Daniel Clarke v Babcock Mission Critical Services Australasia Pty Ltd - [2022] FWC 1794

[2022] FWC 1794

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Daniel Clarke
v

Babcock Mission Critical Services Australasia Pty Ltd

(U2022/4130)

COMMISSIONER HAMPTON

ADELAIDE, 17 AUGUST 2022

Application for an unfair dismissal remedy – whether unfair – externally required vaccination mandate – instruction to comply – whether instruction lawful and reasonable direction – whether dismissal premature given all of the circumstances including the applicant’s absence from work – instruction lawful and reasonable– dismissal not unfair in the circumstances – fair go all around provided – application dismissed.

What this decision is about

Mr Daniel Clarke (the Applicant) has applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the FW Act) following his dismissal from Babcock Mission Critical Services Australasia Pty Ltd (Babcock or the Respondent).

Babcock is part of the aviation arm of Babcock Australasia and operates a fleet of ambulance-configured helicopters contracted to undertake medical retrieval services for the South Australian Ambulance Service and South Australian Government. This forms part of Babcock’s frontline Aviation Emergency Medical Service. Babcock also operate helicopters under contract with the SA Government providing policing and emergency rescue facilities and does so in other States of Australia with similar remits.

Mr Clarke commenced employment with Babcock in 2007 and at the time of the events canvassed in this Decision was an Aircrew Officer based at the Adelaide Airport base. The Applicant’s role included to assist the aircraft pilots and medical crews on the aircraft including patient handling and management during medical retrieval flights.

It is uncontested that at the time of dismissal in mid-March 2022, Mr Clarke was on personal leave due to non-work-related illness and had been on such leave since June 2021. His personal leave entitlements had been exhausted and he was then accessing income (salary) protection payments through a Babcock insurance policy that was provided under the relevant industrial instrument (income protection payments).

Mr Clarke’s employment was terminated on the basis of non-compliance with a direction (vaccination instruction) to comply with the South Australian Emergency Management (Healthcare Setting Workers Vaccination No 7) (Covid-19) Direction (Vaccination Direction). The termination was confirmed by letter dated 17 March 2022:

“Re: Non Compliance with our Direction - outcome
We refer to your response to our letter dated 8 March 2022. We provide the following responses to the questions and comments that you have provided:
1.“Compulsory, experimental medical procedures were not a part of my employment contract. See attached Position Description and Offer of Employment from 2008.”
a.we have reviewed your contract of employment, and note that it requires compliance with all lawful and reasonable instructions given by the employer.
b.The requirement to comply with the South Australian Emergency Management (Healthcare Setting Workers Vaccination No 7) (COVID-19) Direction (the Direction) and our customer requirements, is a lawful and reasonable instruction.

2.“Babcock has failed to conduct a risk assessment before passing on this client driven mandate and this was confirmed by Jane Swinton by email dated 22Feb2022. The SA Emergency Management direction this mandate fell under could have been challenged by Babcock as the Adelaide Babcock facility and employees have never before been designated as 'Healthcare setting' or 'Healthcare workers' prior to this situation.”
a.Babcock did not conduct a risk assessment to guide our compliance with the Direction, as compliance is not discretionary.
b.The definitions of 'Healthcare Setting' and 'Healthcare Setting Worker' are provided for in the Direction and unambiguously apply to the Adelaide base facility, and Aircrew Officers who are required to work in the Adelaide base facility.

3.“Copious scientific evidence has been provided by Babcock employees, challenging both the safety and efficacy of the current 'Provisionally approved' COVID-19 Vaccines and these contributions should be included in an ongoing risk assessment.”
a.The scientific evidence both for and against the COVID-19 vaccine has been considered in the company's infectious disease control procedure.

4.“Pfizer continues to release concerning trial data which seriously challenge the claimed safety of their COVID Vaccine and such new information should be constantly reviewed as part of an ongoing risk assessment by Babcock. This Pfizer data reports that 1223 deaths and many serious, adverse reactions were attributed to the vaccine during the first three months of the trial.”
a.Thank you for passing on the report, this will be provided to the Regional Head of HSEQ for consideration as part of the consultation for the proposed infectious disease control procedure.

5.“Pfizer and Astra Zeneca MSDS provides a clear picture of the lack of safety data available for these pharmaceutical products... Adverse Events Reporting systems around the world continue to receive unprecedented proportions of serious reactions and deaths reported from these vaccines... ATAGI has declared the expert panel never recommended vaccine mandates.”
a.As above, we will include this feedback in our consultation for the infectious disease control procedure.”

6.“Anecdotal reports of Aircrew Adverse Reaction from AUS/NZ (attached) have been reported to CASA and whilst I appreciate that Babcock may not have been privy to these reports prior to this email, it would be prudent for these reports to be considered in ongoing risk assessments by Babcock and in proactive consultation with CASA, as would be typical of any other safety concern arising in the industry.”
a.As above, we will include this feedback in our consultation for the infectious disease control procedure. CASA have not imposed any flight crew restriction on medical certificates for vaccinated pilots, other than the 24 hour period following each dose.

7.“All SA COVID-19 directions are currently being challenged in the Supreme court under a Judicial review which commenced on 17th Feb 2022, with the trial to be heard on 17, 18, 24 & 25 March. I am aware his has been brought to the attention of Babcock by other employees previously. The 'Reasonable and Lawful' assertion made repeatedly by Babcock is precisely the topic of this court challenge.”
a.We are aware that there are various judicial challenges occurring, and will continue to follow the progress of the hearings.

8.“As raised both in previous written correspondence and verbally in the videophone discussion, to my knowledge Babcock have so far failed to reply to the questions asked of them in a group letter in Oct 2021, of which I was a co-signer .”
a.The communication that you refer to was responded to directly by the Managing Director. and the pertinent aspects from the letter were addressed in the Company FAQ document which compiled responses to various feedback for the benefit of all employees. The letter was not co-signed and the individual who sent the correspondence did not copy any other employee, so the response from the Managing Director was only sent to the originator of the correspondence.

9.‘Background’ #3 incorrectly states that surgery date of 22 Jan was provided. Correct date of 19 Jan (per#6) was provided."
a.We acknowledge that the incorrect date was referenced in our letter.

10.‘Background’ #13. To add clarification, my preference in not wishing to provide a certificate of capacity to work prior to surgery completion, is due to it being irrelevant as Babcock has confirmed my vaccine status will prevent me working at the facility in any capacity. I would be willing to seek such a certificate if this was not the case, but see no valid purpose in this due to my COVID vaccination status."
a.We acknowledge that you prefer not to provide a certificate of capacity.

11.‘Babcock's Concerns’ #2 states that I failed to provide evidence of my vaccination status. l did indeed provide my status, however, I know of no available means to provide evidence of 'unvaccinated' status."
a.We acknowledge that you are unable to provide evidence of "unvaccinated status", and accept your status as notified.

