Hayley Renee Campbell v Suncorp Group Limited - [2023] FWC 101

[2023] FWC 101 [Note: a further correction has been issued to this document; the changes arising have been incorporated in this version]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hayley Renee Campbell
v

Suncorp Group Limited

(U2021/11888)

DEPUTY PRESIDENT ASBURY

BRISBANE, 13 JANUARY 2023

Application for an unfair dismissal remedy – Applicant dismissed for failure to comply with COVID-19 Safety Standard – Dismissal not unfair – Application dismissed.

Article I. Background

Ms Hayley Campbell (the Applicant) made an application to the Fair Work Commission (Commission) for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (FW Act) in respect of the termination of her employment by Suncorp Insurance Services Limited (Respondent/Suncorp). The application was filed on 20 December 2021. In the Form F2 Application, the Applicant named her former employer as Suncorp Group Limited. On 21 March 2022, the legal representatives for the Respondent advised the Commission that the correct legal name of the Respondent, which was identified in its Form F3 Response, is Suncorp Insurance Services Limited. Permission was granted to the Applicant to amend her application.

The Respondent carries on a business in the banking, finance and insurance industry providing a range of financial services to customers throughout Australia. The Respondent is part of a group of companies owned by Suncorp Group Limited. The Applicant was initially employed as a Business Relationship Manager from 9 May 2007 and the title of her position was changed to Landlord Insurance Partner from 25 June 2016. The terms and conditions of the Applicant’s employment were governed by a contract of employment as well as the Suncorp Group Enterprise Agreement 2015. Although the Applicant was employed by the Respondent, she worked as a representative for Terri Scheer Insurance Pty Ltd (TSI) which operates a business of providing landlord insurance services and products. Terri Scheer is a subsidiary wholly owned by the Respondent.

In summary, the Respondent introduced a COVID – 19 Safety Standard (Standard) on 10 November 2021. The Standard required all workers (but initially those in customer facing roles) to be vaccinated against COVID – 19 and to provide proof of vaccination, or seek exemption from such requirement, as provided for in the Standard, by 30 November 2021. The Respondent terminated the Applicant’s employment on 9 December 2021 because she did not

comply with the Standard by 30 November 2021 and did not provide a reasonable excuse for non-compliance.

In her Form F2 Application, the Applicant contended that her dismissal unfair was unfair because no adequate response was received from the employer to the Show Cause responses she had provided and because no consideration had been provided to allowing her to work from a home-based office she had worked in since October 2011. In submissions and at hearing, the Applicant advanced grounds in support of a contention that her dismissal was harsh, unjust, unreasonable and unlawful, which can be summarised as follows:

· The Standard is a “non-existent, unenforceable employment contract condition” and cannot be relied upon by the Respondent as a reason for termination of employment;
· The demand that the Applicant be vaccinated does not rely on any statute, is an unreasonable employment contract condition and offends the provisions of s. 94H of the Privacy Act 1988 (Cth);
· According to the terms of the Applicant’s employment contract the Standard is a non- binding employment contract condition;
· The Applicant’s conduct did not breach standards of behaviour set out in her contract of employment;
· At all times she relied on the provisions of s. 94H of the Privacy Act 1988 (Cth);
· The “demand” in the Standard that the Applicant be vaccinated is prohibited by a valid Commonwealth law; and
· The COVID – 19 virus does not exist and/or the lack of evidence of its existence means that the Respondent’s enforcement of the Standard is harsh, unjust, unreasonable and unlawful.

The submissions and witness statement filed by the Applicant made no mention of working from home. The Applicant sought compensation for her unfair dismissal. On 21 November 2022, I issued an Order dismissing the Applicant’s unfair dismissal application.1 These are my reasons for that Decision.

Article II. Procedural History

The matter was allocated to me for determination. I decided that it was appropriate to hold a hearing in this matter, having regard to the views of the parties together with the fact that a hearing would be the most effective and efficient way to resolve this matter. Directions were issued on 14 March 2022 for the filing and service of outlines of submissions and witness statements that the parties intended to rely on at the hearing. The Directions also specified that witness statements are designed to take the place of evidence-in-chief and permission must be sought if evidence in addition to that set out in a witness statement, is sought to be advanced at the hearing.

1 PR748586.

The Applicant filed an outline of submissions2 and a statement3 in support of her position on 28 March 2022. On 8 June 2022, the Applicant filed a brief written submission in relation to s. 94H of the Privacy Act 1988 (Cth) outlining its purported relevance to the determination of the present matter.4 Notwithstanding that this material was only filed in the morning on the day of the hearing, it was received on the basis that no objection was raised by the Respondent. I also permitted the Applicant to tender her Form F2 Application5 into evidence without objection from the Respondent.

Witness statements in support of the Respondent’s case were provided by:

· Mr Mark Hamblyn, Terri Scheer Distribution Manager of Suncorp Staff Pty Ltd since 11 October 2021 and previously at Suncorp Insurance Services Pty Ltd between 2012 and July 2019; and
· Mr Nathan Taylor, Executive General Manager People Service of Suncorp Staff Pty Ltd since July 2021.

In addition, the parties were directed to file written submissions addressing the matters in s. 596 of the FW Act in relation to whether permission should be granted for a party to be represented by a lawyer or paid agent. On 21 March 2022, the Respondent’s legal representatives filed written submissions outlining their basis for seeking permission to represent the Respondent. The Applicant filed submissions in response on 28 March 2022 setting out her objections to the grant of permission for the Respondent to be legally represented. Having considered the parties’ submissions, I was satisfied that the matter involved some complexity, and it would assist the Commission to deal with the matter more efficiently if the Respondent was granted permission to be legally represented.

Article III. The Hearing on 8 June 2022

A hearing was conducted on 8 June 2022 with the Applicant appearing by video and the Respondent’s legal representatives appearing in person. The Applicant was self-represented while the Respondent was represented Ms H. Blattman of Counsel, instructed by Herbert Smith Freehills. During the hearing, the Applicant raised in her oral evidence-in-chief several matters that were not contained in her written material, concerning the extent to which she had worked from home and had serviced regional Queensland clients by telephone.

While purporting to be responsive to the witness statements filed by the Respondent, the Applicant’s oral evidence related to matters that should properly have been included in her witness statement, given the matters asserted in her Form F2 Application. After being granted a short adjournment to consider the Respondent’s position, Counsel for the Respondent sought an adjournment to allow for the filing of further evidence in chief from witnesses for the Respondent arguing that the Respondent had no notice of those matters raised by the Applicant

2 Exhibit A2.

3 Exhibit A3

4 Exhibit A4.

5 Exhibit A1.

and consequently, no evidence was led by the Respondent in response.

The Applicant accepted that she had not included these matters in her witness statement and submitted that the matter could proceed on the basis that I “dismiss” what she had said in her oral evidence and determined the matter based on material she had filed. I declined to follow that course and in fairness to the Applicant, and to ensure that she was allowed an opportunity to present her full case, while also affording fairness to the Respondent, I granted the adjournment. I also issued directions requiring the Respondent to file further statements of evidence in response to the Applicant’s oral evidence and the Applicant to file any statements of evidence in response.
The Applicant and the Respondent filed further statements of evidence. The hearing was resumed on 15 August 2022. The Applicant gave evidence on her own behalf. Evidence for the Respondent was given by Mr Mark Hamblyn, Mr Nathan Taylor and Ms Alice Tarr who is the People and Culture Advisor of Suncorp Staff Pty Ltd since 28 March 2022 and previously People and Culture Consultant from 23 March 2020.

