Mr James Laramey v - [2022] FWC 1001

[2022] FWC 1001

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr James Laramey
v

The Commissioner for Public Employment
(U2021/11272)

COMMISSIONER RIORDAN

SYDNEY, 13 JULY 2022

Application for an unfair dismissal remedy

On 7 December 2021, Mr James Laramey (the Applicant) filed an application (the Application) with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the FW Act). The Applicant was dismissed by the Commissioner for Public Employment (the Respondent) on 30 November 2021 on the basis that he was not able to perform the inherent requirements of his job.

The Applicant was employed by the Northern Territory Fire and Rescue Service (NTFRS) as a Firefighter from 28 August 2017 until his dismissal on 30 November 2021. The Applicant’s employment was covered by the Northern Territory Public Sector Fire and Rescue Service 2017 - 2021 Enterprise Agreement.

The Applicant seeks reinstatement.

Background

On 18 March 2020, a public health emergency was declared in the Northern Territory as a result of the COVID-19 pandemic.

On 13 October 2021, the Northern Territory Chief Health Officer announced COVID-19 Directions (No. 55) 2021 (CHO Direction No. 55) which came into effect on 12 November 2021, directing for mandatory vaccination of certain workers to attend the workplace. These directions applied to the following workers:

(a)a worker who, during the course of work, is likely to come into contact with a vulnerable person;
(b)a worker who is at risk of infection with COVID-I9 because the worker, during the course of work, is likely to come into contact with a person or thing that poses a risk of infection;

(c)a worker whose workplace poses a high risk of infection with COVID-19;

(d)a worker who performs work that is necessary for the operation or maintenance of essential infrastructure or essential logistics in the Territory.

These directions provided that for the period starting on 13 November 2021, a worker who had not received the first dose of an approved COVID-19 vaccination must not attend the worker’s workplace. On and from 24 December 2021, a worker who had not received two doses of an approved COVID-19 vaccine must not attend the worker’s workplace.

These directions applied unless the worker could provide evidence of a contraindication to all approved COVID-19 vaccines.

On 13 October 2021, Ms Jodie Ryan, Chief Executive Officer, Department of the Chief Minister and Cabinet, Northern Territory Government, wrote to all Northern Territory Public Service (NTPS) employees regarding the CHO Direction No. 55 and confirming the requirement that all staff receive the first dose of the COVID-19 vaccine by 13 November 2021 and to be fully vaccinated by 24 December 2021. The email correspondence noted the exemption for a proven contraindication.

On 22 October 2021, Ms Vicki Telfer PSM, Commissioner for Public Employment, wrote to all Northern Territory Government staff, advising of, among other things, the requirement for employees’ vaccination statuses to be registered with their employer a week in advance of the due dates. A ‘myHR’ system had been developed for registering these details.

On 22 October 2021, Mr Jamie Chalker, Commissioner of Police and CEO, wrote to all Northern Territory Police, Fire and Emergencies Services (NTPFES) staff regarding Mandatory COVID-19 vaccination for all NTPFES workers. The correspondence provided that due to the nature of their work, all NTPFES workers were subject to the mandatory vaccination criteria directed by CHO Direction No. 55. It provided that all NTPFES workers were required to receive their first dose of an approved COVID-19 vaccination by 13 November 2021, and their second dose of an approved COVID-19 vaccination by 25 December 2021.

Various internal broadcasts followed these communications, providing further information and clarification regarding the vaccination mandate.

On 12 November 2021, Mr Mark Spain, Chief Fire Officer (CFO), sent the following letter to the Applicant:

“Dear Mr Laramey

RE: INABILITY TO PERFORM DUTIES - FAILURE OR REFUSAL TO RECEIVE APPROVED COVID-19 VACCINATION
I am writing to you, pursuant to section 44 of the Public Sector Employment and Management Act 1993 (the Act), to advise you that I suspect that there are "inability or performance grounds" which exist in respect to your employment.
In particular, with reference to sections 44(1)(a) and (b) of the Act, I suspect that you are not able and/or not suitable to perform the duties assigned to you.

Particulars
The basis upon which I suspect there may be inability and performance grounds for your employment are as follows:

(a) You are an ongoing employee of the Department working as a Firefighter

Chief Health Officer Directions No. 55 2021

(b)   On 13 October 2021, the Northern Territory Chief Health Officer issued "COVID-19 Directions (No. 55) 2021: Directions for mandatory vaccination of workers to attend the workplace" (CHO Directions No. 55).
(c)   CHO Directions No. 55 took effect at 12:00 noon on 13 October 2021 and remain in force.
(d)   Direction 4 of CHO Directions No. 55 provide that the Directions apply to workers:

(i)who during the course of work, are likely to come into contact with a vulnerable person;
(ii)who are at risk of infection with COVID-19 because the workers, during the course of work, are likely to come into contact with a person or thing that poses a risk of infection;

(iii)whose workplace poses a high risk of infection with COVID-19; or

(iv)who perform work that is necessary for the operation or maintenance of essential infrastructure or essential logistics in the Territory; and

(e) I am satisfied that Direction 4 of CHO Directions No. 55 applies to your workplace because categories (i), (ii) and (iii) above
(f) Direction 6 of CHO Directions No. 55 provides that:

For the period starting on 13 November 2021 and ending on 24 December 2021, a worker who has not received the first dose of an approved COVID-19 vaccine must not attend the worker's workplace.

(g) Direction 10 of CHO Directions No. 55 relevantly provides that:
A person conducting a business or undertaking must ensure that any worker who performs work for the person must not attend the worker's workplace contrary to direction 6.

Direction to Advise Vaccination Status

(h) On 22 October 2021, the Chief Executive Officer:

(i)published the Northern Territory Police Fire and Emergency Services COVID-19 Vaccination Instruction and Policy; and

(ii)notified you and all workers at the Northern Territory Police Fire and Emergency Services that CHO Directions No. 55 applied to your workplace.

(i) On 26 October 2021:
i.the Chief Executive Officer directed you and all workers at your workplace to advise their vaccination status by no later than 2 November 2021 (Direction 1 of 2021); and

ii.You were sent a reminder of this direction on 5 November 2021 and 10 November 2021.

(j)    On multiple occasions you advised management that you had not received the first dose of an approved COVID-19 vaccine and you did not intend to do so before 13 November 2021.
(k)   On 10 November 2021, you were directed not to attend your workplace until further notice
(l)     As at 12 November 2021, you had not entered any COVID-19 vaccination information into the myHR Vaccination register
(m) For the reasons set out in particulars (a) to (l) above, CHO Directions No. 55 require that you must not attend your workplace, and I must ensure that you do not do so.
(n)   I am not able to provide you with suitable alternate duties in a workplace that is not subject to CHO Directions No. 55.

As you are not able to perform your duties in any reasonably available workplace, I have reasonable grounds to suspect that there are inability and performance grounds in relation to your employment because:

1.you are not able to perform the duties assigned to you - for section 44(1)(a) of the Act; and/or
2.you are not suited to perform the duties assigned to you - for section 44(1)(b) of the Act.

However, before I make a decision in that regard, I invite you to make submissions to me as to whether you agree with my suspicion, or provide me with any comments you may have in relation to the matters set out in particulars (a) to (n) above.
Your submissions should be in writing and must reach me no later than close of business Thursday 18 November 2021 after you receive this letter.

Suspension Pending Investigation

On the basis of the material set out above, I am of the opinion that the suspected inability or performance grounds are of such a serious nature that you should not perform the duties you have been assigned to perform pending the making of a final decision. Pursuant to section 47 of the Act I foreshadow an intention to suspend you from duty, with remuneration, for a period of 3 months or until the suspension otherwise ceases in accordance with section 47(4) of the Act.

However, before I take action to suspend you, I invite you to make a submission to me in relation to the foreshadowed intention to suspend you from your duties, including whether any suspension should be with or without remuneration. Your submissions should be in writing and must reach me no later than close of business Tuesday 16 November 2021.

You are not required to attend for duty while you prepare your submissions and I encourage you to take this time to consider and prepare your submissions. Your IT and building access will be suspended from midnight Friday 12 November 2021. If you require access to your pay slips or other personnel information please contact DCDD Workforce Services via email [redacted] or phone [redacted].

I enclose for your information copies of:

·   Direction 1 of 2021 from CEO NTPFES;
·   CHO Directions No. 55;
· Part 7 of the Act;
·   Employment Instruction No. 3 - Natural Justice; and
·   Employment Instruction No. 6 - Performance and Inability.

