Despina Kaltourimidis v Charles Darwin University - [2023] FWC 3215

[2023] FWC 3215

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Despina Kaltourimidis
v

Charles Darwin University

(U2022/4446)

VICE PRESIDENT ASBURY

BRISBANE, 4 DECEMBER 2023

Application for an unfair dismissal remedy – Applicant dismissed for failure to comply with the Northern Territory Chief Health Officer Directions – Dismissal not unfair – Application dismissed.

Overview

Ms Despina Kaltourimidis (the Applicant) applies to the Fair Work Commission (the Commission) under s. 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in respect of the termination of her employment by Charles Darwin University (the Respondent/CDU). The Applicant was employed by the Respondent as a Management Accountant from 3 June 2019 until her dismissal which took effect on 25 March 2022. The present application was made on 15 April 2022. The terms and conditions of the Applicant’s employment were governed by the Charles Darwin University and Union Enterprise Agreement 2018 (the CDU Agreement).

The Applicant was dismissed for serious misconduct on the grounds that she failed to follow a lawful and reasonable direction issued by the Vice Chancellor (VC) and President of CDU, Professor Scott Bowman (the VC Direction) requiring the Applicant’s compliance with the Directions of the Chief Health Officer (CHO) of the Northern Territory (NT) with respect to being vaccinated against COVID-19 and providing proof of vaccination or a medical contraindication (the CHO Direction).

In her Form F2 Application and submissions in the hearing, the Applicant contends that her dismissal was unfair on various grounds relating to substantive and procedural fairness and whether the Directions issued by the CHO and the VC were lawful and reasonable. For convenience I categorise the grounds raised by the Applicant as reasonably arguable and unarguable. The arguable grounds are related to the Applicant’s contentions that she did not engage in “serious misconduct” within the meaning in clause 56 of the CDU Agreement; the Independent Reviewer appointed in accordance with the CDU Agreement for the Applicant’s case was neither “independent” nor validly appointed; the process for dealing with the allegations stipulated in the CDU Agreement was not followed; the Report of the Independent Reviewer which was relied on in the dismissal of the Applicant contained factual errors; the Applicant’s position was not accommodated by reasonable adjustments such as the Applicant being permitted to work in an empty building on campus or to work remotely; whether the refusal to allow the Applicant to work remotely was inconsistent with the treatment of other employees who work remotely; failure by CDU to respond to or properly engage with a reasonable request for exemption made by the Applicant; it was unfair to dismiss the Applicant while she was stood down and required to use her annual leave; the Applicant was not given an opportunity to defend herself against the allegations that her conduct was a breach of a lawful and reasonable direction due to a miscommunication about the meeting to discuss her position which the Applicant alleges involved the Independent Reviewer lying about contacting the Applicant.

The Applicant also contends that CDU failed to consult employees in relation to the implementation of the VC Direction as required by the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) and this rendered the direction unreasonable and her dismissal unfair, consistent with the findings in CFMMEU v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal (Mt Arthur Coal).[1] Further, the Applicant contends that the temporary nature of the CHO Directions was not considered and that those Directions were revoked only 17 working days after her dismissal and while recruitment for a replacement was underway, raising a further question of whether her circumstances could have been reasonably accommodated pending the revocation. These contentions are also reasonably arguable.

The unarguable grounds related to the CHO Directions involve assertions that as Territorial law the CHO Directions could not apply to the Applicant because of the effect of s. 109 of the Australian Constitution (Constitution) in relation to inconsistency with the FW Act which exclusively governs her employment relationship with CDU; the Applicant’s employment contract, position profile and the CDU Agreement do not stipulate that she reports to the Vice Chancellor or that she can be required to have a medical procedure or provide her medical information to CDU; the CHO did not have power to direct NT citizens to provide confirmation of their vaccination status or medical contraindication to vaccination to their employer on the basis of the Australian Immunisation Register Act 2015 (Cth); the CHO Directions only required evidence of being vaccinated with an “approved” COVID-19 vaccine and no COVID-19 vaccine had been approved by the Therapeutic Goods Administration for use in Australia, because they have only been “provisionally approved”; and a decision of the High Court of New Zealand that such directions are unreasonable is binding on the Commission as presently constituted.

In relation to the VC Direction, the unarguable grounds advanced by the Applicant were that it was inconsistent with the Applicant’s employment contract and the CDU Agreement which do not expressly provide that she can be required to undergo a medical procedure; the Applicant’s office based role did not come within any category of workers as defined by the CHO Directions and she was not required to work with any vulnerable person and that the relevant definition in the CHO Directions changed before her dismissal took effect; the CDU acted in a discriminatory and biased manner contrary to Art. 26 of the International Covenant on Civil and Political Rights, as set out in Sch 2 of the Australia Human Rights Commission Act 1986 (Cth) by approving some staff to work remotely on a permanent basis and allowing unvaccinated contractors and students to come onto campus while refusing to allow the Applicant to work from home; the VC Direction was unlawful by virtue of s. 23 of Australian Immunisation Register Act 2015 (Cth) and s. 16B of the Privacy Act 1988 (Cth) and was invalid on the grounds of inconsistency by virtue of s. 109 of the Constitution and the prohibition in s. 51(xxiiiA) on “Australian government” enforcing “a medical service onto the people of Australia”; CDU did not respond to the Applicant’s request for a “Safe Work Method Statement” in relation to the safety of COVID-19 vaccination and thereby failed to comply with its duty under the Work Health and Safety (National Uniform Legislation) Act 2011 (NT); the correspondence issued by the VC in relation to being vaccinated was a threat, coercion and torture in breach of the Criminal Code Act 1995 (Cth). The Applicant also contended that Professor Bowman was “clearly anti-religious”, and she had been unlawfully dismissed because of her religious convictions in relation to not being vaccinated against COVID-19.

Section 396 of the FW Act provides that the Commission must be satisfied of certain initial matters before the merits of the application can be considered. There is no dispute between the parties, and I am satisfied on the evidence that: (1) the application was made within the period required in s. 394(2) of the FW Act; (2) the Applicant is a person protected from unfair dismissal; (3) the Respondent was not a small business employer at the relevant time; and (4) the dismissal was not on the grounds of redundancy and was therefore not a case of genuine redundancy.

Procedural history

Before turning to consider the merits of this matter it is necessary to outline its procedural history. The matter was initially allocated to another Member of the Commission and was reallocated to me. Following a case management hearing held on 3 August 2022, Directions were issued for the filing and service of outlines of submissions and witness statements that the parties intended to rely upon at a hearing. Permission was granted on 2 December 2022 for both parties to provide additional material to address matters relating to the CHO Directions and how they applied to the Respondent’s workplace, as well as matters in s. 392 of the FW Act with respect to compensation.

On 14 September 2022, the Applicant filed an outline of submissions and a witness statement[2] as directed. The Applicant filed submissions in reply to the Respondent’s material on 2 November 2022 and further submissions in reply on 27 January 2023. In addition to her witness statement the Applicant also tendered into evidence aspects of her submissions in reply[3] and further submissions in reply,[4] including some email correspondence appended to her submissions. The Applicant gave oral evidence at a hearing on 30 January 2023 and was cross-examined.

The Respondent filed an outline of submissions on 26 October 2022. Statements of evidence in support of its case were made by:

Professor Scott Bowman, Vice Chancellor and President;[5]
Ms. Dharshica Ganesan, Senior Manager, Financial Planning;[6] and
Professor Hilary Winchester, Vice President Governance and University Secretary.[7]

On 2 December 2022, I caused my Associate to forward correspondence to the parties providing a link to the Commission’s database of cases concerning vaccination. I took this step to facilitate the efficient conduct of the hearing by ensuring that it focused on relevant matters. A hearing was conducted by Microsoft Teams on 30 January 2023. At the hearing, the Applicant was self-represented, and the Respondent was represented by Mr L. Carr, Director of Legal Services of the Australia Higher Education Industrial Association – an employer organisation of which the Respondent is a member. Permission for Mr Carr to represent the Respondent was not required.

Professor Bowman gave evidence at the hearing on 30 January 2023 and was cross-examined. The hearing did not conclude on that date and a second day of hearing was programmed on 28 April 2023. The Applicant did not attend the second day and as outlined below the hearing continued in her absence, and the evidence of Ms Ganesan and Professor Winchester was received.

At the outset of the hearing on 30 January 2023, I sought an indication from the Applicant as to whether she intended to press arguments raised in her written submissions, which I have summarised above as unarguable, and canvassed with the Applicant decisions of the Commission and Courts I was bound to follow and which were contrary to the position she was advancing. The Applicant stated that she continued to press those arguments and further asserted that the High Court of New Zealand in Yardley v Minister for Workplace Relations and Safety[8] held that “the [vaccination] mandates are unlawful”[9] and that I was bound by that decision via an Agreement between Australia and New Zealand with respect to the Trans‑Tasman Court Proceedings and Regulatory Enforcement regime. I indicated to the Applicant I was not bound by the decision cited. The Applicant responded by asserting that I “dismissed High Court cases” out of hand and that she maintained her position with respect to the relevance of the case.[10]

I indicated that given the Applicant’s intention to press those arguments, as they were outlined in her written material, it would be a better use of time allocated for the hearing for her to focus on issues, such as whether the directions were lawful and reasonable, and whether the CHO Directions did or did not apply to her role. I further stated that my intention in raising those points was to ensure that the Applicant made the best use of time at the hearing, but that ultimately it would be a matter for her as to how she conducted her case.

The hearing did not conclude on 30 January 2023. Only the Applicant and Professor Bowman completed their evidence on that date and the remaining witnesses for the Respondent were yet to be called. Further hearing dates were then canvassed with the parties, and it was confirmed that the hearing would resume at 10:00 am AEST on 13 March 2023. Notably the Applicant said that she had no problem with that date and did not indicate any issue with the hearing (albeit the Applicant was argumentative during the hearing and contested various rulings I made). Subsequently the hearing dates were moved as a result of unavailability of a witness for the Respondent and on 22 February 2023, a notice of listing for a hearing on 14 and 15 March 2023 was issued to the parties. The Applicant was requested to provide her views in relation to the changed dates and did not do so within the requested timeframe.

On 31 January 2023, Mr Carr informed the Commission that a short time after Professor Bowman completed his evidence on the previous day (which was given from a separate room), Professor Bowman sent a text message to Professor Winchester stating, “Just got out!”. Mr Carr explained:

“After sending the text message, Professor Bowman then returned to the room where we were seated (from which we appeared via videolink) and informed those in the room that he had sent the text. I immediately reminded Professor Bowman that he was not to discuss the matter with other witnesses and informed him I would need to make the Commission aware of the text message. Professor Bowman was surprised, replying with words to the effect, ‘I didn’t discuss the matter, I just said I had just finished’ and proceeded to show me the text message on the screen of his phone. I again reiterated to Professor Bowman that he was not to have contact with another witness about the matter, no matter how minor that contact may seem.”

