Evangeline Liakos v Regain Occupational Therapy Pty Ltd T/A Cloud Nine Paediatric Therapy Services
[2022] FWC 1463
•1 AUGUST 2022
| [2022] FWC 1463 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Evangeline Liakos
v
Regain Occupational Therapy Pty Ltd T/A Cloud Nine Paediatric Therapy Services
(U2021/10499)
| DEPUTY PRESIDENT CROSS | SYDNEY, 1 AUGUST 2022 |
Application for an unfair dismissal remedy – not harsh unjust or unreasonable – application dismissed.
Ms Evangeline Liakos (the Applicant) lodged an application (the Application) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) on 18 November 2021, in respect of her dismissal from employment with Regain Occupational Therapy Pty Ltd T/A Cloud Nine Paediatric Therapy Services (the Respondent). The dismissal involved the alleged failure of the Applicant to comply with the Public Health (COVID 19 Care Services) Order 2021, issued under the Public Health Act 2010.
A Conciliation conducted by a staff member of the Fair Work Commission (the Commission) on 12 January 2022, and a Member Assisted Conciliation conducted on 16 February 2022 failed to resolve the matter. Directions for the filing of materials were issued on at the Member Assisted Conciliation. Those Directions were as follows:
1. Evangeline Liakos (the Applicant) is directed to file with the Fair Work Commission, and serve on Regain Occupational Therapy Pty Ltd (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of the application in this matter by 4pm on 2 March 2022.
2. The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by 4pm on 16 March 2022.
3. The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by 4pm on 23 March 2022.
4. Any party that requests permission to be legally represented at the hearing is directed to file with the Fair Work Commission, and serve on the other party, a brief outline of submissions in support of its request by 4pm on 16 March 2022.
The parties complied with the Directions. In particular:
· On 2 March 2022, the Applicant filed a witness statement of the Applicant;
· On 16 March 2022, the Respondent filed an Outline of Submissions, and a witness statement of Amisha Ghandi, a Director of the Respondent; and
· On 23 March 2022, the Applicant filed a document titled “Responses to Cloud Nine Submissions”.
The matter was listed for Hearing on 21 April 2022 (the Hearing). In the Hearing the Respondent did not seek to cross-examine the Applicant, however Ms Ghandi was cross-examined by the Applicant.
After the Hearing the parties sought to provide further written submissions. The following further documents were file by the parties:
· On 29 April 2022, a document titled “Final Statement of Evangeline: of the Clan [Liakos]” was filed by the Applicant;
· On 6 May 2022, the Respondent filed its final submission document; and
· On 13 May 2022, the Applicant filed a response to the Respondent’s Final Submission.
Background
The Respondent is a registered NDIS provider which assists challenged and vulnerable children. It has a duty of care to ensure the safety of vulnerable clients while attending Occupational Therapy Sessions, and is obliged to comply with government Public Health Orders so as to maintain the Respondent’s NDIS registration status.
The Applicant was employed by the Respondent as an Administrative Assistant from 23 March 2020 until 29 October 2021 on a fulltime basis, with regular hours of 10.30am to 6.30pm Monday to Friday.
In mid-2021, Ms Ghandi reviewed the Fair Work Ombudsman’s guidance titled “COVID-19 Vaccinations: Workplace Rights and Obligations” published on 9 April 2021.
On 27 September 2021, a Public Health Order was issued requiring health care workers to be vaccinated. Ms Ghandi made a decision to introduce a mandatory requirement for all of the Respondent’s staff to be vaccinated against COVID-19. That change was introduced by a policy update which was drafted on 11 October 2021.
On 27 September 2021, Ms Ghandi received an email from the Applicant, stating that the Applicant was reluctant to be vaccinated and had decided to cancel her vaccine appointment which was scheduled for 8 October 2021.
In reply, Ms Ghandi sent the Applicant an email on 28 September 2021, noting the requirements of mandatory vaccination, particularly as the Respondent was a NDIS provider, and attaching a link to, and snapshot from, the NSW Health website.
On 29 September 2021, in a further text message, the Applicant stated that she had spoken to her General Practitioner who refused to give her a medical exemption from the COVID-19 vaccine.
