Linda Exeter-Grant v Village Roadshow Theme Parks Pty Ltd
[2023] FWCFB 75
•18 APRIL 2023
| [2023] FWCFB 75 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Linda Exeter-Grant
v
Village Roadshow Theme Parks Pty Ltd
(C2022/8092)
| DEPUTY PRESIDENT MILLHOUSE COMMISSIONER BISSETT | MELBOURNE, 18 APRIL 2023 |
Appeal against decision [2022] FWC 2027 of Commissioner Spencer at Brisbane on 17 November 2022 in matter U2022/4893 – permission to appeal refused.
Ms Linda Exeter-Grant has applied pursuant to s 604 of the Fair Work Act 2009 (Cth) (Act) for permission to appeal and if granted, appeals a decision[1] of Commissioner Spencer dated 17 November 2022.
The decision concerned an application for an unfair dismissal remedy made by Ms Exeter-Grant pursuant to s 394 of the Act. The Commissioner found that the dismissal of Ms Exeter-Grant was not unfair in circumstances where:
(a) Ms Exeter-Grant and the respondent were required to comply with the Queensland Government’s Public Health and Social Measures Linked to Vaccination Status Direction No (2) (Public Health Direction); and
(b) Ms Exeter-Grant:
a. provided no evidence of receiving a vaccination, nor of a valid medical exemption; and
b. failed to follow a lawful and reasonable direction.
The Commissioner dismissed Ms Exeter-Grant’s application for an unfair dismissal remedy. The appeal challenges the decision on two key grounds.
The parties consented to the application being determined without a hearing pursuant to s 607(1)(b) of the Act. We are satisfied, having regard to s 607(1)(a), that the appeal can be adequately determined without the need for oral submissions. Accordingly, the parties were advised that the Full Bench would determine the appeal on the basis of Ms Exeter-Grant’s notice of appeal[2] and the written submissions filed by the parties in accordance with the directions.
For the reasons that follow, we are not satisfied that it would be in the public interest to grant permission to appeal. Permission to appeal is therefore refused.
Background
Village Roadshow Theme Parks Pty Ltd operates a series of theme parks: Warner Bros. Movie World, Wet ‘n’ Wild Gold Coast, Australian Outback Spectacular, Paradise Country, Sea World Resort and Waterpark, Village Roadshow Studios and Topgolf Gold Coast.
Ms Exeter-Grant was employed as a lifeguard at Wet ‘n’ Wild, having commenced employment with the respondent on 17 December 2017. Ms Exeter-Grant worked as a lifeguard on a part-time basis.
The circumstances relating to Ms Exeter-Grant’s dismissal are as follows. On 9 November 2021, in the context of the COVID-19 pandemic, the Queensland Government released its Public Health and Social Measures COVID Vaccine Plan (government health mandate). The government health mandate relevantly introduced a requirement that all theme park employees and guests would be required to be fully vaccinated against COVID-19 when 80% of the adult population of Queensland were double vaccinated. It was predicted that this would occur on 17 December 2021.
On 9 November 2021, the respondent issued correspondence to its employees which conveyed the requirements set out in the government health mandate. The respondent advised that from 17 December 2021, only fully vaccinated employees would be permitted to enter theme parks. Employees were requested to provide the respondent with copies of their vaccination certificates.
The respondent issued repeated requests for employees to provide evidence of their vaccination status on 15 November and 24 November 2021. The correspondence relevantly provided that the respondent was unable to roster employees who had not provided the relevant information by 1 December 2021.
On 17 December 2021, the Public Health Direction commenced operation pursuant to s 362B of the Public Health Act 2005 (Qld). The Public Health Direction applied to theme park operators, such that the respondent and its employees were bound by it. Any breach of the Public Health Direction exposed the operator to substantial penalties.
Ms Exeter-Grant did not comply with the requirement to provide her vaccination status by 1 December 2021. On 8 December 2021, the respondent sent an email to its employees, including Ms Exeter-Grant, who were yet to provide details of their vaccination status. The email advised that they could not be offered shifts from 17 December 2021.
On 13 December and 17 December 2021, Ms Exeter-Grant sent the respondent correspondence which challenged the legality of the respondent’s request to provide it with evidence of her vaccination status. On 4 January 2022, Ms Exeter-Grant provided the respondent with a document purporting to be a medical exemption. As the document was not in the form prescribed by the Public Health Direction, it was not accepted by the respondent. Thereafter, an exchange of correspondence took place in which the respondent provided an explanation regarding documents which would constitute a valid medical exemption.
On 20 January 2022, the respondent sent a show cause letter to Ms Exeter-Grant in respect of allegations that she had not complied with (a) the Public Health Direction, and (b) a lawful and reasonable direction given to her by the respondent. Ms Exeter-Grant did not provide the respondent with a response that specifically addressed the matters in the show cause letter. Rather, Ms Exeter-Grant’s email to the respondent dated of 22 January 2022 sought, inter alia, information from the respondent as to the legal basis for requesting proof of vaccination, a risk assessment in relation to COVID-19 vaccines, and raised safety concerns about receiving the vaccine.