…
Yours sincerely
Mr Mark Spain
Chief Fire Officer
12 November 2021”

(My emphasis)

On 16 November 2021, Ms Erina Early, Secretary – Northern Territory for the United Workers Union (the UWU) wrote to CFO Spain on the Applicant’s behalf as follows:

“Dear Mr Spain

Disciplinary Proceedings pursuant to the Public Sector Employment and Management Act – s 49

We write on behalf of our member, Mr James Laramey, in response to your correspondence dated 15 November 2021 relating to alleged breaches of discipline under the Public Sector Employment and Management Act ('the Act').

The portal for NTFRS to disclose their vaccination status in MyHR does not allow them to select their status as unvaccinated. I personally notified both the Chief of Staff to both Minister Uibo and the Chief of Staff to Minister Kirby respectively of this issue during a meeting on 26 October 2024. Minister Kirby's Chief of Staff promised to resolve this issue as soon as possible.

Our member has been placed in a position where they are forced to provide no information or misleading information.

The limited options invite considerations of s.49(m), as the employee risks providing information in their employment that they know or ought reasonably to know is false or misleading.

The direction to use this portal with restricted notification options would not be a lawful order or direction, as the information recorded is likely to be false or misleading.

If you require further information, please do not hesitate to contact Mr Thomas Malone
(Industrial Officer) on [redacted].

Yours sincerely

Erina Early
Secretary - Northern Territory
United Workers Union”

On 17 November 2021, CFO Spain wrote to the Applicant suspending him from duty with remuneration:

“Dear Mr Laramey

RE: Notice of suspension from duty with remuneration
I refer to my letter dated 12 November 2021 in which I invited you to respond to why you should not be suspended from duty with remuneration, under section 47 of the Public Sector Employment and Management Act 1993 (the Act) in relation to the following inability and performance grounds:

· that you are not able to perform the duties assigned to you - for section 44(1)(a) of the Act; and/or
· that you are not suited to perform the duties assigned to you - for section 44(1)(b) of the Act.

On 16 November 2021 I received a response submitted by Ms Erina Early, of the United Workers Union on your behalf. I note in this response Ms Early did not make any submission as to why you should not be suspended.
I note in particular that Ms Early refers to you receiving correspondence related to alleged breaches of discipline, the 'restricted notification options' in myHR and requesting consideration pursuant to s49(m) of the Act. I take this opportunity to clarify that my letter to you on the 12 November 2021 was in relation to my suspicion that inability and performance grounds existed in respect to your employment. My letter did not reference disciplinary breaches and therefore this has little relevance to your circumstances. I have attached a copy of this letter for your ease of reference.

I have carefully considered your submission; however, I remain of the view that, because you have failed to update your COVID-19 vaccination status in myHR and you do not have a contraindication to all approved vaccines:

·   you are not permitted to enter your workplace;
·   I must not permit you to enter your workplace;
·   you are unable to perform the duties assigned to you, until such time as you can comply with CHO Direction No. 55 of 2021; and
·   no alternative duties are reasonably available.

Consequently, in accordance with section 47 of the Act, I have decided to suspend you from duty with remuneration. Your suspension will take effect immediately from the date of this letter and will remain in place pending the making of a final decision in relation to the suspected inability and performance grounds.

If you want to make a further submission in respect to the particulars as outlined in my previous correspondence, please do by no later than close of business Thursday, 18 November 2021. I will write to you further, to foreshadow my intentions with regard to your employment by 22 November 2021. In this next correspondence, I will take into account all submissions received.

My previous directions to you continue to apply.

Available Support
…

If you are aggrieved by my decision you may request a review of the action by the Commissioner for Public Employment in accordance with section 59(1)(b) of the Act. Grievances may lodged at [redacted] within 3 months of your receipt of this letter.

Public Sector Appeals and Grievance Reviews may be contacted for advice on [redacted].
…
Yours sincerely
Mr Mark Spain AFSM
Chief Fire Officer
17 November 2021”

On 19 November 2021, CFO Spain wrote to the Applicant, foreshadowing an intention to terminate the Applicant’s employment:

“Dear Mr Laramey

RE: Section 46(1)(c) Public Sector Employment and Management Act 1993- Foreshadowed intention to terminate employment

I refer to my letter dated 12 November 2021 in which I notified you that I suspected there are reasonable grounds for me to be satisfied that there are inability or performance grounds under section 44(1)(b) of the Public Sector Employment and Management Act 1993 (the Act) in relation to your employment as a Firefighter.

In the correspondence I detailed the inability and performance grounds and invited you to provide a submission to me as to whether you agree with my suspicion, or provide me with any comments you may have in relation to the matters set out in the particulars. The relevant inability and performance grounds are:

· that you are not able to perform the duties assigned to you - for section 44(1)(a) of the Act; and/or
· that you are not suited to perform the duties assigned to you - for section 44(1)(b) of the Act.

On 16 November 2021 I received a response submitted by Ms Erina Early and acknowledged receipt of this submission in my correspondence to you on 17 November 2021.

In my letter of 17 November 2021 you were also invited you (sic) to make any further submissions in respect to particulars outlined in my correspondence of 12 November 2021; however, to date I have not received any further submissions for consideration.

Accordingly, I remain of the view that, because you have failed to update your COVID-19 vaccination status in myHR, and you do not have a contraindication to all approved vaccines:

·   you are not permitted to enter your workplace;
·   I must not permit you to enter your workplace;
·   you are unable to perform the duties assigned to you, until such time as you can comply with CHO Direction No. 55 of 2021; and
·   no alternative duties are reasonably available.

Having determined that there are inability or performance grounds, I must now consider what is reasonable and appropriate action to take in the circumstances and in light of the actions available to me under section 46(1) of the Act (attached).

Having given serious consideration to all of the above matters and the actions available to me under 46(1) of the Act, I hereby foreshadow my intention to terminate your employment pursuant to section 46(1)(c) of the Act.

Before I take action to terminate your employment, I invite you to make a submission to me in relation to the foreshadowed intention to terminate your employment. Your submissions should be in writing and must reach me no later than close of business 25 November 2021. I will write to you further, to confirm my actions by 29 November 2021. In making my final decision, I will take into account any submission received.

Further, I refer to my letter dated 17 November 2021 where I advised that I decided to suspend you from duty with remuneration until a final decision in relation to the suspected inability and performance grounds. Having now decided that there are inability or performance grounds, and having foreshadowed my intention to terminate your employment, I am now foreshadowing my intention to suspend you from duty without remuneration pursuant with section 47(2)(b) of the Act, until a final decision is made in relation to the action I take. You may wish to use your recreation leave or long service leave entitlements during this period.

Before I take action to suspend you from duties without remuneration, I invite you to make a submission to me in relation to the foreshadowed intention to suspend you from duties without remuneration. Your submissions should be in writing and must reach me no later than close of business 22 November 2021.

My previous directions to you continue to apply.
Available Support
…
Yours sincerely

Mr Mark Spain AFSM
Chief Fire Officer
19 November 2021”

(My emphasis)

On 22 November 2021, Mr Lucio Matarazzo, Industrial Relations Consultant of Lucio Matarazzo Pty Ltd, wrote to CFO Spain on behalf of the Applicant:

“22 November 2021

Mark Spain
Dear Mark Spain
I provide the following written information in good faith as requested prior and request that the information in this correspondence be treated with dignity and confidentiality as required Pursuant to the Commonwealth Privacy Act (Cth).
Matters for consideration.
I. I have had pre approved annual leave pursuant to section 87 and 88 of the Fair Work Act (Cth) confirming that I am on legitimate annual leave up until 20 December 2021 in compliance with the Fair Work Act (Cth).
2. As such I request that the Department continue to pay me my annual leave pursuant to sections 87 and 88 of the Fair Work Act (Cth) to 20 December 2021.
3. I contend that as my employer you can not now just unilaterally cancel my per-approved (sic) annual leave and to do so is unlawful and in contravention of tteh (sic) Fair Work Act (Cth).
4. I contend that section 88 of the Fair Work Act (Cth) in relation to annual leave requests confirms that an employer must not be unreasonable by not agreeing to an employee's application of annual leave of absence.

5. The Explanatory Memorandum to the Fair Work Bill 2009 and in particular paragraph 382, in assessing what is a reasonable decision by an employer that the following would all be relevant considerations:

·   the needs of both the employee and the employer's business,
·   any agreed arrangement with the employee,
·   the custom and practice in the business,
·   the timing of the requirement or direction to take leave,
·   the reasonableness of the period of notice given to take the leave.