On 30 September 2021, the Respondent offered the Applicant a variation of her employment contract which would have allowed the Applicant to work two days from home with a review date on 23 December 2021. The Respondent stated it was not practical for the business to offer those arrangements any longer as it needed an onsite Administration Assistant/Receptionist such as the Applicant in order to operate its business successfully. The Applicant did not accept the offer of variation of employment.
On 2 October 2021, the Applicant sent Ms Ghandi a nine-page letter that was a broad ranging challenge to COVID-19 vaccines and their legality, and seeking that the Respondent answer her questions with respect to the efficacy and safety of the vaccine.
On 9 October 2021, in response to the COVID-19 outbreak and state of emergency, the Respondent conducted a risk assessment and amended the company’s COVID-19 infection policy.
On 11 October 2021, a memo was sent to staff in relation to introduction of the mandatory COVID-19 policies. The memo requested that employees sign the policy by 15 October 2021, and encouraged employees to contact Ms Ghandi should they have any questions or concerns. The Applicant did not sign the memo or agree to the Company’s infection control policy despite several further email reminders on 13 October 2021 and 15 October 2021.
On 14 October 2021, Ms Ghandi was made aware of a Public Health Order being introduced specifically for the class of employees relevant to the Respondent’s workplace as an NDIS registered provider, being the Public Health (COVID 19 Care Services) Order 2021 (the PH Order).
On 15 October 2021, the Applicant sent Ms Ghandi another letter providing her views with regards to the safety and legality of COVID-19 vaccines. That letter was in the following terms:
“Attention: Amisha Gandhi
Dear Amisha,
This letter is in response to various communications received from you in the last few days, in particular, your emails dated 28 September 2021 and your Memorandum dated 11 October 2021 addressed to All Employees (“Memo”).
As expressed to you on our telephone conversation on 13 October 2021, I will respond to your Memo once I have finished reading it and received your responses to the questions in my letter dated 2 October 2021. Upon receipt and review of your responses, I will provide my response to your memorandum.
Please know that the constant pressure you have been putting me under since August 2021 and especially after I sent you the letter requesting particulars in relation to your directive upon me to get the experimental injection you refer to as “Covid-19 vaccine” is causing me enormous undue stress and has upset me greatly over a number of days. I was experiencing physical pain as a result of the enormous stress I was going through, that I felt the need to request time off work on 1 October 2021 in order to deal with the physically debilitating stress.
-
It is my understanding that I have a duty to inform you, my employer, that I am experiencing the harmful effects of this stressful condition that you have been and are putting me through. This stressful condition is aggravated by the threat of job loss and weighing the real risks of injury from the Covid-19 injection, and how it would impact my health and my family, should I decide to take it .
I have reason to be very concerned about the side effects of this experimental injection which contains Graphene Oxide amongst many other toxic ingredients. Graphene Oxide is an oxygen sponge which deprives the body of necessary oxygen and causes many complications, including but not limited to anaphylactic shock, toxic blood clotting, fatal lung paralysis, mitochondrial cancer, and endothelial cancer. These are just some of the injuries listed in the Database of Adverse Event Notifications (DAEN) report from the Therapeutic Goods Administration (TGA) website, which I provided to you in my earlier letter. The risk of severe injury or death is very real and very high.
Further, as mentioned in my original letter, the Covid-19 injection has not had full TGA approval, nor any full regulatory approval globally. The long-term safety risks remain unknown, and this experimental injection is still undergoing live clinical trial as confirmed by Federal Health Minister Greg Hunt, and such clinical trial is anticipated to end in April 2023. As mentioned in my earlier letter, in the Australian Government’s Immunisation Handbook, under Section 2.1.3 Valid Consent, it states that for consent to be legally valid, “It must be given voluntarily in the absence of undue pressure, coercion, or manipulation.”
Your last few correspondence and telephone calls to me constitute undue pressure, coercion, and manipulation. Your proposed company policy which includes the Covid-19 policy implies a threat of “disciplinary action, up to and including termination of employment”, which you are pressuring me to agree to. This is coercion and is not permitted under national employment laws. In addition, threatening loss of a job on an employee unless that employee agrees to take part in a medical experiment - a medical experiment that carries the real risk of death - without affording the employee the right to informed consent, such coercion amounts to a criminal offence and could result in the person making this threat being charged with that criminal offence.