Article IV. Initial Matters

Section 396 of the FW Act provides that the Commission must be satisfied of certain initial matters before the merits of the application can be considered. There is no dispute between the parties, and I am satisfied on the evidence that:

1. the Application was made within the period required in s.394(2) of the FW Act;
2.       the Applicant is a person protected from unfair dismissal;
3.       the Respondent was not a small business employer at the relevant time; and
4.       the dismissal was not on the grounds of redundancy and was therefore not a case of genuine redundancy.

Article V. Evidence and Submissions

Article VI. Background to implementation of the Standard

Mr Taylor gave evidence about the background to the implementation of the Standard. Mr Taylor is responsible for overseeing a wide range of human resources management functions, such as payroll and associated core human resources processes; people technology, including data reporting and governance; employee relations and strategy; and employee safety and wellbeing (both from a policy and implementation perspective). He also leads, and is a member of, several internal teams that play a key role in Suncorp’s organisational response to COVID-19. In this capacity, Mr Taylor said that he is required to keep up to date with work- related COVID-19 issues and incidents as they arise or are reported, and regularly receives briefings from members of his team in relation to COVID-19 matters that affect Suncorp.

Mr Taylor’s evidence was that COVID-19 has, and continues, to have a significant impact on Suncorp’s employees, suppliers, contractors, and operations. In this respect, Mr Taylor described that between April 2020 and December 2021, there were 1031 potential and actual work-related safety issues, and 1220 potential and actual non-work-related safety issues,

associated with contact with COVID-19 across Suncorp. Between June 2020 and December 2021, 43 COVID-19 cases were registered by employees or their managers in SafetyCentre that required action by Suncorp. Between March 2020 and March 2022, there were 95 instances of Suncorp branches being required to close temporarily due to the impacts of COVID-19 and 296 instances of Suncorp branches being required to reduce trading hours.

The Respondent has, and continues, to assess the COVID-19 pandemic as a group wide risk that requires an aligned and integrated response in accordance with its Safety and Wellbeing Policy (S&W Policy) and Business Continuity Management Policy (BCM Policy). Mr Taylor stated that any new or updated policies are typically notified to employees by way of an article on the Respondent’s intranet, and all current policies are available to access under the ‘Policies, Frameworks and Standards’ sections of the intranet site.

Mr Taylor explained that various groups within the Respondent’s organisation have responsibility for managing the business’ response to COVID-19, both at an operational and strategic level including a Crisis Management Team (CMT), which existed before the pandemic, drives processes that respond to and manage all crisis events that may, will, or have already impacted Suncorp customers, people, infrastructure, reputation, brands and value- creating activities. The Respondent also has an Incident Response Team (IRT), which is responsible for managing the operational response to crises or incidents, particularly where it relates to people, building or outsourcing related incident, which he stated has relevantly included the operational safety aspects of COVID-19. The IRT also existed before the pandemic. Mr Taylor stated that while he is not a formal member of the IRT, as it sits within People Services, he regularly attended the meetings.

Mr Taylor explained that the IRT works closely with the Respondent’s COVID-19 Response Team that sits within the People Services Division which he leads. Mr Taylor stated that the responsibilities of the COVID-19 Response Team include:

“a. Responding to COVID-19 cases in Suncorp workplaces and branches, including by contacting relevant stakeholders, arranging for the location to be temporarily closed, organising deep cleans, and providing advice to impacted persons on self-isolation;
b.Monitoring government guidance and regulations on COVID-19 (such as in relation to working from home, movement restrictions, and safety control requirements) and advising Suncorp and its employees in relation to pertinent information and restrictions;
c.Preparing updates on key COVID-19 developments to be shared to employees as a whole or to employees within specific business units or functions. Those materials were often uploaded to Suncorp’s COVID-19 Intranet Page (which is discussed in greater detail in paragraphs 23 to 35 and 77 below), which the IRT has also been responsible for managing.”

Mr Taylor stated that at the very start of the COVID-19 pandemic in early 2020, the Respondent established a COVID-19 Employee Site on the intranet (COVID-19 Intranet Page). This site contains links to key resources, including Suncorp’s COVID-19 policies, key government COVID-19 websites, and details of Suncorp’s COVID-19 safety measures and processes. The COVID-19 Intranet Page has been continuously updated throughout the pandemic and is accessible by all staff. He explained that while he is often asked to review and approve key materials uploaded to the site, he does not review all materials, only those that are significant, or relate to Suncorp’s strategic policy decisions with respect to COVID-19. Mr

Taylor stated that he approved the Frequently Asked Questions materials that were developed in relation to Suncorp’s COVID-19 vaccination policies, prior to their upload to the site.

Mr Taylor stated that Suncorp has engaged with several medical professionals from International SOS (ISOS), including Dr Andrew Ebringer (Regional Medical Director & Health Consulting Lead) and Dr Natalie Gray (Public Health Physical and Travel Medicine Clinician), in relation to its COVID-19 health and safety controls and processes. Mr Taylor stated that Dr Ebringer and Dr Gray have provided advice to Suncorp in relation to a wide range of COVID- 19 matters, including the use of Rapid Antigen Tests and face masks, personal hygiene standards, and working from home arrangements.

Mr Taylor’s evidence was that ISOS, specifically Dr Ebringer and Dr Gray, also assisted Suncorp to develop an initial policy position encouraging and promoting vaccination in line with the messaging from State and Federal governments. Mr Taylor explained that Suncorp’s position is that it is each individual’s decision to receive a COVID-19 vaccine, and to assist, it ran an “Ask the Doctor” webinar series in relation to COVID-19 vaccines which all employees were invited to attend. Mr Taylor stated that those webinars were hosted by Dr Gray and took place on 12, 18 and 19 August 2021. During the webinars, Dr Gray discussed:
a)   how COVID-19 vaccines work and were developed;
b)   the efficacy and effectiveness of COVID-19 vaccination; and
c)   common myths and facts in relation to COVID-19 vaccination.
Mr Taylor stated that an announcement dated 3 September 2021 was uploaded to the COVID-19 Intranet Page appraising employees of materials they could access if they missed the webinar series. Further, he stated that Suncorp ran an additional “Ask the Doctor” webinar series in February 2022 where similar issues were discussed, in the context of the current COVID-19 environment.

Mr Taylor acknowledged that due to the COVID-19 pandemic, it had been necessary for large sections of Suncorp’s workforce to temporarily work from home at various stages throughout the pandemic. Mr Taylor acknowledged that even in the absence of public health orders, the Respondent had at times required or recommended that employees temporarily work from home from a business resilience perspective.

