Mayne v Dhelkaya Health - [2024] FedCFamC2G 938

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mayne v Dhelkaya Health [2024] FedCFamC2G 938

File number(s): MLG 1867 of 2022

Judgment of: JUDGE MANSINI

Date of judgment: 23 September 2024

Catchwords: FAIR WORK – alleged contraventions of general protections provisions of the Fair Work Act 2009 (Cth) – circumstances of global COVID-19 pandemic and State Government-introduced public health directions and orders – where Applicant was a registered nurse in acute ward administering urgent care to patients of the Respondent – directed to produce evidence of COVID-19 vaccination or authorised medical exemption – not rostered and took leave pending compliance with direction – dismissed by reason of inability to perform inherent requirements of the role on capacity grounds – where not established that adverse action was taken for a prohibited reason – where not established that action was taken or threatened with intent to coerce – application is dismissed.

Legislation:
Fair Work Act 2009 (Cth) ss. 12, 340, 341, 342, 343, 360, 361, 539, 545, 793.

Occupational Health and Safety Act 2004 (Vic) ss. 20-23, 35

Public Health and Wellbeing Act 2008 (Vic)

Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2020-2024 cl.11, 99

COVID-19 Mandatory Vaccination (Specified Facilities) Order 2022 (No. 6)

Pandemic (Workplace) Order 2022

Pandemic COVID-19 Mandatory Vaccination (Specified Facilities) Order 2021 / 2022

Cases cited:
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

Cadbury Schweppes Pty Ltd v Australian Liquor Hospitality and Miscellaneous Workers’ Union & Anor [2000] FCA 1793

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243

Esso Australia Pty Ltd v The Australian Workers’ Union [2016] FCAFC 72

Schanka v Employment National (Administration) Pty Ltd [2000] FCA 202

Division: Division 2 General Federal Law

Number of paragraphs: 161

Date of hearing: 2 – 3 May 2024

Place: Melbourne

Solicitor for the Applicant: George Ryan Solicitor

Counsel for the Respondent: Mr Minucci

Solicitor for the Respondent: Minter Ellison
ORDERS

MLG 1867 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
BERNADETTE THERESE MAYNE

Applicant

AND:
DHELKAYA HEALTH

Respondent

ORDER MADE BY:

JUDGE MANSINI

DATE OF ORDER:

23 SEPTEMBER 2024

THE COURT ORDERS THAT:
1.The application is dismissed.
2.Costs be reserved.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

IN SUMMARY

[1]

THE CASE BEFORE THE COURT

[5]

Grounds of the application

[9]

Materials relied on

[11]

STAUTORY FRAMEWORK

[16]

General protections

[16]

THE EVIDENCE

[28]

Objections to evidence

[28]

Summary of the evidence

[43]

About the Respondent

[44]

Terms and conditions of the Applicant’s employment

[52]

The global COVID-19 pandemic

[57]

Applicant’s response to the Respondent’s initial pandemic response

[66]

Respondent’s mandatory vaccination direction

[68]

Applicant’s response to Respondent’s mandatory vaccination direction

[74]

Applicant’s dismissal from employment

[93]

Mr Colton’s evidence

[100]

Other matters

[101]

FIRST AND SECOND GROUNDS

[103]

The respective contentions

[103]

Consideration

[111]

The adverse action(s)

[111]

The workplace right(s)

[113]

The reasons

[115]

Resolution

[150]

THIRD GROUND - THE ALLEGED CONTRAVENTIONS OF SECTION 343 (COERCION)

[151]

The respective contentions

[151]

Was the Applicant subject of coercion?

[153]

Resolution

[159]

CONCLUSION

[160]

REASONS FOR JUDGMENT
Judge Mansini
IN SUMMARY

Ms Bernadette Therese Mayne (the Applicant) was employed by Dhelkaya Health (the Respondent) to work in a nursing role at Castlemaine Health for some 10 years until her employment came to an end by reason of her inability to fulfill the inherent requirements of her nursing role because she was not vaccinated against COVID-19 and unable to enter or remain on site at the workplace.
The Applicant contended that her dismissal was in contravention of the general protection provisions at Part 3-1 of the Fair Work Act 2009 (Cth) (Act). She also claimed to have suffered other instances of adverse action and coercion in the course of her employment and in relation to the Respondent’s approach to the global COVID-19 pandemic.
It was not contentious that the pandemic had a significant impact on the work environment of the Respondent’s facilities. The Respondent maintained that it had simply followed Victorian Government public health directives and orders and denied any contravention of the Act.
For the reasons that follow, none of the advanced causes of action were made out and the proceedings must be dismissed.
THE CASE BEFORE THE COURT
These proceedings were commenced by application filed on 12 August 2022.
On 28 November 2022, by consent of the parties, this case was ordered to be heard together with an application by a Mr Leonard Bernard Colton filed on 15 July 2022 in MLG1635/2022.
The Applicant subsequently elected to proceed by way of statement of claim, which was filed on 12 January 2023. Attempts to amend those pleadings were met with opposition by the Respondent on each occasion. For the reasons given on 24 October 2023, the Applicant’s pleadings of 12 January 2023 were struck out in their entirety and her legal representative was afforded 2 further opportunities to replead (heard on 12 December 2023 and 5 February 2024). Ultimately, on 5 February 2024, the case was ordered to proceed on the original claim (Form 2 filed on 12 August 2022) with 2 specific amendments to the alleged contraventions, in order to facilitate the progress of the proceedings as quickly, inexpensively and efficiently as possible.
The matter proceeded to final hearing over 2 days, on 2 and 3 May 2024. Both parties were legally represented. Pursuant to an earlier order and consent of the parties, the final hearing was convened concurrent with Mr Colton’s application. As the cases are factually distinct the reasons stand alone yet bear similarities to the extent of common issues of law and procedure.
Grounds of the application
The Applicant’s claim as ordered to proceed may be summarised in 3 parts, relevant to each class of contravention claimed:
(a)Adverse actions taken because the Applicant had, had exercised or proposed to exercise workplace rights – alleged contraventions of s.340(1)(a) (first ground);
(b)Adverse action taken to prevent the exercise of workplace rights by the Applicant – alleged contravention of s.340(1)(b) (second ground); and
(c)Coercion claims – alleged contraventions of s.343 (third ground).
The original application sought compensation for loss of wages in the amount of $44,000 plus unspecified general damages for the adverse impact of dismissal. The final filed submissions indicated reinstatement was also sought.
Materials relied on
Evidence and materials in this application and Mr Colton’s related application were received and taken to be filed in both proceedings. Accordingly, the parties filed a joint court book the contents of which was received in both proceedings subject to that which was opposed (addressed below) and a few amendments made by Mr Colton on transcript.
The Applicant and Mr Colton respectively gave oral evidence at the hearing. The other witnesses who had filed evidence for the Applicants were not required for cross examination and did not give evidence at hearing.
At the hearing, the Applicant sought leave to adduce oral evidence in chief from 6 further witnesses who were not otherwise required for cross examination by the Respondent, which was opposed by the Respondent where the Respondent was not on notice of the evidence that they proposed to give (and is addressed with other objections to evidence in the below).
Also at hearing, the Chief Exeuctive Officer (a Ms Sue Race), the Executive Director of People, Safety and Experience (a Ms Vicky Mellington) and the Executive Director, Clinical and Community (a Ms Dianne Senior) gave oral evidence for the Respondent.
The Respondent also prepared a chronology and an aide memoire to identify common documents annexed to the affidavits of Ms Race and Ms Mellington.
STAUTORY FRAMEWORK
General protections
Part 3-1 of the Act is titled “General Protections”.
Within it, “Division 3 – Workplace rights” includes provisions designed to protect certain workplace rights and industrial activities.
In relation to the first category of alleged contravention, the starting point is s.340 of the Act which relevant provides (and, at all relevant times, provided):
Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i)        has a workplace right; or
(ii)       has, or has not, exercised a workplace right; or
(iii)      proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
“Adverse action” is (and was) defined at s.342(1). Relevantly, adverse action is taken by an employer against an employee if the employer dismisses the employee or injures the employee in their employment or alters the position of the employee to the employee’s prejudice or discriminates between the employee and other employees of the employer: item 1 of s.342(1) of the Act.
Sub-section 342(2) goes on to clarify that the meaning of “adverse action” includes a threat of such action: s.342(2)(a). There are then exceptions for action authorised by or under any other law of the Commonwealth or a law of the State where prescribed by the Regulations (none of which is presently applicable): s.342(3).
“Workplace right” is defined at s.341, in 3 broad categories which relevantly provides (and provided) as follows:
Meaning of workplace right
(1) A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee—in relation to his or her employment.
In turn, “workplace law” is defined to include the Act and any other law of the Commonwealth, a State or Territory that regulates the relationships between employers and employees and “workplace instrument” is defined as an instrument that is made under or recognised by a workplace law that concerns the relationship between employers and employees: s.12 of the Act.
In relation to the third ground, s.343 of the Act provides (and provided) a prohibition on a person organising, taking or threatening to organise or take any action against another person with intent to coerce the other person or a third person to exercise or not exercise or propose to exercise or not exercise a workplace right.
Division 7 is titled “Ancillary Rules” and recognises that some adverse action may be taken for more than one reason. In order to be actionable under Part 3-1, it is sufficient that the relevant adverse action is taken for reasons that include a proscribed reason: s.360.
The statute also provides a rebuttable presumption concerning the proof of the reasons for which action was taken: s.361. That is – if, in an application in relation to a contravention of Part 3-1 of the Act, a person is accused of having taken action for a particular reason or with particular intent and if the taking of that action for that reason or with that intent would constitute a contravention of Part 3-1 then it is presumed that the conduct was engaged in for that reason, unless or until the person who engaged in it proves otherwise.
Sections 340 and 343 are civil remedy provisions. The Act confers jurisdiction upon this Court to hear applications for relief relating to contraventions of this section: s.539(2). That power extends to relief in the form of compensation as is sought here: s.545.
The liability of bodies corporate (in terms of the conduct and state of mind of a body corporate) is provided for at s.793 of the Act. That provision relevantly provides that any conduct engaged in on behalf of a body corporate by an officer, employee or agent of the body corporate, within the scope of their actual or apparent authority, is taken for the purposes of the Act and the procedural rules to have been engaged in by the body corporate.
THE EVIDENCE
Objections to evidence
Objections to evidence were made by the Respondent, outlined in a document handed up prior to trial as directed.
The primary objection was to a general category of evidence relating to the safety, effect, efficacy and/or effectiveness of any or all of the COVID-19 vaccines available and/or administered at any time in Australia on the basis that it is not relevant to a fact or issue in the proceedings. The objection related to: certain paragraphs of the affidavits of the Applicant and Mr Colton; the entire affidavits of Ms Fawcett, Dr Neil and the 2 affidavits of Ms Peers; to the extent they were relied on for the safety, efficacy and effectiveness of the vaccines, various paragraphs of the affidavits of Ms Mosier, Ms Sayer-Castle, Ms Zsunchke and Mr Bertoni; and, to the extent it were sought to be brought before the Court as evidence in the proceedings, a bundle of documents referred to in the joint court book as the “Applicants’ additional material” (a list of the documents comprising that bundle is at Annexure A to these reasons).
At hearing, the Respondent confirmed that: if the Applicant successfully proved that she had and had exercised a workplace right(s) for the purposes of the Act, then the Respondent conceded that the proven workplace right(s) were exercised on the basis that the Applicant had a genuine belief that the COVID-19 vaccine was unsafe for her to take.
A second objection was raised in relation to the affidavits of Dr Neil, Ms Fawcett and the 2 affidavits of Ms Peers, which were said to constitute inadmissible opinion evidence.
The evidence subject of these objections was extensive and need not be detailed exhaustively here. It included depositions of the Applicant, Mr Colton and others with nursing and medical qualifications, as to their concerns about the limited information known about the COVID-19 vaccines and about adverse side effects of the COVID-19 vaccine (with regard to their personal experiences). There was also a series of journal articles and other sources which included perspectives and research on adverse effects and limited effectiveness of the COVID-19 vaccine.
On behalf of the Applicant (and Mr Colton) it was submitted that the first category of objection affected about 90 to 95% of the evidence in the case and, were the objection upheld, would perhaps make a farce of the proceedings. The Applicant also maintained that the Respondent’s concession did not resolve the issue, and the evidence remained relevant for purposes of establishing that the Applicant was doing her job in raising her concerns. In addition that there was sufficient information made available to every person that was offered a vaccine (so that each person could give informed consent to take the vaccine) was a critical obligation on the Applicant to investigate in her roles as nurse and a health and safety representative (HSR).
Further, that the second category of objection affected about 80% of the evidence. Whilst the evidence subject of this second category of objection was not relied on as expert evidence but rather to establish the opinion of that individual witness, on behalf of the Applicant it was submitted that she was not just raising these concerns because she had a personal opinion.
There were some limited objections on the basis of hearsay. The Applicant properly accepted that those objections were accurately made.
Resolution
The Applicant pursues multiple instances of alleged contraventions of the Act (arising under ss.340 and/or s.343). The relevant limbs to be made out (in the Applicant’s case) and then disproved (in the Respondent’s case) are outlined in the statutory framework above.
It is perhaps understandable that both applicants are desirous to have findings made about the safety, effect, efficacy and/or effectiveness of the COVID-19 vaccines because the approach of public policy makers in these respects (and with which they fundamentally and strongly disagreed) underlies the series of events that lead to the cessation of their employment with the Respondent.
However, as the Respondent has accepted that the Applicant was genuine in her beliefs about the (un)safety, (in)efficacy and (in)effectiveness of the COVID-19 vaccines, the truth of her beliefs does not need to be proved in order for her to succeed in this case.
Accordingly, the evidence and bundle of documents subject of the primary objection is not received in the case.
Subject to the ruling on the primary objection as to relevance, the general objection to admissibility of expert opinion evidence was withdrawn on the grounds that those paragraphs were led purely for subjective opinion or the subjective state of mind of the particular individuals at a particular point in time.
The hearsay objections are upheld and the balance of the evidence is allowed and received.
Whilst some of the evidence subject of the relevance objections was not directly relevant to a ground of the claim as it were allowed to proceed, the balance of the evidence is allowed and received as relevant context to the matters in issue.
Summary of the evidence
Below is a summary of the evidence before the Court as relevant to the Applicant’s claims. Unless otherwise indicated, the following is not contentious and constitutes factual findings I have made.
About the Respondent
In or around March 2022, the entity that was formerly “Castlemaine Health” integrated with the Maldon Hospital and CHIRP Community Health to become the Respondent entity (known as “Dhelkaya”) (for ease of reference, the predecessor entity is also referred to as the Respondent in these reasons).
At the relevant times, the Respondent was a Victorian public health service which provided a range of services to its patients. Those services included: hospital services (such as urgent care and patient care), outpatient health services (such as podiatry, physiotherapy and nursing), outpatient non-clinical services (such as cleaning services), maternity services and aged care services.
There were 2 sections or areas of the Respondent’s operations: a residential aged care section and an acute ward (also referred to as an urgent care centre). It came to be accepted that a nurse employed at the hospital would mostly work in specific areas, but could be temporarily redeployed around the hospital - for example, in times of a staff shortage.

