Emma Frances Sommerville v University of Tasmania

[2022] FWC 1582

[2022] FWC 1582

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Emma Frances Sommerville
v

University of Tasmania

(U2022/2978)

DEPUTY PRESIDENT BELL MELBOURNE, 15 AUGUST 2022

Application for an unfair dismissal remedy.

1. Ms Emma Sommerville (Applicant) made an application (the Application) to the Fair Work Commission (Commission) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the FWAct). The Applicant alleges she was unfairly dismissed by the University of Tasmania (Respondent/University) on 21 February 2022. The University agrees the Applicant was dismissed on 21 February 2022 but denies the dismissal was unfair.

1. The Respondent contends the Applicant was unable to perform her role because she was unable to attend the workplace as required without breaching the Respondent’s “COVID-19 Safety Procedure” (the Policy), which was a policy implemented by the Respondent.

1. Section 390 of the FW Act provides that the Commission may order a remedy if the Commission is satisfied that the Applicant was “protected from unfair dismissal” at the time of being dismissed and the Applicant has been “unfairly dismissed”. It was not in contention, and I am satisfied, that the Applicant was protected from unfair dismissal under s.382 of the FW Act and had made her application within time. The issue in contention was whether she was unfairly dismissed.

1. Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a)   the person has been dismissed; and

(b)   the dismissal was harsh, unjust or unreasonable; and

(c)   the dismissal was not consistent with the Small Business Fair Dismissal Code; and

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

1. The factor in s.385(a) was not disputed and the factors in s.385(c)-(d) were not applicable.

1. Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

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

(b)       whether the person was notified of that reason; and

(c)       whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d)       any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e)       if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f)       the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

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

(h)       any other matters that the FWC considers relevant.”

1. I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[1]

1. At a mention hearing conducted prior to the substantive hearing, I determined it was appropriate to hold a hearing for the matter: s.399. I  also granted permission for the Respondent to be legally represented. The Applicant was represented by Mr Alex Smith (who was not a lawyer and, accordingly, permission was not required).

1. The Applicant gave evidence on her own behalf and tendered numerous further documents upon which she relied. The Respondent called five witnesses, each with a witness statement and associated documents. All witnesses were cross-examined.

Factual findings

1. The Respondent is a leading Australian university, whose main campus is located in Hobart, Tasmania. The Applicant was first employed by the Respondent in about December 2013, initially in the position of Project Officer with the “Integrated Marine Observing System” (IMOS) at the University. In about December 2017, the Applicant’s position changed to Operations Manager with IMOS. I will record at the outset that evidence indicates that throughout her employment, the Applicant was a loyal and hardworking employee, has never been disciplined in any way, nor otherwise investigated or had allegations made against her. She was, in short, a good long-serving employee.

1. The Applicant’s employment contract was signed on 16 December 2013. The substantive terms did not appear to have been changed upon her appointment as Operations Manager. The Applicant’s conditions of employment were also regulated by the University of Tasmania Staff Agreement 2017 – 2021 (Staff Agreement), which applied at the time of her dismissal.

1. Ms Michelle Hempel, Director of IMOS, gave evidence for the Respondent about IMOS and the Applicant’s role. I record my findings, noting that much of it was not controversial or not substantially challenged. The function of IMOS is to operate a wide range of observation equipment throughout Australia’s coastal and open oceans, observing at ocean-basin and regional scales, and covering physical, chemical and biological variables. IMOS is a collaborative, nation-wide research infrastructure funded by the Australian Government.

1. During the period of March to November 2020, staff at the University were required to work from home in response to COVID. The evidence before me was not detailed on this period, although I infer that it applied to many (if not most) University staff. It at least included the Applicant. Throughout 2021, however, it appears that staff were permitted to (if not required to) work in their usual locations.

1. It is a matter of public record that, during 2021, a steadily increasing proportion of the adult population across Australia had received one or more doses of a vaccine in respect of COVID-19. It is also a matter of public record that, in Tasmania, the Premier of Tasmania gave regular public statements on those matters and that State’s government response to managing COVID-19. On 17 May 2021 (as an example among many others), the Premier of Tasmania stated that, by that date, it had been 12 months since there had been a recorded case of COVID-19 in the Tasmanian community.[2] The Premier also stated that 19% of the eligible state population had received their first vaccination.

1. At the beginning of October 2021, the State was free of COVID-19, as reflected by a media update from the Premier of Tasmania on 1 October 2021.[3] That same media update reflected on the different state of affairs elsewhere in Australia, particularly in Victoria, where it was noted that in the previous 48 hours, there were more than 2,500 cases. The media statement provided updates about various “increased” border restrictions, in that case with Victoria, but also described a “plan to be living more openly again by Christmas”. The Premier noted that over 76% of Tasmanians aged 16 years or over had had at least one dose of a COVID-19 vaccine and over 58% with two doses.

1. The Premier also sought to “encourage people” to get vaccinated and stated “vaccination continues to be the best way to protect yourself and your family against COVID-19”. I make note of this statement from the Premier of Tasmania, not because it was unique or because it has special significance coming from the Premier but, to the contrary, it was a statement of a kind made repeatedly by public and health officials across Tasmania and Australia throughout 2021. The correctness of statements to that effect was also one that the Applicant had significant reservations about. I will return to these shortly. 

1. On 17 October 2021, the Premier of Tasmania made an announcement which had particular significance to this proceeding. On that day, the Premier announced that, as at 15 December 2021, the State of Tasmania would be reopening its borders again.[4] Among other matters, the Premier’s statement records that “We know that once our borders are relaxed, COVID will come to Tasmania, make no mistake about that. However, we also know that if you are fully vaccinated, you are 90 per cent less likely to suffer severe symptoms, be hospitalised or die from the disease.” The statement recorded that, at that date, 70% of Tasmanians were fully vaccinated for those 16 years and over, and the Premier expected to achieve an 80% target by early November, based on the fact almost 86% of Tasmanians over 16 had had one dose by that time.

1. Mr Chris Arnold gave evidence for the Respondent. Mr Arnold was the Director of Safety and Wellbeing at the University of Tasmania. He was a member of the University’s Crisis Management and Response Team, which also operated under the acronym CMART. His evidence, which I accept, was that the Respondent considered it necessary to make a decision about whether or not it would introduce a mandatory vaccination policy at the University, or if there was any other way to ensure the safety of all staff, students and visitors going forward, prior to the commencement of semester 1, 2022.  The issue gained importance for the University in light of the Premier’s recent announcement that that Tasmania borders would be reopening.

1. Mr Arnold stated that the University decided to consider mandatory vaccination based on the advice provided by the Australian Technical Advisory Group on Immunisation (ATAGI) that vaccination is the primary safe and effective control measure to protect individuals from contracting COVID-19.

1. Mr Arnold described the University as having a “face to face business model”. His evidence, which I accept, is that some of the particular concerns that prompted the University to consider its own mandatory vaccination policy were that the University has:

“(a) many shared communal spaces such as study spaces and student lounges across the campuses that members of the UTAS community are encouraged to occupy in order to facilitate student learning, engagement and relationship building;

(b) shared communal facilities such as kitchens, bathrooms, libraries and prayer rooms;

(c) a large international student population who would be returning after the borders opened;

(d) a large cohort of people who are medically vulnerable that require support, including:

(i) students with disabilities who attend campus supported by Learning Access Plans;

(ii) over 25% of staff sitting in a high-risk age category, being over 51 years old or above; and

(iii) over 100 Aboriginal and Torres [Strait] Islander individuals, with some also over 50 years old, and other staff with disabilities which are considered high risk categories; and

(e) a high level of integration of UTAS staff and students with high-risk third-party premises, such as the Royal Hobart Hospital and other government departments and agencies with Public Health Directions in place, who, in turn, would interact with the broader UTAS community.”

1. On 10 November 2021, the University conducted a “risk workshop”. A number of senior staff from a range of areas and disciplines in the University attended, as well as risk advisory legal advisors. This workshop was not an open meeting. Slightly under 20 people in all attended.

1. An outcome of this workshop was that the University developed a risk assessment. In relation to working on campus, that was assessed as an “extreme” risk. While not in evidence, the University has an established “risk appetite statement”, which was in place prior to COVID-19.

1. Mr Arnold’s evidence, which I accept, is that various control options were considered in relation to COVID-19. These included “Rapid Antigen Testing” of people before entry and a building ventilation audit. Ultimately, however, the risk assessment concluded that the introduction of a mandatory vaccination policy was the most reasonable and practicable control measure (in the University’s view) to reduce the risks associated with COVID-19, following the opening up of the Tasmanian borders, to acceptable levels.

1. On 23 November 2021, the Vice-Chancellor of the University sent out an email to all staff. That email referred to the Tasmanian border opening on 15 December 2021 and how COVID-19 was already moving through communities elsewhere (NSW was noted). The email stated that “We have a number of controls in place but there is no question that vaccinations are one of our strongest protections. Vaccines have been proven to be safe, effective and lifesaving”.