On 7 February 2022, Ms Exeter-Grant was provided with a further opportunity to respond to the specific matters in the show cause letter. The correspondence advised that the respondent would not grant a further extension beyond 17 March 2022 for a response. Following this date, Ms Exeter-Grant was advised that if she remained unvaccinated, the respondent would have no choice but to terminate her employment.
Ms Exeter-Grant did not provide a response to the show cause letter by the extended deadline, or at all.
On 1 March 2022, the respondent directed Ms Exeter-Grant to advise whether her vaccination status had changed. In the absence of being vaccinated, the correspondence advised that Ms Exeter-Grant’s employment with the respondent would cease. Ms Exeter-Grant responded the following day, 2 March 2022, but did not address the respondent’s question. Instead, Ms Exeter-Grant requested a response to her 13 December and 17 December 2021 correspondence.
Ms Exeter-Grant’s employment was terminated pursuant to correspondence dated 17 March 2022 after failing to comply with the respondent’s direction to be vaccinated against COVID-19. Her employment ceased on 14 April 2022.
The termination letter provided as follows (formal parts omitted):
NOTICE OF TERMINATION
I refer to our previous conversations in relation to your compliance with the Queensland Government’s Public Health and Social Measures linked to the vaccination status Direction (the ‘Vaccination Direction’) and VRTP’s lawful and reasonable instruction to be vaccinated in line with this Government mandate.
Our communication to you commenced in September 2021 and included:
1. 28/09/2021 – Survey sent to team members to enquire on their vaccination status.
2. 05/11/2021 – Survey sent to team members requesting their vaccination status.
3. 09/11/2021 – Email regarding Government’s Direction in regard to their mandate.
4. 15/11/2021 – Email requesting you to update VRTP on vaccination status by
01/12/2021.
5. 24/11/2021 – Email reminder to show vaccination proof by 01/12/2021.
6. 08/12/2021 – Email final reminder if no proof shown, advice of removal from roster
from 17/12/2021.
7. 21/01/2022 – Email sent – Show Cause Letter.
8. 07/02/2022 – Email sent – Granting extended leave continuing to 17 March 2022.In our communication, you were provided with many opportunities to show cause as to why you should not face disciplinary action which may include termination of employment because of your:
1. Failure to comply with the Vaccination Direction;
2. Failure to comply with a reasonable and lawful direction; and
3. Inability to work because of the above.
Having considered all of the circumstances, we have determined that you have failed to provide any satisfactory reason why your employment should not be terminated. You have failed to comply with the Vaccination Direction and our reasonable and lawful direction. This means that you are unable to enter our premises, cannot perform your usual duties or be rostered to work.In these circumstances, we have determined to cease your employment. Provided below is the notice period as listed under Fair Work. Your termination date is effective as per the relevant notice period based on your years of service. You will remain on leave without pay during this period. All outstanding entitlements will be paid upon termination in accordance with your commencement date.
Period of continuous service Minimum notice period 1 YEAR OR LESS 1 week More than 1 year – 3 years 2 weeks More than 3 years – 5 years 3 weeks More than 5 years 4 weeks Employees over 45 years old who have completed at least 2 years of service when they
receive notice are given an additional week of notice.As you are aware, you are unable to enter the property while you remain unvaccinated. Therefore, we request that you attend to the return of your uniform and other company property by delivering it to the Security Office at Sea World or Warner Bros. Movie World at your earliest convenience and in compliance with the Vaccination Direction. You will also have 4 weeks to access your ESS portal should you wish to print any payslips or previous Group Certificates.
You are invited to apply for future roles with the VRTP should the Public Health and Social Measures restrictions be lifted, or you elect to become vaccinated.
Ms Exeter-Grant lodged her application for an unfair dismissal remedy in the Commission on 29 April 2022.
The decision
In the decision, the Commissioner commenced by addressing the initial matters in s 396 of the Act,[3] before summarising the circumstances that preceded Ms Exeter-Grant’s dismissal.[4]
After summarising the parties’ evidence and submissions,[5] the Commissioner then addressed the matters requiring consideration under s 387 of the Act.