I am entitled to the exercise of my right to discuss my health and any proposed health protocol with my own health and wellness adviser. Whatever healthcare regimen and advice I receive and all my medical information remain private and confidential.
I hope that the points raised above, and in my letter dated 2 October 2021, will form part of your policy to ensure informed consent, affording the ability for any employee to say no to this experimental injection. I await your written response to all my questions in my original letter.
Respectfully,
Evangeline Liakos”
On 19 October 2021, the Respondent sent a letter to the Applicant in relation to mandatory vaccine requirements for the disability sector as stated in the PH Order. The Respondent informed the Applicant that all authorised workers in the disability sector were required to receive at least one dose of a vaccine by 25 October 2021 and be fully vaccinated by 29 November 2021. The Respondent also advised the Applicant that if she had a medical contraindication against the available COVID-19 vaccines, she needed to provide the Respondent with the prescribed NSW Health medical exemption certificate.
The Respondent did not receive any response from the Applicant to the above letter, and another email was sent to her on 20 October 2021, reiterating the NSW government vaccine mandate requirements for the disability sector and directing her to be vaccinated by 26 October 2021.
On 26 October 2021, the Respondent received a response from the Applicant in similar terms to her previous responses dated 2 October 2021 and 15 October 2021.
On 27 October 2021, the Respondent sent another email to the Applicant requesting that she send the Respondent proof of her vaccination status or a medical exemption as the Respondent had yet to receive either. The Respondent also informed the Applicant that it was considering the termination of her employment and advised her that she must provide proof of the first dose of vaccine or proof of vaccine appointment by 29 October 2021.
On 29 October 2021, the Respondent received an email from the Applicant attaching a letter, and further five-page attachment, and a document titled “Notice of Demand for Further and Better Particulars” that was in the following terms:
“Date. 29 October 2021
The rule of law is fundamental in maintaining a free and fair society that supports the provision for men and women, should they incur harm. loss. or injury from another, to access restorative processes pursuant to the United Nations Charter.
I, Evangaline of the House Liakos, am deeply concerned about the employer-mandated COVID-19 injection procedure insisted upon myself by Amisha Gandhi (hereinafter referred to as “Amisha”), Director of Regain Occupational Therapy Pty Ltd trading as Cloud Nine Paediatric Therapy Services (hereinafter referred to as “Cloud Nine”).
In order for me to be fully informed to empower me to give informed consent it is my will that I be provided with all of the following information, and documentary evidence:
1. The lawful basis upon which you rely requiring me to be vaccinated against COVID-·19 in order to work;
2. Documentary evidence of the relevant Instrument of Delegation held by Amisha, as required under the Federal Crimes Act 1914 3ZZIA;
3. Documentary evidence held by Amisha, or by Cloud Nine, of any and all health and safety advice received as well as medical and scientific data held by Amisha or Cloud Nine, evidencing that the COVID-19 injections are safe, and that no men or women have lost their lives nor suffered from any adverse reactions as a result;
4. The risk assessments (a minimum of four) performed by Amisha, including documentary evidence of material risks of COVID-19 transmissions ,by any, “vaccinated” or by any unvaccinated man or woman presenting at work;
5. The legal status of the trial/experimental COVID-19 injections which have been approved for mandating by Cloud Nine;
6. Documentary evidence that the experimental COVID-19 injection have been fully independently, and rigorously tested against control groups, and the subsequent outcomes of those tests;
7. The entire list and toxicity of the ingredients that are contained in the COVID-19 injection, including proprietary components. and confirmation that the COVID-19 injection is not a trial/experimental mRNA gene-altering therapy:
8. A certified true copy of the proclamation certificate with the appropriate assent in respect of your mandate;
9. Written confirmation that Amisha Gandhi, as Director of Cloud Nine. in her personal and unlimited capacity, is and will be taking full responsibility and liability for any and all adverse events resulting from the COVID-19 injections including any harm. loss, or injury immediately or in the future, as a consequence being mandated to take me COVID-19 injection as per Amisha and Cloud Nine’s directions;
10. The confirmation that, I will not be under duress from yourself and/or Cloud Nine in compliance with the Nuremberg Code 1947;
11. Evidence of an official statement from the Australian Government confirming that the announcement by Australian Prime Minister, Scott Morrison MP, on the 6''' of August 2021 that “informed consent is needed” before the COVID-19 injection is administered upon an individual, has been rescinded by the Australian Government;
12. Evidence that alternative work arrangements, or controls that are available to employers and employees to maintain Occupational Health & Safety, as well as Public Safety, as directed by the Fair Work Ombudsman, has been duly considered by Amisha and/or Cloud Nine;
13. Documentary evidence proving that all relevant treatments for COVID-19 and alternative methods for its remedy were thoroughly investigated and reported by independent research conducted by Amisha or by Cloud Nine;
14. The evidence of accuracy and reliability of the Reverse Transcription Polymerase Chain Reaction (RT-PCR) testing of the Rapid Antigent Testing and any evidence that such tests cause no harm, damage or irreversible short-term of long-term side-effects;
For acceptance of the itemised evidence requests listed in this notice, such evidence must also be signed by a qualified physician or qualified health practitioner who will also take full legal and financial responsibility for any injury occurring to myself, from any interaction by authorised persons in relation to the experimental procedure, vaccination schedule, or immunisation programs based around the COVID-19 injections.