Mr Taylor also stated that prior to the pandemic, the Respondent was supportive of flexible work practices, including working from home arrangements where role type and business needs permitted that to occur. However, Mr Taylor explained that where an employee has been allowed to work from home due to COVID-19 flexibilities, that was always as a temporary arrangement. Mr Taylor stated that for all employees working in face-to-face roles, they are expected to be available to attend the workplace or other locations, and interact with their colleagues, leaders, customers, suppliers or other stakeholders as required.

Mr Taylor explained that until about July or August 2021, the Respondent’s pandemic response strategy had been reactive and focused largely on ways to eliminate the risks of COVID-19, including the use of PPE and physical distancing. As of July and August 2021, the

Respondent began to consider alternative proactive means by which it could protect its workforce. Mr Taylor stated that Suncorp ultimately made a decision to consider the introduction of a COVID-19 Safety Standard and amendments to the S&W Policy that would require a section of Suncorp’s employees to become vaccinated against COVID-19 for continued employment with the company.

Mr Taylor stated that in his role as Executive General Manager People Services, under the guidance of Mr Johnston and Ms Thompson, he was responsible for project managing the development of the Safety Standard for consideration and potential endorsement of the Board of Suncorp. Mr Taylor provided a lengthy background to the development and reasoning for the Safety Standard. This background included that he had provided a number of information sessions and conferences on the topic of COVID-19 vaccinations facilitated by the Australian Banking Association, at which he learned that a number of other employers including Westpac and the Commonwealth Bank of Australia were introducing policies requiring their employees to be vaccinated against COVID-19.

Mr Taylor stated that the Safety Standard was put before the Executive Leadership Team (ELT) during a meeting on 8 September 2021. Various matters, including the potential consequences for employees who may refuse to comply with the proposed Safety Standard, were discussed at this meeting. Mr Taylor stated that at the conclusion of the meeting, the ELT resolved to continue developing the draft Board paper. Following a further meeting of 14 September 2021, the ELT endorsed the proposal consistent with what was then presented to the Board on 22 September 2021. Mr Taylor confirmed that at the Board meeting of 22 September 2021, Standard was ultimately endorsed by the Board of Suncorp subject to a consultation process being completed with Suncorp’s employees and their representatives.

Mr Taylor explained that at the time of consultation, the Safety Standard was simply a proposal. Mr Taylor stated that Suncorp proposed to run the consultation process from 6 October 2021 to 18 October 2021 and would make its final decision as soon as practicable thereafter. Mr Taylor stated that the proposed Safety Standard was intended to sit underneath the S&W Policy, and while it would apply to all Suncorp employees, only a specific cohort of employees (Cohort One) would initially be required to obtain a COVID-19 vaccine as a condition of their employment. Mr Taylor confirmed that Cohort One covered only those employees who engaged with customers, suppliers or the community in a face-to-face manner, or travelled for authorised work to locations outside of their usual Suncorp work location.

A process was carried out using a spreadsheet, to identify employees who fell within Cohort One Roles and the Applicant’s role was designated as customer facing. Mr Taylor explained that the spreadsheet was subject to an assessment which took into account the hybrid working model, such that employees who had been temporarily working from home due to COVID-19 flexibilities could still fall into Cohort One having regard to the workplace transitioning into the new “living with COVID-19” reality. Mr Taylor stated that in the end, approximately 2840 of Suncorp’s employees in Australia fell within Cohort One, representing approximately 22% of the total employee population. This included the Applicant.

Mr Taylor stated that he was involved with the decision to set a proposed implementation date of 30 November 2021. He said that this date was chosen after weighing up and balancing a range of factors, including:

a.        While COVID-19 vaccines were now available to all employee age groups, vaccine supply was not consistent across all States and Territories. Therefore, if the Safety Standard was introduced, employees would need a sufficient time to book and attend a vaccination appointment (or demonstrate a pathway to them becoming vaccinated);
b.        It was anticipated that the Safety Standard would be opposed by some employees and that those employees would require a reasonable period of time to consider their position if the Safety Standard was introduced;
c.        The risk of contracting COVID-19 was rapidly increasing in light of the factors identified in paragraph 42 above such that Suncorp could not delay implementing the Safety Standard (assuming that it was ultimately introduced); and
d.        If the Safety Standard was introduced, Suncorp would need sufficient time to logistically implement the policy, such as by assessing employee compliance with the policy, and addressing employee queries or concerns prior to the effective implementation date (where possible).

Mr Taylor stated that he attended an online meeting with Suncorp’s Business Leadership Group (BLG) on 5 October 2021. Mr Taylor said that the BLG is made up of about 600 persons with leadership positions within Suncorp. Mr Taylor explained that at this meeting, members of the BLG were briefed on Suncorp’s proposal to introduce the Safety Standard and on the consultation process that would commence the following day with employees and their representatives. Following the meeting, the leadership group were sent correspondence with key messaging, including Frequently Asked Questions documents for leaders and employees, to assist the leadership team to communicate the proposed Safety Standard to employees and respond to their feedback or questions. Mr Taylor stated that he was accountable for the communications that were sent to employees and leaders, and he was therefore involved with the drafting of the employee and leader FAQs.

Mr Taylor said that on 6 October 2021, Mr Johnston sent an email to all Suncorp employees in Australia announcing that the consultation process regarding the proposed Safety Standard was commencing, and that if employees had any feedback, they would need to provide it for Suncorp’s consideration on or before 18 October 2021. Mr Taylor said that this correspondence included links to the proposed Safety Standard, an online form for employees to complete with any feedback, and a video of Mr Johnston discussing the rationale for proposing introduction of the Safety Standard. Mr Taylor noted that further materials were also available on the intranet, including the FAQs and all materials related to the “Ask the Doctor” webinar series.

Mr Taylor’s evidence was that all responses received via the feedback form were collated into a spreadsheet. While an anonymised copy of this spreadsheet was filed in the proceeding, Mr Taylor’s evidence was that he had reviewed the de-anonymised version and that the Applicant had not completed a feedback form for the consideration of the business. Mr Taylor stated that over the course of the consultation period, Suncorp employees were

periodically reminded that consultation was ongoing and where they could go to locate resources regarding the Safety Standard and how they could participate in the consultation process, including the support that was available to them if they had concerns or questions. Mr Taylor also stated that employee reminders were uploaded on the Intranet on Suncorp’s “Yammer” page, and leaders periodically provided reminders to employees in their team including to submit feedback.

Mr Taylor stated that Suncorp also engaged with the Financial Services Union (FSU) as part of the consultation process. a legally independent incorporated association called the “Employee Council”, which provides advisory and information services to Suncorp’s employees regarding workplace processes and issues and can also represent and advocate for employees in relation to internal grievances. The engagement occurred before and after the consultation process. The feedback received from the consultation process was summarised by Mr Taylor as follows:

a.   58% of employees who contributed during the consultation process were supportive of the Safety Standard and already vaccinated.
b.   30% of employees who contributed during the consultation process voiced opposition to the proposed Safety Standard.
c.   12% of employees who contributed during the consultation process did not express a view in favour of or against the proposed Safety Standard.
d.   Those employees who opposed the proposed Safety Standard did so on various grounds, which included reliance on novel legal rights (such as alleged breaches of the Nuremburg Code and the Magna Carta).