The case law that supports my understanding of section 88 of the Fair Work Act (Cth) includes;
·   [1998] NSW IRC 628 Glenda Louise Robbie v Dun & Bradstreet (Australia) Pty Ltd (25 November 1998).
·   [1999] NSW IRC 316 Full Bench NSW Industrial Relations Commission Dun &
·   Bradstreet (Australia) Pty Ltd v Glenda Louise Robbie (20 July 1999).

These case authorities decisions deemed unfair for an employer to arbitrarily consider a request for leave solely by reference to the employer's business needs and without taking into account on a reasonable basis the circumstances of the employee. These decisions also determined that an employee must be granted leave unless the employer can justify the refusal of leave on reasonable grounds.

6. As I am now not working physically in the workplace and nor dealing with clients, stakeholders and or other employees and nor vulnerable persons in the workplace, I am not contravening and I am comply (sic) with COVID19 Directions (Number 55) 2021 issued by the Northern Territory Government Chief Health Officer
7. In addition, I am also not contravening section 351 2 (b) of the Fair Work Act (Cth) dealing with inherent requirements.
8. What constitutes an inherent requirement are explained in the High Court of Australia decision [1998] HCA 18 Qantas Airways Limited v Christie (19 March 1998).
9. I request that my pre approved annual leave continue to be applied and approved as per the obligations of the Fair Work Act (Cth) that the NTFRS has to me in relation to my preapproved annual leave I have which is in effect a contract and you can not unlawfully break this contract.
10. My contract is in place as stated by a Full Bench of the Australian Industrial Relations Commission in the decision [1999[ AIRCFB Advanced Australian Workplace Solutions Pty Ltd (25 October 1999) at [49].

[49] in the Full Bench of the Australian Industrial Relations Commission in the decision [1999] AIRCFB Advanced Australian Workplace Solutions Pty Ltd (25 October 1999) states –

“[49] The elements of a contract are stated in Macken, McCarry and Sappideen “The Law of Employment” (4^th Edition, 1997 by the Hon James Macken, Paul O’Grady and Carolyn Sappideen) (Macken, McCarry and Sappideen) a text to which reference was made both before Commissioner Simmonds and us, as follows (page 74):

“The law holds that before any simple contract is enforceable it must be formed so as to contain various elements. These are:

1.   There must be an ‘intention’ between the parties to create a legal relationship the terms of which are enforceable.
2.   There must be an offer by one party and its acceptance by the other.
3.   The contract must be supported by valuable consideration.
4.   The parties must be legally capable of making a contract.
5.   The parties must genuinely consent to the terms of the contract.
6.   The contract must not be entered into for any purpose which is illegal”.

Yours sincerely

Yours sincerely,

Lucio Matarazzo
Industrial Relations Consultant”

Mr Thomas Malone, Industrial Officer for the UWU, also wrote to CFO Spain on 22 November 2021 on behalf of the Applicant:

“Good afternoon Mark,

I'm emailing you on behalf of our member, Mr James Laramey, in response to your correspondence dated 19 November 2021.
We note that your letter foreshadows suspending our member without pay.
Mr Laramey is currently making repayments on his mortgage, credit card and a personal loan. He also has significant medical expenses due to his daughter's severe and chronic abdominal pain, the tests for which are not covered by health insurance.
Mr Laramey and his family have high transport costs due to living in Mandorah, with considerable ferry expenses between Mandorah and Darwin.
Suspension without pay for Mr Laramey would severely limit his daughter's ability to seek necessary medical treatment and would have an immediate damaging effect on our member's household budget. The longer-term consequences of this would be difficult to repair.
In the last year, the consumer price index in Darwin rose by 6.1 %, the highest in the nation, with similar issues in A1ice Springs and across the Territory. This has had significant implications on the family budget.
Due to these factors detailed above, Mr Laramey should continue to be remunerated at this stage.
We anticipate writing to you further about your foreshadowed intention to terminate the employment of Mr Laramey.
Kind regards,
Thomas Malone
Industrial Officer
United Workers Union”

CFO Spain wrote to the Applicant on 23 November 2021, suspending him from duty without remuneration:

“Dear Mr Laramey

RE: Notice of suspension from duty without remuneration

I refer to my letter dated 19 November 2021 in which I invited you to respond to why you should not be suspended from duty without remuneration, under section 47 of the Public Sector Employment and Management Act 1993 (the Act) in relation to the following inability and performance grounds:

· that you are not able to perform the duties assigned to you - for section 44(1)(a) of the Act; and/or
· that you are not suited to perform the duties assigned to you - for section 44(1)(b) of the Act.

I have now carefully considered the material before me, including your response received on 22 November 2021.
I note in particular that you have advised any cancellation of your recreational leave would be "unlawful and in contravention" of the Fair Work Act 2009 (Cth). You further advised "As I am now not working physically in the workplace and nor dealing with clients. (sic) stakeholders and or other employees and nor vulnerable persons in the workplace, I am not contravening and I am comply with COVID19 Directions Number 55 2021 issued by the Northern Territory Government Chief Health Officer."

I take this opportunity to remind you that the Fire and Emergency Act 1996 (NT), in which the Chief Fire Officer may enact powers under Section 9, would allow for a recall to duty should the workforce be impacted by an outbreak of COVID-19. Therefore I require all employees, irrespective of their current leave arrangements, to be compliant with the CHO Direction No. 55 in order to perform the duties assigned to you.

Having now carefully considered your response, I am satisfied, that based on the information before me, you have not complied and do not intend to comply with CHO Direction No. 55.

In accordance with section 47 of the Act, I have decided to suspend you from duty without remuneration as I am of the opinion that, because you have failed to update your COVID-19 vaccination status in myHR and you do not have a contraindication to all such approved vaccines:

·   you are not permitted to enter your workplace;
·   I must not permit you to enter your workplace;
·   you are unable to perform the duties assigned to you, until such time as you can comply with CHO Direction No. 55 of 2021; and
·   no alternative duties are reasonably available.

Your suspension will take effect immediately from the date of this letter and will remain in place pending a final decision in relation to the foreshadowed action to terminate your employment. You may wish to use your recreation leave or long service leave entitlements during this period.

Noting in your response that you requested to continue your recreation leave until 20 December 2021, as was previously approved, for the purposes of efficiency, rather than requiring you to formally request to utilise your recreation leave during your period of suspension, I have determined that you have requested to utilise your recreation leave during your period of suspension and I will not alter your current recreation leave period.

During your suspension you are directed to not attend the workplace or any other departmental workplace in relation to the performance of your duties.

While this inability process is ongoing I direct you to make yourself available for the purpose of assisting with any investigations or inquiries relating to this matter.

You are further reminded that your obligations under the Code of Conduct continue to apply throughout and following the conclusion of this process.

It is anticipated that I will make a final decision no later than Monday 29 November 2021.

Available Support
…

Yours sincerely

Mr Mark Spain AFSM
Chief Fire Officer
23 November 2021”

The Applicant was terminated with immediate effect on 30 November 2021:

“Dear Mr Laramey

RE: Termination of Employment - Inability to Perform Your Duties

I refer to my letter dated 19 November 2021 in which I advised you of my findings that there were inability and performance grounds in relation to your employment, under sections 44(1)(a) and 44(1)(b) of the Public Sector Employment and Management Act 1993 (the Act).

My letter also foreshadowed my intention to terminate your employment in the NT Public Sector, under section 46(1)(c) of the Act, and invited you to make submissions as to why I should not take that action.

I have now carefully considered the material before me, including your response received on 22 November 2021 and your submission that any cancellation of your recreational leave would be “unlawful and in contravention” of the Fair Work Act 2209 (Cth).

You further advised “As I am now not working physically in the workplace and nor dealing with clients. (sic) stakeholders and or other employees and nor vulnerable persons in the workplace, I am not contravening and I am comply with COVID19 Directions (Number 55) 2021 issued by the Northern Territory Government Chief Health Officer”.

As I outlined in my letter dated 23 November 2021 NTFRS members may be recalled to duty and therefore I require all employees, irrespective of their current leave arrangements, to be compliant with the CHO Direction No. 55 in order to perform the duties assigned to you.