This notice and seal are written in accordance with the Partnership Act 1890.
All above documentary requirements are to be supplied to me in written format within 72 hours upon receiving this notice. Furthermore, your agreement that I will not incur prejudice or discrimination. nor will my employment be compromised is required in written format within 72 hours upon receiving this notice.
Your silence is your Consent
By Evangaline of the House Liakos
Principal, Executive Beneficiary and
Authorised Representative
for and of the Crown
copyright name and estate: :EVANGALINE LIAKOS
ens legis and all derivatives thereof the legal name
No assured value; No liability all Errors and Omissions Excepted for value, and
All Rights Reserved
WITHOUT PREJUDICE - WITHOUT RECOURSE -
NON-ASSUMPSIT - WITHOUT VEXATION
Calls may be recorded
End of notification”
The Respondent did not receive any proof of vaccination or medical exemption letter from the Applicant by 29 October 2021 and on that basis, a termination letter (the Termination Letter) was sent to the Applicant on that date, in the following terms:
“Date: 29/10/2021
Dear Evangeline,
We refer to our correspondence dated 27 October 2021 in relation to your inability to attend work following the NSW Government Public Health Order mandating COVID-19 vaccinations.
In our letter we advised that your employment was under review, and you were asked to provide any further information for consideration as part of this review.
We acknowledge receipt of your correspondence dated 29 October 2021.
After considering all the information available to us, we are satisfied that you continue to remain unable to attend for work given the Public Health Orders. Given this, your employment is terminated effective immediately. You will be paid 4 weeks in lieu of notice and in accordance with your employment agreement, any accrued entitlements up to and including the date of this letter.
Please arrange to return any Cloud Nine Paediatric Therapy property still in your possession, including but not limited to, the office key, EFPTOS machine and a work mobile.
Please contact us on [telephone number] if you have any questions.”
On 5 November 2021, the Applicant received her October wages, and on 18 November 2021, payment in lieu of notice and annual leave entitlements were paid to the Applicant.
The Applicant’s Evidence and Submissions
In her evidence and submissions, the Applicant placed particular emphasis on the inability of the Respondent to produce evidence of a delegated authority pursuant to s.3ZZIA of the Crimes Act 1914 (Cth).
The Applicant submitted that as no delegated authority existed, that the delegated authority of the Respondent or Ms Ghandi to mandate anything, including but not limited to any purported medical procedure, and including but not limited to the “so called COVID-19 vaccination procedure”, did not exist.
The Applicant submitted that the Respondent’s assertion during cross-examination that the Respondent is a NDIS registered provider has no bearing on the Respondent’s claim of authority to mandate vaccination.
The Applicant further noted the inability of the Respondent to present a written public health order which specifically stated her name, and which specifically ordered the Applicant to be vaccinated. That response was said to be clearly indicative of the Respondent’s ignorance of the requirements under s. 62 of the Public Health Act 2010 (NSW).
The Applicant noted no public health order was ever served on her by any authorised medical practitioner as required under the Public Health Act 2010 (NSW). The Applicant submits that, as a result, the Respondent fails to satisfy the lawfulness of its actions in terminating her employment on the basis of her “alleged non-compliance of her invalid and unlawful mandate to submit myself to an untested, and unproven-to-be-safe medical procedure referred to as the so called COVID-19 vaccination".
