340(1)(b) subject of the second ground and at paragraphs 25 to 27 of the original claim together with the first ground.
In summary, the Applicant contended that the Respondent took adverse action against him by:
(a)Terminating his employment; and/or
(b)In denying or failing to consult with the Applicant under the OHS Act and/or the Enterprise Agreement.
Further, in relation to the first ground, that the reason(s) for termination of his employment were because he had exercised or proposed to exercise a workplace right – particularised as the following “benefits” possessed by the Applicant:
(a)Under ss.20-23 of the OHS Act, to work within a system of work that was safe and without risk to his health and that of his co-workers and patients, to see the Respondent used work practices that ensured safety and the absence of risks to health from the use of substances within the hospital including vaccines, to see employees were supported by information and instruction on all substances including vaccines administered to patients and employees or recommended for such administration, to see that medical procedures carried out on patients and employees, or the administering of substances to them, only proceeded after informed consent was given by the persons concerned;
(b)As an appointed HSR, which role entailed responsibility to advocate for co-workers, initiate inquiries, complaints and proceedings and seek compliance with the workplace laws at ss.20-23 of the OHS Act;
(c)Under the OHS Act and/or the Enterprise Agreement, to the extent that those workplace instruments obliged the Respondent to consult with the Applicant (not particularised but understood to be a reference to s.35 of the OHS Act and cl.11 of the Enterprise Agreement).
In relation to the second ground, the Applicant claimed that it was the adverse action in the form of his dismissal that was taken to prevent him from agitating his concerns and advocating for the same workplace rights on behalf of his fellow workers – put another way, to prevent him from continuing to exercise his workplace rights and/or to prevent him from agitating his concerns as HSR for his work group. He made this claim by cross reference to the asserted workplace rights at paragraph 99(a) to (d) above.
The Applicant claimed to have exercised the above workplace rights by, during 2021 to 2022, raising the following issues and concerns about the Respondent’s actions in recommending and administering COVID-19 vaccines: recommending and administering COVID-19 vaccines when it did not have material safety data sheets setting out the constituents (living and otherwise) of, and all other substances contained in those vaccines; recommending and administering COVID-19 vaccines without informing patients and staff that it did not have material safety data or information on the contents, safety and efficacy of the vaccines to control COVID-19 infection; the method adopted by the Respondent for the intramuscular injection of the vaccines which did not require aspiration of the needle; the proper recording of the number of patients and employees reporting adverse actions to the Respondent after receiving one of the COVID-19 vaccines, and the need for the Respondent to respond to that evidence; the limited efficacy of the vaccines, and their failure to prevent a person receiving them from acquiring the COVID-19 virus and from transmitting it to others.
He further claimed to have exercised the above workplace rights by declining to be vaccinated while the concerns he had raised remained unaddressed, and especially until the Respondent provided advice on the constituents of the vaccines and provided evidence they were safe and without risk to health.
For its part, the Respondent contended that all of the alleged contraventions were fundamentally misconceived, including because they failed to acknowledge, accept or understand that the COVID-19 pandemic was a public health emergency to which there was a national work health and safety response which manifested, in the State of Victoria, in the issuance of public health directions and orders by the Chief Health Officer of Victoria which were binding on the Respondent and the Applicant at the relevant times.
The Respondent maintained that these claims should be dismissed because the Applicant had failed to establish the required elements to make good any of the alleged contraventions of s.340 of the Act including by failing to identify with sufficient precision the source and exercise or proposed exercise of each asserted workplace right pursuant to s.341(1) or that each claimed adverse action was taken because of or for reasons that included the exercise or proposed exercise of that workplace right pursuant to s.342 of the Act.
Consideration
The adverse action
There was understood to be no dispute about, and I find that, the Applicant’s dismissal on 14 February 2022 constituted an adverse action within the meaning of s.342(1) item 1(a).
