Jason Pintley v DP World Sydney Limited
[2024] FWCFB 257
•10 MAY 2024
| [2024] FWCFB 257 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Jason Pintley and Ors
v
DP World Sydney Limited and Anor
(C2024/677, C2024/687, C2024/690, C2024/691, C2024/693, C2024/695, C2024/697, C2024/698, C2024/699, C2024/702, C2024/703, C2024/704, C2024/708, C2024/709, C2024/710, C2024/711, C2024/712)
| DEPUTY PRESIDENT SAUNDERS | SYDNEY, 10 MAY 2024 |
Appeal against decision [2024] FWC 128 of Vice President Asbury at Brisbane on 16 January 2024 in matter number U2021/10151 & Ors – unfair dismissal applications – COVID-19 vaccine mandate – whether mandate was a lawful and reasonable direction – lawfulness argument not run below – permission to appeal refused.
Introduction and background
DP World Sydney Limited and DP World Brisbane Pty Ltd (collectively, the Respondents) are subsidiaries of DP World Australia Limited, which operates a national container stevedoring business from terminals located in Sydney, Brisbane, Melbourne and Freemantle. On 21 October 2021, the Respondents adopted the DP World Australia COVID-19 Vaccination Mandate (Mandate), requiring employees to be vaccinated against COVID-19 by the dates specified in the Mandate. The Appellants were employed by the Respondents at its Sydney or Brisbane terminal. The Appellants were subject to the Mandate but did not comply with it. As a result, they were dismissed by the Respondents.
The Appellants commenced unfair dismissal proceedings against the Respondents. Vice President Asbury made two decisions in relation to the unfair dismissal proceedings. First, the Vice President determined, on 10 January 2023, that the Mandate was objectively a valid, sound and defensible response to the circumstances confronting the Respondents in September 2021, with the result that there was a valid reason for the dismissal of each of the Appellants within the meaning of s 387(a) of the Fair Work Act 2009 (Cth) (Act).[1] Secondly, the Vice President decided, on 16 January 2024, that notwithstanding there being a valid reason for the dismissals, the dismissal of each of the Appellants was harsh and unreasonable as a result of a failure on the part of the Respondents to afford the Appellants procedural fairness and a failure to consult with the Appellants before introducing the Mandate.[2] The Vice President determined that reinstatement was inappropriate for all the Appellants because the Mandate was still in effect at the Respondents’ terminals and the Appellants remained unvaccinated against COVID-19. Compensation orders were made by the Vice President in favour of each of the Appellants.
An earlier appeal was lodged against the Valid Reason Decision, but permission to appeal was refused on the basis that there was no “decision” for the purposes of s 604(1) of the Act and the appeal was, therefore, incompetent.[3]
The Appellants seek permission to appeal the Vice President’s decision not to grant the remedy of reinstatement and, to the extent required, the anterior ruling that there was a valid reason for their dismissal.
Mr Lewis was an applicant in the proceedings below before the Vice President. He was reinstated on the basis that he was unfairly dismissed and, unlike the Appellants, was vaccinated against COVID-19. There is no appeal against the decision to reinstate Mr Lewis.
14 of the 17 Appellants were represented in the hearings before the Vice President by their union – the Construction, Forestry, and Maritime, Employees Union, Maritime Union of Australia Division (MUA). Those Appellants remained represented by the MUA on appeal, albeit Mr Boncardo of counsel appeared for them in the hearing before us.
The remaining three Appellants were self-represented. Mr Nemeth and Mr Taylor filed notices of appeal in the same terms as the represented Appellants and relied on the submissions made by Mr Boncardo on appeal. Mr Pintley filed a notice of appeal in different terms to the other Appellants and made separate submissions. Accordingly, we address separately below Mr Pintley’s appeal.
The orders for compensation made by the Vice President on 26 February 2024 in favour of the Appellants were stayed pending the hearing and determination of these appeals.[4]
Permission to appeal
An appeal under s 604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[5] There is no right to appeal and an appeal may only be made with the permission of the Commission.
This appeal is one to which s 400 of the Act applies. Section 400 provides:
“(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”
In the decision of the Full Court of the Federal Court in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one”.[6] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[7] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.”[8]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of an appealable error.[9] However, the fact that the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[10]
Summary of Appellants’ appeal grounds and submissions (other than Pintley)
The Appellants, save for Mr Pintley, rely on four grounds of appeal, having decided not to press ground 1.