12.“If Babcock and/or the SA Government are able to provide me with a detailed risk assessment, substantiated by conclusive evidence proving these experimental vaccines are in fact safe and effective, this would allow me to consider providing informed consent to this medical procedure, mandated under the Emergency Management Directions. As detailed in the points above, evidence to the contrary continues to surface and the very fact that these provisionally approved, pharmaceutical products are currently in trial phase, hence experimental denies me the ability to provide informed consent at this time.”
a.As noted above, Babcock did not conduct nor request a risk assessment. We are not forcing vaccination, but we require that our Adelaide Base Aircrew Officers are either vaccinated, or subject to an approved medical exemption from vaccination in accordance with the Direction in order to perform the rote for which they are employed.

Notwithstanding the above, our concerns regarding your ongoing non-compliance with our direction and your failure to demonstrate that you will be ready, willing and able to perform your duties as an Aircrew Officer, after your surgery, remain.

Given the length of time that you have had to comply with our lawful and reasonable direction and given that you have not provided any information to suggest that your position is going to change, we will be proceeding with the termination of your employment, effective immediately. Your employment with Babcock will end effective 17 March 2022.
Your final pay will be processed.”

Mr Clarke considers the dismissal was unfair on a number of grounds including that there was no lawful requirement for him to comply with the Vaccination Direction as he was on a period of leave and not required to attend the workplace until he was fit for work on 24 May 2022. Amongst other matters, Mr Clarke also contends that the Vaccination Direction did not apply to Babcock’s operations.

After conducting a directions conference with the parties on 19 May 2022 and considering the nature and extent of the evidence involved, I determined that a hearing would be the most effective and efficient way to resolve this matter.[1]

I observe that there is no contest that the application was validly made within time,[2] that Mr Clarke was dismissed,[3] and that he was protected from unfair dismissal.[4] Babcock is also not a small business as defined under the FW Act.

For reasons that follow, I have ultimately determined that the dismissal of Mr Clarke was not unfair.

The cases presented by the parties

2.1 Mr Clarke

Mr Clarke’s central proposition is that he was dismissed on 17 March 2022, some 68 days before he was eligible to be fit for work, and that this amounted to a harsh, unjust and unreasonable dismissal. That proposition relies upon contentions that included:

·The vaccination instruction was not lawful and not underpinned by a lawful direction;[5]

·The Vaccination Direction did not apply to Mr Clarke’s workplace;

·In any event, Mr Clarke was never obliged to become vaccinated given that he was not at work and the Vaccination Direction did not require that he be dismissed;

·Mr Clarke was on approved leave and the fact that he was not vaccinated was irrelevant to the issues before the Commission; and

·The dismissal was a political decision based upon an ideological difference between himself and management. That is, due to Mr Clarke’s participation in rallies opposing vaccination mandates.

Mr Clarke also contended that the dismissal was premature and unfair on the basis that:

·The absence of notice meant that he was denied access to a General Protections application and this “underpins the malice embarked upon by the employer”;[6]

·The dismissal was without notice and his full payment in lieu of notice was only paid after intervention from Mr Clarke’s union;

·Mr Clarke could have accessed his Long Service Leave (LSL) upon his return to work and this would have meant that he was not required to be at work for a further extended period;
·If not dismissed in March 2022 Mr Clarke may have become infected with Covid-19 and this would have meant that he could have resumed work on the basis that he was not obliged to be vaccinated for a period; and

·If proper notice of dismissal was given at the appropriate time, Mr Clarke could then have made a decision as to whether he was prepared to be vaccinated.

Mr Clarke also raised various aspects touching upon the procedure adopted by Babcock including the contention that the reasons for dismissal were raised only on one occasion in the lead up to the decision, he was not given a proper opportunity to respond to those reasons and Babcock “refused him the opportunity to be assisted by a support person at the time of termination, other than the occasional presence of a Union Official – who was not entitled to “engage” in any discussions with the Respondent Employer.”[7]

Mr Clarke also contends, in effect, that the dismissal was harsh given the impact of the termination in light of his personal circumstances, including his medical status.

Mr Clarke provided a witness statement[8] and gave sworn evidence in the hearing.

Mr Timms, acted as Mr Clarke’s support person in the hearing. In effect, he conducted Mr Clarke’s case including the evidence and making the substantive submissions and assisted the conduct of the matter.

2.2Babcock Mission Critical Services Australasia Pty Ltd

Babcock contends that the dismissal was for a valid reason on a basis that included the following propositions:

·Mr Clarke failed to comply with a reasonable and lawful direction issued to him by the Respondent to comply with the Vaccination Direction. Whilst dismissal because of an employee failing to comply with a State Government public health direction is still a relatively new area of law, there have been numerous decisions of the Commission (at first instance and on appeal) that provide authority that this is a valid reason for dismissal.

·In addition, Mr Clarke’s refusal to comply with the Respondent's direction is, of itself, serious misconduct and a valid reason for dismissal.

·The direction given to the Applicant was lawful and reasonable. It was his personal decision not to comply with the Government Direction.

·It could have dismissed Mr Clarke for serious misconduct with no notice but instead provided him with four weeks' notice. This also facilitated Mr Clarke having continuing access to his income protection payments and these continued up to the point that he was fit to resume work, which he was unable to do because of his vaccination status.

Babcock also contends that the dismissal was not premature and relied upon propositions that include:

·The Applicant's absence from work at the time of his dismissal does not mean there was not a valid reason to dismiss him at that time or that dismissing him at that time was unfair or premature.

·Mr Clarke had indicated on at least two occasions that he did not intend to be vaccinated.

·Babcock had no way of knowing when, if ever, the Applicant would be able to return to work due to his refusal to be vaccinated.

·Babcock needed certainty and to fill his position (which the Respondent had kept open already for a significant period while the Applicant had been off on personal leave). This created costs and a considerable lag-time in recruitment, training and placement was expected.

Babcock also contends that the procedures it applied were fair. The Applicant had notice of the reason for dismissal, was given multiple opportunities to discuss his vaccination status and was given an opportunity to make submissions in mitigation prior to his employment being terminated. Mr Clarke did not indicate any intention to be vaccinated.

Babcock led evidence from the following (each provided a witness statement and were cross-examined):

·Ms Jane Swinton – Human Resources Manager;[9] and

·Mr Thomas House – Chief Pilot.[10]

Mr Short represented Babcock with permission.[11]

Observations on the evidence

I found that Mr Clarke generally gave his evidence in an open and unguarded manner. The only significant reservation I hold is about his stated attitude to being prepared to receive a Covid-19 vaccination if he was ultimately required to do so to keep/regain his job. This evidence was not convincing and is contrary to the balance of the evidence and the events as they unfolded. Any considerations of “options” by Mr Clarke did not include becoming vaccinated with any of the currently approved Covid-19 vaccines.

