June Chan v Department of Families, Fairness and Housing T/A DFFH - [2023] FWC 503

[2023] FWC 503

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

June Chan
v

Department of Families, Fairness and Housing T/A DFFH

(U2022/9857)

DEPUTY PRESIDENT BELL

MELBOURNE, 16 MARCH 2023

Application for an unfair dismissal remedy – COVID-19 vaccination policy – inherent requirements – application dismissed.

Ms June Chan (Applicant/Ms Chan) made an application (the Application) to the Fair Work Commission (Commission) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the FWAct). The Applicant alleges she was unfairly dismissed by the Department of Families, Fairness and Housing (Respondent/Department) on 16 September 2022. The Respondent agrees the Applicant was dismissed on 16 September 2022 but denies the dismissal was unfair.

The Respondent contends the Applicant was unable to perform her role because she was unable to attend the workplace as required without breaching a mandatory COVID-19 vaccination policy of the Respondent’s.

Section 390 of the FW Act provides that the Commission may order a remedy if the Commission is satisfied that the Applicant was “protected from unfair dismissal” at the time of being dismissed and the Applicant has been “unfairly dismissed”. It was not in contention, and I am satisfied, that the Applicant was protected from unfair dismissal under s.382 of the FW Act and had made her application within time. The issue in contention was whether she was unfairly dismissed.

Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

The factor in s.385(a) was not disputed and the factors in s.385(c)-(d) were not applicable. The issue in dispute was whether the dismissal was harsh, unjust or unreasonable.

Prior to the substantive hearing, I determined it was appropriate to hold a hearing for the matter: s.399. I also granted permission for each party to be legally represented. Each party called one witness, with the Applicant giving evidence on her own behalf. Both witnesses were cross-examined.

Factual findings

Ms Chan’s role

The Applicant commenced employment with the Department (noting a different departmental name at the time) in May 2014.

The most recent variation to Ms Chan’s employment contract was in May 2018. Since that time, Ms Chan’s role was ‘Advanced Child Protection Practitioner’. A matter relied upon by the Department to which I will return was that the usual place of work specified in her employment contract was 71 Moreland Street, Footscray.

The Department’s function of child protection services arises from a legal framework established by the Children, Youth and Families Act 2005 (Vic). By that Act, the Secretary of the Department has responsibilities, as a protective intervenor. The Secretary’s functions – including many delegated to Departmental staff – include the investigation of concerns regarding the safety of children and young people and, where required, intervention to protect them.

Ms Fiona Fyffe gave evidence about the circumstances when a child protection practitioner might be required to provide protection services. She described the duties of an Advanced Child Protection Practitioner as including:

“(a) receiving and assessing reports of alleged abuse and neglect of children and young people;
(b) undertaking investigations;
(c) developing plans for change to ensure the safety, stability and development of children and young people;
(d) appearing in court;
(e) undertaking home visits to children and their families;
(f) transporting children requiring child protection services;
(g) supervising children’s contact with their parents and/or extended family members;
(h) attending relevant specialist appointments with children;
(i) attending meetings with other professionals and services, care team meetings and case plan meetings for children and their families;
(j) coaching and mentoring less experienced team members; and
(k) taking the lead role during investigations as primary practitioner in complex cases.”

None of the evidence just described was substantially in dispute, and I accept it, although what was in dispute was the frequency such services were required to be performed and the extent such services might be required to be undertaken outside of Ms Chan’s home.

Ms Fyffe stated that the functions of an Advanced Child Protection Practitioner that could not be performed remotely included:

·   Investigations and after-hours work. Ms Fyffe states that Advanced Child Protection Practitioners can be, and are, required to perform case management and investigation roles, which is not always possible to perform remotely.
·   Reassignment of a child protection practitioner’s ordinary duties to pick up duties that might not ordinarily be performed (but are within the spectrum of statutory duties) to manage staff shortages amidst absences due to COVID-19.
·   Face-to-face engagement with managers to take reports, formulate risk assessments, consultations and follow ups with managers. Ms Fyffe acknowledges that while these can be (and it, would appear, routinely are) performed remotely, she considers “in the long-term” that this leads to a less than optimal impact on future services.
·   Privacy obligations. The Respondent considers there is an “unacceptable risk” of privacy obligations if a child protection practitioner works wholly from home.
·   Learning and development / Training / Peer Support. For each of these, the Respondent considered it preferable for staff to attend the office in person to ensure these objectives are more fully achieved.
·   Attendances at court. Child protection practitioners are required to attend court to provide evidence. So far as those appearances are required ‘in person’, then the child protection practitioner would need to be physically present in court.

Ms Fyffe states, and I accept, that there are no child protection staff working remotely the whole time in the western Melbourne area, which is due to the Department’s view that child protection practitioners working wholly remotely is not best practice and the potential impact on client outcomes.

Ms Chan disputed some of the above matters, at least regarding a question of degree or for modifications to duties proposed by Ms Chan. For example, she contended that arrangements in which she (and other staff in her team) had been operating remotely since COVID-19 work-from-home arrangements started worked well and, in some cases, better. She stated that her position description did not specify where she was required to work, or whether it would be on-site or face-to-face. She also contended that the position description did not require her to undertake the tasks and duties described personally, which allowed her to coordinate with colleagues to ensure other colleagues performed that work.

Nonetheless, Ms Chan appeared to acknowledge that some tasks were performed out of home. For example, while she disputed that interviews with children should occur at the child’s home, she stated (and I accept) it was preferrable to interview children away from the child’s home environment, such as at a school location. She also challenged the degree to which other out-of-home attendances occurred in practice, at least since COVID-19 began. In substance, Ms Chan says that since the work changes caused as a result of various public health orders, much of the Respondent’s child protection business now took place via online platforms.