1. The email referred to the recent risk assessment, which the email stated “found that mandating vaccinations at the University would significantly reduce the risk our community will face here.” The risk assessment was not attached. The email then invited staff to complete an anonymous survey, which the Vice-Chancellor stated would help inform the University’s next steps. The survey would remain open until midnight, Sunday 28 November 2021.

1. The Applicant’s evidence, which I accept, was that at this stage, she did not agree with the proposition in the Vice-Chancellor’s email that “Vaccines have been proven to be safe, effective and lifesaving”. By this time, the Applicant had herself looked at a significant volume of material with a view about COVID-19 and related vaccinations. Among other matters, she had researched or read:

·   The TGA weekly safety reports (which I infer are a reference to the Therapeutic Goods Administration administered by the Australian national government.)

·   The UK ‘yellow card’ system.

·   The systems in place in the United States of America.

·   The database of adverse events in Australia.

·   US scientific research papers.

·    Listening to information from professors and other epidemiologists.

1. The Applicant stated that she had undertaken “countless hours of research”. I have no hesitation in accepting that evidence as accurate.

1. The Applicant’s evidence about the existence of TGA weekly reports is also correct. While there were no specific reports in evidence, it is a matter of public record that the TGA published weekly reports about various matters concerning vaccines for COVID-19.

1. By way of example, it is a matter of public record that the report issued on 18 November 2021 was titled “COVID-19 vaccine weekly safety report”.[5] It gave an updated summary of vaccine doses given in Australia by type. It provided information about known side-effects, and updated data about same. It invited people to report any perceived side-effects or adverse events, including death. The statistics of the side-effects were broken down into specific vaccine type. This TGA report stated the TGA’s view that “The protective benefits of vaccination against COVID-19 far outweigh the potential risks of vaccination.” In connection with a specific side-effect of Myocarditis (inflammation of the heart) associated with “mRNA” vaccines in use, the weekly report stated “Myocarditis is seen much more commonly in people who become infected with COVID-19 than in people who are vaccinated. The Australian Technical Advisory Group on Immunisation (ATAGI) continues to emphasise that the protective benefits of the mRNA vaccines far outweigh the rare risk of these side effects in all eligible age groups.” A link was also provided from that report to the ATAGI website.

1. I have reviewed earlier TGA weekly reports going back to mid-October 2021 and they largely follow a similar format.

1. The Applicant’s evidence, which I accept, is that she reviewed a range of other material, including government websites. They included information on privacy, information from Fair Work, about human rights, and biosecurity. For Tasmanian government websites, her research included the relevant work health and safety regulator website (I infer being WorkSafe Tasmania). It was the Applicant’s view, in addition, that the evidence she had seen showed that the vaccines did not stop transmission of COVID-19 between people.

1. The survey itself was preceded by some statements at the start which largely reflected the Vice-Chancellor’s email, including that “Vaccines have been proven to be safe, effective and life-saving” (a proposition the Applicant did not accept). The survey contained four multiple choice questions and one free-text answer.

1. Question 1 asked “What describes your vaccination status?” Various options were given, including whether a person had received a single vaccination, a double vaccination, was booked for a vaccination, was not booked but intended to be, was unable to be vaccinated, and was unwilling to be vaccinated. Only one answer could be selected. There was no option for not answering this question.

1. Question 2 asked “Which of the options below do you believe the COVID-19 vaccination can provide an important level of protection to?” From the list provided, multiple answers could be given. The list of provided options was “You”, “Your family”, “Your colleagues”, “Students”, “The Community”, “The health care system”, “None of the above”.

1. Question 3 asked “Do you believe vaccination should be a requirement for any of the groups below?” The groups listed were “All students”, “All staff”, “All other people accessing the university campus e.g. all contractors and visitors”, and “I don’t think vaccination should be a requirement for anyone”. Respondees were invited to select as many or few from the four options as they wished.

1. Question 4 asked “If it was a requirement to be COVID-19 vaccinated to access campus, what would concern you?” The options listed were “Vaccine side-effects”, “Personal medical circumstances”, “Access to my preferred vaccination”, “Whether other people on campus are vaccinated”, “Ethical concerns”, “Privacy of information”, “None of the above”. Respondees were invited to select as many or few from the four options as they wished.

1. Question 5 was an open question, that allowed a free-text answer. The question was “Do you have any other safety concerns relating to vaccination?” I will return to the Applicant’s answer to this below.

1. The Applicant had some criticisms of the survey questions. She described them as “leading”, by which it was submitted that questions that began “Do you believe” (c.f., question 3) would produce a skewed outcome by “taking advantage of people’s fear of the claimed COVID-19 virus” in circumstances where no factual data was provided. It was not clear what factual information should have been provided in the Applicant’s view, but even if (for example) it included data about rates and types of adverse effects to vaccinations, I consider the question was reasonable. Implicit in the Applicant’s criticism is a contention that if other facts or data were provided, then different answers might have been given. I am not satisfied that the evidence allows me to draw that conclusion.

1. The Applicant also criticised the survey because it required private medical information to be given. The Applicant’s criticism about the provision of private information has greater force. While the survey was voluntary, it would have been preferrable if question 1 included a response such as “I do not wish to respond”. While the University was, for appropriate reasons, interested in the responses it sought, the requirement to disclose vaccination status or intention may well have caused a small number of people not to answer the survey.

1. Mr Arnold gave evidence of the survey results. The survey received responses from about 2,100 out of around 3,000 staff and 2,000 out of around 20,000 on-campus students. For students, about 76% indicated their approval for the introduction of a mandatory vaccination policy and, for staff, the equivalent response was 83%. The survey results also indicated that 94.9% of respondents were fully vaccinated, as were 88.5% of students.

1. In cross-examination, it was put to Mr Arnold that the survey results were not representative of the wider University population. Mr Arnold disagreed, and said that the large sample size allowed the results to be relied upon. While I noted that it would have been preferrable for question 1 to have been optional, the effect (if any) that question had on the survey results involves speculation. I would note again, as a matter of public record, that the Premier of Tasmania’s announcement on 19 November 2021[6] referred to “first dose vaccination rate of 92%, in fact, slightly more than 92%, our second dose rate is still below 84% for the over 16s”. The Premier’s remarks were clearly in the context of persons aged 12 and above, and the “12 to 15-year age group” were described as “lagging behind”. In this context, the University-wide results of students and staff would appear slightly higher than population results, although this might be expected due to (I infer) the absence of any real numbers, if any, of the 12 – 15 year old group in the University survey.

1. It is simply not possible to make a fully accurate comparison for the purposes of assessing the accuracy of the University’s internal survey, however, taking into account all appropriate adjustments, I am satisfied that Mr Arnold’s assessment that the results reflected the University population of staff and students is essentially fair and correct.

1. The Applicant’s answer to the free-text response in question 5 stated that she did not consent to mandatory vaccination and she identified three main concerns, being “The safety and efficacy of the COVID-19 ‘vaccines’”, “Individual rights and privacy”, and “Ethics and lawfulness”. In addition, the Applicant provided a detail response (over 800 words) elaborating on those concerns. They included:

·   “The University has failed to provide any evidence to back up their statement that justifies “vaccines have been proven to be safe, effective and lifesaving”, nor have they provided the modelling data upon which the assumptions that this will keep us “safe” are based. Have they completed individual risk assessment for each staff member, student, and visitor?”

·   “There are serious safety concerns with these experimental mRNA injections.” Various examples were given.

·   “The efficacy of these COVID-19 injections is also questionable. It is now well established that they do not stop you contracting or transmitting the virus.”

·   “Health advice needs to be tailored to individuals and they need to personally weigh up the risk/benefit considerations.” The vaccines were described as “experimental medical procedures”.

·   Criticism was made of the University’s failure to acknowledge “there have proven to be alternative treatments and preventatives”, such as Ivermectin.

·   Various statements about the lawfulness of a mandate were made, such as the absence in the Staff Agreement requiring forced vaccination as a requirement of employment. A mandatory vaccination was described as discrimination and coercion. Any proposed policy was said to violate various international statements, such as the Nuremberg Code, the Magna Carta, the Constitution of Australia and the Applicant’s medical privacy.

·   The Applicant asked who was going to accept responsibility for liability for damages in the event of an adverse reaction.

1. The Applicant accepted in response to questions during cross-examination that, during this time (and after, noting that the following is contained in a document she sent around 13 February 2022 to the Vice-Chancellor), her views included:

·   The COVID-19 vaccination was “an irreversible invasive medical procedure, by injection with a deadly and incapacitating mechanical chemical device (falsely claimed SARS-COV-2 vaccine or any variation thereof).”

·   “the claimed “vaccine” is not safe nor effective”. And I note in the document prepared by the Applicant dated 13 February 2022, she supported that statement by reference to various examples included in an annexure to that document. The Applicant also agreed that statement reflected her views at the time of the hearing.