In response to this information, Mr Carr said he sent separate emails to Professor Bowman and Professor Winchester reminding them of their obligations as witnesses in the proceedings. Those email reminders were appended to Mr Carr’s email which are in similar terms, as follows:

“I am writing to remind you that, as a witness in the matter of Kaltourimidis v CDU, currently before the Fair Work Commission as matter numbered U2022/4446, that you must not speak with any other witness about the case, for any reason, and in any capacity. It does not matter how innocuous that communication may seem.
I understand that on 30 January 2023, at about 6pm, you sent a text message to Professor Winchester that read “Just got out!” or words to similar effect, being in reference to your having given evidence in the Fair Work Commission. I understand you did not provide any further details.
As a legal professional, I have certain obligations and duties. In circumstances such as these, I am obliged to notify the Commission and the Applicant, Ms Kaltourimidis, of the text message. This is the case even though the message is innocuous and arguably of little significance. I will therefore send an email to the Deputy President’s Chambers, and to Ms Kaltourimidis, today.
Please do not have any communication about this matter with any witness. If you find yourself in a situation where the topic is raised, simply say something like ‘as I am a witness in that matter, I am not able to discuss that with you at the moment’ and then either move on to a different topic or remove yourself from the situation.”

The Applicant did not respond to this correspondence. On 14 March 2023 – the date on which the second day of the hearing was scheduled to resume at 10.00 am AEST – the Applicant sent an email to my Chambers at 8:19 am AEST stating “I will be unable to attend the hearing today or tomorrow due to being unwell. I will be in touch regarding my availability in the future.” At 8:58 am AEST, Mr Carr corresponded with my Chambers stating that “[t]he Respondent will still appear at the listing time of 10am Brisbane time.” At 9:51 am AEST, the Applicant sent another email to my Chambers, without copying the Respondent stating: “Please find attached my doctor's certificate for my non-attendance.” A medical certificate dated 13 March 2023 was attached to the email which said:

“Despina Kaltourimidis has been unwell with a medical illness and will be unfit to attend any event which could exacerbate this medical illness, in particular, stressful situations.”

At 10:16 am AEST on 14 March 2023, I caused correspondence to be sent to both parties explaining that a medical certificate had been received from the Applicant for the purpose of requesting an adjournment. However, I indicated that I did not accept the medical certificate on the basis that it did not indicate that the Applicant’s illness prevented her from participating in a hearing before the Commission on 14 March 2023 or the following day on 15 March 2023. Nor did the certificate state the expected duration of the Applicant’s illness. I was also concerned that the certificate was dated 13 March 2023 and was received on 14 March, approximately 1 hour and 40 minutes before the start of a hearing which had been scheduled since 22 February 2023. In this regard, I directed the Applicant to do the following by close of business on 14 March 2023:

“As a matter of urgency, you are directed by the Deputy President to provide a medical certificate stating that you are unable to participate in a hearing before the Fair Work Commission on 14 March 2023 and/or 15 March 2023. The medical certificate must also include the expected duration of your illness and indicate when you will be medically fit to participate in a hearing before the Fair Work Commission.
In addition, you are also directed by the Deputy President to provide a statement explaining why you have only provided the medical certificate to Chambers 9 minutes before the commencement of the hearing on 14 March 2023, when the medical certificate is dated 13 March 2023.”

In addition to the directions, I also sought the Applicant’s view with respect to providing her medical certificate to the Respondent on the basis that if the medical certificate was relied upon in seeking an adjournment, the Commission would be required to hear from the Respondent and the medical certificate would need to be provided to the Respondent for that purpose. No response in this respect was received from the Applicant.

A short hearing was conducted on 14 March 2023 at the request of the Respondent. The Applicant did not join the hearing. Mr Carr submitted for the Respondent that the late notice of the Applicant’s non-attendance resulted in inconvenience to the Respondent on the basis that costs had been incurred to enable Mr Carr to travel from Melbourne to Darwin and witnesses had made themselves available for the hearing. Mr Carr acknowledged that the hearing was listed to be conducted virtually by Microsoft Teams and it was only the Respondent’s preference that he attended the hearing at CDU in Darwin. However, Mr Carr submitted that the time which he and the witnesses had set aside for the purpose of the hearing on 14 and 15 March, was now wasted. Mr Carr queried whether any order would be made by Commission for costs thrown away. I indicated that I was not prepared to consider an oral application for costs at that stage as the Applicant should have a reasonable opportunity to provide explanations for the matters outlined in my directions.

No response or statement was received from the Applicant by close of business on 14 March 2023. At 5:12 pm AEST on 14 March, I caused a further email to be sent to the Applicant noting her non-compliance with my earlier directions. I issued a further direction that the Applicant provide a statement “(a) setting out [her] explanations for failing to comply with the directions and (b) advising when [she] will be able to provide the information as required by the directions”. This statement was directed to be provided by 10:00 am AEST on Wednesday, 15 March 2023. At 8:39 am AEST on 15 March 2023, the Applicant sent the following email to my Chambers:

“Asbury,
All future correspondence between myself and the FWC at this point in time will be with the President of the FWC. I'm sure the President will be in touch with you as required regarding my case once I send him some correspondence.
In the meantime, you can adjourn my case until further notice.
Despina”

In response to the Applicant’s email, I caused a reply to be sent to the Applicant and the Respondent noting that the hearing dates of 14 and 15 March had been listed since 22 February 2023, the Respondent’s representative had travelled to Darwin for the hearing and its remaining witnesses had made themselves available for cross-examination. The Applicant was informed that any correspondence with the President of the Fair Work Commission was a matter for her, my directions remained in effect, and she was required to provide the following information:
“1. A medical certificate stating that you are unable, for medical reasons, to attend a hearing of the Fair Work Commission scheduled for 14 and 15 March 2023 and the estimated duration of your medical condition, including the date it commenced.
2. Your reasons for failing to comply with Directions issued to you on 14 March 2023 in relation to the provision of this information.”

On 15 March 2023, the Respondent made an application seeking that the unfair dismissal application made by the Applicant be dismissed pursuant to s. 399A and s. 587 of the FW Act and an application for costs, pursuant to s. 400A and s. 611 of the FW Act. An amount of $2,500.00 was sought for the cost of flights, accommodation and other expenses incurred by the Respondent in having its representative attend the hearing in Darwin. The amount was subsequently revised and reduced to $1,960.00. Those application were served on the Applicant. By email sent from my Chambers on 15 March, the parties were advised of my view that the Applicant should be afforded a reasonable opportunity to comply with the directions, given that they were only issued on 14 and 15 March and on that basis, I considered the applications made by the Respondent to be premature at that time. I indicated that should a reasonable period elapse and the Applicant remained non-compliant, the Respondent may request that those applications be revisited.

On 3 April 2023, my Chambers informed the parties by email that the Applicant’s unfair dismissal application was part heard on 30 January and my intention was to relist the matter for the purposes of completing the hearing. It was further noted that the Respondent’s application for costs and the application for dismissal would, if pressed, also be dealt with at the hearing. After correspondence with the parties about possible hearing dates, which the Applicant did not respond to, the matter was listed for further hearing on 27 and 28 April 2023. On 14 April 2023, my Chambers corresponded with the parties stating that the Applicant had not advised of her availability and that the hearing would resume at 10.00 am AEST on 28 April 2023. The Applicant was provided with a copy of the Respondent’s application for costs and to dismiss her application[11] and was informed that these would be dealt with at the hearing if pressed by the Respondent. The Applicant was also informed that if an adjournment was not granted and she failed to attend the hearing, the evidence of the Respondent’s witness may be accepted unopposed and the matter decided in her absence, against her interests.

At 3:38 pm AEST on 27 April 2023, the Applicant sent email correspondence to my Chambers, attaching an affidavit affirmed on 27 April 2023 in support of a request that I disqualify myself from further dealing with her application. I consider that application below. At 4:42 pm AEST on 27 April 2023, I caused correspondence to be sent to the parties stating that the hearing listed for 28 April 2023 would proceed as listed, the recusal application would be dealt with at that hearing and should the Applicant not attend the hearing the recusal application would be determined based on the material filed. The parties were also advised that if the Respondent’s applications to dismiss the Applicant’s unfair dismissal application and costs were pressed, those matters would be dealt with at the hearing on 28 April. Further, the parties were advised that I may also decide to deal with the evidence of the remaining witnesses and that if the Applicant was not present to cross-examine those witnesses their evidence may be admitted without contradiction and the matter may be determined contrary to her interests.

On 28 April 2023, the Applicant did not join the hearing through the Microsoft Teams link provided in the notice of listing. Attempts were made to contact the Applicant on her mobile telephone number, but the calls were unanswered. At 10:37 am AEST on 28 April 2023, correspondence was sent to the Applicant by email informing her that the hearing would proceed in accordance with previous advice and the outcome would be advised in due course.

At the hearing on 28 April 2023, the Respondent initially sought to press its application to dismiss the Applicant’s unfair dismissal application. I expressed a provisional view that a substantial part of the application had already been heard and given that the witnesses for the Respondent were in attendance to affirm their witness statements which would be admitted into evidence uncontested, there was no reason why the matter could not proceed to a conclusion. While I accepted that the Respondent was entitled to seek that the matter be dismissed on the basis of the Applicant’s failure to comply with directions or failure to attend a hearing, I was also of the view that once the evidence was complete, the fact that the Applicant chose not to exercise her right to appear before the Commission or to make submissions in support of her position would not prevent the matter being determined and dismissing the Applicant’s case may not be justified. Having regard to my provisional view, the Respondent did not press its application to have the matter dismissed and the hearing proceeded. The Respondent also stated that it would reserve its position in relation to seeking costs until after the substantive matter had been determined.

Recusal application

Applicant’s submissions

In her email sent at 3:38 pm AEST on 27 April 2023, the Applicant said (salutations omitted):

“I ask that you recuse yourself from my unfair dismissal case currently before the Fair Work Commission, namely U2022/4446 - Kaltourimidis v Charles Darwin University, as per the attached affidavit.
I am unwell and will not be attending any hearings you will be presiding over whilst I seek treatment for the abuse you have inflicted on me during the time you have presided over my case with the Fair Work Commission.”

The attached affidavit of 22 pages made a range of accusations about my conduct prior to and during the hearing, which was variously described by the Applicant as bullying, gaslighting, bias, attempting to show dominance, unprofessional, abusive, sighing in annoyance, making accusations of time wasting and telling the Applicant to move on from particular lines of questioning. The Applicant also complained about inconsistent treatment in relation to her arguments and objections compared to those of the Respondent and that her arguments were dismissed without consideration. Further the Applicant reiterated at length her submissions in relation to matters that I have identified earlier as unarguable. Given the Applicant’s complaints about my conduct of the proceeding, I have dealt with the Applicant’s bias allegation on the basis that it asserts actual as well as apprehended bias.