For the purposes of s 387(a), the Commissioner concluded that the respondent had a valid reason for the dismissal. The Commissioner first considered whether the respondent’s direction to Ms Exeter-Grant to provide advice as to her vaccination status was lawful and reasonable. The Commissioner had regard to Ms Exeter-Grant’s concessions and submissions in the proceedings before her that Ms Exeter-Grant (a) had not been able to perform her role of a lifeguard remotely and understood that being vaccinated was a requirement for her to continue performing her job onsite, (b) understood the 1 December 2021 deadline for providing her vaccination status in order to perform work onsite after 17 December 2021, (c) had received the show cause correspondence dated 7 February and 1 March 2022, and (d) had not provided any response to the 1 March 2022 correspondence. The Commissioner found that Ms Exeter-Grant “provided no evidence of receiving vaccination, nor of a valid medical exemption”[6] and concluded that it was “clear” that Ms Exeter-Grant had failed to follow a lawful and reasonable direction.[7]
Further, the Commissioner was not persuaded by Ms Exeter-Grant’s contention that the respondent should ensure its direction is “backed with proof of safety and efficacy from reliable long term data.” The Commissioner relied upon the position that employers are not required to prove the safety or efficacy of COVID-19 vaccinations to employees, noting that such vaccinations are approved for use in Australia pursuant to legislation.[8]
The Commissioner then turned to consider Ms Exeter-Grant’s contention that the termination was “invalid” on the basis that the Public Health Direction was no longer operative on 14 April 2022, being the final day of Ms Exeter-Grant’s employment. The Commissioner explained this issue in the following way:[9]
“The Applicant confirmed that she was aware that the decision to terminate her employment was made and communicated on 17 March 2022. However, as she was entitled to four weeks’ notice (based on her age and years of service), the Applicant served out her notice period until 14 April 2022 (on a period of unpaid leave). The Applicant argued therefore that she considered her termination date was 14 April 2022, a date that she argued was the same date that the Government lifted the Public Health Direction. The Applicant in her closing submissions emphasised, as she had in her evidence, that her interpretation was that her effective date of termination of employment is 14 April 2022, the same day the Public Health Direction was lifted and, therefore, she should have been returned to employment.”
The Commissioner proceeded by setting out correspondence sent to the respondent by Ms Exeter Grant on 8 April 2022, during her notice period. The correspondence relevantly provided as follows (formal parts omitted):[10]
“…the News that the Vaccine Mandate will be lifted on the April 14, has brightened my spirits and because I’m still on notice until April 18 (which is after the date they will be lifted 14th April) could you please arrange for me to be now rostered shifts from April 14 2022
Thank you. I look forward to seeing you all again soon.”
The Commissioner noted that while Ms Exeter-Grant’s correspondence conveyed that she was on notice until 18 April 2022, the four-week notice period in fact expired on 14 April 2022. The Commissioner then set out the respondent’s response to Ms Exeter-Grant’s correspondence (formal parts omitted):[11]
“Thank you for your interest in working at Village Roadshow Theme Parks.
As you are aware, the Queensland Government have released a statement of changes to the Public Health and Social Measures – coronavirus (COVID-19). As of 1am AEST Thursday 14 April 2022 there will be an easing of restrictions and the requirements to check-in and to be fully vaccinated in a range of venues and events, including theme parks will end.
You are welcome to apply for any suitable vacant roles with VRTP once these Public Health and Social Measures restrictions ease.”
The Commissioner resolved this controversy in the following way:[12]
“The appropriate time for assessing the reasons for termination is at the time of dismissal (17 March 2022). This was addressed in CSL Ltd t/as CSL Behring v Chris Papaioannou, where the Full Bench of the Fair Work Commission found that:
“The tension between Lion Dairy and Jetstar is to be resolved by the adoption of the approach in Jetstar. In a dismissal related to the person’s capacity, s.387(a) requires the Commission to consider and make findings as to whether, at the time of dismissal, the applicant suffered from the alleged incapacity. Such findings are to be based on the relevant medical and other evidence before the Commission.”
In the current matter, at the time of termination on 17 March 2022, the Applicant was not vaccinated, had not complied with the Public Health Direction, and was not able to be rostered or work remotely.
The Applicant, Ms Exeter-Grant, was unvaccinated at the time of her termination and remains so, per the absence of evidence to the contrary provided by her. Accordingly, in circumstances where the Employer was subject to the Public Health Direction, applicable at the time of the Applicant’s termination, the dismissal was for a valid reason.
The Applicant recognised 17 March 2022 as the date of termination. The lifting of the Public Health Direction four weeks’ later did not repudiate or invalidate the basis for the dismissal or the valid reason for it.”
In relation to s 387(b) and (c), the Commissioner found that Ms Exeter-Grant had been notified of and given opportunities to respond to the reasons for her dismissal relating to her non-compliance with a lawful and reasonable direction and her incapacity to perform her job.[13] The Commissioner found that the consideration in s 387(d) was not relevant as all exchanges had been in writing with Ms Exeter-Grant such that there was no refusal to provide a support person.[14] Further, the Commissioner determined that the consideration in s 387(e) did not arise as the dismissal was not performance related.[15] As to s 387(f) and (g), the Commissioner considered the process to be commensurate with the size and resources of the respondent and not procedurally deficient or unfair.[16]
With respect to s 387(h), the Commissioner regarded the following matters as being relevant:
(a) Ms Exeter-Grant regarded the respondent’s failure to review the termination to be harsh, unjust or unreasonable given the Public Health Direction lifted on the date which coincided with the end of her notice period. However, the Commissioner determined that Ms Exeter-Grant’s correspondence to the respondent dated 13 April 2022 did “not detract from the valid reason for the termination, in that the Applicant did not follow a lawful and reasonable direction.” This is because “the normal indicia of an active employment relationship were not met at the time the vaccination requirement was lifted. The Applicant was not working and could not work.”[17]
(b) Ms Exeter-Grant critiqued the performance of her representative, who was said to be unwell and did not adequately represent her interests at the hearing before the Commission. Further, Ms Exeter-Grant raised concerns about the manner in which she was cross-examined. The Commissioner rejected these matters noting that (a) Ms Exeter-Grant’s representative did not notify the Commission that his health concerns were compromising his capacity to participate in the hearing and nor was it said that Ms Exeter-Grant was prejudiced in any way, and (b) there was nothing irregular in the approach to cross-examination and in any event, Ms Exeter-Grant’s representative understood that he was able to intervene or object, or re-examine Ms Exeter Grant about the matters complained of.[18]
(c) Ms Exeter-Grant informed the Commission that she was dyslexic and was critical of the manner in which the Commission managed this information. The Commissioner noted that the Commission was not apprised of this information until the hearing, and Ms Exeter-Grant had not indicated a need for additional support beyond being represented. In any case, Ms Exeter-Grant engaged with the Commissioner about how this information was to be managed in the conduct of the hearing and there was nothing improper about such an exchange.[19]
The Commissioner concluded that the respondent had a valid reason for terminating Ms Exeter-Grant’s employment and it did so fairly. Accordingly, the Commissioner determined that the dismissal was not unfair and dismissed the application for an unfair dismissal remedy.[20]
Appeal grounds and submissions
Ms Exeter-Grant appeals the decision on two bases: first, that the Commissioner demonstrated bias towards her, and second, that the decision contains a number of factual inaccuracies. By way of her notice of appeal dated 7 December 2022, Ms Exeter-Grant sets out her grounds of appeal as follows:
1. The Commissioner demonstrated bias against Ms Exeter-Grant in the following respects:
(a)by calling Ms Exeter-Grant an “anti-vaxxer;”
(b)by advising Ms Exeter-Grant that she had no intention of taking the vaccination;
(c)by stating that all vaccination related cases in the Commission “lose;”
(d)by warning Ms Exeter-Grant against proceeding with her application;
(e)by “strongly suggesting” Ms Exeter-Grant take her job back;
(f)by shutting down Ms Exeter-Grant’s concerns regarding the vaccination;
(g)by granting permission to the respondent to be represented;
(h)by scolding Ms Exeter-Grant for not mentioning her dyslexia until the hearing; and
(i)allowing submissions from the respondent after the deadline, and requesting further submissions from the parties with respect to another decision in the Commission.
2. The decision contains factual inaccuracies in the following respects:
(a)at [4]-[18] of the decision, the Commissioner included the respondent’s submissions in the decision but ignored submissions made by Ms Exeter-Grant;
(b)at [5] of the decision, the Commissioner “said I was terminated on 17 March 2022. This is incorrect. I was given notice of termination on that date with the termination date being 14 April, 2022.”
(c)contrary to [4] of the decision, Ms Exeter-Grant did not decline to be vaccinated;
(d)at [11] of the decision, the Commissioner fails to mention that the respondent had not addressed Ms Exeter-Grant’s concerns regarding the vaccination;
(e)at [21] of the decision, the Commissioner states that Ms Exeter-Grant was “not willing” and able to perform work, which is untrue as Ms Exeter-Grant remained “willing;”
(f)at [5], [26]-[29] and [32] of the decision, the Commissioner states that the respondent conceded that at the date the dismissal took effect, the Public Health Direction no longer applied. But the Commissioner did not factor into the decision that Ms Exeter-Grant should have been placed back on the roster as she was still employed at the time the mandate was lifted.
With respect to the question of whether it is in the public interest to grant permission to appeal, Ms Exeter-Grant relied upon a written submission, filed with the Commission on 10 January 2023.[21] Ms Exeter-Grant contends that (a) the decision is inherently unfair, (b) the dismissal has had a financial and health related impact upon Ms Exeter-Grant and her family, (c) the Commissioner demonstrated bias against Ms Exeter-Grant, and (d) the decision contains incorrect and misleading information.
Ms Exeter-Grant also seeks to rely upon TGA data in the form of a freedom of information disclosure log in support of her contention that vaccines did not stop transmission of COVID-19.[22] To the extent that Ms Exeter-Grant seeks to rely upon this information as fresh evidence in this appeal proceeding,[23] we decline to accept it. The well-settled principles governing the discretion to admit new evidence or to consider further material do not satisfy us that the new evidence should be admitted.[24] Relevantly, we are not satisfied that the TGA data discloses any relevant material which bears upon the Commissioner’s finding that Ms Exeter-Grant failed to comply with a lawful and reasonable direction, such that there is a high degree of probability that admission of the TGA data would lead to a different decision.[25]
The respondent submits that permission to appeal ought not be granted and if it is, the appeal should be dismissed. In summary, the respondent contends that the grounds of appeal are incompetent as they do not demonstrate an arguable case of appealable error in the decision. It says that Ms Exeter-Grant is impermissibly seeking to reagitate arguments made at first instance. It refers the Commission to the decision of Jodi Mills v Village Roadshow Theme Parks Pty Ltd (Mills)[26] in support of its position that the Commissioner’s findings were consistent with other decisions of the Commission in relation to the directions issued by the respondent to its employees.
Principles on appeal
An appeal under s 604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision maker.[27] There is no right to appeal and an appeal may be made only with the permission of the Commission.