The Applicant also referenced reports on the Facebook pages of Senator Gerard Rennick, Senator Alex Antic, and Senator Malcolm Roberts, that outlined:
(a) more and more people getting severely and permanently injured as a result of the so called “COVI D-19 vaccine”,
(b) more people ending up in hospital in spite of having received three or more shots of the “COVID-19 vaccine”, and
(c) more healthy people (particularly athletes who are at peak health) dying from heart attacks, blood clots, stroke, and sudden unexplained deaths after having received the “COVID-19 vaccine”.
In conclusion, the Applicant submitted that the Respondent:
(a) Failed to follow the law in relation to mandates as evidenced by Ms Ghandi’s admission that she did not, and does not, have a delegated authority required under s. 3ZZIA of the Crimes Act 1914 (Cth), the absence of which makes her self-imposed mandates unlawful;
(b) Failed to follow the law in relation to a public health order as evidenced by her ignorance of the requirements under s.62 the Public Health Act 2010 (NSW);
(c) Failed to exhaust all available avenues under the law that would have allowed her the option to continue in my employment full time, such as an extended work from home arrangement until such time as the mandates were lifted;
(d) Failed to provide evidence of the Respondent’s due diligence in respect of the safety and efficacy of a medical procedure that the Respondent insisted on mandating unlawfully;
(e) Failed in their duty of care as an employer to also ensure the Applicant’s health and safety, which is required under the Work Health & Safety Act 2011, in her failure to do her due diligence in relation to the documents and links to studies that the Applicant had sent to her, all of which provided evidence of harm resulting from the medical procedure referred to as the COVID-19 vaccination; and, amongst many others, and
(f) Failed to provide evidence that the Respondent’s purported mandates were about ensuring health as opposed to the Respondent’s need to avail itself of financial incentive from a government office as was being offered to businesses at the time. ·
The Applicant sought compensation of 20 weeks pay plus $50,000.00 for “deliberate economic sabotage”.
The Respondent’s Evidence and Submissions
The Respondent emphasised that it dismissed the Applicant on grounds of misconduct due to her conduct in failing to comply with the lawful and reasonable direction of the Respondent that she be vaccinated. However, the submissions made by the Applicant divert from her breach, and instead demonstrate a general anti-vaccination position. That position was said to impact on the credibility of her argument being that she had refused the vaccination because “the mandating of the vaccine is illegal” and stating that the Public Health Orders are “unlawful directives from the government” as reasons for her conduct in failing to comply with that direction.
The Respondent submitted that the Applicant’s submissions displayed a fundamental lack of understanding of the term “Public Health Order” and it’s respective legislation , that the Applicant’s main issue is with Government Directive and not with the Respondent, and that the Respondent is not responsible for resolving the Applicant’s apprehension towards the vaccine.
The Respondent noted it has a duty of care to ensure the safety of vulnerable clients while attending Occupational Therapy Sessions and is obliged to comply with government Public Health Orders so as to maintain the Respondent’s NDIS registration status. The Respondent was well aware that the coronavirus pandemic did not automatically make it reasonable for employers to direct employees to be vaccinated, and that it could only direct employees to be vaccinated if the direction was lawful and reasonable. The Respondent therefore reviewed the Fair Work Ombudsman’s guidance on this issue.
The Respondent assessed that there was an increased risk of employees becoming infected with coronavirus, or communicating coronavirus to a person who is particularly vulnerable to the health impacts of coronavirus.
Further, on 27 September 2021, the first Public Health Order mandating that Health Care workers were required to be vaccinated was published. Accordingly, the Respondent made a decision to introduce a mandatory requirement for all of its staff to be vaccinated against COVID-19.
The Respondent submitted there was a valid reason for the dismissal related to the Applicant’s capacity or conduct (including its effect on the safety and welfare of other employees). The Applicant was provided with a valid reason for dismissal being that the Applicant's vaccination status did not comply with the PH Order. The Respondent’s continued provision of Occupational Therapy services, and its NDIS registration status, depended upon all workers being vaccinated against COVID-19.
The Respondent submitted the dismissal was not harsh, unjust or unreasonable. There were several instances of formal contact between the Respondent and the Applicant in the two months preceding termination. The Applicant was given a great deal of notice with regards to the vaccine requirements prior to the termination, and was given many opportunities to follow the mandatory COVID-19 vaccine requirements for all NDIS registered providers and their employees or provide evidence of exemption but did not. She was also offered a variation of employment but did not agree to it.