The FSU representative did not raise any concerns and simply requested to be kept updated. In each of the interactions Mr Taylor had with the Employee Council, they asked questions about the proposal and updated him on issues or queries that had been reported to them by the employees. Those matters did not materially differ from the feedback Suncorp had received through the Feedback Forms and other consultation mechanisms, which was ultimately grouped together based on themes and assessed by the business. Mr Taylor explained that in this way, the concerns raised by the Employee Council were taken into account by Suncorp when making its ultimate decision, as was everything else that was received through the consultation process.

Mr Taylor further stated that in addition to consultation with its workforce, Suncorp engaged with third party stakeholders in relation to the proposed Safety Standard. He stated that Suncorp issued 710 letters to relevant third parties who supported Suncorp’s face-to-face manner or who were regularly on Suncorp sites.

Mr Taylor stated that between 6 October and 18 October 2021, approximately 1471 Feedback Forms were submitted by employees. On 17 October 2021, Suncorp commenced a data analysis of the consultation feedback, which was undertaken by Ms Beer, Mr Jackson and Mr Wakeford under Mr Taylor and Ms Gordon’s general supervision. Mr Taylor’s evidence was that of those forms received, 58% stated that they were supportive of the Safety Standard and 12% did not provide a view. 30% were not supportive. Further, of those employees that

completed a Feedback Form, 81% confirmed that they had already obtained at least one COVID-19 vaccine. Of those letters sent to third parties, 102 responses were received with 79% being in support of the proposed Safety Standard.

Mr Taylor stated that he attended an ELT meeting on 20 October 2021. Mr Taylor stated that in that meeting, they considered the feedback that had been received from employees and their representatives, the data analysis of that feedback, as well as other insights gained through the process. In that meeting, the ELT determined to make a recommendation to the Board that the Safety Standard be introduced and the amended S&W Policy be approved. Mr Taylor stated that in conjunction with members of the People and Culture and Health and Safety Teams, the ELT prepared a submission regarding the outcome of the consultation process that enclosed its recommendation to the Board. This submission contained a breakdown of the feedback that was received by employees and their representatives.

Mr Taylor explained that the decision was made by the ELT to recommend that the Board implement the Safety Standard, having regard to the following key factors:

a. Nothing was submitted during the consultation process by employees or their representatives that overcame the serious risk factors identified in paragraph 44 above. Furthermore, those risk factors had become more pronounced since the Board of Suncorp made the decision to commence the consultation process into the Safety Standard on 22 September 2021. By way of illustration:

i.COVID-19 cases in Australia had continued to increase at an exponential rate between 22 September 2021 and 20 October 2021 (being the date the ELT made its recommendation). Over that period, COVID-19 cases increased from 90,372 to 149,398.

b. The majority of employees who provided feedback during the consultation process (56%) supported the introduction of the Safety Standard, and the vast majority of all employees who provided feedback were already vaccinated (81%). In addition, the vast majority of third parties that were canvassed (79%) supported the introduction of the Safety Standard. Those figures were considered as providing Suncorp with a mandate to introduce the Safety Standard.

c. Suncorp were committed to prioritising the health, safety and wellbeing of Suncorp’s workforce and key stakeholders, and conscious of our obligation to take all reasonably practicable steps to fulfil that aim.

Mr Taylor’s evidence was that if any employee or their representative had raised anything during the consultation process that demonstrated that the proposed Safety Standard would be unsafe or ineffective, then the ELT would have taken that into account when recommending a course of action for the Board to endorse. However, Mr Taylor stated that he did not observe any such feedback when reviewing the Feedback Spreadsheet or the analysis of that document, and nor was any feedback of that kind conveyed to him by any of his colleagues, the Employee Council or the FSU.

Mr Taylor attended a meeting of the Board of Suncorp on 28 October 2021, at which it considered the submission outlined above. Mr Taylor stated that the Board endorsed the recommendation of the ELT that the Safety Standard be introduced as proposed.

In relation to the effect of the Standard following implementation, Mr Taylor noted that Suncorp has still required employees to comply with all other applicable health and safety controls in effect from time to time, including mask wearing. He stated that the Safety Standard was not introduced as a substitution for those controls. Mr Taylor attended meetings with FSU and Employee Council representatives to brief them on the outcome of the consultation process, including the decision to introduce the Safety Standard. Mr Taylor stated that no material concerns were communicated during these meetings.

On 10 November 2021, Mr Johnston sent an email to all Suncorp employees in Australia announcing that, following the conclusion of the consultation process, Suncorp had made the decision to implement the Safety Standard and that all Cohort One employees would need to be fully vaccinated in accordance with its terms. Mr Taylor explained that for employees to comply with the Safety Standard, they were required to complete a Vaccination Status Checklist in Suncorp’s SafetyCentre evidencing that they maintain an Active Vaccination Status. The SafetyCentre is Suncorp’s online safety information management system, and is used by Suncorp to report, track, and resolve safety incidents that may arise from time to time within the business. Mr Taylor stated that the SafetyCentre is accessible by all employees via an online portal. He described the process by which an employee can locate and complete a Vaccination Status Checklist and that it includes the following information:

· A consent form stating what information is being requested by Suncorp, the purpose for which the information is being collected, and requires the employee to acknowledge a number of statements, including that they consent to Suncorp collecting and storing information relating to their vaccination status (without being exhaustive).
· The employee is also made aware that if they have further questions about privacy, they can review Suncorp’s Employee Information Privacy Standard.
· The employee is asked to confirm whether they are partially vaccinated, fully vaccinated, fully vaccinated and boosted, have booked an appointment for their first dose, or they would like to apply for a medical exemption.
· If the employee selects that they have booked an appointment to obtain a vaccine, they are required to upload documentary evidence of that appointment to the portal.
· If the employee selects that they have received one or two doses of a vaccine, they are then asked to confirm the date of the first or second dose, the type of vaccine that they received, and provide evidence to support that information. The employee can upload a COVID-19 digital certificate or an immunisation history statement to the portal or, alternatively, their leader can manually sight those documents and complete a declaration confirming that has occurred.
· If the employee selects that they would like to apply for a medical exemption they are required to provide the grounds upon which they are seeking the medical

exemption and upload documentary evidence from an expert confirming the grounds upon which the exemption is being sought.
· If the employee selects “no and/or not currently intending to be vaccinated” they are required to complete a ‘Non-participation Declaration Form’, which appears under the heading “Declaration”. The employee is required to provide reasons for their decision and they are warned that they may be subject to disciplinary action (up to termination of their employment) for their failure to comply with the Safety Standard without reasonable excuse.

Mr Taylor stated that once an employee completed and submitted their Vaccination Status Checklist their leader would receive an email notifying them that the Vaccination Status Checklist was available for them to review in SafetyCentre. The leader would then review the information submitted by the employee and take steps depending on the responses the employee gave. If the employee indicated that they were not and did not intend to become vaccinated, the leader would reach out to the employee to better understand their position, provide another direction for compliance and then subject to anything raised by the employee, commence a disciplinary process, in conjunction with Suncorp’s People and Culture team.