By ground 2, the Appellants contend that the Vice President erred in principle in not ordering reinstatement. The error is said to be that the Vice President, in holding that the issue of the Mandate in contravention of s 47(1) of the Work Health and Safety Act 2011 (Qld) and the Work Health and Safety Act 2011 (NSW) (collectively, the WHS Acts) and/or clause 21.4 of the applicable enterprise agreements constituted “procedural failures”, failed to then find that the policy was thereby invalid so that refusal to comply with it ceased to be a valid reason for dismissal. It is contended that the Vice President erred as she failed to assess whether the Mandate was “unlawful” by reason of the Respondent’s contraventions of s 47(1) of the WHS Acts and cl 21.4 of the applicable enterprise agreements. At the hearing of the appeals, the Appellants did not press their argument that the failure to consult constituted a breach of the applicable enterprise agreements.
The Appellants submit that the Vice President found that the Mandate was a lawful and reasonable direction given to the Appellants pursuant to an implied term in their contracts of employment. However, they contend that in her consideration of the lawfulness question the Vice President disregarded the distinction between an act which is invalid and of no operative effect, and an act which is unlawful. It is submitted that one of the issues raised in CFMMEU v Mt Arthur Coal Pty Ltd (Mt Arthur)[11] was whether an otherwise lawful and reasonable direction could be rendered unlawful because of the operation of other laws that bore on the employment.[12] The Full Bench observed that there was no authority directly on point and did not express a view on the matter.[13]
The Appellants submit that the failure to consult with employees before implementing the Mandate contravened ss 47-49 of the WHS Acts and rendered the Mandate an unlawful direction. It is contended that this issue is of general importance and significance because it involves the question of whether a direction issued in breach of a rule of law, such as the WHS Acts, is an unlawful direction. The Appellants submit that this issue was not determined in Mt Arthur and it is in the public interest to do so.
The Appellants contend in ground 3 that the Vice President erred in concluding that there was a valid reason for dismissal which was a material matter in determining not to order reinstatement. The Appellants submit the Vice President erred in her application and analysis of Mt Arthur in relation to whether a failure to comply with s 47(1) of the WHS Acts determined that a direction was unreasonable.
By ground 4, the Appellants contend, in the alternative, that the Vice President erred in concluding that there was a valid reason for dismissal which was a material matter in determining not to order reinstatement in concluding that the Mandate constituted a lawful and reasonable direction.
The Appellants submit that determination of whether or not a policy or direction by an employer is a lawful and reasonable one is a matter which has one correct answer and to which the correctness standard of appellate review applies. It is submitted that whilst assessment of whether there is a valid reason for dismissal involves the making of an evaluative judgment in the nature of a discretion, the question of whether a direction which an employee is said to have failed to comply with is a lawful and reasonable one is not susceptible to a spectrum of reasonably available views.
The Appellants submit that the reasonableness of a direction is a question of fact to be determined in light of all the circumstances, including the nature of the particular employment and the legal instruments that govern the employment. The Appellants accept that a failure to comply with the consultation requirements of ss 47-49 of the WHS Acts will not automatically render a direction or policy unreasonable and that the totality of circumstances need to be considered. However, it is submitted that a failure to properly consult with affected employees, such that a policy is not the outcome of a meaningful consultation process, is a material and persuasive factor in favour of a conclusion that a policy concerning health and safety is not a reasonable direction.
It is submitted that there was no real scope for the Mandate to be altered given that consultation did not commence until after the announcement of the decision to implement the Mandate. Further, there had been no risk assessment with health and safety representatives. The Appellants contend that the Respondents’ failures to consult were grave. It is submitted that there was no evidence or sensible explanation as to why consultation could not have occurred in conformity with the Respondents’ obligations under the WHS Acts. The Appellants contend that these matters were not considered or weighed by the Vice President in assessing whether the Mandate was a reasonable direction. Rather, it is contended that the Vice President failed to factor into her analysis, as required by Mt Arthur, the nature and extent of the failure to consult. This involved, so the Appellants contend, a misapprehension of Mt Arthur and a failure to take into account material matters.
By ground 5, the Appellants contend that the Vice President erred in not ordering reinstatement when there was no valid reason for dismissal. The Appellants accept that ground 5 is consequential on the Full Bench upholding grounds 2, 3 or 4.
