Mark Attard v Jetstar Airways Pty Limited
[2022] FWC 2267
•26 AUGUST 2022
[2022] FWC 2267
The attached document replaces the document previously issued with the above code on 25 August 2022.
Formatting changes.
Associate to Commissioner Spencer
Dated 26 August 2022
| [2022] FWC 2267 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mark Attard
v
Jetstar Airways Pty Limited
(U2022/1748)
| COMMISSIONER SPENCER | BRISBANE, 26 AUGUST 2022 |
Application for an unfair dismissal remedy – application to dismiss s.394 application pursuant to s.399A and s.587 – application to dismiss granted
INTRODUCTION
Mr Mark Attard (the Applicant/Employee) lodged an Application (the Substantive Application) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant alleged that the termination of his employment by Jetstar Airways Pty Limited (the Respondent/Employer) was harsh, unjust, and unreasonable. This decision deals with the Respondent’s Application to dismiss the Substantive Application (the Dismissal Application). The Respondent’s (Form 1) Application was made pursuant to s.399A(1)(b) (‘the Applicant has unreasonably failed to comply with a direction’) and s.587(1)(c) (‘the Application has no reasonable prospects of success’). The Respondent forwarded the Dismissal Application to the Applicant on 7 June 2022.
For the Substantive Application to be within the jurisdiction of the Commission to hear, s.396 of the Act requires confirmation of four matters. Firstly, the s.394 application was made within the 21-day period; secondly, the Applicant is a person protected from unfair dismissal; thirdly, the termination was not a genuine redundancy; and fourthly, the Respondent is not a small business employer and therefore the Small Business Fair Dismissal Code does not apply. These matters are satisfied.
Directions and a Hearing date had been set in relation to the Substantive Application. However, as will be detailed later, the setting of a series of amended Directions were required in relation to the Substantive Application.
Directions were later set in response to the Respondent’s Dismissal Application. The Parties, in accordance with those Directions, were required to provide a response (in addition to their submissions and evidence in response to the Dismissal Application) as to whether they sought a Hearing of the Dismissal Application, or a determination undertaken ‘on the papers’.
LEGISLATION
The Respondent applied to dismiss the Substantive Application under s.399A(1)(b) of the Act, which provides:
“399A Dismissing applications
(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:
(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or
(b) failed to comply with a direction or order of the FWC relating to the application; or
(c) failed to discontinue the application after a settlement agreement has been concluded.
Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.
Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).
(2) The FWC may exercise its power under subsection (1) on application by the employer.
(3) This section does not limit when the FWC may dismiss an application.”
(emphasis added)
The Respondent also relied on s.587(1)(c) of the Act to dismiss the Substantive Application, which provides:
“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
(emphasis added)
Section 397 of the Act provides:
“397 Matters involving contested facts
The FWC must conduct a conference or hold a hearing in relation to a matter arising under this Part if, and to the extent that, the matter involves facts the existence of which is in dispute.”
Section 399 of the Act provides:
“399 Hearings
(1) The FWC must not hold a hearing in relation to a matter arising under this Part unless the FWC considers it appropriate to do so, taking into account:
(a)the views of the parties to the matter; and
(b)whether a hearing would be the most effective and efficient way to resolve the matter.
(2) If the FWC holds a hearing in relation to a matter arising under this Part, it may decide not to hold the hearing in relation to parts of the matter.
(3) The FWC may decide at any time (including before, during or after conducting a conference in relation to a matter) to hold a hearing in relation to the matter.”
Section 593(1) of the Act provides:
“593 Hearings
(1) The FWC is not required to hold a hearing in performing functions or exercising powers, except as provided by this Act.
…”
BACKGROUND
The Applicant had been employed with the Respondent since 8 February 2008 as a pilot (OOL Wide Body First Officer). The termination of the Applicant’s employment took effect on 19 January 2022. The reason for the termination was that the Applicant did not comply with the Employer’s vaccination policy direction. The termination letter is reproduced in its entirety, with appropriate redactions, as follows:
“Dear Mark,
Termination of your employment
I refer to the letter to you dated 8 December 2021 (Letter), regarding a review of your employment arising from your non-compliance with the Qantas Group COVID-19 Vaccination Policy (Policy).
Background
As an employee of Jetstar Airways Pty Ltd (the Company), you are required to comply at all times with Qantas Group policies, procedures and manuals and with all lawful and reasonable directions issued to you.
On 20 September 2021, the Qantas Group finalised and published the Policy, which applies to all Australia-based employees.
The Qantas Group strongly believes that vaccination against COVID-19 is critical for its people, customers, ongoing operations and for aviation more broadly. In addition to COVID-19 vaccination regulatory requirements for airline workers, the Policy aims to provide the Group’s employees and customers with consistency of protection against COVID-19 in company premises and other environments required for work. It is a reasonable additional control for Qantas Group employees against exposure to COVID-19 and limiting transmission from our employees to others. Vaccination is our best possible protection against the adverse impacts of COVID-19, including the potentially serious health consequences, on operational continuity and our business, and disruptions to the essential service we provide.
Under the Policy, you were required to be fully vaccinated with an Approved COVID-19 Vaccine and provide Evidence of Vaccination via Workday by the compliance date applicable to you, being 6 December 2021 (Compliance Date).
The Policy constitutes a lawful and reasonable direction. You were notified of the Policy, and provided with a link to it, on 20 September 2021 via email. In addition, directions to meet the requirements of the Policy were communicated to you on a number of occasions, including when the Policy was introduced and by email reminders to your work email address from September 2021 onwards.
Notwithstanding those reminders, as at the date of this letter, we still have no record of you providing Evidence of Vaccination as required by the Policy. Therefore, according to our records, you have not complied with the requirements of the Policy.