Mr Taylor stated that, once approved, the Vaccination Status Checklist is retained on the SafetyCentre platform, and the record can only be accessed by persons with suitable permissions. Those persons are the employee, their leader, or a designated “super user”, being specific members of the People and Culture and Health and Safety teams. Mr Taylor’s evidence was that at no point has Suncorp required its employees to download the Australian Government’s COVIDSafe contact tracing app, either as part of the Safety Standard or otherwise.

Mr Taylor’s evidence was not challenged by the Applicant and the cross-examination was limited to asking Mr Taylor whether he believed in the existence of COVID – 19. Mr Taylor confirmed his belief in the existence of COVID – 19.

In relation to the COVID-19 Safety Standard, Mr Hamblyn said that he re-joined the Respondent in the middle of the consultation process. Mr Hamblyn was involved in that process at a local level and encouraged his direct reports to provide their feedback to the business. While Mr Hamblyn was not involved with the assessment of whether any of his team members fell within the group of employees initially covered by the Standard, he agreed, having regard to the above requirements of the Applicant’s role, that the Applicant was properly allocated into that initial group of covered employees.

Article VII. Standard: COVID-19 Safety

The Standard was implemented in accordance with Suncorp’s Safety & Wellbeing Policy (the Policy). The Policy (last reviewed on 7 August 2020) applies to “Suncorp, our People and External Workers”. People are defined to mean employees and directors. Section 4 of the Policy Statements provides that Suncorp is committed to taking pro-active steps to manage the safety and wellbeing considerations of COVID-19. In this respect, it states that:

“Suncorp acknowledges that COVID-19 has a unique set of safety and wellbeing risks. So far as is reasonably practicable, Suncorp will take action to ensure that these risks are managed in the Workplace and safeguard the health of our customers, People and External Workforce. As part of this commitment, Suncorp expects that our People and External Workers are vaccinated consistent with the requirements in the COVID-19 Safety Standard.”

The Policy provides that non-compliance may result in disciplinary action (including termination of employment). The Standard came into effect on 30 November 2021. The purpose of the Standard, stated in section 1.1, echoes the Policy Statement outlined above but further provides that:
“The purpose of this COVID-19 Safety Standard (Standard) is to set out our requirements and expectations for the effective management of risks associated with COVID-19, including the requirement for COVID- 19 Vaccination (Vaccination) as a further workplace control measure at Suncorp.”

Section 1.2 of the Standard states that it applies to all Employees of Suncorp, Third- party Service Providers, and Other Workers in Australia. Relevantly, Employees are defined in the Standard to include “all full-time, part-time, fixed-term, maximum-term and casual employees of the employing entities of Suncorp” but “does not include Third Party Service Providers or Other Workers.” Section 3.1 sets out the vaccination requirement which is defined as a requirement that “Employees, Third Party Service Providers and Other Workers obtain and maintain an Active Vaccination Status unless an exemption at section 3.3 of this Standard applies”.

Active Vaccination Status means having “received both an initial Vaccination against COVID-19 and any subsequent Vaccinations that are required or recommended by the Australian Government or a state or territory government to maintain immunity against COVID-19.” The implementation of the requirement to obtain and maintain an Active Vaccination Status was intended to occur in phases and the first cohort to be subject to the requirement comprised in-person customer-facing roles and those employees who are authorised or required to travel for work as well as certain Third-party Services Providers. In- person customer-facing is defined as “Employees and Other Workers who are regular or semi- regular customer-facing, and/or who deal with third parties, face-to-face. This includes, but is not limited to, role types within: Bank branches; Insurance assessment; Mobile work; and Business development and events”.

Section 3.1 specifies the evidence that employees must submit to demonstrate compliance with the vaccination requirement and requires that the evidence must be submitted within the timeframe which is separately notified to the employees. Relevantly, proof of an Active Vaccination Status “must be submitted in SafetyCentre and include evidence that is satisfactory to Suncorp, including a COVID-19 digital certificate or copy of an Australian Immunisation Register record confirming proof of Active Vaccination Status.” SafetyCentre is Suncorp’s online safety reporting system. Should an employee be unwilling or unable to provide poof of Active Vaccination Status by the required date, an employee has the options to provide: evidence of an upcoming Vaccination appointment; confirmation of an exemption granted by Suncorp or pending exemption application; and a completed Non-Participation Declaration.

Section 3.3 sets out the basis upon which an employee may seek an exemption from compliance with the requirements of the Standard and includes information about the process of applying for an exemption and the consequences of an exemption application. Relevantly, an exemption may apply if the employee has “a medical reason that prevents them from receiving the COVID-19 Vaccination, or abiding by other required safety measures, such as mask-wearing.” Exemption applications will be considered by Suncorp on a case-by-case basis having regard to the evidence and reasons provided by the employee. Where an exemption is not granted, the Employee “is required to be vaccinated and provide evidence of their Active Vaccination Status by the Vaccination Effective Date in accordance with section 3.2 above or a time otherwise approved by Suncorp, or to complete a Non-Participation Declaration.”

Section 4 of the Standard addresses the consequences of non-compliance. Where an employee does not comply with the Standard, such non-compliance will be regarded as non- compliance with the Safety & Wellbeing Policy and the Code of Conduct and the employee may be subject to “disciplinary action (up to and including termination of employment)”.

Article VIII. The Applicant’s role

The Applicant commenced employment as a Business Relationship Manager on 9 May 2007 with Terri Scheer Insurance Brokers Pty Ltd. The contract of employment tendered by the Applicant, states that she was employed by Suncorp Insurances Services Limited. It is uncontroversial that although the Applicant was employed by the Respondent, she worked as a representative for TSI and was responsible for servicing clients of TSI. The title of the Applicant’s position was subsequently changed to Landlord Insurance Partner.

The terms and conditions of the Applicant’s employment were governed by a contract of employment and the Suncorp Group Enterprise Agreement 2015. Clause 4 of the contract of employment provides that during the Applicant’s employment, she must comply with lawful and reasonable directions given to her by the Respondent. Clause 6 provides that:

“We and the Suncorp Group have various policies, guidelines, standards and procedures which apply to your employment. You must familiarise yourself with these policies, guidelines, standards and procedures and review them from time to time. Where the policies, guidelines, standards and procedures place obligations on you, you must comply with them. Failure to comply may result in disciplinary action, up to and including termination of your employment.

We may review, vary, add to or withdraw the policies, guidelines, standards and procedures from time to time at our absolute discretion. To avoid doubt, the policies, guidelines, standards and procedures and any obligations on us set out in them do not form part of your employment contract and are not binding on us.”

Clause 15 provides that the Respondent may end the Applicant’s employment “at any time without notice (or payment in lieu of such notice)” if the Applicant engages in conduct warranting summary dismissal including, inter alia, where the Applicant: (a) engages in serious or wilful misconduct; or (c) commits a serious or persistent breach of this Employment Letter or the Suncorp Group’s Policies, Guidelines, Standards or Procedures.