1. Mr Arnold explained that he personally reviewed all responses to the survey that were not in support of a mandatory vaccination policy and also made a qualitative assessment of those responses. He identified two main reasons why mandatory vaccination were opposed, which were: health data privacy; and protecting bodily autonomy. I would note that these two grounds broadly encompassed many (although not all) of the reasons proffered by the Applicant set out above.

1. As a result of the health data privacy concerns raised, the University developed an IT program to better protect data. The essence of that program involved the uploading of vaccination certificates to a portal, whereupon verification would be undertaken by a computer. Once sighted, the certificate was deleted. Some certificates required human sighting before deletion.

1. Mr Arnold (and others) made a presentation by CMART to the University Executive Team on 30 November 2021. Mr Arnold explained, and I accept, that following the results of the survey (which he described as “overwhelmingly positive feedback”) and the endorsement of the vaccination procedure from the risk assessment, the University Executive Team made the decision to implement the mandatory vaccination procedure.

1. I noted above Mr Arnold’s evidence that the University, as part of its decision-making process, considered advice from ATAGI. Following the hearing, I requested the University provide me a copy of the advice(s) relied upon. The ATAGI advice provided in response was a copy of an ATAGI update, dated 26 November 2021. Among other matters, that update stated that:

   “ATAGI stresses that vaccination is a key public health intervention to prevent infection, transmission and severe disease due to SARS-CoV-2. ATAGI recommends COVID-19 vaccination for all Australians from 12years of age.”

1. The ATAGI update also provided information about some specific side-effects and risks of the Comirnaty (Pfizer) and Spikevax (Moderna) vaccines. In a section titled “Risks and benefits”, it stated:

“ATAGI reinforces that the benefits of vaccination with Comirnaty (Pfizer) and Spikevax (Moderna) strongly outweigh the risks of myocarditis and/or pericarditis for any age group. ATAGI recommends either vaccine in those eligible. ATAGI will continue to explore potential differences in the rates of adverse events by brand and consider updated advice in the future.

People who are receiving vaccination with Comirnaty (Pfizer) and Spikevax (Moderna) should be aware of this potential complication as part of providing informed consent. People should be made aware of symptoms of myocarditis and/or pericarditis and are encouraged to seek prompt medical attention.” (original emphasis).

1. The ATAGI advice described above was not provided to the Applicant by the University.

1. On 9 December 2021, the introduction of a mandatory vaccination procedure was communicated by the Vice-Chancellor by email to all staff and students. The communication stated that, by 15 January 2022, staff and anyone coming onto campus will be required to be fully vaccinated or have an exemption. The exemptions were not stated in the email. The email noted again the Tasmanian borders would be reopening on 15 December 2021 and that “the risk in our community will increase”. The email referred to the previous risk assessment (although it was not attached) and then set out in some detail why the decision had been made. Those matters included:

·   The consequences of COVID-19 included “serious illness, long-term health issues, and death.”

·   Being fully vaccinated “reduces an individual’s chances of suffering the most severe COVID-19. Of the 7,856 cases that resulted in hospitalisation in NSW between 16 June and 27 November 2021, only 7% were fully vaccinated.”

·   “While there are a range of variables, we know that the vaccination status of people you interact with in the workplace, or at an event, significantly impacts your probability of catching COVID-19 from them. Studies suggest an approximate 20-fold reduction in risk if the person is vaccinated rather than unvaccinated, whether you yourself are or not.”

1. The Vice-Chancellor’s email referred to the staff survey (which it said showed “overwhelming support”) although it expressly recognised that a number of staff and students have taken a different view. It stated that for staff who are not vaccinated and do not meet the exemption, the University will look to find alternative arrangements, such as remote working, but also said “in many cases, this is not likely to be possible due to the nature of the work we do at the University.” The email contained further links to the University’s “COVID-19 Vaccination Guide”, and to sites on how to get vaccinated.

1. Also on 9 December 2021, the Applicant received an email from her manager at IMOS. That email asked for anyone to come and chat to her if they were not intending to be vaccinated. The Applicant did exactly that. On 15 December 2021, she spoke to her manager and voiced her concerns about the vaccine requirements and also said she would be willing to work at home. During that discussion, the Applicant was told that Ms Heupel would be meeting with a committee that was being set up to consider requests for alternative working arrangements.

1. The announcement in the Vice-Chancellor’s email sent on 9 December 2021 was not the final version of the policy that was implemented. By at least 17 December 2021, a draft of that policy had been prepared, as it was circulated to the various Health and Safety Representatives. Consultation was also undertaken with relevant unions. While that draft policy was not sent with any restrictions, it was not published openly within the University and the Applicant did not receive it.

1. On 20 December 2021, the Applicant met with her manager and Ms Heupel. Following that meeting, her manager sent the Applicant a text message stating:

“Hi Emma, Some info from the COVID meeting Michelle & I attended today:

- UTAS is still developing the response process
- Key message is to submit the form to advise intent
- If opt out or do not submit form, there will be no official response/action until 15^th Jan
- Until 15th Jan, all I can do is check-in to see if you have all the information you need to make an informed decision & advise that permanently working from home is unlikely to be approved.

Feel free to give me a call if you want to discuss further. Kind Regards, ….”

1. The Applicant was on leave from 20 December 2021 to 4 January 2022.

1. On 23 December 2021, the University, by its Chief People Officer, Ms Jill Bye (who was called as a witness for the University), approved the policy foreshadowed in the Vice-Chancellor’s email on 9 December 2021. The approval date is recorded as being 23 December 2021 and while it did not appear to have a title as such, it has been referred to without any evident confusion as the “COVID-19 Safety Procedure” – this is the same “COVID-19 Safety Procedure” that, for convenience, I called “the Policy” above. The Policy was slightly under 5 pages in length. It is not entirely clear how, or if, staff (and the Applicant in particular) were specifically notified of the Policy at the time of its release, although I note that the Applicant was later sent a link to it.

1. While in a longer form, the Policy in effect faithfully reflected the earlier statement by the Vice-Chancellor that staff and students were required to be vaccinated by 15 January 2022. A difference was that the grounds for an exemption from the vaccination requirement were now further explained, as were the processes for managing the Policy. The exemptions listed were: medical grounds; religious belief; and inability to obtain a vaccination by the required date. Requests for exemptions were to be made in writing, containing detailed reasons and supported by evidence.  The Policy provided elaboration on these grounds.

1. It was put to Mr Arnold in cross-examination that it was “near enough to impossible to obtain an exemption from any medical practitioner in Australia”. Mr Arnold disagreed and stated that his position required him to sit on the University central medical exemption review panel, and that he had seen numerous medical exemptions go through. While the timing of those exemptions was not clear, I accept that the University has approved multiple exemptions to the Policy (at least on medical grounds).

1. The Policy has a section titled “Non-compliance”, which stated that, for staff, non-compliance without reasonable excuse may lead to disciplinary action, including termination of employment. In relation to privacy, the Policy stated that all information collected about an individual’s vaccination status or other health information would be collected, used, disclosed and stored in accordance with the University’s Privacy Statements, the Personal Information Protection Act 2004 (Tas) and the Privacy Act 1988 (Cth).

1. On 27 December 2021 and 4 January 2022, the University sent emails (which appear to be distributed to a wide staff group) to the Applicant. The second of those emails was signed by Mr Matt Smith, as acting for Mr Arnold. Among other matters, those emails urged the recipients to upload their proof of vaccination to the dedicated service portal by 15 January 2022.

1. On 5 January 2022, the Applicant replied to Mr Smith’s email. Her email contained a list of questions regarding privacy concerns, including seeking information about the purpose of collection, the consequences if the information was not provided, the use or disclosure of any vaccination information, and how the Applicant might access that information including possible complaints about breaches of privacy obligations.

1. On 6 January 2022, a WHS Advisor from the Safety and Wellbeing unit of the University replied to the Applicant’s email regarding the privacy matters. That email referred generally to the University’s “COVID-19 vaccination guide” (and provided a link). It also specifically stated that no vaccination certificates were stored, it referred to the artificial intelligence program (described briefly above), that such information would be “deleted from our server”, and that the University will “not use this information for any other purpose, nor disclose it to any third parties.”

1. That response was not satisfactory to the Applicant, who replied on 7 January 2022 and stated that she could not find anything about how the “collection is required or authorised by law” and asked for clarification about that. She also asked for a number of additional matters, which were:

·   A copy of the risk assessment

·   A copy of her individual risk assessment (although she stated she did not believe it existed as she had not been consulted)

·   A copy of the criteria the committees within each College and Division will be using to assess alternative arrangements.

1. On 10 January 2022, the Applicant then commenced a period of medical leave. At the time, she advised her manager she would be on leave until 31 January 2022.

1. The Applicant did not get immediate responses to her earlier email sent on 7 January 2022 and she sent follow up requests on 12 and 13 January 2022.

1. Separately, the University sent out a number of widely-distributed and individualised staff emails, including on 13 January 2022, 14 January 2022, 18 January 2022 and 21 January 2022. The emails contained a variety of information about the vaccine mandate, including updates, as well as reminders about the deadline of 15 January 2022. It had also sent out text messages on 7, 13 and 18 January 2022.