Regarding notification of the reason for dismissal, the Respondent submitted there was written correspondence from the Respondent to the Applicant relaying the Respondent’s mandatory vaccine policy on 27 September 2021, 11 October 2021, 19 October 2021, 26 October 2021 and 27 October 2021. The Applicant was given several opportunities to comply but refused.
Regarding whether the Applicant was given an opportunity to respond to any reason related to the capacity or conduct of the person, the Respondent noted the Applicant communicated her hesitancy and refusal to receive the COVID-19 vaccination on 27 September 2021. She then proceeded to express her views surrounding the vaccine on several occasions being 2, 15 and 26 October 2021, with the general content of the emails being her opinion that mandating the vaccine was illegal and questioning the efficacy and safety of the vaccine. It could not be concluded that the Applicant was not provided an opportunity to respond to the reason for dismissal.
The Respondent submitted that the mandatory vaccination policy, insofar as it mandates that the Applicant be vaccinated, is reasonable and lawful, and the PH Order is reasonable and lawful. The Applicant is required to comply with that policy and the PH Order.
The Applicant’s Submissions in Reply
The Applicant repeated her submissions that the Respondent:
(a) Did not have the delegated authority required by Section 3ZZIA of the Crimes Act 1914; and
(b) Did not have, and never officially served upon her, an official public health order in the form required by s. 62 of the Public Health Act 2010.
The Applicant denied the characterization of her by the Respondent as “anti-vaccination”, and submitted that the Respondent’s decision to terminate her employment was fuelled by that biased characterisation.
The Applicant strongly reiterated that she was not duty-bound, nor contractually bound, nor under any obligation under the law to comply with any medical directive by the Respondent or Ms Ghandi as neither had any authority to mandate vaccination. The Applicant submitted that, notwithstanding all the information that the Applicant referred the Respondent to being readily verifiable and searchable online, Ms Ghandi as owner of the Respondent “merely jumped onto the bandwagon of mandating for the sake of mandating in order to avail of financial incentives offered to small businesses at the time, without any regard to how such a drastic and potentially life-altering, unlawful mandate would impact her employees”.
Consideration
Initial matters to be considered
Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of the application.
There is no dispute between the parties, and I am satisfied on the evidence, that:
(a) The Application was made within the period required in s.394(2) of the Act;
(b) The Applicant was a person protected from unfair dismissal;
(c) The Small Business Fair Dismissal Code did not apply to the Applicant’s dismissal; and
(d) The Applicant’s dismissal was not a genuine redundancy.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the that section in considering whether the Applicant’s dismissal was harsh, unjust or unreasonable. I will address each of these matters in turn below.
Valid reason (s 387(a))
General principles
It is necessary to consider whether the Respondent had a valid reason for the dismissal of the Applicant, although it need not be the reason given to the Applicant at the time of the dismissal. In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded”[1] and should not be “capricious, fanciful, spiteful or prejudiced.”[2]
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.[3] The question the Commission must address is whether there was a valid reason for the dismissal related to the Applicant’s capacity or conduct (including its effect on the safety and welfare of other employees).[4]
Consideration as to whether there was a valid reason
I note that the reason for dismissal set out in the Termination Letter sent to the Applicant was her continued inability to attend work following the PH Order.
Inherent Requirements
Regarding the issue of inherent requirements, there was no dispute that the Respondent was subject to the PH Order.
The Applicant could not reasonably perform the inherent requirements of her role as Administrative Assistant working from home, and I note that while the Respondent offered a temporary variation to the Applicant’s contract to allow for her to work from home two days a week, the Applicant did not respond to that offer.
Further, the Applicant did not comply with the proof of vaccination requirement prior to her dismissal. The Applicant was not able to fulfil the inherent requirements of her role because she was prohibited under the PH Order from lawfully entering her work.
Lawful and Reasonable Directions
I consider that the directions given to the Applicant regarding vaccination were lawful and reasonable. The PH Order provided that the Respondent was required to ensure compliance with the vaccination requirements and that a nominated person must produce the nominated person’s vaccination evidence for inspection by their employer if requested to do so.