At the time of the hearing, the Respondent employed approximately 900 employees to work in its operations.
Ms Race was the Chief Executive Officer.
Ms Senior was the Executive Director, Clinical and Community with delegated responsibility on occasion in Ms Race’s absence.
Ms Mellington, as Executive Director of People, Safety and Experience, was responsible for all human resources, work health and safety and emergency management related matters across the organisation including employee experience, recruitment, termination, payroll and industrial relations. Workforce consultation was within Ms Mellington’s portfolio of responsibilities.
Mr Warren was the Nurse Unit Manager of the Applicant’s work area, the acute ward who had the authority to make decisions about the running of the unit and to communicate the decisions and policies of the hospital management to staff.
Terms and conditions of the Applicant’s employment
The Applicant is an experienced nurse who commenced employment with the predecessor to the Respondent as a registered nurse in or around October 2012.
A copy of the Applicant’s most recent contract of employment dated 28 February 2020 (absent the position description referenced therein) was in evidence before the Court.
At the relevant times, the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2020-2024 (Enterprise Agreement) covered and applied to the Applicant’s employment.
The Applicant principally performed duties in the Respondent’s acute ward and also in theatre. She described her role as very occasionally working in the residential aged care sector.
Since June 2018, the Applicant was appointed pursuant to the Occupational Health and Safety Act 2004 (Vic) (OHS Act) as a HSR for her work area. In that capacity, the Applicant completed annual training courses, attended regular work health and safety meetings chaired by the Respondent’s Chief Executive Officer and acted as the designated person to whom employees working in the acute ward could report any health and safety concerns.
The global COVID-19 pandemic
On 11 March 2020, the World Health Organisation declared COVID-19 as a pandemic.
On 28 June 2021, the Prime Minister and all Australian State and Territory Premiers or First Ministers agreed to mandate that all residential aged care workers must become vaccinated against COVID-19.
From around mid-2021, the Victorian Government through its Chief Health Officer made a series of public health directions and orders under the Public Health and Wellbeing Act 2008 (Vic) (PHW Act). Among regulation of other public and private matters, the Chief Health Officer directed and ordered restrictions on attendance at workplaces and mandatory vaccination of employees against COVID-19.
On and from 7 September 2021, the first iteration of public health (mandatory vaccination) directions commenced operation. Those directions applied to residential aged care facilities and required operators to inform workers who performed work at the operator’s work premises that the operator would be requesting them to provide certain evidence about their vaccination status by 17 September 2021. By that first iteration of mandatory vaccination directions, a permitted reason for not receiving a COVID-19 vaccine was if an “exception” applied to the worker (defined to mean that a contraindication applied to them) and the worker had provided the operator with evidence from a medical practitioner to certify that the exception applied to them.
By a subsequent iteration, all health workers were required to be fully vaccinated by a Victorian Government-imposed deadline of 15 October 2021 and employers were required to stop workers who were unvaccinated from coming onto their premises to perform work.
The mandatory vaccination requirements were effected by way of pandemic orders issued by the Minister for Health under the PHW Act and commenced operation on 15 December 2021. Relevant to these proceedings there was the:
(a)Pandemic COVID-19 Mandatory Vaccination (Specified Facilities) Order 2021 / 2022 (Specified Facilities Order); and
(b)Pandemic (Workplace) Order 2022 (Workplace Order).
Over the period late January to April 2022, there were a series of updates to the Specified Facilities Order and the Workplace Order.
All iterations of the Specified Facilities Order and the Workplace Order required the Respondent, as a public health service and operator of a specified facility, to take all reasonable steps to ensure that any worker who was not fully vaccinated against COVID-19 or was not an excepted person (as defined) did not enter or remain on the operator’s premises for the purposes of working. An “excepted person” was defined as a person that held an acceptable certification that the person was unable to receive a dose, or further dose, of any COVID-19 vaccine that was available in Australia due to either a medical contraindication or an acute medical illness. An “acceptable certification” was defined as being a current COVID-19 digital certificate issued by Services Australia and displayed through the Medicare app, Service Victoria app or equivalent smartphone wallet (or printed) or a current Immunisation History Statement displayed through the Medicare app. Failure to comply was an offence under the PHW Act and attracted a maximum penalty for a body corporate of between 300 and 600 penalty units.
The Respondent took the view that the mandatory vaccination directions which commenced on 7 September 2021 applied to all of its employees across both areas of the hospital’s operations. According to Ms Mellington, this was because the Respondent was predominantly an aged care facility and employees were required to work across all areas of the hospital. By her evidence, the Applicant disputed that she could be or was, in practice, required to work outside the acute ward. In cross examination, the Applicant accepted that the Chief Health Officer’s orders imposed a number of obligations on the Respondent to do certain things. She also confirmed her understanding that the Chief Health Officer’s orders required health workers to be fully vaccinated by a Government-imposed deadline of 15 October 2021 and required the Respondent to stop workers who were unvaccinated from coming onto their premises to perform work.
Applicant’s response to the Respondent’s initial pandemic response
There was some evidence before the Court which related to the Applicant’s claims to have concerns and to have asked about the safety and effectiveness of directions to wear face masks and to take a COVID-19 vaccine and about the Government’s COVID-19 pandemic response and to the dismissive, hostile and threatening responses she alleged to have received. Further, that she was directed not to discuss the matters with patients or with colleagues at the nurses’ station and not to distribute materials questioning the vaccines or the Government’s approach. The Applicant did not elaborate on this particular evidence by reference to contemporaneous records, actual (or approximate) dates or the names of individuals allegedly involved or concerned in the claimed instances or incidents.
For her part, Ms Mellington broadly denied any contravention in these respects and expressly denied any recollection of directions about distribution of written materials questioning the Government’s approach but was also not in a position to answer such ungeneralised and unparticularised claims in evidence. Ms Mellington also deposed that the Respondent had engaged in the nature and scope of consultation about COVID-19 vaccination, vaccine related directions and other COVID-19 related matters arising from Government directions and orders against the context of those Government directions and orders having the force of law and requiring the Respondent to take all reasonable steps to ensure that any worker who was not fully vaccinated or validly exempt did not enter or remain on the Respondent’s premises for the purposes of working. Her evidence was that there was no utility in the Respondent engaging in any further, different or more extensive consultation processes. She also denied any decision to shape or limit the scope of the consultation that did occur and denied any decision made for reasons that included staff expression of views about the safety and effectiveness of the COVID-19 vaccines, prevention or limitation of the expression of such views or exercise of workplace rights connected with workplace health and safety or at all. Ms Mellington maintained that the Victorian Government’s position meant there could not possibly have been any material change made to any vaccination requirements arising from a view expressed by a staff member and – therefore, whilst it remained open at all times for staff to raise and discuss issues and concerns, there was no utility in engaging in further consultation than that which occurred.
Respondent’s mandatory vaccination direction
On 25 August 2021, the Chief Executive Officer of the Respondent (Ms Race) sent an email to all employees in the following terms:
Dear staff,
At the National Cabinet meeting on 28 June 2021, the Prime Minister and all Australian state and territory first ministers agreed to mandate that at all residential aged care workers receive at least the first dose of a COVID-19 vaccine by mid-September 2021. This decision was based on advice from medical experts, the Australian Health Protection Principal Committee.
Castlemaine Health’s operations are based on a single site and we are a large aged care provider. This means all areas of our operations and all staff working on it are considered high risk for COVID-19. That is why from Thursday, 16 September all Castlemaine Health staff must receive at least the first does of the COVID-19 vaccine. From that date, COVID-19 vaccination will be a mandatory condition of working at Castlemaine Health. If you have not had and/or evidenced your first dose by 16 September you will not be rostered to work and must be suspended from duty. All new staff employed after 16 September must provide evidence of vaccination as part of pre-employment checks.