Your failure to comply with the Policy also constitutes a serious breach of the Qantas Group Standards of Conduct Policy, including:
· clause 4.2(b), which requires employees to be aware of and comply with all Qantas Group policies;
· clause 5.2(b), which requires employees to comply with all applicable Qantas Group policies, procedures, guidelines and rules as amended from time to time; and
· clause 5.4(f), which requires employees to follow reasonable and lawful directions.
In addition to the above, as you are aware, you are covered by the COVID-19 Mandatory Vaccination (Workers) Directions issued by the Victoria Government which requires you to be vaccinated in order to attend work and perform your role. As you have not met these requirements, you have also been prevented from attending work since 19 October 2021.
Review of employment
In the Letter, you were advised that as you had failed to comply with the requirements in the Policy, you were considered to have not complied with a lawful and reasonable direction and may be subject to disciplinary action, which might be the termination of your employment.
You were invited to provide a written response as to why your employment should not be terminated.
I received numerous written responses from you on 13, 15 December 2021 and 4 January 2022 (Written Response).
On 5 January 2022, you attended a meeting with [redacted] and me (Response Meeting). You were offered the opportunity of bringing a support person to that meeting however you chose not to.
Considerations
The Company has taken all relevant matters into account including your responses.
As part of this process, I have considered:
· the time which has elapsed since the Policy was introduced which provided sufficient time for you to comply with the Policy;
· the overall purpose and scope of the Policy;
· the email reminders about compliance with the Policy sent to your work email address;
· your Written Response and the matters raised by you during the Response Meeting. In particular, I note the following:
oyou raised a number of concerns throughout your Written Response, specifically, disputing the lawfulness and reasonableness of the Policy as well as the efficacy and safety of the vaccines, all of which was reasonably addressed with you via my email dated 21 December 2021 and discussed during our Response Meeting;
oyou raised concern in your Written Response regarding consultation in the context of your Enterprise Agreement, specifically, I have not been consulted and offered an opportunity to accept or reject the said change. The Qantas Group has extensively consulted with its employees about the requirement that employees be vaccinated against COVID-19 and the risk assessment relating to that requirement, and the Company is satisfied it has complied with its consultation obligations in this regard. The Company is also satisfied the said consultation does not go against the terms of your Enterprise Agreement. Further, as requested by you, an updated copy of a Risk Assessment was made available to you on 13 December 2021.
oDuring the response meeting, when asked whether you intend to get fully vaccinated with one of the currently available vaccines (Pfizer, Moderna or AstraZeneca) and upload evidence of vaccination to the Workday system? You responded:
‘I don’t’
Following this comment, you advised (to the effect of) I did ask that when TGA provide approval of Novavax why I can’t take that vaccine? I have every intention of taking that vaccine. I note in your Written Response you also made this request: Is the Qantas Group willing to allow me to take other, more traditional injectable COVID-19 therapies, such as Novavax and/or Sinopharm? And if not, why not?
As at the date of this letter, the Novavax vaccine has not been approved by the Therapeutic Goods Administration (TGA) and is not available in Australia. It is not currently known if and when Novavax will be approved by the TGA and, if it is, when it will become available and who will have initial access to it.
In the Response Meeting you asked whether you could wait a ‘couple of extra months’ for your choice of COVID-19 vaccine to become available. The Company cannot operationally accommodate a request for leave at this time. As you would be aware, the Company has an increased need for resources in your workgroup, with the Company utilising all available resources and recruiting more staff.
In failing to provide Evidence of Vaccination by the Compliance Date, you have not complied with the requirements of the Policy and therefore have not complied with a lawful and reasonable direction. This also constitutes a serious breach of clauses 4.2(b), 5.2(b) and 5.4(f) of the Qantas Group Standards of Conduct Policy.
Further, as outlined above, since 19 October 2021 you have been prevented by the COVID-19 Mandatory Vaccination (Workers) Directions issued by the Victoria Government from attending work and performing your role because you have not met the relevant vaccination requirements. Those requirements still apply and continue to prevent you from attending work and performing your role.
Further, based on the information you have provided the Company, you are also prevented from performing your role in accordance with your contract of employment by the Air Services and Border Worker (Restrictions on Access Directions) (No 2) (WA Directions) because you have not demonstrated that you have met the vaccination requirements under the WA Directions (or that you are an exempt person under the WA Directions).
Further, based on the information you have provided the Company, you are now also prevented from performing your role in accordance with your contract of employment by the COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (QLD Direction) because you have not shown evidence that you have met the vaccination requirements under the QLD Direction (or that you have an exemption under the QLD Direction).
Outcome – termination of employment
After taking into account the above considerations, including your response, the Company has decided to terminate your employment effective from today. You will receive a payment in lieu of notice in accordance with the terms of any applicable enterprise agreement and/or your contract of employment, as well as payment for any accrued entitlements required to be paid on termination, up to and including today.
You are required to complete a company clearance procedure which includes:
· the return of all company property including electronic equipment such as a mobile phone or laptop, uniforms, Qantas ID card / ASIC cards, and any access cards and keys that may have been issued to you;
· clearing out any personal items from your locker and providing details of your locker number and locker key; and
· clearing out any personal items from your desk / workspace.
You should contact Regional Flying Manager [redacted] to finalise this clearance procedure. Once the clearance procedure has been completed, your final termination payment will be processed and paid into your account.
Details of your termination payments, including superannuation details, will be forwarded to you shortly.
Appeal
If you do not agree with this outcome, you may seek to appeal the decision in accordance with the Internal Appeal Procedure (a copy of which is enclosed with this letter). To make such an appeal, you must write to [redacted] outlining the grounds of your appeal as set out in section 3.1 of the Internal Appeal Procedure. Please note that this appeal must be sent within 7 days of you receiving this letter.