I found the evidence of Ms Swinton to be given in an open and honest manner. Ms Swinton was at times unclear as to the precise basis upon which both the vaccination instruction and Vaccination Direction operated in connection to the dismissal. This does not impact upon the genuineness of her evidence as to the facts including that it was the instruction and Direction that formed the basis of the dismissal. Mr Timm’s admirable attempts to demonstrate to the contrary based upon the references to the Applicant’s absence in the briefing emails that accompanied the show cause and dismissal decisions, did not disturb that evidence.

I found Mr House to be an impressive witness. He had a clear recollection of the events, made appropriate concessions, clearly stated the considerations apply to its decision to dismiss Mr Clarke and I accept his evidence as to the objective facts.

Babcock did not call the ultimate decision makers to give evidence in this matter. There is no basis to draw any adverse inference from this.[12] The basis of the relevant decisions made by Babcock and the processes that were followed leading to the dismissal were within the direct knowledge of Ms Swinton and Mr House. Further, the existence or otherwise of a valid reason is to be determined by the Commission based upon evidence before it; not the subjective views of the employer’s decision makers.[13]

The facts of the matter

4.1The general context

Mr Clarke was employed by Babcock from December 2007, until his employment was terminated on the 17 March 2022. Mr Clarke was employed by Babcock in the role of Aircrew Officer. Since November 2011, Mr Clarke has worked as a fixed-base employee, assigned to Babcock’s Adelaide airport base. All Aircrew are required to hold a CASA Class 2 medical certificate issued by a Designated Aviation Medical Examiner (DAME).

Babcock is contracted by the South Australian State Government to provide air ambulance and law enforcement helicopter services.

The role of an Aircrew Officer onboard the South Australian contract helicopters includes duties assisting both the aircraft pilot, and the aircraft medical crew. The Aircrew Officer is required to assist with patient handling and management during flight.[14]

Mr Clarke has a significant hearing loss which has largely been addressed by a cochlear implant. Mr Clarke held the required medical certificate to perform his duties in accordance with Civil Aviation Safety Authority (CASA) requirements, which includes an audiologist’s assessment. Additionally, Mr Clarke was required to conduct annual proficiency checks that confirmed his ability to hear and communicate effectively in the aircraft. There is no indication that this medical condition diminished the quality of his work performance or played any role in his dismissal. Indeed, there is no indication that Mr Clarke’s work performance was problematic in any way.

4.2 The general sequence of events

Mr Clarke suffered a non-work-related injury in early 2021 and was absent from work for all but a few weeks leading up to late June 2021.

Mr Clarke was then continuously absent from work due to one or more non-work-related medical conditions from 26 June 2021 until his employment was terminated. This period represented paid and subsequently unpaid leave and was authorised by Babcock.

On 12 July 2021, Mr Clarke was directed by CASA that he could not exercise the privileges of his aviation medical certificate due to the medical condition. This followed the diagnosis of a medical condition in early July 2021.

On 26 August 2021, Mr Clarke applied to access income protection payments under the relevant Babcock insurance policy. His claim was accepted, and income protection payments of $2000 per week, commenced on 6 September 2021 once he had exhausted his personal leave entitlements, in accordance with the Aircrew Enterprise Agreement[15] and the insurance policy. The income protection payments continued until 24 May 2022. Mr Clarke was on leave without pay for this latter period.

On 11 October 2021, the then Managing Director of the Respondent, Mr Darren Moncrieff, sent an email to all Babcock group employees working on frontline Aviation Emergency Medical Service contracts advising them of the introduction of the relevant South Australian Emergency Management COVID-19 Direction (first and second dose requirement), and the Babcock requirement for all employees who work on the South Australian (government) contract to be compliant with the relevant version of the Vaccination Direction.[16]

On 26 October 2021, Mr Clarke sent an email advising that he had had his post-surgery scan and he was booked for further surgery on 1 November 2021. He further advised that when he had his medical clearance to work reinstated, he would be seeking to take long service leave (LSL) to consider his options regarding vaccination.[17] As a result of Mr Clarke's advice, Babcock removed him from the roster for the remainder of the year pending timing on medical clearance and any discussion on vaccination.

On 27 October 2021, Mr Clarke advised[18] he needed to have further surgery so there would be additional delays.

On 10 December 2021, Mr Clarke sent an email advising that he had his final surgery booked for 22 December 2021 but had since developed a further related condition and had a booking for the additional surgery now required on 19 January 2022. He advised that he would be making a further income protection application to cover that absence.[19]

On 20 December 2021, Mr House wrote to Mr Clarke and indicated that, in light of the length of his absence and an unknown date of return, the Company was considering his suitability for ongoing employment and allowed him the opportunity to provide any information regarding his likely return.[20]

On 31 December 2021, an Official from the Australian Manufacturing Workers' Union (AMWU) sent an email on behalf of Mr Clarke. In that correspondence Mr Clarke advised he had an estimated six-week recovery period following the last scheduled surgery on 19 January 2022.[21] This meant a likely return date in March 2022.

Based on this information, Mr House wrote to Mr Clarke on 11 January 2022 seeking a medical certificate to support his anticipated date of return to work.[22]

On 12 January 2022, Mr Moncrieff sent an email to all Babcock employees working on frontline Aviation Emergency Medical Service contracts advising the amendment to the South Australian Emergency Management COVID-19 Direction requiring a further booster shot (booster requirement), and the Babcock requirement for all employees who work on the South Australian (government) contract to be compliant with the Vaccination Direction.[23]

On 14 January 2022, the AMWU on behalf of Mr Clarke, sent an email advising that Mr Clarke's surgery date had been indefinitely postponed.[24]

On 17 January 2022, Mr House wrote to the AMWU on behalf of Mr Clarke, proposing options (including financial assistance) to facilitate Mr Clarke securing a surgery date.[25] The AMWU sent an email response on 21 January 2022 advising that there appeared no options available that would secure a new surgery date for Mr Clarke.[26]

On 28 January 2022, Mr House responded to the AMWU’s email seeking confirmation of Mr Clarke's Covid-19 vaccination status, recognising that his surgery date could be set with minimal notice, and the Company wanted Mr Clarke to be in a position that would ensure his return to work with minimal delay once he was cleared to return.[27]

On 9 February 2022, the AMWU sent an email advising that Mr Clarke was not vaccinated for Covid-19.[28]

On 22 February 2022, Mr House and Ms Swinton held a Teams meeting with Mr Clarke and a union representative from the AMWU. The Respondent’s representatives explored options for Mr Clarke to return to work under alternate duties ahead of his surgery and requested a certificate of capacity to explore this option further. Mr Clarke advised that he remained unvaccinated and did not indicate an intention to become vaccinated. Ms Swinton also advised Mr Clarke that elective surgery was now available in South Australia and Mr Clarke committed to following this up and to advising the Respondent of his new surgery date. When requested by the AMWU official, Ms Swinton confirmed that where an employee who has an active income protection claim ceases their employment for any reason other than serious or wilful misconduct, they continue to receive income protection for the duration of their claim or benefit period. Following the meeting Ms Swinton sent Mr Clarke an email confirming what had been discussed and subsequently, at the request of Mr Clarke’s union representative, provided a copy of the income protection policy.[29]

During the 22 February meeting, Mr House reminded Mr Clarke of Babcock’s code of conduct and social media policies, which he had been counselled about previously in response to social media posts which in Mr House’s view had the potential to damage Babcock’s reputation and its relationship with the State Government client. Babcock was aware that Mr Clarke had been attending what it described as “anti-COVID vaccination demonstrations” in Canberra wearing company-issued uniform and had also been posting and sharing “political” material on social media. Mr Clarke responded and admitted that he had attended demonstrations in uniform but that the items of uniform worn did not include any Babcock logos.