Approach to determining recusal applications on the grounds of alleged bias

The Commission is not a court and is not bound by the rules of evidence and can inform itself in any way that it sees fit. The Commission also has broad powers to control its proceedings. The Commission is bound to deal with matters before it in accordance with equity, good conscience and the substantial merits of the case. The Objects of Part 3-2 of the Act state that the procedures and remedies relating to unfair dismissal are intended to ensure that a “fair go all round” is accorded to both the employer and the employee concerned. The Commission is also bound to afford parties natural justice.

The rule against bias has been called one of the twin pillars of natural justice.[12] The other pillar – the hearing rule – requires that: “a decision maker, at least one exercising a public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made”.[13]

In relation to the rule against bias, as the High Court of Australia put it in Ebner v the Offical Trustee[14] (Ebner) “…bias whether actual or apparent, connotes the absence of impartiality.”[15] A claim of actual bias requires proof that the decision maker approached the issues with a closed mind or had prejudged the matter and for reasons of either partiality in favour of a party or some form of prejudice affecting the decision, could not be swayed by the evidence in the case at hand.[16] Actual bias is assessed by reference to conclusions that might reasonably be drawn from evidence about the actual views and behaviour of the decision maker and requires clear and direct evidence that the decision maker was in fact biased. It has been pointed out that in the absence of an admission of guilt or a clear and public statement of bias from the decision maker, actual bias will be difficult to establish.[17] The test is whether a fair minded lay observer might reasonably apprehend that a judge or tribunal member might not bring an impartial mind to the resolution of the question the judge is required to decide.[18]

Citing Ebner, a Full Bench of the Commission summarised the principles in relation to apprehended bias in Woodside Energy Ltd v The Australian Workers’ Union,[19] as follows:

“The applicable principles concerning apprehended bias are as stated in the High Court decision in Ebner v Official Trustee in Bankruptcy.[20] In summary, a judge or tribunal member is disqualified if a fair-minded lay observer might reasonably apprehend that they might not bring an impartial mind to the resolution of the question they are required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.[21] The application of the apprehension of bias principle requires two steps: first, it requires the identification of the factor which it is said might lead the judge or tribunal member to decide a case other than on its legal and factual merits; and second, there must be an articulation of the logical connection between the matter and the apprehended deviation from the course of deciding the case on its merits.[22] It remains necessary to determine whether the apprehension is reasonable considered in the totality of all the relevant circumstances, and this is sometimes described as a third step.[23]

In AZAEY v Minister for Immigration and Boarder Protection,[24] the Full Court of the Federal Court of Australia considered an argument of a reasonable apprehension of bias arising from an allegation of “unfairness and an unwillingness on the part of the Tribunal member to listen to [the Applicant’s] claims”.[25] In support of that argument, it was alleged that the Tribunal member interrupted the Applicant’s evidence in a manner described by the Applicant as “rude” and “sarcastic”. The Applicant in that case further complained of the member’s “body language” and the “rolling of her eyes”[26] and asserted that the hearing was “marked by the Tribunal Member’s ill temper”.[27] In finding that the hearing was not vitiated by a reasonable apprehension of bias, the Full Court reiterated that the onus rests on the Applicant to establish a claim of reasonable apprehension of bias[28] and the analysis is “to be undertaken by reference to the statutory context in which the hearing is conducted and the facts and circumstances of each individual case”.[29] The statement of principles articulated by the Full Court included that:

“Within the spectrum of possible arguments lie those cases where reliance is placed upon comments made by the decision-maker throughout the course of an administrative hearing.
Thus, and by way of example, occasional displays of impatience and irritation, whether justified or not, may not amount to disqualifying bias: cf. VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872, (2003) 131 FCR 102 at 126. Kenny J there cited with approval the following observations of Kirby J in Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 ALR 225 at 230:
While sustained ill-temper can give rise to a reasonable apprehension of bias, momentary outbursts and misunderstandings in the often stressful world of adjudication must be tolerated, so long as they pass and do not affect the functions of the adjudicator…

“Harsh tones” may not be sufficient: SZNVM v Minister for Immigration and Citizenship [2010] FCA 261 at [37] to [39]. Katzmann J there concluded that there was no “logical connection between the harshness of tone in a member’s questioning and an inability to bring an open mind to the resolution of the issues in a case, particularly where it is to be expected that the Tribunal will probe the witness’s answers to test the truth of the account being offered to it”. But “excessive judicial intervention”, especially where a party is unrepresented, may be sufficient: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 394 per Kirby P.”[30]

It is not uncommon for the Commission to be required to deal with unrepresented parties – both employers and employees – some of whom are extremely aggrieved and have a passionate belief in the righteousness of their position, notwithstanding the parameters of the legislative framework in which they seek to articulate their cases. However, as Justice Kirby observed in Allesch v Maunz:[31]

“…it is worth emphasising that the principle just described does not require that the decision maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.”[32]

The test for determining whether a judge should be disqualified by reason of apprehended bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”.[33] That observer is amongst other things: (1) taken to be reasonable; (2) does not make snap judgments; (3) knows commonplace things and is neither complacent or unduly sensitive or suspicious; (4) has knowledge of all the circumstances of the case; and (5) is an informed one who will have regard to the fact that a judicial officer’s training, tradition and oath or affirmation, equip the officer with the ability to discard the irrelevant, the immaterial and the prejudicial.[34] These principles and observations set out above are apposite in the present case.

Conclusion in relation to the recusal application

Applying these principles, I have determined to refuse the application that I disqualify myself from further dealing with this matter for the following reasons. The Applicant’s major complaint in her affidavit in support of the recusal application is that she was prevented from advancing arguments that she wished to advance in support of her assertions that the CHO and VC Directions were unlawful and unreasonable. For reasons set out below, the Applicant’s submissions in relation to the matters that I have identified as being unarguable have been consistently rejected by the Commission at both single Member and Full Bench level. Those arguments have also been rejected by Australian Courts in decisions that I am bound to follow.

I do not accept that attempting to point out to the Applicant that she was advancing arguments that were legally incorrect or which I was bound to reject or required a ruling that I had no jurisdiction to make, and that she would be better served pursuing arguments that were relevant to the matters for determination, amounts to actual bias much less a reasonable apprehension of bias. Nor do I accept that providing copies of relevant and binding authorities to the Applicant or access to cases relating to vaccination decided by the Commission on its website in advance of the hearing constitutes bias or a reasonable apprehension of bias. Nor does this indicate that I have prejudged the Appellant’s case.

While the Applicant was required to be given a reasonable opportunity to advance her case, I was also required to afford fairness to the Respondent and to ensure that proceedings were conducted in a manner that allowed both parties to be heard in a way that did not result in unnecessary waste of time and cost and was not oppressive to the Respondent. Procedural fairness does not require that the Commission allow a party to advance arguments that are untenable and to monopolise the time set aside to hear the case by persisting with such arguments. The matter of the Applicant raising untenable arguments in relation to the constitutionality or lawfulness of the CHO Directions or insisting that the Fair Work Commission is bound by a decision of the High Court of New Zealand was dealt with in approximately 15 minutes at the commencement of the hearing. The transcript indicates that when the Applicant informed me that she insisted on pressing these arguments, the exchange concluded with me stating that I was attempting to assist the Applicant to argue matters relevant to her case but would not prevent the Applicant from raising any argument.[35]

The transcript also indicates the Applicant behaved rudely by making statements that I should “stop making things up” in response to being informed by me – correctly – that there is no treaty requiring that I accept judgements of the High Court of New Zealand as authority for the proposition that vaccination mandates introduced by Australian State and Territory Governments are unlawful.[36] While cross-examining Professor Bowman the Applicant was argumentative and rude and spent time exploring points that were of little, if any, relevance to her case. While under cross-examination the Applicant was non-responsive to simple questions and propositions and refused to make concessions even where they were appropriate. The Applicant was unnecessarily aggressive even allowing for the fact that she was unrepresented and subject to the stress associated with an adversarial proceeding. While I accept, for reasons I develop in this decision, that the Applicanat was subjected to unfairness, a reasonable observer would in my view, consider that the Applicant was unduly sensitive or suspicious to the point that conduct of the Respondent’s witnesses which was capable of being viewed as an innocent mistake was said by the Applicant to have involved dishonesty and to have been engaged in for an ulterior purpose even where a reasonable explanation was provided.

In my view, a reasonable observer would have considered that I was making reasonable attempts to focus the Applicant on matters that were relevant to her case and to dissuade her from advancing arguments and questioning Professor Bowman about matters that were irrelevant or properly the subject of submissions. A reasonable observer would also have noted the Applicant’s apparent inability to accept any attempt to focus her submissions and cross-examination or to question her views or the basis upon which those views were held. A reasonable observer would understand that the Commission is empowered to inform itself in any manner that it considers appropriate including by deciding that contentions advanced by a party which have no prospects of success, will not be heard and that other parties will not be put to the cost and effort of defending such contentions. A reasonable observer would also have noted that I ruled in favour of the Applicant at numerous points during the first day of the hearing and assisted her to frame questions for Professor Bowman in a manner that would elicit relevant evidence.

A reasonable observer would also have considered that the Applicant was given every opportunity to advance her case, despite her conduct in refusing to engage with the Commission as presently constituted to complete her case, to the point where an application by the Respondent to have the Applicant’s case dismissed for failure to comply with directions of the Commission was refused. Finally, procedural fairness does not require that a party is given a free reign to advance any and every contention in a case, regardless of merit or lack thereof, to the point of oppression for the other party.

Evidence

Public Health Directions

On 13 October 2021, in response to the COVID-19 pandemic and the public health emergency declared on 18 March 2020, the Chief Health Officer of the Northern Territory, issued COVID-19 Directions (No. 55) 2021[37] (CHO Directions No 55) under s. 52 of the Public and Environmental HealthAct 2011 (NT). Those Directions were amended in November 2021 by COVID-19 Directions (No 81) 2021, in a way that is not material to the present application. Public health directions in relation to COVID-19 remained in force in the Northern Territory until 15 June 2022. CHO Directions No 55 applied, by virtue of direction 4, to workers falling within categories including “a worker who, during the course of work, is likely to come into contact with a vulnerable person”.

Direction 3 stated that a person “is considered to be vulnerable to infection with COVID-19” if the person is under 12 years of age; cannot be vaccinated due to a contraindication to all approved COVID-19 vaccine; is an Aboriginal person; or is at risk of developing severe illness from COVID-19 for medical reasons, such as those with certain chronic diseases or those receiving immune suppressive therapy after an organ transplant.

In determining whether the CHO Directions applied to a worker as set out in direction 4, direction 5 stated that regard was to be had to the provisions of the Schedule. The Schedule set out further definitions regarding the meaning and scope of each category of workers under direction 4(a), as follows:

“1. For direction 4(a), workers who, during the course of work, are likely to come into contact with a vulnerable person include the following:

(a) workers who work with children, such as teachers, child care workers, tutors, gym coaches and swimming instructors;

(b) workers who work with disabled persons, elderly persons or other persons vulnerable to infection with COVID-19, such as legal service providers, disability care workers and personal carers;

(c) workers who directly face customers or patients in health care and ancillary health care services;

(d) workers who work in a community consisting of mostly Aboriginal people;

(e) workers who provide community services;

(f) workers who directly face customers in retail services, financial or hospitality industries and other service industries.”