Having given the matter careful consideration, I maintain my earlier findings that because:

1.You have not received the first dose of an approved COVID-19 vaccine, Directions 6 and 10 of CHO Directions No. 55 of 2021 require that you must not attend your workplace, and I must not allow you to do so; and
2.I am not able to provide you with suitable alternate duties in a workplace that is not subject to CHO Directions No. 55 of 2021

you are not able to perform the inherent requirements of your duties, under section 44(1)(a) of the Act, and/or you are not suited to perform the inherent requirements of your duties, under section 44(1)(b) of the Act.

Remedial Action

As you have not provided evidence that you have received the first dose of an approved COVID-19 vaccine I remain satisfied, on reasonable grounds, that the only reasonable and appropriate remedial action available to me is to terminate your employment under section 46(1)(c) of the Act.

Notice of Termination

Pursuant to section 46(1)(c) of the Act, I hereby terminate your employment in the NT Public Sector with effect from the date of this letter.

In accordance with section 117 of the Fair Work Act 2009 you will receive a payment in lieu of being given notice of termination.

Under section 59A of the Act you may appeal against my decision. Any appeal must be lodged within 14 days after you receive this letter with:
[redacted]

If you would prefer, you may wish to make make (sic) an unfair dismissal application to the Fair Work Commission. More information is available at: …

Yours sincerely
Mr Mark Spain AFSM
Chief Fire Officer
30 November 2021”.

The matter was listed for Hearing by Microsoft Teams on 7 April 2022.

The Applicant appeared on his own behalf at the Hearing. The Respondent was represented by Mr Brian Mappas, Employee Relations Manager Office of the Commissioner for Public Employment Northern Territory Government.

The Applicant appeared and gave evidence on his own behalf. On behalf of the Respondent, Mr Mark Spain, Chief Fire Officer, appeared and gave evidence.

Further, the Applicant notified the Commission on 2 May 2022 advising that the Respondent had breached the Agreement in relation to minimum manning on 19 March 2022 at Alice Springs, where a shift was conducted without any off duty firefighters being compulsorily called in to work.

The Hearing was re-commenced on 30 May 2022 to ascertain the accuracy of this information.

Statutory Provisions

The relevant sections of the FW Act relating to an unfair dismissal application are:

“396 Initial matters to be considered before merits 
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application: 
(a) whether the application was made within the period required in subsection 394(2); 
(b) whether the person was protected from unfair dismissal; 
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; 
(d) whether the dismissal was a case of genuine redundancy. 

381 Object of this Part 
(1) The object of this Part is: 
(a) to establish a framework for dealing with unfair dismissal that balances: 
(i) the needs of business (including small business); and 
(ii) the needs of employees; and 
(b) to establish procedures for dealing with unfair dismissal that: 
(i) are quick, flexible and informal; and 
(ii) address the needs of employers and employees; and 
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement. 

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned. 
Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95. 
382 When a person is protected from unfair dismissal 
A person is protected from unfair dismissal at a time if, at that time: 
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and 
(b) one or more of the following apply: 
(i) a modern award covers the person; 
(ii) an enterprise agreement applies to the person in relation to the employment; 
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

384 Period of employment 
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer atthat time as an employee. 
(2) However: 
(a) a period of service as a casual employee does not count towards the employee’s period of employment unless: 
(i) the employment as a casual employee was on a regular and systematic basis; and 
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and 
(b) if: 
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and 
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and 
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised; the period of service with the old employer does not count towards the employee’s period of employment with the new employer. 

385 What is an unfair dismissal 
A person has been unfairly dismissed if the FWC is satisfied that: 
(a) the person has been dismissed; and 
(b) the dismissal was harsh, unjust or unreasonable; and 
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and 
(d) the dismissal was not a case of genuine redundancy. 

see section 388. 
387 Criteria for considering harshness etc. 
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account: 
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and 
(b) whether the person was notified of that reason; and 
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and 
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and 
(e) if the dismissal related to unsatisfactory performance by the person— whether the person had been warned about that unsatisfactory performance before the dismissal; and 
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and 
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and 
(h) any other matters that the FWC considers relevant.”

The relevant section of the Public Sector Employment and Management Act 1993 (NT) (PSEM Act) as cited by the Respondent is as follows:

“47 Employee may be suspended pending decision

(1) This section applies if the Chief Executive Officer of an Agency:

(a) suspects there are inability or performance grounds for an employee in the Agency; and
(b) has not yet made a decision under section 44(2); and
(c) is of the opinion that the suspected inability or performance grounds are of such a serious nature that the employee should not continue performing the duties he or she is assigned to perform pending the making of that decision.

(2) The Chief Executive Officer may suspend the employee:

(a) for a period or periods not exceeding a total of 6 months; and
(b) with or without remuneration.

(3) The Commissioner may:

(a) extend the period of the suspension for any further period or periods the Commissioner thinks fit; or
(b) if the suspension imposed by the Chief Executive Officer has lapsed or been revoked – resuspend the employee for any further period or periods the Commissioner thinks fit.

(4) A suspension ceases when any of the following occurs:

(a) the period of the suspension expires;
(b) the Chief Executive Officer makes a decision under section 44(2);
(c) the Chief Executive Officer or Commissioner revokes the suspension.

(5) An employee who is suspended under this section:

(a) does not accrue any leave for the period of the suspension; but
(b) may, during the period of the suspension, take any long service or recreation leave to which the employee was entitled at the time the suspension was imposed.

(6) If the Chief Executive Officer makes a decision under section 44(2) in relation to an employee suspended under this section:

(a)     the employee must be credited with any leave that would have accrued to the employee for the period of the suspension had the employee not been suspended; and
(b)     if the suspension was without remuneration for any period – the employee must be paid the remuneration to which the employee would have been entitled for that period had the employee not been suspended; and
(c)     if the employee took leave as mentioned in subsection (5)(b) – the employee must be re‑credited with the leave so taken.

(7) Subsection (6) does not apply if the employee's employment is terminated under section 46(1)(c).”

The relevant section of the Fire and Emergency Act 1996 (NT) as cited by the Respondent is as follows:

“9 Powers and functions of Chief Fire Officer

(1)Subject to the directions of the Director, the Chief Fire Officer has operational responsibility for the Fire and Rescue Service.
(2)The Chief Fire Officer has power to do all things that are necessary or convenient to be done for or in connection with or incidental to the performance of his or her functions and the exercise of his or her powers.”

Applicant’s Submissions

The Applicant did not file a formal Outline of Submissions in these proceedings. The Applicant relied on a witness statement filed and signed by him, and ‘Reply Submissions’ confirming information as filed in his Form F2 – Application for an unfair dismissal remedy. Those materials are summarised as follows.

The Applicant submitted that he diligently performed his duty without incident and volunteered for training and qualifications when asked, at little benefit to himself.

The Applicant submitted that in late October 2021 as per instructions of Ms Telfor, he sent an email via acting Station Officer, Mr Peter Jelly, to Mr Jamie Chalker asking for consultation regarding his options and raising concerns on the safety and experimental status of the COVID-19 vaccine, including who would be liable for any damages both fiscal and physical that he may incur due to “known possible side effects” of the vaccine. The Applicant submitted that he received no response.

The Applicant submitted that he took approved recreational leave from 13 November until 21 December 2021, with leave ‘tacitly’ approved until 8 March. The Applicant submitted that he took this leave with the intention of considering his options, as his request for consultation was ignored and in the “rapidly developing situation”, he sought to “meter his actions” to better fit the requirements for the time of his return to work.

The Applicant submitted that this action was recommended by the Northern Territory Government in the “FAQs - NTPS Employment advice - 1 November 2021” document, which stated:

“13. If I refuse to be vaccinated, can I take a long period of leave?
Alternative arrangements should be considered as an interim measure only, with the overall aim of mitigating the risk of COVID-19 transmission. This could include, for example, working from home where operationally feasible, or accessing recreation leave with approval.

Employees can apply for leave as part of normal leave request arrangements which
will be considered in the context of an agency’s operational requirements; however
these arrangements may not be feasible.”

The Applicant submitted that he did not violate CHO Direction No. 55 at any time. He submitted that in accordance with sections 77 and 78 of the FW Act, he was on leave and “technically not at work”.

The Applicant submitted that he was terminated on the provision that he was unable to respond to mandatory recall in the event of COVID-19 crippling the work force. However, the Applicant submitted that the Agreement only provides grounds for mandatory recall being a fire. Further, the Applicant submitted he has no knowledge of any fire fighter ever being forced off of their recreational leave for mandatory recall.

The Applicant questioned how his termination remedied the situation, as he submitted that he was still open to the idea of receiving the required ‘treatment’ after his queries were satisfied.