On 4 March 2022, Mr Clarke advised Babcock that he had secured an alternate surgery date of 13 April 2022. He further advised that he did not see the benefit of providing a certificate of capacity as any alternate duties would require him to be vaccinated. He formally confirmed his intention not to receive any of the currently approved Covid-19 vaccines.[30]

On 9 March 2022, Mr House and Ms Swinton discussed Mr Clarke’s continued employment and decided that termination of employment was the appropriate recommendation to Babcock’s (Acting) Managing Director. The recommendation was based on their assessment that Mr Clarke did not intend to comply with the requirements of the Vaccination Direction, and therefore would not be able to return to work in his substantive role. The recommendation also took into account that during Mr Clarke’s extended absence from work, Babcock had incurred substantial costs in overtime payments to other Aircrew Officers in order to provide coverage for the roster, and it was anticipated that these costs and the additional risk of interruption to the provision of services would continue indefinitely if Mr Clarke remained employed and not replaced on a permanent basis with another Aircrew Officer. Babcock also considered whether alternative work arrangements in a role that was not subject to the requirements of the Vaccination Direction were feasible. However, they took the view that Mr Clarke’s inability to perform any role at the Adelaide airport base, and lack of experience or qualifications that would be necessary for a role that could be performed without requiring him to attend the worksite, meant that this was not an option.[31]

I add that the objective evidence before the Commission supports the basis of the conclusions considered in making the above recommendation. This includes the measures that were taken by Babcock to cover Mr Clarke’s absences.

Following approval, Babcock issued a “show cause” letter[32] to Mr Clarke which indicated that the Respondent was considering his dismissal. This was asserted on the basis that he had failed to comply with the Company's “reasonable and lawful instruction” to meet the requirements of the South Australian Emergency Management Covid-19 Direction; had failed to comply with the “reasonable and lawful” direction to provide evidence of his Covid-19 vaccination status and had failed to demonstrate that he would be ready, willing and able to perform his duties as an Aircrew Officer. Mr Clarke was given until 15 March 2022 to respond.

On 15 March 2022, Mr Clarke provided a comprehensive response.[33] The details of that response are reflected, and responded to, in the dismissal letter. This included a strong rejection of the safety, effectiveness and lawfulness of the Vaccination Direction, that there was no purpose in providing a certificate of capacity given his vaccination status, and confirmed his (un)vaccinated status.

On 17 March 2022, following approval, Mr House wrote to Mr Clarke formally terminating his employment effective immediately, due to Mr Clarke's “failure to demonstrate that you will be ready, willing and able to perform your duties as an Aircrew Officer” and continued non-compliance with its “lawful and reasonable direction and given that you have not provided any information to suggest that your position is going to change.” The full terms of the dismissal letter were set out earlier in this Decision.

Babcock treated the termination as not being a dismissal for serious misconduct to preserve his access to the income protection scheme and the associated payments.[34]

Following the intervention of the AMWU, Mr Clarke was also paid four weeks in lieu of notice. He continued to receive income protection “salary” payments until he was medically cleared for work on 24 May 2022.

On dismissal, Mr Clarke was also paid his accrued LSL and annual leave entitlements plus superannuation.

When cleared for the resumption of work, Mr Clarke would need to have a CASA medical clearance and undertake various accreditations to permit him to fly. This would have required him to attend the workplace and would in the circumstances have required Mr Clarke to have been in compliance with the Vaccination Direction.

4.3The basis of the dismissal

Although not featuring in submissions, it was put to the Respondent’s witnesses, in effect, that Mr Clarke’s absences were in themselves a reason for his dismissal. It was also put in final submissions that Mr Clarke was dismissed for political reasons, being his attendance at “political” rallies opposing mandatory vaccinations.

The evidence is consistent with the notion that Mr Clarke was dismissed because he was unwilling to comply with the vaccination instruction. That instruction required compliance with the Vaccination Direction as this was a requirement to perform work at the workplace. Although Mr Clarke was not at work at the time of his dismissal, Babcock considered that he was required to be ready to attend the workplace when he was cleared fit to resume.

The measures that Babcock was required to put in place to cover Mr Clarke’s absence were part of the reasons why the issue was brought to a head prior to the anticipated return to work. The objective evidence also supports this notion.

The contention that the dismissal was motivated, at least in part, by Mr Clarke’s attendance at anti-vaccination rallies, was not put to the Respondent’s witnesses in that form. There was evidence about their concerns about him doing so in a manner that may have implicated Babcock’s business; however, the evidence when considered as a whole does not support the Applicant’s contention on this point as a motive for the dismissal itself.

The validity and fairness of the reasons for dismissal will be considered by the Commission below based upon the objective evidence.

The Vaccination Direction and the vaccination instruction

The dismissal occurred in the context of the Vaccination Direction. The broader context is that in connection with the COVID-19 pandemic, the State Co-ordinator for South Australia issued the Vaccination Direction pursuant to s25 of the Emergency Management Act 2004 (SA) (EMA Act). The Direction prohibited persons from working in any “healthcare setting” (which term was defined and to which I will return) unless, by 1 November 2021, they had received at least one dose of an approved COVID-19 vaccine and had received or had evidence of a booking to receive a second dose within a month of the first, or had provided a medical certificate or letter evidencing a medical exemption from vaccination that was endorsed by the Chief Medical Officer. Section 28 of the EMA Act relevantly provides that a failure to comply with a direction under s.25 without reasonable excuse is an offence subject to significant monetary penalties or, in the case of a natural person, imprisonment.

Mr Clarke has, at least indirectly, put the applicability of the Direction to his employment and termination in contest in 2 respects. Firstly, he contends in effect that the relevant operations of Babcock did not fall within the scope of a health care setting as defined in the Vaccination Direction. This was at stages advanced as the need for Babcock to prove the validity and relevance of the direction. Secondly, he contends that it did not apply, so as to require his dismissal, because he was absent from work at the time and was going to be absent for a further period.