The Respondent’s COVID-19 vaccination policy

From early 2020 to October 2021, various public health orders under Victorian law had been made in response to the COVID-19 pandemic. Broadly speaking, the effect of a number of those orders up until October 2021 was to prohibit employers allowing workers – particularly during what became known as ‘lock down’ periods – to work at places other than their home. There were a number of employees for whom exemptions effectively applied, allowing those staff to work out of home, that were variously described over time as “essential” or “authorised” or “permitted” workers. These directives applied to Ms Chan and the Respondent, although Ms Chan was permitted to work outside of her home in relevant circumstances as an authorised worker.

Beginning in October 2021, a relaxation of those restrictions commenced. That relaxation, however, was coupled with a broadly cast legal requirement that, with relatively few exceptions, had the effect of prohibiting employers from allowing unvaccinated workers from attending their place of work. Those directives, and subsequent iterations of them, also applied to the Respondent.

It was not in dispute that the Respondent was not vaccinated and it was also not in dispute that the relevant public health orders affected Ms Chan’s employment from October 2021 in the manner I have described.

It would appear that upon commencement of the public health orders in October 2021 Ms Chan commenced a period of leave.

Also in October 2021, the Department engaged in a consultation process regarding the implementation of a mandatory vaccination policy. The consultation at that stage occurred in a fairly short time frame although, at the least, included consultation with health and safety representatives (HSRs) and emails with staff. The material before me discloses that there was a dedicated COVID-19 intranet page established by the Respondent.

I would record at this juncture that, while the evidence before me of consultation steps[1] regarding the Respondent’s vaccination policy was relatively light, that fact appears to be explained because the issue of adequate consultation was not materially in dispute. Ms Fyffe gave evidence that relevant consultation occurred, and that the feedback from the consultation process considered, was not challenged and I accept it. The policy, as in force in late 2021, was not put in evidence by either party. I also note that the Departments vaccination policy appears to have been reviewed and, I infer, restated with little change in 2022. The restated policy was in evidence and I describe this further below.

As indicated above, Ms Chan indicated that she was on leave during the period from October 2021. The leave concluded in mid-November 2021. When she returned, Ms Chan’s attention was focused on the effect of the mandatory public health orders and being asked whether she was vaccinated or not. Not being vaccinated, Ms Chan was clearly unable to satisfy the requirements of the public health orders in place at the time.

Ms Chan’s employment was suspended from 18 November 2021 due to her unvaccinated status. While the correspondence giving effect to that suspension did refer to the Respondent’s vaccination policy at the time, it is tolerably clear that the primary basis for that suspension was as a result of the Victorian public health orders that had recently come into force.

On 15 December 2021, the Department sent Ms Chan a letter reiterating the requirement to be vaccinated due to the need for Ms Chan to work outside of her home. The letter also stated that, absent a satisfactory response, Ms Chan’s employment might be terminated.

On 10 January 2022, Ms Chan submitted objections to the requirement for her to be vaccinated. The basis of her objections were stated to be upon religious and ethical grounds. The gravamen of that objection was because “the COVID-19 vaccines used cell lines derived from foetal tissue in the research/development and/or production process. Due to my Christian beliefs, I am unable to have any of these vaccines, as the connection to foetal tissue, however remote, renders the vaccines off-limits to me.”

While the timing is not precise, it would appear that subsequent events soon overtook that request, as Ms Chan contracted a mild case of COVID-19 in February 2022. A consequence of having contracted COVID-19 was that she satisfied the requirements for a different exemption from the mandatory vaccination requirements.

At this point, Ms Chan’s medical exemption from the vaccination requirements would, without further change, extend until June 2022. From March to June 2022, Ms Chan’s suspension was duly lifted. She continued working for the Department in her usual role and she states (which I accept) that she was deployed outside of her home without incident.

On 18 March 2022, the Department sought advice from Professor John Catford, Public Health Specialist Advisor, COVID Pandemic Response for the Victorian government. Professor Catford was not called to give evidence, nor did he prepare a report that was included in evidence. What was included in the evidence was a “copy of a report based on” (my emphasis) Professor Catford’s advice (the copy report). The copy report did not disclose its author(s), although it was expressed in a ‘question and answer’ format said to be based on Professor Catford’s advice.

It is not necessary to set out the copy report in full. What appears clear from the copy report is that it makes a number of positive recommendations regarding the benefits of COVID-19 vaccinations in the workplace, which included benefits concerning effectiveness against severe illness and effectiveness against transmission.

It is clear from the copy report that recommendations and statements from the Australian Technical Advisory Group on Immunisation (ATAGI) were heavily relied upon to provide the opinions and recommendations in the report. It is uncontroversial that ATAGI was and is the peak advisory group appointed to provide advice to the Minister for Health for the Commonwealth government.

The copy report directly cites statements made by ATAGI on 10 February 2022 and 1 March 2022. While the ATAGI statements of those dates were not in evidence, I have informed myself as to their provenance and am satisfied they, or equivalent contemporaneous statements by ATAGI, were made.

The copy report cites the following statement of ATAGI, published on 10 February 2022[2]:

“Receipt of a primary schedule and a booster dose will provide individual protection from infection and hospitalisation with the Omicron variant, although these effects will wane. It is known that protection against onward transmission also wanes over several months after completing the primary series for the Delta variant. This may be similar with the Omicron variant. It is expected that a booster will increase protection against symptomatic infection and this should lead to a parallel increase in protection against transmission, therefore providing some indirect protection to the wider population. However, evidence to confirm this, and the duration of protection, is awaited.”

