Megan Willoughby v Jetstar Airways Pty Ltd
[2023] FWC 899
•17 APRIL 2023
| [2023] FWC 899 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Megan Willoughby
v
Jetstar Airways Pty Ltd
(U2022/6518)
| VICE PRESIDENT ASBURY | BRISBANE, 17 APRIL 2023 |
Application for an unfair dismissal remedy
Overview
Ms Megan Willoughby (the Applicant) applies to the Fair Work Commission (the Commission) pursuant to s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of the termination of her employment by Jetstar Airways Pty Ltd (Jetstar/the Respondent). The application was made on 21 June 2022. The Applicant was employed by Jetstar in customer and passenger services roles for approximately 15 years from August 2007 and at the time of her dismissal, held a position as an Airport Duty Manager at the Brisbane Domestic Airport Terminal on a permanent full-time basis, and was paid a gross annual salary of $108,300.01 (plus superannuation)[1] as well as other applicable allowances and additional payments in accordance with the Airline Operations – Ground Staff Award 2020. The Applicant’s dismissal took effect on 1 June 2022. The Applicant sought reinstatement to the position of Airport Duty Manager and, if reinstatement is not appropriate, compensation.
Jetstar is a member of the Qantas Group (Qantas/Qantas Group). Qantas conducts international and domestic airline operations through several business divisions and associated businesses, including Jetstar,[2] Qantas’s low-cost airline which operates both international and domestic routes.[3]
The Applicant was dismissed for misconduct, based on the Respondent finding that she had wilfully failed to comply with the Qantas Group COVID-19 Vaccination Policy, which required all Australian-based employees of the Qantas Group to be fully vaccinated with an approved COVID–19 vaccine and submit evidence of vaccination to the Qantas HR intranet system, Workday, by the Compliance Date – 15 November 2021 for Category A employees and 31 March 2022 for Category B employees. Alternatively, employees could seek an exemption from the vaccination requirement on medical or non-medical grounds by the relevant compliance date. The Applicant, being a holder of a Red Aviation Security Identity Card (ASIC), was classified as a Category A employee and the relevant Compliance Date for the Applicant was 15 November 2021.
The Vaccination Policy states that employees who were on special leave without pay (SLWOP), leave without pay (LWOP), or paid or unpaid parental leave at the Compliance Date, were given an extension to comply and were permitted to submit evidence of vaccination by their first duty, workday or shift back at work following the conclusion of the relevant leave period. The Vaccination Policy is otherwise silent as to whether a similar extension applied to employees on another form of leave, such as long service leave or annual leave. However, a document entitled Qantas Group COVID – 19 Vaccination Policy: Detailed Employee Q&A,[4] circulated to all employees with the Vaccination Policy, states that employees on other forms of leave, such as annual leave, long service leave or sick leave, were required to comply with the Vaccination Policy by the Compliance Date, unless an exemption had been granted.
On or around 10 November 2021, the Applicant commenced a 6-month period of long service leave until early May 2022. There is some discrepancy in the in the evidence about the date the Applicant’s long service leave commenced and was scheduled to conclude. There were discussions between the Applicant and various managers of the Respondent prior to the Applicant commencing her long service leave, including in relation to whether her long service leave would be approved or paid if she was not compliant with the Vaccination Policy. There is some dispute about what the Applicant was told during those discussions.
The Respondent contends that the Applicant was informed that she was still required to comply with the Vaccination Policy by 15 November 2021 notwithstanding the fact that she would be on long service leave on that date. The Respondent also contends that the Applicant was informed that any non-compliance would result in the initiation of a disciplinary process, and she would be contacted and presented with the options of ending her long service leave to participate in that process or participating in the disciplinary process at the end of her long service leave. The Applicant was not vaccinated by 15 November 2021, nor did she apply for an exemption.
On 17 November 2021, the Applicant received a letter headed “Non-compliance with the Qantas Group COVID – 19 Vaccination Policy” from her direct manager, Mr Jenkins (the Non-compliance Letter). The Applicant was informed that disciplinary action, including the termination of her employment, was being considered due to her failure to comply with the Vaccination Policy. The Applicant did not opt to end her long service leave to participate in the process, and was requested to provide a written response by 4 May 2022 as to why her employment should not be terminated.
The Applicant received her first dose of Novavax Vaccine on 19 April 2022. On 5 May 2022, the Applicant sent a response to the Non-compliance letter essentially stating that she did not believe that the Vaccination Policy applied to her while she was on long service leave and that she would be vaccinated when she returned to work. Also on 5 May 2022, the Applicant was invited to attend a meeting on 11 May to discuss why the Applicant’s employment should not be terminated based on her non-compliance with the Vaccination Policy. The Applicant was informed that if she did not attend the meeting, a decision would be made based on the information available. The Applicant declined to attend the meeting.
The Applicant received her second dose on 10 May 2021 and uploaded evidence of her vaccination status to Workday on the same day. By a letter dated 1 June 2022, the Applicant was notified of the decision that her employment was terminated effective immediately. On 5 June 2022, the Applicant lodged an internal appeal against the decision to terminate her employment and the appeal was dismissed on 22 June 2022.
In her Form F2 application and submissions, the Applicant contends that the dismissal was unfair because:
The Applicant had not experienced any prior disciplinary actions or engaged in any misconduct in her more than 15 years of service.
The Applicant had communicated with the Respondent her intention to be fully compliant with the Vaccination Policy by electing to be vaccinated with the Novavax vaccine, a protein-based vaccine, which became available in late February 2022.
The Applicant had conducted herself based on representations in a message in relation to her return to work.
Jetstar’s approach to the Applicant’s non-compliance with the Vaccination Policy was different from that in relation to Mr William Wilson, a pilot employed by Jetstar.
The Vaccination Policy did not accommodate the Fair Work Ombudsman Guidance which provides that employees on long service leave may be categorised as “tier 4 employees” who are not reasonably expected to report to the workplace while on leave.
The Applicant had endeavoured to comply with the Vaccination Policy “at every turn” and any breach of policy arose “due to miscommunication about its requirements”.
The Vaccination Policy does not deal with employees on long service leave thereby “creating confusion for the Applicant about what was required of her”.
The Applicant was on long service leave at the operative time when the Policy required her to be vaccinated and as such, there was “no operational requirement for vaccination” and any decision to terminate her employment based on vaccination status while she was on leave “must be unfair”.
In response, the Respondent contended that the Applicant’s dismissal was not unfair because the Applicant had failed to comply with the requirements of the Vaccination Policy without a reasonable excuse; as a corollary of a failure to comply with the policy, the Applicant had failed to follow a lawful and reasonable direction given to her by Jetstar; the premise of miscommunication and confusion advanced by the Applicant is a false one because the Applicant well knew that her long service leave did not exempt her from the Compliance Date and that she remained non-compliant; and by failing to comply with the Vaccination Policy and to follow a lawful and reasonable direction, the Applicant had also breached clauses 4.2(b), 5.2(b) and 5.4(f) of the Qantas Group’s Standard of Conduct Policy.
Procedural History
The matter was allocated to me for determination. I decided that it was appropriate to hold a hearing in this matter, having regard to the views of the parties together with the fact that a hearing would be the most effective and efficient way to resolve this matter. Directions were issued on 15 August 2022 for the filing and service of outlines of submissions and witness statements that the parties intended to rely upon at the hearing. The Directions also specified that witness statements are designed to take the place of evidence-in-chief and permission must be sought if evidence in addition to that set out in a witness statement, is sought to be advanced at the hearing.
The Applicant filed an outline of submissions and a witness statement[5] on 11 September 2022. In support of her position, the Applicant also provided witness statements from Mr William Wilson, [6] a Captain employed by Jetstar and Mr Matthew Carroll, a former employee of Jetstar and co-worker. Mr Carroll’s witness statement consisted of testimony in support of the Applicant’s character and work ethics and was not tendered into evidence as it did not relate to issues in dispute. On 14 October 2022, both the Applicant[7] and Mr Wilson[8] provided witness statements in reply to the material filed by the Respondent.
On 30 September 2022, the Respondent filed an outline of submissions. In support of its case, witness statements were also provided by the following persons:
Ms Elen Burt, Head of Industrial Relations, Group Policy and Planning for Qantas Airways Limited since 29 October 2018;[9]
Dr Peter Prasad, Head of Occupational Health for Qantas Health since June 2021 and previously the National Manager Health Services, Qantas Medical, from August 2016;[10]
Mr Matthew Franzi, Chief Operating Officer for Jetstar since 1 August 2022 and previously Executive Manager – Group Safety & Security for Qantas;[11] and
Mr Paul O’Brien, Senior Manager Jetstar Airports, since July 2016.[12]
In addition, the parties were directed to file written submissions addressing the matters in s. 596 of the Act in relation to whether permission should be granted for a party to be represented by a lawyer or paid agent. On 19 August 2022, both the Applicant and the Respondent filed submissions seeking permission to be legally represented. Having considered the parties’ submissions, I was satisfied that the matter involved some complexity, and it would assist the Commission to deal with the matter more efficiently if both parties were granted permission and that no issues of unfairness arose as both parties were represented by Counsel.
A hearing was initially listed for 24 and 25 October 2022 and the hearing dates were subsequently postponed to 18 and 21 November 2022, at the request of the Applicant’s legal representative. However, due to an illness suffered by the Applicant’s Counsel, a further request was made by the Applicant’s solicitors for the hearing to be postponed. A hearing was conducted in person on 4 December 2022.
At the hearing, the Applicant was represented by Mr. T O’Brien of Counsel instructed by Shine Lawyers, and the Respondent was represented by R Dalton KC and Mr M Minucci of Counsel, instructed by Ashurst. The Applicant’s Form F2 Application also indicates that it was prepared and lodged on behalf of the Applicant by Shine Lawyers. Ms Burt, Dr Prasad and Mr Franzi were not required for cross-examination and their evidence was tendered without objection. The Respondent did not require Mr Wilson for cross-examination and his statement was also tendered without objection. Mr Wilson’s statement was intended to support an argument of differential treatment, which was not ultimately pressed, and his witness statement was not relied on. An issue associated with the Applicant being advised that her red ASIC card was cancelled was also not pressed on the basis that it was accepted by the Applicant that this was a case of mistaken identity involving another employee named “Meagan” and the correspondence was sent to the Applicant in error, as outlined in the witness statement of Mr O’Brien.
