Elizabeth Cogger v New Horizons Enterprises Limited

Case •

[2022] FWC 1267

•

24 MAY 2022
[2022] FWC 1267

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Elizabeth Cogger
v

New Horizons Enterprises Limited

(U2021/10778)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 24 MAY 2022

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

Introduction

  1. Ms Elizabeth Cogger was employed by New Horizons Enterprises Limited (New Horizons) for approximately three years in various roles. Ms Cogger was dismissed on 18 November 2021 for two reasons, the first of which was that she was not able to lawfully perform the duties of her current role in circumstances where a public health order prohibited her from providing disability services without having had at least one dose of a COVID-19 vaccine. The second reason pertains to a failure on Ms Cogger’s part to comply with a lawful and reasonable direction to complete a handover of clients and return IT equipment as directed by New Horizons. Ms Cogger contends that her dismissal was harsh, unjust and unreasonable. New Horizons denies those allegations.

  1. I heard Ms Cogger’s unfair dismissal case against New Horizons on 5 April 2022. Ms Cogger gave evidence in support of her case but was not required for cross examination. New Horizons adduced evidence from Mr Ray Miles, Acting General Manager (People Excellence), and was cross examined by Ms Cogger’s representative, Mr Smith.

Relevant facts

  1. New Horizons is a not for profit organisation that provides support services to vulnerable persons with a disability, mental health concerns, or aged care needs.

  1. At the time of her dismissal, Ms Cogger was employed full time in the role of Support Coordinator. It is uncontested that Ms Cogger’s role involved providing support services under the National Disability Insurance Scheme (NDIS). Ms Cogger’s responsibilities included coordinating the delivery of services to clients of New Horizons and supporting their staff and clients in achieving the set program outcomes.[1] Mr Miles gave evidence, which I accept, that Ms Cogger, in her role as a Support Coordinator, was “required to meet with New Horizons’ customers, and potential customers, face-to-face. This face-to-face service usually requires Support Coordinators to travel to the customer’s residence, whether that be a private residence, group home, age care facility, or in a hospital setting.”[2] Supporting this evidence is the fact that an essential requirement for the role of Support Coordinator is a “valid NSW Drivers C class licence, with ability to drive vehicles in licence class, including large cars & vans”,[3] together with the fact that a Support Coordinator is paid a car allowance.[4] Mr Miles explained in his oral evidence that Support Coordinators such as Ms Cogger worked from home as a temporary measure during the COVID-19 pandemic, but this was not an ongoing situation; Ms Cogger was required from time to time to meet in person with clients as part of her role.

  1. On 20 August 2021, New Horizons distributed an email to all employees which provided an update of information about the current NSW Government requirements, including vaccination requirements for “authorised workers”. This correspondence was followed by a second email of 20 August 2021 which detailed the following information:

    “It is now mandated by the NSW Government that:

    ·Disability support workers who live or work in the LGAs of concern must have (at least) their first vaccination dose by Monday 30 August;

    ·Authorised workers who work outside their LGA of concern are only permitted to work if they have had their first vaccination dose by Monday 30 August or if rapid antigen testing is implemented at their work-site”

  1. By email sent on 26 August 2021, Ms Worth, a Support Coordinator Team Leader employed by New Horizons, asked Ms Cogger to inform the company of her “stance on vaccine”. Ms Cogger responded to the inquiry later that same day stating that she did not understand that she was required to do so and felt uncomfortable doing so.[5]

  1. On 26 August 2021, Mr Brad Hazard, the New South Wales Minister for Health and Medical Research, made the Public Health (COVID-19 Care Services) Order 2021 (Public Health Order No 1), which stated, among other things, that:

  • a person who provides disability services must not provide the service unless, if the work is done on or after 9am on 25 October 2021 but before 9am on 29 November 2021, the person has received at least one dose of a COVID-19 vaccine or been issued with a medical contraindication certificate. The Public Health Order defines disability services to mean services provided in person to a person with a disability including services funded or provided under the NDIS or the National Disability Insurance Scheme Act 2013 (Cth),

  • a responsible person for a person who provides disability services must take all reasonable steps to ensure that the worker complies with the requirements set out in the previous bullet point, and

  • a person who provides disability services must, if required to do so by the responsible person for the worker, provide vaccination evidence for the worker.

  1. By email sent on 30 August 2021, the Applicant emailed Mr Peter Orr, Chief Customer Service Officer of New Horizons. Throughout this correspondence Ms Cogger inquired about the authority of the mandates and the directives given by New Horizons, stated that it was “not lawful or ethical for my employer to give me medical advice… to force or coerce a personal into a medical treatment, diagnosis/test or to show private medical documentation, without consent.”[6]

  1. By email sent on 13 September 2021, New Horizons provided information to all of its employees about a public health order which set out “the legal requirements for “health care workers” to have at least one COVID vaccination by the 30th September 2021.”[7] The email included a link to the NSW Government Gazette publication of the Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 dated 26 August 2021. For clarity, this is not the public health order that applied to Ms Cogger in relation to her employment with New Horizons; the correct order is the Public Health Order No 1 and the subsequent variations of that order.

  1. By email sent on 14 September 2021, Ms Worth again contacted Ms Cogger to confirm her COVID vaccination status. Ms Cogger responded by email later that same day explaining that she had discussed the issue with Mr Orr and that she had concerns “with the company’s pushing a mandate and the disclosure of private medical information of its employees, even against legislation. NSW Health orders are not law and the state and federal governments have all said… that they are not able to legally mandate these vaccinations.”

  1. By email sent on 14 September 2021, Ms Cogger contacted Mr Orr following up her previous email to him to which she had not received a response. In this correspondence, Ms Cogger expressed her concerns and requested the authority under which New Horizons was making the directive.

  1. By email sent on 17 September 2021, Mr Orr respondent to Ms Cogger. Mr Orr recommended that she seek the advice of her doctor about the vaccine, and explained that the Public Health Order required that certain workers be vaccinated and that proof of vaccination is lawfully requested under the Public Health Order.

  1. By email sent on 21 September 2021, Ms Cogger contacted additional managers of New Horizons about her discussions with Mr Orr and her concerns regarding the legality of the Public Health Order and the future of her role.