The copy report cites the following statements of ATAGI, published on 1 March 2022:[3]

“ATAGI recommends booster doses of COVID-19 vaccine for all Australians aged 16 years and above, to mitigate against waning immunity to SARS-CoV-2 and emergence of SARS-CoV-2 variants. “
“The booster dose of an mRNA vaccine was between 80-95% effective against hospitalisation due to infection with Omicron variant for the first 3 months after boosting and 70-85% effective 4- 6 months after boosting.”

The copy report was considered by the Department when updating its existing mandatory vaccination policy. It is not entirely clear what consultation took place regarding the updating of the Department’s then policy but for the reasons set out above, I am satisfied that sufficient consultation occurred. Additionally, in her oral evidence (among other places), Ms Chan refers to her union – the Community and Public Service Union – as making statements against a mandatory vaccination policy for the Department. Ms Chan was aware of and agreed with the CPSU’s statements at the time. Ms Chan also recalled at least one email she received, although she acknowledged she did not fully read it or reply to the “consultations” due to work demands. Ms Chan states that these events were occurring in 2022 and, I infer from her evidence and Ms Fyffe’s evidence, that they occurred in relation to the policy update process occurring sometime during around second quarter of 2022.

The Pandemic (Workplace) Order 2022 (No. 8) (Order No 8) commenced operation at 11:59pm on 22 April 2022 and was expressed to cease operation at 11:59pm on 12 July 2022. Order No 8 affected Ms Chan’s employment at that time by, relevantly, imposing an obligation on the Department to ensure that Ms Chan did not work outside of her usual residence unless relevantly vaccinated (which Ms Chan was not) or relevantly exempt (which Ms Chan was and would be up until 14 June 2022).

On 30 May 2022, Ms Chan received an email from the Department’s employee relations team. The email noted that Ms Chan’s exemption to the COVID-19 vaccination requirements was due to expire on 13 June 2022. The email specifically referred to the Department’s (then) mandatory vaccination policy and reiterated the requirements of that policy. Ms Chan’s response was sought by 3 June 2022. On 10 June 2022, Ms Chan responded stating that she had no new documentation to provide.

On 10 June 2022, the Department issued Ms Chan a letter, in which Ms Chan was to be suspended (with pay) from her employment effective from 14 June 2022. The letter referred to the existing public health orders in place at the time – namely Order No 8 - as well as the Department’s vaccination policy. Ms Chan was offered a meeting to show cause why her employment should not be terminated.

It is a matter of public record that, on 18 June 2022, the Victorian Government announced[4] that a number of requirements then in force under Order No 8 would be lifted, effective from 24 June 2022. Broadly speaking, one effect of the foreshadowed changes was a significant narrowing of the categories of employers, and their workers, for whom a vaccination requirement on employers would remain in force in order to work outside of the worker’s home. Relevantly, the proposed changes would mean that Ms Chan would not be affected by a public health order to be vaccinated in order for her to work outside of her home.

On about 23 June 2022, the Department adopted an updated version of its COVID-19 policy, which was titled “COVID-19 Vaccination Requirements Policy” (Policy). The Policy was in evidence and, although the earlier version of the Policy was not in evidence, there was no suggestion there were any material differences between the two versions.

It is unnecessary to set out the detail of the Policy but its application and effect can be simply stated. The Policy applied to all employees and “Workplace Participants” (eg contractors) of the Department. The Policy was expressed to be subject to review from time to time in line with changing occupational, health and safety risks or every six months.

The substantive effect of the Policy was that employees were required, effective from 3 July 2022, to have an “up to date” vaccination status, with “up to date” defined by reference to ATAGI advice. Relevantly, up to date meant at that point in time having received a total of three doses of an approved COVID-19 vaccine. While there were exceptions to the Policy requirements, they were effectively confined to persons who could demonstrate a medical contraindication or medical exception. There was no exemption for religious or ethical reasons. The Policy made it clear that non-compliance with the Policy might lead to termination of a person’s employment.

On 24 June 2022, Order No 8 was revoked and replaced by the Pandemic (Workplace) Order 2022 (No. 9) (Order No 9).[5] Consistent with the description I provided above, Order No 9 did not have an effect of requiring the Department to ensure Ms Chan was vaccinated for COVID-19 if she was to work outside of her usual residence.

On 1 July 2022, the Deputy Secretary of the Department sent an email to staff regarding the Policy. Among other matters, that email recorded that “This policy came into effect on 23 June 2022”. The email also announced an extension of time, to 31 July 2022, for employees to receive a third dose of an approved vaccine if they did not already have one. The email referred to a Policy “fact sheet” and “FAQ” located on an intranet page, which I infer contained information of such a nature.

On 18 July 2022, the Department wrote to Ms Chan. This correspondence enclosed the Policy and the communication from the Deputy Secretary on 1 July 2022. It is unnecessary to record the detail of the letter but it stated in clear terms that Ms Chan was required to comply with the Policy, as the Department considered that her role required working outside of her home. Ms Chan was given until 31 July 2022 to comply with the vaccination requirements of the Policy.

At around this time, although the timing is not clear, a show cause meeting with Ms Chan was scheduled for 9 August 2022.

On 9 August 2022, prior to her scheduled show cause meeting, Ms Chan sent the Department a four-page letter responsive to the Department’s letter dated 18 July 2022. Ms Chan raised a number of objections to the Policy and explained why her employment should not be terminated.

Consistent with Ms Chan’s correspondence in January 2022, she restated her objections based on religious and ethical grounds.

In the letter, Ms Chan said she:

“acknowledged that not all people who identify as Christian feel this way, but studies have found that a large percentage within my faith stream have similar views; also, in my faith, each person is accountable to God for her/his own decisions. For me, being asked to receive any of the available COVID-19 vaccines would be akin to requiring a Muslim worker to have injections that s/he considered not Halal.”