Initial Matters
Section 396 of the FW Act provides that the Commission must be satisfied of certain initial matters before the merits of the application can be considered. There is no dispute between the parties, and I am satisfied on the evidence that:
the Application was made within the period required in s.394(2) of the FW Act;
the Applicant is a person protected from unfair dismissal;
the Respondent was not a small business employer at the relevant time; and
the dismissal was not on the grounds of redundancy and was therefore not a case of genuine redundancy.
Evidence
Background to the Vaccination Policy
Detailed and comprehensive evidence about the rationale for, and medical and epidemiological basis for the Vaccination Policy, its background, and the manner in which it was introduced, was given by Dr Prasad, Ms Burt and Mr Franzi. None of the evidence given by these witnesses was challenged in cross-examination and was received without objection. It is not necessary to rehearse that evidence in detail. In summary, Dr Prasad is a registered medical practitioner and the Head of Occupational Health, Qantas Medical, employed by Qantas Airways Limited (Qantas). Qantas Medical sits within Qantas’ Health & Human Performance, Safety Health & Security Services team and provides support to the Qantas Group, including Jetstar. Dr Prasad has been in the role since around June 2021. Over the course of the COVID-19 Pandemic, Dr Prasad held additional responsibility of clinical lead for the Qantas Group COVID Support Team. His additional responsibilities over the course of the Pandemic included occupational contact tracing, and the formulation and implementation of standards, policies, procedures and programs relevant to preventing COVID-19 in the workplace and addressing the potential harms.
Dr Prasad gave his evidence as a registered medical practitioner and a safety professional. His evidence was drawn from published medical evidence, Governmental publications, direct liaison with medical experts and Government Health Authorities, as well as his direct experience in dealing with the clinical, occupational health, and work health and safety aspects of the COVID-19 Pandemic as it pertained to the Qantas Group.[13] The medical and epidemiological evidence given by Dr Prasad about COVID – 19 and the efficacy of vaccination as a control measure, is consistent with the views of a five Member full Bench in Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd (Mt Arthur Coal)[14] and has been accepted in other Decisions of Members of the Commission dealing with cases involving Qantas and its subsidiaries[15].
At the time Dr Prasad made his statement, there were four COVID-19 vaccines available to adults in Australia that had been provisionally approved for use by the national regulator, the Therapeutic Goods Administration (TGA). The four vaccines were Comirnaty (Pfizer), Vaxzevria (AstraZeneca), Spikevax or Takeda (Moderna) and Nuvaxovid (Novavax). Nuvaxovid (Novavax) was approved for use on 20 January 2022 and requires two doses for completion of a primary course. Novavax was available from 14 February 2022. The recommended period between doses is 3 weeks.
Dr Prasad emphasised that the TGA only grants provisional approval for a vaccine after a complete assessment of all available data. Accordingly, the advice from the Australian Government at the relevant times (including the compliance date) was that vaccines approved by the TGA are safe for use and effective in preventing transmission and the consequences of the virus. Dr Prasad noted that as with all medicines, people can experience adverse effects from receiving a COVID-19 vaccine, however, serious adverse effects are very rare. An unvaccinated person is (and at all relevant times was) more at risk of being harmed by contracting the virus than receiving a COVID-19 vaccine when considering the number of COVID-19 cases in the community and the transmissibility of the virus.
Dr Prasad said that although a vaccinated person can still contract the virus, the protective benefits of receiving the COVID-19 vaccine far outweigh the potential risks of suffering serious health consequences and the likelihood of transmitting the virus to other persons. COVID-19 vaccines are safe for use and have an effect in preventing infection, symptomatic disease, hospitalisation and death. Vaccination against COVID-19 is the most effective and efficient control measure available to prevent the serious health consequences of the virus. Depending on the strain, a person who is vaccinated against COVID-19, in comparison to an unvaccinated person, is less likely to become infected with COVID-19 and less likely to transmit COVID-19 to others. For all known strains, a vaccinated person is substantially less likely to suffer serious health consequences, including death, than an unvaccinated person.
Ms Burt is the Head of Industrial Relations, Group Policy and Planning for Qantas Airways Limited and has been in the role since 29 October 2018. In her current role, Ms Burt is responsible for coordinating and implementing decisions in accordance with the Qantas Group Human Resources policy framework. Ms Burt was also involved in the development of the Qantas Group COVID-19 Vaccination Policy, together with a working group comprising Subject Matter Experts (SMEs) from across the business, including representatives from Medical, Safety, Human Resources (HR), Industrial Relations (IR), Legal and Government Affairs.
Mr Franzi is the Chief Operating Officer for Jetstar since 1 August 2022, reporting to the Chief Executive Officer of Jetstar Group. Mr Franzi described his current role as being responsible for the safe conduct of Jetstar’s Australian air transport operation. From November 2019 to March 2021, Mr Franzi held the role of Executive Safety Manager for Qantas and was involved in the development of the Qantas Group’s COVID-19 Vaccination Policy, working together with a group of Subject Matter Experts (SMEs) from across the business, including representatives from Qantas Medical, Human Resources, Industrial Relations, legal and government relations. Safety is described by Mr Franzi as “the number one priority” of the Qantas Group.
Ms Burt stated that the Qantas Group comprises a range of business operations and corporate entities, including Jetstar; the associated airlines business which includes regional airlines operating under the name QantasLink as well as other airlines, such as Network Aviation and National Jet Systems; the Qantas Ground Services business which provides ground services within the Qantas Group; and Qantas Freight which provides air freight services. Across these businesses, entities within the Qantas Group employ employees in a diverse range of roles and functions, including pilots; cabin crew; aircraft engineers; ground operations staff; customer service; store persons; and corporate or head office employees.
The Qantas Group operates across all States and Territories in Australia as well as in other countries. Mr Franzi noted that while there is a myriad of legislation that applies across different Australian States and Territories, the primary obligations are consistent. Under the Qantas Group Safety Management Framework, Jetstar and other persons within the Qantas Group conducting a business or undertaking, are required to take reasonable care of the health, safety and welfare of its workers, other staff, such as contractors and volunteers, and other persons at the workplace, such as customers and visitors.
Dr Prasad explained that since the beginning of the pandemic, aviation (including the Qantas Group’s operations) had been considered a particular vulnerability for the potential movement of COVID-19 from regions of higher prevalence to regions where COVID-19 was minimal to non-existent. Ms Burt said that the COVID-19 Pandemic has had a devastating impact on the Qantas Group’s business and operations. The imposition of various domestic and international travel restrictions resulted in the Qantas Group experiencing a significant, and at some stages, near total, reduction in air travel from mid-March 2020. The financial impact was said to have been significant. Since the beginning of the Pandemic, the Qantas Group has implemented a raft of COVID-19 safety measures to protect staff and customers from the health and safety risks posed by the Pandemic, with a view to building business resilience, mitigating the impact of the Pandemic on operations, and increasing customer confidence in flying.
Mr Franzi described a range of programs and policies including a permanently staffed COVID-19 Support Team, dedicated to helping employees of the Qantas Group manage the Pandemic by answering queries in relation to COVID-19 received from employees across the Qantas Group; providing wellbeing support and guidance to workers generally and those particularly impacted by isolation or quarantine requirements; providing support for vaccination bookings and priority access for Qantas Group employees at State and Territory vaccination hubs; and providing information of how to access leave in circumstances associated with COVID-19, such as a confirmed diagnosis of the virus or the inability to perform work due to restrictions associated with the contracting the virus. Dr Prasad explained that control measures implemented by the Qantas Group were designed to reduce the likelihood its workforce and customers becoming infected with the virus. The Qantas Group went to great lengths to implement these control measures because of the significant health consequences the virus posed to individuals who contracted it, as well as the significant operational consequences of COVID-19 in the workplace. Dr Prasad was also aware that up until 26 November 2021 (i.e. the pre-Omicron period), approximately 190 Qantas Group employees were known to have contracted COVID-19. Some of them suffered severe outcomes and, tragically, one died.
Mr Franzi stated that notwithstanding the implementation of safety or control measures against COVID-19, Qantas strongly believed that vaccination against COVID-19 remained critical for its people, customers, ongoing operations and for aviation more broadly and was identified as a reasonable additional control and as the best possible protection against the adverse impacts of COVID-19, including on operational continuity and the business.
During this period, when vaccination rates were very low, Dr Prasad stated that whenever a person may have been infectious in the workplace, rigorous procedures had to be enacted to ensure that workplace transmission was eliminated or minimised. Dr Prasad estimated that the handling of each positive workplace case required 20 hours of work spread across 10 responsible management employees. Mr Franzi gave evidence of a COVID-19 outbreak at the Melbourne Freight Terminal in August 2020 resulting in many employees, suppliers and contractors being classified as close and casual contacts, and ultimately resulting in the entire Freight Terminal being shut down.
Aside from the mitigating the adverse impacts of COVID-19, Ms Burt further explained that the nature of the operations across the Qantas Group, and the locations at which work is required to be performed including, for example, at an airport, inside an aircraft and inside freight terminals, meant that a large number of employees were or had been subject to government issued public health orders and directions regarding COVID-19 (Public Health Orders and Directions). Ms Burt said that the Public Health Orders and Directions have been subject to change frequently with little or no notice, including the introduction of additional public health measures, such as mandatory vaccination requirements. The lack of a uniform approach across the States and Territories and the patchwork approach to differing requirements, introduced complexity for the Qantas Group, given the nature of its operations and the way in which employees interacted across the network.
Consequently, the Qantas Group was not able to know whether any or all Public Health Orders and Directions would change at any point in the future to introduce new or different mandatory vaccination requirements. For that reason, employing entities across the Qantas Group, including Jetstar, were not able to know which of their employees might be required to comply with any of those requirements or when they might be required to comply with those requirements. Substantial sections of the workforces (such as flight and cabin crew), were required to comply with more than one Public Health Order or Direction, given the nature of their work.
Further, Ms Burt said that the introduction of the policy was to achieve several objectives, including providing employees of the Qantas Group and customers with consistency of protection against COVID-19, avoiding potentially serious health consequences as well as minimising other adverse impacts on operational continuity, disruption to the essential services provided by Qantas and the spread of COVID-19 in circumstances where employees of Qantas Group entities interacted with each other and large volumes of people on a regular basis, including with those who are vulnerable, and where the business involved constant travel across interstate and international borders.
In developing the Vaccination Policy, Ms Burt said that she worked with a working group of SMEs from across the Qantas Group. The SMEs provided input based on their area of expertise including, COVID-19 vaccinations and safety and health matters. Dr Prasad stated that Qantas Medical was involved as SMEs in the formulation of the Policy and associated employee guidance materials by researching current medical evidence and formulating recommendations based on the current evidence. Members of the working group also liaised with government departments and bodies, including the Australian Technical Advisory Group on Immunisation (ATAGI), on issues such as the approval of, and access to, various COVID-19 vaccines. Further, Ms Burt stated that the development of the policy was also influenced by the various forms of consultation the Qantas Group had engaged in with its workforce.