[…]
Exemptions
Exemptions to a mandatory vaccination will only be considered on medical grounds and must be in line with the Australian Technical Advisory Group on Immunisation’s (ATAGI) clinical guidance on COVID-19 vaccine in Australia in 2021. Medical practitioners will notify the Australian Immunisation Register (AIR) of a person with a vaccine exemption due to a medical contraindications or natural immunity. The exemption is then displayed on an Immunisation History Statement available from MyGov-Medicare.
If you choose to seek a medical exemption via this route and can provide your Immunisation History Statement as evidence, you may choose to use your own annual leave, long service leave or leave without pay. All exemptions will be considered on a case-by-case basis and you may be able to be redeployed.
More information
Our COVID-19 Staff Vaccination Policy is available on PROMPT or please aske your manager for a copy. If you would like to discuss concerns about vaccination, please email [...] to be put in touch with Dr Peter Sloan, our Director of Medical Services.
The demographics of this latest COVID-19 outbreak are continuing to change
(sic.)
(underlining indicates hyperlinked text)
Simultaneous to the 25 August 2021 communications the Respondent rolled out a “COVID-19 Staff Vaccination Policy" which, according to Ms Mellington’s evidence, provided that all employees must be vaccinated or provide a valid medical exemption. Her evidence was that the policy was updated from time to time in line with the Government’s orders. A copy of the policy as at 2 February 2022 was produced to the Court.
On 27 August 2021, there was an update from Ms Race to all employees which reiterated that there was a deadline for staff vaccinations of 16 September (2021) and in which she “strongly urged” everyone who had not already done so “to get vaccinated now”.
On 8 September 2021, Ms Race sent an email to all employees which reiterated that any staff who had not had and/or evidenced their first dose of the COVID-19 vaccination by 16 September would not be rostered to work and would be suspended from duty. By that email, Ms Race also said the following:
I urge you to make an appointment to meet with a staff member from Human Resources and your Manager to discuss what options may be available to you. Please note we are expecting the Victorian Public Health orders to be announced on Friday which will provide further direction to Castlemaine Health.
If you are undecided/concerned or unwilling to be vaccinated, please ensure you do one of the following as a priority, and by the deadline noted:
•Unsure re vaccinations – please email […] to be put in touch with Dr Peter Sloan, our Director of Medical Services to discuss your concerns by Tuesday 14^th September.
•Seeking a medical exemption – please email […] to advise status of this. Medical practitioners will notify the Australian Immunisation Register (AIR) of a person with a medical exemption due to medical contraindications. The exemption is then displayed on an Immunisation History Statement available from MyGov-Medicare. Please provide Susan Wyatt with a copy of this asap and prior to 16^th September 2021
•Decided not to vaccinate for personal reasons – if you haven’t yet communicated your decision not to be vaccinated with your Manager or Infection Control, please make contact as a priority and prior to 16^th September 2021 to enable any necessary roster arrangements to be made. Again I urge you to make an appointment with HR as soon as possible to discuss any options that may be available to you.
Respect for choice
Castlemaine Health strongly encourages all staff to access a priority appointment at our onsite COVID-19 Vaccination Clinic by emailing […] without delay, or attend another vaccination hub. That said, we take seriously our responsibility to provide a workplace free from harassment, bullying and victimisation. We are committed to providing a work environment free from these behaviours. It is a staff member’s right to be treated with dignity and respect and it is also a staff member’s responsibility to treat others the same way.
We are aware that many staff members have strong opinions on the topic of COVID-19 and vaccinations, and we want to ensure that people aren’t confronted by the personal ideologies of others, or treated in ways that would be deemed ‘below the line’ because of their own values and choices.
Please be reminded that Castlemaine Health’s Above and Below the Line Behaviours and the Harassment and Bullying policy (available on prompt) must be adhered to in dealings with colleagues at all times. If you would like to discuss any concerns you have in this regard, please reach out to your Manager in the first instance, and/or to the Human Resources Department.
Regards Sue
(sic.)
(emphasis per original)
On 13 January 2022, the Respondent’s Chief Executive Clinical and Aged Care Services (Ms Senior) sent an email to all employees which stated:
On the 10^th of January, 2022, a new Pandemic Order was made requiring Victorian health care workers to receive a COVID-19 Booster dose. Booster doses are of particular importance when considering the emergence of variants of concern such as the Omicron variant.
This requirement for a booster dose follows the previous direction that healthcare workers were required to be vaccinated by a certain date or provide an authorised medical exemption.
There are slightly different dates for people according to where they work and when they had their 2^nd dose last year.
Category 1: Everyone who had their second dose of COVID-19 Vaccine on, or prior to, the 12^th September 2021 is required to have a booster by 12^th February 2022 regardless of where you work.
Category 2: Aged care staff who had their 2^nd dose AFTER the 12^th September are required to have a booster by the 1^st March 2022
Category 3: Hospital/Community staff who had their 2^nd dose on the 13^th September 2021 or later will be required to have a booster by the 29^th March.
There are many who have already been wonderfully proactive and have received, or arranged appointments to get their boosters, for those that haven’t please arrange a time in our vaccination clinic, local pharmacy or your GP. Once you have had your booster please forward a copy of your new digital certificate to infection control as this will have the date registered on it.
(sic.)
The Respondent also included updates in relation to the vaccine requirements in weekly newsletters sent to all employees, a bundle of examples of which were in evidence. Ms Mellington’s evidence was that she and her team prepared and sent out a number of those email “blasts” and weekly newsletters.
Applicant’s response to Respondent’s mandatory vaccination direction
The Applicant gave evidence that she had received the various communications of the Respondent containing mandatory vaccination directives and indeed was bombarded with communications from around 27 August 2021.
On 3 September 2021, the Applicant said that she sent an email to Ms Race. Annexed to her evidence was a letter dated 3 September 2021 which, on its face, was in response to the 25 August 2021 letter. By that correspondence, among other things, the Applicant:
·Requested confirmation that none of the Respondent’s staff could be forced to disclose their vaccination status, that the Respondent would not be making inquiries or carrying out searches of medical records without employee consent;
·With regard to what she described as the paramount principle of health care being free choice of whether to undergo a medical treatment or take a medicine, queried how the Respondent could advise staff to become vaccinated while threatening them they would lose their jobs if they did not do so; and
·With regard to what she described as her understanding that the Enterprise Agreement required the Respondent to engage in consultation before any significant change is made to the Applicant in her employment, queried why the letter did not refer to those rights or say there would be no change in her employment until the consultation process had been completed.
On 8 and 9 September 2021, the Applicant had an exchange of email communications with her Nurse Unit Manager (Mr Warren) and Ms Mellington. By those communications, the Applicant conveyed that she had not taken a first dose of an approved COVID-19 vaccine.
On 14 September 2021, the Applicant attended a meeting with Ms Mellington, Mr Warren and Graduate Nurse in the Nurse Unit of Mr Warren (Ms Mosier). The meeting resulted from the email exchange of 8 and 9 September 2021 and was to discuss “where to from here” in relation to choosing to remain unvaccinated. The Applicant gave evidence that, during the meeting, she raised with Ms Mellington the need for consultation and that the response from Ms Mellington was to the effect that “it doesn’t count in this situation”; whereas Ms Mellington did not recall anything of that kind being raised. The Applicant also gave evidence of her clear impression arising from that meeting that there was nothing they could say to alter the Respondent’s decision that all nurses had to get vaccinated to continue working. The Applicant accepted that she got up and walked out of the meeting before it concluded, probably about half a minute before it concluded, first telling the Court that she was ready to go home and then corrected this that she meant to say that she needed to clock off. The Applicant rejected Ms Mellington’s account that she had raised her voice, rolled her eyes and behaved in an agitated and poor manner during that meeting as “subjective”.
On 15 September 2021, the Applicant sent an email to Mr Warren which attached a medical certificate of a Dr Mark Hobart which stated:
THIS IS TO CERTIFY THAT
Ms Bernadette Mayne has a medical condition and in my opinion should not have the Covid 19 vaccine.