To the extent that the lawfulness of the Vaccination Direction was raised, that Direction has not been declared invalid by a court and the Commission is obliged to carry out its functions according to the law.[35] There was also no particular basis directly suggested in these proceedings for the Vaccination Direction being invalid other than, by inference, that such a declaration may be made at some point by a court.[36]

I now deal with scope issue. The Vaccination Direction applied to health care settings that were defined as follows:

Phase 1 healthcare setting means —
(a)a public hospital; or
(b)a private hospital; or
(c)an ambulance service (including an ambulance service for transporting patients);
Phase 2 healthcare setting means —
(a)primary community healthcare facilities;
(b)pharmacies;
(c)specialist outpatient facilities;
(d)private pathology centres;
(e)private radiology centres (including breast screening centre);
(f)defence health settings (including Garrison health centres, deployed and exercise health support and clinical health training);
(g)facilities for the collection, manufacture and distribution of blood and biological products;
(h)Aboriginal community controlled health services;
(i)any location where the Department for Health and Wellbeing, the Commission on Excellence and Innovation in Health and Wellbeing SA carries out any business or undertaking;

Phase 3 healthcare setting means any setting where the following services are provided by allied and scientific professionals in person to another person-
(a)chiropractic therapy;
(b)osteopathy;

The Vaccination Direction required or permitted:

5 — Vaccination requirements and compliance for healthcare workers

(1) A person must not engage in work or perform duties in a Phase 1 healthcare setting from l November 2021 or a Phase 2 healthcare setting from 8 November 2021 or a Phase 3 healthcare setting from 6 December 2021 unless –
(a) the person has received at least one dose of a Therapeutic Goods Administration TGA approved or recognised COVID-19 vaccine; and
(b) the person has received, or has evidence of a booking to receive, a second dose of a TGA approved or recognised COVID-19 vaccine within the interval after the first dose recommended by the ATAGI for that COVID-19 vaccine; and
(c) within the prescribed time, the person receives, or has evidence of a booking to receive, a third dose (booster) of a TGA approved COVID-19 vaccine.

Notes —
(1)This direction applies to all persons engaging in work or duties at a healthcare setting including clinicians, ambulance workers, allied health workers, cleaners, administrative and executive staff and students undertaking placement, regardless of whether they work in a patient or a non-patient area.
(2)This direction applies to all persons who attend a healthcare setting in the course of their work or duties, including if their attendance is incidental such as delivery drivers or suppliers. However note subclause (3)(c) below.
(3)The ATAGI clinical guidance on the dosage intervals of COVID-19 vaccines is available at vaccines/advice-for-providers/clinical-guidance.

(2)A person subject to the requirement in subclause (1) must provide the operator of the healthcare setting with proof of their vaccination status and evidence of the applicable prescribed time for receiving a booster dose upon request.

(3)Despite subclause (1), a person may engage in work or perform duties at a healthcare setting if‑‑
(a)the person has a medical certificate or letter from a legally qualified medical practitioner certifying that the person-
(i)has a medical exemption from receiving a TGA approved COVID-19 vaccine on either a permanent or temporary basis in accordance with the guidelines published from time to time by ATAGI; or
(ii)has a medical exemption on either a permanent or temporary basis from receiving the preferred vaccine as recommended by ATAGI for the person's age; or
(iii)has an appointment to be assessed by a medical specialist or has commenced an assessment with a medical specialist to determine whether they have a medical exemption from receiving a COVID-19 vaccine on either a permanent or temporary basis in accordance with the guidelines published from time to time by ATAGI; and
(iv)the certificate or letter specifies the nature of the exemption and the basis on which it applies; and
(v) the Chief Public Health Officer or her delegate has endorsed the exemption;
and
(vi)the person provides the operator of the healthcare setting with a copy of the endorsement provided under paragraph (v).

Notes—
The ATAGI expanded guidance on acute major medical conditions that warrant a temporary medical exemption relevant for COVJD-19 vaccines is available at: /atagi expanded-guidance-on-mteporary-medical-exemptions-for-covid-19-vaccinse.
The current version of the clinical guidance on use of COVID-19 vaccines is available at: vaccines/advice-for-providers/clinical-guidance.
The above conditions for a vaccination exemption prevail over the conditions for exemption specified in the Emergency Management (Residential Aged Care Facilities No 45)(COVID-19) Direction 2021, or any direction that replaces that direction, in the case of a person who is subject to a vaccination requirement under both directions.
(b) the person is responding to a non-medical emergency or urgent maintenance task; or

Example—
Responding to a lift breakdown or a fire.
(c) the person is engaging in work or performing duties at a healthcare setting on a single occasion or on an infrequent and irregular basis who has undertaken a COVID-19 Rapid Antigen Test on the day of attending the healthcare setting, or in the 24 hours prior to attending, and returns a negative result.

Example—
A delivery driver who incidentally delivers goods to a healthcare setting.

Note—
The operator of the healthcare setting can determine appropriate personal protective equipment to be worn under subclause (4), such as masks.

(4)An operator of a healthcare setting must ensure that any person engaging in work or duties at the healthcare setting under subclause (3)-
(a) complies with the COVID Safe Plan for the healthcare setting; and
(b) wears appropriate personal protective equipment.

I have earlier set out the nature of Babcock’s operations and Mr Clarke’s role.

There is no definition of ambulance service in the Vaccination Direction, and I consider that it should be given its ordinary and natural meaning. Babcock’s operations would fall within the scope of an ambulance service (including an ambulance service for transporting patients), being a Phase 1 healthcare setting. The operations involve, amongst other roles, a medical retrieval service conducted on behalf of the SA Ambulance Service. The Vaccination Direction applies to all persons engaging in work or duties at a healthcare setting including clinicians, ambulance workers, allied health workers, cleaners, administrative and executive staff and students undertaking placement, regardless of whether they work in a patient or a non-patient area.

This meant that the requirements of the Vaccination Direction applied as a matter of law, such that the relevant employees, including Mr Clarke, could not lawfully be permitted to work in that workplace without either providing proof of vaccination or an appropriate medical exemption. It did not require that Mr Clarke be dismissed, but it did mean that he could not perform his work at the workplace.[37]

I am also satisfied that compliance with the Vaccination Direction was expressly required by the SA Government as the client of Babcock.[38]

I will return shortly to the second basis contended by Mr Clarke. Before doing so, it is appropriate to consider the status of the Direction in the period after the dismissal as this is relevant to the assessment of the contentions that, respectively, the dismissal was premature, or alternatively, that this would not have made any difference given the impact of the Direction more generally.

On 24 May 2022, the South Australian Government enacted the Public Health (COVID-19) Amendment Act 2022 (SA) (Public Health Amendment Act) which meant that the emergency powers arrangements ceased, and some other Covid-19 arrangements applied.

From 22 March 2020 until 24 May 2022, a state of emergency had been declared by the Commissioner of Police, being the State Co-ordinator under the EMA Act. The State Co-ordinator issued Directions detailing COVID-19 restrictions and controls, including the Vaccination Direction.