1. The Applicant describes these as coercive, bullying and harassment (in part from their repetition, in part from their content, and in part that the Applicant was on leave). I do not consider that characterisation correct, although there was some repetition in the content of those communications.

1. Some of the correspondence was plainly appropriate, and was directed to the Applicant personally. For example, the email on 18 January 2022 recorded that the Applicant had not complied with the Policy and it directed her to do so – a revised date of 20 January 2022 was provided. I describe this correspondence as ‘appropriate’ because where (as here) the University had made an earlier direction, it would not be appropriate for the University to ignore non-compliance with that direction if it was intending it to be complied with.

1. The email from the University dated 18 January 2022 also contained a link to the Policy. The Applicant’s evidence, which I accept, is that this was the first time she had seen the Policy.

1. I record here that the University had also established a number of internal decision-making and advisory processes in respect of its COVID-19 response. One such body was the Academic Division COVID Management Committee (Committee), which was chaired by Prof. Martin Grimmer. Professor Grimmer gave evidence for the University. Among other matters, he described the function of the Committee was to ensure the University’s vaccine mandate was applied consistently and fairly, to consider short and long-term requests for flexible work arrangements, to consider requests for the medical exemption referral panel, and to ultimately consider the continuing employment of staff who did not comply with the Policy and whose position was unable to be done remotely. The Committee did not have ultimate decision-making authority – that authority, in the present case, was with the University Executive Team and the Chief People Officer.

1. On 21 January 2022, the Committee met, when it considered the Applicant’s circumstances (together with other staff members). At this stage, it was noted that the Applicant had not yet updated her vaccination status on the portal and the Committee resolved to follow up with the relevant manager at IMOS to assess whether the Applicant’s role could be performed from home indefinitely. That follow-up was initially done by Ms Leani Viljoen, Associate Director within the People and Wellbeing group (who was called to give evidence for the University). The Committee also endorsed the position that, unless circumstances changed, the Applicant ought to receive a letter indicating that her employment was under review on about 28 January 2022.

1. The Committee again met on 24 January 2022. The Applicant’s sick leave was noted. Nonetheless, it remained unchanged that the Applicant would be sent the letter foreshadowed in the previous Committee meeting. I also note that the Committee continued to meet, reasonably frequently, in relation to its functions and these meetings included consideration or updates about the Applicant’s case.

1. On 28 January 2022, the Applicant received an email from Ms Bye, in her capacity as Chief People Officer for the University. That email summarised parts of the earlier correspondence sent, to the effect that the Applicant had not provided relevant information as to her vaccination status and the University had concluded she was non-compliant with the Policy. The email stated that she may be unable to perform the inherent requirements of her role. The email also stated that the University was reviewing her employment, which may include termination of employment. The Applicant was requested to respond by 3 February 2022. Ms Viljoen explains that the Applicant was given until 3 February 2022 on account of her sick leave.

1. On 31 January 2022, the Applicant’s evidence (which is not contested) was that she extended her medical leave until 10 February 2022. It appears that this was communicated to the Applicant’s immediate manager, together with a further follow-up about the details that the Applicant had first sought on 7 January 2022.

1. On 31 January 2022, Ms Viljoen replied to the Applicant’s email dated 7 January 2022. Putting aside the apology for the delay (which noted the original recipient was on leave), the email stated that the “decision to mandate vaccinations was undertaken considering an organisational level risk assessment – this is necessary (and required by law) due to the decision affecting our entire employee, student and community cohort (which contains vulnerable people).” A “summary” of the overarching risk assessment was provided (Risk Assessment Summary). The email also stated that each College or Division Committee will consider the individual situation for employees who may not meet the vaccination requirements, including the requirements of the role to undertake any in-person activities.

1. The Risk Assessment Summary set out various matters, including the University’s lack of appetite for uncontrolled risk and the University’s assessment that there was an “extreme” inherent risk rating of exposure to infectious persons (symptomatic or asymptomatic) in the workplace, in communal areas, for events on and off campus, and in student accommodation. The risk rating was arrived at after considering other mitigating controls, such as social distancing, training, signage, and hygiene requirements. The Risk Assessment Summary approved of the following propositions:

“1. COVID infections expose people to serious illness which may lead to death;

2. variants such as Delta and Omicron have increased risk profiles;
3. current vaccines are effective at preventing symptomatic infection;
4. current vaccines substantially reduce the risk of serious illness or death;
5. current vaccines are safe, and any adverse effects are usually mild;

6. an unvaccinated person is more likely to acquire COVID infection from another unvaccinated person rather than a vaccinated person;

7. while other control measures (e.g. mask wearing, social distancing etc) can reduce the transmission of COVID the effectiveness of such measures depends on people applying them consistently or correctly and do not provide a substitute for the constant protection offered by vaccines;
8. vaccination is the most effective and efficient control measure available to combat the risk posed by COVID; and
9. even with high vaccination rates in the community, COVID will remain a significant hazard in any workplace where people interact or use the same common space regularly or intermittently.”

1. At this point in time, it was the Applicant’s view that the University had failed to consult with her with any form of transparency and provided no scientific or medical evidence that addressed her communicated concerns. She reviewed the Risk Assessment Summary and concluded that the absence of any data in it as support vitiated the conclusions in that document.

1. On 3 February 2022, the Applicant wrote by email to the Vice-Chancellor, copying in Ms Bye. The cover email stated her response to the COVID-19 Vaccination Mandate was attached and that she required a response within 72 hours. The attached document was a 2-page document of the same date, headed “Notice to Principal is Notice to Agent, Notice to Agent is Notice to Principal” (the 3 February notice).

1. The 3 February notice is unclear in parts. However, it purports to establish a framework in which various contractual rights and obligations are established upon the giving of the notice and, at the least, a failure to respond to it. The response date stipulated was 8 February 2022, failing which the notice stated “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 deem fit.” (original emphasis).

1. The 3 February notice set out a number of legal bases that each purported to invalidate the Policy requirement that the University was seeking to apply. They included references to the Privacy Act 1988 (Cth), references to parts of the Australian Constitution, and the absence of a “Biosecurity Order” under the Biosecurity Act 2015 (Cth). The notice stated that the COVID-19 vaccination was an “irreversible invasive medical procedure that fails to deliver the claimed benefits of immunisation.” The notice demanded “valid proof of claim with physical material evidence” that the University’s mandate was lawful and were based on the “Constitutional guarantees” referred to.

1. On 4 February 2022, the University responded, in a very brief email, which included the reply that “The University is very confident that the vaccine mandate is lawful and reasonable.”

1. On 8 February 2022, the Committee again met, where it considered the Applicant’s circumstances (among other staff members). At that meeting, the Committee was informed of the Applicant’s response to the email sent to her on 28 January 2022. The Committee had previously concluded that the Applicant’s role required an on-site presence. Based on the correspondence, it also formed the view that the Applicant did not intend to become vaccinated. The Committee concluded it was appropriate that a letter should be sent to the Applicant indicating that the termination of her employment was being considered and she would have an opportunity to provide information as to why that should not occur.

1. On 9 February 2022, the Applicant sent a second notice to the Vice-Chancellor (the 9 February notice). It was essentially identical in form to the 3 February notice, save that the required response date was now 11 February 2022. The Applicant states, and I accept, she did not receive a response to her second notice.

1. Also on 9 February 2022, Ms Bye (who was adopting the recommendation of the Committee) sent an email to the Applicant enclosing a letter titled “Review of employment”. Among other matters, the letter referred to the email from 28 January 2022 and the Applicant’s response to the effect that the vaccination direction was not lawful and reasonable. The letter stated that the Applicant was non-compliant with the Policy. The letter stated that, as the Applicant was non-compliant, she was unable to attend any University premises and she lacked the capacity to fulfil the inherent requirements of her role. She was advised that the University was now considering terminating her employment and was required to show cause by 11 February 2022 why her employment should not be terminated.

1. On 11 February 2022, the Applicant sent Ms Bye a document titled “Statement of Declination of Offer of entering into the University of Tasmania COVID-19 Safe Procedure” (the 11 February statement). The 11 February statement raised eight matters, and was slightly over a page long. I will not repeat them all but, in summary, the 11 February statement: clearly rejected any consent by the Applicant toward the Policy; stated that neither her employment contract or the Staff Agreement authorised medical procedures; stated that University policies do not form part of the Staff Agreement; requested the University to cease harassing and discriminating against her; reiterated her privacy concerns; referred to the demands constituted by the 3 February notice and 9 February notice that had not been complied with; and referred to a further “Final Notice and Criminal and Civil liabilities letter” that would be separately sent to the Vice-Chancellor.

1. The 11 February statement made specific points about the Applicant’s ability to work from home. She stated that she was “willing and able to continue to work from home and can undertake all the inherent requirements of my role”. In support of this, the Applicant said:

“- Working from home for ten months during 2020 at the request of the University.