As to the vaccination requirements, direction 6 provided that “[for] the period starting on 13 November 2021 and ending on 24 December 2021, a worker who has not received the first dose of an approved COVID-19 vaccine must not attend the worker’s workplace”. Direction 7 provided that “[on] and from 25 December 2021, a worker who has not received 2 doses of an approved COVID-19 vaccine must not attend the worker’s workplace”. In relation to the basis for an exemption from the requirements of the Directions, direction 8 provided that notwithstanding “directions 6 to 7, a worker may attend the worker’s workplace without being vaccinated with an approved COVID-19 vaccine if the worker has evidence of a contraindication to all approved COVID-19 vaccines.” Under direction 9, the evidence of a contraindication was required to be in the form of:

“(a)a medical certificate issued by a medical practitioner that certifies that the worker has a contraindication to all approved COVID-19 vaccines determined in accordance with the Clinical guidance on use of COVID-19 vaccine in Australia in 2021, or any successor guidelines, issued by the Australian Technical Advisory Group on Immunisation (ATAGI);
(b)a certificate issued by the Commonwealth that certifies that the worker has a contraindication to all approved COVI D-19 vaccines.”

Under direction 10, a person conducting a business or undertaking must ensure that any worker who performs work for the person does not attend the worker’s workplace contrary to directions 6 and 7. However, by virtue of direction 11, an unvaccinated worker without an exemption was not prevented from working at a place where the worker, during the course of work:

(a)is not likely to come into contact with a vulnerable person; and
(b)is not likely to come into contact with a person or thing that poses a risk of infection with COVID-19; and
(c)is not likely to be exposed to a high risk of infection with COVID-19,

Direction 12 further provided that a person conducting a business or undertaking was not prevented from making reasonable adjustment to accommodate a worker who is not vaccinated. The example accompanying direction 12 provided that reasonable adjustment may include “directing the worker to attend another workplace where the worker is not likely to come into contact with a vulnerable person or be exposed to a high risk of infection”.

In addition, directions 13–15 provided that a person conducting a business or undertaking could request evidence of vaccination from a worker and must keep a register to record the extent to which each worker who performed work for the person was vaccinated as well as information about the reasonable steps taken by the person to determine the extent to which their workers were vaccinated.

The Notes accompanying the Directions stipulated that a failure to comply with a direction, without a reasonable excuse, was an offence under s. 56 of Public and Environmental Health Act 2011 (NT) and carried a maximum penalty of 400 penalty units. An infringement notice may also be issued for failing to comply with these directions which carried a fine equal to 32 penalty units for an individual and 760 penalty units for a body corporate.

On 13 March 2022, COVID-19 Directions (No. 52) 2022[38] (CHO Directions No 52), which took effect at 12.01 am on 22 April 2022, were issued. Essentially those Directions required that a worker covered by the Directions must not enter or remain on the premises of the worker’s workplace unless the worker had received at least 3 doses of an approved COVID-19 vaccine or is otherwise exempt. CHO Directions No 52 also varied the definitions of a “vulnerable person”. Under direction 3, a person was considered to be vulnerable to infection with COVID-19 if:

“(a)the person is under 5 years of age; or
(b)the person has a certificate issued by the Commonwealth that certifies that the person has a permanent or temporary contraindication to all approved COVID-19 vaccines; or
(c)the person is at risk of severe illness from COVID-19 for medical reasons, such as being on immune suppressive therapy after an organ transplant or having comorbidities such as chronic kidney, heart, liver or lung disease.

Note for direction 3
For more information on vulnerable persons see:
Note for direction 3(c)
The prevalence of comorbidities is higher in Aboriginal people.”

As CHO Directions No 52 were intended to operate in place of CHO Directions No 55, the Chief Health Officer issued COVID-10 Directions (No. 53) 2022[39] on 24 March 2022 to revoke CHO Directions No 55. The revocation took effect from 12.01 am on 22 April 2022 and the operation of CHO Directions No 52 commenced at the same time. Following the cessation of the declaration of a public health emergency in relation to COVID-19, the Post-emergency COVID-19 Directions (No. 1) 2022 were issued on 15 June 2022 revoking previous CHO Directions with immediate effect.

CDU’s implementation of the CHO Directions No 55

Professor Bowman’s evidence in relation to the decision to implement the CHO Directions in the form of the VC Direction can be summarised as follows. CDU has a diverse range of employees and students, including employees and students who fall within the scope of the definition of “vulnerable person” outlined above. Further, the campus is a public space that any person can access at any time. Given the nature of CDU’s employee and student cohorts, and the fact the campus is a publicly accessible space, it is possible that an employee, regardless of their role, could, and likely would, come into contact with a vulnerable person while performing their duties and/or whilst engaging in activities incidental to those duties, such as by walking around the campus and/or their workplace.

It was on this basis that it was determined by the Senior Executive Team that the CHO Directions No. 55 were applicable at CDU and CDU had a legal obligation to implement them. On 20 October 2021, in an all-staff email, Professor Bowman provided the following reasons by email issued to all staff, for requiring all staff, regardless of their work environment, to be vaccinated:

“In line with the Chief Health Officer (CHO) Direction 55, ‘Directions for mandatory vaccination of workers to attend the workplace’, all CDU staff must be vaccinated for COVID-19. This includes staff who are usually located outside of the Northern Territory.
Under the Direction, all staff must have received the first dose by 12 November 2021 and have a booking to receive a second dose by 24 December 2021.
In accordance with Direction 14, the request for employees to supply information in relation to their vaccination status is considered a reasonable and lawful direction. These records will be maintained only as long as is needed to comply with NTG regulations.
…
The Chief Health Officer’s Directions are here.
If you have any questions about the directions from the NTG in regards to vaccinations, you can visit the website here.
Over the next few weeks, we will be considering our position on student vaccination, taking into account vaccine availability and eligibility, decisions in the university sector and by the NTG, our commitment to the communities we serve, and the safety and health of our CDU community.
Sydney campus
In line with directions from the New South Wales Government, our Sydney campus is currently open for fully vaccinated staff. This week, student access to campus is granted if the access is considered essential and the student is fully vaccinated. From 25 October, the campus will be fully open to all vaccinated staff and students.
I know that many of you are already vaccinated and have shared your Vaccine Passport already. Thank you. I encourage those who are yet to get vaccinated to book an appointment here, or to visit the mobile COVID vaccination clinic at the Casuarina campus.”[40]

On 25 October 2021, Professor Bowman issued a further all-staff email acknowledging that questions had been received from staff in relation to the implementation of, and compliance with, CHO Directions No 55. In response to those questions, Professor Bowman set out in his email a list of frequently asked questions (FAQ) including the following:

“What happens if I haven’t had my first vaccination by 12 November?
We are obliged by law to follow the CHO COVID-19 Directions (No.55) that state vaccination is required by Friday, 12 November. You must provide proof of vaccination by 12 November by emailing your vaccination certificate to [email address]
CDU staff who have not had their first vaccination by 12 November must not attend the workplace. From Saturday 13 November, you will be able to access your annual recreation leave and long service leave balances while you are arranging your first vaccination.
If you are not likely to have received your first vaccination by 12 November, please email People and Culture … We will discuss your individual circumstances with you.
Can I work from home if I am not vaccinated?
We will not grant permission to work from home for vaccine-related reasons. Working from home is a flexible arrangement, not a permanent solution. Staff who work from home are still sometimes expected to be on campus and interact as part of a team.
I have a medical exemption. What happens to me after 12 November?
Ensure your medical certificate that certifies you have a contraindication to all approved COVID-19 vaccinations has been received and noted by People and Culture. You may be required to take additional safety measures while attending your workplace, including wearing a mask and social distancing. Take some time to assess your current workstation and set up with your supervisor. Consider how your risk of contracting or infecting others with COVID-19 could be mitigated or minimised.
What if I have a religious or other objection to getting vaccinated?
The University is following CHO COVID-19 Directions (No.55), which provides exemption only for medical reasons. If you choose not to get vaccinated without a medical exemption, you will be putting your job at CDU at risk.

What will happen to me if I choose not to get vaccinated?
A public health emergency has been declared, which means the CHO can take the actions they consider necessary or appropriate to alleviate the emergency. These Directions are law, and the University takes its legal obligations very seriously. The University considers that mandatory vaccination for all staff is lawful and will enable us to ensure our campuses and people are safe for work and study. Being fully vaccinated will be a requirement for all CDU employees from 24 December.
I work in relative isolation, such as in an office or laboratory. Why do I have to get vaccinated?
The CHO COVID-19 Directions (No. 55), 4(a) and 4(b) apply to CDU. Even for those who work in offices, the nature of all our locations means we move around – from the car parks, or public transport, to the various office and learning settings, as well as areas such as the cafes and libraries. Additionally, we move through internal floor spaces to access common areas, like kitchens, bathrooms and photocopiers. This movement means we are all likely to come into contact with people who are considered vulnerable.
…
I don’t feel comfortable emailing my vaccine certificate. Is there another way I can provide it?
We have several measures in place to ensure the privacy and confidentiality of employee records.
If you are concerned about emailing your vaccination certificate, or evidence of your first vaccination, you can deliver a hard copy to People and Culture, and they will scan it and attach it to your personal record.
If you are located outside of Darwin and concerned about emailing, you may supply a statutory declaration stating your supervisor has sighted your vaccination certificate/evidence of first vaccination.
Will the records be shared with anyone?
In accordance with the CHO COVID-19 Directions (No.55), we are required to maintain a register of vaccination status and we may be obliged to make that register available to the CHO and/or their representative upon request.
Certificates will be held in a secure environment in the People and Culture infrastructure.
Does this apply even if I don’t work in the Northern Territory?
Yes, at this stage, we are making this a requirement for all CDU staff.
…”

On 4 November 2021, Professor Bowman issued an email reminder to all staff reiterating the deadline of 12 November 2021 for submitting proof of receiving the first dose of vaccination. It was stated that staff who did not comply would not be permitted to attend campus and would be required to take paid leave or be placed on leave without pay.

Professor Bowman noted that CHO Directions No 52 were issued on 13 March 2022 which imposed an additional requirement for certain workers to receive 3 doses of approved COVID-19 vaccines, to attend their workplaces, unless the worker had an exemption. CHO Directions No 53 were issued on 24 March 2022 which revoked CHO Directions No 55 with effect from 12.01 am on 22 April 2022. The additional vaccination requirements under CHO Directions No 52 also took effect from 12.01 am on 22 April 2022. Professor Bowman stated that while the definitions of “vulnerable person” under CHO Directions No 52 were modified, the definitions were not sufficiently different to mean that the vaccine mandate did not apply to all employees of CDU who were located within or attending a campus in the Northern Territory.