In this regard, extensive consultation was undertaken via a survey of some 20,000 employees, COVID – 19 Vaccination Consultation Survey (Consultation Survey), which was conducted on and from 28 July, and an Employee Q&A – Vaccines and Vaccine Survey (Vaccine Survey), outlining the intent of the survey as a means of consultation and how the information would be used.[16] The Vaccine Survey which was in Q&A form, posed a question as to whether it was a requirement that all employees are vaccinated and a response that this was not currently a requirement and went on to set out directives and mandates then applicable or foreshadowed in Australia and New Zealand. The Vaccine Survey also prosed a question as to whether Qantas would make vaccination a requirement if the Government does not, and the response stated that: “It’s certainly something we will consider” and that it would make sense to ensure there is a high rate of vaccination among all our employees. The covering document sent with the Consultation Survey indicates that the Qantas Group is considering how the approved COVID – 19 vaccines might be used to improve health and safety at work. The Consultation Survey gave employees the opportunity to respond to a series of questions and they were able to submit free-text responses to 2 questions. Question 3 asked: “Do you believe the vaccine should be a requirement” and then set out various options in relation to the kinds of staff including an option “Should not be a requirement for any staff within the Qantas Group”. The free text questions were as follows: Question 5 of the Consultation Survey asked, “Do you have any other concerns about vaccination?” and Question 6 asked, “If the Qantas Group was to require COVID-19 vaccination in some or all work groups, do you have any health and safety issues you would like to raise about that requirement and how that requirement could be implemented?”
The common themes which came out of the free-text responses were escalated to the vaccination policy working group of which Mr Franzi was a member, for consideration and some of the themes led to amendments to a draft Policy that was published on 18 August 2021 (Proposed Policy) or resulted in additional information sessions being held on specific issues or themes that were raised as part of consultation including access to vaccines, reasonable additional timeframes for compliance where employees could not access approved vaccines, impact of vaccines on fertility, pregnancy and breastfeeding and recognition of vaccines in other countries.
Ms Burt’ evidence was that the Qantas Group received approximately 12,000 responses[17] to the survey and the survey results were communicated to employees on 18 August 2021,[18] noting the following:
(a) 89 per cent of employees who took part in the survey indicated that they were already partially or fully vaccinated or had plans to be fully vaccinated;
(b) 4 per cent said they were unwilling or unable to get the vaccine; and
(c) around three quarters of those who responded to the survey believe that vaccination is a necessary step and would also feel concerned about working with individuals who are not vaccinated.[19]
Around 3 out of 4 people who responded, said that it should be a requirement for all employees to be vaccinated and that they would be concerned if their fellow employees were not vaccinated.[20] Ms Burt said that the figure increased to over 80% of respondents agreeing with this proposition in relation to staff in a customer facing role and staff working in international and domestic operations. A proposed Policy was then developed by the Qantas Group which was the subject of further consultation, including with health and safety representatives.
The Proposed Policy was published by the Qantas Group on 18 August 2021. A copy of the Proposed Policy was made available on the Jetstar intranet site. A covering email sent with the Proposed Policy stated in bold font, that the feedback received from Jetstar and Qantas team members had strengthened the Group’s view that making COVID – 19 vaccinations a requirement for all Qantas Group employees is the right decision. Essentially, the communication sent with the proposed policy makes clear the likelihood that it will be implemented. Following the release of the Proposed Policy, additional consultation was undertaken by the Qantas Group from 18 August 2021 until 17 September 2021, with employees, HSRs and unions about the Proposed Policy. On and from 18 August 2022, the Qantas Group maintained and made available via the Jetstar intranet site a set of “General COVID-19 Vaccinations Q&As, updated iteratively to address questions raised during consultation by employees and HSRs and discussions with unions. The updated General COVID-19 Vaccinations Q&As remains available to all employees on the Jetstar intranet site.
Mr Franzi noted that when employees were notified by email on 20 September 2021 that the Policy had been finalised, the email also confirmed how the feedback received from the consultation had influenced the final Policy and outlined changes to the Policy in this regard including paid time off to get vaccinated, additional leave for employees who were not fit for work after vaccination, and the opportunity to apply for temporary and ongoing exemptions, including temporary exemptions if an employee had limited access to vaccines because of where they lived.[21] Before making the decision to implement the Policy, the Qantas Group also conducted a risk assessment addressing a number of hazards including COVID-19 in the community and vaccination against COVID-19, which was provided to health and safety representatives to assist them in the discussions about the Proposed Policy and capturing any additional risks relevant to their workgroups.
In around April 2020, the Qantas Group also implemented a COVID-19 Support Policy which set out the support measures available to employees to manage COVID-19. Amendments were made to the Support Policy in around June 2021 to provide access to paid time off work to attend vaccination appointments. The COVID-19 Support Policy was in place at the time of the Applicant’s dismissal. At all relevant times, Ms Burt explained that employees were generally able to attend two appointments (up to four hours on each occasion as required) under the COVID-19 Support Policy for the purpose of receiving the COVID-19 vaccine during their paid work hours, subject to operational requirements and with different requirements in place for work groups such as cabin crew and pilots.
The Vaccination Policy
The Vaccination Policy was finalised and formally introduced by the Qantas Group on 20 September 2021 and employees of the Qantas Group were accordingly informed by email on that date. Specifically, Ms Burt noted that the email was also sent to “Jetstar Airways team members based in Australia”[22] confirming the Policy had been finalised and was now in place. Ms Burt explained that in that email, employees were also directed to and provided with two documents that accompanied the Vaccination Policy, namely:
(1) the Qantas Group COVID-19 Vaccination Policy – Detailed Employee Q&A (Detailed Q&A) which was updated on 14 October and 1 November 2021; and
(2) the Exemptions Q&A – Qantas Group COVID-19 Vaccination Policy (Exemptions Q&A).
Section 1 of the Vaccination Policy sets out the scope of its application. Section 1.1 provides that the “COVID-19 Vaccination Policy (Policy) applies to Australia-based Employees of the Qantas Group, unless otherwise specified. All Qantas Group Business Units within Australia are required to comply with this Policy in its entirety”. “Employee” is defined to mean “a person who has a contract of employment with a Company in the Qantas Group.” “Entity/Business Unit” is defined to mean “a distinct business area within the Qantas Group (e.g. Qantas Airlines, Jetstar, etc)”. While the Vaccination Policy applies to Australian-based employees, it does not apply to independent contractors, suppliers or offshore employees of the Qantas Group as they were subject to a different policy or other vaccination requirements. Section 1.5 of the Policy provides as follows:
“This Policy replaces and supersedes all prior agreements and understandings on this matter including (but not limited to) the Coronavirus (COVID – 19) Manager Guidelines, the COVID – 19 Support Policy and the COVID – 19 Vaccination Employee Q&A, unless expressly stated otherwise in the Policy.”
Section 3 is headed “Employee COVID-19 Vaccination Requirements”. Relevantly, Section 3.1 states that:
“3.1 All Employees are required to be fully vaccinated with an Approved COVID-19 Vaccine and provide the Company with Evidence of Vaccination within the timeframes set out in 3.4 below. The timeframes in 3.4 have been set in accordance with current general community accessibility and individual eligibility, as well as priority access for some aviation workers, and may be amended at the Company’s discretion from time to time.”
“Approved COVID-19 Vaccine” is defined to mean “a vaccine against COVID-19 that has been approved (including provisionally approved) by the Therapeutic Goods Administration or endorsed by the World Health Organisation. For the avoidance of doubt, fully vaccinated with an Approved COVID-19 Vaccine means that the complete course of vaccination has been undertaken. The number and timing of doses differs depending on the brand of COVID-19 vaccine used.”
Sections 3.3 and 3.4 detail the requirements and timeframes in relation to the Compliance Date by which employees were required to comply with the Vaccination Requirements in accordance with section 3.1. Relevantly, these sections state as follows:
“3.3 The table in 3.4 below sets out the date by which Employees must be fully vaccinated with an Approved COVID-19 Vaccine and provide the Company with Evidence of Vaccination (Compliance Date). In limited circumstances where an Employee lives (or works) in a jurisdiction or location where an Approved COVID-19 Vaccine has not been available to them such that they cannot meet the relevant Compliance Date, they may be provided with reasonable additional time to be vaccinated against COVID-19. In these circumstances, the Compliance Date will be varied on the basis of the timing of Approved COVID-19 Vaccine availability in their jurisdiction or location. Employees will need to submit an application for a temporary exemption (including providing reasons for their request and relevant supporting documentation) via the exemption process in place at the relevant time, which will be notified to Employees.
3.4 Requirement for vaccination and provision of Evidence of Vaccination
Workgroup Compliance Date – Full Vaccination and Evidence of Vaccination Category A 1. Employees who hold or are required to hold a Red ASIC to perform their role; and
2. Frontline and operational Employees who are not Red ASIC holders but work and/or are based in any of the following*:
· Airports (above and below wing) and Lounges;
· Engineering;
· Operational Centres (IOC, ROC and JOCC)
· Ground Transportation; and
· Freight Terminal Operations.
*(2) excludes Employees who work in Airports, Engineering and Freight and are based at Head Office in Mascot or Collingwood.
15 November 2021 Category B All other employees 31 March 2022
As noted above, employees on SLWOP, LWOP or parental leave at the Compliance Date or stood down, were required to comply with the vaccination requirements on a date other than the Compliance Date set out in section 3.4. Sections 3.5 and 3.6 provide that:
“3.5 Employees who are stood down will be required to be fully vaccinated with an Approved COVID-19 Vaccine and provide Evidence of Vaccination by the Compliance Date or their first duty, work day or shift, whichever is later.
