Fiona Howard v Uniting Care Health
[2022] FWC 1860
•15 JULY 2022
| [2022] FWC 1860 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Fiona Howard
v
Uniting Care Health
(U2022/1885)
| DEPUTY PRESIDENT LAKE | BRISBANE, 15 JULY 2022 |
Application for an unfair dismissal remedy – Public Health Order – Healthcare setting – Declined vaccination – no medical exemption – applicant terminated for not fulfilling inherent requirements of the role – application dismissed.
Ms Fiona Howard (the Applicant) contends she was unfairly dismissed by Uniting Health Care (the Respondent), for whom she had worked for 8 years. She seeks an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). In short, the Applicant was terminated from her position in the Respondent’s facility – Wesley Hospital – after failing to comply with the Respondent’s policy to be vaccinated by 10 December 2021 and further the Workers in a healthcare setting (COVID-19 Vaccination Requirements) Direction (the Direction), which required her to be fully vaccinated by 15 December 2021. The events leading to the Applicant’s termination are not in dispute. Rather, the Applicant contends that the unlawfulness of the mandate and the Respondent’s conduct which gives rise to her unfair dismissal claim.
As the matter could not be resolved by conciliation, directions were issued for the filing of material and a hearing was listed for 4 July 2022. The Applicant appeared on her own behalf, with a friend, Mr Alex Smith. The Respondent sought to be represented. This was opposed by the Applicant. I am required to consider whether permission ought to be granted under s.596 of the Act. The matter is not overly complex, however, given the volume of evidence and lengthy submissions provided by the parties I was satisfied that it would be of use to the Commission in synthesising the relevant case authorities and resolving the factual matrix and would not unduly prejudice the Applicant to have the assistance of the Respondent’s legal representative. I was also satisfied that the presence of the Respondent’s representative would also enable the matter to be dealt with more efficiently. Noting also that the Applicant had the assistance of a ‘friend’ Mr Alex Smith to assist her in presenting her case. Accordingly, I allowed Minter Ellison and Counsel Mr Pawel Zielinski to appear for the Respondent.
Section 396 of the Act requires that I am satisfied of four matters before considering the merits of the Applicant’s application. Neither party disputed and I am satisfied, that the Applicant made her application within the 21-day period required by s.394(2) of the Act, that she was a person protected from unfair dismissal (as she earned less than the high-income threshold), that her dismissal was not a case of genuine redundancy and that the Respondent is not a small business to whom the Small Business Dismissal Code applies.
Chronology
Wesley is a private hospital run by Uniting Care with approximately 2,000 staff members. On the same location there is an aged care facility.
On 7 October 2021, the Respondent communicated to all employees that the organisation was consulting regarding the introduction of a policy that would require employees to be vaccinated against COVID-19 and allowed a two-week period for responses. Following this period and after discussions with the Hospital’s Clinical Advisory Team, the Executive determined to introduce a vaccination requirement (the COVID-19 Vaccination Requirements Policy) that would require all staff at the Hospital to be fully vaccinated by 10 December 2021.
On 28 October 2021, the Respondent introduced the COVID Vaccination Requirement Policy which required all Uniting Care workers to receive all recommended doses of a COVID-19 vaccine by 10 December 2021
On the 10 November 2021, a Health Directive (Direction) was issued under the Public Health Act 2005 (Qld) (PH Act). This Direction had an impact upon public hospitals and at that stage was not in force at private hospitals like the Wesley Hospital.
An updated version of the Direction was issued on 16 December 2021 (Workers in a healthcare setting (COVID-19 Vaccination Requirements) Direction (No. 2)) which then required that the Respondent comply with the Government Direction and this Direction required all staff at the Respondent’s Hospital to be vaccinated by a minimum of two doses by 15 December 2021.
The Hospital had been communicating the requirements to staff through email and team huddles. The Applicant expressed her concerns regarding the mandate and on 23 November 2021 she attended a meeting with her line manager, Ms Nash Arnold to discuss her non-compliance with the policy. The Applicant alleged that the COVID-19 Vaccination was still in the experimental stage of the clinical trial and continued to oppose being vaccinated.
On 30 November 2021 Ms Howard requested leave, by way of email, on the following terms.
“Afternoon Nicole
As December 10th approaches I realise the need to be vaccinated to work is required.
