Gogulwar v H.B. Fuller Company Australia Pty Ltd
[2023] FedCFamC2G 459
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gogulwar v H.B. Fuller Company Australia Pty Ltd [2023] FedCFamC2G 459
File number(s): MLG 207 of 2022 Judgment of: JUDGE MANSINI Date of judgment: 1 June 2023 Catchwords: INDUSTRIAL LAW – FAIR WORK – alleged contraventions of general protections provisions of the Fair Work Act 2009 (Cth) – circumstances of global COVID-19 pandemic and State Government-introduced public health directions and orders – maintenance worker in on site role directed to wear a face mask at work and disclose COVID-19 vaccination status to employer – certified but unspecified medical condition – non-disclosure of COVID-19 vaccination status – dismissed by reason of failure to follow a reasonable and lawful direction and consequential inability to perform inherent requirements of the role.
INDUSTRIAL LAW – Where the Applicant’s dismissal was an adverse action – whether the Applicant had and exercised a workplace right to complain or inquire, to take annual leave and/or to convert leave to paid personal leave – and whether the adverse action was taken for reasons that included the fact or exercise of any such workplace rights.
INDUSTRIAL LAW – Whether the Applicant was coerced to wear a face mask or shield and/or by refusal of annual leave whilst determining vaccination status.
INDUSTRIAL LAW – Whether the Applicant was dismissed because of a temporary absence from work due to illness or injury as proscribed by the Fair Work Regulations2009 (Cth).
INDUSTRIAL LAW – Whether the Applicant had a physical or mental disability – and the Respondent discriminated against the Applicant by failure to provide reasonable adjustments despite any such disability – and/or the Respondent discriminated against the Applicant due to his political opinion.
INDUSTRIAL LAW – No causes of action established – application dismissed.
Legislation: Fair Work Act 2009 (Cth) ss.12, 340, 341, 342, 343, 351, 352, 360, 361, 539(2), 545, 550
Disability Discrimination Act 1992 (Cth) s.4
Equal Opportunity Act 2010 (Vic)
Occupational Health and Safety Act 2004 (Vic) s.35
Fair Work Regulations 2009 (Cth) reg 6.04
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r.1.06
Federal Court Rules 2011 (Cth) rr.16.02, 16.03
Cases cited: Australian Building and Construction Commissioner v Hall [2016] 261 FCR 347
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
Cadbury Schweppes Pty Ltd v Australian Liquor Hospitality and Miscellaneous Workers’ Union & Anor [2000] FCA 1793
Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204
Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17
Esso Australia Pty Ltd v The Australian Workers’ Union [2016] FCAFC 72
Henry v Leighton Admin Services Pty Ltd [2015] FCCA 1923
Hodkinson v Commonwealth [2011] FMCA 171
Qantas Airways Ltd v Gama (2008) 167 FCR 53
Rumble v The Partnership Trading as HWL Ebsworth Lawyers [2020] FCAFC 37
Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27
Schanka v Employment National (Administration) Pty Ltd [2000] FCA 202
Stevenson v Murdoch Community Services Inc [2010] FCA 648
Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15
Division: Division 2 General Federal Law Number of paragraphs: 188 Date of hearing: 28 and 29 September 2022 Place: Melbourne Applicant: Self-represented litigant Counsel for the Respondent: Ms T Duthie Solicitor for the Respondent: Lander & Rogers ORDERS
MLG 207 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NIKHIL GOGULWAR
Applicant
AND: H.B. FULLER COMPANY AUSTRALIA PTY LTD
Respondent
order made by:
JUDGE MANSINI
DATE OF ORDER:
1 June 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
2.No order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Mansini
IN SUMMARY
Before the Court is an application in respect of a raft of alleged contraventions of the general protections provisions of the Fair Work Act 2009 (Cth) (Act).
The Applicant was employed by the Respondent (Company) in a plant maintenance role for some 3 years until his dismissal by reason of his failure to disclose his COVID-19 vaccination status which was said to be inconsistent with the employment relationship and to result in an inability to perform the inherent requirements of the role because he could no longer attend the workplace.
The Applicant contended that the real reason(s) for his dismissal included that:
·he had and exercised workplace rights to complain or inquire (e.g. to the safety regulator about the requirement to wear a face mask);
·he had and exercised a workplace right to take annual leave; and
·he had and proposed to exercise a workplace right to convert leave to paid personal leave,
in each case in contravention of s.340.
Further, the Applicant claimed that his dismissal whilst temporarily absent from work due to illness or injury was in contravention of s.352 of the Act; he was required to wear a face mask and denied reasonable adjustments despite his disability and/or due to his political opinion, in contravention of s.351 of the Act; and he was coerced to wear a face mask or shield at work and by refusal of annual leave whilst determining his vaccination status, in contravention of s.343 of the Act. He sought compensation totalling $196,700 plus interest and the imposition of pecuniary penalties.
The Company maintained it had simply followed Victorian Government public health orders and directives and denied any contravention of the general protections provisions at Part 3-1 of the Act.
For the reasons that follow, none of the advanced causes of action were made out and the proceedings must be dismissed.
THE CASE BEFORE THIS COURT
Materials relied upon
The Applicant relied on the following, subject to certain evidence being excluded (because that evidence was not pressed or subject of a ruling of the Court on objections):
(a)Application filed 25 January 2022;
(b)Statement of claim filed 25 January 2022;
(c)Outline of written submissions filed 25 September 2022;
(d)His own affidavit of 18 August 2022 with annexures (marked Exhibit A1) excluding annexures 14, 36, 44, 45.1 and 45.2 which were set aside and annexures 19, 24.1, 24.2, 24.3, 37.1, 37.2, 37.3, and 39 which were not pressed (Applicant’s First Affidavit);
(e)His further affidavit of 15 September 2022 with annexures (marked Exhibit A2) (Applicant’s Second Affidavit); and
(f)His oral evidence given at the hearing on 29 September 2022.
The Applicant foreshadowed an application for suppression of his medical information to the extent that it disclosed a medical condition. The application was not ultimately pressed and no suppression order was made. In any event, the medical information on the Court’s file does not disclose any particular condition that would justify such order.
Notwithstanding the program for directions and a further communication from chambers in the week prior to trial, at the commencement of the final hearing the Applicant made an oral application to call oral evidence of an expert witness who was identified as “Vasalia Govender, leading the IWST [Injured Worker Support Team] group”. The Company strongly opposed on procedural fairness and relevance grounds. The Applicant was invited to provide the Company with an outline of the qualifications, credentials and evidence that this person would give before pressing the application. That application was not pressed.
The Company relied on the following:
(a)Defence filed 25 March 2023;
(b)Affidavit of Mr Tim Dorgan (National Human Relations Manager Australia and New Zealand of the Company) affirmed 7 September 2022 with annexures TD-1 to TD-24 (marked as Exhibit R1);
(c)Affidavit of Mr Dominic Lewis, Operations Manager Australia and New Zealand of the Company, affirmed 8 September 2022 with annexures DL-1 to DL-12 (marked as Exhibit R2);
(d)Affidavit of Mr Ravi Ramamurthi, Engineering and Property Manager of the Company’s Dandenong plant, affirmed 8 September 2022 with annexures RR-1 and RR-2 (marked as Exhibit R3);
(e)Affidavit of Mr Jamie Rae, Production Manager and Environment Health and Safety Manager of the Company’s Dandenong plant, affirmed 7 September 2022 with annexures JR-1 to JR-9 (marked as Exhibit R4); and
(f)Outline of written submissions filed 21 September 2022.
Each of the Company’s witnesses also gave oral evidence at the hearing.
Both parties filed outlines of submissions in advance of the hearing and made oral closing submissions at the conclusion of the hearing.
The pleaded case
The Applicant’s statement of claim contained a series of factual contentions and particulars at paragraphs 1 to 44.
By paragraphs 45 to 62, the Applicant articulated “The General Protections Claim” by reference to 4 provisions of the Act (8 separate contraventions). In summary, as follows:
(a)First, that the Company effected the dismissal and in doing so discriminated between employees because the Applicant:
(i)had and exercised a workplace right(s) to make enquiries about his role (which were not specified but the preceding “background” paragraphs of the pleading included a formal complaint to Worksafe Victoria made on 13 October 2021 and complaint about alleged bullying and harassment by fellow employee(s));
(ii)had and exercised a workplace right to take annual leave (again not specified but by the “background” paragraphs was proposed in a meeting of 15 October 2021, to be taken on and from 18 October 2021); and
(iii)had and proposed to exercise a workplace right to convert leave to paid personal leave (again not specified but by the “background” paragraphs related to a request made on 25 October 2021),
in each case in contravention of s.340(1)(a)(ii).
(b)Second, that the Company exerted coercion by requiring the Applicant to wear a face mask in the workplace after a legitimate medical reason was provided and in not allowing him to access annual leave whilst making a decision as to his vaccination status, in contravention of s.343(1)(a);
(c)Third, that the Company effected the dismissal because of the Applicant’s temporary absence from work due to illness during his paid personal leave, in contravention of s.352; and
(d)Fourth, that the Company took adverse action by requiring the Applicant to wear a face shield in contradiction to his doctor’s advice and by denying him reasonable accommodations for his medical condition as a disability, in contravention of s.351 of the Act.
By paragraphs 64 and 65, the Applicant claimed loss in the following terms:
64. The Respondent’s breaches of Part 3-1 of the FWA have caused the Applicant loss of $196,700 plus interest calculated as follows:
i) had the Applicant not been dismissed, he would have remained in employment for the next 24 months, during which time he would have earned approximately $163,000 in salary plus $13,700 in superannuation; and
ii)$20,000 for non-economic loss arising from the hurt and distress occasioned by the unlawful termination of the employment.
65. The Applicant is seeking the imposition of pecuniary penalties.
The Company contended that the Court should dismiss the application on the basis that the pleadings do not identify how the alleged complaints and inquiries amount to the exercise of a workplace right or the nature of the alleged disability within the meanings prescribed at ss.340 and 351 of the Act. Further, that the Applicant had not plead the material facts necessary to establish ss.343 and 352. For these reasons, the reverse onus at s.361 was not engaged and the case should be dismissed.
The purpose of pleadings is well established as to define the issues for determination in the case and enable the other party to understand the case they have to meet. In Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 at [13], the Full Court observed:
It is well-established that the main purposes of pleadings are to give notice to the other party of the case it has to meet, to avoid surprise to that party, to define the issues at trial, to thereby allow only relevant evidence to be admitted at trial and for the trial to be conducted efficiently within permissible bounds: see, eg Dare v Pulham[1982] HCA 70; (1982) 148 CLR 658 (at 664–665). However, it is also well-established that pleadings are not an end in themselves, instead they are a means to the ultimate attainment of justice between the parties to litigation: see Banque Commerciale S.A. (in liq) v Akhil Holdings Ltd[1990] HCA 11; (1990) 169 CLR 279 (at 293) per Dawson J who cites Isaacs and Rich JJ in Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490 (at 517). For these reasons, the courts do not, at least in the current era, take an unduly technical or restrictive approach to pleadings such that, among other things, a party is strictly bound to the literal meaning of the case it has pleaded. The introduction of case management has, in part, been responsible for this change in approach: see the observations of Martin CJ in Barclay Mowlem Construction Limited v Dampier Port Authority[2006] WASC 281; (2006) 33 WAR 82 (at [4]–[8]). Even before the widespread use of case management, the High Court reflected this approach in decisions such as Leotta v Public Transport Commission (NSW)(1976) 50 ALJR 666 (at 668–669) per Stephen, Mason and Jacobs JJ and Water Board v Maustakas[1988] HCA 12; (1988) 180 CLR 491 (at 497) per Mason CJ and Wilson, Brennan and Dawson JJ.