3.6 Employees who are on Special Leave Without Pay (SLWOP), Leave Without Pay (LWOP) or paid or unpaid parental leave at the Compliance Date are required to be fully vaccinated with an Approved COVID-19 Vaccine and provide Evidence of Vaccination by their first duty, work day or shift back at work after the completion of SLWOP/LWOP or parental leave.” (emphasis added)
Section 6.1 requires employees “to provide Evidence of Vaccination by completing the Workday form capturing their COVID-19 vaccination data and uploading approved vaccination certificates via the prescribed Workday Self-Service facility.” Section 4 deals with requests for exemption to vaccination, noting that exemptions will only be granted in “very limited (if any) circumstances”. Under section 4.2:
“4.2 Employees who:
(a) are unable to be vaccinated by the Compliance Date or at all due to a temporary or permanent Medical Contraindication to Vaccination; or
(b) are seeking an exemption from the requirement under the Policy to be fully vaccinated with an Approved COVID-19 Vaccine by the Compliance Date or on an ongoing basis on other grounds (medical or non-medical grounds), are required to submit an application for a temporary or ongoing exemption (as applicable) not later than six (6) weeks prior to the Compliance Date applicable to the Employee. Employees will be required to submit the application (including providing reasons for their request and relevant supporting documentation) via the exemption process in place at the relevant time, which will be notified to Employees.”
Section 4.3 states that exemption will be assessed on a case-by-case basis, having regard to “(a) the nature and requirements of the Employee’s role, including whether there is likely to be interaction with people with vulnerabilities in connection with their employment; (b) the risks of exposure (for the Employee and others) to COVID-19; and (c) the overall purpose and scope of the Policy.”
Section 6.2 and 6.3 sets out the way personal or sensitive information of the employees would be handled and stored by the Company in accordance with privacy legislation. Section 5.2 stipulates that under the Vaccination Policy, it is the responsibility of employees to be “fully vaccinated with an Approved COVID-19 Vaccine”, provide “Evidence of Vaccination on or before the Compliance Date”, submit “an application for an exemption from the requirement under the Policy to be fully vaccinated with an Approved COVID-19 Vaccine within the timeframes and in the manner specified in section 4 of the Policy”, and notify “their Manager or their HR representative if they are otherwise unwilling or unable to comply with the Policy by the Compliance Date or at all.”
Section 3.13 addresses the consequences of non-compliance with the Vaccination Policy and states as follows:
“3.13 Noncompliance with requirements
(a) Employees must comply with the requirements under this Policy to be fully vaccinated with an Approved COVID-19 Vaccine and provide Evidence of Vaccination.
(b) Employees who are unable to comply with the requirements of the Policy because of Medical Contraindications (or are seeking exemptions on other medical or non-medical grounds) should refer to section 4.
(c) Employees who do not comply with the requirements of the Policy (except those Employees granted an exemption under section 4) will be considered to have not complied with a lawful and reasonable direction. They may be subject to disciplinary action, which, in the circumstances, is likely to be termination of their employment.”
Detailed Q&A
In addition to the Vaccination Policy, employees were provided with access, via a link in the email by which they were advised of the Policy, to a document headed Qantas Group COVID-19 Vaccination Policy – Detailed Employee Q&A (Q&A). The Q&A document was said “to assist Qantas Group Australia-based employees to understand the requirements of the Qantas Group COVID-19 Vaccination Policy (Policy), which was introduced on 20 September 2021”.[23] Employees were encouraged “to read this Q&A document in full because it contains comprehensive information regarding the requirements of the Policy”.[24]
Relevantly, Questions 14, 15 and 16 provided further information in relation to the Compliance Date and employees who were on various forms of leave on that date, including annual leave, long service leave or sick leave. These questions and answers are set out below:
“14. I am currently stood down. If I am still stood down on the Compliance Date applicable to me, when will I need to comply with the Policy?
If you are stood down on the Compliance Date applicable to you, you will need to comply with the requirements of the Policy by your first duty, work day or shift.
15. I will be on SLWOP/LWOP or paid or unpaid parental leave on the Compliance Date that is applicable to me. When will I need to comply with the Policy?
If you are on SLWOP/LWOP or paid or unpaid parental leave until after the Compliance Date applicable to you, you will need to comply with the requirements of the Policy by your first duty, work day or shift back after completion of SLWOP/LWOP or parental leave.
16. If I am on another form of leave on my Compliance Date (e.g. annual leave, long service leave or sick leave), when do I have to comply?
You will need to comply with the requirements under the Policy by the Compliance Date applicable to you (that is, either 15 November 2021 if you are in Category A or 31 March 2022 if you are in Category B), unless you have been granted an exemption by the Company under the Policy.”
If the preference of the employee is to be vaccinated with the Novavax vaccine, Question 20 states that:
“20. My Compliance Date under the Policy is 15 November 2021. I would prefer to be vaccinated with the Novavax vaccine. Will I be able to wait until becomes available?
You will need to meet the Compliance Date of 15 November 2021, unless an exemption is granted. To date, the TGA has provisionally approved the Pfizer, AstraZeneca and Moderna vaccines. Pfizer and AstraZeneca are currently available, and Moderna will start to become available from late 2021.
As at 20 September 2021, the Novavax vaccine has not been approved by the TGA nor endorsed by the WHO and is not available in Australia (or any other country). If Novavax is approved by the TGA, it is currently expected that the majority of doses won’t start to become available until around January 2022 and it is not known who will have priority access to it.
If you have a demonstrated reason for being unable to be vaccinated with any of the currently approved and available vaccines, you will need to submit an exemption request, which will be considered on a case by case basis. However, we expect that it would be very rare that a person would be unable to get any of the currently approved and available vaccines.
The TGA provisionally approved the Pfizer, Astra Zeneca and Moderna vaccines after a complete assessment of all the available data. This is the same process as any vaccine approved in this country. The TGA will only register and approve a COVID-19 vaccine if it is safe and effective. It’s important to note that an evaluation under the provisional pathway is still a full review. No part of the process has been rushed, and there was no emergency authorisation granted.”
The Applicant’s Case
The Applicant commenced employment with the Respondent as a Customer Service Officer in 2007. In or around 2010, she was appointed to the position of Passenger Service Manager (PSM) and has worked as an Airport Duty Manager (ADM) or PSM until her termination on 1 June 2022. The Applicant stated that for most of her employment with the Respondent, she was based out of Cairns, however in or around February 2020, she was offered a secondment position at Brisbane Airport to fill an ADM role. In or around June 2020, the Respondent made several operation staff redundant, and in this process, the Applicant was successful in securing a permanent position as an ADM at Brisbane Airport.
In or around August 2021, the Applicant recalled completing a survey that Qantas put out to the staff in relation to the COVID-19 vaccination, requesting that staff confirm whether or not they were willing to be vaccinated against COVID-19. The Applicant said that on 31 August 2021, she applied for 6 months of long service leave (LSL) at half pay, commencing on 15 November 2021. The Applicant stated that she wanted to use this period of LSL as an opportunity to head back to Cairns for her daughter’s graduation and to relocate her family to Brisbane, as her family had still been based in Cairns while she worked in Brisbane. During her period of LSL, the Applicant did not return to Brisbane Airport, and was either on the Gold Coast or in Cairns. On 20 September 2021, the Applicant recalled that the Qantas Group sent “a generic email” to all Qantas Group staff implementing the Vaccination Policy. The Applicant understood that the Vaccination Policy required that staff with red ASIC must be fully vaccinated against COVID-19 by 15 November 2021, and head office staff must be fully vaccinated against COVID-19 by 31 March 2022.
On 19 October 2021, the Applicant received a Facebook Message from her direct Manager, Mr Craig Jenkins, Port Manager – Brisbane Airport Service, confirming that the Applicant’s LSL was approved and that she was not rostered to return to face-to-face work until after 1 May 2022 when her intended period of long service leave was scheduled to conclude. On 5 November 2021, prior to the commencement of her shift, the Applicant received a telephone call from Mr Jenkins. According to the Applicant, Mr Jenkins said words to the effect that “circumstances have changed in respect of your long service leave application and you will need to apply for special leave without pay or leave without pay. As you aren’t vaccinated the business will not be in a position to pay you your entitled long service leave”. The Applicant recounted that on 5 November 2021, she was concerned that her application for long service leave had been declined because of Mr Jenkins’ comment that she was required to “take SLWOP or LWOP”. The Applicant also stated that it was unclear to her what the relationship was between the Detailed Q&A and the Vaccination Policy. As a result, the Applicant sent a follow-up email to Mr Jenkins, resulting in the following exchange. At 4.43pm on 5 November 2021, the Applicant wrote:
“Hey Craig,
Just following up on the conversation we had this morning, which has caused me a huge amount of anxiety – I can’t seem to find anywhere in the policy that I am required to be vaccinated if I am on LSL. My understanding is that as long as when I return I am vaccinated – Would you have reference to where I can find it?”
I am also most upset that all my staff have been taking away from me in Workday when my last shift isn’t until 09th Oct – is there reason for this?”
At 5:11pm, Mr Jenkins replied to the Applicant stating the following:
“Hi Megan,
I have just (sic) through the policy and it appears to be pretty clear on Paid and Unpaid Leave.
COMPLIANCE DATES
14. I am currently stood down. If I am still stood down on the Compliance Date applicable to me, when will I need to comply with the Policy? If you are stood down on the Compliance Date applicable to you, you will need to comply with the requirements of the Policy by your first duty, work day or shift.
15. I will be on the SLWOP/LWOP or paid unpaid parental leave on the Compliance Date that is applicable to me. When will I need to comply with the Policy? If you are on SLWOP/LWOP or paid or unpaid parental leave until after the Compliance Date applicable to you, you will need to comply with the requirements of the Policy by your first duty, work day or shift back after competition of SLWOP/LWP or parental leave.
16. If I am on another form of leave on my Compliance Date (e.g. annual leave, long service leave or sick leave), when do I have to comply? You will need to comply with the requirements made under the Policy by the Compliance date applicable to you (that is, either 15 November 2021 if you are in Category A or 31 March 2022 if you are in Category B), unless you have been granted an exemption by the Company under the Policy. [emphasis in original]
…
Given the text about (sic) granted an exemption, I would suggest you at least submit an exemption request for consideration.”At 5:27pm, the Applicant replied to Mr Jenkins stating that:
“Is this written in the policy or just a Q&A below? – As I can’t find anywhere in the policy reference to annual leave, sick leave or LSL.
3.6 is the only reference to leave and that is SLWOP, LWOP or parental leave.
I will follow your suggestion and submit a temporary exception on the grounds that I won’t be in the workplace for the next 6 months – I applied for my LSL on the 31 August and the policy was implemented on the 20th September.”