The Public Health Amendment Act provides for the Directions in force under the EMA Act at the time of commencement to continue as if they were Directions under the Public Health Act 2011 (SA).[39]

As a result, the following directions remain in force:

Emergency Management (Consolidated Measures) (COVID-19) Direction 2022 (SA) (Consolidated Direction) from 23 May 2022;
Emergency Management (Healthcare Setting Workers Vaccination No.7 (COVID-19) Direction 2022 (SA) from 4 March 2022 – the Vaccination Direction in this matter;
Emergency Management (In-home and Community Aged Care and Disability Support Workers Vaccination No. 4) (COVID-19) Direction 2022 (SA) from 29 January 2022;
Emergency Management (Residential Aged Care Facilities No.49) Direction 2022 (SA) from 23 May 2022; and
- Emergency Management (Voting Arrangements No.2) (COVID-19) Direction 2022 (SA) from 23 May 2022.

The Consolidated Direction impacted on some exiting Directions but did not rescind the above.

Accordingly, the relevant Vaccination Direction applied after 24 May 2022, the date that Mr Clarke was fit to resume duties and continues to operate and apply to Babcock’s operations.

In Mt Arthur Coal,[40] the Full Bench ultimately found that the required consultation obligation of the relevant WHS Act had not been followed. This meant that the vaccination policy in that case was not the proper foundation for a lawful and reasonable direction in that case. In so finding, the Full Bench differentiated the circumstances from those where a “government” mandate was involved, as in this matter. The Full Bench also made the following observations about some of the other relevant factors in assessing whether a direction in the present context is reasonable:

“[258] Absent a public health order or an express term in a contract of employment or industrial instrument, the basis for an employee to be vaccinated as a condition of entry to work premises must derive from the implied contractual term that employees obey the lawful and reasonable directions of their employer.

[259] The reasonableness of a direction is a question of fact having regard to all the circumstances, which may include whether or not the employer has complied with any relevant consultation obligations; the nature of the particular employment; the established usages affecting the employment; the common practices that exist; and the general provisions of any instrument governing the relationship.

[260] We note that, absent a consideration of all the relevant circumstances it is not appropriate to make general statements about whether a direction of a particular character is a lawful and reasonable direction. That said; we think there is some utility in making some broad observations.

[261] If the object and purpose of such a direction is to protect the health and safety at work of employees and other persons frequenting the premises then such a direction is likely to be lawful. This is so because it falls within the scope of the employment and there is nothing illegal or unlawful about becoming vaccinated. But such a direction must also be reasonable.

[262] As Flick J observed in NSW Trains v Australian Rail, Tram and Bus Industry Union the determination of whether an employer direction is lawful and reasonable can only be made by reference to the subject matter and context; it cannot be made ‘in vacuo’. The assessment of reasonableness and proportionality is essentially one of fact and balance and needs to be assessed on a case-by-case basis. The assessment will include, but not be determined by, whether there is a logical and understandable basis for the direction.

[263] A direction lacking an evident or intelligible justification is not a reasonable direction but that is not the only basis upon which unreasonableness can be established. It is an objective assessment of the reasonableness of the direction, having regard to all of the circumstances.

[264] In any particular context there may be a range of directions open to an employer within the bounds of reasonableness. Further, to establish that a direction is reasonable it is not necessary to show that the direction in contention is the preferable or most appropriate course of action or in accordance with ‘best practice’ or in the best interest of the parties.”

These do not establish universal principles but are illustrative of the nature of considerations that might be applied in assessing whether a requirement to comply with a vaccination policy provided the basis for a lawful and reasonable direction.

In this case, the instruction was to comply with an externally opposed (government/Emergency Coordinator) direction that applied to the workplace. This was not an employer’s policy and the instruction was related to something (the Vaccination Direction) that Babcock and the employees had no choice about. That is, the Vaccination Direction required that the employees be vaccinated or have appropriate medical exemptions, in order to work in the relevant workplace.

As a result, I am satisfied that the requirement for employees to comply with the Vaccination Direction at Babcock provided the proper basis for a lawful and reasonable instruction for employees of the Respondent in its frontline Aviation Emergency Medical Service at the relevant time. The question remains whether such an instruction for Mr Clarke to comply was reasonable given his circumstances at the time; that is, Mr Clarke second challenge to the import of the Vaccination Direction and the associated vaccination instruction. The principles discussed in Mt Arthur Coal may be relevant in that context to the instruction and I will return to this aspect as part of my consideration of whether the dismissal itself was unfair.

Whether the dismissal was unfair (harsh, unjust or unreasonable) – s.387 of the FW Act

I need to consider whether the dismissal of Mr Clarke was unfair in light of the above findings.

Section 385 of the FW Act provides as follows:

“385 What is an unfair dismissal
(1) A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

There is no doubt that Mr Clarke was dismissed and items (c) and (d) are not relevant, Mr Clarke’s dismissal will be unfair if it is found to be harsh, unjust or unreasonable.

Section 387 of the FW Act provides as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”

It is clear that s.387 of the FW Act contemplates that an overall assessment as to the nature of the dismissal must be made by the Commission. In so doing, the FW Act sets out a number of considerations that must, where relevant, be weighed up in totality.

It is convenient therefore to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.

Section 387(a) – whether there was a valid reason for the dismissal related to Mr Clarke’s capacity or conduct (including its effect on the safety and welfare of other employees)

Valid in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly.[41]

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. 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).[42]

It is also clear from the authorities that the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts before the Commission. That is, it is not enough for an employer to rely upon its reasonable belief that the termination was for a valid reason.[43] The employer bears the evidentiary onus of proving that the conduct or incapacity on which it relies took place.[44]
I have earlier found that the requirement for frontline Aviation Emergency Medical Service employees to comply with the vaccination Direction at Babcock provided the proper basis for a lawful and reasonable direction for these employees at the relevant time. The question remains whether such an instruction for Mr Clarke to comply was reasonable given his circumstances at the time; that is, Mr Clarke’s second challenge to the import of the Vaccination Direction and the associated vaccination instruction. The second challenge is, in effect, that the Vaccination Direction did not require, even indirectly, that Ms Clarke be vaccinated as he was not at work and was not expected to be at work until some months after the dismissal.

The question of whether a dismissal may be premature in connection with an externally imposed Vaccination Direction was recently consider by a Full Bench of the Commission which found:

“[18] Mr Bacon’s contention that the provision of notice of the dismissal was premature because it preceded the Direction coming into effect is not indicative of any unfairness in his dismissal. Mr Bacon had, on 21 October 2021, told the Hospital in unequivocal terms that he did not intend to be vaccinated. The Hospital indicated that it needed to plan for its operations on and from 1 November 2021, and accordingly gave him notice of termination. The position might be different if the evidence suggested that there was some serious possibility that Mr Bacon might change his mind about vaccination or might be able to obtain proof of a medical exemption, but there was no such evidence. Accordingly, the provision of notice of termination at any date later than 28 October 2021 could not have altered the position which prevailed as a result of the Direction.”[45]

Although the health care direction is an instrument of the same nature as the Vaccination Direction and the approach outlined above is helpful, the facts of this matter are different and must be applied to determine whether in this case the dismissal of Mr Clarke was unfair.