It is at least conceivable that a denial or failure to follow a consultation process arising under an applicable workplace instrument could amount to an adverse action unders.342(1) item 1(b) or 1(c).
The workplace right(s)
There was not understood to be any dispute and I find that the Applicant possessed the following workplace rights at the relevant times:
(a)The entitlement to benefit from the protections created by the “general duties” at ss.20-23 of the OHS Act, being a series of obligations or duties imposed on the Respondent to, so far as reasonably practicable: ensure safety at work, maintain a safe workplace and provide adequate facilities and such information or instruction as necessary to enable performance of work in a way that is safe and without risks to health; monitor health and conditions and provide information concerning health and safety of employees at the workplace; and ensure that persons other than employees are not exposed to risks to their health and safety arising from the conduct of the undertaking of the employer;
(b)The entitlement to exercise the responsibility and obligations created by Division 4 of Part 7 of the OHS Act, to act as an elected HSR for the designated work group at Ellery House;
(c)The entitlement to participate in consultation under cl.11 of the Enterprise Agreement, which obliged the Respondent to consult with the Applicant where it proposed a “major change” that may have a “significant effect” on an employee(s) (as defined at cl.11.2 therein) – where such consultation required the Respondent to take prescribed steps to provide information, there to be a written response, consultation meetings convened, alternative proposals put and considered prior to advising the outcome; and
(d)The entitlement to participate in consultation in accordance with s.35 of the OHS Act, which obliged the Respondent so far as reasonably practicable to consult with employees likely to be directly affected by, for example, identification and assessment of risks to health and safety at the workplace and to make decisions about measures to control risks to health or safety at the workplace – where such consultation required the Respondent to follow any agreed procedure for undertaking consultation and otherwise to share information and give the employees a reasonable opportunity to express their views about the matter and take into account those views, and also required a HSR to be involved in that capacity.
There was a strong dispute about whether the Applicant had in fact exercised or proposed to exercise the claimed workplace rights. However, in light of the findings made below about the motivating and actuating reasons for the adverse actions taken by the Respondent, and indeed in relation to all of the Respondent’s established conduct with respect to the introduction and implementation of its mandatory vaccination direction, it is unnecessary to resolve those contests on the evidence before the Court.
The reasons
The critical issue in the present case turns on the Respondent’s reason(s) for the action it took (or inaction, as the case may be).
It was not controversial that, following the declaration of the global COVID-19 pandemic, there were a series of State Government public health directives and orders that imposed a number of new (and, at the time, emerging) restrictions and requirements on employers operating in the State of Victoria. Pertinent to these proceedings were the directives that initially required proof of a first dose of the COVID-19 vaccine for health care workers by 17 September 2021, then proof of “full vaccination” against COVID-19 by 15 October 2021, subsequently extended by iterations of orders which came to further require proof of “booster” vaccinations (in each case, unless there was a valid or permitted “exception” as defined) – whilst, at the same time, prohibiting an employer from allowing an person onto the premises for the purposes of work unless the proof had been provided.
It was against the context of this external operating environment that the Respondent decided to introduce and announced its mandatory vaccination direction (on 25 August 2021) and then proceeded to implement its mandatory vaccination direction (over the period September 2021 to February 2022).
Why was the Applicant dismissed from his employment on 14 February 2022?
The decision maker in relation to the dismissal of the Applicant’s employment was Ms Race, with guidance from Ms Mellington who was assisted by her human resources team.
Ms Race told the Court that, as with other employees dismissed in similar circumstances, the only reason for the Applicant’s dismissal was because he had not become vaccinated against COVID-19 and had not provided evidence of a valid medical exemption.