The Applicant did not apply for an exemption. The Applicant said she did not receive a response from Mr Jenkins to her email because Mr Jenkins had commenced annual leave. Between 6 November and 9 November 2021, the Applicant was unfit for work and provided a medical certificate. On 6 November 2021, the Applicant sent an email to Mr O’Brien, her next level Manager, enquiring about her long service leave. The Applicant and Mr O’Brien had the following exchange of emails between 6 and 9 November 2021. At 1:09pm on 6 November 2021, the Applicant wrote:
“Good afternoon Paul,
I am writing in regards to my LSL – I was informed by Craig yesterday by phone that as I wasn’t vaccinated that the business will not be in a position to pay me my entitled LSL that I applied for on the 31st August (INC-1633871) and approved on the 19th Oct at 14:03. It was suggested I apply for an exemption or SLWOP.
My leave was approved, and I don’t believe I am being unfair or unreasonable in taking my entitled leave – to be advised 4 days prior to my last shift has caused me a huge amount of anxiety and stress.
I have been very transparent and honest with the business in regard to my position on the vaccination.
My last day in the workplace was the 09th November and the mandatory vaccination commencing the 15th November for Category A and Category B the 31 March 2022.
My question is my leave was approved after the policy was implemented on the 20th September, so why now is it being declined?
Where in the policy does it make reference to LSL, sick leave or annual leave?
Why have I only been informed of this 4 days prior to my leave commencing?
Why do I need to be vaccinated when I won’t be in the workplace for 6 months?
What is the resolution moving forward in me taking my 6 months half pay LSL.”
At 6:14am on 9 November 2021, Mr O’Brien replied to the Applicant’s email and stated the following:
“Hi Megan,
Thank you for reaching out to me in Craig’s absence.
From reading your email below it appears there may have been a misunderstanding. I can confirm that your request for Long Service Leave (LSL) from 10 November 2021 is approved and remains as such.
My understanding of what Craig was communicating to you on Friday was that as a Red ASIC holder or other operational or frontline employee, you must comply with the COVID-19 Vaccination Policy (the Policy) by 15 November 2021, which requires you to be fully vaccinated with an Approved COVID-19 Vaccine and to upload a copy of your Evidence of Vaccination in Workday. Employees who are on periods of approved planned leave (i.e. Annual Leave or LSL) are still required to comply with Qantas Group and Jetstar Policies, including the COVID-19 Vaccination Policy, and as such you are required to comply with the Policy by the relevant compliance date”
General
For further information regarding the Qantas Group COVID-19 Vaccination Policy, please refer to the General COVID-19 Vaccinations Q&A and the Qantas Group COVID-19 Policy Detailed Q&A (available JEN). If you would like further information on COVID-19 and vaccinations generally, the dedicated COVID-19 and COVID-19 Vaccination pages on JEN contain an array of information that can assist employees.
…”At 8.50am on 9 November 2021, the Applicant replied to Mr O’Brien’s email as follows:
“Morning Paul,
Many thanks for your reply – just confirming, if I’m not fully vaccinated by the 15th November I won’t be paid my LSL?”
The Applicant said that Mr O’Brien’s email of 9 November 2021 failed to address her questions as to why she needed to be vaccinated when she was not required to be in the workplace for a period of 6 months while on long service leave. On 11 November 2021, a response was provided by Mr O’Brien to the Applicant’s email. Mr O’Brien stated that:
“Hi Megan,
I can confirm that while you are accessing your approved period of Long Service Leave (LSL), you will be paid regardless of your vaccination status while on that leave.
I want to be completely transparent with you that should you not be compliant with the COVID-19 Vaccination Policy (the Policy) by the relevant compliance date (15 November 2021) you should expect to receive a call from Craig to advise you of the next steps in relation to your non-compliance and the process. During this call you will be given the option to elect to revert to your LSL and go through the relevant process or you can complete you period approved LSL as planed and when you are due to return to work, you will be directed to not attend work and go through the process. In short, the disciplinary process would go on hold while you are on LSL. Further details in relation to the process and your options will be communicated to you next week.
Again, I want to confirm that your LSL will be paid while you are accessing it.”
On 15 November 2021, the Applicant commenced long service leave as planned. On 16 November 2021, the Applicant received numerous calls from Mr Jenkins which she declined to answer. Mr Jenkins then followed up with text messages and the Applicant had the following exchange with Mr Jenkins:
“Craig Jenkins: Hi Megan, I just need to further discuss the Qantas Covid Vaccination Policy, your LSL and options. If you can call me back thanks. Craig.
The Applicant: Hi Craig, I appreciate your call – if you would be kind enough to pop it all in an email. I have been very transparent and honest with the [sic] you and would prefer everything via email – as you can understand this is causing me anxiety.
Craig Jenkins: My call is merely to ascertain the option Paul went through with you relating to your LSL approved to 01 May 22. I would hope to conclude the call in a few minutes.
The Applicant: Paul never through an options [sic] with me Craig…I can send you all email correspondence from Paul. If you would be [sic] enough to send me the options via email.
Craig Jenkins: I will respect your request and pass it back for advice. Being honest accepting the call is in your interests as I can go through the options and answer your questions rather than go back and forwards on emails.
Craig Jenkins: Please send through Paul’s Comms [sic] and I will review. He was going to but has overlooked it as it’s quite busy right now.
Craig Jenkins: Did you not have a phone conversation with Paul or Stephanie last week after I spoke with you.
The Applicant: No, I haven’t had a phone conversation with anyone but you on Friday the 05th – I will send through what Paul has sent me.
Craig Jenkins: Paul’s email is basically explaining your 2 options which answer most of your previous questions.
Craig Jenkins: I’m just on a HQ call and will come back to you shortly.
Craig Jenkins: The decision on LSL option changed after my last call with you.
Craig Jenkins: I will respect your request for email, however if Paul’s previous email is not clear you should be calling me so I can explain how this works with your LSL. Regards Craig.
The Applicant: Thanks Craig – Your email yesterday confirmed that I was on half pay LSL until the 01st of May and Paul’s email states from 01st May I’m not to return and go through the process.
Craig Jenkins: That’s correct, I just need your acceptance that is your preference.
The Applicant: What they [sic] I will be disciplined on my return? – the email doesn’t state what the relevant process is.
Craig Jenkins: I’m only looking to establish if you are preferring option to return from leave now and go directly into the process or wait until the 04th of May 2022. Paul is assigned to receive your response and take over the process.
The Applicant: My question is what’s the process?
Craig Jenkins: It’s all in the letter I will send you. Just need to confirm your opting to stay on LSL and the process will be a show cause as your [sic] non-compliant.
The Applicant: Thanks – I will wait for the letter.”
In response to the Mr Jenkins’ comment that Mr O’Brien had addressed most of her questions, the Applicant said that Mr O’Brien had not addressed her key questions as to why she was required to vaccinated when she was not required to be in the workplace for a period of 6 months while on long service leave. The Applicant stated that this did not make logical sense to her if the purpose of the Policy was to provide the Respondent’s employees and customers with protection against COVID-19 on Company premises and in other environments where face to face contact was required. The Applicant further stated that she did not understand the reason why the type of leave would be relevant. Her position was that if an employee was not at work on SLWOP, LWOP or parental leave, there was no logical difference from being away on long service leave. The Applicant said that it was also unhelpful to have changing information about her leave status, disciplinary risk and process, along with the failure to explain, and all at the last moment, when her long service leave had been approved weeks earlier.
The Applicant received an email on 17 November 2021 attaching a letter headed “Non-compliance with the Qantas Group COVID-19 Vaccination Policy” from Mr Jenkins. Relevantly, the Non-compliance letter stated:
As an employee of the Company, the Applicant was required to comply at all times with Qantas Group policies, procedures and manuals and with all lawful and reasonable directions issued to her;
Under the Vaccination Policy, the Applicant was required to be vaccinated with an Approved COVID-19 Vaccine and provide Evidence of Vaccination via Workday by the compliance date applicable to her, being 15 November 2021;
The Policy constituted a lawful and reasonable direction. The Applicant was notified of the Policy, and provided with a link to it, on 20 September 2021 via email;
Notwithstanding those reminders, as at the date of the letter, there was no record of the Applicant providing Evidence of Vaccination via Workday as required by the Policy;
The Applicant would be considered to have not complied with a lawful and reasonable direction;
The Applicant’s failure to comply with the Policy also constitutes a serious breach of the Qantas Standards of Conduct Policy, including clause 4.2(b), which requires employees to be aware of and comply with all Qantas Group policies; clause 5.2(b), which requires employees to comply with all applicable Qantas Group policies, procedures, guidelines and rules as amended from time to time; and clause 5.4(f), which requires employees to follow reasonable and lawful directions.
the Company was considering disciplinary action against the Applicant which might be the termination of her employment;
the Applicant was requested to provide a written response as to why her employment should not be terminated, to Mr O’Brien by 5.00pm on 4 May 2022;
The Applicant was directed not to attend work at the conclusion of her period of LSL on 1 May 2022 until further notice from the Company.
The Applicant said that the Letter did not explain to her why she needed to be vaccinated when she was not required in the workplace during her 6 months of long service leave or why long service leave was treated differently to SLWOP, LWOP or parental leave. On or around 28 January 2022 the Applicant completed a rapid antigen test (RAT) which confirmed that she had contracted COVID-19. On 1 February 2022, the Applicant registered her positive COVID-19 RAT result with Queensland Health. On 24 February 2022, following her bout of COVID-19, the Applicant attended an appointment with her GP. The purpose of the appointment was to get a check-up and to discuss her options in relation to an exemption from the vaccination requirement under the Vaccination Policy. During this general check-up, the Applicant said that she was advised by her GP that because she had caught COVID-19, she was exempt from receiving a COVID-19 vaccine for a period of four months. Her GP then prepared an exemption form dated 24 February 2022, providing the Applicant with an exemption from receiving a COVID-19 vaccination until 1 June 2022.[25] The Form has boxes the medical practitioner can tick to indicate the basis of the exemption. None of the boxes are ticked on the form tendered by the Applicant and the medical practitioner has instead hand-written: “Alternative criteria – positive RAT test on 1/2/22 – exempt for up to 4 months or until 1/6/22.”
On 29 March 2022, the Applicant received a Facebook message from Mr Jenkins as he was working through roster arrangements and exchanged messages with Mr Jenkins, as follows:
“Craig Jenkins: Hi Megan, WFP have you returning on Monday 02 May after Taryn has your LSL down for 24 weeks. Is that matching your expectations? As Wondy leaves this Sunday so I’m working out coverage.
The Applicant: Hey Craig, Hope your [sic] well. I have been given various dates – I will have to go through and calculate it – My show cause letter stipulates I have until the 04th May to reply and moving forward I have to wait until the business contacts me?? Further more [sic] my ASIC has been cancelled so until I [sic] have completed my checks my understanding is that I can’t return to the workplace without a valid ASIC.