By the original application, the Applicant elected that the smalls claims procedure would not apply. Accordingly, it did not proceed as a “small claim” for the purposes of s.548 of the Act and the ordinary rules of evidence and procedure under the Federal Court Rules 2011 (Cth) applied: r.1.06 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (FCFCOA Rules); Div 16.1 Federal Court Rules 2011 (Cth) (Federal Court Rules). Relevantly, the Federal Court Rules provide:
(a)a pleading must identify the issues that the party wants the Court to resolve: r.16.02(1)(c);
(b)a pleading must state the material facts on which the party relies that are necessary to give the opposing party fair notice of the case to be made against that part at trial, but not the evidence by which the material facts are to be proved: r.16.02(1)(d);
(c)a pleading must state the provisions of any statute relied on and the specific relief sought or claimed: r.16.02(1)(f);
(d)a pleading must not fail to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading or otherwise be an abuse of the process of the Court: r.16.02(2)(e) and (f);
(e)a party is not entitled to seek any additional relief to that claimed in the originating application: r.16.02(4); and
(f)a party must plead a fact if it is necessary to meet an express denial or if failure to do so may take another party by surprise, except that a party need not plead a fact if the burden of proving it does not rest with them: r.16.03.
The Court has a broad discretion to dispense with the rules about the requirements of pleadings: r.1.34 of the Federal Court Rules; r.1.07 of the FCFCOA Rules. And the Court may make any order that the Court considers appropriate in the interests of justice.
As outlined at [14] above, the Applicant’s pleadings identified “The General Protections Claim” by reference to ss.340, 343, 351 and 352 of the Act. In so describing the claim at paragraph [14], I have adopted the most favourable interpretation to the Applicant by understanding the alleged contraventions by reference to background facts or context that were plainly included in the pleadings and by which the Company was able to understand the case it had to answer. Broad and unspecified allegations about informal inquiries have not been included in accordance with the orthodox approach to pleadings and rules of procedural fairness.
However one additional matter was raised in the Applicant’s written submissions filed 25 September 2022 which in my view warranted distinction. That is, the Applicant explained that he wanted the Court to find that his dismissal was also because of his political opinion and a further particularisation of an alleged contravention of s.351 of the Act. The Company was able to and did answer this allegation. In this respect, I am minded to view this amendment as correction of a technicality in the knowledge that the Company was sufficiently on notice of and had the opportunity to anticipate the case before it and properly address the claims made.
The Applicant’s materials also contained references to what might properly have amounted to but were not plead as additional causes of action and were not properly articulated or particularised as such in any of the materials. Those matters included alleged: breach of occupational health and safety legislation, breach of privacy laws and a possible contravention of the H.B Fuller Company Australia Ltd Enterprise Agreement 2019. To the extent that the Applicant, in submission and/or at trial, sought to expand his pleadings to include these matters I would not allow it. To do so would not rectify a mere technicality and would be to allow the Company to be essentially ambushed. I am not persuaded this would be an appropriate case, including when regard is had to the serious nature of the remedies sought which include penalties: Australian Building and Construction Commissioner v Hall [2016] 261 FCR 347 at [41]-[46] and [50]. However, these matters appear to bear some relevance to the factual context of the case as it was plead and have been taken into account for that purpose.
For completeness, in considering the approach to the pleadings, I have had regard to the fact that the Applicant is a lay-person who represented himself at the hearing. Having had the assistance of representation to prepare his pleadings, the Applicant chose to defend the case without representation. The reasons why he chose to self-represent are ultimately a matter for the Applicant but the challenges faced by every self-represented litigant in this jurisdiction do not excuse a failure to adhere to the requirements of pleadings which are intended to ensure a fair trial for all.
Accordingly, I turn to consider the evidence as relevant to what may be described as the grounds of the application.
FACTUAL FINDINGS
Some initial observations about the evidence.
The Applicant’s First Affidavit was drafted in third person as though it were written by someone other than the Applicant. In large part, it read as a submission and in those respects was inadmissible. The Applicant’s First Affidavit included 50 annexures. The Applicant’s Second Affidavit contained no deposition and was comprised wholly of 11 annexures. At the hearing, of those annexures that remained in evidence, the Applicant swore to the truth and accuracy those records.
The Company’s evidence, particularly that of Mr Dorgan, contained various statements that could be described as a submission or otherwise constituted self-serving conclusions. Mr Dorgan’s written and oral evidence was vague about dates (or inaccurate, compared to the contemporaneous records and accounts of others). Mr Dorgan gave a general or high-level perspective on various matters which did not take those matters further in most instances but also annexed 24 documents which comprised mostly records of communications that he swore to as true and accurate.
There were also a number of strong contests in evidence over fine points of distinction.
Having regard to these difficulties with the evidence, wherever possible the source documents have been relied upon to establish the facts.
The following constitutes the factual findings I have made as to the matters relevant to the claim.
About the Respondent Company
The Company is a manufacturer of adhesives, solvents and silicones. It is a global business with a plant in Dandenong, Victoria (Site) where it employs around 50-60 operations employees.
Terms and conditions of employment
In 2018 the Applicant initially completed a traineeship with the Company. By the most recent contract of employment dated 30 January 2019 (Employment Contract), the Applicant was engaged to work as a full-time Maintenance Technician (although, it seemed uncontroversial that the role was commonly referred to as “Maintenance Fitter”).
The Applicant’s role involved responsibility for conducting preventative maintenance and repairs to the machines used for the Company’s manufacturing operations including installation, commissioning parts, maintenance and repair of plant and processing equipment. The Applicant’s role was an essential role in terms of ensuring the safety of the plant and equipment, operators and employees of the Company and involved some physically demanding work.
The Employment Contract provided (among other things) that:
(a)The employment was covered by the H.B. Fuller Company Australia Pty Ltd Employee Collective Agreement 2015 (2015 Enterprise Agreement);
(b)The Applicant’s duties and responsibilities included: those described in the 2015 Enterprise Agreement; together with such additional duties and responsibilities as required by the Company from time to time provided they were within his skills, training, education and experience; and subject to variation to allow the Company to respond to changes to its requirements;
(c)The Applicant was also responsible to:
(i)diligently and faithfully perform his duties and responsibilities in the best interests of the Company and to act in compliance with lawful directions;
(ii)ensure that all Company equipment was appropriately used, secured and maintained;
(iii)comply with the Company’s policies, procedures and practices as prescribed and amended from time to time;
(d)The Applicant’s primary responsibilities included but were not limited to:
(i)generic skills, such as follows defined OH&S policies and procedures;
(ii)and production skills, such as operates production equipment in accordance with [Safe Operating Procedures], diagnoses production faults from equipment operation, undertakes minor maintenance, samples and tests materials and collects and provides information as required; and
(e)The Applicant reported to Mr Ramamurthi (Engineering and Property Manager at the Site).
On 1 February 2019, the Applicant signed the Employment Contract in confirmation of his acceptance of the terms and conditions therein.
The 2015 Enterprise Agreement referenced in the Employment Contract was replaced by the H.B Fuller Company Australia Ltd Enterprise Agreement 2019 (2019 Enterprise Agreement), which commenced operating on and from 17 September 2019. The 2019 Enterprise Agreement, in force at the relevant times, most relevantly included the following terms and conditions of employment applicable to the Applicant:
(a)Salary and allowances (cl.14 and 15 and 17);
(b)Hours of work (cl.16, 18 and 19);
(c)Annual leave, entitlement to four weeks’ paid leave for each year of service and an additional week for a shiftworker as defined, annual leave “to be taken at a time mutually convenient to the Employee and H.B. Fuller” (cl.20.1);
(d)Personal/carers leave, entitlement to 10 days’ paid personal/carers leave for each year of service, when employees are absent from work in circumstances of personal illness or injury (personal/sick leave) or to care for a member of their immediate family or household, with an employee to notify their supervisor as soon as reasonably practical and from day to day preferably before the commencement of the day of the employee’s inability to attend for work and to provide the Company with reasonable proof that the absence was a result of personal ill health or injury which may require production of a medical certificate from a registered medical practitioner or a statutory declaration (cl.20.6);
(e)National Employment Standards (NES) precedence, provision for where the NES in the Act provided an entitlement more favourable to the Applicant then the NES would prevail in that respect and the provisions dealing with that matter would have no effect in respect of that employee (cl.4.2);
(f)Health and safety, including conditions that employees will wear approved clothing and protection provided by the Company and that employees comply with all reasonable instructions to protect their own health and safety and the health and safety of others (cl.7);
(g)Fitness for work, that other than when incapacitated by illness or injury each employee must present themselves for work on all occasions ready, willing and able to perform their normal work in a manner that will be safe for all employees (cl.8);
(h)Medical examination, that the Company may require an employee to attend a doctor nominated by the Company to ascertain the employee’s fitness or capacity to undertake their duties (cl.9.1);
(i)Termination, the Company may terminate an employee’s employment by giving written notice of the termination of employment in accordance with the periods of notice set out therein (cl.23); and
(j)Disciplinary action, for failure to comply with obligations in the 2019 Enterprise Agreement which may include termination of employment (cl.24).
The Company’s operations at the Site
At the relevant times, the Company’s manufacturing operations ran across day and afternoon shifts with two Maintenance Fitters rostered on to each shift. During day shifts, one Maintenance Fitter was responsible for preventative maintenance and the other Maintenance Fitter was responsible for repairing any breakdowns of machinery during that day. During afternoon shifts, there was only one Maintenance Fitter rostered on to attend to repairs and smaller preventative work tasks.
According to Mr Ramamurthi, if there was no Maintenance Fitter on a shift, then the Company’s operations may be severely interrupted if a machine broke down which could be very costly and impact productivity. In Mr Ramamurthi’s experience, it was difficult to find appropriately skilled persons for the Maintenance Fitter role and then took significant time to train a person in how to maintain the Company’s machinery properly – usually at least 6 to 8 months.
There were standard operating procedures (SOPs) for each piece of machinery and equipment at the plant on the Site. SOPs were the proper operating practices aimed at ensuring the safety of the plant operators and other employees on the Site. For certain equipment, SOPs required the operator to wear personal protective equipment, including items such as safety glasses, face shields, bump hats, gloves and protective shoes.
Global COVID-19 pandemic
On 11 March 2020, the World Health Organisation declared a COVID-19 pandemic. Subsequently, the Victorian Government introduced various public health directions and orders.