In her oral evidence at the hearing the Applicant said in relation to her role:

· Contrary to Mr Hamblyn’s evidence that she was required to travel to North Queensland to visit clients in person, the last time the Applicant travelled to North Queensland was around 2014 or 2015 and for the last several years, she had only serviced clients in North Queensland by telephone or email from her home office in Maroochydore;
· The Applicant was assigned the portfolio of clients in the Central Queensland region and that she only serviced those clients by phone and email without any face-to-face contact;
· The Applicant was not required to attend meetings at the Respondent’s Eagle Farm Office and had never attended that office in person;
· Members of the Applicant’s team were based in different locations and team meetings were conducted by telephone only;
· The Applicant’s immediate supervisor, Ms Barton, was based in Sydney and worked remotely in the entire period between July 2017 and July 2018 to cover the Applicant’s maternity leave and her other colleague within the team, Ms Margin, had been based in Sydney and has only recently relocated to the Gold Coast as her replacement;
· The Applicant’s job could have been done entirely remotely from her home office;
· The Applicant’s role was unique because, while there is a requirement for her role to conduct a certain number of in-person client appointments per week, she was given autonomy to complete those appointments in any way she saw fit, whether by telephone, video conferencing or in person, and no issue had ever been raised by the Respondent with the Applicant at her performance reviews about her approach to conducting client appointments remotely;
· The only travel the Applicant was required to undertake was to the Gold Coast once a year to attend a real estate conference. The Applicant returned her company laptop in around 2015 and only used her own computer at home for work and was not often on “the Suncorp network”; and
· the Applicant had an excellent relationship with all of her clients, most of her client appointments were conducted only by telephone and only occasionally was there a need to conduct an appointment by video.

In her further statement the Applicant said that a significant part of her role included communicating with clients by telephone and email. In 2011, there were five staff members who were based in Queensland servicing clients for TSI in Queensland. Over the years, the number of staff members was reduced and there were only 2 staff members in Queensland – the Applicant and her colleague, Mr Ashurst. The Applicant stated that she and Mr Ashurst inherited the portfolios from those former staff members.

The Applicant also said that a considerable part of her role involved administration and compliance in relation to running the portfolios and it was not possible to manage such a large number of clients by predominantly conducting face-to-face visits. The Applicant is also of the view that not every client required or would agree to a face-to-face meeting in any event.

The Applicant had a formal meeting with her direct report every month and performance reviews twice yearly. During those meetings and performance reviews, the Applicant said, no issues had ever been raised with her about not conducting in-person meetings with clients in North Queensland or about her performance or work ethics. The Applicant stated the subject of her being required to visit clients in North Queensland in person never arose.

The Applicant expressed the view that she would have welcomed the advice or instruction from her direct report that she be allowed to travel to North Queensland and that during her employment, there were periods of time where Suncorp imposed travel freezes and travel budget restrictions. In addition, only the Applicant’s direct report at TSI had a company credit card and the Applicant did not have one. To make travel arrangements would require her direct report to organise and pay for expenses, such as flights, accommodation and hire car, with the company credit card.

Further, in the Applicant’s view, Suncorp’s approach to work arrangements for the workforce is flexible and interstate cooperation between employees based in different locations was not uncommon. In this regard, the Applicant recounts that for a period in 2020, TSI stopped accepting new policies across all products due to an Embargo. After the Embargo was lifted, a high volume of new applications for business policy cover was received. Those new policies were required to be processed manually and entered into the TSI database. The Applicant and members of her team, including Mr Ashurst, Ms Margin and others were requested to assist colleagues in Customer Service, who were based in Adelaide, with manually processing new policies in the database. The Applicant and her colleague received training and were given additional access to enable them to assist remotely from interstate. The Applicant stated that she was happy to assist as it was an opportunity to learn a new area and make contribution to a different area of the business. In the Applicant’s view, this demonstrated that Suncorp could be flexible when it was desirable for them to do so.

In relation to Mr Hamblyn’s evidence that while Ms Barton took only one trip to Queensland while covering the Applicant’s maternity leave in the period between 17 August 2017 and 18 August 2018, the Applicant stated that this confirms that Ms Barton did in fact work remotely from Sydney during that period, except for two days when Ms Barton travelled to Queensland to meet with clients.

One of the reasons provided by Ms Hamblyn to explain why Ms Barton undertook only one trip to Queensland in that period was because of a travel ban implemented by Suncorp at the relevant time for cost-saving reasons. The Applicant contends that if face-to-face visits were so important to Suncorp, they would have provided the resources to enable staff to travel. Further, the Applicant stated that prior to commencing a period of maternity leave, she emailed clients to let them know that Ms Barton was covering her role and that Ms Barton was based in Sydney. The Applicant provided clients with Ms Barton’s mobile number and email address so they could contact Ms Barton for assistance. The Applicant contends that the fact that Ms Barton was covering her leave from Sydney further demonstrates how flexible Suncorp could be with the Landlord Insurance Partner role when it was desirable for them to do so.

In relation to Mr Hamblyn’s evidence that the role of Landlord Insurance Partner is required to make a minimum of 235.2 in-person client visits per year to attain the “Achieving” grade, the Applicant contends that this performance measure was implemented after her dismissal. In any event, the Applicant stated that this averages five client appointments per week over the course of 48 weeks, highlighting that the number of face-to-face client visits required is low and does not represent a large portion of the role. A considerable part of the role was related to compliance of the portfolio, maintaining the database, and servicing clients by telephone, email, and Microsoft Teams.

The Applicant also asserted that at the time of her termination, there was no requirement for colleagues in Customer Service and the Claims Team at TSI to be vaccinated. However, the Applicant was told on 26 November 2021 that “no one could apply to have their role varied” and she was not given the opportunity to perform another role that was not subject to the vaccination requirement. In the Applicant’s view, this was “unfair” considering her 15 years of service. The Applicant noted that neither the insurance industry nor the real estate industry imposed a requirement to be vaccinated.

In cross examination, the Applicant accepted that her role required her to meet with clients in person in addition to phone appointments and that prior to the COVID-19 Pandemic, she conducted on average a mix of 15 to 20 in-person and telephone client appointments. The Applicant accepted she received a car allowance as part of her role and prior to that, had been provided with a company car by TSI in the period between 9 May 2007 and around May or June 2017. The Applicant further accepted that she had used the company car to travel and meet with clients in person and that later, had been paid a car allowance for the same purpose. It was also accepted by the Applicant that, for the last three years of her employment, she had received a fixed fortnightly car allowance of $433.56 on the basis that she drove on average 544.1km per fortnight to travel and meet with clients in person.

Mr Hamblyn’s evidence about the Applicant’s role can be summarised as follows. Ms Sarah Barton who reports directly to Mr Hamblyn was responsible for the direct day-to-day management of the Applicant. Mr Hamblyn stated that as part of her role, Ms Barton would regularly engage with him in relation to any issues with her direct reports of a serious or complex nature.

Mr Hamblyn stated that the Applicant was one of two Landlord Insurance Partners based in Queensland. The Applicant oversaw an assigned territory spanning from the Sunshine Coast up to far north Queensland. Mr Hamblyn stated, therefore, as part of her role, the Applicant as regularly required to travel to and interact with the Respondent’s clients in-person in north Queensland. Mr Hamblyn estimated that prior to the COVID-19 pandemic, the Applicant would make between 15 and 20 in-person visits to her clients each week. He stated that this was an important aspect of her role with the Respondent, and depending on the client, the Applicant would be required to either drive or fly to their offices to undertake her duties. Mr Hamblyn stated that it was not uncommon for the Applicant to stay overnight when she was required to travel to more remote locations.