  1. By email sent on 22 September, Ms Cogger respondent to Mr Orr’s email of 17 September 2021. Ms Cogger explained that she did not consider Mr Orr to have addressed her concerns regarding the legislation under which the mandates were made. Ms Cogger went on to set out her concerns including that “it is not reasonable or practicable that any employee be coerced into or illegally mandated to take any medical intervention of any kind, without consent.”[8]

  1. By email sent on 24 September 2021, Mr Orr stated that New Horizons would not “provide further commentary on the legality or otherwise of the Health Orders. There will also be no further commentary on any alleged liability arising from those Health Orders.”[9] Mr Orr reiterated that New Horizons will abide by the Public Health Order and that if Ms Cogger was “not in a position to comply with the Health Orders within the nominated time-frame (30th September 2021 for one vaccination), you will be deemed to be unable to meet the inherent requirements of your role.”[10]

  1. By email sent on 27 September 2021, Ms Cogger sent to Mr Richard Gregg, CEO of New Horizons, the following email:

“NOTICE TO PRINCIPAL IS NOTICE TO AGENT,
NOTICE TO AGENT IS NOTICE TO PRINCIPAL

Date: 27/9/2021

To: RICHARD GREGG

Re: Request (offer of contract) to participate in medical service including, but not limited to, diagnostic, therapeutic or preventative services including vaccination, medical testing and face masks.

On the basis of fact that as a living Man, Woman, or any variation thereof = person(s) in law = people in law = vessel(s) in commerce only. Thereby, fully retaining all COMMONWEALTH CONSTITUTIONAL RIGHTS in LAWS / ACTS / RULES at all times.

Be aware that:

1. All contractual agreements prohibit any unlawful directions or actions or promotion of unlawful directions or actions, either directly or indirectly at all times. Unlawful directives or unlawful acceptance of directives are criminal in nature and a breach of our contractual agreement.
2. The doctor undertakes by the contract between them to advise and treat the patient with reasonable skill and care, no third party can exist at any time. My personal medical information is strictly protected under Federal Law including, but not limited to, provisions under the Privacy Act 1988.
3. No medical service can be forced against my free will and is strictly prohibited under sect 51(xxiiiA) of the Australian Constitution which guarantees protections and prohibitions, within the Commonwealth Constitution.
4. All State constitutions, Laws, Acts, Rules, are subject to the Commonwealth Constitution pursuant to section 109 which states, when a law of the State is inconsistent with the law of Commonwealth, the latter shall prevail and the former shall, to the extent of the inconsistency, be considered null and void at all times.
5. This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State
6. Australian businesses are bound by Federal and Constitutional laws thereby, negating State legislation, orders, and directives inconsistent with Federal Law at all times.
7. Where no Bio Security Order has been made against me, the individual living Man, Woman or any variation thereof (person in law), under the directions by an authorised Bio Security officer and consistent with the specific directions of that order under the Bio Security Act 2015, no other order can be lawfully imposed at any time.
8. Medical services coerced or forced upon me, a living Man, Woman or any variation thereof (person in law), without my acceptance and under intentional infliction of extreme psychological duress and financial hardship would constitute assault and abuse and carry with it substantial criminal penalty including imprisonment.
9. Any threats imposed on me the living man, woman or any variation thereof (person in law) to submit to directions or policies directing me to self-harm against my will, or restrict or invalidate my inalienable human rights to decline such offers, creates an unlawful and unreasonable discriminatory burden upon the person(s) in law at all times.

Due to the seriousness of your demand with menace being sought, I request your valid proof of claim with physical material evidence within 72 hours that your Policy / Request / Demand is lawful and reasonable based on the Constitutional guarantees stated above.

Should I not receive your response by the start of business 30/9/2021, I will consider this your tacit agreement that you accept that your policy, directions and actions are unlawful and unreasonable and that you accept my lawful right to decline all offers now or in the future as I see fit.

Your faithfully,

ELIZABETH COGGER” (Notice)[11]

  1. Ms Cogger sent the same Notice to Mr Orr on 29 September 2021.

  1. By email sent on 29 September 2021, Mr Orr responded to the Notice informing Ms Cogger that New Horizons’ position had not changed. Later that day, Ms Cogger issued Mr Orr with a “second notice”[12] by email; this second notice is materially the same as the Notice with the exception of the amendment of the response date to 5 October 2021.

  1. By email sent on 30 September 2021, Mr Orr responded to Ms Cogger and explained in part that: 

“New Horizons position is based on formal legal advice regarding the organisation’s (and therefore impacted employee’s) obligation to abide by all requirements of relevant Health Orders. I confirm that your submission below does not change New Horizons’ position as already stated.

There will be no further correspondence to you from New Horizons regarding the legality or otherwise of Health Orders. New Horizons remains ready to defend its position before any formal proceedings.”[13]

  1. By emails sent on 30 September 2021, 1 October 2021, 6 October 2021, 7 October 2021 and 19 October 2021, Ms Cogger issued Mr Kennedy, Customer Service Operations Manager, and Mr Orr with further copies of the Notice in materially the same terms as set out above.

  1. During this period, New Horizons regularly updated their employees on the requirements under the Public Health Order via company wide emails.

  1. By email sent on 22 October 2021, Ms Worth contacted the Support Coordinators of New Horizons to “let workers know that as of Monday if they are not vaccinated they can no longer work.” Further to this Ms Worth reiterated the requirement, under the Public Health Order, that all service roles in disability that are funded through the NDIS are required to have received one COVID-19 vaccination by Monday 25 October 2021.[14] Ms Cogger responded to this email on the same date with a further Notice in the same form as above.

  1. By email also sent on 22 October 2021, Ms Worth contacted Ms Cogger and explained that a handover meeting would be set for an upcoming date prior to Ms Cogger commencing leave on 29 October 2021. This email also directed Ms Cogger to return all IT equipment. On 24 October 2021, in response to this email, Ms Cogger sent a second notice in materially the same terms as the Notice set out above to Ms Worth.

  1. By email sent on 25 October 2021, Ms Cogger responded informing New Horizons that she declined to take leave from 29 October 2021.

  1. By email sent on 26 October 2021, Ms Worth responded to Ms Cogger giving a direction to provide a comprehensive handover document by 28 October 2021 and attend a Microsoft Teams handover meeting on 29 October 2021. Ms Cogger responded by email later that day declining the “request”.[15]

  1. By email sent later on 26 October 2021, Mr Ray Miles, People and Business Enablement Lead of New Horizons, contacted Ms Cogger. Mr Miles stated in this correspondence:

“1. Legality of Health Orders The Supreme Court has recently dismissed 2 applications challenging the legal validity of Health Orders issued by the NSW Government. In its decision, the Supreme Court found the public health orders restricting the freedom of unvaccinated people’s movement were legally valid, and reasonable. If you would like to read the actual judgement, please see Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 (15 October 2021).