The Company established a “Pandemic Committee” which was comprised of 4 members: Mr Dorgan (National Human Relations Manager Australia and New Zealand), Mr Lewis (Operations Manager Australia and New Zealand), Mr Rae (Production Manager and Environment Health and Safety Manager) and a Mr Ahmed Khafagi (General Manager). In cross-examination, Mr Dorgan gave evidence that the Pandemic Committee was part of the Company’s safety plan but not responsible for industrial relations matters. They met weekly to deal with the changing requirements at the time including work permits for authorised workers and later, vaccinations, but mostly about the communication of the Government’s developing requirements at the time.
Direction to wear face mask at work
On or around 25 May 2021, the Victorian Government introduced a requirement that all employees wear a face mask at all times while at work. Mr Dorgan’s evidence was that the Company directed all employees to adhere to this rule and wear a face mask at all times whilst on Site. He said directions and reminders were given by way of morning toolbox meetings and email. One example of such an email dated 27 May 2021 was in evidence and relevantly provided that:
1.Face masks – Victorian Government made changes to the face mask rules. We will follow the Victorian Government requirements in regards to face masks in the workplace. (Sydney is not affected ) These are:
•A face mask must be carried with you at all times while on-site
•A face mask is required to be worn all the times and special attention when within 1.5m of another person.
•High frequency areas such as the factory changing rooms and canteen a mask “MUST” be worn at all times except when eating or drinking.
…
5. Working from Home – All employees after consultation and agreement with their supervisor, can consider WFH arrangements only if the role permits with no disruption to business requirements.
(sic.)
Direction to get vaccinated or disclose vaccination status
On 1 October 2021, the Victorian Government issued a media release regarding its intention to introduce mandatory COVID-19 vaccination requirements.
On 4 October 2021, by decision of the Company’s Pandemic Committee and notwithstanding that there was limited information available to the Company at the time, a “town hall” meeting was held with all employees on Site to inform them about the Victorian Government’s impending vaccine mandate and answer any questions. Mr Khafagi addressed employees at this meeting. Of that address, Mr Dorgan recalled that Mr Khafagi had:
(a)informed employees that the direction would give them until 15 October 2021 to get vaccinated against COVID-19 or disclose their vaccination status to the Company; and
(b)said that the Company would try to work with employees, for example by allowing them to take annual leave if they required additional time to get vaccinated and more information would be provided as soon as possible.
Mr Dorgan’s evidence was that he had also addressed employees at the conclusion of Mr Khafagi’s speech and advised that each application for leave would be considered on a case by case basis given the mixture of employees working from home and performing work at the Site. Mr Lewis said he was there but did not recall anything more being discussed than a general warning and that employees were to be kept updated as more information came to light.
The Applicant was also there and recalled that a question was asked at the town hall meeting about whether employees would be terminated if they were unvaccinated after 15 October 2021. His recollection was that Mr Khafagi responded to the effect that: the Company was not considering termination as an option for anyone; and employees would be allowed extra time to utilise their annual leave or, if annual leave was exhausted, further unpaid leave on a case by case basis.
On or around 5 October 2021, the Victorian Government introduced mandatory COVID-19 vaccination directions.
On 5 October 2021, Mr Dorgan sent an email to all employees including the Applicant with the subject line “Vaccination required to protect workers and Victoria” and attached a memorandum. On the face of that memorandum, employees were advised:
The Victorian Government is requiring all Authorized employees to get vaccinated in an effort to drive down Covid cases ahead of the state’s reopening and as part of Victoria’s Plan to Deliver the National Roadmap.
On the advice of the public health team, all workers – in Melbourne and regional Victoria – on the authorized Worker list will require their first COVID-19 vaccine dose by Friday, 15 October in order to continue working onsite. They will need to be fully vaccinated by 26 November.
H.B. Fuller is a global manufacturer that supports customers in agricultural produce, processed food packaging, beverage packaging, hygiene product manufacture and building/construction materials. The work performed is categorized as authorized work and as such, deems HB Fuller as a ‘Authorized Provider’.
In essence this will mean that all employees in Victoria will be bound by these restrictions. Below is a set of Q&A to assist with any questions that surround the announcement made by the Victorian Government.
When do workers have to be vaccinated by?
In order to continue working on site, they will need to have the first dose of the vaccine by 15 October, and the second dose by 26 November. All workers will be required to validate their vaccination status.
Do these conditions cover other people coming on site?
All Casuals, Customers, Contractors and Visitors will be required to validate their Vaccination Status by a permit before being allowed to visit or perform work on the premises.
What if I don’t want to get vaccinated?
Unfortunately, like all other businesses subject to this governmental directive, we are not permitted to allow employees access to the workplace. All employees are free to access what leave they have accrued. Further unpaid leave can be requested an approved on a case by case basis.
More information can be obtained from the Victorian Government Website: for your support and co-operation. If you have further questions in relation to this matter, please talk to your manager or contact me on my mobile.
In cross-examination, Mr Dorgan was asked about the 5 October 2021 memorandum. His evidence was that the extent of the information in the memorandum under the heading “What if I don’t want to get vaccinated?” was modelled off the public health directive at the time and nothing further was included because the Company held the belief at that time that most people would want to get vaccinated. He did not include any information for people who did not want to disclose their vaccination status because he did not think anyone in the organisation would not tell their managers their vaccination status. Also in cross-examination, Mr Rae gave evidence that a safety risk assessment was not done prior to introducing this direction.
Following the 5 October 2021 memorandum, Mr Rae was responsible to follow up and confirm the vaccination status of each employee. He requested that employees provide evidence in the form of a copy of their vaccination certificate. An example of one such email Mr Rae sent to Melbourne employees on 12 October 2021 was in evidence before the Court.
Applicant’s responses to the COVID-19 directions at work
Direction to wear face mask at work
Initially following the Company’s direction to wear a face mask at work, the Applicant wore a face mask whilst performing his duties at work. The Applicant said that he experienced dizziness and headaches after wearing a mask full-time.
On 26 May 2021, Mr Ramamurthi observed the Applicant performing work without a face mask and wearing a self-made badge which said that he had a medical exemption. There was a meeting on that day between the Applicant, Mr Rae and Mr Ramamurthi, during which the Applicant said that he did not have a medical certificate in support of his claimed medical exemption to wearing a face mask and cited publicly available (online) information about exemptions. Mr Rae gave evidence that he was not sure at that time if a medical certificate was required to prove a claimed medical exemption and therefore agreed that the Applicant could perform work without a face mask for the time being.
Around early June 2021, Mr Lewis recalled that employees on the Site were nervous about the spread of COVID-19 which was then reaching its “peak”. At around the same time, the Company received a complaint from a supplier because the Applicant had attended their shop without wearing a face mask.
On or around 3 June 2021, Mr Dorgan met with Mr Rae, Mr Lewis and Mr Ramamurthi to discuss concerns raised by a number of employees that the Applicant was not wearing a face mask whilst at work. Mr Dorgan, Mr Rae and Mr Lewis resolved that a face shield would still offer some protection to other employees in the workplace and it was appropriate to require the Applicant to wear a face shield whilst at work going forward. In cross-examination, Mr Rae gave evidence that a safety risk assessment was not conducted as part of this decision.
Subsequently on 3 June 2021, the Applicant was provided with a face shield. Whether or not he agreed to wear it (which was disputed), an email of same date was in evidence wherein the Applicant confirmed he had worn a face shield for the first half of the shift. In that email, the Applicant told Mr Lewis that his experience was no different than with a face mask - the face shield was uncomfortable and restricted his natural airflow, he experienced a headache and dizziness after work, the issue was adversely affecting his psychology and he would not be able to wear a face mask or a face shield due to the significant impact on his health and wellbeing.
On 4 June 2021, the Applicant commenced work without wearing a face mask or shield. There was a meeting between the Applicant, Mr Rae and Mr Lewis on that day in which the direction to wear a face mask or shield was discussed. Although their accounts differed slightly, the differences turned mainly on characterisation:
(a)Mr Lewis’ evidence was that he and Mr Rae had advised the Applicant that he should not have stopped wearing the face shield without discussing the matter with them first, to which the Applicant said the face shield gave him headaches.
(b)Mr Rae recalled that the Applicant was told that he had to either wear the face shield while at work or provide written confirmation from his treating doctor as to the nature of his medical condition. Mr Lewis similarly recalled that the Applicant was told he needed to wear the face shield and provide a medical certificate, and also recalled that their rationale for requiring more information was explained to the Applicant as so that the Company could manage the issue and better understand what was going on.
(c)The Applicant characterised the direction given in this discussion as a demand. Mr Lewis denied “demanding” that the Applicant obtain a medical certificate.
(d)By Mr Rae’s contemporaneous file note, Mr Rae characterised the Applicant as having “made it clear a number of times that he did not believe that face masks or face shields were effective at controlling the COVID-19 virus and that he was sceptical about COVID-19 in general.”
Subsequently on 4 June 2021, Mr Rae sent the Applicant an email (on which Mr Lewis was copied) which provided questions that the Company required the Applicant’s doctor to answer.
On 11 June 2021, the Applicant emailed Mr Rae attaching a medical certificate completed by a general practitioner dated 10 June 2021 which stated:
Mr. Nikhil Gogulwar has a medical condition – please exempt him from wearing mask and face shield at work.
Mr Rae gave evidence that he did not consider the information in the medical certificate sufficient to be able to assess what accommodation or adjustment the Company was required to make so that the Applicant could safely perform his role and in order to manage the Applicant’s condition whilst protecting the safety of other employees. The Company’s nominated medical practitioner declined to conduct such assessment having no knowledge of the Applicant’s medical history. The Company resolved to request the Applicant’s treating doctor to answer questions to assist it in conducting such assessment.
The Applicant claimed that, on 15 June 2021, he was handed a letter for his doctor and asked not to attend for work until his medical practitioner had addressed the letter. Mr Lewis did not remember this. Having regard to all of the materials before the Court, I prefer the Applicant’s clear recollection that he was not to attend for work from 15 June 2021 which Mr Lewis did not expressly contradict (he simply could not recall) and also accords with Mr Lewis’s other evidence that the very next discussion with the Applicant about modifications to his role took place by telephone not in the workplace as with the previous meetings. There was no dispute that the Applicant was paid for this time as Mr Lewis said would have been the case.
Also on 15 June 2021, Mr Dorgan emailed a letter to the Applicant’s treating doctor (prepared by Mr Dorgan, together with Mr Rae) which stated that the Company was concerned that the Applicant: had been allowed to work without a face mask but directed to wear a face shield; claimed that the face shield restricted his breathing and if worn for extended periods gave him a headache and caused dizziness; and may cause harm to himself or others during his daily work (questions posed outlined along with responses, in the below).
On 16 June 2021, Mr Rae telephoned the Applicant’s doctor and asked for verbal responses to the 15 June 2021 questions. By Mr Rae’s contemporaneous file note, the italicised text was noted as responses given by the doctor and subsequently relayed to Mr Dorgan, Mr Lewis and Mr Ramamurthi:
1.What is the medical condition? If Nikhil does not want this revealed to The Respondent, then please confirm that there is a medical condition
Yes. Dr Yang could not reveal the condition at the request of Nikhil. However he confirmed there was a medical condition.