After much discussion with my GP, we have decided to wait for Novavax as this is the right fit for my family and vaccination of choice.
As discussed with my GP the current vaccines do not have enough data to provide me with informed consent at this time.
I would like to apply for leave of absence from work until the Novavax has arrived in Australia and I can be vaccinated and then return to my normal duties.
Thank you for your understanding
Fiona”
Following that communication, the Respondent replied requesting her to provide the reasons for her preference to take the Novavax vaccine and any evidence of a managed relevant medical contradiction.
Ms Howard replied on 7 December 2021,
“Hi Nic,
I apologise for delay in response I am still currently waiting for my GP to get back to me about forms etc
To answer question 1
* After discussion with my doctor and concerns over mRNA and DNA vaccines we decided on a more traditional vaccine production of the Protein based vaccine Novavax
* In terms of reactions and adverse events the protein based vaccines are less likely to create any long term reactions or injuries
* There is no long term safety data for any of the current mRNA, DNA vaccines
* The adjuvants are less likely to cause harm being of traditional production
* The Novavax is also showing signs of being protective against variants
* The side affects [sic] for the Novavax are showing very mild symptoms like those of flu vaccines
When I hear from my GP I will forward information to you
Thank you for understanding”
Ms Howard applied for an exemption, was unsuccessful and was suspended without pay on 11 December 2021.
Ms Howard further advised the Respondent, on 14 December 2021, that her doctor was unavailable for a month as he was on Christmas break holidays and she could not obtain additional information for at least a month.
On 16 December 2021, the Respondent wrote to the Applicant and provided an opportunity to respond – as she had allegedly not followed a lawful direction and not met the inherent requirements of her position.
“Dear Fiona,
Opportunity to provide a response – not followed a lawful direction and not met the inherent requirements of position held
On 28 October 2021, UnitingCare introduced the COVID-19 Vaccination Requirement Policy (the ‘Policy’), which requires all UnitingCare workers to receive all recommended doses of a COVID-19 vaccine by 10 December 2021. This policy is in response to the ongoing risk that the COVID-19 virus poses and assists UnitingCare to meet its health and safety obligations to provide a safe environment, so far as reasonably practicable, for all UnitingCare workers and those we serve. As a UnitingCare worker, you are required to adhere to the Policy.
In addition to the Policy, for workers in a health care setting, a Queensland government Health Directive currently also applies; Workers in a healthcare setting (COVID-19 Vaccination Requirements) Direction (the ‘Health Directive’). In accordance with the Health Directive, you must receive all recommended doses of a COVID-19 vaccine by 15 December 2021. As a health worker (as defined by the Health Directive), you must also comply with the Health Directive.
Our concerns
To date, our records indicate you have not:
* provided evidence of having received a 1st and/or 2nd dose of a COVID-19 vaccine; and
* provided evidence of compliance with the Policy and Health Directive, such as a copy of your COVID-19 digital certificate; or
* provided satisfactory medical evidence of your inability to receive a 1st and/or 2nd dose COVID-19 vaccine because of a recognised medical contraindication/s.
By not complying with the Policy and Health Directive, you have breached the UnitingCare Code of Conduct. More specifically, the following standards:
“Comply with legislation, regulation and UnitingCare policy
· Comply with all laws and UnitingCare policies while fulfilling the duties of your role …”
…
Professional Conduct (be diligent and accountable)· Comply with the reasonable and lawful directions from r leader.
Based on the above information, UnitingCare has formed a view that you have breached the UnitingCare Code of Conduct, not followed a reasonable and lawful direction, and you cannot safely meet the inherent requirements of the position you hold. Further it is unknown when you can reasonably meet the inherent requirements of the position you hold.
What does this mean?
UnitingCare is considering reviewing your on-going employment (i.e. possibly terminating your employment), unless you:
· provide evidence of having received a 1st and/or 2nd dose of a COVID-19 vaccine; and
· provide evidence of compliance with the Policy and Health Directive, such as a copy of your COVID-19 digital certificate by 20 December 2021; or
· provide satisfactory medical evidence of your inability to receive a 1st and/or 2nd dose COVID- 19 vaccine because of a recognised medical contraindication/s via the completion of the UnitingCare Medical Contraindication form (attached) by 20 December 2021.
Opportunity to respond
Before making a final decision, in relation to your on-going employment, we would also like to give you an opportunity to respond to the proposed disciplinary action. At this time, we encourage you to provide any feedback that you consider may be relevant to our final decision.