The Applicant submitted that he is unaware of any provision requiring him to remain immediately available for recall whilst on approved recreational leave, and that if this were the case, “how is it that we allow members to travel overseas or be otherwise uncontactable thus making them unable to respond”.

Valid reason

The Applicant submitted that a valid reason must also be objectively valid. The Applicant submitted that the reason must be “defensible or justifiable on an objective analysis of the relevant facts”.[1] The Applicant submitted that a valid reason for the purposes of s.387(a) of the FW Act is one which is “sound, defensible or well-founded” rather than “capricious, fanciful, spiteful or prejudiced”.[2]

The Applicant submitted that his dismissal was harsh, unjust, unfair and was invalid. The Applicant submitted that his dismissal was effected based on template ‘one size fits all’ approach which was erroneous and made without diligent consideration of all relevant facts. Further, the Applicant submitted that the Respondent engaged in serious mismanagement and made a flawed and unlawful decision.

The Applicant submitted that the Northern Territory Fire and Rescue Service (NTFRS) Darwin Station Watch Commander, Mr Sean Raney, had formally approved his annual leave from 13 November 2021 to 20 December 2021 in compliance with sections 87 and 88 of the FW Act. The Applicant submitted therefore, he was on pre-approved annual leave for that period, which formed part of the terms of his contract of employment as explained by Full Bench of the Australian Industrial Relations Commission in the decision Advanced Australian Workplace Solutions Pty Ltd[3] at [49]:

“[49] The elements of a contract are stated in Macken, McCarry and Sappideen’ ”The Law of Employment” (4th Edition, 1997 by the Hon James Macken, Paul O’Grady and Carolyn Sappideen) (Macken, McCarry and Sappideen) a text to which reference was made both before Commissioner Simmonds and us, as follows (page 74):

“The law holds that before any simple contract is enforceable it must be formed so as to contain various elements. These are:

1. There must be an “intention” between the parties to create a legal
relationship the terms of which are enforceable.
2. There must be an offer by one party and its acceptance by the other.
3. The contract must be supported by valuable consideration.
4. The parties must be legally capable of making a contract.
5. The parties must genuinely consent to the terms of the contract.
6. The contract must not be entered into for any purpose which is illegal.”

The Applicant submitted that the NTFRS unilaterally cancelled his pre-approved annual leave, which was unlawful and in contravention of sections 87 and 88 of the FW Act. The Applicant submitted that s.88 of the FW Act, in relation to annual leave requests, confirms that an employer must not be unreasonable by unilaterally cancelling pre-approved leave.

The Applicant submitted that the Explanatory Memorandum to the Fair Work Bill (Cth) 2009 provides guidance, and states at paragraph 382 that as to assessing what is a reasonable decision by an employer, the following are relevant considerations:

·   the needs of both the employee and the employer’s business,
·   any agreed arrangement with the employee,
·   the custom and practice in the business,
·   the timing of the requirement or direction to take leave,
·   the reasonableness of the period of notice given to take the leave.

The Applicant relied on the following case authorities of the NSW Industrial Relations Commission in support of his contentions as to s.88 of the FW Act:
· Glenda Louise Robbie v Dun & Bradstreet (Australia) Pty Ltd [1998] NSW IRC 628; and
· Dun & Bradstreet (Australia) Pty Ltd v Glenda Louise Robbie [1999] NSW IRC 316.

The Applicant submitted that the above authorities deemed it unfair for the employer to arbitrarily consider a request for leave solely by reference to the employer’s business needs, without taking into account on a reasonable basis the circumstances of the employee.

The Applicant also cited the Commission decision in Adriana Stevens v Horsley Park Supermarket Pty Ltd trading as Carlo's IGA Horsley Park (Stevens)[4] in which Commissioner Cambridge award the employee 16 weeks’ compensation pay because the employer erroneously mismanaged the employees annual leave. The Applicant noted this has similarly occurred in the present case.

The Applicant noted that in Stevens, Commissioner Cambridge stated as follows:

“[47] It is clear from s. 88 (2) of the Act that an employer must not unreasonably refuse to agree to a request by an employee to take paid annual leave. Whether there has been an unreasonable refusal to agree to a request to take paid annual leave is a matter that involves careful assessment of all of the particular circumstances of each case. Matters such as the nature and size of the employer’s business operation, and the period of notice provided for any requested leave, are matters of significance in any assessment of whether a refusal to agree to leave was unreasonable.
…
[58] In summary, when the various aspects of all of the circumstances surrounding the
employer’s refusal to agree to the applicant’s April leave request are carefully examined and balanced, that refusal must be held to have been unreasonable. In simple terms, it was unreasonable for the employer to have delayed proper and clear determination of the applicant’s annual leave request such that a financial impost of some $4,000 would be suffered by the applicant in order to comply with the employer’s tardy directive. The applicant had made the request for annual leave with sufficient notice to enable the employer to make arrangements to cover the absence of the applicant. Further, the employer was obliged to provide and communicate unequivocal refusal in a timely manner.

…
[73] The procedure that the employer adopted when it dealt with the applicant’s request to take annual leave represented an unfortunate example of serious mismanagement.
…
[89] Consequently, for the reasons outlined above I have decided that an amount approximating with 16 week’s remuneration should be provided as compensation to the applicant…”

The Applicant submitted that s.88 of the FW Act confirms that an employer must not be unreasonable by unilaterally cancelling pre-approved annual leave and/or by being unreasonable in not agreeing to an employee’s application of annual leave of absence, and to do so would be a contravention of his workplace rights under that section.

The Applicant submitted that the decision by CFO Spain to unilaterally cancel his pre-approved annual leave was a contravention of s.88 of the FW Act, and also a contravention of section 5F(1) of the Public Sector Employment and Management Act (NT) (PSEM Act) where it states:

“5F(1) a public sector officer must do the following:
(a) carry out the officer’s duties as follows
(i) objectively, impartially, professionally and with integrity…”

The Applicant submitted that his contract of employment in relation to his pre-approved annual leave from 13 November 2021 to 20 December 2021 was in place and enforceable pursuant to sections 87 and 88 of the FW Act, and, therefore, CFO Spain was legally obligated to continue to honour the pre-approved annual leave. The Applicant submitted that this was a contract of employment which could not unlawfully be broken, however, CFO Spain unlawfully broke it by dismissing the Applicant from his employment.

The Applicant submitted that he was not working physically in the workplace, nor dealing with clients, stakeholders, other employees or vulnerable persons in the workplace while he was on pre-approved annual leave from 13 November 2021 to 20 December 2021. The Applicant submitted that for these reasons, he was not contravening and was complying with CHO Direction No. 55.

The Applicant further submitted that he was not contravening section 351(2)(b) of the FW Act, which deals with ‘inherent requirements’, because he was on pre-approved annual leave pursuant to sections 87 and 88.

The Applicant submitted that the decisions by CFO Spain to “unilaterally cancel his pre-approved annual leave” via the “one size fits all misguided” Notice of Suspension from Duty Without Remuneration letter and the “misguided” Letter of Termination were erroneous, wrong at law and in contravention of ss. 87 and 88 of the FW Act.

The Applicant also contended that unilateral cancelling of his pre-approved annual leave constituted unreasonable management action and did not comply with section 3A of the Return to Work Act (NT). The Applicant relied here on the Northern Territory Supreme Court of Appeal decision in Faye Rivard v Northern Territory of Australia,[5] which considered ‘unreasonable management action’. The Applicant also relied on Commission decisions in Tao (Selina) Qu v Monards Pty Ltd[6] and Michelle D’Souza v Woolworths Group Ltd[7] in relation to what constitutes unreasonable management action.

The Applicant submitted that he had not engaged in serious misconduct as defined in s.12 of the FW Act and Regulation 1.07 of the Fair Work Regulations (FW Regulations).

Further, the Applicant submitted that he had a workplace right pursuant to ss.340 and 341 of the FW Act to assert his workplace right to take leave pursuant to ss.87 and 88 of the FW Act.

The Applicant submitted that the Respondent terminated his employment:

“based on verbal subjective strident communications in the NT Media by an NT Politician without thorough and diligent appraisal of all the corrects facts relating to my specific circumstances and my employer has applied an unsophisticated and erroneous tick and flick one size fits all serious mismanagement approach and has now invalidly, harshly, unfairly and unjustly dismissed my employment”.