2.What are the symptoms of the medical condition?
Headaches, agitation, trouble concentrating.
3.Does the medical condition prevent him from wearing a mask or face shield?
Yes, if worn for extended periods. 1 to 2 hours continuously. Or if worn while doing physical work.
4.If so, for what period of time can he wear it without symptoms?
1 to 2 hours.
5.Can the face shield be worn with breaks, without experiencing symptoms?
Yes. Recommend wearing for periods of up to 1 hour continuously with a 5 minute break in between.
6.Is Nikhil at risk from wearing face shields, dust masks, or welding masks during the normal course of his daily work?
No
On 18 June 2021, Mr Rae emailed the Applicant’s doctor in which he sought to confirm that his file note of their discussion on 16 June 2021 was correct in the doctor’s opinion. There was no evidence before the Court as to whether the doctor responded to that email.
Also on 18 June 2021, Mr Rae and Mr Dorgan spoke with the Applicant by telephone about the doctor’s recommendations, namely the doctor’s view that the Applicant could wear a face shield at work for periods of 1 to 2 hours with a 5-minute break with the shield up. Mr Dorgan deposed to his recollection that he had told the Applicant that is was up to him to use his discretion to decide when to take the 5-minute break although this should not be done in the presence of other employees. Both Mr Dorgan and Mr Rae deposed that the Applicant agreed to this and did not raise any concerns with this approach during this conversation, or during his employment. The Applicant’s only affidavit evidence of this discussion did not dispute these events and essentially amounted to a submission about why this arrangement did not adequately address the doctor’s advice and personal protective equipment (safety) requirements – and has been received by the Court as such.
A copy of the transcript of the telephone call between Mr Rae, Mr Dorgan and the Applicant was in evidence. The Company opposed its receipt on grounds that Mr Rae and Mr Dorgan were not aware it was being recorded and it was unlawfully obtained in breach of the Applicant’s Employment Contract. The record was permitted and did not disclose any contradiction of these accounts in evidence. However it did disclose that Mr Rae and Mr Dorgan also expressed the Company’s concern for the safety of other employees who held their own concerns and that they told the Applicant that was why they were enforcing the direction to perform the duties in this modified way with breaks and socially distant from other employees.
Mr Dorgan also gave evidence of his opinion that there was no difference between the work performed by the Applicant before the mask mandate and after the mandate, that before the mandate there were tasks the Applicant would perform with a face shield and there were no issues raised and it was unclear why there was an issue with the face shield after the mandate. At the same time, Mr Dorgan accepted that the tasks the Applicant was performing before the mandate with a shield were few, such as high pressure washing and welding and for a short period of time. In cross-examination, the Applicant sought to discredit Mr Dorgan’s evidence by questioning his knowledge of the Applicant’s role. To the extent the evidence of Mr Dorgan was admissible, I prefer the Applicant’s account of the sort of work his role ordinarily entailed.
Mr Dorgan also gave evidence that, following this discussion with the Applicant, he considered the mask issue to be resolved given the Applicant had agreed to follow the doctor’s direction and the Company had accommodated the Applicant further by allowing the Applicant take additional breaks as necessary on his own discretion. There was no evidence before the Court that the Applicant’s mask or shield wearing practices continued to be an issue for the Applicant or the Company or was raised again by or with the Applicant after that time.
Direction to get vaccinated or disclose vaccination status
On 1 October 2021, the Applicant was called in to Mr Lewis’s office and was given a copy of the Victorian Government’s media release issued that same day. Mr Lewis accepted that he did so because he was generally aware from discussions with Mr Rae and Mr Ramamurthi (his direct reports) that the Applicant was concerned and reluctant about the introduction of the vaccine mandate and wanted to make the Applicant aware of the key dates. The Applicant characterised this discussion as that Mr Lewis had “dictated” that he needed to get the vaccine and show proof of vaccination before 15 October 2021 or he would not be permitted to attend the workplace. Mr Lewis denied such characterisation however both accounts support a finding that Mr Lewis made clear that a vaccine mandate was going to be imposed by the Victorian Government and the Company would require all employees to comply.
On 5 October 2021, in response to the Company’s 5 October 2021 memorandum (with the vaccination direction), the Applicant sent an email to Mr Dorgan in which he queried the year from which the vaccine mandate would apply and stated he could not effectively respond to the email and make an informed decision in the absence of this information. On 6 October 2021, Mr Dorgan sent an email to the Applicant in reply in which he confirmed the vaccine mandate deadline would apply from 2021 and directed the Applicant to further information on the Victorian Government website. Copies of this email exchange were in evidence before the Court.
At or around 11 October 2021, the day before Mr Rae had emailed all Melbourne employees to remind them that their vaccination certificate was to be provided by 15 October 2021, Mr Rae raised with Mr Lewis that the Applicant had not yet disclosed his vaccination status. Mr Lewis then telephoned the Applicant and asked him to discuss the issue in person.
On 13 October 2021, the Applicant filed an online complaint form with WorkSafe Victoria which described the Applicant’s safety concerns related to COVID-19 vaccination and requested a risk assessment of his business practice area. In that complaint, the Applicant stated that he disagreed with the Victorian Government (Acting Chief Health Officer)’s directions made under the emergency powers for public health and wellbeing and that these could be read in isolation of the Fair Work and other workplace, discrimination, privacy, health and safety laws. He also expressed his view that the Company had not complied with s.35 of the Occupational Health and Safety Act 2004 (Vic) because it had not provided relevant information or consulted with him about alternatives. The complaint also included the following:
Formal Complaints
I formally complain under s 341 of the Fair Work Act 2009 (Cth) (‘the FWA’) that any suggestion that OH&S consultation is unnecessary because of the directive is misleading about my workplace rights and may be conduct contrary to s.345 of the FWA.
Potential Industrial Dispute
If my industrial instrument prescribes a dispute that the above applies to, this is also a notification of a Stage 1 industrial dispute under this instrument.
Complaints about Unlawful Discrimination and Privacy
Further, I complain the mandate may amount to discrimination, breach of privacy and is contrary to my human rights including my employer forcing me indirectly, uninformed consent to a medical procedure, and I wish to meaningfully engage in the complaint with my employer.
Complaint under Complaints Process or Code of Conduct (if any)
Finally, I am formally complaining about my employer’s complaints’ policy and if this letter is not sufficient, please provide the proper form to me, albeit my complaint is self-explanatory.
I would say that any attempt to suggest I am behaving with misconduct or not following lawful orders cannot be a reason now that you have the benefit of this correspondence.
I foreshadow being represented if the above is ignored or rejected and if we have not resolved within two days: I appoint:
Schedule of Contacts
1.Red Union Support Team on behalf of my industrial associates
P: (07) xxxx xxxx
2.Or if they are not recognised by my employer, Supportah Australia Industrial Advocates;
P: 1800 xxx xxx
3.Or if they are not recognised by my employer, Jack McGuire, Kathleen Campbell, Miles Heffernan, and Aenghas Hopkinson-Pearson in their personal capacity
P: (07) xxxx xxxx
On 14 October 2021, Mr Rae raised with Mr Dorgan that the Applicant was the only employee who had not disclosed his COVID-19 vaccination status at that time – Mr Rae deposed that he then left the matter for Mr Dorgan and Mr Lewis to deal with. Mr Dorgan then spoke with Mr Lewis and it was agreed between them that there should be a discussion with the Applicant about the matter and a notice provided to the Applicant.
On 15 October 2021, Mr Lewis met with the Applicant and directed the Applicant to disclose his vaccination status to the Company. The Applicant did not disclose his vaccination status. There were otherwise different accounts of the discussions on this day, which are resolved later in these reasons with regard to the totality of the evidence before the Court:
(a)According to Mr Lewis, the Applicant said words to the effect of: “What will you do if I show up?”. In response, Mr Lewis told the Applicant that the Company could not let him on the Site after 15 October 2021 if he had not been vaccinated and had not confirmed his COVID-19 vaccination status. In reply, the Applicant repetitively said words to the effect of “You do what you need to do for the business.”. Mr Lewis accepted that he may have told the Applicant he was being “uncooperative” and that they were trying to work with him but he was making it hard.
(b)Whereas the Applicant’s evidence was that he had verbally advised Mr Lewis of his intention to take annual leave from 18 October 2021 in order to decide on his position on the mandatory COVID-19 vaccination policy options. For his part, Mr Lewis did not accept that oral applications for leave would ever be allowed. Mr Dorgan acknowledged that an informal leave request by email may ordinarily have been acceptable.
The Applicant also said that, at or around that time, he had informed Mr Lewis, Mr Rae and Mr Ramamurthi of their safety obligation to consult with him and to consider his concerns but that the Company was not willing to have such discussion and reiterated their direction. The Applicant’s affidavit also said that a portion of the WorkSafe complaint was emailed to the Company at the same time (ie. during the 15 October 2021 meeting), but no such email was produced and in cross-examination the Applicant clarified that it was mentioned during the meeting but not sent.
In cross-examination, Mr Ramamurthi accepted that the Applicant raised the need to consult under occupational health and safety legislation with him and recalled having said in response that the Company was obliged to follow the mandatory vaccine policy and no consultation was required for safety purposes. However Mr Ramamurthi denied any awareness of the Applicant’s WorkSafe complaint at that time or during the Applicant’s employment at all.
All of the Company’s witnesses denied any knowledge of the WorkSafe complaint at any time during the Applicant’s employment and said they only found out when WorkSafe attended the Site on 2 and 10 May 2022 or as a result of these Court proceedings.
Disciplinary process
On 19 October 2021, Mr Lewis emailed the Applicant. Attached to the email was a show cause letter that had been drafted by Mr Dorgan on advice of the Victorian Chamber of Commerce and Industry and dated 18 October 2021 (First Show Cause Letter). The First Show Cause Letter referenced the discussion of 15 October 2021 and stated, among other things:
[…]
You have made it extremely clear your intentions of not intending of being vaccinated or making your vaccination status known. You have also indicated your intention is not due to medical reasons, and you have not produced a valid medical exemption.
Under the health orders provided by the Victorian Government, any worker who a site operator does not hold a COVID-19 vaccine record of, whether by reason of refusal or otherwise, are to be treated as unvaccinated. So, as a result, you cannot enter the site and resume any normal duties.
On the evidence presented, HB Fuller is considering terminating your employment due to the inability to fulfil the inherent requirements of your role. Your role is critical to maintain equipment on site in a safe condition for the production of goods by our operational employees.
Before HB Fuller makes a final decision in respect of the termination of your employment, you are invited to provide us with any information (show cause), which may change our decision about your employment.
[…]
The First Show Cause Letter concluded by inviting the Applicant to provide any such information in writing by no later than 21 October 2021 or by discussion at a virtual meeting on 22 October 2021 to which he was invited to bring a support person.