2. The above decision confirms New Horizons’ original position that, as a Support Coordinator, the Health Orders require you to have received your first covid vaccination no later than 25th October (yesterday). normal duties.

3. Your failure to meet these requirements means that you are unable to perform the inherent requirements of your role.

4. As such, you have been directed to commence leave effective Monday 1st November 2021. This was not an offer or a point of negotiation. This was a simple directive consistent with New Horizons obligations under the Health Order. Your “decline of this offer” is totally irrelevant

5. Failure to abide by Health Orders carries a maximum penalty is $55,000. A further $27,500 penalty may apply for each day the offence continues. New Horizons is not prepared to risk this financial impact or the reputation of the business by failing to follow legal Health Orders.

6. Therefore, I confirm the directive that you are to proceed on leave from Monday 1 st November 2021 and remain on leave until you can comply with Health Orders. Failure to abide by this directive will result in removal of all access to New Horizons computer systems, customer data and business emails.

7. Refusal to provide a handover to Work Colleagues. In your email to your Supervisor, Laura Worth and Manager Pip Walker dated Tuesday, 26 October 2021 10:35 AM, you advise as follows “Thank you for taking my matter to the next level, in the meantime I officially decline your current request..” The handover is required to ensure New Horizons continues to service its customers (many of whom are highly vulnerable) in accordance with our Customer Service Arrangements. Customers are not to be adversely affected by your choice to refuse a covid vaccination

8. New Horizons regards this item as a very serious matter. You are effectively refusing a lawful and reasonable instruction from your Supervisor. Your continued refusal to provide a handover as requested will result in Disciplinary Action which may include a Formal Warning or even Termination Of Your Employment with New Horizons.

9. I strongly urge you to reconsider your refusal to provide a handover . The covid situation is challenging for everyone. Why complicate the issue further by the need for Disciplinary Action as well

Elizabeth, I hope you understand the need for New Horizons and its employees to abide by Health Orders as directed.”[16]

  1. By email sent on 27 October 2021, Ms Cogger sent a first and second notice to Mr Miles; these notices were in materially the same terms as the Notice set out above, save for the dates referred to therein.

  1. By email sent on 29 October 2021, Ms Cogger sent a further notice to Mr Orr in the following terms:

“Dear …Peter Orr….

Thank you …Peter Orr… for your correspondence dated …24/9/21… I note you …Peter Orr…, acting under the position of …Chief Customer Service Operations Manager…, for …New Horizons…. trading under ABN number …42002066604… have made written claims and will be referred to hereafter as the claimant.

You the claimant have stated

1. You have the legal authority to restrict the freedom of my movement based on the NSW Supreme Court decision, despite High Court Determinations and Case law proving otherwise
2. You have the legal authority to enforce a Public Health Order of vaccination upon me, under threat of menace and whilst inflicting extreme duress
3. You allege that the inherent requirements of my role now include the enforcement of a medical procedure upon me, which is deemed a provisional temporary Covid control measure
4. You have the legal authority to force me, without offer or negotiation, to receive a medical procedure of a provisional temporary Covid control measure
5. You have the authority to act as a third party of the NSW Government to enforce a medical procedure upon me under threat of menace and inflict extreme duress
6. You have the authority to breach my employment contract by forcing me to undergo a medical procedure outside of the scope of this agreement


7. You have the authority to direct me to participate in an unlawful activity, that is to co-operate with an unlawful act, making me complicit in such an act which I have lawfully declined to do
8. You have the authority to misrepresent me by alleging I have used the word or intention ‘refused’ when in fact my words were clear that I declined to act unlawfully in this matter
9. You have evidence that I am 'complicating the matter' by making reasonable enquiry into the lawfulness of your actions and in the process providing for myself protections under law by declining to participate in such acts

I again request you, the claimant, provide me the necessary information so I may be reasonably able to provide you my full and willing informed consent to this medical procedure direction

1. Evidence of your lawful authority under Federal and Constitutional law to act as an agent of the State Government and its directions, in enforcing a medical procedure upon me
2. Evidence of a detailed risk assessment showing vaccinated and non-vaccinated outcomes specific to my role and workplace
3. Material evidence of a safety data sheet listing the full ingredients, documented health risks and efficacy in transmission control
4. Evidence of provisions made in my employment contract that would compel me to receive a provisional SARS-Cov -2 vaccination
5. Evidence that the State Government Direction of employers overrides Federal Laws, including but not limited to , The Privacy Act 1988, The Bio - Security Act 2015 , The Disability Discrimination Act and The Commonwealth Constitution section 51(xxiiiA) , Sec 109, (in force -last amended 2013)
6. Evidence that the Sars-Cov-2 vaccine is warranted in my workplace for my specific role and proven to be the safest, most reliable and effective Covid control measure available in Australia
7. Evidence of your lawful authority to discriminate against me under threats of menace, should I decline your direction of vaccination on the grounds of safety risk, coercion, threats of termination or under extreme duress
8. Evidence that I am not afforded the same lawful right of constitutional protection, being a citizen of the Australian Commonwealth, where other employment groups, namely Commonwealth employees are exempt from vaccination directions, under such constitutional protections,
9. A written assurance that you will accept full liability for any harm done to me as a result of your enforcement of this direction as stated in the NSW Vaccination Compensation Bill 2021 requiring relevant bodies (employers) to fully compensate employees for such. It states below

137 Liability to workers required to be vaccinated
• (1) This section applies if a relevant body requires a worker to be 10 vaccinated against a disease prescribed by the regulations 11
• (2) The relevant body is liable to pay compensation to the worker for any 12 injury, loss or damage suffered by the worker as a result of the vaccine 13
• (3) The relevant body continues to be liable to pay compensation to the 14 worker until the worker’s death, even if the worker ceases to be 15 employed or otherwise engaged by the relevant body 16
• (4) In this section— 17 relevant body, in relation to a worker, means the person or body that 18 employs or otherwise engages 19 the workerof a relevant body includes a person engaged by, or on behalf 20 of, the relevant body under a contract for services, but does not include 21 a volunteer

A refusal to provide such information would result in your admission that you are unable to provide the necessary documentation for me to make a fully informed decision or make reasonable determination that my actions are within the provisions of the law. To knowingly co-operate in a criminal activity makes me complicit to that crime. I intend at all times to stay within the law, even when others are not. I understand that to be ignorant of the law is no defence. Your failure to apply due diligence in investigating these serious concerns raised here would be to compromise the integrity and future viability of the business. To take punitive action against me for raising such concerns and requesting they be factually answered may be considered by the courts to be harsh, discriminatory and compliant in criminal activity.