Further, the Applicant submitted that the Respondent conducted a procedurally unfair process, and relied here on the decision in Karen Jones v Northern Territory Commissioner for Public Employment (Jones)[8] which states:

“[64] The evidence is that the applicant did not have the opportunity of meetings or face-to-face discussions over the period from 19 October 2011 to 13 January 2012. Without such meetings she did not have the opportunity for representation or support persons to assist with discussions with the respondent. Prior to that period the applicant had only two meetings with team leaders or a manager from the commencement of her employment on 14 June 2011. Given the list of grievances that the applicant provided to the respondent and the characterisation of the environment in which she was fulfilling the respondent’s work requirements which ultimately is illustrated prior to dismissal when the applicant informed the respondent she feared for her own safety. The tribunal has formed a view the respondent’s actions referred to above as a “disciplinary process by correspondence” have been too extended and carried out in such a manner that they resulted in unnecessary effects upon the applicant.

[65] The respondent’s evidence on Natural Justice [Employment Instructions Number 3] has a guideline which indicates:

“The exact requirements of a fair hearing will vary depending on the circumstances, including the seriousness of the foreshadowed action and the extent to which the person will be adversely affected by the decision. In general, the more serious the consequences of a decision for an employee the more rigorously the principle of natural justice should be applied.”

[66] In the tribunal’s view the above scenario does not meet the test of a reasonable consideration of procedural fairness inherent in the provisions of s.387(c) and (d) of the Fair Work Act (Cth).

…
[68] In these circumstances the tribunal does not accept that the applicant has had a viable opportunity to respond to the employer in these circumstances or that she had the opportunity for a support person in discussions. The respondent has applied a less than a procedurally fair approach to a significant disciplinary process.”

The Applicant submitted that despite the decision in Jones, which also involved the Respondent, the Respondent continues to ignore its obligations as explained by Commissioner Steel and continues to contravene their procedural fairness obligations pursuant to s.387 of the FW Act, as occurred in the present case.

The Applicant also noted that in Jones, the applicant had only been employed for seven months and the Commissioner awarded her 12 weeks’ compensation, factoring in that she had been paid 1 weeks’ notice.

The Applicant further relied on the decision in Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal,[9] asserting that the Respondent did not adequately consult with him as required and that the 7 day timeframe between his letter of suspension without remuneration (23 November 2021) and his letter of termination (30 November 2021) was unreasonable and inadequate. The Applicant submitted that this is further evidence of the Respondent’s serious mismanagement and erroneous decision making regarding his unfair, harsh and unjust dismissal.

Remedy

The Applicant noted that he had made multiple requests for, but not received, his final payslip outlining the days he was paid for recreational leave and a breakdown of his final payment.

As a remedy to this application, the Applicant seeks reinstatement at no less remuneration and in the same substantive position he held prior to his dismissal.[10] The Applicant also seeks payment of wages from the date of his dismissal to the date of his reinstatement, and for this period to be recognised as continuous employment service pursuant to s.22 of the FW Act. The Applicant seeks that all of his recreational leave be recredited to him on reinstatement.

Respondent’s Submissions

The Respondent submitted that the Applicant’s dismissal was not harsh, unjust or

unreasonable for the following reasons.

Section 387(a) – valid reason

The Respondent relied on CFO Spain’s witness statement filed in these proceedings as demonstrating that there was a valid for the dismissal relating to the Applicant's capacity to perform the inherent requirements of his job.

The Respondent submitted that CHO Directions 55/81 were in place which provided that if a worker fell within one of four categories outlined, they were precluded from attending work and their employer was precluded from allowing the worker to attend if they had not received an approved COVID-19 vaccine within specified times. The Respondent submitted that an offence would be committed if the CHO Directions were breached.

The Respondent submitted that the Commissioner of Police/CEO had determined that all jobs within PFES fell within one of the categories of workers who were required to be vaccinated. The Respondent submitted that as at 13 November 2021, the Applicant had not received a first dose of an approved COVID-19 vaccine, the Applicant did not have evidence of a contraindication to the approved vaccines and the Applicant had not indicated that he had an appointment to receive a vaccination such that some flexibility might be afforded, for example, a short period of leave.

The Respondent submitted that in circumstances were an employee is unable to perform the inherent requirements of their job, s.44 of the PSEM Act applied. For completeness, s.44 provides:

“44 Inability or unsatisfactory performance

(1)There are inability or performance grounds for an employee if the employee:
(a)is not able to perform the duties he or she is assigned to perform (whether because of physical or mental illness or disability or any other reason); or
(b)is not suited to perform, or capable of efficiently performing, those duties; or
(c)is not licensed, registered or otherwise qualified for the efficient and satisfactory performance of those duties; or
(d)is not performing those duties efficiently or satisfactorily.

(2) the Chief Executive Officer of an Agency is satisfied, on reasonable grounds, that there are inability or performance grounds for an employee in the Agency, the Chief Executive Officer may take action in relation to the employee under section 46(1)…”

The Respondent submitted that the Applicant was a Firefighter and the CFO was unable to find suitable alternative duties that were not subject to the CHO Direction, as all jobs within the PFES were considered to fall within one or more of the categories specified by the CHO as requiring workers to be vaccinated. The Respondent submitted that had the Applicant been allowed to attend the workplace, the CEO would have committed an offence under the Direction leaving himself and PFES open to prosecution and a maximum fine of $25,120. The Respondent submitted that the actions available to the CFO under s.46(1) of the PSEM Act included taking no further action, ordering training or counselling or other remedial activities, reducing pay, transfer or termination. The Respondent submitted that in circumstances where the Applicant was not vaccinated, not intending to be vaccinated and could not be placed in alternate duties where the CHO Direction did not apply, the CFO had no alternative but to terminate the Applicant’s employment.

Section 387(b) and (c) – notification of the reason and opportunity to respond

The Respondent submitted that the Applicant was notified of the reason for considering dismissal and was provided opportunities to respond.

The Respondent submitted that following the CHO Direction of 13 October 2021, at least eight notices were sent to all employees in PFES advising of the CHO Direction, its requirements and its impact on employment. The Respondent submitted that following these advices the Applicant received specific and detailed advice on four occasions, 12 November, 17 November, 19 November and 23 November 2021 and was invited to make submissions on each occasion. The Applicant made submissions on 16 November 2021 and two on 22 November 2021.

The Respondent submitted that these responses was considered by the CFO before a decision was made regarding the Applicant’s employment.

Section 387(d) – support person

The Respondent submitted that there was no request by the Applicant to meet to discuss the inability proceedings and therefore the question of whether there was an unreasonable refusal by the employer to allow a support person to assist at any discussions relating to the dismissal does not arise.

Section 387(e) – unsatisfactory performance

The Respondent submitted that the dismissal did not relate to the Applicant's unsatisfactory performance. The Respondent submitted the dismissal arose because the Applicant chose not to be vaccinated and, consequently, was precluded from attending work and the employer was not permitted to allow the Applicant to attend. The Respondent submitted that as the Applicant could not attend, he could not perform the inherent requirements of his job.

Section 387(f) and (g) – size of the enterprise and HR management

The Respondent submitted that whether the size of its enterprise impacted on the procedures followed and the degree of dedicated human resource management were not matters that the Respondent wished to raise.

Responses to the Applicant’s contentions

The Respondent noted that the Applicant had not filed an outline of submission ahead of the Respondent filing its submissions. The Respondent provided responses based on the matters raised in the Applicant’s Form F2 application and his witness statement as filed.

While the Applicant contended there was no valid reason for the termination, the Respondent maintained there was a valid reason on the basis that the Applicant was not able to

perform the inherent requirements of his job because he chose not to be vaccinated with an approved COVID-19 vaccine and as a result, under the CHO Directions he was not able to attend his workplace and the employer was not allowed to permit him to attend. The Respondent maintained there were no alternative duties the Applicant could have been given that were not also subject to the CHO Directions.

While the Applicant contended that he was on pre-approved recreation leave that could not be cancelled, the Respondent submitted that the inability provisions in the Act can be commenced at any time where circumstances warrant, and in this case the CHO Directions specified particular dates for workers to be vaccinated to be able to attend work and this was the trigger for commencing the inability process. The Respondent submitted that the corollary of the Applicant’s argument is that an employee faced with a management process (e. g. discipline, performance, inability) would be able to avoid scrutiny simply by continually extending their leave.

While the Applicant contended his dismissal was based on a ‘one size fits all approach’, the Respondent acknowledged that the template letters were prepared that would form the basis for communicating with employees, however, in the circumstances this was not surprising, and in fact would be expected to ensure the process for each employee was consistent with the requirements of the Act. The Respondent submitted that these templates were designed to be amended as necessary to encompass the specific facts and issues for each employee.