Consideration
A preliminary issue was raised by the Respondents as to whether the appeals filed by the Appellants are incompetent because the notices of appeal were filed before the Vice President made a decision in each matter which has “operative legal effect”,[14] namely orders for compensation in favour of each of the Appellants. We do not need to determine this issue because we have decided, for the reasons explained below, that it would not be in the public interest to grant permission to appeal in these appeals.
The following context is important in our consideration of whether it would be in the public interest to grant permission to appeal in relation to ground 2.
The Appellants commenced their unfair dismissal proceedings against the Respondents in November 2021. Hearings in relation to the question of whether there was a valid reason for dismissal were heard on 30 March, 31 March and 9 September 2022. The Valid Reason Decision was published on 10 January 2023. Following an unsuccessful appeal against the Valid Reason Decision, further hearings in relation to the balance of considerations under s 387 of the Act and the question of remedy were held on 11 July, 12 July, 25 July and 26 July 2023. The Remedy Decision was published on 16 January 2024. Detailed oral and written submissions were made by the parties in connection with each of these hearings. The extent of the evidence and submissions made by the parties is evident from the detailed and lengthy decisions published by the Vice President in relation to these matters. The Valid Reason Decision is 144 pages in length and the Remedy Decision is 166 pages in length.
The proceedings below have clearly involved a detailed examination of all the facts and circumstances relating to the dismissal of each of the Appellants. By any measure, the proceedings at first instance, which remained on foot for approximately 27 months,[15] may fairly be described as a significant piece of litigation in which all parties put their best foot forward and expended considerable resources doing so.
In the proceedings below, the Appellants represented by the MUA were acutely aware of the relevance and importance of the decision of a five-member Full Bench of the Commission in Mt Arthur. Indeed, it was submitted below that the decision in Mt Arthur was dispositive of the issue for determination and that if the Vice President followed that decision, as she was required to do, “DP World loses”.[16] Notwithstanding the fact that the Full Bench in Mt Arthur expressly left open the question of whether a failure to consult in contravention of ss 47-49 of the WHS Acts could render a direction requiring employees to be vaccinated against COVID-19 unlawful,[17] the Appellants did not agitate this issue before the Vice President. As Mr Boncardo properly accepted, in the proceedings below the Appellants argued that the Mandate was unreasonable, but they did not argue that it was unlawful by reason of ss 47-49 of the WHS Acts. This argument was raised for the first time on appeal.
Having regard to all the circumstances, we do not consider it is in the public interest to grant permission to appeal in relation to ground 2 to permit a point which was available but not argued below to be argued on appeal. We make this evaluative assessment cognisant of the fact that the lawfulness point which the Appellants seek to argue on appeal is a legal point that has not, to our knowledge, been determined by a Full Bench of the Commission.
As to grounds 3 and 4, we accept the Appellants’ argument that the correctness standard applies to the Vice President’s determination that the Mandate was a reasonable direction; there is only one correct answer to the factual question of whether the decision to implement the Mandate was reasonable.[18] The “correctness standard”, unlike the “discretion standard”, requires the appellate court or tribunal, where applicable, to substitute its own conclusion where it disagrees with that of the decision maker at first instance.[19]
We agree that the introduction of the Mandate was a reasonable step for the Respondents to take in the circumstances they confronted in late 2021, notwithstanding the fact that the Respondents had failed to comply with their consultation obligations under ss 47-49 of the WHS Acts, there had been no risk assessment with health and safety representatives, there was no real scope for the Mandate to be altered given that consultation did not commence until after the announcement of the decision to implement the Mandate, and there was no evidence or explanation as to why consultation could not have occurred in conformity with the Respondents’ obligations under the WHS Acts. These are serious matters which weigh against a conclusion that the introduction of the Mandate was reasonable. However, as the Vice President explained, the Respondents’ failure to consult with its employees was “swamped by the contextual and factual circumstances” which the Respondents were facing in the stevedoring industry in Australia in late 2021.[20] Those factual and contextual circumstances are set out in detail in the Vice President’s decisions, including that at the time the Mandate was introduced and the dismissals were effected:[21]
“[519] …
·The Respondents operated 1/3 of the container terminals in Australia and its operations accounted for 42% of the National market share and 35 – 40 % in the East Coast Ports.
·The economic and social costs of DP World not operating or being impacted at this time could have been devastating in terms of supplies of goods which included essential supplies of food and medical items as well as necessary goods to keep industry working and Australians employed.