Under cross-examination, Professor Bowman accepted that the VC Direction applied to every employee of CDU and maintained that as the CEO of the University he could lawfully give such a direction notwithstanding that he had not given such a direction in the past and that some directions to staff could be given by managers.[41] It was also put to Professor Bowman that CDU did not fall under the Schedule of places listed in CHO Direction 55 said to pose a high level of infection. Professor Bowman maintained that the list of sites is inclusive rather than exhaustive and went on to say in relation to the Schedule:

“---So, look, it doesn't say on there ‘university’, it doesn't say ‘Charles Darwin University’, but it says, ‘Workers who work with children under five years of age, such as teachers, childcare workers and swimming instructors’. On this campus we have student teachers, student social workers who are going out and working with five years old. It says, ‘workers who work with disabled persons, elderly persons or other vulnerable people’. We have an aged care training centre here. We have people that come in and then go out into aged care facilities. ‘Workers who directly face customers or patients in health care and ancillary services’. Again, a lot of people who people mix with in the chancellery building are going out and working in the health care provision. ‘Workers who provide community services’, we have many people that work for the university that do that, including out on remote Aboriginal communities. You can go through this list and it's almost that in that first, under 1, you would say the university comes under every one of those. Then, when it looks at high areas of infection, it's got schools. I mean of course the university comes under these provisions.”[42]

In response to the proposition that the list he had read from related to CHO Direction 52 and that CHO Direction 55 was different and referred to children rather than children under 5, Professor Bowman said:

“‑‑‑… so we have university and also we have like a TAFE that combine into one institution, so, yes, we do have student teachers, we have student childcare workers. I can go through that list and, you know, just say that this applies to us all, but look at (d) in there, 'Workers who work in community consisting mostly Aboriginal people'. We are one of the most connected universities to Aboriginal communities. Our Northern Institute is really out on community. A lot of our staff are actually community members, who live on the community and they do come in and out of the carparks, they come in and out of the chancellery building, and they are walking around the university. When we made these decisions it was all about, really, doing what CHO was saying, 'Let's try and reduce the risk in the Northern Territory while this emergency is on'. I think it would have been completely irresponsible for me to have made a decision that these - this order didn't apply to the university.”[43]

In response to a question as to where the Applicant’s position fell under the Schedule in the CHO Directions, Professor Bowman said:

“‑‑‑Your position was based into the chancellery and you know that the chancellery is a high traffic area, where we get these people, from all of these categories, coming in and out of the chancellery all the time, parking in the same carparks that you would have been parking in, using the same lifts that you maybe use. You also be aware that the management council actually in the finance department, spend most of their time actually going in and around the university. So they come back to finance, but then they go out to their various departments. So there was a risk there of infection. This wasn't about eliminating risk but it was to reduce the risk down to the absolutely minimum level. So I would say that in your role you were making contact with people, either directly or indirectly, in these very vulnerable groups.”[44]

Professor Bowman also said that the Applicant could have come into contact with vulnerable people who, for health reasons, could not be vaccinated but were allowed to come onto the campus.[45] Professor Bowman accepted that the University did not keep a list of vulnerable people on the campus but maintained that there were such people who had asked for an exemption and were coming into work. In relation to exemptions, Professor Bowman said that these were given to some people who were recovering from cancer and conceded that there were a lot of unvaccinated people on campus because the University could not require students to be vaccinated nor apply the VC Direction to them.[46] Professor Bowman also stated that some people were allowed exemptions because they had been advised to wait for a third vaccine, a pregnant staff member who had anxiety that was affecting her mental health was allowed to work from home until her baby was born on the basis that she gave a commitment to being vaccinated immediately after the birth. Professor Bowman also said: “Look, we bent over backwards. The last thing we wanted to do was to dismiss anybody. We really worked to look at how we could let people take leave. We did everything in our power not to dismiss people. But, at the end of the day, there was a point when we just had to enforce the CHO directive”.[47] Professor Bowman also said that the only people who were dismissed were those who outright said that they would not be vaccinated or refused to advise whether they had been vaccinated.[48]

In the Applicant’s further submission in reply, she made a series of assertions contending that Prof Bowman “unfairly integrated his own prejudices into making the decision to unfairly terminate [her] employment” and that Prof Bowman’s personal view on vaccination was said to be biased for “insinuating unvaccinated people were doing the ‘wrong thing’” and of a derogatory nature towards people with religious beliefs. In support of these assertions, the Applicant referred to the FAQ which stated that religious objection to getting vaccinated was not permitted under the CHO Directions No 55 and would not be accepted by CDU. In addition, the Applicant appended email correspondence sent by Prof Bowman to all CDU staff, dated 7 January 2022 and 28 January 2022. This correspondence is entitled “Musings”. In the correspondence of 7 January 2022, the Applicant highlighted comments by Prof Bowman that the majority of CDU staff had done the right thing and been vaccinated but a few were withholding. The correspondence said that the CDU had been very tolerant and while unvaccinated staff could take leave of one kind or another until end January 2023 at that time the employment of unvaccinated people would be terminated. As to the correspondence of 28 January 2022, the Applicant highlighted the following comments:

“I am very much in the pro-vaccination camp. I don’t read much about the anti-vax argument. In the early days, a Museateer did send me a link to an anti-vax site and I did take a look at it. This week, I did revisit some of the anti-vax sites and had a look at their arguments. I was left as unconvinced as when I read this stuff from a year ago. For me, the arguments made no sense from a scientific stand point and they were being made by people who were simply not credible. Weighing these anti-vax arguments up against the massive scientific evidence and arguments made by great scientists and doctors, I am still very much in the pro-vax camp. Years ago, I went to see the great philosopher Billy Connolly perform. He said talking about religion ‘never trust any bugger who only reads one book’.”

Under cross-examination, Professor Bowman agreed that the term “bugger” is derogatory but maintained the comment is not anti-religious and that the quote reflects his view that universities should be places of learning where more than one book is read[49]. Professor Bowman also denied the assertion put to him in cross-examination that he is anti-religious.

Applicant’s response to vaccination requirements

In response to Professor Bowman’s emails of 20 October, 25 October and 4 November 2021, the Applicant corresponded with Professor Bowman by email on 5 November 2021[50] disputing the applicability of CHO Directions No 55 to her role and requesting that she be provided with information and confirmation about the safety and efficacy of COVID-19 vaccines. The matters raised in the Applicant’s emails can be summarised as follows. The Applicant:

· disagreed that she fell within the categories of workers as defined by CHO Directions No 55 on the basis that she was an “office worker” and did not work with any vulnerable person or likely to work with a vulnerable person;

· disagreed that there was a need for her to be physically on campus to perform her role on the basis that her role at CDU was office-based, that all her work was done on a computer, and that she previously had worked from home successfully as part of a team during COVID lockdowns;

· argued that CHO Directions No 55 made no mention that unvaccinated workers, who were not otherwise captured by the defined categories of workers, were prevented from attending their workplace and that direction 11 expressly provided to the contrary. She considered that direction 11 was applicable to her circumstances;

· stated that, if she was required to work on campus, a separate workspace in another building or another office space on campus, could be created for her as reasonable adjustments under direction 12;

· requested that she be provided with a “Safe Work Method Statement”, safety documents and scientific data that addressed a list of questions, including the legal status of the vaccine and whether it was “experimental”; whether the vaccines had been the subject of controlled testing and the profile of the test subjects; whether the vaccine was tested on any animal and whether any animal had died as a result; the full list of “ingredients” of the vaccines and their adverse effects; the statistics on adverse reactions and deaths associated with the vaccines from across the world; whether the vaccines would alter her DNA; and whether there was a likely risk of fatality from receiving vaccination; and

· requested that, before she considered receiving vaccination, CDU was to confirm that she would suffer no harm or death as a result of being vaccinated; that a medical practitioner would “sign off” that they will take full legal and financial responsibility for any injury or death that may occur; and that if she declined to be vaccinated, her position at CDU would not be compromised and she would not suffer prejudice and discrimination.

In addition, the Applicant took issue with CDU’s response in the FAQ regarding its position on approving work from home arrangements. In her email, she stated that the statement that working from home was a flexible and temporary solution was inaccurate because she knew of at least 4 staff members who permanently work from home. The Applicant said that those employees are based overseas or interstate, and it was not possible for them to be physically present on campus and gave examples of employees working remotely.

CDU did not provide a specific response to the matters raised by the Applicant in her email of 5 November 2021. Instead, Professor Bowman corresponded with the Applicant by email on 5 November 2021 reminding her that she was required by CHO Directions No 55 to provide evidence of her first dose of vaccination or an exemption by 12 November 2021, in order for her to attend the workplace from 13 November 2021.[51]

On 11 November 2021, the day before the 12 November deadline, Professor Bowman issued another email to the Applicant noting that CDU had not received the required evidence of vaccination or an exemption from the Applicant. That email further stated:

“If you have not confirmed receipt of your first dose by 12 November 2021, you will be unable to attend the University campus for work and you will be placed temporarily on leave without pay as you are unable to fulfil this requirement. In this situation:
·This period of leave without pay will be up to a two-week period, during this time, please talk with your supervisor or contact [email] to speak with the People & Culture team about your circumstances.

·At any time during this two-week period should you provide CDU with your proof of vaccination or exemption, the leave without pay status will be discontinued and you can attend the CDU workplace in the usual way.

·Alternatively, to leave without pay, you have the option to access your accrued annual recreation leave or long service leave entitlements. If you intend to use your leave balances, please ensure bookings are in the system prior to 12 November.”

In response, the Applicant said that she emailed People & Culture on 11 November 2021 stating that she still had not received a response from CDU about her email sent on 5 November 2021 or her request for further information, such as a Safe Work Method Statement. The Applicant said she reiterated her view that “the VC’s direction regarding all CDU staff requiring to get vaccinated was not in line with CHO Direction 55, and that the VC’s statements that I will be placed on involuntary leave without pay were not in line with the CDU Enterprise Agreement”. The Applicant said she also sought advice in respect of the status of her employment in the coming week, given that the last day for complying with CHO Directions No 55 was the next day – 12 November 2021.

On 12 November 2021, the Applicant contacted People & Culture again and spoke with Ms Sharon Donald, the Senior HR Business Partner, on the telephone to ascertain what was going to happen with her employment. The Applicant said she reiterated that she had not received a response to her email of 5 November 2021, or the email sent the day before. The Applicant stated that Ms Donald informed her that she was “being stood down as per the VC’s direction”. After the call, the Applicant said she emailed Ms Donald seeking clarification on what it meant to be “stood down” and stating that she was “forced” by the Vice Chancellor to apply for leave as the Vice Chancellor did not permit her to continue working at CDU and it was not her choice to go on leave. The Applicant said that Ms Donald’s reply was to the effect that the Applicant would need to put in an application for leave as the Applicant would no longer be able to enter the workplace after 12 November if she was unvaccinated. The Applicant said her response to Ms Donald was “legally I do not ‘need’ to put in leave, as this is contrary to law and the CDU enterprise agreement”.