Employee Assistance Program
I understand that this may be a difficult time for you. I would again encourage you to access the confidential counselling service that is available to you, free of charge, through our EAP provider the contact number is [redacted]. This service is available for 3 months from today.
Confidentiality
Please also remember that this matter and the outcomes are confidential. You must not discuss it with any other employee (except someone who is acting as a support person for you).
Thank you for your cooperation during this matter. If you have any questions, please contact me on [redacted].
Yours sincerely,”
The Applicant sought reinstatement in his Form F2 Application for an unfair dismissal remedy. In summary terms, the Applicant set out that the reason for the termination of his employment, as conveyed to him, was that he did not get vaccinated prior to the cut-off date and that this was considered to be a serious breach of conduct. The Applicant conceded that he did not get vaccinated, but the reasons why the Applicant considered that the termination was unfair are summarised later.
In response to the Applicant’s F2, the Employer set out that the Applicant was dismissed because the Applicant:
a.failed to comply with the requirements of the Qantas Group COVID-19 Vaccination Policy;
b.as a corollary of (a), failed to follow a lawful and reasonable direction made by the Respondent to comply with the Policy; and
c.breached the Qantas Group Standards of Conduct Policy (SOC Policy).
The Applicant was originally self-represented at the initial directions conference for the Substantive Application. At a later stage, Mr Glenn Floyd appeared as his representative. Mr Floyd did not seek permission to appear pursuant to s.596 of the Act; rather, he nominated himself on his correspondence as a “Pro Bono Advocate and U.N. Observer/Reporter.” He did not represent the Applicant as a paid agent or legal representative and therefore did not require permission to be granted in accordance with s.596 of the Act. Mr Floyd was afforded the opportunity to represent the Applicant at all times.[1]
All correspondence, directions, and listings in this matter were sent directly to each of the Applicant, Mr Floyd, and the Respondent. The Applicant was present with Mr Floyd at all listed conferences (aside from where he was self-represented) and heard the explanations provided of what was required in response to the Directions. The Respondent was initially represented by Ms Jessica Farah, Head of Industrial Relations – Group Litigation, an employee of the Respondent.
The Respondent later sought permission for legal representation. Submissions in relation to s.596 were sought from the Respondent’s representative.
The Respondent submitted that permission to be legally represented should be granted under s.596(2)(a), in that the matter would be dealt with more efficiently given the likely contest of legal and factual questions, the cross-examination of witnesses (possibly remotely), the complexity of the manner in which the Applicant filed his s.394 material, and that the submissions would involve an analysis of case law in the emerging area of vaccine-related dismissals.
The Applicant and the Applicant’s representative were directed to respond as to whether they objected to the Respondent being legally represented. The Applicant’s representative advised that they did not object.
Permission for legal representation was granted pursuant to s.596(2)(a) on the basis that permission would “enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.” The Respondent was legally represented by Mr Nico Burmeister of Counsel, instructed by Ms Kathy Srdanovic of Ashurst Australia.
THE SECTION 399A APPLICATION
The Respondent made the Dismissal Application on the basis that the Applicant had unreasonably failed to comply with a series of the Commission’s Directions relating to the Substantive Application. The continued non-compliance required the resetting of the Directions and Hearing date. Accordingly, the Applicant’s Substantive Application could not progress to Hearing at the time the Respondent filed (and served on the Applicant and his representative) the Form F1 Application to dismiss.
The Respondent argued that since the time of the Applicant’s filing of the Substantive Application, the Applicant and his representative had failed to comply with at least seven of the Commission’s Directions to file responses.
The Respondent, in addressing the Applicant’s and his representative’s failures to comply with Directions of the Commission, prepared a procedural chronology of the interlocutory steps undertaken. This was presented at the Directions conference on 26 May 2022. The index to the documentation providing the steps taken by the Commission is set out as follows:
| No | Date | Document |
| 1 | 9 February 2022 | Applicant files Form F2 in Fair Work Commission (FWC). |
| 2 | 11 February 2022 | FWC lists matter for telephone conciliation at 10:15am on 16 March 2022 (initial conference before a conciliator). |
| 3 | 25 March 2022 | FWC sends Applicant a compilation of recent case law relating to vaccination mandate matters. FWC directs Applicant to submit a response by 12:00pm, Friday 1 April 2022 |
| 4 | 1 April 2022 | Deadline for Applicant to submit a response to compilation of vaccination case law. No compliance by Applicant. |
| 5 | 4 April 2022 | FWC notes that Applicant did not send response by 12:00pm, Friday 1 April 2022. FWC directs Applicant to urgently contact Commissioner Spencer’s Chambers. |
| 6 | 5 April 2022 | Applicant emails FWC asking to join U2022/1748 with other matters |
| 7 | 5 April 2022 | Applicant emails FWC asking to join U2022/1748 with other matters. Applicant attaches: • Outline of submissions for C2022/268, C2022/266 and C2022/265 • “Material Facts & Evidence” document. |
| 8 | 5 April 2022 | FWC emails Applicant to clarify that it cannot join U2022/1748 with other matters. FWC asks Applicant to contact Commissioner Spencer’s Chambers prior to 8 April 2022 regarding the progress of the Application. |
| 9 | 8 April 2022 | Deadline for Applicant to contact Commissioner Spencer’s Chambers. No compliance by Applicant. |