As such, you are invited to provide a response to:
· the actions requested of you as outlined above, under the heading ‘what does this mean?’; and
· the proposed disciplinary action i.e. potential termination of your employment
You must send your written response to your Leader and copy [email protected] by 20 December 2021. If you choose not to provide a written response, UnitingCare will make a decision about your on-going employment, based on the material available. We urge you to participate in this process.
Suspension
In the meantime, you will remain suspended from work without pay until this matter is resolved. If you would like to access eligible leave during the suspension, such as paid Annual Leave and Long Service Leave, you can apply for this leave by sending an email to your direct leader.
Other matters
We would like to assure you, this is a confidential matter and confidentiality will be maintained. You must also maintain confidentiality which means that you must not discuss this matter unnecessarily or on any social media platform. Please know this does not preclude you from speaking with your nominated support person or seeking professional advice and/or support.”
The Applicant replied on 20 December the following
“Dear Jessica,
I am writing to you in regards to my recent email regarding the covid vaccination.
I understand the hospital policy that has been introduced but for me to make a decision in regards to taking this vaccine I need full informed consent and would like more information regarding this please.
Can I please have an individual risk assessment done on my risk at work with regard to Covid- 19.
* Can I please view a Medical safety data sheet in regards to the vaccine and it’s ingredients.
* Can I please ask that the risk for me having this vaccination will be minimal with no long term adverse reactions.
* Irrefutable evidence that the human disease covid 19 presents a major emergency in Queensland.
* Irrefutable evidence that TGA vaccination and boosters are fully approved though trials and studies.
Thank you Fiona”
The Respondent terminated the Applicant and emailed the following termination letter: The relevant extract is below
“In making our decision we have considered your written responses up to and including the 20 December 2021 to this matter, the requirements of your position in accordance with the Queensland Health Directive, Workers in a healthcare setting (COVID-19 Vaccination Requirements) Direction (the ‘Health Directive’) and your obligations required under the UnitingCare COVID-19 Vaccination Requirements Policy (the Policy). Further, we have also taken into account the ongoing risk that the COVID-19 virus poses, our lawful health and safety obligations under the Work Health and Safety Act 2011 (Qld) and any other relevant matters.
Based on the above information, UnitingCare has formed a view that you have breached the UnitingCare Code of Conduct, not followed a reasonable and lawful direction, and you cannot safely meet the inherent requirements of the position you hold, Anaesthetic Technician. Further it is unknown when you can reasonably meet the inherent requirements of the position you hold. UnitingCare is terminating your employment on this basis.
As such, this letter serves as your notice of termination. You are being provided with 5 weeks’ notice of termination (Notice Period) and your employment will end on Wednesday, 26 January 2022. As you are unable to meet the inherent requirements of the position you hold, you will remain on suspension without pay for the duration of the Notice Period. If you would like to access eligible leave during the suspension, such as paid Annual Leave and Long Service Leave, you can apply for this leave by sending an email to your direct leader. For the avoidance of doubt, the notice period includes any period of paid leave you may be currently accessing with any remaining portions being unpaid.”
Applicant’s Material
The Applicant accepts that she was informed on a number of occasions that if she was not vaccinated by 15 December 2021, her employment may be terminated. She does however question the lawfulness of that directive.
On the 23 November 2021 in a meeting with her line manager the Applicant expressed her concerns regarding the safety and efficacy of the COVID 19 vaccines and claimed that the vaccines were still in the experimental stage of the clinical trial. The Applicant wished to apply for an exemption to which she claims her manager stated that no exemptions were being approved. The Applicant requested an exemption on the basis that she was waiting for the Novavax vaccine. This exemption was not approved and communicated to the Applicant on the 10 December 2021.
The Applicant requested safety data sheets, information regarding the trials of the vaccines and other material to support the Respondent’s requirement for a mandatory vaccine requirement. The Applicant states that no information was provided to the Applicant following her requests.
The Applicant states that the Hospital assured her that the vaccines for COVID 19 were safe and effective and had been approved. However, the Applicant asserts that the vaccines available were not approved and she did not think they were safe. The Applicant further asserted that fully informed consent was required to partake in a medical procedure.
The Applicant stated that she wished to wait for Novavax as in her view – and she says her GP’s view – it would be a safer option than the vaccines being offered at the time.