It is apparent on the face of the 14 February 2022 dismissal letter that Ms Race thought the Applicant’s vaccination status at the relevant time was that he had elected to remain unvaccinated. According to the Applicant, he had not directly said as much in his response to the show cause letter at the meeting of 10 February 2022 (and, indeed, as of 21 December 2021, had denied previously saying so to Mr Abbott). However, he sought to draw a fine distinction between not having refused to be vaccinated but having declined to do so while awaiting answers to the questions he had raised about the safety and efficacy of the vaccines. It remained the case that the Applicant had not provided proof of being vaccinated against COVID-19 or an authorised medical exemption. Accordingly, it may be accepted that at the relevant times Ms Race (and Ms Mellington) considered the Applicant was unvaccinated and not medically exempt. Especially given the proposition that the Applicant was unvaccinated was put to him in the show cause letter as the basis for considering dismissal and the Applicant did not provide the requested evidence to the contrary or otherwise seek to disavow the idea.
Ms Race’s evidence about her reason for the dismissal is supported by the content of the 14 February 2022 dismissal letter. In the letter itself, she articulated the reason for the Applicant’s dismissal by reference to the then current public health order which provided that the Applicant was unable to enter or remain on the Respondent’s premises for the purposes of working and in turn meant that the Applicant could not fulfill the inherent requirements of his role. Ms Race explained in the letter that, therefore, the Respondent had decided to terminate the Applicant’s employment on “capacity grounds” effective that same day.
However, her reason(s) bear more scrutiny. That is because, in the dismissal letter itself, Ms Race disclosed that she had been briefed about the Applicant’s response to the show cause letter as given during the 10 February 2022 meeting and taken into account “all available information”. The dismissal letter was prepared by Ms Mellington with assistance of her team. In scrutinising the real reason(s) for the dismissal, it is therefore necessary to consider the evidence about what was said in the 10 February 2022 meeting as well as the surrounding context including the input of Ms Mellington as advisor to Ms Race. Ms Mellington and her team, of course, having been privy to some of the earlier context comprising the available information specific to the Applicant.
That relevant context to the dismissal decision commenced with the Respondent’s decision to introduce and announcement of the mandatory vaccination direction on 25 August 2021, which events took place whilst the Applicant was absent from the workplace on pre-approved long service leave.
As the Applicant acknowledged in his evidence, his absence from the workplace meant that the consequences of his decision to consider his vaccination options (and remain unvaccinated) did not crystallise or come to a head until just prior to his planned return to work. In the interim period, the Applicant continued to be in receipt of communications sent to all employees of the Respondent containing reminders of the direction and likely consequences of non-compliance.
The Respondent commenced to engage specifically with the Applicant about the possibility his employment would be terminated as a consequence of a decision to remain unvaccinated by letter of 20 December 2021, followed up by the foreshadowed “show cause” letter of 27 January 2021, a meeting on 10 February 2022 at which there was a discussion with the Applicant (show cause response) and a dismissal letter of 14 February 2022. In all of these communications, the Applicant was consistently informed of the consequence of dismissal should he choose to remain unvaccinated - absent a permitted medical exemption or other mitigating circumstance - which ultimately constituted what the Respondent said was its sole reason for the dismissal.
Whilst the dismissal letter said that “all available information” was taken into account, and this must necessarily have included the Applicant’s views and concerns about the COVID-19 vaccines and the mandatory vaccination direction and the fact of his decision to remain undecided without more information, I do not conclude on the evidence that the Applicant was terminated because of his actual or proposed exercise of workplace rights. Taking the Applicant’s case at its highest, this is a case where the decision-maker’s reasons were not necessarily “entirely dissociated” from a protected activity but where the Respondent has disproved a suggestion of a close link (of the kind in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525 (Visy), noting the guidance of the High Court of Australia in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 at [55]). Perhaps the clearest demonstration of this is the evidence that, at the final show cause response meeting on 10 February 2022, the Respondent confirmed that they valued the Applicant’s service and would continue to employ him if he would only provide the requested proof of COVID-19 vaccination or a valid medical exemption as to comply with the public health orders in operation at the time.