This appeal is one to which s 400 of the Act applies. Therefore, permission to appeal must not be granted unless the Commission considers it is in the public interest to do so (s 400(1)). Further, appeals on a question of fact can only be made on the ground that the decision involved a significant error of fact (s 400(2)).
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[28] The public interest is not satisfied simply by the identification of error, or a preference for a different result.[29] In GlaxoSmithKline Australia Pty Ltd v Makin[30] 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.”[31]
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 appealable error.[32] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
Consideration
The first ground of appeal
It is contended by appeal ground one that the Commissioner demonstrated bias against Ms Exeter-Grant. We note at the outset that while the notice of appeal sets out a series of examples that are said to support Ms Exeter-Grant’s contention, we have not been taken to aspects of the transcript of the proceedings before the Commissioner, or the decision, in which these allegations are said to be established. Our review of the materials before the Commission demonstrates the following.
Firstly, there is no evidence of the Commissioner calling Ms Exeter-Grant an “anti-vaxxer,” as contended.[33] On the contrary, it is apparent from the transcript that the only occasion the term “anti-vaxxer” was used in the proceedings was while Ms Exeter-Grant was being re-examined by her own representative. The following exchange occurred:[34]
Mr Smith: Are you what they’ve termed an anti-vaxxer?
Ms Exeter-Grant: No
Even had it been established that the Commissioner used that term to describe Ms Exeter-Grant, the submissions do not explain how the use of the term “anti-vaxxer,” in an application that turns on Ms Exeter-Grant’s dismissal for refusing to comply with a direction that she be vaccinated, gives rise to an allegation of bias against the Commissioner. Ms Exeter-Grant’s contention cannot succeed in these circumstances.
Second, the transcript does not demonstrate that the Commissioner said that Ms Exeter-Grant had no intention of being vaccinated. Rather, this was evidence given by the respondent’s Head of People and Culture, Ms Ann Maree O’Neill. In response to questions from Ms Exeter-Grant’s representative under cross-examination, Ms O’Neill said as follows:[35]
Mr Smith: Sorry, it's 492, paragraph (k)?
Ms O’Neill: YesMr Smith:“It appears to me that Ms Exeter‑Grant was unlikely to ever comply with the requirements of the public health direction.” On what basis was that your opinion?
Ms O’Neill:Following a number of letters that were sent to Ms Exeter‑Grant and we had no correspondence back from her indicating that she had intended to be vaccinated.
…
Mr Smith:So on what basis was the statement made that she was unlikely to ever comply?
Ms O’Neill:We had sent a number of letters to her asking her to indicate her intention with the vaccination and at no stage did she respond to us saying that she had intended to be vaccinated.
It is apparent from the exchange extracted above that the question of whether Ms Exeter-Grant intended to be vaccinated was put to Ms O’Neill by Ms Exeter-Grant’s representative in relation to an aspect of Ms O’Neill’s witness statement. Our review of the material does not identify that the proposition was raised by the Commissioner. Ms Exeter-Grant’s contention that the Commissioner demonstrated bias in this respect cannot therefore be made out.
Third, there is no record of the Commissioner (a) stating that all vaccination related cases in the Commission “lose,”[36] (b) warning Ms Exeter-Grant against proceeding with her application, (c) “strongly suggesting” Ms Exeter-Grant take her job back, or (d) by shutting down Ms Exeter-Grant’s concerns regarding the vaccination. To the extent that such statements were made during the course of confidential discussions between the Commissioner and the parties during a conciliation conference, there is no record of them. In any event such statements, even had they been made in conciliation, is insufficient to give rise to an allegation of bias. Moreover, we note that if Ms Exeter-Grant held a concern, there is no evidence of her making an application to the Commissioner that the Commissioner recuse herself from further dealing with her application.
Fourth, it is not apparent how bias against Ms Exeter Grant is demonstrated by the grant of permission to the respondent to be represented by a lawyer. Ms Exeter-Grant submits that she strongly objected to the respondent’s grant of legal representation and that the Commissioner “ignored” her submission.[37] However, the Commissioner’s decision to grant permission pursuant to s 596(2)(a) of the Act[38] is satisfactorily borne out having regard to the voluminous material filed by Ms Exeter-Grant below, in circumstances where Ms Exeter-Grant was also represented in the proceedings.[39]
Fifth, it is contended that the Commissioner “scolded” Ms Exeter-Grant “for not mentioning my dyslexia until the hearing but I had mentioned it in my original documentation to Fair Work.” However, a review of the material does not bear either of these matters out. The transcript discloses the following:
(a) It was established before the Commissioner that Ms Exeter-Grant’s dyslexia was not a matter that appeared in the originating application, notwithstanding Ms Exeter-Grant’s contention before us to the contrary. The application simply indicated that Ms Exeter-Grant sought a support person to attend with her.[40] Any subsequent advice by Ms Exeter-Grant as to her dyslexia was communicated directly to the conciliator and such correspondence was appropriately not before the Commissioner and the parties.
(b) The Commissioner did not scold Ms Exeter-Grant or her representative when Ms Exeter-Grant’s dyslexia was raised during the proceedings. Rather, the Commissioner correctly identified that it would be a matter for the respondent’s representative to take into account,[41] indicated that the agreed process for proceeding would be accommodated,[42] and confirmed that no criticism was being made as to the matter.[43] The Commissioner addressed her approach at [142]-[143] of the decision and no appealable error is disclosed.