Mr Smith her ‘friend’ put to the Commission a series of arguments that he claimed underpinned the Applicant’s case. He claims that the vaccine was only provisionally approved and thus only able to be used for clinical trials. He was quite troubled that the vaccines available were not fully approved and that the population, through the Public Health Order, were being used in a large-scale clinical trial. He further alleged that the Public Health Order had no force over employees in a Private Hospital and relied on the Engineers Case[1] and the Wong (Civil Conscription) Case[2] as supporting his argument. Finally, he argued that the Applicant had been coerced by the fact that her employment may be taken away under threat of her livelihood being removed.
Unfortunately, these arguments are not helpful nor persuasive. I refer to recent decisions of Barbara Roman v Mercy Hospitals Victoria Ltd [2022] FWCFB 112; Benjamin Robert Bacon v Glenelg Community Hospital Incorporated [2022] FWCFB 125 that have addressed the issue of the Constitution, validity of Public Health Orders and whether coercion was involved. Further the friend argued that his point of differentiation was that the vaccines are only provisionally approved and that as such could not be used as they were subject of a mandate. He placed much emphasis upon the clinical experiment wording and included the black triangle material as part of the submission.
Unfortunately, the matters that Mr Smith raised were not particularly helpful to the Applicant, given the series of recent decisions by members and the Full Bench regarding vaccine requirements and employment. The Applicant may have had more success in providing evidence and arguments regarding her own specific issues and the reasons she personally elected to follow. In saying that I am not suggesting that the Respondent had any shortcomings, just that the arguments put forward by Mr Smith have been ventilated in previous matters recently and I am not persuaded to depart from conventional wisdom and acknowledging that this is an administrative tribunal and the matters raised by Mr Smith sit firmly with higher bodies of a judicial nature.
Other arguments put forth were that as an anaesthetic nurse, the Applicant had a heightened awareness of risk in a medical setting and knew about informed consent and that given her unique insights she was well placed to assess the risk of taking and being subject to a requirement to undertake or have a vaccine. At the end of the day, the Applicant said she felt it was not safe to take the vaccines as currently formulated and the lack of long-term data and the adverse reactions reported combined in her mind to mean she felt unsafe having the vaccine. She did concede that the Novavax, as it was a protein-based vaccine, would in her mind and her GP’s mind, be a preferable option.
To that end, the Applicant asserts that the imposition of a vaccination mandate by the Respondent is unlawful on the basis that the Queensland Government’s statement that all aged care workers be vaccinated is not law and, further, there is no constitutional basis for such a mandate. Additionally, the Applicant contends that requiring staff to be vaccinated before allowing them to attend work amounts to coercion and duress. The Applicant claims that after her seven years of dedicated service to the Respondent it was upsetting to be dismissed because she refused to have a COVID-19 vaccination.
Nevertheless, it was accepted that the Applicant, as at 15 December 2021, had made it clear that she was not vaccinated and did not have a medical exemption.
For the reasons set out above, the Applicant submits that she was unfairly dismissed.
Respondent’s Material
The Respondent asserts that this case is not about whether the government mandate that all health care workers be vaccinated is lawful. That question falls outside the scope of this jurisdiction. Rather, the sole question before me is whether the Applicant was unfairly dismissed considering s.387 of the Act.
The Respondent states that it had a valid reason to dismiss the Applicant: namely her non-compliance with a lawful and reasonable direction issued by the Respondent. Further the Respondent asserts that the Applicant was notified of that reason well in advance of the termination occurring, had ample opportunity to respond (and did so), that her response was considered by the Respondent, but ultimately a decision was made to terminate her employment because she could not fulfil the inherent requirements of her role. She was not unreasonably refused a support person. The Respondent further asserts that the consultation process undertaken was comprehensive and that given the extensive communications leading up to the implementation of the vaccination mandate, all staff – including the Applicant – were very aware of what would happen if they were not vaccinated by 10 December 2021.
The Respondent denies that its staff were coerced into having the vaccine. The Respondent always accepted that it was their choice. However, given the Public Health Order which mandated that workers in healthcare settings be vaccinated, the Respondent had no choice but to terminate the Applicant’s employment because she did not meet that criterion. The Respondent maintains that the Applicant was not unfairly dismissed.