| 10 | 9 April 2022 | FWC emails Applicant noting Applicant’s response is unclear and asks Applicant to confirm whether Applicant intends to proceed with hearing by 2:00pm 10 April 2022. |
| 11 | 10 April 2022 | Applicant emails FWC confirming intention to proceed with hearing. Applicant’s email also includes lengthy “Material Facts” content. |
| 12 | 11 April 2022 | FWC emails Applicant: • Matter listed for Directions on 26 May 2022 |
| 13 | 11 April 2022 | FWC relists telephone conference to commence at 11:30am on 6 May 2022. FWC confirms delisting of conference on 26 May in lieu of 6 May conference. |
| 14 | 11 April 2022 | Applicant emails FWC confirming attendance for 6 May 2022 listing and confirms nature of Mr Floyd’s representation. |
| 15 | 11 April 2022 | Applicant emails FWC attaching: • Outline of submissions for C2022/268, C2022/266 and C2022/265 • “Material Facts & Evidence” document. |
| 16 | 12 April 2022 | FWC emails Applicant acknowledging receipt of emails. FWC confirms that directions and hearing dates have been set, parties should not rely on prior materials and parties are obliged to file submissions and evidence by due dates. |
| 17 | 12 April 2022 | Applicant emails FWC to state that Applicant intends to rely on “Material Facts & Evidence” document as submissions. Applicant attaches “Material Facts & Evidence” document. |
| 18 | 12 April 2022 | FWC emails Applicant acknowledging receipt of Applicant’s correspondence. FWC notes that no evidence addressing s 387 or 392 of the Fair Work Act 2009 (Cth) has been filed, as required by directions. FWC advises the Commissioner does not intend to engage in further correspondence with the Applicant. FWC will determine the matter in the regular course, and will only consider evidence and submissions in relation to Mr Attard. |
| 19 | 12 April 2022 | Applicant emails FWC maintaining that “Material Facts & Evidence” document contains Applicant’s submissions. Applicant attaches: • “Violet Liberatore Evidence of Covid Injection Medico Refusal” document; “Material Facts & Evidence” document; and “Applicant Mark Attard’s Concise Questions of Material Facts” document. |
| 20 | 13 April 2022 | Applicant emails FWC President Ross with apparent complaint about Commissioner Spencer’s Associate. |
| 21 | 13 April 2022 | Applicant emails FWC President Ross with further details of apparent complaint about Commissioner Spencer’s Associate. |
| 22 | 28 April 2022 | Deadline for Applicant to file witness statements and other documents. No compliance by Applicant. |
| 23 | 5 May 2022 | Applicant emails FWC (and numerous others) and states that the Applicant believes that it has filed all required materials. Applicant subsequently sends two further emails purporting to correct and amend initial email. • “Violet Liberatore Evidence of Covid Injection Medico Refusal” document; |
| 24 | 9 May 2022 | FWC issues revised directions: • Matter listed for Arbitration on 8 June 2022 |
| 25 | 11 May 2022 | Deadline for Applicant to confirm in writing the material he relies upon. No compliance by Applicant. |
| 26 | 12 May 2022 | Respondent emails FWC noting Applicant’s non-compliance and requesting that Applicant clarify their material as a matter of urgency. |
| 27 | 12 May 2022 | FWC notes Applicant’s non-compliance and seeks response from Applicant on material he intends to rely upon by 11:00am, 13 May 2022. |
| 28 | 12 May 2022 | Applicant emails FWC to state that conciliation should continue and that FWC should not issue s 368 certificate. Applicant asks FWC to state position on certain “material facts”. |
| 29 | 13 May 2022 | Deadline for Applicant to clarify the material he relies upon. No compliance by Applicant. |
| 30 | 13 May 2022 | FWC emails Applicant to state that a s.368 certificate is not available, but FWC can relist a conciliation on request. FWC notes that Applicant’s position is still not clear and requests clarification by 4:00pm, 16 May 2022. |
| 31 | 16 May 2022 | Deadline for Applicant to clarify the material he relies upon. No compliance by Applicant. |
| 32 | 18 May 2022 | FWC emails parties to note that Applicant has failed to comply with the amended directions. FWC advises that it intends to hold the directions in abeyance and to delist the hearing until the requisite material is received. FWC directs Applicant to file materials clarifying his case by 3:00pm, 23 May 2022. |
| 33 | 19 May 2022 | FWC directs Applicant to confirm receipt of emails delisting hearing by 4:00pm 24 May 2022. |
| 34 | 19 May 2022 | Applicant emails FWC attaching “Material Facts’ & Evidence Jetstar Applicants Mark Attard” document. |
| 35 | 23 May 2022 | FWC lists matter for directions conference on 26 May 2022 at 1:00pm |
| 36 | 25 May 2022 | Applicant emails FWC (and numerous others) and asks whether the Applicant can cross-examine witnesses at the directions conference on 26 May 2022. “Material Facts & Evidence Jetstar Applicants Mark Attard” document; |
As a result of the further Directions conference on 26 May 2022, further correspondence and Directions were sent to all parties:
“Dear Parties,
Further Directions
These Directions fully replace the previous Directions set in this matter. The hearing date set for 8 June 2022 has been delisted.
As a result of a conference held before the Commission this afternoon, the following further Directions, as discussed with the parties are set as follows:
The Applicant:
1.By 4:00pm Thursday, 2 June 2022, the Applicant will file the case they rely on in these proceedings. That is, any submissions and a statement of evidence of the Applicant and a statement of evidence of any other witness the Applicant may seek to rely on, are to be filed by the due date above.
For clarity, only the material filed by this date will be considered. No prior material will be taken into consideration. Accordingly, if any prior submissions have been made these will not be considered. Only the material filed by the date in response to these Directions would be considered for any proceeding.”
The Applicant was required to respond by filing material to appropriately present his case, in order that procedural fairness could also be provided to the Respondent to ensure they had knowledge of the Applicant’s case, to which they had to respond.