On 16 September 2021, Ms Race sent an email attaching a letter in response to the Applicant. That letter was prepared by a Ms Bish under the supervision of Ms Mellington. It included the observation that the Applicant’s medical certificate did not evidence contraindications consistent with the ATAGI clinical guidance on the administration of the COVID-19 vaccines in Australia and did not constitute evidence of an exemption notified on the Australian Immunisation Register and displayed on the Immunisation History Statement available from MyGov-Medicare. The Applicant was requested to supply the identified evidence and informed that, should she not be able to do so, there were available options including that the Applicant could elect: to take paid leave accruals such as annual leave, long service leave and accrued days off where available; to request a period of unpaid leave; and to be considered for priority redeployment. The letter again invited an appointment with the Director of Medical Services, Dr Sloan, to discuss the Applicant’s individual circumstances or any concerns she had in relation to the vaccination and stated that the Applicant’s choice to decline to be vaccinated would be respected - but the then current directions would mean she was prevented from working onsite from 17 September 2021. For her part, the Applicant told the Court of her understanding that a medical certificate does not require explanation ever, and that she did not agree that the Respondent had a right to ask her for further evidence of a medical exemption.
On 22 September 2021, the Applicant sent an email to Ms Mellington by which she requested to take accrued annual leave at half pay which she explained was to allow her some more time to figure out her next step. That same day, Ms Mellington responded to the Applicant’s request to say that she would certainly be able to use her accrued annual leave. Ms Mellington also explained that the system did not allow half pay but proposed a work around whereby Ms Mayne could have half the time entered as leave without pay which would achieve the same result.
Also on 22 and 23 September 2021, the Applicant and Ms Mellington exchanged emails which contained inquiries of the Applicant about long service leave and the response that she would be eligible for 15 weeks’ long service leave as of 20 October 2021. They also had an exchange about a carers’ leave request for 2 days in the previous week. Ultimately, the Applicant confirmed that, until she knew what was happening in her life, she would use her annual leave at half pay.
On 7 October 2021, the Applicant sent an email to Mr Warren and attached a medical certificate which certified that she had a medical condition and would be unfit for work from 5 October to 2 November 2021 inclusive. By her cover email, the Applicant said that she was not sure how much sick leave she had remaining but was going to use it and asked to be put down for sick leave instead of annual leave in the system.
On 12 October 2021, Ms Mellington sent an email to the Applicant in response to her 7 October 2021 request to take personal leave. Ms Mellington advised that, because the Applicant’s vaccination status meant that she was not lawfully able to attend work, she was not entitled to use personal leave and was not entitled to be paid for her absence unless she chose to utilise annual leave or long service leave.
On 13 October 2021, the Applicant replied to say that she had discussed with her doctor who had agreed that because of the Respondent’s actions she was unable to work and that the Respondent had caused her much stress therefore sick leave was hers to use. The Applicant asked to be shown where it said that she was not allowed to use her sick leave in these circumstances.
On 14 October 2021, Ms Mellington recalled that, during a work health and safety meeting, the Applicant resigned her role as HSR. In cross examination the Applicant did not agree and did not recall doing so - qualifying that she may have blocked it out of her mind but did not think she would have done this because she was not at the hospital at the time.
On 15 October 2021, Ms Mellington sent an email to the Applicant in response to her 13 October 2021 email correspondence. Ms Mellington reiterated the contents of her email of 12 October 2021 and added that if the Applicant did not wish to use her annual leave or long service leave, then she would not be paid for her absence. Ms Mellington’s evidence was that no response was received to that email.
From 15 October 2021, the Applicant took annual leave at half pay (one week of paid leave, one week of unpaid leave in each pay cycle).
On 20 December 2021, Ms Race sent a letter to the Applicant about her failure to provide evidence of a COVID-19 vaccine or a medical exemption. That letter was prepared by Ms Mellington’s team for Ms Race’s review and approval. By that letter, Ms Race outlined a summary of communications between the Respondent and the Applicant about the matter. The letter acknowledged that the Applicant was (then) utilising her annual leave at half pay and was not required to attend the Respondent’s premises until she had utilised all of her remaining 241 hours of annual leave. Ms Race requested the Applicant to confirm her intentions, in writing by no later than 13 March 2022 (specifically that she was not planning to be vaccinated, fully vaccinated, will be fully vaccinated by end of leave period or an excepted person). The Applicant was also asked to provide evidence of her vaccination status by 13 March 2022. The letter also included the following:
Please note that if you are not fully vaccinated, or an excepted person, or haven’t provided [Castlemaine Health] with evidence of being fully vaccinated or being an excepted person by 4 April 2022, [Castlemaine Health] will have concerns about your capacity to perform the inherent requirements of your role (which requires you to enter and remain on, [Castlemaine Health] premises).
This information can be provided by email to [Ms Mellington’s email]. Please be advised that in the absence of receiving any updates from you, we will assume your status remains unchanged.
If you are not fully vaccinated by the 4 April 2022 or an excepted person, you will be stood aside without pay and [Castlemaine Health] will consider possible termination of your employment for capacity reasons due to you being unable to perform the inherent requirements of your position. In such circumstance’s [Castlemaine Health] will issue you with a show cause letter, providing you with an opportunity to respond to the concerns in relation to your capacity.
[…]
On 10 February 2022, the Applicant attended a meeting with Dr Sloan, Ms Mellington and Ms Mosier. In cross examination, the Applicant’s evidence was that she attended “actually” as a support person for Ms Mosier as distinct from in relation to her own personal circumstances. The meeting was convened outdoors, in a park near to the Respondent’s premises which the Applicant described as “demeaning”. The Applicant’s evidence was also that Dr Sloan was unwilling to discuss any of the concerns or risks associated with the vaccines that were put to him and made clear that there was no room to query or debate the usefulness and safety of the vaccinees that the hospital was administering.
On 13 March 2022, the Applicant sent a letter addressed to Ms Race. By that letter, the Applicant (in summary):
(a)Stated that it was correct that she was not prepared to receive one of the available COVID-19 vaccines when she met with Ms Mellington and Mr Warren on 14 September 2021;
(b)Stated that she had raised concerns at the 14 September 2021 meeting about the safety of the available vaccines and that hospital staff were encouraging people to get vaccinated without sufficient knowledge of what the side effects could be and had questions about their effectiveness in controlling transmissions of the virus;
(c)Sought clarification of the health grounds that the Respondent had for having concerns about the Applicant’s capacity to perform her job as a nurse entering and remaining on the Respondent’s premises because the Applicant said she was fit and well to return to work and presented no greater risk of harm or infection to patients or any other staff especially in light of recent knowledge regarding the efficacy of the vaccines;
(d)Inquired as to how the hospital was responding to adverse reactions to vaccines and vaccine related injuries and expressed her view that it must only be a matter of time before the hospital must accept that the vaccines pose health risks which staff and patients should know about;
(e)Asked the question: “Is the hospital going to stand up and acknowledge no-one should be pushed into taking a vaccine on the threat of losing their job?”;
(f)Stated that the directives in place of December 2021 had since been revoked, acknowledged they were replaced by similar orders but observed they were also temporary measures; and
(g)Asked the question: “What recourse do I have if I develop a serious health condition as a result of the COVID-19 vaccine?” and asserted it was not reasonable to ask the Applicant to take risks with her health, when all those promoting, supplying and administering the vaccines had immunity from liability.
On 18 March 2022, Ms Race sent an email attaching a “show cause” letter to the Applicant in response. Ms Mellington’s evidence was that a draft was prepared by her team for approval of Ms Race. By that letter, Ms Race advised that as a result of the Applicant being unvaccinated the Respondent was undertaking a review process to consider the possible termination of the Applicant’s employment due to concerns about her capacity to perform the inherent requirements of her position and invited the Applicant to respond and provide any mitigating circumstances, proposals and reasonable adjustments noting the very limited nature of any exceptions under the directions. The Applicant was required to confirm availability to attend a meeting or respond in writing by 24 March 2022.
On 24 March 2022, the Applicant sent an email addressed to Ms Race but sent to Ms Mellington with the subject line “Response to your letter” which said:
Dear Sue
Thank you for your letter of 18 March 2022.