I hereby officially, put you the claimant, on notice that I have serious concerns that your actions are unlawful and as a result considered wholly unreasonable. Any unlawful action may be, in the very near future, determined yet again, when the High Court of Australia hears and makes Constitutional and Federal determinations in cases currently before them. You are noticed that it is your responsibility as the person who makes the claim (claimant) carries the formal obligation to present the valid, material evidence in foundation of that claim. There is therefore, a formal requirement that …Peter Orr… in the position of…Chief Customers Service Operations Manager… to present the valid material evidence for the claims made in correspondence to me by …end of business 2/11/21… (72 hours)

I await your timely response

……ELIZABETH COGGER……….”[17]

  1. On 29 October 2021, Mr Hazzard made the Public Health (COVID-19 Care Services) Order (No 2) 2021 (Public Health Order No 2), which repealed and remade the Public Health Order No 1. The order as remade did not contain any substantive amendments to the Public Health Order No 1 insofar as the provision of disability services was concerned.

  1. By email sent on 1 November 2021 to Ms Cogger’s personal email account (as opposed to her New Horizons’ email account to which all prior correspondence had been sent), Mr Miles confirmed that Ms Cogger had “commenced leave from today due to your inability to carry out the inherent requirements of your role.”[18] Mr Miles confirmed that all system access had been removed and that disciplinary actions would be taken due to the failure to return the property of New Horizons or provide a handover as directed.

  1. Mr Miles and Ms Cogger exchanged email correspondence from 1 November 2021 to 10 November 2021 regarding the failure to provide a handover and the return the IT equipment as directed. 

  1. Throughout this period, Ms Cogger sent the following notice to Mr Orr by email, together with notices in the same terms to Mr Miles, Mr Gregg and Mr Kennedy:

“Hi Peter,

With response to New Horizon's willful, false allegations and claims, and your failure to respond with the law New Horizons are relying upon to force coerced vaccination, in order to keep my employment.

Please produce the law allowing New Horizons to demand forced vaccination, with threat of employment termination, contrary to Section 51 xxiiiA., Section 106, Section 109 of the 2003 Commonwealth Constitution, and the law allowing you to demand me to divulge personal private medical information, contrary to Section 94H. of the Privacy Act 1988. All of which carry severe financial and/or incarceration penalties.

I highly recommend you seek legal advice immediately and reconsider your position. I look forward to your response within 72hrs-COB Wed 3rd Nov.

Kind Regards,

Elizabeth Cogger”[19]

  1. By email sent on 12 November 2021, Ms Judy Bradley, General Manger – People Excellence, offered Ms Cogger “the opportunity to show cause as to why your employment should not be terminated.”[20]

  1. By email sent on 17 November 2021, Ms Cogger responded to the show cause request. In this response, among other things, Ms Cogger expressed that New Horizons’ “failed to provide any written LAWS/ACTS that authorise the company to civilly conscript myself or any other employees, for any reason, without dree and fully informed consent.”[21] Ms Cogger asserted that the Supreme Court decision relied upon by New Horizons, being Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 is “invalid, as it was based on the outdated 1901 constitution.” There were several other claims made by Ms Cogger in this correspondence regarding “threatening and unlawful communications”[22]  by the management staff of New Horizons.

  1. By letter dated 18 November 2021, Ms Bradley informed Ms Cogger of the termination of her employment with New Horizons. The letter states the reasons for termination as follows:

“As stated in that correspondence, there are public health orders in place that require you to be vaccinated against COVID-19 to perform your duties as a disability services worker.

We note receipt of your email dated 17 November 2021. It is plain from the content of that email, and your prior correspondence to us, that you are not willing to put yourself in a position to lawfully perform your contract.

As such, New Horizon’s is choosing to bring that contract to an end and to terminate your employment, effectively immediately.

Further, you have also repeatedly refused to comply with lawful and reasonable directions regarding the return of New Horizon’s property, and performance of a handover. Failure to comply with a lawful and reasonable direction constitutes serious misconduct. For this reason, too, New Horizon’s is terminating your employment with immediate effect.”[23]

  1. On 19 November 2021, Ms Cogger sent an email in the following terms to Mr Orr, Ms Worth, Mr Kennedy, Mr Miles and Mr Gregg:

“In regards to all our previous correspondence.

I acknowledge your invalid response and thank you for affirming your inability to respond to my previous 3 legal notices requesting you validate proof of claim you have AUTHORITY to mandate vaccinations upon your employees.

Thank you for confirming you are knowingly and wilfully breaking the law sect 51xxiiiA and sect 109 1986/87 AUSTRALIAN CONSTITUTION By continuing to mandate your employees to be civilly conscripted.

By failing to respond to my notices you have acquiesced that you have no lawful authority to mandate any form of medical procedure upon myself or any other employees with threat of menace and employment termination.

Take note that civil conscription is unlawful and can carry a criminal penalty of up to 20yrs imprisonment.

In Addition ,
CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007 - SECT 13 Stalking or intimidation with intent to cause fear of physical or mental harm (1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence.

CRIMES ACT 1914 - SECT 13. Unless the contrary intention appears in the Act or regulation creating the offence, any person may: (a) institute proceedings for the commitment for trial of any person in respect of any indictable offence against the law of the Commonwealth; or. (b) institute proceedings for the summary conviction of any person in .

To avoid further actions you must cease and desist your threats to any and all employees immediately unless you can provide the lawful authority as previously requested.

Regards,

ELIZABETH COGGER

19th November, 2021”[24]

  1. On 23 December 2021, Mr Hazzard made the Public Health (COVID-19 Care Services) Order (No 3) 2021 (Public Health Order No 3), which repealed and remade the Public Health Order No 3. The order as remade did not contain any substantive amendments to the Public Health Order No 2 insofar as the provision of disability services was concerned.

Dismissal

  1. New Horizons firstly submits that Ms Cogger was not dismissed within the meaning of the Fair Work Act 2009 (Cth) (Act). It is appropriate to deal with this jurisdictional issue first before the merits of the application.

  1. The question of when a person has been dismissed is governed by s 386 of the Act:

“(1)     A person has been dismissed if:

(a)   the person’s employment with his or his employer has been terminated on the employer’s initiative; or

(b)   the person has resigned from his or his employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or his employer.”