The Applicant initially set out on the Substantive Application that the dismissal was unfair because, in summary terms, he had always expressed to the Respondent that he intended to get vaccinated with the Novavax vaccine, which he stated became available the day after he was dismissed. Further, he submitted that the aircraft that he operated and the base he flew out of were still not operational at that time, as he was an international pilot.
The Applicant on his Application referred to severe reactions experienced within his family, due to the current available vaccines, so he had chosen to wait. In addition, he stated he had been a pilot with Jetstar for 15 years, and always excelled in his training and testing.
The Applicant stated on his Application that he had asked to take the Novavax vaccine, and that he had over nine months of leave owing, (which he stated he was not allowed to use), and that this would have provided a period for him to receive the Novavax and return to work. He stated that he considered that his role at the time of dismissal was still not being utilised, so he failed to see why the Employer would not allow him to wait. The Applicant stated he offered to take leave without pay. The Respondent responded to the Applicant on all these matters.
It must be noted that the Applicant, at the original Directions conference, advanced the reasons set out above on the Substantive Application. However, the reasons for unfair dismissal changed to an entirely separate argument when Mr Floyd commenced providing responses on the Applicant’s behalf. The Applicant was copied in on these responses of his representative at all times, and was therefore aware of the markedly different argument being advanced. It is noted that Mr Floyd conducted an argument whereby he proposed valid consent to an injection, in relation to the Australian Immunisation Handbook Guidelines, could not be provided where an employee’s employment was under threat of termination for failure to be vaccinated. No specific evidence linked to the Applicant’s case was provided until nearly four months later, after the initial Directions were set. During this period, there were some 36 exchanges of correspondence, predominantly based on seeking the Applicant and his representative to provide any evidence specifically relating to the Applicant’s case, and the submissions associated with that case. The aim of the interlocutory correspondence was to ensure fairness in order that the Applicant’s evidence and submissions were received, and to allow the Respondents to know the case they were required to answer, in bringing their evidence and submissions.
Further repeated Directions were required, as no evidence specifically connected to the Applicant was provided. The material filed did not refer to the matters that occurred between the Applicant and Respondent prior to termination, or as set out. In summary terms, Mr Floyd, on behalf of the Applicant, adopted a separate, common argument that he was advancing across a number of other Applications before the Fair Work Commission.[2]
Mr Floyd sought, in furtherance of the Applicant’s case, “a material determination of the facts” of a range of other cases that were predominantly General Protections Applications. Those matters were being pursued for persons unknown, and were not linked with any particulars to the current Applicant. Mr Floyd was conducting a similar argument for these other parties that was unrelated to the Applicant’s reasons for unfair dismissal. The “determination of the material facts” that the Applicant’s representative referred to was related to the Applicant’s representative’s argument, that an employee could not be validly injected under threat of the termination of employment.
THE SECTION 587 APPLICATION
The Respondent also applied to have the Substantive Application dismissed pursuant to s.587(1)(c) of the Act, being that the Substantive Application had no reasonable prospects of success.
In support of the Dismissal Application pursuant to s.587(1)(c), the Respondent submitted that the materials filed by the Applicant did not allow the Commission to be satisfied that the termination of the Applicant’s termination was harsh, unjust or unreasonable. The Directions sent to the parties included the legislative provisions to be addressed. The Respondent submitted that the Applicant had not filed evidence on the Applicant’s case that could be considered relevant to addressing any of the criteria for harshness in s.387 of the Act.
HEARING NOT REQUIRED
In determining whether to conduct a Hearing in the Dismissal Application, it is recognised that the Commission can only conduct a Hearing proceeding if considered appropriate to do so.[3]
The Commission may determine a matter ‘on the papers’ provided the matter does not involve ‘facts the existence of which are in dispute’.[4]
There were no disputed facts on this basis requiring a hearing. The Applicant set out that he presented for a vaccination on 1 June 2022, but stated that he was seeking the vaccination under threat of dismissal, and did not receive the vaccination. The material eventually filed by the Applicant’s representative was related to this conduct, occurring well after the termination, and was unrelated to the information or events conveyed between the parties prior to the dismissal. The Commission has already determined that the situation relevant to the determination of an unfair dismissal, in matters of incapacity, is the situation at the time of the dismissal, not the information as presented at some time after the termination or at the time of the hearing.[5]
The parties were directed to respond if they sought a Hearing. The Respondent confirmed that they did not require a Hearing, and that the matter could be determined on the papers. The Applicant’s representative had to be directed three times to respond on the issue. Finally, the Applicant’s representative confirmed that a Hearing was not required, on the condition that further material provided on 19 July 2022, well after the Directions, be accepted. The additional material filed by the Applicant repeated the material already filed relating to Mr Floyd’s argument on behalf of the Applicant. That is, that he and other persons had presented for vaccination, some months after the termination of employment date, and conveyed to the injector that he was presenting for the vaccination under threat of dismissal. On that basis, the injector did not provide the vaccination.
A response to this was sought from the Respondent. The Respondent stated that there was no further response to be provided on that material.
It was determined that this material duplicated the general material already provided on behalf of the Applicant. This material did not relate to the reasons set out on the F2, but related to conduct that occurred (in pursuit of Mr Floyd’s argument) some months after termination.
On the basis of there being no contested facts of the actual matters related to the Applicant’s application as at the time of termination, a Hearing was neither required nor held.
CONSIDERATION
Consideration of the s.399A Application
Power to dismiss application
On an Employer’s application to dismiss a s.394 application pursuant to section 399A, the Commission has discretion to dismiss such an application on the basis that there has been unreasonable non-compliance with the directions of the Commission.
The power to dismiss an application, as set out in the Explanatory Memorandum,[6] is to be used with caution, and only in circumstances where the pursuit of the claim is in an improper and unreasonable manner, or there is an unreasonable act or omission by the Applicant.