Mr Hamblyn stated further that in addition to her day-to-day duties, the Applicant was also required to attend special events, such as insurance and real estate conferences. This would typically involve the Applicant staffing a stall and engaging with potential clients and industry peers. Mr Hamblyn acknowledged that when the Applicant was not travelling to visit clients, her administrative duties were principally performed from her home office. However, he noted that on rare occasions, the Applicant was expected to work from the Suncorp Group office in Eagle Farm, for reasons including team meetings or technical issues at her home office.

As to work from home measures implemented throughout the pandemic, Mr Hamblyn acknowledged that during periods of lockdown, the Applicant was unable to carry out in-person visits with clients and therefore engaged with them via audio-visual technology or the telephone. However, his evidence was that these measures and any release of the expectation that the Applicant make in-person visits were temporary only, and that the business practices were always expected to transition back to the pre-COVID-19 way of working when the pandemic restrictions eased.

Mr Hamblyn also acknowledged that the Applicant’s face-to-face interactions with clients were determined by the requirements of the clients, and following the pandemic, clients would often request that meetings be via audio-visual technology or over the phone. However, Mr Hamblyn said that this trend was steadily reverting to a preference for face-to-face meetings as things transitioned to a “living with the virus” mentality. In support of this, Mr Hamblyn stated that the two Landlord Insurance Partners currently working for the Respondent in Queensland were expected to regularly visit their clients. He stated that this expectation was also required of Landlord Insurance Partners working across other states and territories.

Noting the various reasons why face-to-face visits were periodically reduced or stopped since the start of the COVID-19 pandemic, Mr Hamblyn nevertheless maintained that face-to- face visits would continue to be an integral part of the Applicant’s prior role with the Respondent. Mr Hamblyn stated that it would not be operationally practical to allow the Applicant to work 100% from home and have another person complete her weekly in-person client responsibilities and that the Respondent would have been forced to hire an additional person to cover those duties, noting that it would not have been possible for the other Landlord Insurance Partner in Queensland to undertake those responsibilities in addition to their own.

In his further statement Mr Hamblyn said in response to the Applicant’s evidence that she had complete autonomy as to whether she visited her clients in-person or contacted them via remote means, the Respondent expected its Landlord Insurance Partners to make regular in- person visits to clients rather than relying solely on remote interactions. Mr Hamblyn confirmed his earlier evidence that while telephone communications were encouraged as part of the Applicant’s role, it was not the case that a Landlord Insurance Partner could operate 100% remotely and have no in-person interactions with clients. In this respect, Mr Hamblyn stated that where clients requested an in-person meeting with their designated Landlord Insurance Partner, it was expected that the Landlord Insurance Partner accommodate this request where practicable.

Mr Hamblyn stated that prior to her maternity leave in July 2017, the Applicant had private use of a TSI branded company car to assist her carry out in-person visits to her clients. He stated that when the Applicant returned from maternity leave in July 2018, she gave back her company car and instead elected to receive a car allowance. Mr Hamblyn’s evidence was that the Applicant had access to the company car and car allowance because she was expected to, and did, travel and visit her clients in-person as part of her role.

Mr Hamblyn had been informed by the Respondent’s human resources department that from 24 November 2018 until the termination of her employment, the Applicant received a fixed fortnightly car allowance of $433.56 ($11,272.56 per year). Mr Hamblyn stated that on the basis that Suncorp reimburses employees 79.68 cents per kilometre, he calculated that the Applicant’s car allowance reimbursed her for driving 544.13 kilometres per fortnight for TSI, or 14,147.29 kilometres per year. Mr Hamblyn was unaware of any reason that the Applicant would need a car allowance other than to visit her clients in person, which he stated was a key component of her role.

Mr Hamblyn also referred to the Applicant’s oral evidence disputing that she was required to attend in-person client visits in North Queensland6. Mr Hamblyn noted that it appears the Applicant last visited clients in North Queensland in 2016. Mr Hamblyn’s evidence was that he was not aware of this until the Applicant gave her evidence in these proceedings and that if the Applicant was still in the business, he would have directed her to visit North Queensland as a matter of priority.

Mr Hamblyn acknowledged that the North Queensland region was a smaller part of the Applicant’s territory than Southeast Queensland. Mr Hamblyn stated the Applicant had 670 clients or potential clients in Northern Queensland, which represented approximately 30% of her total client or potential client number; however, the focus of her role was Southeast Queensland where she had the majority of her clients. Mr Hamblyn noted that the Applicant could easily visit those clients in-person and did so on regular occasions during her employment.

Mr Hamblyn noted that in her oral evidence at the hearing on 8 June 2022 the Applicant stated she was only required to attend one in-person conference per year as a representative of TSI. 7 Mr Hamblyn said that he had made inquiries of TSI’s internal systems and Ms Barton and noted that the Applicant either attended, or would have been obliged to attend but for her maternity leave period, the following external events between 2017 and 2021 as a representative of TSI:

Accordingly, the dismissal of the Applicant for her failure to comply with the Standard is provided for in the very clause the Applicant contends renders the Standard invalid. Further, for reasons set out above, whether the Standard was referred to or incorporated into her contract is irrelevant in the sense that it is a lawful and reasonable direction, and her obligation to comply with such directions is implied into her contract at common law. The obligation to comply with lawful and reasonable directions is not statute based and the Applicant’s reference to the Standard being devoid of any applicable statutory power, is misconceived. The Applicant was obliged to comply with the Standard in accordance with her contract of employment and relevant common law duties by force of common law rather than statutory law.

The Applicant’s submissions in relation to s. 94H of the Privacy Act are also misconceived. That section provides as follows:

“94H Requiring the use of COVIDSafe

(1)A person commits an offence if the person requires another person to:

(a)download COVIDSafe to a communication device; or

(b)have COVIDSafe in operation on a communication device; or

(c)consent to uploading COVID app data from a communication device to the National COVIDSafe Data Store.

Penalty: Imprisonment for 5 years or 300 penalty units, or both.

(2)A person commits an offence if the person:

(a)refuses to enter into, or continue, a contract or arrangement with another person (including a contract of employment); or

(b)takes adverse action (within the meaning of the Fair Work Act 2009) against another person; or

(c)refuses to allow another person to enter:

(i) premises that are otherwise accessible to the public; or

(ii) premises that the other person has a right to enter; or

(d)refuses to allow another person to participate in an activity; or

(e)refuses to receive goods or services from another person, or insists on providing less monetary consideration for the goods or services; or

(f)refuses to provide goods or services to another person, or insists on receiving more monetary consideration for the goods or services;

on the ground that, or on grounds that include the ground that, the other person:

(g)has not downloaded COVIDSafe to a communication device; or

(h)does not have COVIDSafe in operation on a communication device; or

(i) has not consented to uploading COVID app data from a communication device to the National COVIDSafe Data Store.

Penalty: Imprisonment for 5 years or 300 penalty units, or both.