  1. There is no suggestion in this case that Ms Cogger resigned.

  1. The expression “termination at the initiative of the employer” is a reference to a termination that is brought about by an employer and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.16 There must be action by the employer that either intends to bring the relationship to an end or has that probable result.17 

  1. Ms Cogger was notified of her dismissal by the termination letter dated 18 November 2021. This letter states in part:

“… there are public health orders in place that require you to be vaccinated against COVID-19 to perform your duties as a disability services worker.

We note receipt of your email dated 17 November 2021. It is plain from the content of that email, and your prior correspondence to us, that you are not willing to put yourself in a position to lawfully perform your contract.

As such, New Horizons is choosing to bring that contract to an end and to terminate your employment, effectively immediately.

Further, you have also repeatedly refused to comply with lawful and reasonable directions regarding the return of New Horizons’ property, and performance of a handover. Failure to comply with a lawful and reasonable direction constitutes serious misconduct. For this reason, too, New Horizons is terminating your employment with immediate effect…”

  1. I do not consider that Ms Cogger’s conduct was such as to convey to a reasonable person in the situation of New Horizons a renunciation of the employment contract as a whole or Ms Cogger’s  fundamental obligations  under it.[25] I am satisfied that action on the part of New Horizons was the principal contributing factor which resulted, directly, in the termination of Ms Cogger’s employment. New Horizons intended to bring the employment contract and relationship to an end, and communicated that intention to Ms Cogger in clear terms in the termination letter. In my opinion, Ms Cogger’s employment was terminated at the initiative of New Horizons. It follows that Ms Cogger was dismissed within the meaning of s 386(1)(a) of the Act.

Initial matters to be considered

  1. Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of the application.

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

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

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

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

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

Was the dismissal harsh, unjust or unreasonable?

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

Valid reason (s 387(a))

General principles

  1. It is necessary to consider whether the employer had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal.[26] In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded”[27] and should not be “capricious, fanciful, spiteful or prejudiced.”[28]

  1. The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[29] The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).[30]

  1. In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.[31] It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.[32]

New Horizons’ reasons for dismissal

  1. New Horizons contends that it had two valid reasons to terminate Ms Cogger’s employment. First, Ms Cogger failed to meet the requirements of Public Health Order No 1 and Public Health Order No 2 (Public Health Orders) for a person who provides disability services. Secondly,  Ms Cogger failed to follow a lawful and reasonable direction to provide a handover and return equipment to New Horizons.[33]

Public Health Order reason

  1. Once a public health order made under s 7 of the Public Health Act 2010 (NSW) (PH Act) is in force and applies to a particular workplace, the employer of employees who work in the workplace is obliged to comply with the order, as are the employees in the workplace, unless they have a reasonable excuse[34] for failing to comply with the order or the order is declared invalid or unlawful by a court of competent jurisdiction. The Commission does not have jurisdiction to determine whether a public health order is invalid or unlawful.[35] The Commission is an administrative tribunal and will carry out its functions according to law, proceeding on the basis that legislation and delegated legislation is valid until a court says otherwise.[36]

  1. The New South Wales Court of Appeal has determined that public health orders in materially similar terms to the Public Health Orders were not invalid.[37]

  1. Ms Cogger did not contend that she was not covered by the Public Health Orders. In any event, I am satisfied on the evidence that Ms Cogger, in her role with New Horizons as a Support Coordinator, provided disability services within the meaning of the Public Health Orders, because she provided services “in person to a person with a disability including services funded or provided under the NDIS”.[38] Accordingly, the Public Health Orders applied to Ms Cogger in relation to her employment with New Horizons. The effect of the Public Health Orders was to prohibit Ms Cogger from providing disability services on or after 9am on 25 October 2021 unless she had received at least one dose of a COVID-19 vaccine or had been issued with a medical contraindication certificate.

  1. There is no dispute that Ms Cogger did not, prior to 9am on 25 October 2021, have any doses of a COVID-19 vaccine, nor had she been issued with a medical contraindication certificate. It follows that Ms Cogger was prevented, by reason of the Public Health Orders, from undertaking any work providing disability services on or after 9am on 25 October 2021.

  1. Ms Cogger and her unpaid representative, Mr Smith, submit that Ms Cogger was “unjustly terminated on the 18th November 2021, effective immediately, for failure to participate in an alleged lawful and reasonable direction participate in a medical service/ procedure.”[39] They advance a number of arguments in support of this contention. I reject each of these arguments for the reasons set out below.

  1. Ms Cogger and Mr Smith submit that:

“New Horizons Enterprises Limited sought with menace and maleficence to require employees to participate in a medical service / irreversible invasive medical procedure/ injection of a schedule 4 poison that fails to prevent contraction or transmission (no protection high risk) under duress and threat to their employment, therefore inciting civil conscription of myself as an employee. This direction requested participating in a medical service/ 26 procedure-specifically by participating in a (claimed covid 19 vaccination) injection of a schedule 4 poison that fails to prevent transmission or contraction of claimed covid virus or any variation there off.”

  1. New Horizons did not make a direction to Ms Cogger to be vaccinated against COVID-19. Rather, New Horizons advised Ms Cogger of the requirements under the Public Health Orders. If New Horizons had allowed Ms Cogger to continue in her role on or after 25 October 2021 it would have been in breach of the Public Health Orders and exposed to the financial consequences of that breach, as would Ms Cogger.

  1. As to the contention that COVID-19 vaccines are “schedule 4 poisons” or have only been conditionally approved, the vaccines referred to in the Public Health Orders are specifically defined as vaccines “approved by the Therapeutic Goods Administration of the Commonwealth for use as a vaccine against COVID-19”.[40]

  1. In regard to the submission that the COVID-19 vaccination fails to prevent transmission or contraction, that argument is irrelevant in circumstances where the Public Health Orders required persons providing disability services to be vaccinated against COVID-19. The grounds on which Mr Hazzard concluded that there was a risk to public health which warranted the making of the Public Health Orders is set out in clause 4 of the Public Health Order No 1. In any event, expert medical evidence accepted by the Full Bench in Mt Arthur[41] established that “COVID-19 vaccines reduce the risk of infection and transmission of the disease, attenuate the symptoms and possible consequences, and generally have only mild to moderate short-term side effects”. While it is true, as Mr Smith submits, that vaccines do not prevent contraction or transmission of the COVID-19, the vaccines do reduce the risks of contraction, transmission and serious consequences.