Additionally, this was after I had returned to work for one week after 13 months maternity leave and had no time for face-to-face catch-ups with my IMOS Office colleagues.
- An IMOS Office colleague was approved to work from interstate in December 2021.
- The Annual IMOS Meeting scheduled for March 2022 was changed to be an online event and all other meetings and work can be done electronically and offsite of University premises.”

1. On the question of whether the Applicant’s role could be performed remotely, the evidence from the University was primarily given by Ms Heupel, which I summarise below.

1. At the time of the Applicant’s dismissal, she was working on a part-time basis, 3 days per week after returning from maternity leave in March 2020. Aside from the period of COVID-19 lockdown when the entire IMOS staff worked from home, the Applicant spent all 3 days on-site. The Applicant was job-sharing her role with another staff member who was present the remaining 2 days of the week. This meant that there was always someone on-site in this role.

1. An aspect of the Applicant’s role that could only be performed on campus (or on-site if the work was at another location) concerned representing IMOS at various fora. This function was described in her position description. Ms Heupel elaborated on this matter and her evidence was that the function requires the Operations Manager to be able to participate in and attend these events to engage with members of the IMOS community. This includes IMOS partners, government and industry stakeholders, IMOS Facility leaders, and researchers. She said these functions are typically held face to face. A particular example given was the ‘Annual Planning Meeting’, where in-person attendance was required for it to be most effective.  While it does not appear to me that such events were especially frequent they were, in IMOS’ view, important.

1. More generally, the IMOS Executive Group had concluded that IMOS staff must be present in the office a minimum of 3 days per week in order to meet operational needs and to facilitate the effective and efficient functioning of the office. Among other matters, this was due to its view of the “interconnectedness” of various positions within the IMOS office and the need for thorough information sharing. There was a period when the entire IMOS staff worked remotely during when the University when into “shutdown” due to its response to COVID-19. Ms Heupel stated that “a lot of the things that we would normally do, some of which is travelling and meeting with members of the community, meeting face-to-face with members of the community, didn’t happen. We have a very small team here in the IMOS program and so all of us working from home meant that we ended up being fairly disconnected. We did try to do some virtual meetings but you lose a lot of the interactions and the engagements that occur when we have people in the office and can ask quick questions of each other when issues arise.”

1. Since the Applicant’s dismissal, the Operations Manager role continues to be performed on a full-time, on-site basis. The claim that a different staff member was given differential treatment was rejected (and I accept that rejection).

1. Ms Heupel was challenged in part on some of these matters. It was put that there was no real difference between being in the office or at home during the period of March to November 2020, when all staff were required to work at home. While Ms Heupel accepted that everyone performed their tasks, that was qualified to the effect that it was within the limitations of the COVID restrictions in place and she did not agree they functioned “normally”. She said they got through the situation as best they could given that they weren’t used to operating that way and it’s not how they normally ran the office. I accept Ms Heupel’s evidence.

1. Professor Grimmer’s evidence, which I accept, is that the Committee considered the views of IMOS in relation to whether the Applicant could work fully remotely or not. The Committee endorsed the view that the Applicant could not perform fully remotely.

1. On 13 February 2022, the Applicant consulted her doctor and, as a result, extended her medical leave until 16 February 2022. She also updated her manager about that situation.

1. On 14 February 2022, as the Applicant had foreshadowed in her 11 February statement, she also sent a further notice to the Vice-Chancellor, headed “Notice to Principal is Notice to Agent, Notice to Agent is Notice to Principal” (the 14 February notice). While in similar form to the 3 February notice and the 9 February notice, the 14 February notice was more comprehensive, being about four and a half pages for the substantive notice and containing a further ten pages of annexures. It is not necessary to set out the full differences.

1. The 14 February notice states more forcefully a number of the Applicant’s concerns and beliefs. For example, it describes the requirement for the COVID-19 vaccination as being “in direct contradiction to The Constitution by civilly conscripting employees, customers and the Australian public in general by means of threat, violence and menace to be coerced into an irreversible invasive medical procedure, by injection with a deadly and incapacitating mechanical chemical device (falsely claimed SARS-COV-2 vaccine or any variation thereof).” The notice stated that “Further evidence supporting the claimed “vaccine” is not safe nor effective is provided at Attachment B.” Annexure A of the notice contained extracts of various laws, namely the Constitution of Australia, the FW Act, the Work Health Safety Act 2011 (Cth), the Privacy Act 1988 (Cth), the Biosecurity Act 2015 (Cth), the Criminal Code Act 1924 (Tas), and the Anti-Discrimination Act 1998 (Tas).

1. On 15 February 2022, the Committee was provided with a verbal summary of the Applicant’s response to the show cause letter. It was noted that the Applicant was threatening various legal actions in civil and criminal jurisdictions and she did not express an intention to be vaccinated. The Committee was informed of a legal review of the Applicant’s various claims, and that review did not accept the Applicant’s legal contentions. The Committee concluded that the Applicant did not intend to comply with the Policy and that her role required on-site presence. It made a recommendation that the Applicant’s employment should be terminated because she could not perform the inherent requirements of her role while unvaccinated.

1. On 16 February 2022, the Applicant again consulted her doctor and, as a result, extended her medical leave until 20 February 2022. While it is not clear, I infer that this was communicated to the Applicant’s manager consistent with her previous practice.

1. On 16 February 2022, the University acknowledged receipt of the Applicant’s 14 February 2022 notice and stated that further advice would be provided regarding the outcome of the show cause letter on 18 February 2022. On 18 February 2022 by a further email, that was revised to a date the following week.

1. On 21 February 2022, the Applicant was sent a letter giving notice that her employment with the University was terminated effective on that date. The letter referred to earlier correspondence from the University on 28 January 2022 and 9 February 2022, and the responses from the Applicant on 11 and 14 February 2022. The letter stated the Applicant was not compliant with the Policy requirements and that as an inherent requirement of her role required access to University premises, her employment was being terminated because she was unable to meet those requirements. The Applicant was to be paid notice in lieu.

Consideration

1. An initial question I must determine is whether the direction the University gave the Applicant – namely, compliance with the Policy that required vaccination against COVID-19 for any on-site work – was a lawful and reasonable direction? It being clear that the direction was not complied with, a secondary consideration is whether the Applicant’s role required her to be on-site, such that the Applicant was unable to perform the inherent requirements of her role. A tertiary set of questions then relates to the important steps concerning the specific matters I must consider under s.387 of the FW Act that might render the dismissal unfair.

1. The Applicant filed written submissions, as well as submissions in reply. Those submissions raised a significant number of matters. They also include reference to a number of documentary matters that I have not described as part of the factual summary above. It is simply not practicable to set them all out in full, although I will turn to aspects of them in further detail below. The Applicant contends that there was no “lawful and reasonable” direction given and that the dismissal was otherwise unfair. She advances many grounds in support. They include (in summary):

1. There is nothing in her employment contract or the Staff Agreement permitting or requiring the Applicant to become vaccinated against her will.

2. The Policy was not lawful and reasonable, because the University failed to adequately consult. It was also put that the risk assessment undertaken was deficient and outdated, and the staff survey inadequate. The University failed to undertake a proper risk assessment at all, including as to the claimed efficacy and safety of the COVID-19 vaccines.

3. The Policy was also said to not be lawful and reasonable for other factors, such as that it constituted “coercion”.

4. Whatever purported power the University had to issue directions consistent with the Policy, those powers were subordinate to a range of laws. Those laws included the various laws set out in the 14 February notice (above), among others.

5. The University had failed to comply or properly respond to any of the notices sent by the Applicant, which entitled her to opt out of the Policy requirements.

6. The Applicant was able to work from home, with reasonable adjustments.

1. As a significant number of the Applicant’s complaints were made against the source of the University’s power to issue lawful and reasonable directions, it is useful to explain that concept first.

1. The duty to obey lawful and reasonable directions was considered recently by the Full Bench of the Commission in CFMMEU v Mt Arthur Coal Pty Ltd[7] (Mt Arthur Coal) at [64] – [81]. I adopt that analysis.

1. In summary, the duty to obey does not require a written or express term of the employment contract to that effect but, rather, the duty to follow a lawful and reasonable direction is implied into all contracts of employment. The fact that the term is implied, as opposed to being expressly written (although it often will also be expressly stated), does not affect its legal efficacy.

1. The implied term can be excluded by an express term in the employment contract. In the Applicant’s case, there was no such exclusion. To the contrary, in fact, there was an express term in the Applicant’s employment contract that University Ordinances and Policies “will be binding upon you according to their terms as may be varied from time to time.” I will return to this below, as it raises some different considerations.

1. The terms of the employment contract may be affected by statute or instruments such as enterprise agreements. In the Applicant’s case, the Staff Agreement did not otherwise affect the University’s substantive capacity to issue lawful and reasonable directions or to make policies that would otherwise need to be complied with by reason of a staff member’s contract of employment. (I note, however, the Staff Agreement did impose various consultation obligations, which might impinge on whether a direction to follow a direction was lawfully and reasonably given).