On 20 October 2021, the Applicant sent an email to Mr Lewis in response to the 18 October Letter which stated:
The information circulated by our HR Tim Dorgan mentions accessing authorised leave in case the mandate affects any HB Fuller employee in Victoria. During the latest business review meeting, Mario from the water-based area questioned whether H.B. Fuller will terminate any employee who does not wish to get inoculated. To which Ahmed responded, that the company is not considering this option and offered those employees to access their leave entitlements until there is further clarity on this.
As I choose to protect my sensitive medical information until I make an unequivocally informed decision for myself, without coercion, I was under the impression that I can avail this option. Now, I am puzzled by this sudden change in the company’s decision and I required reasonable time to comment on this matter.
The timeframe allotted to me to attend the show cause meeting is insufficient, as this matter relates to my health and livelihood.
I endeavour to respond to you before November 4th, 2021.
I hope you can understand.
In his evidence, Mr Lewis expressed that it was his view at the time that it would not have been possible to allow the Applicant until 4 November 2021 to respond as this would leave the Company without a Maintenance Fitter for a significant period of time and it would be necessary to find a replacement in the Applicant’s absence. Mr Lewis was also of the understanding that Mr Ramamurthi had “spent a significant amount of time and money on contractors to fill the Maintenance Fitter role while the Applicant was not at work.” He and Mr Dorgan therefore decided to retain the 22 October 2021 meeting date.
On 21 October 2021, Mr Dorgan sent an email to the Applicant in reply to his 20 October 2021 email. Attached to that email was a letter of same date in which Mr Dorgan summarised the Victorian Government’s announcements and direction, stated that the Applicant’s role could not be performed off site and further acknowledged the Applicant’s “personal position” in relation to protecting his sensitive medical information but said that the Chief Health Officer (CHO)’s Directions had been clarified since the 5 October 2021 and the Company’s reference to authorised leave at the 4 October 2021 business review meeting was “in relation to taking time off to receive the 1st vaccination before the deadlines as outlined by the CHO directive below”. The response email also confirmed the meeting scheduled for 22 October 2021 among the following concluding paragraphs:
It is important you understand, in line with the Directions unvaccinated workers and workers who do not provide the relevant information will not be permitted to enter or remain on our premises for the purposes of performing work. In view of this, if you fail to provide the information requested and/or remain unvaccinated, you may be stood down.
Please treat this letter as fair notice that if you fail to comply with this lawful and reasonable direction, you may be subject to disciplinary action up to and including the termination of your employment.
Subsequently on 21 October 2021, the Applicant sent a further email in response to Mr Dorgan’s latest communication. By that email, the Applicant noted the Company’s change in position which he said they could not do “retrospectively all of a sudden” and confirmed he would not be attending the 22 October 2021 meeting as he needed reasonable time to respond. The Applicant also requested that Mr Dorgan “avoid using intimidation, as it is exacerbating my stress”.
On 22 October 2021, the Applicant did not attend the virtual meeting.
On 23 October 2021, the Applicant sent an email to Mr Dorgan and Mr Lewis which attached a letter titled “Mandatory Vaccination Offer” which contents are extracted in full at Annexure A to this judgment.
Also at 7.29pm on Saturday, 23 October 2021, the Applicant sent Mr Ramamurthi a text message which said:
Hi Ravi. Please don’t put me on annual leave for this week. Wait for my response on Monday.
At 11.45am on Monday, 25 October 2021, the Applicant sent Mr Ramamurthi a text message which said:
Following upon my previous message, I will have an answer for you tomorrow. Please hold on to my payment for now.
The Company did not respond to or acknowledge the Applicant’s 23 October 2021 email offer or these texts. The explanation of Mr Dorgan and Mr Lewis in their evidence was as follows:
(a)Mr Dorgan gave evidence that he did not reply because he did not think it was a genuine offer from the Applicant to receive a vaccination and the letter was premised on conditions the Company could not fulfil or answer. In cross-examination he said he would not normally reply to a statement, only if a question is asked.
(b)Mr Lewis deposed that he did not respond to the Applicant’s email because he also did not think it was a genuine offer from the Applicant, rather he thought the Applicant was being evasive and trying to delay the matter by distracting from the Company’s communications to ascertain his vaccination status.
Subsequently on 25 October 2021, the Company sent an email to the Applicant which attached a further show cause letter (Second Show Cause Letter) which stated:
(a)The Company had serious concerns that the Applicant had failed to comply with a reasonable and lawful direction to provide information about his vaccination status, as formally directed in writing on 18 October 2021 (that direction was in fact sent on the morning of 19 October 2021);
(b)As a result, the Applicant was not capable of fulfilling the inherent requirements of his role;
(c)The Company was therefore considering termination of the Applicant's employment; and
(d)The Applicant was invited to respond and show cause as to why his employment should not be terminated at a virtual meeting with Mr Dorgan and Mr Lewis on 27 October 2021 at 11.00am.
Subsequently at 10.32pm on 25 October 2021, the Applicant sent an email to Mr Ramamurthi which said “Hi Ravi, Please see attached letters.” and attached two medical certificates dated 25 October 2021. Both certificates stated that the Applicant “has a medical condition and will be unfit for work”. The first was for the period from 18 October 2021 to 24 October 2021 inclusive and the second 25 October 2021 to 31 October 2021 inclusive. The Applicant told the Court this communication was to be understood as a request to convert to sick leave. The Company did not respond or acknowledge receipt. The Applicant maintained that an email attaching a medical certificate addressed to Mr Ramamurthi would ordinarily have been sufficient for him to take paid personal leave. However Mr Lewis was of the view that the Applicant was not entitled to sick leave on this occasion given he was not at work or on Site because he had not disclosed his vaccination status.
The Applicant did not attend the meeting scheduled for 11.00am on 27 October 2021 and did not answer his telephone when a phone call was made to him from Mr Ramamurthi’s phone at, according to the Applicant’s phone records, 11.35am that day. Mr Dorgan joined the call and Mr Lewis was also present. The accounts were consistent in that the Applicant conveyed he would not be attending the meeting and did not want to talk to anyone over the telephone.
Subsequently at 12.44am on 27 October 2021, the Applicant sent an email to Mr Lewis in which he stated:
I am appalled by your utter disregard for my consistent request of allocating reasonable time to respond to you even after multiple back-and-forth correspondence.
Your constant threats are exerting unconscionable and illegitimate economic, emotional and psychological duress upon me due to which I am unable to attend the meeting today.
I require all your future correspondence to be strictly in writing from hereon.
The dismissal
Subsequently at 5.18pm on 27 October 2021, Mr Lewis sent an email to the Applicant which attached the Company’s decision to end the Applicant’s employment (Dismissal Letter). The Dismissal Letter was in the terms extracted at Annexure B to this decision.
Mr Dorgan’s evidence was that, following the telephone call on 27 October 2021, he and Mr Lewis had made the joint decision to end the Applicant’s employment. All of the Company’s witnesses corroborated that the decision was made by Mr Dorgan and Mr Lewis without input from any other person. Mr Dorgan said that the sole reason for the dismissal was that the Applicant had refused to comply with lawful and reasonable directions to confirm his vaccination status. As a result of this (and the Applicant not having otherwise demonstrated that he had received a COVID-19 vaccination or produced a medical exemption), the Applicant could not perform the inherent requirements of his job which required him to attend for work on Site. Mr Lewis concurred that this was the only reason for the dismissal. Mr Lewis also gave evidence that the Company would have worked with the Applicant had he only disclosed his vaccination status. For his part, Mr Lewis said he felt disappointed that the Company was left in the position where they effectively had no choice than to terminate the Applicant’s employment for this reason because good maintenance fitters are critical to the business and hard to find. Both Mr Dorgan and Mr Lewis denied there being any other reason including any of those alleged in these proceedings.
At the hearing, Mr Dorgan and Mr Lewis were cross-examined about the decision to end the Applicant’s employment. They were each unwavering on the reason for termination and that there was no other reason and respectively denied that the decision to dismiss the Applicant had anything to do with his political views. Both Mr Dorgan and Mr Lewis denied that the Applicant’s political opinion was a reason for the Applicant’s dismissal.
Following the termination, the Applicant commenced proceedings in the Fair Work Commission. On 11 January 2022, the Fair Work Commission issued a certificate which stated that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful.
Other
Approval of paid leave for other employees
Mr Lewis gave evidence that another employee, who is de-identified for the purposes of this decision, had applied and was approved for annual leave in order to reflect on whether or not to take a COVID-19 vaccination. Mr Lewis said he understood that person had disclosed their vaccination status to the Company.
Bullying and harassment - complaints by and about other employees
The Applicant was not specific about the date(s) but gave evidence that he had made verbal complaints to Mr Ramamurthi that a co-worker, a Ms Sharon Collie, was constantly harassing him about his face shield eg. that it was up whilst driving a forklift and when doing physical tasks even when the Applicant had informed her of his reasons. The Applicant claimed that these complaints were ignored. Mr Ramamurthi recalled the matter being raised with him in June or July 2021. Mr Ramamurthi denied that the term “harass” was used by the Applicant when raising the matter with him. Mr Ramamurthi recalled that he advised the Applicant that it was Ms Collie’s right to raise her concerns with him in a safety context using a Site SOP called a “Stop Card”. Mr Ramamurthi said that he also reminded the Applicant that whilst working on a forklift he must have his face shield down and, if needed to take a break, he must do so whilst away from other people and not while operating machinery.
The Applicant also gave evidence of 2 other co-workers who he alleged had called him “an Indian variant of delta” and a “pussy” on numerous occasions. The Applicant’s evidence described these allegations under the heading “Bullying Incident (July to September)” but did not contend to have specifically raised this with a manager or other person on the Site.
WorkCover claim
The Applicant’s affidavit said that, on 28 September 2021, he attended a doctor for medical assistance and was given a mental health care plan prompted by these issues and the change he felt in other people’s behaviour toward him.
The Applicant’s evidence also included a witness statement of Mr Ramamurthi and his interview on 24 March 2022 with a WorkSafe investigator.
At the hearing, the Applicant was understood to contend that he had a workplace injury caused by the wearing of the mask and for which he raised a WorkCover claim and the injury was acknowledged but the claim did not succeed because the mandates were found to be reasonable management action.
WorkSafe Investigation
On 2 May 2022, WorkSafe conducted an inspection of the Site for the face shield allegations and concluded that a risk assessment was not conducted with regard to having to wear a face mask or shield, however at the time, the mask mandate was enforceable without the need for a risk assessment and the face shield was considered a reasonable alternative to the face mask. By the reports, the inspector concluded that should the individual return to work at the Company’s Site and the mask mandate return, a combination hard hat and face shield would be correct personal protective equipment. On 10 May 2022, WorkSafe conducted another inspection of the Site for the vaccine allegations and by the report concluded that appropriate action was carried out by the Company in relation to monitoring the vaccination status of their workforce.
FIRST GROUND - DISMISSAL WAS BECAUSE THE APPLICANT HAD AND EXERCISED WORKPLACE RIGHTS
Statutory framework
Part 3-1 of the Act is titled “General Protections”.