The Full Bench of the Commission, in the decision of Lockyear v Graeme Cox,[7] relevantly set out the process to be observed before the Commission can consider dismissing an application pursuant to s.399A. The decision provided the below summary of the relevant steps:
“In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:
1.An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application.
2.The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.
3.The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.
4.In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.
5.A conference or hearing may be required where there are facts in dispute and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.”[8]
The process undertaken in the present matter was commensurate with the process set out in Lockyear v Graeme Cox.[9] The Dismissal Application was lodged by the Respondent as a Form F1, and a copy was served on the Applicant. Directions were issued, allowing the Applicant an opportunity to respond to the Application. The Applicant was also advised that a failure to respond to the Directions would result in the Dismissal Application being determined on the material, in the absence of a response from him, and that this could include the Substantive Application being dismissed.
It is recognised that the power of the Commission to summarily dismiss an application should be exercised with caution. In Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station,[10] the Full Bench observed that:
“The Courts have long held that the power to dismiss a substantive application should only be exercised cautiously and sparingly; a fortiori where, as here, the appellant has sought orders for relief for his alleged unfair dismissal. This is so because it results in the complete extinguishment of an applicant’s right to have his/her application for relief orders under beneficial legislation, heard and determined according to law. In short, the application is dismissed before an applicant has had his/her ‘day in court’, or as the appellant pleaded, he just wanted his case heard.”[11]
In Aragon v Aegis Safety Pty Ltd T/A Techinspect,[12] the Applicant failed to comply with the directions on three separate occasions and was offered a further opportunity to provide submissions or reasons for the failure. In Kora v Cardno Staff Pty Ltd T/A Cardno,[13] the Applicant failed to comply with Directions and was unable to be contacted. In that decision, the Commission found that the s.394 application should be dismissed for the Applicant’s failure to prosecute, and further found that the materials provided by the Respondent indicated it had a defence to the claim by the Applicant. In the current matter, the Applicant failed to respond to seven directions, and the Respondent provided a defence to the claim set out in the Applicant’s F2.
The email exchanges have been repetitive in this current matter and, despite opportunities being provided, the Applicant failed to reasonably prosecute and respond to the proceedings in connection with the Substantive Application. The circumstances of non-compliance were with a series of the Commission’s Directions.
In Farag v Dental Corporation Pty Ltd,[14] the Commission found that the Applicant’s omission (unlike the current circumstances) was a singular event. It was noted that the Applicant had partially complied with the initial directions in respect to the extension of time issue, and the failure to comply with directions in respect of his reply material was neither wilful or indicative of a pattern of non-compliance or unreasonable conduct. The Commission accepted that the oversight arose out of the Applicant having initially placed his faith in his former representative, and that he turned his attention to securing fresh representation. Whilst the oversight led to vacating the hearing date, it was found that any delay was to the Applicant’s detriment and did not prejudice the Respondent given that it had already filed its material. The Commission thereby found the omission was not unreasonable, and to dismiss the application would be arbitrary, inappropriate and disproportionate.
In the current matter, all correspondence requiring the filing of relevant evidence and submissions connected to the facts and circumstances of the termination of his employment have been addressed to the Applicant as well as his representative. The Applicant has also, by direction of the Commission, attended the conferences to deal with the non-compliance by failing to provide the required material as directed. The Applicant was present for the Commission’s explanation of what was required.
In the decision of Carter v The Hanna Group Pty Ltd,[15] Deputy President Sams summarised the relevant principles to be considered in determining whether an application should be dismissed due to a party’s failure to attend proceedings. The decision is also applicable to a failure to comply with Directions. The following extract, as set out (dealing with similar provisions), summarised the earlier decisions of General Steel Industries Inc v Commissioner for Railways (NSW),[16] Kioa v West,[17] Australian Railways Union; Ex parte Public Transport Corporation,[18] and Grimshaw v Dunbar:[19]
“I glean from these judgements that the principles to be considered by Fair Work Australia (FWA) in circumstances where a defaulting party, whose application is being considered for peremptory dismissal as a result of a failure to attend proceedings may be summarised as follows:
(a) the defaulting party must be given an opportunity to explain the reasons why the Tribunal should not dismiss his/her claim for a failure to attend the proceedings;
(b) the reasons (if any are given) must be considered in the context of ensuring the proper administration of justice and fairness to both parties. In my view, this is particularly so in a s 394 unfair dismissal application, given the emphasis in the Act of ensuring ‘a fair go all round’ as referred to in s 381(2) of the Act. That section is expressed as follows:
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.
(c) the defaulting party should be made aware that an application to dismiss his/her substantive application is to be considered by the Tribunal;
(d) the defaulting party should be warned that a failure to attend the hearing of such an application, without a reasonable explanation, may result in the substantive application being dismissed; and
(e) the Tribunal should ensure that all reasonable steps are taken to give an absent party every opportunity to present themselves for hearing: See Grimshaw v Dunbar (1953) 1 All ER 350 at 355.”[20]
These matters were considered against the context of the current matter, and the clear Directions and explanations provided to the Applicant regarding material to be filed in the Substantive Application, and then regarding the Dismissal Application.
In considering the circumstances of the current Dismissal Application, the Respondent filed an Aide Memoire - Procedural Chronology (the chronology of events document as included earlier) for consideration at the final Directions conference, to demonstrate the attempts of the Commission to have the Applicant file evidence pertaining to his case, and to progress the matter to Hearing. The Respondent referred to this chronology in foreshadowing the filing of their Dismissal Application in relation to the alleged non-compliance circumstances. The Applicant’s representative did not object to this chronology of events document, but did state that they had provided documents indicating, for other employees and more recently the Applicant, refusal by medical practitioners to vaccinate people in circumstances where they had conveyed they were presenting for the vaccination under threat of dismissal.