The Respondent relied on CFO Spain’s evidence to demonstrate that the issues raised by the Applicant at each stage in the process were considered by the CFO prior to any decisions being made.

While the Applicant contended that as he was on recreation leave and not physically working in the workplace, therefore, he could not have been contravening the CHO Direction, the Respondent submitted this is ‘technically correct’, however, was only existing at that given point in time and for a specified period. The Respondent noted that, similarly, if someone was on a day off, applying this logic would result in them also not contravening the CHO Direction for that limited period. The Respondent submitted that at the end of these specified periods, it was expected that an employee would be able to return to work immediately and without delay (e.g. not having to wait for an appointment to receive a first vaccination and then waiting another 4 weeks before the second dose could be administered). The Respondent submitted that requiring an employer to work around this assertion would leave the employer not knowing who was available and when, severely impacting the employer’s ability to manage its human resources efficiently and effectively deliver its services.

The Respondent submitted that the proper approach is to not give weight to these temporal circumstances when considering whether an employee on leave is required to be vaccinated under the CHO Direction.

Further to the above matters, the Respondent submitted that the Applicant is a Firefighter, and under the Fire and Emergency Act 1996 (NT) the CFO has the power to recall a Firefighter in the event of an emergency.

The Respondent noted that the Applicant contends that he had not engaged in serious misconduct as defined in section 12 of the FW Act. The Respondent agreed with the Applicant on this point.

The Respondent submitted that the Applicant appears to contend the decision of a single Commissioner in Jones establishes that the obligation to provide natural justice for s.387(c) of the FW Act includes an obligation to hold face to face meetings with the employee as distinct from providing the employee with an opportunity to respond to reasons for dismissal in some other way. The Respondent submitted that in a unanimous decision of a Full Bench of the Commission in Bluescope Steel v Agas[11] at paragraph [77], the Full Bench stated:

“[77] In summary, the Commissioner failed to make requisite findings about the criteria set out in s.387(b), (c) or (d)of the Act. If he had - based on the evidence - he would have been bound to conclude that BlueScope had notified Mr Agas of the reason they were considering dismissing him, had given him an opportunity to respond to that reason and had not unreasonably refused to allow him a support person at any relevant discussions. Despite this, the Commissioner found that ‘the investigative process’ was procedurally unfair. He did this by substituting an alternative notion of procedural unfairness to that set out in the Act. The process was unfair he found because it ‘did not involve an interview with the relevant employee.’ The requirements are those set out in s.387(b), (c) and (d); whether to conduct an interview is a matter for the person conducting the investigation. In this case, Mr Agas well knew the basis of BlueScope’s concerns, and had ample opportunity to present his case. There were no sound grounds for finding that there was any procedural unfairness. Mr Agas’s union made written representations for BlueScope to consider. Moreover, further representations were made at the show cause meeting and, relevantly, prior to the final decision to dismiss.”

(Respondent’s emphasis)

The Respondent submitted that the gist of the Full Bench decision at paragraph [77] above, is that the Commissioner at first instance in that matter substituted an alternative notion of procedural fairness to that set out in the FW Act, and the same conclusion can be reached with respect to the Jones decision.

While the Applicant advised he had pre-approved recreation leave from 13 November to 20 December 2021 and that he had tacit approval for further leave to 8 March 2022, the Respondent accepted the Applicant had pre-approved recreation leave to 20 December 2021, however, submitted there was no formal approval for the second period referred to and the Applicant has not provided any evidence to that effect.

The Applicant referred to the Frequently Asked Questions document dated 1 November 2021 in support of his taking long leave. However, the Respondent noted, as quoted by the Applicant, Question 13 stated:

“If I refuse to be vaccinated, can I take a long period of leave?

Alternative arrangements should be considered as an interim measure only, with the overall aim of mitigating the risk of COVID-19 transmission. This could include, for example, working from home where operationally feasible, or accessing recreation leave with approval.
Employees can apply for leave as part of normal leave request arrangements which will be considered in the context of an agency’s operational requirements; however these arrangements may not be feasible.”

(Respondent’s emphasis)

The Respondent submitted that the Applicant was a Firefighter who had indicated he was not vaccinated. Therefore, he could not be recalled from leave in the event of an emergency anyway so providing him with additional leave was not feasible.

While the Applicant contended the enterprise agreement provided for recall only if there is a fire and that he has no knowledge of any fire fighter ever having been subject to a mandatory recall to duty while on recreation leave, the Respondent submitted that the Fire and Emergency Act 1996 and the Agreement work together, and the Agreement provides for specific recalls for fires and how they are dealt with, but with respect to recalls for other emergencies they fall within the general provisions of the Fire and Emergency Act. The Respondent submitted, therefore, there is no inconsistency between the provisions of the Agreement and the Act.

The Respondent submitted that in respect to past history of recalls, whilst this is of interest, there has never been an emergency like COVID-19 and its complexity, seriousness and urgency, as encapsulated in the responses by Australia’s medical experts, including through the issuing of CHO Directions around the country. As such, to require all Firefighters to be available for recall to duty in the event of an emergency is critical to the NTFRS service delivery.

Conclusion

The Respondent submitted that the evidence demonstrates the Applicant’s dismissal was not harsh, unjust or unreasonable. However, in the event the Commission finds in the alternative, the Respondent requested an opportunity to make further submissions as to remedy.

Consideration

I have taken into account all of the submissions that have been provided by the parties and I have attached the appropriate weight to the evidence of the witnesses. The fact that an issue is not mentioned in this decision does not mean that it has not been taken into account.

It is not in dispute and I find that the Applicant is protected from unfair dismissal, submitted his application within the statutory timeframe, was not made genuinely redundant and did not work for a Small Business.

When considering whether a termination of an employee was harsh, unjust or unreasonable, the oft-quoted joint judgement of McHugh and Gummow JJ in Byrne v Australian Airlines (Byrne)[12] is of significance:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

In analysing Byrne, a Full Bench of the Australian Industrial Relations Commission in Australian Meat Holdings Pty Ltd v McLauchlan (AMH)[13] held:

“The above extract is authority for the proposition that a termination of employment may be:

·   unjust, because the employee was not guilty of the misconduct on which the employer acted;
·   unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before the employer; and/or
·   harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct”.[14]

I now turn to the criteria for considering harshness as provided in s.387 of the Act.

Section 387(a) – valid reason

The meaning of the phrase “valid reason” has been universally drawn from the judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd:[15]

“In broad terms, the right is limited to cases where the employer is able to satisfy the Court of a valid reason or valid reasons for terminating the employment connected with the employee’s capacity or performance or based on the operational requirements of the employer. …

In its context in s 170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that” the employer and employee are each treated fairly…”[16]

In Rode v Burwood Mitsubishi,[17] a Full Bench of the Australian Industrial Relations

Commission held:

“… the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.”

In Qantas Airways Ltd v Cornwall (Cornwall)[18] the Full Court of the Federal Court of Australia said:

“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”

It is not in dispute and I find that the Applicant was required to comply with the CHO Direction No. 55. It is not in dispute that the Applicant was not vaccinated and, relevantly, took recreational leave from 13 November 2021 to avoid the need to comply with CHO Direction No. 55. The Respondent could not allow the Applicant to return to work until he complied with CHO Direction No. 55. If there was an emergency situation, which required the CFO to recall the Applicant from recreational leave, the Applicant would not have been able to attend. Therefore, the Applicant could not perform the inherent requirements of his role.

As a result of the Applicant’s inability to perform the inherent requirements of his role, I am satisfied and find that the Respondent had a valid reason to terminate the Applicant.

Section 387(b) – Notified of the reason

It is not in dispute that the Applicant was notified of the reasons for his termination.

Section 387(c) – Opportunity to respond

The Applicant was given a number of opportunities to respond to the reasons for his termination.

Section 387(d) – Refusal of a support person

The Respondent did not arrange a meeting with the Applicant, nor invite an opportunity for a meeting. As there were no physical meetings ahead of the Applicant’s termination, this issue is not relevant.

Section 387(e) – Unsatisfactory performance

There were no issues of unsatisfactory performance raised by the parties. This issue is not relevant.

Section 387 (f) and (g) – Size of Enterprise and HR Staff – procedures followed

The Respondent did not seek to make any submissions on these matters. It is noted that the Respondent is a large employer.