I appreciate you have acknowledged I have concerns regarding both the efficacy and safety of the available vaccines, based on extensive research and analysis of current information and data.
I have put these concerns to you both from my personal stand point and as a health and safety representative in the hospital. I do not believe I should be at risk of losing my job for raising these concerns with you, or for calling on you to consider the emerging information on the vaccines and their effects on those who have received them. It makes no sense to say I lack the capacity to work due to not being vaccinated with a Covid-19 vaccine when the safety and efficacy of those vaccines is the occupational health and safety issue in question.
You have given me little time to add to the concerns I have already put. I wish only to say that I remain ready and willing to return to work and will await whatever is your next response.
Yours sincerely,
Bernadette Mayne R.N.
Applicant’s dismissal from employment
It was common ground that, by the end of March 2022, the Applicant’s accrued annual leave entitlements were almost exhausted.
Following receipt of the Applicant’s 24 March 2022 email, Ms Mellington and her team proceeded to prepare a draft dismissal letter in relation to the Applicant’s employment. Ms Mellington’s evidence was that this was because the Applicant had not put forward any extenuating circumstances to justify her failure to become vaccinated against COVID-19 or otherwise confirmed she had a valid medical exemption. As Ms Race was on leave at around that time, the authority to terminate employment was delegated to Ms Senior who agreed that it was appropriate to dismiss the Applicant from her employment.
On 1 April 2022, Ms Senior sent a termination letter to the Applicant at her work email address. By that letter, Ms Senior confirmed that the Applicant’s response of 24 March 2022 had been received and considered but that, as she was unable to enter or remain on site of the purposes of working (pursuant to the COVID-19 Mandatory Vaccination (Specified Facilities) Order 2022 (No. 6) as well as previous directives/orders), this meant the Applicant could not fulfill the inherent requirements of her role and therefore the Respondent had decided to terminate her employment on capacity grounds effective 1 April 2022. The letter stated that the Applicant would be paid 5 weeks’ pay in lieu of notice and any outstanding entitlements owed. Ms Senior gave evidence to the Court that the dismissal of the Applicant was based solely on her vaccination status and its incompatibility with health orders that were binding on the Respondent at the time. Ms Senior and Ms Mellington respectively gave evidence of their perspectives that the dismissal of the Applicant was not for any reason which involved:
(a)The Applicant’s role (and/or her conduct ) as a HSR;
(b)The Applicant’s views concerning COVID-19 or the associated vaccinations or the fact that she had communicated those views to colleagues or clients; or
(c)The possibility that she may continue in the future to express those views to any patients or staff of the Respondent.
On 2 April 2022, the Applicant sent a response to Ms Senior by email in which the Applicant said:
Regarding the letter I received from you on 1^st April regarding my termination at Castlemaine Health, I was just wondering if this is an April Fools joke? If it wasn’t, then I guess it’s YOUR loss! A highly experienced Cardiac trained nurse, and you are severely understaffed, and much of your remaining nursing staff are quickly burning out.
I guess the joke is on Castlemaine Health.
In cross examination at the hearing, the Applicant confirmed receipt of the above summarised correspondence and that, as at 1 April 2022, she had not provided evidence of vaccination against COVID-19 to the Respondent. The Applicant also gave evidence of her perspective that:
·She had capacity to perform her role and being unvaccinated did not make her incapacitated to do her role;
·The hospital was in a delivery of care emergency since the time that it required its nursing staff to be vaccinated and that the numbers of patients presenting to the urgent care centre had also increased dramatically, with agreed staff to patient ratios being exceeded and ignored;
·She had a valid exemption, for valid reasons, which was confirmed in the medical certificate of Dr Hobart which she had given the Respondent and which the Respondent refused although the Respondent never knew the basis for the issue of the medical certificate which was confidential between her and her doctor, who said he would not disclose it; and
·When initially directed to become vaccinated by 16 September 2021, although she had the opportunity to ask questions of the Respondent, her concerns were not listened to and at no time in 2021 was there was consultation of a kind involving discussion where both parties were open to discussing an outcome. She added that Mr Warren had told her not to discuss anything that went against Government directives in the workplace, most specifically with patients and not just chitchat around the nurse’s station.
Mr Colton supported this evidence by describing his similar perspective on these issues in his evidence.
For her part, Ms Mellington did not agree with the characterisation of a delivery of care emergency or shortages that the Applicant and Mr Colton had given their views about in evidence. She also did not agree that the circumstances were of a kind that constituted an “emergency situation” or “unforeseen circumstances” as to have justified the Respondent from non-compliance with the public health directives and orders.
Mr Colton’s evidence
In the related application, Mr Colton gave evidence which was to be adopted in these proceedings. At the relevant times, Mr Colton was employed to work at Ellery House, one of 3 residential aged care units operated by the Respondent, until his dismissal on 14 February 2022 by reason of his inability to fulfill the inherent requirements of his nursing role because he was not vaccinated against COVID-19 and unable to enter or remain on site at the workplace. Mr Colton gave evidence about his experience and response to the Respondent’s response to the global COVID-19 pandemic and the mandatory vaccination direction which was, in parts, unique to his circumstances. His evidence is detailed in the reasons of Colton v Dhelkaya Health [2024] FedCFamC2G 939 and taken into account to the extent relevant to the Applicant’s case and the contextual background.
Other matters
The Applicant also deposed in writing to her feelings of complete rejection upon being required to take leave because she could not attend the workplace. She said, notwithstanding her almost 9 years’ service, there was no acknowledgement or thank you on departure from her manager or work colleagues. She felt that she was not treated with compassion and gave evidence of having suffered great distress and anxiety as a consequence of seeking to carry out duties professionally, to see treatment is only given to a patient were they have had an opportunity to weigh up the risks and benefits and have been able to give informed consent, and that risks to patient health and safety were minimised. Also that these risks to the Applicant included the risks to her as a single mother to stay fit for her son’s benefit.
Additionally, that she had been harmed in her professional standing and her career as a nurse was ruined, she had suffered enormous financial loss (unparticularised, other than to say had since been able to obtain employment at one third of her former pay and does not say in what role) and had to use her hard earned accrued long service leave to pay bills.
FIRST AND SECOND GROUNDS
The respective contentions
The alleged contraventions of s.340(1)(a) were at paragraphs 25 to 35 of the original claim and are read together with the amendments that the Applicant was granted leave to pursue on 5 February 2024. Given the degree of overlap, it is convenient to deal with the alleged contravention of s.340(1)(b) subject of the second ground and at paragraph 36 of the original claim together with the first ground.
In summary, the Applicant contended that the Respondent took adverse action against her by:
(a)Failing to roster her for work and suspending her from duty from 16 September 2021;
(b)Terminating her employment; and/or
(c)In denying or failing to consult with the Applicant under the OHS Act and/or the Enterprise Agreement.
Further, in relation to the first ground, that the reason(s) for these alleged adverse actions were because she had exercised or proposed to exercise a workplace right – particularised as the following “benefits” possessed by the Applicant:
(a)Under cl.11 of the Enterprise Agreement, which obliged the Respondent to consult with the Applicant about the introduction of a policy of mandatory vaccination for employees against the COVID-19 virus which was a “major change” in the Applicant’s workplace arrangements that had a “significant effect” on her as an employee;
(b)Under ss.20-23 of the OHS Act, to:
(i)work within a system of work that was safe and without risk to her health, the health of her co-workers and to patients;
(ii)see that the Respondent used work practices that ensured safety and the absence of risks to health from the use of substances within the hospital (including vaccines);
(iii)see that employees were supported by information and instruction on all substances including vaccines administered to patients and employees (or recommended for such administration); and
(iv)see that medical procedures carried out on patients or the administration of substances proceeded only after informed consent was given by the persons concerned;
(c)As an appointed HSR, which entailed responsibility to advocate for co-workers, initiate inquiries, complaints and proceedings and seek compliance with the workplace rights at cl.11 of the Enterprise Agreement and under ss.20-23 of the OHS Act; and
(d)Under the OHS Act and/or the Enterprise Agreement, to the extent that those workplace instruments obliged the Respondent to consult with the Applicant (not particularised but understood to be a reference to s.35 of the OHS Act, cl.11 and perhaps also cl.99 of the Enterprise Agreement).