Within it, “Division 3 – Workplace rights” includes provisions designed to protect “workplace rights” and the exercise of those rights.
In relation to the first ground, the starting point is s.340(1) which relevantly provides (and at all relevant times, provided):
Protection
(1)A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
“Adverse action” is defined at s.342(1). Adverse action is taken by an employer against an employee if the employer:
(a)dismisses the employee;
(b)injures the employee in his or her employment;
(c)alters the position of the employee to the employee’s prejudice; or
(d)discriminates between the employee and other employees of the employer.
Sub-section 342(2) goes on to clarify that the meaning of “adverse action” includes a threat of such action: s.342(2)(a). There are then exceptions for action authorised by or under certain State, Territory and Commonwealth laws and employees in certain stand-down situations none of which apply here: s.342(3).
“Workplace right” is defined at s.341, in three broad categories which relevantly provides (and provided) as follows:
Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee – in relation to his or her employment.
“Workplace law” is defined to include the Act and “...any other law of the Commonwealth, a State or Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters)”: s.12 of the Act.
Division 7 is titled “Ancillary Rules” and recognises that some adverse action may be taken for more than one reason. In order to be actionable under Part 3-1, it is sufficient that the relevant adverse action is taken for reasons that include a proscribed reason: s.360.
The statute also provides a rebuttable presumption concerning the proof of the reasons for which adverse action was taken: s.361. That is – if, in an application in relation to a contravention of Part 3-1 of the Act, a person is accused of having taken action for a particular reason or with particular intent and if the taking of that action for that reason or with that intent would constitute a contravention of Part 3-1 then it is presumed that the conduct was engaged in for that reason, unless or until the person who engaged in it proves otherwise.
Section 340 is a civil remedy provision. The Act confers jurisdiction upon this Court to hear applications for relief relating to contraventions of civil remedy provisions: s.539(2). That power extends to relief in the form of declarations, compensation and penalties: ss.545 and 546. A person may be taken to have contravened a civil remedy provision if they were in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention: s.550(1).
Consideration
The adverse action(s)
In the present case, there is no dispute and I find that the Applicant’s dismissal constituted an adverse action for the purposes of s.342(1) item 1(a).
The Applicant contended that the dismissal was also an adverse action in that it constituted an act of discrimination between him and other employees. In Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27 (Sayed), Justice Mortimer (as she then was) considered that “discriminate” in the context of s.342(1) item 1(d) is properly construed as an employee being treated differently from other employees for an irrelevant reason as proscribed in the Act (in that case, as proscribed at s.351).
In being dismissed by reason of his failure to comply with the direction to disclose his COVID-19 vaccination status, I find that the Applicant was not treated differently to other employees. There is no evidence before the Court of any other employee terminated for this reason. However there is sufficient evidence before the Court to demonstrate that all employees were asked to disclose their vaccination status consistent with the Victorian Government directions.
All employees were also asked to wear a face mask. I accept that the only reason the Applicant was treated differently in relation to this requirement was in a genuine effort to address his doctor’s opinion (once and to the extent it was provided). The Applicant was also treated differently in a genuine endeavour to accommodate his expression of difficulties prior to providing information from his doctor.
The evidence established that one employee was afforded access to approved leave whilst they decided whether to get vaccinated and that this person had elected to disclose their vaccination status to the Company as directed. The Applicant’s circumstance was different to this in ways that were within the Applicant’s control. That is, even if he were found to have informally requested to take paid annual leave for the purpose of considering the vaccination (about which there is some doubt, considered further below), the Applicant never disclosed his vaccination status to the Company. The Applicant’s approach in refusing the Company’s requests to meet and discuss the vaccination disclosure direction, which were an opportunity to discuss leave and other possible options, caused to escalate the matter to and through a disciplinary process about his failure to follow a lawful and reasonable direction. Putting to one side for now Regardless of whether it was necessary or reasonable for the Company to require disclosure of an employee’s COVID-19 vaccination status before approving leave, in my view the Applicant was treated in the same way as other employees were and would have been treated by the Company in the same situation.
Having identified the adverse action taken by the Company for the purposes of s.340 as the dismissal, I turn now to consider the prohibited reason(s) – the alleged workplace right(s) – sufficiently discernible as part of the Applicant’s pleaded case and on which the Applicant relied.
The WorkSafe complaint
I did not understand it to be seriously disputed that the Applicant was able to and did in fact make a complaint under the Occupational Health and Safety Act 2004 (Vic) to WorkSafe, being a body with capacity under a workplace law to seek compliance with that law and was therefore a workplace right within the meaning of s.341(1)(c)(ii): see also defined terms at s.12 of the Act. That is, at least to the extent that the WorkSafe complaint raised issues within the Victorian safety regulator’s purview.
However, on the evidence before the Court, I prefer the evidence of the Company’s managers that none of them were aware of the Applicant’s WorkSafe complaint until after the Applicant’s dismissal when WorkSafe attended their Site. The WorkSafe complaint was made directly to a third party regulator, via the WorkSafe website. The Applicant’s evidence as to whether and when he notified the Company of having made the WorkSafe complaint was diluted during these proceedings - from an email sent during the 15 October 2021 meeting (which was never produced to the Court) to a mention during that meeting and/or around that time. It may be accepted that the Applicant traversed part of the subject matter of the WorkSafe complaint on or around 15 October 2021, at least with Mr Ramamurthi who accepted they had discussed the general obligation to consult under safety legislation. But that is not the same thing as notifying the Company or any of its managers of the Worksafe complaint itself and falls well short of countering the Company managers’ evidence about their lack of knowledge. In the absence of a direct notification by the Applicant, it is unsurprising that the Company did not learn of the WorkSafe complaint until a later date when it was eventually assessed by WorkSafe, at the earliest on 24 March 2022 when Mr Ramamurthi was interviewed. Indeed, WorkSafe did not attend the Site until 2 and 10 May 2022 and prepared a report on both occasions.
The decision makers in relation to the decision to dismiss the Applicant were Mr Dorgan and Mr Lewis. As I have found that the Company’s decision makers and the other managers closely involved in informing them about the management of the Applicant (Mr Rae and Mr Ramamurthi) were not notified and were unaware of the WorkSafe complaint prior to the Applicant’s dismissal, it follows that the fact of the WorkSafe complaint was not and could not have been an actuating reason for the Applicant’s dismissal.
The alleged harassment and bullying by fellow employees
Notwithstanding that the source of a workplace right to make complaints or inquiries about alleged harassment and bullying was not identified by the Applicant, I did not understand it to be seriously contested that such rights would be anchored at the very least in the general provisions of the Act or state legislation, eg. the Equal Opportunity Act 2010 (Vic).
The evidence nonetheless does not establish that the Applicant made a “complaint” or “inquiry” about the alleged harassment or bullying within the meaning of s.341(1)(c)(ii) of the Act. The threshold for what will constitute a complaint or inquiry for this purpose has been considered in a number of authorities of this and higher Courts and is established as relatively low. That said, it will not be sufficient to establish a “complaint” or “inquiry” within scope of s.341(1)(c)(ii) if a matter was raised without a call to action or call for redress: Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204 at [13].
In the present case the evidence was that in or around early June 2021 the Applicant told Mr Ramamurthi (as his supervisor) that Ms Collie (a co-worker) had spoken with him about not wearing his face shield when performing his duties and that she did not accept his explanation when offered. It was not contentious and on the evidence it may be accepted that, at the time, the dynamic between employees on Site was tense because the COVID-19 pandemic was at its peak. It may be accepted that, at that time in Victoria, fear was heightened amongst employees and at least one supplier to the Site who were in a privileged position to continue working as an “essential business” whilst restrictions on public freedoms were tightening and the instance of the virus was rapidly spreading. The Applicant, who did not wear a face mask at work and did not always wear a face shield at work in exception to the direction that other employees were required to follow, felt that other employees were behaving differently toward him. Whether the Applicant used the term “harass” in bringing his issue with Ms Collie to Mr Ramamurthi’s attention, I prefer Mr Ramamurthi’s account and find that he discussed the matter with the Applicant in early June 2021 and it was resolved at that time. Taking the Applicant’s case at its highest, there is no evidence that the Applicant sought redress or to take the matter further during or following this discussion.
The Second Show Cause Letter was sent on 25 October 2021 and reiterated that the Company was considering termination of the Applicant’s employment because he was not capable of fulfilling the inherent requirements of his role on account of his failure to comply with the Company’s reasonable and lawful direction about his vaccination status.
It was only then, some 7 days after his first day of absence from shift and after the Second Show Cause Letter had issued, that the Applicant supplied medical certificates which certified a “medical condition” and covered the period on and from 18 to 31 October 2021.
Even accepting that the Applicant later attended a doctor and obtained certification of a genuine medical condition that affected his ability to work on and from 18 October 2021, the nature of which was never disclosed.
The Applicant does not succeed in meeting the threshold of a prescribed illness which is described as the second limb above. If, by his email of 25 October 2021, the Applicant sought to have the Court accept that he had proposed to or sought to take a temporary absence due to his illness then an obvious difficulty is that he did not do so in terms of any such workplace instrument. The email request was made some 7 days after the absence from his first shift. For this reason alone, the request did not comply with the conditions of the entitlement to take personal leave under the 2019 Enterprise Agreement being the relevant workplace instrument (or, to the extent it was more favourable, the NES). In this respect it may also be noted that the Applicant was not so incapacitated by his medical condition as to be incapable of any correspondence and indeed had corresponded with the Company about various other matters in the period prior to 25 October 2021. In the circumstances, the delay in providing the medical certificates was not objectively “reasonable”. Although not strictly necessary to determine, it may be noted the evidence that the Applicant supplied was lacking in any detail to substantiate the condition and in the context, raises some doubt as to whether it would satisfy the requirement of reasonable proof in the 2019 Enterprise Agreement or satisfy a reasonable person that the reason for the Applicant’s absence was a personal illness as the NES would require.
Having found that the Applicant has not established an illness or injury of the proscribed kind, this third ground must fail.
FOURTH GROUND – REQUIRED TO WEAR A FACE SHIELD IN CONTRADICTION TO MEDICAL ADVICE AND BY DENYING REASONABLE ACCOMMODATIONS FOR MEDICAL CONDITION AS A DISABILITY
Statutory framework
Relevant to the fourth alleged contravention or ground, Division 5 of the Act provides for “Other protections” which include a prohibition on, relevantly, an employer taking adverse action against an employee because of the person’s physical or mental disability or their political opinion (among other specific attributes):
s.351 Discrimination
(1)[Employer must not discriminate]
An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Note: This subsection is a civil remedy provision (see Part 4 1).
(2) [When employer does not discriminate]
However, subsection (1) does not apply to action that is:
(a)not unlawful under any anti discrimination law in force in the place where the action is taken; or
(b)taken because of the inherent requirements of the particular position concerned; or
(c)if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken:
(i) in good faith; and
(ii)to avoid injury to the religious susceptibilities of adherents of that religion or creed.