In this case, at the time of the dismissal, Babcock knew or reasonably should have known:

·Mr Clarke had most recently been away from work due to his illness and surgery since June 2021 and that he would not be fully fit to resume work until some 6 weeks after the rescheduled surgery (late May 2022);

·Mr Clarke had, in effect, emphatically advised that he was not intending to be vaccinated and there was no indication that a medical exemption was being sought;

·The Vaccination Direction applied and whilst it would always be subject to review, change and potentially withdrawal, there was no indication at that point that it would be withdrawn; and

·In order for Mr Clarke to comply with the Vaccination Direction at the scheduled return to work date, he would need to have had at least one dose of a vaccination and have a booking for a second (in the absence of a medical exemption).[46]

I have also found that Mr Clarke had no intention of having a Covid-19 vaccination at that time or subsequently.

The evidence also supports the notion that it was objectively desirable that a lead time to attempt to secure a replacement employee was provided, particularly given the unique skills and experience associated with Mr Clarke’s role and the ongoing impact of filling his absence on a temporary basis. This meant that there were reasonable grounds to bring the vaccination issue to a head prior to the time that Mr Clarke was due to return to work. That is, the Vaccination Direction did not require compliance at the point of dismissal. However, it was reasonable for the vaccination instruction to be applied to Mr Clarke in advance of his anticipated return to work because to be ready to resume work, the Vaccination Direction required that he vaccinated (with at least one dose and a booking for a second) or have a medical exemption.

Accordingly, the immediate assessment is whether applying the instruction at the time of dismissal was lawful and reasonable given all of the circumstances including the anticipated timing of his capacity to return to work.

Mr Clarke has suggested that if he had remained employed, he may have contracted the Covid-19 virus, and this would have meant a temporary exemption from the vaccination requirements for a withholding period. Whilst that is true, the notion was very speculative and not a reasonable basis for Babcock to make staffing and recruitment decisions upon given the circumstances. I observe that Mr Clarke did not became infected in that period.

Mr Clarke also suggested that he could have accessed his LSL and that this would have extended the timing for the required compliance. This is also correct. However, although the notion of taking leave when fit to resume work was raised by him some months before the dismissal, Mr Clarke did not expressly seek to access his LSL in the lead up to the dismissal, including in response to the show cause process. I accept that Mr Clarke was not obliged to make an application for leave at that, and the prospect of employees taking some annual leave was raised earlier in a different immediate context by Babcock.[47] However, the absence of an application for leave at the relevant time by Mr Clarke means that the Respondent cannot not be criticised for not considering a non-existent application. Further, the application for leave may not have been granted, particularly given the reasonable requirements for Mr Clarke to return to perform his work when otherwise fit to do so.

I accept that given the terms of the Vaccination Direction, Mr Clarke could have delayed having a vaccination, in the sense of having one dose and a booking for a second, until just before he was due to return to work when fit, that is mid-May 20022. However, I have found that Mr Clarke had no intention to be vaccinated at that time and certainly no indication was given to Babcock at any time that this was even being considered.

Given the staffing issues facing Babcock and the clearly stated intention of Mr Clarke, I do not consider that the dismissal was premature. Indeed, all of the circumstances are such that the vaccination instruction was a lawful, objectively logical and reasonable requirement and non-compliance with that instruction represents a valid reason for dismissal at that point.

To the extent that Mr Clarke contends that he was not obliged to do anything whilst on personal leave, I do not accept that proposition. He remained employed and the nature of his medical conditions did not make contact with his employer problematic and Babcock was entitled to seek information about his medical status and fitness for work, including potentially in alternative duties. Babcock was also entitled to seek confirmation of Mr Clarke’s vaccination status and intentions and for him to take reasonable steps to be ready to resume work when certified fit. I also do not consider that Mr Clarke was dismissed because he was absent from work or due to his medical conditions.

Having objectively considered all of the relevant circumstances related to Mr Clarke’s capacity and conduct based upon the findings of the Commission, I am on balance persuaded that a valid reason for dismissal existed at that time of the dismissal. However, I will also return to the notion that the dismissal was premature in making the overall assessment of the matter.

Section 387(b) – whether Mr Clarke was notified of the reasons for dismissal

This consideration requires the Commission to assess whether the applicant concerned was relevantly notified of the reasons leading to the dismissal before that decision was taken.[48]

Mr Clarke was notified of the reasons for his dismissal prior to that decision being made.

Section 387(c) – whether Mr Clarke was given an opportunity to respond to any reason related to his capacity or conduct

The process contemplated by the FW Act does not require any formality and is to be applied in a common sense way to ensure the employee has been treated fairly. This question becomes whether Mr Clarke was aware of the precise nature of the employer’s concern about his capacity and had a reasonable opportunity to respond to these concerns.[49]

Given my earlier findings about the events surrounding the dismissal I am satisfied that a reasonable opportunity was provided to Mr Clarke as contemplated by this consideration.

Section 387(d) – any unreasonable refusal by the respondent to allow Mr Clarke a support person

During the meetings related to the dismissal, Mr Clarke was accompanied by an official of the AMWU. There was no refusal.

Section 387(e) – if the dismissal is related to unsatisfactory performance by Mr Clarke – whether he has been warned about that unsatisfactory performance before the dismissal.

This consideration relates to performance of the job. Performance in this context includes the employee’s capacity to do the work, and the diligence and care taken with that work.[50]

The dismissal was not related to Mr Clarke’s work performance and this consideration does not arise.

Section 387(f) – the degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.

Section 387(g) – the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal.

I deal with these two considerations together.

Babcock is a relatively large business and has internal human resources expertise. I do not consider that there was any procedural unfairness, and these considerations are not relevant.

Section 387(h) - other matters considered to be relevant

Amongst other considerations, the Commission should consider the impact of the dismissal upon the applicant given all of the circumstances. This dismissal meant that Mr Clarke lost his very long-standing employment with the normal consequences of that event. I also accept that Mr Clarke’s role had specialist skills and that positions of that kind are not readily available. I have earlier made findings about Mr Clarke’s cochlear implant. All of these factors are relevant, and I have taken them into account when making an overall assessment of the fairness of the dismissal.

In submissions, Mr Clarke contended that the dismissal meant that he lost access to a General Protections application due to the absence of notice. Although not clearly articulated, I apprehend that this was a reference to the capacity to lodge a s.372 General Protections application not involving a dismissal, prior to that event. This did not feature in his evidence and was not put to the Respondent’s witnesses. No basis to suggest that this formed part of the motive for the dismissal has been made out. Further, although any dismissal without actual notice would have the claimed impact, Mr Clarke retained his capacity to lodge a s.365 General Protections application and I cannot discern any basis as to why this would mean that the dismissal was not for a valid reason or that this consequence demonstrates unfairness. Finally, and in any event, Mr Clarke was subject to a show cause process, and this could have provided a basis for a s.372 General Protections application at the point if sought.