In relation to the second ground, the Applicant claimed that it was the adverse action in the form of her dismissal that was taken to prevent her from agitating her issues and concerns with the safety and efficacy of the vaccines. She made this claim by cross reference to the asserted workplace rights at paragraph 105(a) to (d) above.
The Applicant claimed to have exercised the above workplace rights by: requesting consultation before any change occurred to her employment conditions; and by raising concerns with the safety and efficacy of the COVID-19 vaccines at a meeting with a human resources manager on 14 September 2022; and by raising other concerns with the Respondent about lack of information, informed consent of patients, adverse reaction monitoring and recording and the apparent limited efficacy and effect of the vaccines and failure to prevent transmission.
She further claimed to have exercised the above workplace rights by declining to be vaccinated while the concerns she raised remained unaddressed, and especially until the Respondent provide advice on the constituents of the vaccines and provided evidence they were safe and without risk to health.
For its part, the Respondent contended that all of the alleged contraventions were fundamentally misconceived, including because they failed to acknowledge, accept or understand that the COVID-19 pandemic was a public health emergency to which there was a national work health and safety response which manifested, in the State of Victoria, in the issuance of public health directions and orders by the Chief Health Officer of Victoria which were binding on the Respondent and the Applicant at the relevant times.
The Respondent maintained that these claims should be dismissed because the Applicant had failed to establish the required elements to make good any of the alleged contraventions of s.340 of the Act including by failing to identify with sufficient precision the source and exercise or proposed exercise of each asserted workplace right pursuant to s.341(1) or that each claimed adverse action was taken because of or for reasons that included the exercise or proposed exercise of that workplace right pursuant to s.342 of the Act.
Consideration
The adverse action(s)
There was understood to be no dispute about the following and I find that:
(a)The Applicant was suspended from duty (not rostered for work) on and from 17 September 2021 until her dismissal which constituted an adverse action within the meaning of s.342(1), item 1(b) and/or item 1(c); and
(b)The Applicant’s dismissal on 1 April 2022 constituted an adverse action within the meaning of s.342(1) item 1(a).
It is at least conceivable that a denial or failure to follow a consultation process arising under an applicable workplace instrument could amount to an adverse action under s.342(1) item 1(b) or 1(c).
The workplace right(s)
There was not understood to be any dispute and I find that the Applicant possessed the following workplace rights at the relevant times:
(a)The entitlement to participate in consultation under cl.11 of the Enterprise Agreement, which obliged the Respondent to consult with the Applicant where it proposed a “major change” that may have a “significant effect” on an employee(s) (as defined at cl.11.2 therein) – where such consultation required the Respondent to take prescribed steps to provide information, there to be a written response, consultation meetings convened, alternative proposals put and considered prior to advising the outcome;
(b)The entitlement to benefit from the protections created by the “general duties” at ss.20-23 of the OHS Act, being a series of obligations or duties imposed on the Respondent to, so far as reasonably practicable: ensure safety at work, maintain a safe workplace and provide adequate facilities and such information or instruction as necessary to enable performance of work in a way that is safe and without risks to health; monitor health and conditions and provide information concerning health and safety of employees at the workplace; and ensure that persons other than employees are not exposed to risks to their health and safety arising from the conduct of the undertaking of the employer;
(c)At least until 14 October 2021, the entitlement to exercise the responsibility and obligations created by Division 4 of Part 7 of the OHS Act, to act as an elected HSR for the designated work group of the urgent or acute care ward; and
(d)The entitlement to participate in consultation in accordance with s.35 of the OHS Act, which obliged the Respondent so far as reasonably practicable to consult with employees likely to be directly affected by, for example, identification and assessment of risks to health and safety at the workplace and to make decisions about measures to control risks to health or safety at the workplace – where such consultation required the Respondent to follow any agreed procedure for undertaking consultation and otherwise to share information and give the employees a reasonable opportunity to express their views about the matter and take into account those views, and also required a HSR to be involved in that capacity.
There was a strong dispute about whether the Applicant had in fact exercised or proposed to exercise these workplace rights. In light of the findings made below about the motivating and actuating reasons for the adverse actions taken by the Respondent, and indeed in relation to all of the Respondent’s established conduct with respect to the introduction and implementation of its mandatory vaccination direction, it is unnecessary to resolve those contests on the evidence before the Court.
The reasons
The critical issue in the present case turns on the Respondent’s reason(s) for the action it took (or inaction, as the case may be).
It was not controversial that, following the declaration of the global COVID-19 pandemic, there were a series of State Government public health directives and orders that imposed a number of new (and, at the time, emerging) restrictions and requirements on employers operating in the State of Victoria. Pertinent to these proceedings were the directives that initially required proof of a first dose of the COVID-19 vaccine for health care workers by 17 September 2021, then proof of “full vaccination” against COVID-19 by 15 October 2021, subsequently extended by iterations of orders which came to further require proof of “booster” vaccinations (in each case, unless there was a valid or permitted “exception” as defined) – whilst, at the same time, prohibiting an employer from allowing an person onto the premises for the purposes of work unless the requisite proof had been provided.
It was against the context of this external operating environment that the Respondent decided to introduce and announced its mandatory vaccination direction (on 25 August 2021) and then proceeded to implement its mandatory vaccination direction (over the period September 2021 to April 2022).
Why was the Applicant not rostered for work from 17 September 2021?
The decision that the Applicant would be suspended from duty (not rostered to work) on and from 17 September 2021 was the decision of Ms Race (who penned the letter dated 16 September 2021 to the Applicant) but made with guidance from Ms Mellington assisted by her HR team.
The 16 September 2021 letter, on its face, explained that the reason why the Applicant would not be rostered on and from the following day was because she had not satisfied one of the various options to attend the workplace that were permitted by the then operative public health directive. The letter included an explanation of the reasons why Ms Race considered that Applicant’s medical certificate submitted 15 September 2021 was not capable of meeting those requirements.
The evidence of the relevant context to the non-rostering decision included the initial mandatory vaccination direction announcement of 25 August 2021, sent equally to all employees as applicable to all employees. The 25 August 2021 announcement, on its face, conveyed the Respondent’s consideration that that its operations were based on a single site and as an aged care provider this meant that all of the Respondent’s operations and staff working on it were considered high risk for COVID-19. The announcement also explained the context to the Respondent’s decision was the decision of the National Cabinet on 28 June 2021 (comprising the Australian Prime Minister and State and Territory first ministers) to mandate that all residential aged care workers must receive at least the first dose of a COVID-19 vaccine by mid-September 2021. These were messages that Ms Race and Ms Mellington continued to reiterate in reminder email communications and newsletters that followed.
Additional context to the non-rostering decision included:
(a)The Applicant had written a letter to Ms Race dated 3 September 2021 wherein she outlined (among other things) her concerns about herself and other employees being forced to disclose vaccination status, queried the advice that staff become vaccinated or be subjected to threat of job loss and raised her understanding that consultation under the Enterprise Agreement would be required before such decision could be implemented;
(b)Ms Mellington, Mr Warren and the Applicant had an exchange of email correspondence on 8 and 9 September 2021, by which the Applicant conveyed that she had not taken an approved dose of the COVID-19 vaccine and had decided not to take an approved dose of the COVID-19 vaccine and was encouraged to attend a meeting to discuss her concerns;
(c)There was a meeting attended by the Applicant, Ms Mellington and Mr Warren on 14 September 2021 at which the Applicant’s concerns were discussed; and
(d)The Applicant submitted a medical certificate to Mr Warren on 15 September 2021, which certified that she had a medical condition and, in the certifying doctor’s opinion, should not have the COVID-19 vaccine.
At the time the non-rostering decision was made and communicated to the Applicant, it was the case that the Applicant had not complied with the specific requirements of the Respondent’s mandatory vaccination direction and had not submitted proof of a medical exemption recorded on the Australian Immunisation Register or displayed on an Immunisation History Statement available from MyGov-Medicare (as directed in the original announcement of 25 August 2021).
To the extent that it was the Applicant’s (genuinely held) concerns about the safety and efficacy of the COVID-19 vaccines that underpinned the reason why the Applicant did not provide proof of taking the COVID-19 vaccine by 16 September 2021, then there was a connection to the reasons for the non-rostering decision. Even if the Applicant were able to establish that she voiced these concerns in the exercise or proposed exercise of her claimed workplace right(s), like other cases of its kind and as the majority explained in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500(Barclay) at [62], the decision-maker’s reasons need not “be entirely dissociated” from a protected activity. However, on the evidence before the Court, in the present case the Respondent has disproved a suggestion of a close link to the actuating reasons (of the kind in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525 (Visy), noting the guidance of the High Court of Australia in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 at [55]).
On the totality of the evidence, I accept that the reasons for the guidance given by Ms Mellington to Ms Race to inform her decision and in turn Ms Race’s reasons for deciding that the Applicant would not be rostered from 17 September 2021 were solely to give effect to the then operative public health directions. Further, that the only persuasive and actuating reason for implementing and enforcing the Respondent’s mandatory vaccination direction was to ensure compliance with the public health directions that the Respondent (whether rightly or wrongly) considered both applied to its operations and it was required to comply with by force of law.
Such finding is consistent with the reason given on the face of the non-rostering decision itself. Further, the non-rostering decision was consistent with the course of action outlined in the initial announcement to all employees of 25 August 2021 (there being no evidence to probatively establish that she had raised any specific or particular concern, in any capacity, with the Respondent prior to then). The non-rostering decision was also consistent with the course of action that was reiterated to the Applicant individually in the meeting of 14 September 2021 and the related communications.
Whether the Respondent was technically correct in its assessment that the entirety of its operations be classified as an aged care facility subject to the public health direction in operation at the time or in its interpretation of the medical exemption required by the public health direction at the time is beside the point to the extent that it is the Respondent’s real reasons for adverse action it took that bear scrutiny. There were serious consequences for failure to comply with the public health directives in force at the time. On the evidence before the Court, I accept that the Respondent (through its officers, relevantly, Ms Race and Ms Mellington) proceeded to introduce and enforce the mandatory vaccination direction consistent with their firmly held belief that they were required to do so, by law – because they believed that the public health directives applied to the Respondent’s entire workforce and the medical exemption requirements did not afford them the discretion to accept a medical certificate of the kind that the Applicant supplied on 15 September 2021.
One of the Applicant’s complaints in these proceedings was that she was given the clear impression in the 14 September 2021 meeting that there was nothing that she could say to change the Respondent’s decision that all nurses had to get vaccinated to continue working. The evidence about this is addressed further in relation to the consultation allegation below. For present purposes, it is sufficient to note that, were it so, this would only serve to reinforce the above conclusion in terms of the view held by Ms Mellington as a relevant contributor to the decision making process.
It follows that I do not accept that the Applicant was, by reason of the decision not to roster her from 17 September 2021 (communicated to her on 16 September 2021), subjected to adverse action in contravention of s.340(1)(a) of the Act.
Why was the Applicant dismissed from her employment on 1 April 2022?
The decision maker in relation to the dismissal of the Applicant’s employment was Ms Senior, on advice of Ms Mellington and her HR team.
Ms Senior told the Court that the only reason for the dismissal decision, from her perspective, was the Applicant’s vaccination status.
It is apparent on the face of the 1 April 2022 dismissal letter (penned by Ms Senior, with guidance from Ms Mellington and assistance of her human resources team) that Ms Senior thought the Applicant’s vaccination status at the relevant time was that she had elected to remain unvaccinated. The Applicant had not directly said as much in her response to the show cause letter of 24 March 2022 (or in any of the communications in evidence before the Court since the evidence of the discussion as at 14 September 2021). However, that Ms Senior (and Ms Mellington) thought so is entirely plausible given the proposition that the Applicant was unvaccinated was put to the Applicant in the show cause letter as the basis for considering dismissal and the Applicant did not seek to disavow the proposition in her response.
Ms Senior’s evidence about her reason for the dismissal is supported by the content of the 1 April 2022 dismissal letter. In the letter itself, she articulated the reason for the Applicant’s dismissal by reference to the then current public health order which provided that the Applicant was unable to enter or remain on the Respondent’s premises for the purposes of working and in turn meant that the Applicant could not fulfill the inherent requirements of her role. Ms Senior explained in the letter that, therefore, the Respondent had decided to terminate the Applicant’s employment on “capacity grounds” effective that same day.
However, also in the dismissal letter itself, Ms Senior stated that she had taken the Applicant’s show cause response of 24 March 2022 into account in reaching her decision. In scrutinising the real reason(s) for the dismissal, it is therefore necessary to consider the substance of the Applicant’s show cause response as well as the surrounding context including the input of Ms Mellington and her human resource team as advisors to Ms Senior. Ms Mellington and her team, of course, having been privy to some of the earlier context specific to the Applicant.
The relevant context to the dismissal decision commenced with the Respondent’s decision to introduce and announcement of the mandatory vaccination direction, followed by the Respondent’s implementation of the mandatory vaccination direction (outlined above). Upon implementation, the Applicant was not rostered for work and she requested to take leave in an effort to buy time to figure out her next step (also outlined above). Some months then passed before the Respondent, by letter of 20 December 2021, commenced to engage with the Applicant about the possibility her employment would be terminated as a consequence of a decision to remain unvaccinated. In the interim period, the Applicant continued to be in receipt of communications sent to all employees of the Respondent containing reminders of the direction and likely consequences of non-compliance.
That 20 December 2021 letter put the Applicant on notice of the request to provide evidence of “full” vaccination or “excepted person” status by 4 April 2022, after which time and without which she would be stood aside without pay and her employment possibly terminated. The Applicant responded on 13 March 2022 by which she posed a series of questions which affirmed her doubt and concerns about the safety and efficacy of the vaccines and, in particular, queried the health grounds on which the Respondent’s (in)capacity assessment was based.
The Respondent’s response to the Applicant’s 13 March 2022 communication was to issue a “show cause” letter (penned by Ms Race) on 18 March 2022. The show cause letter invited the Applicant to respond by 24 March 2022 after which time the Respondent would decide whether to terminate her employment. It was on 24 March 2022 that the Applicant responded in which she asserted for the first time in writing to be putting her concerns in her role as HSR (among other things and express concerns raised including the suggestion she lacked capacity to perform her role).
Although the dismissal letter itself reflected that the Applicant’s response of 24 March 2022 was expressly taken into account in considering whether to dismiss her employment, I am not able to conclude on the evidence that the Applicant was terminated because of her actual or proposed exercise of workplace rights including her assertion to have raised concerns about the safety and efficacy of the vaccines in her role as HSR per the 24 March 2022 response (or at any earlier stage) or the fact of her decision to remain unvaccinated without more information. As above, the decision-maker’s reasons need not “be entirely dissociated” from a protected activity. And, on the evidence before the Court, in the present case the Respondent has disproved a suggestion of a close link (of the kind in Visy) and indeed any sufficient connection to the actuating reasons.