Evidence of Ms Wallace
Ms Wallace is a Human Resources (HR) specialist in the Respondent’s business and provides a variety of HR advice across several functions within the organisation. The witness did have an overview of the management of the Applicant’s matter.
Ms Wallace stated that the Applicant did not have a medical contraindication and was therefore not able to be provided with a medical exemption. The Witness noted that the Respondent communicated their intention of implementing a policy on vaccines in early October and had communicated regularly with staff regarding the implementation.
Evidence of Mr Krieg
Mr Krieg was one of the Hospital’s group executives and was the COVID-19 response director. He was involved in the development of the Hospital’s vaccine initial policy response and for the adoption and implementation of the Public Health Directive.
He noted that the role the Applicant had was a high risk one, as studies had shown that there was a 10-15% increased chance of receiving COVID-19 when intubating COVID positive patients. In cross-examination, he accepted that he was aware that there had been reports of adverse reactions to the vaccines, but he stated that all medical treatments had some risk of adverse reactions.
As a private hospital, the Wesley did not treat COVID patients however they did act as an overflow for the public hospitals once the wards in the public hospitals were full.
Consideration
Section 387 of the 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.”
I am required to consider each of these criteria to the extent they are relevant to the factual circumstances before me.[3]
(a) whether there was a valid reason for the dismissal
To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[4] and should not be “capricious, fanciful, spiteful or prejudiced.”[5] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.
The Applicant, through Mr Smith, made a series of arguments. I note that Mr Smith is a ‘friend’ of several Applicants with similar cases. The arguments he put forth are substantially the same as those in Elizabeth Cogger v New Horizons Enterprises Limited[2022] FWC 1267 (Cogger) heard by Deputy President Saunders. I say substantially, as I note that this matter was heard in NSW and the Public Health Order is a different one to the one that was in force in this decision. However, the arguments regarding the legality of a Public Health Order and Directive are substantially the same and, in any event, not one that I can determine.
I reproduce the relevant extract from that decision as it addresses the arguments that Mr Smith ran again in this matter. I adopt Deputy President Saunders’ reasoning without modification. Perhaps Mr Smith should make himself familiar with not only this decision but also the series of decisions from the Fair Work Commission regarding vaccination matters prior to assisting other Applicants in similar matters.
“Public Health Order reason
[51] Once a public health order made under s 7 of the Public Health Act 2010 (NSW) (PH Act) is in force and applies to a particular workplace, the employer of employees who work in the workplace is obliged to comply with the order, as are the employees in the workplace, unless they have a reasonable excuse for failing to comply with the order or the order is declared invalid or unlawful by a court of competent jurisdiction. The Commission does not have jurisdiction to determine whether a public health order is invalid or unlawful. The Commission is an administrative tribunal and will carry out its functions according to law, proceeding on the basis that legislation and delegated legislation is valid until a court says otherwise.
…[55] Ms Cogger and her unpaid representative, Mr Smith, submit that Ms Cogger was “unjustly terminated on the 18th November 2021, effective immediately, for failure to participate in an alleged lawful and reasonable direction participate in a medical service/ procedure.” They advance a number of arguments in support of this contention. I reject each of these arguments for the reasons set out below.
[56] Ms Cogger and Mr Smith submit that:“New Horizons Enterprises Limited sought with menace and maleficence to require employees to participate in a medical service / irreversible invasive medical procedure/ injection of a schedule 4 poison that fails to prevent contraction or transmission (no protection high risk) under duress and threat to their employment, therefore inciting civil conscription of myself as an employee. This direction requested participating in a medical service/ 26 procedure-specifically by participating in a (claimed covid 19 vaccination) injection of a schedule 4 poison that fails to prevent transmission or contraction of claimed covid virus or any variation there off.”
[57] New Horizons did not make a direction to Ms Cogger to be vaccinated against COVID-19. Rather, New Horizons advised Ms Cogger of the requirements under the Public Health Orders. If New Horizons had allowed Ms Cogger to continue in her role on or after 25 October 2021 it would have been in breach of the Public Health Orders and exposed to the financial consequences of that breach, as would Ms Cogger.