Craig Jenkins: Interesting, I doubt the ASIC is cancelled rather held at QF Security for reissue. I will allow for the first run in roster while those things are sorted out anyway. Are you likely to be vaccinated or with an exemption presented by the 04th? Obviously your choice on dealing with that side as I’m not involved just thinking if you aren’t (as a friend) could you try to retain good leaver status if possible. Obviously I want to see you back here as an ADM.
The Applicant: I contacted QF and they have confirmed that my was ASIC was cancelled as I was terminated?? I will reply to my show cause by the 04th May.
Craig Jenkins: I will contact QF security and see what they have.”
The Applicant explained that when Mr Jenkins referred to “the first run”, he was referring to the first week of the roster, being a period from around 30 April 2022 to 6 May 2022. The “second run” in the roster commenced on or around Monday 7 May 2022 and the Applicant’s first rostered day of work in the second run was 11 May 2022. Thus, the Applicant was of the view that when Mr Jenkins said in his text message that he would “allow for the first run in roster while those things are sorted out anyway”, she reasonably understood that to mean she was allowed until 10 May 2022 to be vaccinated, being the day before she was rostered to return to work in the second run on 11 May 2022. On 26 April 2022, the Applicant received a text message from a colleague, stating that “I spy you back on our roster…can’t wait to see you back here”.
The Applicant explained that while she had an Exemption from her GP, she was concerned that if she remained unvaccinated and without an exemption granted by Jetstar, she would not be allowed to return to work. As a result, she received her first dose of the Novavax vaccine on 19 April 2022.
On 4 May 2022 the Applicant provided a written response to the Non-compliance Letter. On 5 May 2022, Mr O’Brien sent an email to the Applicant inviting her to attend a meeting with him by video conference on 11 May 2022 for the purpose providing the Applicant with an opportunity to respond to the Letter verbally. Mr O’Brien also noted in his email that a written response had not been received from the Applicant. Upon receiving Mr O’Brien’s email, the Applicant realised that she had sent her response to the wrong email address and rectified her error by forwarding it to Mr O’Brien on 5 May 2022. That response was as follows:
“Afternoon Paul,
As per Covid-19 Vaccination Policy
2. Purpose
2.2 In addition to COVID-19 vaccination regulatory requirements for airline workers the policy aims to provide our employees with consistency of protection against COVID-19 in Company Premises and other environments required for work.
I commenced my entitled long service leave on the 10th of November therefore was not in company premises or the working environment on the 15th November when the compliance date commenced.
I will be vaccinated when I return to the workplace.”[26]
On 10 May 2022, the Applicant received an email from Mr O’Brien with a Microsoft Teams link to the meeting scheduled for 11 May. Also on 10 May 2022, the Applicant received a second dose of the Novavax vaccine and thereafter, she replied to Mr O’Brien’s email declining the meeting invitation, requesting that Mr O’Brien send his decision to her by email, and stating that “My vaccination status has been uploaded in workday – this was something that I communicated and was very transparent about prior to commencing my LSL on 10th November 2021.”
In response, Mr O’Brien reiterated that the response meeting was scheduled for 11 May 2022 by Microsoft Teams and if the Applicant chose not to participate in the meeting, he would proceed to determine an outcome of the review of employment based on the available information. The Applicant stated that the reason she declined to meet with Mr O’Brien on 11 May was because she had been “consistent with requesting any communication from the business be put in writing rather than verbal to ensure [she] had a written record of all correspondence and communication” and “at the time [she] was feeling overwhelming pressure that [her] job was on the line and [her] response to the questions posed could have been detrimental as [her] career was being threatened”. The Applicant also said that she was in no state of mind to represent herself to the best of her ability as she was feeling an overwhelming sense of fear and anxiety. Further, the Applicant said the correspondence from the business stated that although it was the preference of the company that she attend the meeting, she “was not obligated to”.
On 13 May 2022, the Applicant had an exchange of text messages with another colleague who also referred to the fact that the Applicant would be returning to work in 7 days. The Applicant stated that based on the text messages from Mr Jenkins and two colleagues, she believed she was due to return to work to perform her ADM role. On 27 May 2022, Mr O’Brien emailed the Applicant informing her that he had reviewed the relevant information and would like to invite her to a meeting on 1 June 2022 to provide her with the outcome of the review. Relevantly, the email from Mr O’Brien noted that:
“I have reviewed the relevant information regarding the review of your employment arising from your non-compliance with the Qantas Group COVID-19 Vaccination Policy.
I would like to meet with you to provide you with the outcome of this review. The meeting will take place on Wednesday 1 June 2022 at 1:00pm over Teams. You are welcome to bring a support person and I acknowledge that a support person will be attending with you. I will have a Company (HR) representative in attendance.
While it is the Company’s preference to meet with you to deliver the outcome. If the outcome meeting does not proceed as intended, the outcome will be sent directly to you via email.”
On 31 May 2022, the Applicant sent a letter to Mr O’Brien and Mr Mark Moss, People Manager for the Respondent, signed by Ms Andrea Tokaji on behalf of the Applicant and referring to the Applicant as Ms Tokaji’s client, in the following terms:
“We note that the requirement to comply with the Qantas Group’s Policies are subject to my client’s rights, protected at law, including:
· Section 94H of the Privacy Act 1998 (Cth);
· Privacy Principle 3.2 in Schedule 1 of the Privacy Act 1998;
· Section 4 and 6 of the Disability Discrimination Act 1992:
· Section 95 of the Biosecurity Act 2015 (Cth);
· Article 1 and 6 of the Nuremberg Code (It’l); and
· Rights protected under work health safety laws and employment laws
…
In addition to the question of whether the internal Qantas Group COVID-19 Policy is lawful and reasonable, and compliant with my client’s rights at law, the treatment of my client by her employer and specifically her supervisor comes into question. My client has been discriminated against.We note that the internal COVID-19 Vaccination Policy only applies to Qantas Group staff while they are working within the company.
We note that the Policy cannot apply to my client while she is on holiday, neither can an employer call an employee requesting compliance while they are on leave.
…
We seek clarification on this matter.Please advise.
We note, that, at no time did my client refused to be vaccinated, nor did she express that she would not be following the Qantas Group COVID-19 Vaccination Policy.
My client has been explicitly clear with her immediate supervisor, Craig Jenkins, and other Airport Duty Managers, both in person and in writing that she had every intention of being vaccinated.
My client was vaccinated with the Novavax on the 19th of April 2022 at the Chempro Chemist, and again on the 3rd of May 2022 at the Ormeau Clinic at the end of her leave period, for personal reasons.
There is therefore no valid, lawful or reasonable reason that the Qantas Group can terminate my client…”[27]
On 1 June 2022, the Applicant attended a meeting with Mr O’Brien and Mr Moss. Ms Tokaji also participated by telephone as the Applicant’s support person. The Applicant recounted that Mr Moss and Mr O’Brien communicated to her that a decision had been reached by Mr O’Brien that her employment was terminated effective immediately. At 2:41pm on 1 June 2022, Mr O’Brien sent the Applicant an email enclosing an outcome letter confirming the termination of her employment. A copy of the Internal Appeal Procedure Policy was also enclosed. The Applicant said that the termination letter did not explain why she needed to be vaccinated when she was not required to be in the workplace during her six months of long service leave or why this absence was treated differently to SLWOP, LWOP or parental leave and did not address the entirety of the matters contained within the letter of 31 May 2022.
On 5 June 2022, the Applicant lodged an internal appeal against Mr O’Brien’s decision to terminate her employment. In support of her appeal, the Applicant:
reiterated that the requirement that she comply with the Qantas Group’s Policies was “subject to [her] rights, protected at law” and rehearsed the list of legislation and sources as set out in Ms Tokaji’s letter.
maintained the position that the Qantas Group’s internal policies were subject to the mentioned “Federal laws” as well as “human rights principles, including non-discrimination”;
stated that her understanding of Mr O’Brien’s letter of 17 November 2021 was that she would be stood down because of the direction that she was not to return to work until further notice and was never given a date to return to the workplace;
stated that she “took it upon herself” to ensure that she was fully vaccinated by 10 May 2022 and uploaded evidence of her vaccination to Workday;
referred to section 3.5 of the Policy which provides that employees who were stood down were allowed to comply with the Vaccination Policy upon their return to the workplace and calculated that her return-to-work date was 11 May 2022 in accordance with the roster arrangements made by Mr Jenkins;
stated that the email she received about the cancellation of her ASIC led her to believe that the outcome of terminating her employment had been pre-determined; and
asserted that the actions taken against her were unlawful and she had been discriminated against, based on the different Compliance Dates for Category A and Category B employees as well as the different forms of leave.
On 20 June 2022, the Applicant received the outcome of the internal appeal which confirmed the decision to terminate her employment. The Applicant stated that the dismissal caused a significant amount of stress and anxiety for which she had received psychological treatment. In addition, the Applicant said that the dismissal had a significant financial impact on her and her family as she had been unable to obtain full time work since the dismissal and was working as a casual at a supermarket. The Applicant stated that her efforts had been hampered by the fact that the roles she had applied for required her to declare whether she had previously been dismissed from employment.
The Applicant also stated that she had no intention of leaving her employment with the Respondent and had never received any warning about her performance or conduct over her 15-year career. The Applicant indicated that she would like to get her job back and continue to work for the Respondent. Further, the Applicant maintained that she said she has a great employment history with the Respondent and is confident that she could return and build up the previous good work she had put into the organisation.
In reply to Ms Burt’s evidence that employees of the Qantas Group were informed of the Vaccination Policy by email of 20 September 2021 and were given access to the Detailed Q&A document, the Applicant stated that she could not locate any information about LSL in the Policy document. The Applicant said that her understanding of the general practice in aviation is that employees are to be guided by policies and procedures first and foremost. As such, the Applicant said she “went by the absence of reference to long service leave in the Policy”, and not the Detailed Q&A.
In relation to the different compliance dates for employees on SLWOP, LWOP or parental leave under section 3.6 of the Policy, the Applicant said that she did not have an official return to work date. Based on her exchange of text messages with Mr Jenkins in March 2021 in relation to the rosters, she understood that 10 May 2022 was her Compliance Date, and took steps to receive her second dose of Novavax on 10 May 2022 to ensure she was fully vaccinated by the time she returned to work on 11 May 2022. The Applicant also said that she tried asking questions in relation to her long service leave entitlements and if she had known that she should have applied for SLWOP or LWOP, she would have done so to ensure her Compliance Date was 11 May 2022, based on Mr Jenkins’ advice.