1. It is for this reason that the Applicant’s complaint that neither the Staff Agreement nor her employment contract expressly authorises a form of vaccination mandate misunderstands the University’s power to give such directions. The ‘unwritten’ contract terms implied by law supply that power. The more significant question is whether the direction was a “lawful and reasonable” direction.

Lawfulness

1. The direction by the University was aimed at improving overall health and safety at the University, in anticipation of a pending opening up of the Tasmanian border and a concomitant surge in COVID-19 cases, involving a product that was lawful.[8] Prima facie, the direction was “lawful”.

1. The Applicant challenged the lawfulness of the direction to comply with the Policy on a number of bases. It was not entirely clear how some of these were intended to be expressed.

1. It was stated that the University direction contravened s.51(xxiiiA) of the Constitution which, among other matters, authorises the Parliament to make laws with respect to the provision of “medical and dental services (but not so as to authorize any form of civil conscription)”. The Applicant’s contention, as I understand it, is that any form of vaccination mandate is invalid against that constitutional provision, presumably as a form of civil conscription.

1. This argument misunderstands the operation of s.51(xxiiiA). First, s.51(xxiiiA) is a source of legislative power for the Commonwealth Parliament. The exclusion for civil conscription narrows the scope of that source. But regardless of the scope of that exclusion, s.51(xxiiiA) does not, itself, prohibit the making of laws by any State on that subject matter and nor does it affect the common law of contract from where (in the case before me) the University’s power to issue a lawful and reasonable direction to its employees springs. I would make a similar observation with the other sources of legislative power under s.51 of the Constitution, so far as I understand the Applicant relies on them.

1. Perhaps on stronger ground, the Applicant states that s.109 of the Constitution might have the effect of rendering invalid a State law to the extent of the inconsistency. So much is accepted, although it does not take matters further. The University was not relying on a State law – it was relying upon the common law of contract – so no inconsistency between a Commonwealth and State law arises.

1. The common law can be directly affected by a Commonwealth law (or a State law) according to the terms of that law. No recourse to s.109 of the Constitution is required, unless there was also a conflict between Commonwealth and State law. The Applicant stated that a number of laws invalidated, or somehow removed, the University’s contractual rights. Those statutes at least included the Work Health Safety Act 2011 (Cth), the Privacy Act 1988 (Cth) and the Biosecurity Act 2015 (Cth).

1. The Work Health Safety Act 2011 (Cth) claim referred to ss.31 and 32 of that Act, which are directed at the (criminal) offences for a person with a health and safety duty who, without reasonable excuse, engages in conduct that exposes a relevant individual to serious illness or death or fails to comply with the duty. I note that s.19 of that Act establishes various “primary duties” to ensure, so far as is reasonably practicable, the health and safety of workers. The Applicant’s contention appears to rest on the premise that the vaccines have side-effects, sometimes serious, and accordingly a direction to be vaccinated is inherently exposing a person to a risk of those side-effects. The Applicant’s case falls a long way short of establishing any such breach of duty, particularly in circumstances where the directives given were aimed at minimising different risks (namely, the consequences of COVID-19 without vaccination).

1. For the Privacy Act 1988 (Cth), the Applicant relies on Australian Privacy Principle (APP) 3.3, which states:

“3.3 An APP entity must not collect sensitive information about an individual unless:

(a) the individual consents to the collection of the information and:

(i) if the entity is an agency—the information is reasonably necessary for, or directly related to, one or more of the entity’s functions or activities; or
(ii) if the entity is an organisation—the information is reasonably necessary for one or more of the entity’s functions or activities; or

(b) subclause 3.4 applies in relation to the information.”

1. The Applicant’s emphasis is on APP 3.3(a) and the requirement for individual consent. The heart of that argument proceeds on the basis that where an employee is being asked or directed to provide that information by an employer, then there is necessarily no consent. I disagree with that premise. The Privacy Act applies to a great range of activities, including but not limited to employment. A starker example might be a person (a patient) seeking non-emergency medical services from a health clinic. That health clinic will require sensitive information about a person and, if it is not provided, may not provide health services. It would be erroneous to say that the patient had no consent in providing that information, because they were presented with a false choice of obtaining medical services or not at the expense of providing private information. Likewise, an employee given a lawful and reasonable direction by an employer has a choice whether to provide the information. I accept that the choice may be a difficult one, particularly where the employee believes the exercise of that choice might ultimately lead to the end of their employment, but they have a choice.

1. The limits imposed by the APP 3.3(a) arise not from the requirement of consent but whether the information is “reasonably necessary” for one or more of the entity’s functions or activities or because one of the provisions in subclause 3.4 apply. I am satisfied the information sought was reasonably necessary, as without it there would be little effective means of determining whether the requirement to be vaccinated had been complied with.

1. In any case, I am satisfied that APP 3.4 applies, which does not require consent. APP 3.4 applies to the collection of information required or authorised by or under an “Australian law”. An “Australian law” is defined to include a “rule of common law or equity”. I consider this applies to common law contractual obligations, which include express or implied contractual terms, such as the obligation to comply with a policy or the implied duty to obey a lawful and reasonable direction. That of course requires that there is a contractual obligation to comply with a policy or there was a lawful and reasonable direction that was given. I turn to these below.

1. In relation to the Biosecurity Act, as best as I understand that argument, it rests on a contention that the only power to make directives regarding a range of matters touching on COVID-19 throughout Australia is contained in, or confined by, the Biosecurity Act. As I then understand the reasoning, that legislation operations to the exclusion of State and Territory legislation (and, I infer, the common law of contract). This argument was considered recently by Justice Lee, in the context of NSW public health orders, and was rejected.[9] I, too, reject it in the context before me and respectfully adopt his Honour’s observations.

1. The Applicant appears to contend that the COVID-19 vaccines are a “poison”, because they are listed in Schedule 4 of Part 4 of the Poisons Standard February 2022 (Cth). That standard was made under s.52D of the Therapeutic Goods Act 1989 (Cth). The Poisons Standard February 2022 states that “Schedule 1 to this instrument contains the Standard for the Uniform Scheduling of Medicines and Poisons No. 35, otherwise known as the current Poisons Standard.” As that description indicates, the Poisons Schedule is not limited to poisons in the sense used in common parlance but also lists various types of medicine, whose administration might be harmful if not taken properly. A general description (albeit not the legal description) given to Schedule 4, which contained in the standard itself, is:

“Prescription Only Medicine, or Prescription Animal Remedy – Substances, the use or supply of which should be by or on the order of persons permitted by State or Territory legislation to prescribe and should be available from a pharmacist on prescription. ”

1. I reject any imputation sought to be made from the fact that the COVID-19 vaccines are listed (along with many other well-known medicines) in Schedule 4 of the Poisons Standard.

1. As to the claim of “discrimination”, I consider it misplaced. This argument appears to rest on the contention that there is discrimination against unvaccinated workers when compared to vaccinated workers that enlivens (as I understand matters) s.351 of the FW Act and the Anti-Discrimination Act 1998 (Tas). In each case, the argument (appears to) assert that not being vaccinated is a disability. Under the Tasmanian act, the term “disability” has an extended meaning as follows:

“disability means any of the following that presently exists, previously existed but no longer exists, may exist in the future, whether or not arising from an illness, disease or injury or from a condition subsisting at birth:

(a) a total or partial loss of the person's bodily or mental functions;
(b) total or partial loss of a part of the body;
(c) the presence in the body of organisms causing or capable of causing disease or illness;
(d) the malfunction, malformation or disfigurement of a part of a person’s body;
(e) disorder, malformation, malfunction or disfigurement that results in the person learning differently from a person without the disorder, malformation, malfunction or disfigurement;
(f) a disorder, illness or disease that affects a person’s thought processes, perceptions of reality, emotions or judgment or that results in disturbed behaviour;
(g) reliance on a guide-dog, wheelchair or other remedial or therapeutic device;”

1. I do not consider that being unvaccinated is a disability on any of these definitions or more generally. Discrimination laws do not operate on discrimination at large, such as “vaccinated versus unvaccinated”. They apply to specific matters, frequently described as “attributes”. It follows that I do not consider that the University’s direction was unlawful discrimination of any relevant kind.

1. I am satisfied that the University’s direction was lawful.

Reasonableness

1. One ground, which was prominent in Mt Arthur Coal, concerned consultation. The Applicant’s primary criticism concerned consultation obligations under the Work Health and Safety Act 2011 (Cth) (“WHS Act”) (which I note was in substantially the same terms as the Work Health and Safety Act 2012 (Tas)).

1. The WHS Act required the University, as far as is reasonably practicable, to consult about the proposed changes. In doing so, the University was required to share “relevant information” about the matter, to give workers an opportunity to express their views and contribute to the decision-making process, to take into account such views, and to be advised on the outcome in a timely basis.