Section 387(h) – Any other matters

The Applicant was terminated on 30 November 2021 even though he was on approved annual leave. I note this leave was taken to overcome the vaccination deadline of 12 November 2021 contained in CHO Direction No. 55. Whilst the Commission would not normally support the termination of an employee whilst on approved recreational leave, the medical uncertainty surrounding COVID-19 and the debilitating effect the disease could render to a workforce creates a special circumstance for emergency personnel. CFO Spain was concerned, appropriately in my view, that if a major cluster formed in a fire station, which required a large number of firefighters to isolate, then he may be required to direct employees, who are on recreation leave, back to work in order to maintain operational capacity of the Fire Department. There was also the possibility, in the event of a major fire or emergency, that the normal assistance being offered by either the Federal or other State Governments would be unavailable during the COVID-19 pandemic due to border closures and lockdowns. In this regard, the emergency services of the Northern Territory had to be self-sufficient. I am confident that Cyclone Tracey is still a vivid memory of many Territorians and is proof that emergency situations, apart from fire, can occur in the Northern Territory. I am satisfied that CFO Spain had a good reason to act in a manner to ensure that all employees were vaccinated in case of an emergency.

I do not accept the proposition that it was unreasonable management action to cancel the Applicant’s approved recreation leave. The Applicant only took the leave to overcome the COVID-19 vaccination deadline.

The advice from the Respondent[19] was that employees could take recreation leave “as an interim measure only” in the “context of an agency’s operational requirements”. I am satisfied this occurred. The Applicant had ample opportunity to become vaccinated, but he exercised his right to choose not to do so. Unfortunately, this choice put the Applicant in breach of an enforceable CHO Direction. I prefer the interpretation of the Respondent in relation to the NTPS Frequently Asked Questions document. I am satisfied that the CFO’s decision was based purely on the possible operational requirements of the Fire Department.

I am satisfied and find that the Applicant was afforded the requisite amount of procedural fairness. The Applicant was written to on numerous occasions, had known about CHO Direction No. 55 since 13 October 2021, and was given the opportunity to deny or correct alleged comments about his current or future vaccination status or possible contraindication. Instead, the Applicant sought answers to questions in relation to the efficiency and side effects of the vaccinations. Answers to these questions were not within the capacity of the Respondent. The Respondent was simply enforcing a Direction from the Northern Territory Government.

I do not agree that the Applicant has not been afforded natural justice. The Applicant was given ample opportunity to seek appropriate medical advice in relation to CHO Direction No. 55. The Applicant was given a number of opportunities to provide reasons why he should not be suspended or terminated. I am satisfied that a face-to-face meeting would not have resulted in the Applicant changing his mind in relation to becoming vaccinated. The Applicant remains unvaccinated today. Whilst I have concerns about the speed of the termination process, I am satisfied that an extra day or two for the Applicant to respond to each piece of correspondence from the Respondent would not have changed the eventual outcome. The Applicant would have continued to be paid his recreation leave whilst suspended on no pay and would not have accrued any further leave. As a result, on the basis that the Applicant was paid out his untaken recreation leave upon termination, the Applicant is in no worse position by being terminated on 30 November than if he was terminated on 20 December 2021.

Relevantly, Hatcher VP, recently determined Rowe v Commissioner For Public Employment (Northern Territory),[20] where he held;

“[80] In respect of the first matter, I consider it was unfair in a general sense to impose a vaccination requirement upon Mr Rowe in circumstances where his pre-approved leave would not have required him, in all probability, to attend the workplace. It is true that Mr Rowe retained his overall responsibility to attend for work in some fashion if required to do so in response to an emergency or disaster, but the prospect of this occurring in a limited six-week period, in circumstances where it had never occurred before in a period of over seven years, was vanishingly small. A more realistic and flexible approach was called for. It would not have involved any contravention of the CHO Orders for the PWC not to require Mr Rowe to be vaccinated prior to him returning for work after the end of his leave period. Questions and answers 9, 13 and 16 of the FAQ document specifically contemplated that a person could proceed to go on approved leave even if not vaccinated, in which case they would not be required to show proof of vaccination until immediately before returning to work at the end of the leave period. The FAQ document was intended to guide managers in their implementation of the CHO directions, but it was in my view not followed in a practical fashion by Ms Pollard. The requirement to vaccinate in advance caused Mr Rowe to cancel his pre-approved annual leave.

[82] These matters are of potential relevance to the fairness or otherwise of the dismissal because Mr Rowe submits that he had not made a positive decision to refuse to be vaccinated, that he had legitimate concerns about risks associated with taking the mRNA vaccines that had been approved at the relevant time, and that he wished to reflect upon his position and work through his concerns away from the pressures of work and, perhaps, to wait for the approval and availability of the Novavax vaccine.
[83] If I were satisfied that there was a serious possibility that Mr Rowe may have reconsidered his position and ultimately agreed to be vaccinated if he had been allowed to take his pre-approved leave without being required to be vaccinated beforehand, I would be inclined to the view that his dismissal effective from 6 December 2021 was premature and harsh. I would similarly be inclined to this view if I considered that there was a serious possibility that Mr Rowe might have taken the Novavax vaccine (which was approved and available by mid-February 2022, as earlier stated) had PWC had stayed its hand whilst Mr Rowe was on suspension without pay. Matters that would support a conclusion of that nature include that the CHO Directions were introduced at relatively short notice, and that it is understandable that some persons may be hesitant to take the vaccine in the face of the significant amount of disinformation about vaccination being peddled in social media and elsewhere in the public sphere.
[84] However, ultimately, I do not consider that there was ever a real possibility that Mr Rowe would agree to vaccination, and I do not accept his evidence to the contrary…”

I note the similarity of some of the facts in this case.

In relation to the manning issue at Alice Springs, CFO Spain advised that a gas truck had rolled on the Lassiter Highway approximately 200kms from Alice Springs. Due to the manning at this incident, the 10-hour Saturday day shift was one firefighter short, albeit in breach of the manning levels in the Agreement.

CFO Spain testified that he would only call in a firefighter from their recreational leave in exceptional circumstances and never for a short-term absence.

The Applicant argued that the actions of the CFO placed the firefighters on that understaffed day shift at significant risk and significantly reduced the level of service to the community of Alice Springs. The Applicant submitted that firefighters would have ignored their safety training and standards if they had been called to a fire and needed to enter the burning premises.

The Applicant has recently raised the lifting of the Public Health Emergency by the Northern Territory Government on 15 June 2022.

The matter was listed for Conference on 4 July 2022 to ascertain the Respondent’s views to this new situation and whether there was an opportunity for the Applicant to be re-employed. The Respondent advised that there had been no change to the Respondent’s position that all employees had to be triple vaccinated to be employed.

The Respondent submitted that the powers of the CFO to recall employees under the Fire and Emergency Act are only used in exceptional circumstances, such as COVID, where the number of firefighters available to be rostered for duty could be decimated as a result of a COVID cluster in a fire station.

Conclusion

I have previously found that the Respondent had a valid reason to terminate the Applicant.

Whilst concerned about an employee being terminated whilst on leave, I note that the leave was only short term and was undertaken to avoid the immediacy of CHO Direction No. 55. I am satisfied and find, based on the reasons above, that there were no issues pertaining to section 387(b) – (h) of the FW Act which would result in the Applicant’s termination being classified as harsh, unjust or unreasonable.

I am satisfied and find that the Applicant has received his statutory entitlement to a fair go. I am satisfied and find that the Applicant was not unfairly dismissed.

The Application is dismissed.

I so Order.

COMMISSIONER

[1] Rode v Burwood Mitsubishi, Print R4471 at [19].

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

[3] [1999] AIRCFB.

[4] [2017] FWC 4626.

[5] [1999] NTCA 28.

[6] [2021] FWC 4507.

[7] [2021] FWC 1364.

[8] [2012] FWA 7069.

[9] [2021] FWCFB 6059.

[10] The Applicant relied here on Giuseppina (Josie) Cartisano v Sportsmed SA Hospitals Pty Ltd [2015] FWCFB 1523.

[11] [2014] FWCFB 5993.

[12] (1995) 185 CLR 410.

[13] (1998) 84 IR 1.

[14] (1998) 84 IR 1, 10.

[15] (1995) 62 IR 371.

[16] Ibid.

[17] PR4471.

[18] (1998) 84 FCR 483.

[19] See Transcript at PN87.

[20] [2022] FWC 1405.

Printed by authority of the Commonwealth Government Printer