Further, Ms Exeter-Grant contends that the Commissioner’s discussion of this matter with the respondent questioned Ms Exeter-Grant’s intellect.[44] The transcript reveals that Ms Exeter-Grant raised this particular concern during the proceedings in response to submissions made by the respondent’s representative to the Commissioner.[45] Ms Exeter-Grant repeated these concerns in her written closing submissions before the Commissioner.[46] The respondent’s representative acknowledged this matter and stated that “none of what I said before is to be taken as a sleight on Ms Exeter-Grant’s intelligence at all and I’m very sorry if that is how it came across. That is not my point. It is one of fairness.”[47] In these circumstances, we are satisfied that the Commissioner did not question Ms Exeter-Grant’s intellect and to the extent that Ms Exeter-Grant was concerned that the respondent’s representative did so, this was expressly addressed during the proceedings below. The contention made before us that the respondent’s submission is demonstrative of bias against Ms Exeter-Grant by the Commissioner cannot be sustained.
Sixth, we reject the contention that the Commissioner “allowed” the respondent to file submissions after the “cut off” date of 13 September 2022.[48] A review of the Commission’s file demonstrates the following:
(a) The respondent complied with the Commission’s directions dated 14 June 2022 by filing its submissions and evidentiary material by 21 July 2022. In fact, Ms Exeter-Grant did not comply with the direction to file reply material by 28 July 2022, instead filing the material on 1 August 2022.
(b) The respondent complied with the Commission’s directions dated 15 August 2022[49] to file closing submissions by 26 August 2022.
(c) The respondent complied with the Commission’s directions dated 17 October 2022 by filing supplementary submissions on 24 October 2022.
We understand from Ms Exeter-Grant’s submissions that she holds the view that the respondent’s 24 October 2022 submissions were filed beyond a 13 September 2022 compliance deadline. This is not correct. There was no 13 September 2022 deadline. In any case, as the circumstances described above demonstrate, both parties were invited pursuant to the 17 October 2022 directions to file supplementary submissions. Ms Exeter-Grant availed herself of this opportunity and filed submissions on 24 October 2022, and further reply submissions on 31 October 2022 as directed. There is no basis for any contention of bias.
Further, the contention that the Commissioner showed bias by allowing the respondent to file further submissions in relation to “another VRTP applicant’s case” demonstrates a misunderstanding by Ms Exeter-Grant in relation to a case management procedure adopted by the Commissioner. The Commissioner explained this approach in the decision,[50] observing that Ms Exeter-Grant’s application “shares common ground” with another recently determined application by employees of the respondent, in Mills. As the decision in Mills was issued following the conclusion of the 9 August 2022 hearing of Ms Exeter-Grant’s application, the Commissioner invited the parties to address Mills by way of supplementary submissions. Such an approach is entirely conventional as a matter of procedural fairness in circumstances where the applications raise similar contentions. Ms Exeter-Grant’s contention that this approach demonstrates bias against her is not made out.
It is apparent, having regard to our conclusions at [41]-[51], that the matters advanced by Ms Exeter-Grant in support of her allegation of bias by the Commissioner have not been established. In the absence of clear and direct evidence that supports Ms Exeter-Grant’s contention of bias,[51] appeal ground one cannot succeed and we dismiss it.
The second ground of appeal
Ms Exeter-Grant contends by appeal ground two that the decision contains a number of factual inaccuracies, which we now turn to consider.
We do not accept that paragraphs [4]-[18] of the decision omit Ms Exeter-Grant’s submissions as contended. Nor do we accept, having regard to the matters discussed at [49] and [50] above that the Commissioner had regard to material which was filed beyond a compliance deadline by the respondent.
Paragraphs [4]-[7] of the decision set out preliminary matters, the basis for the respondent’s objection to Ms Exeter-Grant’s application and initial matters that must be considered pursuant to s 396 of the Act. Paragraphs [8]-[10] establish Ms Exeter-Grant’s employment history and Ms Exeter-Grant’s submissions in respect of the decision in Mills. Paragraphs [11]-[12] summarise Ms Exeter-Grant’s termination letter, and [13]-[17] address Ms Exeter-Grant’s submissions as to the reason for the dismissal, concerns held with respect to the COVID-19 vaccination, and specific submissions regarding her performance, contract of employment and correspondence sent to the respondent about the potential effects of the vaccine. It follows that Ms Exeter-Grant’s contention that her submissions were “ignored” is plainly incorrect. It is not apparent from Ms Exeter-Grant’s material what aspects of her submissions she considers were omitted by the Commissioner.
Contrary to Ms Exeter-Grant’s position in the notice of appeal, paragraph [5] of the decision does not deal with the date Ms Exeter-Grant was dismissed. If Ms Exeter-Grant intended to identify error at paragraph [2] of the decision,[52] such contention is rejected. The paragraph refers to the date of dismissal, not the date Ms Exeter-Grant’s employment ceased (which the Commissioner plainly understood to be 14 April 2022 as demonstrated by [110] and [132] of the decision).