The Applicant did not provide evidence of a COVID-19 vaccination or a valid medical exemption and, consistent with the process the Respondent had outlined in the show cause letter, I accept that on advice of Ms Mellington that was Ms Race’s reason for his dismissal.
On all of the evidence before the Court about the conduct and communications up to and including the dismissal decision, I am persuaded that the Respondent (through its agents, relevantly, Ms Race and Ms Mellington) continued to implement and enforce the mandatory vaccination including to dismiss the Applicant on 14 February 2022 for this sole purpose.
I conclude that the substantive and operative reason for the dismissal in the present case is separate and distinct from the identified association even if an exercise or proposed exercise of workplace rights were established.
For completeness, there is nothing relevant to this adverse action claim to be drawn from the timing of the decision and the show cause process. The timing for provision of proof in the Applicant’s case was driven by his available paid leave entitlements. There is no evidence that he requested more time on unpaid leave or otherwise.
I conclude that the Applicant was dismissed because of his failure to provide the requested proof of vaccination against COVID-19 or an applicable exemption in accordance with the then operative public health orders. I have not accepted that the fact of or proposal to exercise his workplace rights to raise his concerns or express his views (genuinely held), in whatever capacity they were expressed (and if they were so expressed), was an actuating reason for the Applicant’s dismissal on 14 February 2022. Accordingly, the Applicant was not dismissed in contravention of s.340(1)(a).
Nor does the evidence establish that the Respondent dismissed the Applicant as a means to prevent his exercise of the workplace rights I have found he possessed during the employment. To the contrary, the Applicant was invited to raise and discuss those genuinely held views and concerns and afforded an extension of leave (in other words, more time) in which to do so. The Respondent did not accept those views as enabling an alternate approach and, absent any proof of becoming vaccinated or exempted (as was requested on numerous occasions, over some 5months), the Respondent decided it had no choice than to dismiss the Applicant from his employment. The lapse of time between the Applicant first conveying his concerns about the Respondent’s pandemic response (which he said was as early as 2020 and regularly from 2020 to 2021) and the dismissal itself only adds further support to the conclusion I have reached in respect of s.340(1)(b) and does not demonstrate sufficient nexus or connection to the contrary.
Resolution
For the foregoing reasons, the Applicant has not made out a contravention of ss.340(1)(a) or (b) as claimed by the first and second grounds.
Why was there a denial or failure to follow a consultation process arising under an applicable workplace instrument?
As earlier considered, it is at least conceivable that a denial or failure to follow a consultation process arising under an applicable workplace instrument (here, the Enterprise Agreement and/or the OHS Act) could amount to an adverse action within the meaning of s.342 item 1(b) or (c) of the Act.
It is acknowledged that there was a strong dispute about whether the claimed denials and omissions to consult (as the claim were allowed to proceed) was sufficiently particularised as to engage the reverse onus.
The Respondent’s case did not hinge on its defence of its consultation process. That is because this is not a claim for breach of a consultation process in an applicable workplace instrument or contract. Indeed, whilst denying any failure to comply with any such obligation, Ms Mellington acknowledged in her evidence her view at the time was that consultation was futile. Nonetheless the evidence established that the Applicant had the opportunity to request to discuss and express views by phone and email at all times whilst on leave, and the Respondent met with the Applicant at an individual level to discuss his issues when he so requested. And, in the 5 months following the mandatory vaccination direction announcement, the Applicant did not agitate for the escalation of a dispute under the Enterprise Agreement or for consultation under any other workplace instrument but rather exercised his entitlement to take long service leave in which time he hoped the external regulatory environment would change. There was evidence of a show cause response meeting and some other individual communications but, on the evidence, he made no mention of his role as HSR or any other asserted workplace right.
In any event, in the present case, nothing turns on whether the factual circumstances triggered an obligation to consult under the Enterprise Agreement and/or the OHS Act, whether it were established that there was a request to consult made in compliance with such obligation which was denied and/or whether there was an omission to properly initiate consultation arising under the Enterprise Agreement or the OHS Act as required.