The disciplinary process was triggered by the Applicant’s failure to provide the requested proof of having taken the COVID-19 vaccine or a permissible exemption. I consider the better view is that the Applicant’s continued expression of concerns and posing of questions bore no more than an association with the reasons for her termination. Ms Senior’s decision, based on guidance of Ms Mellington and assistance of her team, was to dismiss for the Applicant’s failure to comply with its mandatory vaccination direction which, by operation of the public health orders, meant that she could not attend the workplace being an inherent requirement of her role as a nurse. The substantive and operative reason for the dismissal in the present case is separate and distinct from the identified association.
I have earlier concluded that, at the time of the non-rostering decision, the only persuasive and actuating reason for implementation and enforcement of the Respondent’s mandatory vaccination direction was to ensure compliance with the public health directions that the Respondent (rightly or wrongly) considered both applied to its operations and that it was required to comply by force of law. On all of the evidence before the Court about the conduct and communications following the non-rostering decision up to and including the dismissal decision, I am persuaded that the Respondent (through its agents, relevantly, Ms Race, Ms Senior and Ms Mellington) continued to implement and enforce the mandatory vaccination including to dismiss the Applicant on 1 April 2022 for this sole purpose.
For completeness, I do not discern any additional motivating reason(s) on account of the use of the term “capacity”. Plainly the Applicant did not accept the characterisation of her decision to remain unvaccinated against COVID-19 as resulting in an incapacity to perform her role as a nurse on account of her physical health and fitness and contentions about the (in)efficacy of the vaccine. The term “capacity” was open to other interpretations but, used in the sense of “ability”, was apt – not because of the Applicant’s health or competence but rather on account of the intervening circumstance of a changed law or regulation which meant she was prohibited from attending her place of work and therefore simply not able to perform the inherent requirements of her role as nurse. Further, and on the balance of the evidence, the Applicant was clearly on notice that the identified concern about her “capacity” was just this – the (in)ability to attend the Respondent’s workplace absent proof of the required number of COVID-19 vaccines or as an exempt or excepted person. That she understood as much is only reinforced by her insistence that there was nothing she could say or do to change the Respondent’s approach, other than to provide proof of having become vaccinated against COVID-19 or of a medical exemption.
There is also nothing relevant to this adverse action claim to be drawn from the timing of the decision and disciplinary process. Although the dates for providing the requested proof were shortened during the process, the Applicant complied and provided her response by the earlier date and did not seek more time in which to respond.
I conclude that the Applicant was dismissed because of her failure to provide the requested proof of vaccination against COVID-19 or an applicable exemption in accordance with the then operative public health orders. I have not accepted that the fact of or proposal to exercise her workplace rights to raise her concerns or express her views (genuinely held), in whatever capacity they were expressed, was an actuating reason for the Applicant’s dismissal on 1 April 2022. Accordingly, the Applicant’s dismissal was not in contravention of s.340(1)(a).
Nor does the evidence establish that the Respondent dismissed the Applicant as a means to prevent her exercise of the workplace rights I have found she possessed during the employment. To the contrary, the Applicant was invited to raise and discuss those genuinely held views and concerns. The Respondent did not accept those views as enabling an alternate approach and, absent any proof of becoming vaccinated or exempted (as was requested on numerous occasions, over some 10 months), the Respondent decided it had no choice than to dismiss the Applicant from her employment. The lapse of time between the Applicant first conveying her intention to elect not to take the vaccine and the dismissal itself only adds further support to the conclusion I have reached in respect of s.340(1)(b) and does not demonstrate sufficient nexus or connection to the contrary.
Why was there a denial or failure to follow a consultation process arising under an applicable workplace instrument?
As earlier considered, it is at least conceivable that a denial or failure to follow a consultation process arising under an applicable workplace instrument (here, the Enterprise Agreement and/or the OHS Act) could amount to an adverse action within the meaning of s.342 item 1(b) or (c) of the Act.
It is acknowledged that there was a strong dispute about whether the claimed denials and omissions to consult (as the claim were allowed to proceed) was sufficiently particularised as to engage the reverse onus.
The Respondent’s case did not hinge on its defence of its consultation process. That is because this is not a claim for breach of a consultation process in an applicable workplace instrument or contract. Indeed, whilst denying any failure to comply with any such obligation, Ms Mellington acknowledged in her evidence her view at the time was that consultation was futile. Nonetheless the evidence established that the Respondent met with the Applicant at an individual level to discuss her issues. And, in the 6 months following that first individual discussion the Applicant did not agitate for the escalation of a dispute under the Enterprise Agreement or for consultation under any other workplace instrument but rather sought to claim an exemption (which was not accepted) and then requested to take accrued annual leave at half pay to buy her more time to figure out her next step. There was a further meeting at which the Applicant contended she attended as support person but in the various further written correspondence until the final show cause response on 24 March 2022 she made no mention of her role as HSR or any other asserted workplace right.
In any event, in the present case, nothing turns on whether the factual circumstances triggered an obligation to consult under the Enterprise Agreement and/or the OHS Act, whether it were established that there was a request to consult made in compliance with such obligation which was denied and/or whether there was an omission to properly initiate consultation arising under the Enterprise Agreement or the OHS Act as required.
That is because the evidence consistently pointed to the conclusion that the Respondent’s actions in deciding to introduce the mandatory vaccination policy, in announcing the mandatory vaccination policy, and in implementing the mandatory vaccination policy were motivated by the need to continue its operations in accordance with the emerging law (the requirements of the public health directives and orders).
Further, to the extent that the Applicant contended that these alleged denials and omissions to consult were designed to avoid the Applicant’s expression of her views and concerns about the COVID-19 vaccines such finding would not be consistent with the evidence. There was no denying that the Applicant genuinely held those concerns. The Respondent (through its agents) heard from her about those views and responded to them, as outlined above. Whilst Ms Mellington did not consider there were many alternative options, the Respondent consistently expressed that it remained open to other alternatives and invited the Applicant to put those or otherwise raise any mitigating circumstances. Ms Mellington was flexible in approving accrued leave to be taken essentially at half pay (even where the payroll system did not readily provide for this). The Respondent expressly took the Applicant’s response to that final show cause letter (of 24 March 2022) into account, but decided that it had no choice than to terminate her employment. The evidence does not support that the Respondent’s actions were motivated or actuated by a prohibited reason.
Resolution
For the foregoing reasons, the Applicant has not made out a contravention of ss.340(1)(a) or (b) as claimed by the first and second grounds.
THIRD GROUND - THE ALLEGED CONTRAVENTIONS OF SECTION 343 (COERCION)
The respective contentions
The Applicant’s claim that s.343 was contravened was at paragraphs 37 and 38 of her original application, based on the Respondent’s:
(a)Removal of the Applicant from roster;
(b)Threats to dismiss her employment if she did not get vaccinated;
(c)Attempted inducements to get vaccinated,
in each case said to have been action taken with intent to coerce the Applicant into not exercising her right not to be vaccinated whilst her concerns about safety and efficacy of the vaccines remained unaddressed and, or in the alternative, with intent to coerce the Applicant into exercising her workplace rights to inquire into and seek information on the safety and efficacy of the vaccines by reference to the workplace rights identified in the first and second grounds, and namely by requiring her to firstly be vaccinated.
The Respondent claimed a lack of precision in the articulation and therefore its understanding of the claim.
Was the Applicant subject of coercion?
It is well-established that coercion involves the application of illegitimate pressure to induce the other party to act: Cadbury Schweppes Pty Ltd v Australian Liquor Hospitality and Miscellaneous Workers’ Union & Anor [2000] FCA 1793. The pressure being only illegitimate if it involves unlawful threats or amounts to unconscionable conduct: Schanka v Employment National (Administration) Pty Ltd [2000] FCA 202. Further, in Esso Australia Pty Ltd v The Australian Workers’ Union [2016] FCAFC 72 the Full Court held at [174] that:
Coercion has been held to require the satisfaction of two elements: negation of choice; and, the use of unlawful, or illegitimate or unconscionable means.
The element of negation of choice involves a subjective test of intent. The latter element, use of unlawful, illegitimate or unconscionable means, is an objective test.
Putting to one side for now the lack of precision of the pleading, it is plain from an assessment of all of the evidence that the Applicant (along with all employees of the Respondent) was “urged” and “encouraged” to take the vaccine or otherwise was liable to removal from roster and possible termination of employment.
The Respondent’s urgings and encouragement to get vaccinated are properly contextualised by reference to the context of the global COVID-19 pandemic and the emerging and evolving public health directives and/or orders which affected the Respondent’s operations and the work environment. The contemporaneous communications reflected that the Respondent was seeking to implement the approach of the Federal Government and the Victorian Government and that it had adopted the view, consistent with the Chief Health Officer’s advice, that vaccination was necessary to protect (in particular) the sick and the ageing population who were its clients. In my view, there was nothing objectively unlawful or illegitimate or unconscionable about the Respondent’s urgings and encouragement which were (at least in all examples in evidence before the Court) balanced by a confirmation of and respect for individual choice.
Specifically, the Respondent outlined its assessment of the Applicant’s available choices in various communications and invited discussion at which alternatives may have been proposed - including as of the initial announcement of the mandatory vaccination direction on 25 August 2021. The Respondent was not unconscionable or inappropriate in its decision to fully inform the Applicant about the likely consequences of her various options.
In the present case the Applicant has not made out any subjective intent to coerce her to get vaccinated or in relation to the exercise of her established workplace rights for an unlawful or illegitimate reason.
Resolution
The evidence does not establish a contravention of s.343 and this third ground is not made out.
CONCLUSION
In totality, the evidence does not support that the Respondent’s actions were motivated or actuated by a prohibited reason.
For the above reasons, the claim made in this jurisdiction is dismissed.