·In the second half of 2021, Sydney experienced an outbreak of COVID-19 caused by the Delta variant of the SARS-CoV-2 virus. The Delta variant was generally accepted to be more transmissible than the original (“Alpha”) form of the virus and appears to have had more severe health impacts.
·From 6 September 2021 onwards, New South Wales was subject to various iterations of the Public Health (COVID-19 Self-Isolation) Order with close contacts required to isolate for up to 14 days.
·On or around 15 September two employees at DP World Sydney tested positive for COVID–19 which resulted in 35 employees being required to isolate at home for 14 days and another 53 employees being required to isolate until they received a negative PCR test graphically illustrating the effect on the Respondents’ operations.
·This effect was compounded by the impact of restrictions on movement for unvaccinated persons outside local government areas which comprise a significant proportion of DP World Sydney’s Workforce.
·The potential for such impact increased by the point that the Sydney dismissals took effect because of changes to the contact tracing requirements effective from 21 October which meant that unvaccinated persons were required to isolate for longer periods than those who were vaccinated.
·It was likely that cases in Queensland would increase exponentially when borders opened and similar restrictions to those applicable in New South Wales may have been imposed at any time given the fluidity of the situation.
[520] In short compass, there were compelling reasons for DP World to introduce the Mandate and it is not to the point that other stevedoring companies did not take similar steps. It is also the case that consistent with the medical, scientific and epidemiological findings of the Full Bench in Mt Arthur Coal, vaccination was the most effective control to manage the adverse impacts of the virus.”
We consider the Vice President’s conclusion was correct. We do not consider that there is any arguable appealable error in connection with ground 3 or ground 4 of the Appellants’ grounds of appeal.
Mr Boncardo accepted that ground 5 only arises for consideration if ground 2, 3 or 4 succeeds. They have not succeeded. We do not consider that it would be in the public interest to grant permission to appeal in relation to ground 5.
Pintley’s appeal
Mr Pintley seeks permission to appeal against the Vice President’s decision not to order that he be reinstated, as well as the earlier determination that there was a valid reason for his dismissal.
Mr Pintley’s grounds of appeal and submissions may be summarised as follows:
The Vice President erred in her conclusion that the Mandate constituted a lawful and reasonable direction, rather it was merely unfair.
Mr Pintley was classified by the Vice President into category four (4) for the purpose of assessing his entitlement to compensation. Notwithstanding this, Mr Pintley’s position at the hearing, as articulated to the Vice President, was that he would consider vaccination if he was to be offered his job back.
The Vice President erred in her view that reinstatement is not an appropriate remedy in any case other than that of Mr Lewis.
The Vice President erred in her assumption that Mr Pintley would not get vaccinated. Mr Pintley was still on workers compensation up until September 2023. As a result, he was unfit for work and did not present a health or safety risk to any of the other employees at DP World Sydney. Mr Pintley refutes the position of the Respondents that he had to be vaccinated while he was on workers compensation so that he was ready to come back to work at any time. Mr Pintley submits that there was no evidence to suggest that he was close to returning to work during this time and there was no approach to him by the Respondents to discuss a path to return to work when he was cleared by his doctor to do so.
The Vice President was aware that Mr Pintley would consider vaccination and reserved his right to be vaccinated when being reinstated. The Vice President erred in her assumption that Mr Pintley would remain unvaccinated. If Mr Pintley had been afforded procedural fairness by the Respondents and given his right to consultation, he submits that his employment would not have been terminated.
Mr Pintley has not rendered himself unable to work for DP World Sydney. This is an incorrect assertion made by the Vice President. Mr Pintley has now had the first dose of an approved COVID-19 vaccine and will receive the second dose when possible. He submits that the decision to be reinstated should not be based on the opinion of the Vice President.
Many of the arguments raised by Mr Pintley on appeal have been dealt with in our decision not to grant permission to appeal in respect of any of the appeals lodged by the other Appellants.
Mr Pintley provided the Full Bench with a copy of his immunisation history as at 21 February 2024. It shows that he received a Pfizer COVID-19 vaccination on 10 February 2024. This event took place after the Vice President published her Remedy Decision on 16 January 2024 and more than six months after the final hearing dates in late July 2023. Because Mr Pintley had not received his first dose of COVID-19 at the time of the hearings before the Vice President, there is no arguable case that the Vice President erred by not having regard to that fact when considering whether it was appropriate to order that Mr Pintley be reinstated.