In relation to her religious objections, Ms Chan’s witness statement provides: “In my faith stream, each individual must seek God for guidance in daily affairs. Many Christians, including me, recognise God as their ultimate religious authority and form their beliefs based on their own understanding of the Bible and communicating with God directly through prayer.”

In her correspondence, Ms Chan suggested some “Proposed Accommodations”. Primarily, those adjustments involved Ms Chan being required to take a “Rapid Antigen Test (RAT)” prior to undertaking any duties outside of her home, together with other preventative measures such as social distancing, hand sanitising, and mask wearing.

Ms Chan also proposed other alternatives which would entail working wholly from home. For these, Ms Chan suggested modifications to her duties or role that, she suggested, would be adequate to the Department’s needs.

Ms Chan’s letter addressed in some detail various reasons why the modifications or exemptions she proposed were appropriate. Ms Chan’s letter also requested a copy of any “risk assessment” if the Department did not agree that Ms Chan’s “natural immunity” (being a reference to her prior case of COVID-19) and proposed option for RATs were not considered sufficient to address health and safety concerns.

Ms Chan’s letter then requested that, in the event that her primary proposals were not acceptable, that she be permitted to take a period of leave, including study leave, for the purpose of allowing her to secure alternative employment without having the distress or disadvantage of having a termination of employment against her name.

Ms Chan’s letter of 9 August 2022 also proposed that the Department participate in a conciliation or similar dispute resolution meeting to attempt to work out a mutually satisfactory outcome. There was a separate issue about a request by Ms Chan to take carer’s leave for an unrelated purpose (which it is not necessary for me to record the detail of here).

Subsequently on 9 August 2022, Ms Chan attended a ‘show cause’ meeting with Ms Fyffe and two others from the Department (including the Deputy Area Operations Manager, Child Protection, Western Melbourne). While I accept some other matters might have been discussed or emphasised, primarily Ms Chan verbally reiterated what was contained in her letter. There was a brief email exchange that followed on 11 and 16 August 2022, although that did not expand on the matters I have just described.

Ms Chan’s circumstances were then considered by an Acting Deputy Secretary, who was the relevant delegate authorised to make a decision on the matter.

On 9 September 2022, Ms Chan received a letter from the delegate containing his determination of the outcome. The letter and the accompanying “Delegate determination” set out in some detail the chronological events I have already set out above, as well as Ms Chan’s letters dated 10 January 2022 and 9 August 2022. The final paragraph of the determination stated:

“There is nothing before me to suggest that Ms. Chan has not been a productive and valuable member of the department’s workforce so it unfortunate that Ms. Chan’s employment has concluded in this manner. However, the requirements under the Vaccination Policy are in place to ensure that the department’s obligations under the Occupational Health and Safety Act 2004 (OHS ACT) are met. Specifically, the obligation to ensure a working environment which is safe and without risks to health for employees and other workplace participants – particularly for Victoria’s most vulnerable who make up the majority of the department’s clients. Ultimately, Ms. Chan has made a personal decision and that personal decision has led to this unfortunate outcome.
My determination with respect to Ms. Chan is that termination of employment is the appropriate outcome that should be applied.”

For completeness, I note Ms Fyffe’s evidence, which I accept, that there were no other roles that Ms Chan could have been deployed to enable performing work solely from home.

The parties’ submissions

The Department’s submissions are relatively straight-forward and I will briefly summarise them.

It firstly submits that the Policy was a lawful and reasonable direction that Ms Chan was required to comply with. The effect of the Policy was that Ms Chan would not be permitted to work outside of her home unless relevantly vaccinated against COVID-19 or applicably exempt (within the permitted exemptions stated in the Policy).

Secondly, it submits that there was an inherent requirement of Ms Chan’s role, which required her to perform work out of home.

Thirdly, it submits that due to Ms Chan’s unvaccinated status, she did not comply with the Policy and nor was she relevantly exempt.

Finally, it submits that Ms Chan was afforded all appropriate procedural fairness and that there is no other reason to consider that her dismissal was harsh, unjust or unreasonable.

Ms Chan’s primary and reply submissions raised a number of matters, some of which was reflected in her evidence. While they were well articulated (as was Ms Chan’s oral evidence), it is not practicable to set them out in full. I will attempt to distil them into groups or themes as follows.

Ms Chan disputed that her work could not be performed wholly from her home, or at least with some modifications. I have already provided extracts of Ms Chan’s evidence about working from home, as I have in relation to the modifications or adjustments she suggested. I would note one specific exception that Ms Chan proposed, which was that she could attend work at school locations. Ms Chan contended that work performed at a school site would pose no additional risk, as school teachers were no longer required to be vaccinated at the time of Ms Chan’s dismissal. I infer this is necessarily a reference to State school teachers, as the position for independent or private schools would presumably be addressed at a school-level, not at a State-wide level.

Ms Chan also relied on the changed vaccination position for school teachers as a question of fairness. Ms Chan contended that if the Policy was revised to allow her to perform work at schools, then it would alleviate most of the objections by the Department that Ms Chan could not perform her job, or some tasks, in person.