To the extent that the contention about access to the General Protections was intended to be a reference to the loss of the ability to access Mr Clarke’s LSL, I have dealt with this aspect above.

In the normal course, if Mr Clarke’s dismissal had been treated by Babcock as serious misconduct this would have meant that he lost his income protection coverage between the time of the dismissal (mid-March 2022) and the time that he was otherwise fit to resume his work (late May 2022). Bearing in mind that Mr Clarke was at the time of his dismissal on unpaid personal leave and was not vaccinated, his only source of employment related income with Babcock was the income protection insurance. The evidence supports the notion that a dismissal of that kind was considered by Babcock and would have prevented Mr Clarke’s continuing access to the income protection insurance payments. Further, Babcock expressly framed the dismissal to avoid that outcome. That is, despite its views that non-compliance with the vaccination instruction was serious misconduct, it ultimately chose not to treat the dismissal on that basis because of the impact upon Mr Clarke. I observe that even if a dismissal on the serious misconduct basis may have been considered to support a contention of harshness, this did not happen, and the continuation of the income protection payments continued as a matter of objective fact.

As stated earlier, Babcock did not initially provide the full statutory notice payment, and only did so after the intervention of the AMWU on Mr Clarke’s behalf. This also does not impact on the above finding.

The Vaccination Direction continued in force after the dismissal and remained in force at the time that Mr Clarke was medically fit to resume employment as an Aircrew Officer. It remains in force, and this effectively prevented Mr Clarke from working at Babcock at all times after his dismissal and continues to have that affect.

To the extent that the vaccination instruction was enforced earlier than may have been absolutely required, Babcock’s action ensured that Mr Clarke received ongoing payments right up to the time of that he was fit to return. At that point, Mr Clarke was not vaccinated, and I have found that he had no intention to do so. Accordingly, even if not dismissed in February 2022, he would not have been able to attend work in May and the dismissal would have become probable at that time. In effect, Mr Clarke did not suffer a loss of income because of the timing of the dismissal given all of the circumstances including the income protection payments, the continuing operation of the Vaccine Direction and my findings about the Applicant’s unwillingness to be vaccinated. I have also earlier dealt with the other aspects associated with the Applicant’s contention that the dismissal was unfair on the basis that it was premature.

As a result, even if, despite my earlier findings, the dismissal was considered to be premature at that particular time, in light of the above, the full consequence of that timing and the events that unfolded as a consequence would indicate that the dismissal was not unfair.

Conclusion on nature of dismissal

The FW Act requires a global assessment having regard to the various relevant statutory considerations. In that context, procedural unfairness is an important consideration given the provisions of the FW Act but does not necessarily mean that the dismissal was unfair. This is reinforced by the objects relating to Part 3-2 Unfair Dismissal of the FW Act in s.381 which relevantly provides as follows:

“381 Object of the Part

… …

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”

My findings, in the context of the statutory considerations and the overall circumstances of this matter, indicate that a fair go all around has been afforded to Mr Clarke.

Given the facts of the matter and the statutory considerations, I am not satisfied that the dismissal of Mr Clarke was harsh, unjust or unreasonable. Accordingly, it was not unfair within the meaning of the FW Act.

Conclusions and order

As a result of the above findings, the application must be dismissed and an Order[51] to the end is being issued in conjunction with this Decision.

COMMISSIONER

Appearances:

R Timms on behalf of Mr Clarke, the Applicant.

A Short of Minter Ellison, with permission on behalf of Babcock Mission Critical Services Australasia Pty Ltd, the Respondent.

Hearing details:

2022
July 12, 22
Video Hearing.

[1] Section 399(1) of the FW Act.

[2] Section 394(2) of the FW Act.

[3] Section 386 of the FW Act.

[4] Section 382 of the FW Act. Mr Clarke has served the minimum employment period and was not paid above the high income threshold.

[5] Mr Clarke accepted in final submissions that it was not the Commission’s role to determine the lawfulness of the Vaccination Direction – transcript PN1173.

[6] Final submission – transcript PN1083.

[7] Written submissions 9 June 2022.

[8] Exhibit A1.

[9] Exhibit R1.

[10] Exhibit R5.

[11] Under s.596 of the Act for reasons provided separately. This was not opposed by the Applicant.

[12] The Heran Building Group Pty Ltd v Eduard Anneveldt[2013] FWCFB 4744.

[13] [13] See Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 per Ross VP, Williams SDP, Hingley C, 17 March 2000; Edwards v Giudice (1999) 94 FCR 561; Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, Acton SDP and Cribb C, 11 May 2000 and Rode v Burwood Mitsubishi AIRCFB Print R4471 per Ross VP, Polites SDP, Foggo C, 11 May 1999.

[14] TH1 and TH2 attached to exhibit R3.

[15] Babcock Mission Critical Services Australasia Aircrew Enterprise Agreement 2016.

[16] JS1 attached to exhibit R1.

[17] JS3 attached to exhibit R1.

[18] Ibid.

[19] JS4 attached to exhibit R1.

[20] JS5 attached to exhibit R1.

[21] JS6 attached to exhibit R1.

[22] JS7 attached to exhibit R1.

[23] JS8 attached to exhibit R1.

[24] JS9 attached to exhibit R1.

[25] JS10 attached to exhibit R1.

[26] JS11 attached to exhibit R1.

[27] Ibid.

[28] JS12 attached to exhibit R1.

[29] JS13 attached to exhibit R1.

[30] JS14 attached to exhibit R1.

[31] Exhibit R3.

[32] JS14 attached to exhibit R1.

[33] JS15 attached to exhibit R1.

[34] Evidence of Ms Swinton at transcript PN857.

[35] Roy-Chowdhury v Ivanhoe Girls’ Grammar School[2022] FWCFB 101 at [16].

[36] See also the general discussion of the role of the Commission in this respect in Roman v Mercy Hospitals Victoria Ltd[2022] FWCFB 112.

[37] See Bacon v Glenelg Community Hospital Incorporated[2022] FWCFB 125 at [19].

[38] Exhibit R3.

[39] Public Health Amendment Act Schedule 2 clause 2.

[40]Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal[2021] FWCFB 6059.

[41] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, (2004) 133 IR 458 per Ross VP, Williams SDP, Foggo C and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C at par [36].

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

[43] See Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 per Ross VP, Williams SDP, Hingley C, 17 March 2000; Edwards v Giudice (1999) 94 FCR 561; Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, Acton SDP and Cribb C, 11 May 2000 and Rode v Burwood Mitsubishi AIRCFB Print R4471 per Ross VP, Polites SDP, Foggo C, 11 May 1999.

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

[45] Bacon v Glenelg Community Hospital Incorporated [2022] FWCFB 125.

[46] Clause 5 of the Vaccination Direction.

[47] Courtbook at pg 57.

[48] See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.

[49] RMIT v Asher (2010) 194 IR 1. See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].

[50] See Anetta v Ansett Australia Ltd (2000) 98 IR 233.

[51] PR744660

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