1. I am satisfied that the University met those obligations in relation to the Applicant and, it would appear, more generally. In doing so I also make the observation that the matters under consideration did not arise in a vacuum. By October 2021, it is clear that Tasmanians had received a significant volume of information regarding the Tasmanian government’s response to COVID-19. That included substantial publicity about vaccination for COVID-19, which appears to reflect the fact that a significant number of Tasmanians had, by that stage, received one or more doses of a COVID-19 vaccine.

1. On 21 October 2021, the Premier of Tasmania announced the Tasmanian borders would be opening upon by mid-December 2021. Following an internal workshop at the University, the Vice-Chancellor sent an email to all staff foreshadowing a COVID-19 vaccination mandate. The matters raised were not particularly complicated, although to some I accept they were deeply contentious. A mandate for vaccination meant just that – it would be mandatory. The proposed change was clearly stated. The email foreshadowed exemptions would apply, on medical and “other” grounds and, although they were not spelled out, it was likely that they would be confined.

1. The basis for the mandate was also stated simply, which was that (according to the University), vaccines have been proven to be “safe, effective and lifesaving”. I note that this statement was certainly contentious from the Applicant’s perspective, although I do not consider that the meaning of it was unclear, noting the background of significant wider public attention given to COVID-19 and vaccination.  The Applicant’s criticism was that, based on her own extensive research, the claims were simply incorrect and the University failed to provide any material that indicated to the contrary.

1. The University also sought specific feedback from staff. I have noted above that there were aspects of that feedback, through the survey, that might have been improved but I am satisfied that the survey was overall fair and appropriate. The high response rate also indicates that staff were given adequate time to respond and were aware of it.  The survey was an opportunity, in a structured way, for a range of issues to be raised by staff or students – not simply a ‘yes’ or ‘no’ – including privacy, individual choice, ethical concerns and other matters.

1. The University took into account responses from the survey, particularly in relation to privacy. The consideration of the workforce views was important and the staff preferences for a mandate was given weight.

1. While it was not specifically alleged that the University did not adequately consult under the Staff Agreement, I am satisfied that the University’s steps leading up to the University making a definite decision to implement a mandatory vaccination policy met those requirements. I am also satisfied that the University advised staff of that decision, once it was announced on 9 December 2022.

1. I also consider that in the context of a termination of employment, the consultation and steps that followed the decision to implement mandatory vaccination are relevant to determining whether a lawful and reasonable direction existed at the time of the dismissal. In Mt Arthur Coal, the ‘Site Access Policy’ was found to not be a lawful and reasonable direction in circumstances where, in that case, deficiencies in consultation were identified. Importantly, the Full Bench concluded that “We are not persuaded that further consultation could not possibly have produced a different result”.[10]

1. In the matter before me, I am satisfied consultation with the Applicant would not have produced a different result, even if it was the case I was wrong in considering that the University had satisfied its various consultation obligations in support of giving a lawful and reasonable direction.

1. Generally speaking, it is difficult to consider what else might have been usefully achieved in the Applicant’s case beyond what was stated in the Vice-Chancellor’s email on 23 November 2021. Quite clearly, the University could have attempted to provide more information from the public domain. It could have, for example, provided the various ATAGI statements that were informing it. It could have provided the most up to date public information about vaccination side-effects, broken down into age and other demographic data. But the Applicant’s evidence indicates she had undertaken extensive research at the time. She didn’t agree with the University and, evidently, she did not agree with any of the public health bodies or health officials that were promoting vaccination.

1. The Applicant herself made extensive demands for various kinds of information that she says ought to have been provided. There is a degree of unreality to the requests made by the Applicant, in that I do not consider she expected those requests ever would be (or, more realistically, could be) complied with to a level that would satisfy the Applicant. For example, the Applicant sought individual risk assessments, physical evidence, and (it appears) some independent safety verification having regard to the “provisional” approval status of the vaccines by the TGA at the time. The Applicant did not, at the time or since, agree with assessments by ATAGI and other health officials on the substantive issues of the vaccine efficacy or safety. There was nothing the University could have added that would have convinced her otherwise, noting her own significance research into the area. Whatever might be the outer boundaries of the consultation obligations or what the Applicant expected she might receive, I do not consider it is feasible, practicable nor even desirable for the University to have attempted to undertake such steps to independently verify the safety or efficacy of the vaccine.

1. In the context of vaccines so publicly discussed as the COVID-19 vaccinations have been, I consider it sufficient for the University to have accepted statements from a body like ATAGI that the vaccines are, in substance, safe and effective. For example, the ATAGI statement dated 26 November 2021 positively recommended vaccination for all age groups above 12 years old and described “high vaccine effectiveness”. I consider that the University was entitled to rely on such statements by a body such as ATAGI as a basis for consideration in its own vaccination policy. [11] Quite properly, it told the staff about those matters then sought the views of staff.

1. Even if I am wrong in my conclusion that, by 9 December 2021 (when the mandatory requirement was announced by the Vice-Chancellor) or by 23 December 2021 (when the Policy was finalised) adequate consultation had occurred, I do not consider that it follows that there can be no valid reason based upon those directives for a later termination based upon a lawful and reasonable direction.

1. I consider that there are some differences between the nature of the collective dispute under s.739 of the FW Act before the Full Bench in Mt Arthur Coal and before me that allows individual consultation following the initial decision to be taken into account in the context of an unfair dismissal claim. This is particularly the case where s.387 contemplates that (in the usual case) a person will be notified of the reasons for dismissal and will be given an opportunity to respond. This suggests that, in the context of a dismissal, even if there was some anterior aspect of consultation that had not occurred at the time of the initial decision then recourse can be made to later events that substantively cured any initial deficiency. An example before me might be provision of the risk summary or the information in it. Similarly, detail about the extent of “vulnerable” people at the University (of whom, there was an appreciable number) might have ideally been provided earlier. While that risk summary, or equivalent information, and other detail might have been provided earlier, it was nonetheless provided in sufficient time when the Applicant was put on notice that her employment was being reviewed.

1. Finally, on the question of consultation, I also consider it appropriate to consider the nature of the requests and demands made by the Applicant when considering the University’s responses. It is difficult to engage in a meaningful response when the University is sent lengthy demands, based on incorrect views of the law, that effectively require the University to explain why the multiplicity of legal grounds raised are misconceived. The process becomes more difficult when documents having purported legal effect – the “Notice to Principal is Notice to Agent” – are served that in turn claim to have significant legal consequences if not complied with. The process becomes more difficult again when those notices and similar correspondence make elevated accusations of criminal and civil liability. I consider it would be inappropriate to apply an overly-critical assessment to the consultation process by seeking to find some uncured deficiency hidden among the many claims raised. The University sought to explain, in simple terms, what it was doing and why. I am satisfied its explanations were reasonable.

1. A different ground relied upon by the Applicant (noting there was some overlap) was that the vaccination was not effective at stopping or reducing transmission of COVID-19. The correspondence from the Vice-Chancellor, by contrast, indicated that the vaccinations would “significantly” impact the prospect of catching COVID-19. Even if the Applicant’s position is accepted as being correct at around December 2021 – early February 2022, it does not affect the information before me (which I accept) based on the ATAGI statements that the vaccination reduces infection and severe disease (I refer again the extracts, above, to the ATAGI statement dated 26 November 2021).

1. The University has a direct interest in its staff experiencing much milder illness, even if vaccination is unable to effectively prevent transmission of the illness itself. In doing so, the University reduces the cost to itself (through lower incidence of sick leave) but also the impact on other staff who are not sick, but who may be required to temporarily take over or perform additional duties when other staff are away sick.

Contractual duty to obey policies

1. By contrast to the implied contractual duty to obey lawful and reasonable terms, the Applicant was also under an express obligation to abide by the policies of the University from time to time. The Policy was such a document and, under the express term, the Applicant was required to abide by it.

1. In Riverwood International Australia Pty Ltd v McCormick [2000] FCA 889, the Full Court considered a term in an incorporated policy that allowed the employer to vary that document. An issue at hand was whether a unilateral right of variation meant there was agreement at all for that matter. At [152] Mansfield J considered that the employer’s “power to change its policies, or to introduce new policies, from time to time would be constrained by an implied term that it would act with due regard for the purposes of the contract of employment…, so it could not act capriciously, and arguably could not act unfairly towards the respondent”.[12]

1. So far as it was necessary for me to do so, I consider that the University was entitled under the contract of employment to implement the Policy subject to the implied term described by Mansfield J and, on the evidence before me and as also described above, I do not consider it was acting capriciously nor unfairly.

Conclusions on lawful and reasonableness

1. For the reasons I have given above, I am satisfied that the mandatory vaccination direction given by the University, subsequently reflected in the Policy, was a lawful and reasonable direction. If it were necessary to do so, I also consider that the Policy was a matter that the Applicant was required to adhere to by the express terms of her contract of employment and that the implementation of the Policy was neither capricious nor unreasonable.

Was the dismissal harsh, unjust or unreasonable?

1. I have set out the factors that I must take into account in considering whether I am satisfied that a dismissal was harsh, unjust or unreasonable.

1. I set out my consideration of each below.

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?