Ms Chan contends that the Policy was not lawful and it represented an unreasonable “blanket approach”. More specifically, Ms Chan contends that the Policy is not lawful because the risks the Policy purports to allay are unfounded and the imposition of the Policy was disproportionate. Ms Chan identified a number of matters that I consider were intended to support her contention. They included:

·   She notes, correctly, that the Policy was not a public health order. Ms Chan also says that the fact that vaccination requirements were lifted (for Ms Chan’s employment and for most employers) by Order No 9 was a recognition that the risks associated with COVID-19 were sufficiently diminished and that the Policy was inappropriate.
·   Ms Chan disputes the expert advice of Prof. Catford. Ms Chan instead states that “Prof. Nancy Baxter (head of the School of Population and Global Health at University of Melbourne) and Prof. Catherine Bennett (chair of epidemiology at Deakin University), expressed that they did not support keeping vaccine mandates in place for most industries.” A transcript of testimony given on 16 June 2022 by Professors Baxter and Bennett before the Pandemic Declaration Accountability and Oversight Committee of the Victorian Parliament was included in Ms Chan’s documentary evidence, which was broadly consistent with Ms Chan’s summary (albeit, with some important qualifications that are unnecessary to set out here).
·   Ms Chan again pointed to the different standards for Victoria teachers, contending this indicated that the Policy was capricious and arbitrary.
·   Ms Chan observed that ATAGI did not propose a mandate for COVID-19 vaccinations.
·   Ms Chan made other contentions regarding the efficacy of COVID-19 vaccinations. She stated that vaccination did not limit transmission (her material included testimony by a vaccine manufacturer to a European Union-based inquiry). Ms Chan’s submissions regarding efficacy were also expanded upon in her reply submissions, both in respect of the risk of transmission and efficacy in preventing death.

Ms Chan contended that she was a ‘Tier 3’ employee, within a list of tiers that the Fair Work Ombudsman produced to assist employers and employees. I infer Ms Chan was referring to the following guidance on the Fair Work Ombudsman website[6]:

“To assist in assessing whether directing an employee to be vaccinated against COVID-19 is reasonable, it may be helpful as a general guide to divide work into 4 broad tiers:
·   Tier 1 work, where employees are required as part of their duties to interact with people with an increased risk of being infected with COVID-19 (for example, employees working in quarantine or border control).
·   Tier 2 work, where employees are required to have close contact with people who are particularly vulnerable to the health impacts of COVID-19 (for example, employees working in health care or aged care).
·   Tier 3 work, where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment.
·   Tier 4 work, where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).

A workplace may have a mix of employees with different employees performing work in different tiers, all of which could change over time.

An employer’s direction to employees performing Tier 1 or Tier 2 work is more likely to be reasonable, given the increased risk of employees being infected with COVID-19, or giving COVID-19 to a person who is particularly vulnerable to the health impacts of COVID-19.

An employer’s direction to employees performing Tier 4 work is unlikely to be reasonable, given the limited risk of transmission of COVID-19.

For employees performing Tier 3 work, a direction to receive a vaccination is more likely to be reasonable if community transmission of COVID-19 is occurring where the employee is located and the employee is attending the workplace to perform their role.”

Ms Chan contended she was engaged in ‘Tier 3 work’ and had sought clarification from the Department as to what Tier it considered she was in. She contended that the Department had not proven that she could not safely perform work outside of her home (with or without modifications) and also relied upon the Commission decision in Chiu v Liebherr-Australia Pty Ltd[2022] FWC 1842 (Chiu) in support of the proposition that where an applicant has requested, but not received, relevant information about the basis that a COVID-19 vaccination requirement applied would impinge on whether any dismissal was unfair.

Ms Chan contended, broadly, that there were “more effective, less restrictive” options. She observed that, from 14 October 2022, persons contracting COVID-19 were no longer required in Victoria to isolate. As Ms Chan’s evidence records, she had proposed alternative prevention mechanisms such as RATs, social distancing, and mask wearing. She had also proposed a “trial” for 3 months and had further proposed a combination of study leave and other leave during that period to allow her to find other work.

Ms Chan also stated that the Department failed to have regard to her human rights, as she states the applicable enterprise agreement and Charter of Human Rights (Victoria) required. The Department’s conduct was alleged to be contrary to the Victorian Public Sector Employment Principles.

The Department’s Policy was also alleged to be unlawful discrimination - direct or indirect – based on her religious beliefs. The alleged discrimination was a further ground as to why the Policy was neither lawful or reasonable and as to why her dismissal was unfair.

Finally, Ms Chan asserted that the Department had failed to comply with a flexible work request. The objective of the flexible work request appears to reflect, in essence, the adjustments Ms Chan sought to make to her working arrangements as set out above, although there was a related component as she was on approved carer’s leave at the time of her dismissal.

Was the dismissal harsh, unjust or unreasonable?

Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

“(a)        whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b)       whether the person was notified of that reason; and
(c)       whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d)       any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e)       if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f)       the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g)       the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h)       any other matters that the FWC considers relevant.”

I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.

I set out my consideration of each below.

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?

In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[7] and should not be “capricious, fanciful, spiteful or prejudiced.”[8] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[9]

There are two components to the Respondent’s contention that there was a valid reason. The first rests upon the requirements it said existed by the Policy, which was applicable at the time of the Applicant’s dismissal. Those requirements meant that Ms Chan was required to have ‘up to date’ vaccinations for COVID-19 to work outside of her place of residence. The second concerns the contention that an inherent requirement of the Applicant’s employment required her to perform at least some of her role out-of-home.

Was the Policy lawful and reasonable?

The duty to obey lawful and reasonable directions was considered recently by the Full Bench of the Commission in CFMMEU v Mt Arthur Coal Pty Ltd[10] (Mt Arthur Coal) at [64] – [81]. I adopt that analysis.

In summary, the duty to obey does not require a written or express term of the employment contract to that effect but, rather, the duty to follow a lawful and reasonable direction is implied into all contracts of employment. The fact that the term is implied, as opposed to being expressly written (although it often will also be expressly stated), does not affect its legal efficacy.