[58] As to the contention that COVID-19 vaccines are “schedule 4 poisons” or have only been conditionally approved, the vaccines referred to in the Public Health Orders are specifically defined as vaccines “approved by the Therapeutic Goods Administration of the Commonwealth for use as a vaccine against COVID-19”.[59] In regard to the submission that the COVID-19 vaccination fails to prevent transmission or contraction, that argument is irrelevant in circumstances where the Public Health Orders required persons providing disability services to be vaccinated against COVID-19. The grounds on which Mr Hazzard concluded that there was a risk to public health which warranted the making of the Public Health Orders is set out in clause 4 of the Public Health Order No 1. In any event, expert medical evidence accepted by the Full Bench in Mt Arthur established that “COVID-19 vaccines reduce the risk of infection and transmission of the disease, attenuate the symptoms and possible consequences, and generally have only mild to moderate short-term side effects”. While it is true, as Mr Smith submits, that vaccines do not prevent contraction or transmission of the COVID-19, the vaccines do reduce the risks of contraction, transmission and serious consequences.
[60] Ms Cogger relies on s 51(xxiiiA) of the Commonwealth of Australia Constitution Act (Constitution), which provides that “the Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to … the provision of … medical and dental services (but not so as to authorize any form of civil conscription) …” Mr Smith submits that the provision of medical services, including giving a person a COVID-19 vaccine, requires the free will of the person receiving the service, and the person’s free will is removed if the person is coerced or threatened in any way. Ms Cogger, in reliance on the Australian Immunisation Handbook, contends that her free will was removed when she was required to be vaccinated in accordance with the Public Health Orders.
[61] Mr Smith also relies on s 109 of the Constitution to contend that the Public Health Orders are invalid due to inconsistency between the requirements under the Public Health Orders or PH Act (as state legislation) and the Constitution (as federal legislation).
[62] The Commission does not have jurisdiction to determine claims concerning constitutional invalidity. In any event, I do not consider that Mr Smith’s arguments in reliance on s 51(xxiiiA) and 109 of the Constitution have any merit. Ms Cogger retained her choice as to whether or not to be vaccinated against COVID-19. Her free will was not removed or violated as demonstrated by her election not to be vaccinated. A consequence of that choice, however, is that she did not comply with the Public Health Orders and she was not able to continue to work in her role as a Support Coordinator for New Horizons. I acknowledge that the choice for Ms Cogger was a difficult one. However, it remained her decision to make. The point was explained by Beech-Jones CJ (common law) in Kassam as follows:
“Although it was contended that the impugned orders interfere with a person’s right to bodily integrity and a host of other freedoms, when all is said and done the proper analysis is that the impugned orders curtail freedom of movement which in turn affects a person’s ability to work (and socialise). So far as the right to bodily integrity is concerned, it is not violated as the impugned orders do not authorise the involuntary vaccination of anyone. So far as the impairment of freedom of movement is concerned, the degree of impairment differs depending on whether a person is vaccinated or unvaccinated. Curtailing the free movement of persons including their movement to and at work are the very type of restrictions that the PHA clearly authorises.”
[63] There is no inconsistency between the Public Health Orders or PH Act and the Constitution or the Act. Neither the Constitution nor the Act deal with risks to public health or orders which may be made to address such risks. In addition, I do not consider there to be any merit to the contention by Mr Smith that the Supreme Court and Court of Appeal in Kassam applied the “wrong version” of the Constitution.
[64] Mr Smith also contends that the requirement that Ms Cogger be vaccinated against COVID-19 was inconsistent with the correspondence she received from the Prime Minister, Mr Scott Morrison. Ms Smith submits that this correspondence states that “Vaccination is free and voluntary. The Government is not supporting mandatory vaccinations…” I reject this argument. The Public Health Orders do not make vaccination against COVID-19 compulsory. The Public Health Orders require certain workers, including disability support workers such as Ms Cogger, to have had at least one dose of a COVID-19 vaccine or been issued with a medical contraindication certificate to provide disability services after the nominated date. It remained Ms Cogger’s choice as to whether or not she be vaccinated against COVID-19. Ms Cogger found this a difficult choice but it was her free and informed choice to make. The consequence of her choice to not get the vaccination was that Ms Cogger could not provide disability services on or after 25 October 2021.
[65] Ms Cogger and Mr Smith submit that New Horizons’ “committed fraud by seeking to alter the Applicant’s contract with these unlawful and unreasonable medical services/procedure mandates.” I reject this argument. Whilst it is correct that there is no requirement in Ms Cogger’s employment contract for her to be vaccinated against COVID-19, the absence of a contractual term does not matter in circumstances where the source of the prohibition on providing disability services without being vaccinated against COVID-19 or having a medical contraindication is a public health order. Further, there is no suggestion in the evidence that New Horizons sought to alter Ms Cogger’s contract of employment.