That is because the evidence consistently pointed to the conclusion that the Respondent’s actions in deciding to introduce the mandatory vaccination policy, in announcing the mandatory vaccination policy and in implementing the mandatory vaccination policy were motivated by the need to continue its operations in accordance with the emerging law (the requirements of the public health directives and orders).
Further, to the extent that the Applicant contended that these alleged denials and omissions to consult were designed to avoid the Applicant’s expression of his views and concerns about the COVID-19 vaccines such finding would not be consistent with the evidence. The Respondent did not deny that the Applicant genuinely held those concerns. The Respondent (through its agents) heard from him about those views, as outlined above. Whilst Ms Mellington did not consider there were many alternatives and indeed did not entertain debate about the science of the vaccines, the contemporaneous evidence established that the Respondent consistently expressed that it remained open to hearing from the Applicant including about any mitigating circumstances. Ms Mellington was flexible in approving additional leave to allow more time for the Applicant to consider his position. The Respondent expressly took the Applicant’s response to that final show cause letter (of 27 January 2022) into account, but decided that it had no choice than to terminate his employment. The evidence does not support that the Respondent’s actions were motivated or actuated by a prohibited reason.
Resolution
For the foregoing reasons, the Applicant has not made out a contravention of ss.340(1)(a) or (b) as claimed by the first and second grounds.
THIRD GROUND
The respective contentions
The Applicant’s claim that s.343 was contravened was at paragraphs 28 to 30 of his original application, based on the Respondent’s:
(a)Threats to dismiss him from his employment if he did not get vaccinated; and
(b)The dismissal of his employment,
in each case said to have been action taken with the intent to coerce the Applicant into not exercising one of his identified workplace rights including in a particular way, namely by requiring him to be vaccinated.
The Respondent claimed a lack of precision in the articulation and therefore its understanding of the claim.
Was the Applicant subject of coercion?
It is well-established that coercion involves the application of illegitimate pressure to induce the other party to act: Cadbury Schweppes Pty Ltd v Australian Liquor Hospitality and Miscellaneous Workers’ Union & Anor [2000] FCA 1793. The pressure being only illegitimate if it involves unlawful threats or amounts to unconscionable conduct: Schanka v Employment National (Administration) Pty Ltd [2000] FCA 202. Further, in Esso Australia Pty Ltd v The Australian Workers’ Union [2016] FCAFC 72 the Full Court held at [174] that:
Coercion has been held to require the satisfaction of two elements: negation of choice; and, the use of unlawful, or illegitimate or unconscionable means.
The element of negation of choice involves a subjective test of intent. The latter element, use of unlawful, illegitimate or unconscionable means, is an objective test.
Putting to one side for now the lack of precision of the pleading, it is plain from an assessment of all of the evidence that the Applicant (along with all employees of the Respondent) was “urged” and “encouraged” to take the vaccine or otherwise was liable to removal from roster and possible termination of employment.
The Respondent’s urgings and encouragement to get vaccinated are properly contextualised by reference to the context of the global COVID-19 pandemic and the emerging and evolving public health directives and/or orders which affected the Respondent’s operations and the work environment. The contemporaneous communications reflected that the Respondent was seeking to implement the approach of the Federal Government and the Victorian Government and that it had adopted the view, consistent with the Chief Health Officer’s advice, that vaccination was necessary to protect (in particular) the sick and the ageing population who were its clients. In my view, there was nothing objectively unlawful or illegitimate or unconscionable about the Respondent’s urgings and encouragement which were (at least in all examples in evidence before the Court) balanced by a confirmation of and respect for individual choice.
Specifically, the Respondent outlined its assessment of the Applicant’s available choices in various communications and invited discussion about alternatives - including as of the initial announcement of the mandatory vaccination direction on 25 August 2021. The Respondent was not unconscionable or inappropriate in its decision to fully inform the Applicant about the likely consequences of his various options.