The Applicant received email correspondence on 15 November 2021 which was headed “Notification of Stand Down” from Professor Bowman.[52] The Applicant was advised that “at this point in time, the University has not received the required information from you therefore you are no longer authorised to attend any Northern Territory campus or workplace effective immediately”. On 26 November 2021, a further email reminder was sent to the Applicant informing her that she had yet to provide evidence of vaccination or an exemption and that if she chose not to receive vaccination it may impact upon her ongoing employment with CDU. The correspondence also made it clear to the Applicant that CDU “would not approve working from home arrangements solely on the grounds of being unvaccinated”.

By email correspondence of 14 December 2021, the Applicant was further advised that if she chose “not to receive a vaccination or submit a Medical Exemption that reflects the CHO 55 exemption categories, this may lead to the termination of [her] ongoing employment with the University.” On 18 January 2022, Professor Bowman wrote to the Applicant in the following terms:

“You have provided the University with notice that you do not intend to provide your vaccination status or that you refuse to receive this vaccination and you have not submitted a medical contraindication/exemption.
I am directing you to provide the University with confirmation that you have received both COVID-19 vaccinations or provide evidence of a medical contraindication/exemption in accordance with the CHO Direction 55 by 31 January 2022. This is a reasonable management direction and failure to follow this direction may be considered Serious Misconduct under Clause 56 of the Charles Darwin University and Union Enterprise Agreement 2018 and could ultimately lead to the termination of your employment.
You are further directed not to attend any Charles Darwin University campus or workplace until you have provided this evidence. Unvaccinated persons cannot attend the workplace and you and/or the university may face significant fines from the NT Government if you attend the workplace in breach of the CHO Direction.”

In response to Professor Bowman’s direction, the Applicant wrote to Professor Bowman on 31 January 2021[53] raising various matters and requesting that all future communications be put in writing and sent to her personal email address. The matters raised by the Applicant in her letter included the following:

· She had never indicated that she did not intend to provide her vaccination status or that she refused to receive vaccination and was requesting information about COVID-19 vaccines before making an informed decision and CDU had not responded to her request;

· Not providing evidence of her vaccination status or a medical exemption had not prevented her from carrying out her duties and as such, did not constitute serious misconduct as defined by clause 56 of the CDU Agreement;

· She did not consider her role to be captured by the categories of workers as defined by the CHO Directions and she should be able to continue her employment with CDU with no hindrance regardless of her vaccination status;

· As an office based worker, she was not likely to come into contact with any vulnerable persons and therefore, was permitted by direction 11 to continue her employment at CDU and that there were many ways reasonable adjustments could have been made by CDU to accommodate her, in accordance with direction 12; and

· The Chief Health Officer did not have power under s. 52 of the Public and Environmental Health Act 2011 (NT) to direct a person to be vaccinated and as such “the direction for any worker to get vaccinated is not a legal requirement. CDU, by issuing statements directing ALL its workers to be vaccinated, is not only going against the issued CHO directions which specify only a specific group of workers requiring to be vaccinated but is also imposing directions onto employees that are not legally required or binding”.

By a letter dated 2 February 2022,[54] Ms Susan Hudson, the Interim Director for People & Culture at CDU, advised the Applicant of the allegation that the Applicant’s non-compliance with CHO Directions No 55 was a failure to follow a lawful and reasonable direction of the Vice Chancellor issued on 18 January 2022. Ms Hudson stated that the Applicant had been provided with an additional month to seek professional advice and to make necessary arrangements to receive an approved COVID-19 vaccine, but the Applicant remained non-compliant. The Applicant was informed that if the allegation was substantiated, it could constitute “behaviour of a kind that causes a serious impediment to the carrying out of your duties, your workplace participation and may bring the University into disrepute”. Mr Hudson further stated:

“In accordance with clause 56.6 of the [CDU Agreement] you are now provided with ten (10) working days, until close of business Wednesday, 16 February 2022 to submit a written response to this notice of allegations to me. Your response will then be provided to the Vice-Chancellor for a determination.
This is a serious matter and while no final decision has been taken at this stage, I must make you aware that if the allegations are substantiated and the Vice-Chancellor is of a view that conduct amounts to misconduct or serious misconduct, it may result in Disciplinary Action up to and including the termination of your employment.”

On 16 February 2022, the Applicant provided a written response to Ms Hudson’s letter of 2 February 2022.[55] While the Applicants’ written response largely repeated the arguments she had previously raised in correspondence with CDU on the subject, she further contended that the Vice Chancellor’s direction was unlawful on the basis that it contravened s. 23 of the Australian Immunisation Register Act 2015 (Cth) and s. 16B of the Privacy Act 1988 (Cth) and the direction was said to be invalid on the basis of an inconsistency between a law of the State and a law of the Commonwealth, by virtue of s. 109 of the Constitution. The Applicant also disputed the authority of the Vice Chancellor to direct that she be stood down or to require that she “put in leave of some kind to continue being paid by CDU”. Having provided a written response, the Applicant stated that on 28 February 2022 she received an email sent to her work email account advising that the allegation of misconduct or serious misconduct had been referred to an Independent Review to be conducted by an Independent Reviewer, Professor Winchester.

Professor Bowman agreed under cross-examination that he did not respond to the Applicant’s email of 31 January 2022 and that this was not consistent with obligations under the CDU Agreement.

Independent review

The CDU Agreement provides as follows in relation to the Independent Review Process:

“Allegation denied by Employee – possible serious misconduct

56.13If the Vice-Chancellor believes that the allegation has substance and the Vice-Chancellor proposes to take Disciplinary Action other than formal reprimand, censure, counselling or withholding of an increment, the Vice-Chancellor shall refer the matter to an Independent Reviewer.

56.14The University and the Union will agree on a list of University Employees and others who shall be available to act as an Independent Reviewer. In any given case, the Independent Reviewer will be selected by the University and Union from the agreed list. The University and Union may agree to vary the list from time to time.

56.15The terms of reference for the Independent Reviewer will be to report on the facts relating to the alleged misconduct or serious misconduct, including whether any mitigating circumstances are evident.

56.16 The Independent Reviewer will:

56.16.1 Provide an opportunity for the Employee to be interviewed and answer questions relating to the allegation/s;

56.16.2 Interview any person they think fit to establish the merits or facts of the allegation/s;
56.16.3 Take into account such further material deemed appropriate and provide the
Employee the opportunity to respond;

56.16.4 Conduct proceedings in camera, unless otherwise agreed;
56.16.5 If agreed keep a sound recording of the interviews for the purposes of accurate record keeping.

56.17The Independent Reviewer will provide their report to the University and the Employee within a reasonable time frame.

56.18 Following receipt of the Independent Reviewer report, the University may:

56.18.1 Take Disciplinary Action other than termination in the case of misconduct;

56.18.2 Take Disciplinary Action in the case of serious misconduct; or

56.18.3 Refer the matter back to the Senior Manager for further action; or

56.18.4 Take no further action.

56.19The Vice-Chancellor shall advise the Employee in writing of the outcome and any decision including the operative date of the action.

56.20Nothing in this clause shall prevent the Vice-Chancellor from referring a question of alleged misconduct or serious misconduct back to the Employee’s Senior Manager for further investigation.

I do not accept that Professor Bowman is “anti-religious” or that his views about religion had any effect on his decision to dismiss the Applicant. The sum total of the evidence in support of this assertion is Professor Bowman’s “Musings” (a periodic electronic communication to staff), in which the Professor quoted the comedian Billy Connelly – “He said talking about religion ‘never trust any bugger who only reads one book’.” While the quote may be offensive to persons who understand the literal meaning of the term “bugger” or to persons who are religious and who have read no books other than the Bible, I do not accept that it indicates that Professor Bowman is prejudiced against people who are religious or that he was in any way motivated to implement the VC Direction or to dismiss the Applicant for breaching it, by his views about religion. I also do not accept that the Applicant was dismissed because of her religious convictions in relation to not being vaccinated against COVID-19. The Applicant was dismissed because she refused to be vaccinated or provide proof of her vaccination status or an exemption, not based on her reasons for this refusal. The CHO Directions did not provide for an exemption based on religion. By refusing to be vaccinated on religious grounds, the Applicant made a difficult choice to maintain her convictions. As Deputy President Colman observed in Jovic and Markovic v Coopers Brewery Limited:[82]

“[81] There will be occasions where the exigencies of work collide with an employee’s personal beliefs and require difficult decisions to be made. It would be unreasonable to require workers to choose between their beliefs and their work without good reason. But in this case, there were good reasons. The policy was in line with ATAGI and government advice that vaccinations reduced transmission. It was directed at the wellbeing of all workers on site, especially those known to be immunocompromised. It served the company’s legitimate interests in maintaining continuity of operations. The policy was responsive to identified risks. It was within reasonable bounds for the company to take the cautious approach that it did to the risk of transmission, to require compliance with the policy, and to decline to grant exemptions to the applicants.”[83]

These comments are apposite in the present case and are relevant to the Applicant’s convictions about vaccination on other grounds. The CHO Directions provided further support for the legitimacy and reasonableness of Professor Bowman’s decision to implement the VC Directions.

The fact that the Applicant had an office-based role does not mean that she did not come within any category in the CHO Directions. Those categories are agnostic in relation to the role played by persons to whom the Directions apply and rather focus on the likelihood of persons coming into contact with vulnerable persons. In this respect I accept the evidence of Professor Bowman over that of the Applicant. Professor Bowman’s evidence establishes that the Applicant’s role is located in the Chancellery and that in that role and location there was a risk that the Applicant would come into contact with people, directly or indirectly, in vulnerable groups. The question of whether it would have been reasonable for the Applicant to have been allowed to work remotely or from another location on the campus is a different matter which I deal with later.

The contentions I have identified as unarguable are relied on by the Applicant as a basis for asserting that the CHO Directions and the VC Direction are unlawful and unreasonable so that her dismissal for non-compliance was not for a valid reason. The contentions are misconceived and premised on a misunderstanding or misapplication of legislation and legal principles. They are in my view not relevant to the substantive fairness of the Applicant’s dismissal and are not matters that I have considered in my assessment of whether there was a valid reason for the dismissal. However, notwithstanding that the Applicant’s contentions in relation to these matters have no merit, they may be relevant to whether she was afforded procedural fairness.

Section 387 matters required to be taken into account

Approach to considering s. 387 matters

In considering whether an employee was unfairly dismissed on the basis that the dismissal was harsh, unjust or unreasonable, s. 387 of the FW Act requires the Commission to take into account each of the matters set out in subsections (a) – (h). This involves evaluating each matter and giving it due weight having regard to all the other relevant factors.[84] As a Full Bench of the Commission said in Sydney Trains v Gary Hilder:[85]

“[24] … Section 387 requires that in in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account each of the matters set out in paragraphs (a)-(h) of the section. That requirement can only be read as applicable to each element of the trilogy – that is, a finding that a dismissal is or not harsh, is or is not unjust, or is or is not unreasonable must in each case be founded on a consideration of all the matters set out in s 387(a)-(h).”