[66] Mr Smith contends that New Horizon failed to take any steps or perform any risk assessments, in breach of the Work Health and Safety Act, to ensure that COVID-19 vaccines were safe for its employees. This argument is misconceived. New Horizons was legally obliged to comply with the Public Health Orders. It was the Public Health Orders that required Ms Cogger to be vaccinated against COVID-19, by taking a “vaccine approved by the Therapeutic Goods Administration of the Commonwealth for use as a vaccine against COVID-19”.
[67] Ms Cogger contends that “demanding with threat and menace to produce personal medical information to prove directions were undertaken … contravenes the Privacy Act 1988.” Arguments concerning the interaction between the Privacy Act and other similar COVID-19 related public health orders were considered by Beech-Jones CJ (common law) in Kassam.13 His Honour rejected the contention that the public health orders under consideration in that case were invalid because they violated a person’s right to privacy. His Honour also relevantly held (at [215]) as follows in relation to arguments made by the plaintiffs concerning the Privacy Act:
“Dr Harkess also referred to privacy principle 6 in Schedule 1 to the Privacy Act 1988 (Cth) which precludes an “APP entity” that holds personal information that was collected for a particular purpose from using or disclosing that information to another person unless the individual has consented to the disclosure (or subclauses 6.2 or 6.3 apply). Dr Harkess referred to the circumstance where a person submits to vaccination because of the effect of Order (No 2), the Aged Care Order or the Education Order and then obtains their vaccination evidence from the Australian Immunisation Register which is described below. He contended that, in those circumstances, there was no consent to the disclosure even though it is the (now) vaccinated person obtaining the information. This argument rises no higher than his contention about the impugned orders vitiating consent in relation to an alleged violation of the right to bodily integrity which has been addressed above and rejected.”
[68] Ms Cogger relies on s 94H of the Privacy Act as part of her contention that she had a reasonable excuse not to comply with the Public Health Orders. Section 94H of the Privacy Act deals with offences concerning requiring another person to download a COVIDSafe app to a communication device, having a COVIDSafe app in operation on a communication device or consenting to uploading COVID app data from a communication device to the National COVIDSafe Data Store, or taking action against another person because they have not done any of those things. The evidence adduced in these proceedings does not suggest any breach of s 94H of the Privacy Act.
[69] Ms Cogger did not address any of the privacy principles under the Privacy Act in her written or oral submissions. For completeness and because Ms Cogger was not legally represented, I will address privacy principles 3 and 6. Privacy principle 6 provides that an entity must not use or disclose information for another purpose unless the individual has consented. There is no suggestion that New Horizons used or disclosed any information provided by Ms Cogger for a secondary purpose. Ms Cogger elected not to provide any relevant medical or other information to New Horizons.
[70] Privacy principle 3 requires an APP entity not to collect sensitive information such as medical information about an individual unless the individual consents to the collection of the information. There is no evidence to suggest that New Horizons collected any sensitive information from Ms Cogger. In any event, there is an exception to the requirement of consent if sub-clause 3.4 applies in relation to the information. Sub-clause 3.4 applies if the collection of information is required or authorised by or under an Australian law, which is defined to include an “an Act of the Commonwealth or of a State or Territory”. In the present case, clause 7 of Public Health Order No 1 and clause 11 of Public Health Order No 2, both of which were made under the PH Act, required or authorised the collection of medical information by employers about employees. Accordingly, sub-clause 3.4 of privacy principle 3 applied to Ms Cogger and New Horizons.
[71] Ms Cogger was not able to fulfil the requirements of her role as Support Coordinator from 9am on 25 October 2021 because she did not meet the requirements of the Public Health Orders. There were no alternative duties available for Ms Cogger to undertake. As at 18 November 2021, there was nothing to suggest that the Public Health Orders would or were likely to be varied or rescinded such that Ms Cogger would be permitted to work in the disability sector at any time in the foreseeable future. Ms Cogger had months prior to her dismissal to consider whether she would be vaccinated against COVID-19. She gave no indication to New Horizons that she had any plan or intention to be vaccinated against COVID-19 at any time in the foreseeable future; the indications that were given by Ms Cogger were quite contrary to this. Moreover, if New Horizons had permitted Ms Cogger to continue to provide disability services at any time after 9am on 25 October 2021, it would have been in breach of the Public Health Orders and exposed to financial penalties. There was in effect a new regulatory requirement that attached to Ms Cogger’s employment. Ms Cogger was able to decide for herself whether or not to take the necessary steps to meet this requirement. She decided not to do so. For all these reasons, New Horizons had a sound, defensible and well founded reason to terminate Ms Cogger’s employment.”