In the present case the Applicant has not made out any subjective intent to coerce him to get vaccinated, or exercise any of his workplace rights in a particular way, for an unlawful or illegitimate reason.
Resolution
The evidence does not establish a contravention of s.343 and this third ground is not made out.
CONCLUSION
In totality, the evidence does not support that the Respondent’s actions were motivated or actuated by a prohibited reason.
For the above reasons, the claim made in this jurisdiction is dismissed.
I certify that the preceding one hundred and forty-five (145) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 23 September 2024
ANNEXURE A
1 N Buergin et al. “Sex specific differences in myocardial injury incidence after Covid 19 in MRNA -1273 Booster Vaccination”
httpps://onlinelibrary.wiley.com/doi/epdf/10.1002/ejhf.2978.2 M Oster et al. “Myocarditis Cases Reported After mRNA-Based COVID-19 Vaccination in the US from December 2020 to August 2021". JAMA 2022.327(4):
331-340.3 Sattar et al. "Nuclear translocation of spike mRNA and protein is a novel feature
of SARS-CoV-2"
4 M. Aldén et al. “Intracellular Reverse Transcription of Pfizer BioNTech COVID-19
mRNA Vaccine BNT162b2 In Vitro in Human Liver Cell Line". Curr. Issues Mol.
Biol. 2022, 44, 1115–1126. [5 P. Buckhaults, download material from
6 Shimazawa R, Ikeda M. "Potential adverse events in Japanese women who received tozinameran (BNT162b2, Pfizer-BioNTech)". J Pharm Policy Pract.
2021 May 31;14(1):46. doi: 10.1186/s40545-021-00326-7. PMID: 34059124;
PMCID: PMC8165345.7 Zhou Y, Peng Z, Seven ES, Leblanc RM. "Crossing the blood-brain barrier with
nanoparticles". J Control Release. 2018 Jan 28;270:290-303. doi:
10.1016/j.jconrel.2017.12.015. Epub 2017 Dec 19. PMID: 29269142.8 S V Subramanian and Akhil Kumar. "Increases in COVID-19 are unrelated to levels of vaccination across countries and 2947 counties in the United States",
European Journal of Epidemiology 30 Sep 2021:9 C. Schwab, L-M Domke, L Hartmann, A Stenzinger, T Longerich, P Schirmacher. "Autopsy‑based histopathological characterization of myocarditis after anti‑SARS‑CoV‑2 vaccination", Clinical Research in Cardiology (2023) 112:431–440 Clinical Research in Cardiology (2023) 112:431–440:
10 C Baumeier et al. "Intramyocardial Inflammation after COVID-19 Vaccination: An
Endomyocardial Biopsy-Proven Case Series", Int. J. Mol. Sci. 2022, 23(13),
6940;11 Gazit, S et al. "Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV-
2) Naturally Acquired Immunity versus Vaccine-induced Immunity, Reinfections
versus Breakthrough Infections: A Retrospective Cohort Study (2022)", Clinical Diseases Major Article
12 A. Jeans, Expert Report, 6 July 2023 submitted to Australian Federal Police 3 Dec. 2023 for investigation into lack of GMO licenses under the Gene
Technology Act 2000.13 Prof. Robert Clancy, The Problem with the COVID Narrative, Quadrant 16 Nov.
2022.14 Pfizer Transmission Admission European Parliament 10 Oct 2022. 15 PMCPA-3741-case-report-28-march-2024 16 Covid-19 Mandatory Vaccination Directions (No.1). 17 Australian Parliament Hansard, Senate Estimates, 26 Oct. 2023. 18 Pfizer, Gene Therapy: Behind the Scenes, downloaded from Pfizer website 19 Letters of Instruction to Dr Neil, Br Peers and Mrs Fawcett 20 Dhelkaya Health – COVID-19 Staff Vaccination Policy (version as at 25 August
2021)
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