Whether there was a valid reason for the dismissal – s. 387(a)

Relevantly, section 387(a) requires the Commission to consider “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)”. Where a dismissal relates to conduct of the employee, it is necessary to determine whether the matter was of sufficient gravity to constitute a sound, defensible and well-founded (and therefore valid) reason for dismissal.[86]
For the reasons set out above, the VC Direction was lawful and reasonable and the Applicant was required by the implied term in her contract of employment to comply with the VC Direction. The Applicant wilfully and knowingly refused to comply with the VC Direction. Whether this refusal constituted serious misconduct within the meaning in the CDU Agreement is not determinative of whether it was a valid reason for dismissal. In any event, serious misconduct is defined in the CDU Agreement to mean serious misbehaviour of a kind that constitutes a serious impediment to the carrying out of an employee’s duties or to an employee’s workplace participation or role including breach of University policies.
The VC Direction was effectively a University Policy. The Applicant’s place of employment which she was required to attend in order to carry out her role was in the Chancellery at the CDU campus. It is difficult to envisage a more serious impediment to the carrying out of the Applicant’s duties, workplace participation or role than the Applicant being unable to attend the workplace because she had not complied with the VC Directions and would be breaking the law by being in breach of the CHO Directions if she did attend the workplace.
I am satisfied and find that there was a valid reason for the Applicant’s dismissal.

Whether the Applicant was notified of the reason for dismissal – s. 387(b)

I am satisfied and find that the Applicant was notified of the reason for her dismissal before the dismissal occurred. That the result of the Applicant’s continued refusal to comply with the VC Directions would result in her exclusion from campus and her subsequent dismissal was clearly and repeatedly communicated to her through general notices to all staff and specific correspondence addressed to the Applicant directly in which she was informed of the allegations of serious misconduct and the findings that had been made regarding those allegations.

The Applicant could have been in no doubt about the substance of the direction in terms of what she was required to do to comply with it and the implications of failure on her part to comply. On 20 October 2021, the Applicant knew or should reasonably have known that the VC Direction had been issued and that from 12 November 2021 she would not be permitted to attend the workplace unless she complied with the VC Direction. On 25 October 2021, the Appellant knew or should reasonably have known that:

·   Professor Bowman had decided that the CHO Directions applied to CDU and that the VC Direction was necessary to ensure that the University complied with its legal obligations in respect of the CHO Directions;
·   The VC Direction applied to all staff of CDU including those who worked in offices;
·   Permission would not be granted to staff to work from home for vaccination related reasons;
·   Exemption on religious grounds would not be available and staff choosing not to be vaccinated would be putting their jobs at risk.

On 4 November 2021, the Applicant knew or reasonably should have known that the VC Direction would require her to be vaccinated or submit an exemption in an approved form by 12 November 2021 and that failure to comply would result in her being stood down without pay and required to use her leave accruals should she seek to be paid for the stand down. This advice was repeated in an email sent to the Applicant on 11 November 2021 and on 15 November 2021 when the Applicant was notified that she had been stood down and was no longer authorised to attend the campus or workplace and the advice that working from home arrangements solely on the grounds of being unvaccinated would not be approved. On 26 November 2021 the Applicant was again reminded that she had not complied with the VC Directions and that working from home arrangements solely based on employees not being vaccinated would not be approved.

By 14 December 2021, the correspondence with the Applicant had taken on a stronger and more direct tone. That correspondence directed the Applicant to comply with the VC Direction and informed her that this direction was lawful and reasonable and that failure to comply may be considered serious misconduct under the CDU Agreement and could result in the termination of the Applicant’s employment. On 2 February 2022, the Applicant was advised that her non-compliance with the CHO Directions, if substantiated, was behaviour of a kind defined as serious misconduct in the CDU Agreement, giving 10 working days for the Applicant to provide a written response and informing her that if the allegations are substantiated and found to be misconduct or serious misconduct, it may result in disciplinary action up to and including termination of her employment.

Whether the Applicant was given an opportunity to respond to the reason for dismissal – s. 387(c)

An opportunity to respond to a reason for dismissal related to capacity or conduct is a significant matter. The requirement in s. 387(c) is linked to the notification requirement in s. 387(b). For the Commission to have regard to whether an employee has been given an opportunity to respond to a reason for dismissal, the person must be notified of that reason in advance of the decision to dismiss being made and with sufficient particularity to provide a defence. An opportunity to respond within the meaning in s. 387(c) is the right to defend allegations in a way that might persuade an employer not to dismiss the employee if the defence has substance. Where an employer simply goes through the motions of giving the employee an opportunity to respond to allegations concerning conduct when the reality is that a decision to dismiss has already been made which would be adhered to regardless of anything the employee may say in their defence, an opportunity to respond providing a defence has not been given to the employee.[87]
It is also well established that compliance with s. 387(c) requires an employee be given an opportunity to respond and does not require that the employer ensures that the employee takes advantage of that opportunity. Where an employee fails or refuses to engage with a process that would have provided the employee with an opportunity to respond to reasons for dismissal within the meaning in s. 387(c) and does not provide a reasonable explanation for that failure or refusal, the requirements in that section may be found to have been met.[88]
I accept that on 5 November, the Applicant provided a detailed a response to the communication from Professor Bowman about the implementation of the VC Direction and on 11 November, a response to the advice that she would be stood down. I accept that the Respondent did not reply to the Applicant and that this was unfair. While I have found that these concerns were largely unarguable and based on the Applicant’s misconceptions about legislation and legal issues, they were nonetheless concerns and the University could and should have responded, if only to inform the Applicant that it would not be providing a substantive response to irrelevant contentions and that her compliance with the VC Direction was required. I also accept that the text message communication to the Applicant about the Independent Review meeting was sent to an incorrect telephone number and that this affected the timing of the Applicant being made aware of the meeting. However, notwithstanding these issues, in all of the circumstances, I am satisfied that the Applicant was given an opportunity to respond to the reason for her dismissal. My reasons for this conclusion are as follows.
Notwithstanding its failure to respond to the Applicant’s earlier correspondence, on 18 January 2022, Professor Bowman issued the Applicant with a direction to comply with the CHO Directions, that this was a lawful and reasonable direction and that refusal to comply would be considered “serious misconduct” under clause 56 of the CDU Agreement which could ultimately lead to the termination of her employment. The Applicant was informed that she had until 31 January 2022 to comply with the CHO Directions. The Applicant again responded to this correspondence reiterating points she had previously raised. Neither Professor Bowman nor CDU responded substantively to this correspondence. However, by letter dated 2 February 2022, from the Interim Director of People & Culture for CDU, the matters set out in the 18 January direction were reiterated and the Applicant was informed that she had ten working days to submit a written response to the allegations and that if they were substantiated, and the Vice Chancellor formed a view that this was misconduct or serious misconduct, disciplinary action up to and including termination of her employment may be taken. On 16 February 2022, the Applicant submitted a full response to this correspondence, repeating her earlier arguments and including some additional arguments.

The Applicant was then advised that the matter would be referred to an Independent Review to be conducted by Professor Winchester. I accept the evidence of Professor Winchester and the submissions on behalf of CDU that the Applicant unreasonably failed to engage with attempts to arrange for her to attend an interview with Professor Winchester. While SMS messages were sent to an incorrect telephone number, they were preceded and followed by emails to both the Applicant’s work and private email addresses. Following Professor Winchester being notified that the Applicant had not received Professor Winchester’s text message, I accept that on 22 March 2022, Professor Winchester offered another opportunity for the Applicant to attend an interview. The invitation was sent to the Applicant’s personal email address with suggestions that the interview be held on either Wednesday, 23 March 2022 or Friday, 25 March 2022. I accept the Applicant did not respond to Professor Winchester’s email nor did the Applicant take up the opportunity to be interviewed.
While the Applicant issued what she termed a direction to have emails sent to private email address, this was nothing more than her preference and the Applicant conceded under cross-examination that she could access her work emails at all times while she was stood down and chose to access it less frequently than her personal email address. While the Applicant may have been offended at her earlier emails being ignored, in all of the circumstances at that time including that she was stood down for an alleged refusal to comply with the lawful and reasonable direction to which she knew she would have to respond and in circumstances where non-acceptance of her response could place her employment at risk, the Applicant should have monitored all emails and her failure to do so was unreasonable. Further, the Applicant received the invitation to attend an interview sent to her work email address on 2 March and forwarded it to her private email address on 4 March. Although this was after the date on which an interview had been scheduled, the Applicant did not respond and point out that she had not received the email before the interview and seek to reschedule it. Professor Winchester took the initiative of seeking an alternative contact number when she did not receive a response to the SMS messages and sent an email to the Applicant’s private email address on 22 March 2022 (as she had requested) inviting her to attend a meeting and provided two possible dates. The Applicant ignored that email. I do not accept that Professor Winchester deliberately sent the SMS to an incorrect number and accept her evidence that the number she was provided by the Senior Employee Relations Consultant in CDU’s People & Culture team and there is no reason why Professor Winchester would have doubted the veracity of the information provided.
The Applicant’s evidence that she was not given sufficient notice of the proposed times was unconvincing as was her evidence about why she had not accessed her work email account on a more regular basis. The Applicant was stood down at the time and there is no evidence that she had other engagements on the alternative dates. It is more probable than not that the Applicant was offended at the manner she had been dealt with and chose not to respond. While there was some justification for the Applicant to be offended given that her correspondence had been ignored, her failure to engage with the process was unreasonable and leads me to conclude that the Applicant was given an opportunity to respond to the reasons for her dismissal and failed to take advantage of that opportunity. Finally, I am of the view that had the Applicant attended a meeting with Professor Winchester it would not have changed the outcome. The Applicant would not have altered her position and nothing she has put in her evidence and submissions in this case, lead me to the view that this factor weighs in favour of a finding that the dismissal was unfair.

Whether the Applicant was refused a support person – s. 387(d)

The Applicant did not request a support person, and the Respondent did not refuse, unreasonably or otherwise, to allow the Applicant to have a support person in discussions relating to the dismissal. This factor is not relevant.

Whether Applicant was warned of unsatisfactory performance – s. 387(e)

If a dismissal relates to unsatisfactory performance, s. 387(e) requires the Commission to consider whether the person has been warned about that unsatisfactory performance prior to dismissal. The Applicant’s employment was not terminated for unsatisfactory performance, but rather, for engaging in “serious misconduct” within the meaning in clause 56 of the CDU Agreement. This factor is also not relevant.

Impact of size of Respondent’s enterprise – s. 387(f) and (g)

The Commission is required by ss. 387(f) and (g) to consider the degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal. CDU is a reasonably large and sophisticated employer. In CDU’s view, this was reflected in the procedures it followed in effecting the Applicant’s dismissal.