The Vice President was aware that Mr Pintley had argued, among other things, that the termination of his employment because of a medical decision “not to inject a provisionally approved vaccine” into his body was unjust and “simply unsafe”.[22] The Vice President was also aware that Mr Pintley, when asked whether he would be able to comply with the Mandate if reinstated, responded by saying, “I didn’t say I wouldn’t comply with it, I just said I reserve my right to make that decision after there’s a decision made at the hearing”.[23] In assessing whether to order that Mr Pintley be reinstated, we do not consider that the Vice President misunderstood the facts, failed to take into account relevant evidence or otherwise erred in the exercise of her discretion. The Vice President’s reasons for decision demonstrate that she was aware of, and took into account, the facts, circumstances and arguments raised by Mr Pintley below.[24] The fact remained that, as at the time the remedy hearing took place and the Remedy Decision was made, Mr Pintley had not had a dose of an approved COVID-19 vaccine. He therefore could not return to work for the Respondents. This was the central plank in the Vice President’s reasoning that reinstatement was not appropriate for the Appellants.[25]
In the proceedings below, Mr Pintley criticised the Mandate in many different ways and reserved to himself the right to make a decision on whether to become vaccinated against COVID-19 after a decision was made by the Vice President. Mr Pintley’s circumstances do not disclose any appealable error in the orthodox analysis undertaken by the Vice President when exercising her discretion not to order his reinstatement.
We do not consider there to be an arguable error in the Vice President’s evaluative judgment that reinstatement was not appropriate for Mr Pintley, nor in the Vice President’s anterior finding that there was a valid reason for his dismissal. In our view, it would not be in the public interest to grant permission to appeal in respect of the appeal lodged by Mr Pintley.
Conclusion
For the reasons given above, we have decided that it is not in the public interest to grant permission to appeal in any of these appeals. Accordingly, permission to appeal is refused in each appeal.
Because permission to appeal has been refused, the orders staying the Respondents’ requirement to pay compensation to the Appellants cease to operate.
DEPUTY PRESIDENT
Appearances:
Mr P. Boncardo, counsel, appeared for Mr R Williams, Mr M Harriss, Mr S Orel, Mr N Severino, Mr B Mosca, Mr J Edwards, Mr M Kinnear, Mr S Wright, Mr T Williams, Mr C Parrott, Mr J Heath, Mr K MacDonald, Mr M Grujevski and Mr T Lovas
Mr J. Pintley appeared for himself
Mr Z. Nemeth appeared for himself
Mr R. Taylor appeared for himself
Ms V Bulut, counsel, appeared for DP World Sydney Limited and DP World Brisbane Pty Ltd
Hearing Details:
2024.
Sydney
April 18
[1] [2023] FWC 65 (Valid Reason Decision)
[2] [2024] FWC 128 (Remedy Decision)
[3] [2023] FWCFB 62 at [11]-[15]
[4] PR772081 & PR772274
[5] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[6] (2011) 192 FCR 78 at [43]
[7] O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
[8] [2010] FWAFB 5343, 197 IR 266 at [27]
[9] Wan v AIRC (2001) 116 FCR 481 at [30]
[10] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
[11] (2021) 310 IR 399 at [189]-[190]
[12] Ibid at [85]-[86]
[13] Ibid at [87] and [191]
[14] Mosca v DP World Sydney Ltd[2023] FWCFB 62 at [12]
[15] The unfair dismissal proceedings were commenced in November 2021 and order requiring the payment of compensation were made on 26 February 2024 and, in one case, on 11 March 2024.
[16] Valid Reason Decision at [7]
[17] Mt Arthur at [87] & [181]-[191]
[18] Moszko v Simplot Australia Pty Ltd[2021] FWCFB 6046 [37]-[45]
[19] Jamsek v ZG Operations Australia Pty Ltd [2020] FCAFC 119, 297 IR 210 at [168]-[169]
[20] Valid Reason Decision at [521]
[21] Valid Reason Decision at [519]-[520]
[22] Remedy Decision at [149]
[23] Remedy Decision at [150]
[24] Valid Reason Decision at [30], [227]-[235] & [306]-[310]; Remedy Decision at [144]-[150], [428], [459]-[460], [519] & [526]
[25] Remedy Decision at [498]-[509], especially [504]
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