[…]
The meaning of “physical or mental disability” for the purpose of s.351 may be derived from the meaning of “disability” in the Disability Discrimination Act 1992 (Cth): Hodkinson v Commonwealth [2011] FMCA 171 (Hodkinson) at [145] also adopting the approach in Sayed. That definition of “disability” in relation to a person includes: total or partial loss of the person’s bodily or mental functions; the presence in the body of organisms causing or capable of causing disease or illness; a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour: s.4 Disability Discrimination Act 1992. The precise identification of the alleged disability is critical to an allegation of disability discrimination and equally applicable in allegations that adverse action was taken because of an employee’s disability: Qantas Airways Ltd v Gama (2008) 167 FCR 537 at [89] and Stevenson v Murdoch Community Services Inc [2010] FCA 648 at [87] as cited in Hodkinson at [147].
Political opinion is not defined in s.351 however it is accepted that the term should be given a meaning which is consistent with the interpretation it has been given in anti-discrimination and refugee law: Sayed at [164]. In Henry v Leighton Admin Services Pty Ltd [2015] FCCA 1923, Manousaridis J found that the employee’s strongly held views about the company’s need to comply with laws under corporations legislation fell within the scope of the meaning of “political opinion”.
The decision-maker’s reasons need not be “entirely dissociated” from the protected activity: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 at [62]. In Rumble v The Partnership Trading as HWL Ebsworth Lawyers [2020] FCAFC 37 (Rumble) at [41], the Full Court held that the proscription at s.351(1) is against the employee’s political opinion being a “substantial and operative factor” in the reasons for their termination.
Consideration
The adverse actions
By this ground four, the Applicant contended that the “adverse actions” were the requirement to wear a face shield in contradiction to the Applicant’s medical advice of his doctor and/or denial of reasonable accommodations. It is at least conceivable that these matters could constitute an adverse action pursuant to s.342(1) item 1(b) or (c) in terms of an injury to the employee or the alteration of the position to an employee’s prejudice.
There was no dispute that the dismissal, to the extent it was understood to form part of this ground, was an adverse action within the meaning of s.341(1) item (1)(a).
The Company contended that, even if each of these alleged adverse actions were properly characterised as adverse actions, it did not at the relevant times or even at the time of the hearing know the nature of his disability therefore this could not have formed part of the reason for any of the actions. Further, that the Applicant’s political opinion formed no part of the reasons for any of the actions.
The physical or mental disability
The pleadings did not articulate the nature of any physical or mental disability said to be of a proscribed kind as to fall within the prohibition at s.351 of the Act.
Even if the Applicant were understood to contend that the disability was the medical condition subject of the medical certificate dated 10 June 2021 that requested he be exempt from wearing a face mask, on plain inspection of that certificate it does not specify the nature of the medical condition as to constitute any physical or mental disability within the statutory meaning. And, when questioned by the Company, the Applicant’s medical practitioner did not disclose the nature of the medical condition but rather confirmed symptoms the Applicant experienced when required to wear a face mask or shield and the adjustments required to ensure those symptoms were not experienced. Beyond identification of an unspecified medical condition, the evidence does not support a finding that either the Applicant or his doctor ever advised the Company of the nature of any physical or mental disability prior to his dismissal.
In the absence of the Company having any knowledge of the Applicant’s physical or mental disability, or indeed any proof that he had a physical or mental disability at the relevant times prior to his dismissal, this component of the fourth ground must fail.
Political opinion
The Applicant disagreed with the requirement to wear a face mask and the mandatory COVID-19 vaccination requirement and, by their various correspondence (in particular, Mr Rae’s file note of 4 June 2021 and the First Show Cause Letter) the Company’s decision-makers and other closely involved managers were well aware of his views about those requirements.
The only sources in evidence that supported a finding of those views constituting the Applicant’s political opinion or expression of a political opinion (which for present purposes may be assumed to be protected by s.351(1): Sayed) were:
(a)the Worksafe complaint, which I have earlier concluded was not within the knowledge of the relevant decision-makers or any of the managers closely involved in informing them in the matter; and
(b)the Applicant’s mandatory vaccine offer, which the Applicant gave to the Company after or in response to the First Show Cause Letter.
In any event, the Company’s decision-makers did not deny knowledge of or that that the Applicant had expressed his political opinion or belief when opposing the mask wearing and mandatory vaccination disclosure directions.
I accept the evidence of Mr Dorgan and Mr Lewis, who I have accepted were the relevant and only decision-makers, that the reasons for the Applicant’s dismissal were his failure to follow a reasonable and lawful direction and his inability to perform the inherent requirements of the role. The Company was required to comply with the Victorian Government’s public health directions and was not permitted to allow the Applicant access to Site unless and until he disclosed his vaccination status. The Company directed the Applicant to so comply and he did not do so. That was the reason for his dismissal and there was no other reason. While it may be noted that at least Mr Lewis (if not also the other managers involved) found the Applicant to be uncooperative in the process of their endeavours to implement the Victorian Government’s changing health directions, and that it was a period of uncertainty and change for all concerned, it is apparent that the Company demonstrated their preparedness to work with the Applicant and identify solutions to overcome his concerns. I also accept the evidence of Mr Ramamurthi that it was difficult to find skills like that of the Applicant and took a long time to train a replacement to perform his role – such that it was not the Company’s preference to dismiss the Applicant. Finally, the documentary records of the disciplinary process support this finding.
On my assessment of all of the evidence before the Court, the reasons for which the Company claims to have conducted itself in dismissing the Applicant were the actuating reasons. Those reasons were the failure to follow a reasonable and lawful direction in disclosure of his COVID-19 vaccination status and inability to perform the inherent requirements of the role given he could not be permitted to attend for work on Site. Those reasons were objectively justifiable, and the evidence does not establish any other actuating, substantial or operative factors.
I conclude that the Applicant was not dismissed for having or expressing a political opinion. The Applicant’s expression of his views about COVID-19 and the Victorian Government’s directives and orders bore no more than an association with the reasons for his dismissal – and only to the extent of the Applicant’s conduct in choosing not to comply with the vaccination disclosure direction and/or attend the show cause meetings to explore other possible options with his employer. In the particular circumstances of this case, the association that has been identified is distinct from a substantial and operative reason for the termination and I find accordingly.
As the Court observed in Rumble, it was open to the Applicant to take steps to comply with the Company’s vaccination disclosure direction. It was also open to the Applicant to respond to the show cause letters and process in a different way, in the spirit of continuing the employment relationship.
CONCLUSION
For the above reasons, the Applicant’s claim as made in this jurisdiction is dismissed.
I certify that the preceding one hundred and eighty-eight (188) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate: AM
Dated: 1 June 2023
Annexure A
PRIVATE & CONFIDENTIAL
October 23rd, 2021
Re: Mandatory Vaccination Offer
Dear Dominic Lewis and Tim Dorgan,
I refer to your offer of a COVID-19 Emergency Use Authorisation (EUA, US), TGA provisionally approved investigational vaccine injection, under the recent Public Health Order in Victoria.
As your employee, I request you to review this document and please provide the requisite information. Considering my health and wellbeing are at stake, I require you to sign this form and return it to me, showing H.B. Fuller has assessed my concerns regarding your requirement that employees must undertake a medical procedure; for the purpose of, but not exclusive to, my inalienable right to informed consent, the disclosure of H.B. Fuller’ internal and external safety assessment documentation, including OH&S risk assessments. While also exploring the Law and liability pertaining to concerned parties, I would appreciate my right to medical privacy respected in accordance with the Privacy Act 1988 (16B)
1) Are you aware that the COVID-19 vaccines have only been approved under Emergency Use Only (EUA, US) and provisionally by the TGA? And are still in stage 3 clinical trials? Provisionally approved (TGA) vaccinations can only be administered to the public during a government induced State of Emergency (SOE), as they have no to mid to long-term safety data and have not yet completed minimum requirements and approval for widespread general use.2
2) If I agree to receive an EUA provisional COVID-19 experimental vaccination, does H.B. Fuller's insurance policy warrant me complete medical and like expense coverage including non-conventional, alternative or complimentary therapies, should I experience any adverse event, a short, medium or long-term injury, or even death?
3) As an employee, will you be providing Workers’ Compensation, disability insurance, or other resources if I have an adverse event to an COVID-19 injection and I am unable to come to work for days, weeks, or months; or if I am disabled for life?
4) As part of a vaccine's provisional approval process, the TGA requires that comprehensive consumer medicine information be available. The EUA, MSDS fact sheets that must be provided are specific to each provisionally authorised COVID-19 injection and are developed by the manufacturers of the injections (Pfizer/BioNTech, Moderna, Oxford/AstraZeneca, and the Johnson & Johnson (subsidiary Janssen)). The fact sheets must provide the most current and up-to-date information on the injections, including safety and effectiveness of the vaccine. Vaccine recipients must also receive information about adverse events, as well as a full list of all ingredients found in the vaccines. Have you read, understood, and provided me (and all other employees and contractors) with these fact sheets, including current information on adverse events and lists of all potential side effects? So that I/we can make an informed, educated decision?
5) Have you made appropriate internal OH&S assessments and documentation in accordance with current WorkSafe guidelines? Specifically pertaining to the safety and side effects of (currently) experimental COVID-19 (investigational) vaccines, i.e., Pfizer/BioNTech, Moderna, Oxford /AstraZeneca, and the Johnson & Johnson (Janssen) being mandated in the workplace? If so, I require viewing the SWMS and MSDS documentation, including OH&S assessments on each of the aforementioned vaccines. I also require comparisons of the different probable risks and how they stack up against the risk that COVID-19 poses to me, my age group and others within the organisation. If there is missing MSDS information on a vaccine, i.e. full ingredients list, how can you or I make an informed decision?
6) Regarding your internal OH&S review of mandating investigational vaccine injections in the workplace - Have you reviewed the available databases of material on adverse events (ADRS), both nationally and internationally (e.g., VAERS), reported to date for people who have received COVID-19 injections? Potential and reported adverse events include death, anaphylaxis, neurological disorders, tinnitus, myocarditis, pericarditis, pulmonary embolisms, severe vertigo, cardiac arrhythmias, blood clots, stroke, bell’s palsy. Stipulate please: - How do these OH&S dangers compare to the percentage chance of contracting COVID-19 in Australia and the high recovery rate (above 99%) of SARS-CoV-2?
7) Will H.B. Fuller consider paying for a full medical assessment for myself? Including blood work, physical, MRI, CT scan or any other test that may be required to give me a complete overview of my current health status; to verify any known or unknown underlying health conditions as to ensure my health and peace of mind post vaccination? Considering that vaccine's side effects can include exacerbation of pre-existing medical conditions.
8) Are you aware of the numerous laws, regulations and policies that protect the right of informed consent (without coercion) in receiving a vaccine or any medical procedure?
·The Commonwealth Constitution s.51(xxiiiA) which prohibits civil conscription in medical and dental services.
·The Biosecurity Act 2015 (Cth) s.95 prohibits the use of force for vaccination.