In response to Mr O’Brien’s evidence, the Applicant said that: there is always a non-customer facing role on every shift, being the Team Leader who escalates to the Department Manager only when required; her understanding was that the Vaccination Policy “superseded” the information provided in the Detailed Q&A; and the Detailed Q&A was separate to, and was not, in and of itself, the Vaccination Policy. Further, having been informed by Mr Jenkins that she would have exhausted all her accrued leave on 1 May 2022, the Applicant said that this implied that she was on leave without pay from 1 May 2022 and that her Compliance Date was not until her scheduled return to work on 11 May 2022. In the alternative, the Applicant said that she had been stood down at the close of business on 1 May 2022 because she had exhausted her accrued leave and as a stood-down employee, her compliance date under the Policy would be the day of her return to work, being 11 May 2022.
In addition, the Applicant stated that conflicting statements about her long service leave not being approved, and suggestions from management that she had been stood down, or was on leave without pay, meant that her compliance date was unclear, as Jetstar was unclear about whether she was on approved long service leave, unpaid leave, or had been stood down, because the compliance dates vary in each situation. As a result of the confusion about the status of her long service leave and whether she had been stood down, the Applicant said she reasonably believed that her compliance date was not until her return to work on 11 May 2022.
In relation to Mr O’Brien’s evidence about the role of Airport Duty Managers, the Applicant stated Duty Managers were not trained, briefed nor provided any additional tools other than the generic information provided to the group in relation to the Vaccination Policy, which had never been implemented before. The Applicant noted that she did not view her actions as having any impact on work health and safety, as she was not in the workplace during the relevant time. In any event, the Applicant said that when she attempted to return to work on 11 May 2022 after being fully vaccinated, she was not allowed to be in the workplace until her dismissal on 1 June 2022.
The evidence of the Applicant under cross-examination can be summarised as follows. The Applicant agreed that having read an email from the CEO of Qantas dated 18 August 2021, she knew that if the then proposed Vaccination Policy was introduced, she would be required to be fully vaccinated by 15 November 2021, on the basis that she held a red ASIC card.[28] The Applicant sought to qualify her evidence by asserting that the compliance date of 15 November 2021 was for “operational employees” and that she was on long service leave on that date. In response to the proposition that she was not on long service leave on 18 August 2021, the Applicant said that she had applied for long service leave, and later accepted that she did not apply for long service leave until 31 August 2021.[29] The Applicant also agreed that she received an email on 20 September 2021 advising that the requirement set out in the proposed Vaccination Policy that red ASIC card holders be fully vaccinated by 15 November, had been implemented.[30]
The Applicant compounded her wilful non-compliance with the Policy by disregarding what she was told by both her direct manager Mr Jenkins, and her next level up manager, Mr O’Brien before she proceeded on long service leave. Even on her own version of the telephone conversation with Mr Jenkins on 5 November 2021, the Applicant was informed that there would be a difficulty being paid for her long service leave in circumstances where she was not vaccinated in accordance with the Policy. The Applicant also maintained that she was told by Mr Jenkins that she would have to take SLWOP or LWOP. It should have been apparent to the Applicant that this comment indicated that the 15 November compliance date applied to paid long service leave but did not apply to SLWOP or LWOP as stated in the Policy. At very least, it should have been apparent that there was an issue with the Applicant proceeding on long service leave without being fully vaccinated by 15 November 2021, that date.
There is also the matter of the Applicant’s email exchange with Mr Jenkins on 5 November 2021. If the Applicant was in doubt about the interaction between her long service leave and her compliance date when she sent this email, she could not have doubted the position after receiving Mr Jenkins’s response. The Applicant specifically stated in her email that she could not find anywhere in the Policy that she was required to be vaccinated if she was on long service leave and asserted that she would be compliant as long as she was vaccinated on her return. The Applicant also asked for a reference as to where she could find the answer to this query. Mr Jenkins’ response clarified this issue and set out question 16 and the answer to that question from Q&A document. Rather than engage with the substantive issue of Mr Jenkins’ clear advice, that because the Applicant was not vaccinated she had not complied with the Respondent’s direction, the Applicant raised the issue of the reference to long service leave being in the Q&A document rather than the Policy. The Applicant also indicated that she would follow Mr Jenkins’s suggestion and submit a temporary exception on the grounds that she would not be in the workplace for the next six months. This concession indicates that the Applicant accepted that she needed an exemption, and notwithstanding, the Applicant did not seek one.
Instead, in an email on 6 November 2021, the Applicant sought further clarification from Mr O’Brien, her next level manager, about her situation. In that email the Applicant sought clarity as to whether she would be paid for her long service leave in circumstances where she was not vaccinated, and questioned why she needed to be vaccinated when she would be absent from the workplace for six months. It is apparent from the questions in the Applicant’s email to Mr O’Brien that she understands that she is required to be vaccinated by 15 November 2021, and is questioning why this is the case, and pointing out a deficiency she asserts in the Policy because it does not refer to long service leave, sick leave or annual leave.
Mr O’Brien’s response on 9 November 2021, confirmed that the Applicant’s long service leave remained approved and stated Mr O’Brien’s understanding that the Applicant had been informed that as a red ASIC holder she must comply with the Vaccination Policy by 15 November 2021. The only question in the Applicant’s next email to Mr O’Brien sent on 9 November 2021, is whether she would be paid her long service leave if she was not fully vaccinated by 15 November. Mr O’Brien’s response on 11 November makes it clear that the Applicant will be paid while on long service leave, regardless of her vaccination status and that if she is not compliant with the 15 November date for vaccination, she should expect to receive a call from Mr Jenkins to advise of the next steps in relation to her non-compliance. The email also indicates that the next steps will involve a disciplinary process and that the Applicant can opt to end her long service leave to participate or wait until the end of her long service leave. The Applicant did not respond to that email.
On her own evidence, the Applicant received “numerous calls” from Mr Jenkins which she “declined”. Despite declining calls the Applicant was able to engage in a text message exchange with Mr Jenkins on 16 November. In that exchange, the Applicant denied that she had been provided with options by Mr O’Brien, when this was not the case and then asserted – incorrectly – that Mr O’Brien’s email did not state what the process would be. In my view, a reasonable reading of these exchanges indicates wilful refusal by the Applicant to accept what she has been clearly told and to create an appearance of confusion. While the Applicant may have been entitled to refuse to have a telephone discussion with Mr Jenkins because she was on long service leave, it is telling that she continued to engage via Facebook Messenger and ignored Mr Jenkins’ view that she should call him so that he could answer her questions and explain the position with respect to her long service leave.
The Applicant’s evidence about her alleged lack of understanding about this series of correspondence and communication was not credible. The Applicant had been informed, before she commenced long service leave, by her manager Mr Jenkins and her next level Manager Mr O’Brien, that:
The answer to her question about the interaction between paid leave and her compliance date was in the Q&A document which was twice copied and pasted into an email to her with highlighting added to the relevant sections;
Her long service leave would be paid despite the fact she was not vaccinated;
Her compliance date for vaccination and uploading details remained 15 November 2021 despite the fact that she was on long service leave; and
If the Applicant was not vaccinated by the 15 November 2021 she would be subject to a disciplinary process and had the option to engage in that process immediately or on her return from long service leave.
While the Applicant did not receive specific and detailed answers to her questions about the rationale for the different compliance dates for various forms of leave, that does not invalidate the reason for dismissal. The Applicant was informed about the Policy and how it affected her and if she wanted further information, the Applicant had ample opportunity to seek that information before the start of her long service leave. The fact that the Applicant could not have complied with the vaccination requirement between receiving the correspondence from Mr Jenkins and Mr O’Brien, and the commencement of her long service leave, is not to the point. It was the Applicant’s unreasonable refusal to accept the Policy and the Q&A document that placed her in that position. The Applicant’s continued refusal to accept what she was told by her managers was unreasonable. By 17 November 2021, when the Applicant received the Non-compliance letter, her position was untenable.
While the Applicant was entitled to wait until the end of her long service leave to respond to that letter, her response was glib and made no attempt to explain her position, in circumstances where she must have known that it was wrong. The Applicant knew prior to commencing her long service leave, that she was considered by the Respondent to be non-compliant with its Vaccination Policy, regardless of her view about the matter. If the Applicant was confused before commencing her leave (and I do not accept that she was) any misapprehension about the serious position she was placing herself in, could not have existed after 17 November 2021 when she received the Non-compliance letter. The fact that the Applicant could not have complied with the Vaccination Policy at that point, does not alter the fact that she had been informed about the requirements of the Policy well before the compliance date, and in sufficient time for her to make inquiries, and that the Applicant was warned that her employment was in jeopardy shortly after the date for compliance had passed.
Rather than acknowledging and accepting her non-compliance, or even attempting to explain it, the Applicant simply stated that she would be vaccinated when she returned to the workplace. That response indicates wilful non-compliance and a refusal to accept the seriousness of her conduct. Although not relied on at the hearing, I also note that the Applicant provided a further response to the Non-compliance letter via her then representative, Ms Tokaji. The further response does not engage with the issues and otherwise raises irrelevant matters that have been consistently dismissed by courts and tribunals in cases where employees have been dismissed or been subjected to restrictions due to refusal to comply with vaccination requirements.
In any event, the Applicant did not comply with her undertaking to be vaccinated by the time she returned to work. The Applicant’s long service leave ended on 1 May 2022, and on 17 November 2021, she had been informed, via the Non-compliance letter, not to attend work at the conclusion of her leave, until further notice. That letter also informed the Applicant that she would be paid for this period and must be available at the Company’s request. According to the email from Mr Jenkins, the Applicant was scheduled to return to work on 4 May 2022. The reason the Applicant could not return was because she was subject to a disciplinary process due to her non-compliance with the Vaccination Policy. I do not accept that the Applicant can have reasonably believed, based on the email correspondence from Mr Jenkins in relation to her return to work, that her compliance date had been extended. Accordingly, the fact that the Applicant was fully vaccinated by 10 May 2022, does not constitute compliance with the Vaccination Policy and nor does it excuse her wilful failure to comply. Rather, becoming vaccinated in her own time, is a further indication of that wilful failure.