  1. Ms Cogger relies on s 51(xxiiiA) of the Commonwealth of Australia Constitution Act (Constitution), which provides that “the Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to … the provision of … medical and dental services (but not so as to authorize any form of civil conscription) …” Mr Smith submits that the provision of medical services, including giving a person a COVID-19 vaccine, requires the free will of the person receiving the service, and the person’s free will is removed if the person is coerced or threatened in any way. Ms Cogger, in reliance on the Australian Immunisation Handbook, contends that her free will was removed when she was required to be vaccinated in accordance with the Public Health Orders.

  1. Mr Smith also relies on s 109 of the Constitution to contend that the Public Health Orders are invalid due to inconsistency between the requirements under the Public Health Orders or PH Act (as state legislation) and the Constitution (as federal legislation).

  1. The Commission does not have jurisdiction to determine claims concerning constitutional invalidity. In any event, I do not consider that Mr Smith’s arguments in reliance on s 51(xxiiiA) and 109 of the Constitution have any merit. Ms Cogger retained her choice as to whether or not to be vaccinated against COVID-19. Her free will was not removed or violated as demonstrated by her election not to be vaccinated. A consequence of that choice, however, is that she did not comply with the Public Health Orders and she was not able to continue to work in her role as a Support Coordinator for New Horizons. I acknowledge that the choice for Ms Cogger was a difficult one. However, it remained her decision to make. The point was explained by Beech-Jones CJ (common law) in Kassam as follows:

“Although it was contended that the impugned orders interfere with a person’s right to bodily integrity and a host of other freedoms, when all is said and done the proper analysis is that the impugned orders curtail freedom of movement which in turn affects a person’s ability to work (and socialise). So far as the right to bodily integrity is concerned, it is not violated as the impugned orders do not authorise the involuntary vaccination of anyone. So far as the impairment of freedom of movement is concerned, the degree of impairment differs depending on whether a person is vaccinated or unvaccinated. Curtailing the free movement of persons including their movement to and at work are the very type of restrictions that the PHA clearly authorises.”[42]

  1. There is no inconsistency between the Public Health Orders or PH Act and the Constitution or the Act. Neither the Constitution nor the Act deal with risks to public health or orders which may be made to address such risks. In addition, I do not consider there to be any merit to the contention by Mr Smith that the Supreme Court and Court of Appeal in Kassam applied the “wrong version” of the Constitution.

  1. Mr Smith also contends that the requirement that Ms Cogger be vaccinated against COVID-19 was inconsistent with the correspondence she received from the Prime Minister, Mr Scott Morrison. Ms Smith submits that this correspondence states that “Vaccination is free and voluntary. The Government is not supporting mandatory vaccinations…” I reject this argument. The Public Health Orders do not make vaccination against COVID-19 compulsory. The Public Health Orders require certain workers, including disability support workers such as Ms Cogger, to have had at least one dose of a COVID-19 vaccine or been issued with a medical contraindication certificate to provide disability services after the nominated date. It remained Ms Cogger’s choice as to whether or not she be vaccinated against COVID-19. Ms Cogger found this a difficult choice but it was her free and informed choice to make. The consequence of her choice to not get the vaccination was that Ms Cogger could not provide disability services on or after 25 October 2021.

  1. Ms Cogger and Mr Smith submit that New Horizons’ “committed fraud by seeking to alter the Applicant’s contract with these unlawful and unreasonable medical services/procedure mandates.” I reject this argument. Whilst it is correct that there is no requirement in Ms Cogger’s employment contract for her to be vaccinated against COVID-19, the absence of a contractual term does not matter in circumstances where the source of the prohibition on providing disability services without being vaccinated against COVID-19 or having a medical contraindication is a public health order. Further, there is no suggestion in the evidence that New Horizons sought to alter Ms Cogger’s contract of employment.

  1. Mr Smith contends that New Horizon failed to take any steps or perform any risk assessments, in breach of the Work Health and Safety Act, to ensure that COVID-19 vaccines were safe for its employees. This argument is misconceived. New Horizons was legally obliged to comply with the Public Health Orders. It was the Public Health Orders that required Ms Cogger to be vaccinated against COVID-19, by taking a “vaccine approved by the Therapeutic Goods Administration of the Commonwealth for use as a vaccine against COVID-19”.[43]

  1. Ms Cogger contends that “demanding with threat and menace to produce personal medical information to prove directions were undertaken … contravenes the Privacy Act 1988.”[44] Arguments concerning the interaction between the Privacy Act and other similar COVID-19 related public health orders were considered by Beech-Jones CJ (common law) in Kassam.13 His Honour rejected the contention that the public health orders under consideration in that case were invalid because they violated a person’s right to privacy. His Honour also relevantly held (at [215]) as follows in relation to arguments made by the plaintiffs concerning the Privacy Act: 

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

  1. Ms Cogger relies on s 94H of the Privacy Act as part of her contention that she had a reasonable excuse not to comply with the Public Health Orders. Section 94H of the Privacy Act deals with offences concerning requiring another person to download a COVIDSafe app to a communication device, having a COVIDSafe app in operation on a communication device or consenting to uploading COVID app data from a communication device to the National COVIDSafe Data Store, or taking action against another person because they have not done any of those things. The evidence adduced in these proceedings does not suggest any breach of s 94H of the Privacy Act.

  1. Ms Cogger did not address any of the privacy principles under the Privacy Act in her written or oral submissions. For completeness and because Ms Cogger was not legally represented, I will address privacy principles 3 and 6. Privacy principle 6 provides that an entity must not use or disclose information for another purpose unless the individual has consented. There is no suggestion that New Horizons used or disclosed any information provided by Ms Cogger for a secondary purpose. Ms Cogger elected not to provide any relevant medical or other information to New Horizons. 

  1. Privacy principle 3 requires an APP entity not to collect sensitive information such as medical information about an individual unless the individual consents to the collection of the information. There is no evidence to suggest that New Horizons collected any sensitive information from Ms Cogger. In any event, there is an exception to the requirement of consent if sub-clause 3.4 applies in relation to the information. Sub-clause 3.4 applies if the collection of information is required or authorised by or under an Australian law, which is defined to include an “an Act of the Commonwealth or of a State or Territory”. In the present case, clause 7 of Public Health Order No 1 and clause 11 of Public Health Order No 2, both of which were made under the PH Act, required or authorised the collection of medical information by employers about employees. Accordingly, sub-clause 3.4 of privacy principle 3 applied to Ms Cogger and New Horizons.