The terms of the employment contract may be affected by statute or instruments such as enterprise agreements. There was no suggestion that the employment contract was affected so as to prevent to Policy operating, save as I have set out above.

The Policy direction by the Department was aimed at improving overall health and safety of its workforce, involving a product that was lawful. Prima facie, the direction was lawful.[11]

I have already noted that there was no challenge to the Department’s consultation that causes me to conclude the Policy was unreasonable on the basis that appropriate consultation had not been undertaken.

A part of the Department’s case described the Policy as being the policy in place since October 2021. A difficulty with this position is that the Policy was dated 23 June 2022 and that the communication sent by a Deputy Secretary on 1 July 2022 indicated that the Policy “came into effect” on 23 June 2022. While the Policy (as made in June 2022) was plainly based upon the earlier policy (as made in October 2021), the better view is that the latter policy was a different direction and that there needed to be consultation for that policy. That is not to say that consultation for an earlier version of a policy is irrelevant. It might be highly relevant and would usually be expected to be drawn upon in any policy review, but in any case, I am satisfied sufficient consultation occurred for the Policy.

The Policy (i.e. June 2022) contained an express statement to the effect that it would be reviewed approximately every six months. I infer that the policy from October 2021 was to similar effect but, even if this were not the case, it is clear that the Department had commenced steps to review its original policy within five months of it being made, given Prof. Catford’s advice was sought in March 2022. The replacement policy was in operation in June 2022, approximately eight months after the original policy. I consider such timeframes were clearly reasonable in all the circumstances of the COVID-19 pandemic and the size of the Department’s workforce. Moreover, the Policy implemented in June 2022 was based upon more up to date advice (albeit, from March 2022) that was detailed in its consideration and, in turn, was reliant on contemporary guidance from ATAGI.

The Applicant challenged the lawfulness and/or reasonableness of the direction to comply with the Policy on a number of bases. For the further reasons that follow, I am satisfied it was lawful and reasonable.

The Department relies upon Prof. Catford’s advice, as reflected in the copy report. One difficulty with this position is that the copy report represents at least second-hand hearsay. There may be further degrees of hearsay depending upon who was involved in preparing the copy report and what sources were used for its preparation. As the copy report itself does not disclose any of that information, I do not know.

The Department was not challenged as to whether the copy report faithfully reflected the advice provided by Prof. Catford. I would also observe that the answers given in the ‘question and answer’ part of the copy report appear on their face to be credible, in the sense that they accurately reflected advice most likely provided by Prof. Catford. In this respect, I am satisfied to treat the copy report as being reflective of advice received by Prof. Catford on about 18 March 2022.

The challenge to Prof. Catford’s advice was not as to the content of his advice but its correctness.[12] Ms Chan submitted that his advice was incorrect or, at the least, other experts had subsequently made recommendations against ongoing mandatory vaccinations.

If I was required to resolve the views of the competing contentions of the parties regarding the opinions expressed by the experts they referred to, this would have been problematic where neither party called any expert and the expert material each relied upon was hearsay. In Ms Chan’s favour, the opinions of the experts she sought to rely upon had been expressed approximately three months after Prof. Catford’s advice was obtained, which suggests that the views of Professors Baxter and Bennett were based on more up to date information. However, a matter strongly in the Department’s favour was that Prof. Catford’s advice was sought specifically in relation to the Department.

However, I do not consider it essential for an employer to procure an expert opinion for the purpose of assessing whether to implement a vaccination policy for COVID-19, although in many cases it might plainly assist if they do so. In the case of COVID-19 in Australia, the role performed by ATAGI has attained particular prominence and importance. I agree with the observations of Deputy President Colman, where he stated: [13]

“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 and indeed the applicants did not seek to impugn that status.”

In assessing whether a workplace policy based on advice, opinions or recommendations given by ATAGI might be lawful and reasonable, it will usually be sufficient that the requirements of the policy are faithfully based on ATAGI’s advice, opinions or recommendations. While I fully accept that different experts might have different opinions to those expressed by ATAGI, an opinion based on ATAGI’s views is likely to be reasonably founded.

The copy report containing Prof. Catford’s advice was heavily reliant on ATAGI statements. I have set out some of those above. I am satisfied the following statements provided support, at the time, regarding the benefits of up to date vaccinations:

·   “ATAGI recommends booster doses of COVID-19 vaccine for all Australians aged 16 years and above, to mitigate against waning immunity to SARS-CoV-2 and emergence of SARS-CoV-2 variants.”
·   “The booster dose of an mRNA vaccine was between 80-95% effective against hospitalisation due to infection with Omicron variant for the first 3 months after boosting and 70-85% effective 4- 6 months after boosting.”
·   Some “protection against onward transmission”, although it was acknowledged this was based on the Delta variant but it was expected it may be “similar” with the Omicron variant.
·   “protection against symptomatic infection and this should lead to a parallel increase in protection against transmission, therefore providing some indirect protection to the wider population.” However, evidence to confirm this, and the duration of protection, was awaited.

The copy report also made other observations pertinent to a workplace, namely:

“there will be workforce capacity and business continuity benefits in terms of reduced sickness absence, as well as reduced quarantine and furlough requirements for affected staff and their close contacts. This in turn will safeguard the functioning and performance of DFFH services which have already been severely compromised by the Pandemic”.

Putting to one side the statement about Department services having been already “severely compromised” (which I make no finding about), I consider that employers have a direct interest in reducing the impact of absences due to sickness, as do other employees (who are likely to be impacted when being asked to cover for colleagues absent due to illness). The employer’s interest is not limited to a financial effect, but encompasses the ability to undertake the usual business of the employer and minimising the impact on other employees affected when a colleague is ill.