Circumstances at the time of termination
The evidence finally provided by the Applicant was in his affidavit dated 1 June 2022, which related to conduct that occurred more than four months after the date of dismissal. In his affidavit, the Applicant stated that he had presented for vaccination but was refused such by the injector. The affidavit sets out:
“I mark Attard attach a certified true copy of my appointment made for Covid Injection at [redacted], where upon attendance and giving ‘Informed Consent’ acknowledging the serious risks of this covid injection, I then notified the Injecting Practitioner that I was attending for the Injection under a Draconian threat of sacking by my employer if I was not injected.”
The Applicant’s representative, Mr Floyd, argued that the vaccination was not given, on the basis that the Applicant was presenting for the vaccination under threat of dismissal, as conveyed by the Applicant. The introduction of this affidavit by the Applicant’s representative referred to the Applicant’s post-dismissal conduct. This evidence was unrelated to the reasons the Applicant provided to the Employer in not meeting the vaccination direction. The Applicant had not presented for the vaccination at any time prior to the termination of his employment. The only response that the Applicant made to the Directions, at a late stage, did not engage with the reasons he had set out for the termination on his F2. This was taken into account in not undertaking a Hearing in relation to the Dismissal Application.
There were no disputed facts between the parties, given the completely different case that the Applicant’s representative conducted. It was apparent that the Applicant may well have presented (at this much later time after dismissal) for the injection, and he stated that he had been refused such on the basis that he presents. This evidence, however, was not consistent with the Substantive Application, or relevant to the matters between the parties that led to the dismissal. The Applicant had not provided, prior to the termination, any reference to presenting for (and being denied) a vaccination, or having raised with the Employer any of the matters now pursued by the Applicant’s representative. These matters were not within the domain of the employer-employee exchanges at any time prior to the dismissal. Relevantly, in circumstances where the Applicant’s Substantive Application sought reinstatement, he remained unvaccinated.
The Applicant, and the Applicant’s representative, were repeatedly directed to provide evidence relevant to the circumstances at the time of dismissal, but chose not to. The Applicant and his representative were both copied into all correspondence, and both attended Directions conferences before the Commission. The Applicant operated as a pilot with commensurate skill, knowledge, and ability in terms of performing those duties. The Directions and requirements were clear and understandable to him, as were the instructions and explanations provided to him and his representative at the Directions conferences.
This matter was the subject of a series of conferences and correspondence, where it was explained to the Applicant and his representative that evidence supporting his particular case needed to be presented. The Applicant and his representative repeatedly failed to comply. The chronology document sets out the attempts to have the Applicant comply with the Directions. At least seven Directions for the filing of material were not met.
Consideration of the s.587 Application
In the alternative to s.399A, the Respondent relied on s.587(1)(c) in its Application to dismiss the Substantive Application. Therefore, it has been necessary to consider the reasons provided by the Applicant in his Substantive Application against the relevant case law. In addition, it is necessary to consider the arguments advanced by the Applicant’s representative on his behalf (with the Applicant’s consent) against the case law.[21]
At all times, the Employer in response to the Applicant’s reasons (on the F2, which were rejected in their F3) stated that at the time of the dismissal that his base was not operational and there was no work for him to do as an international pilot. The Respondent had stated that the uplift and associated rosters for returning to work had commenced and that interstate training had commenced for the return of the vaccinated pilots to duty.
The Applicant, with his representative, chose not to conduct his case on the basis included in his F2. He refused to file any evidence of submissions on these matters, despite a series of Directions. Instead, the Applicant and his representative later pursued a separate, general argument not raised on the F2 or previously between the parties prior to termination: that is, the vaccination policy was flawed, as an employee could not submit to receiving the vaccination in circumstances where he would lose their employment if they did not comply.
The Applicant’s representative, in responding to Directions, filed material referring to other Applicants’ General Protections cases that he was conducting. The Applicant, after being directed to provide material pertaining to his facts and circumstances at termination, did not raise any of these issues in progressing his case. The Respondent argued that they were being denied procedural fairness as they did not know the s.394 case they were being directed to respond to.
On 25 May 2022, the Applicant’s representative responded to a Direction for the provision of the Applicant’s submissions and evidence, with the following being an extract of his submissions. The redacted reference is to another matter before the Commission; no particulars of the Applicant’s case were included. Whilst it has been necessary to provide an extract of the argument advanced by Mr Floyd, the improper and offensive of his accusations are emphasised and give weight to the dismissal of the Application. This is particularly so, as this is the sole argument (and only related evidence of the Applicant) that has been provided in support of the Applicant’s Application:
“Pursuant to your email Sent: Monday, 23 May 2022 12:16 PM, we note in other hearings/conferences (e.g. Matter Number [redacted – a separate application before the Commission]) that testimony under sworn oath with cross-examination under perjury law is permitted; involve giving sworn evidence, and opportunity to challenge or cross-examine the other party’s evidence.
Consequently, please advise if this Case management conference (Directions) hearing, permits this time-honoured reliance to attain the ‘MATERIAL FACTS’ of the Draconian sackings executed by the respondent; and please advise if we may demand QANTAS-JetStar CEO’s Joyce and Evans appear to answer the Applicant’s questions under sworn oath related to their (we say), Unlawful, Unjust, Unreasonable , Harsh Draconian sackings.
The rubbish argument that Joyce-Evans had authority to appoint themselves unauthorised government surrogate drug-enforcers has now been flushed into the sewer where it belongs under The recent New Zealand High Court judgement which set aside the government Covid-19 Public Health Response (Specified Work Vaccinations) Order 2021 which (we say) is clear bribery-corrupted political decisions by the pharmaceutical Drug-Lords’ paying off their perceived Government/Corporate drug-pusher-pimps.