Contrary again to Ms Exeter-Grant’s position, paragraph [4] of the decision does not address the question of whether Ms Exeter-Grant declined to be vaccinated. Paragraph [4] sets out the respondent’s submissions in opposition to the application[53] and no error in the decision is disclosed.
It is contended that the Commissioner failed, at [11] of the decision, to mention that the respondent had not addressed Ms Exeter-Grant’s concerns regarding the vaccination. However, the Commissioner dealt with this issue at [103] of the decision, adopting the observations made in Owens v I-Med Radiology Ltd[54] that employers are not required to prove the safety or efficacy of COVID-19 vaccinations to employees. Further, Ms Exeter-Grant’s contention that the Commissioner erred by referring, at [11] of the decision, to a letter of termination as opposed to a notice of termination[55] is of no moment, each term capable of being used interchangeably. No error is disclosed in respect of these matters.
Ms Exeter-Grant contends that at [21] of the decision, the Commissioner concluded that she was “not willing” and able to perform work. However, [21] of the decision contains a summary of the respondent’s contentions[56] and does not reflect any statement, finding or conclusion of the Commissioner. As the Commissioner did not find at [21] that Ms Exeter-Grant was not willing and able to perform work, this contention cannot succeed.
It is contended that at [5], [26]-[29] and [32] of the decision, the respondent conceded that at the date the dismissal took effect, the Public Health Direction no longer applied. This is not accurate. Paragraph [5] of the decision deals with the question of permission to appear pursuant to s 596 of the Act; [26] of the decision summarises the respondent’s communications of 8 December 2021 and 20 January 2022, and notes a submission of the respondent; [27] of the decision sets out Ms Exeter-Grant’s response to the show cause letter, and [28], [29] and [32] of the decision summarises Ms Exeter-Grant’s submissions.
To the extent that Ms Exeter-Grant seeks to refer this Full Bench to paragraphs [5], [26]-[29] and [32] of her Appeal Book,[57] no error can be attributed to the Commissioner. This is because these are references to paragraphs [5], [26]-[29] and [32] of the respondent’s supplementary closing submissions, filed in accordance with the Commission’s directions of 17 October 2022. Ms Exeter-Grant’s dissatisfaction with aspects of the respondent’s supplementary closing submissions does not disclose error in the decision under appeal.
We understand that one of Ms Exeter-Grant’s “key points” is that she was still employed on 14 April 2022 “and therefore should not have been terminated after the mandates were lifted.”[58] Ms Exeter-Grant submits that the Commissioner’s conclusion otherwise was erroneous.[59] Accordingly, notwithstanding our position at [60] and [61] above, we turn now to address this issue.
It is a settled proposition that question of whether there was a valid reason for the dismissal for the purposes of s 387(a) of the Act on capacity grounds requires an assessment of the material available to an employer “at the time of dismissal,” and not an uncertain, indefinite or speculative time in the future.[60]
It is also accepted that relevant facts may not come to light until after the dismissal. In these cases, the approach taken by the Full Bench in Jetstar Airways Pty Ltd v Neeteson-Lemkes should be followed.[61] In that case the Full Bench determined that “…although the validity of a reason for dismissal may be determined by reference to facts discovered after the dismissal, those facts must have existed at the time of dismissal.”[62]
At Ms Exeter-Grant’s date of dismissal on 17 March 2023, the vaccine mandate had not lifted, and the lifting of the mandate was not a fact in existence at that time. The existence of the lifting of the vaccine mandate on 14 April 2022 is therefore not a relevant consideration to be taken into account when assessing whether a valid reason for dismissal existed on 17 March 2022.[63] Accordingly, no appealable error arises with respect to the Commissioner’s conclusion at [118]-[119] of the decision to this effect.
That is not to say that the lifting of the mandate on the day Ms Exeter-Grant’s dismissal took effect is irrelevant. It is a consideration that we regard to be pertinent in the assessment of s 387(h) of the Act. Section 387 does not require any greater or lesser weight to be assigned to paragraph (h). However, the weight attributed to this event is a matter for the Commissioner, in the exercise of her discretion.[64] We are satisfied, having regard to paragraphs [132]-[136] of the decision, that the Commissioner took this material question of fact into account in her assessment of the factor at s 387(h) of the Act. No appealable error arises in the exercise of the Commissioner’s discretion.
The balance of the matters raised by Ms Exeter-Grant in her submissions[65] either do not disclose appealable error in the decision or simply invite the Full Bench to reach a different conclusion than that reached by the Commissioner.[66] This is an appeal against a discretionary decision and to succeed it must be shown that in reaching the decision the Commissioner acted on a wrong principle; allowed extraneous or irrelevant matters to guide her; mistook the facts; failed to take into account a material consideration; or that, although the reasoning does not disclose error, upon the facts the result is unreasonable or plainly unjust.[67] The matters raised by Ms Exeter-Grant do not demonstrate any of these requirements and no appealable error is disclosed.
Conclusion
The failure by Ms Exeter-Grant to demonstrate appealable error leads us to conclude that it is not appropriate to grant permission to appeal either on public interest or discretionary grounds.