I certify that the preceding one hundred and sixty-one (161) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.
Associate:
Dated: 23 September 2024
ANNEXURE A

1 N Buergin et al. “Sex specific differences in myocardial injury incidence after Covid-19 in MRNA -1273 Booster Vaccination”
httpps://onlinelibrary.wiley.com/doi/epdf/10.1002/ejhf.2978.

2 M Oster et al. “Myocarditis Cases Reported After mRNA-Based COVID-19 Vaccination in the US from December 2020 to August 2021". JAMA 2022.327(4):
331-340.

3 Sattar et al. "Nuclear translocation of spike mRNA and protein is a novel feature of SARS-CoV-2"

4 M. Aldén et al. “Intracellular Reverse Transcription of Pfizer BioNTech COVID-19
mRNA Vaccine BNT162b2 In Vitro in Human Liver Cell Line". Curr. Issues Mol.
Biol. 2022, 44, 1115–1126. [

5 P. Buckhaults, download material from

6 Shimazawa R, Ikeda M. "Potential adverse events in Japanese women who received tozinameran (BNT162b2, Pfizer-BioNTech)". J Pharm Policy Pract. 2021 May 31;14(1):46. doi: 10.1186/s40545-021-00326-7. PMID: 34059124;
PMCID: PMC8165345.

7 Zhou Y, Peng Z, Seven ES, Leblanc RM. "Crossing the blood-brain barrier with nanoparticles". J Control Release. 2018 Jan 28;270:290-303. doi:
10.1016/j.jconrel.2017.12.015. Epub 2017 Dec 19. PMID: 29269142.

8 S V Subramanian and Akhil Kumar. "Increases in COVID-19 are unrelated to levels of vaccination across countries and 2947 counties in the United States", European Journal of Epidemiology 30 Sep 2021:

9 C. Schwab, L-M Domke, L Hartmann, A Stenzinger, T Longerich, P Schirmacher. "Autopsy‑based histopathological characterization of myocarditis after anti‑SARS‑CoV‑2 vaccination", Clinical Research in Cardiology (2023) 112:431–440 Clinical Research in Cardiology (2023) 112:431–440:

10 C Baumeier et al. "Intramyocardial Inflammation after COVID-19 Vaccination: An
Endomyocardial Biopsy-Proven Case Series", Int. J. Mol. Sci. 2022, 23(13),
6940;

11 Gazit, S et al. "Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV- 2) Naturally Acquired Immunity versus Vaccine-induced Immunity, Reinfections versus Breakthrough Infections: A Retrospective Cohort Study (2022)", Clinical Diseases Major Article

12 A. Jeans, Expert Report, 6 July 2023 submitted to Australian Federal Police 3 Dec. 2023 for investigation into lack of GMO licenses under the Gene
Technology Act 2000.

13 Prof. Robert Clancy, The Problem with the COVID Narrative, Quadrant 16 Nov. 2022.

14 Pfizer Transmission Admission European Parliament 10 Oct 2022.

15 PMCPA-3741-case-report-28-march-2024

16 Covid-19 Mandatory Vaccination Directions (No.1).

17 Australian Parliament Hansard, Senate Estimates, 26 Oct. 2023.

18 Pfizer, Gene Therapy: Behind the Scenes, downloaded from Pfizer website

19 Letters of Instruction to Dr Neil, Br Peers and Mrs Fawcett

20 Dhelkaya Health – COVID-19 Staff Vaccination Policy (version as at 25 August 2021)

File number(s):	MLG 1867 of 2022
Judgment of:	JUDGE MANSINI
Date of judgment:	23 September 2024
Catchwords:	FAIR WORK – alleged contraventions of general protections provisions of the Fair Work Act 2009 (Cth) – circumstances of global COVID-19 pandemic and State Government-introduced public health directions and orders – where Applicant was a registered nurse in acute ward administering urgent care to patients of the Respondent – directed to produce evidence of COVID-19 vaccination or authorised medical exemption – not rostered and took leave pending compliance with direction – dismissed by reason of inability to perform inherent requirements of the role on capacity grounds – where not established that adverse action was taken for a prohibited reason – where not established that action was taken or threatened with intent to coerce – application is dismissed.
Legislation:	Fair Work Act 2009 (Cth) ss. 12, 340, 341, 342, 343, 360, 361, 539, 545, 793. Occupational Health and Safety Act 2004 (Vic) ss. 20-23, 35 Public Health and Wellbeing Act 2008 (Vic) Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2020-2024 cl.11, 99 COVID-19 Mandatory Vaccination (Specified Facilities) Order 2022 (No. 6) Pandemic (Workplace) Order 2022 Pandemic COVID-19 Mandatory Vaccination (Specified Facilities) Order 2021 / 2022
Cases cited:	Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Cadbury Schweppes Pty Ltd v Australian Liquor Hospitality and Miscellaneous Workers’ Union & Anor [2000] FCA 1793 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 Esso Australia Pty Ltd v The Australian Workers’ Union [2016] FCAFC 72 Schanka v Employment National (Administration) Pty Ltd [2000] FCA 202
Division:	Division 2 General Federal Law
Number of paragraphs:	161
Date of hearing:	2 – 3 May 2024
Place:	Melbourne
Solicitor for the Applicant:	George Ryan Solicitor
Counsel for the Respondent:	Mr Minucci
Solicitor for the Respondent:	Minter Ellison

MLG 1867 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	BERNADETTE THERESE MAYNE Applicant
AND:	DHELKAYA HEALTH Respondent

ORDER MADE BY:	JUDGE MANSINI
DATE OF ORDER:	23 SEPTEMBER 2024

IN SUMMARY	[1]
THE CASE BEFORE THE COURT	[5]
Grounds of the application	[9]
Materials relied on	[11]
STAUTORY FRAMEWORK	[16]
General protections	[16]
THE EVIDENCE	[28]
Objections to evidence	[28]
Summary of the evidence	[43]
*About the Respondent*	[44]
*Terms and conditions of the Applicant’s employment*	[52]
*The global COVID-19 pandemic*	[57]
*Applicant’s response to the Respondent’s initial pandemic response*	[66]
*Respondent’s mandatory vaccination direction*	[68]
*Applicant’s response to Respondent’s mandatory vaccination direction*	[74]
*Applicant’s dismissal from employment*	[93]
*Mr Colton’s evidence*	[100]
*Other matters*	[101]
FIRST AND SECOND GROUNDS	[103]
The respective contentions	[103]
Consideration	[111]
*The adverse action(s)*	[111]
*The workplace right(s)*	[113]
*The reasons*	[115]
*Resolution*	[150]
THIRD GROUND - THE ALLEGED CONTRAVENTIONS OF SECTION 343 (COERCION)	[151]
The respective contentions	[151]
Was the Applicant subject of coercion?	[153]
Resolution	[159]
CONCLUSION	[160]

1	N Buergin et al. “Sex specific differences in myocardial injury incidence after Covid-19 in MRNA -1273 Booster Vaccination” httpps://onlinelibrary.wiley.com/doi/epdf/10.1002/ejhf.2978.
2	M Oster et al. “Myocarditis Cases Reported After mRNA-Based COVID-19 Vaccination in the US from December 2020 to August 2021". JAMA 2022.327(4): 331-340.
3	Sattar et al. "Nuclear translocation of spike mRNA and protein is a novel feature of SARS-CoV-2"
4	M. Aldén et al. “Intracellular Reverse Transcription of Pfizer BioNTech COVID-19 mRNA Vaccine BNT162b2 In Vitro in Human Liver Cell Line". Curr. Issues Mol. Biol. 2022, 44, 1115–1126. [
5	P. Buckhaults, download material from
6	Shimazawa R, Ikeda M. "Potential adverse events in Japanese women who received tozinameran (BNT162b2, Pfizer-BioNTech)". J Pharm Policy Pract. 2021 May 31;14(1):46. doi: 10.1186/s40545-021-00326-7. PMID: 34059124; PMCID: PMC8165345.
7	Zhou Y, Peng Z, Seven ES, Leblanc RM. "Crossing the blood-brain barrier with nanoparticles". J Control Release. 2018 Jan 28;270:290-303. doi: 10.1016/j.jconrel.2017.12.015. Epub 2017 Dec 19. PMID: 29269142.
8	S V Subramanian and Akhil Kumar. "Increases in COVID-19 are unrelated to levels of vaccination across countries and 2947 counties in the United States", European Journal of Epidemiology 30 Sep 2021:
9	C. Schwab, L-M Domke, L Hartmann, A Stenzinger, T Longerich, P Schirmacher. "Autopsy‑based histopathological characterization of myocarditis after anti‑SARS‑CoV‑2 vaccination", Clinical Research in Cardiology (2023) 112:431–440 Clinical Research in Cardiology (2023) 112:431–440:
10	C Baumeier et al. "Intramyocardial Inflammation after COVID-19 Vaccination: An Endomyocardial Biopsy-Proven Case Series", Int. J. Mol. Sci. 2022, 23(13), 6940;
11	Gazit, S et al. "Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV- 2) Naturally Acquired Immunity versus Vaccine-induced Immunity, Reinfections versus Breakthrough Infections: A Retrospective Cohort Study (2022)", Clinical Diseases Major Article
12	A. Jeans, Expert Report, 6 July 2023 submitted to Australian Federal Police 3 Dec. 2023 for investigation into lack of GMO licenses under the Gene Technology Act 2000.
13	Prof. Robert Clancy, The Problem with the COVID Narrative, Quadrant 16 Nov. 2022.
14	Pfizer Transmission Admission European Parliament 10 Oct 2022.
15	PMCPA-3741-case-report-28-march-2024
16	Covid-19 Mandatory Vaccination Directions (No.1).
17	Australian Parliament Hansard, Senate Estimates, 26 Oct. 2023.
18	Pfizer, Gene Therapy: Behind the Scenes, downloaded from Pfizer website
19	Letters of Instruction to Dr Neil, Br Peers and Mrs Fawcett
20	Dhelkaya Health – COVID-19 Staff Vaccination Policy (version as at 25 August 2021)