I acknowledge there is some force in Ms Chan’s contentions that the public health mandates had been lifted for her (and most other employees) at the time of her dismissal and that other government employees – namely teachers – were not required by a policy to be vaccinated. These matters may well present different considerations for subsequent iterations of the Policy – if it is still in force – but they do not mean the Policy was unreasonable. The Policy had only been implemented less than three months before Ms Chan was dismissed. It was reasonable for the Department to be relying upon it, particularly noting that the Policy itself contemplated further review approximately six months after its commencement.

While there may well be a valid debate that the reasonableness of a COVID-19 vaccination policy being given effect might be affected where a considerable time has elapsed since consultation for that policy took place, that is not the case before me. The Department’s policies contemplate that reviews of its COVID-19 vaccination policies would occur in approximate time frames that I consider were clearly reasonable. I also consider it appropriate for the Department to have relied on those policies during those periods.

Did Ms Chan’s role require work outside of home?

My findings concerning Ms Chan’s duties and role are set out above. I am readily satisfied that important parts of Ms Chan’s role would require her to work outside of her home, and not only at the Footscray office. Ms Chan herself accepted that there were occasions when she would have to work outside of the office, which included court attendances, attending private residences, attending schools, attending childcare centres, potentially attending disability care facilities, and attending hospitals and medical clinics.

While I accept, to a degree, Ms Chan’s evidence that a number of the attendances I described in my findings were less common today due to remote arrangements, it appears self-evidently obvious to me that a child protection practitioner may have to travel to where the child is located at least occasionally, and that location cannot always be controlled or predicted. Remote arrangements may not always be sufficient or best for the child. Ms Fyffe’s evidence confirms that question, as did a number of Ms Chan’s acknowledgements during examination.

In this respect, I am satisfied that an essential requirement of Ms Chan’s role required her to work outside of her home (and outside of her office). I am fortified in this conclusion by the fact that Ms Chan worked out of home prior to the impact caused by the Victorian public health orders for COVID 19 at work locations, as well as the fact that Ms Chan was partly exempt from some of those public health orders as an “essential” and “authorised” worker during 2020 and 2021. She continued to work outside of home during 2022 (when exempt from the public health orders and the Department’s policy due have having contracted a prior case of COVID-19).

I consider it would be a peculiar result if, in those circumstances, it could be said that an inherent requirement of the Applicant’s permanent role (i.e. not a role modified to accommodate the circumstances of responses to COVID-19) had no out-of-home requirement at all.

I am also satisfied from Ms Fyffe’s evidence that an important part of Ms Chan’s role required working with her colleagues in person at the office. Specifically, this included the in person requirements for aspects of learning and development, peer support, and training. As Ms Fyffe’s evidence on this matter indicates, there are less tangible benefits of having people working physically together. And while the importance placed on these benefits might differ among different employers, it is not unreasonable for an employer to require employees to be physically at the office in the pursuit of such objectives. I am satisfied that these objectives were important to the Respondent and it was reasonable to insist upon them.

For these reasons, I also do not consider that the adjustments proposed by Ms Chan would be appropriate. Similarly, I do not consider her “flexible work request” nor carer’s leave request was an answer. The evidence indicates the impact of those matters was (at most) only a few weeks’ duration.

Returning to the nature of Ms Chan’s role, the facts in this case indicate that it is quite likely that Ms Chan would be required to provide services to, or in the presence of, people who were more vulnerable than most to the impact of COVID-19. While some of those people might be more readily identified (e.g. persons in a hospital), others may be vulnerable in this sense but there was no practical way of learning that information in advance. It is also for this reason that I do not accept the position advanced by Ms Chan that she would be a ‘Tier 3’ employee, not a ‘Tier 2’ employee. Even if she was ‘Tier 3’, I consider that the Policy remains reasonable. Ms Chan’s reliance on the decision in Chiu is also respectfully misplaced. In that decision, the employer acknowledged that there was no valid reason for the dismissal (as the public health orders did not apply as it originally thought).

The fact that there has been a period – often extended significantly for many people – where work has been undertaken at home does not dictate a conclusion that work can continue to be undertaken wholly, or even substantially, remotely. I would observe that it is also consistent with the general experience of many people and businesses since COVID occurred, during periods where staff worked at home because of business decisions or because public health orders prohibited on-site attendance. The Applicant’s argument advocating for a fully-remote arrangement, even for the “trial” period proposed, tended to adopt a task-based analysis, focussing on the tasks that were performed while she was required to work at home. The proposed adjustments would also require other people to perform aspects of Ms Chan’s duties where they had to be performed on site.

However, the performance of particular tasks is only one aspect and I have noted the less tangible benefits of having people working physically together. The importance of these interactions – also often a facet of teamwork – should not be underestimated. The Department considered they were important to how it managed its workforce and there is no reason I consider it appropriate to second-guess those management decisions.

I do not accept Ms Chan’s contention that the Policy was unlawful because it constituted discrimination based on religious grounds. While I have no hesitation in accepting that Ms Chan is sincere in her beliefs, I would respectfully again adopt the conclusions of Deputy President Colman as both correct and applicable to the matter before me, who was required to consider a largely similar issue. He stated: [14]

“[81] There will be occasions where the exigencies of work collide with an employee’s personal beliefs and require difficult decisions to be made. It would be unreasonable to require workers to choose between their beliefs and their work without good reason. But in this case, there were good reasons. The policy was in line with ATAGI and government advice that vaccinations reduced transmission. It was directed at the wellbeing of all workers on site, especially those known to be immunocompromised. It served the company’s legitimate interests in maintaining continuity of operations. The policy was responsive to identified risks. It was within reasonable bounds for the company to take the cautious approach that it did to the risk of transmission, to require compliance with the policy, and to decline to grant exemptions to the applicants.”