I also note that Mr Smith is not a party to this matter and is not a paid representative nor a lawyer who has been granted permission to represent under s.596. I allowed him to provide assistance to the Applicant in circumstances where the Respondent was granted permission to have representation. Mr Smith ran the same arguments in this matter as he did in Cogger and it seemed to me that he was using the Applicant’s matter as a ‘trojan horse’ to ventilate his own views regarding the COVID-19 vaccines and implementation. If Mr Smith appears before me again as a ‘friend’ in a vaccine matter, I will consider whether to allow him to assist the Applicant as a ‘friend’ or whether his advocacy is not assisting me in the undertaking of my duties.
Pursuant to the Direction, the Respondent had regulatory requirements to ensure that the Applicant provided the required evidence relating to a COVID-19 vaccination. The Respondent was required to take all reasonable steps to ensure that a worker who was unvaccinated did not enter the Respondent’s premises for work purposes. The Respondent requested evidence for employees to provide their vaccination status and on 23 November 2021 the Applicant expressed her concerns over the long-term safety of the vaccines. Had the Respondent allowed the Applicant to attend the workplace from 15 December 2021, it would have been in breach of the law and exposed itself to the risk of penalties. Compliance with the Public Health Mandate was an inherent requirement of her role as an anaesthetic nurse, as the role required her to undertake duties that required her to work in a hospital theatre in direct contact with patients.
The Applicant had the choice and was within her rights to decline to become vaccinated or to provide evidence of vaccination. However, her own choice not to do so rendered her unable to perform the inherent requirements of the job. The Applicant’s failure to comply with the direction concerning her vaccination status resulted in the Respondent being unable to permit the Applicant to perform the role.
Consequently, I am satisfied that the Respondent had a valid reason to terminate the Applicant’s employment.
(b) and (c) whether the person was notified of that reason and had an opportunity to respond
Based on the evidence provided and submissions made, I am satisfied that the Applicant was made aware in the months leading up to the implementation of the mandate, that if she was not vaccinated by 10 December and further, 15 December 2021, her employment may be terminated.
Furthermore, the Applicant had – and took – the opportunity to respond on a couple of occasions to indicate her opposition to the introduction and enforcement of the mandate. This was done in November 2021 prior to, and again after being issued with the show cause notice and prior to her termination. Accordingly, I am satisfied that the Applicant was notified of the reason for her termination and had a sufficient opportunity to respond.
(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
The Applicant has not claimed that she was unreasonably refused a support person.
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal
Given the reasons for the Applicant’s termination, this factor is irrelevant.
(f) and (g) the degree to which the size of the employer’s enterprise and the absence of dedicated human resource management expertise would be likely to impact on the procedures followed
The Respondent is a large employer with a well-resourced human resources department. it undertook a more than adequate process to provide its staff with information firstly about its own vaccination policy introduction and then about the government mandate which was to apply to its operations. It consulted with the Applicant in respect of the mandate, but it ultimately had very little control over what it could do if she chose not to be vaccinated.
(h) any other matters that the FWC considers relevant
The Respondent had to comply with the government mandate or face penalties. This meant that it could not allow someone who was not vaccinated against COVID-19 to continue working on its premises.
Conclusion
Accordingly, I am satisfied based on the evidence provided that the Respondent had a valid reason for terminating the Applicant’s employment and that it did so in accordance with as fair a process as it could. I find that the Applicant was not unfairly dismissed in accordance with the Act.
I therefore order that the Applicant’s application be dismissed.
DEPUTY PRESIDENT
[1] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 (‘Engineers Case’).
[2] Wong v Commonwealth of Australia; Selim v Professional Services Review Committee (2009) 236 CLR 573 (‘Wong (Civil Conscription) Case’).
[3] 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].
[4] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[5] Ibid.
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