I consider that those directions were:
(a) lawful, because they related to the subject matter of the Applicant’s ability to lawfully attend work in circumstances where the vaccination requirements under the PH Order applied to her employment; and
(b) reasonable, because the Respondent had an obligation under the PH Order to ensure employees complied with the vaccination requirements, and could be fined if an employee did not comply.
Compliance with the PH Order was not an optional matter for the employer of a nominated person, such as the Respondent. Compliance with the PH Order was not an optional matter for a nominated person wanting to undertake the prescribed work, such as the Applicant. An employee not complying with a mandatory vaccination requirement in a PH Order has been found by the Commission to be a valid reason for dismissal.
The Respondent provided the Applicant with a month to comply with the PH Order. This timeframe was more than a reasonable period for the Applicant to make an informed decision regarding getting vaccinated against COVID-19.
I therefore consider that the reasons for the Applicant’s dismissal provided in the Termination Letter amounted to valid reasons for the dismissal related to the Applicant’s capacity or conduct.
Notification of reason (s 387(b))
The Applicant was notified of the reasons for her dismissal in the Termination Letter.
Opportunity to respond (s 387(c))
The Applicant was given opportunities to respond to the reason for her dismissal in her written communications to the Respondent in the period leading up to her dismissal. Having regard to all the circumstances, I am satisfied that the Applicant was given an opportunity to respond to the reason for dismissal related to her capacity.
Unreasonable refusal to allow a support person (s 387(d))
The Applicant did not request a support person and so this factor does not arise.
Warnings of unsatisfactory performance (s 387(e))
The Applicant was not dismissed for unsatisfactory performance. This criterion is not relevant to the present case.
Size of enterprise and absence of human resource specialists or expertise (s 387(f) and (g))
No party made any submissions in relation to this factor. In all the circumstances, I am satisfied that neither the size of the Respondent’s enterprise nor any absence of human resource management specialists or expertise had any impact on the procedures followed in effecting the Applicant’s dismissal.
Other relevant matters (s 387(h))
Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
The Applicant submitted that the Respondent failed to:
(a) Follow the law in relation to mandates as evidenced by Ms Ghandi’s admission that she did not, and does not, have a delegated authority required under Section 3ZZIA of the Crimes Act 1914 (Cth), the absence of which makes her self-imposed mandates unlawful; and
(b) Follow the law in relation to a public health order as evidenced by her ignorance of the requirements under s.62 the Public Health Act 2010 (NSW);
Section 3ZZIA of the Crimes Act 1914 provides:
“Delegation
Delegation by chief officer
(1) The chief officer of an authorised agency or eligible agency may, in writing, delegate all or any of the chief officer's powers, functions or duties under this Part to:
(a) a Deputy Commissioner of the Australian Federal Police; or
(b) a senior executive AFP employee who is a member of the Australian Federal Police and who is authorised in writing by the Commissioner for the purposes of this paragraph.
(2) The chief officer of an authorised agency or eligible agency may, in writing, delegate all or any of the chief officer's powers, functions or duties under Division 5 to the chief executive officer (however described) of a State or Territory law enforcement agency.
(3) The chief officer of an authorised agency or eligible agency may, in writing, delegate all or any of the chief officer's powers, functions or duties under Division 5 to a Commonwealth officer if the chief officer is satisfied on reasonable grounds that the Commonwealth officer is able to properly exercise those powers, functions or duties.
Delegation by Ombudsman
(4) The Ombudsman may, in writing, delegate all or any of the Ombudsman's powers under this Part, other than a power to report to the Minister, to an APS employee responsible to the Ombudsman.
Delegate must produce delegation on request
(5) A delegate must, upon request by a person affected by the exercise of any power delegated to the delegate, produce the instrument of delegation, or a copy of the instrument, for inspection by the person.”
The above section clearly applies to the delegation of the Chief Officer’s powers of an authorised agency or eligible agency. Those defined terms are outlined in the definitions clause of the Crimes Act 1914, which provides:
“authorised agency” means the Australian Federal Police.
“eligible agency”: see subsection 3ZZAA(3).
Subsection 3ZZAA(3) provides:
(3) An eligible agency is the Australian Federal Police.