While it is unnecessary for me to decide, I also doubt whether Ms Chan’s position would reflect discrimination based upon a religion. While I accept that Ms Chan’s faith-based interpretation of religious tenets is sincere, she acknowledges that other Christians have different views regarding COVID-19 vaccinations. There was no evidence – other than Ms Chan’s own assessment – of the requirements of her religion.

While the question of discrimination appears relevant to lawfulness and reasonableness, I have considered Ms Chan’s arguments (and other arguments) in all contexts, including under s.387(1)(h). It is in the interests of avoiding repetition and placing matters in a more convenient part of the narrative in my reasons that I have addressed these matters here. For similar reasons, I do not consider that the arguments Ms Chan has advanced based upon the enterprise agreement or the Charter of Human Rights (Vic) change this position.

Having regard to the matters I have referred to above, I find that there was a valid reason for the dismissal related to the Applicant’s capacity.

Was the Applicant notified of the valid reason?

Proper consideration of s.387(b) requires a finding to be made as to whether the applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a).[15]

Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[16] and in explicit[17] and plain and clear terms.[18]

I am satisfied that Ms Chan was given notification of the reasons for the Department’s reasons, in clear terms for the Policy by at least 18 July 2022, although in a real sense those matters had been raised previously regarding the requirement for her to work outside of her home (albeit in primary reliance on public health orders) and Ms Chan clearly had adequate notice. In that correspondence, Ms Chan was told she may not be able to perform the inherent requirements of her role and why. She was told her employment was being reviewed, and to show cause why her employment should not be terminated.

Having regard to the matters referred to above, I find that the Applicant was notified of the reason for her dismissal prior to the decision to dismiss being made, and in explicit and plain and clear terms.

Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[19]

The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.[20] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[21]

I am satisfied that the Applicant was given an opportunity to respond and that she did so, primarily by her letter of 9 August 2022 and the meeting that occurred that day.

Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

There is no suggestion that Ms Chan was refused an opportunity for a support person. I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal.

Was the Applicant warned about unsatisfactory performance before the dismissal?

As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.

To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

Neither party submitted that the size of the Department was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s enterprise had no such impact.

To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

Neither party submitted that the Department lacked dedicated human resource management specialists or expertise. I find that the Respondent’s enterprise did not lack dedicated human resource management specialists and expertise.

What other matters are relevant?

Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

I observe without criticism that a number of the matters raised by Ms Chan were aimed generally at the Department’s reliance on the Policy, without any specific reference to a particular factor in s.387. While I have set those matters out above in my consideration of s.387(1)(a) regarding “valid reason”, I have also considered whether they might independently or in combination be a relevant “other matter” that would render the dismissal unfair. I am not satisfied that they do so.

I take into account that Ms Chan was a long-term employee of the Respondent, having worked with the Respondent since 2014. At the time of her dismissal, she was a valued member of her team. I also acknowledge the economic impact upon Ms Chan that flows from the dismissal. These are matters in her favour.

Conclusion

I have made findings in relation to each matter specified in section 387 as relevant.

I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.

Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable. The Department issued the Applicant with a lawful and reasonable direction to be vaccinated against COVID-19, unless she met one of the exemptions under the Policy, if she wished to continue working for the Department. The Applicant did not comply with that direction in circumstances where an inherent requirement of her role comprised of work out of her home. Those matters gave the Department a valid reason to dismiss the Applicant. I consider that the Department afforded procedural fairness to the Applicant prior to making the decision to bring her employment to an end.

Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act. The Applicant’s application is therefore dismissed.

An order[22] to this effect will accompany this decision.

DEPUTY PRESIDENT

Appearances:

G. Rogers of Reignite Legal Pty Ltd for the Applicant
N. Campbell of Counsel for the Respondent

Hearing details:

2023.
Melbourne (by video link via Microsoft Teams):
February 10.

[1] Cf, CFMMEU & anor v Mt Arthur Coal Pty Ltd[2022] FWCFB 6059 [92] – [201].

[2] The copy report contained a slightly truncated version of the ATAGI statement just quoted. The full statement has been included here for completeness (footnote omitted).

[3] I was unable to find the full ATAGI statement issued on 1 March 2022 (as opposed to a summary statement) but a statement containing identical extracts is from ATAGI dated 25 March 2022 and titled “Australian Technical Advisory Group on Immunisation (ATAGI) recommendations on the use of a booster dose of COVID-19 vaccine”.

[4] The Hon. Martin Foley MP, Minister of Health for Victoria, press release issued 18 June 2022 “Sensible Winter Settings To Keep Victorians Protected”, (retrieved 8 March 2023).

[5] I note for completeness that Order No 9 was revoked and replaced with the Pandemic (Workplace) Order 2022 (No. 10), but no material change to Ms Chan’s circumstances arose as a result of that change.

[6] (retrieved, 8 March 2023)

[7] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

[8] Ibid.

[9] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.

[10] [2021] FWCFB 6059.

[11] Mt Arthur Coal, [85]; Mr Jovan Jovcic v Coopers Brewery Limited[2022] FWC 1931 at [55] (Colman DP).

[12] Transcript, PN169 – PN170.

[13] Mr Jovan Jovcic v Coopers Brewery Limited[2022] FWC 1931 at [39] (Colman DP).

[14] Mr Jovan Jovcic v Coopers Brewery Limited[2022] FWC 1931 at [81].

[15] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].

[16] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

[17] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

[18] Ibid.

[19] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

[20] RMIT v Asher (2010) 194 IR 1, 14-15.

[21] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

[22] PR751281.

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