  1. Ms Cogger was not able to fulfil the requirements of her role as Support Coordinator from 9am on 25 October 2021 because she did not meet the requirements of the Public Health Orders. There were no alternative duties available for Ms Cogger to undertake.[45] As at 18 November 2021, there was nothing to suggest that the Public Health Orders would or were likely to be varied or rescinded such that Ms Cogger would be permitted to work in the disability sector at any time in the foreseeable future. Ms Cogger had months prior to her dismissal to consider whether she would be vaccinated against COVID-19. She gave no indication to New Horizons that she had any plan or intention to be vaccinated against COVID-19 at any time in the foreseeable future; the indications that were given by Ms Cogger were quite contrary to this. Moreover, if New Horizons had permitted Ms Cogger to continue to provide disability services at any time after 9am on 25 October 2021, it would have been in breach of the Public Health Orders and exposed to financial penalties. There was in effect a new regulatory requirement that attached to Ms Cogger’s employment.[46] Ms Cogger was able to decide for herself whether or not to take the necessary steps to meet this requirement. She decided not to do so. For all these reasons, New Horizons had a sound, defensible and well founded reason to terminate Ms Cogger’s employment.

Lawful and reasonable direction reason

  1. In the absence of a contrary intention, there is a term implied into all contracts of employment to the effect that employees must follow the lawful and reasonable directions of their employer.[47]

  1. A lawful direction is one which falls within the scope of the employee’s employment. An employee is not obliged to obey a direction which goes beyond the nature of the work the employee has contracted to perform, although an employee is expected to obey instructions which are incidental to that work.[48]

  1. A direction which endangers an employee’s life or health, or which the employee reasonably believes endangers his or her life, will not be a lawful order, unless the nature of the work is itself inherently dangerous, in which case the employee has contracted to undertake the risk.[49] Further, the direction must be lawful in the sense that it must not direct the employee to do something that would be unlawful, such as driving an unregistered or unroadworthy vehicle.[50]

  1. The reasonableness of a direction given to an employee is a question of fact and must be judged objectively having regard to all the circumstances, including the nature of the particular employment, the established usages affecting the employment, the common practices that exist, the general provisions of any instrument governing the relationship, and whether the employer has complied with any relevant consultation obligations.[51] It is not necessary to show that the direction in question is the preferable or most appropriate course of action or in accordance with ‘best practice’ or in the best interests of the parties. There may be a range of options open to an employer within the bounds of reasonableness.[52]

  1. A direction lacking an evident or intelligible justification will not be reasonable, but that is not the only basis on which unreasonableness can be established. All the circumstances must be considered.[53]

  1. Mr Handley submits that Ms Cogger was lawfully and reasonably directed to carry out a handover of clients and return New Horizons’ property that was held in her possession multiple times, and that her failure to follow these directions constituted serious misconduct within the meaning of regulations 1.07(2) and (3)(c) of the Fair Work Regulations 2009 (Cth).

  1. Moreover, Mr Handley submits that the handover was required to ensure continuity of service to the clients of New Horizons, who were in need for the provision of critical, ongoing care and support. It is also submitted that the return of property was required urgently as the items were needed by other employees to deliver disability services to its clients.

  1. Mr Smith and Ms Cogger made oral submissions regarding the handover and return of equipment directions. Ms Cogger explained that she was on leave at the time direction to return the equipment was made and was not residing at her home, where the equipment remained, at this time. Ms Cogger submits that she never refused to return the equipment but had difficulty doing so as she was away at the time. Ms Cogger says that the equipment was collected and returned to New Horizons once she returned to her place of residence.

  1. Ms Cogger’s contract did not include an express term requiring her to comply with lawful and reasonable directions issued by New Horizons. I am satisfied, however, that an implied term to that effect formed part of Ms Cogger’s contract of employment with New Horizons.[54]

  1. In the context of Ms Cogger’s impending period of leave from her employment with New Horizons, I am satisfied that the direction to complete a handover and return the IT equipment fell well within the scope of Ms Cogger’s employment with New Horizons.[55]

  1. There is nothing illegal or unlawful about the request to complete a handover nor return the IT equipment via one of a multitude of options given to Ms Cogger to do so.[56] I am satisfied that both directions were lawful and reasonable in the circumstances.

  1. On 22 October 2021, Ms Cogger was first directed to complete a handover document, by 29 October 2021, in relation to the clients she was dealing with in her Support Coordinator role.[57] The same direction was repeated on 26 October 2021.[58] Ms Cogger’s response to this direction was to “officially decline your current request”.[59] Failure to comply with this direction is not excused by reason of the fact that Ms Cogger was shut out of her New Horizons’ compute system on 1 November 2021. Ms Cogger was required to comply with the direction by 29 October 2021. I do not consider that Ms Cogger has provided any reasonable explanation for her failure to comply with the direction to complete a handover document by 29 October 2021.

  1. On 22 October 2021, Ms Cogger was first directed to return her “IT equipment, phone and keys to the office … by COB Friday the 29th” of October 2021.[60] On 1 November 2021, another direction requiring Ms Cogger to return all New Horizons’ property, by 5pm on 2 November 2021, was issued to her in writing.[61] Ms Cogger responded to this second request by stating that she was away on leave and would make arrangements for the collection of New Horizons’ property when she was “back in town next week”.[62] I consider the fact that Ms Cogger was not at home when she was on leave for a period from 1 November 2021 provided her with a reasonable excuse not to comply with the direction issued to her on 1 November 2021 to return New Horizons’ property. However, the evidence does not reveal any reasonable explanation or excuse for Ms Cogger not to have complied with the first direction, issued to her on 22 October 2021, to return New Horizons’ property by the close of business on 29 October 2021.

  1. I am satisfied that Ms Cogger’s refusal to comply with the directions issued to her on 22 October 2021 to provide a handover document and return New Horizons’ property constituted serious breaches of her contractual obligation to comply with lawful and reasonable directions issued to her. The failure to provide a handover document was particularly serious in circumstances where some of the clients Ms Cogger provided services to were vulnerable and New Horizons reasonably required the handover information in order to continue to service those clients.[63] I am satisfied that Ms Cogger’s breach of her contractual obligation to comply with lawful and reasonable directions issued to her gave New Horizons a sound, defensible and well founded reason to terminate her employment.

Conclusion re valid reason

  1. For the reasons given, I am satisfied that New Horizons had valid reasons to terminate Ms Cogger’s employment.

Notification of reason (s 387(b))

  1. Ms Cogger was notified of the reasons for her dismissal in the letter dated 18 November 2021 informing her of the termination of her employment. Ms Cogger was also notified of these reasons in her email communications with New Horizons in the period leading up to that letter. Ms Cogger was on notice from at least the 12 November 2021 show cause email, if not from the earlier correspondence, that her employment would be terminated if she did not have a COVID-19 vaccination or a medical contraindication certificate.