It would be expected that CDU would have responded more appropriately to the Applicant’s email correspondence and its failure to do so is not consistent with the size of the enterprise and its access to human resource management expertise. Nor is the provision of an incorrect mobile telephone number to Professor Winchester. While this weighs in favour of a finding that the dismissal was unfair, for reasons set out above and following, I do not accept that it tips the balance to a finding that the dismissal was unfair when the other s. 387 factors are considered.

Other relevant matters – s. 387(h)

I have considered the Applicant’s contentions that her dismissal was unfair because CDU did not permit her to work remotely or in an empty building on campus. I do not accept these contentions or the Applicant’s evidence and prefer the evidence of Professor Bowman. Professor Bowman gave evidence that between 20 October 2021 and 14 December 2021, email communication and letters were sent to staff and the Applicant explaining why working from home would not be permitted for vaccine-related reasons. I accept that when CHO Directions No 55 were issued, Professor Bowman and senior managers at CDU were not aware of how long the CHO Directions would operate and this formed one of the reasons for deciding that it was not reasonable to approve a request to work from home solely on the basis that an employee did not wish to be vaccinated.

Further, I accept that CDU campuses are places of interaction, collaboration and in Professor Bowman’s view, people needed to go into the university to be part of the university community. I also accept that even roles within CDU that are not student facing may have interactions with students and impact on the student experience. Professor Bowman also explained that there is a significant Indigenous population in the Northern Territory community and the University including its staff interact with Indigenous communities. As the Finance Department is based in CDU’s Chancellery building, there is frequent interaction between students, staff and other people, including vulnerable people. Under cross-examination, Professor Bowman confirmed that the Chancellery is a high traffic area where many people come in and out. Similarly, the car park and lifts that the Applicant used were also used by other people, including vulnerable people. Professor Bowman said that the Applicant’s role is one that makes contract with people, either directly or indirectly, including with vulnerable groups.[89] These are also reasons why it was not reasonable or appropriate to allow the Applicant to work in an empty building with other unvaccinated employees. Such a proposal is not only absurd but would have breached the CHO Directions but would also have breached the duty of care the Vice Chancellor owed to take all reasonable steps to maintain the health and safety of employees and the CDU community generally. The proposal is also indicative of the Applicant’s inability to consider the obligations of the Vice Chancellor as CEO of a large and diverse organisation and the rights of other members of the University community to work in an environment where risks to health and safety are appropriately managed.

In relation to the Applicant’s contention that CDU treated her inconsistently by refusing her request to work remotely while allowing other employees to do so, I accept Professor Bowman’s evidence that while CDU did have the capacity to put in place work from home arrangements for employees, those arrangements were provided on a temporary basis or where an employee was located interstate with limited access to CDU campus from their locations. The overwhelming majority of these employees were already working from home at interstate locations or were required to do so because of more restrictive public health orders in other States. Further, I accept that CDU did approve some work from home or alternative arrangements, but this was done on the basis that the employees concerned provided evidence indicating their intention to be vaccinated or evidencing a medical condition causing them to be unable to be vaccinated within the timeframes required by the CHO Directions. This evidence establishes that Professor Bowman was reasonable – for example by allowing a female employee who was pregnant to wait until the birth of her child to be vaccinated because while vaccination was recommended for pregnant women, the mental health of that employee was being impacted by her concern about vaccination. There is no reason to doubt that had the Applicant engaged in the Independent Review Process and advanced a reasonable basis for deferring vaccination, her request would have been accommodated.

I do not accept the Applicant’s contention that Professor Winchester appointment as the Independent Reviewer to review the Applicant’s case was neither “independent” nor validly appointed under the CDU Agreement. I also reject the Applicant’s submission that Professor Winchester was untruthful in relation to the incorrect mobile telephone number. There was no basis for such a serious allegation to have been made and I reject it.

Conclusion

Having regard to the matters set out in s. 387 of the FW Act, I conclude as follows. The Applicant has put no evidence to establish that her dismissal was harsh because of the impact upon her. I accept that the Applicant has firm and resolute views about the matters that led to her dismissal and made a difficult choice to adhere to those views. The Applicant is intelligent and articulate, and while her dismissal doubtless had a detrimental impact on her, this is a matter for which she was entirely responsible and was the inevitable result of her conduct. The dismissal was not unjust because the Applicant’s refusal to comply with a lawful and reasonable direction was a valid reason for dismissal and the decision to dismiss the Applicant was reasonably open to the employer. The application is dismissed and an Order to that effect will issue with this Decision.

VICE PRESIDENT

Appearances:

D Kaltourimidis, Applicant.
L Carr for the Respondent.

Hearing details:

2023.
Brisbane (via Microsoft Teams):
January 30, March 14, April 28.

[1] [2021] FWCFB 6059.

[2] Exhibit A1 – Applicant’s Witness Statement.

[3] Exhibit A2 – Applicant’s Submissions in Reply dated 2 November 2022 at paragraphs 8, 14, 15, 8, 10, 12, 16, 17, 18, 20, 21 22, 23 and 24.

[4] Exhibit A3 – Email correspondence appended to the Applicant’s Further Submissions in Reply dated 27 January 2023.

[5] Exhibit R1 – Witness Statement of Professor Scott Bowman dated 20 January 2023.

[6] Exhibit R2 – Witness Statement of Dharshica Ganesan dated 26 October 2022.

[7] Exhibit R3 – Witness Statement of Professor Hilary Winchester dated 26 October 2022; Exhibit R4 – Witness Statement of Professor Hilary Winchester dated 20 January 2023.

[8] [2022] NZHC 291.

[9] Transcript of Proceedings on 30 January 2023 at PN38- PN53.

[10] Ibid.

[11] In addition to those applications being served on the Applicant by the Respondent on 15 March 2023.

[12] Groves M, The Rule Against Bias, op cit at 1.

[13] Allesch v Maunz (2000) 203 CLR 172 at 184, per Kirby J.

[14] (2000) 205 CLR 337.

[15] Ibid at 348.

[16] Re Medicaments and Related Classes of Goods (No 2) [2000] EWCA Civ 350; [2001] 1 WLR 700 at [37] – [39].

[17] Groves M, The Rule Against Bias [2009] Monash University Law Research Series UMonashLRS 10, p. 4-5 citing Sun v Minister for Immigration and Ethic Affairs [1997] FCA 1488; (1997) 151 ALR 505 at 551-552.

[18] Ebner v the Official Trustee (2000) 205 CLR 337, [6].

[19] [2022] FWCFB 192.

[20] [2000] HCA 63, 205 CLR 337.

[21] Ibid at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

[22] Ibid at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

[23] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, 268 CLR 76 at [21] per Kiefel CJ and Gageler J.

[24] (2015) 238 FCR 341; [2015] FCAFC 193.

[25] Ibid at [15].

[26] Ibid.

[27] Ibid at [6].

[28] Ibid at [23].

[29] Ibid at [27].

[30] Ibid at [16]-[20].

[31] (2000) 203 CLR 172.

[32] Ibid at [38], citing Vestry of St James and St John, Clerkenwell v Feary (1890) 24 QBD 703 at 709 per Lord Coleridge CJ; Sydney Corporation v Harris (1912) 14 CLR 1 at 15.

[33] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11].

[34] Martin v Norton Rose Fulbright Australia (No. 2) [2020] FCAFC 42 at [21].

[35] Transcript of Proceedings on 30 January 2023 at PN1-PN72.

[36] Ibid at PN60.

[37] COVID-19 Directions (No. 55) 2021: Directions for mandatory vaccination of workers to attend the workplace.

[38] COVID-19 Directions (No. 52) 2022: Directions for additional vaccination requirements for certain workers to attend the workplace.

[39] COVID-10 Directions (No. 53) 2022: Revocation of COVID-19 Directions (No. 55) 2021.

[40] Exhibit A1 – Annexure A.

[41] Transcript of Proceedings on 30 January 2023 at PN479-PN494.

[42] Transcript of Proceedings on 30 January 2023 at PN991.

[43] Ibid at PN998.

[44] Ibid at PN999.

[45] Ibid at PN1000.

[46] Ibid at PN1022.

[47] Ibid at PN1023.

[48] Ibid at PN1024.

[49] Ibid at PN973.

[50] Exhibit A1 – Annexure E.

[51] Exhibit A1 – Annexure G.

[52] Exhibit A1 – Annexure H.

[53] Exhibit A1 – Annexure L.

[54] Exhibit A1 – Annexure M.

[55] Exhibit A1 – Annexure N.

[56] Exhibit A1 – Annexure O.

[57] Exhibit A1 – Annexure P.

[58] Exhibit A1 – Annexure Q.

[59] Transcript of Proceedings on 30 January 2023at PN190, PN192, PN197.

[60] Ibid at PN198.

[61] Ibid at PN203-PN204.

[62] Additional Bundle at pp. 128-132.

[63] Transcript of Proceedings on 30 January 2023 at PN601-PN611.

[64] Additional Bundle at p. 127.

[65] Transcript of Proceedings on 30 January 2023 at PN799- PN801.

[66] Ibid at PN981-PN984.

[67] Transcript of Proceedings on 30 January 2023 at PN833.

[68] Exhibit A1 – Annexure A.

[69] Transcript of Proceedings on 30 January 2023 at PN575, PN581.

[70] [2021] FWCFB 6059, [29].

[71] Ibid at [113].

[72] Op. cit. at [68] – [70].

[73] Op. cit. at [79] citing the observation of a Full Bench in Briggs v AWH Pty Ltd [2013] FWCFB 3316.

[74] Roman v Mercy Hospitals Victoria Ltd [2022] FWCFB 112 at [26] and cases cited by the Full Bench.

[75] All staff Q&A issued on 25 October 2021; Court Book pg. 570.

[76] [2022] NZHC 291.

[77] Kassam v Hazzard [2021] NSWSC 1320, [63].

[78] [2021] NSWCA 299.

[79] Ibid at [38]-[39].

[80] Al-Munir Kassam and Others v Bradley Hazzard and Others No. S3 of 2022 [2022] HCATrans 131.

[81] Transcript of Proceedings on 30 January 2023 at PN65-PN67.

[82] [2022] FWC 1931.

[83] Ibid at [81].

[84] Nestle Australia Ltd v Federal Commissioner of Taxation (1987) 16 FCR 167 at 184.

[85] [2020] FWCFB 1373.

[86] Sydney Trains v Gary Hilder [2020] FWCFB 1373.

[87] Wadey v YMCA Canberra [1996] IRCA 568; cited in Dover-Ray v Real Insurance Pty Ltd (2010) 204 IR 399 at [85].

[88] Mollinger v National Jet Systems Pty Ltd 279/99 M Print R3130 [1999] AIRC 285; (18 March 1999).

[89] Transcript of Proceedings on 30 January 2023 at PN999.

Printed by authority of the Commonwealth Government Printer