1. In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[13] and should not be “capricious, fanciful, spiteful or prejudiced.”[14] However, 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.[15]

1. As the Full Bench has said, “[a] failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. A substantial and wilful breach of a policy will often, if not usually, constitute a valid reason for dismissal.”[16] The direction need not be the most preferable or most appropriate course of action. There may be a range of options open to an employer within the bounds of reasonableness.[17]

1. Separately, I have concluded that the Applicant had an express contractual obligation to comply with the University’s Policy and she did not do so.

1. These two matters are the first step in the University’s decision to terminate the Applicant’s employment. The second step concerned the University’s view that an inherent requirement of the Applicant’s role required her to work on site.

1. In such circumstances, “it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must be considered”[18] and “the reference to ‘inherent’ requirements invites attention to what are the characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral.”[19]

1. For the reasons I have previously stated, I am satisfied than an inherent requirement of the Applicant’s role related to access to University premises, attending University programs and undertaking University business at places were vaccination was required. While it may have been the case that the Applicant would have been able to perform some work at home, I accept that important aspects of her role required presence on site.

1. The fact that there has been a period – often extended significantly for many people – where work has been undertaken at home does not dictate a conclusion that work can continue to be undertaken wholly, or even substantially, remotely. I would observe that it is also consistent with the general experience of many people and businesses since COVID occurred, during periods where staff worked at home because of business decisions or because public health orders prohibited on-site attendance. The Applicant’s argument advocating for a permanent fully-remote arrangement tended to adopt a task-based analysis, focussing on the tasks that were performed while she was required to work at home. However, the performance of particular tasks is only one aspect. As Ms Heupel stated, there are less tangible benefits of having people working physically together, particularly “the interactions and the engagements that occur”. The importance of these interactions – also often a facet of teamwork – should not be underestimated. The University considered they were important to how it ran IMOS and there is no reason I consider it appropriate to second-guess those management decisions.

1. Having regard to the matters I have referred to above, I find that there was a valid reason for the dismissal related to the Applicant’s capacity.

Was the Applicant notified of the valid reason?

1. Proper consideration of s.387(b) requires a finding to be made as to whether the applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a).[20]

1. Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[21] and in explicit[22] and plain and clear terms.[23]

1. I am satisfied that the Applicant was given notification of the reasons for the University’s reasons, beginning in clear terms by at least 28 January 2022. In that correspondence, she was told she may not be able to perform the inherent requirements of her role and why. She was told her employment was being reviewed, which may include “up to termination”. The notification was repeated in even clearer terms in the letter sent on 9 February 2022 (and while that was incorrectly dated 9 January 2022, nothing turns on that typographical error). In reality, the Applicant was on notice prior to this, given that the email to her on 18 January 2022 contained a link to the Policy that in turn stated that the consequences of non-compliance might lead to dismissal.

1. Having regard to the matters referred to above, I find that the Applicant was notified of the reason for her dismissal prior to the decision to dismiss being made, and in explicit and plain and clear terms.

Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

1. An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[24]

1. The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.[25] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[26]

1. I am satisfied that the Applicant was given an opportunity to respond and that she did so, particularly by the 3 February notice, the 9 February notice, the 11 February statement, and the 14 February notice.

1. The Applicant contends that the University failed to provide the legal explanations sought or “particulars with regards to the safety and efficacy of the claimed direction/policy to participate in a medical service= claimed COVID-19 vaccination.” The Applicant also describes these as “Constitutional notices”. I explained above why I did not consider these notices, or their purported legal effect, assisted in showing any failure to consult in relation to establishing the reasonableness of the direction to be vaccinated. I consider the same observations are applicable when considering the Applicant’s opportunity to respond to the notification of the reason for dismissal for the purpose of s.387(c).

1. In all the circumstances, I find that the Applicant was given an opportunity to respond to the reason for her dismissal prior to the decision to dismiss being made.

Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

1. Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

1. There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”[27]

1. While the Applicant contended that the University refused to allow the Applicant to have a support person, there were no evidence before me that I considered would lead to a conclusion that she made a request nor was refused any relevant opportunity. I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal.

Was the Applicant warned about unsatisfactory performance before the dismissal?

1. As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.

To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

1. Neither party submitted that the size of the University was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s enterprise had no such impact.

To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

1. Neither party submitted that the University lacked dedicated human resource management specialists or expertise. I find that the Respondent’s enterprise did not lack dedicated human resource management specialists and expertise.

What other matters are relevant?

1. Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

1. I have considered the University’s compliance with its obligations under the Staff Agreement where a termination is contemplated and I am satisfied these obligations were complied with. Clause 60(a) of the Staff Agreement states that termination shall only be warranted where:

“(i) There is a valid reason for termination; and

(ii) Termination of employment is not harsh, unjust or unreasonable in the circumstances; and
(iii) In accordance with the procedures contained Part J (Managing Performance and Misconduct).
(iv) The University shall not, however, terminate an employee’s employment for reasons rendered unlawful by the Fair Work Act.”

1. Clause 60(b) provides for certain notice requirements. As the Applicant was not being dismissed for performance or misconduct, the procedures contained in Part J of the Staff Agreement are not applicable. I consider that the requirements for a valid reason and that termination is not harsh, unjust or unreasonable reflect the requirements of s.387 of the Act (and it was not put to me there was any difference). The Applicant was given appropriate notice.

1. The Applicant relied on various legal authorities. They included constitutional law cases, again referencing s.51(xxiiiA) of the Constitution, and transcript excerpts and some submissions in an unrelated proceeding before the Commission in another matter. I do not consider these are of assistance.

1. The Applicant reiterated her contentions that the vaccines are a “Schedule 4 poison”, the consultation obligations arising from Mt Arthur Coal and the WHS Act, and discrimination. These are not, along with the other various legal objections raised by the Applicant, circumstances that allow me to conclude the dismissal was otherwise unfair.

1. The Applicant similarly addressed her contention that she could work from home or that adjustments to her role should have been made so that she could work at home. I have addressed those matters earlier and do not consider they otherwise warrant a conclusion that the dismissal was harsh, unjust or unreasonable.

1. The Applicant said her dismissal was unfair as the process for it took place when she was on sick leave. She also said that the correspondence she received (including due to the fact that it was received while on sick leave) was bullying and harassment. It was not disputed that she was on sick leave, although I do not consider that any of it constituted bullying or harassment. I do not consider that the Applicant being on sick leave prevented her from responding to the University’s correspondence nor did it present any material unfairness. The Applicant was herself preparing detailed “Constitutional notices” throughout that time.

1. While I consider that much of the correspondence from Applicant was deeply misconceived legally, I do not wish to be overly critical, having regard to the stress the Applicant was experiencing. That said, I also consider that the University correspondence was appropriate and reflected a sincere belief that its Policy was appropriate, although that belief was plainly not the response the Applicant wished to see.

Conclusion

1. I have made findings in relation to each matter specified in section 387 as relevant.

1. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[28]

1. Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable. The University issued the Applicant with a lawful and reasonable direction to be vaccinated against COVID-19, unless she met one of the exemptions (medical or religious) under the Policy, if she wished to continue working at the University. The Applicant did not comply with that direction in circumstances where an inherent requirement of her role comprised of on-site work. Those matters gave the University a valid reason to dismiss the Applicant. I consider that the University afforded procedural fairness to the Applicant prior to making the decision to bring her employment to an end.

1. Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act. The Applicant’s application is therefore dismissed. An order[29] to this effect will accompany this decision.

DEPUTY PRESIDENT

Appearances:

A Smith for the Applicant
R Collinson and J Catchpole of Edge Legal for the Respondent

Hearing details:

2022.
Melbourne (by video link via Microsoft Teams):
June 22.

Final written submissions:

Applicant: 24 June 2022
Respondent: 24 June 2022

[1] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

[2] (as at the date of publication of this decision).

[4]     [2021] FWCFB 6059.

[8]     Cf, Mr Jovan Jovcic v Coopers Brewery Limited[2022] FWC 1931 at [55] (Colman DP).

[9]     Kikuyu v Hazzard (No 2) [2022] FCA 812.

[10]    Mt Arthur Coal, [199].

[11]    Cf, Mr Jovan Jovcic v Coopers Brewery Limited[2022] FWC 1931 at [63] – [64].

[12]    See, too, Goldman Sachs JBWere Services Pty Limited v Nikolich [2007] FCAFC 120 at [122].

[13] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

[14] Ibid.

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

[16] B, C and D v Australian Postal Corporation t/a Australia Post[2013] FWCFB 6191, [36].

[17] Mt Arthur Coal, [80].

[18] J Boag & Son Brewing Pty Ltd v Button[2010] FWAFB 4022, [22].

[19] X v Commonwealth [1999] HCA 63, [102].

[20] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].

[21] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

[22] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

[23] Ibid.

[24] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

[25] RMIT v Asher (2010) 194 IR 1, 14-15.

[26] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

[27] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].

[28] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].

[29] PR742909

Printed by authority of the Commonwealth Government Printer

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