·The Biosecurity Act 2015 s.95 prohibits vaccination or treatment without an individual Biosecurity Control Order with stringent requirements.
·Article 6 of the UNESCO statement on Bioethics and Human Rights, Section 1, states “Any preventative diagnostic and therapeutic medical intervention is only to be carried out with the prior free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be expressed and may be withdrawn by the person concerned at any time and for any reason, without disadvantage and without prejudice”.
·Nuremberg Code, Article 1, states “The voluntary consent of the human subject is absolutely essential”.
·Section 83.4 of the Criminal Code Act 1995 (Cth), which relates to interfering with political liberty states, “Any person who, by violence or by threats or intimidation of any kind, hinders or interferes with the free exercise or performance, by any other person of any political right or duty shall be guilty of an offence”. Penalty includes imprisonment for 3 years.
·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”.
·According to the Attorney-General of Australia, Article 7 is an Absolute Right and cannot be suspended during a state of emergency. The Covid-19 vaccinations fall within Article 7 as they are part of a clinical trial (medical or scientific experiment), and therefore an informed consent (without coercion) is indispensable.
9) Are you aware of the recent FAIR WORK COMMISSION ruling and statements in regards mandatory vaccinations in the workplace? And how they may impact your business moving forward? For example:
[145] In short, there is no justifiable basis for employers to mandate COVID vaccinations to meet their health and safety obligations when other options are available to appropriately manage the risk.
[146] Finally, it should be clearly understood that employers who mandate vaccinations will be liable for any adverse reactions their workers may experience, given this is a foreseeable outcome for some people.
[181] Blanket rules, such as mandating vaccinations for everyone across a whole profession or industry regardless of the actual risk, fail the tests of proportionality, necessity and reasonableness. It is more than the absolute minimum necessary to combat the crisis and cannot be justified on health grounds. It is a lazy and fundamentally flawed approach to risk management and should be soundly rejected by courts when challenged.
RE: /html/2021fwcfb6015.htm
10) Since the Privacy Act 1988 protects my private medical information, can you please explain your obligations to me and how you are going to protect or share my personal information - with respect to your requirement that I receive this injection?
11) Are you aware that pharmaceutical companies that manufacture EUA vaccines are not liable for any injuries or deaths caused by vaccinations (also) containing experimental agents? Australian State and Federal governments are also not liable. Are you aware that you do not enjoy such liability protection and that employees could file a claim against you should they suffer an adverse event, death, or termination from their place of employment? As shown, in part, in the recent Fair Work Commissions statements on mandatory vaccinations in the workplace, [146] “it should be clearly understood that employers who mandate vaccinations will be liable for any adverse reactions their workers may experience, given this is a foreseeable outcome for some people.”
Further to this, please be advised and consider that currently there are multiple cases before the High Court and the Supreme Court, and in which the Court is being asked to consider whether the current Public Health Orders are valid, or whether they are invalid; and because of inconsistencies with the Australian Immunisation Register Act 2015 (Cth), and the Biosecurity Act 2015 (Cth) amongst others.
Orders are being made in the proceedings for the purposes of bringing them on for hearing. I request that you permit the Courts to determine the issues whether it is lawful for me to be subjected to a mandatory vaccination before you seek to impose this outcome on me, so we can, in good faith continue our mutually beneficial contract into the future.
As a legally authorised officer of H.B. Fuller, I have read all the above information. I have provided my employees with all current information that the TGA requires to be provided to recipients of the COVID-19 injections, as to establish a basis of informed consent. Including a complete list / full disclosure of all potential side effects of COVID- 19 vaccines; As well as a complete list of all ingredients, agents and/or technologies and other materials contained within COVID-19 vaccines; In conjunction with all corresponding requested and required OH&S documentation that satisfies all concerned parties, including WorkSafe.
Authorised officer of company requiring injection Company Date
Employee Company Date
Witness Company Date
------------------------------------------------------------------------------------------------------------------------
Please refer to my conditional offer of consent below
Conditional offer of consent
Once I have consulted with my medical doctor and/or received professional medical advice concerning my own personal private health status in relationship to foreign agents; and I am also satisfied that your business has conducted all necessary OH&S procedures and documentation covering all risk assessments pertaining to COVID-19 vaccination; and/or I find, at my discretion, that there is NO inherent threat to my own health and safety; I will then conditionally accept your offer to receive the Emergency Use only Authorised provisional investigational vaccine experimental injection.
Conditions are as follows: -
A.You and/or your business that is mandating a vaccine can confirm in writing that I will suffer no serious or long-term harm whatsoever concerning this medical procedure; In conjunction with, (B.)
B.Following the acceptance of this, the offer must be signed by a fully qualified medical doctor and/or medical scientist with verifiable vaccine expertise, who will take full legal, medical, and financial responsibility for any injuries that occurs to myself, and/or from any interactions by authorised personnel regarding these procedures.
C.In the event I should have to decline the offer of vaccination, I require confirmation that it will not compromise my position and that I will not suffer prejudice and discrimination as a result in accordance with the Disability and Discrimination Act 1992.
Pursuant to [Applicant’s] conditional acceptance of a mandated medical procedure (above): - To receive an investigational COVID-19 provisionally approved vaccine injection. I have satisfied Nikhil Gogulwar's conditional acceptance (A, B, & C) by providing a fully qualified medical doctor and/or medical scientist; with verifiable vaccine expertise, to sign and take full legal, medical, and financial responsibility for any injuries short and long-term occurring to Nikhil Gogulwar as a result of H.B. Fuller's COVID-19 vaccination mandate.
Employer Company Date
Employee Company Date
I, Dr/Professor ____________________ MD on this day the _________________ hereby take 100% full, unequivocal legal, medical, and financial responsibility for any injuries short and/or long term caused to Nikhil Gogulwar as a result of H.B. Fuller's mandatory COVID-19 vaccination mandate. Covering any and all expenses from adverse events, including death, through insurance coverage or directly.
[sic.]
Annexure B
A.B.N: 37 003 638 435 ACN: 003 638 435
H.B. Fuller Company Australia Pty Ltd
PO Box 4202, Dandenong Sth VIC 3175PH: 613 9797 6222 FAX: 613 9797 6299
PRIVATE AND CONFIDENTIAL
27th October 2021
Mr Nikhil Gogulwar
[Applicant’s address]
Email:
Mob: [Applicant’s mobile number]
By Email
Dear Nikhil,
Re: Termination of your Employment
1.As you are aware, in accordance with the public health order announced by the premier and confirmed by the Chief Health Officer, on 15th October 2021, H.B. Fuller Company Australia Pty Ltd (HB Fuller) discussed with you and issued a formal direction (the “Employment Direction”) on 15th October 2021. At this meeting you were also issued with a letter from Human resources dated 14th October 2021 detailing the need to supply supporting documentation of your Covid-19 status.
2.The subsequent Employment Direction dated 18th October 2021, required you to provide certain information about your COVID-19 vaccination status (including details of any relevant medical exemption) by no later than 22nd October 2021, was issued on the 21st October 2021.
3.A follow up formal letter was emailed on 21st October in anticipation of attendance to the Show Cause meeting scheduled for 22nd October 2021.
3. To date, you have failed to provide the information set out in the Employment Direction. HB Fuller is now obliged to ensure do not perform work for us outside of your ordinary place of residence. This means you cannot attend our worksite in order to perform your role.
4. HB Fuller raised your failure to provide information in accordance with the Employment Direction in a letter dated 25th October (“the Show Cause Letter”). This letter advised HB Fuller as a result of your failure to comply, it was considering taking disciplinary action, up to and including the termination of your employment. You were given another opportunity to respond at a second ‘Show Cause’ meeting scheduled for 27 October 2021.
5. In response to the matters set out in the Show Cause Letter/s, you said/stated
20 October 2021 (6:36PM):
You provided no information in relation to your Vaccination status.
You would respond to HB Fuller before November 4th 2021.
21 October 2021 (6:42 PM)
You provided no information in relation to your Vaccination status.
You will unavailable for the meeting scheduled for October 22, 2021
You will discuss further by November 4 ,2021
23 October 2021 (8:16PM)
You provided no information in relation to your Vaccination status
You requested HB Fuller provide substantial information on the risks, and dangers of HB Fuller mandating that you receive the Covid-19 vaccine.
You requested HB Fuller consider providing full medical assessment, including tests such as Blood work, physical, MRI, CT scan and other tests before you will disclose your Covid-10 status or consider having the Covid-19 vaccine.
You requested HB Fuller provide a full disclosure of all ingredients, agents and/or technologies and other materials contained within Covid-19 vaccines in conjunction with all corresponding requested and required OH&S documentation that satisfies all concerned parties, including Worksafe.
You requested HB Fuller sign an undertaking to take full legal, medical and financial responsibility for any injuries that occur for many interactions by administering the Covid-19 Vaccine.
27 October 2021 (12:44AM)
You provided no information in relation to your Vaccination status
You indicated you would not be attending the Show Cause meeting scheduled for 11am, 27 October 2021.
6. HB Fuller contacted you by phone at approximately 11:20am on 27 October 2021.
You provided no information on your Vaccination Status.
You indicated that you would not be supplying any information unless any further requests were in writing.
Tim Dorgan reminded you, that you have been informed verbally and sent written instructions on 21st October 2021 in relation to what information was required by HB Fuller to make a final determination of the issue at hand. We required this information to make an informed decision.
You ended the phone call (unannounced) at approximately 11:25am without notification or providing details in relation to your Vaccination status or intentions moving forward to be vaccinated.
7. HB Fuller has carefully considered all of the circumstances, including the matters you raised in your responses on 20/21/23/27 October to the Show Cause correspondence and discussions held.
8. Please be advised HB Fuller has decided to terminate your employment, due to:
a. Your ongoing failure to follow a lawful and reasonable direction in circumstances which are inconsistent with the employee/employer relationship; and
b. Your failure to follow the Employment Direction also meaning you are no longer able to meet the inherent requirements of your role, as you are now prohibited from attending HB Fuller’s premises for the purposes of work, and there are no alternative ways your role can be performed.
Despite you not being able to perform your role, as a gesture of goodwill, HB Fuller has decided to make a payment in lieu of notice.
9. Your termination date is effective immediately. Your final pay will be processed on 29th October 2021 and will include:
a. 2 weeks pay in Lieu of Notice
b. All Annual Leave entitlements owing.10. You are directed not to contact staff members from HB Fuller about this matter. If you attempt to do this, HB Fuller will consider what further action might be appropriate and necessary.
11. If you have any personal property, you need returned to you, please let me know what that is so that I can arrange to have those returned to you (in circumstances where you are prohibited by the Health Directions from attending HB Fuller premises for the purposes of work). I understand you have company property. These can be returned when and if personal property is collected or at your earliest convenience.
I appreciate this is a very difficult time for you. If HB fuller can provide you with any support, please do not hesitate to contact me.
I want to take this opportunity to thank you for your service to HB Fuller, and to wish you all the very best for the future.
Kind regards,
[signed]
Operations Manager Australia/New Zealand
[sic.]
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