Having reached this conclusion, permission to appeal must be refused in accordance with s 400(1) of the Act.
Order and disposition
Permission to appeal is refused and the appeal is dismissed.
DEPUTY PRESIDENT
Hearing details:
Matter determined on the papers
Final written submissions:
28 February 2023, for the respondent
[1] [2022] FWC 2027
[2] Dated 7 December 2022
[3] Decision at [6]-[7]
[4] Decision at [8]-[27]
[5] Decision at [28]-[83]
[6] Decision at [95]
[7] Decision at [96]
[8] Decision at [103]
[9] Decision at [107]
[10] Decision at [109]
[11] Decision at [111]
[12] Decision at [116]-[117]
[13] Decision at [128]
[14] Decision at [129]
[15] Decision at [130]
[16] Decision at [131]
[17] Decision at [134]
[18] Decision at [139]-[141]
[19] Decision at [142]-[143]
[20] Decision at [144]-[146]
[21] Appellant submission as to why it is in the public interest to grant permission to appeal, filed 10 January 2023
[22] Appellant submission as to why it is in the public interest to grant permission to appeal, filed 10 January 2023 at [5]
[23] Fair Work Act 2009 (Cth) s 607(2)
[24] Zahar Levin v Douglas and Mann Pty Ltd T/A Histopath Diagnostic Specialists[2022] FWCFB 39 at [17] citing Akins v National Australia Bank [1994] 34 NSWLR 155 at 160
[25] Akins v National Australia Bank [1994] 34 NSWLR 155 at 160
[26] [2023] FWCFB 6; Jodi Mills v Village Roadshow Theme Parks Pty Ltd[2022] FWC 2297
[27] Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[28] O’Sullivan v Farrer and another (1989) 168 CLR 210 at [216]-[217] per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 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; (2011) 207 IR 177 at [44]-[46]
[29] 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]
[30] [2010] FWAFB 5343
[31] Ibid at [27]
[32] Wan v AIRC (2001) 116 FCR 481 at [30]
[33] Appellant submission as to why it is in the public interest to grant permission to appeal, filed 10 January 2023, at [1] and [3]
[34] Transcript at [472]
[35] Transcript at [599]-[601] and [606]
[36] Appellant submission as to why it is in the public interest to grant permission to appeal, filed 10 January 2023, at [4.20]
[37] Appellant submission as to why it is in the public interest to grant permission to appeal, filed 10 January 2023, at [4.2]
[38] Transcript at [11]
[39] Transcript at [3]
[40] Transcript at [51]-[61]
[41] Transcript at [39]
[42] Transcript at [49]
[43] Ibid
[44] Appellant submission as to why it is in the public interest to grant permission to appeal, filed 10 January 2023, at [3]
[45] Transcript at [65]-[71] and in particular [68]
[46] Applicant’s closing submissions dated 9 September 2022 at p.1
[47] Transcript at [77]
[48] Appellant submission as to why it is in the public interest to grant permission to appeal, filed 10 January 2023, at [4.3]
[49] Corrected from 12 August 2022
[50] Decision at [9]-[10], [97]-[99]
[51] SunZhan Qui v Minister for Immigration & Ethnic Affairs [1997] FCA 1488; Woolston v Uniting Church in Australia Property Trust (Q) (2015) FWC 5853 at [13]
[52] Appellant submission as to why it is in the public interest to grant permission to appeal, filed 10 January 2023, at [4.1]
[53] See further part 2.7 of the Appeal Book at [4]
[54] [2022] FWC 1823
[55] Appellant submission as to why it is in the public interest to grant permission to appeal, filed 10 January 2023, at [4.4]
[56] See further part 2.7 of the Appeal Book at [21]
[57] See part 2.7 of the Appeal Book at [5], [26]-[29] and [32]
[58] Notice of appeal 2.1 at p.25
[59] Appellant submission as to why it is in the public interest to grant permission to appeal, filed 10 January 2023, at [4.10], [4.17] and [4.19]
[60] Jetstar Airways Pty Ltd v Neeteson-Lemkes[2013] FWCFB 9075 at [55]; Uijland v Airservices Australia[2020] FWC 4809 at [235]
[61] CSL Ltd (t/as CSL Behring) v Papaioannou[2018] FWCFB 1005 at [50]
[62] Jetstar Airways Pty Ltd v Neeteson-Lemkes[2013] FWCFB 9075 at [55]
[63] See further Jodi Mills v Village Roadshow Theme Parks Pty Ltd[2023] FWCFB 6 at [25]
[64] Central Queensland Services Pty Ltd v Tara Odgers[2020] FWCFB 304 at [47]; Diaz, Guillermo (William) v Anzpac Services (Australia) Pty Limited[2016] FWCFB 7204 at [16]
[65] Which includes cross references to the Appeal Book
[66] Appellant submission as to why it is in the public interest to grant permission to appeal, filed 10 January 2023, at [4.5]-[4.9], [4.11]-[4.16], [4.18], [4.21]-[4.23]
[67] House v The King [1936] 55 CLR 499; 55 CLR 499
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