Opportunity to respond (s 387(c))

  1. Ms Cogger was given an opportunity to respond to the reasons for her dismissal in reply to Ms Bradley’s show cause email of 12 November 2021; she had until 17 November (the email appears to mistakenly reference October) 2021 to respond.

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

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

  1. There were not any in-person discussions with Ms Cogger relating to her dismissal. All relevant communications at this time were by email. Ms Cogger did not make a request for a support person to attend any meetings with New Horizons.

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

Warnings of unsatisfactory performance (s 387(e))

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

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

  1. New Horizons is a large organisation. It has human resources specialists and expertise in its human resources team. In all the circumstances, I am satisfied that neither the size of New Horizons enterprise nor any absence of human resource management specialists or expertise had any material impact on the procedures followed in effecting Ms Cogger’s dismissal.

Other relevant matters

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

  1. I take into account the fact that Ms Cogger was employed New Horizons for about three years. Additionally, disregarding the reasons relied upon for the dismissal, there is no suggestion in the evidence of poor performance or misconduct of any kind. The length and quality of Ms Cogger’s employment record weighs in her favour.

  1. Ms Cogger contends that New Horizons failed to consult with her in relation to the introduction of the requirement to be vaccinated against COVID-19. I do not accept that contention. It is clear from the communications to which I have referred in paragraphs [3] to [36] above that New Horizons engaged in extensive communications with Ms Cogger to keep her informed of the requirements of the Public Health Orders, answered her questions (where it could), provided suggestions as to where further information could be obtained, and gave consideration to issues and points raised by Ms Cogger. It must also be remembered that these communications with Ms Cogger took place in an environment in which the NSW Government, not New Horizons, imposed the requirement for persons providing disability services to be vaccinated against COVID-19.

  1. Ms Cogger contends that New Horizons acted unlawfully in placing her on leave without pay after 25 October 2021. I do not accept that contention. From 9am on 25 October 2021, Ms Cogger was not able to carry out the requirements of her role because she was prevented by the Public Health Orders from providing disability services. There were no alternative duties available for Ms Cogger. Because Ms Cogger was not able to carry out the requirements of her role as a Support Coordinator from 9am on October 2021, she had no right to any payment of wages from that time.

  1. I have considered whether it was harsh of New Horizons to dismiss Ms Cogger without notice or any payment in lieu of notice on 18 November 2021. In my view, it was not. New Horizons gave Ms Cogger plenty of notice of what would happen if she did not meet the requirements of the Public Health Orders. Even if New Horizons had given Ms Cogger actual notice of termination, it would not have been obliged to pay her any wages during the notice period because Ms Cogger was not able, by reason of the Public Health Orders, to work in her role of Support Coordinator at any time after 9am on 25 October 2021.

  1. Apart from the matters I have already addressed, there are no other relevant matters for consideration.

Conclusion

  1. After considering each of the matters specified in section 387 of the Act, my evaluative assessment is that New Horizons’ dismissal of Ms Cogger was not harsh, unjust or unreasonable. New Horizons consulted with Ms Cogger in relation to the requirement for her to be vaccinated against COVID-19 if she wished to continue to work in her current role. New Horizons had a valid reason for the dismissal and it afforded procedural fairness to Ms Cogger prior to making a decision to bring her employment to an end. New Horizons was legally obliged to comply with the Public Health Orders. The effect of the Public Health Orders was that Ms Cogger was unable to undertake her role from 9am on 25 October 2021. There were no alternative duties available for Ms Cogger.

  1. I am satisfied that New Horizons’ dismissal of Ms Cogger was not unfair within the meaning of the Act. The application is dismissed.


DEPUTY PRESIDENT

Appearances:

Ms E Cogger and Mr A Smith, for the Applicant
Mr J Handley, solicitor, for the Respondent

Hearing details:

2022.
Newcastle (by videoconference)
5 April.


[1] Hearing Book at p 111

[2] Hearing Book at p 131

[3] Hearing Book at p 115

[4] Hearing Book at p 99

[5] Hearing Book at p 146

[6] Hearing Book at p 147

[7] Hearing Book at p 148

[8] Hearing Book at p 156

[9] Hearing Book at p 156

[10] Hearing Book at p 157

[11] Hearing Book at p 157

[12] Hearing Book at p 161

[13] Hearing Book at p 163

[14] Hearing Book at p 179

[15] Hearing Book at p 183

[16] Hearing Book at p 184

[17] Hearing Book at pp 187-188

[18] Hearing Book at p 189

[19] Hearing Book at p 193

[20] Hearing Book at p 201

[21] Hearing Book at p 203

[22] Hearing Book at p 204

[23] Hearing Book at p 13

[24] Hearing Book at pp 205-206

[25] Abandonment of Employment [2018] FWCFB 139 at [21]

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

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

[28] Ibid

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

[30] Ibid

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

[32] Ibid

[33] s6C Public Health (COVID-19 Care Services) Order 2021 (NSW)

[34] Section 10 of the PH Act

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

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

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

[38] Public Health Order at clause 3, definition of “disability services”

[39] Hearing Book at p 26

[40] Public Health Order No 1, clause 3, definition of “COVID-19 vaccine”

[41] at [29]

[42] at [9] and [11(iv)]

[43] Public Health Order No 1, clause 3, definition of “COVID-19 vaccine”

[44] Hearing Book at p 28 (15)

[45] Hearing Book at p 133

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

[47] CFMMEU v Mt Arthur Coal[2021] FWCFB 6059 (Mt Arthur) at [64]

[48] Ibid at [68]

[49] Ibid at [69]

[50] Ibid at [70]

[51] Ibid at [72] & [95]-[96]

[52] Ibid at [77]

[53] Ibid at [79]

[54] Mt Arthur at [64]

[55] Ibid at [85]

[56] Ibid at [85]

[57] Hearing Book at p 74

[58] Hearing Book at pp 75-77

[59] Hearing Book at p 76

[60] Hearing Book at p 74

[61] Hearing Book at p 82

[62] Hearing Book at p 84

[63] Hearing Book at p 77

Printed by authority of the Commonwealth Government Printer

<PR741905>

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

1

Fiona Howard v Uniting Care Health [2022] FWC 1860
Cases Cited

1

Statutory Material Cited

0

Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320