The honourable justice’s (JUDGMENT OF COOKE J) Order, flushed this odious ultra vires government act (FRAUD), down the sewer where it belongs, because it limits the right to be free to refuse medical treatment recognised by s 11 of the New Zealand Bill of Rights Act and because of its limitation on people’s right to remain employed, and it limits the right to manifest religious beliefs under s 15.This Judgment is enforceable in Australia as contained in Part 7 of the Trans-Tasman Proceedings Act 2010 (Cth).
To give a sense of perspective of the Applicant’s case and needs, the following is what the Applicant seeks in under oath sworn cross-examination testimony subject to perjury laws:
The following is the full outline of submissions, witness statements and other documentary material the applicant intends to rely on in support of the application in this matter; the submission consists of this email, the 9 February 2022 Unfair Dismissal Application made and the attached file titled ‘MATERIAL FACTS EVIDENCE JETSTAR APPLICANTS MARK ATTARD 12 APRIL 2022’; all of which have already been submitted.
This case is so SIMPLE!
AS UNCONTESTED FACT: As shown under in the email submission (under) Sent: Thursday, 19 May 2022 3:39 PM, there was provided DEMONSTRABLE FWC evidence that FOUR Independent Injecting Practitioners REFUSED to Inject various employees attending under threat of sacking for non-Injection, because it is against the law! (Attached filed titled ‘MATERIAL FACTS EVIDENCE JETSTAR APPLICANTS MARK ATTARD 12 APRIL 2022’ Pages 9, 10, 11, 12 refer).
The law POHIBITING Injecting Practitioners from Injecting ANY employees under any threat of Draconian sacking for non-Injection is the Federal Health Department Federal Immunisation Guidelines Criterion 2 where Injections MUST ONLY be voluntary, and in the absence of undue pressure, coercion or manipulation; such as an employer sacking threat for non-Injection which is DIRECT employer undue pressure, coercion or manipulation; to be injected. This law is founded upon settled High Court case law Breen v Williams 1996 where NOTHING (not even the High Court Full Bench justices) may interfere with the sacred Doctor-Patient Contract relationship.
There is only one fundamental Rule of Law tenet operating here; and that is nobody is above the law; including Joyce and Evans, who we say UNLAWFULLY issued employees a non-negotiable demand Directive to be covid-injected, with a (threat) penalty ‘condition’, of employment termination, if they are not covid-injected; get injected or get out! And this prevented the Injections!”[22]
(emphasis original)
This argument proposed by the Applicant’s representative was unrelated to the reasons set out by the Applicant in his Application. However, the arguments presented by the Applicant in his Application have been determined by the Commission in a range of matters, and have been found to be unsuccessful. References to those decisions have been made in relation to the s.587 considerations in this decision.
Vaccination policy
The failure to follow a vaccination policy has, in a number of decisions, been found to be a failure to follow a lawful and reasonable direction, and a valid reason for termination.
In this matter as cited by Mr Attard currently, he voiced concerns about the vaccination policy. The decision of Tween v Qantas[23] examined alleged consultation deficiencies with the Qantas vaccination policy, the same policy Mr Attard was subject to. This policy was concluded to be lawful and reasonable:
“[76] Measured against the elements of proper and meaningful consultation identified by the Full Bench in Mt Arthur Coal, I find that the consultation undertaken by Qantas between the announcement on 18 August 2021 and the finalisation of the Vaccination Policy on 20 September 2021, was sufficient to meet its obligations under work health and safety legislation and the consultation obligations of the applicable enterprise agreement.”[24]
Further, in Tween, reference was made to the applicable medical evidence and the context of the industry, similar to the circumstances of the Applicant’s employment. It was determined that the direction to be vaccinated in accordance with the policy was a reasonable direction:
“[103] The Vaccination Policy was one of many control measures applied by Qantas in response to the evolving challenges of the COVID-19 pandemic. It is somewhat self-evident that Qantas’ business had been devastated by COVID-19 in 2020 and 2021, and by the middle of 2021 it was making plans to ramp up its operation. The introduction of the Vaccination Policy was one significant step in the process of returning to flying.
[104] The uncontroverted and uncontroversial evidence of Dr Prasad included the following:
“The effectiveness of the vaccines vary in relation to the Delta and Omicron variants of the virus. Vaccination affords a high degree of protection against transmission hospitalisation and death from the Delta variant. The degree of effectiveness against transmission is generally lower with Omicron compared to Delta. As Omicron is a more transmissible variant than Delta, vaccination has a lesser effect on blocking transmission of the Omicron variant between persons, but vaccination still provides significant protection against hospitalisation and death from Omicron.
Vaccination against COVID-19 is the most effective and efficient control measure available to prevent the serious health consequences of the virus. Over the course of the Pandemic, unvaccinated adults, in comparison to vaccinated adults, have a higher risk of becoming infected with the virus, transmitting the virus and suffering serious health consequences, including death.In a fully susceptible (unvaccinated and uninfected) population, one person with Delta would, on average, infect five other people, while one person with Omicron could transmit the virus to about 20 others. In comparison, vaccinations reduce onward transmission by approximately 45 to 65% for the Delta strain. Definitive data is still awaited for the Omicron strain, but early data suggests that vaccination is less effective in preventing onward transmission of Omicron.
[37] Affidavit of Mark Attard dated 1 June 2022.
[38] Tween v Qantas [2022] FWC 1594.
[39] [2013] FWC 4032.
[40] [2013] FWC 4032 [14].
[41] On his Application, that he did not progress.
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