The provisions of the Crimes Act 1914 relied on by the Applicant relate to the issuing of search warrants in particular matters unrelated to COVID-19 or vaccinations. There was no requirement for the Respondent or Ms Ghandi to hold a delegated authority required under Section 3ZZIA of the Crimes Act 1914.
Section 62 of the Public Health Act 2010 (NSW). Sub-sections (1), (2) and (8) provide:
“62 Authorised medical practitioner may make public health order (cf 1991 Act, s 23)
(1) An authorised medical practitioner may make a public health order in respect of a person if satisfied, on reasonable grounds, that the person:
(a)has a Category 4 or 5 condition, and
(b)because of the way the person behaves may, as a consequence of that condition, be a risk to public health.
(2) A public health order:
(a)must be in writing, and
(b)must name the person subject to the order, and
(c)must state the grounds on which it is made, and
(d)must state that, unless sooner revoked, it expires at the end of a specified period (not exceeding 28 days) after it is served on the person subject to the order.
Note. An order based on a Category 5 condition expires after 3 days unless an application is made for its confirmation (see section 63 (2)).
…
(8) A public health order does not take effect until it is served personally on the person subject to the order.”
In Ashlee Mitchell v Kinda Kapers Holdings Pty Ltd,[5] Deputy President Saunders conveniently outlined the differences between Public Health Orders made under s.7 of the Public Health Act 2010, as the PH Order in this matter was, and orders made under s.62 of the Public Health Act 2010. The Deputy President observed:
“The requirement in subsection 62(8) of the PH Act for a public health order to be served personally on the person subject to the order must be read in the context of s 62 as a whole. Section 62 is a different source of power to make a public health order than s 7 of the PH Act. There are significant differences between public health orders made under s 62 of the PH Act compared to those made under s 7. First, under s 62 an “authorised medical practitioner” may make a public health order, whereas the Minister is the only person authorised to make a public health order under s 7. Secondly, under s 62 an “authorised medical practitioner” may make a public health order “in respect of a person ... if the person has a Category 4 or 5 condition and because of the way the person behaves may, as a consequence of that condition, be a risk to public health” [emphasis added]. Schedule 1 to the PH Act defines what is meant by a Category 4 or 5 condition. Category 4 includes COVID-19. Thirdly, a public health order made under s 62 “must name the person subject to the order”. In contrast, s 7 of the PH Act empowers the Minister to make an order which applies to any part of the State, not in respect of one or more identified persons. Fourthly, s 62 is a power directed to treating and preventing the spread of a particular disease that one or more persons have or to which they have been exposed. Section 7 is a power directed to deal with public health risks generally and enables directions to be given by order which address the overall risk and its possible consequences. Having regard to those different features of s 62 compared with s 7, it is not surprising that a public health order made under s 62 does not take effect until it is served personally on the person subject to the order. There is no such requirement for a public health order made under s 7 of the PH Act. Mr Friedlaender’s argument that “public health order” is defined in s 5 of the PH Act to mean “a public health order referred to in section 62” is of no significance because an order made under s 7 of the PH Act is not a “public health order” within the meaning of s 5. An order made under s 7 of the PH Act is simply an order which is “directed to a situation has arisen that is, or is likely to be, a risk to public health””
There was no requirement for the Respondent to present a written public health order which specifically stated the Applicant’s name, and which specifically ordered the Applicant to be vaccinated. The PH Order, issued as it was under s.7 of the Public Health Act 2010, was valid, and required to be complied with by the Respondent and the Applicant.
Conclusion
After considering each of the matters specified in s 387 of the Act, my evaluative assessment is that the Respondent’s dismissal of the Applicant was not harsh, unjust or unreasonable. The Respondent had a valid reason for the dismissal, and it afforded procedural fairness to the Applicant prior to making the decision to bring her employment to an end.
The Respondent was required to comply with the PH Order. The effect of the PH Order was that the Applicant was unable to undertake work at the Respondent. There were no alternative duties available for the Applicant.
I am satisfied that the Respondent’s dismissal of the Applicant was not unfair. The Application is dismissed.
DEPUTY PRESIDENT
Appearances:
Ms E Liakos, on her own behalf.
Ms D Tadros, solicitor for the Respondent.
Hearing details:
2022.
April 21
Sydney (via videoconference).
[1] Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373.
[2] Ibid.
[3] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at [685].
[4] Ibid.
[5] [2022] FWC 892
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