(3)To avoid doubt:

(a)subsection (2) is a workplace law for the purposes of the Fair Work Act 2009; and

(b)the benefit that the other person derives because of an obligation of the person under subsection (2) is a workplace right within the meaning of Part 3‑1 of that Act.”

The effect of the section is to make it an offence to require another person to download or use the COVIDSafe App or to take adverse action against them for that reason. No-one is requiring the Applicant to download the App. The Standard gave her options to establish her status which did not necessitate the app. being downloaded. The Applicant persisted with this argument in the face of the plain words of the statute and the Respondent’s submissions.

The Applicant is not protected by s. 94H of the Privacy Act, as it has no application to her in the present circumstances. Even if the section applied, the Standard is not a State law. Rather, it is a Company policy and cannot be inconsistent with a Commonwealth law by virtue of s. 109 of the Constitution.

The Applicant’s insistence that COVID-19 does not exist is offensive to the many persons who have lost their lives or continue to suffer ill health because of contracting COVID- 19 and to their loved ones and all who have suffered detriment in the fight to control the virus. The Applicant’s position is also contrary to the expert advice that all levels of Government in Australia have relied on since the outbreak of the Pandemic. As Deputy President Colman said in relation to the Australian Technical Advisory Group on Immunisation:

“[39] First, it is a matter of public record and a notorious fact that ATAGI is an expert body whose role is to provide evidence-based advice on the administration of vaccines to the Commonwealth, and also to the general public. ATAGI’s fifteen members hold senior positions at major universities, hospitals and research institutions around the country. ATAGI’s status as an expert body that provides advice to government and the public cannot seriously be doubted…

[41] …One obvious benefit of an expert advisory body such as ATAGI is that it may evaluate all of the available evidence and competing hypotheses, draw evidentiary conclusions, and formulate sound and pragmatic advice so that society is not left in policy limbo when difficult scientific problems require practical responses.”27

The existence of COVID-19 has not been doubted by any of the Courts and tribunals who have dealt with cases concerning the myriad of issues that have arisen as a result of measures to control the virus. The Freedom of Information decision tendered by the Applicant establishes nothing more than the fact that the entities to whom the requests to provide documents were made do not have documents meeting the description. This may be because some other entity holds the documents or because the premise of the requested information is wrong or misconceived. The inability of the Therapeutic Goods Administration to produce such documents says nothing about the existence of COVID-19 and it is regrettable that time and effort must be expended responding to such requests.

Article XVIII. Whether there was a valid reason for the Applicant’s dismissal

I am satisfied that there was a valid reason for the Applicant’s dismissal. The Standard was a lawful and reasonable direction that the Applicant was required, by the terms of her contract of employment, to comply with. The Applicant refused to comply with a lawful and reasonable direction of her employer and her breach was of such significance in the context of the Respondent’s workplace health and safety obligations and duty of care to the majority of its compliant employees, that dismissal was a sound, defensible response to the Applicant’s conduct. In the face of the Applicant’s intransigence, it was the only reasonable response.

27 Jovcic v Coopers Brewery Ltd [2022] FWC 1931.

Article XIX. Whether the Applicant was notified of the reason for dismissal

The Applicant was clearly notified of the reason for her dismissal in a manner that enabled her to respond to that reason. The show cause letter clearly set out the basis upon which it was asserted that the Applicant was refusing to comply with a lawful and reasonable direction and the Applicant was provided with that letter prior to a show cause meeting.

Article XX. Whether the Applicant was given an opportunity to respond to reasons for dismissal

The Applicant was given every opportunity to respond to the reasons for her dismissal. I do not accept that the Applicant was denied an opportunity to defend herself in response to the show cause letter, because the documents she sought and described as “pleadings” were not provided. I can only wonder at what other detail of the allegations could have possibly been provided to the Applicant. The Applicant was comprehensively informed of the reasons she was facing dismissal and requested to respond to those reasons. The fact that the Applicant’s responses were misconceived or based on an erroneous view of a range of legal and factual issues, does not result in a finding that she was not given an opportunity respond.

The extent to which an employer is required to respond to erroneous, misconceived and nonsensical propositions is debatable, but it is not necessary to reach a conclusion in the present case on the basis that I am satisfied that the Respondent made reasonable attempts to engage with the Applicant in relation to the position she had adopted with respect to complying with the Standard.

Article XXI. Any unreasonable refusal to allow the Applicant to have a support person

Regardless of the identity of the Applicant’s support person, the Applicant was offered a support person and had one present at discussions relating to the dismissal. Even if the Applicant did not have a support person, this criterion is concerned only with whether there was an unreasonable refusal for a support person. For the reasons set out above, there was no such refusal.

Article XXII. Whether Applicant warned about unsatisfactory performance

The Applicant’s dismissal did not relate to unsatisfactory performance and this criterion is not relevant. If I am wrong on this point and the refusal to comply with the Standard was unsatisfactory performance, the Applicant can have been in no doubt that the Respondent was viewing her refusal to comply with Standard as a possible basis for the termination of her employment and was warned about this issue in any event.

Article XXIII. Impact of size of enterprise impacted on the procedures followed in effecting dismissal

Suncorp is a large employer and followed a process in effecting the dismissal that was both procedurally and substantively fair, as would be expected of such an employer.

Article XXIV. Impact of dedicated human resource managers on procedures followed in effecting dismissal

Suncorp has dedicated human resource managers and as would be expected effected the Applicant’s dismissal in a substantively and procedurally fair manner.

Article XXV. Any other relevant matters

I have considered that the Applicant had some 13 years’ service and there is no evidence of any issues in terms of her conduct or capacity, prior to the conduct which led to her dismissal. While I do not doubt the loss of the Applicant’s employment adversely impacted her, she provided no evidence in this regard.

I do not accept the Applicant’s contention that she should have been permitted to perform her role from home. In this regard, I accept the evidence of Mr Hamblyn that the Applicant’s role included a requirement to meet in person with clients and that as restrictions lifted this expectation would have increased. This requirement is clearly encompassed in the Applicant’s contract of employment including by virtue of her being provided with a vehicle allowance. I also note that the Applicant did not raise this issue during the show cause process and raised it only at the hearing of her unfair dismissal application. Had the Applicant raised this issue, I am of the view that it would have been reasonable to refuse her request in the circumstances particularly where she had no reasonable basis to refuse to comply with a lawful and reasonable direction in relation to her employment.

Essentially, the Applicant had a difficult choice to comply with the Standard by doing something she did not wish to do, or to lose her employment. The Applicant chose the course of refusing to comply with a lawful and reasonable direction given by her employer, in full knowledge of the repercussions which would ensue as a result of her choice. While this is regrettable, the Applicant’s dismissal for the reason that she refused to comply with a lawful and reasonable direction to be vaccinated and to advise her status to her employer, was not unfair.

Article XXVI. Conclusion

For these reasons I dismissed the application in U2021/11888 and issued an Order28 to that effect.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Appearances:

H Campbell, Applicant.

H Blattman KC of Counsel instructed by Herbert Smith Freehills for the Respondent.

Hearing details:

2022.

Brisbane:
8 June.
Brisbane (by video):
15 August.