Mr Jenkins’ message to the Applicant that he would allow for the first run of the roster “while these things are sorted out” did not alter the Applicant’s compliance date of 15 November 2021. The Applicant should have noted that Mr Jenkins was asking her as a friend whether she would be compliant by 4 May 2022, and indicating that if she was not, the Applicant should at least try to retain “good leaver status”. Regardless of the actual meaning of Mr Jenkins’ comment, it was a clear message that if the Applicant was not vaccinated or did not obtain an exemption by 4 May, her employment would probably end. Messages from work colleagues about seeing the Applicant’s name on the roster, did not alter the situation she was in. Quite simply, on 15 November and thereafter, the Applicant was non-compliant with the Vaccination Policy. She was informed of her non-compliance before commencing long service leave and on 17 November 2021, it was made clear to the Applicant that her non-compliance would result in her being the subject of a disciplinary process with the potential for the termination of her employment.
The Applicant took no steps to comply with the Policy in a reasonable timeframe and nor did she take steps to explain her non-compliance. In those circumstances, it was reasonable for the Respondent to conclude that the Applicant’s failure to comply with the Policy was wilful and accordingly, that failure was a valid reason for dismissal.
Whether the Applicant was notified of the reason for dismissal
I am satisfied that the Applicant was notified of the reason for her dismissal, via the Non-compliance letter of 17 November 2021, and further correspondence before the Applicant was dismissed.
Whether the Applicant was given an opportunity to respond to reasons for dismissal
I am also satisfied that the Applicant was given an opportunity to respond to the reasons for her dismissal. For reasons set out above, I do not accept that the Applicant was under any misapprehension or confusion about those reasons. Further, I am satisfied that the Applicant was given numerous opportunities to respond to the reasons for dismissal. The fact that the Applicant squandered her opportunities and maintained an unreasonable position, does not in any way render her dismissal unfair.
Any unreasonable refusal to allow the Applicant to have a support person
This consideration is not relevant. The Applicant requested a support person at the meeting she consented to attend, and the Respondent granted that request.
Whether Applicant warned about unsatisfactory performance
The Applicant was not dismissed for unsatisfactory performance and this consideration is not relevant.
Impact of size of enterprise impacted on the procedures followed in effecting dismissal
The Respondent is a large employer and is part of a larger group. There is no basis for considering this matter.
Impact of dedicated human resource managers on procedures followed in effecting dismissal
Given the size of the Respondent and its access to dedicated human resource managers, this is also not a relevant consideration.
Any other relevant matters
I consider the following matters to be relevant to whether the Applicant’s dismissal was unfair. The Applicant had fifteen years of unblemished service. Mr O’Brien agreed that the Applicant was a hard worker. There is no indication of any issues with the Applicant’s conduct, or work performance, prior to the events that led to her dismissal. The Applicant had been promoted by the Respondent and at the time of her dismissal held the position of Airport Duty Manager at the Brisbane Airport, having previously held that position at Cairns Airport.
I accept the Applicant’s evidence that her dismissal has had adverse consequences financially for the Applicant and her family. I also accept that the dismissal has caused the Applicant to suffer stress and anxiety, for which she has received psychological treatment.
Against those considerations, the following are also relevant. The Applicant has provided no explanation for her conduct, other than asserting confusion about the Policy. For the reasons set out above, I do not accept that explanation. The matters about which the Applicant was confused were clarified, and the Applicant provided no further explanation for continuing her non-compliance. While it was asserted in cross-examination that Mr O’Brien should have been aware that the Applicant was having issues associated with her mother’s health at the time the events that led to her dismissal were unfolding, the Applicant provided no evidence about this.
The Applicant asserted in her communication with the Respondent’s managers that she had been “transparent” about her position in relation to vaccination. Despite this, the Applicant placed no evidence before the Commission about her position. If the Applicant’s position was that she was waiting to receive the Novavax vaccine, that vaccine was not available until February 2022 and the Q&A document made clear that an exemption would not be granted from the Policy requirements simply because an employee preferred to wait for Novavax to be available.
The Applicant held a position where she was responsible for a team of employees and according to Mr O’Brien’s evidence, was a member of the leadership team. As such, the Applicant should have been a model for the conduct expected of team members, including compliance with workplace health and safety requirements. Instead, the Applicant wilfully disregarded an important workplace health and safety policy.
Finally, despite the Applicant’s position about the Vaccination Policy with respect to absence on long service leave, being shown to be incorrect, the Applicant has maintained her position and refused to acknowledge any error on her part. This is not a case where a longstanding employee with an unblemished work history failed to comply with a Policy because of an honest and reasonable belief that it did not apply. Rather, the Applicant’s non-compliance was wilful and unreasonable. On balance, there are no additional factors that render the Applicant’s dismissal unfair.
Conclusion
The Applicant’s dismissal was not harsh, unjust or unreasonable. Accordingly, the application for an unfair dismissal remedy made by the Applicant must be dismissed. An Order to that effect will issue with this Decision.
VICE PRESIDENT
Appearances:
Mr T O’Brien of Counsel instructed by Shine Lawyers for the Applicant.
Mr R Dalton KC and Mr M Minucci of Counsel, instructed by Ashurst for the Respondent.
Hearing details:
2022.
Brisbane:
4 December.
[1] Exhibit A1, Applicant’s Witness Statement at [48].
[2] Exhibit R1, Elen Burt’s Witness Statement at [8].
[3] Ibid at [9].
[4] Ibid at Annexure EB-5.
[5] Exhibit A1.
[6] Exhibit A3.
[7] Exhibit A2.
[8] Exhibit A4.
[9] Exhibit R1.
[10] Exhibit R2.
[11] Exhibit R3.
[12] Exhibit R4.
[13] Exhibit R2 at [8].
[14] [2021] FWCFB 6059.
[15] Stuart Tween v Qantas Airways Limited [2022] FWC 1594; Joshua Piggott v Qantas Airways Limited[2022] FWC 1172; Annunziata Cinque v Jetstar Airways Pty Ltd[2022] FWC 2235.
[16] Exhibit R3, Matthew Franzi’s Witness Statement, Annexure MF-1 and MF-2.
[17] Exhibit R1, Annexure EB-1 at [7].
[18] Ibid.
[19] Ibid.
[20] Ibid, Annexure EB-3.
[21] Exhibit R3, Annexure MF-4.
[22] Exhibit R1, Annexure EB-4.
[23] Exhibit R1, Annexure EB-5.
[24] Ibid.
[25] Exhibit R1 Annexure MW -11.
[26] Exhibit A1 Witness Statement of Megan Willoughby Annexure “MW16”.
[27] Exhibit A1 Annexure MW-22.
[28] Transcript PN79 – 80.
[29] Transcript PN81 – 90.
[30] Transcript PN97 – 98.
[31] Transcript PN108 – 119.
[32] Transcript PN127 – 132.
[33] Transcript PN139 – 143.
[34] Transcript PN149.
[35] Transcript PN150.
[36] Transcript PN156.
[37] Transcript PN159 – 168.
[38] Transcript PN180 – 181.
[39] Transcript PN182 – 187.
[40] Transcript PN221 – 224.
[41] Transcript PN228 – 223.
[42] Transcript PN240 – 243.
[43] Transcript PN251 – 261.
[44] Transcript PN264 – 267.
[45] Transcript PN277 – 280; Exhibit R4 Annexure PO-15.
[46] Transcript PN287 – 291.
[47] Transcript PN301 – 305.
[48] Transcript PN317 – 323.
[49] Transcript PN324 – 326.
[50] Exhibit A1 Annexure MW-13.
[51] Transcript PN335.
[52] Transcript PN346 – 355.
[53] Transcript PN368 – 369.
[54] Transcript PN370 - 371
[55] Transcript PN382.
[56] Transcript PN388 – 392.
[57] Transcript PN420 – 423.
[58] Transcript PN424 – 426.
[59] Exhibit R 4 Annexure PO-9.
[60] Ibid Annexure PO-10.
[61] Ibid Annexure PO-16.
[62] Exhibit R4 Annexure PO-11.
[63] PN510 – 513.
[64] PN533 – 534.
[65] Transcript PN535.
[66] Exhibit R4 Annexure PO-11.
[67] Transcript PN605 – 606.
[68] Transcript PN607 – 610.
[69] Transcript PN625 – 627.
[70] Transcript PN633 – 636.
[71] PN652 – 653.
[72] Transcript PN664.
[73] Transcript PN671.
[74] Transcript PN752 – 762.
[75] Transcript PN765,
[76] Transcript PN766 – 768.
[77] Ming-Lan Chiu v Liebherr-Australia Pty Ltd[2022] FWC 1842.
[78] Milton v TransAdelaide [2003] SAIRC 15.
[79] Transcript PN847.
[80] [2022] FWC 1922.
[81] [2022] FWC 1448.
[82] Stuart Tween v Qantas Airways Limited[2022] FWC 1594; Joshua Piggott v Qantas Airways Limited[2022] FWC 1172; Annunziata Cinque v Jetstar Airways Pty Ltd[2022] FWC 2235.
[83] [2022] FWC 1594.
[84] Wake v Queensland Rail[2006] AIRC 663, PR974391 at [2]-[3] and [21]-[22]; Woolworths Limited (t/as Safeway) v Brown, PR963023 at [34]; B, C and D v Australian Postal Corporation t/a Australia Post (2013) 238 IR 1 at [36]; Anderson v Thiess Pty Ltd [2015] FWCFB 478 at [27].
[85] R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601, 621-622 (Dixon J).
[86] Tween v Qantas Airways Limited[2022] FWC 1594 at [134].
[87] [2022] FWC 1842.
[88] Ibid at [2].
[89] Ibid at [4] – [5], [32].
[90] Tween v Qantas Airways Limited [2022] FWC 1594 at [5].
[91] Ibid at [136].
[92] See COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No. 2) (QLD).
[93] Transcript PN97.
[94] Transcript PN923.
[95] Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
[96] Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.
[97] Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.
[98] Walton v Mermaid Dry Cleaners Pty Limited [1996] IRCA 267 (12 June 1996); (1996) 142 ALR 681 at para 24.
[99] Sydney Trains v Gary Hilder [2020] FWCFB 1373.
[100] Heran Building Group Pty Ltd v Anneveldt [2013] FWCFB 4744 at [15] per Acton, SDP, Sams DP and Hampton C citing MM Cables (a Division of Metal Manufacturers Ltd v Zammit AIRC (FB) S8106 17 July 2000.
[101] (1938) 60 CLR 601.
[102] [2013] FWCFB 3316.
[103] Ibid at [8].
[104] Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.
[105] Op. cit. at [68] – [70].
[106] Op. cit. at [79] citing the observation of a Full Bench in Briggs v AWH Pty Ltd [2013] FWCFB 3316.
[107] [2021] FWCFB 6059.
[108] [2022] FWC 1594 at [69].
[109] Ibid at [70] and [76].
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